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25-067 A-1 Fence, Inc. for On-call Fence Repairs at Various City FacilitiesA-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 1 of 12 ON-CALL PUBLIC WORKS CONTRACT WITH A-1 FENCE, INC. 1. PARTIES This On-Call Public Works Contract (“Contract”) is made by and between the City of Cupertino, a municipal corporation (“City”), and A-1 Fence, Inc. (“Contractor”) a Corporation for On-call Fence Repairs at Various City Facilities, and is effective on the last date signed below (“Effective Date”). 2. SCOPE OF WORK 2.1 Scope of Work. Contractor will perform and provide all labor, materials, equipment, supplies, transportation and any other items or work necessary to perform and complete the work described in the Scope of Work (“Work”), attached and incorporated here as Exhibit A, on an as- needed basis. The Work must comply with this Contract and with each Service Order issued by the City’s Project Manager or his/her designee, in accordance with the following procedures, unless otherwise specified in Exhibit A. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 2.2 Service Orders. Before issuing a Service Order, the City Project Manager will request that Work be done in writing and hold a meeting with Contractor to discuss the Service Order. Contractor will submit a written proposal that includes a specific Scope of Work, Schedule of Performance, and Compensation, which the Parties will discuss. Thereafter, City will execute a Service Order Form for the Work, attached and incorporated here as Exhibit B. The Service Order will specify the Scope of Work, Schedule of Performance, Compensation, and any other conditions applicable to the Service Order. Issuance of a Purchase Order is discretionary. The City Project Manager is authorized to streamline these procedures based on the City’s best interests. In particular, in emergency situations, the City Project Manager may execute a Service Order for emergency work based on oral conversations with the Contractor, without adhering to the full process outlined in this section. Contractor will not be compensated for Work performed without a duly authorized and executed Service Order. 3. TIME OF PERFORMANCE 3.1 Term. This Contract begins on the Effective Date and ends on June 30, 2030 (“Contract Time”), unless terminated earlier as provided herein. The City’s appropriate department head or City Manager may extend the Contract Time through a written amendment to this Contract, 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 complete the Work within the time specified in each Service Order, and under no circumstances should the Work go beyond the Contract Time. A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 2 of 12 3.3 Time is of the essence for the performance of all the Work required in this Contract and in each Service Order. Contractor must have sufficient time, resources, and qualified staff to deliver the Work on time. Contractor must respond promptly to each Service Order request. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Work based upon actual costs and capped so as not to exceed $200,000.00 (“Contract Price”), based upon the Scope of Work in Exhibit A and the budget and rates included. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. 4.2 Per Service Order. Compensation for Work provided under a Service Order will be based on the rates set forth in the Service Order, which shall not exceed t he capped amount specified in the Service Order. 4.3 Invoices and Payments. Contractor must submit an invoice on the first day of each month, describing the Work performed during the preceding month, itemizing labor, materials, equipment, and any incidental costs incurred. Contractor will be paid ninety-five percent (95%) of the undisputed amounts billed within thirty (30) days after City receives a properly submitted invoice. Any retained amounts will be included with Contractor’s final payment within sixty (60) days of City’s acceptance of the Work pursuant to a specific Service Order as complete. 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 Work and for the persons hired to work under this Contract. 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 Work 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 Work as required by law and have procured a City Business License, if required by the Cupertino Municipal Code. Contractor shall possess a California Contractor’s License in good standing for the following classification(s): C-13, which must remain valid for the entire Contract Time. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Contract. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Contract will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials, and equipment required to perform the Work under this Contract. A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 3 of 12 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. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement is determined by a court of competent jurisdiction, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City, and actual attorney’s fees incurred by City in connection with the above. 6. CHANGE ORDERS Amendments and change orders must be in writing and signed by City and Contractor. Contractor’s request for a change order must specify the proposed changes in the Work, Contract Price, and Contract Time. Each request must include all the supporting documentation, including but not limited to plans/drawings, detailed cost estimates, and impacts on schedule and completion date. 7. ASSIGNMENTS; SUCCESSORS Contractor shall not assign, hypothecate, or transfer this Contract 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 Contract 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. This Contract is binding on Contractor, its heirs, successors, and permitted assigns. 8. PUBLICITY / SIGNS Any publicity generated by Contractor for the Project during the Contract Time, and for one (1) year thereafter must credit City contributions to the Project. The words “City of Cupertino” must be displayed in all pieces of publicity, flyers, press releases, posters, brochures, interviews, public service announcements, and newspaper articles. No signs may be posted or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 9. SUBCONTRACTORS 9.1 Contractor must perform all the Work with its own forces, except that Contractor may hire A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 4 of 12 qualified subcontractors to perform up to 0% of the Work under any give Service Order, provided that each subcontractor is required by contract to be bound by the provisions of this Contract and any applicable Service Order. Contractor must provide City with written proof of compliance with this provision upon request. 9.2 City may reject any subcontractor of any tier and bar a subcontractor from performing Work on the Project, if City in its sole discretion determines that subcontractor’s Work falls short of the requirements of this Contract or constitutes grounds for rejection under the Public Contract Code. If City rejects a subcontractor, Contractor at its own expense must perform the subcontractor’s Work or hire a new subcontractor that is acceptable to City. A Notice of Completion must be recorded within fifteen (15) days after City accepts the Work under a particular Service Order if the Work involves work by subcontractors. 10. RECORDS AND DAILY REPORTS 10.1 Contractor must maintain daily reports of the Work and submit them to City upon request and at completion of Work pursuant to a Service Order. The reports must describe the Work and specific tasks performed, the number of workers, the hours, the equipment, the weather conditions, and any circumstances affecting performance. City will have ownership of the reports, but Contractor will be permitted to retain copies. 10.2 If applicable, Contractor must keep a separate set of as-built drawings showing changes and updates to the Scope of Work or the original drawings as changes occur. Actual locations to scale must be identified for all major components of the Work, including mechanical, electrical and plumbing work; HVAC systems; utilities and utility connections; and any other components City determines should be included in the final drawings of the Project. Deviations from the original drawings must be shown in detail, and the location of all main runs, piping, conduit, ductwork, and drain lines must be shown by dimension and elevation. 10.3 Contractor must maintain complete and accurate accounting records of its Work, in accordance with generally accepted accounting principles, which must be available for City review and audit, kept separate from other records, and maintained for four (4) years from the date of City’s final payment. 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 Contractors (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings), of every nature, arising directly or indirectly from this Contract or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties; (b) Performance or nonperformance of the Work or of any obligations under the Contract by A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 5 of 12 Contractor, its employees, agents, servants, or subcontractors; (c) Payment or nonpayment by Contractor or its subcontractors or sub-subcontractors for Work performed on or off the Project Site; and (d) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors. 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, in accordance with California Public Contract Code Section 9201. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Contract. 11.3 Contractor’s duties under this entire Section 11 are not limited to Contract Price, Workers’ Compensation, or other employee benefits, or the insurance and bond coverage required in this Contract. Nothing in the Contract shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other 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 Contract, 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 Contract. 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 Contract. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit C, and must maintain the insurance for the Contract Time, or longer as required by City. City will not execute the Contract until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor’s compensation or terminating the Contract. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Contract. 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 Work, as required by the Immigration Reform and Control Act. 13.2 Labor Laws. a. The following provisions apply to any Service Order of $1,000 or more: A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 6 of 12 i.In General. For purposes of California labor law, this is a public works contract subject to the provisions of Part 7 of Division 2 of the California Labor Code (Sections 1720 et seq.). In accordance with Labor Code Section 1771, Contractor and all subcontractors shall pay not less than current prevailing wage rates as determined by the California Department of Industrial Relations (“DIR”) to all workers employed on this project. In accordance with Labor Code Section 1815, Contractor and all subcontractors shall pay all workers employed on this project 1 ½ the basic rate of pay for work performed in excess specified hour limitations. The work performed pursuant to this Contract is subject to compliance monitoring and enforcement by the Department of Industrial Relations. ii.Registration. Contractor and all subcontractors shall not engage in the performance of any work under this Contract unless currently registered and qualified to perform public work pursuant to section 1725.5 of the California Labor Code. Contractor represents and warrants that it is registered and qualified to perform public work pursuant to section 1725.5 of the Labor Code and will provide its DIR registration number, along with the registration numbers of any subcontractors as required, to the City. iii.Posting. Contractor shall post at the job site the determination of the DIR director of the prevailing rate of per diem wages together with all job notices that are required by regulations of the DIR. iv.Reporting. Contractor and any subcontractors shall keep accurate payroll records in accordance with Section 1776 of the Labor Code and shall furnish the payroll records directly to the Labor Commissioner in accordance with the law. v.Report on Prevailing Rate of Wages. The City has obtained the general prevailing rate of per diem wages in the vicinity of the project for each type of worker needed, a copy of which is on file at the City of Cupertino City Hall, and shall be made available to any interested party upon request. vi.Employment of Apprentices. Contractor’s attention is directed to the provisions in Sections 1777.5 and 1777.6 of the Labor Code concerning the employment of apprentices by the Contractor or any subcontractor. It shall be the responsibility of the Contractor to effectuate compliance on the part of itself and any subcontractors with the requirements of said sections in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex-officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. vii.Penalties. Contractor’s attention is directed to provisions in Labor Code Sections 1775 and 1813. In accordance with Labor Code Section 1775, Contractor and subcontractors may be subject to penalties for Contractor’s and subcontractors’ failure to pay prevailing wage rates. In accordance with Labor Code Section 1813, Contractor or subcontractors may be subject to penalties for Contractor’s or subcontractors’ failure to pay overtime pay rates for hours worked by workers employed on this project in excess specified hour limitations. b. Contractor must compensate workers who are paid less than prevailing wages or required to work more than a legal day’s work. Contractor will also be required to pay City a penalty of $200.00 per worker for each day of violation. c. As required by Labor Code Section 1861, by signing this Contract Contractor certifies as follows: “I am aware of the provisions of Section 3700 of the Labor Code which require A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 7 of 12 every employer to be insured against liability for workers’ compensation or to undertake self- insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the work of this contract.” 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or Contractor’s employees or subcontractors 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, its employees, subcontractors, servants, and agents, may not have, maintain, or acquire a conflict of interest in relation to this Contract in violation of law, including Government Code section 1090 and Government Code section 81000 and their accompanying regulations. No officer, official, employee, consultant, or other agent of the City (“City Representative”) may have, maintain, or acquire a “financial interest” in the Contract, as that term is defined by state law, or in violation of a City ordinance or policy while serving as a City Representative or for one year thereafter. Contractor, its employees, subcontractors, servants, and agents warrant they are not employees of City nor do they have any relationship with City officials, officers, or employees that creates a conflict of interest. Contractor may be required to file a conflict of interest form if it 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 City rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of this Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements, or terminating this Contract. City reserves all other rights and remedies available under the law and this Contract, including the right to seek indemnification under Section 11 of this Contract. 14. BONDS For any Service Order of $25,000 or more, Contractor must obtain a payment bond and a performance bond, each in the penal sum of 100% of the compensation pursuant to the Service Order, using the Bond Forms attached and incorporated here as Exhibit D. Each bond must be issued by a surety admitted in California, with a financial rating from A.M. Best Company of Class A- or higher, or as otherwise acceptable to City. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City within seven (7) calendar days after written notice from City. If Contractor fails to do so, City may in its sole discretion and without prior notice, purchase bonds at Contractor’s expense, deduct the cost from payments due Contractor, or terminate the Service Order or Contract. City will not authorize work under a Service Order until the required bonds are submitted. A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 8 of 12 15. UTILITIES, TRENCHING, AND EXCAVATION 15.1 Contractor must call the Underground Service Alert (“USA”) 811 hotline and request marking of utility locations before digging or commencing Work. For underground service alerts for street lighting and traffic signal conduits, City’s Service Center must be called at (408) 777- 3269. Government Code Section 4215 requires Contractor to notify City and Utility in writing if it discovers utilities or utility facilities not identified in the Contract. 15.2 Pursuant to Government Code Section 7104, Contractor must stop work, notify City in writing, and wait for instructions if one of the conditions below is found at the worksite. City will work with Contractor to amend the Contract or issue a change order if the discovered conditions materially change the Work/Performance, Contract Time or Contract Price. (a) Material believed to be hazardous waste under Health and Safety Code Section 25117, and which requires removal to a Class I, Class II, or Class III disposal site pursuant to law; (b) Subsurface or latent physical conditions at the Project worksite differing from those indicated by information about the worksite made available to Contractor; and (c) Unknown physical conditions at the Project worksite of any unusual nature, materially different from those ordinarily encountered and from those generally recognized as inherent in the character of the Work. 15.3 For Service Orders where compensation is $25,000 or higher that require excavation or involve trenches five feet or more in depth, Contractor must submit a detailed plan for City approval, per Labor Code Section 6705, prior to commencing work. The plan must show the design of shoring, bracing, sloping, and other provisions for worker protection from caving ground and other hazards. The protective system must comply with all Construction Safety Orders. If the plan varies from shoring system standards, it must be prepared by a registered civil or structural engineer. 16. URBAN RUNOFF MANAGEMENT 16.1 All Work must fully comply with federal, state, and local laws and regulations concerning storm water management. Contractor must avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, Contractor will use only the amount of water necessary to dampen the dust. Contractor will take all steps necessary to keep wash water out of the streets, gutters, and storm drains. Prior to the start of the Work, Contractor will implement erosion and sediment controls to prevent pollution of storm drains, and must upgrade and maintain these controls based on weather conditions or as otherwise required by City. These controls must be in place during the entire Contract Time and must be removed at the end of construction and completion of the Work. Such controls must include, but will not be limited to, the following requirements: (a) Install storm drain inlet protection devices such as sand bag barriers, filter fabric fences, and block and gravel filters at all drain inlets impacted by construction. During the annual rainy season, October 15 through June 15, storm drain inlets impacted by construction work must be filter-protected from onsite de-watering activities and saw-cutting activities. Shovel or vacuum saw-cut slurry and remove from the Work site; (b) Cover exposed piles of soil or construction material with plastic sheeting. Store all construction materials in containers; A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 9 of 12 (c) Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain and at the end of each work day. When the Work is completed, wash the streets, collect and dispose of the wash water offsite in lawful manner; (d) After breaking old pavement, remove debris to avoid contact with rainfall/runoff; (e) Maintain a clean work area by removing trash, litter, and debris at the end of each work day and when Work is completed. Clean up any leaks, drips, and other spills as they occur. These requirements must be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, and any other applicable documents on stormwater quality controls for construction. Contractor’s failure to comply with this Section will result in the issuance of noncompliance notices, citations, Work stop orders and regulatory fines. 17. PROJECT COORDINATION City Project Manager. The City assigns Jimmy Tan as the City’s representative for all purposes under this Contract, with authority to oversee the progress and performance of the Scope of Work. 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 Vanessa Alonso as its single Representative for all purposes under this Contract, with authority to oversee the progress and performance of the Work. Contractor’s Project manager is responsible for coordinating and scheduling the Work in accordance with City instructions, service orders, and the Schedule of Performance. Contractor must regularly update the City’s project manager about the status, progress and any delays with the work. City’s written approval is required prior to Contractor substituting a new Representative which shall result in no additional costs to City. 18. ABANDONMENT AND TERMINATION 18.1 City may abandon or postpone the Work or parts thereof at any time. Contractor will be compensated for satisfactory Work performed through the date of abandonment and will be given reasonable time to close out Work under a Service Order. With City’s pre-approval in writing, the time spent in closing out Work under a Service Order will be compensated up to ten percent (10%) of the total time expended in performing the Work. 18.2 City may terminate the Contract for cause or without cause at any time. Contractor will be paid for satisfactory Work rendered through the termination date and will be given reasonable time to close out the Work. 18.3 Final payment will not be made until Contractor delivers the Work and provides records documenting the Work, products, and deliverables completed. 19. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION This Contract is governed by the laws of State of California. Venue for any legal action shall be the Superior Court of the County of Santa Clara, California. The dispute resolution procedures of Public Contract Code Section 20104, et seq., incorporated here by reference, apply to this Contract and A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 10 of 12 Contractor is required to continue the Work pending resolution of any dispute. Prior to filing a lawsuit, Contractor must comply with the claim filing requirements of the California Government Code. 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. 20. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection with this Contract, the prevailing party will be entitled to reasonable attorney fees and costs. 21. SIGNS/ADVERTISEMENTS No signs may be displayed on or about City’s property, except signage which is required by law or by the Contract, without City’s prior written approval as to size, design and location. 22. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Contract. 23. WAIVER Neither acceptance of the Work 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. 24. WARRANTY Contractor warrants that materials and equipment used will be new, of good quality, and free from defective workmanship and materials, and that the Work will be free from material defects not intrinsic in the design or materials. All Work, materials, and equipment should pass to City free of claims, liens, or encumbrances. Contractor warrants the Work and materials for one year from the date of City’s acceptance of the Work as complete (“Warranty Period”), except when a longer guarantee is provided by a supplier, manufacturer or is required by this Contract. During the Warranty Period, Contractor will repair or replace any Work defects or materials, including damage that arises from Contractor’s Warranty Work, except any wear and tear or damage resulting from improper use or maintenance. 25. ENTIRE AGREEMENT This Contract and the attachments, documents, and statutes attached, referenced, or expressly incorporated herein, including authorized amendments or change orders constitute the final and complete contract between City and Contractor with respect to the Work and the Project. No oral contract or implied covenant will be enforceable against City. If there is any inconsistency between any term, clause, or provision of the main Contract and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Contract shall prevail and be controlling. A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 11 of 12 26. SEVERABILITY/PARTIAL INVALIDITY If a court finds any term or provision of this Contract to be illegal, invalid, or unenforceable, the legal portion of said provision and all other contract provisions will remain in full force and effect. 27. SURVIVAL The contract provisions which by their nature should survive the Contract or Completion of Project, including without limitation all provisions regarding warranties, indemnities, payment obligations, insurance, and bonds, shall remain in full force and effect after the Work is completed or Contract ends. 28. INSERTED PROVISIONS Each provision and clause required by law for this Contract 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. 29. HEADINGS The headings in this Contract are for convenience only, are not a part of the Contract and in no way affect, limit, or amplify the terms or provisions of this Contract. 30. COUNTERPARTS This Contract may be executed in counterparts, each of which is an original and all of which taken together shall form one single document. 31. 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 (5th) calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 Attention: Jimmy Tan Email: JimmyT@cupertino.org To Contractor: A-1 Fence, Inc. 14820 Story Road San Jose, CA 95127 Attention: Vanessa Alonso Email: a1fence@sbcglobal.net SIGNATURES CONTINUE ON THE FOLLOWING PAGE A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities On-Call Public Works Contract/ April 2024 Page 12 of 12 32. EXECUTION The persons signing below warrant they have the authority to enter into this Contract and to legally bind their respective Parties. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313. This Contract 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 Contract to be executed. CITY OF CUPERTINO A Municipal Corporation By Name Title Date A-1 FENCE, INC. By Name Title Date APPROVED AS TO FORM: FLOY ANDREWS Interim City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Vanessa Alonso Vanessa Alonso Manager Apr 18, 2025 Chad Mosley Director of Public Works Apr 23, 2025 Apr 24, 2025 ATTACHMENT A SCOPE OF WORK 1. GENERAL REQUIREMENT A. The Contractor shall furnish all labor, tools, equipment, materials, and supervision necessary to perform the fence repair and construction as described in this section. B. All work shall be done in a first class, complete and workmanlike manner, confirming to best industry practices and applicable original manufacturer specifications. C. Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions in connection with the work and shall comply with all applicable safety laws, best industry standards, and take all reasonable precautions for safety of the public, City employees and other persons on or about the property. D. The normal (standard) working hours for this contract shall be from 6:00am to 3:30pm Monday through Thursday and 6:00am to 2:30pm on Friday. E. Contractor shall exercise precautions as necessary when working adjacent to aerial and subterranean utilities. In the event that aerial utility wires present a hazard to the Contractor’s personnel or others near the work site, work is to immediately cease, and the appropriate utility company notified. If the work requires excavation, the Contractor is responsible for appropriate notification of Underground Service Alert (USA). F. Contractor shall possess a valid Contractor’s and City’s business license. G. Upon completion of the scheduled work or at the end of the day, whatever occurs first, the Contractor shall clean the grounds occupied by Contractor in connection with the project, of all rubbish, debris, excess material, temporary structures, and equipment, leaving the entire site of the work in a neat and presentable condition. H. Contractor is responsible for compliance with all applicable laws. Without limiting the generality of the foregoing, Contractor shall possess all permits and/or licenses required by the State of California. I. Contractor is fully responsible for any and all damage done to public or private property that results from the contractor’s operations. This shall also include any damage done to buildings and other improvements. J. Each worker performing work under this Contract shall be paid at a rate not less than the prevailing wage as defined in Sections 1771 and 1774 of the Labor Code for Service Order greater than $1,000, if applicable. The prevailing wage rates are available online at http://www.dir.ca.gov/dlsr. K. Contractor shall provide performance and payment bonds for Service Order greater and equal to $25,000. L. Fence Types: A. The City may require fences and/or gates repaired/replaced in City owned or leased properties of various sizes and materials, including, but not limited to: i. Wood Privacy Fence 1. With and without lattice top panels ii. Wooden Gates iii. Split Rail Fence iv. Chain Link Fencing and gates, including, but not limited to: 1. Variety Mesh Sizes 2. Galvanized or other coatings 3. Top Wire 4. Top Pole 5. Cyclone Fence 6. Privacy 7. Barbed Wire Top 8. Razor Wire Top v. Wrought Iron/Ornamental Fencing vi. Barbed Wire Fencing vii. Metal Swing Gates viii. Metal Sliding Gates B. Material Requirements a. Fence materials will include: i. Pressure treated lumber or approved wood preservative treatment for any lumber buried or in contact with soil. ii. Galvanized or other approved treatment of posts buried or in contact with soil. M. Upon receiving work location from the City, the Contractor shall verify the location and quantity of work. Contractor shall visit job site and be responsible for all field measurements and aware of job conditions. N. Contractor shall provide fence materials that match the existing fencing. Material furnished shall be new and shall be of quality materials. Used or reconditioned materials are not acceptable. RATES: 1. No hourly rates are provided. 2. Prior to commencement of work, Contractor shall meet with the City representative on site to discuss the overall scope of work. 3. Contractor shall prepare a detailed written estimate/quote for approval prior to commencing any work. Once approved, the City will issue a Service Order. City of Cupertino Master Agreement Service Order Exhibit B CITY OF CUPERTINO MASTER AGREEMENT CONSULTANT SERVICES SERVICE ORDER NO. Master Agreement Contract #: Maximum Compensation: Consultant: MA Date: MA End Date: Ph: Project Name: Description: (simple project description if appropriate) Attachment A: Includes Description of Project, Scope of Service, Schedule of Performance and Compensation City Project Management Managing Department:_____________ Project Manager: Fiscal/Budget : Master Agreement Maximum Compensation: Total Previously Encumbered to Date: Encumbrance this Service Order: Master Agreement Unencumbered Balance: Approvals Signatures: Consultant/ Contractor Manager/ Supervisor: Date: Date: Appropriation Certification: I hereby certify that an unexpended appropriation is available in the above fund for the above contract as estimated and that fund are available as of this date of signature City Finance: Date: Management Analyst Firm Name: Address: Contact: SO Acc't #: Project #: PO #: Date: Insurance Requirements for On-Call Public Works Construction Contracts Version: August 2024 1 Contractor shall procure and maintain for the duration of the contract, and for five years following the completion of the Project, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees or subcontractors. 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 covering CGL on an “occurrence” basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor’s or Subcontractor’s acts or omissions, including Contractor’s protected coverage, blanket contractual, products and completed operations, vehicle coverage and employer’s non-ownership liability coverage, with limits of at least $2,000,000 per occurrence. The CGL policy must protect against any and all liability for personal injury, death, property damage or destruction, and personal and advertising injury. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. a. It shall be a requirement under this agreement 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 (1) the minimum coverage/limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Contractor'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 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 Form CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, then hired autos (Code 8) and non-owned autos (Code 9), 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 Contractor is self-insured, Contractor 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 with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate. ☒ N/A if box checked (Contract is not design/build).. 5. Builder’s Risk. Course of Construction insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. ON-CALL PUBLIC WORKS CONSTRUCTION CONTRACTS Insurance Requirements: Exhibit C Insurance Requirements for On-Call Public Works Construction Contracts Version: August 2024 2 ☒ N/A if box checked (Project does not involve construction or improvements/installations to property). 6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. ☒ N/A if box checked (Project does not involve environmental hazards) If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At City’s option, either: (1) Contractor shall cause the insurer to reduce or eliminate self-insured retentions as respects City, its officers, officials, employees, and volunteers; or (2) Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or the City. 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 and automobile liability policies with respect to liability arising out of the Services performed by or on behalf of Contractor including materials, parts, or equipment furnished. Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used. Primary Coverage For any claims related to this Project, Contractor’s insurance coverage shall be “primary and non-contributory” 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 with notice to the City. Each certificate of insurance must state that the coverage afforded by the policy is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. Builder’s Risk Contractor may submit Builder’s Risk insurance in the form of Course of Construction coverage, which shall name the City as a loss payee, as its interest may appear. The Builder’s Risk policy must be issued on an occurrence basis, for all-risk coverage on a 100% completed value basis on the insurable portion of the Project, with no coinsurance penalties, and for the benefit of City. If the Project does not involve new or major reconstruction, City may elect, acting in its sole discretion, to accept an Installation Floater policy instead of Builder’s Risk. For such projects, the Property Installation Floater shall include improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment, and shall provide property damage coverage for any Insurance Requirements for On-Call Public Works Construction Contracts Version: August 2024 3 building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site. 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. Contractor agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor 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 the Contractor, its employees, agents and subcontractors. Acceptability of Insurers Insurance shall be placed with insurers admitted in the State of California and with an AM Best rating of A- VII or higher. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13. Surety Bonds As required by Contract and described in the Contract Documents. The Payment and Performance Bonds shall be in a sum equal to the applicable Service Order Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract Price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California. 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. 2/27/2025 Leavitt United Insurance Services, Inc. Lic #0J02939 2358 Maritime Dr. Ste. 100 Elk Grove CA 95758 Yupha Sriporn (800)549-4242 (888)329-8842 yupha-sriporn@leavitt.com A-1 Fence, Inc. DBA: Delaware A-1 Fence, Inc. 14820 Story Rd. San Jose CA 95127 Financial Pacific Insurance Company 31453 WCF Select Insurance Company 21865 CM Vantage Specialty Insurance Company 15872 Palomar Excess & Surplus Insurance Co 16754 24-25 Master 25-25 XS A X X X X Y 60496333 10/1/2024 10/1/2025 1,000,000 300,000 5,000 1,000,000 2,000,000 2,000,000 Limited Pollution (Work Sites)Included A X X Y 60496333 10/1/2024 10/1/2025 1,000,000 A X X 60496333 10/1/2024 10/1/2025 2,000,000 2,000,000 Personal/Advert Injury 2,000,000 B 4097433 10/1/2024 10/1/2025 X 1,000,000 1,000,000 1,000,000 C EXCESS($2M xs $2M)CMV-EXL-0027452-04 10/1/2024 10/1/2025 Each Occur/Aggregate/Deductible $2M/$2M/None D EXCESS($2M xs $2M xs $2M)PES-XS-01-4114 1/27/2025 10/1/2025 Each Occur/Aggregate/Deductible $2M/$2M/None The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are included as Additional Insureds with respect to General and Auto Liability, insurance is Primary and Noncontributory, and Waiver of Subrogation applies, when required in written contract per policy provisions, conditions, and exclusions. Waiver of Subrogation further applies to Work Comp when required in written contract per policy provisions, conditions, and exclusions. Thirty (30) days written notice of cancellation applies per policy provisions, conditions, and exclusions. City of Cupertino 10555 Mary Ave. Cupertino, CA 95014 JindyG@cupertino.org; juliak@cupertino.org; briang@cupe Yupha Sriporn/NACHAF Y The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER ©1988-2014 ACORD CORPORATION.All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECT PRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$ DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person)$ PERSONAL &ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY)LIMITS PER STATUTE OTH- ER E.L.EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes,describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNED AUTOS AUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ 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. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE (A/C, No, Ext): PRODUCER ADDRESS: E-MAIL FAX (A/C, No): CONTACT NAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S)AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INS025 (201401) DEDUCTIBLES General Liability - $1,000 BI/PD Deductible Per Occurrence Primary Layer Excess Liability - $0 Retention 2nd Layer Excess Liability - $0 Retention Workers Compensation - $0 Deductible COMMENTS/REMARKS COPYRIGHT 2000, AMS SERVICES INC.OFREMARK WCF Select Insurance Company WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 99 52 04 (Ed. 1/23) NOTICE OF CANCELLATION TO THIRD PARTY ENDORSEMENT In the event of cancellation of this policy for any reason other than nonpayment of premium, we will send 30-day advance notice to the person or organization named in the schedule. We will send the notice by first-class mail or email. This is a courtesy notice and does not impose liability of any kind on WCF Select Insurance Company, our agents, or representatives. We will not provide advance notice of cancellation for nonpayment of premium to the person or organization named in the schedule. This endorsement does not operate directly or indirectly to benefit anyone not named in the schedule and does not entitle the person or organization named in the schedule to any benefits, rights, or protection under this policy. WCF Select Insurance Company is not responsible to verify the information in the schedule. Schedule 1. We will send notice to: City of Cupertino, 10555 Mary Ave Cupertino, CA 95014-1322 C&J Contracting c/o MYCOI, 1075 Broad Ripple Ave PMB 313 Indianapolis, IN 46220-2034 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (Information is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement effective: 12/09/2024 Policy no.: 4097433 Endorsement no.: Insured: A-1 Fence Inc Premium: $42,983.00 Insurance company: WCF Select Insurance Company WC 99 52 04 (Ed. 1/23) Page 1 of 1 WC 00 03 13 (Ed. 4-84) © Copyright 1983–2006 National Council on Compensation Insurance, Inc. All Rights Reserved. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 (Ed. 4-84) Policy No.4097433 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. Insured A-1 Fence Inc Endorsement No. Premium Endorsement Effective 10/01/2024 14820 Story Rd San Jose, CA 95127-4420 WCF Select Insurance CompanyInsurance Company Countersigned by WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule 1. Waiver Type Blanket A blanket waiver of subrogation is granted for all projects and contracts for the below named insured and its subsidiaries for all jobs requiring such a waiver in writing in all states excluding Texas listed under section 3A of your information page. COMMERCIAL AUTO CA 71 09 01 17 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CA 71 09 01 17 Includes copyrighted material of Insurance Services Office, Inc., with its permission.Page 1 of 7 BUSINESS AUTO ULTRA ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM COMMON POLICY CONDITIONS COVERAGE INDEX DESCRIPTION PAGE Temporary Substitute Auto Physical Damage 2 Broad Form Insured 2 Employee as Insureds 2 Additional Insured Status by Contract, Agreement or Permit 2 Bail Bond Coverage 3 Loss of Earnings Coverage 3 Amended Fellow Employee Coverage 3 Towing and Labor 3 Physical Damage Additional Transportation Expense Coverage 3 Extra Expense - Theft 3 Rental Reimbursement and Additional Transportation Expense 4 Personal Effects Coverage 4 Personal Property of Others 4 Locksmith Coverage 4 Vehicle Wrap Coverage 5 Airbag Accidental Discharge 5 Audio, Visual and Data Electronic Equipment Coverage 5 Auto Loan/Lease Total Loss Protection 5 Glass Repair – Deductible Amendment 5 Amended Duties in the Event of Accident, Claim, Suit or Loss 6 Waiver of Subrogation Required by Contract 6 Unintentional Failure to Disclose 6 Hired, Leased, Rented or Borrowed Auto Physical Damage 6 Mental Anguish 7 Extended Cancellation Condition 7 The COVERAGE INDEX set forth above is informational only and grants no coverage. Terms set forth in are likewise for information only and by themselves shall be deemed to grant no coverage. POLICY NUMBER: 60496333 Page 2 of 7 Includes copyrighted material of Insurance Services Office, Inc., with its permission.CA 71 09 01 17 A. TEMPORARY SUBSTITUTE AUTO PHYSICAL DAMAGE SECTION I – COVERED AUTOS, paragraph C. Certain Trailers, Mobile Equipment and Temporary Substitute Autos is amended by adding the following at the end of the existing language: If Physical Damage Coverage is provided under this Coverage form for an "auto" you own, the Physical Damage coverages provided for that owned "auto" are extended to any "auto" you do not own while used with the permission of its owner as a temporary substitute for the covered "auto" you own that is out of service because of its breakdown, repair, servicing, "loss", or destruction B. BROADENED LIABILITY COVERAGES SECTION II – LIABILITY COVERAGE in Paragraph A. Coverage at 1. Who Is An Insured is amended to include the following: d.Any legally incorporated subsidiary in which you own more than 50% of the voting stock on the effective date of the Coverage Form. However, the Named Insured does not include any subsidiary that is an "insured" under any other automobile policy or would be an "insured" under such a policy but for its termination or the exhaustion of its Limit of Insurance. e.Any organization that is acquired or formed by you, during the term of this policy and over which you maintain majority ownership. However, the Named Insured does not include any newly formed or acquired organization: (1)That is a joint venture or partnership, (2)That is an "insured" under any other policy, (3)That has exhausted its Limits of Insurance under any other policy, or (4)180 days or more after its acquisition or formation by you, unless you have given us notice of the acquisition or formation Coverage does not apply to "bodily injury" or "property damage" that results from an accident that occurred before you formed or acquired the organization. f.Any employee of yours while acting in the course of your business or your personal affairs while using a covered "auto" you do not own, hire or borrow. g.Any person or organization whom you are required to add as an additional insured on this policy under a written contract or agreement; but the written contract or agreement must be: (1)Currently in effect or becoming effective during the term of this policy; and (2)Executed prior to the "bodily injury" or "property damage." The additional insured status will apply only with respect to your liability for "bodily injury" or "property damage" which may be imputed to that person(s) or organization(s) directly arising out of the ownership, maintenance or use of the covered "autos" at the location(s) designated, if any. Coverage provided by this endorsement will not exceed the limits of liability required by the written contract or written agreement even if the limits of liability stated in the policy exceed those limits. This endorsement shall not increase the limits stated in Section II. C. Limits of Insurance. For any covered "auto" you own this Coverage Form provides primary coverage. CA 71 09 01 17 Includes copyrighted material of Insurance Services Office, Inc., with its permission.Page 3 of 7 C. BROADENED SUPPLEMENTARY PAYMENTS SECTION II. LIABILITY A. Coverage 2. Coverage Extensions a. Supplementary Payments (2)and (4)are replaced by the following: (2)Up to $5,000 for cost of bail bonds (including bonds for related traffic violations) required because of an "accident" we cover. We do not have to furnish these bonds. (4)All reasonable expenses incurred by the "insured" at our request, including actual loss of earning up to $500 a day because of time off from work. D. AMENDED FELLOW EMPLOYEE EXCLUSION Only with respect to your "employees" who occupy positions which are supervisory in nature,SECTION II. LIABILITY B. Exclusion 5. Fellow Employee is replaced by: 5. Fellow Employee "Bodily Injury": a.To you, or your partners or members (if you are a partnership or joint venture), or to your members (if you are a limited liability company); b.To your "executive officers" and directors (if you are an organization other than a partnership, joint venture, or limited liability company) but only with respect to performance of their duties as your officers or directors; c.For which there is an obligation to share damages with or repay someone else who must pay damages because of the injury described in paragraph a and b above; or d.Arising out of his or her providing or failing to provide professional health care services. For purposes of this endorsement, a position is deemed to be supervisory in nature if that person performs principle work which is substantially different from that of his or her subordinates and has authority to hire, transfer, direct, discipline or discharge. E. BROADENED PHYSICAL DAMAGE COVERAGES SECTION III – PHYSICAL DAMAGE COVERAGE A. Coverage is amended as follows: 2. Towing is deleted and replaced with the following: 2. Towing and Labor We will pay towing and labor costs incurred, up to the limits shown below, each time a covered "auto" is disabled: a.For private passenger type vehicles we will pay up to $100 per disablement. b.For all other covered "auto's" we will pay up to $500 per disablement However, the labor must be performed at the place of disablement. 4. Coverage Extensions a. Transportation Expenses is amended to provide the following limits: We will pay up to $60 per day to a maximum of $1,800. All other terms and provisions of this section remain applicable. The following language is added to 4. Coverage Extensions: c. Theft Recovery Expense If you have purchased Comprehensive Coverage on an "auto" that is stolen, we will pay the expense of returning that stolen auto to you. The limit for this coverage extension is $5,000. Page 4 of 7 Includes copyrighted material of Insurance Services Office, Inc., with its permission.CA 71 09 01 17 d. Rental Reimbursement We will provide Rental Reimbursement and Additional Expense coverage only for those Physical Damage coverages for which a premium is shown in the Declarations or schedule pages. Coverage applies only to a covered "auto". (1)We will pay for auto rental expense and the expense incurred by you because of "loss" to remove and transfer your materials and equipment from a covered "auto" to a covered "auto." Payment applies in addition to the otherwise applicable coverage you have on a covered "auto." No deductible applies to this coverage. (2)We will pay only for expenses incurred during the policy period and beginning 24 hours after the "loss" and ending, regardless of the policy's expiration, with the lesser of the following number of days: (a)The number of days reasonably required to repair or replace the covered "auto." If "loss" is caused by theft, this number of days is added to the number of days it takes to locate the covered "auto" and return it to you, or (b)30 days. (3)Our payment is limited to the lesser of the following amounts: (a)Necessary and actual expenses incurred; or (b)$75 per day. (c)This coverage does not apply while there are spare or reserve "autos" available to you for your operations. (d)If "loss" results from the total theft of a covered "auto" of the private passenger or light truck type, we will pay under this coverage only that amount of your rental reimbursement expense which is not already provided for under the SECTION III – PHYSICAL DAMAGE COVERAGE, A. Coverage, 4. Coverage Extensions, a. Transportation Expenses. e. Personal Effects If you have purchased Comprehensive Coverage on this policy for an "auto" you own and that "auto" is stolen, we will pay, without application of a deductible, up to $500 for Personal Effects stolen with the "auto". The insurance provided under this provision is excess over any other collectible insurance. For this coverage extension, Personal Effects means tangible property that is worn or carried by an "insured". f. Personal Property of Others We will pay up to $500 for loss to personal property of others in or on your covered "auto." This coverage applies only in the event of "loss" to your covered "auto" caused by fire, lightning, explosion, theft, mischief or vandalism, the covered "auto's" collision with another object, or the covered "auto's" overturn. No deductibles apply to this coverage. g. Locksmith Coverage We will pay up to $250 per occurrence for necessary locksmith services for keys locked inside a covered private passenger "auto". The deductible is waived for these services. CA 71 09 01 17 Includes copyrighted material of Insurance Services Office, Inc., with its permission.Page 5 of 7 h. Vehicle Wrap Coverage If you have Comprehensive or Collision coverage on an "auto" that is a total loss, in addition to the actual cash value of the "auto", we will pay up to $1,000 for vinyl vehicle wraps which are displayed on the covered "auto" at the time of total loss. Regardless of the number of autos deemed a total loss, the most we will pay under this Vehicle Wrap Coverage for any one "loss" is $5,000. For purposes of this coverage provision, signs or other graphics painted or magnetically affixed to the vehicle are not considered vehicle wraps. F. SECTION III – PHYSICAL DAMAGE COVERAGE, B. Exclusions is amended at 3.to include the following language: If you have purchased Comprehensive or Collision Coverage under this policy, this exclusion does not apply to mechanical breakdown relating to the accidental discharge of an air bag. This coverage applies only to a covered auto you own and is excess of any other collectible insurance or warranty. No deductible applies to this coverage. G. BROADENED LIMITS OF INSURANCE SECTION III – PHYSICAL DAMAGE COVERAGE – C. Limit of Insurance at 1.b.is amended to provide the following limits: b.Limits of $1,000 per "loss" is increased to $5,000 per "loss". All other terms and provisions of this section remain applicable. SECTION III – PHYSICAL DAMAGE COVERAGE – C. Limit of Insurance is amended by adding the following language: 4.In the event of a total "loss" to a covered "auto" shown in the Schedule pages, subject at the time of the "loss" to a loan or lease, we will pay any unpaid amount due including up to a maximum of $500 for early termination fees or penalties on the lease or loan for a covered"auto" less: a.The amount paid under the Physical Damage Coverage Section of the policy; and b.Any: (1)Overdue lease / loan payments at the time of the "loss''; (2)Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage; (3)Security deposits not returned by the lessor; (4)Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan or lease; and (5)Carry-over balances from previous loans or leases. H. GLASS REPAIR – DEDUCTIBLE SECTION III – PHYSICAL DAMAGE COVERAGE – D. Deductible is amended by adding the following: Any deductible shown in the Declarations as applicable to the covered "auto" will not apply to glass breakage if the damaged glass is repaired, rather than replaced. Page 6 of 7 Includes copyrighted material of Insurance Services Office, Inc., with its permission.CA 71 09 01 17 I. AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS Under SECTION IV – BUSINESS AUTO CONDITIONS, A. Loss Conditions , the following is added to paragraph 2. Duties In The Event of Accident, Suit or Loss: d.Knowledge of any "accident", "claim", "suit" or "loss" will be deemed knowledge by you when notice of such "accident", "claim", "suit" or "loss" has been received by: (1)You, if you are an individual; (2)Any partner or insurance manager if you are a partnership; (3)An executive officer or insurance manager, if you are a corporation; (4)Your members, managers or insurance manager, if you are a limited liability company; or (5)Your officials, trustees, board members or insurance manager, if you are a not-for-profit organization. J. WAIVER OF SUBROGATION REQUIRED BY CONTRACT Under SECTION IV ,BUSINESS AUTO CONDITIONS, A. Loss Conditions 5. Transfer of Rights of Recovery Against Others to Us the following language is added: However, we waive any rights of recovery we may have against the person or organization with whom you have agreed in writing in a contract, agreement or permit, to provide insurance such as is afforded under the policy to which this endorsement is attached. This provision does not apply unless the written contract or written agreement has been executed, or permit has been issued, prior to the "bodily injury" or "property damage." K. UNINTENTIONAL FAILURE TO DISCLOSE Under SECTION IV – BUSINESS AUTO CONDITIONS, B. General Conditions , the following is added to 2. Concealment, Misrepresentation Or Fraud : Your unintentional error in disclosing, or failing to disclose, any material fact existing at the effective date of this Coverage Form, or during the policy period in connection with any additional hazards, will not prejudice your rights under this Coverage Form. L. HIRED, LEASED, RENTED OR BORROWED AUTO PHYSICAL DAMAGE Under SECTION IV – BUSINESS AUTO CONDITIONS B. General Conditions 5. Other Insurance Paragraph 5.b.is replaced by the following: b. (1)For "Comprehensive" and "Collision" Auto Physical Damage coverage provided by this endorsement, the following are deemed to be covered "autos" you own: (a)Any Covered "auto" you lease, hire, rent or borrow; and (b)Any Covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name, with your permission, while performing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto" (2) Limit of Insurance For This Section The most we will pay for any one "loss" is the lesser of the following: (a)$75,000 per accident, or (b)actual cash value at the time of loss, or (c)cost of repair. CA 71 09 01 17 Includes copyrighted material of Insurance Services Office, Inc., with its permission.Page 7 of 7 Minus a $500 deductible. An adjustment for depreciation and physical condition will be made in determining actual cash value in the event of a total loss. No deductible applies to "loss" caused by fire or lightning. (3)This Hired Auto Physical Damage coverage is excess over any other collectible insurance. (4) Definitions For This Section (a)Comprehensive Coverage: from any cause except the covered "auto's" collision with another object or the covered "auto's" overturn. We will pay glass breakage, "loss" caused by hitting a bird or animal and, "loss" caused by falling objects or missiles. (b)Collision Coverage: caused by the covered "auto's" collision with another object or by the covered "auto's" overturn. M. MENTAL ANGUISH Under SECTION V – DEFINITIONS, C.is replaced by the following: C."Bodily injury" means bodily injury, sickness or disease sustained by a person including mental anguish or death resulting from bodily injury, sickness, or disease. N. EXTENDED CANCELLATION CONDITION Under CANCELLATION,of the COMMON POLICY CONDITIONS form, item 2.b.is replaced by the following: b.60 days before the effective date of cancellation if we cancel for any other reason. POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 25 03 05 09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 25 03 05 09 © Insurance Services Office, Inc., 2008 Page 1 of 2 DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE A.For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under Section I – Coverage A,and for all medical expenses caused by accidents under Section I – Coverage C,which can be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1.A separate Designated Construction Project General Aggregate Limit applies to each designated construction project, and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2.The Designated Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under Coverage A,except damages because of "bodily injury " or "property damage" included in the "products-completed operations hazard", and for medical expenses under Coverage C regardless of the number of: a.Insureds; b.Claims made or "suits" brought; or c.Persons or organizations making claims or bringing "suits". 3.Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the Designated Construction Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Designated Construction Project General Aggregate Limit for any other designated construction project shown in the Schedule above. 4.The limits shown in the Declarations for Each Occurrence, Damage To Premises Rented To You and Medical Expense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construction Project General Aggregate Limit. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Designated Construction Project(s): WHEN REQUIRED BY WRITTEN CONTRACT 60496333 CG 25 03 05 09 CG 25 03 05 09 © Insurance Services Office, Inc., 2008 Page 2 of 2 B.For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under Section I – Coverage A,and for all medical expenses caused by accidents under Section I – Coverage C,which cannot be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1.Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-completed Operations Aggregate Limit, whichever is applicable; and 2.Such payments shall not reduce any Designated Construction Project General Aggregate Limit. C.When coverage for liability arising out of the "products-completed operations hazard" is provided, any payments for damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard" will reduce the Products-completed Operations Aggregate Limit, and not reduce the General Aggregate Limit nor the Designated Construction Project General Aggregate Limit. D.If the applicable designated construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. E.The provisions of Section III – Limits Of Insurance not otherwise modified by this endorsement shall continue to apply as stipulated. CE 70 07 06 21 CE 70 07 06 21 Includes copyrighted material of Insurance Services Office, Inc., with its permission.Page 1 of 4 COMMERCIAL EXCESS LIABILITY COVERAGE FORM A. SECTION I – COVERAGES 1. Insuring Agreement a.We will pay those sums, in excess of the amount payable under the terms of any "underlying insurance," that the insured becomes legally obligated to pay as damages because of injury or damage to which this insurance applies, provided that the "underlying insurance" also applies, or would apply but for the exhaustion of its applicable limits of insurance. If, however, a Minimum Retention applies, as set forth in item 4, page 2, we will pay only those sums in excess of the Self Insured Retention. b.We will have the right to participate in the defense of claims or suits against the insured seeking damages because of injury or damage to which this insurance may apply. We will have a duty to defend such claims or suits when the applicable limit of insurance of the "underlying insurance" has been used up by payment of judgments, settlements and any cost or expense subject to such limit. c.This right or duty to defend is limited as set forth in item 3. d.The amount we will pay for damages is limited as described in SECTION IlI – LIMITS OF INSURANCE, page 2. e.If any "underlying insurance" is written on a claims-made basis, the "retained limit(s)" will only be reduced or exhausted by claims for that insurance that are made during the policy period, or any Extended Reporting Period, of this Coverage Part.” (1)We will have no obligation under this insurance with respect to any claim or suit that is settled without our consent; or (2)With respect to any provisions to the contrary contained in this insurance. 2. Exclusions The exclusions applicable to the “underlying insurance” also apply to this insurance. a.Damage by fire to premises rented to you. b.Any obligation to pay expenses under any medical payments coverage. c.Any obligation to reimburse an insurer as provided by the terms of the "Endorsement for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980" or under the terms of any similar endorsement required by federal or state statute. d.Any obligation imposed by law under any automobile no-fault,uninsured motorist, underinsured motorist, workers compensation, disability benefits or unemployment compensation law or any similar law. e.Any liability arising out of the rendering of or failure to render any "professional services," other than those "professional services" shown on the Schedule Of Underlying Insurance in the Declarations. f.Any liability arising out of or related in any way to lead poisoning, and we will have no duty of any kind with respect to any claim or suit which seeks, in whole or in part, damages or any other relief arising out of or related in any way to lead poisoning. 3. Defense of Claims or Suits a.When we have the duty to defend, we will pay for all "defense expense" once our duty to defend begins. We may make investigation of any claim or suit as we think appropriate. If we exercise our right to defend when there is no duty, we will pay only that “defense expense” we incur. If we provide a defense, we may investigate any claim or suit at our discretion. We may settle such claim or suit within the Amount of Insurance available at the time of settlement. b.Our right or duty to defend ends when we have used up the Amount of Insurance available in the payment of any combination of judgments or settlements as provided under SECTION Ill – LIMITS OF INSURANCE. This applies both to claims and suits pending at the time and those filed thereafter. c.When we control the defense of a claim or suit, we will pay for the "defense expense." If by mutual agreement or court order an insured assumes control before the applicable Amount of Insurance available is used up, we will reimburse that insured for reasonable "defense expense." Page 2 of 4 Includes copyrighted material of Insurance Services Office, Inc., with its permission.CE 70 07 06 21 d.As soon as practicable after we become aware that an Amount of Insurance available is used up: (1)We will notify you of any outstanding claims and suits subject to that amount; (2)You will then arrange to assume control of the defense of all such claims and suits against you or any other insured when our right or duty to defend them ends. e.We will assist an insured in the transfer of control of the defense of claims and suits under c. or d. above. Until such arrangements are completed, we will take on behalf of any insured those steps that we think appropriate: (1)To avoid a default in any claim or suit; or (2)To the continued defense of a claim or suit. You agree that if we take such steps: (1)We do not waive or give up any of our rights under this insurance; and (2)You will reimburse us for any “defense expense” that arises out of such steps if the applicable Amount of Insurance available has been used up. 4. Self Insured Retention The Self Insured Retention, if any, shown in the Declarations applies to all injury and damage arising out of any one "incident," if at the time of the first claim or suit for any such injury or damage the applicable "aggregate limit" of the "underlying insurance" has been used up by payment of judgments, settlements, and any costs or expenses subject to such limit. B. SECTION II – WHO IS AN INSURED Any person qualifying as such under “underlying insurance.” C. SECTION III – LIMITS OF INSURANCE 1.The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay under the terms of this insurance regardless of the number of: a.Insureds; b.Claims made or “suits” brought; c.Persons or organizations making claims or bringing “suits.” 2.The Amount of Insurance stated as the General Aggregate Limit is the most we will pay. Each payment we make for such damages reduces by the amount of the payment the General Aggregate Limit. This reduced limit will then be the Amount of Insurance available for further expenses and damages of these kinds. 3.The Limits of this policy apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations. D. SECTION IV – CONDITIONS If any of the following conditions are contrary to conditions contained in the "underlying insurance", the provisions contained in this policy apply. 1. Appeals In the event the "underlying insurer" elects not to appeal a judgment in excess of the limits of the "underlying insurance," we may elect to make such appeal. If we so elect, we shall be liable for all “defense expenses” we incur. 2. Bankruptcy of Underlying Insurer In the event of bankruptcy or insolvency of any "underlying insurer,"the insurance afforded by this policy shall not replace such "underlying insurance," but shall apply as if the "underlying insurance" was valid and collectable. Page 3 of 4 Includes copyrighted material of Insurance Services Office, Inc., with its permission.CE 70 07 06 21 3. Duties in the Event of Incident, Claim or Suit a.You must see to it that we are notified as soon as practicable of an "incident' which may result in a claim to which this insurance applies. To the extent possible notice should include: (1)How, when and where the "incident" took place; (2)The names and addresses of any injured persons and witnesses; and (3)The nature and location of any injury or damage arising out of the "incident." Notice of an "incident" is not notice of a claim. b.If a claim is received by any insured you must: (1)Immediately record the specifics of the claim and the date received; and (2)See that we receive written notice of the claim as soon as practicable. c.You and any other involved insured must: Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or a suit; (1)Authorize us to obtain records and other information; (2)Cooperate with us in the investigation, settlement or defense of the claim or suit; (3)Assist us, upon our request, in the enforcement of any right against any person or organization, which may be liable to the insured because of injury or damage to which this insurance may also apply; (4)Notify us immediately of any judgment or settlement of any claim or suit brought against any insured. (5)No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. 4. Maintenance of Underlying Insurance a.You agree to maintain the “underlying insurance” in full force and effect during the term of this policy, and to inform us within 30 days of any replacement of that “underlying insurance” by the same or another company. b.You must notify us immediately: (1)Of any changes to the “underlying insurance.” We may adjust our premium accordingly from the effective date to the change to the "underlying insurance”; (2)If any "underlying insurance" is cancelled or not renewed and you do not replace it. We may cancel the portion of this insurance that applies to that "underlying insurance" as of the date of termination of the "underlying insurance." 5. Other Insurance This insurance is excess over any other valid collectable insurance whether primary, excess, contingent or any other basis, except other insurance written specifically to be excess over this insurance. 6. Policy Period This insurance will respond to injury or damage that occurs, or arises from an offense committed, during the policy period of this insurance shown in the Declarations. SECTION V – DEFINITIONS 1."Aggregate limit" means the maximum amount stated in the policy for which the insurer will be liable, regardless of the number of covered claims. 2."Defense expense" means payments allocated to a specific claim or suit for its investigation, settlement, or defense, including: a.Attorney fees and all other litigation expenses. b.The cost of bonds to appeal a judgment or award in any suit we defend. c.The cost of bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which bodily injury liability coverage provided by underlying insurance applies. d.The cost of bonds to release attachments, but only for bond amounts within the Amount of Insurance available. e.Reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or suit, including actual loss of earnings up to $250 a day because of time off from work. D. Page 4 of 4 Includes copyrighted material of Insurance Services Office, Inc., with its permission.CE 70 07 06 21 f.Cost taxed against the insured in the suit. g.Interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the amount available for the judgments under the provisions of SECTION Ill - LIMITS OF INSURANCE, page 2. h.Prejudgment interest awarded against the insured. i."Defense expense" does not include: (1)Salaries and expenses of our employees or the insured's employees,other than: (a)That portion of our employed attorneys' fees, salaries and expenses allocated to a specific claim or suit; and (b)The expenses described in f. above. (2)Fees and expenses of independent adjusters we hire. 3.“Incident” means: a.With respect to bodily injury to persons other than your employees and property damage, an accident, including continuous or repeated exposure to substantially the same general harmful conditions; b.With respect to bodily injury to your employees arising out of and in the course of their employment by you, the accident or disease which causes the bodily injury; and c.With respect to offenses committed by the insured resulting in personal injury or advertising injury all such injury sustained by any one person or organization. 4."Occurrence limit" means any specific limit, other than an "aggregate limit," applicable to any "underlying insurance," regardless of whether such limit is subject to an "aggregate limit" in the "underlying policy." 5."Professional services" includes but is not limited to: a.Medical, surgical, dental, x-ray or nursing service or treatment, or the related furnishing of food or beverages; b.Any other health service or treatment; c.Any cosmetic or tonsorial service or treatment; d.Any legal, accounting, advertising, computer programming, counseling, engineering, surveying, drafting or architectural services; or e.Acts or omissions of your directors and officers. 6."Underlying insurance" means the liability insurance coverage provided under policies shown in the Declarations, for the limits and periods indicated. It includes any policies issued to replace those policies during the term of this insurance that provide: a.At least the same policy limits; b.The same hazards insured against, except as modified by general program revisions or as agreed to by us in writing; and it includes only policies shown in the Declarations or endorsed onto this policy. (1)"Underlying insurer" means any insurer who issues a policy of "underlying insurance." (2)"Underlying policy" means a policy providing "underlying insurance." 10/01/2024 10/01/2025 60496333 4 24 24444 5 A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilities Final Audit Report 2025-04-24 Created:2025-04-18 By:Webmaster Admin (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAAPNlYHEEn_gevwQ4Vco9B2MqT5pLNv8_ "A-1 Fence, Inc. for On-call Fence Repairs at Various City Facilit ies" History Document created by Webmaster Admin (webmaster@cupertino.org) 2025-04-18 - 0:11:38 AM GMT- IP address: 35.229.54.2 Document emailed to Jindy Gonzalez (jindyg@cupertino.org) for approval 2025-04-18 - 0:15:02 AM GMT Email viewed by Jindy Gonzalez (jindyg@cupertino.org) 2025-04-18 - 0:15:12 AM GMT- IP address: 13.217.196.157 Document approved by Jindy Gonzalez (jindyg@cupertino.org) Approval Date: 2025-04-18 - 0:16:08 AM GMT - Time Source: server- IP address: 174.85.102.16 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2025-04-18 - 0:16:10 AM GMT Email viewed by Araceli Alejandre (aracelia@cupertino.org) 2025-04-18 - 0:16:18 AM GMT- IP address: 44.203.221.169 Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2025-04-18 - 3:05:16 PM GMT - Time Source: server- IP address: 71.202.76.156 Document emailed to a1fence@sbcglobal.net for signature 2025-04-18 - 3:05:19 PM GMT Email sent to a1fence@sbcglobal.net bounced and could not be delivered 2025-04-18 - 3:05:34 PM GMT Webmaster Admin (webmaster@cupertino.org) replaced signer a1fence@sbcglobal.net with a1fenceinc@sbcglobal.net 2025-04-18 - 8:25:52 PM GMT- IP address: 174.85.102.16 Document emailed to a1fenceinc@sbcglobal.net for signature 2025-04-18 - 8:25:53 PM GMT Email sent to a1fence@sbcglobal.net bounced and could not be delivered 2025-04-18 - 8:26:09 PM GMT Email viewed by a1fenceinc@sbcglobal.net 2025-04-18 - 8:56:25 PM GMT- IP address: 69.147.90.126 Signer a1fenceinc@sbcglobal.net entered name at signing as Vanessa Alonso 2025-04-18 - 9:48:33 PM GMT- IP address: 73.241.7.177 Document e-signed by Vanessa Alonso (a1fenceinc@sbcglobal.net) Signature Date: 2025-04-18 - 9:48:36 PM GMT - Time Source: server- IP address: 73.241.7.177 Document emailed to Floy Andrews (floya@cupertino.gov) for signature 2025-04-18 - 9:48:38 PM GMT Email viewed by Floy Andrews (floya@cupertino.gov) 2025-04-18 - 9:48:44 PM GMT- IP address: 54.198.191.130 Document e-signed by Floy Andrews (floya@cupertino.gov) Signature Date: 2025-04-23 - 3:57:27 PM GMT - Time Source: server- IP address: 12.217.162.140 Document emailed to Chad Mosley (chadm@cupertino.org) for signature 2025-04-23 - 3:57:29 PM GMT Email viewed by Chad Mosley (chadm@cupertino.org) 2025-04-23 - 3:57:36 PM GMT- IP address: 34.230.84.69 Document e-signed by Chad Mosley (chadm@cupertino.org) Signature Date: 2025-04-23 - 4:28:25 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2025-04-23 - 4:28:28 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2025-04-23 - 4:28:41 PM GMT- IP address: 98.81.105.180 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2025-04-24 - 8:32:56 PM GMT - Time Source: server- IP address: 73.241.178.249 Agreement completed. 2025-04-24 - 8:32:56 PM GMT