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21-245 Syserco, Improvements to the energy management system at Cupertino Sports CenterService, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 1 of 12 ON-CALL PUBLIC WORKS CONTRACT WITH SYSERCO, INC 1. PARTIES This On-Call Public Works Contract (“Contract”) is made by and between the City of Cupertino, a municipal corporation (“City”), and Syserco, Inc (“Contractor”) a Corporation for Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center, and is effective on the last date signed below (“Effective Date”). 2. SCOPE OF WORK 2.1 Scope of Work. Contractor will perform and provide all labor, materials, equipment, supplies, transportation and any other items or work necessary to perform and complete the work described in the Scope of Work (“Work”), attached and incorporated here as Exhibit A, on an as- needed basis. The Work must comply with this Contract and with each Service Order issued by the City’s Project Manager or his/her designee, in accordance with the following procedures, unless otherwise specified in Exhibit A. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 2.2 Service Orders. Before issuing a Service Order, the City Project Manager will request that Work be done in writing and hold a meeting with Contractor to discuss the Service Order. Contractor will submit a written proposal that includes a specific Scope of Work, Schedule of Performance, and Compensation, which the Parties will discuss. Thereafter, City will execute a Service Order Form for the Work, attached and incorporated here as Exhibit B. The Service Order will specify the Scope of Work, Schedule of Performance, Compensation, and any other conditions applicable to the Service Order. Issuance of a Purchase Order is discretionary. The City Project Manager is authorized to streamline these procedures based on the City’s best interests. In particular, in emergency situations, the City Project Manager may execute a Service Order for emergency work based on oral conversations with the Contractor, without adhering to the full process outlined in this section. Contractor will not be compensated for Work performed without a duly authorized and executed Service Order. 3. TIME OF PERFORMANCE 3.1 Term. This Contract begins on the Effective Date and ends on June 30, 2023 (“Contract Time”), unless terminated earlier as provided herein. The City’s appropriate department head or City Manager may extend the Contract Time through a written amendment to this Contract, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 3.2 Schedule of Performance. Contractor must complete the Work within the time specified in each Service Order, and under no circumstances should the Work go beyond the Contract Time. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 2 of 12 3.3 Time is of the essence for the performance of all the Work required in this Contract and in each Service Order. Contractor must have sufficient time, resources, and qualified staff to deliver the Work on time. Contractor must respond promptly to each Service Order request. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Work a total amount that will based upon actual costs but that will be capped so as not to exceed $60,000.00 (“Contract Price”), based upon the Scope of Work in Exhibit A and the budget and rates included. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. 4.2 Per Service Order. Compensation for Work provided under a Service Order will be based on the rates set forth in the Service Order, which shall not exceed the capped amount specified in the Service Order. 4.3 Invoices and Payments. Contractor must submit an invoice on the first day of each month, describing the Work performed during the preceding month, itemizing labor, materials, equipment, and any incidental costs incurred. Contractor will be paid ninety-five percent (95%) of the undisputed amounts billed within thirty (30) days after City receives a properly submitted invoice. Any retained amounts will be included with Contractor’s final payment within sixty (60) days of City’s acceptance of the Work pursuant to a specific Service Order as complete. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Work and for the persons hired to work under this Contract. Contractor is not entitled to health benefits, worker’s compensation, or other benefits from the City. 5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Work in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Work as required by law and have procured a City Business License, if required by the Cupertino Municipal Code. Contractor shall possess a California Contractor’s License in good standing for the following classification(s): B, which must remain valid for the entire Contract Time. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Contract. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Contract will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials, and equipment required to perform the Work under this Contract. 5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Contract and any similar federal or state taxes. Contractor Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 3 of 12 and any of its employees, agents, and subcontractors shall not have any claim under this Contract or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Contract, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Contract are not greater than they would have been had the determination not been made. 6. CHANGE ORDERS Amendments and change orders must be in writing and signed by City and Contractor. Contractor’s request for a change order must specify the proposed changes in the Work, Contract Price, and Contract Time. Each request must include all the supporting documentation, including but not limited to plans/drawings, detailed cost estimates, and impacts on schedule and completion date. 7. ASSIGNMENTS; SUCCESSORS Contractor shall not assign, hypothecate, or transfer this Contract or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Contract and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. This Contract is binding on Contractor, its heirs, successors, and permitted assigns. 8. PUBLICITY / SIGNS Any publicity generated by Contractor for the Project during the Contract Time, and for one (1) year thereafter must credit City contributions to the Project. The words “City of Cupertino” must be displayed in all pieces of publicity, flyers, press releases, posters, brochures, interviews, public service announcements, and newspaper articles. No signs may be posted or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 9. SUBCONTRACTORS 9.1 Contractor must perform all the Work with its own forces, except that Contractor may hire qualified subcontractors to perform up to 25% of the Work under any give Service Order, provided that each subcontractor is required by contract to be bound by the provisions of this Contract and any applicable Service Order. Contractor must provide City with written proof of compliance with this provision upon request. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 4 of 12 9.2 City may reject any subcontractor of any tier and bar a subcontractor from performing Work on the Project, if City in its sole discretion determines that subcontractor’s Work falls short of the requirements of this Contract or constitutes grounds for rejection under the Public Contract Code. If City rejects a subcontractor, Contractor at its own expense must perform the subcontractor’s Work or hire a new subcontractor that is acceptable to City. A Notice of Completion must be recorded within fifteen (15) days after City accepts the Work under a particular Service Order if the Work involves work by subcontractors. 10. RECORDS AND DAILY REPORTS 10.1 Contractor must maintain daily reports of the Work and submit them to City upon request and at completion of Work pursuant to a Service Order. The reports must describe the Work and specific tasks performed, the number of workers, the hours, the equipment, the weather conditions, and any circumstances affecting performance. City will have ownership of the reports, but Contractor will be permitted to retain copies. 10.2 If applicable, Contractor must keep a separate set of as-built drawings showing changes and updates to the Scope of Work or the original drawings as changes occur. Actual locations to scale must be identified for all major components of the Work, including mechanical, electrical and plumbing work; HVAC systems; utilities and utility connections; and any other components City determines should be included in the final drawings of the Project. Deviations from the original drawings must be shown in detail, and the location of all main runs, piping, conduit, ductwork, and drain lines must be shown by dimension and elevation. 10.3 Contractor must maintain complete and accurate accounting records of its Work, in accordance with generally accepted accounting principles, which must be available for City review and audit, kept separate from other records, and maintained for four (4) years from the date of City’s final payment. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and Contractors (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings), of every nature, arising directly or indirectly from this Contract or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties; (b) Performance or nonperformance of the Work or of any obligations under the Contract by Contractor, its employees, agents, servants, or subcontractors; (c) Payment or nonpayment by Contractor or its subcontractors or sub-subcontractors for Work performed on or off the Project Site; and (d) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 5 of 12 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim, in accordance with California Public Contract Code Section 9201. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Contract. 11.3 Contractor’s duties under this entire Section 11 are not li mited to Contract Price, Workers’ Compensation, or other employee benefits, or the insurance and bond coverage required in this Contract. Nothing in the Contract shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. 11.4 Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Contract, a purchase order or other transaction. 11.5 Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Contract. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6 This Section 11 shall survive termination of the Contract. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit C, and must maintain the insurance for the Contract Time, or longer as required by City. City will not execute the Contract until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor’s compensation or terminating the Contract. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Contract. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Work, as required by the Immigration Reform and Control Act. 13.2 Labor Laws. a. The following provisions apply to any Service Order of $1,000 or more: i. In General. For purposes of California labor law, this is a public works contract subject to the provisions of Part 7 of Division 2 of the California Labor Code (Sections 1720 et seq.). In accordance with Labor Code Section 1771, Contractor and all subcontractors shall pay not less than current prevailing wage rates as determined by the Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 6 of 12 California Department of Industrial Relations (“DIR”) to all workers employed on this project. In accordance with Labor Code Section 1815, Contractor and all subcontractors shall pay all workers employed on this project 1 ½ the basic rate of pay for work performed in excess specified hour limitations. The work performed pursuant to this Contract is subject to compliance monitoring and enforcement by the Department of Industrial Relations. ii. Registration. Contractor and all subcontractors shall not engage in the performance of any work under this Contract unless currently registered and qualified to perform public work pursuant to section 1725.5 of the California Labor Code. Contractor represents and warrants that it is registered and qualified to perform public work pursuant to section 1725.5 of the Labor Code and will provide its DIR registration number, along with the registration numbers of any subcontractors as required, to the City. iii. Posting. Contractor shall post at the job site the determination of the DIR director of the prevailing rate of per diem wages together with all job notices that are required by regulations of the DIR. iv. Reporting. Contractor and any subcontractors shall keep accurate payroll records in accordance with Section 1776 of the Labor Code and shall furnish the payroll records directly to the Labor Commissioner in accordance with the law. v. Report on Prevailing Rate of Wages. The City has obtained the general prevailing rate of per diem wages in the vicinity of the project for each type of worker needed, a copy of which is on file at the City of Cupertino City Hall, and shall be made available to any interested party upon request. vi. Employment of Apprentices. Contractor’s attention is directed to the provisions in Sections 1777.5 and 1777.6 of the Labor Code concerning the employment of apprentices by the Contractor or any subcontractor. It shall be the responsibility of the Contractor to effectuate compliance on the part of itself and any subcontractors with the requirements of said sections in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex-officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. vii. Penalties. Contractor’s attention is directed to provisions in Labor Code Sections 1775 and 1813. In accordance with Labor Code Section 1775, Contractor and subcontractors may be subject to penalties for Contractor’s and subcontractors’ failure to pay prevailing wage rates. In accordance with Labor Code Section 1813, Contractor or subcontractors may be subject to penalties for Contractor’s or subcontractors’ failure to pay overtime pay rates for hours worked by workers employed on this project in excess specified hour limitations. b. Contractor must compensate workers who are paid less than prevailing wages or required to work more than a legal day’s work. Contractor will also be required to pay City a penalty of $200.00 per worker for each day of violation. c. As required by Labor Code Section 1861, by signing this Contract Contractor certifies as follows: “I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self - insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the work of this contract.” Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 7 of 12 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti -discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or Contractor’s employees or subcontractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Contractor, its employees, subcontractors, servants, and agents, may not have, maintain, or acquire a conflict of interest in relation to this Contract in violation of law, including Government Code section 1090 and Government Code section 81000 and their accompanying regulations. No officer, official, employee, consultant, or other agent of the City (“City Representative”) may have, maintain, or acquire a “financial interest” in the Contract, as that term is defined by state law, or in violation of a City ordinance or policy while serving as a City Representative or for one year thereafter. Contractor, its employees, subcontractors, servants, and agents warrant they are not employees of City nor do they have any relationship with City officials, officers, or employees that creates a conflict of interest. Contractor may be required to file a conflict of interest form if it makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by City rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of this Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements, or terminating this Contract. City reserves all other rights and remedies available under the law and this Contract, including the right to seek indemnification under Section 11 of this Contract. 14. BONDS For any Service Order of $25,000 or more, Contractor must obtain a payment bond and a performance bond, each in the penal sum of 100% of the compensation pursuant to the Service Order, using the Bond Forms attached and incorporated here as Exhibit D. Each bond must be issued by a surety admitted in California, with a financial rating from A.M. Best Company of Class A- or higher, or as otherwise acceptable to City. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City within seven (7) calendar days after written notice from City. If Contractor fails to do so, City may in its sole discretion and without prior notice, purchase bonds at Contractor’s expense, deduct the cost from payments due Contractor, or terminate the Service Order or Contract. City will not authorize work under a Service Order until the required bonds are submitted. 15. UTILITIES, TRENCHING, AND EXCAVATION 15.1 Contractor must call the Underground Service Alert (“USA”) 811 hotline and request marking of utility locations before digging or commencing Work. For underground service alerts Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 8 of 12 for street lighting and traffic signal conduits, City’s Service Center must be called at (408) 777 - 3269. Government Code Section 4215 requires Contractor to notify City and Utility in writing if it discovers utilities or utility facilities not identified in the Contract. 15.2 Pursuant to Government Code Section 7104, Contractor must stop work, notify City in writing, and wait for instructions if one of the conditions below is found at the worksite. City will work with Contractor to amend the Contract or issue a change order if the discovered conditions materially change the Work/Performance, Contract Time or Contract Price. (a) Material believed to be hazardous waste under Health and Safety Code Section 25117, and which requires removal to a Class I, Class II, or Class III disposal site pursuant to law; (b) Subsurface or latent physical conditions at the Project worksite differing from those indicated by information about the worksite made available to Contractor; and (c) Unknown physical conditions at the Project worksite of any unusual nature, materially different from those ordinarily encountered and from those generally recognized as inherent in the character of the Work. 15.3 For Service Orders where compensation is $25,000 or higher that require excavation or involve trenches five feet or more in depth, Contractor must submit a detailed plan for City approval, per Labor Code Section 6705, prior to commencing work. The plan must show the design of shoring, bracing, sloping, and other provisions for worker protection from caving ground and other hazards. The protective system must comply with all Construction Safety Orders. If the plan varies from shoring system standards, it must be prepared by a registered civil or structural engineer. 16. URBAN RUNOFF MANAGEMENT 16.1 All Work must fully comply with federal, state, and local laws and regulations concerning storm water management. Contractor must avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, Contractor will use only the amount of water necessary to dampen the dust. Contractor will take all steps necessary to keep wash water out of the streets, gutters, and storm drains. Prior to the start of the Work, Contractor will implement erosion and sediment controls to prevent pollution of storm drains, and must upgrade and maintain these controls based on weather conditions or as otherwise required by City. These controls must be in place during the entire Contract Time and must be removed at the end of construction and completion of the Work. Such controls must include, but will not be limited to, the following requirements: (a) Install storm drain inlet protection devices such as sand bag barriers, filter fabric fences, and block and gravel filters at all drain inlets impacted by construction. During the annual rainy season, October 15 through June 15, storm drain inlets impacted by construction work must be filter-protected from onsite de-watering activities and saw-cutting activities. Shovel or vacuum saw-cut slurry and remove from the Work site; (b) Cover exposed piles of soil or construction material with plastic sheeting. Store all construction materials in containers; (c) Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain and at the end of each work day. When the Work is completed, wash the streets, collect and dispose of the wash water offsite in lawful manner; Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 9 of 12 (d) After breaking old pavement, remove debris to avoid contact with rainfall/runoff; (e) Maintain a clean work area by removing trash, litter, and debris at the end of each work day and when Work is completed. Clean up any leaks, drips, and other spills as they occur. These requirements must be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, and any other applicable documents on stormwater quality controls for construction. Contractor’s failure to comply with this Section will result in the issuance of noncompliance notices, citations, Work stop orders and regulatory fines. 17. PROJECT COORDINATION City Project Manager. The City assigns Ken Tanase as the City’s representative for all purposes under this Contract, with authority to oversee the progress and performance of the Scope of Work. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Parham Ostadi as its single Representative for all purposes under this Contract, with authority to oversee the progress and performance of the Work. Contractor’s Project manager is responsible for coordinating and scheduling the Work in accordance with City instructions, service orders, and the Schedule of Performance. Contractor must regularly update the City’s project manager about the status, progress and any delays with the work. City’s written approval is required prior to Contractor substituting a new Representative which shall result in no additional costs to City. 18. ABANDONMENT AND TERMINATION 18.1 City may abandon or postpone the Work or parts thereof at any time. Contractor will be compensated for satisfactory Work performed through the date of abandonment and will be given reasonable time to close out Work under a Service Order. With City’s pre-approval in writing, the time spent in closing out Work under a Service Order will be compensated up to ten percent (10%) of the total time expended in performing the Work. 18.2 City may terminate the Contract for cause or without cause at any time. Contractor will be paid for satisfactory Work rendered through the termination date and will be given reasonable time to close out the Work. 18.3 Final payment will not be made until Contractor delivers the Work and provides records documenting the Work, products, and deliverables completed. 19. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION This Contract is governed by the laws of State of California. Venue for any legal action shall be the Superior Court of the County of Santa Clara, California. The dispute resolution procedures of Public Contract Code Section 20104, et seq., incorporated here by reference, apply to this Contract and Contractor is required to continue the Work pending resolution of any dispute. Prior to filing a lawsuit, Contractor must comply with the claim filing requirements of the California Government Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 10 of 12 Code. If the Parties elect arbitration, the arbitrator’s award must be supported by law and substantial evidence and include detailed written findings of law and fact. 20. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection with this Contract, the prevailing party will be entitled to reasonable attorney fees and costs. 21. SIGNS/ADVERTISEMENTS No signs may be displayed on or about City’s property, except signage which is required by law or by the Contract, without City’s prior written approval as to size, design and location. 22. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Contract. 23. WAIVER Neither acceptance of the Work nor payment thereof shall constitute a waiver of any contract provision. City’s waiver of a breach shall not constitute waiver of another provision or breach. 24. WARRANTY Contractor warrants that materials and equipment used will be new, of good quality, and free from defective workmanship and materials, and that the Work will be free from material defects not intrinsic in the design or materials. All Work, materials, and equipment should pass to City free of claims, liens, or encumbrances. Contractor warrants the Work and materials for one year from the date of City’s acceptance of the Work as complete (“Warranty Period”), except when a longer guarantee is provided by a supplier, manufacturer or is required by this Contract. During th e Warranty Period, Contractor will repair or replace any Work defects or materials, including damage that arises from Contractor’s Warranty Work, except any wear and tear or damage resulting from improper use or maintenance. 25. ENTIRE AGREEMENT This Contract and the attachments, documents, and statutes attached, referenced, or expressly incorporated herein, including authorized amendments or change orders constitute the final and complete contract between City and Contractor with respect to the Work and the Project. No oral contract or implied covenant will be enforceable against City. If there is any inconsistency between any term, clause, or provision of the main Contract and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Contract shall prevail and be controlling. 26. SEVERABILITY/PARTIAL INVALIDITY If a court finds any term or provision of this Contract to be illegal, invalid, or unenforceable, the legal portion of said provision and all other contract provisions will remain in full force and effect. Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 11 of 12 27. SURVIVAL The contract provisions which by their nature should survive the Contract or Completion of Project, including without limitation all provisions regarding warranties, indemnities, payment obligations, insurance, and bonds, shall remain in full force and effect after the Work is completed or Contract ends. 28. INSERTED PROVISIONS Each provision and clause required by law for this Contract is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate. 29. HEADINGS The headings in this Contract are for convenience only, are not a part of the Contract and in no way affect, limit, or amplify the terms or provisions of this Contract. 30. COUNTERPARTS This Contract may be executed in counterparts, each of which is an original and all of which taken together shall form one single document. 31. NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 Attention: Ken Tanase Email: kent@cupertino.org To Contractor: Syserco, Inc 215 Fourier Ave. Fremont, CA 94539 Attention: Parham Ostadi Email: p.ostadi@syserco.com 32. EXECUTION The persons signing below warrant they have the authority to enter into this Contract and to legally bind their respective Parties. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313. This Contract may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. SIGNATURES CONTINUE ON THE FOLLOWING PAGE Service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center On-Call Public Works Contract/ August 2021 Page 12 of 12 IN WITNESS WHEREOF, the parties have caused the Contract to be executed. CITY OF CUPERTINO A Municipal Corporation By Name Title Date SYSERCO, INC By Name Title Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Majd Khleif CEO Nov 5, 2021 Majd Khleif Christopher D. Jensen Nov 5, 2021 Director of Public Works Roger Lee Nov 5, 2021 Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Preventative Maintenance This Service and Support Program will include the following scopes of services to be provided for the equipment contained within your Facility. System Level Preventive Maintenance Routines: Preventative Maintenance Routines save energy, extends mechanical equipment lifespan, and reduces downtime. The Preventative Maintenance Routines as defined within this section shall be executed by Syserco’s trained professionals to ensure that your facility operates optimally. Syserco will perform System Diagnostics through a combination of onsite and remote access via our Service Response Center. This preventative maintenance routine during the 2021-2022 period will be performed on an annual basis. x Review Site Log: o Each Preventative Maintenance routine begins with a review of your site log so that ongoing issues can be noted and the root cause addressed. x Review Network Workstations / Communication: o Verify Server Communication with all Global Controllers. o Review automation system for CRITICAL and OFF-LINE status indicators. x Perform System Analysis of EMS Software: o Record current version of EMS Software relative to user needs and versions supported. o User Account Analysis of EMS Software relevant towards system security and troubleshooting purposes. x Review Global Controllers Operation: o Accurate and reliable operation of the Global Controllers is key to the successful operation of your facility. o ROC File Version is verified against most recent version and known system issues. o The DDC Program is verified to be running. o System Date/Time settings are verified. o Each Global Controller shall be diagnosed to ensure adequate memory is available to perform trending, alarming and other system tasks to prevent slow speed of response and data loss. o Review the number of global controller restarts to identify excessive faults, stability of onsite power and controller reliability. x Identify overridden points: o Overridden points can increase energy consumption, create comfort and safety issues. o Overridden points will be documented and a remediation plan will be discussed with the customer. x Review Alarm Log: o Points generating excessive alarms will be noted. o The technician will make recommendations to address root cause hardware or software issues causing alarms. x Review Schedules: o Review equipment operation schedules and identify any anomalies. o The technician will make recommendations to address issues causing discrepancies with system operation. x Perform General System Operational Review: o While onsite and performing the above Preventative Maintenance routines the Service Technician will review the system holistically from the Graphic Workstation and ensure the EMS control system is operating as desired. o Any discrepancies or areas of concern will be noted. x Network Analysis EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Disaster Recovery: The electronic information stored within your system represents a significant part of your investment. In the event of a catastrophic system failure, these backups allow us to completely restore your system to the last backup state. During each Preventative Maintenance visit, Syserco will perform a full system backup. Two copies of this backup will be made. One will be maintained onsite at your facility and the second archived securely offsite. Corrective Action Implementation (PM): After completing the Preventative Maintenance routine, Syserco will provide 1 (one) day of labor for each PM period (1 total days) to remediate any identified deficiencies that the Syserco Team deems critical to the operation of your system or require immediate attention. If the identified deficiencies require more labor than allotted, corrective options will be discussed during the Preventative Maintenance review with your Service Account Manager. Customer Support Syserco’s Customer Support Services assist you and your staff in running your facility more efficiently and in fully utilizing the power of your Energy Management System. Operator Support and Coaching: Our system experts will work with your staff to ensure that your operators are properly utilizing the control system to maximize energy savings and occupant comfort. Syserco will provide 2 (two) of pre-scheduled Operator Support to assist your staff in modifying the system, identifying, verifying, and resolving issues found and/or providing supplemental training. This pre- allocated time allows you to control your operating budget while meeting your facility’s changing needs. Suggestions for this scope depending upon owners’ explicit needs may include: x Site Specific Training x Program Modifications x Implementation of Advanced Control Strategies x Graphics Modifications x Hardware Changes x Minor Control System Modifications x Other Owner-Directed Services Emergency Response Services Online Technical Support: Syserco provides our Service and Support Program customers with access to a Service Response Center staffed with Factory – Trained Automation Service Technicians during Normal Working Days between the hours of 7 AM and 4 PM. This service provides you with a direct line to skilled technicians who can provide you immediate assistance in analyzing problems and recommending solutions via telephone or an Internet connection to your facility. This service often eliminates the need for costly emergency onsite visits, saving you time and money. This agreement includes online response to assist with emergencies and troubleshooting based upon historical usage for this and similar type facilities. In the event usage exceeds historical norms, Syserco reserves the right to adjust pricing to reflect actual usage. x The direct phone number for the Service Response Center is 877-360-3637 x Preferred Response: o Response window 7 AM to 4 PM regular Business Days. o Online/Phone response within 4 hours. o If an emergency site visit is required, we will be onsite by the Second Business Day for calls received prior to 1 PM. x Non-emergency issues as determined by your staff and ours, will be scheduled for the next available business day. x Labor and materials for all Emergency onsite response that occurs outside of normally scheduled service visits will be billed at your discounted T&M rate. EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Service Delivery & Discounts At Syserco, we are focused on providing the highest levels of customer service and support. To achieve this, we have implemented a multi-tiered approach to service and quality assurance to ensure we deliver on this goal. Dedicated Service Team: Syserco assigns a dedicated team to manage your complete service experience. This team consists of an Account Executive, a Service Account Manager and at least two technicians. This dedicated Factory – Trained Service Team not only knows automation systems, but they know your site and its standards. Because of this working knowledge, we can quickly diagnose and solve control problems, thus saving hours of labor that would be required by someone less familiar with your energy management system. Quality Assurance: To ensure that our services are of the highest quality, Syserco utilizes a structured Quality Assurance and Customer Satisfaction System. Our team will meet with you on a regular basis to discuss our performance and your satisfaction with the services provided. These regular meetings are augmented with a formal “Customer Satisfaction Score Card” where you are given a chance to give direct feedback on the service you are provided. Service Work-Order Documentation: All scheduled service visits include complete documentation of the services provided, findings of the technician and recommendations for improvement. Unscheduled service visits (T&M or Emergency response) will be documented by a work order form detailing the services performed, materials used, and hours spent. Discount on Labor: As a Service and Support Program customer you are entitled to a 20% discount off our standard non-Service and Support Program Time & Material labor rates. These hourly rates apply to work beyond the scope of your Service and Support Program, including system modifications, emergency response, additional training, etc. Labor rates are published and revised annually. 2021 T&M Rates - Bay Area (Service and Support Program, 20% Discount): Trade Straight Time Overtime Double Time Service Technician $192 $269 $355 Service Account Manager $219 $307 $406 Sr. Automation Engineer $216 $302 $399 Data Scientist $216 $302 $399 2021 Electrician Rates: Trade Straight Time Overtime Double Time Journeyman ( San Francisco / Santa Clara) $205 $288 $373 Foreman (San Francisco / Santa Clara $226 $316 $418 Journeyman (All other bay) $187 $262 $346 Discount on Material: As a Service and Support Program customer, you will receive a 60% discount off the Alerton, Delta, and Veris published list price schedule for parts and software sales and a 55% discount off the Belimo list price schedule. EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Dedicated Service Team A major benefit of a Syserco Service and Support Program derives from having our Factory-Trained automation professionals familiar with your facility and its systems. The Service Team assigned to your facility are specialists in maintaining and troubleshooting your significant investment. This team includes an Account Executive, a Service Account Manager, Primary and Secondary Service Technicians. The following team members will be dedicated to providing services within your facility: x Director of Service Operations – Anthony Khaymovich: The Director of Service Operations is a key member of the executive team responsible for overseeing the daily operation of the entire service support team. They manage the team of technical support professionals to ensure we are providing our best customer satisfaction while we deliver world class support services to our service support program clients. x Service Account Executive: Your Service Account Executive works with you and your team to identify your strategic business objectives and craft custom solutions to help you meet them. They work with the Syserco Service Team to ensure service is provided in accordance with this contract and that it continues to meet your needs. Annually, the Account Executive will conduct a formal review of this agreement with your staff to discuss the services performed during the past year, to recommend improvements and options to enhance system performance, resolve operational problems, and modify our offerings as necessary to meet your changing needs and objectives. x Service Account Manager: The Service Account Manager is a core member of the executive team responsible for building on top of our existing support offerings and delivering a consistent and high level of customer loyalty. They are a technical resource who understands the nuances of working at your site, assists with scheduling the service specialists, and works with the team and your staff on incremental system / facility improvements and upgrades. The Service Account Manager is responsible to ensure service is provided in accordance with this contract and to continually consult with you and your staff regarding your objectives and to assist in developing a plan to reach them. x Primary Service Technician: Your Primary Service Technician is a Factory – Trained Automation Technician. They are made familiar with your site, its systems and its procedures. They are assigned to execute your Preventative Maintenance Routines, Operator Coaching, and other contracted services. x Secondary Service Technician: To ensure depth of coverage, Syserco assigns a Secondary Technician who is cross trained by the Primary Technician in the specific intricacies of your site. In the event your Primary Service Technician is unavailable to provide scheduled service due to sickness, vacation, etc. the Secondary Technician acts as a backup to provide you seamless, continuous coverage. EXHIBIT A Converting Your Data into Knowledge and Savings® Syserco, Inc. | 215 Fourier Avenue | Fremont, CA 94539 | Ph. 510.498.1171 Confidential and Proprietary Signature Page & Pricing Summary By and Between: Syserco Inc. 215 Fourier Avenue Fremont, CA 94539 City of Cupertino Sports Complex 21111 Stevens Creek Blvd. Cupertino, CA 95014 Syserco shall provide the services as outlined in this proposal dated 9/22/21 and the following Terms and Conditions. Services shall be provided at: City of Cupertino Sports Complex 21111 Stevens Creek Blvd. Cupertino, CA 95014. The proposed pricing for these features is based upon a single-year program, billed quarterly in advance. This agreement shall remain in effect for an original term of two (2) year beginning 10/15/2021. This agreement may be modified at any time during the program period to meet the changing needs of your facility with a 60 day written notice to Syserco. Service and Support Program Pricing: Scope Item: Oct/21 to Oct/22 Oct/22 to Oct/23 Base Agreement $16,244 $16,853 Billing Cycle: Annual in advance Semi-Annual in advance (+1% of base price) Quarterly in advance (+1.5% of base price) Prices quoted in this proposal are valid for 30 days. By signature below this proposal is hereby accepted, Customer agrees to enter into the Service and Support Program (as described in the attached Terms and Conditions), and Syserco is authorized to proceed with the work. Accepted By: Submitted By: Ken Tanase Syserco Inc. 21111 Stevens Creek Blvd. 215 Fourier Ave. Cupertino, CA 95014 Fremont, CA 94539 Approved by (Signature): Submitted by (Signature): Approval Name: Name: Parham Ostadi Approver Title: Title Service Sales Specialist Approval Date: Date: 8/12/21 EXHIBIT A NOTE: $26,903.00 has been added to the compensation as an allowance for unforeseen work. Work shall be approved by the City prior to starting work. $16,244 Rate $192 $219 24 8 $16,853 Rate $199 $227 24 $4,781 8 $1,818 1 $4,341 4 $909 Preventative Maintenance Estimate Technical Support Estimate $6,599 $5,250 Owner Directed Estimate $5,005 Service account manager $227 Tech Support Online $4,341 Prevantative maintenance Estimated Site Hours $199 Service account manager $227 Year 2 total Owner Directed Technician Hours 16 $3,187 Service account manager 8 $1,818 10/15/22‐10/14/23 Added 3.75% escalation Item Hours Subtotal Tech Support Online 1 $4,184 $4,184 Service account manager 4 $219 $876 Service account manager $219 $1,752 Technical Support Estimate $5,060 Preventative Maintenance Estimate $6,360 Prevantative maintenance Estimated Site Hours $192 $4,608 Service account manager 8 $1,752 Owner Directed Technician Hours 16 $3,072 Owner Directed Estimate $4,824 Item Hours Subtotal Total Notes Service Agreement ‐ Cost Analysis:City of Cupertino Sports Complex 10/15/21‐10/14/22 Year 1 total EXHIBIT A CITY OF CUPERTINO MASTER AGREEMENT CONSULTANT SERVICES SERVICE ORDER NO. MA Date:Master Agreement Contract #: Maximum Compensation: Consultant:Firm Name: Address: Contact: Ph: Project Name: Description: (simple project description if appropriate) Attachment A: Includes Description of Project, Scope of Service, Schedule of Performance and Compensation City Project Management Managing Department: Public Works Project Manager: Fiscal/Budget : SO Acc't #:PO #: Project #:Date: Approvals Signatures: Date: Date: Appropriation Certification: I hereby certify that an unexpended appropriation is available in the above fund for the above contract as estimated and that fund are available as of this date of signature City Finance:Date: Encumbrance this Service Order: MA End Date: Consultant/ Contractor Manager/ Supervisor: Management Analyst Master Agreement Maximum Compensation: Master Agreement Unencumbered Balance: Total Previously Encumbered to Date: City of Cupertino Master Agreement Service Order 191002 Exhibit B n Choose Insurance Requirements for On-Call Public Works Construction Contracts - $60,000 Version: Jan. 2021 1 Contractor shall procure and maintain for the duration of the contract, and for five years following the completion of the Project, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (“CGL”): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor’s or Subcontractor’s acts or omissions, including Contractor’s protected coverage, blanket contractual, products and completed operations, vehicle coverage and employer’s non-ownership liability coverage, with limits of at least $2,000,000 per occurrence. The CGL policy must protect against any and all liability for personal injury, death, property damage or destruction, and personal and advertising injury. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. a. It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (1) the minimum coverage/limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Contractor's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO CG 20 10 04 13 c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO Form CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, then hired autos (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance of no less than $1,000,000 per accident for bodily injury or disease, or as otherwise required by statute. If Contractor is self-insured, Contractor must provide a Certificate of Permission to Self-Insure, duly authorized by the DIR. ☐ N/A if box checked (Contractor provides written verification it has no employees). 4. Professional Liability with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate. ☒ N/A if box checked (Contract is not design/build).. 5. Builder’s Risk. Course of Construction insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. ☒ N/A if box checked (Project does not involve construction or improvements/installations to property). ON-CALL PUBLIC WORKS CONSTRUCTION CONTRACTS Small Projects - $60,000 Insurance Requirements: Exhibit C Insurance Requirements for On-Call Public Works Construction Contracts - $60,000 Version: Jan. 2021 2 6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. ☐ N/A if box checked (Project does not involve environmental hazards) If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At City’s option, either: (1) Contractor shall cause the insurer to reduce or eliminate self-insured retentions as respects City, its officers, officials, employees, and volunteers; or (2) Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or the City. OTHER INSURANCE PROVISIONS The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds on the CGL and automobile liability policies with respect to liability arising out of the Services performed by or on behalf of Contractor including materials, parts, or equipment furnished. Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used. Primary Coverage For any claims related to this Project, Contractor’s insurance coverage shall be “primary and non-contributory” and at least as broad as ISO CG 20 01 04 13 with respect to City, its officers, officials, employees and volunteers, and shall not seek contribution from City’s insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a “primary and non-contributory” basis for the benefit of City. Notice of Cancellation Each insurance policy required shall provide that coverage shall not be canceled, except with notice to the City. Each certificate of insurance must state that the coverage afforded by the policy is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. Builder’s Risk Contractor may submit Builder’s Risk insurance in the form of Course of Construction coverage, which shall name the City as a loss payee, as its interest may appear. The Builder’s Risk policy must be issued on an occurrence basis, for all-risk coverage on a 100% completed value basis on the insurable portion of the Project, with no coinsurance penalties, and for the benefit of City. If the Project does not involve new or major reconstruction, City may elect, acting in its sole discretion, to accept an Installation Floater policy instead of Builder’s Risk. For such projects, the Property Installation Floater shall include improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment, and shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Insurance Requirements for On-Call Public Works Construction Contracts - $60,000 Version: Jan. 2021 3 Work, including during transit, installation, and testing at the City’s site. Waiver of Subrogation Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. Contractor agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors. Acceptability of Insurers Insurance must be issued by insurers acceptable to City and licensed to do business in the State of California, and each insurer must have an A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VII” or better. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13. Surety Bonds As required by Contract and described in the Contract Documents. The Payment and Performance Bonds shall be in a sum equal to the applicable Service Order Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract Price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California. Special Risks or Circumstances City reserves the right to modify these requirements, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances. 1325217.1 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 9/3/2021 License # 0G66614 (925) 226-7350 (925) 226-7380 20478 Syserco, Inc. 215 Fourier Avenue Fremont, CA 94539 20443 35289 20044 20494 31127 A 1,000,000 X X 5095094915 3/1/2021 3/1/2022 100,000 15,000 1,000,000 2,000,000 2,000,000 1,000,000B X X 6017012588 3/1/2021 3/1/2022 10,000,000C 6080526167 3/1/2021 3/1/2022 10,000,000 10,000 D X SYWC245465 3/1/2021 3/1/2022 1,000,000 Y 1,000,000 1,000,000 E Installation Floater 6012450485 3/1/2021 Per Occurrence 1,200,000 F E&O w/ Pollution 6017133377 3/1/2021 3/1/2022 Each Claim / Agg 5,000,000 Re: ON-CALL PUBLIC WORKS, dates: 09/15/2021 - 09/15/2023. The city of Cupertino, its city council, officers, officials, employees, agents, servants and volunteers are additional insured to the extent provided in the attached form. Primary wording to the extent provided in the attached form. Waiver of Subrogation applies to General Liability, Automobile Liability and Workers Compensation, to the extent provided in the attached form. City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 SYSERCO-01 INSUSERVE One Risk Group, LLC DBA: One Risk Management & Insurance Services 6701 Koll Center Parkway, Suite 350 Pleasanton, CA 94566 Certificates@oneriskgroup.com National Fire Insurance Co of Hartford Continental Casualty Company Continental Insurance Company Berkshire Hathaway Homestate Ins Co Transportation Insurance Company Columbia Casualty Company X 3/1/2022 X X X X X X X CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement This endorsement modifies insurance provided under the following : COMMERC IAL GE NERAL LI ABILITY COVERAGE PART It is understood and agreed as follows : I. WHO IS AN INSURED is amended to includ e as an Insured any person or organization whom you are required by written contract to add as an add iti onal insured on this coverage part, but on ly with respect to liability for bodily injury , property damage or personal and advertising injury ca used in whole or in part by your acts or omissions , or the acts or omissions of those acting on your beha lf: A. in the performan ce of your ongoing operations subject to such written contract; or B. in the performance of your work subject to such written contract, but on ly wi th respect to bodily injury or property damage in cl uded in the products-completed operations hazard , and only if: 1. the written contract requires you to provide the additiona l insu red s uch coverage ; and 2. this coverage part provides such coverage. II. But if the written contract requires: ~ A . additional insured coverage under the 11-85 edition , 10-93 edition , or 10-01 edition of CG20 10 , or under the 10- 01 ed ition of CG2037; or B. additional in su red coverage with "arising out of' language; or C. additi onal insured coverage to the greatest extent permissible by law; then paragraph I. above is deleted in its entirety and replaced by the following : WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are requ ired by written contract to add as an add itional in su red on this coverage part, but on ly with respect to liab ility fo r bodily injury, property dam age or per so nal and adve rti s ing injury arising out of your work that is subject to suc h written contract. Ill. Subject always to the terms and conditions of this policy, inclu ding the limits of insura nce , the Insurer wi ll not provide such additional in su red with : A. coverage broader than required by the written contract; or B . a higher limit of ins urance than required by the written contract. IV. The insu rance granted by this endorsement to the additional insured does not apply to bodily injury , property damage , or p e rsonal and advertising injury ari sing out of: A. the rendering of, or the failure to render , any professional architectu ral , enginee r ing , or survey ing services , includ ing: 1. the preparing , approving , or failing to prepare or approve maps , shop drawings , opinio ns , reports , surveys , field orders, change orders or drawings and specifications; and 2. supervisory , inspection , architectural or engineering activities ; or B. any premises or work fo r whic h the additional in su red is spec ifi cally listed as an additional insured on another endorse ment attache d to thi s coverage part. V. Under COMMERCIAL GENERAL LIABILITY CONDITIONS, the Cond ition entitled Other Insurance is amended to add the following , which supersedes any provision to the contrary in this Condition or elsewhe re in thi s coverage part: CNA75079XX (10-16) Page 1 of 2 Nat 'l Fire Ins Co of Hartford Insu red Name : SYSERCO ' INC . Policy No : 5095094 915 Endorsement No: 7 Effec tiv e Date: 03/01/2021 Copy right C NA All Righ ts Reserved . Inc lu d es copyrighted m aterial o f Insura nce Services Office , Inc • with its permission . CNA CNA PARAMOUNT Blanket Additional Insured -Owners, Lessees or Contractors -with Products-Completed Operations Coverage Endorsement Primary and Noncontributory In surance With respect to other insurance available to the additional insured under which the additional insured is a named insured , this insurance is primary to and w ill not seek contribution from such other insurance , provided that a written contract requires the insurance provided by thi s policy to be : 1. primary and non-contributing wi th other insurance available to the additional insured ; or 2. primary and to not seek contribution from any other insurance ava ilable to the additional ins ured . But except as specified above , this insurance will be excess of all other insurance available to the additional insured . VI. Solely with respect to the insurance granted by this endorsement , the section entitled CO MMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows : The Co nditi on entit led Duties In The Event of Occurrence, Offense, Claim or Suit is amend ed w ith the addition of the following : Any additional insured pursuant to this endorsement wi ll as soon as practicable : 1. give th e Insurer written notice of any c laim , or any occurrence or offense which may result in a c laim ; 2. send the Insurer copies of all legal papers received , and otherwise cooperate with the Insurer in the investigation , defense, or settlement of the c laim; and 3. make avail able any other insurance , and tender t he defense and indem nity of any c laim to any oth er insure r or se lf-insure r , whose pol icy or program applies to a loss that the In su rer covers under this coverage p art. However, if the written cont ract requires this insurance to be primary and non-contributory , this paragraph 3. does not apply to in surance on which the additional insured is a named insured. The Insurer has no duty to defend or indemnify an additional insured under this endorsement until the Insurer receives written notice of a claim from the additional insured . VII. Solely with re spect to the insurance granted by this endorsement, the sect ion entitled DEFINITIONS is amended to add the following definition : Writte n contract means a written con tract or written agreement that requires you to make a person or organization an additional insu red on this coverage part, provided the contract or agreement: A. is currently in effect or becomes effective during the term of this policy ; and B. was executed prior to: 1. the bodily injury or property damage; or 2. the offe nse that caused the personal and adv ertising injury ; for which the add itional insured seeks coverage . Any coverage granted by this endorse ment shall apply solely to the extent permiss ible by law. All other terms and co ndit ions of the Policy rema in unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers , takes effect on the effective date of said Policy at the hour stated in said Policy , unless another effective date is shown below , and expires concurrently with said Policy . CNA75079XX (10-16) Page 2 of2 Nat 'l Fire Ins Co of Hartford Ins ured Name : SYSERCO ' INC. Copyrig ht CNA All Rights Reserved Policy No : 5095094915 Endorsement No : 7 Effective Date : 03/01/2021 Includes copyrighted material o f Insurance Services Office, Inc .. with its permission . Syserco for service, maintenance, repairs & Improvements to the energy management system at Cupertino Sports Center Final Audit Report 2021-11-05 Created:2021-10-11 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAjbuTPiy5dvnWJ4OR3kKXp-cL31YdcV5y "Syserco for service, maintenance, repairs & Improvements to th e energy management system at Cupertino Sports Center" Histo ry Document created by City of Cupertino (webmaster@cupertino.org) 2021-10-11 - 10:55:57 PM GMT- IP address: 35.229.54.2 Document emailed to Julia Kinst (juliak@cupertino.org) for approval 2021-10-11 - 11:00:18 PM GMT Document approved by Julia Kinst (juliak@cupertino.org) Approval Date: 2021-10-11 - 11:03:49 PM GMT - Time Source: server- IP address: 216.198.111.214 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-10-11 - 11:03:51 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-10-11 - 11:26:18 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Parham Ostadi (p.ostadi@syserco.com) for signature 2021-10-11 - 11:26:21 PM GMT Email viewed by Parham Ostadi (p.ostadi@syserco.com) 2021-10-11 - 11:28:24 PM GMT- IP address: 23.116.47.238 Email viewed by Parham Ostadi (p.ostadi@syserco.com) 2021-10-13 - 6:30:38 PM GMT- IP address: 23.116.47.238 Email viewed by Parham Ostadi (p.ostadi@syserco.com) 2021-10-20 - 8:50:15 PM GMT- IP address: 108.60.105.104 Email viewed by Parham Ostadi (p.ostadi@syserco.com) 2021-10-28 - 7:07:03 PM GMT- IP address: 12.0.206.38 Document signing delegated to Majd Khleif (contracts@syserco.com) by Parham Ostadi (p.ostadi@syserco.com) 2021-11-05 - 5:21:45 PM GMT- IP address: 162.225.203.168 Document emailed to Majd Khleif (contracts@syserco.com) for signature 2021-11-05 - 5:21:45 PM GMT Email viewed by Majd Khleif (contracts@syserco.com) 2021-11-05 - 5:21:55 PM GMT- IP address: 162.225.203.168 Document e-signed by Majd Khleif (contracts@syserco.com) Signature Date: 2021-11-05 - 7:30:39 PM GMT - Time Source: server- IP address: 162.225.203.168 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature 2021-11-05 - 7:30:43 PM GMT Email viewed by Christopher D. Jensen (christopherj@cupertino.org) 2021-11-05 - 7:31:11 PM GMT- IP address: 174.194.202.202 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2021-11-05 - 8:11:36 PM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to Roger Lee (rogerl@cupertino.org) for signature 2021-11-05 - 8:11:39 PM GMT Email viewed by Roger Lee (rogerl@cupertino.org) 2021-11-05 - 8:20:24 PM GMT- IP address: 23.118.107.108 Document e-signed by Roger Lee (rogerl@cupertino.org) Signature Date: 2021-11-05 - 8:20:56 PM GMT - Time Source: server- IP address: 23.118.107.108 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-11-05 - 8:20:58 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-11-05 - 8:24:30 PM GMT- IP address: 104.47.45.254 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-11-05 - 8:24:40 PM GMT - Time Source: server- IP address: 162.245.20.145 Agreement completed. 2021-11-05 - 8:24:40 PM GMT