AGREEMENT BETWEEN THE CITY OF MANHATTAN BEACH AND
MAIN STREET TOURS FOR BUS CHARTER SERVICES
THIS AGREEMENT (“Agreement”), made and effective as of December 17, 2024, between the City of Manhattan Beach, a municipal corporation (“City”) and M.S. Tours, Inc., DBA Main Street Tours, a California corporation (“Contractor”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
WHEREAS, City has the need for bus charter services; and WHEREAS, Contractor specializes in providing such services and has the proper work experience, certifications, and background to carry out the duties involved; and NOW, THEREFORE, in consideration of the mutual covenants, benefits , and premises herein stated, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall be from the date of execution to December 31, 2027, unless this Agreement is terminated or suspended pursuant to this Agreement. By mutual written agreement, the contract may be extended by the parties for two additional one-year terms.
2. SCOPE OF SERVICES
City does hereby retain Contractor, as an independent contractor, in a contractual capacity to provide bus charter services, as set forth in Exhibit A. In the event there is a conflict between the provisions of Exhibit A and this Agreement, the language contained in this Agreement shall take precedence.
Contractor shall perform the tasks described and set forth in Exhibit A. Contractor shall complete the tasks according to the schedule of performance , which is also set forth in Exhibit A.
Compensation for the services to be performed by Contractor shall be in accordance with Exhibits A and B . Compensation shall not exceed the rates or total contract value of three hundre d thousand dollars ($ 300,000) as stated in attached proposals , without a written amendment to the Agreement executed by both parties. Payment by City to Contractor shall be in accordance with the provisions of this Agreement.
3. DEFINITIONS
“Passenger” shall mean any person utilizing the services provided by Contractor as described in Exhibit A.
“Vehicle” or “backup vehicle” shall mean a bus or van designated by Contractor for use in providing services under this Agreement, including but not limited to a primary vehicle, an additional wheelchair accessible vehicle and a backup or replacement vehic le if needed due to a mechanical breakdown, traffic incident, or any reason whatsoever to provide transportation services under this Agreement. The backup or replacement vehicle shall be equipped with a wheelchair lift and be of the size, capacity, and design specified in Exhibit B, or, there shall be a secondary wheelchair accessible vehicle that will serve as a backup vehicle to the primary wheelchair accessible vehicle. All vehicles shall be in a safe and good working order. City shall have the right to approve the suitability of any vehicle used by Contractor under this Agreement.
“Revenue hours” shall mean the time when a vehicle is available to the general public and there is an expectation of carrying passengers.
4. PERFORMANCE
Contractor shall at all times faithfully, competently and to the best of their ability, experience, standard of care, and talent, perform all tasks described herein. Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Contractor hereunder in meeting its obligations under this Agreement.
5. MANAGEMENT
The individual directly responsible for Contractor’s overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between City and Contractor shall be Laurie Lincoln, and no other individual may be substituted without the prior written approval of the City Manager.
City’s contact person in charge of administration of this Agreement, and to serve as principal liaison between Contractor and City, shall be the City Manager or the City Manager’s designee.
6. PAYMENT
Taxpayer ID or Social Security numbe rs must be provided, on an IRS W -9 form, before payments may be made to vendors.
Compensation for services to be performed by Contractor shall not exceed the daily rate submitted in Contractor’s Cost Proposal Form in Exhibit B without additional authorization by City. Services shall be billed in accordance with Contractor’s proposal as it is accepted by City. City shall only pay for services actually rendered. Services rendered shall specifically exclude time for travel to a nd from Contractor’s storage facility and downtime for road assistance.
If Contractor fails to complete the work, fails to provide service for an entire day, or causes a default as specified in Section 10, Liquidated Damages, City may, at its sole option, notwithstanding other rights and remedies, assess Contractor at the hour rate detailed in Exhibit B for the respective year and at the same rate for each fraction of an hour rounding up the nearest quarter hour, beginning at onset of service failure or time of an incident that causes service to be interrupted. This assessment shall be deducted from any payment(s) due or to become due to Contractor under the terms of this Agreement.
No payment by City shall be construed as a waiver of City’s rights to deduct the assessment and the assessment may be deducted from any subsequent payment.
City agrees to pay Contractor monthly, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, based upon actual time spent on the above tasks. This amount shall not exceed three hundred thousand dollars ($300,000) for the total term of the Agreement unless additional payment is approved as provided in this Agreement.
Contractor shall not be compensated for additional services rendered in connection with its performance of this Agreement, unless such additional services and compensation are authorized, in advance, in a written amendment to the agreement executed by both parties.
Contractor shall submit invoices monthly for actual services performed. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non -disputed fees. Any expense or reimbursable cost appearing on any invoice shall be accompanied by a receipt or other documentation subject to approval of the City Manager. If City disputes any of Contractor’s fees or expenses it shall give written notice to Contractor within thirty (30) days of receipt of any disputed fees set forth on the invoice.
Funds used by City to pay for the services provided by Contractor under this Agreement are a portion of City’s allocated Proposition A transportation funds. Contractor shall have no recourse to any other funds allocated to or by City. City and Contractor expressly agree that full funding for this Agreement is contingent on the continued collection of revenues pursuant to Proposition A and the continued allocation of City’s share of those revenues to City. In the event of any repeal, amendment, interpreta tion or invalidation of any provision of Proposition A that has the effect of reducing or eliminating City’s receipt of Proposition A revenues, or any other unexpected material decline in City’s revenues, City may reduce or eliminate funding for and the le vel of services to be performed under this Agreement at a level that is generally proportionate to the elimination or reduction in City’s receipt of Proposition A revenues. City will immediately notify Contractor of any reduction or elimination of Proposition A revenues, or any other unexpected material decline in City’s revenues allocated to the performance of this Agreement, and Contractor shall not be required to perform services under this Agreement without adequate assurance of payment of services from City.
7. TERMINATION OR SUSPENSION WITHOUT CAUSE
This Agreement, or portions thereof, may be terminated, cancelled or suspended in any one of the following manners:
1) By mutual written agreement of the parties.
2) Upon ten (10) days written notice by City or thirty (30) days written notice by Contractor, with or without cause.
3) If in the sole subjective judgment of City at any time or times after the execution of this Agreement, Contractor fails to perform the services required to be provided in accordance with the terms hereof, or fails to comply with any of the requirements and terms of this Agreement City, upon at least seventy -two (72) hours written notice to Contractor, and without prejudice to any other remedies City may have, may terminate Contractor's services and any obligations City may otherwise have under this Agreement. The written notice shall instruct Contractor to cease its services as of a specified day, and City shall have no further obligation to pay for services tendered or otherwise after such date.
4) If in the sole subjective judgment of City at any time or times after the execution of this Agreement Contractor fails to maintain in force throughout the term of this Agreement, including any extensions thereof, the insurance coverage required herein, or Contractor effects any willful acts or omissions that endanger the public health and safety, City may immediately, without prior notification, and without prejudice to any other remedies City may have, suspend Contractor’s services and any obligations City may otherwise have under this Agreement. Upon receiving written notice of immediate suspension, Contractor shall have up to fourteen (14) days to cure or remedy cause for suspension; however , City may, at City’s sole discretion, terminate this Agreement within the suspension period.
Should Contractor cure or remedy the cause for suspension, and the cure or remedy is accepted, in writing, by City, Contractor may resume services.
8. BACKGROUND CHECKS
Contractor shall be registered with the Department of Justice as a Human Resources Agency. Contractor shall at a minimum perform background checks on drivers utilizing a vendor such as Live Scan to ensure that drivers with inappropriate backgrounds are not employed to provide services under this Agreement. Drivers shall have no felony conviction history.
9. DEFAULT OF CONTRACTOR
Contractor’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate or suspend this Agreement immediately by written notice to Contractor. If such failure by Contractor to make progress in the performance of work hereunder arises out of causes beyond Contractor’s control, and without fault or negligence of Contractor, it shall not be considered a default.
If the City Manager or the City Manager’s designee determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, designee shall cause to be served upon Contractor a written notice of the default. Contractor shall have fourteen (14) days after service upon it of said notice in which to cure the default by rendering a satisfactory p erformance. In the event that Contractor 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 to any other remedy to which it may be entitled at law, in equity or under this Agreement.
10. LIQUIDATED DAMAGES
Contractor shall operate strictly according to the most current bus schedule provided by City and to a reasonable on -time performance standard except where service is interrupted for those reasons stated hereinafter. Service shall be provided as scheduled or according to any adjusted schedule established by City, including route modifications required.
City may assess liquidated damages for the following defaults:
A. If the driver begins or ends a trip route late by more than twenty (20) minutes; B. If the driver departs from a stop prior to the designated departure time; C. If the vehicle in use on the trip runs out of fuel;
D. If the driver deviates from or fails to follow the itinerary as scheduled; E. If a vehicle is not properly inspected or cleaned prior to use on the route; F. If the driver fails to complete a route due to vehicle or driver failure, mechanical failure
Contractor agrees that any of the above defaults will result in damage and injury to City. City and Contractor agree that actual damages occurring to City because of any one or more of such defaults, on a given day, will be difficult if not impossible to ascertain with any degree of certainty or accuracy. Accordingly, City and Contractor have negotiated and have agreed that for each default Contractor shall pay to City, as and for liquidated damages, and not as a penalty, a sum equal to the hourly rate per vehicle compensation due to Contractor pursuant to Exhibit B of this Agreement for each hour during which the incident causing the default occurs.
Said payment for liquidated damages shall be deducted from any payments due or to become due to Contractor under the terms of this Agreement. No payment by City shall be construed as a waiver of City's right to deduct liquidated damages which may be deducted from any subsequent payment.
Contractor shall be excused from performance of the above liquidated damages during the time and to the extent that Contractor is prevented from performing in the customary manner by force majeure, fire, flood, war, riot, civil disturbance, vandalism, terr orism, epidemic, quarantine, strike, lockout, labor dispute, oil or fuel shortage, freight embargo, rationing or unavailability of materials or products, loss of transportation facilities, commandeering of equipment, materials, products, plants, or facilities of government, or any other occurrences or circumstances which are beyond the control of Contractor.
11. OWNERSHIP OF DOCUMENTS
Contractor shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by City that relate to the performance of services under this Agreement. Contractor shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly iden tified and readily accessible. Contractor shall provi de free access to the representatives of City or City’s designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records; shall permit City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Notification of audit shall be provided at least thirty (30) days before an y such audit is conducted. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment.
Upon completion of, or in the event of termination or suspension without cause of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of C ity and may be used, reused, or otherwise disposed of by City without the permission of Contractor.
With respect to computer files, Contractor shall make available to City, at Contractor’s office and upon reasonable written request by City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
12. INDEMNIFICATION AND HOLD HARMLESS
Contractor shall indemnify, defend and hold harmless City, and any and all of its officers, employees, and agents (“City Indemnitees”) from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of Contractor’s performance of its obligations under this Agreement or out of the operations conducted by Contractor, including City’s active or passive negligence, except for such lo ss or damage arising from the sole negligence or willful misconduct of City. In the event City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Contractor’s performance of this Agreement, Contractor shall provide a defense to City Indemnitees or at City’s option reimburse City Indemnitees their costs of defense, including reasonable legal counsels’ fees incurred in defense of such claims.
Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement.
In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this Section.
Failure of City to monitor compliance with these requirement s imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns , or heirs of Contractor and shall survive the termination of this Agreement or this Section.
City does not and shall not waive any rights that it may have against Contractor by reason of this Section, because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions shall apply regardless of whether or not s aid insurance policies are determined to be applicable to any losses, liabilities, damages, costs , and expenses described in this Section.
13. INSURANCE
Contractor shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit C attached hereto and incorporated herein by this reference as though set forth in full.
14. INDEPENDENT CONTRACTOR
Contractor is and shall at all times remain as to City a wholly independent Contractor.
The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Contractor or any of Contractor’s officers, employees, or agents, except as set forth in this Agreement.
Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of City. Contractor shall not incur or have the power to incur any debt, obligation, or liability against City, or bind City in any manner.
No employee benefits shall be available to Contractor in connection with the performance of this Agreement. Except for the fees paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for City. City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing services hereunder.
15. LEGAL RESPONSIBILITIES
Contractor shall keep itself informed of local, state and federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. Contractor shall at all times observe and comply with all such laws and regulations, including but not limited to the Americans with Disabilities Act, Occupational Safety and Health Administration laws and regulations, and Los Angeles Metropolitan Transportation Authority laws and regulations. City, and it s officers and employees, shall not be liable at law or in equity occasioned by failure of Contractor to comply with this Section.
16. ANTI DISCRIMINATION
Neither Contractor, nor any sub contractor under Contractor, shall discriminate in employment of persons upon the work because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status , or gender of such person, except as provided in Section 12940 of the Government Code. Contractor shall have responsibility for compliance with this Section [Labor Code Sec. 1735].
17. UNDUE INFLUENCE
Contractor declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City will receive compensation, directly or indirectly from Contractor, or any officer, employee or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to any and all remedies at law or in equity.
18. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Services during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or sub -agreement, or the proceeds thereof, for work to be performed in connection with the Services performed under this Agreement.
19. CONFLICT OF INTEREST
Contractor covenants that neither they nor any officer or principal of their firm have any interests, nor shall they acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Contractor further covenants that in the performance of this Agreement, they shall employ no person having such interest as an officer, employee, agent, or subcontractor. Contractor further covenants that Contractor has not contracted with nor is performing any services directly or indirectly, with the developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public agency(ies) owning property and/or processing an entitlement application for property in City or its Area of Interest, now or wi thin the past one (1) year, and further covenants and agrees that Contractor and/or its subcontractors shall provide no service or enter into any contract with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public agency(ies) owning property and/or processing an entitlement application for property in City or its Area of Interest, while under contract with City and for a one (1) year time period following termination of this Agreement.
20. NOTICE
Any notice to be given pursuant to this Agreement shall be in writing, and all such notices and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt reque sted, with postage prepaid, and addressed to the party for whom intended as follows:
To: City Manager
City of Manhattan Beach
1400 Highland Avenue
Manhattan Beach, CA 90266
With a courtesy copy to:
Quinn M. Barrow, City Attorney
1400 Highland Avenue
Manhattan Beach, CA 90266
If to Contractor:
Laurie Lincoln
Main Street Tours
4010 Watson Plaza Drive, Suite 139
Lakewood, CA 90712
Either party may, from time to time, by written notice to the other, designate a different address or contact person, which shall be substituted for the one above specified.
Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the third (3rd) day after deposit in the United States mail.
21. CHANGE IN NAME
Should a change be contemplated in the name or nature of Contractor’s legal entity, Contractor shall first notify City in order that proper steps may be taken to have the change reflected in the Agreement documents.
22. ASSIGNMENT
Contractor shall not assign this Agreement or any of the rights, duties or obligations hereunder. It is understood and acknowledged by the parties that Contractor is uniquely qualified to perform the services provided for in this Agreement.
23. LICENSES
At all times during the term of this Agreement, Contractor shall have in full force and effect, all licenses required of it by law for the performance of the services in this Agreement.
24. VENUE AND GOVERNING LAW
This Agreement is made, entered into, and executed in Los Angeles County, California, and any action filed in any court for the interpretation, enforcement or other action of the terms, conditions , or covenants referred to herein shall be filed in the applicable court in Los Angeles County, California. City and Contractor understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretat ion of this Agreement.
25. COST RECOVERY
In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party shall be e ntitled to recover its costs and expenses from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
26. ENTIRE AGREEMENT
This Agreement and the Exhibits attached hereto contain the entire understanding between the parties relating to the obligations of the partie s described in this Agreement.
All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material.
Exhibit A ( Scope of Work ), Exhibit B ( Fee Schedule ) and Exhibit C (Insurance Requirements), are hereby incorporated and made a part of this Agreement.
27. CAPTIONS OR HEADINGS
The captions and headings of the various Articles, Paragraphs, and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof.
28. AMENDMENTS
Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by both parties to this Agreement.
29. PRECEDENCE
In the event of conflict, the requirements of City’s Request for Proposal, if any, and this Agreement shall take precedence over those contained in Contractor’s Proposal.
30. INTERPRETATION OF AGREEMENT
Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared.
31. WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be bin ding unless executed in writing by the party making the waiver.
32. AUTHORITY TO EXECUTE
The person or persons executing this Agreement on behalf of Contractor warrants and represents that he/she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of obligations hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
City: Contractor:
CITY OF MANHATTAN BEACH,
a California municipal corporation
M.S. TOURS, INC.,
a California corporation
______________________ __________________________________ Talyn Mirzakhanian
City Manager
Laurie Lincoln
President
ATTEST:
__________________________________
Liza Tamura, City Clerk
APPROVED AS TO FORM:
__________________________________
Quinn Barrow, City Attorney
APPROVED AS TO FISCAL IMPACT:
__________________________________
Onyx Jones, Interim Finance Director
APPROVED AS TO CONTENT:
__________________________________
Mark Leyman, Parks and Recreation Director
Exhibit A
SCOPE OF WORK
Contractor shall provide bus charter services to City for the dates and times requested by City. Bus charter services for REC Summer Camps for the locations below will consist of deluxe motor coach transportation to and from the Manhattan Beach Live Oak Park or Joslyn Community Center and Manhattan Heights Community Center to local attractions in Los Angeles and Orange counties. Passengers range in age from 5-12 years and are supervised by City Staff.
Bus charter services for Teen Center (TC) Summer Camp for the locations below will consist of deluxe motor coach transportation to and from the Manhattan Heights Community Center to local attractions in Los Angeles and Orange counties. Passengers range in age from 12-15 years and are supervised by City Staff.
Beach Shuttle service will travel between Manhattan Beach Live Oak Park or Joslyn Community Center, Manhattan Heights Community Center, Bruce’s Beach and City Hall.
Bus Charter services for the Older Adult Program (OAP) will consist of deluxe motor coach transportation to and from the Joslyn Community Center to local attractions.
Bus Charter services may be requested for other City functions, pick up and drop off locations to be confirmed at time of request.
EXHIBIT B
APPROVED FEE SCHEDULE
Exhibit C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of Work, Contractor will maintain insurance in conformance with the requirements set forth below. Contractor will use existing coverage to c omply with these requirements. If that existing coverage does not meet requirements set forth here, Contractor agrees to amend, supplement or endorse the existing coverage to do so. Contractor acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimu m amount of coverage required.
Any insurance proceeds available to City in excess of the limits and coverage required in this Agreement and which is applicable to a given loss, will be available to City.
Contractor shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office (ISO) “Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $5,000,000 per occurrence for all covered losses and no less than $ 5,000,000 general aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $ 5,000,000 per accident. If Contractor owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above.
If Contractor or Contractor’s employees will use personal autos in any way on this project, Contractor shall provide evidence of personal auto liability for each such person.
Workers’ Compensation on a state -approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlyi ng coverages.
Coverage shall be provided on a “pay on behalf” basis, with defense costs payabl e in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured’s liability is determined, not requiring actual payment by the insured fir st. There shall be no cross liability exclusion precluding coverage for claims o r suits by one insured against another. Coverage shall be applicable to City for injury to employees of Contractor, subcontractors or others involved in the Work. The scope of coverage provided is subject to approval by City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $5,000,000 aggregate.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Bests rating of A- or better and a minimum financial size of VII.
General conditions pertaining to provision of insurance coverage by Contractor. Contractor and City agree to the following with respect to insurance provided by Contractor:
1. Contractor agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds City, its officials, employees, and agents, using standard ISO endorsement CG 2010 with an edition prior to 1992. Contractor also agrees to require all contractors and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit Contractor, or Contractor’s employees, or agents, from waiving the right to subrogation prior to a loss. Contractor agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or applicable to this Agreement are intended to apply to t he full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operation limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these requirements if they include limiting endorsement of any kind that has not been first submitted to City and approved in writing.
5. No liability policy shall contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification , and additional requirements by City, as the need arises. Contractor shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Contractor’s general liability policy, shall be delivered to city at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled or reduced at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other Agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Contractor or deducted from sums due Contractor, at City’s option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City of any cancellation or reduction of coverage. Contractor agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation or reduction of coverage imposes no obligation, or that any party will “endeavor” (as opposed to being required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this Agreement that all insurance coverage required to be provided by Contractor or any subcontractor, is intended to apply first and on a primary, non -contributing basis in relation to any other insurance or self - insurance available to City.
10. Contractor agrees to ensure that subcontractors, and any other party involved with the Work who is brought onto or involved in the Work by Contractor, provide the same minimum insurance required of Contractor. Contractor 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. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the Work will be submitted to City for review.
11. Contractor agrees not to self -insure or to use any self -insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, Architect, Engineer, or other entity or person in any w ay involved in the performance of Work contemplated by this Agreement to self -insure its obligations to City. If Contractor’s existing coverage includes a deductible or self -insured retention, the deductible or self -insured retention must be decl ared to City. At that time, City shall review options with Contractor, which may include reduction or elimination of the deductible or self - insured retention, substitution of other coverage, or other solutions.
12. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor 90 days advance written notice of such change. If such change results in substantial additional cost to Contractor, City will negotiate additional compensation proportional to the increased benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement.
14. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with an insurance requirement in no way imposes any additional obligations to City nor does it waive any rights hereunder in this or any other regard.
15. Contractor will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any re ason. Termination of this obligation is not effective until City executes a written statement to that effect.
16. Contractor shall provide proof that policies of insurance required herein 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. A coverage binder or letter from Contractor’s insurance agen t to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of coverage.
17. The provisions of any Workers’ Compensation or similar act will not limit the obligations of Contractor under this Agreement. Contractor expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents.
18. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements nor 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.
19. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties here to be interpreted as such.
20. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts or impairs the provisions of this section.
21. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the Work reserves the right to charge City or Contractor for the cost of additional insurance covera ge required by this Agreement. Any such provisions are to be delet ed with reference to City. It is not the intent of City to reimburse any third party for the cost of comp lying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
22. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor arising out of the work performed under 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.