Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
22-058 Retail Real Estate Resources LLC dba Metrovation Retail Resources for Retail Study Session
Page 1 of 9 Professional/Consulting Contracts /Version: October 2021 PROFESSIONAL/CONSULTING SERVICES AGREEMENT 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Retail Real Estate Resources LLC dba Metrovation Retail Resources (“Contractor”), a California Sole Proprietor LLC for Retail Study Session, and is effective on the last date signed below (“Effective Date”). 2. SERVICES Contractor agrees to provide the services and perform the tasks (“Services”) set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on June 30, 2022 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on April 15, 2022 and shall be completed by June 30, 2022. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $15,000 (“Contract Price”), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. Page 2 of 9 Professional/Consulting Contracts /Version: October 2021 4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under the Agreement. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, worker’s compensation, or other benefits from the City. 5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Services as required by law and have procured a City Business License, if required by the Cupertino Municipal Code. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made. 6. PROPRIETARY/CONFIDENTIAL INFORMATION Page 3 of 9 Professional/Consulting Contracts /Version: October 2021 In performing this Agreement, Contractor 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. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement. Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium (collectively, “Work Product”), prepared by Contractor in connection with this Agreement will be the exclusive property of the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to any third-party without prior written approval of City, unless information has become public information because it has been presented at a public meeting. 7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising out of this Agreement is considered “works for hire” and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights. Contractor may use copies of the Work Product for promotion only with City’s written approval. 7.3 Patents and Licenses. Contractor must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property if incorporated into the Services or Work Product of this Agreement. 7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following: (a) The original Services for which Contractor was hired; (b) Completion of the original Services by others; (c) Subsequent additions to the original Services; and/or (d) Other City projects. 7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single-sided original. 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor’s performance, benchmarks and deliverables, which must be available Page 4 of 9 Professional/Consulting Contracts /Version: October 2021 to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four (4) years from the date of City’s final payment. Contractor acknowledges that certain documents generated or received by Contractor in connection with the performance of this Agreement, including but not limited to correspondence between Contractor and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Contractor shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided. 9. ASSIGNMENT Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. 10. PUBLICITY / SIGNS Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City’s contributions in making the project possible. The words “City of Cupertino” will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) of every nature, arising from any of the following: (a) Breach of contract, obligations, representations, or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; (d) Unauthorized use or disclosure of City’s confidential and proprietary Information; (e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party. Page 5 of 9 Professional/Consulting Contracts /Version: October 2021 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement. 11.3 Contractor’s duties under this section are not limited to the Contract Price, workers’ compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 11.4. Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction. 11.5. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6. This Section 11 shall survive termination of the Agreement. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until Cit y approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor’s compensation or terminating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act. 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a “public works” component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination Page 6 of 9 Professional/Consulting Contracts /Version: October 2021 laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by the City’s rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns Tina Kapoor, Economic Development Manager as the City’s representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Christine Firestenberg, Principal as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor’s Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City’s Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be given reasonable time to assemble the work and close out the Services. With City’s pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent (10%) of the total time expended to date in the performance of the Services. 16. TERMINATION Page 7 of 9 Professional/Consulting Contracts /Version: October 2021 City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product. 17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator’s award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18. ATTORNEY FEES If Consultant or 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. 19. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Agreement. 20. WAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City’s waiver of a breach shall not constitute waiver of another provision or breach. 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties. Any modification of this Agreement will be effective only if in writing and signed by each Party’s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between any term, clause, or provision of the main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling. 22. INSERTED PROVISIONS Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate. Page 8 of 9 Professional/Consulting Contracts /Version: October 2021 23.HEADINGS The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit, or amplify the terms or provisions of this Agreement. 24.SEVERABILITY/PARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 25.SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26.NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino Attention: Tina Kapoor Email: tinak@cupertino.org To Contractor: Metrovation Retail Resources Attention: Christine Firstenberg Email: christine@cfirstenberg.com 27.EXECUTION The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. 3527 Mt. Diablo Blvd.#487 Lafayette, CA 94549-381 Office of the City Manager10300 Torre Ave.Cupertino, CA 95014 Page 9 of 9 Professional/Consulting Contracts /Version: October 2021 CITY OF CUPERTINO CONTRACTOR A Municipal Corporation By By Name Name Title Title Date Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk DATE: Christopher D. Jensen christine firstenberg christine firstenberg Principal; May 2, 2022 Jim Throop City Manager May 2, 2022 May 2, 2022 EXHIBIT A – SCOPE OF WORK SCOPE OF WORK CITY STUDY SESSION ON RETAIL PRESENTED BY CHRISTINE FIRSTENBERG of RETAIL REAL ESTATE RESOURCES As part of the 2021-2022 City Work Program (CWP) item, “Study Session on Regulating Diversified Retail Use”, the City of Cupertino’s Economic Development Division will partner with an outside expert versed in retail leasing and development to gather and explain national and local retail trends and to outline the actions and activities that will be needed to accomplish the objectives of such Work Program with regards to retail within Cupertino. Consultant confirms it is well versed in retail leasing and development with 30 years of such experience in the San Francisco Bay Area and Northern California. Consultant currently has a retail leasing company, active in the Bay Area including Cupertino, and is able to gather updated antidotal information on retail trends and tenants in order for staff to present this information to Council and obtain further direction on this item. Consultant has broken down the Scope of Work into three Tasks outlining the activities proposed in preparation for, and presentation at, the Study Session. TASK 1: Consultant will work with staff to create an outline of the presentation for the Study Session that addresses actions and activities that would be required to accomplish the objectives listed in the CWP. Consultant will assist staff with research and gathering of relevant information and data for staff’s presentation. TASK 2: Consultant will assist staff in compiling information for the presentation at the Study Session. Such presentation will cover topics such as the following: • Current Retail Trends- nationally • Current Retail Trends- Bay Area, including rents and vacancy, the types of tenants that are currently active, along with those that are not. • Current Retail Trends - Cupertino, including the types of tenants that are currently active, along with those that are not. • Strengths and Weaknesses of the Retail Industry overall • How and why retailers choose the locations they do, including a demographic comparison between Cupertino and Santana Row. TASK 3: Consultant shall present this information along with staff to the Council at the City Council Study Session and be available to answer questions of Council and staff. COST: For Tasks 1 though Task 3 including time and materials: Not to exceed $15,000 Total shall include: • As many phone calls as needed between Consultant and Economic Development Manager. • No more than three meetings via Zoom with other City staff members. • One in-person City Council Study Session meeting Any work that is requested beyond the three tasks outlined in the Scope of Work above will be compensated at Consultant’s hourly rate of $295. EXHIBIT B – SCHEDULE OF PERFORMANCE TASK 1 March - May 2022 (weeks required: 8) Background Research for Outline Creation Tasks Planning Document Review (RRER) Research Vacancy Cupertino (RRER) Research City Objectives (RRER) Outline Creation Meetings With Economic Development Outside Consultant = 2 TASK 2 April - May 2022 (weeks required: 5) Compilation of Information and Creation of Power Point Tasks Analysis of information gathered Conception of PPT slides Creation of PPT presentation Meetings Economic Development = 2 Community Development Meeting = 1 TASK 3 June 1, 2022 - June 7, 2022 (weeks required: 1) City Study Session Meeting Tasks Finalize last minute updates/changes Presentation and question answering Meetings City Council Study Session as shown above Page 1 of 9 Professional/Consulting Contracts /Version: October 2021 EXHIBIT C – SCHEDULE OF PAYMENT TASK 1 March - May 2022 (weeks required: 8) Background Research for Outline Creation RRER BTS Total Cost Tasks Planning Document Review (RRER) 1000 $ 1,000 Research Vacancy Cupertino (RRER) 500 $ 500 Research City Objectives (RRER) 1475 $ 1,475 Outline Creation 1560 $ 1,560 Meetings With Economic Development $500.00 $ 500 Outside Consultant = 2 590 $ 590 Cost Totals By Consultant 5625 0 $ 5,625 TASK 2 April - May 2022 (weeks required: 5) Compilation of Information and Creation of Power Point RRER BTS Total Cost Tasks Analysis of information gathered 1745 $ 1,745 Conception of PPT slides 1745 $ 1,745 Creation of PPT presentation 1000 2000 $ 3,000 Meetings Economic Development = 2 590 $ 590 Community Development Meeting = 1 295 $ 295 Cost Totals By Consultant 5375 2000 $ 7,375 TASK 3 June 1, 2022 - June 7, 2022 (weeks required: 1) City Study Session Meeting Total Cost Tasks Finalize last minute updates/changes $ - Presentation and question answering $ - $ - $ - Meetings City Council Study Session as shown above $2,000 $ 2,000 Cost Totals By Consultant 2000 0 $ 2,000 TOTAL BUDGET $ 15,000 Exh. D-Insurance Requirements for Design Professionals & Consultant 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. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022 OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term. Subconsultants Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. Orlando Frasca POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 37 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 37 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 1 ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location And Description Of Completed Operations Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the Schedule of this endorsement performed for that additional insured and included in the "products-completed operations hazard". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. D95175442 City of Cupertino, Its City Council, Boards and Commissions, Officers, Officials, Employees, Agents, Servants, Volunteers and Consultants POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 24 04 10 93 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 24 04 10 93 Copyright, Insurance Services Office, Inc., 1992 Page 1 of 1 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: (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 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. City of Cupertino, Its City Council, Boards and Commissions, Officers, Officials, Employees, Agents, Servants, Volunteers and Consultants D95175442 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 10 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 10 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 2 ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. D95175442 City of Cupertino, Its City Council, Boards and Commissions, Officers, Officials, Employees, Agents, Servants, Volunteers and Consultants Page 2 of 2 © Insurance Services Office, Inc., 2012 CG 20 10 04 13 C. With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. INSR ADDL SUBR LTR INSR WVD DATE (MM/DD/YYYY) PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) COMMERCIAL GENERAL LIABILITY AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE INSURER(S) AFFORDING COVERAGE NAIC # Y / N N / A (Mandatory in NH) ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? EACH OCCURRENCE $ DAMAGE TO RENTED $PREMISES (Ea occurrence)CLAIMS-MADE OCCUR MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ $ PRO- OTHER: LOCJECT COMBINED SINGLE LIMIT $(Ea accident) BODILY INJURY (Per person)$ANY AUTO OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS AUTOS ONLY HIRED PROPERTY DAMAGE $AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below POLICY NON-OWNED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) ACORDTM CERTIFICATE OF LIABILITY INSURANCE The Hanover Insurance Company 03/29/2022 Edgewood Partners Ins. Center 19000 MacArthur Blvd. Penthse Fl. Lic#0B29370 949-263-0606 Irvine, CA 92612 Christina McMullen 949-205-7912 949-266-5860 Christina.McMullen@epicbrokers.com Metrovation Retail Resources, Inc. Retail Real Estate Resources, LLC 3527 Mt.Diablo blvd #487 Lafayette, CA 94549 22292 A Professional Liability LH3D73682203 10/24/2021 10/24/2022 Each Claim: $2,000,000 Aggregate: $2,000,000 Deductible: $7,500 Proof of Insurance. City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 1 of 1 #S3197263/M2964370 RETAIREALClient#: 89691 CMCM1 Coverage: MPL Endorsement Number: 1 Issued To: Metrovation Retail Resources, Inc; Retail Real Estate Resources, LLC Policy Number: LH3-D736822 -03 Issued By: The Hanover Insurance Company Effective Date: 03/29/2022 All ot her terms and c onditions remain unc hanged. The title and any headings in this endors ement are s olely for c onvenienc e and form no part of the terms and conditions of c overage. 910-1003 05/19 Page 1 of 1 Endorsement SCHEDULE OF FORMS To be attached to and form part of the Policy Number listed above. 910-1002 05/19 Miscellaneous Advantage Professional Liability Declarations 910-1001 05/19 MPL Adv Base Policy Form 910-1800 PHN 05/19 U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") Advisory Notice to Policyholders 910-1801 PHN 05/19 Customer Notice of Privacy Policy and Producer Compensation Practices Disclosures Privacy Policy Disclosure 910-1805 PHN 05/19 Information Regarding Extended Reporting Period Endorsement ("ERP Coverage") 910-1820 PHN 05/19 Summary of Form Changes 910-1825 PHN 11/19 Cyber Risk Management Resources Policyholder Notice 910-1826 PHN 01/20 HPP Risk Management Resources 910-1003 05/19 Schedule of Forms 910-1004 05/19 Policy Change 910-1106 05/19 Cyber First Party Coverages 910-1129 05/19 Real Estate Scheduled Coverages 910-1140 05/19 Professional Liability Enhancements 910-1207 05/19 Increased Limit for Specified Contract and Client 910-1409 05/19 Financial Exclusions 910-1613 05/19 California State Amendatory Endorsement Coverage: MPL Endorsement Number: 1 Issued To: Metrovation Retail Resources, Inc; Retail Real Estate Resources, LLC Policy Number: LH3-D736822 -03 Issued By: The Hanover Insurance Company Effective Date: 03/29/2022 910-1004 05/19 Page 1 of 2 Endorsement POLICY CHANGE In consideration of the premium c harged it is agreed that: 1. ☐ Named insured Is Changed To: (see below) 9. ☐ Retroactive Date Changed To: 2. ☐ Address Changed To: (see below) 10. ☐ Professional Services Changed to: (see below) 3. ☐ Inception Date Is Changed To: 11. ☐ Premium For Policy Period Changed To: 4. ☐ Expiration Date Is Changed To: 12. ☐ Additional Insured(s) or Subject(s) of coverage added (see below) 5. ☐ Cancellation 13. ☒ Policy Provision(s) Added (see below) 6. ☐ Reinstatement 14. ☐ Policy Provision(s) Deleted (see below) 7. ☐ Limit of Liability Changed To: 15. ☐ Exercise Extended Reporting Period or Tail Coverage Option. 8. ☐ Deductible/Retention Changed To: 16. ☐ Other (see below) Description of Policy Change: Addition of 910 -1207 05 19, Increased Limit for Specified Contract and Client Policy change results in: $187 Additional Premium Coverage: MPL Endorsement Number: 1 Issued To: Metrovation Retail Resources, Inc; Retail Real Estate Resources, LLC Policy Number: LH3-D736822 -03 Issued By: The Hanover Insurance Company Effective Date: 03/29/2022 910-1004 05/19 Page 2 of 2 Endorsement Name and number of Endorsement(s) made part of the policy: 910-1207 05 19, Increased Limit for Specified Contract and Client All ot her terms and c onditions remain unchanged. The title and any headings in this endors ement are solely for c onvenienc e and form no part of the terms and conditions of c overage. Coverage: MPL Endorsement Number: 2 Issued To: Metrovation Retail Resources, Inc; Retail Real Estate Resources, LLC Policy Number: LH3-D736822 -03 Issued By: The Hanover Insurance Company Effective Date: 03/29/2022 910-1207 05/19 Page 1 of 1 Endorsement INCREASED LIMIT FOR SPECIFIED CONTRACT AND CLIENT In consideration of the premium c harged it is agreed that: A. Section C.1. Limit of Liability, paragraphs a. and c., are amended to include: a. However notwithstanding Item 3.a. of the Declarations page, $2,000,000 is the most We will pay for the sum of all Damages and Claim Expenses arising out of a single Claim during the Policy Period or during any Extended Reporting Period, if any, for Professional Services provided for the scheduled contract(s) and to the scheduled client(s) shown below. This endorsement increases the limit of liability shown on Item 3.a. of the Declarations page with respect to the scheduled contracts and clients only. This increased limit is not a separate limit of liability to that shown on Item 3.a. of the Declarations page and this increased limit is only provided in connection with the scheduled contracts and clients. c. However notwithstandi ng Item 3.b. of the Declarations page, $2,000,000 is the most We will pay for the sum of all Damages and Claim Expenses for all Claims for Professional Services provided for the scheduled contract(s) and to the scheduled client(s) shown below. This endorsement increases the aggregate Limit of Liability shown on Item 3.b. of the Declarations page with respect to the scheduled contracts and clients only. This increased aggregate limit is not in addition to the Limit of Liability shown on Item 3.b. of the Declarations page and this increased aggregate limit is only provided in connection with the scheduled contracts and clients. B. Section E. Exclusions is amended to include : This Policy does not apply to Claim(s) or Supplemental Coverage Matter(s): Based upon, arising out of, or in any way related to, directly or indirectly, Professional Services provided for the scheduled contract(s) and to the scheduled client(s) shown below, which occurred in whole or in part on or before the associated Retroactive Date . Schedule Contract(s) Client(s) Retroactive Date Study Session on Regulating Diversified Retail Use City of Cupertino 3/29/2022 All ot her terms and conditions remain unc hanged. The title and any headings in this endorsement are s olely for c onvenienc e and form no part of the terms and conditions of c overage. Retail Study Session Final Audit Report 2022-05-02 Created:2022-04-29 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAzrA_lHFzOBJ-2XP9mBjmo8VErrU_3ftz "Retail Study Session" History Document created by City of Cupertino (webmaster@cupertino.org) 2022-04-29 - 6:07:39 AM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2022-04-29 - 6:10:50 AM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2022-05-02 - 3:41:57 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature 2022-05-02 - 3:42:00 PM GMT Email viewed by Christopher D. Jensen (christopherj@cupertino.org) 2022-05-02 - 3:44:32 PM GMT- IP address: 104.47.73.126 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2022-05-02 - 3:45:07 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to christine firstenberg (christine@cfirstenberg.com) for signature 2022-05-02 - 3:45:09 PM GMT Email viewed by christine firstenberg (christine@cfirstenberg.com) 2022-05-02 - 10:42:36 PM GMT- IP address: 71.198.228.119 Document e-signed by christine firstenberg (christine@cfirstenberg.com) Signature Date: 2022-05-02 - 10:43:07 PM GMT - Time Source: server- IP address: 71.198.228.119 Document emailed to Jim Throop (jimt@cupertino.org) for signature 2022-05-02 - 10:43:10 PM GMT Email viewed by Jim Throop (jimt@cupertino.org) 2022-05-02 - 11:10:07 PM GMT- IP address: 104.47.73.254 Document e-signed by Jim Throop (jimt@cupertino.org) Signature Date: 2022-05-02 - 11:10:52 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2022-05-02 - 11:10:55 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2022-05-02 - 11:12:07 PM GMT- IP address: 104.47.73.254 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2022-05-02 - 11:12:15 PM GMT - Time Source: server- IP address: 64.165.34.3 Agreement completed. 2022-05-02 - 11:12:15 PM GMT