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21-245 Amendment #1 dated 6-28-23 Syserco for Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center1 FIRST AMENDMENT TO AGREEMENT 360 BETWEEN THE CITY OF CUPERTINO AND SYSERCO, INC. FOR SERVICE, MAINTENANCE, REPAIRS, AND IMPROVEMENTS TO THE ENERGY MANAGEMENT SYSTEM AT CUPERTINO SPORTS CENTER This First Amendment to Agreement 360 between the City of Cupertino and Syserco, Inc is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Syserco, Inc, a Corporation (“Contractor”) whose address is 215 Fourier Ave., Fremont, CA 94539, and is made with reference to the following: RECITALS: A. On November 05, 2021 Agreement 360 (“Agreement”) was entered into by and between City and Contractor for Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center. B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Paragraph 3.1 of the Agreement is modified to read as follows: Term. This Contract begins on the Effective Date and ends on October 31, 2023 (“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. 2. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE TO FOLLOW 2 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CITY OF CUPERTINO SYSERCO, INC By By Title Title Date Date APPROVED AS TO FORM City Attorney ATTEST: City Clerk Date CEO Jun 28, 2023 Christopher D. Jensen Interim Director of Public Works Jun 28, 2023 Jun 28, 2023 3 EXPENDITURE DISTRIBUTION Item PO Number Amount Original Agreement 60,000 Amendment 1 Extend Term to 10/31/2023 SO #1 Sport Center AC4 Emergency Repairs 2022-308 6,469.00 SO #2 Sport Center Maint & Repairs 2022-355 24,000.00 Total Service Orders 30,469.00 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 6/6/2023 License # 0G66614 (925) 226-7350 (925) 226-7380 25682 Syserco, Inc. 215 Fourier Avenue Fremont, CA 94539 25674 20044 30481 A 1,000,000 X X CO-4W712570 3/1/2023 3/1/2024 300,000 15,000 1,000,000 2,000,000 2,000,000 1,000,000A X X 810-4W71243A 3/1/2023 3/1/2024 10,000,000B CUP-4W812199 3/1/2023 3/1/2024 10,000,000 10,000 C X SYWC456230 3/1/2023 3/1/2024 1,000,000 N 1,000,000 1,000,000 B Installation Floater 4W884515 3/1/2023 Per Occurrence 1,200,000 D E&O w/ Pollution ZCD-16P48309 3/1/2023 3/1/2024 Each Claim / Agg 5,000,000 Re: ON-CALL PUBLIC WORKS The City of Cupertino, its city council, officers, officials, employees, agents, servants and volunteers are additional insured to the extent provided in the attached form. Primary wording to the extent provided in the attached form. Waiver of Subrogation applies to General Liability, Automobile Liability and Workers Compensation, to the extent provided in the attached form. City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 SYSERCO-01 MIZO One Risk Group, LLC DBA: One Risk Management & Insurance Services 6701 Koll Center Parkway, Suite 350 Pleasanton, CA 94566 Certificates@oneriskgroup.com Travelers Indemnity Co of CT Travelers Property Casualty Company of America Berkshire Hathaway Homestate Ins Co St. Paul Surplus Lines Insurance Company X 3/1/2024 X X X X X X X COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (Includes Products-Completed Operations If Required By Contract) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PROVISIONS (1)Any "bodily injury", "property damage" or "personal injury" arising out of the providing,The following is added to SECTION II – WHO IS AN or failure to provide, any professionalINSURED: architectural, engineering or surveyingAny person or organization that you agree in a services, including:written contract or agreement to include as an additional insured on this Coverage Part is an (a)The preparing, approving, or failing to insured, but only:prepare or approve, maps, shop drawings, opinions, reports, surveys,a.With respect to liability for "bodily injury" or field orders or change orders, or the"property damage" that occurs, or for "personal preparing, approving, or failing toinjury" caused by an offense that is committed, prepare or approve, drawings andsubsequent to the signing of that contract or agreement and while that part of the contract or specifications; and agreement is in effect; and (b)Supervisory, inspection, architectural or b.If, and only to the extent that, such injury or engineering activities.damage is caused by acts or omissions of you or (2)Any "bodily injury" or "property damage"your subcontractor in the performance of "your caused by "your work" and included in thework" to which the written contract or agreement "products-completed operations hazard"applies. Such person or organization does not unless the written contract or agreementqualify as an additional insured with respect to the independent acts or omissions of such specifically requires you to provide such person or organization.coverage for that additional insured during the policy period.The insurance provided to such additional insured is subject to the following provisions:c.The additional insured must comply with the a.If the Limits of Insurance of this Coverage Part following duties: shown in the Declarations exceed the minimum (1)Give us written notice as soon as practicablelimits required by the written contract or of an "occurrence" or an offense which mayagreement, the insurance provided to the result in a claim. To the extent possible, suchadditional insured will be limited to such notice should include:minimum required limits. For the purposes of determining whether this limitation applies, the (a)How, when and where the "occurrence"minimum limits required by the written contract or or offense took place;agreement will be considered to include the (b)The names and addresses of any injuredminimum limits of any Umbrella or Excess persons and witnesses; andliability coverage required for the additional insured by that written contract or agreement.(c)The nature and location of any injury orThis provision will not increase the limits of damage arising out of the "occurrence"insurance described in Section III – Limits Of or offense.Insurance. (2)If a claim is made or "suit" is brought againstb.The insurance provided to such additional the additional insured:insured does not apply to: CG D2 46 04 19 ú 2018 The Travelers Indemnity Company. All rights reserved.Page 1 of 2 COMMERCIAL GENERAL LIABILITY (a)Immediately record the specifics of the (4)Tender the defense and indemnity of any claim or "suit" and the date received; and claim or "suit" to any provider of other insurance which would cover such additional(b)Notify us as soon as practicable and see insured for a loss we cover. However, thisto it that we receive written notice of the condition does not affect whether theclaim or "suit" as soon as practicable.insurance provided to such additional (3)Immediately send us copies of all legal insured is primary to other insurancepapers received in connection with the claim available to such additional insured whichor "suit", cooperate with us in the covers that person or organization as ainvestigation or settlement of the claim or named insured as described in Paragraph 4.,defense against the "suit", and otherwise Other Insurance, of Section IV – Commercialcomply with all policy conditions.General Liability Conditions. Page 2 of 2 ú 2018 The Travelers Indemnity Company. All rights reserved.CG D2 46 04 19 COMMERCIAL GENERAL LIABILITY c. Method Of Sharing a.The statements in the Declarations are accurate and complete;If all of the other insurance permits contribution by equal shares, we will follow this method also.b.Those statements are based upon Under this approach each insurer contributes representations you made to us; and equal amounts until it has paid its applicable c.We have issued this policy in reliance uponlimit of insurance or none of the loss remains,your representations.whichever comes first.The unintentional omission of, or unintentional errorIf any of the other insurance does not permit in, any information provided by you which we reliedcontribution by equal shares, we will contribute upon in issuing this policy will not prejudice yourby limits. Under this method, each insurer's rights under this insurance. However, this provisionshare is based on the ratio of its applicable limit does not affect our right to collect additionalof insurance to the total applicable limits of premium or to exercise our rights of cancellation orinsurance of all insurers.nonrenewalin accordance with applicable insurance d. Primary And Non-Contributory Insurance If laws or regulations. Required By Written Contract 7. Separation Of Insureds If you specifically agree in a written contract or Except with respect to the Limits of Insurance, andagreement that the insurance afforded to an any rights or duties specifically assigned in thisinsured under this Coverage Part must apply on Coverage Part to the first Named Insured, thisa primary basis, or a primary and non-insurance applies:contributory basis, this insurance is primary to a.As if each Named Insured were the onlyother insurance that is available to such insured Named Insured; andwhich covers such insured as a named insured, b.Separately to each insured against whom claimand we will not share with that other insurance, is made or "suit" is brought.provided that: 8. Transfer Of Rights Of Recovery Against Others(1)The "bodily injury" or "property damage" for To Uswhich coverage is sought occurs; and If the insured has rights to recover all or part of any(2)The "personal and advertising injury" for payment we have made under this Coverage Part,which coverage is sought is caused by an those rights are transferred to us. The insured mustoffense that is committed;do nothing after loss to impair them. At our request,subsequent to the signing of that contract or the insured will bring "suit" or transfer those rightsagreement by you.to us and help us enforce them. 5. Premium Audit 9. When We Do Not Renew a.We will compute all premiums for this Coverage If we decide not to renew this Coverage Part, we willPart in accordance with our rules and rates.mail or deliver to the first Named Insured shown in b.Premium shown in this Coverage Part as the Declarations written notice of the nonrenewaladvance premium is a deposit premium only. At not less than 30 days before the expiration date.the close of each audit period we will compute If notice is mailed, proof of mailing will be sufficientthe earned premium for that period and send proof of notice.notice to the first Named Insured. The due date SECTION V – DEFINITIONSfor audit and retrospective premiums is the date shown as the due date on the bill. If the sum of 1."Advertisement" means a notice that is broadcast or the advance and audit premiums paid for the published to the general public or specific market policy period is greater than the earned segments about your goods, products or services premium, we will return the excess to the first for the purpose of attracting customers or Named Insured.supporters. For the purposes of this definition: c.The first Named Insured must keep records of a.Notices that are published include material the information we need for premium placed on the Internet or on similar electronic computation, and send us copies at such times means of communication; and as we may request.b.Regarding websites, only that part of a website 6. Representations that is about your goods, products or services for the purposes of attracting customers orBy accepting this policy, you agree: supporters is considered an advertisement. Page16 of 21 ú 2017 The Travelers Indemnity Company. All rights reserved.CG T1 00 02 19 Includes copyrighted material of Insurance Services Office, Inc. with its permission. COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. GENERAL DESCRIPTION OF COVERAGE – This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general coverage description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered. A. BROAD FORM NAMED INSURED H. HIRED AUTO PHYSICAL DAMAGE – LOSS OF USE – INCREASED LIMITB. BLANKET ADDITIONAL INSURED I. PHYSICAL DAMAGE – TRANSPORTATIONC. EMPLOYEE HIRED AUTO EXPENSES – INCREASED LIMIT D. EMPLOYEES AS INSURED J. PERSONAL EFFECTS K. AIRBAGSE. SUPPLEMENTARY PAYMENTS – INCREASED LIMITS L. NOTICE AND KNOWLEDGE OF ACCIDENT OR LOSSF. HIRED AUTO – LIMITED WORLDWIDE COVERAGE – INDEMNITY BASIS M. BLANKET WAIVER OF SUBROGATION G. WAIVER OF DEDUCTIBLE – GLASS N. UNINTENTIONAL ERRORS OR OMISSIONS PROVISIONS A. BROAD FORM NAMED INSURED as an additional insured for Liability Coverage, but only for damages to which this insuranceThe following is added to Paragraph A.1., Who Is applies and only to the extent of that person's orAn Insured, of SECTION II – LIABILITY organization's liability for the conduct of anotherCOVERAGE:"insured".Any organization you newly acquire or form C. EMPLOYEE HIRED AUTOduring the policy period over which you maintain 50% or more ownership interest and that is not 1. The following is added to Paragraph A.1., separately insured for Business Auto Coverage.Who Is An Insured, of SECTION II – Coverage under this provision is afforded only LIABILITY COVERAGE: until the 180th day after you acquire or form the An "employee" of yours is an "insured" whileorganization or the end of the policy period,operating an "auto" hired or rented under awhichever is earlier.contract or agreement in that "employee's"B. BLANKET ADDITIONAL INSURED name, with your permission, while performing The following is added to Paragraph c. in A.1., duties related to the conduct of your Who Is An Insured, of SECTION II – LIABILITY business. COVERAGE:2. The following replaces Paragraph b. in B.5., This includes any person or organization who you Other Insurance, of SECTION IV – are required under a written contract or BUSINESS AUTO CONDITIONS: agreement between you and that person or b. For Hired Auto Physical Damageorganization, that is signed by you before the Coverage, the following are deemed to be"bodily injury" or "property damage" occurs and covered "autos" you own:that is in effect during the policy period, to name CA T3 53 08 17 ú 2016 The Travelers Indemnity Company. All rights reserved. Page 1 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission COMMERCIAL AUTO territories and possessions, Puerto Rico Personal Effects and Canada.We will pay up to $400 for "loss" to wearing You agree to maintain all required or apparel and other personal effects which are: compulsory insurance in any such (1)Owned by an "insured"; andcountry up to the minimum limits required (2)In or on your covered "auto".by local law. Your failure to comply with compulsory insurance requirements will This coverage applies only in the event of a total not invalidate the coverage afforded by theft of your covered "auto". this policy, but we will only be liable to the No deductibles apply to this Personal Effectssame extent we would have been liable coverage.had you complied with the compulsory K. AIRBAGSinsurance requirements. (4)It is understood that we are not an The following is added to Paragraph B.3., admitted or authorized insurer outside the Exclusions, of SECTION III – PHYSICAL United States of America, its territories DAMAGE COVERAGE: and possessions, Puerto Rico and Exclusion 3.a. does not apply to "loss" to one orCanada. We assume no responsibility for more airbags in a covered "auto" you own thatthe furnishing of certificates of insurance,inflate due to a cause other than a cause of "loss"or for compliance in any way with the set forth in Paragraphs A.1.b.and A.1.c., butlaws of other countries relating to only:insurance. a.If that "auto" is a covered "auto" forG. WAIVER OF DEDUCTIBLE – GLASS Comprehensive Coverage under this policy; The following is added to Paragraph D.,b.The airbags are not covered under anyDeductible, of SECTION III – PHYSICAL warranty; andDAMAGE COVERAGE: c.The airbags were not intentionally inflated.No deductible for a covered "auto" will apply to We will pay up to a maximum of $1,000 for anyglass damage if the glass is repaired rather than one "loss".replaced. L. NOTICE AND KNOWLEDGE OF ACCIDENT ORH. HIRED AUTO PHYSICAL DAMAGE – LOSS OF LOSSUSE – INCREASED LIMIT The following is added to Paragraph A.2.a., ofThe following replaces the last sentence of SECTION IV – BUSINESS AUTO CONDITIONS:Paragraph A.4.b.,Loss Of Use Expenses, of SECTION III – PHYSICAL DAMAGE Your duty to give us or our authorized COVERAGE:representative prompt notice of the "accident" or "loss" applies only when the "accident" or "loss" isHowever, the most we will pay for any expenses known to:for loss of use is $65 per day, to a maximum of $750 for any one "accident".(a)You (if you are an individual); I. PHYSICAL DAMAGE – TRANSPORTATION (b)A partner (if you are a partnership); EXPENSES – INCREASED LIMIT (c)A member (if you are a limited liability The following replaces the first sentence in company); Paragraph A.4.a.,Transportation Expenses, of (d)An executive officer, director or insuranceSECTION III – PHYSICAL DAMAGE manager (if you are a corporation or otherCOVERAGE:organization); or We will pay up to $50 per day to a maximum of (e)Any "employee" authorized by you to give$1,500 for temporary transportation expense notice of the "accident" or "loss".incurred by you because of the total theft of a M. BLANKET WAIVER OF SUBROGATIONcovered "auto" of the private passenger type. The following replaces Paragraph A.5., TransferJ. PERSONAL EFFECTS Of Rights Of Recovery Against Others To Us,The following is added to Paragraph A.4.,of SECTION IV – BUSINESS AUTOCoverage Extensions, of SECTION III –CONDITIONS:PHYSICAL DAMAGE COVERAGE: CA T3 53 08 17 ú 2016 The Travelers Indemnity Company. All rights reserved.Page 3 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission COMMERCIAL AUTO 5. Transfer Of Rights Of Recovery Against N. UNINTENTIONAL ERRORS OR OMISSIONS Others To Us The following is added to Paragraph B.2., We waive any right of recovery we may have Concealment, Misrepresentation, Or Fraud, of against any person or organization to the SECTION IV – BUSINESS AUTO CONDITIONS: extent required of you by a written contract The unintentional omission of, or unintentionalsigned and executed prior to any "accident"error in, any information given by you shall notor "loss", provided that the "accident" or "loss"prejudice your rights under this insurance.arises out of operations contemplated by However this provision does not affect our right tosuch contract. The waiver applies only to the collect additional premium or exercise our right ofperson or organization designated in such cancellation or non-renewal.contract. Page 4 of 4 ú 2016 The Travelers Indemnity Company. All rights reserved.CA T3 53 08 17 Includes copyrighted material of Insurance Services Office, Inc. with its permission © 2016 The Travelers Indemnity Company. All rights reserved.Page 4 of 22 EU 00 01 07 16 UMBRELLA 2.We have no duty to defend any insured against any "suit": a.Seeking damages to which this insurance does not apply; or b.If any other insurer has a duty to defend. 3.When we have the duty to defend, we may, at our discretion, investigate and settle any claim or "suit". In all other cases, we may, at our discretion, participate in the investigation, defense and settlement of any claim or "suit" for damages to which this insurance may apply. If we exercise such right to participate, all expenses we incur in doing so will not reduce the applicable limits of insurance. 4.Our duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements, or defense expenses if such expenses are within the limits of insurance of this policy. 5.We will pay, with respect to a claim we investigate or settle, or "suit" against an insured we defend: a.All expenses we incur. b.The cost of: (1)Bail bonds required because of accidents or traffic law violations arising out of the use of any vehicle to which this insurance applies; or (2)Appeal bonds and bonds to release attachments; but only for bond amounts within the applicable limit of insurance. We do not have to furnish these bonds. c.All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of such claim or "suit", including actual loss of earnings up to $1,000 a day because of time off from work. d.All court costs taxed against the insured in the "suit". However, these payments do not include attorneys' fees or attorneys' expenses taxed against the insured. e.Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. f.All interest that accrues on the full amount of any judgment after entry of the judgment and before we have paid, offered to pay or deposited in court the part of the judgment that is within the applicable limit of insurance. If we do not pay part of the judgment for any reason other than it is more than the applicable limit of insurance, we will not pay any interest that accrues on that portion of the judgment. With respect to a claim we investigate or settle, or "suit" against an insured we defend under COVERAGE A – EXCESS FOLLOW- FORM LIABILITY, these payments will not reduce the applicable limits of insurance, but only if the applicable "underlying insurance" provides for such payments in addition to its limits of insurance. With respect to a claim we investigate or settle, or "suit" against an insured we defend under COVERAGE B – UMBRELLA LIABILITY, these payments will not reduce the applicable limits of insurance. SECTION II – WHO IS AN INSURED A.COVERAGE A – EXCESS FOLLOW-FORM LIABILITY With respect to Coverage A, the following persons and organizations qualify as insureds: 1.The Named Insured shown in the Declarations; and 2.Any other person or organization qualifying as an insured in the "underlying insurance". If you have agreed to provide insurance for that person or organization in a written contract or agreement: a.The limits of insurance afforded to such person or organization will be: (1)The amount by which the minimum limits of insurance you agreed to provide such person or organization in that written contract or agreement exceed the total limits of insurance of all applicable "underlying insurance"; or (2)The limits of insurance of this policy; whichever is less; and b.Coverage under this policy does not apply to such person or organization if the minimum limits of insurance you agreed to provide such person or organization in that written contract or agreement are wholly within the total limits of insurance of all available applicable "underlying insurance". B.COVERAGE B – UMBRELLA LIABILITY With respect to Coverage B: 1.The Named Insured shown in the Declarations is an insured. 2.If you are: © 2016 The Travelers Indemnity Company. All rights reserved.Page 14 of 22 EU 00 01 07 16 UMBRELLA b.You have paid all premiums due for this policy at the time you make such request; c.You promptly pay the additional premium we charge for the Extended Reporting Period endorsement for this insurance when due. We will determine that additional premium after we have received your request for the Extended Reporting Period endorsement for this insurance. That additional premium is not subject to any limitation stated in the "underlying insurance" on the amount or percentage of additional premium that may be charged for the "extended reporting period" in such "underlying insurance"; and d.That Extended Reporting Period endorsement is issued by us and made a part of this policy. 3.Any Extended Reporting Period endorsement for this insurance will not reinstate or increase the Limits of Insurance or extend the policy period. 4.Except with respect to any provisions to the contrary contained in Paragraphs 1., 2. or 3. above, all provisions of any option to purchase an "extended reporting period" granted to you in the "underlying insurance" apply to this insurance. J.INSPECTIONS AND SURVEYS 1.We have the right but are not obligated to: a.Make inspections and surveys at any time; b.Give you reports on the conditions we find; and c.Recommend changes. 2.Any inspections, surveys, reports or recommendations relate only to insurability and the premiums to be charged. We do not make safety inspections. We do not undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. We do not warrant that conditions: a.Are safe or healthful; or b.Comply with laws, regulations, codes or standards. K.LEGAL ACTION AGAINST US 1.No person or organization has a right under this insurance: a. To join us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b.To sue us on this insurance unless all of its terms have been fully complied with. 2.A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured. We will not be liable for damages that: a.Are not payable under the terms of this insurance; or b.Are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. L.MAINTENANCE OF UNDERLYING INSURANCE 1.The insurance afforded by each policy of "underlying insurance" will be maintained for the full policy period of this Excess Follow- Form And Umbrella Liability Insurance. This provision does not apply to the reduction or exhaustion of the aggregate limit or limits of such "underlying insurance" solely by payments as permitted in Paragraphs 4.a.(1), (2) and (3) of COVERAGE A – EXCESS FOLLOW-FORM LIABILITY of SECTION I – COVERAGES. As such policies expire, you will renew them at limits and with coverage at least equal to the expiring limits of insurance. If you fail to comply with the above requirements, Coverage A is not invalidated. However, in the event of a loss, we will pay only to the extent that we would have paid had you complied with the above requirements. 2.The first Named Insured shown in the Declarations must give us written notice of any change in the "underlying insurance" as respects: a.Coverage; b.Limits of insurance; c.Termination of any coverage; or d.Exhaustion of aggregate limits. 3.If you are unable to recover from any "underlying insurer" because you fail to comply with any term or condition of the "underlying insurance", Coverage A is not invalidated. However, we will pay for any loss only to the extent that we would have paid had you complied with that term or condition in that "underlying insurance". M.OTHER INSURANCE This insurance is excess over any valid and collectible "other insurance" whether such "other insurance" is stated to be primary, contributing, UMBRELLA © 2016 The Travelers Indemnity Company. All rights reserved.EU 00 01 07 16 Page 15 of 22 UMBRELLA excess, contingent or otherwise. This provision does not apply to a policy bought specifically to apply as excess of this insurance. However, if you specifically agree in a written contract or agreement that the insurance provided to any person or organization that qualifies as an insured under this insurance must apply on a primary basis, or a primary and non-contributory basis, then insurance provided under Coverage A is subject to the following provisions: 1.This insurance will apply before any "other insurance" that is available to such additional insured which covers that person or organization as a named insured, and we will not share with that "other insurance", provided that the injury or damage for which coverage is sought is caused by an "event" that takes place or is committed subsequent to the signing of that contract or agreement by you. 2.This insurance is still excess over any valid and collectible "other insurance", whether primary, excess, contingent or otherwise, which covers that person or organization as an additional insured or as any other insured that does not qualify as a named insured. N.PREMIUM 1.The first Named Insured shown in the Declarations is responsible for the payment of all premiums and will be the payee for any return premiums. 2.If the premium is a flat charge, it is not subject to adjustment except as provided in Paragraph 4. below. 3.If the premium is other than a flat charge, it is an advance premium only. The earned premium will be computed at the end of the policy period, or at the end of each year of the policy period if the policy period is two years or longer, at the rate shown in the Declarations, subject to the Minimum Premium. 4.Additional premium may become payable when coverage is provided for additional insureds under the provisions of SECTION II – WHO IS AN INSURED. O.PREMIUM AUDIT The premium for this policy is the amount stated in Item 5. of the Declarations. The premium is a flat charge unless it is specified in the Declarations as adjustable. P.PROHIBITED COVERAGE – UNLICENSED INSURANCE 1.With respect to loss sustained by any insured in a country or jurisdiction in which we are not licensed to provide this insurance, this insurance does not apply to the extent that insuring such loss would violate the laws or regulations of such country or jurisdiction. 2.We do not assume responsibility for: a.The payment of any fine, fee, penalty or other charge that may be imposed on any person or organization in any country or jurisdiction because we are not licensed to provide insurance in such country or jurisdiction; or b.The furnishing of certificates or other evidence of insurance in any country or jurisdiction in which we are not licensed to provide insurance. Q.PROHIBITED COVERAGE – TRADE OR ECONOMIC SANCTIONS We will provide coverage for any loss, or otherwise will provide any benefit, only to the extent that providing such coverage or benefit does not expose us or any of our affiliated or parent companies to: 1.Any trade or economic sanction under any law or regulation of the United States of America; or 2.Any other applicable trade or economic sanction, prohibition or restriction. R.REPRESENTATIONS By accepting this insurance, you agree: 1.The statements in the Declarations and any subsequent notice relating to "underlying insurance" are accurate and complete; 2.Those statements are based upon representations you made to us; and 3.We have issued this insurance in reliance upon your representations. S.SEPARATION OF INSUREDS Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this policy to the first Named Insured shown in the Declarations, this insurance applies: 1.As if each Named Insured were the only Named Insured; and 2.Separately to each insured against whom claim is made or "suit" is brought. © 2016 The Travelers Indemnity Company. All rights reserved.Page 16 of 22 EU 00 01 07 16 UMBRELLA T.WAIVER OR TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US 1.If the insured has rights to recover all or part of any payment we have made under this insurance, those rights are transferred to us and the insured must do nothing after loss to impair them. At our request, the insured will bring suit or transfer those rights to us and help us, and with respect to Coverage A, the "underlying insurer", enforce them. If the insured has agreed in a contract or agreement to waive that insured's right of recovery against any person or organization, we waive our right of recovery against that person or organization, but only for payments we make because of an "event" that takes place or is committed subsequent to the execution of that contract or agreement by such insured. 2.Reimbursement of any amount recovered will be made in the following order: a.First, to any person or organization (including us or the insured) who has paid any amount in excess of the applicable limit of insurance; b.Next, to us; and c.Then, to any person or organization (including the insured and with respect to Coverage A, the "underlying insurer") that is entitled to claim the remainder, if any. 3.Expenses incurred in the process of recovery will be divided among all persons or organizations receiving amounts recovered according to the ratio of their respective recoveries. U.TRANSFER OF YOUR RIGHTS AND DUTIES UNDER THIS INSURANCE 1.Your rights and duties under this insurance may not be transferred without our written consent except in the case of death of an individual Named Insured. 2.If you die, your rights and duties will be transferred to your legal representative but only while acting within the scope of duties as your legal representative. Until your legal representative is appointed, anyone having proper temporary custody of your property will have your rights and duties but only with respect to that property. V.UNINTENTIONAL OMISSION OR ERROR The unintentional omission of, or unintentional error in, any information provided by you which we relied upon in issuing this policy will not prejudice your rights under this insurance. However, this provision does not affect our right to collect additional premium or to exercise our rights of cancellation or nonrenewal in accordance with applicable insurance laws or regulations. W.WHEN LOSS IS PAYABLE If we are liable under this insurance, we will pay for injury, damage or loss after: 1.The insured's liability is established by: a.A court decision; or b.A written agreement between the claimant, the insured, any "underlying insurer" and us; and 2.The amount of the "applicable underlying limit" or "self-insured retention" is paid by or on behalf of the insured. SECTION VI – DEFINITIONS A.With respect to all coverages of this insurance: 1."Applicable underlying limit" means the sum of: a.The applicable limit of insurance stated for the policies of "underlying insurance" in the Schedule Of Underlying Insurance subject to the provisions in Paragraphs 4.a.(1), (2) and (3) of COVERAGE A – EXCESS FOLLOW-FORM LIABILITY of SECTION I – COVERAGES; and b.The applicable limit of insurance of any "other insurance" that applies. The limits of insurance in any policy of "underlying insurance" will apply even if: a.The "underlying insurer" claims the insured failed to comply with any term or condition of the policy; or b.The "underlying insurer" becomes bankrupt or insolvent. 2."Auto hazard" means all "bodily injury" and "property damage" to which liability insurance afforded under an auto policy of "underlying insurance" would apply but for the exhaustion of its applicable limits of insurance. 3."Electronic data" means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software (including systems and applications software), hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 4."Event" means an "occurrence", offense, accident, act, error, omission, wrongful act or loss. POLLUTION AND CONTRACTORS PROFESSIONAL LIABILITY RP 10 00 11 21 ª 2021 The Travelers Indemnity Company. All rights reserved. Page 21 of 37 Professional's Liability Coverage and any Contractors Indemnity For Subcontractor's Pollution Liability Coverage, no "named insured" can agree in a contract or agreement to: a. Waive any "named insured's" right of recovery against any "design professional" or "specified sub- contractor"; or b. Limit the liability of the "design professional" or "specified sub- contractor" to a maximum amount unless such limitation is an "authorized agreed limitation of liability". At our request, the "insured" will bring suit or initiate an alternative dispute resolution proceeding to enforce those rights or will help us enforce them. We will apply any amounts recovered in enforcing those rights of recovery in the following order until the total amount recovered is used up: a. We will reimburse any person or organization, including us or the "insured", any amount that person or organization has paid in excess of the limits of insurance. b. We will retain an amount equal to the amount we have paid under this policy. c. We will pay to the "insured" any remaining portion, including any amounts within any applicable deductible or self-insured retention. If any amounts are recovered in enforcing those rights of recovery, reasonable expenses incurred in enforcing such rights will be shared among all persons or organizations receiving amounts recovered. Each such person's or organization's share of those expenses is based on the ratio of its amount recovered to the total amounts recovered by all such persons or organizations in enforcing such rights. If the "insured" has agreed in a contract or agreement to waive that "insured's" right of recovery against any person or organization, we waive our right of recovery against such person or organization, but only for payments we make for: a. "Loss" to which any of the following applies caused by an act, error or omission committed subsequent to the execution of the contract or agreement: (1) Any Contractors Professional Liability Coverage; or (2) Any Contractors Professional Liability Loss Mitigation Expenses Coverage; b. "Loss" to which any "Pollution Liability Coverage" applies resulting from "pollution conditions" that commence subsequent to the execution of the contract or agreement; or c. "Loss" to which any Contractors Pollution Loss Mitigation Expenses Coverage applies resulting from "faulty work incidents" that are not first discovered by any "insured" until subsequent to the execution of the contract or agreement. SECTION IX - DEFINITIONS 1. "Agreed mediation": a. Means a voluntary and non-binding process that: (1) Is agreed to by us; and (2) Involves a qualified professional mediator facilitating an attempted settlement of the "claim" between the "insured" and the person or organization making the "claim". b. Does not include any mediation or alternative dispute resolution that is: (1) Ordered or imposed by a court; or (2) Otherwise legally required. 2. "Asbestos pollution conditions": a. Means any "pollution conditions" that are: (1) The disturbance of asbestos or asbestos fibers if the "pollution conditions" result from any activity that is performed on behalf of any "named insured" by a subcontractor under a written contract or agreement with such "named insured"; or (2) The inadvertent disturbance of asbestos or asbestos fibers if the "pollution conditions" do not result from any activity that is performed on behalf of any "named insured" by a sub- contractor under a written contract or agreement with such "named insured". As used in this provision, inadvertent disturbance does not include any discharge, dispersal, seepage, migration, release or escape of asbestos or asbestos fibers during or as a result of asbestos abatement operations or any other operations to test for, monitor, clean up, POLLUTION AND CONTRACTORS PROFESSIONAL LIABILITY Page 28 of 37 ª 2021 The Travelers Indemnity Company. All rights reserved. RP 10 00 11 21 described in Paragraphs (a)(i) or (ii) above; or (b) "Property damage" to, or "pollution clean-up costs" for, property: (i) Owned, occupied or used by; or (ii) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by; any "named insured" or any of its "employees", any "named insured's" partners or members (if it is a partnership or joint venture), or any "named insured's" members (if it is a limited liability company). For the purposes of any Contractors Professional Liability Coverage, this exclusion does not apply to "property damage" to any premises, site or location that is temporarily rented or occupied by, or temporarily loaned to, the "named insured" exclusively for any job site where operations are being performed by or on behalf of such "named insured" that are part of such "named insured's" contractor business. For the purposes of any Contractors Pollution Liability Coverage and any Contractors Asbestos Pollution Liability Coverage, this exclusion does not apply to "property damage" to, or "pollution clean-up costs" for, any premises, site or location that is temporarily rented or occupied by, or temporarily loaned to, the "named insured" exclusively for any job site where "covered operations" are being performed; d. Only for the purposes of: (1) Any Contractors Professional Liability Coverage, and only with respect to the conduct of the "named insured's" contractor business; and (2) Any Contractors Pollution Liability Coverage, any Contractors Asbestos Pollution Liability Coverage, and any Non-Owned Disposal Site Pollution Legal Liability Coverage if the "non-owned disposal site pollution conditions" are "contractor waste non-owned disposal site pollution conditions", and only with respect to the conduct of "covered operations" for the "named insured's" business; the following persons or organizations: (1) The "named insured's" former or retired partners who are individuals and whom such "named insured" hires or retains as independent contractors in a contract or agreement with that former or retired partner if such "named insured" is designated in the Travelers ECP Custom Declarations as a partnership, but only for their performance of duties under such contract or agreement; (2) The "named insured's" former or retired members who are individuals and whom such "named insured" hires or retains as independent contractors in a contract or agreement with that former or retired member if such "named insured" is designated in the Travelers ECP Custom Declarations as a limited liability company but only for their performance of duties under such contract or agreement; and (3) The "named insured's" former or retired "employees" that such "named insured" hires or retains as independent contractors in a contract or agreement with that former or retired "employee" but only for their performance of duties under such contract or agreement. However, none of these "employees" are "insureds" for: (a) "Loss" because of "bodily injury" described in Paragraph c.(7)(a) above; or (b) "Property damage" or "pollution clean-up costs" described in Paragraph c.(7)(b) above; and e. Only for the purposes of: (1) Any Contractors Pollution Liability Coverage; (2) Any Contractors Asbestos Pollution Liability Coverage; and (3) Any Non-Owned Disposal Site Pollution Legal Liability Coverage if the "non-owned disposal site pollution conditions" are "contractor POLLUTION AND CONTRACTORS PROFESSIONAL LIABILITY RP 10 00 11 21 ª 2021 The Travelers Indemnity Company. All rights reserved. Page 29 of 37 waste non-owned disposal site pollution conditions"; any person or organization that the "named insured" agreed in a written contract or agreement to include as an additional insured under this insurance. However, such person or organization is an "insured" only for "bodily injury", "property damage" or "pollution clean-up costs" arising out of "covered operations" performed by or on behalf of any "named insured" and only to the extent that the "pollution conditions" are caused by acts or omissions of any "named insured" or any of such "named insured's" subcontractors. Also, the insurance provided to such person or organization is subject to the following provisions: (1) The limits of insurance provided to such person or organization will be the minimum limits which the "named insured" agreed to provide in the written contract or agreement, or the limits shown in the Travelers ECP Custom Declarations, whichever are less. (2) The insurance provided to such person or organization does not apply to any: (a) "Bodily injury", "property damage" or "pollution clean-up costs" resulting from: (i) "Pollution conditions" that commenced before the written contract or agreement was signed by the "named insured"; or (ii) "Pollution conditions", or any incident, condition or other circumstance which could become "pollution conditions", that was known, or reasonably should have been known, by such person or organization or by any of that organization's employees, and that was not previously disclosed to a "responsible person" before the written contract or agreement was signed by the "named insured"; or (b) "Bodily injury", "property damage" or "pollution clean-up costs" arising out of any "named insured's" operation, maintenance, or use of equipment rented or leased from that person or organization if the "pollution conditions" commenced after the equipment lease expires. 39. "Insured contract" means that part of any contract or agreement pertaining to "covered operations" or "your contractor professional services" under which the "named insured" assumes the "tort liability" of another to pay "loss" sustained or incurred by others. 40. "Lead pollution conditions" means any "pollution conditions" that are the discharge, dispersal, seepage, migration, release or escape of lead, lead compounds or any material or substance that contains or incorporates lead. 41. "Leased worker": a. Means a person hired from a labor leasing firm under an agreement between the hirer and that firm to perform duties related to the conduct of the hirer's business. b. Does not include a "temporary worker". 42. "Loading or unloading" means the handling of property: a. After it is moved from the place where it is accepted for movement into or onto an "auto", aircraft or watercraft or into or onto a wheeled vehicle designed for travel on railroad tracks; b. While it is in or on an "auto", aircraft or watercraft or in or on a wheeled vehicle designed for travel on railroad tracks; or c. While it is being moved from an "auto", aircraft or watercraft or from a wheeled vehicle designed for travel on railroad tracks to the place where it is finally delivered; but "loading or unloading" does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the "auto", aircraft or watercraft or to the wheeled vehicle designed for travel on railroad tracks. 43. "Loss" means: a. For the purposes of any Contractors Professional Liability Coverage: (1) Compensatory damages; and (2) Punitive or exemplary damages if such damages are insurable under applicable law. POLLUTION LIABILITY Page 8 of 10 ª 2021 The Travelers Indemnity Company. All rights reserved. RP 10 02 10 21 3. Other Insurance a. As used anywhere in this policy, other insurance means insurance, or the funding of losses, that is provided by, through or on behalf of: (1) Another insurance company; (2) Us or any of our affiliated insurance companies; (3) Any risk retention group; or (4) Any self-insurance method or program, in which case the "insured" will be deemed to be the provider of other insurance. Other insurance does not include umbrella insurance, or excess insurance, that was bought specifically to apply in excess of the Limits of Insurance shown for this insurance in the Travelers ECP Custom Declarations. b. If valid and collectible other insurance is available to the "insured" for a loss covered under this insurance, our obligations are limited as follows: (1) This insurance is primary except when Paragraph (2) below applies. When this insurance is primary: (a) If any other insurance is issued to any "named insured" by us, or any of our affiliated insurance companies, this insurance is primary to that other insurance, and we will not share with that other insurance; and (b) If any other insurance not described in Paragraph (a) above is also primary, we will share with all that other insurance as follows: (i) If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each provider of insurance contributes equal amounts until it has paid its applicable limit of insurance or none of the "loss" remains, whichever comes first. (ii) If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, the share of each provider of insurance is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all providers of insurance. (2) This insurance is excess over any valid and collectible other insurance, whether such other insurance is primary, excess, contingent or on any other basis: (a) If the "pollution conditions" that caused the "loss" are "auto transportation pollution conditions"; (b) That only covers one or more projects specifically described in it. This paragraph does not apply to any other insurance that is available to any person or organization that: (i) Is an "insured" under Paragraph e. of the definition of "insured"; or (ii) Is an "insured" under any additional insured endorsement issued by us as part of this policy; (c) That is available to the "insured" when the "insured" is an additional insured, or is any other insured that does not qualify as a named insured, under such other insurance; or (d) That is available to any person or organization that: (i) Is an "insured" under Paragraph e. of the definition of "insured"; or (ii) Is an "insured" under any additional insured endorsement issued by us as part of this policy. However, if the "named insured" specifically agrees in a written contract or agreement that the insurance provided to such person or organization must apply on a primary basis, or a primary and non- contributory basis, this insurance is primary to other insurance that is available to such person or organization which covers that person or organization as a named insured, and we will not share with that other insurance, provided that the "bodily injury", "property damage" or "pollution clean-up costs" for POLLUTION LIABILITY RP 10 02 10 21 ª 2021 The Travelers Indemnity Company. All rights reserved. Page 9 of 10 which coverage is sought result from "pollution conditions" that commence after the written contract or agreement was signed by the "named insured". (3) When this insurance is excess, we will have no duty to defend the "insured" against any "claim" if any provider of other insurance has a duty to defend the "insured" against that "claim". But we will have the right to associate in the defense and control of any "claim" that we reasonably believe is likely to involve this insurance. If no provider of other insurance defends any "claim" for "loss" to which this insurance applies, we will undertake to do so, but we will be entitled to the "insured's" rights against all those providers of other insurance. (4) When this insurance is excess, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and self-insured amounts under all such other insurance. SECTION IV - DEFINITIONS 1. "Applicable Retroactive Date For Contractors Pollution Liability Coverage" means: a. The Retroactive Date For Contractors Pollution Liability Coverage stated in the Travelers ECP Custom Declarations, except when Paragraph b., c., d., e. or f. below applies. Paragraph b., c., d., e. or f. below applies only if coverage for the "loss" described in that paragraph is included in this form and the retroactive date described in that paragraph is stated in the Travelers ECP Custom Declarations. If no Retroactive Date For Contractors Pollution Liability Coverage is stated in the Travelers ECP Custom Declarations, that retroactive date will be deemed to be the first day of the "policy period". b. Any Auto Transportation Pollution Conditions Contractors Pollution Liability Retroactive Date stated in the Travelers ECP Custom Declarations if the "pollution conditions" that caused the "loss" are "auto transportation pollution conditions". c. Any Fungi Or Bacteria Conditions Retroactive Date stated in the Travelers ECP Custom Declarations if the "pollution conditions" that caused the "loss" are "fungi or bacteria conditions". d. Any Lead Pollution Conditions Retroactive Date stated in the Travelers ECP Custom Declarations if the "pollution conditions" that caused the "loss" are "lead pollution conditions". e. Any Low-Level Radioactivity Pollution Conditions Retroactive Date stated in the Travelers ECP Custom Declarations if the "pollution conditions" that caused the "loss" are "low-level radioactivity pollution conditions". f. Any Silica Pollution Conditions Retroactive Date stated in the Travelers ECP Custom Declarations if the "pollution conditions" that caused the "loss" are "silica pollution conditions". If more than one retroactive date in Paragraph b., c., d., e. or f. above applies, "applicable Retroactive Date For Contractors Pollution Liability Coverage" means the latest of such retroactive dates. 2. "Contractors Pollution Liability Coverage": a. Means Contractors Pollution Liability Coverage. b. Includes Contractors Pollution Liability coverage that is part of any policy that provides Contractors Pollution Liability coverage and any other coverage. 3. "Coverage territory" means anywhere in the world. 4. "Financial interest" means the insurable interest in a "foreign insured organization" because of: a. Sole ownership of, or majority ownership interest in, such "foreign insured organization", either directly or through one or more intervening subsidiaries; b. Indemnification of, or an obligation to indemnify: (1) Such "foreign insured organization" for a "foreign pollution legal liability loss" or "foreign emergency response costs loss"; or Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 1 of 12 ON-CALL PUBLIC WORKS CONTRACT WITH SYSERCO, INC 1. PARTIES This On-Call Public Works Contract (“Contract”) is made by and between the City of Cupertino, a municipal corporation (“City”), and Syserco, Inc (“Contractor”) a Corporation for Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center, 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, 2023 (“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. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 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 a total amount that will based upon actual costs but that will be capped so as not to exceed $60,000.00 (“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 the 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): B, 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. 5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Contract and any similar federal or state taxes. Contractor Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 3 of 12 and any of its employees, agents, and subcontractors shall not have any claim under this Contract or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Contract, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Contract are not greater than they would have been had the determination not been made. 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 qualified subcontractors to perform up to 25% 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. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 4 of 12 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 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. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 5 of 12 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 li mited 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: 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 Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 6 of 12 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 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.” Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 7 of 12 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. 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 Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 8 of 12 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; (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; Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 9 of 12 (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 Ken Tanase 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 Parham Ostadi 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 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 Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 10 of 12 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 th e 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. 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. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 11 of 12 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: Ken Tanase Email: kent@cupertino.org To Contractor: Syserco, Inc 215 Fourier Ave. Fremont, CA 94539 Attention: Parham Ostadi Email: p.ostadi@syserco.com 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. SIGNATURES CONTINUE ON THE FOLLOWING PAGE Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 12 of 12 IN WITNESS WHEREOF, the parties have caused the Contract to be executed. CITY OF CUPERTINO A Municipal Corporation By Name Title Date SYSERCO, INC By Name Title Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Majd Khleif CEO Nov 5, 2021 Majd Khleif Christopher D. Jensen Nov 5, 2021 Director of Public Works Roger Lee Nov 5, 2021 Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Preventative Maintenance This Service and Support Program will include the following scopes of services to be provided for the equipment contained within your Facility. System Level Preventive Maintenance Routines: Preventative Maintenance Routines save energy, extends mechanical equipment lifespan, and reduces downtime. The Preventative Maintenance Routines as defined within this section shall be executed by Syserco’s trained professionals to ensure that your facility operates optimally. Syserco will perform System Diagnostics through a combination of onsite and remote access via our Service Response Center. This preventative maintenance routine during the 2021-2022 period will be performed on an annual basis. x Review Site Log: o Each Preventative Maintenance routine begins with a review of your site log so that ongoing issues can be noted and the root cause addressed. x Review Network Workstations / Communication: o Verify Server Communication with all Global Controllers. o Review automation system for CRITICAL and OFF-LINE status indicators. x Perform System Analysis of EMS Software: o Record current version of EMS Software relative to user needs and versions supported. o User Account Analysis of EMS Software relevant towards system security and troubleshooting purposes. x Review Global Controllers Operation: o Accurate and reliable operation of the Global Controllers is key to the successful operation of your facility. o ROC File Version is verified against most recent version and known system issues. o The DDC Program is verified to be running. o System Date/Time settings are verified. o Each Global Controller shall be diagnosed to ensure adequate memory is available to perform trending, alarming and other system tasks to prevent slow speed of response and data loss. o Review the number of global controller restarts to identify excessive faults, stability of onsite power and controller reliability. x Identify overridden points: o Overridden points can increase energy consumption, create comfort and safety issues. o Overridden points will be documented and a remediation plan will be discussed with the customer. x Review Alarm Log: o Points generating excessive alarms will be noted. o The technician will make recommendations to address root cause hardware or software issues causing alarms. x Review Schedules: o Review equipment operation schedules and identify any anomalies. o The technician will make recommendations to address issues causing discrepancies with system operation. x Perform General System Operational Review: o While onsite and performing the above Preventative Maintenance routines the Service Technician will review the system holistically from the Graphic Workstation and ensure the EMS control system is operating as desired. o Any discrepancies or areas of concern will be noted. x Network Analysis EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Disaster Recovery: The electronic information stored within your system represents a significant part of your investment. In the event of a catastrophic system failure, these backups allow us to completely restore your system to the last backup state. During each Preventative Maintenance visit, Syserco will perform a full system backup. Two copies of this backup will be made. One will be maintained onsite at your facility and the second archived securely offsite. Corrective Action Implementation (PM): After completing the Preventative Maintenance routine, Syserco will provide 1 (one) day of labor for each PM period (1 total days) to remediate any identified deficiencies that the Syserco Team deems critical to the operation of your system or require immediate attention. If the identified deficiencies require more labor than allotted, corrective options will be discussed during the Preventative Maintenance review with your Service Account Manager. Customer Support Syserco’s Customer Support Services assist you and your staff in running your facility more efficiently and in fully utilizing the power of your Energy Management System. Operator Support and Coaching: Our system experts will work with your staff to ensure that your operators are properly utilizing the control system to maximize energy savings and occupant comfort. Syserco will provide 2 (two) of pre-scheduled Operator Support to assist your staff in modifying the system, identifying, verifying, and resolving issues found and/or providing supplemental training. This pre- allocated time allows you to control your operating budget while meeting your facility’s changing needs. Suggestions for this scope depending upon owners’ explicit needs may include: x Site Specific Training x Program Modifications x Implementation of Advanced Control Strategies x Graphics Modifications x Hardware Changes x Minor Control System Modifications x Other Owner-Directed Services Emergency Response Services Online Technical Support: Syserco provides our Service and Support Program customers with access to a Service Response Center staffed with Factory – Trained Automation Service Technicians during Normal Working Days between the hours of 7 AM and 4 PM. This service provides you with a direct line to skilled technicians who can provide you immediate assistance in analyzing problems and recommending solutions via telephone or an Internet connection to your facility. This service often eliminates the need for costly emergency onsite visits, saving you time and money. This agreement includes online response to assist with emergencies and troubleshooting based upon historical usage for this and similar type facilities. In the event usage exceeds historical norms, Syserco reserves the right to adjust pricing to reflect actual usage. x The direct phone number for the Service Response Center is 877-360-3637 x Preferred Response: o Response window 7 AM to 4 PM regular Business Days. o Online/Phone response within 4 hours. o If an emergency site visit is required, we will be onsite by the Second Business Day for calls received prior to 1 PM. x Non-emergency issues as determined by your staff and ours, will be scheduled for the next available business day. x Labor and materials for all Emergency onsite response that occurs outside of normally scheduled service visits will be billed at your discounted T&M rate. EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Service Delivery & Discounts At Syserco, we are focused on providing the highest levels of customer service and support. To achieve this, we have implemented a multi-tiered approach to service and quality assurance to ensure we deliver on this goal. Dedicated Service Team: Syserco assigns a dedicated team to manage your complete service experience. This team consists of an Account Executive, a Service Account Manager and at least two technicians. This dedicated Factory – Trained Service Team not only knows automation systems, but they know your site and its standards. Because of this working knowledge, we can quickly diagnose and solve control problems, thus saving hours of labor that would be required by someone less familiar with your energy management system. Quality Assurance: To ensure that our services are of the highest quality, Syserco utilizes a structured Quality Assurance and Customer Satisfaction System. Our team will meet with you on a regular basis to discuss our performance and your satisfaction with the services provided. These regular meetings are augmented with a formal “Customer Satisfaction Score Card” where you are given a chance to give direct feedback on the service you are provided. Service Work-Order Documentation: All scheduled service visits include complete documentation of the services provided, findings of the technician and recommendations for improvement. Unscheduled service visits (T&M or Emergency response) will be documented by a work order form detailing the services performed, materials used, and hours spent. Discount on Labor: As a Service and Support Program customer you are entitled to a 20% discount off our standard non-Service and Support Program Time & Material labor rates. These hourly rates apply to work beyond the scope of your Service and Support Program, including system modifications, emergency response, additional training, etc. Labor rates are published and revised annually. 2021 T&M Rates - Bay Area (Service and Support Program, 20% Discount): Trade Straight Time Overtime Double Time Service Technician $192 $269 $355 Service Account Manager $219 $307 $406 Sr. Automation Engineer $216 $302 $399 Data Scientist $216 $302 $399 2021 Electrician Rates: Trade Straight Time Overtime Double Time Journeyman ( San Francisco / Santa Clara) $205 $288 $373 Foreman (San Francisco / Santa Clara $226 $316 $418 Journeyman (All other bay) $187 $262 $346 Discount on Material: As a Service and Support Program customer, you will receive a 60% discount off the Alerton, Delta, and Veris published list price schedule for parts and software sales and a 55% discount off the Belimo list price schedule. EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Dedicated Service Team A major benefit of a Syserco Service and Support Program derives from having our Factory-Trained automation professionals familiar with your facility and its systems. The Service Team assigned to your facility are specialists in maintaining and troubleshooting your significant investment. This team includes an Account Executive, a Service Account Manager, Primary and Secondary Service Technicians. The following team members will be dedicated to providing services within your facility: x Director of Service Operations – Anthony Khaymovich: The Director of Service Operations is a key member of the executive team responsible for overseeing the daily operation of the entire service support team. They manage the team of technical support professionals to ensure we are providing our best customer satisfaction while we deliver world class support services to our service support program clients. x Service Account Executive: Your Service Account Executive works with you and your team to identify your strategic business objectives and craft custom solutions to help you meet them. They work with the Syserco Service Team to ensure service is provided in accordance with this contract and that it continues to meet your needs. Annually, the Account Executive will conduct a formal review of this agreement with your staff to discuss the services performed during the past year, to recommend improvements and options to enhance system performance, resolve operational problems, and modify our offerings as necessary to meet your changing needs and objectives. x Service Account Manager: The Service Account Manager is a core member of the executive team responsible for building on top of our existing support offerings and delivering a consistent and high level of customer loyalty. They are a technical resource who understands the nuances of working at your site, assists with scheduling the service specialists, and works with the team and your staff on incremental system / facility improvements and upgrades. The Service Account Manager is responsible to ensure service is provided in accordance with this contract and to continually consult with you and your staff regarding your objectives and to assist in developing a plan to reach them. x Primary Service Technician: Your Primary Service Technician is a Factory – Trained Automation Technician. They are made familiar with your site, its systems and its procedures. They are assigned to execute your Preventative Maintenance Routines, Operator Coaching, and other contracted services. x Secondary Service Technician: To ensure depth of coverage, Syserco assigns a Secondary Technician who is cross trained by the Primary Technician in the specific intricacies of your site. In the event your Primary Service Technician is unavailable to provide scheduled service due to sickness, vacation, etc. the Secondary Technician acts as a backup to provide you seamless, continuous coverage. EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Signature Page & Pricing Summary By and Between: Syserco Inc. 215 Fourier Avenue Fremont, CA 94539 City of Cupertino Sports Complex 21111 Stevens Creek Blvd. Cupertino, CA 95014 Syserco shall provide the services as outlined in this proposal dated 9/22/21 and the following Terms and Conditions. Services shall be provided at: City of Cupertino Sports Complex 21111 Stevens Creek Blvd. Cupertino, CA 95014. The proposed pricing for these features is based upon a single-year program, billed quarterly in advance. This agreement shall remain in effect for an original term of two (2) year beginning 10/15/2021. This agreement may be modified at any time during the program period to meet the changing needs of your facility with a 60 day written notice to Syserco. Service and Support Program Pricing: Scope Item: Oct/21 to Oct/22 Oct/22 to Oct/23 Base Agreement $16,244 $16,853 Billing Cycle: Annual in advance Semi-Annual in advance (+1% of base price) Quarterly in advance (+1.5% of base price) Prices quoted in this proposal are valid for 30 days. By signature below this proposal is hereby accepted, Customer agrees to enter into the Service and Support Program (as described in the attached Terms and Conditions), and Syserco is authorized to proceed with the work. Accepted By: Submitted By: Ken Tanase Syserco Inc. 21111 Stevens Creek Blvd. 215 Fourier Ave. Cupertino, CA 95014 Fremont, CA 94539 Approved by (Signature): Submitted by (Signature): Approval Name: Name: Parham Ostadi Approver Title: Title Service Sales Specialist Approval Date: Date: 8/12/21 EXHIBIT A NOTE: $26,903.00 has been added to the compensation as an allowance for unforeseen work. Work shall be approved by the City prior to starting work. $16,244 Rate $192 $219 24 8 $16,853 Rate $199 $227 24 $4,781 8 $1,818 1 $4,341 4 $909 Preventative Maintenance Estimate Technical Support Estimate $6,599 $5,250 Owner Directed Estimate $5,005 Service account manager $227 Tech Support Online $4,341 Prevantative maintenance Estimated Site Hours $199 Service account manager $227 Year 2 total Owner Directed Technician Hours 16 $3,187 Service account manager 8 $1,818 10/15/22‐10/14/23 Added 3.75% escalation Item Hours Subtotal Tech Support Online 1 $4,184 $4,184 Service account manager 4 $219 $876 Service account manager $219 $1,752 Technical Support Estimate $5,060 Preventative Maintenance Estimate $6,360 Prevantative maintenance Estimated Site Hours $192 $4,608 Service account manager 8 $1,752 Owner Directed Technician Hours 16 $3,072 Owner Directed Estimate $4,824 Item Hours Subtotal Total Notes Service Agreement ‐ Cost Analysis:City of Cupertino Sports Complex 10/15/21‐10/14/22 Year 1 total EXHIBIT A CITY OF CUPERTINO MASTER AGREEMENT CONSULTANT SERVICES SERVICE ORDER NO. MA Date:Master Agreement Contract #: Maximum Compensation: Consultant:Firm Name: Address: Contact: 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: Public Works Project Manager: Fiscal/Budget : SO Acc't #:PO #: Project #:Date: Approvals Signatures: 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: Encumbrance this Service Order: MA End Date: Consultant/ Contractor Manager/ Supervisor: Management Analyst Master Agreement Maximum Compensation: Master Agreement Unencumbered Balance: Total Previously Encumbered to Date: City of Cupertino Master Agreement Service Order 191002 Exhibit B n Choose Insurance Requirements for On-Call Public Works Construction Contracts - $60,000 Version: Jan. 2021 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. ☒ N/A if box checked (Project does not involve construction or improvements/installations to property). ON-CALL PUBLIC WORKS CONSTRUCTION CONTRACTS Small Projects - $60,000 Insurance Requirements: Exhibit C Insurance Requirements for On-Call Public Works Construction Contracts - $60,000 Version: Jan. 2021 2 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 building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Insurance Requirements for On-Call Public Works Construction Contracts - $60,000 Version: Jan. 2021 3 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 must be issued by insurers acceptable to City and licensed to do business in the State of California, and each insurer must have an A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VII” or better. 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. 1325217.1 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 9/3/2021 License # 0G66614 (925) 226-7350 (925) 226-7380 20478 Syserco, Inc. 215 Fourier Avenue Fremont, CA 94539 20443 35289 20044 20494 31127 A 1,000,000 X X 5095094915 3/1/2021 3/1/2022 100,000 15,000 1,000,000 2,000,000 2,000,000 1,000,000B X X 6017012588 3/1/2021 3/1/2022 10,000,000C 6080526167 3/1/2021 3/1/2022 10,000,000 10,000 D X SYWC245465 3/1/2021 3/1/2022 1,000,000 Y 1,000,000 1,000,000 E Installation Floater 6012450485 3/1/2021 Per Occurrence 1,200,000 F E&O w/ Pollution 6017133377 3/1/2021 3/1/2022 Each Claim / Agg 5,000,000 Re: ON-CALL PUBLIC WORKS, dates: 09/15/2021 - 09/15/2023. The city of Cupertino, its city council, officers, officials, employees, agents, servants and volunteers are additional insured to the extent provided in the attached form. Primary wording to the extent provided in the attached form. Waiver of Subrogation applies to General Liability, Automobile Liability and Workers Compensation, to the extent provided in the attached form. City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 SYSERCO-01 INSUSERVE One Risk Group, LLC DBA: One Risk Management & Insurance Services 6701 Koll Center Parkway, Suite 350 Pleasanton, CA 94566 Certificates@oneriskgroup.com National Fire Insurance Co of Hartford Continental Casualty Company Continental Insurance Company Berkshire Hathaway Homestate Ins Co Transportation Insurance Company Columbia Casualty Company X 3/1/2022 X X X X X X X CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement This endorsement modifies insurance provided under the following : COMMERC IAL GE NERAL LI ABILITY COVERAGE PART It is understood and agreed as follows : I. WHO IS AN INSURED is amended to includ e as an Insured any person or organization whom you are required by written contract to add as an add iti onal insured on this coverage part, but on ly with respect to liability for bodily injury , property damage or personal and advertising injury ca used in whole or in part by your acts or omissions , or the acts or omissions of those acting on your beha lf: A. in the performan ce of your ongoing operations subject to such written contract; or B. in the performance of your work subject to such written contract, but on ly wi th respect to bodily injury or property damage in cl uded in the products-completed operations hazard , and only if: 1. the written contract requires you to provide the additiona l insu red s uch coverage ; and 2. this coverage part provides such coverage. II. But if the written contract requires: ~ A . additional insured coverage under the 11-85 edition , 10-93 edition , or 10-01 edition of CG20 10 , or under the 10- 01 ed ition of CG2037; or B. additional in su red coverage with "arising out of' language; or C. additi onal insured coverage to the greatest extent permissible by law; then paragraph I. above is deleted in its entirety and replaced by the following : WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are requ ired by written contract to add as an add itional in su red on this coverage part, but on ly with respect to liab ility fo r bodily injury, property dam age or per so nal and adve rti s ing injury arising out of your work that is subject to suc h written contract. Ill. Subject always to the terms and conditions of this policy, inclu ding the limits of insura nce , the Insurer wi ll not provide such additional in su red with : A. coverage broader than required by the written contract; or B . a higher limit of ins urance than required by the written contract. IV. The insu rance granted by this endorsement to the additional insured does not apply to bodily injury , property damage , or p e rsonal and advertising injury ari sing out of: A. the rendering of, or the failure to render , any professional architectu ral , enginee r ing , or survey ing services , includ ing: 1. the preparing , approving , or failing to prepare or approve maps , shop drawings , opinio ns , reports , surveys , field orders, change orders or drawings and specifications; and 2. supervisory , inspection , architectural or engineering activities ; or B. any premises or work fo r whic h the additional in su red is spec ifi cally listed as an additional insured on another endorse ment attache d to thi s coverage part. V. Under COMMERCIAL GENERAL LIABILITY CONDITIONS, the Cond ition entitled Other Insurance is amended to add the following , which supersedes any provision to the contrary in this Condition or elsewhe re in thi s coverage part: CNA75079XX (10-16) Page 1 of 2 Nat 'l Fire Ins Co of Hartford Insu red Name : SYSERCO ' INC . Policy No : 5095094 915 Endorsement No: 7 Effec tiv e Date: 03/01/2021 Copy right C NA All Righ ts Reserved . Inc lu d es copyrighted m aterial o f Insura nce Services Office , Inc • with its permission . CNA CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement Primary and Noncontributory In surance With respect to other insurance available to the additional insured under which the additional insured is a named insured , this insurance is primary to and w ill not seek contribution from such other insurance , provided that a written contract requires the insurance provided by thi s policy to be : 1. primary and non-contributing wi th other insurance available to the additional insured ; or 2. primary and to not seek contribution from any other insurance ava ilable to the additional ins ured . But except as specified above , this insurance will be excess of all other insurance available to the additional insured . VI. Solely with respect to the insurance granted by this endorsement , the section entitled CO MMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows : The Co nditi on entit led Duties In The Event of Occurrence, Offense, Claim or Suit is amend ed w ith the addition of the following : Any additional insured pursuant to this endorsement wi ll as soon as practicable : 1. give th e Insurer written notice of any c laim , or any occurrence or offense which may result in a c laim ; 2. send the Insurer copies of all legal papers received , and otherwise cooperate with the Insurer in the investigation , defense, or settlement of the c laim; and 3. make avail able any other insurance , and tender t he defense and indem nity of any c laim to any oth er insure r or se lf-insure r , whose pol icy or program applies to a loss that the In su rer covers under this coverage p art. However, if the written cont ract requires this insurance to be primary and non-contributory , this paragraph 3. does not apply to in surance on which the additional insured is a named insured. The Insurer has no duty to defend or indemnify an additional insured under this endorsement until the Insurer receives written notice of a claim from the additional insured . VII. Solely with re spect to the insurance granted by this endorsement, the sect ion entitled DEFINITIONS is amended to add the following definition : Writte n contract means a written con tract or written agreement that requires you to make a person or organization an additional insu red on this coverage part, provided the contract or agreement: A. is currently in effect or becomes effective during the term of this policy ; and B. was executed prior to: 1. the bodily injury or property damage; or 2. the offe nse that caused the personal and adv ertising injury ; for which the add itional insured seeks coverage . Any coverage granted by this endorse ment shall apply solely to the extent permiss ible by law. All other terms and co ndit ions of the Policy rema in unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers , takes effect on the effective date of said Policy at the hour stated in said Policy , unless another effective date is shown below , and expires concurrently with said Policy . CNA75079XX (10-16) Page 2 of2 Nat 'l Fire Ins Co of Hartford Ins ured Name : SYSERCO ' INC. Copyrig ht CNA All Rights Reserved Policy No : 5095094915 Endorsement No : 7 Effective Date : 03/01/2021 Includes copyrighted material o f Insurance Services Office, Inc .. with its permission . Syserco First Amendment for Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center Final Audit Report 2023-06-28 Created:2023-06-20 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAq537fpJEoIuufU9DW7gestbzT6y69LMu "Syserco First Amendment for Service, maintenance, repairs & I mprovements to the energy management system at Cupertino S ports Center" History Document created by City of Cupertino (webmaster@cupertino.org) 2023-06-20 - 10:15:43 PM GMT- IP address: 35.229.54.2 Document emailed to Jindy Garfias (jindyg@cupertino.org) for approval 2023-06-20 - 10:17:48 PM GMT Document approved by Jindy Garfias (jindyg@cupertino.org) Approval Date: 2023-06-21 - 2:05:56 AM GMT - Time Source: server- IP address: 174.85.68.51 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2023-06-21 - 2:05:59 AM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2023-06-21 - 3:47:41 PM GMT - Time Source: server- IP address: 73.170.104.117 Document emailed to Mariana Perez (contracts@syserco.com) for signature 2023-06-21 - 3:47:44 PM GMT Email viewed by Mariana Perez (contracts@syserco.com) 2023-06-26 - 8:41:12 PM GMT- IP address: 104.47.56.126 Document signing delegated to m.khleif@syserco.com m.khleif@syserco.com (m.khleif@syserco.com) by Mariana Perez (contracts@syserco.com) 2023-06-28 - 1:24:38 AM GMT- IP address: 172.112.200.30 Document emailed to m.khleif@syserco.com m.khleif@syserco.com (m.khleif@syserco.com) for signature 2023-06-28 - 1:24:39 AM GMT Email viewed by m.khleif@syserco.com m.khleif@syserco.com (m.khleif@syserco.com) 2023-06-28 - 3:34:15 PM GMT- IP address: 67.164.73.0 Document e-signed by m.khleif@syserco.com m.khleif@syserco.com (m.khleif@syserco.com) Signature Date: 2023-06-28 - 3:34:56 PM GMT - Time Source: server- IP address: 67.164.73.0 Document emailed to christopherj@cupertino.org for signature 2023-06-28 - 3:34:58 PM GMT Email viewed by christopherj@cupertino.org 2023-06-28 - 4:32:38 PM GMT- IP address: 104.47.73.254 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2023-06-28 - 4:33:22 PM GMT- IP address: 64.165.34.3 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2023-06-28 - 4:33:24 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Chad Mosley (chadm@cupertino.org) for signature 2023-06-28 - 4:33:27 PM GMT Email viewed by Chad Mosley (chadm@cupertino.org) 2023-06-28 - 5:26:41 PM GMT- IP address: 104.47.73.254 Document e-signed by Chad Mosley (chadm@cupertino.org) Signature Date: 2023-06-28 - 5:27:22 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2023-06-28 - 5:27:26 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2023-06-28 - 5:30:23 PM GMT- IP address: 104.28.111.133 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2023-06-28 - 8:00:56 PM GMT - Time Source: server- IP address: 67.188.176.248 Agreement completed. 2023-06-28 - 8:00:56 PM GMT