09.I Report Award Contracts for Playground Design for Palisade and Chumash Parks 2022-09-06 — Pismo Beach City Council, September 6, 2022

PISMO BEACH COUNCIL AGENDA REPORT
Agenda Item #9.I
SUBJECT/TITLE:

AGREEMENTS WITH LANDSCAPE STRUCTURES, INC. FOR DESIGN AND

PURCHASE OF PLAYGROUND EQUIPMENT AND WITH CALLANDER ASSOCIATES LANDSCAPE ARCHITECTURE, INC. FOR PREPARATION OF

CONSTRUCTION DOCUMENTS FOR THE PALISADES AND CHUMASH

PARKS PLAYGROUND PROJECT
RECOMMENDATION:

Adopt a Resolution authorizing the City Manager to:

1.Enter into a Professional Services Agreement with Landscape Structures, Inc. in the amount of $326,841.99 for design, purchase and delivery of playground equipment for the Palisades and Chumash Parks Playground Project;

2.Enter into a Professional Services Agreement with Callander Associates Landscape Architecture, Inc. (Callander Associates) in the amount of $109,342 for preparation of construction documents for the Palisades and Chumash Parks Playground Project; and
Authorizing staff to advertise for bids for the removal of the existing equipment and installation of the new equipment at Palisades and Chumash Parks; and appropriating related budget adjustments in fiscal year (FY) 2023.

BACKGROUND:

On August 16, 2022 staff provided Council with options for the “Palisades Park Improvements” and “Chumash Park Improvements” projects. The staff report for that meeting can be found in the Access Pismo online public records portal1 or by scanning the QR code at right. At that meeting, Council directed staff to proceed with “option B” for Chumash Park (replacing all play equipment and softfall material) and “option B” for Palisades Park (relocating the playground to “site B”, a location approximately midway between the parking lot and the current play equipment location, while keeping the elevation to a minimum).

Staff has requested revised cost proposals from the playground equipment manufacturer Landscape Structures, Inc., and the design consultant Callander Associates for the preparation of the construction plans and bid documents. Both vendors have provided updated cost proposals based on the revised scope of work (Attachments 1.A and 1.B).

If the Council approves staff’s recommendation, the consultants will move forward with the purchase of the play equipment and preparation of the construction documents. Once those documents are complete, staff will solicit construction bids for the removal of the existing equipment and installation of new equipment and site improvements. 1 Full URL:
https://accesspismo.pismobeach.org/WebLink/DocView.aspx?id=438907&dbid=0&repo=Laserfiche

9.I-1Council Agenda 9-6-2022

Conclusion and Recommendation
Staff recommends that the Council adopt a Resolution (Attachment 1) authorizing the the City Manager to enter into a Professional Services Agreement (Attachment 2) with Landscape Structures, Inc. in the amount of $326,841.99 for design, purchase and delivery of playground equipment and enter into a Professional Services Agreement (Attachment 3) with Callander Associates in the amount of $109,342 for preparation of construction documents for the Palisades and Chumash Parks Playground Project. Staff also recommends that the Council authorize staff to proceed with advertising for bids once the construction documents are complete.

FISCAL IMPACT:

The FY 2022 Adopted Budget includes $100,000 for Palisades Park funded by Park Development Fund resources and $350,000 for Chumash Park funded by General Fund resources for a total project budget of $450,000.

Current Project Funding

Palisades Park Improvements Project $100,000.00
Chumash Park Improvements Project $350,000.00
Total Project Budget $450,000.00

Current Project Costs

Archeological Investigation (Palisades) $2,800.00
Topographic Survey (Palisades) $10,100.00
Landscape Structures, Inc. contract $326,841.99
Callander Associates contract $109,342.00
Total Contract Cost $449,083.99

Remaining Budget $961.01

The remaining budget will be used for construction costs. The actual construction cost will not be known until the project has been advertised and bids are received for the project. Once the project has been bid, staff will return to Council at that time to award the project and request additional funds.

As the project will include both park improvement projects, staff recommends that the Council consolidate the projects into one Palisades and Chumash Park Improvements project.

ALTERNATIVES:

1. Do not authorize all or a portion of the recommended items; provide direction to staff.

9.I-2Council Agenda 9-6-2022

ATTACHMENTS:

1. Resolution

1.A Exhibit A to Resolution: Landscape Structures, Inc. Cost Proposal

1.B Exhibit B to Resolution: Callander Associates Cost Proposal

2. Landscape Structures, Inc. Vendor Agreement

3. Callander Associates Vendor Agreement
Prepared by: Erin Olsen, Management Analyst Meeting Date: September 6, 2022 Submitted by: Benjamin A. Fine, P.E., Director of Public Works/City Engineer City Manager Approval:

9.I-3Council Agenda 9-6-2022

RESOLUTION NO. R-2022-XXX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH, CALIFORNIA AUTHORIZING THE CITY MANAGER TO:

1. ENTER INTO A PROFESSIONAL SERVICES AGREEMENT WITH
LANDSCAPE STRUCTURES, INC. IN THE AMOUNT OF $326,841.99 FOR DESIGN,

PURCHASE AND DELIVERY OF PLAYGROUND EQUIPMENT FOR THE
PALISADES AND CHUMASH PARKS PLAYGROUND PROJECT;

2. ENTER INTO A PROFESSIONAL SERVICES AGREEMENT WITH
CALLANDER ASSOCIATES LANDSCAPE ARCHITECTURE, INC. (CALLANDER ASSOCIATES) IN THE AMOUNT OF $109,342 FOR PREPARATION OF

CONSTRUCTION DOCUMENTS FOR THE PALISADES AND CHUMASH PARKS PLAYGROUND PROJECT; AND

AUTHORIZING STAFF TO ADVERTISE FOR BIDS FOR THE REMOVAL OF THE

EXISTING EQUIPMENT AND INSTALLATION OF THE NEW EQUIPMENT AT PALISADES AND CHUMASH PARKS; AND APPROPRIATING RELATED BUDGET ADJUSTMENTS IN FISCAL YEAR (FY) 2023
WHEREAS, on August 16, 2022 staff provided Council with options for the “Palisades Park Improvements” and “Chumash Park Improvements” projects; and WHEREAS, Council directed staff to proceed with “option B” for Chumash Park (replacing all play equipment and softfall material) and “option B” for Palisades Park (relocating the playground to “site B”, a location approximately midway between the parking lot and the current play equipment location, while keeping the elevation to a minimum); and WHEREAS, staff received revised cost proposals from the playground equipment manufacturer Landscape Structures, Inc., and the design consultant Callander Associates for the preparation of the construction plans and bid documents based on the updated scope of work; and
WHEREAS, once those documents are complete, staff will solicit construction bids for the removal of the existing equipment and installation of new equipment and site improvements.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to enter into a Professional Services Agreement with Landscape Structures, Inc. (Exhibit A) in the amount of $326,841.99 for design, purchase and delivery of playground equipment for the Palisades and Chumash Parks Playground Project.

BE IT FURTHER RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to enter into a Professional Services Agreement with Callander Associates (Exhibit B) in the amount of $109,342 for preparation of construction documents for the Palisades and Chumash Parks Playground Project.

9.I-4Council Agenda 9-6-2022
Attachment 1

BE IT FURTHER RESOLVED that the City Council of the City of Pismo Beach hereby authorizes staff to advertise for construction bids once the construction documents are complete.

BE IT FINALLY RESOLVED that the City Council of the City of Pismo Beach hereby combines the Palisades Park Improvements and Chumash Park Improvements projects into one consolidated project called the Palisades and Chumash Park Improvements project in FY 2023, including appropriating any related transfers between funds.

UPON MOTION OF Council Member , seconded by Council Member , the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 6th day of September 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk

9.I-5Council Agenda 9-6-2022
Attachment 1

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9.I-6Council Agenda 9-6-2022
Attachment 1A

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9.I-7Council Agenda 9-6-2022
Attachment 1A

Task Matrix
Chumash and Palisades Park
08/18/2022
@ $226 @ $160 @ $139 @ $116 @ $173 Surveyor Structural Geotech Phase Description hrs $'s hrs $'s hrs $'s hrs $'s hrs $'s hrs $'s $'s $'s $'s

1.0 Preliminary Engineering Investigation

1.01 Kick-off Meeting 4.0 904.00$ 4.0 640.00$ - -$ 1.0 116.00$ - -$ 9.0 1,660.00$ -$ -$ -$

1.02 Acquire Base Info - -$ 4.0 640.00$ - -$ - -$ - -$ 4.0 640.00$ -$ -$ -$

1.03 Project Schedule 1.0 226.00$ 2.0 320.00$ - -$ - -$ - -$ 3.0 546.00$ -$ -$ -$ SUBTOTAL 1.0 5.0 1,130.00$ 10.0 1,600.00$ - -$ 1.0 116.00$ - -$ 16.0 2,846.00$ -$ -$ -$ Subconsultant Administration 10%-$ -$ -$

2.0 Field Survey

2.01 Topographic Survey - -$ 5.0 800.00$ - -$ - -$ - -$ 5.0 800.00$ 11,970.00$-$ -$ SUBTOTAL 2.0 - -$ 5.0 800.00$ - -$ - -$ - -$ 5.0 800.00$ 11,970.00$ -$ -$ Subconsultant Administration 10%1,197.00$ -$ -$

3.0 Preliminary Engineering Design

3.01 Site Investigation - -$ 8.0 1,280.00$ 8.0 1,112.00$ - -$ - -$ 16.0 2,392.00$ -$ -$ 10,000.00$

3.02 Site Analysis and Vendor Coordination 6.0 1,356.00$ 6.0 960.00$ 15.0 2,085.00$ - -$ - -$ 27.0 4,401.00$ -$ -$ -$

3.03 Review Meeting #1 4.0 904.00$ 4.0 640.00$ -$ 0.5 58.00$ - -$ 8.5 1,602.00$ -$ -$ -$

3.04 Site Plan and Basis of Design 6.0 1,356.00$ 14.0 2,240.00$ 16.0 2,224.00$ - -$ - -$ 36.0 5,820.00$ -$ -$ -$

3.05 Cost Estimate - -$ 8.0 1,280.00$ 6.0 834.00$ 1.0 116.00$ - -$ 15.0 2,230.00$ -$ -$ -$

3.06 Review Meeting #2 4.0 904.00$ 4.0 640.00$ - -$ 0.5 58.00$ - -$ 8.5 1,602.00$ -$ -$ -$ SUBTOTAL 3.0 20.0 4,520.00$ 44.0 7,040.00$ 45.0 6,255.00$ 2.0 232.00$ - -$ 111.0 18,047.00$ -$ -$ 10,000.00$ Subconsultant Administration 10%-$ -$ 1,000.00$

4.0 Final Engineering Design

4.01 50% PS&E's 10.0 2,260.00$ 36.0 5,760.00$ 64.0 8,896.00$ 2.0 232.00$ - -$ 112.0 17,148.00$ -$ 1,500.00$ -$

4.02 Review Meeting #3 4.0 904.00$ 4.0 640.00$ - -$ 0.5 58.00$ - -$ 8.5 1,602.00$ -$ -$ -$

4.03 90% PS&E's 12.0 2,712.00$ 30.0 4,800.00$ 48.0 6,672.00$ 2.0 232.00$ - -$ 92.0 14,416.00$ -$ 1,000.00$ -$

4.04 Review Meeting #4 4.0 904.00$ 4.0 640.00$ - -$ 0.5 58.00$ - -$ 8.5 1,602.00$ -$ -$ -$

4.05 Review Meeting #5 - -$ 4.0 640.00$ - -$ 0.5 58.00$ - -$ 4.5 698.00$ -$ -$ -$

4.06 100% PS&E's 6.0 1,356.00$ 20.0 3,200.00$ 36.0 5,004.00$ 2.0 232.00$ - -$ 64.0 9,792.00$ -$ 1,000.00$ -$ SUBTOTAL 4.0 36.0 8,136.00$ 98.0 15,680.00$ 148.0 20,572.00$ 7.5 870.00$ - -$ 289.5 45,258.00$ -$ 3,500.00$ -$ Subconsultant Administration 10%-$ 350.00$ -$
Proj Manager 1 Administrator
Callander Associates' Personnel and Rates
Construction Man. Designer 1
CA Fees
Principal
PJ496_FEE_Rev1.xlsx
© copyrighted 2020 Callander Associates
Landscape Architecture, Inc.

Page 1 of 2 ends

9.I-8Council Agenda 9-6-2022
Attachment 1B

Task Matrix
Chumash and Palisades Park
08/18/2022
@ $226 @ $160 @ $139 @ $116 @ $173 Surveyor Structural Geotech Phase Description hrs $'s hrs $'s hrs $'s hrs $'s hrs $'s hrs $'s $'s $'s $'s Proj Manager 1 Administrator
Callander Associates' Personnel and Rates
Construction Man. Designer 1
CA Fees
Principal

5.0 Engineering Support During Bidding and Construction

5.01 Bid Period Assistance - -$ 6.0 960.00$ 8.0 1,112.00$ - -$ 10.0 1,730.00$ 24.0 3,802.00$ -$ 500.00$ -$ SUBTOTAL 2.0 - -$ 6.0 960.00$ 8.0 1,112.00$ - -$ 10.0 1,730.00$ 24.0 3,802.00$ -$ 500.00$ -$ Subconsultant Administration 10%-$ 50.00$ -$ hrs CALA Surveyor Structural Geotech

1.0 Preliminary Engineering Investigation 16.0 2,846.00$ -$ -$ -$

2.0 Field Survey 5.0 800.00$ 13,167.00$ -$ -$

3.0 Preliminary Engineering Design 111.0 18,047.00$ -$ -$ 11,000.00$

4.0 Final Engineering Design 289.5 45,258.00$ -$ 3,850.00$ -$

5.0 Engineering Support During Bidding and Construction 24.0 3,802.00$ -$ 550.00$ -$ Additional Services Contingency 5,000.00$ -$ -$ -$ Reimbursables (allowance)5,022.00$
445.5 80,775.00$ 13,167.00$ 4,400.00$ 11,000.00$ TOTAL COMPENSATION PJ496_FEE_Rev1.xlsx
© copyrighted 2020 Callander Associates
Landscape Architecture, Inc.

Page 2 of 2 ends

9.I-9Council Agenda 9-6-2022
Attachment 1B

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Vendor Agreement (Rev. 2/2/2018)

CITY OF PISMO BEACH

VENDOR AGREEMENT FOR PROFESSIONAL SERVICES

This Vendor Agreement for Professional Services (“AGREEMENT”) is made and entered into as of the date the AGREEMENT is fully executed by all parties (the “Effective Date”), by and between the City of Pismo Beach, a municipal corporation (“CITY”), and Landscape Structures, Inc. (“VENDOR”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

RECITALS:

CITY wishes to retain the services of an experienced and qualified VENDOR to provide the following services:

Design, Purchase and Delivery of Playground Equipment for Palisades and Chumash Parks

VENDOR represents and warrants that it is qualified to perform those services.

AGREEMENT:

I. SERVICES TO BE PERFORMED BY VENDOR

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. Extra work beyond that described in the Scope of Services is not authorized without the express written approval of CITY. VENDOR shall request and receive written approval prior to performing any extra work. Any work beyond that reflected in the approved Scope of Services shall not be compensated by CITY unless prior written approval was provided under this paragraph. CITY’s City Manager may approve additional work not to exceed thirty thousand dollars ($30,000.00). Any additional work in excess of this amount shall be approved by the City Council. To the extent that Exhibit A is a proposal from VENDOR, 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 by CITY in writing.

II. TERM

Unless earlier terminated in accordance with Section IV below, or unless the Scope of Services are substantially completed, the AGREEMENT will continue in full force and effect from the Effective Date through 06/30/2023. Upon mutual written agreement, the term of this AGREEMENT can be extended annually under the same terms for an additional one (1) year period, or longer as the parties agree in writing.

III. COMPENSATION

A. VENDOR’s Fee

For services rendered pursuant to this AGREEMENT, VENDOR will be paid in accordance with the Compensation Schedule attached hereto as Exhibit B. However, in no event will the total amount of money paid VENDOR, for services initially contemplated by this AGREEMENT and associated expenses, exceed the sum of three hundred twenty-six thousand eight hundred forty-one dollars and ninety-nine cents ($326,841.99), unless otherwise first approved in writing by CITY. Should this AGREEMENT be extended pursuant to Section II,

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Vendor Agreement (Rev. 2/2/2018)
VENDOR’s fee may be adjusted upon the written agreement of the parties, in the form of an amendment to this AGREEMENT.

B. Schedule of Payment

VENDOR will submit invoices monthly for actual services performed and associated expenses.

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. Any final payment under this AGREEMENT shall be made within forty-five (45) days of receipt of an invoice therefor.

IV. TERMINATION OF AGREEMENT

A. CITY may at any time, for any reason, with or without cause, suspend or terminate this AGREEMENT, or any portion hereof, by serving upon VENDOR at least ten (10) 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 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, VENDOR will submit an invoice to CITY pursuant to Section III.

V. FORCE MAJEURE

If any party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, "acts of God," inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental control, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused for a period equal to the period of such cause for failure to perform.

VI. RETENTION OF FUNDS

VENDOR authorizes CITY to deduct from any amount payable to VENDOR (whether or not arising out of this AGREEMENT) any amounts the payment of which may be in dispute or that are necessary to compensate CITY for any losses, costs, liabilities, or damages suffered by CITY, and all amounts for which CITY may be liable to third parties, by reason of VENDOR’s acts or omissions in performing or failing to perform VENDOR’s obligations under this AGREEMENT. In the event that any claim is made by a third party, the amount or validity of which is disputed by VENDOR, or any indebtedness exists that appears to be the basis for a claim of lien, CITY may withhold from any payment due, without liability for interest because of the withholding, an amount sufficient to cover the claim. The failure of CITY to exercise the right to deduct or to withhold will not, however, affect the obligations of VENDOR to insure, indemnify, and protect CITY as elsewhere provided in this AGREEMENT.

9.I-10Council Agenda 9-6-2022
Attachment 2

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Vendor Agreement (Rev. 2/2/2018)
VII. CITY REPRESENTATIVE

The Senior Engineer is designated as the “City Representative,” authorized to act in its behalf with respect to the work and services specified in this AGREEMENT and to make all decisions in connection with this AGREEMENT. Whenever approval, directions, or other actions are required by CITY under this AGREEMENT, those actions will be taken by CITY Representative, unless otherwise stated. CITY’s City Manager has the right to designate another CITY Representative at any time, by providing notice to VENDOR.

VIII. VENDOR REPRESENTATIVE(S)

The person(s) employed by VENDOR whose name(s) are set forth immediately following the signatures of the parties executing this AGREEMENT are designated as being the representative(s) of VENDOR authorized to act on its behalf with respect to the work specified in this AGREEMENT and make all decisions in connection with this AGREEMENT.

IX. INDEPENDENT CONTRACTOR

VENDOR is, and at all times will remain as to CITY, a wholly independent contractor. Neither CITY nor any of its elected officials, officers, employees or agents will have control over the conduct of VENDOR or any of VENDOR’s employees, except as otherwise set forth in this AGREEMENT and then only as to the results to be accomplished and not the method by which VENDOR provides the Scope of Services. VENDOR may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of CITY.

X. BUSINESS LICENSE

VENDOR must obtain a CITY business license prior to the start of work under this AGREEMENT, unless VENDOR is qualified for an exemption.

XI. OTHER LICENSES AND PERMITS

VENDOR warrants that it has all professional, contracting and other permits and licenses required to undertake the work contemplated by this AGREEMENT.

XII. VENDOR’S ACCOUNTING RECORDS; OTHER PROJECT RECORDS

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.

B. 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; 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. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. Upon completion of, or in the event of termination or suspension of this AGREEMENT, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the

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Vendor Agreement (Rev. 2/2/2018)
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 VENDOR'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. VENDOR 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 VENDOR in the course of providing the services under this AGREEMENT.

C. All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of CITY, whether the work for which they are made be executed or not. In the event this AGREEMENT is terminated, and at the end of the term of this AGREEMENT, all such plans, studies, sketches, drawings, electronic documentation, reports, and specifications shall be delivered immediately to CITY. VENDOR may retain one copy of each document for VENDOR’S records, but shall have no proprietary rights to them. CITY agrees to indemnify VENDOR against any damages caused by the unauthorized re-use of said documents.

XIII. INDEMNIFICATION

A. Non-design, non-construction Professional Services:

To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), VENDOR shall indemnify, defend, and hold harmless CITY, and its elected officials, officers, employees, volunteers, and agents (“CITY Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of VENDOR’s performance or VENDOR’s failure to perform its obligations under this AGREEMENT or out of the operations conducted by VENDOR, including CITY’s active or passive negligence, except for such loss or damage arising from the sole negligence or willful misconduct of CITY. In the event CITY Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from VENDOR’s performance of this AGREEMENT, VENDOR shall provide a defense to CITY Indemnitees or at CITY’s option, reimburse CITY Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims.

B. Non-design, construction Professional Services:

To the extent the Scope of Services involve a “construction contract” as that phrase is used in Civil Code Section 2783, this paragraph shall apply in place of paragraph A. To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), VENDOR shall indemnify, defend, and hold harmless the CITY, and its elected officials, officers, employees, volunteers, and agents (“CITY Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“claims”), arising out of VENDOR’s performance or VENDOR’s failure to perform its obligations under this AGREEMENT or out of the operations conducted by VENDOR, except for such loss or damage arising from the active negligence, sole negligence or willful misconduct of CITY. In the event CITY Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from VENDOR’s performance of this AGREEMENT, VENDOR shall provide a defense to CITY Indemnitees or at CITY’s option, reimburse CITY Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims.

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C. Design Professional Services:

In the event VENDOR is a "design professional," and the Scope of Services require VENDOR to provide “design professional services” as those phrases are used in Civil Code Section 2782.8, this paragraph shall apply in place of paragraphs A or B. To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8) VENDOR shall indemnify, defend and hold harmless CITY and its elected officials, officers, employees, volunteers and agents (“City Indemnitees”), from and against all claims, damages, injuries, losses, and expenses including costs, attorney fees, expert consultant and expert witness fees arising out of, pertaining to or relating to, the negligence, recklessness or willful misconduct of VENDOR, except to the extent caused by the sole negligence, active negligence or willful misconduct of CITY. Negligence, recklessness or willful misconduct of any subcontractor employed by VENDOR shall be conclusively deemed to be the negligence, recklessness or willful misconduct of VENDOR unless adequately corrected by VENDOR. In the event CITY Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from VENDOR’s performance of this AGREEMENT, VENDOR shall provide a defense to CITY Indemnitees or at CITY’s option, reimburse CITY Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims. In no event shall the cost to defend charged to VENDOR under this paragraph exceed VENDOR’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, VENDOR shall meet and confer with other parties regarding unpaid defense costs.

D. Payment by CITY is not a condition precedent to enforcement of the indemnities in paragraph A, B, or C. In the event of any dispute between VENDOR and CITY, as to whether liability arises from the active negligence, sole negligence or willful misconduct of CITY or its officers, employees, or agents, VENDOR will be obligated to pay for CITY’s defense until such time as a final judgment has been entered adjudicating CITY as having been actively negligent, solely negligent or as having engaged in willful misconduct. Except as otherwise required by Civil Code Section 2782.8, VENDOR 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. The provisions of this Section 13 shall survive completion of VENDOR’s services or the termination of this AGREEMENT.

XIV. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES

No elected official, officer, employee, or agent of CITY will 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.

XV. INSURANCE

A. Without limiting VENDOR’s indemnification of CITY, and prior to commencement of the Scope of Services, 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 below and in a form that is satisfactory to CITY.

1. General liability insurance. VENDOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office (ISO) 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.

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2. Automobile liability insurance. If VENDOR owns vehicles used in performing the Scope of Services in any manner, VENDOR shall maintain automobile insurance at least as broad as Insurance Services Office (ISO) form CA 00 01 covering bodily injury and property damage for all activities of VENDOR arising out of or in connection with any 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.

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

4. 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.

5. Errors and Omissions/Professional Liability. VENDOR shall maintain a policy of professional liability insurance written on a claims-made basis in an amount not less than $1,000,000. VENDOR shall also procure and pay for appropriate tail coverage for a minimum of three years following completion of the Scope of Services to cover any errors or omissions occurring during the Term. In the alternative, VENDOR may elect to obtain equivalent coverage on an occurrence basis. CITY’s Risk Manager or City Attorney may waive the requirement of professional liability insurance if he/she determines that such a policy is not commercially available to VENDOR. If such a policy is commercially available, additional cost to VENDOR in obtaining such a policy shall not be a basis upon which the insurance requirement will be waived.

B. Other provisions or requirements:

1. 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, including endorsements to such policies, at any time.

2. Duration of coverage. VENDOR 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 VENDOR, its agents, representatives, employees, or subconsultants.

3. 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 CITY’s own insurance or self-insurance shall be called upon to protect it as a named insured.

4. 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 VENDOR or

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CITY will withhold amounts sufficient to pay premium from VENDOR payments. In the alternative, CITY may terminate this AGREEMENT as provided in paragraph IV.

5. 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 CITY’s Risk Manager.

6. 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 officials, agents, officers, 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.

7. Enforcement of contract provisions (non-estoppel). VENDOR acknowledges and agrees that any actual or alleged failure on the part of CITY to inform VENDOR of non- compliance with any requirement imposes no additional obligations on CITY nor does it waive any rights hereunder.

8. 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 VENDOR maintains higher limits than the minimums shown above, CITY requires and shall be entitled to coverage for the higher limits maintained by VENDOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CITY.

9. 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. In the event VENDOR’s policy of insurance cannot be endorsed to provide this notice of cancellation, VENDOR shall provide CITY notice of such cancellation, in writing, not later than 24 hours following the effective time of such cancellation.

10. Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Each such insurance policy shall contain language substantially similar to the following clause:
"The City of Pismo Beach, its elected and appointed officials, officers, employees, and agents are named as additional insureds as respects operations of the named insured performed under contract with the City of Pismo Beach." CITY need not be named as an additional insured on professional liability insurance policies.

11. Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement

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of any kind that has not been first submitted to CITY and approved of in writing by CITY’s Risk Manager or City Attorney.

12. 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.

13. Pass-through clause. VENDOR agrees to ensure that its sub-consultants, sub- contractors, and any other party providing any work under the Scope of Services under the direction of 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 performing work under the Scope of Services will be submitted to CITY for review.

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

15. 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.

16. 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.

17. 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 Scope of Services.

XVI. 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 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 paragraph XII of this AGREEMENT and must specifically name CITY as an indemnified party; and

C. Secure from the subcontractor evidence of insurance coverage that meets with this AGREEMENT including naming CITY as an additional insured as required by this AGREEMENT, unless such requirement is waived in writing by CITY's Risk Manager as provided in paragraph XXV below.

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XVII. CONFLICT OF INTEREST

No officer or employee of CITY may have any financial interest, direct or indirect, in this AGREEMENT, nor may any officer or employee participate in any decision relating to the AGREEMENT that affects the officer or employee’s financial interest or the financial interest of any corporation, partnership, or association in which the officer or employee is directly or indirectly interested, in violation of any law, rule or regulation.

No person may offer, give, or agree to give any officer or employee or former officer or employee, nor may any officer or employee solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation or any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any way pertaining to any program requirement, contract or subcontract, or to any solicitation or proposal.

XVIII. NOTICE

All notices, requests, demands, or other communications under this AGREEMENT will be in writing.

Notice will be sufficiently given for all purposes as follows:

A. Personal delivery. When personally delivered to the recipient; notice is effective on delivery.

B. First Class mail. When mailed first class to the last address of the recipient known to the party giving notice; notice is effective three mail delivery days after deposit in a United States Postal Service office or mailbox.

C. Certified mail. When mailed certified mail, return receipt requested; notice is effective on receipt, if delivery is confirmed by a return receipt.

D. Overnight delivery. When delivered by an overnight delivery service, charges prepaid or charged to the sender’s account; notice is effective on delivery, if delivery is confirmed by the delivery service.

E. Facsimile transmission. When sent by fax to the last fax number of the recipient known to the party giving notice; notice is effective on receipt. Any notice given by fax will be deemed received on the next business day if it is received after 5:00 p.m. (recipient’s time) or on a non- business day.

Addresses for purpose of giving notice are as set forth immediately following the signatures of the parties executing this AGREEMENT.

F. Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified, will be deemed effective as of the first date the notice was refused, unclaimed or deemed undeliverable by the postal authorities, messenger or overnight delivery service.

G. Either party may change its address or fax number by giving the other party notice of the change in any manner permitted by this AGREEMENT. Any change in address or fax number that is not provided to the other party will not void delivery of any notice under this AGREEMENT, and delivery to the last known address or fax number shall be deemed sufficient for notice under this AGREEMENT.

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XIX. PROHIBITION AGAINST ASSIGNMENT AND SUBCONTRACTING

This AGREEMENT and all exhibits are binding on the heirs, successors, and assigns of the parties.

The AGREEMENT may not be assigned or subcontracted by either CITY or VENDOR without the prior written consent of the other.

XX. INTERPRETATION

The terms of this AGREEMENT shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this AGREEMENT or any other rule of construction that might otherwise apply.

XXI. SEVERABILITY

If any part of this AGREEMENT is found to be in conflict with applicable laws, that part will be inoperative, null and void insofar as it is in conflict with any applicable laws, but the remainder of the AGREEMENT will remain in full force and effect.

XXII. TIME OF ESSENCE

Time is of the essence in the performance of this AGREEMENT.

XXIII. GOVERNING LAW; JURISDICTION

This AGREEMENT will be administered and interpreted under the laws of the State of California.

Jurisdiction of and venue for any litigation arising from the AGREEMENT will be in the Superior Court of the San Luis Obispo County, or in the United States District Court for the Central District of California.

XXIV. COMPLIANCE WITH STATUTES AND REGULATIONS

VENDOR will be knowledgeable of and will comply with all applicable federal, state, county and city statutes, rules, regulations, ordinances and orders. VENDOR and its subcontractor(s) shall not discriminate against any person in the performance of this AGREEMENT on the basis of race, religion, national origin, color, age, sex, sexual orientation, AIDS, HIV status, disability, or any other basis protected by state or federal law, and shall comply with applicable federal and state equal employment opportunity laws, ordinances, rules and regulations.

XXV. WAIVER OF BREACH

No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default will impair the right or remedy or be construed as a waiver. A party’s consent or approval of any act by the other party requiring the party’s consent or approval will not be deemed to waive or render unnecessary the other party’s consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and will not be a waiver of any other default concerning the same or any other provision of this AGREEMENT.

XXVI. ATTORNEY’S FEES

Except as provided for in paragraph XV, in any dispute, litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this AGREEMENT (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this AGREEMENT, the prevailing party

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will be awarded reasonable attorney’s fees, together with any costs and expenses, to resolve the dispute and to enforce any judgment, including post judgment attorney’s fees costs and expenses and any attorneys’ fees or costs incurred on appeal of any judgment.

XXVII. EXHIBITS

All exhibits identified in this AGREEMENT are incorporated into the AGREEMENT by this reference.

In the event of any conflict between the terms of this AGREEMENT and the terms of an exhibit, the terms of this AGREEMENT shall control. Notwithstanding the foregoing sentence, the provisions of Section XIII of this AGREEMENT shall not be altered, amended, limited or otherwise affected in any manner by any language included in an exhibit to this AGREEMENT, even if such exhibit purports to affect the provisions of Section XIII.

XXVIII. VENDOR’S AUTHORITY TO EXECUTE

The persons executing this AGREEMENT on behalf of the VENDOR warrant that:

A. the VENDOR is duly organized and existing under the appropriate State laws; B. they are duly authorized to execute this AGREEMENT on behalf of the VENDOR; C. by so executing this AGREEMENT, the VENDOR is formally bound to the provisions of this AGREEMENT; and
D. entering into this AGREEMENT does not violate any provision of any other AGREEMENT to which the VENDOR is bound.

XXIX. INTEGRATION; AMENDMENT

This AGREEMENT represents the entire understanding of CITY and VENDOR as to those matters contained in it. No prior oral or written understanding will be of any force or effect with respect to the terms of this AGREEMENT. The AGREEMENT may not be modified or altered except in writing signed by both parties.

IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed the day and year last written below.

Signatures begin on next page.

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CITY:

City of Pismo Beach, a Municipal Corporation

Signed:

Name: Benjamin A. Fine, P.E.

Title: Director of Public Works/City Engineer
Dated: ________________________________

Signed:

Name: James R. Lewis
Title: City Manager
Dated: ________________________________

Address for giving notice (See Section XVIII):
760 Mattie Road, Pismo Beach, CA 93449

ATTEST:

Signed:

Name: Erica Inderlied
Title: City Clerk

APPROVED AS TO FORM:

Signed:

Name: David M. Fleishman
Title: City Attorney
VENDOR:

Landscape Structures, Inc.

Signed:

Name: ________________________________
Title: _________________________________
Dated: ________________________________

Address for giving notice (See Section XVIII):
______________________________________
______________________________________

Email address for official communications:
______________________________________

Vendor Representative (See Section VIII):

Name/Title: ____________________________

Attachments:

Exhibit A: Scope of Service
Exhibit B: Compensation Schedule

9.I-15Council Agenda 9-6-2022
Attachment 2

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CITY OF PISMO BEACH

VENDOR AGREEMENT FOR PROFESSIONAL SERVICES

This Vendor Agreement for Professional Services (“AGREEMENT”) is made and entered into as of the date the AGREEMENT is fully executed by all parties (the “Effective Date”), by and between the City of Pismo Beach, a municipal corporation (“CITY”), and Callander Associates Landscape Architecture, Inc. (“VENDOR”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

RECITALS:

CITY wishes to retain the services of an experienced and qualified VENDOR to provide the following services:

Palisades and Chumash Park Playgrounds – Preparation of Construction Documents

VENDOR represents and warrants that it is qualified to perform those services.

AGREEMENT:

I. SERVICES TO BE PERFORMED BY VENDOR

VENDOR will provide the services listed in the Scope of Services attached hereto as Exhibit A.

II. TERM

Unless earlier terminated in accordance with Section IV below, or unless the Scope of Services are substantially completed, the AGREEMENT will continue in full force and effect from the Effective Date through June 30, 2023. Upon mutual written agreement, the term of this AGREEMENT can be extended annually under the same terms for an additional one (1) year period, or longer as the parties agree in writing.

III. COMPENSATION

A. VENDOR’s Fee

For services rendered pursuant to this AGREEMENT, VENDOR will be paid in accordance with the Compensation Schedule attached hereto as Exhibit B. However, in no event will the total amount of money paid VENDOR, for services initially contemplated by this AGREEMENT and associated expenses, exceed the sum of one hundred nine thousand three hundred forty-two dollars ($109,342), unless otherwise first approved in writing by CITY. Should this

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AGREEMENT be extended pursuant to Section II, VENDOR’s fee may be adjusted upon the written agreement of the parties, in the form of an amendment to this AGREEMENT.

B. Schedule of Payment

VENDOR will submit invoices monthly for actual services performed and associated expenses.

IV. TERMINATION OF AGREEMENT

V. FORCE MAJEURE

VI. RETENTION OF FUNDS

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VII. CITY REPRESENTATIVE

VIII. VENDOR REPRESENTATIVE(S)

IX. INDEPENDENT CONTRACTOR

X. BUSINESS LICENSE

VENDOR must obtain a CITY business license prior to the start of work under this AGREEMENT, unless VENDOR is qualified for an exemption.

XI. OTHER LICENSES AND PERMITS

VENDOR warrants that it has all professional, contracting and other permits and licenses required to undertake the work contemplated by this AGREEMENT.

XII. VENDOR’S ACCOUNTING RECORDS; OTHER PROJECT RECORDS

XIII. INDEMNIFICATION

A. Non-design, non-construction Professional Services:

B. Non-design, construction Professional Services:

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C. Design Professional Services:

XIV. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES

No elected official, officer, employee, or agent of CITY will 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.

XV. INSURANCE

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4. 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.

B. Other provisions or requirements:

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CITY will withhold amounts sufficient to pay premium from VENDOR payments. In the alternative, CITY may terminate this AGREEMENT as provided in paragraph IV.

11. Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement

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Vendor Agreement (Rev. 2/2/2018)
of any kind that has not been first submitted to CITY and approved of in writing by CITY’s Risk Manager or City Attorney.

XVI. 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;

9.I-20Council Agenda 9-6-2022
Attachment 3