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HomeMy WebLinkAbout23P047 - HARRIS & ASSOCIATES, INC.INSR ADDL SUBR LTR INSR WVD DATE (MM/DD/YYYY) PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) COMMERCIAL GENERAL LIABILITY AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE INSURER(S) AFFORDING COVERAGE NAIC # Y / N N / A (Mandatory in NH) ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? EACH OCCURRENCE $ DAMAGE TO RENTED $PREMISES (Ea occurrence)CLAIMS-MADE OCCUR MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ $ PRO- OTHER: LOCJECT COMBINED SINGLE LIMIT $(Ea accident) BODILY INJURY (Per person)$ANY AUTO OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS AUTOS ONLY HIRED PROPERTY DAMAGE $AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below POLICY NON-OWNED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) ACORDTM CERTIFICATE OF LIABILITY INSURANCE Continental Insurance Company American Casualty Company of Reading PA Continental Casualty Company 7/29/2024 USI Insurance Services, LLC Lic # OG11911 10940 White Rock Rd 2nd Fl Rancho Cordova, CA 95670 Jackie Lahr jackie.lahr@usi.com Harris & Associates, Inc. 1401 Willow Pass Rd Ste 500 Concord, CA 94520 35289 20427 20443 A X X X Ded: 0 X X 7092556540 08/01/2024 08/01/2025 1,000,000 1,000,000 15,000 1,000,000 2,000,000 2,000,000 B X 7092547367 08/01/2024 08/01/2025 1,000,000 A X X X 10000 7092552522 08/01/2024 08/01/2025 10,000,000 10,000,000 B N 7092555985 08/01/2024 08/01/2025 X 1,000,000 1,000,000 1,000,000 C Prof/Poll Liab. Claims-Made AEH591891588 08/01/2024 08/01/2025 $5,000,000 Each Claim $10,000,000 Aggregate Ded: $500,000 RE: Indian Canyon Drive Widening & UPRR Bridge Replacement, City Proj #01-11, Fed Proj #BRLO-5282(017) . General Liability and Auto Liability Additional Insured status granted, if required by written contract/agreement. City of Palm Springs, its officials, employees & agents are additional insureds under General Liability & Auto Liability if required by a written contract 1220532001 (2029) City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 1 of 1 #S45694079/M45681659 HARRIASS5Client#: 2039770 SHPZR 1 of 1 #S45694079/M45681659 This page has been left blank intentionally. Business Auto Policy Policy Endorsement WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US (WAIVER OF SUBROGATION) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Named Insured: HARRIS & ASSOCIATES INC. Endorsement Effective Date: SCHEDULE Name(s) Of Person(s) Or Organization(s): ANY PERSON OR ORGANIZATION FOR WHOM OR WHICH YOU ARE REQUIRED BY WRITTEN CONTRACT OR AGREEMENT TO OBTAIN THIS WAIVER FROM US. YOU MUST AGREE TO THAT REQUIREMENT PRIOR TO LOSS. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. The Transfer Of Rights Of Recovery Against Others To Us condition does not apply to the person(s) or organization(s) shown in the Schedule, but only to the extent that subrogation is waived prior to the "accident" or the "loss" under a contract with that person or organization. Policy No: BUA Policy Effective Date: Form No: CA 04 44 10 13 Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 4; Page: 1 of 1 Underwriting Company: American Casualty Company Of Reading, PA, 151 N Franklin St, Chicago, IL 60606 © Copyright Insurance Services Office, Inc., 2011 7092547367 08/01/2024 08/01/2024 This page has been left blank intentionally. Business Auto Policy Policy Endorsement CONTRACTORS EXTENDED COVERAGE ENDORSEMENT - BUSINESS AUTO PLUS I. A. 1. 2. a. b. (1) (2) 3. 4. 1. 2. B. 1. 2. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM LIABILITY COVERAGE Who Is An Insured The following is added to Section II, Paragraph A.1., Who Is An Insured: a. Any incorporated entity of which the Named Insured owns a majority of the voting stock on the date of inception of this Coverage Form; provided that, b.The insurance afforded by this provision A.1. does not apply to any such entity that is an insured under any other liability "policy" providing auto coverage. Any organization you newly acquire or form, other than a limited liability company, partnership or joint venture, and over which you maintain majority ownership interest. The insurance afforded by this provision A.2.: Is effective on the acquisition or formation date, and is afforded only until the end of the policy period of this Coverage Form, or the next anniversary of its inception date, whichever is earlier. Does not apply to: Bodily injury or property damage caused by an accident that occurred before you acquired or formed the organization; or Any such organization that is an insured under any other liability "policy" providing auto coverage. Any person or organization that you are required by a written contract to name as an additional insured is an insured but only with respect to their legal liability for acts or omissions of a person, who qualifies as an insured under SECTION II – WHO IS AN INSURED and for whom Liability Coverage is afforded under this policy. If required by written contract, this insurance will be primary and non-contributory to insurance on which the additional insured is a Named Insured. An employee of yours is an insured while operating an auto hired or rented under a contract or agreement in that employee's name, with your permission, while performing duties related to the conduct of your business. "Policy", as used in this provision A. Who Is An Insured, includes those policies that were in force on the inception date of this Coverage Form but: Which are no longer in force; or Whose limits have been exhausted. Bail Bonds and Loss of Earnings Section II, Paragraphs A.2. (2) and A.2. (4) are revised as follows: In a.(2), the limit for the cost of bail bonds is changed from $2,000 to $5,000; and In a.(4), the limit for the loss of earnings is changed from $250 to $500 a day. Policy No: BUA Policy Effective Date: Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 1 of 4 Underwriting Company: American Casualty Company Of Reading, PA 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. 7092547367 08/01/2024 Business Auto Policy Policy Endorsement C. II. A. B. a. b. C. a. D. a. b. c. d. e. (1) (2) E. Fellow Employee Section II, Paragraph B.5 does not apply. Such coverage as is afforded by this provision C. is excess over any other collectible insurance. PHYSICAL DAMAGE COVERAGE Glass Breakage – Hitting A Bird Or Animal – Falling Objects Or Missiles The following is added to Section III, Paragraph A.3.: With respect to any covered auto, any deductible shown in the Declarations will not apply to glass breakage if such glass is repaired, in a manner acceptable to us, rather than replaced. Transportation Expenses Section III, Paragraph A.4.a. is revised, with respect to transportation expense incurred by you, to provide: $60 per day, in lieu of $20; subject to $1,800 maximum, in lieu of $600. Loss of Use Expenses Section III, Paragraph A.4.b. is revised, with respect to loss of use expenses incurred by you, to provide: $1,000 maximum, in lieu of $600. Hired "Autos" The following is added to Section III. Paragraph A.: 5. Hired "Autos" If Physical Damage coverage is provided under this policy, and such coverage does not extend to Hired Autos, then Physical Damage coverage is extended to: Any covered auto you lease, hire, rent or borrow without a driver; and Any covered auto hired or rented by your employee without a driver, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. The most we will pay for any one accident or loss is the actual cash value, cost of repair, cost of replacement or $75,000, whichever is less, minus a $500 deductible for each covered auto. No deductible applies to loss caused by fire or lightning. The physical damage coverage as is provided by this provision is equal to the physical damage coverage(s) provided on your owned autos. Such physical damage coverage for hired autos will: Include loss of use, provided it is the consequence of an accident for which the Named Insured is legally liable, and as a result of which a monetary loss is sustained by the leasing or rental concern. Such coverage as is provided by this provision will be subject to a limit of $750 per accident. Airbag Coverage The following is added to Section III, Paragraph B.3.: The accidental discharge of an airbag shall not be considered mechanical breakdown. Policy No: BUA Policy Effective Date: Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 2 of 4 Underwriting Company: American Casualty Company Of Reading, PA, 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. 7092547367 08/01/2024 Business Auto Policy Policy Endorsement F. c. d. G. a. b. c. d. (1) (2) III. 1. a. b. (1) (2) 2. IV. A. Electronic Equipment Section III, Paragraphs B.4.c and B.4.d. are deleted and replaced by the following: Physical Damage Coverage on a covered auto also applies to loss to any permanently installed electronic equipment including its antennas and other accessories A $100 per occurrence deductible applies to the coverage provided by this provision. Diminution In Value The following is added to Section III, Paragraph B.6.: Subject to the following, the diminution in value exclusion does not apply to: Any covered auto of the private passenger type you lease, hire, rent or borrow, without a driver for a period of 30 days or less, while performing duties related to the conduct of your business; and Any covered auto of the private passenger type hired or rented by your employee without a driver for a period of 30 days or less, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. Such coverage as is provided by this provision is limited to a diminution in value loss arising directly out of accidental damage and not as a result of the failure to make repairs; faulty or incomplete maintenance or repairs; or the installation of substandard parts. The most we will pay for loss to a covered auto in any one accident is the lesser of: $5,000; or 20% of the auto's actual cash value (ACV). Drive Other Car Coverage – Executive Officers The following is added to Sections II and III: Any auto you don't own, hire or borrow is a covered auto for Liability Coverage while being used by, and for Physical Damage Coverage while in the care, custody or control of, any of your "executive officers", except: An auto owned by that "executive officer" or a member of that person's household; or An auto used by that "executive officer" while working in a business of selling, servicing, repairing or parking autos. Such Liability and/or Physical Damage Coverage as is afforded by this provision. Equal to the greatest of those coverages afforded any covered auto; and Excess over any other collectible insurance. For purposes of this provision, "executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document, and, while a resident of the same household, includes that person's spouse. Such "executive officers" are insureds while using a covered auto described in this provision. BUSINESS AUTO CONDITIONS Duties In The Event Of Accident, Claim, Suit Or Loss The following is added to Section IV, Paragraph A.2.a.: Policy No: BUA Policy Effective Date: Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 3 of 4 Underwriting Company: American Casualty Company Of Reading, PA, 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. 7092547367 08/01/2024 Business Auto Policy Policy Endorsement (4) (6) B. C. D. E. a. V. Your employees may know of an accident or loss. This will not mean that you have such knowledge, unless such accident or loss is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. The following is added to Section IV, Paragraph A.2.b.: Your employees may know of documents received concerning a claim or suit. This will not mean that you have such knowledge, unless receipt of such documents is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. Transfer Of Rights Of Recovery Against Others To Us The following is added to Section IV, Paragraph A.5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have, because of payments we make for injury or damage, against any person or organization for whom or which you are required by written contract or agreement to obtain this waiver from us. This injury or damage must arise out of your activities under a contract with that person or organization. You must agree to that requirement prior to an accident or loss. Concealment, Misrepresentation or Fraud The following is added to Section IV, Paragraph B.2.: Your failure to disclose all hazards existing on the date of inception of this Coverage Form shall not prejudice you with respect to the coverage afforded provided such failure or omission is not intentional. Other Insurance The following is added to Section IV, Paragraph B.5.: Regardless of the provisions of Paragraphs 5.a. and 5.d. above, the coverage provided by this policy shall be on a primary non-contributory basis. This provision is applicable only when required by a written contract. That written contract must have been entered into prior to Accident or Loss. Policy Period, Coverage Territory Section IV, Paragraph B. 7.(5).(a). is revised to provide: 45 days of coverage in lieu of 30 days. DEFINITIONS Section V. paragraph C. is deleted and replaced by the following: Bodily injury means bodily injury, sickness or disease sustained by a person, including mental anguish, mental injury or death resulting from any of these. Policy No: BUA Policy Effective Date: Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 4 of 4 Underwriting Company: American Casualty Company Of Reading, PA 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. 7092547367 08/01/2024 Blanket Additional Insured - Owners, Lessees or Contractors - with Products-Completed Operations Coverage Endorsement CNA75079XX (10-16) Page 1 of 2 Policy No: Effective Date: Insured Name: Harris & Associates Inc. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART It is understood and agreed as follows: I. WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part, but only with respect to liability for bodily injury, property damage or personal and advertising injury caused in whole or in part by your acts or omissions, or the acts or omissions of those acting on your behalf: A.in the performance of your ongoing operations subject to such written contract; or B.in the performance of your work subject to such written contract, but only with respect to bodily injury or property damage included in the products-completed operations hazard, and only if: 1.the written contract requires you to provide the additional insured such coverage; and 2.this coverage part provides such coverage. II.But if the written contract requires: A.additional insured coverage under the 11-85 edition, 10-93 edition, or 10-01 edition of CG2010, or under the 10-01 edition of CG2037; or B.additional insured coverage with "arising out of" language; or C.additional insured coverage to the greatest extent permissible by law; then paragraph I. above is deleted in its entirety and replaced by the following: WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part, but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of your work that is subject to such written contract. III.Subject always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide such additional insured with: A.coverage broader than required by the written contract; or B.a higher limit of insurance than required by the written contract. IV.The insurance granted by this endorsement to the additional insured does not apply to bodily injury, property damage, or personal and advertising injury arising out of: A.the rendering of, or the failure to render, any professional architectural, engineering, or surveying services, including: 1.the preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and 2.supervisory, inspection, architectural or engineering activities; or B.any premises or work for which the additional insured is specifically listed as an additional insured on another endorsement attached to this coverage part. V.Under COMMERCIAL GENERAL LIABILITY CONDITIONS, the Condition entitled Other Insurance is amended to add the following, which supersedes any provision to the contrary in this Condition or elsewhere in this coverage part: 7092556540 08/01/2024 Blanket Additional Insured - Owners, Lessees or Contractors - with Products-Completed Operations Coverage Endorsement CNA75079XX (10-16) Page 2 of 2 Policy No: Effective Date: Insured Name: Harris & Associates Inc. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Primary and Noncontributory Insurance With respect to other insurance available to the additional insured under which the additional insured is a named insured, this insurance is primary to and will not seek contribution from such other insurance, provided that a written contract requires the insurance provided by this policy to be: 1.primary and non-contributing with other insurance available to the additional insured; or 2.primary and to not seek contribution from any other insurance available to the additional insured. But except as specified above, this insurance will be excess of all other insurance available to the additional insured. VI.Solely with respect to the insurance granted by this endorsement, the section entitled COMMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows: The Condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended with the addition of the following: Any additional insured pursuant to this endorsement will as soon as practicable: 1.give the Insurer written notice of any claim, or any occurrence or offense which may result in a claim; 2.send the Insurer copies of all legal papers received, and otherwise cooperate with the Insurer in the investigation, defense, or settlement of the claim; and 3.make available any other insurance, and tender the defense and indemnity of any claim to any other insurer or self-insurer, whose policy or program applies to a loss that the Insurer covers under this coverage part. However, if the written contract requires this insurance to be primary and non-contributory, this paragraph 3.does not apply to insurance on which the additional insured is a named insured. The Insurer has no duty to defend or indemnify an additional insured under this endorsement until the Insurer receives written notice of a claim from the additional insured. VII.Solely with respect to the insurance granted by this endorsement, the section entitled DEFINITIONS is amended to add the following definition: Written contract means a written contract or written agreement that requires you to make a person or organization an additional insured on this coverage part, provided the contract or agreement: A.is currently in effect or becomes effective during the term of this policy; and B.was executed prior to: 1.the bodily injury or property damage; or 2.the offense that caused the personal and advertising injury; for which the additional insured seeks coverage. Any coverage granted by this endorsement shall apply solely to the extent permissible by law. All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. 7092556540 08/01/2024 Architects, Engineers and Surveyors General Liability Extension Endorsement CNA74858XX (1-15) Page 16 of 17 Policy No: Effective Date: Insured Name: Harris & Associates Inc. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. (6)of the Damage to Property Exclusion do not apply to property damage that results from the use of elevators. B.Solely for the purpose of the coverage provided by this PROPERTY DAMAGE – ELEVATORS Provision, the Other Insurance conditions is amended to add the following paragraph: This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis that is Property insurance covering property of others damaged from the use of elevators. 23. RETIRED PARTNERS, MEMBERS, DIRECTORS AND EMPLOYEES WHO IS INSURED is amended to include as Insureds natural persons who are retired partners, members, directors or employees, but only for bodily injury, property damage or personal and advertising injury that results from services performed for the Named Insured under the Named Insured's direct supervision. All limitations that apply to employees and volunteer workers also apply to anyone qualifying as an Insured under this Provision. 24. SUPPLEMENTARY PAYMENTS The section entitled SUPPLEMENTARY PAYMENTS – COVERAGES A AND B is amended as follows: A.Paragraph 1.b. is amended to delete the $250 limit shown for the cost of bail bonds and replace it with a $5,000. limit; and B.Paragraph 1.d. is amended to delete the limit of $250 shown for daily loss of earnings and replace it with a $1,000. limit. 25. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If the Named Insured unintentionally fails to disclose all existing hazards at the inception date of the Named Insured's Coverage Part, the Insurer will not deny coverage under this Coverage Part because of such failure. 26. WAIVER OF SUBROGATION - BLANKET Under CONDITIONS, the condition entitled Transfer Of Rights Of Recovery Against Others To Us is amended to add the following: The Insurer waives any right of recovery the Insurer may have against any person or organization because of payments the Insurer makes for injury or damage arising out of: 1.the Named Insured's ongoing operations; or 2. your work included in the products-completed operations hazard. However, this waiver applies only when the Named Insured has agreed in writing to waive such rights of recovery in a written contract or written agreement, and only if such contract or agreement: 1.is in effect or becomes effective during the term of this Coverage Part; and 2.was executed prior to the bodily injury, property damage or personal and advertising injury giving rise to the claim. 27. WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS Note: The following provision does not apply to any public construction project in the state of Oklahoma, nor to any construction project in the state of Alaska, that is not permitted to be insured under a consolidated (wrap- up) insurance program by applicable state statute or regulation. 7092556540 08/01/2024 This page has been left blank intentionally. Workers Compensation And Employers Liability Insurance Policy Endorsement BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS This endorsement changes the policy to which it is attached. It is agreed that Part One - Workers’ Compensation Insurance G. Recovery From Others and Part Two - Employers’ Liability Insurance H. Recovery From Others are amended by adding the following: We will not enforce our right to recover against persons or organizations. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) PREMIUM CHARGE - Refer to the Schedule of Operations The charge will be an amount to which you and we agree that is a percentage of the total standard premium for California exposure. The amount is 2%. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. 60606 Policy No: WC Policy Effective Date: Policy Page: Form No: G-19160-B (11-1997) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 2; Page: 1 of 1 Underwriting Company: American Casualty Company Of Reading, PA 151 N Franklin St, Chicago, IL © Copyright CNA All Rights Reserved. 7092555985 08/01/2024 This page has been left blank intentionally. CONTRACT ABSTRACT 1 Original: Agreement and Insurance Contract Company Name: Company Contact: Summary of Services: Contract Price: Funding Source: Contract Term: Harris & Associates, Inc. Ehab Gerges Indian Canyon Drive Widening & UPRR Bridge Replacement, City Project 01-11 $4,126,517.54 Capital funds and Regional and Local Measure A Funds March 1, 2023 – March 1, 2027 Contract Administration Lead Department: Contract Administrator: Engineering Services Department Joel Montalvo Contract Approvals Council Approval Date: Agreement Number: February 21, 2023, Item 1.G. 23P047 Contract Compliance Exhibits: Signatures: Insurance: Bonds: Attached Attached Attached N/A Contract prepared by: Engineering Services Submitted on: 03/06/2023 By: Vonda Teed DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 1 of 44 PROFESSIONAL SERVICES AGREEMENT 23P047 INDIAN CANYON DRIVE WIDENING & UPRR BRIDGE REPLACEMENT FEDERAL-AID PROJECT NO. BRLO-5282(017) CITY PROJECT NO. 01-11 THIS PROFESSIONAL SERVICES AGREEMENT ( “Agreement”) is entered into, and effective on March 1, 2023, between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, (“City”) and Harris & Associates, Inc., a California corporation, (“Consultant”). City and Consultant are individually referred to as “Party” and are collectively referred to as the “Parties”. RECITALS A.City requires the services of Professional Construction Management Firm for Indian Canyon Drive Widening & UPRR Bridge Replacement, Federal Aid Project No. BRLO 5282 (017), City Project No. 01-11, (“Project”). B.Consultant has submitted to City a proposal to provide comprehensive construction management, survey, material testing and inspection services, to City under the terms of this Agreement. C.Consultant is qualified by virtue of its experience, training, education, reputation, and expertise to provide these services and has agreed to provide such services as provided in this Agreement. D.City desires to retain Consultant to provide such professional services. NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT 1.SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit “A” (the “Services” or “Work”), which is attached and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Consultant acknowledges that Consultant is a provider of professional work and services and that Consultant is experienced in performing the Work contemplated and, in light of such status and experience, Consultant covenants that it shall perform the Work in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by professional quality, experienced and well qualified members of the profession currently practicing under similar conditions. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 2 of 44 1.2 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City’s Request for Proposals; and, (4) the Consultant’s signed, original proposal submitted to the City (“Consultant’s Proposal”), (collectively referred to as the “Contract Documents”). The City’s Request for Proposals and the Consultant’s Proposal, which are both attached as Exhibit “B”, respectively, are incorporated herein by this reference and are made a part of this Agreement. The Scope of Services shall include the Consultant’s Proposal. All provisions of the Scope of Services, the City’s Request for Proposals and the Consultant’s Proposal shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (1st) the provisions of the Scope of Services (Exhibit “A”); (2nd) the provisions of the City’s Request for Proposal; (3rd) the terms of this Agreement; and, (4th) the provisions of the Consultant’s Proposal. 1.3 Compliance with Law. Consultant warrants that all Services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes, ordinances lawful orders, rules, and regulations. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. 1.4 Licenses, Permits, Fees, and Assessments. Consultant represents and warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work required by this Agreement. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Work and under this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work required by this Agreement. Consultant shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law. 1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City. 1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components to prevent losses or damages. Consultant shall DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 3 of 44 be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. 1.8 Additional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from such Work. No such extra work may be undertaken unless a written order is first given by the City to the Consultant, incorporating any adjustment in (i) the Maximum Contract Amount, as defined below, and/or (ii) the time to perform this Agreement. Any adjustments must also be approved in writing by the Consultant. Any increase in compensation of up to twenty-five percent (25%) of the Maximum Contract Amount or $25,000, whichever is less, or in the time to perform of up to thirty (30) days, may be approved by the City Manager, or his designee, as may be needed to perform any extra work. Any greater increases, occurring either separately or cumulatively, must be approved by the Palm Springs City Council. It is expressly understood by Consultant that the provisions of this section shall not apply to the services specifically set forth or reasonably contemplated within the Scope of Services. 2. COMPENSATION 2.1 Maximum Contract Amount. For the Services rendered under this Agreement, Consultant shall be compensated by City in accordance with the Schedule of Compensation, which is attached as Exhibit “C” and incorporated herein by this reference. Compensation shall not exceed the maximum contract amount of Four Million, One Hundred Twenty-Six Thousand, Five Hundred and Seventeen, Dollars and Fifty-Four Cents, ($4,126,517.54) ("Maximum Contract Amount"), except as may be provided under Section 1.8. The method of compensation shall be as set forth in Exhibit “C.” Compensation for necessary expenditures for reproduction costs, telephone expenses, and transportation expenses must be approved in advance by the Contract Officer designated under Section 4.2 and will only be approved if such expenses are also specified in the Schedule of Compensation. The Maximum Contract Amount shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Consultant shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Consultant accepts the risk that the services identified in the Scope of Services may be more costly and/or time-consuming than Consultant anticipates, that Consultant shall not be entitled to additional compensation, and that the provisions of Section 1.8 shall not be applicable to the services identified in the Scope of Services. If the City’s Maximum Contract Amount is reached before the Consultant’s Services under this Agreement are completed, Consultant shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount. 2.2. Method of Payment. Unless another method of payment is specified in the Schedule of Compensation (Exhibit “B”), in any month in which Consultant wishes to receive DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 4 of 44 payment, Consultant shall submit to the City an invoice for Services rendered prior to the date of the invoice. The invoice shall be in a form approved by the City’s Finance Director and must be submitted no later than the tenth (10) working day of such month. Such requests shall be based upon the amount and value of the Services performed by Consultant and accompanied by such reporting data including an itemized breakdown of all costs incurred and tasks performed during the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt of the invoice or as soon as is reasonably practical. There shall be a maximum of one payment per month. 2.3 Changes in Scope. In the event any change or changes in the Scope of Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant’s profession. C. Consultant shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by the City’s Contract Officer. There shall be no change in the Consultant’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is part of this Agreement, without prior written approval by City’s Contract Officer. 2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated by the City Council for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the City. Consultant further acknowledges the following: A. It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made. B. This Agreement is valid and enforceable only, if sufficient funds are made available to the City for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City Council that may affect the provisions, terms, or funding of this Agreement in any manner. C. It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 5 of 44 D. The City has the option to void the Agreement under the 30-day termination clause pursuant to as provided in Section 3.5 of this Agreement, or by mutual agreement to amend the Agreement to reflect any reduction of funds. 2.5 Cost principals and Administration Requirements. A. Consultant agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost. B. 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. C. Any costs for which payment has been made to 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 Consultant to City. 2.6 Prompt Payment to Subconsultants. Consultant or Subconsultant shall pay to any Subconsultant, not later than ten (10) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed Consultant on account of the work performed by the Subconsultants, to the extent of each Subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from Consultant or Subconsultant to a Subconsultant, Consultant or Subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the Subconsultant, of 2 percent of the amount due per month for every month that payment is not made. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants. 2.7 Equipment Purchase and other Capital Expenditures. A. Prior authorization in writing, by City’s Contract Officer, shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or Consultant services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs. B. For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000 prior authorization by City’s Contract Officer; three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 6 of 44 C. Any equipment purchased as a result of this Agreement is subject to the following: “Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City.” 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the project. 2.8 Retention of Funds. A. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section. B. No retainage will be held by the City from progress payments due to Consultant. Consultants and Subconsultants are prohibited from holding retainage from Subconsultants. Any delay or postponement of payment may take place only for good cause and with the City’s prior written approval. Any violation of these provisions shall subject the violating Consultant or Subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to Consultant or Subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient Subconsultant performance and/or noncompliance by a Subconsultant. This clause applies to both DBE and non-DBE Subconsultants. 3. SCHEDULE OF PERFORMANCE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according to the agreed upon attached Schedule of Performance (Exhibit “B”), incorporated herein by this reference. Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay. 3.2 Schedule of Performance. Consultant shall commence the Services under this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 7 of 44 writing by the Contract Officer, but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension. 3.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Consultant notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Consultant notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Consultant will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 3.5 of this Agreement, this Agreement shall continue in full force and effect for a period of 4 years, commencing on March 1, 2023, and ending on March 1, 2027, unless extended by mutual written agreement of the Parties. However, the term shall not exceed Five (5) from the commencement date, except as otherwise provided in the Schedule of Performance described in Section 3.2 above. 3.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant. Where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Consultant shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed Services, and shall not be entitled to damages or compensation for termination of Work. Consultant may not terminate this Agreement except for cause, upon thirty (30) days written notice to City. Consultant further acknowledges the following: A. Upon termination, the City shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 8 of 44 performed to that date, whether completed or not, and in accordance with Section 7.3 Ownership of Documents. B. The City may temporarily suspend this Agreement, at no additional cost to the City, provided that Consultant is given written notice of temporary suspension. If City gives such notice of temporary suspension, Consultant shall immediately suspend its activities under this Agreement. A temporary suspension may be issued concurrent with the notice of termination provided for in subsection A of this section. C. Notwithstanding any provisions of this Agreement, Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any breach of this Agreement by Consultant, and City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due City from Consultant is determined. D. In the event of termination, Consultant shall be compensated as provided for in this Agreement, except as provided in Section 2.7-C. Upon termination, the City shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and in accordance with Section 7.3 Ownership of Documents. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following principal of Consultant is designated as being the principal and representative of Consultant authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement: Ehab Gerges, Chief Business Development Officer. It is expressly understood that the experience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services performed hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer. 4.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Consultant shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Consultant shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignments. The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provisions making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Consultant is permitted to subcontract any part of this Agreement by City, DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 9 of 44 Consultant shall be responsible to City for the acts and omissions of its subConsultant(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subConsultant and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City. Transfers restricted in this Agreement shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability under this Agreement without the express written consent of City. Consultant further acknowledges the following: A. No subcontract shall relieve the Consultant of its responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to the City for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the Consultant. The Consultant’s obligation to pay its Subconsultants is an independent obligation from the City’s obligation to make payments to the Consultant. B. The Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the City’s Contract Officer, except that which is expressly identified in the approved Cost Proposal. C. Any subcontract entered into as a result of this Agreement, shall contain all the provisions stipulated in this entire Agreement to be applicable to Subconsultants unless otherwise noted. D. Any substitution of Subconsultants must be approved in writing by the City’s Contract Officer in advance of assigning work to a substitute Subconsultant. 4.4 Independent Consultant. The legal relationship between the Parties is that of an independent Consultant, and nothing shall be deemed to make Consultant a City employee. A. During the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, except as set forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City’s offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 10 of 44 salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers’ compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Consultant in its business or otherwise a joint venturer or a member of any joint enterprise with Consultant. B. Consultant shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City. C. No City benefits shall be available to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of performing Services. If for any reason any court or governmental agency determines that the City has financial obligations, other than under Section 2 and Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of Consultant’s officers, employees, servants, representatives, subConsultants, or agents, Consultant shall indemnify City for all such financial obligations. 4.5 California Labor Code Requirements. A. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 11 of 44 the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Consultant further acknowledges the following: A. No Consultant or Subconsultant may be awarded an Agreement containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this Agreement, including any subsequent amendments. B. The Consultant shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this Agreement are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this Agreement by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at City construction sites, at City facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve City projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public. C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov. D. Each Consultant and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the Consultant or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following: (A) The information contained in the payroll record is true and correct. (B) The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project. E. The payroll records enumerated under paragraph D above shall be certified as correct by the Consultant under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by City representative’s at all reasonable hours at the principal office of the Consultant. The Consultant shall provide copies of certified payrolls or permit inspection of its records as follows: (A) A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request. (B) A certified copy of all payroll records enumerated in paragraph D above, shall be made available for inspection or furnished upon request to a representative of City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 12 of 44 payrolls submitted to the City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the Consultant. (C) The public shall not be given access to certified payroll records by the Consultant. The Consultant is required to forward any requests for certified payrolls to the City Contract Officer by both email and regular mail on the business day following receipt of the request. F. Each Consultant shall submit a certified copy of the records enumerated in paragraph D above, to the entity that requested the records within ten (10) calendar days after receipt of a written request. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by City shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the Consultant or Subconsultant performing the work shall not be marked or obliterated. The Consultant shall inform the City of the location of the records enumerated under paragraph D above, including the street address, city and county, and shall, within five working days, provide a notice of a change of location and address. In the event the Consultant or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to City, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by City from payments then due. Consultant is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section. G. When prevailing wage rates apply, the Consultant is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the City’s Contract Officer. H. The Consultant and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the Consultant and any Subconsultant shall forfeit to the City a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the Agreement by the Consultant or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive. I. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the Consultant or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the Consultant or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the Consultant or Subconsultant had knowledge of the obligations under the Labor Code. The Consultant is responsible for paying the appropriate rate, including any escalations that take place during the term of the Agreement. J. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 13 of 44 thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Consultant or Subconsultant. K. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the Consultant is not liable for the penalties described above unless the Consultant had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the Consultant fails to comply with all of the following requirements: (A) The Agreement executed between the Consultant and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. (B) The Consultant shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant. (C) Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the Consultant shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project. (D) Prior to making final payment to the Subconsultant for work performed on the public works project, the Consultant shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813. L. Pursuant to Labor Code §1775, the City shall notify the Consultant on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages. M. If the City determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if the City did not retain sufficient money under the Agreement to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the Consultant shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by the City. N. Eight (8) hours labor constitutes a legal day's work. The Consultant shall forfeit, as a penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of the Agreement by the Consultant or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one half (1.5) times the basic rate of pay, as provided in §1815. O. Where either the Contact or the subcontract exceeds thirty thousand dollars ($30,000), the Consultant and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 14 of 44 Consultant and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, Consultant and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the Agreement work. The Consultant is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7. 5. INSURANCE 5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and expense, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Consultant's performance of Work under this Agreement, including Consultant's agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section. (1) Consultant shall either: (a) certify in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification under (a), Consultant shall procure from the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services under this Agreement. (2) If the policy of insurance is written on a “claims made” basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended “tail” coverage with the DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 15 of 44 present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager. (3) In the event the policy of insurance is written on an “occurrence” basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement. B. Workers’ Compensation Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers’ compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against the City and to require each of its subConsultants, if any, to do likewise under their workers’ compensation insurance policies. If Consultant has no employees, Consultant shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form. C. Commercial General Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent Consultants, broad form property damage, products and completed operations. D. Business Automobile Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired cars. E. Employer Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. Consultant guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of $10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Consultant’s ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of $10,000. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 16 of 44 5.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Consultant under this Agreement: A. For any claims related to this Agreement, Consultant’s coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant’s insurance and shall not contribute with it. B. Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. C. All insurance coverage and limits provided by Consultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. D. No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. E. Consultant agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Consultant’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. F. Consultant agrees to ensure that subConsultants, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subConsultants and others engaged in the Project will be submitted to the City for review. G. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 17 of 44 H. Consultant shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. I. Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. J. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. K. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the Work performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. L. Consultant agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant’s activities or the activities of any person or person for which the Consultant is otherwise responsible. 5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. 5.5 Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 18 of 44 Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant’s obligation to provide them. 6. INDEMNIFICATION 6.1 Indemnification and Reimbursement. To the fullest extent permitted by law, Consultant shall defend (at Consultant’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Consultant’s employees included), for damage to property, including property owned by City, for any violation of any applicable federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or relating to any acts, errors or omissions, or willful misconduct committed by Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence, active negligence, or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant’s indemnification obligation or other liability under this Agreement. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 19 of 44 against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. 6.2 Design Professional Services Indemnification and Reimbursement. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. 6.3 Claims Filed by City’s Construction Contractor. A. If claims are filed by the City’s construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with the City’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. B. Consultant’s personnel that the City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from the City. Consultant shall be responsible for all costs associated with consultation or testimony, including travel costs, associated with defense of the City’s construction contractor claims. C. Services of Consultant’s personnel in connection with the City’s construction contractor claims will be performed pursuant to a written amendment to this Agreement, if necessary, extending the termination date of this Agreement in order to resolve the construction claims. 7. REPORTS AND RECORDS 7.1 Accounting Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. Consultant acknowledges that the City is greatly concerned about the cost of the Work to be performed under this Agreement. For this reason, Consultant agrees that Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services. If Consultant is providing design DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 20 of 44 services, Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services. The Consultant further acknowledges the following: A. Consultant shall submit progress reports at least once a month. The report should be sufficiently detailed for the Contract Officer to determine, if Consultant is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed. B. Consultant’s Project Manager shall meet with the City’s Contract Officer, as needed, to discuss progress on the Project. 7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subConsultants, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all resulting damages. Consultant may retain copies of such documents for their own use. Consultant shall have an unrestricted right to use the concepts embodied tin this Agreement. Consultant shall ensure that all its subConsultants shall provide for assignment to City of any documents or materials prepared by them. In the event Consultant fails to secure such assignment, Consultant shall indemnify City for all resulting damages. Consultant further acknowledges the following: A. Upon completion of all work under this Agreement, ownership and title to all reports, documents, plans, specifications, and estimates produce as part of this Agreement will automatically be vested in the City; and no further agreement will be necessary to transfer ownership to the City. Consultant shall furnish the City all necessary copies of data needed to complete the review and approval process. Additionally, it is agreed that the Parties intend this to be an Agreement for services and each considers the products and results of the services to be rendered by Consultant hereunder to be work made for hire. Consultant acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City. B. It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine-readable form, are intended for one-time use in the construction of the project for which this Agreement has been entered into. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 21 of 44 C. Consultant is not liable for claims, liabilities, or losses arising out of, or connected with the modification, or misuse by the City of the machine-readable information and data provided by Consultant under this Agreement; further, Consultant is not liable for claims, liabilities, or losses arising out of, or connected with any use by the City of the project documentation on other projects for additions to this project, or for the completion of this project by others, except only such use as many be authorized in writing by Consultant. D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts). E. The City may permit copyrighting reports or other agreement products. If copyrights are permitted; the agreement shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes. F. Immediately upon termination, City shall be entitled to, and Consultant shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by Consultant in performing this Agreement which is not Consultant’s privileged information, as defined by law, or Consultant’s personnel information, along with all other property belonging exclusively to City which is in Consultant’s possession. G. Publication of the information derived from work performed or data obtained in connection with services rendered under this Agreement must be approved in writing by City. 7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization. Consultant further acknowledges the following: A. All financial, statistical, personal, technical, or other data and information relative to the City’s operations, which are designated confidential by the City and made available to Consultant in order to carry out this Agreement, shall be protected by Consultant from unauthorized use and disclosure. B. Permission to disclose information on one occasion, or public hearing held by the City relating to the Agreement, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion. C. Consultant shall not comment publicly to the press or any other media regarding the Agreement or the City’s actions on the same, except to the City’s staff, Consultant’s own personnel DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 22 of 44 involved in the performance of this Agreement, at public hearings or in response to questions from a Legislative committee. D. Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by the City, and receipt of the City’s written permission. E. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section. F. All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity, other than the City, Caltrans, and/or FHWA. All of the materials prepared or assembled by Consultant pursuant to performance of this Agreement are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If Consultant or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Agreement, City has the right to reimbursement and indemnity from Consultant for any damages caused by Consultant releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements. 7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant’s performance under this Agreement. Consultant shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. Consultant further acknowledges the following: A. For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection 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 Consultants Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under the Agreement and records for real property and equipment acquired with federal funds must be retained for three years after final disposition. The state, State Auditor, City, FHWA, or any duly authorized representative of the Federal Government having jurisdiction under Federal laws or regulations (including the basis of Federal funding DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 23 of 44 in whole or in part) shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work papers that are pertinent to the Agreement and indirect cost rates (ICR) for audit, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested. B. Consultant and any subconsultant shall permit the City, the state, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis. 7.6 Audit Review Procedures. A. Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by City’s Chief Financial Officer. B. Not later than 30 days after issuance of the final audit report, Consultant may request a review by City’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. C. Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement. D. Consultant and Subconsultant contracts, including cost proposals and Indirect Cost Rates (ICR), are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review, it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by City contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs. E. Consultant’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City’s Contract Officer to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 24 of 44 recommendations included in the audit report will be considered a breach of the Contract terms and cause for termination of the Contract and disallowance of prior reimbursed costs. F. During IOAI’s review of the ICR audit work papers created by the Consultant’s independent CPA, IOAI will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, the City will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI . If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate. G. If IOAI is unable to issue a cognizant letter per paragraph F above, IOAI may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions. H. If the Consultant fails to comply with the provisions of this Section 7.6, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph F above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement. I. Consultant may submit the final invoice to the City only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of the City; and, (3) IOAI has issued its final ICR review letter. The Consultant must submit the final invoice to the City no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all other agreements executed between City and the Consultant, either as a prime or Subconsultant, with the same fiscal period ICR. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 25 of 44 California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of Consultant. Consultant’s failure to comply with any provision of this Agreement shall constitute a default. A. If the City Manager, or his designee, determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City’s right to terminate this Agreement without cause under Section 3.5. B. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3A, take over the work and prosecute the same to completion by contract or otherwise. The Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages). The City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant shall not limit Consultant’s liability for completion of the Services as provided in this Agreement. 8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 26 of 44 8.5 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. 8.9 Disputes. A. Prior to either party commencing any legal action under this Agreement, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other. B. Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City’s Contract Officer and City Engineer, who may consider written or verbal information submitted by Consultant. C. Not later than thirty (30) calendar days after completion of all work under the Agreement, Consultant may request review by City Council of unresolved claims or disputes, other than audit. The request for review will be submitted in writing. D. Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 27 of 44 9.2 Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. Further, Consultant acknowledges the following: A. Consultant shall disclose any financial, business, or other relationship with the City that may have an impact upon the outcome of this Agreement, or any ensuing City construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing City construction project, which will follow. B. Consultant certifies that it has disclosed to the City any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this Agreement. Consultant agrees to advise the City of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this Agreement. Consultant further agrees to complete any statements of economic interest if required by either the City ordinance or State law. C. Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. D. Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this Agreement. An affiliated firm is one, which is subject to the control of the same persons through joint- ownership, or otherwise. E. Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this Agreement is also employed by the construction contractor for any project included within this Agreement. F. Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this Agreement shall have provided services on the design of any project included within this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 28 of 44 but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. Consultant further acknowledges the following requirements: A. Consultant’s signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 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. 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 the City 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. Consultant shall permit access by representatives of the Department of Fair Employment and Housing and the City 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 City shall require ascertaining compliance with this clause. 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. C. 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. D. 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 DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 29 of 44 nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded 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. E. Consultant, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the City components of the DBE Program Plan, Consultant, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin. F. Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement. G. During the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest (herein collectively referred to as CONSULTANT) agrees as follows: a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement. b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the , shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations. c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub-agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 30 of 44 as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information. e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or ii. cancellation, termination or suspension of the Agreement, in whole or in part. f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. g. CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States. H. During the performance of this Agreement, the Consultant, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. b. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601 ), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); c. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); d. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; e. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); f. Airport and Airway Improvement Act of 1982, ( 49 USC § 4 71, Section 4 7123 ), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); g. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 31 of 44 programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); h. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38; i. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); j. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; k. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); l. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U .S.C. 1681 et seq). 9.4 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discretion; to terminate the Agreement without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. 9.5 Contingent Fee. Consultant warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, the City has the right to annul this Agreement without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the Agreement price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee. 10. MISCELLANEOUS PROVISIONS 10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise: DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 32 of 44 A. It is agreed that Consultant shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultant shall pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information and assistance at Consultant’s expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City’s alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright. B. Consultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant’s expense. Consultant shall not be obligated to indemnify City under any settlement that is made without Consultant’s consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto. 10.2 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Telephone: 760-323-8204 Facsimile: 760-323-8332 DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 33 of 44 To Consultant: Harris & Associates, Inc. Attention: Ehab Gerges 22 Executive Park, Suite 2022 Irvine, CA 92614 Telephone: 949-683-2011 Facsimile: 949-655-3995 10.3 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 10.4 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties. 10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees. 10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 10.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. 10.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 34 of 44 10.10 Prohibition of Expending City, State or Federal Funds for Lobbying. A. Consultant certifies to the best of his or her knowledge and belief that: 1) No State, Federal, or City 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 Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. C. Consultant also agrees by signing this Agreement that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly. 10.11 Debarment and Suspension Certification. A. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to the City. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 35 of 44 C. Exceptions to the Federal Government Excluded Parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by the Federal highway Administration. 10.12 Disadvantaged Business Enterprises (DBE) Participation. A. Consultant, subrecipient (City), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the Agreement (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, The City shows a contract goal for DBEs. Consultant shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers. B. Consultant shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is Consultant’s responsibility to verify at the date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes or work code applicable to the type of work the firm will perform on the Agreement. Additionally, the Consultant is responsible to document the verification record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found here: https://dot.ca.gov/programs/civil-rights/dbe-search. C. All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs counts towards the goal in the following manner: a. 100 percent counts if the materials or supplies are obtained from a DBE manufacturer. b. 60 percent counts if the materials or supplies are purchased from a DBE regular dealer. c. Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer." D. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who enter into a federally-funded agreement will assist the City in a good faith effort to achieve California's statewide overall DBE goal. E. The goal for DBE participation for this Agreement is 11%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto 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. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 36 of 44 F. The Consultant can meet the DBE participation goal by either documenting commitments to DBEs to meet the Contract goal, or by documenting adequate good faith efforts to meet the Contract goal. An adequate good faith effort means that the Consultant must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal. G. Under 49 CFR 26.13(b): “Consultant, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. Consultant shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.” Failure by Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the City deems appropriate, which may include but not be limited to: (1) Withholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or; (4) Disqualifying the contractor from future bidding as non-responsible. H. Consultant shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless Consultant or DBE subconsultant obtains the City’s written consent. Consultant shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the City. Unless the City’s consent is provided, the Consultant shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02 Consultant Contract DBE Commitment form. I. The City authorizes a request to use other forces or sources of materials if Consultant shows any of the following justifications: a. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project. b. The City stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the City’s bond requirements. c. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law. d. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination). e. Listed DBE's work is unsatisfactory and not in compliance with the contract. f. Listed DBE is ineligible to work on the project because of suspension or debarment. g. Listed DBE becomes bankrupt or insolvent. h. Listed DBE voluntarily withdraws with written notice from the Contract. i. Listed DBE is ineligible to receive credit for the type of work required. j. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract. k. The City determines other documented good cause. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 37 of 44 J. Consultant shall notify the original DBE of the intent to use other forces or material sources and provide the reasons and provide the DBE with 5 days to respond to the notice and advise Consultant and the City of the reasons why the use of other forces or sources of materials should not occur. K. Consultant’s request to use other forces or material sources must include: a. One or more of the reasons listed in the preceding paragraph. b. Notices from Consultant to the DBE regarding the request. c. Notices from the DBEs to Consultant regarding the request. L. If a listed DBE is terminated or substituted, Consultant must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the Agreement to the extent needed to meet or exceed the DBE goal. M. The City’s DBE program includes a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization. The Consultant shall notify the City’s contract administrator or designated representative of any changes to its anticipated DBE participation and provide this notification before starting the affected work. The Consultant shall maintain records including; name and business address of each 1st-tier subconsultant; name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier; date of payment and total amount paid to each business (see Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment). If Consultant is a DBE Consultant, they shall include the date of work performed by their own forces and the corresponding value of the work. N. If a DBE is decertified before completing its work, the DBE must notify Consultant in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify Consultant in writing of the certification date. Consultant shall submit the notifications to the City. On work completion, Consultant shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form to the City within 30 days of contract acceptance. O. A DBE is only eligible to be counted toward the Contract goal if it performs a commercially useful function (CUF) on the Agreement. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement 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 Agreement, 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 Agreement is commensurate with the work it is actually performing, and other relevant factors. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 38 of 44 P. 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. Q. 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. R. 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. 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. S. Upon work completion, Consultant shall complete Exhibit 17-F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the City within 90 days of contract acceptance. The City will withhold $10,000 until the form is submitted. The City will release the withhold upon submission of the completed form. T. 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 Officer within 30 days. U. After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant shall complete and email the Exhibit 9- F: Disadvantaged Business Enterprise Running Tally of Payments to business.support.unit@dot.ca.gov with a copy to the City. V. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section. 10.13 Safety. A. Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by City Safety Officer and other City representatives. Consultant personnel shall wear hard hats and safety vests at all times while working on the construction project site. B. Pursuant to the authority contained in Section 591 of the Vehicle Code, the City has determined that such areas are within the limits of the project and are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 39 of 44 its vehicles and the protection of the traveling public from injury and damage from such vehicles. C. Any subcontract entered into as a result of this Agreement, shall contain all of the provisions of this Section. D. Consultant must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in California Labor Code Sections 6500 and 6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five feet or deeper. 10.14 National Labor Relations Board Certification. In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board. 10.15 Inspection of Work. Consultant and any subconsultant shall permit the City, the State, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement. [SIGNATURES ON NEXT PAGE] DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D 3/8/2023 Revised 2.9.22 Page 41 of 44 EXHIBIT “A” SCOPE OF SERVICES Link to Complete Document on file with City Clerk: https://publicportal.palmspringsca.gov/WebLink/DocView.aspx?id=1338487&dbid=0&repo=CityHall-Primary DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 42 of 44 EXHIBIT “B” REQUEST FOR PROPSAL AND CONSULTANT PROPOSAL Link to Complete Document on file with City Clerk: https://publicportal.palmspringsca.gov/WebLink/DocView.aspx?id=1338488&dbid=0&repo=CityHall-Primary DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 43 of 44 EXHIBIT “C” SCHEDULE OF COMPENSATION A.The method of payment for this Agreement will be based on actual cost plus a fixed fee. The City will reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the work. Consultant will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Cost Proposal, unless additional reimbursement is provided for by Contract amendment. In no event, will Consultant be reimbursed for overhead costs at a rate that exceeds the City’s approved overhead rate set forth in the Cost Proposal. In the event, that the City determines that a change to the work from that specified in the Cost Proposal and Contract is required, the Contract time or actual costs reimbursable by the City shall be adjusted by Contract amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I” of this Article shall not be exceeded, unless authorized by Contract amendment. B.The indirect cost rate established for this Agreement is extended through the duration of this specific Agreement. Consultant’s agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or Agreement award. C. In addition to the allowable incurred costs, the City will pay Consultant a fixed fee of $(309,879.10). The fixed fee is nonadjustable for the term of the Agreement, except in the event of a significant change in the scope of work and such adjustment is made by Contract amendment, as determined by the City’s Contract Officer. D.Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal. E. When milestone cost estimates are included in the approved Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the City’s Contract Officer before exceeding such cost estimate. F.Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of Consultant’s fixed fee will be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Scope of Work, the City shall have the right to delay payment or terminate this Agreement. G.No payment will be made prior to approval of any work, nor for any work performed prior to approval of this Agreement. H.Consultant will be reimbursed promptly according to California Regulations upon receipt by City’s Contract Officer of itemized invoices. Invoices shall be submitted no later than thirty DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Revised 2.9.22 Page 44 of 44 (30) calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Contract number and project title. Final invoice must contain the final cost and all credits due City including any equipment purchased under the provisions of Section 2.7. The final invoice should be submitted within sixty (60) calendar days after completion of Consultant’s work. Invoices shall be emailed to City’s Contract Officer at the following email addresses: Vonda.Teed@palmspringsca.gov; Joel.Montalvo@palmspringsca.gov. I.The total amount payable by the City including the fixed fee shall not exceed $(4,126,517.54). J. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable. Link to Complete Document on file with City Clerk: https://publicportal.palmspringsca.gov/WebLink/DocView.aspx?id=1338489&dbid=0&repo=CityHall-Primary DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME: CONTACT (A/C, No): FAX E-MAIL ADDRESS: PRODUCER (A/C, No, Ext): PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT ER OTH- STATUTE PER LIMITS(MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) POLICY EFF POLICY NUMBERTYPE OF INSURANCELTR INSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 1,000,000 5,000,000 535370907 535370907 1401 Willow Pass Road, Suite 500 10,000 City of Palm Springs 150,000 10,000,000 08/01/23 X PROFESSIONAL LIABILITY 1,000,000 35289 20443 20508 1,000,000 20427 Ded: 0 Claims-Made 10,000,000 * Workers Compensation policy excludes monopolistic states ND, OH, WA, WY. 800-877-4560 X X attached forms CNA75079XX 1016 and CNA63359XX 0412 (pg. 1, I.A.3). General Liability and Auto Liability Additional Insured status granted, if required by written contract/agreement, per City of Palm Springs, its officials, employees & agents are additional insureds under General Liability & Auto Liability RE: Indian Canyon Drive Widening & UPRR Bridge Replacement, City Proj #01-11, Fed Proj #BRLO-5282(017) 08/01/23 if required by a written contract 08/01/22 USA 08/01/23 Harris & Associates Inc. Attn: Susan Mandilag CUE 6076590551 7034219554 08/01/22 925 609-6550 1,000,000 08/01/23 X smandilag X 08/01/22 2,000,000 X Palm Springs, CA 92262, CA 92262 P.O. Box 4047 15,000Ded: 0 AMERICAN CAS CO OF READING PA VALLEY FORGE INS CO CONTINENTAL CAS CO 2,000,000 CONTINENTAL INS CO 1,000,000 D 08/01/22 X BUA 6076590520 X 08/01/22 Concord, CA 94520 USA N B C 925 609-6500 A Ded. Each Claim Aggregate 6072176739 1,000,000B X 03/01/2023 AEH591891588 X X 10,000,000 1,000,000 LIC #0757776 3200 E. Tahquitz Canyon Way 1220532001 (2029) Concord, CA 94524 USA 08/01/23 Per Claim; HUB International Insurance Services Inc. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Blanket Additional Insured - Owners, Lessees or Contractors - with Products-Completed Operations Coverage Endorsement CNA75079XX (10-16) Page 1 of 2 Policy No: 6072176739 Effective Date: 08/01/2022 Insured Name: Harris & Associates Inc. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART It is understood and agreed as follows: I. WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part, but only with respect to liability for bodily injury, property damage or personal and advertising injury caused in whole or in part by your acts or omissions, or the acts or omissions of those acting on your behalf: A.in the performance of your ongoing operations subject to such written contract; or B.in the performance of your work subject to such written contract, but only with respect to bodily injury or property damage included in the products-completed operations hazard, and only if: 1.the written contract requires you to provide the additional insured such coverage; and 2.this coverage part provides such coverage. II.But if the written contract requires: A.additional insured coverage under the 11-85 edition, 10-93 edition, or 10-01 edition of CG2010, or under the 10-01 edition of CG2037; or B.additional insured coverage with "arising out of" language; or C.additional insured coverage to the greatest extent permissible by law; then paragraph I. above is deleted in its entirety and replaced by the following: WHO IS AN INSURED is amended to include as an Insured any person or organization whom you are required by written contract to add as an additional insured on this coverage part, but only with respect to liability for bodily injury, property damage or personal and advertising injury arising out of your work that is subject to such written contract. III.Subject always to the terms and conditions of this policy, including the limits of insurance, the Insurer will not provide such additional insured with: A.coverage broader than required by the written contract; or B.a higher limit of insurance than required by the written contract. IV.The insurance granted by this endorsement to the additional insured does not apply to bodily injury, property damage, or personal and advertising injury arising out of: A.the rendering of, or the failure to render, any professional architectural, engineering, or surveying services, including: 1.the preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and 2.supervisory, inspection, architectural or engineering activities; or B.any premises or work for which the additional insured is specifically listed as an additional insured on another endorsement attached to this coverage part. V.Under COMMERCIAL GENERAL LIABILITY CONDITIONS, the Condition entitled Other Insurance is amended to add the following, which supersedes any provision to the contrary in this Condition or elsewhere in this coverage part: DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Blanket Additional Insured - Owners, Lessees or Contractors - with Products-Completed Operations Coverage Endorsement CNA75079XX (10-16) Page 2 of 2 Policy No: 6072176739 Effective Date: 08/01/2022 Insured Name: Harris & Associates Inc. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. Primary and Noncontributory Insurance With respect to other insurance available to the additional insured under which the additional insured is a named insured, this insurance is primary to and will not seek contribution from such other insurance, provided that a written contract requires the insurance provided by this policy to be: 1.primary and non-contributing with other insurance available to the additional insured; or 2.primary and to not seek contribution from any other insurance available to the additional insured. But except as specified above, this insurance will be excess of all other insurance available to the additional insured. VI.Solely with respect to the insurance granted by this endorsement, the section entitled COMMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows: The Condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended with the addition of the following: Any additional insured pursuant to this endorsement will as soon as practicable: 1.give the Insurer written notice of any claim, or any occurrence or offense which may result in a claim; 2.send the Insurer copies of all legal papers received, and otherwise cooperate with the Insurer in the investigation, defense, or settlement of the claim; and 3.make available any other insurance, and tender the defense and indemnity of any claim to any other insurer or self-insurer, whose policy or program applies to a loss that the Insurer covers under this coverage part. However, if the written contract requires this insurance to be primary and non-contributory, this paragraph 3.does not apply to insurance on which the additional insured is a named insured. The Insurer has no duty to defend or indemnify an additional insured under this endorsement until the Insurer receives written notice of a claim from the additional insured. VII.Solely with respect to the insurance granted by this endorsement, the section entitled DEFINITIONS is amended to add the following definition: Written contract means a written contract or written agreement that requires you to make a person or organization an additional insured on this coverage part, provided the contract or agreement: A.is currently in effect or becomes effective during the term of this policy; and B.was executed prior to: 1.the bodily injury or property damage; or 2.the offense that caused the personal and advertising injury; for which the additional insured seeks coverage. Any coverage granted by this endorsement shall apply solely to the extent permissible by law. All other terms and conditions of the Policy remain unchanged. This endorsement, which forms a part of and is for attachment to the Policy issued by the designated Insurers, takes effect on the effective date of said Policy at the hour stated in said Policy, unless another effective date is shown below, and expires concurrently with said Policy. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Architects, Engineers and Surveyors General Liability Extension Endorsement CNA74858XX (1-15) Page 16 of 17 Policy No: 6072176739 Effective Date: 08/01/2022 Insured Name: Harris & Associates Inc. Copyright CNA All Rights Reserved. Includes copyrighted material of Insurance Services Office, Inc., with its permission. (6)of the Damage to Property Exclusion do not apply to property damage that results from the use of elevators. B.Solely for the purpose of the coverage provided by this PROPERTY DAMAGE – ELEVATORS Provision, the Other Insurance conditions is amended to add the following paragraph: This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis that is Property insurance covering property of others damaged from the use of elevators. 23. RETIRED PARTNERS, MEMBERS, DIRECTORS AND EMPLOYEES WHO IS INSURED is amended to include as Insureds natural persons who are retired partners, members, directors or employees, but only for bodily injury, property damage or personal and advertising injury that results from services performed for the Named Insured under the Named Insured's direct supervision. All limitations that apply to employees and volunteer workers also apply to anyone qualifying as an Insured under this Provision. 24.SUPPLEMENTARY PAYMENTS The section entitled SUPPLEMENTARY PAYMENTS – COVERAGES A AND B is amended as follows: A.Paragraph 1.b. is amended to delete the $250 limit shown for the cost of bail bonds and replace it with a $5,000. limit; and B.Paragraph 1.d. is amended to delete the limit of $250 shown for daily loss of earnings and replace it with a $1,000. limit. 25. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If the Named Insured unintentionally fails to disclose all existing hazards at the inception date of the Named Insured's Coverage Part, the Insurer will not deny coverage under this Coverage Part because of such failure. 26. WAIVER OF SUBROGATION - BLANKET Under CONDITIONS, the condition entitled Transfer Of Rights Of Recovery Against Others To Us is amended to add the following: The Insurer waives any right of recovery the Insurer may have against any person or organization because of payments the Insurer makes for injury or damage arising out of: 1.the Named Insured's ongoing operations; or 2. your work included in the products-completed operations hazard. However, this waiver applies only when the Named Insured has agreed in writing to waive such rights of recovery in a written contract or written agreement, and only if such contract or agreement: 1.is in effect or becomes effective during the term of this Coverage Part; and 2.was executed prior to the bodily injury, property damage or personal and advertising injury giving rise to the claim. 27. WRAP-UP EXTENSION: OCIP, CCIP, OR CONSOLIDATED (WRAP-UP) INSURANCE PROGRAMS Note: The following provision does not apply to any public construction project in the state of Oklahoma, nor to any construction project in the state of Alaska, that is not permitted to be insured under a consolidated (wrap- up) insurance program by applicable state statute or regulation. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Business Auto Policy Policy Endorsement CONTRACTORS EXTENDED COVERAGE ENDORSEMENT - BUSINESS AUTO PLUS I. A. 1. 2. a. b. (1) (2) 3. 4. 1. 2. B. 1. 2. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM LIABILITY COVERAGE Who Is An Insured The following is added to Section II, Paragraph A.1., Who Is An Insured: a. Any incorporated entity of which the Named Insured owns a majority of the voting stock on the date of inception of this Coverage Form; provided that, b.The insurance afforded by this provision A.1. does not apply to any such entity that is an insured under any other liability "policy" providing auto coverage. Any organization you newly acquire or form, other than a limited liability company, partnership or joint venture, and over which you maintain majority ownership interest. The insurance afforded by this provision A.2.: Is effective on the acquisition or formation date, and is afforded only until the end of the policy period of this Coverage Form, or the next anniversary of its inception date, whichever is earlier. Does not apply to: Bodily injury or property damage caused by an accident that occurred before you acquired or formed the organization; or Any such organization that is an insured under any other liability "policy" providing auto coverage. Any person or organization that you are required by a written contract to name as an additional insured is an insured but only with respect to their legal liability for acts or omissions of a person, who qualifies as an insured under SECTION II – WHO IS AN INSURED and for whom Liability Coverage is afforded under this policy. If required by written contract, this insurance will be primary and non-contributory to insurance on which the additional insured is a Named Insured. An employee of yours is an insured while operating an auto hired or rented under a contract or agreement in that employee's name, with your permission, while performing duties related to the conduct of your business. "Policy", as used in this provision A. Who Is An Insured, includes those policies that were in force on the inception date of this Coverage Form but: Which are no longer in force; or Whose limits have been exhausted. Bail Bonds and Loss of Earnings Section II, Paragraphs A.2. (2) and A.2. (4) are revised as follows: In a.(2), the limit for the cost of bail bonds is changed from $2,000 to $5,000; and In a.(4), the limit for the loss of earnings is changed from $250 to $500 a day. Policy No: BUA 6076590520 Policy Effective Date: 08/01/2022 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 1 of 4 Underwriting Company: American Casualty Company Of Reading, PA 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Business Auto Policy Policy Endorsement C. II. A. B. a. b. C. a. D. a. b. c. d. e. (1) (2) E. Fellow Employee Section II, Paragraph B.5 does not apply. Such coverage as is afforded by this provision C. is excess over any other collectible insurance. PHYSICAL DAMAGE COVERAGE Glass Breakage – Hitting A Bird Or Animal – Falling Objects Or Missiles The following is added to Section III, Paragraph A.3.: With respect to any covered auto, any deductible shown in the Declarations will not apply to glass breakage if such glass is repaired, in a manner acceptable to us, rather than replaced. Transportation Expenses Section III, Paragraph A.4.a. is revised, with respect to transportation expense incurred by you, to provide: $60 per day, in lieu of $20; subject to $1,800 maximum, in lieu of $600. Loss of Use Expenses Section III, Paragraph A.4.b. is revised, with respect to loss of use expenses incurred by you, to provide: $1,000 maximum, in lieu of $600. Hired "Autos" The following is added to Section III. Paragraph A.: 5. Hired "Autos" If Physical Damage coverage is provided under this policy, and such coverage does not extend to Hired Autos, then Physical Damage coverage is extended to: Any covered auto you lease, hire, rent or borrow without a driver; and Any covered auto hired or rented by your employee without a driver, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. The most we will pay for any one accident or loss is the actual cash value, cost of repair, cost of replacement or $75,000, whichever is less, minus a $500 deductible for each covered auto. No deductible applies to loss caused by fire or lightning. The physical damage coverage as is provided by this provision is equal to the physical damage coverage(s) provided on your owned autos. Such physical damage coverage for hired autos will: Include loss of use, provided it is the consequence of an accident for which the Named Insured is legally liable, and as a result of which a monetary loss is sustained by the leasing or rental concern. Such coverage as is provided by this provision will be subject to a limit of $750 per accident. Airbag Coverage The following is added to Section III, Paragraph B.3.: The accidental discharge of an airbag shall not be considered mechanical breakdown. Policy No: BUA 6076590520 Policy Effective Date: 08/01/2022 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 2 of 4 Underwriting Company: American Casualty Company Of Reading, PA, 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Business Auto Policy Policy Endorsement F. c. d. G. a. b. c. d. (1) (2) III. 1. a. b. (1) (2) 2. IV. A. Electronic Equipment Section III, Paragraphs B.4.c and B.4.d. are deleted and replaced by the following: Physical Damage Coverage on a covered auto also applies to loss to any permanently installed electronic equipment including its antennas and other accessories A $100 per occurrence deductible applies to the coverage provided by this provision. Diminution In Value The following is added to Section III, Paragraph B.6.: Subject to the following, the diminution in value exclusion does not apply to: Any covered auto of the private passenger type you lease, hire, rent or borrow, without a driver for a period of 30 days or less, while performing duties related to the conduct of your business; and Any covered auto of the private passenger type hired or rented by your employee without a driver for a period of 30 days or less, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. Such coverage as is provided by this provision is limited to a diminution in value loss arising directly out of accidental damage and not as a result of the failure to make repairs; faulty or incomplete maintenance or repairs; or the installation of substandard parts. The most we will pay for loss to a covered auto in any one accident is the lesser of: $5,000; or 20% of the auto's actual cash value (ACV). Drive Other Car Coverage – Executive Officers The following is added to Sections II and III: Any auto you don't own, hire or borrow is a covered auto for Liability Coverage while being used by, and for Physical Damage Coverage while in the care, custody or control of, any of your "executive officers", except: An auto owned by that "executive officer" or a member of that person's household; or An auto used by that "executive officer" while working in a business of selling, servicing, repairing or parking autos. Such Liability and/or Physical Damage Coverage as is afforded by this provision. Equal to the greatest of those coverages afforded any covered auto; and Excess over any other collectible insurance. For purposes of this provision, "executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document, and, while a resident of the same household, includes that person's spouse. Such "executive officers" are insureds while using a covered auto described in this provision. BUSINESS AUTO CONDITIONS Duties In The Event Of Accident, Claim, Suit Or Loss The following is added to Section IV, Paragraph A.2.a.: Policy No: BUA 6076590520 Policy Effective Date: 08/01/2022 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 3 of 4 Underwriting Company: American Casualty Company Of Reading, PA, 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Business Auto Policy Policy Endorsement (4) (6) B. C. D. E. a. V. Your employees may know of an accident or loss. This will not mean that you have such knowledge, unless such accident or loss is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. The following is added to Section IV, Paragraph A.2.b.: Your employees may know of documents received concerning a claim or suit. This will not mean that you have such knowledge, unless receipt of such documents is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. Transfer Of Rights Of Recovery Against Others To Us The following is added to Section IV, Paragraph A.5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have, because of payments we make for injury or damage, against any person or organization for whom or which you are required by written contract or agreement to obtain this waiver from us. This injury or damage must arise out of your activities under a contract with that person or organization. You must agree to that requirement prior to an accident or loss. Concealment, Misrepresentation or Fraud The following is added to Section IV, Paragraph B.2.: Your failure to disclose all hazards existing on the date of inception of this Coverage Form shall not prejudice you with respect to the coverage afforded provided such failure or omission is not intentional. Other Insurance The following is added to Section IV, Paragraph B.5.: Regardless of the provisions of Paragraphs 5.a. and 5.d. above, the coverage provided by this policy shall be on a primary non-contributory basis. This provision is applicable only when required by a written contract. That written contract must have been entered into prior to Accident or Loss. Policy Period, Coverage Territory Section IV, Paragraph B. 7.(5).(a). is revised to provide: 45 days of coverage in lieu of 30 days. DEFINITIONS Section V. paragraph C. is deleted and replaced by the following: Bodily injury means bodily injury, sickness or disease sustained by a person, including mental anguish, mental injury or death resulting from any of these. Policy No: BUA 6076590520 Policy Effective Date: 08/01/2022 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 13; Page: 4 of 4 Underwriting Company: American Casualty Company Of Reading, PA 151 N Franklin St, Chicago, IL 60606 © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Business Auto Policy Policy Endorsement WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US (WAIVER OF SUBROGATION) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Named Insured: HARRIS & ASSOCIATES INC. Endorsement Effective Date: 08/01/2022 SCHEDULE Name(s) Of Person(s) Or Organization(s): ANY PERSON OR ORGANIZATION FOR WHOM OR WHICH YOU ARE REQUIRED BY WRITTEN CONTRACT OR AGREEMENT TO OBTAIN THIS WAIVER FROM US. YOU MUST AGREE TO THAT REQUIREMENT PRIOR TO LOSS. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. The Transfer Of Rights Of Recovery Against Others To Us condition does not apply to the person(s) or organization(s) shown in the Schedule, but only to the extent that subrogation is waived prior to the "accident" or the "loss" under a contract with that person or organization. Policy No: BUA 6076590520 Policy Effective Date: 08/01/2022 Form No: CA 04 44 10 13 Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 4; Page: 1 of 1 Underwriting Company: American Casualty Company Of Reading, PA, 151 N Franklin St, Chicago, IL 60606 © Copyright Insurance Services Office, Inc., 2011 DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D Workers Compensation And Employers Liability Insurance Policy Endorsement BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS This endorsement changes the policy to which it is attached. It is agreed that Part One - Workers’ Compensation Insurance G. Recovery From Others and Part Two - Employers’ Liability Insurance H. Recovery From Others are amended by adding the following: We will not enforce our right to recover against persons or organizations. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) PREMIUM CHARGE - Refer to the Schedule of Operations The charge will be an amount to which you and we agree that is a percentage of the total standard premium for California exposure. The amount is 2%. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. 60606 Policy No: WC 7034219554 Policy Effective Date: 08/01/2022 Policy Page: 32 of 48 Form No: G-19160-B (11-1997) Endorsement Effective Date: Endorsement Expiration Date: Endorsement No: 2; Page: 1 of 1 Underwriting Company: American Casualty Company Of Reading, PA 151 N Franklin St, Chicago, IL © Copyright CNA All Rights Reserved. DocuSign Envelope ID: EA8939C0-FA0F-4CF8-9380-6394ECF3569D