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21-214 O'Grady Paving, Inc., Lawrence Mitty Park ExcavationPublic Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 1 of 12 PUBLIC WORKS CONTRACT $60,000 OR LESS 1. PARTIES This public works contract (“Contract”) is made by and between the City of Cupertino (“City”), and O'Grady Paving, Inc, a Corporation (“Contractor”) for Lawrence Mitty Park Excavation, and is effective on the last date signed below (“Effective Date”). 2. 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 required for the Project (“Work”), as required in the Scope of Work, attached here and incorporated as Exhibit A, and in accordance with the terms and conditions of this Contract. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME FOR COMPLETION 3.1 Term. This Contract begins on the Effective Date and ends on December 31, 2021 (“Contract Time”) unless terminated earlier as provided herein. Contractor’s Work shall begin on the date shown on a written Notice to Proceed (“NTP”) and must be fully completed within the Contract Time or on the date specifically provided in the Notice to Proceed. The City Engineer will not issue a NTP until the Contract is fully executed by both parties and City has received satisfactory proof of insurance and any performance and payment bonds that may be required. The Director of Public Works may authorize the extension of the Contract Time by up to sixty (60) calendar days through a written amendment to this Agreement, provided such extension does not include additional contract funds. 3.2 Time is of the essence for Contractor’s performance and completion of the Work. Contractor must have sufficient time, resources, and qualified staff to deliver the work on time. 3.3 Liquidated damages of $200.00 will be charged for each day of unexcused delay, or City may deduct the amount from Contractor’s payments. Liquidated damages are based on reasonably foreseeable consequences of delay and may include intangible losses which the Parties agree may be difficult to ascertain, such as loss of public confidence in City and its contractors, interference or loss of use of public facilities, and extended disruption to the public. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 2 of 12 Work an amount that will based on actual costs but that will be capped so as not to exceed $5,000.00 (“Contract Price”), for all of Contractor’s direct and indirect costs, including all labor, materials, supplies, equipment, taxes, insurance, bonds, and all overhead costs. 4.2 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 as complete. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee of City. Contractor is solely responsible for the means and methods of performing the Work and for the persons under this employment. Contractor is not entitled to worker’s compensation or any other City benefits. 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): A- General Engineering; C12-Earthwork and Paving , 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 Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 3 of 12 subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made. 6. 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, provided that each subcontractor is required by contract to be bound by the provisions of this Contract. Contractor must provide City with written proof of compliance with this provision upon request. 9.2 City may reject any subcontractor of any tier and bar a subcontractor from performing Work on the Project, if City in its sole discretion determines that subcontractor’s Work falls short of the requirements of this Contract or constitutes grounds for rejection under the Public Contract Code. If City rejects a subcontractor, Contractor at its own expense must perform the subcontractor’s Work or hire a new subcontractor that is acceptable to City. A Notice of Completion must be recorded within fifteen (15) days after City accepts the Work if the Contract 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 Project. The reports must describe the Work and specific tasks performed, the number Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 4 of 12 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 r eview 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 consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, stop notices, actions, causes of action, demands, charges, losses 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, subcontractors or subcontractors; (c) Payment or nonpayment by Contractor or its subcontractors or sub-subcontractors for Work performed on or off the Project Site; and (d) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim, in accordance with California Public Contract Code Section 9201. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Contract. 11.3 Contractor’s duties under this entire Section 11 are not limited to Contract Price, Workers’ Compensation, or other employee benefits, or the insurance and bond coverage required in this Contract. Nothing in the Contract shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. 11.4 Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Contract, a purchase order or other transaction. Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 5 of 12 11.5 Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6 This Section 11 shall survive termination of the Contract. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit B. Contractor must provide satisfactory proof of insurance and maintain it for the Contract Time or longer as required by City. City will not execute the Contract until City has approved 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 at Contractor’s expense, deducting the costs from Contractor’s compensation, or terminating the Contract. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all 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 status of employees performing the Work, as required by the Immigration Reform and Control Act 13.2 Labor Laws. (a) The following provisions apply to contracts 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 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 Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 6 of 12 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.” 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. Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 7 of 12 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 sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Contractor, 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 Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating the Contract. City reserves all rights and remedies under the law and this Contract, including seeking indemnification. 14. BONDS For contracts of $25,000 or more, Contractor must obtain a payment bond and a performance bond, each in the penal sum of 100% of the Contract Price, using the Bond Forms attached and incorporated here as Exhibit C. 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 Contract. City will not execute the Contract nor issue the NTP 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 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 Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 8 of 12 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 contracts $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; (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. 16.2 These requirements must be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 9 of 12 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. City assigns Lisa Cameli as the City representative for all purposes under this Contract, with authority to require compliance with the Scope of Work. City may substitute Project Managers at any time and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Tom O'Grady as its single representative for all purposes under this Contract, with the responsibility to ensure progress with the Work. Contractor’s Project Manager is responsible for coordinating and scheduling the Work and must regularly update the City Project Manager about the status and any delays with the Work, consi stent with the Scope of Work. Any substitutions must be approved in writing by City. 18. ABANDONMENT AND TERMINATION 18.1 City may abandon or postpone the Project or parts therefor 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 the Work. With City’s pre-approval in writing, the time spent in closing out the Work 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. Nothing in the Section below is intended to delay, abridge or bar City’s right under this Section. 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 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. Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 10 of 12 21. SIGNS/ADVERTISEMENT 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 waiver of any breach shall not constitute waiver of another provision or breach. 24. WARRANTY Contractor warrants that materials and equipment used will be new, of good qualit y, and free from defective workmanship and materials, and that the Work will be free from material defects not intrinsic in the design or materials. All Work, materials and equipment should pass to City free of claims, liens or encumbrances. Contractor warrants the Work and materials for one year from the date of City’s acceptance of the Work as complete (“Warranty Period”), except when a longer guarantee is provided by a supplier, manufacturer or is required by this Contract. During the Warranty Period, Contractor will repair or replace any Work defects or materials, including damage that arises from Contractor’s Warranty Work, except any wear and tear or damage resulting from improper use or maintenance. 25. ENTIRE CONTRACT 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. 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. Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 11 of 12 28. INSERTED PROVISIONS Each provision and clause required by law to be inserted in this Contract will be deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. 29. CAPTIONS The captions, titles, and headings in this Contract are for convenience only and may not be used in the construction or interpretation of the Contract or for any other purpose. 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 and will be considered effective on the date of personal delivery, 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 cc: Representative/Coordinator: Lisa Cameli Email: LisaC@cupertino.org To Contractor: O'Grady Paving, Inc 2513 Wyandotte St. Mountain View, CA 94043 cc: Representative/Coordinator: Tom O'Grady Email: Tom@OGradyPaving.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. SIGNATURES CONTINUE ON THE FOLLOWING PAGE Public Works Project: Lawrence Mitty Park Excavation Public Works Contract $60,000 / August 2021 Page 12 of 12 IN WITNESS WHEREOF, the parties have caused this Contract to be executed as of the Execution Date first above written. CITY OF CUPERTINO, a Municipal Corporation By: __________________________________ Title: ________________________________ Signature Date: _________________________ O'Grady Paving, Inc By: __________________________________ Title: ________________________________ Signature Date: _________________________ APPROVED AS TO FORM: By: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: By: KIRSTEN SQUARCIA City Clerk Date: Ceo Sep 16, 2021 Christopher D. Jensen Sep 17, 2021 Director of Public Works Sep 17, 2021 30 City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 Lisa Cameli LisaC@cupertino.org Lawrence-Mitty Park, Cupertino, CA Lawrence Park Excavation Submitted to: Street: City, State, and Zip Code Attn:Phone: Job Name: Job Location: Estimator Acceptance of Proposal The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. Date of Acceptance:Signature Signature All Material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire, tornado and other necessary insurance. Our workers are fully covered by Workmens Compensation Insurance. Authorized Signature Note: This Proposal may be withdrawn by us if not accepted within days We Propose hereby to furnish material and labor -- complete in accordance with above specifications for the sum of: Five Thousand and 00/100 . Payment to be made as follows: Lisa, O'Grady Paving, Inc. is pleased to quote the lump sum price of $5,000.00 for one 8 hour shift of a CATERPILLAR 330 excavator to sift through the existing dirt piles on the proposed future park site. Lump Sum: $5,000.00 Yours Truly, Tom O'Grady September 7, 2021 5,000.00Dollars ( ) O'Grady Paving, Inc. Asphalt Paving & Grading 2513 Wyandotte Street Mountain View,CA 94043 Telephone:650-966-1926 Fax:650-966-1946 State License N. 201696 Tom O'Grady Exhibit A Insurance Requirements for Construction Contracts - $60,000 Version: Sept. 2019 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). PUBLIC WORKS CONSTRUCTION CONTRACTS Small Projects - $60,000 Insurance Requirements: Exhibit B Insurance Requirements for Construction Contracts - $60,000 Version: Sept. 2019 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 Construction Contracts - $60,000 Version: Sept. 2019 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 Contract 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. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 9/8/2021 Bolton & Company 3475 E. Foothill Blvd., Suite 100 Pasadena, CA 91107 (626) 799-7000 (626) 583-2117 www.boltonco.com 0008309 Chau Tran O'Grady Paving, Inc. 2513 Wyandotte Street Mountain View CA 94043 63792908 3 3 33 3 3 GL, Auto & Pollution Additional Insureds apply per CG20101219, CG20371219, 160202921116 & EVPCPocCP0618 attached, only if required by 100218000917, 160202921116 & WC9003750518 attached. GL, Auto, WC & Pollution Notice Cancellation Clauses apply per IL00171198, WC990645611 & OGP #21102 City of Cupertino 10300 Torre Ave Cupertino, CA 95014 Re: OGP #21102 | Lawrence-Mitty Park Excavation, Cupertino, CA. written contract/agreement. GL Primary & Non-Contributory Wording applies per 100224610715 attached. GL, Auto & WC Waivers of Subrogation apply per EVPCPocCP0618 attached. Additional Insured(s): City of Cupertino, its Council, Officials, Officers, Employees, Agents, Volunteers and Consultants. A 1,000,000543102467/1/2021 7/1/2022 100,000 3 5,000 3 1,000,000 2,000,000 2,000,0003 B 54310245 7/1/2021 7/1/2022 1,000,000 3 B 9365-2734, $5M 1st Layer 7/1/2021 7/1/2022 10,000,0003 10,000,000CSXS0059379, $5M x $5M 2nd 7/1/2021 7/1/20223 B 54310247 7/1/2021 7/1/2022 3 1,000,000N 1,000,000 1,000,000 C Contract Pollution Liab SIR $10,000 PEC005445502 7/1/2021 7/1/2022 $1,000,000 Ea Poll Cond/$2,000,000 Agg Executive Risk Indemnity Inc.35181 Federal Insurance Company 20281 Indian Harbor Insurance Company 36940 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 1 of 18 Form: 16-02-0292 (Rev. 11-16)Page 1 of 3 "Includes copyrighted material of Insurance Services Office, Inc. with its permission" COMMERCIAL AUTOMOBILE THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM This endorsement modifies the Business Auto Coverage Form. 1. EXTENDED CANCELLATION CONDITION Paragraph A.2.b.CANCELLATION - of the COMMON POLICY CONDITIONS form IL 00 17 is deleted and replaced with the following: b. 60 days before the effective date of cancellation if we cancel for any other reason. 2. BROAD FORM INSURED A. Subsidiaries and Newly Acquired or Formed Organizations As Insureds The Named Insured shown in the Declarations is amended to include: 1. Any legally incorporated subsidiary in which you own more than 50% of the voting stock on the effective date of the Coverage Form. However, the Named Insured does not include any subsidiary that other automobile policy or would be an termination or the exhaustion of its Limit of Insurance. 2. Any organization that is acquired or formed by you and over which you maintain majority ownership. However, the Named Insured does not include any newly formed or acquired organization: (a)under any other automobile policy; (b) That has exhausted its Limit of Insurance under any other policy; or (c) 180 days or more after its acquisition or formation by you, unless you have given us written notice of the acquisition or formation. that occurred before you formed or acquired the organization. B. Employees as Insureds Paragraph A.1.WHO IS AN INSURED of SECTION II LIABILITY COVERAGE is amended to add the following: d. Any borrow in your business or your personal affairs. C. Lessors as Insureds Paragraph A.1.WHO IS AN INSURED of SECTION II LIABILITY COVERAGE is amended to add the following: e. agreement if: (1) The agreement requires you to provide direct primary insurance for the lessor; and (2)a driver. resulting from the acts or omissions by: 1. You; 2. or 3. Any person, except the lessor or permission of any of 1. and/or 2. above. D. Persons And Organizations As Insureds Under A Written Insured Contract Paragraph A.1 WHO IS AN INSURED of SECTION II LIABILITY COVERAGE is amended to add the following: f. Any person or organization with respect to the operation, maintenance or use of a such person or organization have agreed under an express provision in a written written permit issued to you by a governmental or public authority to add such person or organization to this policy However, such person or organization is 54310245 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 2 of 18 Form: 16-02-0292 (Rev. 11-16)Page 2 of 3 "Includes copyrighted material of Insurance Services Office, Inc. with its permission" (1) with respect to the operation, maintenance or use of a covered ; and (2) caused by place after: (a) (b) The permit has been issued to you. 3.FELLOW EMPLOYEE COVERAGE EXCLUSION B.5. - FELLOW EMPLOYEE of SECTION II LIABILITY COVERAGE does not apply. 4.PHYSICAL DAMAGE ADDITIONAL TEMPORARY TRANSPORTATION EXPENSE COVERAGE Paragraph A.4.a.TRANSPORTATION EXPENSES of SECTION III PHYSICAL DAMAGE COVERAGE is amended to provide a limit of $50 per day for temporary transportation expense, subject to a maximum limit of $1,000. 5. AUTO LOAN/LEASE GAP COVERAGE Paragraph A. 4.COVERAGE EXTENSIONS - of SECTION III PHYSICAL DAMAGE COVERAGE is amended to add the following: c.Unpaid Loan or Lease Amounts ill pay any unpaid amount due on the loan or lease for a 1. The amount paid under the Physical Damage Coverage Section of the policy; and 2. Any: a. Overdue loan/lease payments at the time of b. Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage; c. Security deposits not returned by the lessor: d. Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan or lease; and e. Carry-over balances from previous loans or leases. We will pay for any unpaid amount due on the loan or lease if caused by: 1. Other than Collision Coverage only if the Declarations indicate that Comprehensive Coverage is provided for any 2. Specified Causes of Loss Coverage only if the Declarations indicate that Specified Causes of or 3. Collision Coverage only if the Declarations indicate that Collision Coverage is provided for any covered auto. 6. RENTAL AGENCY EXPENSE Paragraph A. 4.COVERAGE EXTENSIONS of SECTION III PHYSICAL DAMAGE COVERAGE is amended to add the following: d.Rental Expense We will pay the following expenses that you or to pay because of a written contract or agreement entered into for use of a rental vehicle in the conduct of your business: MAXIMUM WE WILL PAY FOR ANY ONE CONTRACT OR AGREEMENT: 1. $2,500 for loss of income incurred by the rental agency during the period of time that vehicle is out of use because of actual damage to,, that vehicle, including income lost due to absence of that vehicle for use as a replacement; 2. $2,500 for decrease in trade-in value of the rental vehicle because of actual damage to 3. $2,500 for administrative expenses incurred by the rental agency, as stated in the contract or agreement. 4. $7,500 maximum total amount for paragraphs 1., 2. and 3. combined. 7. EXTRA EXPENSE BROADENED COVERAGE Paragraph A.4.COVERAGE EXTENSIONS of SECTION III PHYSICAL DAMAGE COVERAGE is amended to add the following: e.Recovery Expense We will pay for the expense of returning a 8. AIRBAG COVERAGE Paragraph B.3.a. - EXCLUSIONS of SECTION III PHYSICAL DAMAGE COVERAGE does not apply to the accidental or unintended discharge of an airbag. Coverage is excess over any other collectible insurance or warranty specifically designed to provide this coverage. 9. AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT - BROADENED COVERAGE Paragraph C.1.b.LIMIT OF INSURANCE - of SECTION III - PHYSICAL DAMAGE is deleted and replaced with the following: b. $2,000 is the most we will pay for "loss" in any one "accident" to all electronic equipment that reproduces, receives or transmits audio, visual or data signals which, at the time of "loss", is: (1) Permanently installed in or upon the covered "auto" in a housing, opening or other location that is not normally used by the "auto" manufacturer for the installation of such equipment; (2) Removable from a permanently installed housing unit as described in Paragraph 2.a. above or is an integral part of that equipment; or (3) An integral part of such equipment. 10. GLASS REPAIR WAIVER OF DEDUCTIBLE 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 3 of 18 Form: 16-02-0292 (Rev. 11-16)Page 3 of 3 "Includes copyrighted material of Insurance Services Office, Inc. with its permission" Under Paragraph D. - DEDUCTIBLE of SECTION III PHYSICAL DAMAGE COVERAGE the following is added: No deductible applies to glass damage if the glass is repaired rather than replaced. 11. TWO OR MORE DEDUCTIBLES Paragraph D.- DEDUCTIBLE of SECTION III PHYSICAL DAMAGE COVERAGE is amended to add the following: If this Coverage Form and any other Coverage Form or policy issued to you by us that is not an automobile policy or Coverage Form applies to the , the following applies: 1. If the deductible under this Business Auto Coverage Form is the smaller (or smallest) deductible, it will be waived; or 2. If the deductible under this Business Auto Coverage Form is not the smaller (or smallest) deductible, it will be reduced by the amount of the smaller (or smallest) deductible. 12. AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS Paragraph A.2.a. - DUTIES IN THE EVENT OF AN ACCIDENT, CLAIM, SUIT OR LOSS of SECTION IV - BUSINESS AUTO CONDITIONS is deleted and replaced with the following: a. In the event of accident , claim,suit or loss , you must promptly notify us when the accident is known to: (1) You or your authorized representative, if you are an individual; (2) A partner, or any authorized representative, if you are a partnership; (3) A member, if you are a limited liability company; or (4) An executive officer, insurance manager, or authorized representative, if you are an organization other than a partnership or limited liability company. Knowledge of an accident , claim,suit or loss by other persons does not imply that the persons listed above have such knowledge. Notice to us should include: (1) How, when and where the accident or loss occurred; (2) The i name and address; and (3) To the extent possible, the names and addresses of any injured persons or witnesses. 13. WAIVER OF SUBROGATION Paragraph A.5. - TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US of SECTION IV BUSINESS AUTO CONDITIONS is deleted and replaced with the following: 5. We will waive the right of recovery we would otherwise have against another person or this insurance their rights of recovery against such person or organization under a contract or agreement that is entered into recover damages for all or part of any payment made under this insurance has not been waived, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and impair them. At our request, the insured will bring suit or transfer those rights to us and help us enforce them. 14.UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS Paragraph B.2.CONCEALMENT, MISREPRESENTATION or FRAUD of SECTION IV BUSINESS AUTO CONDITIONS - is deleted and replaced with the following: If you unintentionally fail to disclose any hazards existing at the inception date of your policy, we will not void coverage under this Coverage Form because of such failure. 15. AUTOS RENTED BY EMPLOYEES Paragraph B.5. - OTHER INSURANCE of SECTION IV BUSINESS AUTO CONDITIONS - is amended to add the following: e. on your behalf and at your direction will be If an also applies hired and at your direction, this insurance will be insurance. 16.HIRED AUTO COVERAGE TERRITORY Paragraph B.7.b.(5). - POLICY PERIOD, COVERAGE TERRITORY of SECTION IV BUSINESS AUTO CONDITIONS is deleted and replaced with the following: (5 type is leased, hired, rented or borrowed without a driver for a period of 45 days or less; and 17.RESULTANT MENTAL ANGUISH COVERAGE Paragraph C. of - SECTION V DEFINITIONS is deleted and replaced by the following: disease sustained by any person, including mental anguish or death as a result of the bodily injury sustained by that person. 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 4 of 18 IL 00 17 11 98 IL 00 17 11 98 Copyright, Insurance Services Office, Inc., 1998 Page 1 of 1 COMMON POLICY CONDITIONS All Coverage Parts included in this policy are subject to the following conditions. A. Cancellation 1.The first Named Insured shown in the Declara- tions may cancel this policy by mailing or de- livering to us advance written notice of cancel- lation. 2.We may cancel this policy by mailing or deliv- ering to the first Named Insured written notice of cancellation at least: a.10 days before the effective date of cancel- lation if we cancel for nonpayment of pre- mium; or b.30 days before the effective date of cancel- lation if we cancel for any other reason. 3.We will mail or deliver our notice to the first Named Insured's last mailing address known to us. 4.Notice of cancellation will state the effective date of cancellation. The policy period will end on that date. 5.If this policy is cancelled, we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro rata. If the first Named Insured cancels, the refund may be less than pro rata. The cancellation will be ef- fective even if we have not made or offered a refund. 6.If notice is mailed, proof of mailing will be suf- ficient proof of notice. B. Changes This policy contains all the agreements between you and us concerning the insurance afforded. The first Named Insured shown in the Declara- tions is authorized to make changes in the terms of this policy with our consent. This policy's terms can be amended or waived only by endorsement issued by us and made a part of this policy. C. Examination Of Your Books And Records We may examine and audit your books and rec- ords as they relate to this policy at any time during the policy period and up to three years afterward. D. Inspections And Surveys 1.We have the right to: a.Make inspections and surveys at any time; b.Give you reports on the conditions we find; and c.Recommend changes. 2.We are not obligated to make any inspections, surveys, reports or recommendations and any such actions we do undertake relate only to in- surability and the premiums to be charged. We do not make safety inspections. We do not un- dertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. And we do not warrant that conditions: a.Are safe or healthful; or b.Comply with laws, regulations, codes or standards. 3.Paragraphs 1. and 2. of this condition apply not only to us, but also to any rating, advisory, rate service or similar organization which makes insurance inspections, surveys, reports or recommendations. 4.Paragraph 2. of this condition does not apply to any inspections, surveys, reports or recom- mendations we may make relative to certifica- tion, under state or municipal statutes, ordi- nances or regulations, of boilers, pressure ves- sels or elevators. E. Premiums The first Named Insured shown in the Declara- tions: 1.Is responsible for the payment of all premiums; and 2.Will be the payee for any return premiums we pay. F. Transfer Of Your Rights And Duties Under This Policy Your rights and duties under this policy may not be transferred without our written consent except in the case of death of an individual named in- sured. If you die, your rights and duties will be trans- ferred to your legal representative but only while acting within the scope of duties as your legal rep- resentative. Until your legal representative is ap- pointed, anyone having proper temporary custody of your property will have your rights and duties but only with respect to that property. 54310245 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 5 of 18 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 10 12 19 © Insurance Services Office, Inc., 2018 Page 1 of 2 ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations WHERE REQUIRED BY WRITTEN CONTRACT Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 10 12 19 54310246 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 6 of 18 Page 2 of 2 © Insurance Services Office, Inc., 2018 CG 20 10 12 19 C. With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 7 of 18 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CG 20 37 12 19 © Insurance Services Office, Inc., 2012 Page 1 of 1 ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location And Description Of Completed Operations Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the Schedule of this endorsement performed for that additional insured and included in the "products-completed operations hazard". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 37 12 19 WHERE REQUIRED BY WRITTEN CONTRACT, BUT 54310246 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 8 of 18 10-02-2461 (Ed. 7-15) # THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. # 10-02-2461 (Ed. 7-15)Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 1 of 1 # PRIMARY INSURANCE FOR SCHEDULED ADDITIONAL INSURED Xlmw#irhsvwiqirx#qshmjmiw#mrwyvergi#tvszmhih#yrhiv#xli#jspps{mrk># GSQQIVGMEP#KIRIVEP#PMEFMPMX]#GSZIVEKI#TEVX# # # WGLIHYPI# # Ehhmxmsrep#Mrwyvih>#Psgexmsr#Sj#Gszivih#Stivexmsrw># # # # ## +Mj#rs#irxv}#ettievw#efszi/#mrjsvqexmsr#viuymvih#xs#gsqtpixi#xlmw#irhsvwiqirx#{mpp#fi#wls{r#mr#xli# Higpevexmsrw#ew#ettpmgefpi#xs#xlmw#irhsvwiqirx1,# # # [mxl#viwtigx#srp}#xs#xli#Ehhmxmsrep#Mrwyvih#erh#ex# xli#Psgexmsr#Sj#Gszivih#Stivexmsrw#wls{r#mr#xli# Wglihypi/#xli#jspps{mrk#mw#ehhih#xs#WIGXMSR#MZ#&# GSQQIVGMEP#KIRIVEP#PMEFMPMX]#GSRHMXMSRW/# Tevekvetl#71Sxliv#Mrwyvergierh#wytivwihiw#er}# tvszmwmsr#xs#xligsrxvev}># Tvmqev}#Erh#Rsrgsrxvmfyxsv}#Mrwyvergi# Xlmw#mrwyvergi#mw#tvmqev}#xs#erh#{mpp#rsx# wiiogsrxvmfyxmsr#jvsq#er}#sxliv#mrwyvergi# ezempefpi#xs#xli#Ehhmxmsrep#Mrwyvih#{mxl#viwtigx# xs#xli#Psgexmsr#Sj#Gszivih#Stivexmsrw#wls{r#mr# xli#Wglihypi#yrhiv#xlmwtspmg}tvszmhih#xlex># +4,#Xli#Ehhmxmsrep#Mrwyvih#mw#e#reqih# mrwyvihyrhiv#wygl#sxliv#mrwyvergi?#erh# +5,#]sy#lezi#ekviih#mr#{vmxmrk#mr#e#gsrxvegx# svekviiqirx#xlex#xlmw#mrwyvergi#{syph# fitvmqev}#erh#{syph#rsx#wiio# gsrxvmfyxmsrjvsq#er}#sxliv#mrwyvergi# ezempefpi#xs#xliEhhmxmsrep#Mrwyvih1# POLICY NUMBER:COMMERCIAL GENERAL LIABILITY # YJGTG!TGSWKTGF!D[!YTKVVGP!EQPVTCEV CNN!NQECVKQPU # 54310246 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 9 of 18 Form 10-02-1800 (Rev.09- 17) Includes copyrighted material of ISO Properties, Inc., with its permission Page 13 of 17 b.Those statements are based upon representations you made to us; and c.We have issued this policy in reliance upon your representations. 7. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies: a.As if each Named Insured were the only Named Insured; and b.Separately to each insured against whom claim is made or "suit" is brought. 8. Transfer Or Waiver Of Rights Of Recovery Against Others To Us We will waive the right of recovery we would otherwise have had against another person or organization, for loss to which this insurance applies, provided the insured has waived their rights of recovery against such person or organization in a contract or agreement that is executed before such loss. To the extent that the insured rights to recover all or part of any payment made under this Coverage Part have not been waived, those rights are transferred to us. 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 enforce them. This condition does not apply to Coverage C. 9. When We Do Not Renew If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than 30 days before the expiration date. If notice is mailed, proof of mailing will be sufficient proof of notice. SECTION V DEFINITIONS 1."Advertisement" means an electronic, oral, written or other notice, about goods, products or services, designed for the specific purpose of attracting the general public or a specific market segment to use such goods, products or services. -mail address, Internet domain name or other electronic address or metalanguage. 2. a person or organization and caused by an offense of infringing, in that goods, products or services, upon their: a.Copyrighted b.Registered collective mark, registered service mark or other registered trademarked name, slogan, symbol or title. 3.means asbestos in any form, including its presence or use in any alloy, by-product, compound or other material or waste. Waste includes materials to be recycled, reconditioned or reclaimed. 4."Auto" means: a.A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or b.Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. However, "auto" does not include "mobile equipment". 5."Bodily injury" means physical: a.Injury; b.Sickness; or c.Disease; sustained by a person, including resulting death, humiliation, mental anguish, mental injury or shock at any time. All such loss shall be deemed to occur at the time of the physical injury, sickness or disease that caused it. 6."Coverage territory" means: a.The United States of America (including its territories and possessions), Puerto Rico and Canada; b.International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in Paragraph a.above; or c.All other parts of the world if the injury or damage arises out of: (1)Goods or products made or sold by you in the territory described in Paragraph a. above; (2)The activities of a person whose home is in the territory described in Paragraph a. above, but is away for a short time on your business; or (3)"" offenses that take place through the Internet or similar electronic means of communication 54310246 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 10 of 18 IL 00 17 11 98 IL 00 17 11 98 Page 1 of 1 COMMON POLICY CONDITIONS A. Cancellation 1. 2. a. b. 3. 4. 5. 6. B. Changes C. Examination Of Your Books And Records D. Inspections And Surveys 1. a. b. c. 2. a. b. 3.1.2. 4.2. E. Premiums 1. 2. F. Transfer Of Your Rights And Duties Under This Policy 54310246 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 11 of 18 WC 90 03 75 (05/18) Workers' Compensation and Employers' Liability Policy Named Insured Endorsement Number Policy Period to Issued By (Name of Insurance Company) Insert the policy number. The remainder of the information is to be completed only when this endorsement is issued subsequent to the preparation of the policy. CALIFORNIA WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement applies only to the insurance provided by the policy because California is shown in Item 3.A.of the Information Page. We have the right to recover our payments from anyone liable for an injury covered by this policy.We will not enforce our right against the person or organization named in the Schedule,but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule,where you are required by a written contract to obtain this waiver from us. You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. Schedule 1.()Specific Waiver Name of person or organization: (X )Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2.Operations: 3.Premium: The premium charge for this endorsement shall be 1.0 percent of the California premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described. 4.Minimum Premium:$0 Authorized Representative Policy Number Symbol: Number: Effective Date of Endorsement O'Grady Paving, Inc. 54310247 7/1/2021 Federal Insurance Company 7/1/2022 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 12 of 18 WORKERS' COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 99 06 45 (Ed. 6-11) EARLIER NOTICE OF CANCELLATION OR NONRENEWAL PROVIDED BY US This endorsement, effective on Policy No. Issued to: (DATE) at 12:01 A. M. standard time, forms a part of of the FEDERAL INSURANCE COMPANY (NAME OF INSURANCE COMPANY) Authorized Representative A. Under Condition a Cancellation of Part Six, the time period is amended as follows: We may cancel this policy by mailing or delivering to you written notice of cancellation at least: 1. TEN (10) days before the effective date of cancellation if we cancel for non-payment of premium; or 2. SIXTY (60) days before the effective date of cancellation if we cancel for any other reason. B. Under Part Six - Conditions of the policy, the following is added: Notice Of Nonrenewal When we do not renew this policy, we will mail or deliver to you written notice of the nonrenewal at least sixty (60) days before the expiration date, Mailing that notice to you at your mailing address shown in Item 1 of the Information Page will be sufficient to prove notice. WC 99 06 45 (Ed 611) 54310247 O'Grady Paving, Inc. 7/1/2021 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 13 of 18 EVPCPocCP 0618 © 2018 X.L. America, Inc. All Rights Reserved. Page 8 of 28 May not be copied without permission. render Professional Services or Contracting Services under the respective legal entity or joint venture. 9.Solely with regard to SECTION I - INSURING AGREEMENTS, B.1. Job Site Coverage - Occurrence, B.2. Transportation Coverage and B.5. Non-Owned Disposal Site Coverage, any person or entity, including a Client, as required by a written agreement signed by the Named Insured, but only for: a. a Pollution Condition caused by Contracting Services; and b. the liability of the person or entity that results from the performance of the Named Insured’s Contracting Services, provided that such written agreement is signed by the Named Insured prior to the commencement of the Pollution Condition. Any insurance afforded under the terms and conditions of this Policy shall be limited to the scope of coverage required by such agreement and shall be limited to the lesser of the amount of the limits of liability required by such written agreement or the Limits of Liability under this Policy. In no event shall we be liable for any amounts in excess of the Limits of Liability shown in Item (3) and Item (4) B. Pollution Coverages of the Declarations. N. Insured Contract means that part of any written agreement under which, the Named Insured assumes the tort liability of another party to pay compensatory damages for Bodily Injury, Property Damage or Environmental Damage, to a third-person or entity, provided that such written agreement is signed by the Named Insured prior to the Bodily Injury, Property Damage or Environmental Damage. Tort liability means a liability that would be imposed by law in the absence of any agreement. O. Job Site means the location where Contracting Services are rendered. Job Site does not include: 1.any location that is owned, rented, leased, used, or occupied by you except for: a. a location owned, rented, leased, or occupied by the Client; or b. a location that is rented, leased, or occupied (but not owned) by the Named Insured and is used on a temporary basis by you for a single project only, during the course of providing Contracting Services for such single project. 2.a Non-Owned Disposal Site or Your Location. P.Leased Worker means a person leased to you, by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. Q. Legal Expense means legal costs, charges and expenses incurred in the investigation or defense of a Claim arising from Professional Services or Contracting Services, provided such costs, charges and expenses are authorized by us. Legal Expense does not include the time and expense incurred by you in assisting us in the investigation or resolution of a Claim including, but not limited to, the costs of your in-house counsel, salary charges of your regular employees or officials, and fees and expenses of counsel retained by you, except as provided by SECTION II - SUPPLEMENTAL COVERAGES, D. Litigation Expense Coverage. Legal Expense also does not include salary charges of our employees. Legal Expense does not include any legal costs, charges and expenses incurred in relation to Rectification Expense, Emergency Remediation Expense or to any legal costs or expenses incurred by you in the PEC005445502 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 14 of 18 EVPCPocCP 0618 © 2018 X.L. America, Inc. All Rights Reserved. Page 25 of 28 May not be copied without permission. We shall determine, in our sole discretion, whether the Named Insured’s written notice satisfies the condition precedent above. SECTION VIII - CONDITIONS A. Action Against Company No action shall lie against us unless, as a condition precedent thereto: 1.you have fully complied with all of the terms of this Policy; and 2.the amount you are obligated to pay has been finally determined either by judgment against you after actual trial or by your written agreement, the claimant and us. Any person or entity that has secured such judgment or entered into such written agreement shall thereafter be entitled to recover under this Policy to the extent of the insurance afforded by this Policy. No person or entity shall have any right under this Policy to join us as a party to any action against you to determine your liability, nor shall we be brought into such action by you or your legal representative. B. Assignment This Policy cannot be assigned without our prior written consent. Such consent shall not be unreasonably withheld or delayed. C. Bankruptcy or Insolvency Your bankruptcy or insolvency, or of your estate, shall not relieve us of any of our obligations under this Policy. D. Cancellation The following with regards to cancellation apply to this Policy: 1.Cancellation by the First Named Insured: This Policy may be cancelled by the First Named Insured by mailing to us written notice stating when thereafter the cancellation shall be effective. The mailing of such notice must be sent certified mail, return receipt requested or by electronic mail. The effective date and time of cancellation stated in the written notice shall become the end of the Policy Period. The Minimum Earned Premium for this Policy shall be the percentage stated in Item (7) of the Declarations of the total premium for this Policy. This means that such percentage of the total premium is fully earned by us on the inception of the Policy Period. The First Named Insured is not entitled to any return of the Minimum Earned Premium upon cancellation. If the Minimum Earned Premium is less than one hundred percent (100%) of the total premium for this Policy, and the First Named Insured cancels this Policy, then the amount of premium returnable after the minimum premium earned is retained by us shall be computed in accordance with the customary short-rate table and procedure. 2.Cancellation by Us: This Policy may be cancelled by us by mailing to the First Named Insured at the address shown in Item (1) of the Declarations, written notice stating when not less than ninety (90) days thereafter [or fifteen (15) days for non-payment of premium] such cancellation shall be effective. The mailing of such notice shall be sufficient proof of notice of cancellation. The effective date and time of cancellation stated in the written notice shall become the end of the Policy Period. 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 15 of 18 EVPCPocCP 0618 © 2018 X.L. America, Inc. All Rights Reserved. Page 26 of 28 May not be copied without permission. We may cancel this Policy at any time, but only for the following reasons: a. you made a material misrepresentation that affects our assessment of the risks insured by this Policy; b. you breached or failed to comply with Policy terms, conditions, contractual duties or any of your obligations under this Policy or at law; or c. you failed to pay the premium or the Self-Insured Retention Amount. If we cancel this Policy for reasons set forth in Subsections 2.a. or 2.b. above, then the amount of premium returnable to the First Named Insured is computed on a pro-rata basis. If we cancel the Policy for reasons set forth in Subsection 2.c. above, there shall be no return premium. In the event of cancellation by us from any ground referred to in Subsection 2.b. above, you shall have ninety (90) days from the date of notice of cancellation to remedy each breach and each failure that is a ground for cancellation, but only as to each and every breach and failure that are capable of being remedied. If your remedial efforts are completed within such ninety (90) day period and are satisfactory to us, we shall rescind the Notice of Cancellation with a written confirmation to the First Named Insured. 3.The following provisions also apply to Subsections D.1. and D.2. above: a. The premium adjustment shall occur as soon as practicable after cancellation becomes effective however, payment of unearned premium is not a condition of our cancellation. b. If a Claim for Professional Loss or Pollution Loss is made against you, a Pollution Condition is discovered, a Protective Claim or Protective Pollution Claim is made by you against a Design Professional or Subcontractor, or coverage is otherwise requested from us by you, during the Policy Period, within ninety (90) days of the end of the Policy Period, or the Optional Extended Reporting Period, then the premium shall be considered one hundred percent (100%) earned, and the First Named Insured is not entitled to any return of premium upon cancellation. c. If this Policy is terminated for fraud, misrepresentation or non-payment of premium, the ninety (90) days of additional reporting will not apply. E. Changes Notice to any agent or knowledge possessed by any agent or by any other person shall not affect a waiver or a change in any part of this Policy or estop us from asserting any right under the terms of this Policy. The terms and conditions of this Policy cannot be waived or changed, except by endorsement issued by us to form a part of this Policy. F. Choice of Law and Jurisdiction and Venue All matters arising from or related to this Policy, including without limitation questions related to the validity, interpretation, performance, and enforcement of this Policy, and all forms of contractual, tort and statutory claims shall be determined in accordance with the law and practice of the State of New York (notwithstanding New York’s conflicts of law rules). It is agreed that, in the event of any dispute arising from or related to this Policy, including without limitation questions related to the validity, interpretation, performance, and enforcement of this Policy, and all forms of contractual, tort and statutory claims, we and the Insured will submit to the jurisdiction of any court (state or federal) in New York and will comply with all the requirements necessary to give such court jurisdiction. Nothing in this clause constitutes or should be understood to constitute a waiver of the right of us or the 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 16 of 18 EVPCPocCP 0618 © 2018 X.L. America, Inc. All Rights Reserved. Page 27 of 28 May not be copied without permission. Insured to remove an action to the United States District Court, regardless of the jurisdiction in which, an action is commenced. G. Declarations and Representations By acceptance of this Policy, you agree that the statements, declarations and information contained in the Application, submitted for this Policy and executed by you, and any other supplemental materials submitted to us are: 1.true, correct and complete; 2.such statements and information are material to our underwriting of this Policy; 3.that this Policy has been issued by us in reliance upon the truth, correctness and completeness of such statements, declarations and information, and 4.the Application, submitted for this Policy and executed by you, and any other supplemental materials submitted to us are incorporated in and made part of this Policy. H. Design Professional’s Insurance You shall require that each Design Professional, with whom you enter into a written agreement, carry professional liability insurance. I. Headings The descriptions in the headings of this Policy are solely for convenience and form no part of the terms and conditions of this Policy. J. Inspection and Audit We shall be permitted, but not obligated, to examine, audit, monitor and inspect on a continuing basis any of your books, records, services, properties and activities at any time, as far as they relate to the subject matter of this Policy. Neither our right to examine, audit, monitor and make inspections, or the actual undertaking thereof, or any report thereon, neither constitutes an undertaking to determine or warrant that property or operations are safe, healthful, or conform to acceptable engineering practice, or are in compliance with any law, rule or regulation. Any inspections shall be coordinated through the broker or agent of the First Named Insured. K. Other Insurance Unless expressly stated to the contrary, this Policy is excess over the Self-Insured Retention Amount and any other valid and collectible insurance whether such other insurance is stated to be primary, contributory, excess, contingent or otherwise, unless such other insurance is written specifically excess of this Policy by reference in such other policy to this Policy Number in this Policy’s Declarations. When any other insurance has a duty to defend a Claim, we shall have no duty to defend the Claim; if the other insurance does not defend the Claim, we shall have the right, but not the duty to defend the Claim. With regard to SECTION I - INSURING AGREEMENTS, B. Pollution Coverages, when you are required by written agreement, executed prior to the first commencement of the Pollution Condition, to include any person or entity as an additional Insured, such coverage shall be provided on a primary and non-contributory basis to the extent required by the written agreement. 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 17 of 18 EVPCPocCP 0618 © 2018 X.L. America, Inc. All Rights Reserved. Page 28 of 28 May not be copied without permission. L. Severability Except with respect to the Limits of Liability and the Self-Insured Retention Amount, and any rights or duties specifically assigned in this Policy to the First Named Insured, this insurance applies: 1.as if each Named Insured were the only Named Insured; and 2.separately to each Insured against whom a Claim is made. M. Sole Agent The First Named Insured shall act on behalf of all Insureds for the payment or return of premium, receipt and acceptance of any endorsement issued to form a part of this Policy, giving and receiving notice of cancellation or non-renewal and the exercise of the rights provided in SECTION VI – OPTIONAL EXTENDED REPORTING PERIOD. N. Subrogation In the event of any payment under this Policy, we shall be subrogated to all of your rights of recovery against any person or entity and you will execute and deliver instruments and papers and do whatever else is necessary to secure such rights. We shall have priority in any recovery, and any amounts recovered in excess of our total payment and the cost of recovery shall be paid to you. You shall do nothing at any time to prejudice our subrogation rights. However, we waive our right of recovery against any person or entity, except for a Design Professional or Subcontractor, including Subcontractors and subconsultants, if and to the extent you agreed to waive your right of recovery against such person or entity in a written agreement signed by you prior to: 1.the negligent act, error or omission in Professional Services out of which the Claim or request for Rectification Expense arises under SECTION I - INSURING AGREEMENTS, A. Professional Coverages; or 2.the first commencement of a Pollution Condition out of which the Claim or request for Emergency Remediation Expense or Pollution Loss arises under SECTION I - INSURING AGREEMENTS, B. Pollution Coverages. O. Territory This Policy applies to Professional Services and Contracting Services rendered worldwide, provided that the Claim, Protective Claim or Pollution Protective Claim is first brought, and at all times maintained, within the United States of America (including its territories and possessions), and Canada. This Policy does not apply to any Claim, Protective Claim or Pollution Protective Claim for which, payment would be in violation of the laws of the United States of America including, but not limited to, United States economic or trade sanction laws or export control laws administered by the United States Treasury, State, and Commerce Departments, for example the economic and trade sanctions administered by the United States Treasury Office of Foreign Assets Control. 63792908 | OGRAPAV-C1 | 21-22 GL AU WC XS; Poll, Install R/L Eqmt, Prof | Emily Parks | 9/8/2021 3:25:15 PM (PDT) | Page 18 of 18 O'Grady for Lawrence Mitty Park Excavation Final Audit Report 2021-09-17 Created:2021-09-15 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAWBNBTqVAmalu9IsFaWhk_LVWGhCY_z1w "O'Grady for Lawrence Mitty Park Excavation" History Document created by City of Cupertino (webmaster@cupertino.org) 2021-09-15 - 5:34:37 PM GMT- IP address: 35.229.54.2 Document emailed to Julia Kinst (juliak@cupertino.org) for approval 2021-09-15 - 5:36:34 PM GMT Document approved by Julia Kinst (juliak@cupertino.org) Approval Date: 2021-09-15 - 5:36:52 PM GMT - Time Source: server- IP address: 216.198.111.214 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-09-15 - 5:36:55 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-09-15 - 6:13:46 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Thomas O'Grady (tom@ogradypaving.com) for signature 2021-09-15 - 6:13:48 PM GMT Email viewed by Thomas O'Grady (tom@ogradypaving.com) 2021-09-15 - 6:22:15 PM GMT- IP address: 174.194.146.52 Email viewed by Thomas O'Grady (tom@ogradypaving.com) 2021-09-17 - 3:13:00 AM GMT- IP address: 73.158.116.252 Document e-signed by Thomas O'Grady (tom@ogradypaving.com) Signature Date: 2021-09-17 - 3:15:06 AM GMT - Time Source: server- IP address: 73.158.116.252 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature 2021-09-17 - 3:15:08 AM GMT Email viewed by Christopher D. Jensen (christopherj@cupertino.org) 2021-09-17 - 3:31:08 AM GMT- IP address: 104.47.74.126 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2021-09-17 - 3:31:42 AM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to susanm@cupertino.org for signature 2021-09-17 - 3:31:44 AM GMT Email viewed by susanm@cupertino.org 2021-09-17 - 2:54:24 PM GMT- IP address: 104.47.73.254 City of Cupertino (webmaster@cupertino.org) replaced signer susanm@cupertino.org with Roger Lee (rogerl@cupertino.org) 2021-09-17 - 2:59:15 PM GMT- IP address: 216.198.111.214 Document emailed to Roger Lee (rogerl@cupertino.org) for signature 2021-09-17 - 2:59:15 PM GMT Email viewed by Roger Lee (rogerl@cupertino.org) 2021-09-17 - 3:33:44 PM GMT- IP address: 104.47.74.126 Document e-signed by Roger Lee (rogerl@cupertino.org) Signature Date: 2021-09-17 - 3:34:42 PM GMT - Time Source: server- IP address: 24.4.161.237 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-09-17 - 3:34:43 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-09-17 - 5:27:20 PM GMT- IP address: 162.245.20.145 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-09-17 - 5:27:33 PM GMT - Time Source: server- IP address: 162.245.20.145 Agreement completed. 2021-09-17 - 5:27:33 PM GMT