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Gordian Group Inc; 2017-05-16; CA1537
CA1537 City Attorney Approved Version 1/30/13 1 of 2 AMENDMENT NO. 3 TO EXTEND THE AGREEMENT FOR JOB ORDER CONTRACTING CONSULTING SERVICES THE GORDIAN GROUP, INC. This Amendment No. 3 is entered into and effective as of the day of , 2020, extending the agreement dated May 16, 2017 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, ("City"), and The Gordian Group, Inc., a Georgia corporation, (“Contractor") (collectively, the “Parties”) for JJob Order Contracting consulting services. RECITALS A. On May 15, 2019, the Parties executed Amendment No. 2 to exercise its option to extend and fund the Agreement for an additional one (1) year period ending on May 15, 2020 on a time and materials basis not-to-exceed one hundred thousand dollars ($100,000); and B. On April 26, 2018, the Parties executed Amendment No. 1 to exercise its option to extend and fund the Agreement for an additional one (1) year period ending on May 15, 2019 on a time and materials basis not-to-exceed one hundred thousand dollars ($100,000); and C. The Parties desire to exercise an additional option to extend and fund the Agreement for an additional one (1) year period ending on May 15, 2021 on a time and materials basis not-to-exceed one hundred thousand dollars ($100,000). NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on May 15, 2021 on a time and materials basis not- to-exceed one hundred thousand dollars ($100,000). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. /// /// /// DocuSign Envelope ID: 81780D88-3C91-4A89-85EB-70A0B29D853E March 20th CA1537 City Attorney Approved Version 1/30/13 2 of 2 4. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR THE GORDIAN GROUP, INC., a Georgia corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) For Scott Chadwick, City Manager (print name/title) ATTEST: By: (sign here) For Barbara Engleson, City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or Vice-President Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: Assistant City Attorney DocuSign Envelope ID: 81780D88-3C91-4A89-85EB-70A0B29D853E Ammon T. Lesher Vice President, General Counsel CFOKate Morgan CA1537 City Attorney Approved Version 1/30/13 1 of 2 AMENDMENT NO. 2 TO EXTEND THE AGREEMENT FOR JOB ORDER CONTRACTING CONSULTING SERVICES THE GORDIAN GROUP, INC. This Amendment No. 2 is entered into and effective as of the _______ day of ___________________________, 2019, extending the agreement dated May 16, 2017 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, ("City"), and The Gordian Group, Inc., a Georgia corporation, (“Contractor") (collectively, the “Parties”) for Job Order Contracting consulting services. RECITALS A. On April 26, 2018, the Parties executed Amendment No. 1 to exercise its option to extend and fund the Agreement for an additional one (1) year period ending on May 16, 2019 on a time and materials basis not-to-exceed one hundred thousand dollars ($100,000); and B. The Parties desire to exercise an additional option to extend and fund the Agreement for an additional one (1) year period ending on May 15, 2020 on a time and materials basis not-to-exceed one hundred thousand dollars ($100,000). NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on May 15, 2020 on a time and materials basis not-to-exceed one hundred thousand dollars ($100,000). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. /// /// /// /// /// /// DocuSign Envelope ID: 8334FCA6-7353-47E1-8DDF-C0AB1BA6BC76 May 15th CA1537 City Attorney Approved Version 1/30/13 2 of 2 4. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR THE GORDIAN GROUP, INC., a Georgia corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) For Scott Chadwick, City Manager (print name/title) ATTEST: By: (sign here) For Barbara Engleson, City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or Vice-President Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _____________________________ Deputy City Attorney DocuSign Envelope ID: 8334FCA6-7353-47E1-8DDF-C0AB1BA6BC76 Ammon T. Lesher Vice President, General Counsel Kate Morgan CFO AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR JOB ORDER CONTRACTING CONSULTING SERVICES THE GORDIAN GROUP, INC. CA1537 1 is entered into and effective as of the ,Qla·fh day of ----->..-'-\jc...,J,_._..."'"'""""...,__ _____ , 2018, extending and amending the agreement dated May 16, 2017 (t "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and The Gordian Group, Inc., a Georgia corporation, ("Contractor") (collectively, the "Parties") for Job Order Contracting consulting services. RECITALS A. The Parties desire to alter the Agreement's scope of work to extend and fund the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on May 16, 2019 on a time and materials basis not- to-exceed one hundred thousand dollars ($100,000). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill Ill Ill Ill Ill Ill City Attorney Approved Version 1 /30/13 CA1537 4. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR THE GORDIAN GROUP, INC., a Georgia corporation By: &m,n/Tlh/ ' (sign here) Ammon T. Lesher, VP and General Counsel (print name/title) By~ L:£: ' (sign here) Roy E. Kemper, VP and CFO (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California K6)(11NCV\/f=ORD ~City Manager ATTEST: \j LYYh ~· K172.12ku-L~ BARBARA ENGLESON fl c..r\..__ City Clerk If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _q_k-----..;:~:;....._____,;;~~- Deputy City Attorney City Attorney Approved Version 1 /30/13 2 149638 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) L___,,,-12/13/2017 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 pDlicy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ~~l~cT Gillian Agrippa Commercial Lines r1JgNJ0 Extl: 212-842-3670 I rffc Nol: USI Insurance Services National, Inc. E-MAIL ADDRESS: 261 Madison Ave INSURER(S) AFFORDING COVERAGE NAIC# New York, NY 10016 INSURER A: Great Northern Insurance Company 20303 INSURED INSURERS: Federal Insurance Company 20281 The Gordian Group, Inc. INSURERC: National Union Fire Ins. Co. of Pittsburgh, PA 19445 30 Patewood Drive INSURER 0: Suite 350 INSURER E: Greenville, SC 29615 INSURERF: COVERAGES CERTIFICATE NUMBER· 12494161 REVISION NUMBER: See below THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSR ADOL SUBR titt~'io''i,Vrl#Y\ ,tOLICY EXP LIMITS LTR TYPE OF INSURANCE 1 ... rn Hn,n POLICY NUMBER MMIDD/YYYYI A X COMMERCIAL GENERAL LIABILITY X X 3589-02-76 12/11/2017 12/11/2018 EACH OCCURRENCE s 1,000.000 -n CLAIMS-MADE f><j OCCUR DAMAGE TO Rt:N I t:U PREMISES (Ea occurrence} s 1.000,000 MED EXP (Any one person! s 10,000 -PERSONAL & ADV INJURY s 1,000,000 -GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE s 2,000.000 7 [xl PRO-0LOC PRODUCTS -COMP/OP AGG s 2,000.000 POLICY JECT OTHER· s A AUTOMOBILE LIABILITY >--X X 7355-02-70 12/11/2017 12/11/2018 fOMBINED SINGLE LIMIT Ea accident\ s 1,000,000 X ANY AUTO BODILY INJURY (Per person) s ~ OWNED -SCHEDULED BODILY INJURY !Per accidenl) S -AUTOS ONLY -AUTOS HIRED NON-OWNED Comp. Ded. $1,000 ip~?~;~J.;.RAMAGE s -AUTOS ONLY -AUTOS ONLY Coll. Ded. $1,000 s B X UMBRELLA LIAB M OCCUR 7983-69-96 12/11/2017 12/11/2018 EACH OCCURRENCE s 10,000.000 -EXCESS LIAB CLAIMS-MADE AGGREGATE s 10,000,000 OED I I RETENTION$ s WORKERS COMPENSATION X 7173-64-73 12/11/2017 12/11/2018 x I ~ffTuTE I I OTH-B AND EMPLOYERS' LIABILITY ER YIN 1.000,000 ANYPROPRIETOR/PARTNER/EXECUTIVE D E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ 1,000,000 ~~rc~~b~ o1;PERATIONS below E.L. DISEASE -POLICY LIMIT s 1,000,000 C Errors & Omissions 03-877-79-76 12/11/2017 12/11/2018 $3,000,000 Aggregate Limit Claims Made Policy $3,000,000 Each Claim Retroactive Date:12/11/07 Retention: $25,000 I DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES !ACORD 101, Additional Remarks Sehedule, may be attaehed If more spaee Is required) The City of Carlsbad is included as Additional Insured with respects to General Liability as per written contract. A Waiver of Subrogation is included with respects to Workers Compensation as per written contract. Includes 30 days notice of cancellation with respects to all policies above (excluding E&O Liability), per policy provisions. CERTIFICATE HOLDER CANCELLATION City of Carlsbad / CMWD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE c/o EXIGIS Insurance Compliance Services THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. P.O. Box 4668 -EXM #35050 New York, NY 10163-4668 AUTHORIZED REPRESENTATIVE 9(-41-- The ACORD name and logo are registered marks of ACORD © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) (Thq, airtlble replaces 01rtifk:atet 12493928 issued on 12/13/2017) Policy Number: 3589-02-76 OTO Conditions (continued) Transfer Or Waiver Of Rights Of Recovery Against Others LiabI1il'/ lnsurancs Form 80-02-2000 (Rev. 4-01 J Blanket General Liability Waiver of Subrogation Endorsement We will waive the right of recovery we would otherwise have had against another person or organization, for loss to which this insurance applies, provided the insured has waived their rights of recovery against such person or organization in a contract or agreement that is executed before such loss. To the extent that the lmured's rights to recover all or part of any payment made under this insurance have not been waived, those rights are transferred to us. The insured must do nothing after loss to impair them At our request. the insured will bring suit or transfer those rights to us and help us enforce them This condition does not apply to medical expenses. Contract Pags24of32 CHUBB" Policy Conditions Endorsement Policy Period Effective Date Policy Number Insured Name of Company Date Issued DECEMBER 11, 2017 TO DECEMBER 11, 2018 DECEMBER 11, 2017 3589-02-76 DTO THE GORDIAN GROUP INC. GREAT NORTHERN INSURANCE COMPANY DECEMBER 15, 2017 This Endorsement applies to the following forms: COMMON POLICY CONDIDONS Conditions Notice Of Cancellation To Scheduled Persons Or Organizations When We Cancel Policy Conditions Form 80-02-9779 (Ed. 3-11) Under Conditions, the following condition is added. When we cancel this policy for any reason, other than non-payment of premium, we will notify person(s) or organization(s) shown in the Schedule at least 30 days in advance of the cancellation date. Any failure by us to notify such person(s) or organization(s) will not: • impose any liability or obligation of any kind upon us; or • invalidate such cancellation. Schedule Person(s) or Organization(s): ALAMEDA COUNTY GENERAL SERVICES AGENCY ATTN: GARY RUSSELL Address: 1401 LAKESIDE DR., SUITE 600, OAKLAND, CA 94612 Person(s) or Organization(s): ANCHORAGE SCHOOL DISTRICT PURCHASING DEPAR1MENT Address: 4919 VAN BUREN ST., ANCHORAGE, AK 99517-3188 Notice Of Cencel/ation To Schedu/ed Parsons Or Organizations (Except No~Payment Of Premium) Endorsement continued Page 1 CHUBB" Policy Conditions Endorsement Policy Period Effective Date Policy Number Insured Name of Company Date Issued DECEMBER 11, 2017 TO DECEMBER 11, 2018 DECEMBER 11, 2017 3589-02-76 DTO TIIE GORDIAN GROUP INC. GREAT NORTHERN INSURANCE COMPANY DECEMBER 15, 2017 This Endorsement applies to the following forms: COMMON POLICY CONDIDONS SCHEDULE (CONTINUED) Policy Conditions Form 80-02-9310 (Ed. 4-94) THE FOLWWING INFORMATION IS ADDED TO FORM 80-02-9779: PATEWOOD HOLDINGS, LLC CJO TRINITY PARTNERS MANAGEMENT, LLC 801NTERNATIONALDRIVE, STE.150 GREENVILLE, SC 29615 CITY OF CARLSBAD/ CMWD CJO IDOGIS INSURANCE COMPLIANCE SERVICES P.O. BOX 4668 -EXM #35050 NEW YORK, NY 10163-4668 All other terms and conditions remain unchanged. Authorized Representative NOTICE OF CNCL SCH PERSONSIORG EXCPT NP CONT Endorsement fastpsge Page 1 Name & Mailing Address of the Insured THE GORDIAN GROUP, INC. 30 PATEWOOD DRIVE, SUITE 350 GREENVILLE SC 29615 FEIN 581900371 Name & Address of the Producer WELLS FARGO INSURANCE SERVICES USA, INC 150 E. 42ND ST. 16TH FL. NEWYORK NY 10017 Producer Number 7-70378 999 WC000313 Attached to and Forming Part of Polley Number (18)7173-64-73 Policy Period 12/11/17 to 12/11/18 Effective Date 12/11/17 Name of Company CHUBB INDEMNITY INSURANCE COMPANY N.C.C.I. Carrier Code 31720 Endorsement Number WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT CONTINUED SANDAG C/O EBIX BPO P.O. BOX 881639 SAN DIEGO CA 92168-1639 CONTRACT #5000891-JOC CHICAGO TRANSIT AUTHORITY ATTN: GAIL CLISBY, RISK COMPLIANCE 567 W LAKE STREET CHICAGO, IL 60661-1498 CITY OF KANSAS CITY, MISSOURI PROCUREMENT SERVICES DIVISION 414 E. 12TH ST, 1ST FL, RM 102W KANSAS CITY, MO 64106 PALM BEACH COUNTY C/O FACILITIES DEVELOPMENT & OPERATIONS CAPITAL IMPROVEMENT DIVISION 2633 VISTA PARKWAY WEST PALM BEACH, FL 33411 NEW YORK CITY HOUSING AUTHORITY 90 CHURCH STREET, 6TH FLOOR NEW YORK, NY 10007 STATE OF ARIZONA SCHEDULE ITS DEPARTMENTS, AGENCIES, BOARDS, COMMISSIONS, UNIVERSITIES AND ITS OFFICERS, OFFICIALS, AGENTS, AND EMPLOYEES FOR LOSSES ARISING FROM WORK PERFORMED BY OR ON BEHALF OF THE CONTRACTOR Issue Date 12/11 /17 OTO CLO WC 99 06 08 (Rev. 5-88) (Formerly 08-02-0035) CHUBB. CITY OF IRVINE AND ITS EMPLOYEES, REPRESENTATIVES, OFFICERS AND AGENTS C/O EBIX RCS PO BOX 257, REF# 113-6749 PORTLAND, Ml 48875-0257 SAN DIEGO HOUSING COMMISSION, SAN DIEGO HOUSING AUTHORITY AND CITY OF SAN DIEGO THEIR COMMISSIONERS, OFFICERS AND EMPLOYEES 1122 BROADWAY, SUITE 300 SAN DIEGO, CA 92101 THE REGIONAL MUNICIPALITY OF NIAGARA ATTENTION: CORPORATE SERVICES, LEGAL DIVISION 2201 ST. DAVID'S ROAD P.O. BOX 1042 THOROLD, ONTARIO L2V 4T7 CITY OF IRVINE AND ITS EMPLOYEES, REPRESENTATIVES, OFFICERS AND AGENTS C/O EBIX RCS PO BOX 257 REF.# 113-8937 PORTLAND, Ml 48875-0257 BLANKET APPLIES -PERSONS OR ORGANIZATIONS THAT YOU ARE OBLIGATED, PURSUANT TO WRITTEN CONTRACT OR AGREEMENT BETWEEN YOU AND SUCH PERSON OR ORGANIZATION, TO PROVIDE WITH SUCH INSURANCE AS IS AFFORDED BY THIS POLICY. THE CITY OF FRESNO, ITS OFFICERS, OFFICIALS, EMPLOYEES, AGENTS AND VOLUNTEERS. C/O PUBLIC WORKS ATTN: DEBRA BERNARD 210"G"STREET,BLDG.C FRESNO, CA 93706-1620 DIRECTOR OF RISK MANAGEMENT MS-670 WILLIAM MARSH RICE UNIVERSITY P.O. BOX 1892 HOUSTON, TX 77251-1892 PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, ITS OFFICERS, EMPLOYEES AND AGENTS. C/O CAPITAL IMPROVEMENTS DIVISION 2633 VISTA PARKWAY WEST PALM BEACH, FL 33411-5604 PALM BEACH COUNTY C/O INSURANCE TRACKING SERVICES, INC. P.O. BOX 20270 LONG BEACH, CA 90801 City of Bellingham 2221 Pacific Street Bellingham, WA 98229 **This endorsement is not applicable for use in the states of Arizona and Florida** All Other Terms and Conditions Remain Unchanged Authorized Representative Issue Date 12/11 /17 DTO CLD WC 99 06 08 (Rev. 5-88) (Former!y 08-02-0035) Name & Mailing Addreaa of the Insured THE GORDIAN GROUP, INC. 30 PATEWOOD DRIVE, SUITE 350 GREENVILLE SC 29615 FEIN 581900371 Name & Address of the Producer WELLS FARGO INSURANCE SERVICES USA, INC 150 E. 42ND ST. 16TH FL. NEWYORK NY 10017 Producer Number 7-70378 999 Attached to and Forming Part of Policy Number (18)7173-64-73 Policy Period 12/11/17 to 12/11/18 Effective Date 12/11/17 Name of Company CHUBB INDEMNITY INSURANCE COMPANY N.C.C.I. Carrier Code 31720 Endorsement Number Continuation of WC 99 06 44 (Ed. 6-11) NOTICE OF CANCELLATION LOS ANGELES COMMUNITY (OTHER THAN NONPAYMENT OF PREMIUM) - SCHEDULED PERSON(S) OR ORGANIZATION(S) SCHEDULE DEVELOPMENT COMMISSION 700 W. MAIN STREET ALHAMBRA, CA 91801 COUNTY OF LOS ANGELES CONSTRUCTION MANAGEMENT DIVISION GARRISON GREENVILLE PATEWOOD I, LLC C/O TRINITY PARTNERS MANAGEMENT, LLC GREENVILLE, SC 29615 BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM AND UNIVERSITY, CLAUDIA TAYLOR JOHNSON HAL 210 WEST 6TH STREET, STE. B.140E AUSTIN, TX 78701 COALITION FOR ADEQUATE SCHOOL HOUSING (C.A.S.H.) 1303 J STREET SUITE 520 SACRAMENTO, CA 95814 UNISYS AUSTRALIA PTY LIMITED GROUND FLOOR 52 DOUGLAS STREET MIL TON QLD 4064 AUSTRALIA Issue Date 12/11 /17 DTO CLO WC 99 06 08 (Rev. 5-88) (Formerly 08-02-0035) CHUBB'" PEPPERDINE UNIVERSITY 24255 PACIFIC COAST HIGHWAY MALIBU, CA 90263-4581 / CITY OF CARLSBAD/ CMWD C/O EXIGIS INSURANCE COMPLIANCE SERVICES P.O. BOX 4668 -EXM #35050 NEW YORK, NY 10163-4668 **This endorsement is not applicable for use in the states of Arizona and Florida** All Other Terms and Conditions Remain Unchanged Authorized Representative Issue Date 12/11 /17 DTO CLD WC 99 06 08 (Rev. 5-88) (Formerly 08-02-0035) COMMERCIAL AUTOMOBILE THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM This endorsement modifies the Business Auto Coverage Form. 1. EXTENDED CANCELLATION CONDITION Paragraph A.2.b. -CANCELLATION -of the COMMON POLICY CONDITIONS form IL 00 17 is deleted and replaced with the following: b. 60 days before the effective date of cancellation if we cancel for any other reason. 2. BROAD FORM INSURED A. Subsidiaries and Newly Acquired or Formed Organizations As Insureds The Named Insured shown in the Declarations is amended to include: 1. Any legally incorporated subsidiary in which you own more than 50% of the voting stock on the effective date of the Coverage Form. However, the Named Insured does not include any subsidiary that is an "insured" under any other automobile policy or would be an "insured" under such a policy but for its termination or the exhaustion of its Limit of Insurance. 2. Any organization that is acquired or formed by you and over which you maintain majority ownership. However, the Named Insured does not include any newly formed or acquired organization: (a) That is an "insured" under any other automobile policy; (b) That has exhausted its Limit of Insurance under any other policy; or (c) 180 days or more after its acquisition or formation by you, unless you have given us written notice of the acquisition or formation. Coverage does not apply to "bodily injury" or "property damage" that results from an "accident" that occurred before you formed or acquired the organization. B. Employees as Insureds Paragraph A 1. -WHO IS AN INSURED -of SECTION 11 -LIABILITY COVERAGE is amended to add the following: d. Any "employee" of yours while using a covered "auto" you don't own, hire or borrow in your business or your personal affairs. C. Lessors as Insureds Paragraph A.1. -WHO IS AN INSURED -of SECTION II -LIABILITY COVERAGE is amended to add the following: e. The lessor of a covered "auto" while the "auto" is leased to you under a written agreement if: (1) The agreement requires you to provide direct primary insurance for the lessor; and (2) The "auto'' is leased without a driver. Such leased "auto" will be considered a covered "auto" you own and not a covered "auto" you hire. However, the lessor is an "insured" only for "bodily injury" or "property damage" resulting from the acts or omissions by: 1. You; 2. Any of your "employees" or agents; or 3. Any person, except the lessor or any "employee" or agent of the lessor, operating an "auto" with the permission of any of 1. and/or 2. above. D. Persons And Organizations As Insureds Under A Written Insured Contract Paragraph A.1 -WHO IS AN INSURED -of SECTION II -LIABILITY COVERAGE is amended to add the following: f. Any person or organization with respect to the operation, maintenance or use of a covered "auto", provided that you and such person or organization have agreed under an express provision in a written "insured contract", written agreement or a written permit issued to you by a governmental or public authority to add such person or organization to this policy as an "insured". However, such person or organization is an "insured" only: Form: 16-02-0292 (Rev.11-16) Page 1 of3 "Includes copyrighted material of Insurance Services Office, Inc. with its permission" (1) with respect to the operation, maintenance or use of a covered "auto"; and (2) for "bodily injury" or "property damage" caused by an "accident" which takes place after: (a) You executed the "insured contract" or written agreement; or (b) The permit has been issued to you. 3. FELLOW EMPLOYEE COVERAGE EXCLUSION 8.5. -FELLOW EMPLOYEE -of SECTION II -LIABILITY COVERAGE does not apply. 4. PHYSICAL DAMAGE -ADDITIONAL TEMPORARY TRANSPORTATION EXPENSE COVERAGE Paragraph A.4.a. -TRANSPORTATION EXPENSES -of SECTION Ill -PHYSICAL DAMAGE COVERAGE is amended to provide a limit of $50 per day for temporary transportation expense, subject to a maximum limit of $1,000. 5. AUTO LOAN/LEASE GAP COVERAGE Paragraph A. 4. -COVERAGE EXTENSIONS -of SECTION Ill -PHYSICAL DAMAGE COVERAGE is amended to add the following: c. Unpaid Loan or Lease Amounts In the event of a total "loss" to a covered "auto", we will pay any unpaid amount due on the loan or lease for a covered "auto· minus: 1. The amount paid under the Physical Damage Coverage Section of the policy; and 2. Any: a. Overdue loan/lease payments at the time of the "loss"; b. Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage; c. Security deposits not returned by the lessor: d. Costs for extended warranties, Credit Life Insurance, Health. Accident or Disability Insurance purchased with the loan or lease; and e. Carry-over balances from previous loans or leases. We will pay for any unpaid amount due on the loan or lease if caused by: 1. Other than Colfision Coverage only if the Declarations indicate that Comprehensive Coverage is provided for any covered "auto"; 2. Specified Causes of Loss Coverage only if the Declarations indicate that Specified Causes of Loss Coverage is provided for any covered "auto"; or 3. Collision Coverage only if the Declarations indicate that Collision Coverage is provided for any covered "auto. 6. RENT AL AGENCY EXPENSE Paragraph A. 4. -COVERAGE EXTENSIONS -of SECTION Ill -PHYSICAL DAMAGE COVERAGE is amended to add the following: d. Rental Expense We will pay the following expenses that you or any of your "employees" are legally obligated to pay because of a written contract or agreement entered into for use of a rental vehicle in the conduct of your business: MAXIMUM WE WILL PAY FOR ANY ONE CONTRACT OR AGREEMENT: 1. $2,500 for loss of income incurred by the rental agency during the period of time that vehicle is out of use because of actual damage to, or "loss" of, that vehicle, including income lost due to absence of that vehicle for use as a replacement; 2. $2,500 for decrease in trade-in value of the rental vehicle because of actual damage to that vehicle arising out of a covered "loss"; and 3. $2,500 for administrative expenses incurred by the rental agency, as stated in the contract or agreement. 4. $7,500 maximum total amount for paragraphs 1 .. 2. and 3. combined. 7. EXTRA EXPENSE -BROADENED COVERAGE Paragraph A.4. -COVERAGE EXTENSIONS -of SECTION Ill-PHYSICAL DAMAGE COVERAGE is amended to add the following: e. Recovery Expense We will pay for the expense of returning a stolen covered "auto" to you. 8. AIRBAG COVERAGE Paragraph 8.3.a. -EXCLUSIONS -of SECTION Ill -PHYSICAL DAMAGE COVERAGE does not apply to the accidental or unintended discharge of an airbag. Coverage is excess over any other collectible insurance or warranty specifically designed to provide this coverage. 9. AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT -BROADENED COVERAGE Paragraph C.1.b. -LIMIT OF INSURANCE -of SECTION Ill -PHYSICAL DAMAGE is deleted and replaced with the following: b. $2,000 is the most we will pay for "loss" in any one "accident" to all electronic equipment that reproduces, receives or transmits audio, visual or data signals which, at the time of "loss", is: (1) Permanently installed in or upon the covered "auto" in a housing, opening or other location that is not normally used by the "auto" manufacturer for the installation of such equipment; (2) Removable from a permanently installed housing unit as described in Paragraph 2.a. above or is an integral part of that equipment; or (3) An integral part of such equipment. 10. GLASS REPAIR-WAIVER OF DEDUCTIBLE Form: 16-02-0292 (Rev. 11-16) Page 2 of 3 "Includes copyrighted material of Insurance Services Office. Inc. with its permission" Under Paragraph D. -DEDUCTIBLE -of SECTION Ill -PHYSICAL DAMAGE COVERAGE the following is added: No deductible applies to glass damage if the glass is repaired rather than replaced. 11. TWO OR MORE DEDUCTIBLES Paragraph D.-DEDUCTIBLE -of SECTION Ill - PHYSICAL DAMAGE COVERAGE is amended to add the following: If this Coverage Form and any other Coverage Form or policy issued to you by us that is not an automobile policy or Coverage Form applies to the same "accident", the following applies: 1. If the deductible under this Business Auto Coverage Form is the smaller (or smallest) deductible, it will be waived; or 2. If the deductible under this Business Auto Coverage Form is not the smaller (or smallest) deductible, it will be reduced by the amount of the smaller (or smallest) deductible. 12. AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS Paragraph A.2.a. -DUTIES IN THE EVENT OF AN ACCIDENT, CLAIM, SUIT OR LOSS of SECTION IV -BUSINESS AUTO CONDITIONS is deleted and replaced with the following: a. In the event of "accident", claim, "suit" or "loss", you must promptly notify us when the "accident" is known to: (1) You or your authorized representative, if you are an individual; (2) A partner, or any authorized representative, if you are a partnership; (3) A member, if you are a limited liability company; or (4) An executive officer, insurance manager, or authorized representative, if you are an organization other than a partnership or limited liability company. Knowledge of an "accident", claim, "suit" or "loss" by other persons does not imply that the persons listed above have such knowledge. Notice to us should include: ( 1) How, when and where the "accident" or "loss" occurred; (2) The "insured's" name and address; and (3) To the extent possible, the names and addresses of any injured persons or witnesses. 13. WAIVER OF SUBROGATION Paragraph A.5. -TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US of SECTION IV -BUSINESS AUTO CONDITIONS is deleted and replaced with the following: 5. We will waive the right of recovery we would otherwise have against another person or organization for "loss" to which this insurance applies, provided the "insured" has waived their rights of recovery against such person or organization under a contract or agreement that is entered into before such "loss". To the extent that the "insured's" rights to recover damages for all or part of any payment made under this insurance has not been waived, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after "accident" or "loss" to impair them. At our request, the insured will bring suit or transfer those rights to us and help us enforce them. 14. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS Paragraph 8.2. -CONCEALMENT, MISREPRESENTATION or FRAUD of SECTION IV -BUSINESS AUTO CONDITIONS -is deleted and replaced with the following: If you unintentionally fail to disclose any hazards existing at the inception date of your policy, we will not void coverage under this Coverage Form because of such failure. 15. AUTOS RENTED BY EMPLOYEES Paragraph 8.5. -OTHER INSURANCE of SECTION IV -BUSINESS AUTO CONDITIONS - is amended to add the following: e. Any "auto" hired or rented by your "employee" on your behalf and at your direction will be considered an "auto" you hire. If an "employee's" personal insurance also applies on an excess basis to a covered "auto" hired or rented by your "employee" on your behalf and at your direction, this insurance will be primary to the "employee's" personal insurance. 16. HIRED AUTO -COVERAGE TERRITORY Paragraph B.7.b.(5). -POLICY PERIOD, COVERAGE TERRITORY of SECTION IV - BUSINESS AUTO CONDITIONS is deleted and replaced with the following: (5) A covered ·auto" of the private passenger type is leased, hired, rented or borrowed without a driver for a period of 45 days or less; and 17. RESULTANT MENTAL ANGUISH COVERAGE Paragraph C. of -SECTION V -DEFINITIONS is deleted and replaced by the following: ''Bodily injury" means bodily injury, sickness or disease sustained by any person, including mental anguish or death as a result of the "bodily injury" sustained by that person. Form: 16-02-0292 (Rev. 11-16) Page 3 of 3 "Includes copyrighted material of Insurance Services Office. Inc. with its permission" CA1537 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed one hundred thousand dollars ($1 00,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed one hundred thousand dollars ($1 00,000) per Agreement year. The Contractor shall be entitled to compensation at the rates set forth in Exhibit "A". Contractor shall invoice the City monthly, and all invoices shall be payable within thirty (30) days of receipt. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney's fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. City Attorney Approved Version 4/1/15 2 CA1537 The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 1 0.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 1 0.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 1 0.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of three years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. City Attorney Approved Version 4/1/15 3 CA1537 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS 13.1 Excluding the Proprietary Information as set forth in the JOC System License below, any other work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 13.2 JOC System License 13.2.1 The Gordian Group, Inc. ("Gordian") hereby grants to the City of Carlsbad (the "City"), and City hereby accepts from Gordian for the term of this Agreement, a non-exclusive, non-transferrable right, privilege and license to Gordian's Job Order Contracting ("JOC") System and other related proprietary materials (collectively referred to as "Proprietary Information") to be used for the sole purpose of operating City's JOC program. The parties hereby agree that Proprietary Information shall include, but is not limited to, the eGordian® applications and support documentation, construction cost data, Construction Task Catalog®, training materials and other proprietary materials provided by Gordian. In the event this Agreement expires or terminates as provided herein, this JOC System License shall terminate and the City shall return to Gordian all Proprietary Information in the City's possession. 13.2.2 City acknowledges that the unauthorized disclosure of Proprietary Information will result in irreparable harm to Gordian for which monetary damages would be an inadequate City Attorney Approved Version 4/1/15 4 CA1537 remedy and agrees that no such disclosure shall be made to anyone without first receiving the written consent of Gordian. City further acknowledges and agrees to respect the copyrights, registrations, trade secrets and other proprietary rights of Gordian in the Proprietary Information during and after the term of this Agreement and shall at all times maintain complete confidentiality with regard to the Proprietary Information provided to the City. 13.2.3 Gordian agrees to grant a license to each contractor that is awarded a JOC contract by City, provided the JOC contractor agrees to pay Gordian's contractor license fee in effect when City awards the JOC contract, and provided City includes licensing language in the JOC contract similar in form to this JOC System License. 13.2.4 Upon expiration or termination of this Agreement as provided herein, Gordian shall provide all data generated by City in a form accessible by a standard database program, such as Microsoft Access. 13.2.5 In the event of a conflict in terms and conditions between this JOC System License and any other terms and conditions of any agreement, purchase order or other similar purchasing document issued by City, this JOC System License shall take precedence. 14. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Graham Jordan Title Contract Administrator Department Public Works City of Carlsbad Address 1635 Faraday Ave Carlsbad, CA 92008 Phone No. 760-602-2462 For Contractor Name Ammon T. Lesher Title Project Manager Address 30 Patewood Drive, Bldg. 2, Suite 350 Greenville, SC 29615 Phone No. 800-874-2291 Email a.lesher@gordian.com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 15. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 16. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. City Attorney Approved Version 4/1/15 5 CA1537 Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 17. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 18. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 19. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 20. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. City Attorney Approved Version 4/1/15 6 CA1537 21. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 22. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 23. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 24. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. Ill Ill Ill Ill Ill Ill Ill Ill Ill City Attorney Approved Version 4/1/15 7 Exhibit ··a" Virtual Private Network Acceptable Use Agreement Purpose The purpose of this policy is to define standards for VPN remote access connectivity to the City of Carlsbad's network. These standards are designed to minimize the potential exposure to City of Carlsbad from damages resulting from unauthorized or misuse of City of Carlsbad's network resources. Damages include, but are not limited to: the loss of sensitive or confidential data, damage to public image and damage to critical City of Carlsbad computing systems. Scope This policy applies to all City of Carlsbad employees, contractors, vendors, third party and agents, hereafter referred to as Remote User, who have been authorized to connect via a VPN remotely to the City of Carlsbad. This applies to any and all services, ports and protocols including but not limited to email, intranet, internet browsing, file and application access, remote desktop connections, PC Anywhere connections, server management and application management. The Remote User bears the responsibility, liability and consequences resulting from misuse of this access. The Remote User is responsible for selecting an Internet Service Provider (ISP), coordinating installation, installing any required software, and paying associated fees. Not all desktop operating systems may be supported. Definitions Dual Homing: Having concurrent connectivity to more than one network from a computer or network device. Examples include: Being logged into the corporate network via a local Ethernet connection, and dialing into AOL or other Internet service provider (ISP), i.e. being connected remotely to the City of Carlsbad network, and connecting to another network with a different network card (wireless, dial-up, evdo). Remote Access: Any access to City of Carlsbad's corporate network through a non-City of Carlsbad controlled network, device, or medium. Remote User: Any City 'of Carlsbad employee, contractor, vendor or third party with remote access privileges to City of Carlsbad's corporate networks. Split-tunneling: Simultaneous direct access to a non-City of Carlsbad network (such as the Internet or a home network) from a remote device (PC, PDA, WAP phone, etc.) while connected into City of Carlsbad's corporate network via a VPN tunnel. VPN: Virtual Private Network (VPN) is a secure data path traversing a non-secure medium, such as the internet. Security is achieved by tunneling the data through an encrypted communication link from source to destination. Logon and password authentication is implemented using various products and techniques. The final result is a safe and secure method of utilizing remote access. Requirements and Responsibilities 1. It is the responsibility of the Remote User to ensure that unauthorized users are not allowed access to City of Carlsbad internal networks through their VPN connection. 2. VPN remote access is to be controlled using either a one-time password authentication such as a token device, a public/private key system with a strong passphrase, or a secure password that changes frequently. 3. General access to the Internet for recreational use by immediate household members through the City of Carlsbad Network using a Remote Access connection is not permitted. The Remote User is responsible for ensuring that family members do not access the Carlsbad network while the secure connection is active -1- Virtual Private Network Acceptable Use Agreement. doc Created on 8/31/2006 9:44:00 AM 12/6/2006 11:36:19 AM 4. At no time should any Remote User provide their login or password to anyone, not even family members. 5. Configuration of remote access PC equipment for the purpose of split-tunneling or dual homing is not permitted at any time. 6. All computers remotely connected to City of Carlsbad networks must have virus scanning software installed, up to date and operational at all times. (Preferred Anti-Virus products are - Symantec, McAfee, Trend Micro and Computer Associates. If you have a Anti-Virus product not listed, your VPN access may be delayed while a validation method is developed) 7. All remotely connected computers must have the most current security and system patches installed. 8. Only VPN clients approved by Information Technology Department may be used. 9. The VPN connection is limited to an absolute connection time of twelve (12) hours. 10. VPN users will be automatically disconnected from City of Carlsbad's network after thirty (30) minutes of inactivity. The user must then logon again to reconnect to the network. Artificial network processes are not to be used to keep the connection open. All activity will be monitored. 11. Remote Users who wish to implement remote access methods other than those provided by the City must obtain written prior approval from the Information Technology Department Director. 12. The use ofVPN technology to conduct City business may be subject to the same requirements as all other City Technology Resources. Users must understand that their machines are a de facto extension of City of Carlsbad's network, and may be subject to the provisions under the Public Records Act. Vendor/Contractorffhird Party Procedures 1. Vendor/Contractor/Third Party Remote User may only use the Network Connection for business purposes as outlined by the VPN Access Request Form. 2. City of Carlsbad Systems and Applications 2.1 Vendor/Contractor/Third Party Remote User may be supporting an Application or System owned, licensed or leased by the City of Carlsbad. 2.2 Vendor/Contractor/Third Party Remote User may modify the configuration of the City of Carlsbad Application or System only after notification and approval by authorized City of Carlsbad Information Technology personnel. 2.3 Vendor/Contractor/Third Party Remote User will not change or delete any passwords set on City of Carlsbad Application or System without prior approval by authorized City of Carlsbad Information Technology personnel. Promptly upon any such change, Vendor/Contractor/Third Party Remote User shall provide City of Carlsbad with such changed password. 3. Network Securitv 3.1 Vendor/Contractor/Third Party Remote User will be listed in the VPN Access Request Form. -2- Virtual Private Network Acceptable Use Agreement doc Created on 8/31/2006 9:44:00 AM l2/6/2006ll:36:19AM 3.2 Vendor/Contractor/Third Party's Management/Supervisor will promptly notify City of Carlsbad whenever any Authorized Remote User leaves Vendor/Contractor/Third Party's employ or no longer requires access to the Remote Access Connection or City of Carlsbad Application or System. 4. Vendor/Contractor/Third Party Remote User shall notify City of Carlsbad in writing promptly upon a change in the user base for the work performed over the Remote Access Connection or functional requirements of the Remote Access Connection are necessary. Enforcement Any Remote User found to have violated this policy will have their remote access privileges immediately revoked and may be subject to disciplinary and/or legal action. Authority: The individuals executing this Agreement and the instruments referenced in it on behalf of Employee/Vendor/Contractor/Third Party each represent and warrant that they have the legal power, right and actual authority to bind Employee/Vendor/Contractor/Third Party to the terms and conditions of this Agreement. By signing below, I understand that the City of Carlsbad will not be responsible for any damages I may incur as a result of my use of the VPN. Remote User Authorized Signature Company's President or Vice President or CEO Printed Name Printed Name Email/Phone Number Email/Phone Number Date Date (Internal use only) Department Head (Internal use only) IT Authorized Signature Printed Name Printed Name Date Date -3- Virtual Private Network Acceptable Use Agreement. doc Created on 8/31/2006 9:44:00 AM 12/6/2006 11:36:19 AM