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21-253 ARC, As-built Building Documentation for 10455 Torre Ave
As-built Building Documentation for 10455 Torre Ave 1 of 11 Design Professional Agr (Single) / October 2021 DESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE) WITH ARCHITECTURAL RESOURCE CONSULTANTS 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Architectural Resource Consultants (“Consultant”), a Corporation for As-built Building Documentation for 10455 Torre Ave (“Project”), and is effective on the last date signed below (“Effective Date”). 2. SERVICES 2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set forth in detail in the Scope of Services, attached here and incorporated as Exhibit A, and as further specified in Consultant’s written Proposal as approved by City, except for any provision in the Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto, or as otherwise expressly rejected by City. Consultant further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Project, which are not already encompassed, expressly or implicitly, in the Agreement, the Scope of Services, or the Proposal (“Additional Services”). Additional Services must be authorized in writing by City and Consultant will not be paid for unauthorized Additional Services rendered. Additional Services are subject to all the provisions applicable to Basic Services, except and only to the extent otherwise specified by City in writing. All references to “Services” in the Agreement include Basic Services and Additional Services, unless otherwise stated in writing. The Services may be divided into separate sequential tasks, as further specified in this Agreement, the Scope of Services, and Consultant’s Proposal. Consultant is solely responsible for its errors and omissions and those of its subconsultants, and must promptly correct them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay, liability, and costs resulting from its errors or omissions. 3. TIME OF PERFORMANCE 3.1 Term. This Agreement begins on the Effective Date and ends on June 30, 2022, unless terminated earlier as provided herein (“Contract Time”). The City’s appropriate department head or City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 3.2 Schedule of Performance. All Services must be provided within the times specified in Exhibit B, Schedule of Performance, attached and incorporated here. Consultant must promptly notify City of any actual or potential delay in providing the Services as scheduled to afford the Parties adequate As-built Building Documentation for 10455 Torre Ave 2 of 11 Design Professional Agr (Single) / October 2021 opportunity to address or mitigate delays. If the Services are divided by tasks, Consultant must begin work on each separate task upon receiving City’s Notice to Proceed (“NTP”), and must complete each task within the time specified in Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Consultant must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Consultant for satisfactory performance of the Basic Services and Additional Services, if approved, a cumulative total amount that will be capped so as not to exceed $11,600.00 (“Contract Price”), as specified in Exhibit C, Compensation, attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant’s actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. 4.2 Basic Services. City will pay Consultant $11,600.00 (“Lump Sum Price”) for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The Lump Sum Price is inclusive of all time and expenses, including, but not limited to, sub-Consultants’ costs, materials, supplies, equipment, travel, taxes, overhead, and profit. If the Basic Services are not fully completed, Consultant will be compensated a percentage of the Lump Sum Price proportionate to the percentage of Basic Services that were completed to City’s reasonable satisfaction. 4.3 Additional Services. City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed $0.00 Additional Services provided to City’s reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in accordance will the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If paid on an hourly basis, Consultant will be compensated for actual costs only of normal business expenses and overhead, with no markup or surcharge (“Reimbursable Expenses”). Consultant will not be entitled to reimbursement for copying, printing, faxes, telephone charges, employee overtime, or travel to City offices or to the Project site. 4.4 Invoices and Payments. Monthly invoices must describe the Services completed and the Amount due for the preceding month. City will pay Consultant within thirty (30) days following receipt of a properly submitted and approved invoice for Services. The invoice must separately itemize and provide subtotals for Basic Services and Additional Services, and must state the percentage of completion for each task, as specified in Exhibit C. City will notify Consultant in writing of any disagreements with the invoice or the stated percentage of completion of tasks. If the disagreement is unresolved, City will pay Consultant only for the undisputed portion of the Services. Disputed amounts shall be subject to the Dispute Resolution provision of this Agreement. a. Time and Expenses. For Additional Services provided on an hourly basis, each invoice must also include, for each day of Services provided: (i) name and title of each person providing Services; (ii) a succinct summary of the Services performed by each person; (iii) the time spent per person, in thirty (30) minute increments; (iv) the hourly billing rate or Sub- Consultant charge and payment due; and (v) an itemized list with amounts and explanation for all permitted reimbursable expenses. As-built Building Documentation for 10455 Torre Ave 3 of 11 Design Professional Agr (Single) / October 2021 b. Rates and Receipts. All hourly rates and reimbursable expenses must conform to the City- approved rates set forth in Exhibit C, which will be in effect for the entire Contract Time. Each invoice must attach legible, dated receipts for Reimbursable Expenses. 5. INDEPENDENT CONTRACTOR 5.1 Status. Consultant is an independent Consultant and not an employee, partner, or joint venture of the City. Consultant is solely responsible for the means and methods of performing the Services and shall exercise full control over the employment, direction, compensation and discharge of all persons assisting Consultant in performing the Services. Consultant is not entitled to health benefits, worker’s compensation, retirement, or any City benefit. 5.2 Qualifications and Standard of Care. Consultant represents on behalf of itself and its sub- Consultants that they have the qualifications and skills to perform the Services in a competent and professional manner, as exercised by design professionals performing similar services in the S an Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by City and do not have any contractual relationship with City excepting this Agreement. All Services must be performed as specified to City’s reasonable satisfaction. 5.3 Permits and Licenses. Consultant warrants on behalf of itself and any sub-Consultants that they are properly licensed, registered, and/or certified to perform the Services, as required by law, and that they have procured a valid City Business License, if required by the Cupertino Municipal Code. 5.4 Sub-Consultants. Unless prior written approval from City is obtained, only Consultant’s employees and sub-Consultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all sub-Consultants to furnish proof of insurance for workers’ compensation, commercial liability, auto, and professional liability in reasonable conformity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all sub-Consultants relative to the portion of their work. 5.5 Tools, Materials, and Equipment. Consultant will supply and shall be responsible for all tools, materials, and equipment required to perform the Services under this Agreement. 5.6 Payment of Benefits and Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Consultant 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. Consultant shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Consultant’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 Consultant. 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 Consultant, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Consultant agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City As-built Building Documentation for 10455 Torre Ave 4 of 11 Design Professional Agr (Single) / October 2021 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. 5.7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and those of its sub-Consultants, and must take prompt measures to avoid, mitigate, and correct them at its sole expense. 6. PROPRIETARY/CONFIDENTIAL INFORMATION During the Contract Time, Consultant may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to City. Consultant shall hold in confidence all City information and use it only to perform this Agreement. Consultant shall exercise the same standard of care to protect City information as a reasonably prudent Consultant would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Subject to City meeting its payment obligations for the Services, any interest (including copyright interests) of Consultant in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium, prepared by Consultant under this Agreement (“Work Product”), will be the exclusive property of the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to a third-party without prior written approval by City 7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its sub-Consultants and all copyrights in such Work Product shall constitute City property. If it is determined under federal law that the Work Product is not “works for hire,” Consultant hereby assigns to City all copyrights to the Work Product when and as created, and shall require sub-Consultants to do the same. Consultant may retain copyrights to its standard details, but hereby grants City a perpetual, non-exclusive license to use such details. 7.3 Patents and Licenses. Consultant must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property if incorporated into the Services or Work Product of this Agreement. 7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Consultant and its sub-Consultants to execute or implement any of the following, but Consultant shall not be responsible or liable for City’s re-use of Work Product: (a) For work related to the original Services for which Consultant was hired; (b) To complete the original Services with City personnel, agents or other Consultants; (c) To make subsequent additions to the original Services; and/or (d) For other City projects. 7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute part of the Deliverables required under this Agreement, which shall be provided to City on recycled paper and copied on both sides, except for one single-sided original. Large-scale architectural plans and similar As-built Building Documentation for 10455 Torre Ave 5 of 11 Design Professional Agr (Single) / October 2021 items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. 8. RECORDS 8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the Services and Compensation, in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Consultant’s performance, benchmarks, and deliverables. The records and supporting documents must be kept separate from other files and maintained for a period of four (4) years from the date of City’s final payment. 8.2 Consultant will provide City full access to Consultant’s books and records for review and audit, to make transcripts or copies, and to conduct a preliminary examination of all the work, data, documents, proceedings, and activities related to this Agreement. If a supplemental examination or audit of Consultant’s records discloses non-compliance with appropriate internal financial controls, a contract breach, or a failure to act in good faith, City will be entitled to recover from Consultant the costs of the supplemental examination. If this is a lump sum fee Agreement, City will be provided access to records of reimbursable expenses and the instruments of service/deliverables for review and audit. This Section 8 survives the expiration/termination of this Agreement. 8.3 Consultant acknowledges that certain documents generated or received by Consultant in connection with the performance of this Agreement, including but not limited to correspondence between Consultant and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Consultant shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided. 9. ASSIGNMENT Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Consultant as a legal entity will be considered an Assignment subject to City approval, which shall not be unreasonably withheld. For purposes of this provision, control means fifty percent (50%) or more of the voting power of the business entity. This Agreement binds Consultant, its heirs, successors and assignees. 10. PUBLICITY / SIGNS Any publicity generated by Consultant for the project under this Agreement, during the term of this Agreement and for one (1) year thereafter, will reference the City’s contributions in making the project possible. The words “City of Cupertino” will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews, and newspaper articles. No signs may be posted, exhibited, or displayed on or about City property, except signage required by law or this Agreement, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law and except for losses caused by the sole or active As-built Building Documentation for 10455 Torre Ave 6 of 11 Design Professional Agr (Single) / October 2021 negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold harmless the City as follows: a. Indemnity for Design Professional Liability: With respect to the performance of design professional services by a design professional as defined in California Civil Code Section 2782.8, to the fullest extent permitted by law, Consultant shall indemnify and hold harmless City, its officers, officials, agents, employees, and volunteers (collectively and/or individually “City”) from and against any and all liabilities, claims, damages, losses, costs, or expenses (including, without limitation, costs, attorneys’ fees, and expert fees of litigation and alternative dispute resolution) of every nature to the extent arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Consultant or any of its officers, employees, serv ants, agents, or subcontractors (collectively and/or individually “Consultant”), in the performance of this Agreement or failure to comply with any obligations of the Agreement. If it is finally determined (through a non-appealable judgment or an agreement between City and Consultant) that liability is caused by the comparative negligence or willful misconduct of City, then Consultant’s indemnification and hold harmless obligation shall not exceed Consultant’s finally determined percentage of liability based upon the comparative fault of Consultant. Irrespective of any language to the contrary in this Agreement, the Consultant has no duty to provide or to immediately pay for an up-front defense of City against unproven claims or allegations, but shall reimburse those litigation costs and expenses (including, without limitation, attorneys’ fees, and expert fees) incurred by the City to the extent caused by the negligence, recklessness, or willful misconduct of Consultant. In no event shall the cost to defend charged to Consultant exceed Consultant’s proportional percentage of fault, except as described in Section 2782.8(a) and (e) of the California Civil Code. b. Claims Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement, or violation of a United States patent right or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights, which arises out of, pertains to, or relates to Consultant’s negligence, recklessness, or willful misconduct. Such costs and expenses will include reasonable attorney fees for legal counsel of City’s choice, expert fees, and all other costs and fees of litigation. c. Claims for Other Liability. Except as provided in subsections 11.1(a) and (b), to the fullest extent permitted by law, Consultant shall hold harmless, defend (with counsel agreed to by City), and indemnify City and its officers, officials, agents, employees, and volunteers (collectively and/or individually “City”) from and against any and all liability, claim, loss, damage, expense, costs (including, without limitation, costs, attorneys’ fees, and expert fees of litigation) of every nature arising out of, related to, or in connection with the performance of work hereunder by Consultant or any of its officers, employees, servants, agents, or subcontractors, or the failure of the same to comply with any of the obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or sole willful misconduct of the City. Consultant’s duty to defend applies immediately, whether or not liability is established. An allegation or determination that persons other than Contractor are responsible for the claim does not relieve Contractor from its separate and distinct obligation to defend as stated herein. As-built Building Documentation for 10455 Torre Ave 7 of 11 Design Professional Agr (Single) / October 2021 11.2 Consultant will assist City, at no additional cost, in the defense of any claim, dispute, or lawsuit arising out of this Agreement. Consultant’s duties herein are not limited to or subject to the Contract Price, to Workers’ Compensation claims, or to the Insurance or Bond limits and provisions. Nothing in this Agreement shall be construed to give rise to an implied right of indemnity in favor of Consultant against any Indemnitee. 11.3 Consultant agrees to pay the reasonable costs City may incur in enforcing this provision related to Consultant’s indemnification duties, including reasonable attorney fees, fees for legal counsel acceptable to City, expert fees, and all other costs and expenses related to a claim or counterclaim, a purchase order, another transaction, litigation, or dispute resolution. Without waiving any rights, City may deduct money from Consultant’s payments to cover moneys due to City. 11.4 Consultant 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 Consultant 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. 11.5 This Section 11 shall survive expiration or termination of this Agreement. 12. INSURANCE On or before the Contract Time commences, Consultant shall furnish City with proof of compliance with City Insurance Requirements, attached and incorporated here as Exhibit D. City will not execute the Agreement until Consultant has submitted and City has reasonably 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. Alternatively, City may terminate this Agreement or in its sole discretion purchase insurance at Consultant’s expense and deduct costs from payments to Consultant. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Consultant shall comply with all laws and regulations applicable to this Agreement. Consultant will promptly notify City of changes in the law or other conditions that may affect the Project or Consultant’s ability to perform. Consultant is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act, or other federal or state law, rule or regulation. 13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Services include a “public works” component, Consultant must comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. To the extent applicable, Consultant must comply with City’s Labor Compliance Program and with state labor laws pertaining to working days, overtime, payroll records and DIR Registration and Oversight. If the Contract Price is $30,000 or more, Consultant must comply with the apprenticeship requirement in Labor Code Section 1777.5. 13.3 Discrimination Laws. Consultant 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. Consultant shall comply with all anti-discrimination laws, including As-built Building Documentation for 10455 Torre Ave 8 of 11 Design Professional Agr (Single) / October 2021 Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777, and 3077.5. Consistent with City policy prohibiting it, Consultant understands that harassment and discrimination by Consultant or any of its sub-Consultants toward a job applicant, an employee, a City employee, or any other person is strictly prohibited. Consultant agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Consultant shall comply with all conflict of interest laws and regulations applicable to this Agreement and must avoid any conflict of interest. Consultant warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement in violation of California Government Code Section 1090 et seq. Consultant may be required to file a conflict of interest form if Consultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 of Title 2 of the California Code of Regulations and other laws. Services may only be performed by persons who are not employed by City and who do not have any contractual relationship with City, with the exception of this Agreement. Consultant is familiar with and agrees to abide by the City’s rules governing gifts to public officials and employees. 13.5 Remedies. A violation of this Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating this Agreement. City reserves all its rights and remedies under law and this Agreement, including the right to seek indemnification under Section 11. Consultant agrees to indemnify, defend, and hold City harmless from and against any loss, liability, and expenses arising from noncompliance with this Section. 14. PROJECT COORDINATION 14.1 City Project Manager. The City’s Project Manager for all purposes under this Agreement will be Susan Michael, who shall have the authority to manage this Agreement and oversee the progress and performance of the Services. City in its sole discretion may substitute another Project Manager at any time and will advise Consultant of the new representative. 14.2 Consultant Project Manager. Subject to City’s reasonable approval, Consultant’s Project Manager for all purposes under this Agreement will be John Russo, who shall be the single representative for Consultant with the authority to manage compliance with this Agreement and oversee the progress and performance of the Services. This includes responsibility for coordinating and scheduling the Services in accordance with City instructions, service orders, and the Schedule of Performance, and providing regular updates to the City’s Project Manager on the Project status, progress, and any delays. City written approval is required prior to Consultant substituting a new Project Manager, which shall result in no additional costs to City or Project delays. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project with thirty (30) calendar days written notice to Consultant. Consultant will be compensated for satisfactory Services performed through the date of abandonment and will be given reasonable time to assemble the work and close out the Services. No close out work shall be conducted without City reasonable approval of closure costs, which may not exceed ten percent (10%) of the total time expended to the date of abandonment. All charges including job closure costs will be paid in accordance with the provisions of this Agreement and within thirty (30) days of Consultant’s final invoice reasonably approved by the City. As-built Building Documentation for 10455 Torre Ave 9 of 11 Design Professional Agr (Single) / October 2021 16. TERMINATION City may terminate this Agreement for cause or without cause at any time, following reasonable written notice to Consultant at least thirty (30) calendar days prior to the termination date. Consultant will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Consultant closes out the Services and delivers all Work Product to City. All charges approved by City including job closure costs will be paid within thirty (30) days of Consultant’s final invoice. 17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California, excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Consultant must comply with the claims filing requirements under the Government Code prior to filing a civil action in court against City. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). If a dispute arises, Consultant must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator’s award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. This Section 18 survives the expiration/termination of this Agreement. 19. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Agreement. 20. WAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City’s waiver of any breach shall not be deemed to constitute waiver of another term, provision, covenant, or condition or a subsequent breach, whether of the same or a different character 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of the Parties, of every kind or nature, and supersedes any and all other agreements and understandings, either oral or written, between them. Any modification of this Agreement will be effective only if in writing and signed by each Party’s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between any term, clause, or provision of this main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling. As-built Building Documentation for 10455 Torre Ave 10 of 11 Design Professional Agr (Single) / October 2021 22. INSERTED PROVISIONS Each contractual provision or clause that may be required by law is deemed to be included and will be inferred in this Agreement. Either party may request an amendment to cure any mistaken insertion or omission of a required provision. 23. HEADINGS The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit, or amplify the terms or provisions of this Agreement. 24. SEVERABILITY/PARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. 25. SURVIVAL All provisions which by their nature must continue after the Agreement ends, including without limitation those referenced in specific Sections herein, survive this Agreement and shall remain in full force and effect. 26. NOTICES All notices, requests, and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery, the delivery date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino: Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 Attention: Susan Michael Email: SusanM@cupertino.org To Consultant: Architectural Resource Consultants 18141 Irvine Rd. Tustin, CA 92780 Attention: John Russo Email: john.russo@arc-corporate.com 27. EXECUTION The person executing this Agreement on behalf of Consultant represents and warrants that Consultant has the right, power, and authority to enter into this Agreement and carry out all actions herein, and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of As-built Building Documentation for 10455 Torre Ave 11 of 11 Design Professional Agr (Single) / October 2021 Consultant. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement. CITY OF CUPERTINO ARCHITECTURAL RESOURCE A Municipal Corporation CONSULTANTS By Name Title Date By Name Title Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date John Russo President / CEO Nov 17, 2021 John Russo Christopher D. Jensen Susan Michael Nov 17, 2021 CIP Manager Susan Michael Nov 17, 2021 949.851.8115 x101 18141 Irvine Blvd., Tustin CA 92780 www.arc-corporate.com Page 1 of 6 __________ Initials PROPOSAL / CONTRACT City of Cupertino October 28, 2021 Date: Attn: Susan Michael AIA, LEED AP 408.777.1328 Client’s Direct Capital Improvement Programs Manager Public Works 408.510.0622 Client’s Cell 10300 Torre Avenue susanm@cupertino.org Client’s E-mail Cupertino, CA 95014 John M. Russo, AIA ARC Rep Proposal version 2 Mick Cunningham, RA Prepared By Proposal valid for 30 days Project Name Client Project No. ARC Project No. Contract Type Terms 10455 TorreAve., Cupertino-AsBuilt P3198 Fixed Fee COD OVERVIEW: The City of Cupertino (Client) has request ed ARC (Contractor) to provide this proposal for Professional Building Documentation services for creation of an as-built of the building located at 10455 Torre Avenue, Cupertino CA 95014 (see Exhibit ‘A’). SCOPE: We will scan the site, the building perimeter and the building interior on the first and attic levels. The primary intent is to produce 2D AutoCAD plan and elevation deliverables. We will utilize 3D laser scanning to document the space and represent the measurements collected using Revit. The exported 2D AutoCAD deliverables to the client will include the following items: •Site plan, including roof •Floor plan, with outlets, switches, control panels (lighting, electrical, any meters that might exist…) •Attic plan •Reflected ceiling plan, with lighting and HVAC grilles and other obvious visible ceiling devices •2 sections •4 exterior elevations •4 interior elevations of the exterior walls (so, all window sills, header heights are required) ASSUMPTIONS: 1. Drawings will be produced per National CAD Standards. 2. Model will be created in Revit 2020 / 2D CAD will be exported from Revit to AutoCAD 2020 3.This proposal assumes that ARC has complete control over scheduling of the work plan within the Exhibit A, B, & C 949.851.8115 x101 18141 Irvine Blvd., Tustin CA 92780 www.arc-corporate.com Page 2 of 6 __________ Initials constraints of the agreed to project schedule . Client required priorities or intermediate deadlines may affect the efficiency at which the survey work takes place and could result in additional fee s. 4. Above ceiling and other concealed conditions are not included. 5.Items of Interest (IOI’s) captured in the laser scans to be modeled will be modeled to a Level Of Development (LOD) that is representative of the object. In some cases , IOI’s may be modeled as exclusion boxes (i.e. a Unistrut may be modeled as a box shape as opposed to an actual sectional shape, or a grouping of condui ts may be modeled as a box representing the area they occupy, rather than the exact quantity and arrangement of such items). 6.Documentation of any Furniture, Fixtures and Equipment (FF&E) as well are excluded. EXCLUSIONS: 1.Plotting (billed as a reimbursable item). 2.Survey control and placing data on a real-world civil coordinate. 3.ARC is not a land surveyor and cannot provide land survey services. Verification of legal property lines is not included. Should contracted services requir e a Licensed Land Surveyor, ARC shall subcontract such services. 4.Items other than what are specified in the SCOPE above. DELIVERABLES: AutoCAD and PDF files of the items noted the SCOPE above. Revit 2020 model Point cloud data in .rcs / .rcp format SCHEDULE: 1.We will develop a detailed work plan upon authorization outlining our approach to meeting an agreed upon delivery date. 2.We estimate we can complete the data acquisition in ~2 business days on site followed by ~2 business days in the office for registration. 3.We estimate we can complete the data representation in ~ 1 business week in the office following completion of registration. 4.Schedule can be impacted by uncontrollable factors such as building occupants unwillingness to grant access, discovery of unforeseen circumstances not known by ARC at the time of the writing of this Proposal, etc. In the event ARC believes this schedule cannot be met we wil l notify the Client immediately. COMPENSATION: $ 1,820 – travel related expense (airfare, ground transportation, lodging, per diem) $ 4,000 – data acquisition (pdt survey, photos, scanning, registration $ 4,030 – data representation (3D modeling, 2D CAD exported plans and elevations) $ 750 – Revit model $ 1,000 – Point cloud data $11,600 – total fee 949.851.8115 x101 18141 Irvine Blvd., Tustin CA 92780 www.arc-corporate.com Page 3 of 6 __________ Initials 1.We will pre-invoice upon authorization of the work to allow for adequate time for client’s accounting to process the scheduled payment(s). The pre-invoiced amounts will not become due until their prescribed milestone due date. ARC shall provide advance notice of such date so as not to cause a delay through either work stoppage, or delayed release of deliverables. At completion, we will offer a Delivery Review Meeting to review the deliverables (Typically thru a web meeting). This is done to communicate what is ready for delivery to ensure it meets with your expectations. It also allows us to communicate any special information about the deliverables that we feel you may need. Draft deliverables will be released at this time. Upon client’s acceptance of the draft deliverables and receipt of final payment, an official copy of the deliverables will be released. 2.Estimated travel related expenses (ground transportation, lodging, per diem, etc.) are included in the fixed fee quoted. 3.Approved additional services will be performed on an hourly basis per the rates listed in Exhibit B. 949.851.8115 x101 18141 Irvine Blvd., Tustin CA 92780 www.arc-corporate.com Page 4 of 6 __________ Initials EXHIBIT ‘A’ Site preliminary scan plan Attic level preliminary scan plan 949.851.8115 x101 18141 Irvine Blvd., Tustin CA 92780 www.arc-corporate.com Page 5 of 6 __________ Initials First level and perimeter preliminary scan plan AOI (Areas of Interest) 949.851.8115 x101 18141 Irvine Blvd., Tustin CA 92780 www.arc-corporate.com Page 6 of 6 __________ Initials EXHIBIT ‘B’ ARC 2021 Rate Table Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts 1 Form Updated Sept. 2019 Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’s profession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts 2 Form Updated Sept. 2019 Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term. Subconsultants Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. 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 11/8/2021 AssuredPartners Design Professionals Insurance Services,LLC 3697 Mt.Diablo Blvd Suite 230 Lafayette CA 94549 The Certificate Team CertsDesignPro@AssuredPartners.com License#:6003745 Continental Casualty Company 20443 ARCHRES-03 American Casualty Company of Reading,20427ArchitecturalResourceConsultants 888.362.4272 x101 18141 Irvine Blvd Tustin CA 92780-3408 Transportation Insurance Company 20494 1798785148 A X 2,000,000 X 1,000,000 X Contractual Liab 10,000 Included 2,000,000 4,000,000 X X Y Y 6045335723 7/7/2021 7/7/2022 4,000,000 A 1,000,000 X X Y Y 6045335723 7/7/2021 7/7/2022 C X X 1,000,000Y60453357687/7/2021Y 7/7/2022 1,000,000 X 10,000 B XY60215840167/7/2021 7/7/2022 1,000,000 1,000,000 1,000,000 A Professional Liability MCH288311590 9/11/2021 9/11/2022 Per Claim Aggregate Limit $1,000,000 $1,000,000 The insured owns no company vehicles;therefore,hired/non-owned auto is the maximum coverage that applies.Umbrella Liability policy is follow-form to its underlying Policies:General Liability/Auto Liability/Employers Liability.AM Best's Rating on all policies above:A/XII or greater. Re:All Operations of the Named Insured The City of Cupertino,its City Council,officers,officials,employees,agents,servants,and volunteers are named as an additional insured as respects general liability and auto liability as required per written contract or agreement.General Liability is Primary/Non-Contributory per policy form wording.Insurance coverage includes waiver of subrogation per the attached endorsement(s). 30 Day Notice will be sent to holder City of Cupertino 10300 Torre Ave Cupertino CA 95014 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 4-84) WC 04 03 06 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT – CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be @@@@@@@@@@ of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description Policy #6021584016 City of Cupertino 10300 Torre Ave Cupertino,CA 95014 SB146968C (Ed.10-19) IMPORTANT:THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE,OFFENSE,CLAIM OR SUIT.SEE PARAGRAPH C.,OF THIS ENDORSEMENT FOR THESE DUTIES. BLANKET ADDITIONAL INSURED ENDORSEMENT WITH PRODUCTS-COMPLETED OPERATIONS COVERAGE AND BLANKET WAIVER OF SUBROGATION Architects,Engineers and Surveyors This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM BUSINESSOWNERS COMMON POLICY CONDITIONS A.Who Is An Insured is amended to include as an insured any person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement;but the written contract or written agreement must be: 1.Crrently in effect or becoming effective during the term of this policy;and 2.Executed prior to the: a."Bodily injury"or "property damage";or b.Offense that caused the "personal and advertising injury"; for which the additional insured seeks coverage B.The insurance provided to the additional insured is limited as follows: 1.The person or organization is an additional insured only with respect to liability for "bodily injury,""property damage"or "personal and advertising injury"caused in whole or in part by: a.Your acts or omissions;or b.The acts or omissions of those acting on your behalf, in the performance of your ongoing operations specified in the written contract or written agreement;or c."Your work"that is specified in the written contract or written agreement,but only for "bodily injury"or "property damage"included in the "products-completed operations hazard,"and only if: (1)The written contract or written agreement requires you to provide the additional insured such coverage; and (2)This Coverage Part provides such coverage. 2.The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreement or in the Declarations of this policy,whichever is less.These Limits of Insurance are inclusive of,and not in addition to,the Limits of Insurance shown in the Declarations. 3.The insurance provided to the additional insured does not apply to "bodily injury,""property damage"or "personal and advertising injury"arising out of an architect's,engineer's,or surveyor's rendering of or failure to render any professional services including: a.The preparing,approving,or failing to prepare or approve maps,shop drawings,opinions,reports,surveys, field orders,change orders or drawings and specifications by any architect,engineer or surveyor performing services on a project of which you serve as construction manager;or b.Inspection,supervision,quality control,engineering or architectural services done by you on a project of which you serve as construction manager. 4.The insurance provided to the additional insured does not apply to "bodily injury,""property damage"or "personal and advertising injury"arising out of construction or demolition work while you are acting as a construction or demolition contractor. SB146968C (Ed.10-19)Page 1 of 3 Copyright,CNA All Rights Reserved. 40 0 2 0 0 0 7 4 6 0 2 5 3 9 6 5 7 4 9 2 5 6 POLICY #6045335723 SB146968C (Ed.10-19) C.Under Businessowners Liability Conditions,the condition entitled Duties In The Event of Occurrence,Offense, Claim or Suit is amended to add the following: An additional insured under this endorsement will as soon as practicable: 1.Give written notice of an occurrence or an offense to us which may result in a claim or "suit"under this insurance; 2.Tender the defense and indemnity of any claim or "suit"to us for a loss we cover under this Coverage Part; 3.Except as provided for in paragraph D.2.below: a.Tender the defense and indemnity of any claim or "suit"to any other insurer which also has insurance for a loss we cover under this Coverage Part;and b.Agree to make available any other insurance which the additional insured has for a loss we cover under this Coverage Part. We have no duty to defend or indemnify an additional insured under this endorsement until we receive written notice of a claim or "suit"from the additional insured. D.With respect only to the insurance provided by this endorsement,the condition entitled Other Insurance of the BUSINESSOWNERS COMMON POLICY CONDITIONS is amended to delete paragraphs 2.and 3.and replace them with the following: 2.This insurance is excess over any other insurance available to the additional insured,whether primary,excess, contingent or on any other basis,But if required by the written contract or written agreement,this insurance will be primary and noncontributory relative to insurance on which the additional insured is a Named Insured. 3.When this insurance is excess,we will have no duty under Business Liability insurance to defend the additional insured against any "suit"if any other insurer has a duty to defend the additional insured against that "suit"If no other insurer defends,we will undertake to do so,but we will be entitled to the additional insured's rights against all those other insurers. When this insurance is excess over other insurance,we will pay only our share of the amount of the loss,if any, that exceeds the sum of: (a)The total amount that all such other insurance would pay for the loss in the absence of this insurance;and (b)The total of all deductible and self-insured amounts under all that other insurance. We will share the remaining loss,if any,with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. E.Additional Insured –Extended Coverage When an additional insured is added by this or any other endorsement attached to this Coverage Part,the section entitled Who Is An Insured is amended to make the following natural persons insureds: If the additional insured is: 1.An individual,then his or her spouse is an insured; 2.A partnership or joint venture,then its partners,members and their spouses are insureds; 3.A limited liability company,then its members and managers are insureds; 4.An organization other than a partnership,joint venture or limited liability company,then its executive officers, directors and shareholders are insureds;or 5.Any type of entity,then its employees are insureds; but only with respect to locations and operations covered by the additional insured endorsement's provisions,and only with respect to their respective roles within their organizations.Furthermore,employees of additional insureds are not insureds with respect to liability arising out of: (1)"Bodily injury"or "personal and advertising injury"to any fellow employee or to any natural person listed in paragraphs 1.through 4.above; SB146968C (Ed.10-19)Page 2 of 3 Copyright,CNA All Rights Reserved. SB146968C (Ed.10-19) (2)"Property damage"to property owned,occupied or used by their employer or by any fellow employee;or (3)Providing or failing to provide professional health care services. F.The condition entitled Transfer of Rights of Recovery Against Others to Us of the BUSINESSOWNERS COMMON POLICY CONDITIONS is amended to deleted paragraph 2.and replace it with the following: 2.We waive any right of recovery we may have against any person or organization with whom you have agreed to waive such right of recovery in a written contract or agreement because of payments we make for injury or damage arising out of your ongoing operations or "your work"done under a contract with that person or organization and included within the "products-completed operations hazard." All other terms and conditions of the Policy remain unchanged. SB146968C (Ed.10-19)Page 3 of 3 Copyright,CNA All Rights Reserved. 40 0 2 0 0 0 7 4 6 0 2 5 3 9 6 5 7 4 9 2 5 7 SB146902G (Ed.6-16) THIS ENDORSEMENT CHANGES THE POLICY.PLEASE READ IT CAREFULLY. HIRED AUTO AND NON-OWNED AUTO LIABILITY This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM BUSINESSOWNERS COMMON POLICY CONDITIONS SCHEDULE Insurance is provided only with respect to those coverages for which a specific limit is shown: COVERAGE LIMIT Hired Auto Liability:$ Non-owned Auto Liability:$ (If no entry appears above,information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) PROVISIONS A.COVERAGE With respect only to the Coverage(s)for which a limit is shown in the SCHEDULE above,the insurance provided under Coverage A.1.Business Liability for "bodily injury"and "property damage"also applies to "bodily injury"or "property damage"arising out of the maintenance or use of a: •"Hired auto"used by you or your "employee"in the course of your business;and/or •"Non-owned auto"used in the course of your business.Maintenance or use of a "non-owned auto"includes test driving in connection with an "auto business." With respect only to the coverage provided by this endorsement,under Coverages,coverage A.1.Business Liability is amended to: 1.Delete paragraph A.1.b.(1)(b)and replace it with the following: b.This insurance applies: (1)To "bodily injury"and "property damage"only if: (b)The "occurrence"occurs during the policy period;and 2.Delete paragraph A.1.b.(2),. B.LIMITS OF INSURANCE With respect only to the coverage provided by this endorsement,SECTION D.Liability And Medical Expenses Limits of Insurance is deleted in its entirety and replaced with the following: D.Limits Of Insurance 1.Regardless of the number of: a.Insureds; b.Claims made or "suits"brought; c.Persons or organizations making claims or bringing "suits";or d."Autos," the applicable Hired Auto Liability limit or Non-Owned Auto Liability limit shown in the Declarations is the most we will pay for damages under SECTION A.Coverages because of all "bodily injury"and "property damage" resulting from any one "occurrence"arising out of the maintenance or use of a "hired auto"or "non-owned auto." SB146902G (Ed.6-16) Page 1of3 Copyright,CNA All Rights Reserved. 1,000,000 1,000,000 Policy Number: 6045335723 SB146902G (Ed.6-16) C.EXCLUSIONS With respect only to the insurance provided by this endorsement: 1.Under Exclusions,the paragraph entitled Applicable to Business Liability Coverage is amended to delete all exclusions except exclusions a.,b.,d.,e.,f.and i.and to add the following exclusions: This insurance does not apply to: •Fellow Employee "Bodily injury" to: (1)Any fellow "employee"of the insured arising out of and in the course of employment by the insured or while performing duties related to the conduct of the insured's business;or (2)The spouse,child,parent,brother or sister of that fellow "employee"while as a consequence of Paragraph (1)above. •Care,Custody or Control "Property Damage"to: (1)Property owned or being transported by,or rented or loaned to the insured;or (2)Property in the care,custody or control of the insured. D.WHO IS AN INSURED With respect only to the insurance provided by this endorsement,Who Is An Insured is replaced by the following: Each of the following is an insured under this insurance to the extent set forth below: 1.You; 2.Subject to paragraph 3.c.below,your "employee"while operating an "auto"hired or rented under a contract or agreement,with your permission,in that "employee's"name,while performing duties related to the conduct of your business. 3.Anyone else including any partner or "executive officer"of yours while using with your permission a "hired auto"or a "non-owned auto"except: a.The owner or lessee (of whom you are a sublessee)of a "hired auto"or the owner or lessee of a "non-owned auto"or any agent or "employee"of any such owner or lessee; b.Your "employee"if the covered "auto"is owned by that "employee"or a member of his or her household; c.Your "employee"if the covered "auto"is leased,hired or rented by him or her or a member of his or her household under a lease or rental agreement for a period of 180 days or more; d.Any partner or "executive officer" with respect to any "auto"owned by such partner or officer or a member of his or her household; e.Any partner or "executive officer" with respect to any "auto"leased or rented to such partner or officer or a member of his or her household under a lease or rental agreement for a period of 180 days or more; f.Any person while employed in or otherwise engaged in duties in connection with an "auto business,"other than an "auto business"you operate; g.Anyone other than your "employees,"partners,a lessee or borrower or any of their "employees,"while moving property to or from a "hired auto"or a "non-owned auto";or 4.Any other person or organization,but only with respect to their liability because of acts or omissions of an insured under 1.,2.or 3.above. E.AMENDED DEFINITION The Definition of "insured contract"in Section F –Definitions is amended by the addition of the following exceptions to paragraph f.: SB146902G (Ed.6-16) Page 2of3 Copyright,CNA All Rights Reserved. 50 0 2 0 0 0 1 7 6 0 2 1 2 6 2 2 1 7 5 2 1 5 SB146902G (Ed.6-16) Paragraph f.does not include that part of any contract or agreement: •That pertains to the loan,lease or rental of an "auto"to you or any of your "employees,"if the "auto"is loaned, leased or rented with a driver;or •That holds a person or organization engaged in the business of transporting property by "auto"for hire harmless for your use of a covered "auto"over a route or territory that person or organization is authorized to serve by public authority. F.ADDITIONAL DEFINITIONS Section F.Definitions is amended by the addition of the following definitions: a."Auto Business"means the business or occupation of selling,repairing,servicing,storing or parking "autos." b."Hired auto"means any "auto"you or your "employee"lease,hire,rent or borrow in the course of your business. This does not include: i.Any "auto"you lease,hire or rent under a lease or rental agreement for a period of 180 days or more,or ii.Any "auto"you lease,hire,rent or borrow from any of your "employees,"partners,stockholders,or members of their households. c."Non-owned auto"means any "autos"you do not own,lease,hire,rent or borrow that are being used in the course and scope of your business at the time of the "occurrence."This includes "autos"owned by your "employees"or partners or members of their households but only while being used in the course and scope of your business at the time of the "occurrence." If you are a sole proprietor,"non-owned auto"means any "autos"you do not own,lease,hire,rent or borrow that are being used in the course and scope of your business or personal affairs at the time of the "occurrence." G.With respect only to the operation of a "hired auto"or "non-owned auto,"Paragraph H,of the Businessowners Common Policy Conditions is deleted and replaced with the following: H.Other Insurance 1.Except for any liability assumed under an "insured contract"the insurance provided by this Coverage Form is excess over any other collectible insurance. However,if your business is the selling,servicing,repairing,parking or storage of "autos,"the insurance provided by this endorsement is primary when covered "bodily injury"or "property damage"arises out of the operation of a customer's "auto"by you or your "employee." 2.When this Coverage Form and any other Coverage Form or policy covers on the same basis,either excess or primary,we will pay only our share.Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. All other terms and conditions of the Policy remain unchanged. SB146902G (Ed.6-16) Page 3of3 Copyright,CNA All Rights Reserved. ARC for As-built Building Documentation for 10455 Torre Ave Final Audit Report 2021-11-18 Created:2021-11-18 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAawSRBOIxa0QS98yiQrVPPBoRAAj8xkpj "ARC for As-built Building Documentation for 10455 Torre Ave" History Document created by City of Cupertino (webmaster@cupertino.org) 2021-11-18 - 0:22:08 AM GMT- IP address: 35.229.54.2 Document emailed to Julia Kinst (juliak@cupertino.org) for approval 2021-11-18 - 0:25:33 AM GMT Document approved by Julia Kinst (juliak@cupertino.org) Approval Date: 2021-11-18 - 0:32:51 AM GMT - Time Source: server- IP address: 216.198.111.214 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-11-18 - 0:32:53 AM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-11-18 - 0:39:41 AM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to John Russo (john.russo@arc-corporate.com) for signature 2021-11-18 - 0:39:43 AM GMT Email viewed by John Russo (john.russo@arc-corporate.com) 2021-11-18 - 1:08:49 AM GMT- IP address: 76.80.19.250 Document e-signed by John Russo (john.russo@arc-corporate.com) Signature Date: 2021-11-18 - 2:16:10 AM GMT - Time Source: server- IP address: 76.80.19.250 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature 2021-11-18 - 2:16:12 AM GMT Email viewed by Christopher D. Jensen (christopherj@cupertino.org) 2021-11-18 - 2:26:35 AM GMT- IP address: 104.47.74.126 Document e-signed by Christopher D. 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