CITY COUNCIL
AMENDED ERRATA SHEET
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL
FROM: Sandra Kandell, City Clerk/DEI Coordinator
MEETING DATE: 02/01/2023
SUBJECT: City Council Meeting Agenda- Errata Sheet
Attached is additional information for your consideration at the February 21, 2023 City Council Meeting:
Agenda Item Information Provided/Corrected
6A Redlined Agenda Report and Redlined Resolution to reflect corrected language intended for MCTID renewal process. (See attached redlined versions of Agenda Report and Resolution.) 8E Attachment inadvertently missed. (See attached Compliance Procedures.) 9B Additional information requested. (See attached DRAFT Agreement.) Attachments
Redlined AR re MCTID
Redlined Resolution re MCTID
Compliance Process
DRAFT Agreement
Agenda No. 6 A
CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Ben Harvey, City Manager
MEETING DATE: February 1, 2023
SUBJECT: Adoption of a Resolution Granting Consent to the City of Pacific Grove Monterey to Renew the Monterey County Tourism Improvement District (MCTID) and Include the City of Monterey Pacific Grove in the MCTID CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
RECOMMENDATION
Adopt a resolution granting consent to the City of MontereyPacific Grove to renew the Monterey County Tourism Improvement District (“MCTID”) and include the City of Pacific Grove in the MCTID.
DISCUSSION
RESULT OF RECOMMENDED ACTION:
The recommended action, adoption of the attached resolution granting consent to the City of Pacific Grove Monterey to renew the MCTID and include the City of Monterey Pacific Grove in the MCTID, will enable the City of Pacific Grove Monterey and the Monterey County Convention and Visitors Bureau (MCCVB) to move forward with the MCTID renewal process. Upon successful renewal, the MCTID will continue to be governed by the TID Oversight Committee and the Management District Plan (MDP), facilitated by the Monterey City Council and the Monterey County Convention and Visitors Bureau (the Owner’s Association).
BACKGROUND:
First launched in 2006 under the Property and Business Improvement Area Law of 1989 (’89 Law), the Monterey County Tourism Improvement District (MCTID) is a benefit assessment district proposed to continue as a revenue source to help fund marketing and sales promotion efforts for lodging businesses in Monterey County. In 2018, an effort to modernize the MCTID led to the disestablishment of the ’89 Law district and re-establishing the MCTID pursuant to the Property and Business Improvement District Law of 1994 (’94 Law). The five-year term of the MCTID is set to expire on December 31, 2023, and the required number of lodging business owners have submitted a written petition to renew the district. Pending successful renewal of the MCTID, the Owner’s Association will request to modify the current MCTID term to end early on June 30, 2023, with the renewed district beginning on July 1, 2023.
The 94 Law allows for the renewal of multi-jurisdictional tourism improvement districts, with consent of the included jurisdictions being granted to one “lead” jurisdiction. The City of Monterey has requested consent to continue to act as the lead jurisdiction in the renewal of the MCTID, administering the MCTID countywide. Adopting this resolution will give the City of Monterey authority to include the City of Pacific Grove in the renewed MCTID.
Management District Plan
The Management District Plan includes the proposed boundary of the renewed MCTID, a service plan and budget, and a proposed means of governance. The MCTID shall include all lodging businesses, existing and in the future, located within the boundaries of the unincorporated areas of Monterey County and the Cities of Carmel-by-the-Sea, Del Rey Oaks, Gonzales, Greenfield, King City, Marina, Monterey, Pacific Grove, Salinas, Sand City, Seaside, and Soledad. The MCTID is divided into two (2) benefit zones as described in the Plan.
The Cities and County shall continue to be responsible for collecting the assessment on a monthly, bi-monthly, or quarterly basis (including any delinquencies, penalties, and interest) from each lodging business located within the boundaries of the MCTID. The Cities and County shall make all reasonable efforts to collect the assessments from each lodging business. The Cities and County shall forward the assessments to Monterey County Destination Marketing Organization, Inc. d.b.a. Monterey County Convention and Visitors Bureau (MCCVB), serving as the MCTID Owner’s Association, which will have the responsibility of managing MCTID programs as provided in the Management District Plan.
Lodging business owners decided to pursue renewal of the MCTID in order to continue a revenue source devoted to marketing Monterey County as a tourist, meeting, and event destination. If renewed, the MCTID would generate an initial annual budget of approximately $8,856,266, increasing biennially as assessment rates increase, for the promotion of travel and tourism specific to Monterey County.
OPTIONS
Do not adopt the aforementioned resolution.
FINANCIAL IMPACT:
None immediately. Because the MCTID programs are intended to increase room night sales for assessed businesses within the MCTID, there may be an increase in tax collections.
The Cities and the County may retain a fee equal to one percent (1%) of the amount of the assessment collected within their respective jurisdictions to cover their costs of collection and administration.
GOAL ALIGNMENT: Not Applicable.
Attachments
Proposed Reso
City of Monterey Reso
MCTID Mgt District Plan
1 RESOLUTION NO. 223-XXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PACIFIC GROVE,
GRANTING CONSENT TO THE CITY OF MONTEREYPACIFIC GROVE TO
RENEW THE MONTEREY COUNTY TOURISM IMPROVEMENT DISTRICT
(MCTID)
WHEREAS, the City of Monterey initially created the MCTID in 2006 under the Parking and Business Improvement Area Law of 1989; and
WHEREAS, the MCTID was converted in 2019 under Property and Business Improvement District Law of 1994 by Resolution No. 18-147 for a five (5) year term, which ends December 31, 2023; and
WHEREAS, the City Council of the City of Monterey has requested consent to renew the MCTID in the City of Pacific Grove with adoption of Monterey City Council Resolution No. 22-169, dated December 20, 2022;
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Pacific Grove, that:
Section 1: The above recitals are true and correct.
Section 2: The City of Monterey is hereby granted consent to include the City of Pacific Grove in the MCTID, for the renewal of the MCTID and future renewals.
Section 3: The City Clerk is hereby directed to transmit a certified copy of this Resolution to the Clerk of the City of Monterey City Council.
Section 4: This Resolution is effective upon its adoption.
PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF PACIFIC GROVE this 1st day of February, 2023 by the following vote:
AYES:
NOES:
ABSENT:
APPROVED:
_______________________________
BILL PEAKE, Mayor
2 ATTEST:
DATED:_______________________
_______________________________
SANDRA KANDELL, City Clerk
APPROVED AS TO FORM:
_______________________________
BRIAN A. PIERIK, City Attorney
Pacific Grove Administrative Code Compliance Procedures
1. Complaint or staff referral
received by Code Compliance
Officer (CCO). (Anonymous
complaints may be given
lower priority unless Health
& Safety related.)
2. CCO reviews documents
to verify jurisdiction,
zoning, permit status,
property ownership,
applicable code provisions,
prior complaint history.
5a. If no response or inspection request denied, proceed to 7. 5b. CCO conducts inspection. Photograph and document apparent violations(s) and proceed to 6. 5c. If no evidence of violation, case is closed. Memo placed in file; property owner(s) and complainant contacted by phone or email if so requested.
4. If no response within 30
days by owner(s), CCO sends
Follow up Letter to owners
and occupants specifying a
date/time for inspection.
6. CCO sends letter to
property owner(s) informing
them of violation and specific
steps to resolve, including,
usually a 30-day compliance
date. If owner clears
violation, proceed to 8a. If
no response within 30 days,
proceed to 7.
7. CCO sends Compliance
Order to property owners(s)
and occupant(s) per MC
Section 1.19.160, with
usually 30 days to respond.
8a. Compliance achieved. CCO prepares memo to file; contact property owner(s) via phone or email.
8b. Compliance not achieved. Hearing Officer (HO) schedules hearing per MC Section 1.19.180.
10. CCO prepares
hearing report and
supporting evidence.
13a. If HO finds a violation, HO issues an Administrative Order (AO) per MC Section
1.19.190.
13b. If HO finds no violation or the violation is corrected within the time specified, the HO issues a finding as to those facts. Case closed.
9. CCO sends Notice of Compliance
Hearing to property owner(s) and
occupant(s). CCO posts property and at
City Hall display cabinet (10 days notice
prior the hearing).
3a. If no evidence of violation, case is closed. CCO notifies Complainant.
3b. If code violation suspected, an Introduction and Inspection Request Letter is sent to the property owner(s) and occupant(s)— as a courtesy.
11. HO conducts
Hearing.
12. HO makes
findings and
determination in
accordance with MC
Section 1.19.180(e).
14. HO sends notice of entry of the
Administrative Order, copy of
Order and findings to owner(s) and
occupant(s).
Page | 2
http://www.codepublishing.com/CA/pacificgrove Revised 2014 15a. Property owner fails to comply. Case held for the 90 day appeal period pursuant to MC Section 1.16.
15b. Property owner submits evidence but City Manager disputes compliance, proceed to 17. Owner may dispute City Manager’s decision by requesting a HO hearing.
15c. Property owner submits evidence of compliance in accordance with the schedule. If City Manager agrees Compliance Report submitted to Hearing Panel. Case closed.
Post Hearing Process
16a. If Compliance Dispute,
Compliance Hearing scheduled
upon request per MC Section
1.19.250.
16b. If no hearing request, case
referred to City Attorney for
enforcement pursuant to MC
Section 1.16.
1. If fines or cost imposed by HO
are not paid within 90 days, a lien
against the real property may be
imposed.
17a. HO holds
hearing and finds
compliance.
17b. If noncompliance, staff
requests City
Council to impose
lien on Property.
2. Person
subject to lien
may protest
to City
Council.
3. Council’s
decision
adopted by
resolution.
4. If Council
imposes lien, City
Attorney files lien
with County
Recorder’s office.
5. When lien is
satisfied, City will
produce Notice of
Satisfaction for
lienee to record.
Construction Services Agreement 07.19.2022
CITY OF PACIFIC GROVE
CONSTRUCTION SERVICES AGREEMENT
DEL MONTE BLVD STORM DRAIN IMPROVEMENT PROJECT
This CONSTRUCTION SERVICES AGREEMENT (“Agreement”) is made and effective February 20, 2023, by and between the City of Pacific Grove, a municipal corporation (“City”), and Monterey Peninsula Engineering (“CONTRACTOR”), License Number # 972425. In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on February 20, 2023 and shall remain and continue in effect until tasks described herein are completed, but in no event later than April 4, 2023, unless sooner terminated pursuant to the provisions of this Agreement.
2. SCOPE OF WORK
CONTRACTOR shall perform within the time set forth in the project specifications and shall furnish all labor, materials, equipment, tools, utility services, and transportation and perform and complete all services required in connection with the construction of storm water infrastructure repairs and improvements (“Work”) for the Del Monte Blvd Storm Drain Project (CIP 22-12) (hereinafter “Project”). The Scope of Work is attached as Exhibit A.
By entering into this Agreement, CONTRACTOR acknowledges that there may be other contractors on the site whose work will be coordinated with that of its own.
CONTRACTOR expressly warrants and agrees that it will cooperate with other contractors and will do nothing to delay, hinder, or interfere with the work of other separate contractors, the City, the Construction Manager, the Architect, or utilities.
CONTRACTOR also expressly agrees that, in the event its Work is hindered, delayed, interfered with, or otherwise affected by a separate contractor, its sole remedy will be a direct action against the separate contractor. To the extent allowed by law, CONTRACTOR shall have no remedy, and hereby expressly waives any remedy against the City, the Construction Manager, or the Architect on account of delay, hindrance, interference or other events caused by a separate contractor.
3. PERFORMANCE
a. CONTRACTOR shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all tasks described herein. CONTRACTOR shall employ, at a minimum, generally accepted standards and practices utilized by persons DRAFT
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engaged in providing similar services as are required of CONTRACTOR hereunder in meeting its obligations under this Agreement.
b. CONTRACTOR shall conform to the rules and regulations pertaining to safety established by the California Division of Industrial Safety. CONTRACTOR further agrees to take all necessary precautions for the safety of its employees and shall comply with all applicable provisions of federal, state and local regulations, ordinances and codes. CONTRACTOR shall be responsible for erecting and properly maintaining at all times as required by the conditions and progress of the Work, all necessary safeguards for the protection of workers and the public and shall post danger signs warning against known or reasonably foreseeable or unusual hazards. c. CONTRACTOR shall possess at the time of commencing Work and throughout the Project duration, a Contractor’s License, issued by the State of California, which is current and in good standing. CONTRACTOR shall ensure that any subcontractor working on the Project possesses at the time of commencing Work and throughout the Project duration, a Contractor’s License, issued by the State of California, which is current and in good standing.
d. CONTRACTOR shall obtain a valid City Business License and shall maintain said Business License for the term of this Agreement and any extensions. e. CONTRACTOR shall keep itself informed of State and Federal laws and regulations that in any manner affect those employed by CONTRACTOR 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. City, and its officers, employees, and agents shall not be liable at law or in equity occasioned by failure of CONTRACTOR to comply with this Section.
f. CONTRACTOR agrees to comply with all the applicable provisions of Sections 1777.5 and 1777.6 of the Labor Code, which Sections are hereby specifically referred to, incorporated herein by reference and made a part hereof as though set forth at length herein.
g. CONTRACTOR agrees that in the performance of this Agreement or any subagreement hereunder, neither CONTRACTOR nor any person acting on CONTRACTOR’s behalf shall refuse to employ or refuse to continue in any employment or discriminate against any person on the basis of race, religious creed, color, national origin, ancestry, disability, medical condition, genetic information, marital status, sexual orientation, sex, gender identity, gender expression, military or veteran status or age. Harassment in the workplace is not permitted in any form.
CONTRACTOR further agrees to comply with all laws with respect to employment when performing this Agreement.
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Construction Services Agreement 07.19.2022
h. CONTRACTOR shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement.
i. To ensure performance, CONTRACTOR shall provide Faithful Performance and Labor and Material/Payment Bonds in favor of City, each in the amount of one hundred percent (100%) of the value of the Agreement.
j. CONTRACTOR declares and warrants that no undue influence or pressure shall be used against or in concert with any officer, employee or agent of the City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial agreement or financial inducement. No officer, employee or agent of the City shall receive compensation, directly or indirectly, from CONTRACTOR, or from 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.
4. REGISTRATION REQUIREMENTS
a. CONTRACTOR shall be registered with the Department of Industrial Relations (“DIR”) of the State of California to be eligible to work on this Project.
CONTRACTOR shall ensure registration with the DIR that is active and in good standing.
b. This Project shall be subject to compliance monitoring and enforcement by the DIR. c. CONTRACTOR is not subject to public works requirements (including registration with the DIR) if the public works project is under $1,000, unless the City knows that the same CONTRACTOR will be awarded total project costs in excess of $1,000 for a given year.
5. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
CONTRACTOR is bound by the contents of City’s Request for Proposal on file at the Public Works Department Contents of the CONTRACTOR’s proposal, available on file at the Public Works Department and incorporated herein by this reference. In the event of conflict, the requirements of City’s Request for Proposal and this Agreement shall take precedence over those contained in CONTRACTOR’s proposal.
6. CITY MANAGEMENT
The Public Works Director shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by CONTRACTOR, but not including the authority to enlarge the Scope of Work or change the compensation due to CONTRACTOR. The City Manager shall be authorized to act DRAFT
Construction Services Agreement 07.19.2022
on City’s behalf and to execute all necessary documents that enlarge the Scope of Work or change CONTRACTOR’s compensation, subject to Section 7 hereof.
7. PAYMENT
a. City agrees to pay CONTRACTOR monthly, in accordance with the Proposal on file at the Public Works Department based upon actual time spent on the above tasks.
THIS AMOUNT SHALL NOT EXCEED $227,125 plus a 15% contingency which sum shall include all costs, if any, for the total term of the Agreement unless additional payment is approved as provided in this Agreement. b. The City Manager’s contract authority is limited to $39,999.99, which includes all costs. Contracts, including any amendments or change orders that exceed the total threshold, shall require City Council approval. Any contracts, including contract amendments or change orders that exceed the total threshold, which do not have City Council approval, shall be void.
c. CONTRACTOR shall submit invoices monthly for actual Work performed. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for Work provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of CONTRACTOR’s fees, it shall give written notice to CONTRACTOR within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice.
d. Retention of securities: Public Contract Code Section 22300 permits the substitution of securities for any monies withheld by a public agency to ensure performance under a contract, at the request and expense of CONTRACTOR.
e. Final Payment: Final payment, constituting the entire unpaid balance of the Agreement Sum, shall be paid by the City to the CONTRACTOR no sooner than thirty-five (35) days after a Notice of Completion has been recorded, unless otherwise stipulated in the Notice of Completion, provided the Work has then been completed, the Agreement fully performed, and a final Certificate for Payment has been issued by the Architect.
8. INSPECTION
City shall at all times have the right to inspect the Work and materials. CONTRACTOR shall furnish all reasonable aid and assistance required by City for the proper examination of the Work and all parts thereof. Such inspection shall not relieve CONTRACTOR from any obligation to perform said Work strictly in accordance with the specifications or any modifications thereof and in compliance with the law.
9. CONTRACTOR’S FAILURE TO PROCURE COMPLETION OF PROJECT DRAFT
Construction Services Agreement 07.19.2022
In the event CONTRACTOR fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the Work or any part thereof contemplated by this Agreement in a diligent and workmanlike manner, and if CONTRACTOR for a period of three (3) calendar days after receipt of written demand from City or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its Work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said three (3) calendar days, fails to continue to do so; then City may exclude the CONTRACTOR from the premises, or any portion thereof, and take possession of said Project premises or any portion thereof, together with all material and equipment thereon, and may complete the Work contemplated by this Agreement or any portion of said Work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said Work, or the portion taken over by the City to another contractor or by a combination of such methods. In any event, the procuring of the completion of said Work, or the portion thereof taken over by the City, shall be a charge against the CONTRACTOR, and may be deducted from any money due or becoming due to CONTRACTOR from the City, or the CONTRACTOR shall pay the City the amount of said charge, or the portion thereof unsatisfied. The sureties provided for under this Agreement shall become liable for payment should CONTRACTOR fail to pay in full any said cost incurred by the City.
10. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE a. City may at any time, for any reason, without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon CONTRACTOR at least thirty (30) days prior written notice. Upon receipt of said notice, CONTRACTOR shall immediately cease all Work under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement.
b. In the event this Agreement is terminated pursuant to this Section, City shall pay to CONTRACTOR the actual value of the Work performed up to the time of termination, provided that the Work performed is of value to City. Upon termination of the Agreement pursuant to this Section, CONTRACTOR will submit an invoice to City pursuant to Section 7.c.
11. DEFAULT OF CONTRACTOR
a. CONTRACTOR’s failure to comply with the provisions of this Agreement shall constitute a default. In the event 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 this Agreement immediately by written notice to CONTRACTOR. If such failure by CONTRACTOR to make progress in the performance of Work DRAFT
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hereunder arises out of causes beyond CONTRACTOR’s control, and without fault or negligence of CONTRACTOR, it shall not be considered a default. b. If the City Manager or designee determines CONTRACTOR is in default in the performance of any of the terms or conditions of this Agreement, they shall cause to be served upon CONTRACTOR a written notice of the default. CONTRACTOR shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event 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.
12. OWNERSHIP OF DOCUMENTS
a. 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 Work under this Agreement. CONTRACTOR shall maintain adequate records of Work provided in sufficient detail to permit an evaluation of Work. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible.
CONTRACTOR shall provide free access to the representatives of City or its designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records at CONTRACTOR’s office; shall permit City to make copies and transcripts there from as necessary; and shall allow inspection of all Work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained at City Hall for a minimum period of five (5) years after receipt of final payment. b. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the Work to be performed pursuant to this Agreement shall become the sole property of City and may be used, reused, or otherwise disposed of by City without the permission of CONTRACTOR. With respect to computer files, CONTRACTOR shall make available to City, at City’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.
13. RECORD AUDIT
In accordance with Government Code, Section 8546.7, for expenditures of funds greater than $10,000, records of both City and CONTRACTOR shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.
14. INDEMNIFICATION
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CONTRACTOR shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, employees, agents and volunteers (collectively, City) from and against all liability, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONTRACTOR’s negligence, recklessness or willful misconduct in the performance of Work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of the City. Should conflict of interest principles preclude a single legal counsel from representing both City and CONTRACTOR, or should City otherwise find CONTRACTOR’s legal counsel unacceptable, then CONTRACTOR shall reimburse the City its costs of defense, including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation. The CONTRACTOR shall promptly pay any final judgment rendered against the City (and its officers, employees, agents and volunteers) with respect to claims determined by a trier of fact to have been the result of the CONTRACTOR’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.
CONTRACTOR obligations under this section apply regardless of whether such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by City. However, without affecting the rights of City under any provision of this Agreement, CONTRACTOR shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of CONTRACTOR will be for that entire portion or percentage of liability not attributable to the active negligence of City.
15. INSURANCE
Prior to the beginning of and throughout the duration of the Work, CONTRACTOR and its subcontractors shall maintain insurance in conformance with the requirements set forth below. CONTRACTOR will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, 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 minimum amount of coverage required. Any insurance proceeds available to CONTRACTOR or its subcontractors in excess of the limits and coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to City.
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16. INDEPENDENT CONTRACTOR
a. CONTRACTOR is and shall at all times remain as to City a wholly independent contractor. The personnel performing the Work 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 the City. CONTRACTOR shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner.
b. 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 Work hereunder for City. City shall not be liable for compensation or indemnification to CONTRACTOR for injury or sickness arising out of performing Work hereunder.
c. Any and all employees or sub-contractors of CONTRACTOR under this Agreement, while engaged in the performance of any Work required by CONTRACTOR under this Agreement, shall be considered employees or sub-contractors of CONTRACTOR only and not of City. Any and all claims that may arise under the Workers’ Compensation Act on behalf of said employees or sub-contractors, while so engaged and all claims made by a third party as a consequence of any negligent act or omission on the part of the CONTRACTOR’s employees or sub-contractors, while so engaged in any of the Work provided for or rendered herein shall not be City’s obligation.
17. PREVAILING WAGE
Wage rates for this Project shall be in accordance with the “General Wage Determination Made by the Director of Industrial Relations Pursuant to California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1”, for Monterey County. Wage rates shall conform with those posted by CONTRACTOR and at the Project site. The following Labor Code sections are hereby referenced and made a part of this Agreement:
a. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates. b. Section 1777.4 - Apprenticeship Requirements.
c. Section 1777.5 - Apprenticeship Requirements.
d. Section 1813 - Penalty for Failure to Pay Overtime.
e. Sections 1810 and 1811 - Working Hour Restrictions.
f. Section 1775 - Payroll Records.
g. Section 1773.8 - Travel and Subsistence Pay.
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Construction Services Agreement 07.19.2022
h. Section 1778 – Kickbacks.
i. Section 1779, 1780 – Acceptance of Fees.
j. Section 1771.4 – Certified Payroll.
Pursuant to the Labor Code, City is required to withhold from any progress payments owed to CONTRACTOR any amount that has been forfeited as penalties, or as wages owed to employees who have not been paid the prevailing wage for Work performed.
This allows the intervention by the Division of Labor Standards Enforcement, which is headed by the State Labor Commission, in a contractor’s lawsuit for recovery of amounts withheld by an awarding body. All withheld wages and penalties will be transferred to the Labor Commissioner for disbursement in those cases where a contractor fails to bring a lawsuit for amounts withheld within ninety (90) days after completion of the public works contract and formal acceptance of the job by the awarding body. The Labor Commissioner is then permitted to intervene in any lawsuit brought by CONTRACTOR against an awarding body for recovery of amounts withheld.
18. NO BENEFIT TO ARISE TO CITY OFFICERS AND EMPLOYEES
No officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during their tenure or for one 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 Project performed under this Agreement.
19. CONFLICT OF INTEREST
CONTRACTOR shall at all times avoid conflicts of interest, or the appearance of conflicts of interest, in the performance of this Agreement.
CONTRACTOR covenants that neither they nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly nor 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, no person having such interest shall be employed by them 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 any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area and further covenants and agrees that CONTRACTOR and/or its subcontractors shall provide no service or enter into any agreement or agreements with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area prior to the completion of the Work under this Agreement.
If City determines CONTRACTOR comes within the definition of Contractor under the Political Reform Act (Government Code §87100 et seq.), CONTRACTOR shall complete and file and shall require any other person doing Work under this Agreement to complete DRAFT
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and file a “Statement of Economic Interest” with CITY disclosing CONTRACTOR’s and/or such other person’s financial interests.
20. NO WAIVER OF BREACH/TIME
The waiver by CITY of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or provision or any subsequent breach of the same or any other term or promise contained in this Agreement. Time is of the essence in carrying out the duties hereunder.
21. CONFIDENTIAL INFORMATION/RELEASE OF INFORMATION
a. All information gained by CONTRACTOR in performance of this Agreement shall be considered confidential and shall not be released by CONTRACTOR without City’s prior written authorization. CONTRACTOR, its officers, employees, agents, or sub-contractors, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the Work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered “voluntary” provided CONTRACTOR gives City notice of such court order or subpoena.
b. CONTRACTOR shall promptly notify City should CONTRACTOR, its officers, employees, agents, or sub-contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the Work performed thereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent CONTRACTOR and/or be present at any deposition, hearing, or similar proceeding. CONTRACTOR agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by CONTRACTOR. However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
22. SUBSURFACE HAZARDOUS MATERIALS
a. In the event trenches or other excavations extend deeper than four (4) feet below the surface, CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the City in writing of any:
i. Material CONTRACTOR believes may be hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II or Class III disposal site in accordance with the provisions of existing law;
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ii. Subsurface or latent physical conditions at the site differing from those indicated; or
iii. Unknown physical conditions at the Project site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the Work or the character provided for in the Agreement. b. Upon receipt of said notification, City will investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the CONTRACTOR’s cost of or the time required for performance of any part of the Work, the City will issue a change order under the procedures described in the Specifications.
c. In the event a dispute arises between the City and CONTRACTOR whether the conditions materially differ, or involve hazardous waste or cause a decrease or increase in the CONTRACTOR’s cost of or time required for performance of any part of the Work, CONTRACTOR shall not be excused from any scheduled completion date provided for by the Agreement, but shall proceed with all Work to be performed under the Agreement. CONTRACTOR shall retain any and all rights provided either by Agreement or by law which pertain to the resolution of disputes and protests between the contracting parties.
23. LIQUIDATED DAMAGES
Pursuant to Government Code Section 53069.85, if Work is not completed within the Agreement time or in strict accordance with the Project Schedule, it is understood, acknowledged and agreed that the City will suffer damage. It is therefore agreed CONTRACTOR shall pay to the City the $1,000 for each and every calendar day of delay beyond the Agreement Term, or beyond any completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule, or beyond the time indicated in the Project Schedule for any individual Agreement activity.
CONTRACTOR expressly understands, acknowledges and agrees that such Liquidated Damages can and shall be imposed if the CONTRACTOR does not meet each and every aspect of any activity schedule, completion schedule, construction schedule or Project milestones established in or pursuant to the Project Schedule. If the City accepts Work or makes any payment under this Agreement after a default by reason of delays, the acceptance of such Work and/or payment(s) shall in no respect constitute a waiver or modification of any provisions regarding Agreement Time, a completion schedule, the Project Schedule or the accrual of liquidated damages. In the event the same is not paid, the CONTRACTOR further agrees that City may deduct the amount thereof from any money due or that may become due the CONTRACTOR under the Agreement. This Section does not exclude recovery of damages under provisions of the Agreement Documents and is expressly in addition to the City’s ability to seek other damages.
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Parties will meet and agree on a Project schedule. Liquidated damages may be assessed if any individual activity duration exceeds the time indicated for that activity on the Project Construction Schedule.
24. WARRANTY
In addition to any and all warranties provided or implied by law or public policy, CONTRACTOR warrants that all Work (including but not limited to all equipment and materials supplied in connection therewith) shall be free from defects in design and workmanship, and that CONTRACTOR shall perform all Services in accordance with all applicable engineering, construction and other codes and standards, and with the degree of high professional skill normally exercised by or expected from recognized professional firms engaged in the practice of supplying services of a nature similar to the Services in question. CONTRACTOR further warrants that, in addition to furnishing all tools, equipment and supplies customarily required for performance of Work, CONTRACTOR shall furnish personnel with the training, experience and physical ability, as well as adequate supervision, required to perform the Services in accordance with the preceding standards and the other requirements of this Agreement. In addition to all other rights and remedies which City may have, City shall have the right to require, and CONTRACTOR shall be obligated at its own expense to perform, all further services which may be required to correct any deficiencies which result from CONTRACTOR’s failure to perform any Services in accordance with the standards required by this Agreement.
Moreover, if, during the term of this Agreement (or during the one (1) year period following the term hereof), any equipment, goods or other materials or Services used or provided by CONTRACTOR under this Agreement fail due to defects in material and/or workmanship or other breach of this Agreement, CONTRACTOR shall, upon any reasonable notice from City, replace or repair the same to City’s satisfaction. Unless otherwise expressly permitted, all materials and supplies to be used by CONTRACTOR in the performance of the Services shall be new and best of kind.
CONTRACTOR hereby assigns to City all additional warranties, extended warranties, or benefits like warranties, such as insurance, provided by or reasonably obtainable from suppliers of equipment and material used in the Services.
25. CLAIM PROCEDURES UNDER PUBLIC CONTRACT CODE SECTION 9204 CONTRACTOR shall comply with the procedure set forth in Public Contracts Code section 9204 for any claim, as that term is defined therein, for one or more of the following: 1) a time extension, including, without limitation, for relief from damages or penalties for delay, 2) payment of money or damages arising from Work done pursuant to this Agreement, and/or 3) payment of an amount disputed by the City under this Agreement.
26. NOTICES
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Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, by first class mail, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice:
To City: Daniel Gho,
Public Works Director/Deputy City Manager
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
To CONTRACTOR: Peter J. Taormina, Manager
Monterey Peninsula Engineering
PO Box 400
Marina, CA 93933
Notice is effective on the date of personal service, or 5 days following deposit in a United States mailbox, or date of postmark. The parties may agree to notice by email. The parties may agree to notice by email.
27. THIRD PARTY BENEFICIARIES
Nothing contained in this Agreement shall be construed to create, and the parties do not intend to create, any rights in third parties.
28. ASSIGNMENT
CONTRACTOR shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. Subject to the foregoing, all terms of the Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their successors and assigns.
29. GOVERNING LAW
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 interpretation of this Agreement. Any litigation concerning this Agreement shall take place in Monterey County, or the federal district court with jurisdiction over the City. CONTRACTOR agrees not to commence or prosecute any dispute arising out of or in connection with this Agreement other than in the DRAFT
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aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts.
30. ATTORNEY’S FEES AND COURT VENUE
Should either party to this Agreement bring legal action against the other (formal judicial proceeding, mediation or arbitration) the party prevailing in such action shall be entitled to reasonable attorney’s fees, which shall be fixed by the judge, mediator or arbitrator hearing the case, and such fee shall be included in the judgment together with all costs.
31. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of CONTRACTOR warrants and represents that they have the authority to execute this Agreement on behalf of the CONTRACTOR and the authority to bind CONTRACTOR to the performance of its obligations hereunder.
32. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties 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.
Any modification or amendment to this Agreement must be in writing.
33. WAIVER
Neither City nor CONTRACTOR shall be deemed to have waived any obligation of the other, or to have agreed to any modification to this Agreement unless it is in writing, and signed by the party giving the waiver.
34. INTERPRETATION OF CONFLICTING PROVISIONS
In the event of any conflict or inconsistency between the provisions of this Agreement and the Provisions of any exhibit or other attachment to this Agreement, the provisions of this Agreement shall prevail and control
35. SEVERABILITY
If any term of this Agreement is held invalid by a court of competent jurisdiction or arbitrator the remainder of this Agreement shall remain in effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
CITY OF PACIFIC GROVE CONTRACTOR
By: By:
Department Director Contractor
Date: Date:
By: ___________________________ By: ____________________________ City Manager or Mayor City Administrative Services Department Date: ___________________________ Date: ___________________________ Approved As To Form:
City Attorney
_______________________________
Date
Attachments: Exhibit A Scope of Services
Exhibit B Insurance Requirements
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Exhibit A
Scope of Work/Services
CONTRACTOR shall provide construction services per bid specifications and engineered drawings titled “Storm Drain Improvements Phase 1 -Del Monte Boulevard between Coral St & Esplanade St.” prepared by Neill Engineers Corp, dated February 2022. The bid specifications and engineered drawings are incorporated herein by reference and are made an integral part of this Agreement.
Contractor and /or sub-contractors shall provide the City of Pacific Grove’s project manager daily field observation/inspection reports and testing results. All areas of project requiring compaction testing shall be done in conformance with job specifications.
The work, as indicated by the plans shall be done in accordance with the special provisions/technical specifications as designated and engineered by Neill Engineers Corp, in accordance with the current edition of Standard Specifications of the State of California Department of Transportation.
Contractor shall remove of all existing unused soils, base and asphalt materials and properly dispose said materials at a State approved disposal site.
Contractor shall submit a traffic control plan to the City’s Traffic Engineer for approval no less than 10 days prior to the commencement of work.
Contractor shall notice all residents and business properties that abut streets of this project and all residents and business within 300 feet of this project with dates, times, and type of work to be performed no less than 10 days prior to commencement of any work.
All work as outlined in this contract, project specifications and engineered plans shall be performed in a workman like manner and in accordance with industry standards.
All Environmental and water pollution prevention requirements as specified in the plans and specification shall be met and constantly monitored throughout the project.
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EXHIBIT B
Insurance Specifications
General liability insurance. CONTRACTOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile liability insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONTRACTOR arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees.
CONTRACTOR shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.
Builder’s risk insurance (construction contracts as applicable). Upon commencement of construction and with approval of City, CONTRACTOR shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only the City has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below.
The named insureds shall be CONTRACTOR and City, including its officers, employees, and agents. All Subcontractors (excluding those solely responsible for design Work) of any tier and suppliers shall be included as additional insureds as their interests may appear.
CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to City. The policy shall contain a provision that DRAFT
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all proceeds from the builder’s risk policy shall be made payable to the City. The City will act as a fiduciary for all other interests in the Project.
Policy shall be provided for replacement value on an “all risk” basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, Nonconforming Work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) Ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) Ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the Site or any staging area. Such insurance shall be on a form acceptable to City to ensure adequacy of terms and sublimits and shall be submitted to the City prior to commencement of construction.
Other provisions or requirements
Proof of insurance. CONTRACTOR shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by City’s risk manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage. CONTRACTOR shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors. CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. City and its officers, employees, and agents shall continue as additional insureds under such policies.
Primary/noncontributing. Coverage provided by CONTRACTOR shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
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Products/completed operations coverage. Products/completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors.
If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage.
Policy shall specifically provide for a duty to defend on the part of the insurer. The City, its officers, agents, and employees, shall be included as additional insureds under the Products and Completed Operations coverage.
City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by CONTRACTOR or City will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, City may cancel this Agreement.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, employees and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of Agreement provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the City to inform CONTRACTOR of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. 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 all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the CONTRACTOR maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
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Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
Additional insured status. General liability policies shall provide or be endorsed to provide that City and its officers, employees, agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.
Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that CONTRACTOR’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass Through Clause. CONTRACTOR agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by CONTRACTOR, provide the same minimum insurance coverage and endorsements 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 consultants, subcontractors, and others engaged in the project will be submitted to City for review.
City’s right to revise requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the CONTRACTOR a ninety (90)-day advance written notice of such change. If such change results in substantial additional cost to the CONTRACTOR, the City and CONTRACTOR may renegotiate CONTRACTOR’s compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City.
Timely notice of claims. CONTRACTOR shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
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Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work
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