Pacific Grove City Council
February 15, 2023

CITY COUNCIL

CLOSED SESSION MEETING AGENDA
Wednesday, February 15, 2023, 5:00 P.M.

Council Chamber – City Hall – 300 Forest Avenue, Pacific Grove, CA THIS MEETING WILL BE HELD IN PERSON AND VIRTUALLY (HYBRID).

CHAMBER CAPACITY SEATING IS LIMITED AND PROVIDED ON A FIRST COME, FIRST SERVED BASIS.

THE VIRTUAL MEETING IS COMPLIANT WITH THE GOVERNOR’S EXECUTIVE ORDERS ALLOWING FOR A DEVIATION OF TELECONFERENCE RULES REQUIRED BY THE BROWN ACT.

Join the Zoom Meeting to participate live at:
https://us02web.zoom.us/j/692219855
To participate telephonically, call any number below:
877 853 5247 (Toll Free)
888 788 0099 (Toll Free)
669 900 9128
699-219-2599
Webinar Meeting ID: 692 219 855#
If prompted to enter a participant ID, press #.

AGENDA

CALL TO ORDER
A. Remote Teleconference - AB 361
Reference: Sandra Kandell, City Clerk
Recommended Action: Ratify Resolution No. 21-029 Emergency Teleconferencing authorizing remote teleconference meetings of all City legislative bodies for the following 30 days in accord with the Ralph M. Brown Act.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

APPROVAL OF AGENDA

CLOSED SESSION
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CLOSED SESSION

PUBLIC COMMENT ON CLOSED SESSION MATTERS
Comments from the public will not receive Council action. Comments must deal with matters on the Closed Session agenda and will be limited to three minutes
A. Conference with Legal Counsel - Initiation of Litigation; Government Code §54956.9(d)(4)) Number of Cases: One
B. Conference with Legal Counsel – Pending Litigation (Gov. C. §54956.9) Enayati v. City of Pacific Grove, Case No. 21CV002786 (Enayati I) and Mark A. Enayati v. City of Pacific Grove, Case No. 22CV001017 (Enayati II)

ADJOURNMENT
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CITY COUNCIL

REGULAR MEETING AGENDA
Wednesday, February 15, 2023, 6:00 P.M.

Council Chamber – City Hall – 300 Forest Avenue, Pacific Grove, CA The Council will not begin consideration of any item on this agenda later than 10:00 p.m. unless such consideration is approved. Any items on this agenda not considered this evening will be continued to a future meeting.

Copies of the agenda packet are available for review at the Pacific Grove Library, in the Finance Department, and electronically at www.cityofpacificgrove.org/agendas. The most effective method of communication with the City Council is by sending an email to [email protected]. In order to allow the City Council adequate time to review communication related to an agenda item, it is recommended that the communication be sent no later than 9:00 AM on the day prior to the City Council meeting.

THIS MEETING WILL BE HELD IN PERSON AND VIRTUALLY (HYBRID).

CHAMBER CAPACITY SEATING IS LIMITED AND PROVIDED ON A FIRST COME, FIRST SERVED BASIS.

THE VIRTUAL MEETING IS COMPLIANT WITH THE GOVERNOR’S EXECUTIVE

ORDERS ALLOWING FOR A DEVIATION OF
TELECONFERENCE RULES REQUIRED BY THE BROWN ACT.

JOIN THE ZOOM WEBINAR TO PARTICIPATE LIVE AT:
https://us02web.zoom.us/j/209579290
To participate telephonically, call any number below:
888 788 0099 US (Toll-free)
877 853 5247 US (Toll-free)
669 900 9128
669 219 2599
Webinar ID: 209 579 290#
If prompted to enter a participant ID, press #.

Help Line 831-648-3128

MEETING INSTRUCTIONS
The public may also view the meeting on the Peninsula Channel 25.

AGENDA
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AGENDA

CALL TO ORDER
PLEDGE OF ALLEGIANCE: Mayor Pro Tem Smith

1. APPROVAL OF AGENDA

2. PRESENTATIONS
A. Pacific Grove Presentation, by Jeanne Byrne

3. COUNCIL AND STAFF ANNOUNCEMENTS (City-Related Items Only) A. Report on Closed Session by City Attorney
B. Other

4. GENERAL PUBLIC COMMENT
General Public Comment must deal with matters subject to the jurisdiction of the City and the Council that are not on the Regular Agenda. This is the appropriate place to comment as to items on the Consent Agenda, only if you do not wish to have the item pulled for individual consideration by the Council.

Comments from the public will be limited to three minutes and will not receive Council action. Comments regarding items on the Regular Agenda shall be heard prior to Council’s consideration of such items at the time such items are called. Whenever possible, written correspondence should be submitted to the Council in advance of the meeting, to provide adequate time for its consideration.

A. General Public Comment
Reference: Sandra Kandell, City Clerk
Recommended Action: Receive written general public comment, if applicable.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

CONSENT AGENDA
The Consent Agenda deals with routine and non-controversial matters, and may include action on resolutions, ordinances, or other public hearings for which testimony is not anticipated. The vote on the Consent Agenda shall apply to each item that has not been removed. Any member of Council, staff, or the public may remove an item from the Consent Agenda for individual consideration. When items are pulled for discussion, they will be automatically placed at the end of their respective section within the Regular Agenda. One motion shall be made to adopt all non-removed items on the Consent Agenda.

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5. APPROVAL OF CITY COUNCIL MEETING MINUTES
Items pulled from this section will be placed under 12. Unfinished and Ongoing Business A. Minutes of the City Council Special, Closed and Regular Meetings of February 1, 2023 Reference: Sandra Kandell, City Clerk PG 11
Recommended Action: Approve minutes.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

6. RESOLUTIONS
Items pulled from this section will be placed under 12. Unfinished and Ongoing Business or 13. New Business A. Approve a Resolution authorizing a grant application to the California Automated Permit Processing Program (CALAPP) PG 23
Reference: Anastacia Wyatt, Community Development Director Recommended Action: Approve a Resolution authorizing a grant application to the California Automated Permit Processing Program (CALAPP).

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Resolution Approving Standard Contracts PG 28
Reference: Brian A Pierik, City Attorney
Recommended Action: Motion to adopt Resolution Approving Standard Contracts CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

7. ORDINANCES
Items pulled from this section will be placed under 11. Public Hearings A. Scope of Public Comments At Meetings of Legislative Bodies PG 129 Reference: Brian Pierik, City Attorney
Recommended Action: Hold second reading and adopt an Ordinance Amending Pacific Grove Municipal Code Section 2.04.050 Regarding Public Comment.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

8. REPORTS – INFORMATION ONLY
Items pulled from this section will be placed under 12. Unfinished and Ongoing Business or 13. New Business A. Second Quarter Capital Project Budget Report & Update PG 139 PGCC 2-15-23

Reference: Mark Sullivan, Accountant
Recommended Action: Receive the report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Check Register Report - January 2023 PG 144
Reference: Audrey Cray, Finance & Risk Manager
Recommended Action: Receive the report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
C. Core Revenue Report - January 2023 PG 180
Reference: Audrey Cray, Finance & Risk Manager
Recommended Action: Receive the report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
D. Status of Records Management System and Online Contracts PG 183 Reference: Sandra Kandell, City Clerk and Nikita McKinder, IT Management Analyst Recommended Action: Receive the report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

9. REPORTS – REQUIRING ACTION
Items pulled from this section will be placed under 12. Unfinished and Ongoing Business or 13. New Business A. Ratification of New Local Emergency Actions PG 186
Reference: Ben Harvey, City Manager
Recommended Action: Receive report of emergency directives/modifications.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Appointment to Economic Development Commission PG 188 Reference: Bill Peake, Mayor
Recommended Action: Approve appointment of R. Venuti to Economic Development Commission ending January 31, 2025.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

10. MEETING MINUTES OF COMMISSIONS, BOARDS, AND COMMITTEES Items pulled from this section will be placed under 13. New Business PGCC 2-15-23

A. Recreation Board Minutes: June, August, November and December 2021 PG 190 Reference: Daniel Gho, Public Works Director / Deputy City Manager Recommended Action: Receive the minutes.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

REGULAR AGENDA

11. PUBLIC HEARINGS
For public hearings involving a quasi-judicial determination by the Council, the proponent of an item may be given 10 minutes to speak and others in support of the proponent’s position may be given three minutes each. A designated spokesperson for opposition to the item may be given 10 minutes to speak and all others in opposition may be given three minutes each. Very brief rebuttal and surrebuttal may be allowed in the sole discretion of the Council. In public hearings not involving a quasi-judicial determination by the Council, all persons may be given three minutes to speak on the matter. Public hearings on non-controversial matters or for which testimony is not anticipated may be placed on the Consent Agenda, but shall be removed if any person requests a staff presentation or wishes to be heard on the matter.

A. Mayor Pro Tempore Role and Appointment PG 199
Reference: Brian A. Pierik, City Attorney
Recommended Action:

1. Request a reading of the Title of the Ordinance.

Motion to waive further reading and introduce and hold first reading of an Ordinance of the City Council of the City of Pacific Grove Amending Chapter 2.05 of the Pacific Grove Municipal Code Codifying the Mayor Pro Tempore’s Role and Appointment.

2. Motion to adopt a City Council Policy to establish the nomination procedure for appointing the Mayor Pro Tempore

3. CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Fiscal Year 2022-23 Mid-Year Budget Modifications and First Reading of an Ordinance Amending the Fiscal Year 2022-23 Budget PG 205
Reference: Tori Hannah, Administrative Services Director/Assistant City Manager Recommended Action: Hold a first reading of an ordinance to amend the Fiscal Year 2022-23 Budget, authorize publication of a summary of the measure as approved by the City Attorney
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

12. UNFINISHED AND ONGOING BUSINESS
A. Golf Course PG 217
Reference: Bill Peake, Mayor and Luke Coletti, Councilmember PGCC 2-15-23

Reference: Bill Peake, Mayor and Luke Coletti, Councilmember Recommended Action: Direct City Manager to return to Council with agreement to hire Pro Forma Advisors, LLC to

1. conduct a golf course financial analysis (pro forma) and

2. provide golf course lease recommendations.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

13. NEW BUSINESS
A. 2023-2024 Special Events Calendar PG 369
Reference: Katie Clark, Recreation Manager
Recommended Action:

1. Approve the Fiscal Year 2023-2024 Special Events Calendar

2. Approve 7 proposed events as Special Events to be billed at full cost recovery rates Approve 20 proposed events as City Sponsored Events and waive the fees for City staff support and equipment/facility usage

3. Allow alcohol to be served in the confines of a tent for the 4 music series events at Jewell Park per Municipal Code Section 11.04.020, Consumption in Public Spaces

4. CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Historic Determination 22-0255 for 1352 Lighthouse Avenue (APN 007-011-005) Reference: Steven Lilley, Planning Commission Chair PG 378 Recommended Action: The Planning Commission recommends that the City Council fund a Phase 1 historical resource assessment by an independent, qualified historical consultant to determine if the property at 1352 Lighthouse Avenue is eligible to be put on the Historic Resources Inventory (HRI).

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
C. Wildlife Disturbances Caused by Operation of Unmanned Aircraft Systems (“drones”) Reference: Councilmembers Lori McDonnell and Luke Coletti PG 381 Recommended Action: Receive report regarding wildlife disturbances caused by operation of unmanned aircraft systems (“drones”).

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

14. FULL PRESENTATIONS

15. CLOSED SESSION
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ADJOURNMENT
NOTICE OF ADA COMPLIANCE: Pursuant to Title II of the Americans with Disabilities Act (Codified At 42 United States Code Section 12101 and 28 Code of Federal Regulations Part 35), and Section 504 of the Rehabilitation Act of 1973, the City of Pacific Grove does not discriminate on the basis of race, color, religion, national origin, ancestry, sex, disability, age or sexual orientation in the provision of any services, programs, or activities. The City of Pacific Grove does not discriminate against persons with disabilities. City Hall is an accessible facility. A limited number of assisted listening devices will be available at this meeting. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting or provide the requested agenda format.

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Agenda No. 4 A

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Sandra Kandell, City Clerk/DEI Coordinator
MEETING DATE: February 15, 2023
SUBJECT: General Public Comment
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Receive written general public comment, if applicable.

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Agenda No. 5 A

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Sandra Kandell, City Clerk/DEI Coordinator
MEETING DATE: February 15, 2023
SUBJECT: Minutes of the City Council Special, Closed and Regular Meetings of February 1, 2023
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Approve minutes.

Attachments
Draft Minutes
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1 DRAFT MEETING MINUTES

CITY OF PACIFIC GROVE

CITY COUNCIL

AMENDED CLOSED SESSION MEETING
Wednesday, February 1, 2023, 5:00 P.M.

Council Chamber – City Hall – 300 Forest Avenue, Pacific Grove, CA THIS MEETING WILL BE HELD IN PERSON AND VIRTUALLY (HYBRID).

CHAMBER CAPACITY SEATING IS LIMITED AND PROVIDED ON A
FIRST COME, FIRST SERVED BASIS.

THE VIRTUAL MEETING IS COMPLIANT WITH THE GOVERNOR’S EXECUTIVE ORDERS

ALLOWING FOR A DEVIATION OF TELECONFERENCE RULES REQUIRED BY THE BROWN ACT.

Join the Zoom Meeting to participate live at:
https://us02web.zoom.us/j/692219855

CALL TO ORDER
Mayor Peake called the meeting to order at 5:00 p.m. City Clerk conducted roll call with the following Council present in Chamber: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, and McDonnell. Councilmember Poduri presented via Zoom.

APPROVAL OF AGENDA
Action: Mayor Peake reported Closed Session Agenda item C is continued to a future date uncertain. City Attorney Brian Pierik recommended, and Mayor Peake complied and called to order the Closed Session and Special Closed Session meetings simultaneously.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Amelio, Council voted to approve the agenda, as amended.

Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

CLOSED SESSION

PUBLIC COMMENT ON CLOSED SESSION MATTERS
No public comment was received.

A. Conference with Labor Negotiators (Government Code Section 54957.6) City Negotiators: Ben Harvey, City Manager, Tori Hannah, Administrative Services Director/Assistant City Manager, and Leticia Livian, Human Resources Director Employees: General Employees Association, Management Employees Association, DRAFT PGCC 2-15-23

2 Unrepresented Management, Confidential Employees, and Unrepresented Department Heads B. Conference with Real Property Negotiators (Government Code § 54956.8) Property: Union Pacific Railroad Right-of-Way from the border of the Monarch Pines Mobile Home Park (outside of Monarch Pines) to near Sinex Avenue, alongside the Pacific Grove Golf Links (no property address or APN available) Agency Negotiator(s): Ben Harvey, City Manager
Negotiating Party(ies): Peter Kinney, Senior Manager-Field Operations Real Estate, Union Pacific Under negotiation: Price and terms of payment C. Conference with Legal Counsel - Existing Litigation (Government Code Section 54956.9) This item was continued to a future date uncertain.

Worker's Compensation (W/C) Claim No. 4020102DA72-0001 (Billy Hawkins) DRAFT PGCC 2-15-23

3 DRAFT MEETING MINUTES

CITY OF PACIFIC GROVE

CITY COUNCIL

SPECIAL CLOSED SESSION MEETING
Wednesday, February 1, 2023, 5:00 P.M.

Council Chamber – City Hall – 300 Forest Avenue, Pacific Grove, CA THIS MEETING WILL BE HELD IN PERSON AND VIRTUALLY (HYBRID).

CHAMBER CAPACITY SEATING IS LIMITED AND PROVIDED
ON A FIRST COME, FIRST SERVED BASIS.

THE VIRTUAL MEETING IS COMPLIANT WITH THE GOVERNOR’S EXECUTIVE ORDERS

ALLOWING FOR A DEVIATION OF TELECONFERENCE RULES REQUIRED BY THE BROWN ACT.

Join the Zoom Meeting to participate live at:
https://us02web.zoom.us/j/692219855

CALL TO ORDER
Mayor Peake called the meeting to order at 5:00 p.m. City Clerk conducted roll call with the following Council present in Chamber: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, and McDonnell. Councilmember Poduri presented via Zoom.

APPROVAL OF AGENDA
Action: City Attorney Brian Pierik recommended, and Mayor Peake complied and called to order the Closed Session and Special Closed Session meetings simultaneously.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Amelio, Council voted to approve the agenda, as amended.

Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

CLOSED SESSION

PUBLIC COMMENT ON CLOSED SESSION MATTERS
No public comment was received.

A. Conference with Legal Counsel – Existing Litigation (Government Code § 54956.9) City of Arcata, et al. v. PG&E, et al.

Case No. CGC-20-585483
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4 DRAFT MEETING MINUTES

CITY OF PACIFIC GROVE

CITY COUNCIL

REGULAR MEETING
Wednesday, February 1, 2023, 6:00 P.M.

Council Chamber – City Hall – 300 Forest Avenue, Pacific Grove, CA THIS MEETING WILL BE HELD IN PERSON AND VIRTUALLY (HYBRID).

CHAMBER CAPACITY SEATING IS LIMITED AND PROVIDED ON
A FIRST COME, FIRST SERVED BASIS.

THE VIRTUAL MEETING IS COMPLIANT WITH THE GOVERNOR’S

EXECUTIVE ORDERS ALLOWING FOR A DEVIATION OF
TELECONFERENCE RULES REQUIRED BY THE BROWN ACT.

JOIN THE ZOOM WEBINAR TO PARTICIPATE LIVE AT:
https://us02web.zoom.us/j/209579290

CALL TO ORDER
Mayor Peake called the meeting to order at 6:00 p.m. City Clerk conducted roll call with the following Council present in Chamber: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

PLEDGE OF ALLEGIANCE
Councilmember Amelio led the pledge of allegiance.

1. APPROVAL OF AGENDA
Action: Mayor Peake recommended 12C be heard by 8:00 p.m.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Amelio, Council voted to approve the agenda with as recommended.

Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

2. PRESENTATIONS

3. COUNCIL AND STAFF ANNOUNCEMENTS (City-Related Items Only) A. Report on Closed Session by City Attorney
Conference with Labor Negotiators (Government Code Section 54957.6) City Negotiators: Ben Harvey, City Manager, Tori Hannah, Administrative Services Director/Assistant City Manager, and Leticia Livian, Human Resources Director DRAFT PGCC 2-15-23

5 Employees: General Employees Association, Management Employees Association, Unrepresented Management, Confidential Employees, and Unrepresented Department Heads City Attorney Brian Pierik stated there was no reportable action on this item.

Conference with Real Property Negotiators (Government Code § 54956.8) Property: Union Pacific Railroad Right-of-Way from the border of the Monarch Pines Mobile Home Park (outside of Monarch Pines) to near Sinex Avenue, alongside the Pacific Grove Golf Links (no property address or APN available)
Agency Negotiator(s): Ben Harvey, City Manager
Negotiating Party(ies): Peter Kinney, Senior Manager-Field Operations Real Estate, Union Pacific Under negotiation: Price and terms of payment
City Attorney Brian Pierik stated there was no reportable action on this item.

Conference with Legal Counsel - Existing Litigation (Government Code Section 54956.9) Worker's Compensation (W/C) Claim No. 4020102DA72-0001 (Billy Hawkins) City Attorney Brian Pierik stated there was no reportable action on this item.

Conference with Legal Counsel – Existing Litigation (Government Code § 54956.9) City of Arcata, et al. v. PG&E, et al.

Case No. CGC-20-585483
City Attorney Brian Pierik stated there was no reportable action on this item.

B. Council and staff made general announcements.

4. GENERAL PUBLIC COMMENT
General public comment was received from Cathy Wooten, Mike Gibbs, Vince Tuminello, Colleen Ingram, Adam de Boor, Marsha, and Inge Lorentzen Daumer.

CONSENT AGENDA
Action: Consent Agenda item 9B was pulled and considered as Regular Agenda item 12D.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Amelio, Council voted to approve the Consent Agenda as amended.

Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

5. APPROVAL OF CITY COUNCIL MEETING MINUTES
A. Minutes of the City Council Special and Regular Meetings of January 18, 2023 and City Council Goal Setting Meeting of January 25, 2023
Action: Approved minutes.

DRAFT PGCC 2-15-23

6 CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

6. RESOLUTIONS
A. Adoption of a Resolution Granting Consent to the City of Pacific Grove to Renew the Monterey County Tourism Improvement District (MCTID) and Include the City of Monterey in the MCTID
Action: Adopted Resolution No. 23-001 granting consent to the City of Pacific Grove to renew the Monterey County Tourism Improvement District (“MCTID”) and include the City of Monterey in the MCTID.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Amendment of Resolution 22-048, Authorizing Examination of Sales or Transactions and Use Tax Records
Action: Approved the Proposed Amendment of Resolution 22-048, Authorizing Examination of Sales or Transactions and Use Tax Records CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

7. ORDINANCES

8. REPORTS – INFORMATION ONLY
A. Second Quarter Treasurer’s Quarterly Report – Fiscal Year 2022-23 Action: Received the Report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Second Quarter 22/23 Workers' Compensation Report
Reference: Audrey Cray, Finance & Risk Manager
Action: Received the report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
C. Second Quarter Budget Report
Action: Received the report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
D. Second Quarter Purchase Order Report
Action: Received the Second Quarter Purchase Order Report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
E. Update on Code Compliance Program
Action: Received staff report regarding Code Compliance program and short term rental enforcement update.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
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7 F. Teleconference Rules For Attendance at Meetings of Legislative Bodies Action: Received and filed Agenda Report on Teleconference Rules for attendance at meetings of legislative bodies.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
G. 2022 Planning Commission Annual Report
Action: Received the 2022 Planning Commission Annual Report.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

9. REPORTS – REQUIRING ACTION
A. Ratification of New Local Emergency Actions
Action: Received report of emergency directives/modifications.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Authorize Agreement for the Del Monte Blvd. Storm Drain Project This item was pulled and considered as Regular Agenda item 12D.

Reference: Joyce Halabi, Deputy Public Works Department Action: Authorize an agreement with Monterey Peninsula Engineering for the Del Monte Blvd Storm Drain Improvements Project in an amount not to exceed $227,125 plus a 15% contingency.

CEQA: Categorical Exemption, CEQA Guidelines Section 15301, Class I, Existing Facilities
C. Agreement for Comprehensive Fee Study, Development Impact Fees, and/or a Cost Allocation Plan
Action: Authorized the Mayor to sign an agreement with the Matrix Consulting Group for comprehensive fee study, development impact fees, and/or a cost allocation plan, in an amount not to exceed $67,890.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
D. Contract Amendment with Rincon Consultants Inc.

Action: Approved the proposed contract amendment with Rincon Consultants, Inc. relating to a development project located at 1661 Sunset Drive based on a contract time extension.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
E. Appointment to Historic Resources Committee
Action: Approved the appointment of J. Bicket to Historic Resources Committee ending January 31, 2025.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
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8 10. MEETING MINUTES OF COMMISSIONS, BOARDS, AND COMMITTEES A. Planning Commission Meeting Minutes: September 8, October 13, November 10, and December 8, 2022
Action: Received the minutes.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

REGULAR AGENDA

11. PUBLIC HEARINGS
A. Scope of Public Comments At Meetings of Legislative Bodies Public comment was received from Sally Moore, Nadja Mark, Adam de Boor, Colleen Ingram, Marsha, Inge Lorentzen Daumer, and Lisa Ciani.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Amelio, Council voted to

1. Request a reading of title of Ordinance;

2. Waive further reading and introduce for a first reading of Ordinance Amending Pacific Grove Municipal Code Section 2.04.050 Regarding Public Comment; and

3. Adopt proposed amendment to Council Policy 000-017 Order of Agenda for Council Meetings
Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

12. UNFINISHED AND ONGOING BUSINESS
A. Climate Action and Adaptation Planning
Public comment was received from Colleen Ingram and Inge Lorentzen Daumer.

Action: Upon motion by Mayor Peake and seconded by Councilmember Amelio, Council voted to

1. Request that the City Council prioritize and initiate Climate Action and Adaptation Planning in 2023 tied to Council goals.

2. Seek the services of a consultant to develop and produce a Climate Action and Adaptation Plan.

3. Establish a Council Brown Act subcommittee on Climate Action and Adaptation Planning comprising of Councilmember Coletti, McDonnell and Poduri to end when a Climate Action and Adaptation Plan is complete.

Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

DRAFT PGCC 2-15-23

9 NOES: None.

ABSENT: None.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Council Alternates for Regional and State Agencies and Associations No public comment was received.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Beck, Council voted to appoint Councilmember Amelio as alternate for TAMC.

Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
C. Goal Setting Subcommittee
No public comment was received.

Action: Upon motion by Councilmember and seconded by Councilmember Beck, Council voted to appoint a City Council Goals ad hoc subcommittee comprised of Mayor Peake, Councilmembers Coletti and McDonnell to assist Council with finalizing goal language and establishing goal priorities through April 2023 or upon completion of the task at hand.

Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
D. Authorize Agreement for the Del Monte Blvd. Storm Drain Project This item was pulled from the Consent Agenda.

Public comment was received from Andrew Kubica and Lisa Ciani.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Beck, Council voted to authorize an agreement with Monterey Peninsula Engineering for the Del Monte Blvd Storm Drain Improvements Project in an amount not to exceed $227,125 plus a 15% contingency.

DRAFT PGCC 2-15-23

10 Motion carried 7-0, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Amelio, Beck, Coletti, McDonnell, and Poduri.

NOES: None.

ABSENT: None.

CEQA: Categorical Exemption, CEQA Guidelines Section 15301, Class I, Existing Facilities

13. NEW BUSINESS
A. Council Access to City Committee Email Groups
Public comment was received from Nadja Mark, Colleen Ingram, Inge Lorentzen Daumer, Adam de Boor, Marsha, Sierra North and Mari Adams.

Action: Upon motion by Mayor Pro Tem Smith and seconded by Councilmember Beck, Council voted to direct the City Attorney to prepare a Resolution amending Council Policy 000-5 to implement the proposed policy (see Attachment #1).

Motion carried 5-2, by the following roll call vote:

AYES: Mayor Peake, Mayor Pro Tem Smith, Councilmembers Beck, Coletti, and McDonnell.

NOES: Councilmembers Amelio and Poduri.

ABSENT: None.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378
B. Presentation of the City's New Transparency Software Public comment was received from Inge Lorentzen Daumer and Marsha.

Action: Council received the presentation.

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

14. FULL PRESENTATIONS

15. CLOSED SESSION
DRAFT PGCC 2-15-23

11 ADJOURNMENT
Council adjourned the meeting at approximately 8:38 p.m.

Respectfully Submitted,
Sandra Kandell
City Clerk
Approved by Mayor: _______________________________Date________________ Attest by City Manager: ____________________________Date_________________ DRAFT PGCC 2-15-23

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: Anastacia Wyatt, Community Development Director
MEETING DATE: February 15, 2023
SUBJECT: Approve a Resolution authorizing a grant application to the California Automated Permit Processing Program (CALAPP).

CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Approve a Resolution authorizing an application to the California Automated Permit Processing Program (CALAPP).

DISCUSSION
On September 16, 2022, SB 379 was signed into law. This legislation requires most California cities and counties to implement an online, automated permitting platform that verifies code compliance and issues permits in real time for residential solar energy systems. This is defined as a system that is no larger than 38.4 kilowatts alternating current nameplate rating and a residential energy storage system, as defined, paired with a residential solar energy system that is no larger than 38.4 kilowatts alternating current nameplate rating. More information on SB 379 can be found here. A City with a population of fewer than 50,000 and not exempt is required to comply with SB379 requirements by September 30, 2024. The City of Pacific Grove is not exempt and meets this criteria due to being a population of over 5,000.

On June 1, 2022, the California Energy Commission (CEC) released a grant solicitation and application for CALAPP through a Notice of Proposed Awards (NOPA). This grant solicitation offers an opportunity for jurisdictions to fund the establishment of an online solar permitting program. The grant solicitation announced the availability of up to $20 million statewide in grant funding. This grant is on a first come, first serve basis. Applications will be accepted until May 1, 2023.

The City is proposing in its application to utilize the SolarAPP+ Software tool that was designed to be utilized to comply with SB 379 and is free to adopt. The software was developed by local governments, code bodies such as the International Code Council (ICC), solar industry groups, environmental organizations, and building safety groups. This software would simplify and streamline single-family rooftop solar permits. Solar App+ can approve most applications without delay and streamline application processes for the City. When customers need residential rooftop solar panels on their home, the software would review, approve, and process the permit instantly. The software will be updated with code requirements regularly. The customer would bring that approval to the City’s building department for final approval. The installer would pay a small fee of approximately $25.00 to utilize the software.

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This fee allows the Solar App + Software to maintain the tool. The steps for a customer to use the software include: the Installer submits an application with design specifications through SolarAPP; SolarAPP checks the application to ensure the system design is code compliant; and finally, Code compliant applications are issued a permit instantly after fee payment.

The City of Pacific Grove is able to apply for up to $40,000 based on the City’s population size of under 50,000 people. The funds would be utilized to comply with SB 379 for in-house staff labor costs and cost associated with the hardware, software, maintenance, and training to implement the software program. The City has worked with in-house IT to ensure coordination and IT requirements are compatible with City systems.

OPTIONS

1. Take no action.

2. Provide alternate direction.

FINANCIAL IMPACT:

This funding would augment the City's ability to meet SB 379 requirements to implement the software with up to $40,000 in grant funding. Without this funding, the City would need to find other funds to pay for the implementation of the software tool.

GOAL ALIGNMENT: Not Applicable.

Attachments
Resolution SolarAPP+ Grant
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RESOLUTION NO. 22-xxx

A RESOLUTION OF THE CITY OF PACIFIC GROVE CITY COUNCIL

AUTHORIZING THE APPLICATION FOR THE CALIFORNIA AUTOMATED

PERMIT PROCESSING (CALAPP) PROGRAM
The City of Pacific Grove (“Applicant”) hereby consents to, adopts, and ratifies the following resolution.

A. WHEREAS, the California Energy Commission (CEC) released a grant solicitation and application package entitled “California Automated Permit Processing Program.” This grant solicitation is an offer to fund California cities, counties, or cities and counties to establish online solar permitting. The grant solicitation announced the availability of up to $20 million to fund agreements resulting from this solicitation and that the CEC, at its sole discretion, reserves the right to increase or reduce the amount of funds available under this solicitation.

B. WHEREAS The “Notice of Proposed Awards” (NOPA) identifies each applicant selected and recommended for funding by CEC staff and includes the amount of recommended funding. The NOPA will be updated regularly with new awardees and posted in the same location.

C. WHEREAS Funding of proposed agreements resulting from this solicitation is contingent upon the approval of these agreements by CEC staff and execution of a grant agreement.

This notice is posted on the CEC’s website at https://www.energy.ca.gov/fundingopportunities/awards.

D. WHEREAS the City of Pacific Grove is eligible to receive a maximum of $40,000, and the online, automated solar permitting platform the City will be utilizing is SolarApp+.

E. WHEREAS The funds will be used for ongoing in-house staff labor costs associated directly with adoption and maintenance of the platform, ongoing third-party or consultant time associated directly with adoption and maintenance of the platform, ongoing staff training and education, specific to platform, essential hardware or equipment necessary to support adoption of the platform, and maintenance, such as adding support for energy storage paired with solar energy system permitting, and subscription cost for permitting, PGCC 2-15-23

and subscription cost for permit tracking software in support of adopted permitting platform.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PACIFIC GROVE:

1. If Applicant receives a grant of California Automated Permit Processing Program funds from the California Energy Commission pursuant to the above referenced Notice of Proposed Awards, it represents and certifies that it will use all such funds in a manner consistent and in compliance with all applicable state and federal statutes, rules, regulations, and laws, including without limitation all rules and laws regarding the California Automated Permit Processing Program, as well as any and all contracts Applicant may have with the California Energy Commission.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF PACIFIC GROVE this _____ day of ______________, _______, by the following vote:

AYES:

NOES:

ABSENT:

APPROVED:
_______________________________
BILL PEAKE, Mayor
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ATTEST:

DATED:_______________________
_______________________________
SANDRA KANDELL, City Clerk
APPROVED AS TO FORM:
_______________________________
BRIAN A. PIERIK, City Attorney
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Agenda No. 6 B

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Brian A. Pierik, City Attorney
MEETING DATE: February 15, 2023
SUBJECT: Resolution Approving Standard Contracts
CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Moiton to adopt Resolution Approving Standard Contracts.

DISCUSSION
On September 21, 2022, the City Council approved the action proposed in an Agenda Report submitted by Mayor Bill Peake requesting the City Council to direct the City Attorney to return with a (1) draft ordinance to clarify purchasing authorization procedures and (2) resolution for approval of standard contracts.

On October 19, 2022, the City Council introduced for first reading Ordinance No. 22-017 Amending Chapters 2.05 and 2.16 and 6.20 of the Pacific Grove Municipal Code on Authority of Mayor to Sign Contracts and Purchasing System and Procedures and Warrants.

On November 2, 2022, the City Council adopted by second reading Ordinance No. 22-017 Amending Chapters 2.05 and 2.16 and 6.20 of the Pacific Grove Municipal Code on Authority of Mayor to Sign Contracts and Purchasing System and Procedures and Warrants.

On December 2, 2022, 30 days after the second reading, Ordinance No. 22-017 became effective.

The attached Resolution is presented to the City Council for the approval of standard contracts attached to the Resolution as follows:
a. Construction Services Standard Contract
b. Design Professional Services Standard Contract
c. Maintenance Services Standard Contract
d. Professional Services Standard Contract
e. Vendor Services Standard Contract
As provided in the Resolution, when City staff submits a contract to the City Council for approval, reference shall be made in the Agenda Report to the applicable Standard Contract, if there is one, without attaching the Standard Contract to the Agenda Report and the Agenda Report will identify any provisions of the Standard Contract that are being added including Term and compensation and PGCC 2-15-23

changes, if any, to the Standard Contract. If the proposed contract is not a City Standard Contract, then the entire contract shall be attached to the Agenda Report.

OPTIONS
Do not adopt Proposed Resolution Approving Standard Contracts.

FINANCIAL IMPACT:

There is no fiscal impact.

GOAL ALIGNMENT: Not Applicable.

Attachments
1 - Reso with Contracts
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RESOLUTION NO. 22-XXX

RESOLUTION APPROVING STANDARD CONTRACTS

FINDINGS

1. On September 21, 2022, the City Council approved the action proposed in an Agenda Report submitted by Mayor Bill Peak requesting the City Council to direct the City Attorney to return with a (1) draft ordinance to clarify purchasing authorization procedures and (2) resolution for approval of standard contracts.

2. On October 19, 2022, the City Council introduced for first reading Ordinance No. 22-017 Amending Chapters 2.05 and 2.16 and 6.20 of the Pacific Grove Municipal Code on Authority of Mayor to Sign Contracts and Purchasing System and Procedures and Warrants.

3. On November 2, 2022, the City Council adopted by second reading Ordinance No. 22- 017 Amending Chapters 2.05 and 2.16 and 6.20 of the Pacific Grove Municipal Code on Authority of Mayor to Sign Contracts and Purchasing System and Procedures and Warrants.

4. On December 2, 2022, 30 days after the second reading, Ordinance No. 22-017 became effective.

5. This Resolution is presented to the City Council for the approval of standard contracts.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PACIFIC GROVE:

1. The Council determines that each of the Findings set forth above is true and correct, and by this reference incorporates those Findings as an integral part of this Resolution.

2. The Council hereby approves the following standard contracts which are attached to this Resolution and are hereby incorporated by reference:
a. Construction Services Standard Contract
b. Design Professional Services Standard Contract
c. Maintenance Services Standard Contract
d. Professional Services Standard Contract
e. Vendor Services Standard Contract
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3. When City staff submits a contract to the City Council for approval, reference shall be made in the Agenda Report to the applicable Standard Contract, if there is one, without attaching the Standard Contract to the Agenda Report and the Agenda Report will identify any provisions of the Standard Contract that are being added including Term and compensation and changes, if any, to the Standard Contract. If the proposed contract is not a City Standard Contract, then the entire contract shall be attached to the Agenda Report.

4. This Resolution shall become effective immediately following passage and adoption thereof.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF PACIFIC GROVE this _____ day of ______________, _______, by the following vote:

AYES:

NOES:

ABSENT:

APPROVED:
_______________________________
BILL PEAKE, Mayor
ATTEST:

DATED:_______________________
_______________________________
SANDRA KANDELL, City Clerk
APPROVED AS TO FORM:
_______________________________
BRIAN A. PIERIK, City Attorney
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Construction Services Agreement 07.19.2022

CITY OF PACIFIC GROVE

CONSTRUCTION SERVICES AGREEMENT
This CONSTRUCTION SERVICES AGREEMENT (“Agreement”) is made and effective [ insert date], by and between the City of Pacific Grove, a municipal corporation (“City”), and [insert contractor name]_ (“CONTRACTOR”), License Number __________________. In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
This Agreement shall commence on [insert date] and shall remain and continue in effect until tasks described herein are completed, but in no event later than [insert date], 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 [describe work/services] (“Work”) for the [describe project] (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 engaged in providing similar services as are required of CONTRACTOR hereunder in meeting its obligations under this Agreement.

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Construction Services Agreement 07.19.2022
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.
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.

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Construction Services Agreement 07.19.2022
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. FEDERAL GRANT REQUIREMENTS
This Project may be subject to Federal Grant Requirements. If applicable, CONTRACTOR shall comply with the Requirements set forth in Exhibit F, attached hereto and incorporated by reference.

6. 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.

7. 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 PGCC 2-15-23

Construction Services Agreement 07.19.2022
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 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.

8. 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 ________________________________ 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.

9. 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.

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Construction Services Agreement 07.19.2022

10. CONTRACTOR’S FAILURE TO PROCURE COMPLETION OF PROJECT 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.

11. 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.

12. 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 PGCC 2-15-23

Construction Services Agreement 07.19.2022
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. 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.

13. 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.

14. 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.

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Construction Services Agreement 07.19.2022

15. INDEMNIFICATION
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.

16. 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 PGCC 2-15-23

Construction Services Agreement 07.19.2022
coverage identified in this Agreement and which is applicable to a given loss, claim or demand, will be equally available to City.

17. 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.

18. 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.

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Construction Services Agreement 07.19.2022
f. Section 1775 - Payroll Records.
g. Section 1773.8 - Travel and Subsistence Pay.
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.

19. 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.

20. 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.

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Construction Services Agreement 07.19.2022
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 and file a “Statement of Economic Interest” with CITY disclosing CONTRACTOR’s and/or such other person’s financial interests.

21. 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.

22. 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.

23. 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 PGCC 2-15-23

Construction Services Agreement 07.19.2022
a Class I, Class II or Class III disposal site in accordance with the provisions of existing law;
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.

24. 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 PGCC 2-15-23

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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.

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.

25. 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.

26. 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.

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Construction Services Agreement 07.19.2022

27. NOTICES
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: City Representative
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
To CONTRACTOR: _____________________________
_____________________________
_____________________________
_____________________________
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.

28. 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.

29. 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.

30. 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 PGCC 2-15-23

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aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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

36. 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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Construction Services Agreement 07.19.2022
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 Payment Schedule
Exhibit C Insurance Requirements
[Exhibit D Request for Proposal]
[Exhibit E Contractor’s Proposal]
[Exhibit F Federal Grant Requirements]
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Exhibit A
Scope of Work/Services
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Construction Services Agreement 07.19.2022
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 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) PGCC 2-15-23

Construction Services Agreement 07.19.2022
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.

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 PGCC 2-15-23

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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.

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.

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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.

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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[Exhibit F]
Federal Grant Requirements
[Procurement of Recovered Materials (§200.323)]
Contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

Domestic Preference (§ 200.322)
As appropriate and to the extent consistent with law, City, to the greatest extent practicable under this Agreement, establishes a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products).

Contractor shall include the following requirements in all subawards including all contracts and purchase orders for work or products under this Agreement. For purposes of this section:
(1) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) “Manufactured products” means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

Small and Minority Businesses, Women’s Business Enterprises, and Labor Surplus Area Firms (§ 200.321)
City shall take all necessary affirmative steps to assure minority businesses, women's business enterprises, and labor surplus area firms are used when possible. Accordingly, Contractor, and any of its subcontracts, shall comply with the following affirmative steps:
(1) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(2) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises;
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(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; and (5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce.

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Design Professional Services Agreement 07.19.2022

CITY OF PACIFIC GROVE

DESIGN PROFESSIONAL SERVICES AGREEMENT
This DESIGN PROFESSIONAL SERVICE AGREEMENT (“Agreement”), is made and effective as of [Insert date], between the City of Pacific Grove (“City”), a municipal corporation and [Insert consultant], [a sole proprietorship, partnership, limited liability partnership, corporation] (“CONSULTANT”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
This Agreement shall commence on [Insert date] and shall remain and continue in effect until tasks described herein are completed, but in no event later than [Insert date], unless sooner terminated pursuant to the provisions of this Agreement.

2. SCOPE OF WORK
CONSULTANT shall perform the tasks and services (“Services”) described and set forth in Exhibit A, Scope of Services, attached hereto and incorporated herein as though set forth in full.

CONSULTANT shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. To the extent that Exhibit A is a Proposal from CONSULTANT, such Proposal is incorporated only for the description of the Scope of Services and no other terms and conditions from any such proposal shall apply to this Agreement unless specifically agreed to in writing.

3. PERFORMANCE
CONSULTANT shall at all times faithfully, competently and to the best of their ability, experience, and talent, perform all tasks described herein. CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of CONSULTANT hereunder in meeting their obligations under this Agreement. CONSULTANT has the duty to prepare design documents free from defects. [IF RFP, ADD: CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL CONSULTANT is bound by the contents of City’s Request for Proposal on file hereto and incorporated herein as Exhibit D, and the contents of the proposal submitted by CONSULTANT, available on file at the [insert location ], hereto and incorporated herein as Exhibit E. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in CONSULTANT’s Proposal.]

4. CITY MANAGEMENT
The City Manager, or designee, shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by CONSULTANT, but not including the authority to enlarge the Scope of Services or change the compensation due to CONSULTANT. The City Manager shall be authorized to act on City’s PGCC 2-15-23

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behalf and to execute all necessary documents that enlarge the Scope of Services or change CONSULTANT’s compensation, subject to Section 6 hereof.

5. PAYMENT
a. City agrees to pay CONSULTANT monthly, in accordance with the payment rates and terms and the Payment Schedule as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. This amount shall not exceed [Insert amount] dollars ($__.00) 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 contract amendments that exceed the total threshold, require City Council approval. Any contracts, including contract amendments that exceed the total threshold, which do not have City Council approval, shall be void. c. CONSULTANT shall not be compensated for any Services rendered in connection with its performance of this Agreement that are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Manager or the City Council. CONSULTANT shall be compensated for any additional services in the amounts and in the manner as agreed to by City Manager and CONSULTANT at the time City’s written authorization is given to CONSULTANT for the performance of said Services. d. CONSULTANT 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. If the City disputes any of CONSULTANT’s fees it shall give written notice to CONSULTANT within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. Any final payment under this Agreement shall be made within forty-five (45) days of receipt of an invoice therefore.

6. INSPECTION
City shall at all times have the right to inspect the work and materials. CONSULTANT 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 CONSULTANT from any obligation to perform said work strictly in accordance with the specifications or any modifications thereof and in compliance with the law.

7. 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 CONSULTANT at least thirty (30) days prior written notice. Upon receipt of said notice, CONSULTANT shall immediately cease all Services under this Agreement, unless the notice provides otherwise. If City suspends or PGCC 2-15-23

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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, the City shall pay to CONSULTANT the actual value of the Services performed up to the time of termination, provided the Services performed are of value to the City. Upon termination of the Agreement pursuant to this Section, CONSULTANT will submit an invoice to the City pursuant to Section 6.

8. DEFAULT OF CONSULTANT
a. CONSULTANT’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that CONSULTANT is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating CONSULTANT for any Services performed after the date of default and can terminate this Agreement immediately by written notice to the CONSULTANT. If such failure by the CONSULTANT to make progress in the performance of Services hereunder arises out causes beyond the CONSULTANT’s control, and without fault or negligence of the CONSULTANT, it shall not be considered a default.
b. If the City Manager or designee determines that CONSULTANT is in default in the performance of any of the terms or conditions of this Agreement, they shall cause to be served upon CONSULTANT a written notice of the default. The CONSULTANT 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 CONSULTANT fails to cure its default within such period of time or fails to present City with a written plan for the cure of the default, 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.

9. OWNERSHIP OF DOCUMENTS
a. CONSULTANT 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. CONSULTANT 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 identified and readily accessible. CONSULTANT 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; shall permit City to make transcripts or copies therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. If there is a substantial billing deviation adverse to City, then the cost of an audit shall be borne by CONSULTANT. Such records, together with supporting documents, shall be maintained for a period of five (5) years after receipt of final payment.

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Design Professional Services Agreement 07.19.2022
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 Services 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 CONSULTANT. With respect to computer files, CONSULTANT shall make available to City, at CONSULTANT’s office and upon reasonable written request by City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, copying and/or printing computer files.

CONSULTANT hereby grants to City all right, title, and interest, including any copyright, in and to the documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared by CONSULTANT in the course of providing the Services under this Agreement.

10. RECORD AUDIT
In accordance with Government Code, Section 8546.7, for expenditures of funds greater than $10,000, records of both City and CONSULTANT shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.

11. INDEMNIFICATION AND DEFENSE
Indemnification and Defense for Professional Services
To the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, costs and expenses, including attorney’s fees and costs, to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT. CONSULTANT’s duty to defend shall consist of reimbursement of defense costs incurred by City in direct proportion to the Consultant’s proportionate percentage of fault. CONSULTANT’s percentage of fault shall be determined, as applicable, by a court of law, jury or arbitrator. In the event any loss, liability or damage is incurred by way of settlement or resolution without a court, jury or arbitrator having made a determination of the CONSULTANT’s percentage of fault, the parties agree to mediation with a third party neutral to determine the CONSULTANT’s proportionate percentage of fault for purposes of determining the amount of indemnity and defense cost reimbursement owed to City.

For all Other Liabilities
Notwithstanding the foregoing and without diminishing any rights of City above for any liability, claim, demand, allegation against City arising out of, related to, or pertaining to any act or omission of CONSULTANT, but which is not a design professional service, CONSULTANT shall defend, indemnify, and hold harmless City, its officials, employees, and agents (“Indemnified Parties”) from and against any and all damages, costs, expenses (including reasonable attorney fees and expert witness fees), judgments, settlements, and/or arbitration awards, whether for personal or bodily injury, property damage, or economic injury, and arising PGCC 2-15-23

Design Professional Services Agreement 07.19.2022
out of, related to, any concurrent or contributory negligence on the part of the City, except for the sole or active negligence of, or willful misconduct of the City.

12. INSURANCE
CONSULTANT shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit C attached to and part of this Agreement.

13. INDEPENDENT CONSULTANT
a. CONSULTANT is and shall at all times remain as to City a wholly independent consultant and/or independent contractor. The personnel performing the Services under this Agreement on behalf of CONSULTANT shall at all times be under CONSULTANT’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of CONSULTANT or any of CONSULTANT’s officers, employees, or agents, except as set forth in this Agreement. CONSULTANT 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. CONSULTANT 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 CONSULTANT in connection with the performance of this Agreement. Except for the fees paid to CONSULTANT as provided in the Agreement, City shall not pay salaries, wages, or other compensation to CONSULTANT for performing Services hereunder for City. City shall not be liable for compensation or indemnification to CONSULTANT for injury or sickness arising out of performing Services hereunder.

14. LEGAL RESPONSIBILITIES
CONSULTANT shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. CONSULTANT 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 CONSULTANT to comply with this Section.

15. UNDUE INFLUENCE
CONSULTANT declares and warrants that no undue influence or pressure was 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 arrangement, or financial inducement. No officer, employee or agent of the City has or will receive compensation, directly or indirectly, from CONSULTANT, or from any officer, employee or agent of CONSULTANT, in connection with the award of this Agreement or any PGCC 2-15-23

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Services to be performed 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.

16. 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 Services performed under the Agreement 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 Services performed under this Agreement.

17. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
a. All information gained by CONSULTANT in performance of this Agreement shall be considered confidential and shall not be released by CONSULTANT without City’s prior written authorization. CONSULTANT, its officers, employees, agents, or subconsultants, 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 CONSULTANT gives City notice of such court order or subpoena.
b. CONSULTANT shall promptly notify City should CONSULTANT, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request (“Discovery”), court order, or subpoena from any person or party regarding this Agreement and the work performed there under or with respect to any project or property located within the City, unless City is a party to any lawsuit, arbitration, or administrative proceeding connected to such Discovery, or unless CONSULTANT is prohibited by law from informing City of such Discovery. City retains the right, but has no obligation, to represent CONSULTANT and/or be present at any deposition, hearing, or similar proceeding as allowed by law. Unless City is a party to the lawsuit, arbitration, or administrative proceeding and is adverse to CONSULTANT in such proceeding, CONSULTANT agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by CONSULTANT. 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.
c. 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 and file a “Statement of Economic Interest” with CITY disclosing CONTRACTOR’s and/or such other person’s financial interests.

18. DISCRIMINATION
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CONSULTANT agrees that in the performance of this Agreement, neither CONSULTANT nor any person acting on CONSULTANT’s behalf shall 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.

19. NOTICES
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: [Insert City Employee]
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
Attention: City Clerk
To CONSULTANT: _________________________
_________________________
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.

20. 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.

21. ASSIGNMENT
CONSULTANT shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of City. Because of the personal nature of the Services to be rendered pursuant to this Agreement, only CONSULTANT shall perform the Services described in this Agreement. CONSULTANT may use assistants, under their direct supervision, to perform some of the Services under this Agreement. [If specific to Consultant, add: CONSULTANT shall provide City fourteen (14) days’ notice prior to the departure of [Insert name of particular person with expertise] from CONSULTANT’s employ. Should [Insert name] leave CONSULTANT’s employ, City shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this Agreement, CONSULTANT’s sole compensation shall be payment for actual Services performed up to, and including, the date of termination or PGCC 2-15-23

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as may be otherwise agreed to in writing between City and the CONSULTANT. Before retaining or contracting with any sub-consultant for any Services under this Agreement, CONSULTANT shall provide City with the identity of the proposed sub-consultant, a copy of the proposed written contract between CONSULTANT and such sub-consultant, which shall include and indemnity provision similar to the one provided herein and identifying City as an indemnified party, or an incorporation of the indemnity provision provided herein, and proof that such proposed sub-consultant carries insurance at least equal to that required by this Agreement or obtain a written waiver from City for such insurance.]

22. LICENSES
At all times during the term of this Agreement, CONSULTANT shall have in full force and effect, all licenses required of it by law for the performance of the Services described in this Agreement. CONSULTANT shall obtain a valid City Business License and shall maintain said Business License for the term of this Agreement and any extensions.

23. GOVERNING LAW
City and CONSULTANT 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 federal district court with jurisdiction over City. CONSULTANT agrees not to commence or prosecute any dispute arising out of or in connection with this Agreement other than in the aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts

24. 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 and pertaining to the subject of this Agreement or with respect to the terms and conditions of this Agreement, 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. No amendment shall be valid unless in writing, executed by both parties.

25. DISPUTE RESOLUTION; ATTORNEY’S FEES
CONSULTANT shall continue to perform under this Agreement during any dispute.

CONSULTANT and City hereby agree to make good faith efforts to resolve disputes as quickly as possible. In the event any dispute arising from or related to this Agreement results in litigation or arbitration, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees, expenses for expert witnesses (whether or not called to testify), expenses for accountants or appraisers (whether or not called to testify), and other related expenses. Recovery of these expenses shall be as additional costs awarded to the prevailing party, and shall not require initiation of a separate legal proceeding.

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Design Professional Services Agreement 07.19.2022

26. WORK SCHEDULED/TIME OF COMPLETION
City and CONSULTANT agree that time is of the essence in this Agreement. [Note: This section is optional and should be included only when the project is particularly timesensitive.

City and CONSULTANT further agree that CONSULTANT’s failure to perform Services on or at the times set forth in this Agreement will damage and injure City, but the extent of such damage and injury is difficult or speculative to ascertain. Consequently, City and CONSULTANT agree that any failure to perform by CONSULTANT at or within the times set forth herein shall result in liquidated damages of [Insert amount] dollars ($__.00) per day for each and every day such performance is late or delayed. City and CONSULTANT agree that such sum is reasonable and fair. Furthermore, City and CONSULTANT agree that this Agreement is subject to Government Code Section 53069.85 and that each party hereto is familiar with and understands the obligations of said Section of the Government Code.]

27. 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.

28. 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.

29. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of CONSULTANT warrants and represents that they have the authority to execute this Agreement on behalf of the CONSULTANT and have the authority to bind CONSULTANT to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF PACIFIC GROVE CONSULTANT
By: By:

Department Director Consultant
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Design Professional Services Agreement 07.19.2022
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 Payment Schedule
Exhibit C Insurance Requirements
[Exhibit D Request for Proposal]
[Exhibit E Consultant’s Proposal]
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Design Professional Services Agreement 07.19.2022

EXHIBIT A

SCOPE OF SERVICES
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EXHIBIT B

PAYMENT SCHEDULE
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EXHIBIT C

INSURANCE REQUIREMENTS
Without limiting CONSULTANT’s indemnification of City, and prior to commencement of Work, CONSULTANT shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.

General liability insurance. CONSULTANT 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. 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. CONSULTANT 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 Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

Professional liability (errors & omissions) insurance. CONSULTANT shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and CONSULTANT agrees to maintain continuous coverage through a period no less than three (3) years after completion of the Services required by this Agreement.

Note: May need to delete workers’ compensation and employer’s liability insurance requirements for certain sole proprietorships, partnerships, or corporations without employees.

Workers’ compensation insurance. CONSULTANT shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).

CONSULTANT 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.

Umbrella or excess liability insurance. [Optional depending on limits required]. CONSULTANT shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; PGCC 2-15-23

Design Professional Services Agreement 07.19.2022
• Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.

Other provisions or requirements
Proof of insurance. CONSULTANT 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

Duration of coverage. CONSULTANT shall procure and maintain for the duration of the contract 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 CONSULTANT, his agents, representatives, employees or subconsultants.

Primary/noncontributing.Coverage provided by CONSULTANT 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 non-contributory 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.

City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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 CONSULTANT or City will withhold amounts sufficient to pay premium from CONSULTANT 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 VI (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, officials, employees and volunteers or shall specifically allow CONSULTANT or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss.

CONSULTANT hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

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Enforcement of contract provisions (non estoppel). CONSULTANT acknowledges and agrees that any actual or alleged failure on the part of the City to inform CONSULTANT 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 Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

Notice of cancellation. Consultant 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, officials, employees, and 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 Consultant’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. CONSULTANT 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 CONSULTANT, provide the same minimum insurance coverage and endorsements required of CONSULTANT.

CONSULTANT agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section.

CONSULTANT agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review.

City’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONSULTANT ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the CONSULTANT, the City and CONSULTANT may renegotiate CONSULTANT’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.

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Timely notice of claims. CONSULTANT shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from CONSULTANT’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.

Additional insurance. CONSULTANT 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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EXHIBIT D

REQUEST FOR PROPOSAL
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Design Professional Services Agreement 07.19.2022

EXHIBIT E
CONSULTANT’S PROPOSAL
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Maintenance Services Agreement 07.19.2022

CITY OF PACIFIC GROVE

MAINTENANCE SERVICES AGREEMENT
This MAINTENANCE SERVICES AGREEMENT (“Agreement”) is made and effective _______________, by and between the City of Pacific Grove, a municipal corporation (“City”), and ______________________ (“CONTRACTOR”).

City wishes to retain the services of an experienced and qualified CONTRACTOR to provide [Describe services to be provided] (“Services”). CONTRACTOR represents and warrants that it is qualified to perform those Services. In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
Unless terminated in accordance with Section 8 below, the AGREEMENT will continue in full force and effect from the Effective Date through [Insert Date]. Upon mutual written AGREEMENT, the term of this AGREEMENT can be extended annually for an additional one (1) year period, or longer as the parties agree.

2. SCOPE OF SERVICES
CONTRACTOR will provide the Services listed in the Scope of Services attached hereto as Exhibit A. CONTRACTOR warrants that all work and services set forth in the Scope of Services will be performed in a competent, professional and satisfactory manner.

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 engaged in providing similar services as are required of CONTRACTOR hereunder in meeting its obligations under this Agreement.
b. CONTRACTOR shall obtain a valid City Business License and shall maintain said Business License for the term of this Agreement and any extensions. c. CONTRACTOR shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by CONTRACTOR or in any way affect the performance of its Services 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.
d. CONTRACTOR must maintain a valid California Contractor’s License throughout the term of this Contract.

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e. 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 any person or discriminate on the basis of race, religious creed, color, national origin, ancestry, disability, medical condition, genetic information, marital status, sexual preference, 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.
f. CONTRACTOR shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit D attached to and part of this Agreement.
g. CONTRACTOR declares and warrants that no undue influence or pressure is used against or in concert with any officer, employee or agent of 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 City will 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.
[IF RFP ADD: CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL CONTRACTOR is bound by the contents of City’s Request for Proposal on file hereto and incorporated herein as Exhibit E, and the contents of the proposal submitted by CONTRACTOR, available on file at the [insert location ], hereto and incorporated herein as Exhibit E. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in CONTRACTOR’s Proposal.]

4. CITY MANAGEMENT
The City Manager, or designee, 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 on City’s behalf and to execute all necessary documents which enlarge the Scope of Work or change CONTRACTOR’s compensation, subject to Section 6 hereof.

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5. PAYMENT
a. For Services rendered pursuant to this AGREEMENT, CONTRACTOR shall be paid in accordance with the Payment Schedule attached hereto as Exhibit B, provided, however, that in no event will the total amount of money paid the CONTRACTOR, for the Services initially contemplated by this AGREEMENT, exceed the sum of [Insert amount], unless otherwise first approved in writing by the City. b. The City Manager’s contract authority is limited to $39,999.99, which includes all costs. Contracts, including any contract amendments that exceed the total threshold, require City Council approval. Any contracts, including contract amendments that exceed the total threshold, which do not have City Council approval, shall be void. c. 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. If 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.

6. LABOR CODE AND PREVAILING WAGE REQUIREMENTS:
a. CONTRACTOR agrees to comply with the requirements of California Labor Code sections 1810 through 1815. Eight hours of labor constitutes a legal day’s work per Labor Code section 1810. CONTRACTOR will forfeit the statutory penalty to City for each worker employed in the execution of this Agreement by CONTRACTOR or any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Labor Code sections 1810 through 1815. b. Copies of the determination of the Director of the Department of Industrial Relations of the prevailing rate of per diem wages for each craft, classification or type of worker needed to execute this Agreement are available for download from the State website:
http://www.dir.ca.gov/OPRL/dprewagedetermination.htm.
c. CONTRACTOR must post at the work site, or if there is no regular work site then at its principal office, for the duration of the Contract, a copy of the determination by the Director of the Department of Industrial Relations of the specified prevailing rate of per diem wages. (Labor Code § 1773.2.) When applicable, copies of the prevailing rate of per diem wages will be on file at City’s Administrative Services Department and available to CONTRACTOR and any other interested party upon request. d. CONTRACTOR, and any subcontractor engaged by CONTRACTOR, may pay not less than the specified prevailing rate of per diem wages to all workers employed in the execution of the contract. (Labor Code § 1774.) CONTRACTOR is responsible for PGCC 2-15-23

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compliance with Labor Code section 1776 relative to the retention and inspection of payroll records.
e. CONTRACTOR must comply with all provisions of Labor Code section 1775. Under Section 1775, CONTRACTOR will forfeit the statutory penalty to City for each worker employed in the execution of the Agreement by CONTRACTOR or any subcontractor for each calendar day, or portion thereof, in which the worker is paid less than the prevailing rates. CONTRACTOR may also be liable to pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate.

Nothing in this Agreement prevents CONTRACTOR or any subcontractor from employing properly registered apprentices in the execution of the Contract. CONTRACTOR is responsible for compliance with Labor Code section 1777.5 for all apprenticeable occupations. This statute requires that contractors and subcontractors must submit contract award information to the applicable joint apprenticeship committee, must employ apprentices in apprenticeable occupations in a ratio of not less than one hour of apprentice’s work for every five hours of labor performed by a journeyman (unless an exception is granted under § 1777.5), must contribute to the fund or funds in each craft or trade or a like amount to the California Apprenticeship Council, and that contractors and subcontractors must not discriminate among otherwise qualified employees as apprentices solely on the ground of sex, race, religion, creed, national origin, ancestry or color. Only apprentices defined in Labor Code section 3077, who are in training under apprenticeship standards and who have written apprentice contracts, may be employed on public works in apprenticeable occupations.
f. CONTRACTOR has reviewed and agrees to comply with any applicable provisions for any public work subject to Department of Industrial Relations (DIR) Monitoring and Enforcement of prevailing wages, including the registration requirements of Labor Code Section 1771.1(a). City hereby notifies CONTRACTOR that CONTRACTOR is responsible for submitting certified payroll records directly to the State Compliance Monitoring Unit (CMU). For further information concerning compliance monitoring please visit the website location at: http://www.dir.ca.gov/dlse/cmu/cmu.html. g. CONTRACTOR must comply with Labor Code section 1771.1(a), which provides that CONTRACTOR may award any contracts and subcontracts for work that qualifies as a “public work” only to subcontractors which are at that time registered with the DIR and qualified to perform public work pursuant to Labor Code section 1725.5. CONTRACTOR must obtain proof of such registration from all such subcontractors.” h. If federal funds are used to pay for the Work, CONTRACTOR and any subcontractor agree to comply, as applicable, with the labor and reporting requirements of the Davis-Bacon Act (40 USC § 276a-7), the Copeland Act (40 USC § 276c and 18 USC §874), and the Contract Work Hours and Safety Standards Act (40 USC § 327 and following).

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7. 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.

8. 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 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 Services performed up to the time of termination, provided that the Services performed are of value to the City. Upon termination of the Agreement pursuant to this Section, CONTRACTOR shall submit an invoice to City pursuant to Section 6.c.

9. DEFAULT OF CONTRACTOR/FORCE MAJEURE
a. 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 Services performed after the date of default and can terminate this Agreement immediately by written notice to the CONTRACTOR. If such failure by the CONTRACTOR to make progress in the performance of Services hereunder arises out causes beyond the CONTRACTOR’s control, and without fault or negligence of the 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. The 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 or fails to present City with a written plan for the cure of the default, 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.

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10. 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 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 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. If there is a substantial billing deviation adverse to City, then the cost of an audit shall be borne by CONSULTANT. 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 Services 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.

11. RECORD AUDIT
In accordance with Government Code, Section 8546.7, for expenditures of 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.

12. INDEMNIFICATION
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 PGCC 2-15-23

Maintenance Services Agreement 07.19.2022
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.

No City officer, employee or agent shall be personally liable to CONTRACTOR, in the event of any default or breach by City or for any amount that may become due to CONTRACTOR.

13. INSURANCE
Without limiting CONTRACTOR’s indemnification of City, and prior to commencement of work, CONTRACTOR shall obtain, provide, and maintain at its own expense during the term of this AGREEMENT, policies of insurance of the type and amounts described in Exhibit C and in a form that is satisfactory to City.

14. INDEPENDENT CONTRACTOR
a. 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 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.

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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 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.
c. Any and all employees or sub-contractors of CONTRACTOR under this Agreement, while engaged in the performance of any work or services 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 or services provided for or rendered herein shall not be City’s obligation.

15. SUBCONTRACTORS
Before CONTRACTOR retains or hires a subcontractor to provide any work, labor, or services relative to this AGREEMENT, CONTRACTOR must:
a. Present the name and identifying information of the subcontractor that will provide any work, labor, or services to City.
b. Present to the City the form of subcontract that will be used with the subcontractor for City’s approval, which approval will not be unreasonably withheld. Such subcontract AGREEMENT must include an indemnity agreement that is generally in accord with the indemnity obligations contained in Section 11 of this Agreement and must specifically name the City as an indemnified party; and c. Secure from the subcontractor evidence of insurance coverage that meets with this Agreement including naming the City as an additional insured as required by this Agreement, unless such requirement is waived in writing by the City.

16. NO BENEFIT TO ARISE TO CITY OFFICERS AND EMPLOYEES
No City officer, employee of City, or their designees or agents, and no public officer who exercises authority over or responsibilities with respect to the Services provided under the Agreement 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 Services performed under this Agreement.

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Maintenance Services Agreement 07.19.2022

17. 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, and shall comply with the City’s conflict of interest code.

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 performing Services under this Agreement to complete and file a “Statement of Economic Interest” with City disclosing CONTRACTOR’s and/or such other person’s financial interests.

18. 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.

19. 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 subcontractors, 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 Services 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.

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20. NOTICES
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, certified mail, postage prepaid, return receipt requested, 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: (City Employee/Department)
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
To CONTRACTOR: _____________________________
_____________________________
_____________________________
_____________________________
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.

21. 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.

22. ASSIGNMENT
CONTRACTOR shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of 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.

23. 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 aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts.

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Maintenance Services Agreement 07.19.2022

24. DISPUTE RESOLUTION; ATTORNEY’S FEES
CONTRACTOR shall continue to perform under this Agreement during any dispute.

CONTRACTOR and City hereby agree to make good faith efforts to resolve disputes as quickly as possible. In the event any dispute arising from or related to this Agreement results in litigation or arbitration, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees, expenses for expert witnesses (whether or not called to testify), expenses for accountants or appraisers (whether or not called to testify), and other related expenses. Recovery of these expenses shall be as additional costs awarded to the prevailing party, and shall not require initiation of a separate legal proceeding.

25. 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.

26. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to their obligations 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.

27. AMENDMENT
a. Any modification or amendment to this Agreement must be in writing. b. 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.

28. 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
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29. 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.

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 Payment Schedule
Exhibit C Insurance Requirements
[Exhibit D Request for Proposal]
[Exhibit E CONTRACTOR’s Proposal]
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Exhibit A
Scope of Work/Services
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Exhibit B
Payment Schedule
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Exhibit C
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. 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, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

Umbrella or excess liability insurance. [Optional depending on limits required] CONTRACTOR shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.

Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).

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.

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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 contract. 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 contract 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 subconsultants.

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 non-contributory 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.

Agency’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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.

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Enforcement of contract 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 AGENCY 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.

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, and agents 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 sub-consultants, 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.

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Agency’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONTRACTOR ninety (90) days 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.

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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VERIFICATION OF CALIFORNIA CONTRACTOR’S LICENSE
I certify, under penalty of perjury, that I have a valid California Contractor’s license issued pursuant to Business and Professions Code section 7000 and following, and was so licensed at the time that the bid was awarded:

California Contractor’s License:

License Number Class Expiration Date

CONTRACTOR (PRINT OR TYPE)
Date Signature
(Public Contract Code § 6100)
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CERTIFICATE REGARDING WORKERS’ COMPENSATION
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.

Name (print or type)
Date Signature
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CERTIFICATE REGARDING DEPARTMENT OF INDUSTRIAL

RELATIONS CONTRACTOR REGISTRATION
I certify, under penalty of perjury, that Contractor is registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.

Contractor’s Department of Industrial Relations registration number is _____________________.

Name & Title (print or type)
Date Signature
(Labor Code section 1725.5)
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LIST OF SUBCONTRACTORS
WORK IDENTIFICATION:

NAME AND ADDRESS OF BIDDER:

Name/Address/Phone No./State
License Number of
Subcontractor/City of Pacific Grove
Business License Number
Department of
Industrial Relations
Registration Number* Items of Work
Portion of Work
(% of Contract Price)
% of Total Contract
Price by Subcontract
% of Total Contract
Price by Contractor
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Professional Services Agreement 07.19.2022

CITY OF PACIFIC GROVE

PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICE AGREEMENT (“PSA”) FOR NON-CONSTRUCTION PROJECTS (“Agreement”), is made and effective as of [Insert date], between the City of Pacific Grove (“City”), a municipal corporation and [Insert consultant], [a sole proprietorship, partnership, limited liability partnership, corporation] (“CONSULTANT”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
This Agreement shall commence on [Insert date] and shall remain and continue in effect until the tasks described herein are completed, but in no event later than [Insert date], unless sooner terminated pursuant to the provisions of this Agreement.

2. SCOPE OF WORK
CONSULTANT shall perform the tasks and services (“Services”) described and set forth in Exhibit A, Scope of Services, attached hereto and incorporated herein as though set forth in full.

CONSULTANT shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A. To the extent that Exhibit A is a proposal from CONSULTANT, such proposal is incorporated only for the description of the Scope of Services and no other terms and conditions from any such proposal shall apply to this Agreement unless specifically agreed to in writing.

3. PERFORMANCE
CONSULTANT shall at all times faithfully, competently and to the best of their ability, experience, and talent, perform all Services described herein. CONSULTANT shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of CONSULTANT hereunder in meeting their obligations under this Agreement.
[IF RFP ADD: CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL CONSULTANT is bound by the contents of City’s Request for Proposal on file hereto and incorporated herein as Exhibit D, and the contents of the proposal submitted by CONSULTANT, available on file at __________________________, hereto and incorporated herein as Exhibit E. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in CONSULTANT’s proposals.]

4. CITY MANAGEMENT
The City Manager, or their designee, shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by CONSULTANT, but not including the authority to enlarge the Scope of Work or change the PGCC 2-15-23

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compensation due to CONSULTANT. The City Manager shall be authorized to act on City’s behalf and to execute all necessary documents that enlarge the Scope of Work or change CONSULTANT’s compensation, subject to Section 6 hereof.

5. PAYMENT
a. The City agrees to pay CONSULTANT monthly, in accordance with the payment rates and terms and the Payment Schedule as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. This amount shall not exceed [Insert amount] dollars ($__.00) 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 contract amendments that exceed the total threshold, require City Council approval. Any contracts, including contract amendments that exceed the total threshold, which do not have City Council approval, shall be void. c. CONSULTANT shall not be compensated for any Services rendered in connection with its performance of this Agreement that are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Manager or the City Council. CONSULTANT shall be compensated for any additional services in the amounts and in the manner as agreed to by City Manager and CONSULTANT at the time City’s written authorization is given to CONSULTANT for the performance of said services. d. CONSULTANT 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. If the City disputes any of CONSULTANT’s fees it shall give written notice to CONSULTANT within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. Any final payment under this Agreement shall be made within forty-five (45) days of receipt of an invoice therefore.

6. INSPECTION
City shall at all times have the right to inspect the work and materials. CONSULTANT 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 CONSULTANT from any obligation to perform said work strictly in accordance with the specifications or any modifications thereof and in compliance with the law.

7. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE a. The City may at any time, for any reason, without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon CONSULTANT at least thirty (30) days prior written notice. Upon receipt of said notice, CONSULTANT shall immediately cease all Services under this Agreement, unless the notice provides otherwise. If the City PGCC 2-15-23

Professional Services Agreement 07.19.2022
suspends or terminates a portion of this Agreementsuch 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, the City shall pay to CONSULTANT the actual value of the Services performed up to the time of termination, provided that the Services performed are of value to the City. Upon termination of the Agreement pursuant to this Section, CONSULTANT will submit an invoice to the City pursuant to Section 6.

8. DEFAULT OF CONSULTANT
a. CONSULTANT’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that CONSULTANT is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating CONSULTANT for any Services performed after the date of default and can terminate this Agreement immediately by written notice to the CONSULTANT. If such failure by the CONSULTANT to make progress in the performance of Services hereunder arises out causes beyond the CONSULTANT’s control, and without fault or negligence of the CONSULTANT, it shall not be considered a default.
b. If the City Manager or designee determines CONSULTANT is in default in the performance of any of the terms or conditions of this Agreement, they shall cause to be served upon CONSULTANT a written notice of the default. The CONSULTANT 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 CONSULTANT fails to cure its default within such period of time or fails to present City with a written plan for the cure of the default, 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.

9. OWNERSHIP OF DOCUMENTS
a. CONSULTANT 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. CONSULTANT 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 identified and readily accessible. CONSULTANT 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; shall permit City to make transcripts or copies therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. If there is a substantial billing deviation adverse to City, then the cost of an audit shall be borne by CONSULTANT. Such records, together with supporting documents, shall be maintained for a period of five (5) years after receipt of final payment.

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Professional Services Agreement 07.19.2022
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 Services 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 CONSULTANT. With respect to computer files, CONSULTANT shall make available to City, at CONSULTANT’s office and upon reasonable written request by City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, copying and/or printing computer files.

CONSULTANT hereby grants to City all right, title, and interest, including any copyright, in and to the documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared by CONSULTANT in the course of providing the Services under this Agreement.

10. RECORD AUDIT
In accordance with Government Code, Section 8546.7, for expenditures of greater than $10,000, records of both City and CONSULTANT shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.

11. INDEMNIFICATION AND DEFENSE
Indemnity
To the fullest extent permitted by law, CONSULTANT shall indemnify and hold harmless City and any and all of its officers, employees and agents (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs and expenses, including legal counsel’s fees and costs, caused in whole or in part by the negligent or wrongful act, error or omission of CONSULTANT, its officers, agents, employees or subconsultants (or any City or individual that CONSULTANT shall bear the legal liability thereof) in the performance of Services under this Agreement. CONSULTANT’s duty to indemnify and hold harmless City shall not extend to the City’s sole or active negligence.

Duty to defend
In the event City, its officers, employees, agents and/or volunteers are made a party to any action, lawsuit, or other adversarial proceeding arising from the performance of the Services encompassed by this Agreement, and upon demand by City, CONSULTANT shall defend City at CONSULTANT’s cost or at City’s option, to reimburse City for its costs of defense, including reasonable attorney’s fees and costs incurred in the defense of such matters to the extent the matters arise from, relate to or are caused by CONSULTANT’s negligent acts, errors or omissions. Payment by City is not a condition precedent to enforcement of this indemnity. In the event of any dispute between CONSULTANT and City, as to whether liability arises from the sole or active negligence of the City or its officers, employees, or agents, CONSULTANT will be obligated to pay for City’s defense until such time as a final judgment has been entered adjudicating the City as solely or actively negligent. CONSULTANT will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney’s fees, expert fees and costs of litigation.

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Professional Services Agreement 07.19.2022

12. INSURANCE
CONSULTANT shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit C attached to and part of this Agreement.

13. INDEPENDENT CONSULTANT
a. CONSULTANT is and shall at all times remain as to City a wholly independent consultant and/or independent contractor. The personnel performing the Services under this Agreement on behalf of CONSULTANT shall at all times be under CONSULTANT’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of CONSULTANT or any of CONSULTANT’s officers, employees, or agents, except as set forth in this Agreement.

CONSULTANT 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.

CONSULTANT 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 CONSULTANT in connection with the performance of this Agreement. Except for the fees paid to CONSULTANT as provided in the Agreement, City shall not pay salaries, wages, or other compensation to CONSULTANT for performing Services hereunder for City. City shall not be liable for compensation or indemnification to CONSULTANT for injury or sickness arising out of performing Services hereunder.

14. LEGAL RESPONSIBILITIES
CONSULTANT shall keep itself informed of State and Federal laws and regulations that in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. CONSULTANT 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 the CONSULTANT to comply with this Section.

15. UNDUE INFLUENCE
CONSULTANT declares and warrants that no undue influence or pressure was used against or in concert with any officer, employee or agent 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, employee or agent of City has or will receive compensation, directly or indirectly, from CONSULTANT, or from any officer, employee or agent of CONSULTANT, in connection with the award of this Agreement or any Services to be performed 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.

16. NO BENEFIT TO ARISE TO CITY OFFICERS AND EMPLOYEES
No officer, employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Services performed under the Agreement PGCC 2-15-23

Professional Services Agreement 07.19.2022
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 Services performed under this Agreement.

17. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
a. All information gained by CONSULTANT in performance of this Agreement shall be considered confidential and shall not be released by CONSULTANT without City’s prior written authorization. CONSULTANT, its officers, employees, agents, or subconsultants, 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 CONSULTANT gives City notice of such court order or subpoena.
b. CONSULTANT shall promptly notify CITY should CONSULTANT, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request (“Discovery”), court order, or subpoena from any person or party regarding this Agreement and the work performed there under or with respect to any project or property located within the City, unless City is a party to any lawsuit, arbitration, or administrative proceeding connected to such Discovery, or unless CONSULTANT is prohibited by law from informing City of such Discovery.

City retains the right, but has no obligation, to represent CONSULTANT and/or be present at any deposition, hearing, or similar proceeding as allowed by law. Unless City is a party to the lawsuit, arbitration, or administrative proceeding and is adverse to CONSULTANT in such proceeding, CONSULTANT agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by CONSULTANT. 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. [Note: The following paragraph is only to be used when the City will be taking in a fee or deposit from an applicant and uses those funds to retain the CONSULTANT to prepare an EIR, Specific Plan, or some other specific document or where the City is funding a similar development-type study.
c. [CONSULTANT covenants that neither CONSULTANT nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their Services hereunder. CONSULTANT 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 sub-consultant. CONSULTANT further covenants that CONSULTANT 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 PGCC 2-15-23

Professional Services Agreement 07.19.2022
agrees that CONSULTANT and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/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 Services under this Agreement.] d. 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 and file a “Statement of Economic Interest” with CITY disclosing CONTRACTOR’s and/or such other person’s financial interests.

18. DISCRIMINATION
CONSULTANT agrees that in the performance of this Agreement, neither CONSULTANT nor any person acting on CONSULTANT’s behalf shall 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.

19. NOTICES
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: [Insert City Employee]
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
Attention: City Clerk
To CONSULTANT: _________________________
_________________________
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 service by email.

20. 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.

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Professional Services Agreement 07.19.2022

21. ASSIGNMENT
CONSULTANT shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of CITY. Because of the personal nature of the Services to be rendered pursuant to this Agreement, only CONSULTANT shall perform the Services described in this Agreement. CONSULTANT may use assistants, under their direct supervision, to perform some of the Services under this Agreement. [If specific to Consultant, add: CONSULTANT shall provide City fourteen (14) days’ notice prior to the departure of [Insert name of particular person with expertise] from CONSULTANT’s employ. Should [insert name] leave CONSULTANT’s employ, City shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this Agreement, CONSULTANT’s sole compensation shall be payment for actual Services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between City and the CONSULTANT. Before retaining or contracting with any sub-consultant for any Services under this Agreement, CONSULTANT shall provide City with the identity of the proposed sub-consultant, a copy of the proposed written contract between CONSULTANT and such sub-consultant, which shall include and indemnity provision similar to the one provided herein and identifying City as an indemnified party, or an incorporation of the indemnity provision provided herein, and proof that such proposed sub-consultant carries insurance at least equal to that required by this Agreement or obtain a written waiver from City for such insurance.]

22. LICENSES
At all times during the term of this Agreement, CONSULTANT shall have in full force and effect, all licenses required of it by law for the performance of the Services described in this Agreement. CONSULTANT shall obtain a valid City Business License and shall maintain said Business License for the term of this Agreement and any extensions.

23. GOVERNING LAW
City and CONSULTANT 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 federal district court with jurisdiction over City.

CONSULTANT agrees not to commence or prosecute any dispute arising out of or in connection with this Agreement other than in the aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts.

24. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to their obligations described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written and pertaining to the subject of this Agreement or with respect to the terms and conditions of this Agreement, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this PGCC 2-15-23

Professional Services Agreement 07.19.2022
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. No amendment shall be valid unless in writing, executed by both parties.

25. DISPUTE RESOLUTION; ATTORNEY’S FEES
CONSULTANT shall continue to perform under this Agreement during any dispute.

CONSULTANT and City hereby agree to make good faith efforts to resolve disputes as quickly as possible. In the event any dispute arising from or related to this Agreement results in litigation or arbitration, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees, expenses for expert witnesses (whether or not called to testify), expenses for accountants or appraisers (whether or not called to testify), and other related expenses. Recovery of these expenses shall be as additional costs awarded to the prevailing party, and shall not require initiation of a separate legal proceeding.

26. WORK SCHEDULED/TIME OF COMPLETION
City and CONSULTANT agree that time is of the essence in this Agreement.

27. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of CONSULTANT warrants and represents that they have the authority to execute this Agreement on behalf of the CONSULTANT and have the authority to bind CONSULTANT to the performance of its obligations hereunder.

28. 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.

29. 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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Professional Services Agreement 07.19.2022
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF PACIFIC GROVE CONSULTANT
By: By:

Department Director Consultant
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 Payment Schedule
Exhibit C Insurance Requirements
[Exhibit D Request for Proposal]
[Exhibit E Consultant’s Proposal]
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Professional Services Agreement 07.19.2022

EXHIBIT A

SCOPE OF SERVICES
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Professional Services Agreement 07.19.2022

EXHIBIT B

PAYMENT SCHEDULE
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Professional Services Agreement 07.19.2022

EXHIBIT C

INSURANCE REQUIREMENTS
Without limiting CONSULTANT’s indemnification of City, and prior to commencement of Work, CONSULTANT shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City.

General liability insurance. CONSULTANT 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. 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. CONSULTANT 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 Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

Professional liability (errors & omissions) insurance. CONSULTANT shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and CONSULTANT agrees to maintain continuous coverage through a period no less than three (3) years after completion of the Services required by this Agreement.

Note: May need to delete workers’ compensation and employer’s liability insurance requirements for certain sole proprietorships, partnerships, or corporations without employees.

Workers’ compensation insurance. CONSULTANT shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).

CONSULTANT 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.

Umbrella or excess liability insurance. [Optional depending on limits required]. CONSULTANT shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; PGCC 2-15-23

Professional Services Agreement 07.19.2022
• Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.

Other provisions or requirements
Proof of insurance. CONSULTANT 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

Duration of coverage. CONSULTANT shall procure and maintain for the duration of the contract 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 CONSULTANT, his agents, representatives, employees or subconsultants.

Primary/noncontributing.Coverage provided by CONSULTANT 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 non-contributory 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.

City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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 CONSULTANT or City will withhold amounts sufficient to pay premium from CONSULTANT 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 VI (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 CONSULTANT or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss.

CONSULTANT hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

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Professional Services Agreement 07.19.2022
Enforcement of contract provisions (non estoppel). CONSULTANT acknowledges and agrees that any actual or alleged failure on the part of the City to inform CONSULTANT 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 Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

Notice of cancellation. Consultant 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 Consultant’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. CONSULTANT 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 CONSULTANT, provide the same minimum insurance coverage and endorsements required of CONSULTANT.

CONSULTANT agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section.

CONSULTANT agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review.

City’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONSULTANT ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the CONSULTANT, the City and CONSULTANT may renegotiate CONSULTANT’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.

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Professional Services Agreement 07.19.2022
Timely notice of claims. CONSULTANT shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from CONSULTANT’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.

Additional insurance. CONSULTANT 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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Professional Services Agreement 07.19.2022

EXHIBIT D

REQUEST FOR PROPOSAL
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Professional Services Agreement 07.19.2022

EXHIBIT E
CONSULTANT’S PROPOSAL
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Vendor Services Agreement 07.19.2022

CITY OF PACIFIC GROVE

VENDOR SERVICES AGREEMENT
This VENDOR SERVICES AGREEMENT (“Agreement”) is made and effective _______________, by and between the City of Pacific Grove, a municipal corporation (“City”), and ______________________ (“VENDOR”).

City wishes to retain the services of an experienced and qualified VENDOR to provide [Describe services to be provided] (“Services”). VENDOR represents and warrants that it is qualified to perform those Services. In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
Unless terminated in accordance with Section 8 below, the AGREEMENT will continue in full force and effect from the Effective Date through [Insert Date]. Upon mutual written AGREEMENT, the term of this AGREEMENT can be extended annually for an additional one (1) year period, or longer as the parties agree.

2. SCOPE OF SERVICES
VENDOR will provide the Services listed in the Scope of Services attached hereto as Exhibit A. VENDOR warrants that all work and services set forth in the Scope of Services will be performed in a competent, professional and satisfactory manner.

3. PERFORMANCE
a. VENDOR shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all tasks described herein. VENDOR shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of VENDOR hereunder in meeting its obligations under this Agreement.
b. VENDOR shall obtain a valid City Business License and shall maintain said Business License for the term of this Agreement and any extensions. c. VENDOR shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by VENDOR or in any way affect the performance of its Services pursuant to this Agreement. VENDOR 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 VENDOR to comply with this Section.

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Vendor Services Agreement 07.19.2022
d. VENDOR agrees that in the performance of this Agreement or any sub-agreement hereunder, neither VENDOR nor any person acting on VENDOR’s behalf shall refuse to employ or refuse to continue in any employment any person or discriminate on the basis of race, religious creed, color, national origin, ancestry, disability, medical condition, genetic information, marital status, sexual preference, sex, gender identity, gender expression, military or veteran status or age. Harassment in the workplace is not permitted in any form. VENDOR further agrees to comply with all laws with respect to employment when performing this Agreement. e. VENDOR shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit C attached to and part of this Agreement.
f. VENDOR declares and warrants that no undue influence or pressure is used against or in concert with any officer, employee or agent of 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 City will receive compensation, directly or indirectly, from VENDOR, or from any officer, employee or agent of VENDOR, 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.
[IF RFP ADD: CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL VENDOR is bound by the contents of City’s Request for Proposal on file hereto and incorporated herein as Exhibit D, and the contents of the proposal submitted by VENDOR, available on file at the [insert location ], hereto and incorporated herein as Exhibit E. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in VENDOR’s Proposal.]

4. CITY MANAGEMENT
The City Manager, or designee, shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by VENDOR, but not including the authority to enlarge the Scope of Work or change the compensation due to VENDOR. The City Manager shall be authorized to act on City’s behalf and to execute all necessary documents which enlarge the Scope of Work or change VENDOR’s compensation, subject to Section 6 hereof.

5. PAYMENT
a. For Services rendered pursuant to this AGREEMENT, VENDOR shall be paid in accordance with the Payment Schedule attached hereto as Exhibit B, provided, however, that in no event will the total amount of money paid the VENDOR, for the PGCC 2-15-23

Vendor Services Agreement 07.19.2022
Services initially contemplated by this AGREEMENT, exceed the sum of [Insert amount], unless otherwise first approved in writing by the City. b. The City Manager’s contract authority is limited to $39,999.99, which includes all costs. Contracts, including any contract amendments that exceed the total threshold, require City Council approval. Any contracts, including contract amendments that exceed the total threshold, which do not have City Council approval, shall be void. c. VENDOR 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. If City disputes any of VENDOR’s fees, it shall give written notice to VENDOR within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice.

6. INSPECTION
City shall at all times have the right to inspect the work and materials. VENDOR 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 VENDOR from any obligation to perform said work strictly in accordance with the specifications or any modifications thereof and in compliance with the law.

7. 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 VENDOR at least thirty (30) days prior written notice. Upon receipt of said notice, VENDOR shall immediately cease all work under this Agreement, unless the notice provides otherwise. If 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 VENDOR the actual value of the Services performed up to the time of termination, provided that the Services performed are of value to the City. Upon termination of the Agreement pursuant to this Section, VENDOR shall submit an invoice to City pursuant to Section 6.c.

8. DEFAULT OF VENDOR/FORCE MAJEURE
a. VENDOR’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that VENDOR is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating VENDOR for any Services performed after the date of default and can terminate this Agreement immediately by written notice to the VENDOR. If such failure by the VENDOR to make progress in the performance of Services hereunder arises out causes beyond the PGCC 2-15-23

Vendor Services Agreement 07.19.2022
VENDOR’s control, and without fault or negligence of the VENDOR, it shall not be considered a default.
b. If the City Manager or designee determines VENDOR is in default in the performance of any of the terms or conditions of this Agreement, they shall cause to be served upon VENDOR a written notice of the default. The VENDOR 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 VENDOR fails to cure its default within such period of time or fails to present City with a written plan for the cure of the default, 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.

9. OWNERSHIP OF DOCUMENTS
a. VENDOR 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. VENDOR 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 identified and readily accessible. VENDOR 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 VENDOR’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. If there is a substantial billing deviation adverse to City, then the cost of an audit shall be borne by CONSULTANT. 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 Services 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 VENDOR. With respect to computer files, VENDOR 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.

10. RECORD AUDIT
In accordance with Government Code, Section 8546.7, for expenditures of greater than $10,000, records of both City and VENDOR shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.

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11. INDEMNIFICATION
VENDOR 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 VENDOR’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 VENDOR, or should City otherwise find VENDOR’s legal counsel unacceptable, then VENDOR 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 VENDOR 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 VENDOR’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.

VENDOR 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, VENDOR 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 VENDOR will be for that entire portion or percentage of liability not attributable to the active negligence of City.

No City officer, employee or agent shall be personally liable to VENDOR, in the event of any default or breach by City or for any amount that may become due to VENDOR.

12. INSURANCE
Without limiting VENDOR’s indemnification of City, and prior to commencement of work, VENDOR shall obtain, provide, and maintain at its own expense during the term of this AGREEMENT, policies of insurance of the type and amounts described in Exhibit C and in a form that is satisfactory to City.

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13. INDEPENDENT CONTRACTOR
a. VENDOR 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 VENDOR shall at all times be under VENDOR’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of VENDOR or any of VENDOR’s officers, employees, or agents, except as set forth in this Agreement. VENDOR 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. VENDOR 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 VENDOR in connection with the performance of this Agreement. Except for the fees paid to VENDOR as provided in the Agreement, City shall not pay salaries, wages, or other compensation to VENDOR for performing services hereunder for City. City shall not be liable for compensation or indemnification to VENDOR for injury or sickness arising out of performing services hereunder.
c. Any and all employees or sub-contractors of VENDOR under this Agreement, while engaged in the performance of any work or services required by VENDOR under this Agreement, shall be considered employees or sub-contractors of VENDOR 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 VENDOR’s employees or sub-contractors, while so engaged in any of the work or services provided for or rendered herein shall not be City’s obligation.

14. SUBCONTRACTORS
Before Vendor retains or hires a subcontractor to provide any work, labor, or services relative to this AGREEMENT, VENDOR must:
a. Present the name and identifying information of the subcontractor that will provide any work, labor, or services to City.
b. Present to the City the form of subcontract that will be used with the subcontractor for City’s approval, which approval will not be unreasonably withheld. Such subcontract AGREEMENT must include an indemnity agreement that is generally in accord with the indemnity obligations contained in Section 11 of this Agreement and must specifically name the City as an indemnified party; and c. Secure from the subcontractor evidence of insurance coverage that meets with this Agreement including naming the City as an additional insured as required by this Agreement, unless such requirement is waived in writing by the City.

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15. NO BENEFIT TO ARISE TO CITY OFFICERS AND EMPLOYEES
No City officer, employee of City, or their designees or agents, and no public officer who exercises authority over or responsibilities with respect to the Services provided under the Agreement 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 Services performed under this Agreement.

16. CONFLICT OF INTEREST
VENDOR shall at all times avoid conflicts of interest, or the appearance of conflicts of interest, in the performance of this Agreement, and shall comply with the City’s conflict of interest code.

If City determines VENDOR comes within the definition of Contractor under the Political Reform Act (Government Code §87100 et seq.), VENDOR shall complete and file and shall require any other person performing Services under this Agreement to complete and file a “Statement of Economic Interest” with City disclosing VENDOR’s and/or such other person’s financial interests.

17. 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.

18. CONFIDENTIAL INFORMATION/RELEASE OF INFORMATION
a. All information gained by VENDOR in performance of this Agreement shall be considered confidential and shall not be released by VENDOR without City’s prior written authorization. VENDOR, 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 VENDOR gives City notice of such court order or subpoena. b. VENDOR shall promptly notify City should VENDOR, 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 Services performed thereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to PGCC 2-15-23

Vendor Services Agreement 07.19.2022
represent VENDOR and/or be present at any deposition, hearing, or similar proceeding. VENDOR agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by VENDOR.

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.

19. NOTICES
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, certified mail, postage prepaid, return receipt requested, 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: (City Employee/Department)
City of Pacific Grove
300 Forest Avenue
Pacific Grove, CA 93950
To Vendor: _____________________________
_____________________________
_____________________________
_____________________________
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.

20. 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.

21. ASSIGNMENT
VENDOR shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of 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.

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22. GOVERNING LAW
City and VENDOR 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. VENDOR agrees not to commence or prosecute any dispute arising out of or in connection with this Agreement other than in the aforementioned courts and irrevocably consents to the exclusive personal jurisdiction and venue of the aforementioned courts.

23. DISPUTE RESOLUTION; ATTORNEY’S FEES
VENDOR shall continue to perform under this Agreement during any dispute.

VENDOR and City hereby agree to make good faith efforts to resolve disputes as quickly as possible. In the event any dispute arising from or related to this Agreement results in litigation or arbitration, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees, expenses for expert witnesses (whether or not called to testify), expenses for accountants or appraisers (whether or not called to testify), and other related expenses. Recovery of these expenses shall be as additional costs awarded to the prevailing party, and shall not require initiation of a separate legal proceeding.

24. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of VENDOR warrants and represents that they have the authority to execute this Agreement on behalf of the VENDOR and the authority to bind VENDOR to the performance of its obligations hereunder.

25. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to their obligations 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.

26. AMENDMENT
a. Any modification or amendment to this Agreement must be in writing. b. Neither City nor VENDOR 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.

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27. 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

28. 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.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF PACIFIC GROVE VENDOR
By: By:

Department Director Vendor
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 Payment Schedule
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Exhibit C Insurance Requirements
[Exhibit D Request for Proposal]
[Exhibit E Vendor’s Proposal]
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Exhibit A
Scope of Work/Services
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Exhibit B
Insurance Specifications
General liability insurance. VENDOR 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. 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. VENDOR 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 VENDOR arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

Umbrella or excess liability insurance. [Optional depending on limits required] VENDOR shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.

Workers’ compensation insurance. VENDOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).

VENDOR 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.

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Other provisions or requirements
Proof of insurance. VENDOR 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

Duration of coverage. VENDOR shall procure and maintain for the duration of the contract 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 VENDOR, his agents, representatives, employees or subconsultants.

Primary/noncontributing. Coverage provided by VENDOR 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 non-contributory 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.

Agency’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications 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 VENDOR or City will withhold amounts sufficient to pay premium from VENDOR 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 VENDOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. VENDOR hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

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Enforcement of contract provisions (non estoppel). VENDOR acknowledges and agrees that any actual or alleged failure on the part of the City to inform VENDOR of non-compliance with any requirement imposes no additional obligations on the AGENCY 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 VENDOR maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the VENDOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

Notice of cancellation. VENDOR 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, and agents 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 VENDOR’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. VENDOR agrees to ensure that its sub-consultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by VENDOR, provide the same minimum insurance coverage and endorsements required of VENDOR. VENDOR 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. VENDOR agrees that upon request, all AGREEMENTS with consultants, subcontractors, and others engaged in the project will be submitted to City for review.

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Agency’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the VENDOR ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the VENDOR, the City and VENDOR may renegotiate VENDOR’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. VENDOR shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from VENDOR’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.

Additional insurance. VENDOR 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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Exhibit C
Payment Schedule
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Agenda No. 7 A

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Brian Pierik, City Attorney
MEETING DATE: February 15, 2023
SUBJECT: Scope of Public Comments At Meetings of Legislative Bodies CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Hold second reading and adopt an Ordinance Amending Pacific Grove Municipal Code Section

2.04.050 Regarding Public Comment.

DISCUSSION
Minor revisions were made changing Oral Communications verbiage to General Public Comment. No substantive changes were made between the first and second reads. The City Clerk cause a summary of the ordinance to be published on February 9, 2023.

A. Summary
The general rule regarding the scope of public comment is that members of the public must be afforded the opportunity to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item that is within the subject matter jurisdiction of the legislative body during a regular meeting.

So long as public comment regards the subject matter jurisdiction of the agency – meaning anything that is before, or could properly be before, the Council – and does not create an actual disturbance that impedes the meeting from continuing, the public comment must be allowed. However, the public comment may be excluded if it causes actual disturbances or impedes a public meeting and the presiding member of the legislative body first warns the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal.

B. Government Code Sections
Government Code Section 54954.3 (a) provides, in part, that every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action has been lawfully added after the posting of the agenda.

Government Code Section 54954.3 (b)(1) provides, in part, that the legislative body of a local agency PGCC 2-15-23

may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.

Government Code Section 54954.3 (c) provides, in part, that the legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.

On January 1, 2023, Government Code Section §54957.95 became effective provides that the presiding member of the legislative body conducting a meeting or their designee may remove, or cause the removal of, an individual for disrupting the meeting. Prior to removing an individual, the presiding member or their designee must first warn the individual (unless the behavior constitutes a use of force or a true threat of force) that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. The presiding member or their designee may then cause the removal of the individual if they do not promptly cease their disruptive behavior. “Disrupting” means engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting. .

C. Proposed Ordinance To Amend Pacific Grove Municipal Code Section 2.04.050 Subsection (d) Attachment 1 is Pacific Grove Municipal Code Section 2.04.050 as it currently exists. Attachment 2 shows the proposed track changes to Section 2.04.050. Attachment 3 is the proposed Ordinance to amend Section 2.04.050 (d).

1. Pacific Grove Municipal Code Section 2.04.050 subsection (d) currently reads:
(d) Comments from the Audience. The purpose of the city council agenda item allowing comments from the audience is to provide the public an opportunity to address the council on matters within the subject matter jurisdiction of the city. Comments will be received on items either on or not on the agenda. (Comments on nonconsent agenda items will be heard when the matter is addressed by council.) Whenever possible, letters should be submitted to the council in advance of the meeting. The following rules and regulations govern the comments from the audience item on the agenda:
(1) The subject matter must be a matter of concern or interest to the city and/or within the purview of the council’s authority to determine policy. It shall be the responsibility of the chair to stop the speaker if there is a deviation from such subject matter.
(2) Persons wishing to address the council must come to the podium and will be asked to state their name, address and subject matter of their communication. (Refusal to provide any or all of this information is not grounds to deny speakers’ privileges.) (3) Comments to the council under this section shall be limited to three minutes. (4) Council or staff may briefly respond (but shall not engage in discussion or dialogue) to statements or questions, may ask questions for clarification, and may refer matters raised by statements for further consideration at a later date.
(5) These rules regarding comments from the audience may be suspended at any time by an affirmative vote of no fewer than four councilmembers.

2. Recommendation: It is recommended that Section 2.04.050 subsection (d) be revised to replace PGCC 2-15-23

the current language in subsection (d) with the following:
(d) Public Comment
(1) The City Council may adopt a policy or policies to ensure that the public will be provided an opportunity to address the City Council on matters on the Agenda and on matters not on the Agenda that are within the subject matter jurisdiction of the City Council. (2) The City Council shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the City Council.

This change to the Municipal Code will allow the City Council with the flexibility to make changes as may be necessary by revising existing policies and/or adopting a new policy including the amendment discussed below.

D. Proposed Amendment to Council Policy 000-17
Attachment 4 to this Agenda Report is a copy of the current Council Policy 000-17. Attachment 5 to this Agenda Report contains track changes which are proposed to Council Policy 000-17. Attachment 6 to this Agenda Report is Council Policy 000-17 which includes the proposed changes.

The proposed changes to Council Policy 000-17 are consistent with the requirements of Government Code Sections mentioned above in this Agenda Report including Sections 54954.3; 54957.9 and 54957.95.

Here are the proposed amendments to Section 4 of Council Policy 000-17:

4. Public Comment
These are comments from the public on matters that are on the agenda (including the Consent Agenda) as well as for matters not on the agenda during General Public Comment which are within the subject matter jurisdiction of the City.

Persons who wish to address the Council shall use the microphone and are asked to state their name. It is helpful if speakers also indicate the subject matter of their comments. (Note: Even if a speaker refuses to state his or her name or the subject matter of the comment, the speaker shall not be denied the right to speak.) Accommodations will be made for persons with disabilities.

Public comment shall be limited to three minutes per speaker for each item on the Agenda. For General Public Comment, each speaker shall be limited to three minutes.

In the discretion of the Mayor, the length of the public comment on an item on the Agenda may be reduced to lower than three minutes when appropriate based on the number of speakers for an item and/or the Mayor may limit the total time for public comment on an item on the Agenda.

Communication to the Council under General Public Comment will be received without comment while the public comment period is open. When public comment during General Public Comment is closed, questions from the public may be referred to staff for a brief response.

Pursuant to Government Code Section 54954.3 (c), the City Council shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.

Pursuant to Government Code Section 54957.9, in the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the Mayor PGCC 2-15-23

may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.

After the meeting room has been cleared, the Mayor may readmit an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.

Pursuant to Government Code Section 54957.95, the Mayor may cause the removal of any individual for disrupting the meeting subject to the following rules:
(1) Prior to removing an individual, the Mayor shall warn the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. (2) The Mayor may then cause the removal of the individual if they do not promptly cease their disruptive behavior.
(3) “Disrupting” means engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes, but is not limited to, one of the following: (A) A failure to comply with reasonable and lawful regulations adopted by a legislative body pursuant to Section 54954.3 or any other law. (B) Engaging in behavior that constitutes use of force or a true threat of force. (4) “True threat of force” means a threat that has sufficient indicia of intent and seriousness, that a reasonable observer would perceive it to be an actual threat to use force by the person making the threat.
(5) If there has been a use of force or a true threat of force, there is no obligation for the Mayor to provide a warning to the individual before causing the individual to be removed from the meeting.

OPTIONS
Do not adopt Proposed Ordinance.

FINANCIAL IMPACT:

There is no fiscal impact.

GOAL ALIGNMENT: Not Applicable.

Attachments
1 - PGMC Section 2.04.050 Current Version
2 - PGMC Section 2.04.050 Proposed revisions in track changes 3 - Proposed Ordinance No ___ amending PGMC Section 2.04.050 PGCC 2-15-23

ATTACHMENT 1

2.04.050 Agenda and consideration of unlisted matters.
(a) Order of Agenda. The city manager shall prepare, circulate and post in conformity with the provisions of the Ralph M. Brown Act and council policy, not less than 72 hours before any regular and special council meetings, an agenda, which shall list and describe the items to be considered at the meeting.
(b) Emergency Meetings. Agendas for emergency situations as defined by Section 54956.5 of the California Government Code shall comply with noticing prescribed in Section 54956.5. (c) Request. Any councilmember may place items on the agenda by requesting the city manager to do so by 12:00 noon on Wednesday of the week preceding a regular council meeting, and three days in advance of any special meeting, except that special meetings called during any meeting of the council shall have those items on the agenda for which request has been made in open council meeting without further request. The city manager may also place items on the agenda which he or she deems of interest to the council.
(d) Comments from the Audience. The purpose of the city council agenda item allowing comments from the audience is to provide the public an opportunity to address the council on matters within the subject matter jurisdiction of the city. Comments will be received on items either on or not on the agenda. (Comments on nonconsent agenda items will be heard when the matter is addressed by council.) Whenever possible, letters should be submitted to the council in advance of the meeting.

The following rules and regulations govern the comments from the audience item on the agenda:
(1) The subject matter must be a matter of concern or interest to the city and/or within the purview of the council’s authority to determine policy. It shall be the responsibility of the chair to stop the speaker if there is a deviation from such subject matter. (2) Persons wishing to address the council must come to the podium and will be asked to state their name, address and subject matter of their communication. (Refusal to provide any or all of this information is not grounds to deny speakers’ privileges.) (3) Comments to the council under this section shall be limited to three minutes. (4) Council or staff may briefly respond (but shall not engage in discussion or dialogue) to statements or questions, may ask questions for clarification, and may refer matters raised by statements for further consideration at a later date.
(5) These rules regarding comments from the audience may be suspended at any time by an affirmative vote of no fewer than four councilmembers.
(e) Minutes shall be prepared following all council meetings and shall provide a record of when and where a meeting took place, who was present, type of meeting, what was considered, and any action taken and the vote or abstention on that action of each member present for the action pursuant to California Government Code Section 54953(c)(2).

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(f) Reportable actions taken by council in closed session shall be reported when council next convenes in open session in compliance with the Ralph M. Brown Act. [Ord. 21-025 § 2, 2021; Ord. 01-08 § 1, 2001; Ord. 1953 N.S. § 2, 1994; Ord. 1832 N.S. § 2, 1992; Ord. 1812 N.S. § 2, 1991; Ord. 1806 N.S. § 2, 1991; Ord. 1774 N.S. § 2, 1991; Ord. 1556 N.S. § 1, 1986; Ord. 1493 N.S., 1985; Ord. 1338 N.S. § 1, 1983; Ord. 1101 N.S. § 1, 1979; Ord. 1047 N.S. § 1, 1978; Ord. 920 N.S. § 1, 1977; Ord. 847 N.S. § 1, 1975; Ord. 541 N.S., 1966].

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ATTACHMENT 2

2.04.050 Agenda and consideration of unlisted matters.
(a) Order of Agenda. The city manager shall prepare, circulate and post in conformity with the provisions of the Ralph M. Brown Act and council policy, not less than 72 hours before any regular and special council meetings, an agenda, which shall list and describe the items to be considered at the meeting.
(b) Emergency Meetings. Agendas for emergency situations as defined by Section 54956.5 of the California Government Code shall comply with noticing prescribed in Section 54956.5. (c) Request. Any councilmember may place items on the agenda by requesting the city manager to do so by 12:00 noon on Wednesday of the week preceding a regular council meeting, and three days in advance of any special meeting, except that special meetings called during any meeting of the council shall have those items on the agenda for which request has been made in open council meeting without further request. The city manager may also place items on the agenda which he or she deems of interest to the council.
(d) Public Comment
(1) The City Council may adopt a policy or policies to ensure that the public will be provided an opportunity to address the City Council, and other legislative bodies of the City, on matters on the Agenda and on matters not on the Agenda that are within the subject matter jurisdiction of the legislative body.
(2)` The City Council, and other legislative bodies of the City, shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the City Council and other legislative bodies of the City.
(d) Comments from the Audience. The purpose of the city council agenda item allowing comments from the audience is to provide the public an opportunity to address the council on matters within the subject matter jurisdiction of the city. Comments will be received on items either on or not on the agenda. (Comments on nonconsent agenda items will be heard when the matter is addressed by council.) Whenever possible, letters should be submitted to the council in advance of the meeting.

The following rules and regulations govern the comments from the audience item on the agenda:
(1) The subject matter must be a matter of concern or interest to the city and/or within the purview of the council’s authority to determine policy. It shall be the responsibility of the chair to stop the speaker if there is a deviation from such subject matter. (2) Persons wishing to address the council must come to the podium and will be asked to state their name, address and subject matter of their communication. (Refusal to provide any or all of this information is not grounds to deny speakers’ privileges.) (3) Comments to the council under this section shall be limited to three minutes.

Formatted: Indent: Left: 0"
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(4) Council or staff may briefly respond (but shall not engage in discussion or dialogue) to statements or questions, may ask questions for clarification, and may refer matters raised by statements for further consideration at a later date.
(5) These rules regarding comments from the audience may be suspended at any time by an affirmative vote of no fewer than four councilmembers.
(d) Comments from the Audience. The purpose of the city council agenda item allowing comments from the audience is to provide the public an opportunity to address the council on matters within the subject matter jurisdiction of the city. Comments will be received on items either on or not on the agenda. (Comments on nonconsent agenda items will be heard when the matter is addressed by council.) Whenever possible, letters should be submitted to the council in advance of the meeting.

The following rules and regulations govern the comments from the audience item on the agenda:
(f) Reportable actions taken by council in closed session shall be reported when council next convenes in open session in compliance with the Ralph M. Brown Act. [Ord. 21-025 § 2, 2021; Ord. 01-08 § 1, 2001; Ord. 1953 N.S. § 2, 1994; Ord. 1832 N.S. § 2, 1992; Ord. 1812 N.S. § 2, 1991; Ord. 1806 N.S. § 2, 1991; Ord. 1774 N.S. § 2, 1991; Ord. 1556 N.S. § 1, 1986; Ord. 1493 N.S., 1985; Ord. 1338 N.S. § 1, 1983; Ord. 1101 N.S. § 1, 1979; Ord. 1047 N.S. § 1, 1978; Ord. 920 N.S. § 1, 1977; Ord. 847 N.S. § 1, 1975; Ord. 541 N.S., 1966].

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ATTACHMENT 3
ORDINANCE NO. 20-____

ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PACIFIC GROVE AMENDING SECTION 2.04.050

OF THE PACIFIC GROVE MUNICIPAL CODE

REGARDING PUBLIC COMMENT
FACTS

1. Pacific Grove Municipal Code Section 2.04.050 is entitled “Agenda and consideration of unlisted matters.”

2. Pacific Grove Municipal Code Section 2.04.050 should revised to allow for the Council policies to specify the rules regarding public comment at meetings of the City Council and other legislative bodies.

3. Pacific Grove Municipal Code Section 2.04.050 should also be revised to confirm that the City Council, and other legislative bodies of the City, shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the City Council and other legislative bodies of the City.

4. Enactment of this ordinance action does not constitute a “project” as defined by California Environmental Quality Act (CEQA) because it is an organizational or administrative activity that will not result in direct or indirect physical changes in the environment.

NOW, THEREFORE, THE COUNCIL OF THE CITY OF PACIFIC GROVE DOES ORDAIN AS FOLLOWS:

SECTION 1. Incorporation of Facts. The City Council hereby finds that the foregoing Facts are true and correct and incorporates those Facts here by this reference.

SECTION 2. Revision to Pacific Grove Municipal Code Section 2.04.050 (d).

Pacific Grove Municipal Code Section 2.04.050 (d) is to be replaced in its entirety and shall read as follows:
(d) Public Comment
(1) The City Council may adopt a policy or policies to ensure that the public will be provided an opportunity to address the City Council, and other legislative bodies of the City, on matters on the Agenda and on matters not on the Agenda that are within the subject matter jurisdiction of the legislative body.

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(2) The City Council, and other legislative bodies of the City, shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the City Council and other legislative bodies of the City.

SECTION 3. Severability. If any provision, section, paragraph, sentence, clause or phrase of this ordinance, or any part thereof, or the application thereof to any person or circumstance is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance, or any part thereof, or its application to other persons or circumstances. The City Council hereby declares that it would have passed and adopted each provision, section, paragraph, subparagraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, paragraphs, subparagraphs, sentences, clauses or phrases, or the application thereof to any person or circumstance, be declared invalid or unconstitutional.

SECTION 4. Effective Date. In accord with Article 15 of the City Charter, this ordinance shall become effective on the thirtieth (30th) day following its adoption.

PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF PACIFIC GROVE this ______ day of ______________, ______, by the following vote:

AYES:

NOES:

ABSENT:

APPROVED:
_______________________________
BILL PEAKE, Mayor
ATTEST:

DATED:_______________________
_______________________________
SANDRA KANDELL, City Clerk
APPROVED AS TO FORM:
_______________________________
BRIAN A. PIERIK, City Attorney
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Agenda No. 8 A

CITY OF PACIFIC GROVE
300 Forest Avenue, Pacific Grove, California 93950
TO: Honorable Mayor and Members of the City Council
FROM: Mark Sullivan, Accountant
MEETING DATE: February 15, 2023
SUBJECT: Second Quarter Capital Project Budget Report & Update CEQA: Does not constitute a “Project” per California Environmental Quality Act Guidelines Section 15378

RECOMMENDATION
Receive the report.

DISCUSSION
In Fiscal Year 19/20, the City added capital improvement budgetary updates to the Quarterly Budget Report. In response to recommendations received from the Council Finance Reporting Subcommittee, this information is now presented in a separate report. An additional column reflecting the Adopted Budget has been added based on Council direction.

The attached report provides information on the Adopted and Amended Budgets for each capital improvement project, as well as expenditures. The Amended Budget column references projects that were approved in the last fiscal year but were not completed by June 30, 2022.

As of December 31, 2022, approximately 15.9% of the funds included in the Fiscal Year 22/23 Amended Budget have been expended. The CIP Update report has more details on project phases, the number of projects in each phase, and notable accomplishments achieved during the quarter.

OPTIONS
N/A
FINANCIAL IMPACT:

There is no financial impact associated with receiving this report.

GOAL ALIGNMENT: Not Applicable.

Attachments
22-23 Q2 CIP budget report
22-23 Q2 CIP Update
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Project Fund Name Fund Account Project Name Adopted Budget Amended Budget Expenditures as of 12/31/22 CIP22-04 Museum Improvement 08 6021 Museum Window Replacement & Lead Abatement - $ 39,075 $ 39,233 $ CIP22-06 Museum Improvement 08 6021 Museum Roof Repair - 59,142 162 CIP23-07 Museum Improvement 08 6021 Museum Mezzanine Upgrades 75,000 75,000 - CIP23-08 Museum Improvement 08 6021 Museum Basement Moisture Control 40,000 40,000 - 08 Total $ 115,000 $ 213,217 $ 39,395
CIP22-01 Local Streets and Roads 17 6041 FY 21/22 Street Rehabilitation $ - $ 123,513 $ 236,647 CIP22-02 Local Streets and Roads 17 6041 FY 21/22 Crack & Slurry Seal - 91,144 41,174 CIP23-01 Local Streets and Roads 17 6041 FY 22/23 Street Rehabilitation Project 396,304 396,304 - CIP23-02 Local Streets and Roads 17 6041 FY 22/23 Crack & Slurry Seal 100,000 100,000 -CIP23-04 Local Streets and Roads 17 6041 David Ave Street Rehabilitation 400,000 400,000 8,322 17 Total $ 1,110,961 896,304 $ 286,143 $
CIP23-09 Gas Tax 18 6041 Street Sign Upgrades 30,000 $ 30,000 $ - $ 18 Total $ 30,000 $ 30,000 $ -
CIP23-03 RSTP (TAMC) 20 6041 Cedar, Sunset, & Congress Intersection $ 1,000,000 $ 1,000,000 $ - 20 Total $ 1,000,000 $ 1,000,000 $ -
CIP20-14 Recreation Donation 25 6051 Youth Center Heater $ - $ 8,500 $ - 25 Total $ 8,50 - $ 0 $ -
CIP23-05 Lighthouse 27 6021 Point Pinos Lighthouse Roof Repair $ 60,000 $ 60,000 $ - 27 Total $ 60,000 $ 60,000 $ -
CIP22-09 Yount Income Fund 41 6031 GW Park Management Plan $ - $ 12,929 $ 3,683 41 Total $ 12,929 - $ 3,683 $
CIP21-05 Strong Disbursement 46 6021 ADA Compliance Assessment & Transition Plan $ 26,550 $ 26,550 $ - CIP22-12 Strong Disbursement 46 6021 Del Monte Blvd Storm Drain Improvements 75,524 75,524 - 46 Total $ 102,074 102,074 $ - $
CIP22-01 RMRA SB1 47 6041 FY 21/22 Street Rehabilitation - $ 310,428 $ 250,688 $ CIP23-01 RMRA SB1 47 6041 FY 22/23 Street Rehabilitation Project 354,138 354,138 - 47 Total $ 354,138 $ 664,566 $ 250,688
CIP18-46 Capital Improvement 63 6031 Tide Pool & Point Pinos 37,953 $ 374,198 8,070 $ CIP22-01 Capital Improvement 63 6041 FY 21/22 Street Rehabilitation - 5,690 2,562 CIP22-12 Capital Improvement 63 6054 Del Monte Blvd Storm Drain Improvements 75,000 75,000 134 TRC21-02 (1) Capital Improvement 63 6021 PW Fire and Reconstruction 787,500 990,082 226,665 CIP23-01 Capital Improvement 63 6041 FY 22/23 Street Rehabilitation Project 300,000 300,000 68,979 CIP23-02 Capital Improvement 63 6041 FY 22/23 Crack & Slurry Seal 200,000 200,000 2,252 63 Total $ 1,944,97 1,400,453 $ 0 $ 308,661
Capital Improvement Project Budget Report
Second Quarter - Fiscal Year 22/23

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Project Fund Name Fund Account Project Name Adopted Budget Amended Budget Expenditures as of 12/31/22 Capital Improvement Project Budget Report
Second Quarter - Fiscal Year 22/23
CIP20-13 Sewer 76 6051 Main Sewer Line Imp (Ovb W/ Phase 4 Urban Diversion) $ - $ 130,020 $ 1,760 CIP22-01 Sewer 76 6051 FY 21/22 Street Rehabilitation - 363,758 273,345 CIP22-03 Sewer 76 6051 Phase 9 Sewer Improvements 850,000 1,045,106 38,849 CIP23-01 Sewer 76 6051 FY 22/23 Street Rehabilitation Project 250,000 250,000 9,992 CIP23-06 Sewer 76 6051 Pump Station Replacement 110,000 110,000 - 76 Total $ 1,210,000 $ 1,898,884 $ 323,946
CIP22-11 Golf Course 77 6021 Golf Course Clubhouse HVAC Replacement - $ 25,000 $ 23,608 $ 77 Total $ 25,00 - $ 0 $ 23,608
CIP22-12 ARPA 84 6021 Del Monte Blvd Storm Drain Improvements - $ 132,351 $ - $ CIP22-21 ARPA 84 6031 GW Park Playground & ADA Compliant Playground - 25,000 - CIP22-17 ARPA 84 6031 Caledonia Park Children'S Picnic Area - 6,173 - CIP23-10 ARPA 84 6021 Fire Station Roof Repair 35,000 35,000 - CIP23-11 ARPA 84 6021 Fire Dept. Exhaust System/HVAC & Filtration Cleaning 20,000 20,000 18,178 CIP23-12 ARPA 84 6021 Fire Dept. Bathroom & Shower Remodel 50,000 50,000 - CIP23-13 ARPA 84 6021 Chautauqua Hall Bathroom Repairs 27,000 27,000 - CIP23-14 ARPA 84 6021 Chautauqua Hall Main Roof Repairs 54,000 54,000 163 CIP23-15 ARPA 84 6021 Crespi Pond Bathroom Replacement 50,000 50,000 - CIP23-16 ARPA 84 6041 Wig-Wag Lights At Robert Down School 20,000 20,000 - CIP23-17 ARPA 84 6021 Chautauqua Hall Preservation Plan 25,000 25,000 - CIP23-18 ARPA 84 6021 City Hall Roof Repair 80,000 80,000 - CIP23-19 ARPA 84 6031 Purple Pipe Project 120,000 120,000 10,140 CIP23-20 ARPA 84 6031 Skate Park 158,000 158,000 2,605
CIP23-21 ARPA 84 6041 David Ave Sidewalk 360,000 360,000 4,708 CIP23-22 ARPA 84 6031 Recreation Board's Park Inventory 50,000 50,000 11,285 84 Total $ 1,049,000 $ 1,212,524 $ 47,079
CIP22-13 McIndoo Donation 92 6031 Backstop Replacement Municipal Ball Park $ 17,529 $ 17,529 $ - 92 Total $ 17,529 17,529 $ -
CIP22-10 Koo Estate Donation 93 6031 Lovers' Point Pier Repair - $ 63,429 $ 47,202 $ CIP22-13 Koo Estate Donation 93 6031 Backstop Replacement Municipal Ball Park 7,000 7,000 - 93 Total $ 7,000 $ 70,429 $ 47,202
(1) Amended budget reflects PW estimate of remaining costs and will be adjusted at mid-year Grand Total 6,241,498 $ 8,371,583 $ 1,330,404 $
Percentage Expended 15.9%

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FY22/23 Q2
Capital Improvement Project (CIP) Update
This report provides an update on the City’s 39 CIP projects.

PROJECT PHASE* # OF PROJECTS
Project Development 15
RFP/Bids 6
Contract 1
Construction/Work in Progress 12
Complete 5
*Definitions of project phases can be found below.

Throughout the fiscal year, staff works diligently on executing the CIP. Successfully completing a project generally requires progression through the following project phases. Below is an update on notable project accomplishments for the current quarter.

Notable Q2 Accomplishment
Project Development Phase
The project development phase is the starting phase for each project. It requires determination of vital project details in anticipation of the RFP/bid phase. This often requires engineering, development of specifications and/or construction drawings and plans.

Notable Quarterly Accomplishments for the Project Development Phase:
 Completed engineering of $1.9M of road and sewer rehabilitation associated with the City’s FY22/23 Street Rehab Project; Successfully coordinated with California American Water to allow for water main replacements in coordination with the City’s road projects.  Internal review of an Initial Study/Mitigated Negative Declaration for the Phase 9 Sewer Improvement Project.
 Release of the community skatepark survey (open from 11/18/22-12/23/22) and survey analysis. Survey results, and immediate next steps, are available on the project. website:
www.cityofpg.org/skateparkproject.
 Commencement of design of the Fire Station Bathroom & Shower Remodel Project.

RFP/Bid Phase.

This phase requires solicitation and review of proposals/bids, as well as a selection of a consultant or contractor to provide the specific commodity or service within the parameters outlined in the Pacific Grove Municipal Code.

Notable Quarterly Accomplishments for the Bids/RPS Phase:
 Drafted and released a Request for Qualifications (RFQ) for the intersection safety improvements project on State Route 68 at the Cedar St, Congress Ave, and Sunset Dr.  Drafted and released RFQ for the Pump Station 15.5 Replacement Project.  Finalized plans, specifications, and released a call for bids for the FY22/23 Street Rehabilitation Project.
 Drafted a Request for Proposals for the George Washington Park play equipment project; currently under internal review and will be released in February.

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Contract Phase
The contract phase ensures the City has legally binding agreements with the entities performing work.

This phase also requires City Council authorization of agreements over $40,000.

Notable Quarterly Accomplishments for projects in the Contract Phase:
 A contract award was brought forth to the Council at the February 1, 2023 meeting, for the Del Monte Blvd. Storm Water Improvement Project.
 Contract executed for Chataqua Hall Main Roof Repairs; construction to commence shortly pending delivery of roofing materials.

Construction/Work in Progress.

This phase of the project often includes street closures and ground disturbance to install new infrastructure and/or repair existing infrastructure. CIP projects are not solely limited to traditional construction projects, the City has several essential projects that are more inconspicuous. Examples include interior improvements to city facilities and preparation of environmental documents or plan sets for multiyear infrastructure projects. In the latter scenario, the first year of funding is often designated solely for design or environmental document preparation, and subsequent years for construction.

Notable Quarterly Accomplishments for projects in the Bids/RPS Phase:
 Construction of the Public Works Fire Repair Project continues. Notable construction updates include completion of the metal warehouse construction and installation of a new roof on the Public Works Administrative Office; electrical repairs will commence in the coming month.
 Commencement of construction of the Roof Repair Project at the Pacific Grove Museum of Natural History.
 Fire station roof repair project construction scheduled to commence in mid-February 2023.
 George Washington Management Plan reviewed by the Beautification and Natural Resources Commission (BNRC) at their November 15, 2022, meeting; it is anticipated that the item will be brought forth to the City Council in March 2023.  Completed installation of the Fire Department Niederman Exhaust System.  Completed Window Repair and Lead Abatement Project at the Pacific Grove Museum of Natural History.
 Completed installation of new heater at the Youth Center.

Other Relevant CIP Updates
This section provides relevant updates on CIP projects and administration.  Receipt of a Transportation Excellence Project of the Year Award from the Transportation Agency of Monterey County (TAMC) Board for the Point Pinos Coastal Trail Project.  Receipt of a Project of the Year Award from the American Public Works Association (APWA), Monterey Bay Chapter for the Point Pinos Coastal Trail Project.  Development of the capital projects module in the City’s new Transparency Software which is anticipated to “go-live” on February 3, 2023.

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