1. That the City of Cupertino is not legally impeded from submitting a request to the Metropolitan Transportation Commission for the allocation of Transportation Development Act (TDA) Article 3 funds, nor is the City of Cupertino legally impeded from undertaking the project(s) described in “Attachment B” of this resolution.
2. That the City of Cupertino has committed adequate staffing resources to complete the project( s) described in Attachment B.
3. A review of the project(s) described in Attachment B has resulted in the consideration of all pertinent matters, including those related to environmental and right- of-way permits and clearances, attendant to the successful completion of the project(s).
4. Issues attendant to securing environmental and right- of-way permits and clearances for the projects described in Attachment B have been reviewed and will be concluded in a manner and on a schedule that will not jeopardize the deadline for the use of the TDA funds being requested.
5. That the project( s) described in Attachment B comply with the requirements of the California Environmental Quality Act (CEQA, Public Resources Code Sections 21000 et seq.).
6. That as portrayed in the budgetary description(s) of the project(s) in Attachment B, the sources of funding other than TDA are assured and adequate for completion of the project(s).
7. That the project(s) described in Attachment B are for capital construction and/or final design and engineering or quick build project; and/ or for the maintenance of a Class I bikeway which is closed to motorized traffic and/or Class IV separated bikeway; and/ or for the purposes of restriping Class II bicycle lanes; and/ or for the development or support of a bicycle safety education program; and/or for the development of a comprehensive bicycle and/ or pedestrian facilities plan, and an allocation of TDA Article 3 funding for such a plan has not been received by the City of Cupertino within the prior five fiscal years.
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MTC Prog. & Alloc. Section April. 2005 TDA Article 3 Claim Applications Appendix A Page 4
8. That the project(s) described in Attachment B which are bicycle projects have been included in a detailed bicycle circulation element included in an adopted general plan, or included in an adopted comprehensive bikeway plan (such as outlined in Section 2377 of the California Bikeways Act, Streets and Highways Code section 2370 et seq.) or responds to an immediate community need, such as a quick-build project.
9. That any project described in Attachment B bicycle project meets the mandatory minimum safety design criteria published in the California Highway Design Manual or is in a National Association of City and Transportation Officials (NACTO) guidance or similar best practices document.
10. That the project(s) described in Attachment B will be completed in the allocated time fiscal year of allocation plus two additional fiscal years).
11. That the City of Cupertino agrees to maintain, or provide for the maintenance of, the project( s) and facilities described in Attachment B, for the benefit of and use by the public.
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MTC Prog. & Alloc. Section April. 2005 TDA Article 3 Claim Applications Appendix A Page 5 Resolution No. 24-XXXX
Attachment B
TDA Article 3 Project Application Form
1. Agency City of Cupertino
2. Primary Contact David Stillman
3. Mailing Address 10300 Torre Ave, Cupertino, CA 95014
4. Email Address davids@cupertino. gov 5. Phone Number ( 408) 777-3249
6. Secondary Contact (in
the event primary is
not available)
Matthew Schroeder
7. Mailing address (if
different) N/A
8. Email Address [email protected] 9. Phone Number 408-777-3174
10. Send allocation
instructions to (if
different from above):
11. Project Title Cupertino Active Transportation Plan
12. Amount requested $ 330,000 13. Fiscal Year of
Claim
2024/ 2025
14. Description of Overall Project:
The Cupertino Active Transportation Plan (ATP) aims to enhance the City's transportation infrastructure by promoting and facilitating active transportation modes, such as walking and bicycling, for all ages and abilities over the next ten years. This strategic project will consolidate and update Cupertino's existing Bicycle Plan (2016) and Pedestrian Plan (2018), integrating them into a single document that reflects the latest in design practices and policies. The project will review existing infrastructure, policies, and community needs associated with bicycling and walking. This analysis will involve data collection and close community engagement with diverse stakeholders, including local businesses, schools, and community organizations. 145
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MTC Prog. & Alloc. Section April. 2005 TDA Article 3 Claim Applications Appendix A Page 6
15. Project Scope Proposed for Funding: (Project level environmental, preliminary planning, and ROW are ineligible uses of TDA funds.)
16. Project Location: A map of the project location is attached or a link to an online map of the project location is provided below:
Project Relation to Regional Policies (for information only)
17. Is the project in an Equity Priority Community?
Yes No
The project will rely on data analysis, community engagement, and a review of modern best practices to develop a comprehensive ATP for the City of Cupertino. It will identify current gaps in the pedestrian and bicycle networks and examine collision and injury data to propose infrastructure improvements that will increase safety and accessibility for all non -motorized roadway users. Community input will shape the final recommendations, ensuring the ATP aligns with local needs and values. Key deliverables include implementation strategies, budget estimates, and a prioritized list of capital projects with a phased project delivery schedule. 146
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MTC Prog. & Alloc. Section April. 2005 TDA Article 3 Claim Applications Appendix A Page 7
18. Is this project in a Priority Development Area or a Transit-Oriented Community? Yes No
19. Project Budget and Schedule
Project Eligibility
A. Has the project been reviewed by the Bicycle and Pedestrian Advisory Committee? Yes No
If “YES,” identify the date and provide a copy or link to the agenda. May 15, 2024 Agenda
If "NO," provide an explanation).
B. Has the project been approved by the claimant' s governing body? Yes No
If "NO," provide expected date: June 18, 2024
C. Has this project previously received TDA Article 3 funding? Yes No
If "YES," provide an explanation on a separate page)
D. For " bikeways," does the project meet Caltrans minimum safety design criteria Yes No
pursuant to Chapter 1000 of the California Highway Design Manual? E. 1. Is the project categorically exempt from CEQA, pursuant to CCR Section 15301(c), Yes No
Existing Facility?
2. If “NO” above, is the project is exempt from CEQA for another reason? Yes No
Cite the basis for the exemption.
N/ A
If the project is not exempt, please check “ NO,” and provide environmental documentation, as appropriate.
F. Estimated Completion Date of project (month and year): July 2025 Project Phase TDA 3 Other Funds Total Cost Estimated Completion month/ year)
Bike/Ped Plan $ 330,000 July '26
ENV
PA&ED
PS&E
ROW
CON
Total Cost
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MTC Prog. & Alloc. Section April. 2005 TDA Article 3 Claim Applications Appendix A Page 8 G. Have provisions been made by the claimant to maintain the project or facility, or has Yes No
the claimant arranged for such maintenance by another agency? (If an agency other than the Claimant is to maintain the facility, please identify below and provide the agreement.)
H. Is a Complete Streets Checklist required for this project? Yes No
If the amount requested is over $250,000 or if the total project phase or construction phase is over $250,000, a Complete Streets checklist is likely required. Please attach the Complete Streets checklist or record of review, as applicable. More information and the form may be found here: https:// mtc.ca.gov/ planning/ transportation/ complete- streets 148
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CITY OF CUPERTINO
Agenda Item
24-13141 Agenda Date: 6/18/2024
Agenda #: 5.
Subject: Award a construction contract for 2024 Pavement Maintenance Phase 1 Project to G.
Bortolotto & Co. for asphalt mill & fill and patching on identified roadways throughout the City of Cupertino in the amount of $2,662,786.
1. Award a construction contract for the 2024 Pavement Maintenance Phase 1 project (project number 2024- 101) in the amount of $2,662, 786 to G. Bortolotto & Co.
2. Authorize the City Manager to execute the construction contract when all conditions have been met; and
3. Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $266,279 (10%) for a total contract amount of $2,929,065.
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CITY COUNCIL STAFF REPORT
Meeting: June 18, 2024
Subject
Award a construction contract for 2024 Pavement Maintenance Phase 1 Project to G.
Bortolotto & Co. for asphalt mill & fill and patching on identified roadways throughout the City of Cupertino in the amount of $2,662,786.
Recommended Action
1) Award a construction contract for the 2024 Pavement Maintenance Phase 1 project (project number 2024-101) in the amount of $2,662,786 to G. Bortolotto & Co.
2) Authorize the City Manager to execute the construction contract when all conditions have been met; and
3) Authorize the Director of Public Works to execute any necessary change orders up to a construction contingency amount of $266,279 (10%) for a total contract amount of $2,929,065.
Reasons for Recommendation
On May 10, 2024, the City of Cupertino advertised the 2024 Pavement Maintenance Phase 1 Project. This project consists of rehabilitative maintenance treatments which include asphalt mill and fill and dig-out repairs on identified streets throughout the City. The project also includes repairs to select park pathways. Project streets were selected based on Pavement Condition Index (PCI) and community input. See attachment B for the project location list. Bids were due June 4, however no bids were received. Section 3.23.110(D) of the Cupertino Municipal Code states if no bids are received, the City Council may have the project completed without a further competitive bid process. Staff reached out to project plan holders to inquire why they chose not to submit bids and most responses indicated schedule conflicts. One plan holder, G.
Bortolotto & Co., stated they were interested in submitting a proposal, but technical difficulties prevented them from submitting a bid. Staff subsequently received the following cost proposal:
Bidder Bid Amount
Engineers Estimate $ 3,200,000
G. Bortolotto & Co. $ 2,662,786
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The Department of Public Works reviewed G. Bortolotto’ s proposal for completeness and confirmed the contractor’ s experience and determined them to be qualified.
Therefore, staff recommends awarding a construction contract to G. Bortolotto & Co. for the contract amount of $2,662,786, including a 10% construction contingency in the amount of $266,279 for a total contract amount not to exceed $2,929,065. Construction contingency allows for unforeseen conditions and is a typical contracting best practice.
A Draft Construction Contract is included as Attachment A while the full project specifications can be found at https://apps.cupertino. org/bidmanagement/ index.aspx.
This proposal is well under the Engineer’ s Estimate. Therefore, staff recommends that the Council authorize the award of the construction contract to, G. Bortolotto & Co. to prevent project delay.
Sustainability Impact
Maintaining and preserving the local streets and roadway system will reduce drive time and traffic congestion, improve bicycle safety, and create a safer and more appealing pedestrian experience. This leads to reduced vehicle emissions, helping the City achieve air quality and greenhouse gas emission reduction goals.
Fiscal Impact
Award of this contract will result in a fiscal impact of up to $2,929,065, including the base contract and potential contingency. Sufficient funds are budgeted in 270-85-821 900 971 (Capital Outlay Senate Bill 1 Roads), and 270-85-821 900-921 (Capital Outlay Annual Asphalt Project). No additional appropriations are needed.
California Environmental Quality Act
This project is exempt under CEQA Guidelines Sections 15301( c) (repair and maintenance of existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities).
Prepared by: Jo Anne Johnson, Project Manager
Reviewed by: Chad Mosley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Draft Contract
B – Location List
C – Location Map
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2024 Pavement Maintenance Phase 1 2023 Form CONTRACT
Project # 2024-101 Page 2
Contract
This public works contract (“Contract”) is entered into by and between City of Cupertino City”) and G. Bortolotto & Company, Inc. (“Contractor”), for work on the 2024 Pavement Maintenance Phase 1 Project (“Project”).
The parties agree as follows:
1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On June 18, 2024, City authorized award of this Contract to Contractor for the amount set forth in Section 4, below.
2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.
2.1 Notice Inviting Bids;
2.2 Instructions to Bidders;
2.3 Addenda, if any;
2.4 Bid Proposal and attachments thereto;
2.5 Contract;
2.6 Payment and Performance Bonds;
2.7 General Conditions;
2.8 Special Conditions;
2.9 Project Plans and Specifications;
2.10 Change Orders, if any;
2.11 Notice of Potential Award;
2.12 Notice to Proceed; and
2.13 The following: Caltrans Standard Details, City Standard Details and Typical Sections
3. Contractor’ s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.
4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor $ 2,662,786 (“ Contract Price”) for all of Contractor’ s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.
5. Time for Completion. As further specified in Section 5.4 of the General Conditions, if Contractor will fully complete the Work for the Project, meeting all requirements for Final Completion, within 80 calendar days from the commencement date given in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.
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2024 Pavement Maintenance Phase 1 2023 Form CONTRACT
Project # 2024-101 Page 3
6. Liquidated Damages. If Contractor fails to complete the Work within the Contract Time, City will assess liquidated damages in the amount of $1,500 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from City’s payments due or to become due to Contractor under this Contract.
7. Labor Code Compliance.
7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.
7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.
7.3 DIR Registration. City may not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.
8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 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 performance of the Work on this Contract.”
9. Conflicts of Interest. Contractor, its employees, Subcontractors and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of any City ordinance or requirement, or in violation of any California law, including Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.
10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor and its Subcontractors are not employees of City and are not entitled to participate in any health, retirement, or any other employee benefits from City.
11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file. Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed effective on the second working day after deposit for delivery. Notice for each party must be given as follows:
City:
Public Works Department
10300 Torre Ave
Cupertino, CA 95014
408-777-3354
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2024 Pavement Maintenance Phase 1 2023 Form CONTRACT
Project # 2024-101 Page 4
Attn: Jo Anne Johnson
joannej@cupertino. gov
Copy to: PWInvoices
pwinvoices@cupertino. gov
Contractor:
Name:_____________________________________
Address:___________________________________
City/State/Zip:_______________________________
Phone:_____________________________________
Attn:_______________________________________
Email:______________________________________
Copy to:____________________________________
12. General Provisions.
12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’ s and City’s lawful heirs, successors and permitted assigns.
12.2 Third Party Beneficiaries. There are no intended third party beneficiaries to this Contract.
12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Santa Clara County Superior Court, and no other place.
Contractor waives any right it may have pursuant to Code of Civil Procedure § 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Santa Clara County, California.
12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.
12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor.
12.6 Severability. If any provision of the Contract Documents is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.
12.7 Iran Contracting Act. If the Contract Price exceeds $ 1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.
12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporation Code § 313. 154
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2024 Pavement Maintenance Phase 1 2023 Form CONTRACT
Project # 2024-101 Page 5
The parties agree to this Contract as witnessed by the signatures below:
CITY: Approved as to form:
s/_______________________________ s/__________________________________ Name, Title Name, Title
Date: ___________________________ Date: ______________________________ Attest:
s/_______________________________
Name, Title
Date: ___________________________
CONTRACTOR: ___________________________________________________ Business Name
s/_______________________________ Seal:
Name, Title
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
Name, Title
Date: ____________________________
Contractor’ s California License Number( s) and Expiration Date(s)
END OF CONTRACT
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2024 PAVEMENT MAINTENANCE PHASE 1 ATTACHMENT B
LOCATION LIST
MILL & FILL
STREET NAME FROM TO
BANDLEY DR ALVES STEVENS CREEK
BETTE AVE GLENVIEW AVE BRENT
BRENT DR CLIFFORD JOHN
FARALLONE AVE PACIFICA LAS ONDAS
FLORA VISTA AVE GREENLEAF GARDENA
GARDEN GATE DR STELLING RD EAST END
GRENOLA DR ANN ARBOR FLORA VISTA
JOHNSON AVE BOLLINGER NEWSOM
LARRY WAY MERRITT LUCILLE
PRING CT STERLING END
RAE LN LINDA VISTA END
RANDY LN MERRITT LUCILLE
STARRETT CT STERLING END
STELLING RD 450' N OF 280 HOMESTEAD RD
TAMARIND CT FLORA VISTA END
TILSON AVE FINCH TANTAY
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CITY OF CUPERTINO
Agenda Item
24-13154 Agenda Date: 6/18/2024
Agenda #: 6.
Subject: Approve a first amendment with All City Management Services, Inc. (ACMS) to provide crossing guard services for a total not-to-exceed amount of $1,688, 800 extending the agreement date to June 30, 2026, and approve a budget modification in the amount of $78,707.
1. Authorize the City Manager to execute a First Amendment with All City Management Services, Inc. ( ACMS) to continue to provide Crossing Guard Services, increasing the contract amount by 785,000 for a total not to exceed amount of $1,688,800 and extending the agreement date to June 30, 2026.
2. Adopt Resolution No. 24-064 approving budget modification #2324-304 and a budget adjustment in the amount of $78,707 in the General Fund for Fiscal Year 2024- 2025 crossing guard services ( 100- 88-846 700-709).
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CITY COUNCIL STAFF REPORT
Meeting: June 18, 2024
Subject
Approve a first amendment with All City Management Services, Inc. to provide crossing guard services, for a total not to exceed amount of $1,688,800 extending the agreement date to June 30, 2026, and approve a budget modification in the amount of $78,707.
Recommended Action
1. Authorize the City Manager to execute a First Amendment with All City Management Services, Inc. (ACMS) to continue to provide Crossing Guard Services, increasing the contract amount by $785,000 for a total not to exceed amount of $1,688,800 and extending the agreement date to June 30, 2026.
2. Adopt Resolution No. 24-XXX approving budget modification # 2324-304 and a budget adjustment in the amount of $78,707 in the General Fund for Fiscal Year 2024-2025 crossing guard services (100-88-846 700-709).
Reason for Recommendation
The City of Cupertino has contracted with vendors to provide school crossing guard services at intersections throughout the City for some time . The guards typically work the morning school drop-off and afternoon school pick-up times, with hours that vary considerably depending on intersection, schools served and day of the week. Guard locations are determined through warrant studies that staff typically conducts every two years, and which are based on usage and traffic patterns at the intersections. The most recent warrant study was completed in 2022, with the next study anticipated for the Fall 2024. The Cupertino Union School District and the Fremont Union High School District are kept informed regarding the results of warrant studies and are included in the final determination of locations.
In August 2021, the City Council awarded an agreement with ACMS to provide school crossing guard services at sixteen locations in the City of Cupertino for a period of three years, expiring on June 30, 2024, with the option to extend the agreement for two additional years. This contract was awarded as a result of an RFP that was solicited in June 2021. Over the past three years, ACMS has met all staff expectations of performance, and has been very responsive to staff and community feedback and 159
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adjustments of school bell schedules. Anticipating the contract to be soon expired, in April, staff initiated discussions with ACMS to negotiate contract pricing for the twoyear extension of the contract.
Retention of crossing guards has historically been challenging due to the limited number of daily working hours and competition with neighboring cities that offer competitive rates. Additionally, the recent passage of California Assembly Bill (AB) 1228, which requires a minimum wage of $20/hour for fast food workers, has resulted in an additional draw on the pool of potential crossing guards. Considering these factors, contract negotiations resulted in a successful agreement on a billing rate of $38.95/hour for the 2024/ 25 school year and $41.45/hour for the 2025/ 26 school year, resulting in a not-to-exceed amount of $380,000 for the 2024/ 25 school year and $405,000 for the 2025/ 26 school year. There is no change in service level that is currently provided. This pricing allows ACMS to continue to draw and retain qualified staff, which in turn, is vital to the safety of students being able to walk or bike to school in Cupertino. This negotiated billing rate is identical to the rates being paid under contract in the City of Sunnyvale, the most proximate and significant competition for crossing guards.
This amendment will extend the existing agreement for a period of two years, from July 1, 2024, through June 30, 2026. The Amendment contains a provision that allows the City to terminate the agreement at any time, for any reason.
Sustainability Impact
This contract encourages walking and bicycling by providing safe passage across streets for students traveling to school. This is consistent with both the Mobility Element of the General Plan, Goal M-3 (“ Support a Safe Pedestrian and Bicycle Network for People of All Ages and Abilities”) and Measure C-T-1 of the Climate Action Plan (“ Encourage multi-modal transportation, including walking and biking, through safety and comfort enhancements in the bicycle and pedestrian environment.”). Furthermore, students walking and bicycling to school reduces traffic congestion, which leads to reduced vehicle emissions, helping the City achieve air quality and greenhouse gas emission reduction goals.
Fiscal Impact
The Fiscal Year (FY) 24-25 Adopted Budget allocated $301,293 for Crossing Guard Contract Services ( 100-88-846-700-709). Although this amount represents the approximate average annual expenditure for crossing guard services over the three years of the current contract, each year has seen an increase of approximately 5.5% over the previous year, with the expenditure during the current and final year of the contract being approximately $ 320,000. Increased costs in FY 23-24 were funded by a carryover encumbrance for this contract. Increased costs for this contract were not known at the time of FY25 budget development.
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Due to increases in the cost of living, in addition to reasons noted earlier, the negotiated annual cost to manage the crossing guard program is $377,456 at the billing rate of
38.95/hour for the 2024/ 25 school year, and $401,580 at the billing rate of $41.45/hour for the 2025/ 26 school year based upon a billing of approximately 9,690 hours per year at current school bell schedule and guard staffing hours. A not-to-exceed amount of 380,000 and $405,000 for the 2024/ 25 and 2025/ 26 school years, respectively, is being proposed to allow flexibility if crossing guard working hours need to be modified due to school bell time changes, adjustments based on field observations, etc. Consequently, an additional allocation of $78,707 will be required in FY 2024-25 to supplement the 301,293 currently budgeted. For FY26, if the contract is approved the base budget will increase by $25,000 to cover contract increases in that year.
On June 7, 2022, the City entered into a five-year agreement with the Cupertino Union School District (CUSD) and the Fremont Union High School District (FUHSD), whereby each agreed to contribute $20,000 per year to the City to help fund crossing guard services. This revenue will partially offset the City’s general fund allocation resulting in estimated net costs to the City in FY25 of $360,000 and FY26 of $385,000 Considering the increasing cost of crossing guard services compared to previous years, staff will engage with CUSD and FUHSD to negotiate additional contributions to help offset the increasing cost of services.
California Environmental Quality Act
Not applicable.
Prepared by: David Stillman, Transportation Manager
Reviewed by: Chad Mosley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Draft Contract
B – Draft Resolution
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CITY OF
El
CUPERTINO
COMMUNITY DEVELOPMENT DEPARTMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA
95014- 3255 TELEPHONE: ( 408) 777- 3308 • FAX : ( 408) 777- 3333 CUPERTINO. ORG
MEMORANDUM
To: Chair Fung and Planning Commissioners
From:
Re:
Luke Connolly, Assistant Director of Community Development Agenda Item #2 ( Housing Element Rezoning and associated items) This memorandum includes redlines proposed to make corrections and clarifications to the proposed draft Municipal Code Amendments ( see Attachment A) and summarizes comments received from various community members regarding agenda Item #2, the Housing Element updates rezoning and associated items. The comments are organized by items that are on the agenda and those that are not.
Comments related to items on the agenda:
1. Comments were received regarding front setback requirements for single- family, Rla zoned lots affected by Strategy HE-1.3.6 of the Housing Element. A request has been received from community members that any properties utilizing Strategy HE1.3.6 to develop duplexes on these R-la lots be required to comply with the 30-foot front setback standard specified by the Rl-a Zoning District.
2. Comments were received regarding the proposed 55% Floor Area Ratio limitation and definition of "duplex" proposed in the implementation of Strategy HE-1.3.6 .
3. Regarding the newly proposed R-4 Zoning District, which applies to 40 of the .58 Housing Element Priority Housing Sites, comments have been received in favor of eliminating- the proposed dual maximum building h~ight standards of 5 stories and 70 feet in lieu of having just a 70-foot maximum building height, with no limitations on the number of stories allowed within the 70-foot height.
4. Comments were also received related to both vehicular and bicycle parking r:1tquirements. Particularly a comment was made about the parking requirements as it relate;"° to implement~ tion of Strategy HE-1.3.6 for duplexes on Rl zoned comer lots and those that abutc: ommercial properties. The request is to change the standard to match those of Rl zoned properties, i.e., require 2 enclosed and 2 open parking spaces total, where R2 standards would require 1.5 enclosed and 1.5 open parking spaces per unit.
5 . Comments were received requesting changes to the Townhome ( TH) Combining District related to several items including Floor Area Ratio, Height limits etc. 162
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Comments related to items not on the agenda
1. Comments were received regarding existing development standards in the R-2 Zoning District, specifically related to lot coverage allowed, reducing the side- yard setbacks, and parking standards for the overall R2 zoning district that could further enhance implementation of Strategy HE-1.3.6, by incentivizing the development of missing middle housing units in the City's single- family neighborhoods.
Development standards for the R2 zoning district are not being amended at this time since they are not part of implementation of the Housing Element. Recommendations on development standards in the R-2 zoning district can be presented at a later date, upon Council direction.
Attachments:
A - Redline pages from Municipal Code Amendments Resolution 163
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Type of Permit or
Admin- Arts and
Planning
istrative Culture
Decision A, 8
ReviewA , s Commission
Commission
0Pnsitv Bonus r
Adult- Oriented
Commercial Activity - R
CUP)
Architectural and Site Approval
ajorJ4: F - Al
Minor K F - Al
Amendment
Major F,H -- F
Minor G F - Al
Minor Modification F - Al
Hillside Exception/
Height Exception/ --
F
Heart of the City
Exception 1
Variance F - Al
Status of nonF --
conforming Use
Wireless Antennas 1 F - F/ A1
Signs
Permits F - Al
Neon, Reader board &
Freeway Oriented F - F/A1
Signs 1
Programs F - Al
Exceptions 1 -- F
Parking Exceptions 1 F F- FA1
Correction
City
Council
Public
Hearing/
Public
Meeting/
Comment
Period c
Desk Item 6.11.24 PC Meeting
Agenda Item #2
Noticing
Posted
Expiration Chapter/
Site
Radius 0
Notice
Date E Findings
Section 19.56.060 B
CA. Govt. 19 .128. 030
F PH Code Yes 2 years &
65905/ 300' 19.128. 040
A2 PM Yes 2 years
19. 12 .110/ 19.168. 030
A2 PM Yes 2 years
Depends on 19 .44,
Al Varies L permit being Yes 2 years 19 .144,
amendedL 19.156,
A2 Varies L Yes 2 years 19.164
A2 - None No 2 years 19.164
19.40.080,
Al PH 19.12 .110/ 300' Yes 2 years 19.24.070,
19. 136. 090
A2 PH
CA. Govt.
Code 65905
Yes 2 years 19.156. 060
Al PH 19.12.110/ 300' Yes - 19.140. 110
Depends on
A2 Varies 1 application Yes 2 years 19.136. 090
type
A2 - None No I-year 19.104
A1/ A2 PM 19 .12 .110/ 300' No 1 year 19 .104
A2 - None No 1 year 19 .104
Al PM
19 .12 .110/
Yes 1 year 19.104. 290
Adjacent
19.12 .110/
A1/ A2 VariesM Adjacent/ Yes 1 year 19 .124. 050
300 ' N
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Correction
Type of Permit or
Admin- Arts and
Planning City
istrative Culture
Decision A, 8
ReviewA, B Commission
Commission Council
Fence Exceptions F - Al Al L
Front Yard
F AI --
Interpretation
R-1 Ordinance Permits
Residential Design
F Ii- F/A1 AIL/ AZ
Review 1
Minor Residential F - Al A2
Exceptions 1 - Ii-- AIM
Miscellaneous
F ---
Ministerial Permit
Protected Trees
Tree Removal F - Al AZ
Heritage Tree
F Al --
Designation & Removal
Tree Management Plan F - Al A2
Retroactive Tree
F Al AZ -
Removal
Reasonable
F Al A2 -
Accommodation
Extensions r
Parking, Fence & Sign
Exceptions & Front F - Al A2
Yard Interpretations
Neon, Reader board &
Freeway Oriented F Al AZ
Signs
Two Story Permits,
Minor Residential F Al A2
Permits and Exceptions
Tree Removals F - Al A2
All other projects F - Al AZ
Public
Hearing/
Public
Meeting/
Comment
Period c
PM
PM
Varies 1
CP
PM
None
CP
PM
Noticing
Radius 0
19 .12. 110/
Adjacent
19. 12. 110/
Adjacent
19. 12. 110/
Adjacent
Adjacent
Adjacent
unless
exempt
19 .12.110/
300'
None
None
None
None
None
None
19.12.110/
None
Posted
Expiration Chapter/
Site
Notice
Date E Findings
Yes 1 year 19. 48. 060
Yes 1 year 19. 08
Yes 1 year 19. 28. 140
No 1 year
Yes 1 year
19. 28. 150
Yes 1 year and
19. 40. 090
Yes 1 year 14 .18. 180
Yes - 14. 18
No - 14 .18
No - 14. 18
No 1 year 19.52.050
No 1 year
No 1 year
No 1 year
No 1 year
No 2 years
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Clarification
Uses A A-1 R-1 RHS RlC R-2 R-3 R-4
1821 . Transitional housing p p p p p p p
r
located in housing of a type
permitted on the zone;
l-922 . Supportive housing p p p p p p p
r
located in housing of a type
permitted in the zone
23, S:u1:rnortive housing,
Rermanent, with no more than SO
p4 p4
units
24, Single-mom occ:uwncy ------- CUP ;:: = = = = = = =
SRQ} : units Admin
25. Permanent emergency ------- r = = = =
shelter that comRlies with
ChaRter 12,SO
2.6(). Horticulture, gardening, and o-rowing of food products~ 7 a. Recreational for personal p p p p p p --=
use;
b. Limited to maximum of ten ------ p
r
percent of the lot area and
for consumption by
occupants of the site;
C. Produce grown on site may --- p ----=
be sold if the business
activity is conducted in a
manner consistent with
Chapter 19. 120, Home
Occupations
d. Commercial purpose51 See # 1 See # 1 - CUP-----=
Admin.
2z- 1. Limited commercial - See # 37 - See # 37 - CUP- PC ----= recreation uses, such as riding
clubs and related stables and
trails, golf courses, swimming
and picnic ground51
2~. Golf courses and driving CUP- CC CUP- CC ------=
range51
2~ J. Commercial swimming CUP- CC CUP- CC ------=
pools and picnic area51
30;?4 . Temporary uses subject to CUP- CUP - CUP- CUP- CUP- CUP- CUP- CUPregulations established Admin. Admin. Admin. Admin. Admin. Admin. Admin. Admin, by Chapter 19 .156
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19.38.060: Site Development Regulations
Table 19.38.060 sets forth the rules and regulations pertaining to the Development Regulations for the development of property zoned R-4.
Table 19,38,060 Site Develo1,1ment Regulations
A, Density 1, Maximum as designated in the General Plan,
2. Develo1,1ment on sites with a reguired minimum density shall meet the minimum density established on the General Plan Land Use ma1,1,
B, Minimum Net Lot Area 12,0011 sguare feet
C. Minimum Lot Width (measured at 70 feet
front building setback line)
19.38.070: Building Development Regulations
Table 19.38.070 sets forth the rules and regulations pertaining to the development of multiplefamily residential structures on property zoned R-4.
Table 19,38,070: Building Develo1,1ment Regulations
A. Maximum Lot 55% of net lot area, unless inconsistent with Section 65913,11, Coverage
B, Maximum Height Limited to five stories (not to exceed 70 feet) C. Setbacks and Ste1,1backs
First Floor U:1rner Floors
1, Front-;xard If located on 1,1ro1,1erty If located on 1,1ro1,1erty abutting an arterial or abutting an arterial or major collector:
major collector, 35 feet Floor 2 and 3: 35 feet from face of curb; and from face of curb. • Floors 4 and above: 18 feet,
All other 1,1ro1,1erties: 12 All other 1,1ro1,1erties: 18 feet from 1,1ro1,1erty feet from 1,1ro1,1erty line, line
2, Side-;xard
i, Interior side 10 feet 10 feet and
Additional 10 feet for floors more than one
storx higher than an;x adjacent 1,1rimarx
residential structure,
ii, Street side rueet
3, Rear-;xard 30 feet 20 foet Hf 20% ef the • Floors 2 and 3: 30 fee~0 feet HF 20% ef the let defth, :whiehe¥ef is let defth, "'"hiehe•tef is gFeatef; and Floors 4 and above: Additional 15-10-feet.
fol' fleeFs mefe thaa eae stePc highef thaa
aR'i adjaeeat ffimaPc Fesideatial sb:11emfe.
Correction
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FIRST AMENDMENT TO AGREEMENT 311 BETWEEN
THE CITY OF CUPERTINO AND ALL CITY
MANAGEMENT SERVICES FOR CROSSING GUARD
SERVICES AT VARIOUS SCHOOL LOCATIONS IN
CUPERTINO
This First Amendment to Agreement 311 is by and between the City of Cupertino , a municipal corporation ( hereinafter " City") and All City Management Services, a Corporation Contractor") whose address is PO Box 847436 , Los Angeles , CA 90084- 7436, and is made with reference to the following :
RECITALS:
A. On August 05, 2021 Agreement 311 (" Agreement") was entered into by and between City and Contractor for Crossing Guard Services at Various School Locations in Cupertino .
B . City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows :
1. Paragraph 2 . ofthe Agreement is modified to read as follows: Services Contractor agrees to provide the services and perform the tasks (" Services ") set forth in detail in Scope of Services, attached here and incorporated as Exhibit A-1 . Contractor further agrees to carry out its work in compliance with any applicable local , State, or Federal order regarding COVID- 19 .
Exhibit A ofthe Agreement is replaced with a new Exhibit A-1 attached hereto.
2. " Paragraph 3.1 ofthe·Agreement is modifieg' to read as follows : Time' ofPerformance This Agreement begins on the Effective Date and ends on June 30, 2026, with the option to renew for two additional years (" Contract Time"), unless terminated earlier as provided herein .
Contractor' s Services shall begin on the start ofFall 2024 school semester and shall be completed by. the copdusion ofthe 2026 school session, with the option to renew two years thereafter. 1ie City 's appropriate department head or the Cio/ Manag~ r 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. Paragraph 3 .2 ofthe Ag reement is modified to read as follows: Schedule ofPerformance Contractor must deliver the Services in accordance with the Schedule ofPerformance .
Exhibit B ofthe Agreement is replac ed with a new Exhibit B -1 attached hereto . 1 168
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Paragraph 4.1 ofthe Agreement is modified to read as follows : Maximum Compensation City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $ 1 ,688, 879. 04 (" Contract Price "), based upon the scope of services in Exhibit A-1 and the budget and rates included in Exhibit Cl , Compensation attached and incorporated here . The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor' s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City.
Exhibit C of the Agreement is replaced with a new Exhibit C -1 attached hereto.
4. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this modification ofAgreement to be executed.
CITY OF CUPERTINO
By ___________ _
Title __________ _
Date ------------
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Date ___________ _
EXPENDITURE DISTRIBUTION
ALL CITY MANAGEMENT SERVICES
By~
Title Secretary
Date Jun 11, 2024
lt=em==--..C::: J;;;..;:::;__.=;_ _ _.;;_=P=O=N=um=b=e=r =====.:'======== Am=o=u=n=t ===-==;- r I
0-n-.g-in_a_lA-gr-ee_m_e-nt~I 2022- 140 l-----------$- 90- 3-, 8-7-9.-.. 0~ l==Am=e=nd=m=e=nt=l=::::::I 2022- 140 I $ 785, 00o. og
Total I __ I $ 1,688, 879. o~
2 169
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Draft Amendment 1 to All City Management
Agreement for Routing
Final Audit Report
Created:
By :
Status :
Transaction ID :
2024- 06- 04
Jindy Gonzalez Uindyg@cupertino. org)
Signed
CBJCHBCAABAA- 98kKXhs77bNdEDatqNIG3OhlMOX5aDV
2024 -06 -11
Draft Amendment 1 to All City Management Agreement for Rout ing" History
f) Document created by Jindy Gonzalez Uindyg@cupertino . org) 2024- 06-04- 9:41 :10 PM GMT- IP address : 174. 85 .102. 16 18'. Document emailed to demetra@thecrossingguardcompany. com for signature 2024- 06-04 - 9:42:12 PM GMT
f) Email viewed by demetra@thecrossingguardcompany. com 2024- 06-04 - 10:10:59 PM GMT- IP address : 174 .193.132 .104 f) Email viewed by demetra@thecrossingguardcompany. com 2024- 06-07 - 7:08:58 PM GMT- IP address : 174. 193. 132. 104 f) Email viewed by demetra@thecrossingguardcompany. com 2024- 06-10- 3:16:36 PM GMT- IP address : 174 .193. 132. 78 fl Email viewed by demetra@thecrossingguardcompany. com 2024- 06-11 - 3:41 :48 PM GMT- IP address : 98.153 .194 .10 0c, Signer demetra@thecrossingguardcompany. com entered name at signing as Demetra Farwell 2024- 06-11 - 3:42 :43 PM GMT- IP address : 98 .153 .194. 10 0c, Document e-signed by Demetra Farwell ( demetra@thecrossingguardcompany. com) Signature Date : 2024- 06-11 - 3:42:45 PM GMT - Time Source : server- IP address : 98 .153 .194. 10 0 Agreement completed.
2024- 06- 11 - 3:42:45 PM GMT
I
Powef' edby
Adobe
unllTINo Acrobat Sign
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Attachment B
RESOLUTION NO. 24-XXX
A RESOLUTION OF THE CUPERTINO CITY COUNCIL AMENDING THE OPERATING BUDGET FOR FISCAL YEAR 2024-25 BY APPROPRIATING,
TRANSFERRING, AND UNAPPROPRIATING MONIES FOR SPECIFIED
FUNDS
WHEREAS, the orderly administration of municipal government depends on a sound fiscal policy of maintaining a proper ratio of expenditures within anticipated revenues and available monies; and
WHEREAS, accomplishing City Council directives, projects, and programs, and performing staff duties and responsibilities likewise depends on the monies available for that purpose; and
WHEREAS, the City Manager has determined that the balances from the funds specified in this resolution are adequate to cover the proposed amended appropriations, and therefore recommends the fund reallocations described herein.
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the recommended fund reallocations and ratifies the attached amended appropriations as set forth in Exhibit A.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 18th day of June 2024, by the following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Sheila Mohan, Mayor
City of Cupertino
Date
ATTEST:
Kirsten Squarcia, City Clerk Date
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Attachment B
Exhibit A
Appropriation
Amendment by Fund
Appropriation
Amendment
Revenue
Amendment
Fund Balance
Use of)
General Fund (100) $ 78,707 - ( 78,707)
Total Appropriation
Amendment All Funds $
78,707 $- $( 78,707)
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CITY OF CUPERTINO
Agenda Item
24-13212 Agenda Date: 6/18/2024
Agenda #: 7.
Subject: Approve a First Amendment with Dan Gertmenian to provide educational classes and educational events for a total not-to-exceed amount of $879, 348 and extending the contract date to August 31, 2025.
Authorize the City Manager to execute a First Amendment with Dan Gertmenian, increasing the amount by $106, 305 for a total contract amount not to exceed $ 879, 348 and extending the term of the agreement to August 31, 2025.
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CITY COUNCIL STAFF REPORT
Meeting: June 18, 2024
Subject
Approve a First Amendment with Dan Gertmenian to provide educational classes and educational events for a total not-to-exceed amount of $879,348 and extending the contract date to August 31, 2025.
Recommended Action
Authorize the City Manager to execute a First Amendment with Dan Gertmenian, increasing the amount by $106,305 for a total contract amount not to exceed $879,348 and extending the term of the agreement to August 31, 2025.
Reasons for Recommendation
Background
The City began offering Math Olympiads, Math Olympiads Honors, Math Olympiad Accelerated, Chess, Math Themed Events, Chess Events, Information Nights, Trial Math Classes, Optional Participant Events, Parent- Child Math Olympiad Classes, AMC-8 Preparatory Classes programs through Dan Gertmenian at the Creekside Park Building in Fall 2021 through an agreement executed and authorized by City Council on June 15, 2021.
The contract terms include a 65/35 split on revenue collected for in-person classes and camps with the contractor receiving 65% of the revenue and the City receiving 35% of the revenue. Dan Gertmenian administers the program including hiring and training instructors and providing all class and camp materials. The City provides the facility, registration, and a listing in the recreation class schedule. Offering specialty recreation classes and programs through negotiated contracts such as these are an industry standard and occur commonly in surrounding cities such as Campbell, Sunnyvale, Santa Clara, and Mountain View.
Dan Gertmenian continues to build and establish a positive reputation for this youth age program. Participation has steadily and consistently increased. As with all classes and programs offered through the Parks and Recreation Department, an increase in registration reflects greater community interest in the offerings and results in increased 175
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revenue for the City. Increasing this contract will allow the Math Olympiads classes and programs to continue to be offered through August 2025 and continue to produce revenue for the City. The Amendment also provides time for Staff to develop a procedure for instructional contracts to align with the City’s recently revised purchasing policy.
Sustainability Impact
No sustainability impacts.
Fiscal Impact
The City currently has an agreement with Dan Gertmenian to provide Educational Classes Events. The programs are run through G/L account 580-62-613 Youth and Teen Recreation. The extended term of the contract will cover programmatic costs and estimates through August 31, 2025.
Fiscal Year Total Revenue
Total Contractor
Payments
City Net Revenue
2022 Actuals $ 156,172.51 $ 101,512.13 $ 54,660.38
2023 Actuals $ 291,328.08 $ 189,363.25 $ 101,964.83
2024 Projected $ 421,089.23 $ 273,708.00 $ 147,381.23
2025 Projected $ 484,252.62 $ 314,764.20 $ 169,488.42
Totals $ 1,352,842.43 $ 879,347.58 $ 473,494.85
California Environmental Quality Act
Not applicable.
Prepared by: Sonya Lee, Recreation Manager
Robert Kaufman, Recreation Coordinator
Reviewed by: Rachelle Sander, Director of Parks and Recreation Greg Card, CPPO, Purchasing Manager
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Dan Gertmenian Agreement
B – Draft First Amendment
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1 FIRST AMENDMENT TO AGREEMENT 21-001 BETWEEN THE CITY OF
CUPERTINO AND DAN GERTMENIAN FOR MATH OLYMPIADS, MATH
OLYMPIADS HONORS, MATH OLYMPIAD ACCELERATED, CHESS, MATH
THEMED EVENTS, CHESS EVENTS, INFORMATION NIGHTS, TRIAL MATH
CLASSES, OPTIONAL PARTICIPANT EVENTS, PARENT- CHILD MATH OLYMPIAD CLASSES, AMC-8 PREPARATORY CLASSES
This First Amendment to Agreement 21-001 is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and DAN GERTMENIAN, a Sole Proprietorship/ Individual (“ Contractor”) whose address is 167 ACALANES DR, #15, SUNNYVALE, CA 94086, and is made with reference to the following:
RECITALS:
A. On June 25, 2021, Agreement 21-001 (“Agreement”) was entered into by and between City and Contractor for Math Olympiads, Math Olympiads Honors, Math Olympiad Accelerated, Chess, Math Themed Events, Chess Events, Information Nights, Trial Math Classes, Optional Participant Events, Parent- Child Math Olympiad Classes, AMC- 8 Preparatory Classes.
B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. Paragraph 3 of the Agreement is modified to read as follows:
Term. This contract begins on the Effective Date and ends on 08/31/2025 (“ Contract Time”), unless extended or terminated as provided herein. Time is of the essence and Contractor must have sufficient time, resources, and qualified staff to deliver the Services as required.
Contractor must promptly notify City of any actual or potential delays to afford the Parties adequate opportunity to address or mitigate such delays. The City’s appropriate department head or the 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.
2. Paragraph 4 of the Agreement is modified to read as follows:
Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will be based upon actual costs but that will be capped so as not to exceed 879,348 (“ Contract Price”), based upon the Scope of Services, budget, performance schedule, and rates included in Exhibit A. The maximum compensation includes all costs, expenses, and reimbursements and will remain in place even if Contractor’ s actual costs exceed the capped amount. Contractor must submit invoices and the information required in Exhibit A in order to receive payment. City will compensate Contractor within thirty ( 30) days after approval of written invoices.
Invoices are subject to review and audit by City during regular business hours upon 24 hours’ notice. Contractor must maintain complete and accurate records of payrolls, expenditures, disbursements and other cost items charged to City or establishing the basis for an invoice, for a minimum of four (4) years from the date of the final payment. 199
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2 3. Paragraph 5.2 of the Agreement is modified to read as follows:
Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’ s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor.
In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement is determined by a court of competent jurisdiction, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System ( PERs) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/ or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City, and actual attorney’ s fees incurred by City in connection with the above.
4. Exhibit A of the Agreement is modified as follows under the following section ( s):
Compensation for CONTRACTOR Services:
Contractor shall be compensated for services performed pursuant to this Agreement.
For a class taught in person, 65% of the resident fee based on final class rosters, minus copier use fees.
City and Contractor may mutually agree for Contractor to teach a class online rather than in person, provided that City and Contractor reach agreement for compensation for that online class. Compensation for that online class shall be specified in writing in a separate side agreement before online instruction for a class begins.
The total compensation to the Contractor shall not exceed $879,348.
5. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.
SIGNATURES CONTINUE ON THE FOLLOWING PAGE
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3 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.
CITY OF CUPERTINO
By
Title
Date
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Date
DAN GERTMENIAN
By
Title
Date
EXPENDITURE DISTRIBUTION
Item PO Number Amount
Base Amount 2022-89, 2023-57, 2024-100 773,043.00
First Amendment 106,305.00
879,348.00
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CITY OF CUPERTINO
Agenda Item
24-13223 Agenda Date: 6/18/2024
Agenda #: 8.
Subject: Award an agreement to Cascadia Consulting Group, Inc. for waste characterization services in an amount not to exceed $ 223, 466.
Authorize the City Manager to execute an agreement with Cascadia Consulting Group, Inc. for waste characterization services in an amount not to exceed $223,466.
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CITY COUNCIL STAFF REPORT
Meeting: June 18, 2024
Subject
Award an Agreement to Cascadia Consulting Group, Inc. for waste characterization services in an amount not to exceed $223,466.
Recommended Action
Authorize the City Manager to execute an agreement with Cascadia Consulting Group, Inc. for waste characterization services in an amount not to exceed $223,466.
Reasons for Recommendation
The City of Cupertino intends to prepare a waste characterization report for all materials collected in Cupertino from all categories of customers ( single-family, multi-family, and commercial). The report involves hand sorting materials from all three carts (organics, recyclables, and landfill waste) into 52 categories to get a detailed understanding of what items are not being sorted correctly. It is the only way to really understand how Cupertino residents and businesses are doing with sorting and what specific materials are problematic. This is distinct from the daily sorting conducted on the materials sent by Recology to GreenWaste, which is only performed on the contents of the blue carts and only for the purpose of removing contaminants and preparing material for the recycling market. The City last conducted this type of report in 2018 and 2019. A waste characterization report analyzes the efficacy of sorting practices by customers, evaluates City’s progress toward State and Local waste reduction requirements, guides outreach efforts, and is an action called out in the City’ s Climate Action Plan 2.0.
A budget of $250,000 for this item was approved for the current fiscal year and a competitive Request for Proposal (RFP) process was conducted in April 2024. A sole proposal received from Cascadia Consulting Group, Inc. was reviewed and evaluated by staff and determined to meet the project qualifications and scope of work. Cascadia Consulting Group, Inc., is the firm that conducted the most recent study. The proposal came in at $223,466, which is eleven percent under the approved budget for this item and no contingency is included or deemed necessary due to the nature of the work.
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recommends awarding an agreement to Cascadia Consulting Group, Inc. so that the work can commence immediately.
Sustainability Impact
Waste Characterization studies are called out as action W 1.11 in Cupertino’ s Climate Action Plan, guiding the City to “ Conduct waste characterization studies (WCS) every four to five years to inform programs and policies.”
Fiscal Impact
Award of this contract will result in a fiscal impact of $223,466. Sufficient funds are budgeted in the Resource Recovery fund 520-81-801 700-702 with no impact on the General Fund. No additional appropriations are needed.
California Environmental Quality Act (CEQA)
Not applicable.
Prepared by: Ursula Syrova, Environmental Programs and Sustainability Manager Reviewed by: Chad Mosley, Director of Public Works
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Draft Cascadia Professional Consultant Agreement
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PROFESSIONAL/ CONSULTING SERVICES AGREEMENT
1. PARTIES
This Agreement is made by and between the City of Cupertino, a municipal corporation (“ City”), and Cascadia Consulting Group, Inc (“ Contractor”), a Corporation for Cascadia Consulting Group, Inc., for Waste Characterization Study, and is effective on the last date signed below Effective Date”).
2. SERVICES
2.1 Contractor agrees to provide the services and perform the tasks (“ Services”) set forth in detail in Scope of Services, attached here and incorporated as 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 Contractor’ s duties and services under this agreement shall not include preparing or assisting the City with any portion of the City’ s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with the City.
The City shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this project. Contractor’ s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Contractor shall cooperate with the City to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by contractor pursuant to this agreement.
3. TIME OF PERFORMANCE
3.1 This Agreement begins on the Effective Date and ends on May 30, 2026 (“ Contract Time”), unless terminated earlier as provided herein. Contractor’ s Services shall begin on the effective date and shall be completed by May 30, 2026. The City’ s appropriate department head or the 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. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B.
3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time.
Attachment A
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4. COMPENSATION
4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed 223,466.00 (“ Contract Price”), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’ s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City.
4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty ( 30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under the Agreement.
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 Services and for the persons hired to work under this Agreement. 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 Services 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 Services as required by law and have procured a City Business License, if required by the Cupertino Municipal Code.
5.4 Subcontractors. Only Contractor’ s employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor.
5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement.
5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’ s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. In the event 206
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that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement is determined by a court of competent jurisdiction, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City, and actual attorney’ s fees incurred by City in connection with the above.
6. PROPRIETARY/ CONFIDENTIAL INFORMATION
In performing this Agreement, Contractor 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. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement.
Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data.
7. OWNERSHIP OF MATERIALS
7.1 Property Rights. Any interest ( including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium ( collectively, “ Work Product”), prepared by Contractor in connection with this Agreement 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 any third-party without prior written approval of City.
7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising out of this Agreement is considered “ works for hire” and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights.
Contractor may use copies of the Work Product for promotion only with City’ s written approval.
7.3 Patents and Licenses. Contractor 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 Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following:
a) The original Services for which Contractor was hired; b) Completion of the original Services by others;
c) Subsequent additions to the original Services; and/or d) Other City projects.
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7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single- sided original.
8. RECORDS
Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor’ s performance, benchmarks and deliverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four (4) years from the date of City’ s final payment.
Contractor acknowledges that certain documents generated or received by Contractor in connection with the performance of this Agreement, including but not limited to correspondence between Contractor and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Contractor 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
Contractor 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 Contractor as a legal entity is considered an assignment of the Agreement 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.
10. PUBLICITY / SIGNS
Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one 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 Contract, 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 and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants (“ Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, 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 Agreement or in any manner relating to any of the following:
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a) Breach of contract, obligations, representations, or warranties; b) Negligent or willful acts or omissions committed during performance of the Services; c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub- subcontractors; d) Unauthorized use or disclosure of City’ s confidential and proprietary Information; e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party.
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. At City’ s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement.
11.3 Contractor’ s duties under this section are not limited to the Contract Price, workers’ compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any 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 Agreement, or 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 Agreement.
Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.
11.6 This Section 11 shall survive termination of the Agreement.
12. INSURANCE
Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement 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 Agreement.
13. COMPLIANCE WITH LAWS
13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. 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 Services, as required by the Immigration Reform and Control Act.
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13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a “ public works” component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws.
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 its employees or sub- contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision.
13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor 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. Contractor may be required to file a conflict of interest form if Contractor 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 the City’ s rules governing gifts to public officials and employees.
13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement.
14. PROJECT COORDINATION
City Project Manager. The City assigns Ursula Syrova as the City’ s representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. 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 Brandy Do as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor’ s Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City’ s Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative.
15. ABANDONMENT OF PROJECT
City may abandon or postpone the Project or parts therefor at any time. Contractor will be 210
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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. With City’ s pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent ( 10%) of the total time expended to date in the performance of the Services.
16. TERMINATION
City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product.
17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION
This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor 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.
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 a breach shall not constitute waiver of another provision or breach.
21. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement( s) and understanding( s), either oral or written, between the Parties. 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 the 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. 211
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22. INSERTED PROVISIONS
Each provision and clause required by law for this Agreement 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.
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. The Parties agree to work in good faith to amend this Agreement to carry out its intent.
25. SURVIVAL
All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/ Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect.
26. 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 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: Ursula Syrova
Email: ursulas@cupertino. org
To Contractor:
Cascadia Consulting Group, Inc
1109 First Ave, Suite 400
Seattle, WA 98101
Attention: Brandy Do
Email: Brandy@cascadiaconsulting. com
27. EXECUTION
The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to enter into and carry out all actions contemplated 212
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by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. 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.
CITY OF CUPERTINO CONTRACTOR
A Municipal Corporation
By By
Name Name
Title Title
Date Date
APPROVED AS TO FORM:
CHRISTOPHER D. JENSEN
Cupertino City Attorney
ATTEST:
KIRSTEN SQUARCIA
City Clerk
Date
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CITY OF CUPERTINO
Agenda Item
24-13235 Agenda Date: 6/18/2024
Agenda #: 9.
Subject: Minor correction to amendment to MIG, Inc. Design Professional Agreement approved at the June 4 City Council meeting to increase not-to-exceed amount of contract by $45,000, to amount of $512,411.
Approve the corrected not-to-exceed total agreement amount as outlined in the draft amendment to the MIG, Inc. Design Professional Agreement.
CITY OF CUPERTINO 2024Page 1 of 1 Printed on 6/12/
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CITY COUNCIL STAFF REPORT
Meeting: June 18, 2024
Subject
Minor correction to amendment to MIG, Inc. Design Professional Agreement approved at the June 4 City Council meeting to increase not-to-exceed amount of contract by 45,000, to amount of $512,411.
Recommended Action
Approve the corrected not-to-exceed total agreement amount as outlined in the draft amendment to the MIG, Inc. Design Professional Agreement.
Reasons for Recommendation
Since City Council’ s approval, staff learned the recommended action as outlined did not match the contract amount. Proposed recommended action #4 should have been stated as follows (corrected amount shown in underline while the incorrect amount is shown in strikethrough):
8. Subject: Construction contract and a proposed amendment to the design consultant agreement and construction management services for the All-Inclusive Playground at Jollyman Park project
Recommended Action:
1. Award a construction contract for the All-Inclusive Playground at Jollyman Park Project ( budget unit 420-99-051) in the amount of 3,863,430 to QLM, Inc.;
2. Authorize the City Manager to execute the contract with QLM, Inc. when all conditions have been met;
3. Authorize the Director of Public Works to execute any necessary construction change orders with QLM, Inc., up to a contingency amount of 386,350 (10%), for a total contract amount of $4,249,780;
4. Authorize the City Manager to execute an amendment to the agreement with MIG, Inc. for Design Professional Services on the All-Inclusive Playground at Jollyman Park project ( 420-99-051, PO# 2022-0326) increasing the contract amount by $45,000, for a new total not-to-exceed contract amount of $467,411, $512,411
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5. Authorize the City Manager to execute a professional services agreement with 4Leaf, Inc. for construction management services for a total not-toexceed contract amount of $393,081; and
6. Adopt Resolution No. 24-049 approving budget modification # 2324- 304, approving a transfer out of $500,000 from the Park Dedication Fund (280) and a transfer into the All-Inclusive Playground at Jollyman Park Project budget unit 420-99-051) and appropriating $ 500,000 to this project.
There are no additional changes to other actions.
As approved by Council on December 7, 2021, the MIG agreement for the Jollyman AllInclusive Playground (AIPG) project is executed in the amount of $389,511 a contingency amount of $77,900, for a total not-to-exceed amount of $467,411. The Amendment to the Agreement increases the not-to-exceed amount by $45,000, for a new total not-to-exceed amount of $512,411.
Sustainability Impact
No impact.
Fiscal Impact
The recommended action corrects a typographical error with no fiscal impact. The edit corrects the Council action such that the rectified not-to-exceed amount in the recorded action reflects the approved contract amendment of $45,000, as is correctly recorded in the draft contract amendment.
California Environmental Quality Act (CEQA)
Not applicable.
Prepared by: Susan Michael, Capital Improvement Programs Manager Reviewed by: Chad Mosley, Director of Public Works
Reviewed by: Christopher Jenson, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Draft Agreement Amendment – MIG, Inc. (6/4/2024 attachment) 216
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SIXTH AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG. INC FORALLINCLUSIVE PLAYGROUND AT JOLLYMAN PARK This Sixth Amendment to Agreement 401 between the City of Cupertino, a municipal corporation ( hereinafter " City") and MIG, Inc, a Corporation (" Contractor") whose address is 2055 Junction Ave, Suite 205, San Jose, CA 95131, and is made with reference to the following:
RECITALS:
A. On December 09, 2021 Agreement 401 (" Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.
B. The City and the Contractor entered into a First Amended Agreement (" First Amended Agreement") effective October 13, 2022; and
C. The City and the Contractor entered into a Second Amended Agreement (" Second Amended Agreement") effective July 14, 2023; and
D. The City and the Contractor entered into a Third Amended Agreement (" Third Amended Agreement") effective September 7, 2023; and
E. The City and the Contractor entered into a Fourth Amended Agreement (" Third Amended Agreement") effective April 8, 2024; and
F. The City and the Contractor entered into 1a Fifth Amended Agreement (" Third Amended Agreement") effective May 22, 2024; and
G. The Agreement, First Amendment, Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment are collectively referred to as the " Agreement" unless otherwise indicated.
H. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:
City will pay Consultant for satisfactory performance of the Service a total amount that will be based upon actual costs but that will be capped so as not to exceed $ 512, 411. 00 (" Contract Price"), based on the budget and rates set forth in Exhibit C, Compensation, and 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. Exhibits A and A-1 and A-2 and A-3 and A-4 of the Agreement are modified to include Exhibit A-5 Additional Services, attached hereto.
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2 . Paragraph 4.3 Additional Services of the Agreement is modified to read as follows: City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed $ 45,000. 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 with the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. Ifpaid 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 . Exhibits A and A-1 and A-2 and A-3 and A-4 of the Agreement are modified to include Exhibit A-5 Additional Services, attached hereto.
3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed .
CITY OF CUPERTINO MIG, INC
By ___________ _ ~}~ By ___________ _
Title Title Vice President and Chief Development Officer Date Date May 23, 2024 ------------
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Date ------------
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EXPENDITURE DISTRIBUTION
I
Item II PO Number Amount I
lorisinal Asreement 11 2022- 326 $ 389,511. 09
Amendment 1 II I $ 12:000.og
Amendment 2 11 I $ 18,250. 09
Amendment 3 11 I $ 38, 409
Amendment 4 11 Extend Term to 6/30/ 2026 I
0 Amendment 5 11 II $ 9,259
Amendment 6 11 II $ 45,oog
Total 1, II $ 512 24111
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FIFTH AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG. INC FOR ALLINCLUSIVE PLAYGROUND AT JOLLYMAN PARK This Fifth Amendment to Agreement 401 between the City of Cupertino, a municipal corporation ( hereinafter " City") and MIG, Inc, a Corporation (" Contractor") whose address is 2055 Junction Ave, Suite 205, San Jose, CA 95131, and is made with reference to the following:
RECITALS:
A. On December 09, 2021 Agreement 401 (" Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.
B. The City and the Contractor entered into a First Amended Agreement (" First Amended Agreement") effective October 13, 2022; and
C. The City and the Contractor entered into a Second Amended Agreement (" Second Amended Agreement") effective July 14, 2023; and
D. The City and the Contractor entered into a Third Amended Agreement (" Third Amended Agreement") effective September 7, 2023; and
E. The City and the Contractor entered into a Fourth Amended Agreement (" Third Amended Agreement") effective April 8, 2024; and
F. The Agreement, First Amendment, Second Amendment, Third Amendment and Fourth Amendment are collectively referred to as the " Agreement" unless otherwise indicated.
G. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:
City will pay Consultant for satisfactory performance of the Service a total amount that will be based upon actual costs but that will be capped so as not to exceed $ 467, 411. 00 (" Contract Price"), based on the budget and rates set forth in Exhibit C, Compensation, and attached and incorporated here . The Contract Price includes all expenses and reimbursements and will remain in place even ifConsultant' s actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. Exhibits A and A-1 and A-2 and A-3 of the Agreement are modified to include Exhibit A-4 Additional Services, attached hereto. 1 220
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2. Paragraph 4.3 Additional Services of the Agreement is modified to read as follows: City has the discretion, but not the obligation, to authorized Additional Services up to an amount not to exceed $ 9,250 .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 with 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. Exhibits A and A-1 and A-2 and A-3 of the Agreement are modified to include Exhibit A-4, Additional Services, attached hereto.
3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this modification ofAgreement to be executed.
CITY OF CUPERTINO
By ~ fTitle Director of Public Works
Date May 22, 2024
APPROVED AS TO FORM
ChrisfopherD. Yensen
City Attorney
ATTEST:
City Clerk
Date May 22, 2024
MIG, INC
6r--
By ___________ _
Title Vice President and Chief Development Officer
Date May 22, 2024
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EXPENDITURE DISTRIBUTION
I
Item Ii PO Number II Amount
11 1Ori~ inal A~reement 11 2022- 326 11 $ 389, 511. og 1 Amendment 1
11 II $ 12,000.0g 1
Amendment 2
11 II $ 1s,2so.og l
Amendment 3
11 II $ 38, 4og 1
Amendment 4
11 Extend Term to 6/30 /2026 11 ci 1
IAmendment 5
11 II $ 9,2sg i
Total 11 II $ 467,4111
3 222
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April 2, 2024
Susan Michael, Capital Projects Programs Manager
City of Cupertino, City Hall
10300 Torre Ave.
Cupertino, CA 95014
Re: Additional Services # 4 Jollyman Park Inclusive Playground ( MIG proj. no. 30902) Dear Susan,
EXHIBIT A-4
We are requesting use of contingency to assist the City with building permit application form, hardship form, project manual edits, and costs; creation of the SWMP for permit application; and additional bid support.
The following summarizes the MIG team' s request for additional work and fees that are above and beyond the original contract, signed Dec . 9, 2021. All other terms in the original contract remain in effect.
Add Services ( Task 9: Permit Assistance)
We are requesting additional fees to requested assistance w ith building permit :
Task 9 Permit Assistance
Creation and submittal of SWMP $ 1,800 ( BKF)
Supplemental permit application and bid support $ 7,450 ( team) Total Add Service # 4
9,250
9,250
Your emailed authorization to proceed so we can begin this work will help us meet internal City schedule needs is much appreciated.
Sincerely,
Melissa Erikson
Principal, Director of Community Design Services
MIG
PLANNING I DESIGN I COMMUNICATIONS I MANAGEMENT ! SCIENCE ! TECHNOLOGY 800 Hearst Avenue • Berkeley, CA 94710 • USA • 510- 845- 7549 • www. migcom. com Offices in: California • Colorado • Oregon • Texas • Washington 223
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FOURTH AMENDMENT TO AGREEMENT 401
BETWEEN THE CITY OF CUPERTINO AND MIG, INC
FOR ALL- INCLUSIVE PLAYGROUND AT JOLLYMAN
PARK
This Fourth Amendment to Agreement 401 between the City of Cupertino and MIG, Inc is by and between the City of Cupertino, a municipal corporation ( hereinafter " City") and MIG, Inc, a Corporation (" Contractor") whose address is 2055 Junction Ave, Suite 205, San Jose, CA 95131, and is made with reference to the following:
RECITALS:
A. On December 09, 2021 Agreement 401 (" Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.
B. The City and the Contractor entered into a First Amended Agreement (" First Amended Agreement") effective October 13, 2022; and
C. The City and the Contractor entered into a Second Amended Agreement (" Second Amended Agreement") effective July 14, 2023; and
D. The City and the Contractor entered into a Third Amended Agreement (" Third Amended Agreement") effective September 7, 2023; and
E. The Agreement, First Amendment, Second Amendment and Third Amendment are collectively referred to as the " Agreement" unless otherwise indicated.
F. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. Paragraph 3.1 of the Agreement is modified to read as follows:
Term. This Agreement begins on the Effective Date and ends on June 30, 2026, 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.
2. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.
SIGNATURES CONTINUE ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this modification ofAgreement to be executed.
CITY OF CUPERTINO MIG , INC
rBy __________ _ ~}-
6;---
By __________ _
Title Assistant Director of Public Works Title Vice President and Chief Development Officer Date Apr 8, 2024 Date Apr 8, 2024
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Apr8, 2024
Date __________ _
EXPENDITURE DISTRIBUTION
I
Item II PO Number II Amount I
I
Original Agreement II 2022- 326 II $ 389, 511. 0~
I
Amendment 1
11 I $ 12 ,000. 0~
I
Amendment2 11 I
18,250.0~
I
Amendment 3
11 I $ 38 ,40~ 1
I II I
Amendment4 Extend Term to 6/30/ 2026
I
I
I
Total 11 I
458 ,161 1
I
2 225
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ACORD~ CERTIFICATE OF LIABILITY INSURANCE I
DATE (MM/DD/YYYY)
3/26/2024
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).
PRODUCER ~~: i~cT Mandy Guo
AssuredPartners Design Professionals Insurance Services, LLC r.~~N,_t r-••· 510-272-1402 I
FAX
3697 Mt. Diablo Blvd Suite 230 / A/C Nol:
Lafayette CA 94549 ~ t1D'1{~ss: [email protected] INSURER(S) AFFORDING COVERAGE NAIC#
License#:6003745 INSURER A: BERKLEY INSURANCE COMPANY 32603 INSURED MIGINC0-01 INSURER B : Travelers Property Casualty Company ofAmerica 25674 MIG, Inc.
INSURER c : The Travelers Indemnity Company of Connecticut 25682 Moore lacofano Goltsman, Inc. 800 Hearst Ave INSURER D : The Travelers Indemnity Company 25658 Berkeley CA 94710 INSURER E :
INSURER F:
COVERAGES CERTIFICATE NUMBER: 358873288 REVISION NUMBER·
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 .
INSR ADDL SUBR POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE ,.,~ ft lun, ft POLICY NUMBER / MMIDD/YYYYl / MM/DD/YYYYl LIMITS C X COMMERCIAL GENERAL LIABILITY y y
6801H899998 8/31/2023 8/31/2024 EACH OCCURRENCE $ 1 ,000,000 - 0 CLAIMS-MADE 0 OCCUR
DAMAGE TU RENTED
PREMISES (Ea occurrence) $ 1,000,000
X Contractual Liab - MED EXP (Any one person) $ 10,000
Included PERSONAL & ADV INJURY $ 1,000,000
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY 0 jrg: LOC PRODUCTS • COMP/OP AGG $ 2,000 ,000
OTHER: $
C AUTOMOBILE LIABILITY y y BAOS579947 8/31/2023 8/31/2024 COMBINED SINGLE LIMIT $ 1,000,000 ( Ea accident) >--- X ANY AUTO BODILY INJURY (Per person) $
OWNED - SCHEDULED
AUTOS ONLY AUTOS BODILY INJURY (Per accident) $
HIRED NON-OWNED PROPERTY DAMAGE X
AUTOS ONLY XAUTOS ONLY ( Per accident\ $
B X UMBRELLA LIAB MOCCUR y y CUPOH758762 8/31/2023 8/31/2024 EACH OCCURRENCE $ 10,000,000 >-- EXCESS LIAB CLAIMS-MADE AGGREGATE $ 10 ,000,000
DED I X I RETENTION$ n $
D WORKERS COMPENSATION y UB2L553909 8/31/2023 8/31/2024 X I ~ffTurE I I
OTHER AND EMPLOYERS' LIABILITY Y/N
ANYPROPRIETOR/PARTNER/EXECUTIVE ~
N/A
E.L. EACH ACCIDENT $ 1,000,000
OFFICER/MEMBER EXCLUDED?
Mandatory In NH) E.L. DISEASE - EA EMPLOYEE $ 1,000,000 t~(tffi~ on/OPERATIONS below E.L. DISEASE· POLICY LIMIT $ 1,000,000 A Professional Liability & AEC907002005 8/31/2023 8/31/2024 Per Claim/5,000 ,000 $ 5 ,000,000/Aggr Contr. Pollution Liab Included Included
DESCRIPTION OF OPERATIONS I LOCATIONS/ VEHICLES ( ACORD 101, Additional Remarks Schedule, may be attached ifmore space is required) Umbrella Liability policy is a follow-form to its underlying Policies: General Liability/Auto Liability/Employers Liability.
Re: Jollyman Park All-Inclusive Playground.
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. General Liability is Primary/Non-Contributory per policy form wording. Insurance coverage includes waiver of subrogation per the attached endorsement(s).
CERTIFICATE HOLDER CANCELLATION 30 Day Notice of Cancellation
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
City of Cupertino
10300 Torre Ave . AUTHORIZED REPRESENTATIVE
Cupertino CA 95014 ~
1988- 2015 ACORD CORPORATION. All rights reserved .
ACORD 25 ( 2016/ 03) The ACORD name and logo are registered marks of ACORD 226
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POLICY NUMBER: 680-1H899998 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under 1he following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Names of Additional Insured Person( s) or Organization( s):
Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part, provided that such written contract was signed by you before. and is in effect when, the " bodily injury" or " property damage" occurs or the " personal injury" or "advertising injury" offense is committed.
Location of Covered Operations:
Any project to which a written contract with the Additional Insured Person( s) or Organization( s) in the Schedule applies.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.) A. Section II - Who Is An Insured is amended to include as an additional insured the per.son( s) or organization( s) shown in the Schedule, put only
with respect to liability for " bodily injury", " property damage", " personal injury" or " advertising injury"
caused, in whole or in part, by: •
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured( s) at the location( s) designated above .
B. With respect to the insurance afforded to these
additional insureds, the following additional exclusions apply :
CG D3 610305
This insur. ance does not apply to " bodily injury" or
property damage" occurring, or " personal injury"
or '' advertising injury" arising out of an offense
committed, after:
1. All work, including materials, parts or equipment furnished in connection with such work, on the project ( other than service , maintenance or repairs) to be performed by or on behalf of the additional insured( s) at the location of the covered operations has been completed ; or
2. That portion of " your work" out of which the
injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
Copyright 2005 The St. Paul Travelers Companies , Inc. All rights reserved .
CG TB 03 08 23 ncludes copyrighted material of Insura nce Services Office, Inc . with its permission.
DATE OF ISSUE : 08/06/2023 Page 1 of 1
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POLICY NUMBER : 680-1H899998 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following :
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person( s) Or Organization( s):
Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part for " bodily injury" or " property damage" included in the products- completed operations hazard, provided that such contract was signed by you before, and is in effect when, the " bodily injury or ''property damage" occurs.
Location And Description Of Completed Operations
Any project to which a written contract with the Additional Insured Person( s) or Organization( s) in the Schedule applies.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
Section II - Who Is An Insured is amended to include as an additional insured the person( s) or organization( s) shown in the Schedule, but only with respect to liability for " bodily injury" or " property damage" caused, in whole or in part, by " your work" at the CG 20 37 07 04
location designated and described in the schedule of
this endorsement performed for that additional insured and included in the " products- completed operations hazard".
CG TS 04 08 23 © ISO Properties , Inc ., 2004
DATE OF ISSUE: 08/06/2023 Page 1 of 1
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Policy# sso 1H ssssss
COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing
If all of the other insurance permits contribution
by equal shares , we will follow this method also .
Under this approach each insurer contributes
equal amounts until it has paid its applicable
limit of insurance or none of the loss remains,
whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will contribute
by limits. Under this method, each insurer' s
share is based on the ratio of its applicable limit
of Insurance to the total applicable limits of
insurance of all insurers .
Primary And Non-Contributory Insurance If
a. The statements in the Declarations are
accurate and complete ;
b. Those statements are based upon
representations you made to us ; and
c. We have issued this policy in reliance upon
your representations.
The unintentional omission of, or unintentional error
in, any information provided by you which we relied
upon in issuing this policy will not prejudice your
rights under this insurance. However, this provision
does not affect our right to collect additional
premium or to exercise our rights of cancellation or
nonrenewal in accordance with applicable insurance
laws or regulations . --)~ d.
Required By Written Contract ~- Separation Of Insureds
If you specifically agree in a written contract or
agreement that the insurance afforded to an
insured under this Coverage Part must apply on
a primary basis , or a primary and noncontributory basis, this insurance is primary to other insurance that is available to such insured
which covers such insured as a named insured,
and we will not share with that other insurance,
provided that:
1) The " bodily inj. Jry'' or "property damage" fo r
which coverage is sought occurs ; and
2) The " personal and adwrtising injury" for
which coverage is sought is caused by an
offense that is committed ;
subsequent to the signing of that contract or
agreement by you.
5. Premium Audit
a. We will compute all prem iums for this Coverage
Part in accordance with our rules and rates .
b. Premium shown in this Coverage Part as
advance premium is a deposit premium only. At
the close of each audit period we will compute
the earned prem ium for that period and send
notice to the first Named Insured . The due date
for audit and retrospective premiums is the date
shown as the due date on the bill. If the sum of
the advance and audit premiums paid for the
policy period is greater than the earned
premium , we will return the excess to the first
Named Insured .
c. The first Named Insured must keep records of
the information we need for premium
computation , and send us copies at such times
as we may request.
6. Representations
By accept ing this pol icy, you ag ree:
Except with respect to the Limits of Insurance , and
any rights or duties specifically assigned in this
Coverage Part to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the on ly
Named Insured ; and
b. Separately to each insured against whom claim
is made or " suit" is brought.
8. Transfer Of Rights Of Recovery Against Others
To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part,
those rights are transferred to us . The insured must
do nothing after loss t0 impai r them . At ou r request, the insured will bring " suit" or transfer those rights to us and help us enforce them .
9. When We Do Not Renew
If we decide not to renew this Coverage Part, we will
mail or del iver to the first Named Insured shown in
the Declarations written not ice of the nonrenewal
not less than 30 days before the e:i<piration date .
If notice is mailed , proof of ma iling wi ll be sufficien t proof of notice.
SECTION V - DEFINITIONS
1 . " Advertisement" means a notice that is broadcast or published to the general public or specific market
segments about your goods , products or services
for the purpose of attracting customers or
supporters. For the purposes of this definition :
a. Notices that are published include mate ri al
placed on the Internet or on similar electronic
means of communication ; and
b. Regarding websites, on ly that part of a webs ite
that is about your goods , products or services
for the purposes of attracting customers or
supporters is cons idered an adve rt isement.
Includes co pyright ed material of Insurance Services Office, Inc. with its pe rmission . 229
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Policy # sao1Ha999 9a
occupational therapist or occupationa l
therapy ass istant , physical therapist or
speech-language pathologist ; or
b) First aid or " Good Samaritan services"
by any of your "employees" or "volunteer
workers", other than an employed or
volunteer doctor. Any such " employees"
or "volunteer workers" providing or failing
to provide first aid or "Good Samaritan
services" during their work hours for you
will be deemed to be acting within the
scope of their employment by you or
performing duties related to the conduct
of your business.
3. The following replaces the last sentence of
Paragraph 5. of SECTION Ill - LIMITS OF
INSURANCE:
For the purposes of determining the
applicable Each Occurrence Limit, all related
acts or omissions committed in providing or
failing to provide " incidental medical
services", first aid or " Good Samaritan
services" to any one person will be deemed
to be one " occurrence".
4. The following exclusion is added to
Paragraph 2., Exclusions, of SECTION I -
COVERAGES - COVERAGE A - BODILY
INJURY AND PROPERTY DAMAGE
LIABILITY:
Sale Of Pharmaceuticals
Bodily injury" or " property damage" arising
out of the violation of a penal statute or
COMMERCIAL GENERAL LIABILITY
that is available to any of your " employees"
for "bodily injury" that arises out of providing
or failing to provide " incidental medical
services" to any person to the extent not
subject to Paragraph 2.a.( 1) of Section II -
Who Is An Insured.
K. MEDICAL PAYMENTS - INCREASED LIMIT
The following replaces Paragraph 7. of
SECTION 111- LIMITS OF INSURANCE :
7. Subject to Paragraph 5 . above, the Medical
Expense Limit is the most we will pay under
Coverage C for all medical expenses
because of "bodily injury" sustained by any
one person, and will be the higher of:
a. $ 10,000 ; or
b. The amount shown in the Declarations of
this Coverage Part for Medical Expense
Limit.
L. AMENDMENT OF EXCESS INSURANCE
CONDITION - PROFESSIONAL LIABILITY
The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -
COMMERCIAL GENERAL LIABILITY
CONDITIONS :
This insurance is excess over any of the other
insurance , whether primary, excess , contingent
or on any other basis, that is Professional
Liability or similar coverage, to the extent the
loss is not subject to the professional services
ordinance relating to the sale of M
pharmaceuticals committed by, or with the •
exclusion ofCoverage A or Coverage B.
BLANKET WAIVER OF SUBROGATION -
WHEN REQUIRED BY WRITTEN CONTRACT knowledge or consent of the insured.
5. The following is added to the DEFINITIONS
Section :
Incidental medical services" means :
a. Medical , surgical, dental , laboratory , xray or nursing service or treatment , advice or instruction , or the related
furnishing of food or beverages; or
b. The furnishing or dispensing of drugs or
medica l, dental , or surgical supplies or
appliances.
6. The following is added to Paragraph 4.b.,
Excess Insurance , of SECTION IV -
COMMERCIAL GENERAL LIABILITY
CONDITIONS :
This insurance is excess over any valid and
collectible other insurance , whether primary ,
excess , contingent or on any other basis ,
OR AGREEMENT
The following is added to Paragraph 8., Transfer
Of Rights Of Recovery Against Others To Us ,
of SECTION IV - COMMERCIAL GENERAL
LIABILITY CONDITIONS :
If the insured has agreed in a written contract or
agreement to waive that insured's right of
recovery against any person or organization , we
waive our right of recovery against such person
or organization , but only for payments we make
because of:
a. " Bodily injury" or " property damage" that
occurs ; or
b. " Personal and advertising injury" caused by
an offense that is committed ;
subsequent to the sign ing of that contract or
agreemen t.
CG 03-79-02-19 ---- 2017 Thi:Traveters tm:lemnityi:ompany. Alhights reserved-. - Page 5 of6 Includes copyrighted material of Insurance Serv ices Office , Inc. withitspermission. 230
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Policy Number: BA0S579947
COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESS AUTO EXTENSION ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage . However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general coverage description only. Limitations and exclusions may apply to these coverages . Read all the provisions of this endorsement and the rest of your policy carefully to determine rights , duties , and what is and is not covered .
A. BROAD FORM NAMED INSURED H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF B. BLANKET ADDITIONAL INSURED
C. EMPLOYEE HIRED AUTO
D. EMPLOYEES AS INSURED
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS G. WAIVER OF DEDUCTIBLE - GLASS
PROVISIONS
A. BROAD FORM NAMED INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE:
Any organization you newly acquire or form during the policy period over which you maintain 50% or more ownership interest and that is not
separately insured for Business Auto Coverage.
Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier .
B. BLANKET ADDITIONAL INSURED
The following is added to Paragraph c. in A.1.,
Who Is An Insured, of SECTION II - COVERED
AUTOS LIABILITY COVERAGE :
Any person or organization who is required under
a written contract or agreement between you and
that person or organization , that is signed and
executed by you before the " bodily injury" or
property damage" occurs and that is in effect
during the policy period, to be named as an additional insured is an " insured" for Covered Autos Liability Coverage, but only for damages to which
USE - INCREASED LIMIT
I. PHYSICAL DAMAGE - TRANSPORTATION
EXPENSES - INCREASED LIMIT
J. PERSONAL PROPERTY
K. AIRBAGS
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
M. BLANKET WAIVER OF SUBROGATION
N. UNINTENTIONAL ERRORS OR OMISSIONS
this insurance applies and only to the extent that
person or organization qualifies as an " insured"
under the Who Is An Insured provision contained
in Section II.
C. EMPLOYEE HIRED AUTO
1. The following is added to Paragraph A.1 ..
Who Is An Insured, of SECTION II - COVERED AUTOS LIABILITY COVERAGE :
An " employee" of yours is an " insured" while
operating an " auto" hired or rented under a
contract or agreement in an " employee' s"
name, with your permission. while performing
duties related to the conduct of your business.
2. The following replaces Paragraph b. in B.5 ..
Other Insurance, of SECTION IV - BUSINESS AUTO CONDITIONS :
b. For Hired Auto Physical Damage Coverage, the following are deemed to be covered " autos" you own :
1) Any covered " auto" you lease , hire.
rent or borrow ; and
2) Any covered " auto" hired or rented by
your " employee" under a contract in
an " employee' s" name, with your
CA T3 53 0215 © 2015 The Travelers Indemnity Company. All rights reserved. Page 1 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission . 231
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COMMERCIAL AUTO
perm1ss1on, while performing duties
related to the conduct of your business .
However, any " auto" that is leased , hired,
rented or borrowed with a driver is not a
covered " auto".
D. EMPLOYEES AS INSURED
The following is added to Paragraph A.1., Who Is
An Insured , of SECTION II - COVERED AUTOS
LIABILITY COVERAGE:
Any " employee" of yours is an " insured" while using a covered " auto" you don' t own, hire or borrow in your business or your personal affairs .
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
1. The following replaces Paragraph A.2 .a.( 2),
of SECTION II - COVERED AUTOS LIABILITY COVERAGE:
2) Up to $ 3,000 for cost of bail bonds ( including bonds for related traffic law violations) required because of an " accident" we cover . We do not have to furnish
these bonds .
2. The following replaces Paragraph A.2.a.(4),
of SECTION II - COVERED AUTOS LIABILITY COVERAGE:
4) All reasonable expenses incurred by the
insured" at our request , including actual
loss of earnings up to $ 500 a day because of time off from work.
F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS The following replaces Subparagraph ( 5) in Paragraph 8.7., Policy Period, Coverage Territory , of SECTION IV - BUSINESS AUTO CONDITIONS :
5) Anywhere in the world , except any country or
jurisdiction wh ile any trade sanction , embargo, or similar regulation imposed by the United States of America applies to and prohibits the transaction of business with or within such country or jurisd iction , for Covered Autos Liability Coverage for any covered auto" that you lease , hire , rent or borrow
without a driver for a period of 30 days or less
and that is not an " auto" you lease , hire , rent
or borrow from any of your " employees",
partners ( if you are a partnership ), members
if you are a limited liability company) or
membe rs of their households .
a) With respect to any claim made or " suit"
brought outside the United States of
America , the territories and possessions
of the United States of America , Puerto
Rico and Canada :
i) You must arrange to defend the " insured" against, and investigate or settle any such claim or " su it" and keep us advised of all proceedings and actions .
ii) Neither you nor any other involved
insured" will make any settlement
without our consent.
iii) We may , at our discretion , participate
in defending the " insured" against, or
in the settlement of, any claim or
suit".
iv) We will reimburse the " insured" for
sums that the " insured" legally must
pay as damages because of " bodily
injury" or " property damage" to which
th is insurance applies , that the " insured" pays with our consent, but only up to the limit described in Paragraph C., Lim its Of Insurance, of
SECTION II - COVERED AUTOS
LIABILITY COVERAGE .
v) We will reimburse the " insured" for
the reasonable expenses incurred
with our consent for your investigation of such claims and your defense of the " insured" against any such
suit", but only up to and included
within the limit described in Para -
graph C., Limits Of Insurance , of
SECTION II - COVERED AUTOS
LIABILITY COVERAGE , and not in
addition to such limit. Our duty to
make such payments ends when we
have used up the applicable limit of
insurance in payments for damages ,
settlements or defense expenses .
b) This insurance is excess ove r any valid
and collectible othe r insurance available
to the " insured " whether primary , excess ,
contingent or on any other basis .
c) This insurance is not a substitute for required or compulsory insurance in any country outs ide the United States , its te rritories and possess ions , Puerto Rico and Canada.
Includes copyrighted material of Insurance Services Offi ce , Inc. with its permission . 232
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You agree to ma intain all requ ired or
compulsory insurance in any such country up to the minimum limits required by local law . Your failure to comply with
compulsory insurance requirements will
not invalidate the coverage afforded by
this policy , but we will only be liable to the
same extent we would have been liable
had you complied with the compulsory insurance requ irements . d) It is understood that we are not an admitted or authorized insurer outside the United States of America , its territories
and possessions , Puerto Rico and Canada. We assume no respons ibility for the furnishing of certificates of insurance , or
for compliance in any way with the laws
of other countries relating to insurance .
G. WAIVER OF DEDUCTIBLE - GLASS
The following is added to Paragrap h D ., Deductible, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
No deductible for a covered " auto" will apply to
glass damage if the glass is repaired rather than
replaced .
H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF
USE - INCREASED LIMIT
The following replaces the last sentence of Para -
graph A.4.b., Loss Of Use Expenses , of SECTION Ill - PHYSICAL DAMAGE COVERAGE :
However , the most we will pay fo r any expenses
for loss of use is $ 65 per day, to a maximum of
750 for any one " accident".
I. PHYSICAL DAMAGE - TRANSPORTATION
EXPENSES - INCREASED LIMIT
The following replaces the first sentence in Paragraph A.4.a., Transportation Expenses, of SECTION Ill - PHYSICAL DAMAGE COVERAGE :
We will pay up to $ 50 per day to a maximum of
1 , 500 for temporary transportation expense incurred by you because of the total theft of a covered " auto" of the private passenge r type .
J . PERSONALPROPERTY
The following is added to Paragraph A.4 ., Coverage Extensions , of SECTION Ill - PHYSICAL DAMAGE COVERAGE :
Personal Property
We will pay up to $ 400 fo r " lo ss" to wearing apparel and othe r pe rsonal property which is:
1 ) Owned by an " insu red"; and
COMMERCIAL AUTO
2) In or on your covered " auto".
This coverage applies only in the event of a total
theft of your covered " auto".
No deductibles apply to this Personal Property
coverage.
K. AIRBAGS
The following is added to Paragraph 8.3., Exclusions, of SECTION Ill - PHYSICAL DAMAGE COVERAGE :
Exclusion 3.a . does not apply to " loss" to one or
more airbags in a covered " auto" you own that inflate due to a cause other than a cause of "loss" set forth in Paragraphs A.1.b. and A.1.c., but
only:
a. If that " auto" is a covered " auto" for Comprehensive Coverage under this policy ; b. The airbags are not covered under any warranty ; and c . The airbags were not intentionally inflated .
We will pay up to a maximum of $ 1 , 000 for any
one "loss".
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
The following is added to Paragraph A.2.a., of
SECTION IV - BUSINESS AUTO CONDITIONS :
Your duty to give us or our authorized representa -
tive prompt notice of the " accident" or " loss " applies only when the " accident" or "loss" is known to :
a) You ( if you are an individual);
b) A partner ( if you are a partnership);
c) A member ( if you are a limited liability company); d) An executive officer, director or insurance
manager ( if you are a corporation or other organization); or e) Any " employee" authorized by yo u to give notice of the "accident" or "loss".
M. BLANKET WAIVER OF SUBROGATION
The following replaces Paragraph A .5 ., Transfer
Of Rights Of Recovery Against Others To Us ,
of SECTION IV - BUSINESS AUTO CONDITIONS :
5 . Transfer Of Rights Of Recovery Against
Others To Us
We waive any right of recovery we may have
against any person or organization to the ex -
tent requi red of you by a written contract
signed and executed prior to any " accident"
or " loss", provided that the " accident" or " loss"
arises out of operations contemplated by
CA T3 53 0215 © 201 5 The Travelers Ind emnity Compa ny. All rights reserved . Pa ge 3 of 4 Includes copyrighted material of Insura nce Serv ices Office , Inc . with its permi ssion . 233
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COMMERCIAL AUTO
such contract. The waiver applies only to the
person or organization designated in such
contract.
N. UNINTENTIONAL ERRORS OR OMISSIONS
The following is added to Paragraph 8.2., Concealment, Misrepresentation, Or Fraud, of SECTION IV - BUSINESS AUTO CONDITIONS :
The unintentional om1ss1on of, or unintentional
error in , any information given by you shall not
prejudice your rights under this insurance . However this provision does not affect our right to collect additional premium or exercise our right of cancellation or non- renewal.
age-- 4 o 4 © 2015 The Travelers1ndem11ity Compa--ny. All rights reserved . CA 3-&-3-01 15 Includes copyrighted material of Insurance Services Office, Inc . with its permission. 234
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Policy#: BA0S579947 COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED - PRIMARY AND
NON-CONTRIBUTORY WITH OTHER INSURANCE
This endorsement modifies insurance provided under the following :
BUSINESS AUTO COVERAGE FORM
PROVISIONS
1. The following is added to Paragraph A.1.c., Who
Is An Insured, of SECTION II - COVERED
AUTOS LIABILITY COVERAGE :
This includes any person or organization who you
are required under a written contract or
agreement between you and that person or
organization , that is signed by you before the
bodily injury " or " property damage" occurs and
that is in effect during the policy period , to name
as an additional insured for Covered Autos
Liability Coverage, but only for damages to which
this insurance applies and only to the extent of
that person' s or organization' s liability for the
conduct of another " insured".
2. The following is added to Paragraph 8.5., Other
Insurance of SECTION IV - BUSINESS AUTO
CONDITIONS :
Regardless of the provisions of paragraph a. and
paragraph d. of this part 5. Other Insurance, this
insurance is primary to and non- contributory with
applicable other insurance under which an
additional insured person or organization is the
first named insured when the written contract or
agreement between you and that person or
organization , that is signed by you before the
bodily injury" or " property damage" occurs and
that is in effect during the policy period , requires
this insu rance to be primary and non- contributory .
CA T4 74 0216 © 2016 The Travelers Indemn ity Co mpany. All rig hts reserved. Pa ge 1 of 1 Includes copyrig hted material of Insu rance Services Office . Inc . with its permission. 235
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TRAVELERSJ WORKERS COMPENSATION
AND
EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 99 03 76 ( A)-
POLICY NUMBER: UB2L553909
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS
ENDORSEMENT - CALIFORNIA
BLANKET WAIVER)
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.
The additional premium for this endorsement shall be
mium.
of the California workers' compensation preSchedule
Person or Organization Job Description
Any Person or organization for which the insured has agreed by written contract executed prior to loss to furnish this waiver.
This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated .
The information below is required only when this endorsement is issued subsequent to preparation of the policy.)
Insurance Company Countersigned by ___________ _
The Travelers Indemnity Company
DATE OF ISSUE : 3/26/2024 Page 1 of 1
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THIRD AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG. INC FOR ALLINCLUSIVE PLAYGROUND AT JOLLYMAN PARK This Third Amendment to Agreement 401 between the City of Cupertino and MIG, Inc is by and between the City of Cupertino, a municipal corporation ( hereinafter " City") and MIG, Inc, a Corporation (" Contractor") whose address is 2055 Junction Ave, Suite 205, San Jose, CA 95131, and is made with reference to the following:
RECITALS:
A. On December 09, 2021 Agreement 401 (" Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.
B. The City and the Contractor entered into a First Amended Agreement (" First Amended Agreement") effective October 13, 2022; and
C. The City and the Contractor entered into a Second Amended Agreement (" Second Amended Agreement") effective July 14, 2023 ; and
D . City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:
City will pay Consultant for satisfactory performance of the Service a total amount that will be based upon actual costs but that will be capped so as not to exceed $ 458, 161. 00 (" Contract Price"), based on the budget and rates set forth in Exhibit C, Compensation, and 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. Exhibits A and A-1 and A-2 of the Agreement are modified to include Exhibit A-3 Additional Services, attached hereto.
2. Paragraph 4.3 Additional Services of the Agreement is modified to read as follows: City has the discretion, but not the obligation, to authorized Additional Services up to an amount not to exceed $ 30, 250. 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 with 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. Exhibits A and A-1 and A-2 of the Agreement are modified to include Exhibit A-3, Additional Services, attached hereto .
3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.
SIGNATURES CONTINUE ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed.
CITY OF CUPERTINO
By ~ f--
Title Director of Public Works
Date Sep 7, 2023
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Date Sep 7, 2023
EXPENDITURE DISTRIBUTION
I
Item II
1Orisinal Asreement II
Amendment 1
Amendment 2
Amendment 3
Total II
MIG, INC
By ___________ _
Title Vice President and Chief Development Officer
Date Sep 6, 2023
PO Number II Amount I
2022- 326 11 $ 389,511.0g
II $ 12,000.og
II $ 1 s ,2so.og1
II $ 38 ,40g
II $ 458 ,161 1:
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August 22, 2023
Evelyn Moran, Public Works Project Manager
City of Cupertino, City Hall
10300 Torre Ave .
Cupertino, CA 95014
Exhibit A-3
Re: REVISED - Additional Services # 3 Jollyman Park Inclusive Playground { MIG proj . no. 30902): Public Art continued)
Dear Evelyn,
We are requesting use of contingency to address design development of the kaleidoscope; later phases of shop drawings and fabrication will be addressed through the contractor bidding process. This is built on keeping the design and fabrication costs to a combined budget of ~$200, 000 of approved art funding.
Add Service # 2 provided preliminary funding related to artist efforts and concept development. There is $ 435 in Add Service # 2 associated with SAS' s preliminary effort that is no longer needed and which can be applied to UAP' s involvement ( see note below). We will use the remaining Add Service # 2 fee to cover our efforts related to art coordination that have already occurred as well as ongoing efforts, plus the Commission meeting we already attended and the one that is to be rescheduled due to a lack of quorum.
The following summarizes MIG' s request for additional work and fees that are above and beyond the original contract, signed Dec. 9, 2021. All other terms in the original contract remain in effect.
Add Services ( Task 8: Art)
We are requesting additional fees to cover artist fees for work related to art elements and for work efforts discussed, as noted below:
o Concept development of kaleidoscope, 3D working model, samples of the 3Form leaves, preliminary engineering report, project schedule, and budget proposal for final shop drawings and fabrication ($ 38, 400)
Task 8 Art
Less Add Service # 2 remaining Art Consultant fee
Total Add Service # 3
UAP Total: $ 38, 400
435
37, 965
Your emailed authorization to proceed so we can move forward with concept development and minimize schedule impact is much appreciated.
Sincerely,
Melissa Erikson
Principal, Director of Community Design Services
MIG
PLANNING I DESIGN I COMMUNICATIONS I MANAGEMENT I SCIENCE I TECHNOLOGY 800 Hearst Avenue • Berkeley, CA 947 10 • USA • 510- 845- 75 49 • www. migcom. com Offices in: Ca lifornia • Colorado • Oregon • Texas • Washington 239
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UAP
NEW YORK
UAP
Jollyman Park "Kaleidoscope" Sculpture
Design Development
MIG
FEE PROPOSAL
8/21/2023
UAP Ref US2031
BRISBANE
ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
1 (845) 56 7 9464
newyork@uapcompany. com
USl 170 - Rev05
SHANGHAI
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UAP
August 27, 2023
Melissa Erikson
Principal, Director of Community Design Services
MIG
506 SW Sixth Avenue, Suite 400
Portland, OR 97204
Dear Melissa,
SUBJECT: Design Development Proposal - Jollyman Park "Kaleidoscope" Sculpture
ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
1 (845) 567 9464
[email protected]
US1170 - Rev05
UAP is pleased to submit the following proposal to work with MIG on the design development of a bespoke fabricated metal kinetic sculpture for the new Jollyman Park in Cupertino, CA. We understand the sculpture to be roughly 10 - 15ft high by 6 - 8ft wide with a mechanism to allow children to spin the kaleidoscope "leaves" at the top of the sculpture from its base.
There are details that still need to be resolved, such as height, connection details, mechanics and finish, and we know MIG and client have the highest expectations for quality. We plan to work with MIG to refine the existing concept, provide renderings, architectural drawings and preliminary engineering for fabrication .
We anticipate this design development to be an 8 week phase, allowing for up to two rounds of revision and design changes . We will deliver at the end of this phase a 3D working model, samples of the acrylic for the leaves", drawings, preliminary engineering report, project schedule, and a budget proposal for the next phase .
The next phase proposal will be for any further needed mock-ups, along with a full proposal for shop drawings and fabrication.
We understand there are budget limitations, and if it's not possible to achieve all of MIG's goals, we will provide value engineering recommendations to keep design and fabrication costs to a combined budget around $ 200,000 total (Fabrication is presently projected to be $7 65 -$ 775,000).
We are excited to collaborate with MIG on this exciting project and we are looking forward to building a long term and successful relationship .
SCOPE:
Staff a Technical Designer and Project Manager for an 8 week process. o Technical Designer's hours are capped at 86 hours total o Project Manager's hours are capped at 36 hours total
o Hours beyond this will be charged at $7 40 /hour for Technical Designer and $7 95/hour for Project Manager.
Coordinate with mechanical engineer ( subcontracted by UAP) to propose and design mechanical operation of kinetic and non-motorized components .
NEW YORK BRISBANE SHANGHAI
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UAP
ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
1 (845) 567 9464
[email protected]
US1170 - Rev05
o Mechanical engineer to provide one round of revision and design changes.
UAP NY project management with regular weekly/ biweekly updates for MIG and architecture team, including project status reports and coordination for client signoffs.
Define 3D model providing up to two rounds of revisions and design changes . o Illustrate mechanical connections and mounting solution .
Provide off-the-shelf acrylic color samples from material provider for client selection and approval.
Develop fabrication methodology.
Present preliminary drawings to client for approval.
Provide an estimated budget and timeline for further mock- ups and full fabrication within budget cap of $200,000 for design and fabrication .
EXCLUSIONS:
Assumes MIG can provide existing model at the onset of the project.
Assumes MIG can provide necessary requirements for site and operation.
Excludes renderings or site visualizations.
Excludes redesigns or 3D modelling of new concepts .
Excludes sampling beyond listed above samples.
Excludes site survey, shop drawings, fabrication, shipping, and installation.
Excludes contracting additional consultants, e.g. structural engineer, lighting consu ltant, etc .
Excludes coordination with other consultants/ contractors, unless listed .
Excludes applicable sales taxes .
Design Development Fee: $ 38,400
Payment Schedule
Item
30% deposit on signing
35% progress payment after preliminary design review
35% final payment upon completion
TOTAL
NEW YORK BRISBANE
Amount Date Due
11,520 Due on signing
13,440 Due after preliminary
review
13,440 Due upon completion
38,400
SHANGHAI
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UAP
ROCK TAVERN
453 State Route 17K
Rock Tavern NY 12575
1 (845) 567 9464
[email protected]
US1 170 - Rev05
Should you have any questions, please do not hesitate to contact the undersigned .
Sincerely,
ga,eo-~~
UAP PRODUCTION LLC
Jason Marquis
Special Projects
iason .marguis@uapcompanv. com I (97 7)757-9913
NEW YORK BRISBANE
All Billing Enquiries are to be sent to:
E I re ceivable . newyork@uapcompany. com
P I + 1 (845) 56 7 9464 IExt 223
SHANGHAI
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ACORD® CERTIFICATE OF LIABILITY INSURANCE I
DATE ( MM/ DD/ YYYY)
8/7/2023
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 st atement on this certificate does not confer rights to the certificate holder in lieu of such endorsement( s).
PRODUCER ~~~ l~cT Jo Lusk
AssuredPartners Design Professionals Insurance Services, LLC r.~~N,t c-"· 510-272-1465 I
FAX
3697 Mt. Diablo Blvd Suite 230 IA/C Nol :
Lafayette CA 94549 ~ iiMo~~ss : CertsDesiqnPro@AssuredPartners. com INSURER($) AFFORDING COVERAGE NAIC#
License#: 6003745 INSURER A: BERKLEY INSURANCE COMPANY 32603 INSURED MIGI NC 0- 01
INSURER B : Travelers Propertv Casualtv Companv ofAmerica 25674 MIG, Inc.
INSURER c : The Travelers lndemnitv Comoanv of Connecticut 25682 Moore lacofano Goltsman , Inc.
800 Hearst Ave INSURER D : The Travelers lndemnitv Comoanv 25658 Berkeley CA 94710 INSURERE :
INSURERF:
COVERAGES CERTIFICATE NUMBER: 214942187 REVISION NUMBER:
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.
INSR ADDL SUBR POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE •••~ n un, n
POLICY NUMBER IMM/DD/YYYYl IMM/DD/YYYYl LIMITS
C X COMMERCIAL GENERAL LIABILITY y y
6801 H899998 8/31 /2023 8/31 /2024 EACH OCCURRENCE $ 1,000, 000 - 0 CLAIMS- MADE 0 OCCUR ~~~ t~iJYE~~~ J~~ encel -$ 1 ,000 , 000 X Contractual Liab MED EXP (Any one person ) $ 10,000 - Included PERSONAL & ADV INJURY $ 1 ,000 , 000 -
GEN 'LAGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2, 000 , 000 = 7 [ 8:J PROPOLICY JECT LOC PRODUCTS - COMP/ OP AGG $ 2,000 ,000 OTHER: $
C AUTOMOBILE LIABILITY y y BAOS579947 8/31 / 2023 8/ 31 / 2024
COMBINED SINGLE LIMIT
Ea accident \ $ 1 , 000 , 000
X ANY AUTO BODILY INJURY (Per person ) $
OWNED - SCHEDULED BODILY INJURY ( Per accident) $ AUTOS ONLY >-- AUTOS X
HIRED XNON- OWNED PROPERTY DAMAGE $
AUTOS ONLY AUTOS ONLY / Per acc identl >--->--
B X UMBRELLA LIAB NOCCUR y y CUPOH758762 8/31 / 2023 8/3 1/2024 EACH OCCURRENCE $ 10, 000 , 000 >-- EXCESS LIAB CLAIMS- MADE AGGREGATE $ 10, 000 , 000
DED I X I RETENTION$ n $
D WORKERS COMPENSATION y
UB2L55390 9 8/ 31 / 2 023 8/31 / 2024 X I ~ffTuTE I
I
OTHER
AND EMPLOYERS" LIABILITY Y/N
ANYPROPRIETOR/ PARTNE R/ EXECUTI VE ~ E.L. EACH ACCIDENT $ 1,000 , 000 OFFICER/ MEMBER EXC LUDED ? N/A
Mandatory In NH) E.L. DISEASE - EA EMPLOYEE $ 1,000 , 000 If yes , des cribe under
DESCRIPTION OF OPERATIONS bel ow E.L. DISEASE - POLIC Y LIMIT $ 1,000 , 000 A Profes sional Liability & AEC907002005 8/31 / 2023 8/31 / 2 024 Per Claim/5,000.000 $ 5 ,000 , 000/ Aggr Contr. Pollution Liab Included Included
DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES ( ACORD 101 , Additional Remarks Schedule, may be attached if more space is required) Umbrella Liability policy is a follow- form to its u nderlyinf Policies: General Liability/ Auto Liability/ Employers Liability.
Re: Jollyman Park All- Inclusive Playground The City o 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 ).
CERTIFICATE HOLDER
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
ACORD 25 ( 2016/ 03)
CANCELLATION 30 Da Notice of Cancellation
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF , NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS .
1988- 2015 ACORD CORPORATION . All rights reserved .
The ACORD name and logo are registered marks of ACORD
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POLICY NUMBER: 680-1H899998 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Names of Additional Insured Person( s) or Organization( s):
Any person or organization that you a-gree in a written contract to include as an additional insured on this Coverage Part, provided that such written contract was signed by you before. and is in effect when, the " bodily injury" or " property damage" occurs or the " personal injury" or "advertising injury" offense is committed.
Location of Covered Operations:
Any project to which a written contract with the Additional Insured Person( s) or Organization( s) in the Schedule applies .
Information required to complete this Schedule, if not shown above , will be shown in the Declarations.) A. Section II - Who Is An Insured is amended to include as an additional insured the per: son( s) or organization( s) shown in the Schedule, but only
with respect to liability for " bodily injury", " property damage", " personal injury" or " advertising injury"
caused, in whole or in part, by : •
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the perfo rmance of your ongoing operations for
the additional insured( s) at the location( s) desig -
nated above .
B. With respect to the insurance afforded to these
additional insureds, the following additiona l exclusions apply :
CG 03 610305
This insurance does not apply to " bodily injury" or
property damage" occurring, or "personal injury"
or "advertising injury" arising out of an offense
committed, after:
1. All work, including materials, parts or equipment furnished in connection with such work, on the project ( other than service, maintenance or repairs) to be performed by or on behalf of the additional insured( s) at the location of the covered operations has been completed; or
2. That portion of " your work" out of which the
injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
Copyright 2005 The St. Pau l T ravelers Companies , Inc . All rights reserved .
CG TB 03 08 23 ncl udes copyr ighted ma teri al of Insurance Serv ices Office , Inc . with its permiss ion .
DATE OF ISSUE : 08/06/2023 Page 1 of 1
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POLICY NUMBER: 680-1H899998 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person( s) Or Organization( s):
Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part for " bodily injury" or " property damage" included in the products- completed operations hazard, provided that such contract was signed by you before, and is in effect when, the "bodily injury or "property damage" occurs .
Location And Description Of Completed Operations
Any project to which a written contract with the Additional Insured Person( s) or Organization( s) in the Schedule applies.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
Section II - Who Is An Insured is amended to include as an additional insured the person( s) or organization( s) shown in the Schedule, but only with respect to liability for " bodily injury" or " property damage" caused, in whole or in part , by " your work" at the CG 20 37 07 04
location designated and described in the schedule of
this endorsement performed for that additional insured and included in the " products- completed operations hazard".
CG TS 04 08 23 © ISO Properties, Inc ., 2004
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COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing
If all of the other insurance permits contribution
by equal shares, we will follow this method also.
Under this approach each insurer contributes
equal amounts until it has paid its applicable
limit of insurance or none of the loss remains,
whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will contribute
by limits. Under this method, each insurer' s
share is based on the ratio of its applicable limit
of insurance to the total applicable limits of
insurance of all insurers.
Primary And Non-Contributory Insurance If
a. The statements in the Declarations are
accurate and complete ;
b. Those statements are based upon
representations you made to us; and
c. We have issued this policy in reliance upon
your representations.
The unintentional omission of, or unintentional error
in. any information provided by you which we relied
upon in issuing this policy will not prejudice your
rights under this insurance. However, this provision
does not affect our right to collect additional
premium or to exercise our rights of cancellation or
nonrenewal in accordance with applicable insurance
laws or regulations. --)-: 1- d.
Required By Written Contract ~ 7. Separation Of Insureds If you specifically agree in a written contract or
agreement that the insurance afforded to an
insured under this Coverage Part must apply on
a primary basis, or a primary and noncontributory basis, this insurance is primary to other insurance that is available to such insured
which covers such insured as a named insured ,
and we will not share with that other insurance,
provided that:
1) The " bodily injury" or "property damage" for
which coverage is sought occurs ; and
2) The " personal and advertising injury'' for
which coverage is sought is caused by an
offense that is committed ;
subsequent to the signing of that contract or
agreement by you.
5. Premium Audit
a. We will compute all premiums for this Cowrage
Part in accordance with our rules and rates.
b. Premium shown in this Coverage Part as
advance premium is a deposit premium only. At
the close of each audit period we will compute
the earned premium for that period and send
notice to the first Named Insured . The due date
for audit and retrospective premiums is the date
shown as the due date on the bill . If the sum of
the advance and audit premiums paid for the
policy period is greater than the earned
premium, we will return the excess to the first
Named Insured.
c. The first Named Insured must keep records of
the information we need for premium
computation , and send us copies at such times
as we may request.
6. Representations
By accepting this policy , you agree :
Except with respect to the Limits of Insurance , and
any rights or duties specifically assigned in this
Coverage Part to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom claim
is made or " suit" is brought.
8. Transfer Of Rights Of Recovery Against Others
To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part,
those rights are transferred to us . The insured must
do nothing after loss to impair them. At our request,
the insured will bring " suit" or transfer those rights to us and help us enforce them .
9. When We Do Not Renew
If we decide not to renew this Coverage Part, we will
mail or deliver to the first Named Insured shown in
the Declarations written notice of the nonrenewal
not less than 30 days before the expiration date.
If notice is mailed, proof of mailing will be sufficient proof of notice.
SECTION V - DEFINITIONS
1. " Advertisement" means a notice that is broadcast or published to the general public or specific market
segments about your goods, products or services
for the purpose of attracting customers or
supporters. For the purposes of this definition:
a. Notices that are published include material
placed on the Internet or on similar electronic
means of communication; and
b. Regarding websites, only that part of a website
that is about your goods , products or services
for the purposes of attracting customers or
supporters is considered an advertisement.
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occupational therapist or occupational
therapy assistant, physical therapist or
speech- language pathologist ; or
b) First aid or " Good Samaritan services"
by any of your "employees" or "volunteer
workers", other than an employed or
volunteer doctor. Any such " employees"
or "volunteer workers" providing or failing
to provide first aid or "Good Samaritan
services" during their work hours for you
will be deemed to be acting within the
scope of their employment by you or
performing duties related to the conduct
of your business .
3. The following replaces the last sentence of
Paragraph 5. of SECTION Ill - LIMITS OF
INSURANCE:
For the purposes of determining the
applicable Each Occurrence Limit, all related
acts or omissions committed in providing or
failing to provide " incidental medical
services", first aid or " Good Samaritan
services" to any one person will be deemed
to be one " occurrence".
4. The following exclusion is added to
Paragraph 2., Exclusions, of SECTION I -
COVERAGES - COVERAGE A - BODILY
INJURY AND PROPERTY DAMAGE
LIABILITY :
Sale Of Pharmaceuticals
Bodily injury" or " property damage" arising
out of the violation of a penal statute or
COMMERCIAL GENERAL LIABILITY
that is available to any of your "employees"
for "bodily injury" that arises out of providing
or failing to provide " incidental medical
services" to any person to the extent not
subject to Paragraph 2.a.(1) of Section II -
Who Is An Insured.
K. MEDICAL PAYMENTS - INCREASED LIMIT
The following replaces Paragraph 7. of
SECTION Ill - LIMITS OF INSURANCE:
7. Subject to Paragraph 5. above, the Medical
Expense Limit is the most we will pay under
Coverage C for all medical expenses
because of " bodily injury" sustained by any
one person, and will be the higher of:
a. $ 10,000; or
b. The amount shown in the Declarations of
this Coverage Part for Medical Expense
Limit .
L. AMENDMENT OF EXCESS INSURANCE
CONDITION - PROFESSIONAL LIABILITY
The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -
COMMERCIAL GENERAL LIABILITY
CONDITIONS:
This insurance is excess over any of the other
insurance, whether primary, excess, contingent
or on any other basis, that is Professional
Liability or similar coverage, to the extent the
loss is not subject to the professional services
ordinance relating to the sale of M
pharmaceuticals committed by, or with the •
exclusion of Coverage A or Coverage B.
BLANKET WAIVER OF SUBROGATION -
WHEN REQUIRED BY WRITTEN CONTRACT knowledge or consent of the insured.
5. The following is added to the DEFINITIONS
Section :
Incidental medical services" means:
a. Medical, surgical, dental, laboratory, xray or nursing service or treatment , advice or instruction, or the related
furnishing of food or beverages; or
b. The furnishing or dispensing of drugs or
medical, dental, or surgical supplies or
appliances.
6. The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -
COMMERCIAL GENERAL LIABILITY
CONDITIONS :
This insurance is excess over any valid and
collectible other insurance , whether primary ,
excess , contingent or on any other basis ,
OR AGREEMENT
The following is added to Paragraph 8., Transfer
Of Rights Of Recovery Against Others To Us ,
of SECTION IV - COMMERCIAL GENERAL
LIABILITY CONDITIONS :
If the insured has agreed in a written contract or
agreement to waive that insured's right of
recovery against any person or organization, we
waive our right of recovery against such person
or organization , but only for payments we make
because of:
a. " Bodily injury" or " property damage" that
occurs ; or
b. " Personal and advertising injury" caused by
an offense that is committed ;
subsequent to the signing of that contract or
agreement.
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Policy Number: BA0S579947
COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESS AUTO EXTENSION ENDORSEMENT
This endorsement modifies insurance provided under the following :
BUSINESS AUTO COVERAGE FORM
GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general coverage description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered .
A. BROAD FORM NAMED INSURED H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF B. BLANKET ADDITIONAL INSURED
C. EMPLOYEE HIRED AUTO
D. EMPLOYEES AS INSURED
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS G. WAIVER OF DEDUCTIBLE - GLASS
PROVISIONS
A. BROAD FORM NAMED INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE :
Any organization you newly acquire or form during the policy period over which you maintain 50% or more ownership interest and that is not
separately insured for Business Auto Coverage .
Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period , whichever is earlier.
B. BLANKET ADDITIONAL INSURED
The following is added to Paragraph c. in A.1.,
Who Is An Insured , of SECTION II - COVERED
AUTOS LIABILITY COVERAGE :
Any person or organization who is required under
a written contract or agreement between you and
that person or organization , that is signed and
executed by you before the " bodily injury" or
property damage" occurs and that is in effect
during the policy period , to be named as an additional insured is an " insured" for Covered Autos Liability Coverage, but only for damages to which
USE - INCREASED LIMIT
I. PHYSICAL DAMAGE - TRANSPORTATION
EXPENSES - INCREASED LIMIT
J. PERSONAL PROPERTY
K. AIRBAGS
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
M. BLANKET WAIVER OF SUBROGATION
N. UNINTENTIONAL ERRORS OR OMISSIONS
this insurance applies and only to the extent that
person or organization qualifies as an " insured"
under the Who Is An Insured provision contained
in Section II.
C. EMPLOYEE HIRED AUTO
1. The following is added to Paragraph A.1.,
Who Is An Insured, of SECTION II - COVERED AUTOS LIABILITY COVERAGE:
An " employee" of yours is an " insured" while
operating an " auto" hired or rented under a
contract or agreement in an " employee' s"
name, with your permission , while performing
duties related to the conduct of your business .
2. The following replaces Paragraph b. in 8.5.,
Other Insurance , of SECTION IV - BUSINESS AUTO CONDITIONS :
b. For Hired Auto Physical Damage Coverage , the following are deemed to be covered " autos" you own :
1) Any covered " auto" you lease , hire,
rent or borrow; and
2) Any covered " auto" hired or rented by
your " employee" under a contract in
an " employee' s" name, with your
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COMMERCIAL AUTO
perm1ss1on, while performing duties
related to the cond uct of your business .
However, any " auto" that is leased, hired,
rented or borrowed with a driver is not a
covered " auto".
D. EMPLOYEES AS INSURED
The following is added to Paragraph A.1 ., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE:
Any " employee" of yours is an " insured" while using a covered " auto" you don' t own, hire or borrow in your business or your personal affairs .
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
1. The following replaces Paragraph A.2.a.( 2),
of SECTION II - COVERED AUTOS LIABILITY COVERAGE:
2) Up to $ 3 ,000 for cost of bail bonds ( including bonds for related traffic law violations) required because of an " accident" we cover . We do not have to furnish
these bonds .
2. The following replaces Paragraph A.2.a.(4),
of SECTION II - COVERED AUTOS LIABILITY COVERAGE:
4) All reasonable expenses incurred by the
insured" at our request, including actual
loss of earnings up to $ 500 a day because of time off from work.
F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS The following replaces Subparagraph ( 5) in Paragraph 8. 7., Policy Period, Coverage Territory , of SECTION IV - BUSINESS AUTO CONDITIONS:
5) Anywhere in the world , except any country or
jurisdiction while any trade sanction , em -
bargo , or similar regulation imposed by the
United States of America applies to and prohibits the transaction of business with or within such country or jurisdiction , for Covered Autos Liability Coverage for any cove red auto" that you lease , hire, rent or borrow
without a driver for a period of 30 days or less
and that is not an " auto" you lease , hire , rent
or borrow from any of your " employees",
partners ( if you are a partnership), members
if you are a limited liability company) or
membe rs of their households .
a) With respect to any claim made or " suit"
brought outs ide the United States of
America , the territories and possessions
of the United States of America , Puerto
Rico and Canada :
i) You must arrange to defend the " insured" against, and investigate or settle any such claim or " suit" and keep us advised of all proceedings and actions.
ii) Neither you nor any other involved
insured" will make any settlement
without our consent.
iii) We may , at our discretion, participate
in defending the " insured" against, or
in the settlement of, any claim or
suit".
iv) We will reimburse the " insured" for
sums that the " insured" legally must
pay as damages because of " bodily
injury" or " property damage" to which
this insurance applies, that the " insured" pays with our consent, but only up to the limit described in Paragraph C., Limits Of Insurance , of
SECTION II - COVERED AUTOS
LIABILITY COVERAGE .
v) We will reimburse the " insured" for
the reasonable expenses incurred
with our consent for your investigation of such claims and your defense of the " insured" against any such
suit", but only up to and included
within the limit described in Paragraph C., Limits Of Insurance , of
SECTION II - COVERED AUTOS
LIABILITY COVERAGE, and not in
addition to such limit. Our duty to
make such payments ends when we
have used up the applicable lim it of
insurance in payments for damages ,
settlements or defense expenses .
b) This insurance is excess over any valid
and collectible other insurance available
to the " insured" whether primary , excess ,
cont ingent or on any other basis .
c) This insurance is not a substitute for required or compulsory insurance in any country outside the United States , its territories and possessions , Puerto Rico and Canada .
age Z'"U © 20-1ol'fle Tra% Iers·-in-demnity'" Comr, any. All rights re-served . CA--1=3 5-3 0-2 15 Includ es copyrighted material of Insuran ce Se rvi ces Offi ce, In c. with its permi ssio n. 250
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You agree to maintain all required or
compulsory insurance in any such country up to the minimum limits required by local law. Your failure to comply with
compulsory insurance requirements will
not invalidate the coverage afforded by
this policy, but we will only be liable to the
same extent we would have been liable
had you complied with the compulsory insurance requirements. d) It is understood that we are not an admitted or authorized insurer outside the United States of America, its territories
and possessions, Puerto Rico and Canada. We assume no responsibility for the furnishing of certificates of insurance, or
for compliance in any way with the laws
of other countries relating to insurance.
G. WAIVER OF DEDUCTIBLE - GLASS
The following is added to Paragraph D., Deductible, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
No deductible for a covered " auto" will apply to
glass damage if the glass is repaired rather than
replaced.
H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF
USE - INCREASED LIMIT
The following replaces the last sentence of Paragraph A.4.b., Loss Of Use Expenses, of SECTION 111 - PHYSICAL DAMAGE COVERAGE :
However, the most we will pay for any expenses
for loss of use is $ 65 per day, to a maximum of
750 for any one " accident".
I. PHYSICAL DAMAGE - TRANSPORTATION
EXPENSES - INCREASED LIMIT
The following replaces the first sentence in Paragraph A.4.a., Transportation Expenses, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
We will pay up to $ 50 per day to a maximum of
1,500 for temporary transportation expense incurred by you because of the total theft of a covered " auto" of the private passenger type.
J. PERSONALPROPERTY
The following is added to Paragraph A.4., Coverage Extensions, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
Personal Property
We will pay up to $ 400 for " loss" to wearing apparel and other personal property which is:
1) Owned by an " insured"; and
COMMERCIAL AUTO
2) In or on your covered " auto".
This coverage applies only in the event of a total
theft of your covered " auto".
No deductibles apply to this Personal Property
coverage.
K. AIRBAGS
The following is added to Paragraph 8.3., Exclusions, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
Exclusion 3.a. does not apply to " loss" to one or
more airbags in a covered " auto" you own that inflate due to a cause other than a cause of " loss" set forth in Paragraphs A.1.b. and A.1.c., but
only :
a. If that " auto" is a covered " auto" for Comprehensive Coverage under this policy; b. The airbags are not covered under any warranty; and c. The airbags were not intentionally inflated .
We will pay up to a maximum of $ 1,000 for any
one " loss".
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
The following is added to Paragraph A.2.a., of
SECTION IV - BUSINESS AUTO CONDITIONS:
Your duty to give us or our authorized representative prompt notice of the " accident" or " loss" applies only when the " accident" or " loss" is known to :
a) You ( if you are an individual);
b) A partner ( if you are a partnership);
c) A member ( if you are a limited liability company); d) An executive officer, director or insurance
manager ( if you are a corporation or other organization); or e) Any " employee" authorized by you to give notice of the " accident" or "loss".
M. BLANKET WAIVER OF SUBROGATION
The following replaces Paragraph A.5., Transfer
Of Rights Of Recovery Against Others To Us,
of SECTION IV - BUSINESS AUTO CONDITIONS:
5. Transfer Of Rights Of Recovery Against
Others To Us
We waive any right of recovery we may have
against any person or organization to the extent required of you by a written contract signed and executed prior to any " accident"
or " loss", provided that the " accident" or " loss"
arises out of operations contemplated by
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COMMERCIAL AUTO
such contract. The waiver applies only to the
person or organization designated in such
contract.
N. UNINTENTIONAL ERRORS OR OMISSIONS
The following is added to Paragraph 8.2 .. Concealment, Misrepresentation, Or Fraud, of SECTION IV - BUSINESS AUTO CONDITIONS :
The unintentional omission of, or unintentional
error in, any information given by you shall not
prejudice your rights under this insurance . However this provision does not affect our right to collect additional premium or exercise our right of cancellation or non-renewal.
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Policy#: BA0S579947 COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED - PRIMARY AND
NON- CONTRIBUTORY WITH OTHER INSURANCE
This endorsement modifies insurance provided under the following :
BUSINESS AUTO COVERAGE FORM
PROVISIONS
1. The following is added to Paragraph A.1.c., Who
Is An Insured , of SECTION II - COVERED
AUTOS LIABILITY COVERAGE:
This includes any person or organization who you
are required under a written contract or
agreement between you and that person or
organization, that is signed by you before the
bodily injury" or " property damage" occurs and
that is in effect during the policy period, to name
as an additional insured for Covered Autos
Liability Coverage, but only for damages to which
this insurance applies and only to the extent of
that person' s or organization' s liability for the
conduct of another " insured".
2. The following is added to Paragraph B.5., Other
Insurance of SECTION IV - BUSINESS AUTO
CONDITIONS:
Regardless of the provisions of paragraph a. and
paragraph d. of this part 5. Other Insurance, this
insurance is primary to and non- contributory with
applicable other insurance under which an
additional insured person or organization is the
first named insured when the written contract or
agreement between you and that person or
organization , that is signed by you before the
bodily injury" or " property damage" occurs and
that is in effect during the policy period , requires
this insurance to be primary and non- contributory.
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TRAVELERSJ WORKERS COMPENSATION
AND
EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 99 03 76 ( A) -
POLICY NUMBER: UB2L553909
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS
ENDORSEMENT - CALIFORNIA
BLANKET WAIVER)
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.
The additional premium for this endorsement shall be
mium.
of the California workers' compensation preSchedule
Person or Organization Job Description
Any Person or organization for which the insured has agreed by written contract executed prior to loss to furnish this waiver.
This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated.
The information below is required only when this endorsement is issued subsequent to preparation of the policy.) <: i'---
Insurance Company Countersigned by ___________ _
The Travelers Indemnity Company
DATE OF ISSUE: 8/7/2023 Page 1 of 1
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SECOND AMENDMENT TO AGREEMENT 401
BETWEEN THE CITY OF CUPERTINO AND MIG, INC
FOR ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN
PARK
This Second Amendment to Agreement 401 between the City of Cupertino and MIG, Inc is by and between the City of Cupertino, a municipal corporation ( hereinafter " City") and MIG, Inc, a Corporation (" Contractor") whose address is 2055 Junction Ave, Suite 205, San Jose, CA 95131, and is made with reference to the following:
RECITALS:
A. On December 09, 2021 Agreement 401 (" Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.
B. The City and the Contractor entered into a First Amended Agreement (" First Amended Agreement") effective October 13, 2022; and
C. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:
City will pay Consultant for satisfactory performance of the Service a total amount that will be based upon actual costs but that will be capped so as not to exceed $ 419, 761. 00 (" Contract Price"), based on the budget and rates set forth in Exhibit C, Compensation, and 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. Exhibits A and A-1 of the Agreement is modified to include Exhibit A-2 Additional Services, attached hereto.
2. Paragraph 4.3 Additional Services of the Agreement is modified to read as follows: City has the discretion, but not the obligation, to authorized Additional Services up to an amount not to exceed $ 30, 250. 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 with 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. Exhibits A and A-1 of the Agreement is modified to include Exhibit A-2, Additional Services, attached hereto.
3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect.
SIGNATURES CONTINUE ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this modification ofAgreement to be executed.
CITY OF CUPERTINO
By,.tJ~uJ,,_
Title City Manager
Date Jul 14, 2023
APPROVED AS TO FORM
City Attorney
ATTEST:
City Clerk
Date Jul 14, 2023
EXPENDITURE DISTRIBUTION
Item II
Original Agreement 11
Amendment 1
11 Amendment 2 11
l otal 11
MIG, INC
Title Vice President and Chief Development Officer
Date Jul 14, 2023
PO Number II Amount II
2022- 326 11 $ 389,511.og l
II $ 12 ,000.og
II $ 1 s,2so.og '
II $ 419,761.0g
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June 16, 2023
Evelyn Moran, Public Works Project Manager
City of Cupertino
City Hall
10300 Torre Ave.
Cupertino, CA 95014
Exhibit A-2
Re: Additional Services Jollyman Park Inclusive Playground { MIG proj. no. 30902): Public Art Dear Evelyn,
As discussed, the City is requesting a presentation to the Art Commission in support of additional funding for Jollyman AIPG . Art & Culture Commission supported moving the kaleidoscope and musical bench or walk forward. We are working with Scientific Art Studios to develop these ideas further in preparation for going back to the Commission in July. For now, we are requesting use of contingency to address the concept work to move these forward and get blessed; Design Development/ Construction Documents and fabrication will be a separate add service. This is built on 380, 000 of approved art funding but knowing that the desire is to only use a portion of that.
The following summarizes Ml G's request for additional work and fees that are above and beyond the original contract, signed Dec. 9, 2021. All other terms in the original contract remain in effect.
Add Services # 3 (New Task 8: Art)
We are requesting additional fees under a new task number for additional work related to art elements and for work efforts discussed , as noted below :
Task 8 Art
o Creating a presentation on the art elements in support of the funding request. Melissa' s virtual attendance and presentation at the Art Commission meeting in San Jose on Monday, May 22, 2023 ( completed at City authorization) and in July. ($ 3,550)
o Concept development of kaleidoscope and musical bench or walk 14, 700)
Total: $ 18, 250
Prompt authorization to proceed so we can move forward with concept development and be able to meet the July Commission date is much appreciated.
Sincerely,
I
Melissa Erikson
Principal, Director of Community Design Services
MIG
PLANNING j DESIGN j COMMUNICATIONS j MANAGEMENT j SCIENCE ! TECHNOLOGY 800 Hearst Avenue • Berke ley, CA 94710 • USA • 5 10- 845- 7549 • www. migcom. com Offices in: California • Colorado • Oregon • Texas • Washington 257
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FIRST AMENDMENT TO AGREEMENT 401 BETWEEN
THE CITY OF CUPERTINO AND MIG, INC., FOR
ALL-INCLUSIVE PLAYGROUND AT JOLLYMAN PARK
This First Amendment to Agreement 401 between the City of Cupertino and MIG, Inc., is by and between the City of Cupertino, a municipal corporation ( hereinafter " City") and MIG, Inc., a Corporation (" Contractor") whose address is 2055 Junction Ave., Suite 205, San Jose, CA 95131, and is made with reference to the following:
RECITALS:
On December 09, 2021 Agreement 401 (" Agreement") was entered into by and between City and Contractor for All-Inclusive Playground at Jollyman Park.
A. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. Paragraph 4.1 Maximum Compensation of the Agreement is modified to read as follows:
City will pay Consultant for satisfactory performance of the Service a total amount that will be based upon actual costs but that will be capped so as not to exceed $ 401, 511. 00 (" Contract Price"), based on the budget and rates set forth in Exhibit C, Compensation, and attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even ifConsultant' s actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. Exhibit A of the Agreement is modified to include Exhibit A-1 Additional Services, attached hereto.
2. Paragraph 4.3 Additional Services ofthe Agreement is modified to read as follows: City has the discretion, but not the obligation, to authorized Additional Services up to an amount not to exceed $ 12, 000. 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 with the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. Ifpaid on an hourly basis, Consultant will be compensated for actual costs only ofnormal 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. Exhibit A ofthe Agreement is modified to include Exhibit A-1, Additional Services, attached hereto.
SIGNATURES CONTINUE ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF , the parties hereto have caused this modification of Agreement to be executed.
CITY OF CUPERTINO
Bypa,,u1a, w,.,
Title City Manager
Date Oct 13, 2022
APPROVED AS TO FORM
Cltt/Jtq11fter . P. Je111e11
City Attorney
ATTEST:
City Clerk
Date Oct 13, 2022
EXPENDITURE DISTRIBUTION
MIG , INC .
CUt--~~ By ___________ _
Title Vice President/ Chief Development Officer
Date Oct 13, 2022
i:;;;;;;;===I ;;;; te;; m===;;;;;;,! l====== P;;;; O;;; N;;;; u;;;; m;;; b;; e;; r =====;;;;, 11,;;;====;;;; A;;;; m;;;; o;; u;; nt=====;; priginal Agreement II 2022- 326 II $ 389, 511. 0tj l ======== Amendment # 1 l:Change in Scope, Change in Contract Amount II $ 12,000.091 ;::::========== 1J~T_o_ta_lA~g~r_ee_m_e_m ___ ~ II 11~ ________ $_ 40_1~,5_1_1.~0tj1 2 259
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Exhibit A-1
August 31, 2022
Evelyn Moran, Public Works Project Manager
City of Cupertino
City Hall
10300 Torre Ave .
Cupertino, CA 95014
Re: Additional Services Jollyman Park Inclusive Playground ( MIG proj. no . 30902) Dear Evelyn,
As discussed, a restroom is being added to the project expanding work beyond that in the original scope of work. The following summarizes MIG's request for additional work and fees that are above and beyond the original contract, signed Dec. 9, 2021; BKF's effort will be addressed through a separate agreement. All other terms in the original contract remain in effect.
Add Services # 2 ( New Task 7: Restroom) .................................................... $ 12, 000 We are requesting additional fees under a new task number for additional work related to adding a restroom to the project and for anticipated work efforts discussed, as noted below:
o Coordinating with BKF who is leading the restroom portion of the project
o Providing aesthetic coordination to ensure the restroom finishes work with the play area improvements
o Planting and irrigation design for the expanded work area for all drawing submittals (50%, 90%, 100%, and bid set)
It is understood that the restroom will be integrated into the play area submittals as a single project for review and bidding; the restroom will not have separate review meetings but reviews will be incorporated into the planned review meetings for the play area .
Task 7 Restroom Total: $ 12, 000
PLANNING I DESIGN I COMMUNICATIONS I MANAGEMENT I SCIENCE I TECHNOLOGY 800 Hearst Ave nue • Berkeley, CA 947 10 • USA • 510-845-7549 • www.migcom. com Offices in: California • Colorado • Oregon • Texas • Washington 260
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Evelyn Moran
August 31 , 2022
Please feel free to contact us with any questions or additional information needed .
Sincerely,
Principal, Director of Community Design Services
MIG
Please sign below to indicate your agreement to the terms outlined in this letter as a revision to the original contract and budget.
Evelyn Moran, Project Manager
City of Cupertino
Date
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ACORD® CERTIFICATE OF LIABILITY INSURANCE I
DATE ( MM/DD/YYYY)
8/28/2022
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 provi sions 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).
PRODUCER ~~: r,cT The Certificate Team
AssuredPartners Design Professionals Insurance Services , LLC PHONE Irffc Nol : 3697 Mt. Diablo Blvd Suite 230 Air I.I .... C-,\.
Lafayette CA 94549 ~ iDA~~ss : CertsDesianPro< @.AssuredPartners. com INSURERISl AFFORDING COVERAGE NAIC#
License#: 6003745 INSURER A: Berklev Insurance Comoanv 32603 INSURED MIGINC 0-01 INSURER B : Travelers Prooertv Casualtv Comoanv ofAmerica 25674 MIG, Inc.
INSURER c : The Travelers lndemnitv Comoanv of Connecticut 25682 Moore lacofano Goltsman , Inc.
800 Hearst Ave INSURERD :
Berkeley CA 94710 INSURERE:
INSURER F:
COVERAGES CERTIFICATE NUMBER: 1669425263 REVISION NUMBER:
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 .
INSR ADDL SUBR ,
LTR TYPE OF INSURANCE ,.,~ n WVD POLICY NUMBER t3M'6W~l , t3rJ'6~i LIMITS C X COMMERCIAL GENERAL LIABILITY y y 6801 H899998 8/31 /2022 8/31 /2023 EACH OCCURRENCE $ 1 ,000 ,000 -~ CLAIMS-MADE 0 OCCUR
DAMA<,;E TiYERENTED
PREMISES Ea occurrence ) $ 1 ,000 ,000
X Contractual Liab - MED EXP (Any one person ) $ 10 ,000 Included PERSONAL & ADV INJURY $ 1 ,000 ,000 -
GEN'LAGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000 ,000 Fl 0 PROPOLICY JECT D Loc PRODUCTS - COMP/OP AGG $ 2 ,000 ,000 OTHER: $
C AUTOMOBILE LIABILITY y y - BAOS57994 7 8/31 /2022 8/31 /2023 ~~~~~~~~ lNGLE LIMIT $ 1 ,000 ,000 X ANY AUTO BODILY INJURY (Per person ) $ -
OWNED - SCHEDULED
AUTOS ONLY AUTOS BODILY INJURY (Per accident ) $
X
HIRED XNON-OWNED rp~?~zc~le~gAMAGE $ AUTOS ONLY AUTOS ONLY
B X UMBRELLA LIAB MOCCU R
y y CUPOH758762 8/31 /2022 8/31 /2023 EACH OCCURRENCE $ 10,000 ,000 - EXCESS LIAB CLAIMS- MADE AGGREGATE $ 10,000 ,000
DED I X IRETENTION $ n $
B WORKERS COMPENSATION y UB2L553909 8/31 /2022 8/31 /2023 X ItffTuTE I I
OTHER
AND EMPLOYERS' LIABILITY Y/N
ANYPROPRIETOR/PARTNER/EXECUTIVE
N/A
E.L. EACH ACCIDENT $ 1,000 ,000
OFFICER/MEMBER EXCLUDE D?
Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ 1,000 ,000 g~ii~rtfft~ ontOPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1 ,000 ,000 A Professional Liability N y AEC905795904 8/31 /2022 8/31/2023 Per Claim $ 5 ,000 ,000 Aggregate Limit $ 5 ,000 ,000
DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES ( ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Umbrella Liability policy is a follow-form underlying General Liability/Auto Liability/Employers Liability.
Re: Jollyman Park All-Inclusive Playground 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).
CERTIFICATE HOLDER
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
ACORD 25 ( 2016/ 03)
CANCELLATION 30 Da s Notice of Cancellation
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
1988- 2015 ACORD CORPORATION. All rights reserved .
The ACORD name and logo are registered marks ofACORD
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Policy Number: BA0S579947
COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BUSINESS AUTO EXTENSION ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general coverage description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered.
A. BROAD FORM NAMED INSURED H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF B. BLANKET ADDITIONAL INSURED
C. EMPLOYEE HIRED AUTO
D. EMPLOYEES AS INSURED
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS G. WAIVER OF DEDUCTIBLE - GLASS
PROVISIONS
A. BROAD FORM NAMED INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE:
Any organization you newly acquire or form during the policy period over which you maintain 50% or more ownership interest and that is not
separately insured for Business Auto Coverage.
Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier.
B. BLANKET ADDITIONAL INSURED
The following is added to Paragraph c. in A.1.,
Who Is An Insured, of SECTION II - COVERED
AUTOS LIABILITY COVERAGE:
Any person or organization who is required under
a written contract or agreement between you and
that person or organization, that is signed and
executed by you before the " bodily injury" or
property damage" occurs and that is in effect
during the policy period, to be named as an additional insured is an " insured" for Covered Autos Liability Coverage , but only for damages to which
USE - INCREASED LIMIT
I. PHYSICAL DAMAGE - TRANSPORTATION
EXPENSES - INCREASED LIMIT
J. PERSONAL PROPERTY
K. AIRBAGS
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
M. BLANKET WAIVER OF SUBROGATION
N. UNINTENTIONAL ERRORS OR OMISSIONS
this insurance applies and only to the extent that
person or organization qualifies as an " insured"
under the Who Is An Insured provision contained
in Section II.
C. EMPLOYEE HIRED AUTO
1. The following is added to Paragraph A.1.,
Who Is An Insured, of SECTION II - COVERED AUTOS LIABILITY COVERAGE :
An " employee" of yours is an " insured" while
operating an " auto" hired or rented under a
contract or agreement in an " employee' s"
name, with your permission, while performing
duties related to the conduct of your business.
2. The following replaces Paragraph b. in 8.5.,
Other Insurance, of SECTION IV - BUSINESS AUTO CONDITIONS:
b. For Hired Auto Physical Damage Coverage, the following are deemed to be covered " autos" you own :
1) Any covered " auto" you lease, hire,
rent or borrow; and
2) Any covered " auto" hired or rented by
your " employee" under a contract in
an " employee' s" name , with your
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COMMERCIAL AUTO
perm1ss1on, while performing duties
related to the conduct of your business .
However, any " auto" that is leased, hired,
rented or borrowed with a driver is not a
covered " auto".
D. EMPLOYEES AS INSURED
The following is added to Paragraph A.1., Who Is
An Insured, of SECTION II - COVERED AUTOS
LIABILITY COVERAGE :
Any " employee" of yours is an " insured" while using a covered " auto" you don' t own, hire or borrow in your business or your personal affairs.
E. SUPPLEMENTARY PAYMENTS - INCREASED
LIMITS
1. The following replaces Paragraph A.2.a.(2),
of SECTION II - COVERED AUTOS LIABILITY COVERAGE :
2) Up to $ 3,000 for cost of bail bonds ( including bonds for related traffic law violations) required because of an " accident" we cover. We do not have to furnish
these bonds .
2. The following replaces Paragraph A.2.a.( 4),
of SECTION II - COVERED AUTOS LIABILITY COVERAGE :
4) All reasonable expenses incurred by the
insured" at our request, including actual
loss of earnings up to $ 500 a day because of time off from work .
F. HIRED AUTO - LIMITED WORLDWIDE COVERAGE - INDEMNITY BASIS The following replaces Subparagraph ( 5) in Paragraph B.7., Policy Period, Coverage Territory, of SECTION IV - BUSINESS AUTO CONDITIONS:
5) Anywhere in the world, except any country or
jurisdiction while any trade sanction , embargo , or similar regulation imposed by the United States of America applies to and prohibits the transaction of business with or within such country or jurisdiction, for Covered Autos Liability Coverage for any covered auto" that you lease, hire, rent or borrow
without a driver for a period of 30 days or less
and that is not an " auto" you lease , hire, rent
or borrow from any of your " employees",
partners ( if you are a partnership), members
if you are a limited liability company) or
members of the ir households .
a) With respect to any claim made or " suit"
brought outside the United States of
America , the territories and possessions
of the United States of America , Puerto
Rico and Canada :
i) You must arrange to defend the " insured" against, and investigate or set - tle any such claim or " suit" and keep
us advised of all proceedings and actions.
ii) Neither you nor any other involved
insured" will make any settlement
without our consent.
iii) We may, at our discretion, participate
in defending the " insured" against, or
in the settlement of, any claim or
suit".
iv) We will reimburse the " insured" for
sums that the " insured" legally must
pay as damages because of . "bodily
injury" or " property damage" to which
this insurance applies , that the " insured" pays with our consent, but only up to the limit described in Paragraph C., Limits Of Insurance, of
SECTION II - COVERED AUTOS
LIABILITY COVERAGE .
v) We will reimburse the " insured" for
the reasonable expenses incurred
with our consent for your investigation of such claims and your defense of the " insured" against any such
suit", but only up to and included
within the limit described in Paragraph C., Limits Of Insurance, of
SECTION II - COVERED AUTOS
LIABILITY COVERAGE, and not in
addition to such limit. Our duty to
make such payments ends when we
have used up the applicable limit of
insurance in payments for damages,
settlements or defense expenses.
b) This insurance is excess over any valid
and collectible other insurance available
to the " insured" whether primary, excess.
contingent or on any other basis.
c) This insurance is not a substitute for re -
quired or compulsory insurance in any
country outside the United States, its territories and possess ions , Puerto Rico and Canada .
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You agree to maintain all required or
compulsory insurance in any such country up to the minimum limits required by local law. Your failure to comply with
compulsory insurance requirements will
not invalidate the coverage afforded by
this policy, but we will only be liable to the
same extent we would have been liable
had you complied with the compulsory insurance requ irements . d) It is understood that we are not an admitted or authorized insurer outside the United States of America , its territories
and possessions, Puerto Rico and Canada. We assume no responsibility for the furnishing of certificates of insurance, or
for compliance in any way with the laws
of other countries relating to insurance.
G. WAIVER OF DEDUCTIBLE - GLASS
The following is added to Paragraph D., Deductible, of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
No deductible for a covered " auto" will apply to
glass damage if the glass is repaired rather than
replaced.
H. HIRED AUTO PHYSICAL DAMAGE - LOSS OF
USE - INCREASED LIMIT
The following replaces the last sentence of Para -
graph A.4.b., Loss Of Use Expenses, of SECTION Ill - PHYSICAL DAMAGE COVERAGE :
However, the most we will pay for any expenses
for loss of use is $ 65 per day, to a maximum of
750 for any one " accident".
I. PHYSICAL DAMAGE - TRANSPORTATION
EXPENSES - INCREASED LIMIT
The following replaces the first sentence in Paragraph A.4.a., Transportation Expenses , of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
We will pay up to $ 50 per day to a maximum of
1 , 500 for temporary transportation expense incurred by you because of the total theft of a covered " auto" of the private passenger type .
J. PERSONAL PROPERTY
The following is added to Paragraph A.4 .. Coverage Extensions , of SECTION Ill - PHYSICAL DAMAGE COVERAGE :
Personal Property
We will pay up to $ 400 for " loss" to wearing apparel and other personal property which is :
1) Owned by an " insured"; and
COMMERCIAL AUTO
2) In or on your covered " auto".
This coverage applies only in the event of a total
theft of your covered " auto".
No deductibles apply to this Personal Property
coverage .
K. AIRBAGS
The following is added to Paragraph 8.3., Exclusions , of SECTION Ill - PHYSICAL DAMAGE COVERAGE:
Exclusion 3.a. does not apply to " loss" to one or
more airbags in a covered " auto" you own that inflate due to a cause other than a cause of " loss" set forth in Paragraphs A.1.b. and A.1.c., but
only:
a. If that " auto" is a covered " auto" for Comprehensive Coverage under this policy; b. The airbags are not covered under any warranty; and c. The airbags were not intentionally inflated.
We will pay up to a maximum of $ 1,000 for any
one "loss".
L. NOTICE AND KNOWLEDGE OF ACCIDENT OR
LOSS
The following is added to Paragraph A.2.a., of
SECTION IV - BUSINESS AUTO CONDITIONS:
Your duty to give us or our authorized representative prompt notice of the " accident" or "loss" applies only when the " accident" or " loss" is known to :
a) You ( if you are an individual);
b) A partner ( if you are a partnership);
c) A member ( if you are a limited liability company); d) An executive officer, director or insurance
manager ( if you are a corporation or other organization); or e) Any " employee" authorized by you to give notice of the " accident" or " loss".
M. BLANKET WAIVER OF SUBROGATION
The following replaces Paragraph A.5., Transfer
Of Rights Of Recovery Against Others To Us,
of SECTION IV - BUSINESS AUTO CONDITIONS :
5. Transfer Of Rights Of Recovery Against
Others To Us
We waive any right of recovery we may have
against any person or organization to the extent required of you by a written contract signed and executed prior to any " accident"
or " loss", provided that the " accident" or " loss"
arises out of operations contemplated by
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COMMERCIAL AUTO
such contract. The waiver applies only to the
person or organization designated in such
contract.
N. UNINTENTIONAL ERRORS OR OMISSIONS
The following is added to Paragraph 8.2., Concealment, Misrepresentation, Or Fraud, of SECTION IV - BUSINESS AUTO CONDITIONS:
The unintentional omission of, or unintentional
error in, any information given by you shall not
prejudice your rights under this insurance . However this provision does not affect our right to collect additional premium or exercise our right of cancellation or non- renewal.
age 4-or4 ---© 201oTfie Travelers ni:lemni y Campany . Alfr igflts reserve cr.--- lncludes copyrighted material of Insurance Services Office , Inc. with its permission .
CA ' T3- 53 OM S
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER: 6801H899998
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person( s) Or Organization( s):
Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part for " bodily injury" or "property damage" included in the " productscompleted operations hazard", provided that such contract was signed and executed by you before, and is in effect when, the bodily injury or property damage occurs.
Location And Description Of Completed Operations
Any project to which an applicable contract described in the Name of Additional Insured Person( s) or Organization( s) section of this Schedule applies.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
Section II - Who Is An Insured is amended to include as an additional insured the person( s) or organization( s) shown in the Schedule, but only with respect to liability for " bodily injury" or " property damage" caused, in whole or in part, by " your work" at the location designated and described in the schedule of
this endorsement performed for that additional insured and included in the " products- completed operations hazard".
CG 20 37 07 04
CG TS 02 XXXX
ISO Properties, Inc., 2004 Page 1 of 1
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER 6801H899998
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following :
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Names of Additional Insured Person( s) or Organization( s):
Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part, provided that such written contract was signed by you before, and is in effect when, the bodily injury" or "property damage" occurs or the "personal injury" or "advertising injury" offense is committed .
Location of Covered Operations:
Any project to which a written contract with the Additional Insured Person(s) or Organization( s) in the Schedule applies.
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.) A. Section II - Who Is An Insured is amended to include as an additional insured the person( s) or organization( s) shown in the Schedule, but only
with respect to liability for " bodily injury", " property damage", " personal injury" or " advertising injury"
caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured( s) at the location( s) designated above.
B. With respect to the insurance afforded to these
additional insureds, the following add itional exclusions apply:
This insurance does not apply to " bodily injury" or
property damage" occurring, or "personal injury"
or " advertising injury" arising out of an offense
committed, after:
1. All work, including materials, parts or equipment furnished in connection with such work, on the project ( other than service, maintenance or repairs) to be performed by or on behalf of the additional insured( s) at the location of the covered operations has been completed; or
2. That portion of " your work" out of which the
injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
CG- 0To17J: ro Copyrignt 2005 Tfie St. Paul Travelers Companies, Inc. All rights reserved. Page 1 of 1 CG TS 01 XX xx Includes copyrighted material of Insurance Services Office, Inc. with its permission.
DATE OF ISSUE: os13112022
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Policy# 6801 H899998
COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing
If all of the other insurance permits contribution
by equal shares, we will follow this method also.
Under this approach each insurer contributes
equal amounts until it has paid its applicable
limit of insurance or none of the loss remains,
whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will contribute
by limits. Under this method , each insurer' s
share is based on the ratio of its applicable limit
of insurance to the total applicable limits of
insurance of all insurers.
d. Primary And Non-Contributory Insurance If
Required By Written Contract
If you specifically agree in a written contract or
agreement that the insurance afforded to an
insured under this Coverage Part must apply on
a primary basis, or a primary and noncontributory basis, this insurance is primary to other insurance that is available to such insured
which covers such insured as a named insured ,
and we will not share with that other insurance,
provided that:
1) The " bodily inj. Jry' or "property damage" for
wh ich coverage is sought occurs; and
2) The " personal and advertising injury" for
which coverage is sought is caused by an
offense that is committed ;
subsequent to the signing of that contract or
agreement by you.
5. Premium Audit
a. We will compute all premiums for this Coverage
Part in accordance with our rules and rates.
b. Premium shown in this Co\ oerage Part as
advance premium is a deposit premium only. At
the close of each audit period we will compute
the earned premium for that period and send
notice to the first Named Insured . The due date
for audit and retrospective premiums is the date
shown as the due date on the bill . If the sum of
the advance and audit premiums paid for the
policy period is greater than the earned
premium, we will return the excess to the first
Named Insured .
c. The first Named Insured must keep records of
the information we need for premium
computation , and send us copies at such times
as we may request.
6. Representations
By accepting this policy , you agree :
a. The statements in the Declarations are
accurate and complete;
b. Those statements are based upon
representations you made to us; and
c. We ha\ oe issued this policy in reliance upon
your representations.
The unintentional omission of, or unintentional error
in, any information provided by you which we relied
upon in issuing this policy will not prejudice your
rights under this insurance. However, this provision
does not affect our right to collect additional
premium or to exercise our rights of cancellation or
nonrenewal in accordance with applicable insurance
laws or reoulations .
7. Separation Of Insureds
Except with respect to the Limits of Insurance, and
any rights or duties specifically assigned in this
Coverage Part to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom claim
is made or " suit" is brought.
8. Transfer Of Rights Of Recovery Against Others
To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part,
those rights are transferred to us . The insured must
do nothing after loss to impair them. At our request,
the insured will bring " suit" or transfer those rights to us and help us enforce them .
9. When We Do Not Renew
If we decide not to renew this Coverage Part, we will
mail or deliver to the first Named Insured shown in
the Declarations written notice of the nonrenewal
not less than 30 days before the expiration date .
If notice is mailed, proof of mailing will be sufficient proof of notice.
SECTION V - DEFINITIONS
1. " Advertisement" means a notice that is broadcast or published to the general public or specific market
segments about your goods, products or services
for the purpose of attracting customers or
supporters. For the purposes of this definition:
a. Notices that are published include material
placed on the Internet or on similar electronic
means of communication; and
b. Regarding websites , only that part of a website
that is about your goods, products or services
for the purposes of attracting customers or
supporters is considered an advertisement.
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Policy # 6801 H899998
occupational therapist or occupational
therapy assistant , physical therapist or
speech-language pathologist; or
b) First aid or " Good Samaritan services"
by any of your "employees" or "volunteer
workers", other than an employed or
volunteer doctor. Any such " employees"
or "volunteer workers" providing or failing
to provide first aid or "Good Samaritan
services" during their work hours for you
will be deemed to be acting within the
scope of their employment by you or
performing duties related to the conduct
of your business.
3. The following replaces the last sentence of
Paragraph 5. of SECTION Ill - LIMITS OF
INSURANCE :
For the purposes of determining the
applicable Each Occurrence Limit, all related
acts or omissions committed in providing or
failing to provide " incidental medical
services", first aid or " Good Samaritan
services" to any one person will be deemed
to be one " occurrence".
4. The following exclusion is added to
Paragraph 2., Exclusions, of SECTION I -
COVERAGES - COVERAGE A - BODILY
INJURY AND PROPERTY DAMAGE
LIABILITY:
Sale Of Pharmaceuticals
Bodily injury" or " property damage" arising
out of the violation of a penal statute or
ordinance relating to the sale of
pharmaceuticals committed by, or with the
knowledge or consent of the insured .
5. The following is added to the DEFINITIONS
Section:
Incidental medical services" means :
a. Medical, surgical, dental , laboratory, xray or nursing service or treatment, advice or instruction, or the related
furnishing of food or beverages; or
b. The furnishing or dispensing of drugs or
medical, dental, or surgical supplies or
appliances.
6. The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -
COMMERCIAL GENERAL LIABILITY
CONDITIONS :
This insurance is excess over any valid and
collectible other insurance, whether primary,
excess, contingent or on any other basis,
COMMERCIAL GENERAL LIABILITY
that is available to any of your "employees"
for "bodily injury" that arises out of providing
or failing to provide " incidental medical
services" to any person to the extent not
subject to Paragraph 2.a.(1) of Section II -
Who Is An Insured .
K. MEDICAL PAYMENTS - INCREASED LIMIT
The following replaces Paragraph 7. of
SECTION Ill - LIMITS OF INSURANCE:
7. Subject to Paragraph 5. above, the Medical
Expense Limit is the most we will pay under
Coverage C for all medical expenses
because of "bodily injury" sustained by any
one person, and will be the higher of:
a. $ 10,000; or
b. The amount shown in the Declarations of
this Coverage Part for Medical Expense
Limit.
L. AMENDMENT OF EXCESS INSURANCE
CONDITION - PROFESSIONAL LIABILITY
The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -
COMMERCIAL GENERAL LIABILITY
CONDITIONS:
This insurance is excess over any of the other
insurance, whether primary, excess, contingent
or on any other basis, that is Professional
Liability or similar coverage , to the extent the
loss is not subject to the professional services
exclusion of Coverage A or Coverage B.
M. BLANKET WAIVER OF SUBROGATION -
WHEN REQUIRED BY WRITTEN CONTRACT
OR AGREEMENT
The following is added to Paragraph 8., Transfer
Of Rights Of Recovery Against Others To Us ,
of SECTION IV - COMMERCIAL GENERAL
LIABILITY CONDITIONS :
If the insured has agreed in a written contract or
agreement to waive that insured's right of
recovery against any person or organization , we
waive our right of recovery against such person
or organization , but only for payments we make
because of:
a. " Bodily injury" or " property damage" that
occurs; or
b. " Personal and advertising injury" caused by
an offense that is committed;
subsequent to the signing of that contract or
agreement.
G"' O~t9021" 9 -(!:) 20TTTheTravelers lndemn! tyC~ All rtghts, e~~- Page 5 of6 lncludes copyrighted material of Insurance Services Office, Inc. with its permission . 270
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Policy#: BA0S579947 COMMERCIAL AUTO
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED - PRIMARY AND
NON-CONTRIBUTORY WITH OTHER INSURANCE
This endorsement modifies insurance provided under the following :
BUSINESS AUTO COVERAGE FORM
PROVISIONS
1. The following is added to Paragraph A.1.c., Who
Is An Insured, of SECTION II - COVERED
AUTOS LIABILITY COVERAGE :
This includes any person or organization who you
are required under a written contract or
agreement between you and that person or
organization , that is signed by you before the
bodily injury" or " property damage" occurs and
that is in effect during the policy period , to name
as an additional insured for Covered Autos
Liability Coverage, but only for damages to which
this insurance applies and only to the extent of
that person' s or organization' s liability for the
conduct of another " insured".
2. The following is added to Paragraph B.5., Other
Insurance of SECTION IV - BUSINESS AUTO
CONDITIONS :
Regardless of the provisions of paragraph a . and
paragraph d. of this part 5. Other Insurance, this
insurance is primary to and non- contributory with
applicable other insurance under which an
additional insured person or organization is the
first named insured when the written contract or
agreement between you and that person or
organization , that is signed by you before the
bodily injury" or " property damage" occurs and
that is in effect during the policy period, requires
this insurance to be primary and non- contributory .
CA T4 74 0216 © 2016 The Travelers Indemnity Company . All rights reserved . Page 1 of 1 Includes copyrighted material of Insurance Services Office , Inc. with its permission. 271
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TRAVELERSJ WORKERS COMPENSATION
AND
EMPLOYERS LIABILITY POLICY
ENDORSEMENT WC 99 03 76 ( A) -
POLICY NUMBER: UB2L553909
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS
ENDORSEMENT - CALIFORNIA
BLANKET WAIVER)
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.
The additional premium for this endorsement shall be
mium .
of the California workers' compensation preSchedule
Person or Organization Job Description
Any Person or organization for which the insured has agreed by written contract executed prior to loss to furnish this waiver.
This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated .
The information below is required only when this endorsement is issued subsequent to preparation of the policy.) <:;;;:'--
Insurance Company
Travelers Property Casualty Company of America
DATE OF ISSUE: 8t28t2022
Countersigned by ___________ _
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ClTYOF
m
DESIGN PROFESSIONAL SERVICES AGREEMENT < SINGLE}
WITH MIG, INC
CUPERTINO
1. PARTIES
This Agreement is made by and between the City of Cupertino, a municipal corporation (" City"), and MIG, Inc (" Consultant"), a Corporation for All-Inclusive Playground at Jollyman Park 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 byCity. 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 ofits 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 December 31, 2024, 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 ofPerformance, 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 opportunity to address or mitigate delays. Ifthe Services are divided by tasks, Consultant must begin All-Inclusive Playground at Jollyman Park
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work on each separate task upon receiving City 's Notice to Proceed (" NTP"), and must complete each task within the time specified in ExhibitB.
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 $ 389, 511. 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 $ 389, 511. 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. Ifthe 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. Ifpaid 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. Ifthe 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 .
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5. 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 .
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 subConsultants 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 San 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, ifrequired 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 All-Inclusi ve Playground at Jollyman Park
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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 ofthe City upon completion ofthe 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. Ifit 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 ifincorporated 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 ofConsultant 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 ofWorkProduct:
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 ofthe 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 All- nc1u siv e Play ground a Jollyman Park
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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 ofreimbursable 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 All-Inclusive Playground at Jollyman Park
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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, servants, agents, or subcontractors collectively and/ or individually " Consultant"), in the performance of this Agreement or failure to comply with any obligations ofthe Agreement. Ifit 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 offault, except as described in Section 2782. 8(a) and ( e) ofthe 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. l(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 ofthe obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or sole willful misconduct ofthe 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.
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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 orregulation.
13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. Ifthe 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. Ifthe 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 All-Inclusive Playground at Jollyman Park
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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 ifConsultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 ofTitle 2 ofthe 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 Evelyn Moran, 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 Jan Eiesland 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 ofthis Agreement and within thirty ( 30) days of Consultant' s final invoice reasonably approved by the City .
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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 oftermination, 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 ofthe State of California, excepting any choice of law rules which may direct the application oflaws 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 ofthe parties are subject to all valid laws, orders, rules, and regulations ofthe authorities having jurisdiction over this Agreement ( or the successors ofthose authorities). If a dispute arises, Consultant must continue to provide the Services pending resolution ofthe dispute. Ifthe 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
IfCity 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 ofthis Agreement.
19. THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries ofthis Agreement.
20. WAIVER
Neither acceptance ofthe 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 ofthe same or a different character
21. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding ofthe Parties, of every kind or nature, and supersedes any and all other agreements and understandings, either oral or written, between them. Any modification ofthis Agreement will be effective only ifin writing and signed by each Party' s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. Ifthere is any inconsistency between any term, clause, or provision ofthis main Agreement and any term, clause, or provision ofthe attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling .
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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 ofthe Agreement and in no way affect, limit, or amplify the terms or provisions ofthis Agreement.
24. SEVERABILITY IPARTIAL 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 ofthis 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 ofpersonal 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: Evelyn Moran
Email: evelynm@cupertino. org
27. EXECUTION
To Consultant:
MIG, Inc
2055 Junction Ave, Suite 205
San Jose, CA 95131
Attention: Jan Eiesland
Email: jeiesland@migcom. com
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 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.
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IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement.
CITY OF CUPERTINO
A Municipal Corporation
By Ouuu- u 7/4?~n-~/ k_)
Name Dianne Thompson ( she/ her)
Title Acting City Manager
Date Dec 9, 2021
APPROVED AS TO FORM:
Chrisfopher D. Jensen
CHRISTOPHER D. JENSEN
Cupertino City Attorney
ATTEST:
KIRSTEN SQUARCIA
City Clerk
Date Dec 9, 2021
All-Inclusive Playground at Jollyman Park
MIG, INC
Cu¢-}~
By ___________ _
Name Chris Beynon
Title Vice President/ Chief Development Officer
Date Nov 24, 2021
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EXHIBIT A
Jollyman Park All-Inclusive Playground
Scope of Work
11.12.2021
MIG has prepared the following Scope of Work to illustrate how we will facilitate successful completion of the Jollyman Park All-Inclusive Playground Project. This scope captures and clarifies assumptions of the tasks incorporated in the attached Fee Proposal spreadsheet. The details are based on our understanding of the requirements stated in the Jollyman Park Aug. 2, 2021 RFQ and Addenda.
Project Understanding
Located in Cupertino, CA, the project entails replacing the southern existing play area at Jollyman Park with an allinclusive playground. Per the City' s RFQ, the project aims to incorporate the best in supportive play theories and practices to appeal to people of all ages and abilities. The design will support recreation and social interaction for people with autism, sensory challenges, cognitive, developmental, and physical disabilities - as well as those without special needs. The project will have specific all-inclusive play amenities that will be further developed from the initial concept design with community engagement. Potential site improvement areas include walkways, storm water runoff reduction, utility identification and adjustments, landscape, irrigation, and similar site improvements within the project area. Recommended site improvements shall be based on the established Cupertino Engineering Standards. The design will be in accordance with AIPG funding guidelines; local, state and federal ADA and playground safety guidelines and requirements .
TASK 1: PROJECT INITIATION
Task 1.1 Project Kick-off Meeting & Site Tour
To initiate the project, the MIG Team will participate in a meeting with the City of Cupertino Jollyman project team The City') to discuss the project goals, opportunities, and challenges, as well as to establish project communication protocols, review project tasks and schedule, and other coordination topics to be determined in cooperation with the City. We see this meeting as an important step in developing a collaborative team that is committed to a shared process and vision for Jollyman Park.
The MIG Team will also conduct a site tour to observe and document the existing site conditions, uses and character of Jollyman Park. Topic areas to be observed include circulation, accessibility, signage and wayfinding, lighting, natural features, social relationships, and experiential opportunities.
Depending on weather and current safety protocols this may be staged as two meetings within the same week : a virtual kick-off/goals meeting followed by an in-person site tour of Jollyman Park. If an in-person kick-off meeting is feasible, then the meeting and site visit will be scheduled to occur consecutively on the same day.
Task 1.2 Project Scope & Schedule Finalization
MIG will work with the City of Cupertino to customize and finalize the scope and schedule, so that tasks meet the City's preferred process and timeline.
Task 1.3 Background Information Request & Assembly
The MIG team will prepare a consolidated list of background information needed from the City. MIG will assemble the information and make it available for use by all team members over the course of the project . 1 284
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Task 1.4 Community Engagement Part 1: Prepare to Engage MIG will develop a plan for community engagement, mapping out how and when to use engagement and communication techniques in a Community Outreach and Engagement Plan. We will work with the City to identify stakeholders, including both City staff and community groups, whose insights and support will help build a successful park. This plan will guide our efforts as we gather information, listen to the community and work towards the final site plan. Should the community engagement plan identify different efforts than those included below, the scope and fee will need to be revised .
Task 1.5 Inclusive Play Primer Presentation
To assist the City in gaining internal staff support for the Jollyman Play Area mission and goals, MIG will provide a two-hour interactive virtual presentation about the importance and goals of an inclusive play area. MIG will create a virtual presentation to be attended by City Staff and key stakeholders. The goal for this meeting is to get all the various stakeholders to understand the project goals, learn information about inclusivity, and begin speaking the same language when it comes to inclusive play environments. The City may post to their website for a period of 3 months and keep a recording of the presentation for internal staff use.
Task 1.6 Project Management and Team Coordination
MIG will coordinate the work of the MIG Team throughout the duration of the design phases, prepare the Project schedule, monitor the Project budget, establish, and monitor project quality, setup project accounting and prepare and submit monthly invoices. The MIG Team will coordinate and strategize with the City via 1-hour video calls to review progress and discuss direction and next steps . Please refer to the accompanying fee spreadsheet for the assumed task duration and number of meetings for each phase. MIG's project manager will participate in these calls, as well as other pertinent team member at times, depending on the agenda.
TASK 1 DELIVERABLES
Final Scope and Schedule
Community Outreach and Engagement Plan
Inclusive Play Primer Recording
Coordination meeting notes ( for meetings led by the MIG Team) Monthly invoices
TASK 2: DATA COLLECTION AND EXISTING CONDITIONS
TASK 2.1 Topographic Survey
BKF will prepare a topographic survey of the 1.75 ac project area and surroundings as outlined on the project limits diagram ( see Survey Exhibit on the last page). Topographic survey will not include a boundary survey.
Task 2.2 Existing Utilities & Stormwater Coordination
BKF will identify existing utilitity locations, through records research and on line databases, perform a Site visit to document those utilities whose above ground features can be determined by visual means and discuss potential utility constraints with MIG and the City. BKF will also document in a graphic the existing project site drainage conditions, along with new stormwater requirements to meet City/County/Regional requirements.
TASK 2.3 Geotechnical Report
Ninyo + Moore will conduct geotechnical sampling, to include taking two exploratory borings within the project site to ascertain subsurface soil conditions. They will interpret borings and provide a geotechnical report to address design of the playground pavement types and footings. Provide a copy of the Geotechnical Report to the City .
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TASK 2.4 Review of Requirements, Existing Conditions and Background Documents The MIG Team will review codes, standards and environmental regulations applicable to Jollyman Pa rk and the potential park improvements . We will review City- provided documents and on-line research, regarding the site's natural, social and cultural history, including land use, demographics, property boundaries, as well as ongoing site operations and maintenance issues .
Task 2.5 Site Analysis, Opportunities & Constraints
The MIG Team will develop a scaled base map of the park site, using an aerial and/ or the survey, which assembles relevant information on the existing park site and the area immediately adjacent, including circulation, park features, trees and other information as appropriate . We will prepare a graphic summarizing existing assets, issues and opportunities, including circulation and accessibility, landscape features and overall character, paying special attention to human developmental needs and environmental health and sustainability.
Task 2.6 Community Engagement Part 2: listen, Learn, Vision Building on the engagement plan and key stakeholders identified in Community Engagement Part 1, The MIG Team will prepare graphic materials to be used in several outreach methods identified in the plan . Our assumption is that this will include an on line survey; boards with similar content and a QR code that the City may print, laminate and hang at the park; (1) virtual community meeting; and ( 2) smaller stakeholder meetings- either virtual or outdoors. Materials will be designed to both share the site analysis and listen to the community' s own site expertise and local knowledge . In addition to patterns of use and desired experiences, MIG will work with the City to strategize engagement activities that will also provide an understanding of the site and area 's underlying characte r and cultural influences, which can be expressed in the design.
Task 2.7 Analysis and Outreach Summary Report
The MIG team will prepare an existing condition report that details the requirements, existing conditions, assumptions, constraints, opportunities, risks and risk mitigation. The report should also reflect community outreach participant input. This report will be available for the City to post to the web to keep the community informed, for help with fund raising, and for use as background for other City presentations made by City staff.
Task 2.8 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties as described in Task 1 and with additional meetings as noted on the accompanying fee spreadsheet.
TASK 2 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format. We assume one round of minor revisions for each based on the City's consolidated comments .
Topographic Survey ( AutoCad file and PDF)
Existing Utilities and Drainage Conditions Summary Graphic Geotechnical Report
Project Base Map & Site Analysis
Site Analysis, Opportunities & Constraints Graphics
Community Engagement Part 2 materials
Analysis and Engagement Summary Report
City Review Meetings Agendas & Meeting summaries
Monthly invoices
TASK 3: CONCEPT DESIGN
Task 3.1 Draft Concept Designs
The MIG Team will prepare up to (2) Concept Plan s that depict the scale and relationships between the different park areas and show how the elements are organized and connected with in each area . Alternatively, the analys is 3 286
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and input may direct the project towards one primary layout with options. The Concept drawings will contain enough information to explain the general form, content, and quality of the design, including:
Site vision statement with a short narrative description that characterize the main features, unique aspects, visitor experience, program elements, and operations Concept plan
Precedent design images to support the design ideas
Opinion of Probable Costs
Monthly invoices
Task 3.2 City Review Meeting
Two- hour virtual meeting. MIG will present the (2) Concept Plans to City Staff for feedback and approval. MIG and the City will also use this meeting to coordinate the details of the upcoming public engagement actions and events.
Task 3.3 Commission/Council Meetings
MIG will present the Concept Plans at (2) Commission/ Council meetings for input and approval, such as Parks and Recreation Commission and City Council. Assume each is a virtual one- hour meeting. More presentations can be accommodated through extra services if needed.
Task 3. 4 Community Engagement Part 3: Consider the Concepts MIG will revise/ finalize the Concept Plans per City feedback and create both analog and digital content to share the Concept Plans with the public for evaluation and feedback. MIG will review the public engagement materials with City Staff for approval. MIG will monitor any online survey results over a two- to three- week period. MIG will also lead up to (2) additional community conversations ( either facilitated online or, if social distancing policies allow as small coffee meetings), intercept events, pop-ups, or outreach opportunities as determined with the City .
Task 3.5 City Review Meeting
Two- hour virtual meeting. MIG will meet with the City to discuss the community engagement process and feedback; and to go over options and direction for developing the Preferred Concept.
Task 3.6 Preferred Concept Design
The MIG Team will incorporate the public and City feedback into a Preferred Concept. The Preferred Concept will contain enough information to explain the general form, content, and quality of the design, including:
a statement describing the vision for the site
a short narrative description that characterizes the main features, unique aspects, visitor experience, program elements, and operations
precedent design images to support the concept plan
Conceptual level grading plans for disturbed areas within the project limits Conceptual utility connection plans including storm drainage, preliminary stormwater treatment and detention facility sizes, sanitary sewer, water, and fire protection services Opinion of Probable Costs
Task 3.7 City Review Meeting
Two- hour virtual meeting. MIG will present the Preferred Concept to the City for review and feedback.
Task 3.8 Illustrative 3d/Bird's-eye view Graphic
Provide an illustrative 3d or Bird's-eye view site graphic to share with the community and help with fund raising .
Task 3.9 Community Engagement Part 4: Define the Project MIG will finalize the Preferred Concept per the City feedback and will create graphics and materials for a final virtual public presentation . MIG will review the public engagement materials with City Staff for approval. Allow for 1) round of revisions .
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MIG will share the Preferred Concept design and Illustrative Graphic with the public to show how earlie r community input shaped the final concept. MIG will provide a multi-media, on line walk-through of the Preferred Concept with an opportunity to provide general feedback . This step is an opportunity to celebrate the culmination of the community engagement process and mark the transition to the next stage-construction drawings and building the new playground.
Task 3.10 City Review Meeting
Two-hour virtual meeting . MIG will meet with City Staff to discuss the public's comments and get final approval before moving into the Construction Documents phase .
Task 3.11 Environmental Approvals Coordination
MIG will provide minor assistance with graphics and coordination. More help may be provided if desired as additional services.
Task 3.12 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties as described in Task 1 and with additional meetings as noted on the accompanying fee spreadsheet.
TASK 3 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format. We assume one round of minor revisions for each based on the City' s consolidated comments.
Draft Plans & Opinion of Probable Costs
Commission/ Council Presentations ( 2)
Community Engagement Part 3 materials and summaries
City Review Meetings Agendas & Meeting summaries
Preferred Concept Plan & Opinion of Probable Costs
Illustrative 3D/Birdseye Graphic
Community Engagement Part 4 materials and summaries
Monthly invoices
TASK 4: CONSTRUCTION DOCUMENTS ( CD)
The MIG Team will prepare design plans, construction documents, specifications and opinions of probable costs at the milestones noted below . We will schedule the design and bid process, identifying significant milestone dates and actions items for the project team and assist the City in developing bid documents to advertise for construction . The City will provide any City-required standard details, titleblocks, requirements, and specifications to the MIG team at the beginning of this phase . All submittals will be in the form of a PDF submitted through email, Google drive, or other free and readily ava ilable digital sharing format approved by The City .
Task 4.1 Preliminary CD Plans
The MIG Team will prepare preliminary plans in AutoCAD showing the layout of proposed play area elements, including play elements, paving, site furnishings, planting areas and other site features .
Task 4.2 Preliminary CD City Check- in Meeting
MIG will facilitate a meeting with City staff to review consolidated comments on the preliminary plans to clarify questions and confirm corrections or minor refinements needed for the 50% set. A summary of the meeting will be prepared .
Task 4.3 50% CD Submittal
The MIG Team will prepare construction documents to a 50% level of completion , drafted in digital format using AutoCAD . Plans shall be prepared at a minimum of 1" = 20' scale , As part of the package , the M IG Team will 5 288
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develop a materials and equipment schedule reflecting site material, equipment and furnishing selections so the City can review the new playground' s proposed aesthetic vision.
This scope assumes the development of one set of construction drawings for a single-phase project. If the City's budgeting results in the need for phasing or alternates, these can be provided for an additional fee .
Task 4.4 50% CD Opinion ofProbable Costs
The MIG Team will develop an Opinion of Probable Costs based on the submitted plans.
Task 4.5 50% CD Regulatory Approval Coordination/Assistance (Allowance) The MIG Team has a small allowance to allow for regulatory approval document preparation and coordination for City reviews such as ADA review, stormwater, and the maintenance department.
Task 4.6 City Review Meeting
The City will provide one set of consolidated review comments detailing the required changes to the 50% CD drawings and opinion of probable costs. These will be discussed in a two-hour (maximum) virtual meeting between the City and MIG to confirm design direction before beginning the 90% CD package.
Task 4.7 90% CD Submittal
Based on the 50% CD's submittal and incorporating the City's direction from the 50% CD review meeting, the MIG Team will prepare construction documents to a 90% level of completion. The MIG Team will also provide CSI format technical specifications related to the scope of work. Design documentation, including specifications, will be consistent with required federal, state, and local codes and regulations .
Task 4.8 90% CD Opinion of Probable Costs & QA/QC Review The MIG Team will develop an Opinion of Probable Costs based on the submitted plans . MIG's QAQC team will perform an in-house review of drawing set and specifications to ensure Quality Assurance+ Quality Control.
Task 4.9 City Review Meeting
The City will provide one set of consolidated review comments detailing any required changes to the Design 90% CD package . These will be discussed and finalized in a two-hour (maximum) virtual meeting between the City and MIG prior to finalizing the 100% CD package .
Task 4.10 100% CD Submittal/PermitSet
Based on the final consolidated list of comments and direction from the City, the MIG Team will advance the construction documents set to a level of 100% completion. We will produce final technical specifications in CSI format to describe the requirements for construction materials, equipment, systems, standards, and workmanship.
The City will be responsible for providing the Division I specifications sections. The MIG team assumes that multiple permit packages are not required and that 100% construction documents will be comprise the construction permitting set. The MIG Team will package the 100% complete construction documents and submit to the City for final review and comment (PDF format). One round of minor edits may be incorporated by the MIG Team to create the final Permit Set.
Task 4.11 Bid Set Preparation
Incorporating minor revisions related to comments from the permitting review, the MIG Team will prepare final design ( bid) documents based on the 100% drawings and techncial specifications .
Task 4.12 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties as described in Task 1 and with additional meetings as noted on the accompanying fee spreadsheet.
TASK 4 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format.
Preliminary plans ( In-progress check-in) for City Review Design Development (50% CD) Submittal - Drawings and Spec TOC Des ign Development (50% CD) Opinion of Probable Costs
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90% CD Submittal - Drawings and Specs
90% CD Opinion of Probable Costs
100% CD Drawing Set - Drawings and Specs
100% CD Opinion of Probable Costs
Monthly invoices
TASK 5: BIDDING SUPPORT
Task 5.1 Pre-bid Meeting
MIG will attend the pre-bid meeting to respond to questions about the Construction Documents.
Task 5.2 Bid Assistance Allowance ( Bidder Question Response) The MIG Team has made an allowance to prepare responses to bidders' questions to clarify the construction documents.
Task 5.3 Conformed Construction Set Submittal
Once the bid period is complete and the contractor has been selected, the MIG Team will prepare a final conformed set for the contractor' s use during construction. The conformed construction set will incorporate the addenda and responses to bidders' questions .
Task 5.4 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties as described in Task 1 and with additional meetings as noted on the accompanying fee spreadsheet.
TASK 5 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format.
Responses to Bidders' Questions
Conformed Construction Set
Monthly invoices
No allowance has been made for any value engineering at the Bid Phase . Should bids come in higher than anticipated due to unforeseen market conditions, the MIG Team will meet with the Client to discuss options to move the project forward. Any additional design, coordination or submittals can be provided for additional services.
TASK 6: CONSTRUCTION ADMINISTRATION
Task 6.1 Preconstruction Meeting Participation
The MIG Team will attend and participate in a Pre-Construction meeting scheduled and lead by the City . The MIG Team will attend the meeting to support the City in answering the contractor' s questions. This scope assumes attendance by the lead landscape architect and civil engineer. If needed, other design team members can be made available through additional services .
Task 6.2 Responses to Contractor Submittals
The MIG Team will review and take appropriate action ( approve with modifications, reject, etc.) on the Contractor' s submittals such as RFl's, Shop Drawings, Product Data and Samples, to confirm conformance with the design intent of the project and compliance with the information given in the Contract Documents . Reviews will take place in accordance with reasonable promptness and according to language agreed upon in the bid documents . Reviews and approvals or other action shall not extend to means, methods, techniques, sequences, or procedures of construction or the safety precautions and programs incident thereto. Approval of a specific item shall not indicate approval of an assembly of which the item is a component. The MIG Team assumes a maximum 7 290
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of two reviews of contractor submittals and shop drawings. Additional reviews can be provided through additional services ( see last section).
Task 6.3 Construction Meetings and Site visits
MIG will attend up to (4) construction meetings to review construction progress and Contractor' s compliance with the design intent. These meetings can be virtual or on-site, depending on current safety measures. In addition, MIG will perform up to (8) site visits and the Civil engineer will perform up to three (3) site visit/reviews, as requested by City. Task assumes a maximum construction duration of ten months.
Task 6.4 Preliminary Punch List Site Visit and Preparation When notified that the construction is substantially complete, the MIG team will make one site visit with the City's representative and perform a Preliminary Punch List inspection of the Project to observe any apparent defects in the completed construction regarding conformance with design intent of the Contract Documents. MIG will consolidate observations and provide a "punch list," describing the items it recommends for the contractor' s correction prior to scheduling the Final Punch List Site Visit.
Task 6.5 Final Punch List Site Visit and Preparation
When notified that the construction is fully complete, the MIG team will make one site visit with the City's representative and perform a "Final" inspection of the Project to observe any apparent defects in the completed construction regarding conformance with design intent of the Contract Documents. MIG will consolidate observations and provide a Final Punch List, describing the items it recommends for the contractor' s correction prior to closing out the construction contract.
Task 6.6 Project Management and Team Coordination
The MIG Team will continue Project Management and Team Coordination duties as described in Task 1 and with additional meetings as noted on the accompanying fee spreadsheet.
TASK 6 DELIVERABLES
Unless otherwise noted, all deliverables will be provided in PDF format.
Submittal and Shop Drawing review documentation
Responses to contractor' s Requests for Information
Construction Meetings -( up to 4)
Site Visits -( up to 11)
Preliminary Punch List
Final Punch List
Monthly invoices
ADDITIONAL SERVICES
The MIG Team has a broad range of experience, skills and services . The following is a non-exhaustive list of items that are not included in this scope but could be provided as additional services if they are needed or desired by the City:
Additional community engagement beyond the scoped items in the process ( including digital advertisement, intercept surveys, additional surveys/workshops/ open houses/pop-up events).
Additional public meetings beyond the scoped items in the process ( including attending City Council meetings, public hearings, hearing examiner meetings, public open houses, and local association meetings).
City project team meetings beyond those listed
Additional design alternative drafts or renderings other than those listed .
Preparation of phased or multiple-packaged construction documents. 8 291
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Preparation of special studies outside our scope of work.
Intensive research and testing to determine conditions of existing site utilities (i.e ., potholing, smoke testing, dye testing, pressure testing, fire flow testing, videotaping, etc.).
Utility Relocation Plans
Supplemental surveying services beyond the initial survey necessary for completeness.
Appeal, Design Exception, and Alternative Review applications.
Services related to future facilities and improvements.
Design of water capture/ re-use systems, pump stations, sump pumps, or force mains for sanitary sewer or storm drainage systems, if required .
Design of systems to comply with or obtain LEED certification, including preparation of LEED documentation and addressing review comments from the USGBC.
Redesign of civil/landscape items following completion of construction document as a result of site and building plan changes or unforeseen existing conditions.
Design for areas not identified in the project understanding.
Value Engineering. If the MIG Team is needed to assist with VE and/ or bid negotiations, it is available on a Time and Materials basis.
Arborist Report
Project Record Drawings
PROJECT SCOPE ASSUMPTIONS:
CLIENT : ' The City' refers to the City of Cupertino' s Jollyman project team .
BUDGET: Scope and fee is based on a construction budget of $2,910,000 ($2,670,000 base budget with a 240,000 contingency). The City has identified a fundraising goal of $1,000,000. If fundraising goals are not met, there will be a shortfall. Redesign to value engineer the project will require a contract modification .
DELIVERABLES : Unless otherwise indicated, all deliverables will be provided in PDF format. Native files will be created in software selected at the consultant team' s discretion . If the City desires printed copie s or specific file formats, the MIG Team is happy to work with the City to develop a strategy that meets the project's budget and need s.
IN-PERSON MEETINGS: Team meetings and most community engagement events are assumed to be virtual with some limited outdoor engagement events as noted .
TRANSLATION: All documentation will be in English ; however, as an additional service , the MIG Team can provide exhibits in other languages .
CONSOLIDATED COMMENTS : The City will provide MIG with (1) set of vetted and consolidated comments from all parties/agencies in all tasks involving review and feedback.
PERMIT FEES : All permit fees and agency charges will be paid by others .
UTILITIES: The site is adequately served by utilities adjacent to the site .
OFFSITE UTILITIES/STREET/PARKING DESIGN : Offsite utility or street/parking design beyond the identified playground area is not included in this proposal.
ENVIRONMENTAL WORK: Floodplain, wetland, soil remediation or environmental work is not included in this proposal.
CONSTRUCTION TESTING+ INSPECTIONS : Necessary testing and inspections during construction will be provided by others .
EXISTING UTILITY DISTRIBUTION : It is assumed that existing utility distribution systems will not be impacted by the proposed development.
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SURVEY AREA:
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City of Cupertino I Jollyman Park All -Inclusive Playground estimated ro · ect cost
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EXHIBIT B: Schedule
Jollyman Park All-Inclusive Playground
Task 1: Project Initiation and Ongoing Project Management - January 2022 ( 0.5 month) Task 2: Data Collection and Existing Conditions - Jan - Feb 2022 ( 1.5 months) Task 3: Concept Design - Mar - June 2022 ( 4 months)
Task 4: Construction Documents - June 2022 - Mar 2023 ( 7 months) Task 5: Bidding Support - Apr.-June 2023 ( 2.5 months)
Task 6: Construction Administration - June 2023 - Mar. 2024 ( 9.5 months) Project schedule is subject to refinement at the kickoff meeting and will be regularly updated during the course of the project, working with City staff, to better reflect project needs and City review times. 295
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EXHIBIT C: Hourly Rates and Re imbursable Expenses
Jollyman Park All-Inclusive Playground
Unless specified otherwise, invoices are submitted monthly showing time and charges for professional services by staff category and a separate figure for expenses. Invoices are payable upon receipt. Invoices unpaid past 30 days are subject to interest at 1-1/2% per month. MIG Inc. labor includes all overhead.
Hourly rates by position are noted below:
Role
Principal- in-Charge
Project Manager
Play Specialist/ CPS!
Project Associate
Irrigation Designer
Community Outreach Specialist
Senior Urban Designer
Project Assistant
Planner/ Master Plan Advisor
ADA Specialist
Graphic Designer
Expenses are as follows:
Type
Automobile travel
Meals
Photocopy ( letter and tabloid)
Color copies ( letter and tabloid)
Commercial printing/ plotting
Subcontractors
Other ( lab tests, aerial photos, etc)
hour
210
180
160
95 145
140
150
80 165
135
140
Rate
current IRS rate
cost+ 5%
0.10/ print
0 .50/ print
cost+ 5%
cost+ 5%
cost+ 5%
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EXHIBITD
Insurance Requirements
Design Professionals & Consultants Contracts
Consultant shall procure prior to commencement ofServices and maintain for the duration ofthe 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). Ifa 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 ofcoverage ofany 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 selfinsurance 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 ofCalifornia, with Statutory Limits and Employer' s Liability Insurance ofno less than $ 1,000,000 per occurrence for bodily injury or disease.
J Not required Consultant has provided written verification ofno 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. Ifwritten on a claims made form:
a The Retroactive Date must be shown and must be before the Effective Date ofthe Contract. h Insurance must be maintained for at least five ( 5) years after completion ofthe Services. c. Ifcoverage 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 offive ( 5) years after completion ofthe Services.
OTHER INSURANCE PROVISIONS
The aforementioned insurance shall be endorsed and have all the following conditions and provisions:
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Additional Insured Status
The City ofCupertino, 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 ofan 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 ofCancellation
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 ifdue to non-payment of premiums.
Waiver ofSubrogation
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 ofwhether 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 ofInsurers
Insurers must be licensed to do business in California with an A.M. Best Rating ofA-VII, or better.
Verification ofCoverage
Consultant must furnish acceptable insurance certificates and mandatory endorsements ( or copies ofthe policies effecting the coverage required by this Contract), and a copy ofthe Declarations and Endorsement Page ofthe CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification ofcompliance 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
IfConsultant 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 ofCoverage
City reserves the right to modify these insurance requirements/ coverage based on the nature ofthe risk, prior experience, insurer or other special circumstances, with not less than ninety ( 90) days prior written notice .
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ACORD~ CERTIFICATE OF LIABILITY INSURANCE I
DATE (MM/DDNYYY)
11/22/2021
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).
PRODUCER ~ 2: 1~ cT The Certfiicate Team
AssuredPartners Design Professionals Insurance Services, LLC PHONE I FAX
3697 Mt. Diablo Blvd Suite 230 '
Air I.I ... c.,.\, IA/C Nol :
Lafayette CA 94549 it1lJ~ ss: CertsDesionPro@. AssuredPartners . com INSURER($) AFFORDING COVERAGE NAIC#
License#: 6003745 INSURER A : Berklev Insurance Comoanv 32603 INSURED MIGINC0-01
INSURER B : Travelers Prooertv Casualtv Comoanv of America 25674 MIG , Inc.
INSURER c : The Travelers lndemnitv Comoanv of Connecticut 25682 Moore lacofano Goltsman , Inc.
800 Hearst Ave INSURERD :
Berkeley CA 94710 INSURERE :
INSURER F :
COVERAGES CERTIFICATE NUMBER: 2075696555 REVISION NUMBER:
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 .
INSR ADDL SUBR
LTR TYPE OF INSURANCE .. ,~~ , .. l~~rJ%WJ1 ,~~ rJiYMY, n,~ POLICY NUMBER LIMITS B X COMMERCIAL GENERAL LIABILITY y y
6801H899 99 8 8/31 / 2021 8/3 1/2022 EACH OCCURRENCE $ 1,000 ,000 - CLAIMS - MADE 0 OCCUR
DAMA<.;E T: yE RENTEu
PREMISES Ea occurrence ) $ 1,000 , 000
X Contra ct ual Li ab MED EXP ( An y one person) $ 10 ,000 - Included PERSONAL & ADV INJURY $ 1,000 , 000 -
GEN' L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2 ,000 , 000 0 PROPOLIC Y JECT 0Loc PRODUCTS - COMP/ OP AGG $ 2 ,000 , 000 OTHER: $
C AUTOMOBILELIABILITY y y
BAOS5 7994 7 8/3 1/20 21 8/ 31 / 2022 fE~~~~~~~tflNGLE LIMIT $ 1 ,000 , 000 X ANY AUTO BODILY INJURY ( Per person) $
OWNED - SCHEDULED BODILY INJUR Y (Per accident) $
AUTOS ONLY - AUTOS
X
HIRED X
NON- OWNED
iP~?~~ c~de~ RAMAGE $ AUTOS ONLY - AUTOS ONLY
B X UMBRELLA LIAB MOCCUR y y
CUPOH75 8762 8/31/ 2021 8/31 / 2022 EACH OCCURRENCE $ 10, 000 , 000 - EXCESS LIAB CLAIMS- MADE AGGREGATE $ 10, 000 , 000
DED I X I RETENTION$ n $
B WORKERS COMPENSATION y UB2L553909 8/31 / 2021 8/31 / 202 2 X I ~ffTuTE I I
OTHER AND EMPLOYERS' LIABILITY Y/N
ANYPROPRIETOR/ P ARTNER/ E XECUTI VE
N/A
E.L. EACH ACCIDENT $ 1 ,000 , 000
OFFICER/ MEMBER EXCLUDED ?
Mandatory In NH) E.L. DISEASE - EA EMPLO YEE $ 1 ,000 , 000 i~iM~if3~ onfoPERATIONS bel ow E.L. DISEASE - POLIC Y LIMIT $ 1 ,000 , 000 A Profess io nal Liabili ty N y
AEC 904 72500 3 8/3'1/20 21 8/3 1/20 22 Ea ch Claim $ 3 ,000 , 000 Annual Ag gre gate $ 5 ,000 , 000
DESCRIPTION OF OPERATIONS I LOCATIONS/ VEHICLES ( ACORD 101 , Additional Remark s Sch edule , may be attached if more space is required ) Umbrella Liability policy is a follow- form underlying General Liability/ Auto Liability/ Employers Liability .
Re: Jollyman Park All- Inclusive Playground
The City of Cupertino , its City Cou ncil , officers , officials , employe es , agents, servants and volunteer s 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).
CERTIFICATE HOLDER
C ity of Cupertino
10300 T orre Ave .
C u p e rti n o CA 950 14
CANCELLATION 30 Da s Notice of Canc ellation
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS .
1988- 2015 ACORD CORPORATION . All r ights reserved.
ACORD 25 (2016/03) T h e ACORD n a m e a n d log o are reg istered marks of ACORD 299
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER: 6801H899998
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - COMPLETED OPERATIONS
This endorsement modifies insurance provided under the following :
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person( s) Or Organization( s):
Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part for " bodily injury" or " property damage" included in the " productscompleted operations hazard", provided that such contract was signed and executed by you before, and is in effect when, the bodily injury or property damage occurs .
Location And Description Of Completed Operations
Any project to which an applicable contract described in the Name of Additional Insured Person( s) or Organization( s) section of this Schedule applies .
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
Section II - Who Is An Insured is amended to include as an additional insured the person(s) or organization( s) shown in the Schedule, but only with respect to liability for " bodily injury" or " property damage" caused, in whole or in part, by " your work" at the location designated and described in the schedule of
this endorsement performed for that additional insured and included in the " products- completed operations hazard".
CG 20 37 07 04
CG TS 02XXXX
ISO Properties , Inc ., 2004 Page 1 of 1
DATE OF ISSUE : 08/31/2021 300
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COMMERCIAL GENERAL LIABILITY
POLICY NUMBER 6801H899998
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Names of Additional Insured Person( s) or Organization( s):
Any person or organization that you agree in a written contract to include as an additional insured on this Coverage Part, provided that such written contract was signed by you before, and is in effect when, the bodily injury" or "property damage" occurs or the " personal injury" or " advertising injury" offense is committed .
Location of Covered Operations:
Any project to which a written contract with the Additional Insured Person( s) or Organization( s) in the Schedule applies .
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.) A. Section II - Who Is An Insured is amended to include as an additional insured the person( s) or organization( s) shown in the Schedule, but only
with respect to liability for " bodily injury", " property damage", " personal injury" or " advertising injury"
caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured( s) at the location( s) designated above .
B. With respect to the insurance afforded to these
additional insureds, the following additional exclusions apply :
This insurance does not apply to " bodily injury" or
property damage" occurring , or " personal injury"
or " advertising injury" arising out of an offense
committed, after:
1. All work, including materials, parts or equipment furnished in connection with such work, on the project ( other than service, maintenance or repairs) to be performed by or on behalf of the additional insured( s) at the location of the covered operations has been completed; or
2. That portion of " your work" out of which the
injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
CG D3 61 03 05 Copyright 2005 The St. Paul Travelers Companies , Inc . All rights reserved. Page 1 of 1 CG TS 01 xx xx Includes copyrighted material of Insurance Services Office , Inc. with its perm ission.
DATE OF ISSUE: os131 12021
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Policy# 6801 H899998
COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing
If all of the other insurance permits contribution
by equal shares , we will follow this method also.
Under this approach each insurer contributes
equal amounts until it has paid its applicable
limit of insurance or none of the loss remains,
whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will contribute
by limits. Under this method, each insurer' s
share is based on the ratio of its applicable limit
of insurance to the total applicable limits of
insurance of all insurers.
d. Primary And Non-Contributory Insurance If
Required By Written Contract
If you specifically agree in a written contract or
agreement that the insurance afforded to an
insured under this Coverage Part must apply on
a primary basis, or a primary and noncontributory basis, this insurance is primary to other insurance that is available to such insured
which covers such insured as a named insured,
and we will not share with that other insurance,
provided that:
1) The " bodily injJry'' or "property damage" for
which coverage is sought occurs ; and
2) The " personal and advertising injury" for
which coverage is sought is caused by an
offense that is committed;
subsequent to the signing of that contract or
agreement by you .
5. Premium Audit
a. We will compute all premiums for this Coverage
Part in accordance with our rules and rates.
b. Premium shown in this Coverage Part as
advance premium is a deposit premium only. At
the close of each audit period we will compute
the earned premium for that period and send
notice to the first Named Insured. The due date
for audit and retrospective premiums is the date
shown as the due date on the bill. If the sum of
the advance and audit premiums paid for the
policy period is greater than the earned
premium, we will return the excess to the first
Named Insured.
c. The first Named Insured must keep records of
the information we need for premium
computation , and send us copies at such times
as we may request.
6. Representations
By accepting this policy, you agree :
a. The statements in the Declarations are
accurate and complete ;
b. Those statements are based upon
representations you made to us ; and
c. We have issued this policy in reliance upon
your representations.
The unintentional omission of, or unintentional error
in, any information prmiided by you which we relied
upon in issuing this policy will not prejudice your
rights under this insurance . However, this provision
does not affect our right to collect additional
premium or to exercise our rights of cancellation or
nonrenewal in accordance with applicable insurance
laws or r1>nulations .
7. Separation Of Insureds
Except with respect to the Limits of Insurance, and
any rights or duties specifically assigned in this
Coverage Part to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom claim
is made or " suit" is brought.
8. Transfer Of Rights Of Recovery Against Others
To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part,
those rights are transferred to us . The insured must
do nothing after loss to impair them. At our request,
the insured will bring " suit" or transfer those rights to us and help us enforce them.
9. When We Do Not Renew
If we decide not to renew this Coverage Part, we will
mail or deliver to the first Named Insured shown in
the Declarations written notice of the nonrenewal
not less than 30 days before the expiration date.
If notice is mailed, proof of mailing will be sufficient proof of notice.
SECTION V - DEFINITIONS
1. " Advertisement" means a notice that is broadcast or published to the general public or specific market
segments about your goods, products or services
for the purpose of attracting customers or
supporters. For the purposes of this definition :
a. Notices that are published include material
placed on the Internet or on similar electronic
means of communication ; and
b . Regarding websites , only that part of a website
that is about your goods , products or services
for the purposes of attracting customers or
supporters is considered an advertisement.