PISMO BEACH COUNCIL AGENDA REPORT
Agenda Item #9.I
SUBJECT/TITLE:
CONTRACT WITH PHOENIX GROUP INFORMATION SYSTEMS FOR PARKING
REVENUE AND CITATION MANAGEMENT FOR A THREE-YEAR TERM
RECOMMENDATION:
Adopt a Resolution authorizing the City Manager to execute a three-year contract with Phoenix Group Information Systems for parking revenue and citation management services from February 1, 2023, to January 31, 2026.
BACKGROUND:
For many years, the City of Pismo Beach has contracted with Phoenix Group Information Systems for the collection, management, reporting, and tracking of revenue pertaining to paid parking and parking citations in Pismo Beach. Phoenix Group is an industry leader in this field. In preparation for the expiration of the current contract, research was done, and other companies were found by staff to be inadequate to meet the needs of the City.
In addition, staff determined that Phoenix Group offers several services that the City had not taken advantage of during previous years. These additional services include e-citation set-up and processing, citation storage, and additional-fee recovery services. For these reasons, and in consideration of the City’s existing relationship with Phoenix Group, staff recommends that the City Council that a new contract with Phoenix Group be awarded as “sole source.”
Contract Provisions and Costs:
The proposed contract (Attachment 2) provides for the management of parking revenue and parking citation management for a period of three years. The fees charged to the City are based on a percentage taken from the revenue collected and accounted for by Phoenix Group. The total cost to the City for services provided by Phoenix Group Information Systems in FY 2022 was approximately $67,000. The costs associated with the services provided by Phoenix Group are directly correlated with the amount of revenue received and citations processed. Those costs (i.e. percentages and cost per citation) will remain the same as they were in the previous contract. The total cost for Phoenix Group services could rise as both parking enforcement and revenue rise. The proposed Phoenix Group scope and cost exhibit is provided as Attachment 1.A.
Conclusion and Recommendation
Staff recommends that the City Council adopt a Resolution (Attachment 1) authorizing the City Manager to execute a three-year contract with Phoenix Group Information Systems for parking revenue and citation management.
FISCAL IMPACT:
The fiscal impact of approving the attached Resolution and contract reflects net additional citation revenue to be deposited in the Parking Enterprise Fund. Parking citation revenues are offset by various fees as set in the Phoenix Group Information Systems contract. Total
9.I-1Council Agenda 1-17-2023
expenditures for parking citation fees vary each year depending on the parking citations needed, number of visitors using paid parking areas, parking enforcement staffing levels, and the type of parking citation issued. In FY 2022, Phoenix citation fees were approximately $67,000 and prior to that, the total citation fees were $37,000 and $27,000 per year. These fees are covered by the citation revenues to the City. Staff recommends that a conservative estimate assuming full staffing, adding on the electronic citation and fee recovery services, and additional citations could reach $80,000 per year, or $240,000 over three years.
As these citation revenues and fee expenditures vary each year, staff recommends adjusting the budget at the end of the fiscal year to reflect actual revenues received and expenditures spent.
ALTERNATIVES:
1. Do not extend the contract with Phoenix Group Information Systems; direct staff to explore other companies who provide a similar service.
ATTACHMENTS:
1. Resolution
1.A. Exhibit A to Resolution: Scope and Cost Exhibit
2. Phoenix Group Contract for Professional Services
Prepared by: Meeting Date: January 17, 2023
Chris Trimble, Police Commander
Submitted by: Jeff Smith, Chief of Police
City Manager Approval:
9.I-2Council Agenda 1-17-2023
RESOLUTION NO. R-2023-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA AUTHORIZING THE CITY MANAGER TO EXECUTE A THREE-YEAR
CONTRACT WITH PHOENIX GROUP INFORMATION SYSTEMS FOR PARKING REVENUE AND CITATION MANAGEMENT FROM FEBRUARY 1, 2023, TO JANUARY 31, 2026
WHEREAS, the City’s current agreement for parking revenue and citation management with Phoenix Group Information Systems, expired on January 1, 2023; and WHEREAS, in consideration of the City’s existing relationship with Phoenix Group, the firm’s familiarity with the City’s parking citation processing needs, and additional value- added services that will be available under a new contract, including e-citation set-up and processing, citation storage, and additional-fee recovery services, and the lack of availability of other suitable vendors, staff recommends that the City Council that a new contract with Phoenix Group be awarded as sole-source.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to execute an agreement (scope and cost provided as Exhibit A) with Phoenix Group Information Systems for parking revenue and citation management for a three-year term in the not-to-exceed amount of $240,000 over three years or $80,000 per year from spanning February 1, 2023 to January 31 , 2026.
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 17th day of January 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
9.I-3Council Agenda 1-17-2023
Attachment 1
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Exhibit A
PARKING CITATION PROCESSING AND COLLECTIONS - PRICING
Item Description Cost
Monthly Fee
Parking Citations Cloud Based Database Access,
Custom Website, Live On-Site Bilingual Customer
Service, Reports, Adjudication Services, DMV
Registered Owner Lookup; DMV HOLDS and
RELEASES. Unlimited Agency User Access.
Training, all session can be recorded.
Included
Free of
Charge
Per Electronic Cite Processed Per Electronic Cite Processed Hand Written Cite Processed (includes data entry)
$1.25
Out of State citations
Out of State processing includes any costs charged
by the state for the registered owner. The percentage
is only for citations that are collected.
$0.35
Delinquent Notice
A notice of violation (delinquent notice) is sent after an INDIVIDUAL received the initial citation as a
courtesy reminder. If applicable, A second notice of
delinquency is sent if the payment is not made by the
initial due date.
$0.95
Payment Processing/Updates Cost per payment processed included $0.30 Reports Management
Includes Monthly Surcharge
Report
Includes: online reports to generate, print and re-print 24/7. Reports can be exported in both PDF and
Excel. Custom reports are available upon request.
Included
Free of
Charge
Credit Card Payments
A credit card processing fee of $4.95 or 4.25%,
whichever is greater, will be charged to the
INDIVIDUAL at no cost to the AGENCY.
Included
Credit Card Chargebacks
If a chargeback occurs, the citation is re-opened free
of charge and the administrative fee is added – pass
though cost forthe Agency.
Pass through cost to
Agency
Special Custom Letter
Special letters are custom notices used as follow-up
for hearing dates, review results, hearing results, or
habitual violations (Scofflaw), Pre-intercept letters.
$1.59
Bank Management Fee Includes all related costs for bank account and reconciliation of funds, supplies. $50.00
NSF Bank returned checks Bank account must be accessed and controlled by PHX. $10.00
9.I-4Council Agenda 1-17-2023
Attachment 1.A
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Refunds
Bank account must be accessed and controlled by
PHX. The AGENCY will approve (In writing) each
refund in advance of disbursement
$5.00
Expedited Collections If bail amount is recovered after 90 days. 20% FTB Collections Activated Based on age of collections. Percentage is based on bail amount collected. 15%+ $1.35 per SSN#
look up
Software maintenance Wincite Data base, data storage, remote support configuration adjustments on software interfaces.
$175.00
AB503 Monthly fee for the creation, processing and
monitoring of all payment plans in compliance with
legislative bill 503 and online application. Payment
plan set up, letter to Indigent applicant, monitoring
of plans, late fees in abatement, removed from
DMV hold.
$245.00
Online Contesting This service charge of $95.00 a month was waived and included at no cost.
Included
FREE OF
CHARGE
Training
Training; full training of Wincite software for Agency
Staff. All training sessions can be digitally recorded
and given to the Agency for future use and reference.
A video will be provided for future training purposes.
Included
FREE OF
CHARGE
Services for the above-mentioned items include:
Data entry of manually written citations performed within 24 hours of receipt Quality assurance verification of manually entered citations Scanning of all manually written citations onto our network for storage and ease of retrieval Bi-monthly shredding of manually written citations
Electronic transfer of all electronically written citations, recordings, videos and photographs
Delinquent Notice Cost: Services for the above-mentioned item include:
Semi-custom Notice that is printed on an 8 ½ x 11” piece of paper with a perforated tear-of payment stub provided in a window envelope
All notices are attached to the citation online and are viewable via the web All notices sent via 1st Class Mail, postage included All notices include a return envelope in which the responsible party may submit payment
Delinquent Collections:
This fee will be assessed, assuming a first notice has been sent to the registered owner/individual and the citation is not on hold for any reason.
All notices are sent via First Class mail and all notices are printed on an 8 ½ x 11” sheet of paper and folded into a window envelope; in addition, a window envelope is provided for the recipient to return payment
9.I-5Council Agenda 1-17-2023
Attachment 1.A
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All notices are attached to the citation online and are viewable via the web. If PHX does not collect on a citation that is delinquent, the Agency does not owe this fee Notices will be sent via 1st Class Mail, and PHX will be responsible for the cost incurred and all customer service and payment entry.
9.I-6Council Agenda 1-17-2023
Attachment 1.A
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Franchise Tax Board Processing:
SSN Look-up: This fee will be assessed to lookup a social security number associated with a particular responsible party and address
This charge is charged per unique SSN, not per citation FTB Collections FTB Collections: This fee is charged if a citation is paid at the Franchise Tax Board. This charge is not combined with any other charge; for example, if a citation is rolled to delinquent status and paid at FTB, only the 15% of revenue collected will be charged
Collections:
This fee is charged if a citation is paid at Collections This charge is not combined with any other charge; for example, if a citation is rolled to delinquent status and paid at Collections, only the 20% of revenue collected will be charged
Adjudication Service;
Scanning and Scheduling of Hearing
PHX will review all documentation received by the Appellant and determine whether the request received within the required timeframe
If the request was received within the required timeframe, PHX’s Adjudication Department will place the citation on an Administrative Hearing Request Hold and scan all received documentation into the Solution where it is displayed on the web for the Agency’s Staff and the Hearing Officer
If the request is received outside the required timeframe, the Agency will have the option to proceed as though the request was received within the timeframe or it may elect to have PHX send a “time expired letter” rejecting the appeal
PHX will work with the designated Hearing Officer to schedule the Hearing based on either a pre- determined schedule or an ad hoc basis, depending on the Agency’s schedule
Hearing Schedule & Disposition Letters:
PHX will send a custom disposition letter to the Appellant via 1st Class Mail, Postage Included All letters are attached to the citation online and are viewable via the web Disposition letters will be sent Monday – Friday
Online Access for the Agency’s Customers/ Public:
Included The Agency’s Customers will have the ability to perform the following functions online:
View real-time citation(s) data
Pay for a single or many citation(s)
Accept payment via VISA, MasterCard, Discover and American Express credit/debit cards Request a Hearing online and attach up to 3 supporting documents Print a receipt
View pictures of the citation taken by the issuing officer (if the Agency allows)
9.I-7Council Agenda 1-17-2023
Attachment 1.A
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Online Access for the Agency’s Staff:
Included Access to the Agency’s data is based on unique usernames and passwords assigned to everyone who requires access to the system. PHX does not limit the number of individuals who have access to the system and the number and types of access can change at any point with a simple email request to PHX.
Our Solution is setup to maintain a complete audit trail for each transaction in the system so that the username is displayed next to every transaction in the system, indicating who performed the transaction and when. Dependent on the access rights provided to each Agency Staff member, the following capabilities are available:
View real-time citation(s) data, including pictures taken by the Issuing Officer Accept payment via VISA, MasterCard, Discover and American Express credit/debit cards Accept payment via Cash, Check or Money Order
Process NSFs, Charge-backs and Refunds
Reduce or increase violation amounts, dismiss citations, void citations and place a citation on hold
Change citation data, including violations, date, time, location, comments, and others Generate a time expired or letter of non-responsibility for a citation in the adjudication process View the complete reason for the Hearing Request and supporting documentation provided by the Appellant directly online
Edit Appellant information
Upload disposition documents sent to the Agency via US Mail Add a note to a citation and see all comments added to the citation View the reason for the 2nd Level Administrative Hearing Request online and view the supporting documentation provided by the Appellant, directly online Print a receipt with or without responsible party information
Reporting:
PHX offers 24 reports online for our Clients to generate, print and re-print 24/7. We provide real- time reports that can be generated for any timeframe required and we provide pre- processed/month-end reports that reflect the month-end view of data. All reports are available online through our Wincite Software Solution. All reports are generated are available in both PDF and Excel.
Manual Payment Processing: Included:
Manually received payments (checks, cash, money orders and credit card payments sent via US Mail) are received at our PO Box in Santa Ana where a bonded and insured courier picks up the mail daily and delivers it to our Santa Ana office.
On-site Mail Department opens, sorts and batches the payments before providing them to our on- site Data Entry Department
After double-blind entry of each payment, the citations are updated by our Quality Assurance team
Payments are then provided to our Accounting Department where daily deposit slips are completed and provided to a bonded, insured courier who takes them to the bank
9.I-8Council Agenda 1-17-2023
Attachment 1.A
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Customer Service:
PHX provides a live, bi-lingual, on-site Customer Service Department that is fully trained to answer questions related to citation issuance, payment, adjudication, FTB, Collections. All calls are recorded to quality assurance and recordings can be sent to the Agency at any time for review
PHX’s IVR is bi-lingual and accessible via several toll-free numbers; the IVR provides real-time information to the caller regarding current status, including the amount due The IVR accepts VISA, MasterCard, Discover, and American Express
Web Presence:
PHX Solution is 100% web-based: paymycite.com/pismo ; this is a custom website for the Agency for complete transparency. This website allows for the Agency and the Agency’s Customers to access citations online
PCI complaint,TLS1.2 encryption level. McAfee Secure.Trustwave. Web Content Accessibility Compliance: WCAG20- 20081211/ Level AA, Section 508
MOBILE ENFORCEMENT - PRICING
Description Cost
Android HHU | Wi-Fi only w/ military grade protective case TBD Wincite Mobile Software License | Unlimited site license; One-time charge per unit
$695.00
Software Installation/configuration | One-time charge per unit $100.00 TSC Alpha 3R | Bluetooth Printer w/ 2-year warranty / Protective environmental case.
$780.00 per
device
Hardware/Software Support | ongoing monthly charge per unit LPR real time accessibility | ongoing monthly charge per unit.
$60.00
LPR Software License & Activation, one time fee per device This service charge of $3995.00 per device was waived and included at no cost.
FREE OF CHARGE
Training; full training of Wincite Mobile Automated Ticket writing software for Agency Staff. All training sessions can be digitally recorded and given to the Agency for future use and reference. A video will be provided for future training purposes.
FREE OF CHARGE
DATE
9.I-9Council Agenda 1-17-2023
Attachment 1.A
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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 Phoenix Group Information Systems (“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:
Parking citation processing management
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 January 31, 2026. 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 included as Exhibit A. 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 two hundred forty thousand dollars ($240,000.00) over three years and eighty thousand dollars ($80,000.00) per year, 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 1-17-2023
Attachment 2
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Vendor Agreement (Rev. 2/2/2018)
VII. CITY REPRESENTATIVE
The Chief of Police 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.
9.I-11Council Agenda 1-17-2023
Attachment 2
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Vendor Agreement (Rev. 2/2/2018)
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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Vendor Agreement (Rev. 2/2/2018)
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: Jeff Smith
Title: Police Chief
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:
Phoenix Group Information Systems
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 and Compensation Schedule
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