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Contract - 06/10/2023 - 2040
t No. City CIe ,• k , , I w AGREEMENT FOR DESIGN PROFESSIONAL SERVICES BE EEN THE CITY OF CATHED' • L CITY,CALIFO' IA AND INTERWEST CONSULTING GROUP This Agreement for Design Professional Services("Agreement")is entered into as of June 10.2023 ("Effective Date") by and between the City of Cathedral City, a municipal corporation ("City") and Interwest Consulting Group, a California Corporation ("Design Professional"). City and Design Professional are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the"Parties." CITALS A. City has sought, by request for proposals, the performance of the engineering services defined and described particularly in Section 2 of this Agreement. B. Design Professional, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services. C. Design Professional was selected by the City on the basis of Design Professional's demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required. D. Pursuant to the City of Cathedral City's Municipal Code, City has authority to enter into this Design Professional Services Agreement and the City Manager has authority to execute this Agreement. E. The Parties desire to formalize the selection of Design Professional for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein. OPE' • TIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration,the value and adequacy of which are hereby acknowledged,the Parties agree as follows: 1. TERM OF AG' EMENT. Subject to the provisions of Section 21 "Termination of Agreement" of this Agreement,the Term of this Agreement is for two(2)years,ending date of June 30,2025. 2. SCOPE OF SERVICES& SCHEDULE OF PERFO' • NCE. Scope of Services. Design Professional agrees to perform the services set forth in Exhibit "A" "Scope of Services"(hereinafter,the"Services")and made a part of this Agreement by this reference. Schedule of Performance. The Services shall be completed pursuant to the schedule specified in Exhibit"A." Should the Services not be completed pursuant to that schedule,the Design Professional shall - 1 - be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Design Professional to continue performing the Services. 3. ADDITIONAL SERVICES. Design Professional shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 27 "Administration and Implementation" or Section 29 "Amendment" of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services. 4. ALLOWABLE COSTS AND PAYMENTS A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the CONSULTANT's approved Cost Proposal.The specified hourly rates shall include direct salary costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY'S Contract Administrator of itemized invoices in duplicate. B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the approved Cost Proposal and identified in the approved Cost Proposal and in the executed Task Order. C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders, D. After a project to be performed under this AGREEMENT is identified by LOCAL AGENCY,LOCAL AGENCY will prepare a draft Task Order;less the cost estimate. A draft Task Order will identify the scope of services, expected results, project deliverables, period of performance, project schedule and will designate a LOCAL AGENCY Project Coordinator. The draft Task Order will be delivered to CONSULTANT for review.CONSULTANT shall return the draft Task Order within ten(l0)calendar days along with a Cost Estimate, including a written estimate of the number of hours and hourly rates per staff person, any anticipated reimbursable expenses,overhead,fee if any,and total dollar amount. After agreement has been reached on the negotiable items and total cost;the finalized Task Order shall be signed by both LOCAL AGENCY and CONSULTANT. E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation,both of which must be based on the labor and other rates set forth in CONSULTANT's approved Cost Proposal. CONSULTANT shall be responsible for any future adjustments to prevailing wage rates including, but not limited to, base hourly rates and employer payments as determined by the Department of Industrial Relations. CONSULTANT is responsible for paying the appropriate rate, including escalations that take place during the term of the AGREEMENT. F. Reimbursement for transportation and subsistence costs shall not exceed State rates. G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone cost -2 - estimate from the Contract Administrator before exceeding such estimate. H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred. I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY'S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this AGREEMENT. J. A Task Order is of no force or effect until returned to LOCAL AGENCY and signed by an authorized representative of LOCAL AGENCY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by LOCAL AGENCY. K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY'S Contract Administrator of itemized invoices electronically. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than thirty(30)calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number,project title and Task Order number. Credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT prior to the expiration or termination of this AGREEMENT. Invoices shall be e-mailed to JLiJjLorP, cat"re d rale it\, ov or mailed to LOCAL AGENCY's Contract Administrator at the following address: Armando J.Garcia Baldizzone,P.E. City Engineer City of Cathedral City 68700 Avenida Lalo Guerrero Cathedral City,CA 92234 L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this AGREEMENT. M. The total amount payable by LOCAL AGENCY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by amendment. N. If CONSULTANT fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order,no payment will be made until the deliverable has been satisfactorily completed. O. Task Orders may not be used to amend the I. ..e(or the terms)of this AGREEMENT nor to exceed the scope of work under this AGREE I NT. P. The total amount payable by LOCAL AGENCY for all Task Orders resulting from this AGREEMENT shall not exceed $200,000 ($100,000/year). It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this AGREEMENT through Task Orders. - 3 - 5. INSPECTION AND FINAL ACCEPTANCE. City may inspect and accept or reject any of Design Professional's work under this Agreement, either during performance or when completed. City shall reject or finally accept Design Professional's work within sixty(60)days after submitted to City. City shall reject work by a timely written explanation, otherwise Design Professional's work shall be deemed to have been accepted. City's acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Design Professional's work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 17 "Indemnification" and Section 18"Insurance." 6. OWNERSHIP OF DOCUMENTS. All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files,files and other documents prepared,developed or discovered by Design Professional in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Design Professional. Upon completion,expiration or termination of this Agreement,Design Professional shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files,files,and other documents.For the avoidance of doubt,nothing in this Agreement shall be understood to grant City rights to pre-existing intellectual property of Design Professional, including Design Professional software and licensed software,or to any improvements thereto.Design Professional shall have no liability arising from the use of any documents for any purpose or on any project other than that for which it was produced. If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models,designs,drawings,photographs,studies,surveys,reports,data,notes,computer files,files or other documents prepared, developed or discovered by Design Professional in the course of providing the Services pursuant to this Agreement, Design Professional's guarantees and warranties in Section 9 "Standard of Performance; Familiarity With Work"of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents. 7. DESIGN PROFESSIONAL'S BOOKS AND RECORDS. For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants,and LOCAL AGENCY shall maintain all books, documents,papers,accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT's Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations(including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSUTANT, Subconsultants,and the CONSULTANT's Independent CPA, that are pertinent to the AGREEMENT for audits,examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation. -4 - 8. INDEPENDENT CONTRACTOR. Design Professional is and shall at all times remain a wholly independent contractor and not an officer,employee or agent of City. Design Professional shall have no authority to bind City in any manner, nor to incur any obligation,debt or liability of any kind on behalf of or against City,whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. The personnel performing the Services under this Agreement on behalf of Design Professional shall at all times be under Design Professional's exclusive direction and control. Neither City,nor any elected or appointed boards,officers,officials, employees or agents of City,shall have control over the conduct of Design Professional or any of Design Professional's officers, employees, or agents except as set forth in this Agreement. Design Professional shall not at any time or in any manner represent that Design Professional or any of Design Professional's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Design Professional,nor any of Design Professional's officers,employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Design Professional expressly waives any claim Design Professional may have to any such rights. 9. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK Design Professional represents and warrants that it has the qualifications,experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Design Professional shall at all times faithfully, competently and to the best of its ability,experience and talent,perform all Services. In meeting its obligations under this Agreement,Design Professional shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Design Professional under this Agreement, and shall use such skill, prudence, and diligence as other members of Design Professional's profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit "A" "Scope of Work"that shall also be applicable to Design Professionals work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general. Design Professional warrants that(1)it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES. Design Professional shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Design Professional shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City,nor any elected or appointed boards,officers,officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Design Professional to comply with this section. - 5 - 11. PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR LOBBYING A.The CONSULTANT certifies,to the best of his or her knowledge and belief,that: 1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid,by or on behalf of the CONSULTANT,to any person for influencing or attempting to influence an officer or employee of any local,State,or Federal agency,a Member of the State Legislature or United States Congress,an officer or employee of the Legislature or Congress,or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension,continuation,renewal,amendment,or modification of this AGREEMENT. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency,a Member of Congress, an officer or employee of Congress,or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying,"in accordance with its instructions. B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars($10,000)and not more than one hundred thousand dollars($100,000)for each such failure. C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier sub-agreements,which exceed one hundred thousand dollars($100,000),and that all such subrecipients shall certify and disclose accordingly. 12. PREVAILING WAGE LAWS. A. Covenant to Comply. Consultant covenants that it shall fully comply with all applicable federal and state labor laws(including,without limitation,if applicable,the Prevailing Wage Laws). For purposes of this Section 25(a) only, the term "subcontractors" shall not include suppliers, manufacturers, or distributors. Consultant further covenants that it shall take all practicable steps to ensure that its subcontractors comply with Prevailing Wage Laws if applicable to work performed by subcontractors. References to "Covered Services" hereinafter shall designate such Services as are subject to Prevailing Wage Laws. B. Payroll Records. Consultant and all subcontractors performing Covered Services shall keep an accurate payroll record, showing the name, address, social security number, job classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyperson, apprentice, or other employee. All payroll records shall be certified as being true and correct by Consultant or the subcontractors performing Covered Services keeping such records; and the payroll records shall be available for inspection at all reasonable hours at Consultant's principal office. C. Subcontracts. Any subcontract entered into as a result of this Agreement if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section. -6 - 13. NONDISCRIMINATION and STATEMENT OF COMPLIANCE. A. The CONSULTANT's signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has,unless exempt,complied with the nondiscrimination program requirements of Gov.Code §12990 and 2 CCR§ 8103. B. During the performance of this AGREEMENT,CONSULTANT and its subconsultants shall not deny the AGREEMENT's benefits to any person on the basis of race,religious creed,color,national origin,ancestry,physical disability,mental disability,medical condition,genetic information, marital status, sex,gender,gender identity,gender expression,age, sexual orientation,or military and veteran status,nor shall they unlawfully discriminate,harass,or allow harassment against any employee or applicant for employment because of race,religious creed, color,national origin, ancestry,physical disability,mental disability,medical condition,genetic information,marital status, sex,gender,gender identity,gender expression,age, sexual orientation,or military and veteran status.CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act(Gov.Code §12990 et seq.),the applicable regulations promulgated there under(2 CCR§11000 et seq.),the provisions of Gov.Code §§11135-11139.5,and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code§12990(a-f),set forth 2 CCR§§8100-8504,are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full. D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours,but in no case less than twenty-four(24)hours' notice,to such of its books,records, accounts,and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause. E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT. G. The CONSULTANT,with regard to the work performed under this AGREEMENT,shall act in accordance with Title VI of the Civil Rights Act of 1964(42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall,on the basis of race,color,national origin,religion, sex,age,disability,be exclude d from participation in,denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest. H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally- assisted programs of the U.S.Department of Transportation(49 CFR Part 21 -Effectuation of Title VI of the Civil Rights Act of 1964). Specifically,the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR§21.5,including employment practices and the selection and retention of Subconsultants. - 7 - 14. DISADVANTAGED BUSINESS ENTERPRISES PARTICIPATION A. This Agreement is subject to 49 CFR, Part 26 entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs". Consultants who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal. I B. The goal for DBE participation for this Agreement is Q . Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-01), or in the Consultant Contract DBE Information (Exhibit 10-02) attached hereto in Exhibit D and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant,if the goal is not otherwise met. C. DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract.Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by Consultant to carry out these requirements is a material breach of this contract, which may result in the termination of this Agreement or such other remedy as the City deems appropriate. D. Any subcontract entered into as a result of this contract shall contain all of the provisions of this section. E. A DBE firm may be terminated only with prior written approval from the City and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the termination, Consultant must meet the procedural requirements specified in 49 CFR 26.53(f). F. A DBE performs a Commercially Useful Function(CUF) when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the, contract is commensurate with the work it is actually performing, and other relevant factors. G. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions,particularly those in which DBEs do not participate. H. If a DBE does not perform or exercise responsibility for at least thirty percent (30%)of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of the contract than would be expected on the basis of normal industry practice for the type of work involved,it will be presumed that it is not performing a CUF. I. Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. - 8 - The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. J. Upon completion of the Agreement, a summary of these records shall be prepared and submitted on the form entitled, "Final Report-Utilization of Disadvantaged Business Enterprise (DBE), First-Tier Subconsultants" CEM-2402F [Exhibit 17-F, of the LAPM], certified correct by Consultant or Consultant's authorized representative and shall be furnished to the Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to Consultant when a satisfactory "Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants"is submitted to the Contract Administrator. K. If a DBE subconsultant is decertified during the life of the Agreement, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the Agreement,the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to the City's Contract Administrator within 30 days. 15. COST PRINCIPLES (a) Notwithstanding any other provision of this Agreement, Consultant agrees that the Contract Cost Principles and Procedures set forth in 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the allowability of cost individual items.The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements,Cost Principles,and Audit Requirements for Federal Awards. (b) Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY. (c) In providing the services under this Agreement,Consultant agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Govermnents. (d) Consultant acknowledges that payments made by City to Consultant under this Agreement are subject to audit by the California Department of Transportation ("Caltrans") and/or the federal government. The Consultant agrees to adhere to the Accounting and Auditing Guidelines for contracts with Caltrans available at dot.ca.gov, as well as the federal guidelines set forth herein. Any cost for which payment has been made to Consultant that is determined by a subsequent audit to be unallowable under 49 CFR, Part 18, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., or under Caltrans auditing principals is subject to repayment by Consultant to the City. In such case,the City shall provide Consultant with a copy of the audit findings and Consultant shall make the payment within ten days of City's request. 16. CONFLICTS OF INTEREST. Design Professional covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest,directly or indirectly,which would conflict in any manner with the interests of City or which would in any way hinder Design Professional's performance of the Services. Design Professional - 9 - further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager.Design Professional agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City may determine that Design Professional must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. If such a determination is made, Design Professional shall file the subject Form 700 with the City Clerk's Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request. City understands and acknowledges that Design Professional is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Design Professional is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. City understands and acknowledges that Design Professional will,perform non-related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. 17. CONFIDENTIAL INFORMATION;RELEASE OF INFORMATION. All information gained or work product produced by Design Professional in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Design Professional. Design Professional shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager,except as may be required by law. Design Professional, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City,voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Design Professional gives City notice of such court order or subpoena. If Design Professional, or any officer, employee, agent or subcontractor of Design Professional, provides any information or work product in violation of this Agreement,then City shall have the right to reimbursement and indemnity from Design Professional for any damages, costs and fees, including attorney's fees,caused by or incurred as a result of Design Professional's conduct. Design Professional shall promptly notify City should Design Professional,its officers,employees, agents or subcontractors be served with any summons,complaint, subpoena, notice of deposition,request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Design Professional or be present at any deposition, hearing or similar proceeding. Design Professional agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Design Professional. However,this right to review any such response does not imply or mean the right by City to control,direct,or rewrite said response. - 10 - 18. INDEMNIFICATION. Indemnification by Design Professional. As provided under Civil Code Section 2782.8, Design Professional shall indemnify, protect, defend, and hold harmless City and any and all of its officials, employees,and agents("Indemnified Parties")from and against any and all third-party claims,actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, liabilities, damages,costs and expenses, including attorney's fees and costs, (collectively "Claims")to the extent same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Design Professional, its officers, agents, employees or sub-consultants (or any entity or individual that Design Professional shall bear the legal liability thereof)in the performance of professional services under this Agreement,with the understanding that in the event Claims are found by the trier of fact to have been caused by the joint or concurrent negligence of the City and its contractors and Design Professionals, and Design Professional, damages and expenses from both indemnity and duty to defend obligations shall be borne by each party in proportion to its negligence. Notwithstanding any provision of law to the contrary, Design Professional shall have the right to defend and settle any action for which indemnification is sought, provided that it shall not enter into any settlement that requires an admission of wrongdoing by any indemnitee without that indemnitee's approval.Design Professional's obligations under this Agreement are contingent upon timely receipt of notice of the claim for which indemnification is sought, such that defense of the claim is not prejudiced,and the reasonable assistance of the indemnitee in connection with the defense of the claim. Indemnification from Subcontractors. Design Professional agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every sub- consultant, subcontractor or any other person or entity involved by, for, with or on behalf of Design Professional in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Design Professional fails to obtain such indemnity obligations from others as required here, Design Professional agrees to be fully responsible according to the terms of this section. 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. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Design Professional and shall survive the termination of this Agreement or this section. City's Negligence. The provisions of this section do not apply to Claims occurring as a result of City's sole negligence.The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents. 19. INSURANCE. Design Professional agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit"C" "Insurance"and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Design Professional agrees to provide City with copies of required policies upon request. 20. ASSIGNMENT. The expertise and experience of Design Professional are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Design Professional under this Agreement. In recognition of that interest, Design Professional shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Design Professional's duties or obligations under this Agreement - 11 - without the prior written consent of the City, which shall not be unreasonably delayed or withheld. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 21 "Termination of Agreement." City acknowledges,however,that Design Professional, in the performance of its duties pursuant to this Agreement,may utilize subcontractors. 21. CONTINUITY OF PERSONNEL. Design Professional shall make every reasonable effort to maintain the stability and continuity of Design Professional's staff and subcontractors, if any, assigned to perform the Services. Design Professional shall notify City of any changes in Design Professional's staff and subcontractors, if any, assigned to perform the Services prior to and during any such performance. 22. TERMINATION OF AGREEMENT. City may terminate this Agreement, with or without cause, at any time by giving thirty (30)days written notice of termination to Design Professional. In the event such notice is given,Design Professional shall cease immediately all work in progress. Design Professional may teiminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City. If either Design Professional or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Design Professional,or City may terminate this Agreement immediately upon written notice. Upon termination of this Agreement by either Design Professional or City,all property belonging exclusively to City which is in Design Professional's possession shall be returned to City. Design Professional shall furnish to City a final invoice for work performed and expenses incurred by Design Professional,prepared as set forth in Section 4"Compensation and Method of Payment"of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4"Compensation and Method of Payment"of this Agreement. 23. DEFAULT. In the event that Design Professional is in default under the terms of this Agreement,the City shall not have any obligation or duty to continue compensating Design Professional for any work performed after the date of default. Instead,the City may give notice to Design Professional of the default and the reasons for the default. The notice shall include the timeframe in which Design Professional may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Design Professional is in default,the City shall hold all invoices and shall,when the default is cured,proceed with payment on the invoices. In the alternative, the City may,in its sole discretion,elect to pay some or all of the outstanding invoices during the period of default. If Design Professional does not cure the default, the City may take necessary steps to terminate this Agreement under Section 19"Termination of Agreement." Any failure on the part of the City to give notice of the Design Professional's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. - 12 - 24. EXCUSABLE DELAYS. Design Professional shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Design Professional. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes. 25. COOPE' • TION BY CITY. All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Design Professional in every reasonable way to facilitate,without undue delay,the Services to be performed under this Agreement. 26. NOTICES. All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows: To City: City of Cathedral City Attn: Charles P.McClendon,City Manager 68-700 Avenida Lalo Guerrero Cathedral City,CA 92234 To Design Professional: Interwest Consulting Group Attn:Joe lndrawan,Principal 9320 Chesapeake Drive,#208 San Diego,CA 92123 Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed,three(3)days after deposit of the same in the custody of the United States Postal Service. 27. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of Design Professional represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Design Professional to the performance of its obligations hereunder. 28. • I MINIST' • TION A I I I LE I NTATION. This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 27 "Amendment"and the City Manager's contracting authority under the Cathedral City Municipal Code. - 13 - 29. BI I ING EFFECT. This Agreement shall be binding upon the heirs, executors, administrators,successors and assigns of the Parties. 30. A NDMENT. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Design Professional and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement,as amended, would not exceed the City Manager's contracting authority under the Cathedral City Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void. 31. WA R. Waiver by any Party to this Agreement of any term,condition,or covenant of this Agreement shall not constitute a waiver of any other term,condition,or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Design Professional shall not constitute a waiver of any of the provisions of this Agreement. 32. LAW TO GOVE ' ; VENUE. This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside. 33. ATTO' EYS FEES,COSTS AND EXPENSES. In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees,costs and expenses,in addition to any other relief to which it may be entitled. 34. ENT I AGREEMENT. This Agreement,including the attached Exhibits"A"through"C",is the entire,complete,final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Design Professional and City prior to the execution of this Agreement. No statements,representations or other agreements,whether oral or written,made by any Party which are not embodied herein shall be valid and binding. 35. SEVE' BILITY. If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s). - 14 - 36. CONFLICTING TE' S. Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto,or with the terms of any document incorporated by reference into this Agreement,the terms of this Agreement shall control. - 15 - IN WITNESS WHE OF,the Parties hereto have executed this Agreement on the date and year first-above written. CITY OF CATHED' • L I Y TERWEST CONSULTING GROUP 10. Charles P.McClendon City Manager Its: fvne F rde L•1 TTEST: • . By: p Al//0 PA Its: 4sesi r r erA Ar ra ilo City Clerk APPROVED AS TO F EricS.Vail City Attorney OTE: DESIGN PROFESSIONAL'S SIGNATU S S • LL BE DULY NOTARIZED, • D APPROPRIATE ATTESTATIONS S • LL BE INCLUDED AS • Y BE REQUIRED BY THE BYLAWS,ARTICLES OF INCORPO" • TI ,OR OTHER RULES OR REGULATIONS APPLICABLE TO DESIGN PROFESSIONAL'S BUSINESS ENTITY. - 16 - A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. ALL-PURPOSE ACKNOWLEDG I NT NOTARY FOR CALIFORNIA STATE OF C COUNTY OF ) On JCi J 023 , before me, iv) -e— cia 1)ate Name and Title of Officer(e g "Jane Doe,N'otary Public") personally appeared - -I I I ) Name of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the MICHELLE ANNE AIKEN instrument the person(s),or the entity upon behalf of which the person(s) NOTARY PUBLIC-STATE OF COLORADO acted,executed the instrument. NOTARY10 20214002066 I certify under PENALTY OF PERJURY under the laws of the State of MY COMMISSION EXPIRES JAN 15,2025 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. --7(? ig,TraSto e oi Notary Pu lc OPTIONAL Though this section is optional, completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document. CAPACIT(IES)CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name: Individual • Corporate Officer Title(s) Title or Type of Document Partner(s) Limited General • Attorney-In-Fact Number of Pages Trustee(s) Guardian/Conservator ▪ Other: Date of Document Signer is representing: Name of Person(s)Or Entity(ies) Signer(s)Other Than Named Above A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validit) of that document. ALL-P "OSE ACKNOWLEDG I NT NOTARY FOR CALIFORNIA STATE OF C Co 6 0 4 COUNTY OF RWERSIIDE / ; r On J Li 2023 . before me, • /1-7 A-.c1J- ..7177 c,r / Date Name and Title( Ificer(e.g."Jane Doe,Notary Public") personally appeared k-- Name or cl ignen s1 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their .11,4* authorized capacity(ies), and that by his/her/their signature(s) on the MICHELLE ANNE AIKEN instrument the person(s),or the entity upon behalf of which the person(s) NOTARY PUBLIC-STATE OF COLORADO acted,executed the instrument. NOTARY ID 20214002066 4 MY COMMISSION EXPIRES JAN 15, 2025 I certify under PENALTY OF PERJURY under the laws of the State of, California that the foregoing paragraph is true and correct. it - ver 11.- or NV mr 'Mr 416 WITNESS my hand and official seal. sign1yre-of Notary Public OPTIONAL Though this section is optional,completing this information can deter alternation of the document or fraudulent reattachment of this form to an unintended document. CAPACIT(IES)CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT Signer's Name: Individual " Corporate Officer Title(s) Title or Type of Document Partner(s) " Limited General Attorney-In-Fact Number of Pages Trustee(s) Guardian/Conservator Other: Date of Document Signer is representing: Name of Person(s)Or Entity(ies) Signer(s)Other Than Named Above E IBIT "A" SCOPE OF SERVICES The Consultant is expected to provide weekly engineering support on or off site,as determined by the Director of Engineering/Public Works and/or the City Engineer. The anticipated length of the contract is two years with a starting date on June 10,2023 and ending date on June 30,2025. Typical services to be provided include,but are not limited to,the following: a. Prepare for City signatures any necessary documents,and coordinate with various City Departments to acquire and maintain funding and approvals. b. Perform plan reviews of grading, erosion control, street, storm drain,sanitary sewer,and water improvement plans along with hydrology studies, S 'PPs,and WQMPs prepared by outside design firms and City Engineering Department staff. c. Assist in the preparation of formal and informal requests for proposals for design and/or construction projects and summarize proposals received. d. Monitor and report on project status,budget vs.actual expenditures,and contract time vs. actual time. e. Provide design and construction services for minor Capital Improvement Projects. f. Prepare and track project schedules. g. Prepare correspondence,reports,and memoranda necessary to administer projects. h. Assist with issues associated with the Coachella Valley Transportation Uniform Mitigation Fee(TUMF)Program. i. Other duties as assigned by the Director of Engineering/Public Works and/or the City Engineer. A-1 E IBIT"B" CO ENSATION (See attached rates of compensation.) B-1 ° C*st Pr p*sat Beginning JulyQ1. 2023. the hourly rates Kobsd mhoU be increased based upon the annual increase in the Department of Labor,BumeaupfLobnrStatistinsor successor thereof,ConmunxerPMueIndox(Undod States CItyAveraQa,&U Items(CPI-U). Not Seasonally adjusted,All Urban Consumers, referred to herein as the'CPI")forthe Municipality or,if not reported hmrthm Municipality the GPI for cities of a similar size within the applicable region from the previous calendar year,such increase, however, not hm exceed 49&per annum. The increase will become effective upon publication of the applicable CPI data. If the index decreases,the rates listed shall remain unchanged. Class fflc;�**n Hourly Billing Rate Principalin C6arge—'........_.__.... ............-.._~......^............ .~.... ........._'_.^-..............-...... $24O Principal (�r�nt �dn��n�y�at�n GrantManager........~..-.~~......—.—'-__-........-._^.^~...~^'.~`.^~~~--'—''^^^^—.........^~--~_.. $15E3 Grant Nyriten(Adrminis1i�aton--.~...'....-..-............... ......,,,,,~~.,,,^^^^^^~~.,,`,,__,~...... .,.,,_,,$145 Rpai E��Le Supervising Corporate Broker,........-__.._........_.-._'...... .......'—.....,..._^^~~-.---_ .....$2-5O Senior Project Manager.........-..........~..._ .......... ......,,_~,,.,.^~,.~,,_,.^,~~.__...... ,,.,,,.,,,--- $195 ProjectManager............... ............ .............~—...-..,... ......... ..^... .'~^~`^'^^^`..—^...............~$175 Senior,Acquisition Relocation Agent............... ....... _.. ........................ .~~~~.............. ....... $135 AcqUimitbom /Relocation Agemt....~...~..........~........ --~----.~_.........._......_,_...,..._......$12Q ROWTechnician..... ----......~._._.—~.~..-_............ ^....-~._—...... __..^.~............... .$105 ROWCoordinator.....-._........................._..............~_~...~.~~^^^^`...~...^^'~--..^,.~.. ...........$9D AdniinistrativeSupponL........................... _.~~......._............~..........~.............~.--~^~.,,,^^^�$75 Additional Professional Fees 8uXd�n� Certified Build^rry Official....,.~..........— ........_........,~.....-....-....... ......~...—_....... ........$160 Licensed Plan Review Engineer(structmsal, civil, electrical, mechanical)/Architect—.^,,,,,^,.__.$l55 Supervising S�uCtUnm/ Engineer................ ...............----.......... ..............---^...—____,~,,$185 Senior Structural ..............~.^_-- ...... .......---........._,,~,^^,,,_.............$175 Senior Plans Examiner~.......'--_—..___—___~.......~~~^_^,,,~^,,.,^,,,,~~,,~.^,,.,,.,~~,~,,,~^,.,,$j40 2 CASP-- ...`'^'^'—~^'^~^''^^^^^^' ............ '~^^^^-^^~^'-^^^'~'^~--^^^'^`^~^^^^~^'`^^...... _._..............$125 InspectorN..._.__..............................—_..—..................... ............. ..'$110 InspectorU_.._..__.....-..--_..................... ...... .....---........._.^....... _--_..-$10Q Inspector !...----............_........~~.'~.......^.......,....... ............. __,,^,.^_,,490 PermitTechnician .....~......~..__.._....... .....---~..........~^_^.^..-.~^~---_............-_..~...$80 Fire Protection Engineer...-.--.--.--...__............~..-.—..~^..^_.^...^^^^^.^^_ ..........-.~..4155 Senior Fire Plans Examiner.........--,---~_.......^-.'...~..^...^^...'^^~^^^~-'—'--~.....~.....^~.....-$l3D Fire Plans Examiner/ Fire, Inspector.-~_.................~—. ................-_..~^.^~^.,..-........_--_-$120 |CCBuilding Plans Examiner.............. .--..__........... ........ .......—^^_.,^.......'^----^..~....—$1ZO Senior Code Enforcement Officer...........—.—_---.__---- ............ .--'..~._'-_,.._.....$135 Code Enforcement Officer................ ............~..—.__._----_-_--~-_^^'^—'^-`^^'~.._.....$125 ..............................~.-_.-...................,.,.,.~'~.~_—___,, ......._,~,$75 [uoazruc�i�� ��anaGernen� Conm%muctJom Manager ........'_--....,....~.._~.~ .........~^....~.^...^^^^^'~..~.._.-_._.....~.-- ....$l70 Assistant Construction kNenagmr. ...---- ....... ..,.......~...........—..-.^..~.^-.. ...... ` ......... ~....... $15Q Supervising Public Works Obmerwe/............. ----'.....~_.............~^._-~. ...... --._—_.-. $170 Senior Public VuorkmObserver~...— ....-.-.-.......__.._.......-.-.....-......^-._..._ $160 Public Works Observer A!—,~......~............ ......... ........ .~__.,^__~~^_._,,$150 Public Works O8bmemer|! ..'.—_.... ....... ...._..~.....—.—_----._.. ....... _-..--................_.. $l35 Public Works Observer /..... ...................... ......................... ........................._.,^^.._,,,^^_., ... $120 Lan�s��e [����nRevk�w �erx�es Project ......... __,,~^^__~ .......... ........~_.^_.~,,^.~,,,^',,~,,,..........,^, $165 Senior Landscape Design Reviewer ..~.............~......~.^.......~.~..,—~--^'-_...~..~—__.� $150 Landscape Design Revievmec....... ,---................._._~.........._......~-........^.^^_~^-...^..._...^........ $140 Lamdscape Maintenance Inspector... —.~--'.'~... .......... ..'.........._-.-.^..^....----_.. ......$120 Landscape Fielcl Supervisor......^_...~.........--.._~_---_—^—^~^^-~^_—^^^^^^.~..^_--....$120 P|ann�n� �ar*�mes CornmumhvDeve D/nector.--'-.......—_—......................... ._-._-..^^^..^.-. ............^~..$200 . Planning Manager ^,~^^'^~—^'.--.~.. $185 Principaler^--^—^~'^—^'^~—~^'^^^^^^--^'^^^^^^^~~^^^`^`^^^~—`''^~''--`—~'^~~`---... ......$l7Q Senior Plamneo.......-......---_—.~-__.._.._^....--....^....^'-^^^^'—_~~^'----.'_~----,,$15" Associate Nanmer...... ................. .—~-.-__.._^~....^.............'^.....^`^^'''^^^~..._...................,-$125 Assistant Planner...._........~.......~....._.—..----'........_......'~......... .~^~^..-- ...........$100 PlanningTechniciam..-........-.._--^—._.._......--'_—.'--_^.^'...~~`'^^^ ......_.~............,..$8Q �dn`h`is�ybve ManagementAnalyst U................ ..... ........ .._.............~.__^,~,,^^,,,^,........~,^^_ ----,,,.,~,_.$115 Management AnelymtL_'.._...............~.....—~.._.-----^.^~....~._..._^^^^^^---_..--......$105 SeniorAdministrative............... ........_........... -......~..._...—...—.--~,_.,.,. __~.^',,,~,~,^$95 Administrative Ill ....-.__._......... ..-.....^~'......... ^^..^..-___~~.^,~..^,^_--__^_~~,.,,^_.,.,,$85 AdministrativeU............^ ....... .........__....... ....___,,_.,~.......^,,^,~~~^,~^,~,~,_,'~,'_,..,,__,$80 EXHIBIT "C" INSURANCE A. Insurance Coverages, Service Provider shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Service Provider, its agents,representatives or employees. Service Provider shall procure and maintain the following scope and limits of insurance: Only the following"marked" requirements are applicable: X Commercial General Liability (CGL): Insurance written on an occurrence basis to protect Service Provider and City against liability or claims of liability which may arise out of this Agreement in the amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of two million dollars ($2,000,000). Coverage shall be at least as broad as Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001). There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. additional insured claims or contractual liability. All defense costs shall be outside the limits of the policy. X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less than$1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for each person,in an amount not less than one million dollars($1,000,000)for each accident,and property damage insurance in an amount of not less than one million dollars ($1,000,000). A combined single limit policy with aggregate limits in an amount of not less than $2,000,000 shall be considered equivalent to the said required minimum limits. Coverage shall be at least as broad as Insurance Services Office form number CA 0001 covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the approval of the City. X Workers' Compensation Insurance: Workers' Compensation insurance that includes a minimum of one million dollars ($1,000,000) of employers' liability coverage. Service Provider shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officials,officers,employees,agents and representatives. In the event a claim under the provisions of the California Workers' Compensation Act is filed against City by a bona fide employee of Service Provider participating under this Agreement, Service Provider is to defend and indemnify the City from such claim. X Professional Liability Insurance: Professional liability insurance appropriate to the Service Provider's profession in an amount not less than one million dollars$1,000,000 per claim. This coverage may be written on a"claims made"basis. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to Services performed under this Agreement. The insurance must be maintained for at least three(3)consecutive years following the completion of Service Provider's services or the termination of this Agreement. During this additional three(3)year period, Service Provider shall annually and upon request of the City submit written evidence of this continuous coverage. B-2 B. Other Provisions. Insurance policies required by this Agreement shall contain the following provisions: 1. All Coverages. a. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended,voided,cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail, return receipt requested,has been given to City. b. Insurance is to be placed with insurers with a current A.M.Best's rating of no less than A:VII. 2. Commercial General Liability and Automobile Liability Coverages. a. City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Service Provider performs; products and completed operations of Service Provider; premises owned,occupied or used by Service Provider;or automobiles owned,leased,hired or borrowed by Service Provider. The coverage shall contain no special limitations on the scope of protection afforded to City,and their respective elected and appointed officers,officials, or employees. b. Service Provider's insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Service Provider's insurance. c. Service Provider's insurance shall apply separately to each insured against whom claim is made or suit is brought,except with respect to the limits of the insurer's liability. d. Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers,officials,employees or volunteers. e. The insurer waives all rights of subrogation against the City,its elected or appointed officers,officials, employees or agents. 3. Workers' Compensation Coverage. Unless the City Manager otherwise agrees in writing,the insurer shall agree to waive all rights of subrogation against City,and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Service Provider. C. Other Requirements. Service Provider agrees to deposit with City,at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Service Provider furnish City with copies of original endorsements effecting coverage required by this Exhibit "C". The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete,certified copies of all required insurance policies,at any time. B-3 1. Service Provider shall furnish certificates and endorsements from each sub- contractor identical to those Service Provider provides. 2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers, or the Service Provider shall procure a bond guaranteeing payment of losses and related investigations, claim administration,defense expenses and claims. 3. The procuring of such required policy or policies of insurance shall not be construed to limit Service Provider's liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement. B-4 POLICY#:831.1ENPY9100 COMMERCIAL AUTOMOBILE HA 99 16 03 12 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM To the extent that the provisions of this endorsement provide broader benefits to the "insured" than other provisions of the Coverage Form,the provisions of this endorsement apply. 1. BROAD FORM INSURED d. Any "employee" of yours while using a A. Subsidiaries and Newly Acquired or covered "auto" you don't own, hire or Formed Organizations borrow in your business or your The Named Insured shown in the personal affairs. Declarations is amended to include: C. Lessors as Insureds (1) Any legal business entity other than a Paragraph A.1. -WHO IS AN INSURED-of partnership or joint venture,formed as a Section II -Liability Coverage is amended to subsidiary in which you have an add: ownership interest of more than 50%on e. The lessor of a covered"auto"while the the effective date of the Coverage Form. "auto" is leased to you under a written However, the Named Insured does not agreement if: include any subsidiary that is an (1) The agreement requires you to "insured" under any other automobile policy or would be an "insured" under provide direct primary insurance for the lessor and such a policy but for its termination or the exhaustion of its Limit of Insurance. (2) The"auto"is leased without a driver. (2) Any organization that is acquired or Such a leased "auto" will be considered a formed by you and over which you covered "auto" you own and not a covered maintain majority ownership. However, "auto"you hire. the Named Insured does not include any D. Additional Insured if Required by Contract newly formed or acquired organization: (1) Paragraph A.1. -WHO IS AN INSURED (a) That is a partnership or joint - of Section II - Liability Coverage is venture, amended to add: (b) That is an"insured"under any other f. When you have agreed, in a written policy, contract or written agreement,that a (c) That has exhausted its Limit of person or organization be added as Insurance under any other policy,or an additional insured on your (d) 180 days or more after its business auto policy,such person or acquisition or formation by you, organization is an"insured",but only unless you have given us notice of to the extent such person or the acquisition or formation. organization is liable for "bodily Coverage does not apply to "bodily injury" or"property damage"caused injury" or"property damage"that results by the conduct of an"insured"under from an "accident" that occurred before paragraphs a. or b. of Who Is An you formed or acquired the organization. Insured with regard to the B. Employees as Insureds ownership, maintenance or use of a covered"auto." Paragraph A.1. -WHO IS AN INSURED-of SECTION II - LIABILITY COVERAGE is amended to add: CI 2011,The Hartford(Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc.,with its permission.) Page 1 of 5 If an "employee's" personal insurance also 5. PHYSICAL DAMAGE - ADDITIONAL applies on an excess basis to a covered "auto" TEMPORARY TRANSPORTATION EXPENSE hired or rented by your "employee" on your COVERAGE behalf and at your direction, this insurance will Paragraph A.4.a. of SECTION III - PHYSICAL be primary to the "employee's" personal DAMAGE COVERAGE is amended to provide a insurance, limit of $50 per day and a maximum limit of 3. AMENDED FELLOW EMPLOYEE EXCLUSION $1,000. EXCLUSION 5. - FELLOW EMPLOYEE - of 6. LOAN/LEASE GAP COVERAGE SECTION II - LIABILITY COVERAGE does not Under SECTION III - PHYSICAL DAMAGE apply if you have workers' compensation COVERAGE, in the event of a total "loss" to a insurance in-force covering all of your covered "auto", we will pay your additional legal "employees". obligation for any difference between the actual Coverage is excess over any other collectible cash value of the"auto" at the time of the"loss" insurance, and the"outstanding balance"of the loan/lease. 4. HIRED AUTO PHYSICAL DAMAGE COVERAGE "Outstanding balance" means the amount you if hired "autos" are covered "autos" for Liability owe on the loan/lease at the time of"loss" less Coverage and if Comprehensive, Specified any amounts representing taxes; overdue Causes of Loss, or Collision coverages are payments; penalties, interest or charges provided under this Coverage Form for any resulting from overdue payments; additional "auto" you own, then the Physical Damage mileage charges;excess wear and tear charges; Coverages provided are extended to"autos"you lease termination fees; security deposits not hire or borrow,subject to the following limit, returned by the lessor, costs for extended warranties, credit life Insurance, health, accident The most we will pay for "loss" to any hired or disability insurance purchased with the loan or "auto"is: lease; and carry-over balances from previous (1) $100,000; loans or leases. (2) The actual cash value of the damaged or 7. AIRBAG COVERAGE stolen property at the time of the"loss";or Under Paragraph B. EXCLUSIONS - of (3) The cost of repairing or replacing the SECTION III - PHYSICAL DAMAGE damaged or stolen property, COVERAGE,the following is added: whichever is smallest, minus a deductible. The The exclusion relating to mechanical breakdown deductible will be equal to the largest deductible does not apply to the accidental discharge of an applicable to any owned "auto" for that airbag. coverage.No deductible applies to"loss"caused 8. ELECTRONIC EQUIPMENT - BROADENED by fire or lightning. Hired Auto Physical Damage COVERAGE coverage is excess over any other collectible insurance. Subject to the above limit, deductible a. The exceptions to Paragraphs B.4 - and excess provisions,we will provide coverage EXCLUSIONS -of SECTION III - PHYSICAL equal to the broadest coverage applicable to any DAMAGE COVERAGE are replaced by the covered"auto"you own. following: We will also cover loss of use of the hired"auto" Exclusions 4.c. and 4.d. do not apply to if it results from an "accident', you are legally equipment designed to be operated solely liable and the lessor incurs an actual financial by use of the power from the "auto's" loss, subject to a maximum of $1000 per electrical system that,at the time of"loss", "accident", is: This extension of coverage does not apply to (1) Permanently installed in or upon any "auto" you hire or borrow from any of your the covered"auto"; "employees", partners (if you are a partnership), (2) Removable from a housing unit members (if you are a limited liability company), which is permanently installed in or members of their households. or upon the covered"auto"; (3) An integral part of the same unit housing any electronic equipment described in Paragraphs(1)and(2)above;or ©2011,The Hartford(Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc.,with its permission.) Page 3 of 5 We waive any right of recovery we may have c.Regardless of the number of autos deemed a against any person or organization with whom total loss, the most we will pay under this you have a written contract that requires such Hybrid, Electric, or Natural Gas Vehicle waiver because of payments we make for Payment Coverage provision for any one damages under this Coverage Form. "loss"is$10,000. 16. RESULTANT MENTAL ANGUISH COVERAGE For the purposes of the coverage provision, The definition of "bodily injury" in SECTION V- a.A"non-hybrid"auto is defined as an auto that DEFINITIONS is replaced by the following: uses only an internal combustion engine to "Bodily injury" means bodily injury, sickness or move the auto but does not include autos disease sustained by any person, including powered solely by electricity or natural gas. mental anguish or death resulting from any of b.A "hybrid" auto is defined as an auto with an these. internal combustion engine and one or more 17. EXTENDED CANCELLATION CONDITION electric motors; and that uses the internal combustion engine and one or more electric Paragraph 2. of the COMMON POLICY motors to move the auto, or the internal CONDITIONS - CANCELLATION - applies combustion engine to charge one or more except as follows: electric motors,which move the auto. If we cancel for any reason other than 19. VEHICLE WRAP COVERAGE nonpayment of premium, we will mail or deliver to the first Named Insured written notice of In the event of a total loss to an"auto"for which cancellation at least 60 days before the effective Comprehensive, Specified Causes of Loss, or date of cancellation. Collision coverages are provided under this Coverage Form, then such Physical Damage 18. HYBRID, ELECTRIC, OR NATURAL GAS Coverages are amended to add the following: VEHICLE PAYMENT COVERAGE In addition to the actual cash value of the"auto", In the event of a total loss to a"non-hybrid"auto we will pay up to$1,000 for vinyl vehicle wraps for which Comprehensive, Specified Causes of which are displayed on the covered "auto"at the Loss, or Collision coverages are provided under time of total loss. Regardless of the number of this Coverage Form, then such Physical autos deemed a total loss,the most we will pay Damage Coverages are amended as follows: under this Vehicle Wrap Coverage provision for a.If the auto is replaced with a "hybrid" auto or any one "loss" is $5,000. For purposes of this an auto powered solely by electricity or natural coverage provision, signs or other graphics gas, we will pay an additional 10%, to a painted or magnetically affixed to the vehicle are maximum of$2,500,of the"non-hybrid"auto's not considered vehicle wraps. actual cash value or replacement cost, whichever is less, b.The auto must be replaced and a copy of a bill of sale or new lease agreement received by us within 60 calendar days of the date of"loss," ©2011,The Hartford(Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc.,with its permission.) Page 5 of 5 POLICY#O83UENZV3951 It„ COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions in this policy restrict coverage. (1) The"bodily injury"or"property damage"is Read the entire policy carefully to determine rights, caused by an "occurrence" that takes duties and what is and is not covered, place in the"coverage territory"; Throughout this policy the words "you" and "your" (2) The "bodily injury" or "property damage" refer to the Named Insured shown in the occurs during the policy period; and Declarations, and any other person or organization (3) Prior to the policy period, no insured listed qualifying as a Named Insured under this policy.The under Paragraph 1. of Section II -Who Is words "we", "us" and "our" refer to the stock An Insured and no "employee" authorized insurance company member of The Hartford by you to give or receive notice of an providing this insurance. "occurrence" or claim, knew that the The word "insured" means any person or "bodily injury" or "property damage" had organization qualifying as such under Section II - occurred, in whole or in part. If such a Who Is An Insured. listed insured or authorized "employee" Other words and phrases that appear in quotation knew, prior to the policy period, that the marks have special meaning. Refer to Section V - "bodily injury" or "property damage" Definitions, occurred, then any continuation, change or resumption of such "bodily injury" or SECTION 1-COVERAGES "property damage" during or after the COVERAGE A BODILY INJURY AND PROPERTY policy period will be deemed to have been DAMAGE LIABIUTY known prior to the policy period. 1. Insuring Agreement c. "Bodily injury" or "property damage" will be a. We will pay those sums that the insured deemed to have been known to have becomes legally obligated to pay as damages occurred at the earliest time when any because of "bodily injury" or "property insured listed under Paragraph 1.of Section II damage"to which this insurance applies. We - Who Is An Insured or any "employee" will have the right and duty to defend the authorized by you to give or receive notice of insured against any "suit" seeking those an"occurrence"or claim: damages. However, we will have no duty to (1) Reports all, or any part, of the "bodily defend the insured against any"suit" seeking injury" or "property damage" to us or any damages for "bodily injury" or "property other insurer; damage" to which this insurance does not (2) Receives a written or verbal demand or apply. We may, at our discretion, investigate claim for damages because of the "bodily any"occurrence"and settle any claim or"suit" injury"or"property damage";or that may result.But: (3) Becomes aware by any other means that (1) The amount we will pay for damages is "bodily injury" or "property damage" has limited as described in Section III- Limits occurred or has begun to occur. Of Insurance;and d. Damages because of "bodily injury" include (2) Our right and duty to defend ends when damages claimed by any person or we have used up the applicable limit of organization for care, loss of services or insurance in the payment of judgments or death resulting at any time from the "bodily settlements under Coverages A or B or injury". medical expenses under Coverage C. e. Incidental Medical Malpractice And Good No other obligation or liability to pay sums or Samaritan Coverage perform acts or services is covered unless explicitly provided for under Supplementary "Bodily injury" arising out of the rendering of Payments-Coverages A and B. or failure to render the following health care services by any "employee" or "volunteer b. This insurance applies to "bodily injury" and worker" shall be deemed to be caused by an "property damage"only if: "occurrence"for: HG 00 01 09 16 Page 1 of 21 ©2016 The Hartford (Includes copyrighted material of Insurance Services Office, Inc.with its permission.) (a) Employment by the insured;or (c)Which are or were at any time (b)Performing duties related to the transported, handled, stored, treated, conduct of the insured's business;or disposed of, or processed as waste by or for: (2) The spouse, child, parent, brother or sister of that "employee" as a consequence of (i) Any insured;or Paragraph(1)above. (ii) My person or organization for This exclusion applies: whom you may be legally (1) Whether the insured may be liable as an responsible; employer or in any other capacity;and (d)At or from any premises, site or (2) To any obligation to share damages with location on which any insured or any or repay someone else who must pay contractors or subcontractors working damages because of the injury. directly or indirectly on any insured's behalf are performing operations If the This exclusion does not apply to liability "pollutants" are brought on or to the assumed by the insured under an "insured premises, site or location in connection contract". with such operations by such insured, f. Pollution contractor or subcontractor. However, (1) "Bodily injury" or "property damage" this subparagraph does not apply to: arising out of the actual, alleged or (I) "Bodily injury"or"property damage" threatened discharge, dispersal, seepage, arising out of the escape of fuels, migration, release or escape of lubricants or other operating fluids "pollutants": which are needed to perform the (a)At or from any premises, site or normal electrical, hydraulic or location which is or was at any time mechanical functions necessary for owned or occupied by, or rented or the operation of"mobile equipment" loaned to, any insured. However, this or its parts, if such fuels, lubricants subparagraph does not apply to: or other operating fluids escape (I) "Bodily injury" if sustained within a from a vehicle part designed to building and caused by smoke, hold, store or receive them. This fumes, vapor or soot produced by exception does not apply if the or originating from equipment that "bodily injury"or"property damage" is used to heat, cool or dehumidify arises out of the intentional the building, or equipment that is discharge, dispersal or release of used to heat water for personal the fuels, lubricants or other use, by the building's occupants or operating fluids, or if such fuels, their guests; lubricants or other operating fluids (ii) "Bodily injury"or"property damage" are brought on or to the premises, for which you may be held liable, if site or location with the intent that you are a contractor and the owner they be discharged, dispersed or or lessee of such premises, site or released as part of the operations location has been added to your being performed by such insured, policy as an additional insured with contractor or subcontractor; respect to your ongoing operations (ii) "Bodily injury"or"property damage" performed for that additional sustained within a building and insured at that premises, site or caused by the release of gases, location and such premises, site or fumes or vapors from materials location is not and never was brought Into that building in owned or occupied by, or rented or connection with operations being loaned to, any insured, other than performed by you or on your behalf that additional insured;or by a contractor or subcontractor;or (iii) "Bodily injury"or"property damage" (iii) "Bodily injury"or"property damage" arising out of heat, smoke or fumes arising out of heat, smoke or fumes from a"hostile fire"; from a"hostile fire";or (b)At or from any premises, site or (e)At or from any premises, site or location which is or was at any time location on which any insured or any used by or for any insured or others for contractors or subcontractors working the handling, storage, disposal, directly or indirectly on any insured's processing or treatment of waste; behalf are performing operations if the HG 00 01 09 16 Page 3 of 21 enhancement, restoration or maintenance m. Damage To Impaired Property Or Property of such property for any reason, including Not Physically Injured prevention of injury to a person or damage "Property damage" to "impaired property" or to another's property; property that has not been physically injured, (2) Premises you sell, give away or abandon, arising out of: if the "property damage" arises out of any (1) A defect, deficiency, inadequacy or part of those premises; dangerous condition in "your product" or (3) Property loaned to you; "your work";or (4) Personal property in the care, custody or (2) A delay or failure by you or anyone acting control of the insured; on your behalf to perform a contract or (5) That particular part of real property on agreement in accordance with its terms. which you or any contractors or This exclusion does not apply to the loss of subcontractors use of other property arising out of sudden working directly or indirectly on your behalf and accidental physical injury to "your are performing operations, if the"property product" or"your work" after it has been put damage"arises out of those operations;or to its intended use. (6) That particular part of any property that n. Recall Of Products, Work Or impaired must be restored, repaired or replaced Property because "your work" was incorrectly performed on it. Damages claimed for any loss, cost or expense incurred by you or others for the loss Paragraphs (1), (3) and (4) of this exclusion of use, withdrawal, recall, inspection, repair, do not apply to"property damage"(other than replacement,adjustment, removal or disposal damage by fire) to premises, including the of: contents of such premises,rented to you for a period of seven or fewer consecutive days.A (1) "Your product"; separate limit of insurance applies to Damage (2) "Your work";or To Premises Rented To You as described in (3) "Impaired property"; Section III-Limits Of Insurance. if such product,work,or property is withdrawn Paragraph(2)of this exclusion does not apply or recalled from the market or from use by if the premises are "your work" and were never occupied, rented or held for rental by any person or organization because of a known or suspected defect, deficiency, you. inadequacy or dangerous condition in it. Paragraphs (3) and (4) of this exclusion do o. Personal And Advertising Injury not apply to "property damage" arising from the use of elevators. "Bodily injury" arising out of "personal and Paragraphs (3), (4), (5) and (6) of this advertising injury". exclusion do not apply to liability assumed p. Access or Disclosure Of Confidential Or under a sidetrack agreement. Personal Information And Data-related Paragraphs (3) and (4) of this exclusion do Liability not apply to "property damage" to borrowed Damages arising out of: equipment while not being used to perform (1) Any access to or disclosure of any operations at the job site. person's or organization's confidential or Paragraph(6)of this exclusion does not apply personal information, including patents, to "property damage" included in the trade secrets, processing methods, "products-completed operations hazard". customer lists, financial information, credit k. Damage To Your Product card information, health information or any "Property damage" to "your product" arising other type of nonpublic information;or out of it or any part of it. (2) The loss of, loss of use of, damage to, I. Damage To Your Work corruption of, inability to access, or "Property damage" to "your work" arising out inability to manipulate electronic data. of it or any part of it and included in the This exclusion applies even if damages are "products-completed operations hazard". claimed for notification costs, credit This exclusion does not apply if the damaged monitoring expenses, forensic expenses, work or the work out of which the damage public relations expenses or any other loss, arises was performed on your behalf by a cost or expense incurred by you or others subcontractor. arising out of that which is described in Paragraph(1)or(2)above. NG 00 01 0916 Page 5 of 21 settlements under Coverages A or B or h. Wrong Description Of Prices medical expenses under Coverage C. "Personal and advertising injury"arising out of No other obligation or liability to pay sums or the wrong description of the price of goods, perform acts or services is covered unless products or services. explicitly provided for under Supplementary I. Infringement Of intellectual Property Payments-Coverages A and B. Rights b. This insurance applies to "personal and (1) "Personal and advertising injury" arising advertising injury" caused by an offense out of any actual or alleged infringement arising out of your business but only if the or violation of any intellectual property offense was committed in the 'coverage rights such as copyright, patent, territory"during the policy period, trademark,trade name,trade secret, trade 2. Exclusions dress, service mark or other designation of origin or authenticity;or This insurance does not apply to: a. Knowing Violation Of Rights Of Another (2) Any injury or damage alleged in any clam or "suit" that also alleges an infringement "Personal and advertising injury"arising out of or violation of any intellectual property an offense committed by, at the direction or right, whether such allegation of with the consent or acquiescence of the infringement or violation Is made by you or insured with the expectation of inflicting by any other party involved in the claim or "personal and advertising injury". "suit", regardless of whether this b. Material Published With Knowledge Of insurance would otherwise apply. Falsity However, this exclusion does not apply if the "Personal and advertising injury"arising out of only allegation in the claim or"suit" involving oral, written or electronic publication, in any any intellectual property right is limited to: manner, of material, if done by or at the (1) Infringement,in your"advertisement",of: direction of the insured with knowledge of its falsity. (a) Copyright; c. Material Published Prior To Policy Period (b) Slogan;or "Personal and advertising injury"arising out of (c) Title of any literary or artistic work; or oral, written or electronic publication, in any (2) Copying, in your "advertisement", a manner, of material whose first publication person's or organization's "advertising took place before the beginning of the policy idea"or style of"advertisement". period. j. Insureds In Media And Internet Type d. Criminal Acts Businesses "Personal and advertising injury"arising out of "Personal and advertising injury" committed a criminal act committed by or at the direction by an insured whose business is: of the insured. (1) Advertising, broadcasting, publishing or e. Contractual Liability telecasting; "Personal and advertising injury"for which the (2) Designing or determining content of web insured has assumed liability in a contract or sites for others;or agreement. This exclusion does not apply to (3) An Internet search, access, content or liability for damages that the insured would service provider. have in the absence of the contract or However, this exclusion does not apply to agreement. Paragraphs a., b. and c. of the definition of f. Breach Of Contract "personal and advertising injury" under the "Personal and advertising injury"arising out of a Definitions Section. breach of contract,except an implied contract to For the purposes of this exclusion,the placing use another's "advertising idea" in your of frames, borders or links, or advertising, for "advertisement", you or others anywhere on the Internet, is not g. Quality Or Performance Of Goods-Failure by itself, considered the business of To Conform To Statements advertising, broadcasting, publishing or "Personal and advertising injury"arising out of telecasting. the failure of goods, products or services to k. Electronic Chatrooms Or Bulletin Boards conform with any statement of quality or "Personal and advertising injury"arising out of performance made in your"advertisement", an electronic chatroom or bulletin board the HG 00 01 0916 Page 7 of 21 This exclusion applies: COVERAGE C MEDICAL PAYMENTS (1) Whether the injury-causing event 1. Insuring Agreement described in the definition of"employment- a. We will pay medical expenses as described related practices" occurs before below for "bodily injury" caused by an employment, during employment or after accident: employment of that person; (1) On premises you own or rent; (2) Whether the insured may be liable as an (2) On ways next to premises you own or employer or in any other capacity;and rent;or (3) To any obligation to share damages with or repay someone else who must pay (3) Because of your operations; damages because of the injury, provided that: v. Asbestos (1) The accident takes place in the "coverage (1) "Personal and advertising injury" arising territory"and during the policy period; out of the"asbestos hazard". (2) The expenses are incurred and reported (2) Any damages, judgments, settlements, to us within three years of the date of the loss,costs or expenses that: accident;and (a) May be awarded or incurred by reason (3) The injured person submits to of any claim or suit alleging actual or examination, at our expense, by threatened injury or damage of any physicians of our choice as often as we nature or kind to persons or property reasonably require. which would not have occurred in b. We will make these payments regardless of whole or in part but for the "asbestos fault These payments will not exceed the hazard"; applicable limit of insurance. We will pay (b)Arise out of any request, demand, reasonable expenses for: order or statutory or regulatory (1) First aid administered at the time of an requirement that any insured or others accident; test for, monitor, clean up, remove, (2) Necessary medical, surgical, X-ray and encapsulate, contain, treat, detoxify or dental services, including prosthetic neutralize or in any way respond to or devices;and assess the effects of an "asbestos hazard";or (3) Necessary ambulance, hospital, professional nursing and funeral services. (c)Arise out of any claim or suit for damages because of testing for, 2. Exclusions monitoring, cleaning up, removing, We will not pay expenses for"bodily injury": encapsulating, containing, treating, a. Any Insured detoxifying or neutralizing or in any way responding to or assessing the To any insured,except"volunteer workers". effects of an"asbestos hazard". b. Hired Person w. Access Or Disclosure Of Confidential Or To a person hired to do work for or on behalf Personal Information of any insured or a tenant of any insured. "Personal and advertising injury"arising out of c. Injury On Normally Occupied Premises any access to or disclosure of any person's or To a person injured on that part of premises organization's confidential or personal you own or rent that the person normally information, including patents, trade secrets, occupies. processing methods, customer lists, financial d. Workers Compensation And Similar Laws information, credit card information, health information or any other type of nonpublic To a person, whether or not an "employee" of information, any insured, if benefits for the"bodily injury"are payable or must be provided under a workers' This exclusion applies even if damages are compensation or disability benefits law or a claimed for notification costs, credit similar law. monitoring expenses, forensic expenses, public relations expenses or any other loss, C. Athletics Activities cost or expense incurred by you or others To a person injured while practicing, arising out of any access to or disclosure of instructing or participating in any physical any person's or organization's confidential or exercises or games, sports, or athletic personal information. contests. FIG 00 01 09 16 Page 9 of 21 SECTION II WHO IS AN INSURED "volunteer worker as a consequence 1. If you are designated in the Declarations as: of Paragraph(1)(a)above; a. An individual, you and your spouse are (c)For which there is any obligation to insureds, but only with respect to the conduct share damages with or repay someone of a business of which you are the sole else who must pay damages because owner. of the injury described in Paragraphs (1)(a)or(1)(b)above;or b. A partnership or joint venture, you are an (d)Arising out of his or her providing or insured. Your members, your partners, and their spouses are also insureds, but only with failing to provide professional health respect to the conduct of your business, care services. c. A limited liability company, you are an If you are not in the business of providing insured.Your members are also insureds, but professional health care services: only with respect to the conduct of your (a)Subparagraphs(1)(a), (1)(b)and (1)(c) business. Your managers are insureds, but above do not apply to any"employee" only with respect to their duties as your or"volunteer worker" providing first aid managers. services;and d. An organization other than a partnership,joint (b)Subparagraph (1)(d) above does not venture or limited liability company, you are apply to any nurse,emergency medical an insured. Your "executive officers" and technician or paramedic employed by directors are insureds,but only with respect to you to provide such services. their duties as your officers or directors. Your (2) "Property damage"to property: stockholders are also insureds, but only with respect to their liability as stockholders. (a)Owned,occupied or used by, e. A trust, you are an insured.Your trustees are (b)Rented to, in the care, custody or also insureds, but only with respect to their control of, or over which physical duties as trustees. control is being exercised for any purpose by 2. Each of the following is also an insured: you, any of your "employees", "volunteer a. Employees And Volunteer Workers workers", any partner or member (if you Your "volunteer workers" only while are a partnership or joint venture), or any performing duties related to the conduct of member (if you are a limited liability your business, or your "employees", other company). than either your"executive officers"(if you are b. Real Estate Manager an organization other than a partnership,joint venture or limited liability company) or your Any person (other than your "employee" or "volunteer worker"), or any organization while managers (if you are a limited liability acting as your real estate manager. company), but only for acts within the scope of their employment by you or while c. Temporary Custodians Of Your Property performing duties related to the conduct of Any person or organization having proper your business, temporary custody of your property if you die, However, none of these "employees" or but only: "volunteer workers"are insureds for: (1) With respect to liability arising out of the (1) "Bodily injury"or"personal and advertising maintenance or use of that property;and injury": (2) Until your legal representative has been (a)To you,to your partners or members (if appointed. you are a partnership or joint venture), d. Legal Representative If You Die to your members (if you are a limited liability company), to a co-"employee" Your legal representative if you die, but only with respect to duties as such. That while in the course of his or her employment or performing duties representative will have all your rights and Part. related to the conduct of your duties under this Coverage Pa business, or to your other "volunteer e. Unnamed Subsidiary workers" while performing duties My subsidiary, and subsidiary thereof, of related to the conduct of your yours which is a legally incorporated entity of business; which you own a financial interest of more (b)To the spouse, child, parent, brother or than 50% of the voting stock on the effective sister of that co-"employee" or that date of the Coverage Part. HG 00 01 09 16 Page 11 of 21 (h)"Bodily injury" or "property damage" omissions of those acting on your behalf: arising out of the sole negligence of the (1) In connection with your premises;or vendor for its own acts or omissions or (2) In the performance of your ongoing those of its employees or anyone else operations performed by you or on your acting on its behalf. However, this behalf. exclusion does not apply to: With respect to the insurance afforded these (i)The exceptions contained in Sub- additional insureds, the following additional paragraphs(d)or(t);or exclusion applies; (II) Such inspections, adjustments, This insurance does not apply to "bodily tests or servicing as the vendor has injury", "property damage" or "personal and agreed to make or normally advertising injury" arising out of the rendering undertakes to make in the usual of or the failure to render any professional course of business, in connection services by or for you, including: with the distribution or sale of the products. 1. The preparing, approving, or failing to prepare or approve, maps,shop drawings, (2) This insurance does not apply to any opinions, reports, surveys, field orders, insured person or organization, from change orders or drawings and whom you have acquired such products, specifications;or or any ingredient, part or container, 2. Supervisory, inspection, architectural or entering into, accompanying or containing such products. engineering activities. b. Lessors Of Equipment This exclusion applies even if the claims against any insured allege negligence or (1) Any person(s) or organization(s) from other wrongdoing in the supervision, hiring, whom you lease equipment; but only with employment, training or monitoring of others respect to their liability for "bodily injury", by that insured, if the "occurrence" which "property damage" or "personal and caused the "bodily injury" or "property advertising injury" caused, in whole or in damage", or the offense which caused the part, by your maintenance, operation or "personal and advertising injury", involved the use of equipment leased to you by such rendering of or the failure to render any person(s)or organization(s). professional services by or for you. (2) With respect to the insurance afforded to e. Permits Issued By State Or Political these additional insureds this insurance Subdhrisions does not apply to any"occurrence" which Any state or political subdivision, but only with takes place after the equipment lease respect to operations performed by you or on expires. your behalf for which the state or political c. Lessors Of Land Or Premises subdivision has issued a permit. Any person or organization from whom you With respect to the insurance afforded these lease land or premises, but only with respect additional insureds, this insurance does not to liability arising out of the ownership, apply to: maintenance or use of that part of the land or premises leased to you. (1) "Bodily injury", "property damage" or "personal and advertising injury" arising With respect to the insurance afforded these out of operations performed for the state additional insureds the following additional or municipality,or exclusions apply: (2) "Bodily injury" or "property damage" This insurance does not apply to: included within the "products-completed 1. Any "occurrence" which takes place after operations hazard". you cease to lease that land;or f. Any Other Party 2. Structural alterations, new construction or Any other person or organization who is not demolition operations performed by or on an additional insured under Paragraphs a. behalf of such person or organization, through e. above, but only with respect to d. Architects,Engineers Or Surveyors liability for "bodily injury", "property damage" Any architect, engineer, or surveyor, but only or"personal and advertising injury"caused, in with respect to liability for "bodily injury", whole or in part, by your acts or omissions or "property damage" or "personal and the acts or omissions of those acting on your advertising Injury"caused, in whole or in part, behalf: by your acts or omissions or the acts or (1) In the performance of your ongoing operations; HG 00 01 09 16 Page 13 of 21 In the case of damage by fire, lightning or b. Notice Of Claim explosion, the Damage to Premises Rented To If a claim is made or"suit" is brought against You Limit applies to all damage proximately any insured, you or any additional insured caused by the same event, whether such must: damage results from fire, lightning or explosion or any combination of these. (1) immediately record the specifics of the 7. Medical Expense Limit claim or"suit"and the date received;and (2) Notify us as soon as practicable. Subject to 5.above,the Medical Expense Limit is the most we will pay under Coverage C for all You or any additional insured must see to it medical expenses because of "bodily injury" that we receive written notice of the claim or sustained by any one person. "suit"as soon as practicable. 8. How Limits Apply To Additional Insureds c. Assistance And Cooperation Of The Insured if you have agreed in a written contract or written agreement that another person or organization You and any other involved insured must be added as an additional insured on your policy, (1) immediately send us copies of any the most we will pay on behalf of such additional demands, notices, summonses or legal insured is the lesser of: papers received in connection with the a. The limits of insurance specified in the written claim or"suit"; contract or written agreement;or (2) Authorize us to obtain records and other b. The Limits of Insurance shown in the information; Declarations. (3) Cooperate with us in the investigation or Such amount shall be a part of and not in settlement of the daim or defense against addition to Limits of Insurance shown in the the"suit";and Declarations and described in this Section. (4) Assist us, upon our request, in the The Limits of Insurance of this Coverage Part apply enforcement of any right against any person separately to each consecutive annual period and to or organization which may be liable to the any remaining period of less than 12 months, insured because of injury or damage to starting with the beginning of the policy period which this insurance may also apply. shown in the Declarations, unless the policy period d. Obligations At The Insureds Own Cost is extended after issuance for an additional period of No insured will, except at that insured's own less than 12 months. in that case, the additional cost, voluntarily make a payment, assume period will be deemed part of the last preceding any obligation, or incur any expense, other period for purposes of determining the Limits of than for first aid,without our consent. Insurance. e. Additional Insureds Other Insurance SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS If we cover a claim or "suit" under this 1. Bankruptcy Coverage Part that may also be covered by y other insurance available to an additional Bankruptcy or insolvency of the insured or of the insured, such additional insured must submit insured's estate will not relieve us of our such claim or "suit" to the other insurer for obligations under this Coverage Part. defense and indemnity. 2. Duties In The Event Of Occurrence, Offense, However,this provision does not apply to the Claim Or Suit extent that you have agreed in a written a. Notice Of Occurrence Or Offense contract or written agreement that this You or any additional insured must see to it insurance is primary and non-contributory that we are notified as soon as practicable of with the additional insured's own insurance. an "occurrence" or an offense which may f. Knowledge Of An Occurrence, Offense, result in a claim. To the extent possible, Claim Or Suit notice should include: Paragraphs a. and b. apply to you or to any (1) How,when and where the"occurrence"or additional insured only when such offense took place; "occurrence",offense,claim or"suit"is known (2) The names and addresses of any injured to: persons and witnesses;and (1) You or any additional insured that is an (3) The nature and location of any injury or individual; damage arising out of the "occurrence"or (2) Any partner, if you or the additional offense. insured is a partnership; HG 00 01 0916 Page 15 of 21 • Paragraphs (a) and (b) do not apply to computation, and send us copies at such other insurance to which the additional times as we may request. insured has been added as an additional 6. Representations insured. a. When You Accept This Policy When this insurance is excess, we will have no duty under Coverages A or B to defend By accepting this policy,you agree: the insured against any "suit" if any other (1) The statements in the Declarations are insurer has a duty to defend the insured accurate and complete; against that"suit". If no other insurer defends, (2) Those statements are based upon we will undertake to do so, but we will be representations you made to us;and entitled to the insured's rights against all those other insurers. (3) We have issued this policy in reliance upon your representations. When this insurance is excess over other b. Unintentional Failure To Disclose Hazards insurance, we will pay only our share of the amount of the loss, if any, that exceeds the If unintentionally you should fail to disclose all sum of: hazards relating to the conduct of your (1) The total amount that all such other business that exist at the inception date of insurance would pay for the loss in the this Coverage Part, we shall not deny absence of this insurance;and coverage under this Coverage Part because (2) The total of all deductible and self-Insured of such failure. amounts under all that other insurance. 7. Separation Of Insureds We will share the remaining loss, If any, with Except with respect to the Limits of insurance, any other insurance that is not described in and any rights or duties specifically assigned in this Excess insurance provision and was not this Coverage Part to the first Named Insured, bought specifically to apply in excess of the this insurance applies: Limits of Insurance shown in the Declarations a. As if each Named Insured were the only of this Coverage Part. Named Insured;and c. Method Of Sharing b. Separately to each insured against whom if all of the other insurance permits claim is made or"suit"is brought. contribution by equal shares, we will follow 8. Transfer Of Rights Of Recovery Against this method also. Under this approach each Others To Us insurer contributes equal amounts until it has paid its applicable limit of insurance or none a. Transfer Of Rights Of Recovery of the loss remains,whichever comes first. If the insured has rights to recover all or part If any of the other Insurance does not permit of any payment, including Supplementary contribution by equal shares, we will Payments, we have made under this contribute by limits. Under this method, each Coverage Part, those rights are transferred to insurer's share is based on the ratio of its us. The insured must do nothing after loss to applicable limit of insurance to the total impair them. At our request, the insured will applicable limits of insurance of all insurers. bring "suit" or transfer those rights to us and 5. Premium Audit help us enforce them. a. We will compute all premiums for this b. Waiver Of Rights Of Recovery (Waiver Of Coverage Part in accordance with our rules Subrogation) and rates. If the insured has waived any rights of b. Premium shown in this Coverage Part as recovery against any person or organization advance premium is a deposit premium only. for all or part of any payment, including At the close of each audit period we will Supplementary Payments, we have made compute the earned premium for that period under this Coverage Part, we also waive that and send notice to the first Named Insured. right, provided the insured waived their rights The due date for audit and retrospective of recovery against such person or premiums is the date shown as the due date organization in a contract, agreement or on the bill. If the sum of the advance and permit that was executed prior to the injury or audit premiums paid for the policy period is damage. greater than the earned premium, we will 9. When We Do Not Renew return the excess to the first Named insured. If we decide not to renew this Coverage Part, we c. The first Named Insured must keep records of will mail or deliver to the first Named Insured the information we need for premium shown in the Declarations written notice of the HG 00 01 0916 Page 17 of 21 Premises Rented To You Limit described in 14."Loading or unloading" means the handling of Section III-Limits of Insurance; property: b. A sidetrack agreement; a. After it is moved from the place where it is c. Any easement or license agreement, accepted for movement into or onto an including an easement or license agreement aircraft,watercraft or"auto"; in connection with construction or demolition b. While it is in or on an aircraft, watercraft or operations on or within 50 feet of a railroad; "auto";or d. An obligation, as required by ordinance, to c. While it is being moved from an aircraft, indemnify a municipality, except in connection watercraft or "auto" to the place where it is with work for a municipality; finally delivered; e. An elevator maintenance agreement; but 'loading or unloading" does not include the f. That part of any other contract or agreement movement of property by means of a mechanical pertaining to your business (including an device, other than a hand truck, that is not indemnification of a municipality in connection attached to the aircraft,watercraft or"auto". with work performed for a municipality) under 15."Mobile equipment" means any of the following which you assume the tort liability of another types of land vehicles, including any attached party to pay for "bodily injury" or "property damage" to a third person or organization, machinery or equipment provided the "bodily injury" or "property a. Bulldozers,farm machinery,forklifts and other damage" is caused, in whole or in part, by vehicles designed for use principally off public you or by those acting on your behalf. Tort roads; liability means a liability that would be b. Vehicles maintained for use solely on or next imposed by law in the absence of any to premises you own or rent; contract or agreement. c. Vehicles that travel on crawler treads; Paragraph f. includes that part of any contract d. Vehicles, whether self-propelled or not, or agreement that indemnifies a railroad for "bodily injury" or "property damage" arising maintained primarily to provide mobility to out of construction or demolition operations, permanently mounted: within 50 feet of any railroad property and (1) Power cranes,shovels,loaders,diggers or affecting any railroad bridge or trestle,tracks, drills;or road-beds,tunnel, underpass or crossing. (2) Road construction or resurfacing However, Paragraph f. does not include that equipment such as graders, scrapers or part of any contract or agreement: rollers; (1) That indemnifies an architect, engineer or e. Vehicles not described in a.,b.,c.or d.above surveyor for injury or damage arising out of: that are not self-propelled and are maintained (a)Preparing, approving, or failing to primarily to provide mobility to permanently prepare or approve, maps, shop attached equipment of the following types: drawings, opinions, reports, surveys, (1) Air compressors, pumps and generators, field orders,change orders or drawings including, spraying, welding, building and specifications;or cleaning, geophysical exploration, lighting (b)Giving directions or instructions, or and well servicing equipment;or failing to give them, if that is the (2) Cherry pickers and similar devices used to primary cause of the injury or damage; raise or lower workers; or f. Vehicles not described in a.,b.,c.or d.above (2) Under which the insured, if an architect, maintained primarily for purposes other than engineer or surveyor, assumes liability for the transportation of persons or cargo. an injury or damage arising out of the However, self-propelled vehicles with the insured's rendering or failure to render following types of permanently attached professional services, including those listed equipment are not"mobile equipment"but will in (1) above and supervisory, inspection, be considered"autos": architectural or engineering activities. 13."Leased worker"means a person leased to you (1) Equipment designed primarily for: by a labor leasing firm under an agreement (a)Snow removal; between you and the labor leasing firm, to (b)Road maintenance, but not perform duties related to the conduct of your construction or resurfacing;;or "Leased Leased worker" does not include a "temporary worker". (c)Street cleaning; H0 00 01 09 16 Page19of21 ROMS, tapes, drives, cells, data processing 25. "Your work": devices or any other media which are used with a. Means: electronically controlled equipment. (1) Work or operations performed by you or 21."Sult" means a civil proceed ing in which on your behalf;and damages because of "bodily injury", "property damage" or "personal and advertising injury" (2) Materials, parts or equipment furnished in to which this insurance applies are alleged. "Suit" connection with such work or operations. indudes: b. Includes a. An arbitration proceeding in which such (1) Warranties or representations made at damages are claimed and to which the any time with respect to the fitness, insured must submit or does submit with our quality, durability, performance or use of consent;or "your work",and b. Any other alternative dispute resolution (2) The providing of or failure to provide proceeding in which such damages are warnings or instructions. claimed and to which the insured submits with our consent. 22."Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions. 23."Volunteer worker"means a person who a. Is not your"employee"; b. Donates his or her work; c. Acts at the direction of and within the scope of duties determined by you; and d. Is not paid a fee, salary or other compensation by you or anyone else for their work performed for you. 24."Your product": a. Means: (1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: (a)You; (b)Others trading under your name; or (c)A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. b. Includes (1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your product"; and (2) The providing of or failure to provide warnings or instructions. c. Does not include vending machines or other property rented to or located for the use of others but not sold. HG 00 01 09 18 Page 21 of 21 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSU• •NCE POLICY WC 00 03 13 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. • Schedule Blanket Waiver Person/Organization: Blanket Waiver-Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiwr. Job Description Waiver Premium All CO Operations 827.00 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 endo ment is issued subsequent to preparation of the policy.) Endorsement Effective: 05/12/2023 Policy No.:SAWC458304 Endorsement No.: Insured: Premium $ Insurance Company.Berkshire Hathaway Homestate Ins Co WC 00 03 13 - " Countersigned by (Ed. 4-84) 1983motional Council on Compensation Insurance