12.D Report Award Playgrounds Contracts Brough and CLAD 2023-07-18

PISMO BEACH CITY COUNCIL STAFF REPORT
Agenda Item #12.D

SUBJECT/TITLE:

AWARD OF CONTRACTS TO BROUGH CONSTRUCTION, INC. AND CLAD CONSULTING, INC. FOR THE PALISADES AND CHUMASH PARKS PLAYGROUND

PROJECT
RECOMMENDATION:

Adopt a Resolution authorizing the City Manager to:

1. Execute a contract with Brough Construction, Inc. for construction of the Palisades and Chumash Parks Playground project in the amount of $1,445,380; and

2. Enter into a Professional Services Agreement with CLAD Consulting, Inc. in the amount of $129,248 for Construction Management, Inspection & Administration Services.

BACKGROUND:

One of the City Council’s top goals is to “build on the strength of our local community to preserve the City’s ‘Classic California’ charm and ensure an exceptional quality of life for residents.” To achieve this goal, the Fiscal Year 2024 budget includes the Palisades and Chumash Parks Playground Project. The project includes the purchase and installation of new play equipment at both Palisades Park and Chumash Park along with related site improvements.

Construction
The project was advertised for construction bids on April 20, 2023. A single bid was received on May 18, 2023 in the amount of $1,445,380 from Brough Construction, Inc. (Brough). Staff has verified Brough’s references and qualifications, and recommends the Council adopt a Resolution (Attachment 1) awarding a contract (Attachment 2) to Brough in the amount of $1,445,380 (bid schedule provided at Attachment 1.A) to complete construction of the project.

Construction Management
On May 18, 2023 staff issued a formal Request for Proposals (RFP) for Construction Management, Inspection and Administration Services. One proposal was received on June 1, 2023 from CLAD Consulting, Inc. (CLAD). The proposal was evaluated by a review panel based on the following:
Understanding the scope of work to be performed
Methods, schedule and procedures to be used
Management, personnel and experience
Consultation and coordination with the City of Pismo Beach CLAD’s cost proposal for construction management, inspection and administration services is provided at Attachment 1.B. Adoption of the Resolution provided as Attachment 1 will also award a contract (Attachment 3) to CLAD for these services.

12.D-1Council Agenda 7-18-2023

Conclusion and Recommendation
Staff recommends the Council adopt the Resolution provided as Attachment 1 authorizing the City Manager to enter into a contract with Brough in the amount of $1,445,380 for construction of the Palisades and Chumash Parks Playground Project and a Professional Services Agreement with CLAD in the amount of $129,248 for Construction Management, Inspection & Administration Services.

FISCAL IMPACT:

The fiscal impact of adopting the subject Resolution is a total estimated project cost of $1,753,380 to construct the project. The total estimated cost also includes construction management, certified playground inspections, archeological monitoring and a 10% contingency. The Fiscal Year (FY) 2024 Capital Projects Fund budget includes $1,800,000 for completion of the project.

Current Project Funding
Palisades and Chumash Parks Project Budget $1,800,000
Estimated Project Cost
Construction Costs (Brough) $1,445,380
Construction Management (CLAD) $129,248
Certified Playground Inspection $4,650
Archeological Monitoring $14,500
10% Contingency $159,377
Total Estimated Project Cost $1,753,155
Budget Surplus $46,845
ALTERNATIVES:

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

ATTACHMENTS:

1. Resolution

1.A Exhibit A to Resolution: Brough Bid Schedule

1.B Exhibit B to Resolution: CLAD Cost Proposal

2. Brough Construction Agreement

3. CLAD Vendor Agreement
Prepared by: Meeting Date: July 18, 2023
Erin Olsen, Management Analyst
Submitted by: Benjamin A. Fine, P.E., Director of Public Works/City Engineer Interim City Manager Approval:

12.D-2Council Agenda 7-18-2023

RESOLUTION NO. R-2023-XXX

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

1. EXECUTE A CONTRACT WITH BROUGH CONSTRUCTION, INC. FOR

CONSTRUCTION OF THE PALISADES AND CHUMASH PARKS PLAYGROUND PROJECT IN THE AMOUNT OF $1,445,380; AND

2. ENTER INTO A PROFESSIONAL SERVICES AGREEMENT WITH CLAD CONSULTING, INC. IN THE AMOUNT OF $129,248 FOR CONSTRUCTION

MANAGEMENT, INSPECTION & ADMINISTRATION SERVICES
WHEREAS, the Palisades and Chumash Parks Playground Project includes the purchase and installation of new play equipment at both Palisades Park and Chumash Park along with related site improvements; and
WHEREAS, the project was advertised for construction bids and a single bid was received from Brough Construction, Inc.; and
WHEREAS, staff has verified Brough’s references and qualifications; and WHEREAS, staff issued a formal Request for Proposals for Construction Management, Inspection and Administration Services and received one proposal from CLAD Consulting, Inc.; and
WHEREAS, the proposal was evaluated by a review panel based on the following:
Understanding the scope of work to be performed
Methods, schedule and procedures to be used
Management, personnel and experience
Consultation and coordination with the City of Pismo Beach; and WHEREAS, the Fiscal Year (FY) 2024 Capital Projects Fund includes sufficient funds for the Palisades and Chumash Parks Playground Project.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to execute a contract with Brough Construction, Inc. for construction of the Palisades and Chumash Parks Playground project in the amount of $1,445,380 in FY 2024 (Exhibit A).

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 CLAD Consulting, Inc. in the amount of $129,248 for Construction Management, Inspection & Administration Services in FY 2024 (Exhibit B).

12.D-3Council Agenda 7-18-2023
Attachment 1

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 18th day of July 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

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

12.D-4Council Agenda 7-18-2023
Attachment 1

12.D-5Council Agenda 7-18-2023
Attachment 1.A

12.D-6Council Agenda 7-18-2023
Attachment 1.A

12.D-7Council Agenda 7-18-2023
Attachment 1.A

CM for Palisades & Chumash Parks
June 1, 2023
Eric Eldridge, P.E.

City of Pismo Beach
760 Mattie Road
Pismo Beach, CA 93449
Project Name: Construction Management, Inspection & Administration Services for the Palisades and Chumash Parks Playground Project - Fee
Dear Eric,
Below is our proposed time and materials, not to exceed fee for this work. Enclosed is our fee breakdown detailing tasks, estimated hours, employee rates, and the fee totals. Should any revisions to the cost estimate (project duration, tasks, etc.) be requested before contract execution, you will find CLAD to be extremely responsive in fulfilling the City’s requests.

Time and Materials, Not to Exceed Fee: $129,248
We thank you again for the opportunity to propose on this project and look forward to working with you.

Sincerely,
CLAD Consulting, Inc.

L. Alberto Lopez, RCE, QSD/P
Principal
805-440-0885

12.D-8Council Agenda 7-18-2023
Attachment 1.B

Date: 6/1/2023 CM for Palisades & Chumash Parks Playground Project 2023 Rates 150 140 105 120
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Up Total
% of Total
Project Costs
(Engineering) Duration Start End
HRS HRS HRS HRS $$Man-Days Day Day
Construction Management, Inspections $129,248 100%
Project set up, submittals 8 24 8 $5,400
Onsite Construction (4 months)85 510 85 4 $93,555
Project Close Out 8 24 8 $5,400
$0
Geotechnical Inspections 22630 $24,893
$0
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$0
Geotechnical Inspections $0 0%
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Task 3 $0 0%
$0
$0
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$0
Task 4 $0 0%
$0
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$0
$0
$0
$0
$0
Task 5 $0 0%
$0
$0
Task 6 $0 0%
$0
$0
$0
Total 101 558 101 4 22630
$129,248

12.D-9Council Agenda 7-18-2023
Attachment 1.B

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Construction Services Agreement (Rev. 2/2/2018)

CITY OF PISMO BEACH

CONSTRUCTION SERVICES AGREEMENT
This Construction Services Agreement (“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 Brough Construction, Inc., a corporation ("CONTRACTOR"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

I. SCOPE OF WORK
CONTRACTOR shall perform within the time set forth in Article 2 of this AGREEMENT and shall furnish at its own cost all labor, materials, equipment, tools, utility services, and transportation and perform and complete all work required in connection with the construction of new play equipment and related site improvements for the Palisades and Chumash Parks Playground Project (hereinafter “Project”).

By entering into this AGREEMENT, CONTRACTOR acknowledges that there may be other contractors on the site whose work will be coordinated with that of its own. CONTRACTOR expressly warrants and agrees that it will cooperate with other contractors and will do nothing to delay, hinder, or interfere with the work of other separate contractors, CITY, the Project Manager, the Public Works Director/City Engineer, or utilities. CONTRACTOR also expressly agrees that, in the event its work is hindered, delayed, interfered with, or otherwise affected by a separate contractor, its sole remedy will be a direct action against the separate contractor. To the extent allowed by law, CONTRACTOR will have no remedy, and hereby expressly waives any remedy against CITY, the Project Manager, or the Public Works Director/City Engineer on account of delay, hindrance, interference or other events caused by a separate contractor.

II. TIME FOR PROJECT COMPLETION
All of CONTRACTOR’s work on the Project shall be completed within durations established for the individual activities as set forth in the Project Construction Schedule. All work shall commence fifteen (15) calendar days after receiving a written Notice to Proceed from CITY or Project Manager, if a Project Manager is employed by CITY on the Project. CONTRACTOR shall refer to the invitations for bids, and Project Plans and Specifications, all of which, as set forth below, are incorporated herein by reference, for contractual obligations regarding individual activity durations. The aggregate sum total work of all individual Prime Contractors to CITY comprises the entire “Project” and shall be commenced and completed in conformance with the Project Construction Schedule. The entire Project shall be completed within 80 consecutive working days (“Contract Time”).

III. THE CONTRACT SUM
CITY shall pay to CONTRACTOR for the performance of this AGREEMENT, subject to any additions and deductions provided in the Project documents, the sum of one million four hundred forty-five thousand three hundred eighty dollars ($1,445,380).

IV. PROGRESS PAYMENTS
Based upon Applications for Payment submitted to the Public Works Director/City Engineer by CONTRACTOR and Certificates for Payment issued by the Public Works Director/City Engineer, CITY shall make progress payments on account of the Contract Sum to CONTRACTOR as provided in the General Conditions.
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This AGREEMENT is subject to the provisions of Article 1.7 (commencing at Section 20104.50) of Division 2, Part 3 of the Public Contract Code regarding prompt payment of contractors by local governments. Article 1.7 mandates certain procedures for the payment of undisputed and properly submitted payment requests within 30 days after receipt, for the review of payment requests, for notice to CONTRACTOR of improper payment requests, and provides for the payment of interest on progress payment requests which are not timely made in accordance with that Article. This AGREEMENT hereby incorporates the provisions of Article 1.7 as though fully set forth herein.

This AGREEMENT is also subject to the provisions of Public Contract Code Section 9204, which provides for the submission and resolution of specified claims by CONTRACTOR, including provisions governing the type of claims that may be submitted, the time to respond to such claims, and alternative dispute resolution procedures. The provisions of Section 9204 are incorporated herein by reference, and to the extent CONTRACTOR asserts a claim specified by Section 9204, CONTRACTOR shall comply with all provisions set forth in Section 9204 in submitting a claim to CITY.

V. RETENTION OF SECURITIES
Public Contract Code Section 22300 permits the substitution of securities for any monies withheld by CITY to ensure performance under a contract, at the request and expense of CONTRACTOR.

Substitution of securities shall not be required in contracts in which there will be financing provided by the Farmers Home Administration of the United States Department of Agriculture pursuant to the Consolidated Farm and Rural Development Act (7 U.S.C. Sec. 1921 et seq.), and where federal regulations or policies, or both, do not allows the substitution of securities. Alternatively, CONTRACTOR may request that CITY make payment of retention earned directly to an escrow agent at the expense of CONTRACTOR. At the expense of CONTRACTOR, CONTRACTOR may direct the investment of the payments into securities and CONTRACTOR shall receive the interest earned on the investments upon the same terms provided for in this section for securities deposited by CONTRACTOR. Upon satisfactory completion of the contract, CONTRACTOR shall receive from the escrow agent all securities, interest, and payments received by the escrow agent from CITY, pursuant to the terms of this section.

The escrow agreement entered into pursuant to this section must be substantially similar to the form included in Public Contract Code Section 22300(e). CONTRACTOR shall obtain the written consent of its surety to such escrow agreement. Securities eligible for investment under this section shall include those listed in Section 16430 of the Government Code, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed to by CONTRACTOR and CITY.

In accordance with Public Contract Code Section 22300(d)(1), if CONTRACTOR elects to receive interest on moneys withheld in retention by CITY, CONTRACTOR shall, at the request of any subcontractor performing more than five percent of CONTRACTOR’s total bid, make that option available to the subcontractor regarding any moneys withheld in retention by CONTRACTOR from the subcontractor.

VI. INDEMNITY, DEFENSE AND HOLD HARMLESS AGREEMENT
To the fullest extent permitted by law, CONTRACTOR 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 CONTRACTOR’s performance or CONTRACTOR’s failure to perform its obligations under this

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Construction Services Agreement (Rev. 2/2/2018)
AGREEMENT or out of the operations conducted by CONTRACTOR, 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 CONTRACTOR’s performance of this AGREEMENT, CONTRACTOR shall provide a defense to CITY Indemnitees or at CITY’s option, reimburse CITY Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims.

Payment by CITY is not a condition precedent to enforcement of the indemnities in this section. In the event of any dispute between CONTRACTOR and CITY, as to whether liability arises from the active negligence, sole negligence, or willful misconduct of CITY or its officers, employees, or agents, CONTRACTOR 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. CONTRACTOR will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorneys' fees, expert fees, and costs of litigation. The provisions of this Section VI shall survive completion of CONTRACTOR’s services or the termination of this AGREEMENT.

VII. PREVAILING WAGES
A. Wage rates for this Project shall be in accordance with the General Wage Determination Made by the Director of Industrial Relations Pursuant To California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773 and 1773.1, for San Luis Obispo County. Wage rates shall conform with those posted at 760 Mattie Road, Pismo Beach, and the Project site.

B. The following Labor Code sections are hereby referenced and made a part of this AGREEMENT:

1. Section 1775 - Penalty for Failure to Comply with Prevailing Wage Rates.

2. Section 1777.4 - Apprenticeship Requirements.

3. Section 1777.5 - Apprenticeship Requirements.

4. Section 1813 - Penalty for Failure to Pay Overtime.

5. Sections 1810 and 1811 - Working Hour Restrictions.

6. Section 1775 - Payroll Records.

7. Section 1773.8 - Travel and Subsistence Pay.

VIII. RECORD AUDIT
In accordance with Government Code, Section 8546.7, records of both CITY and CONTRACTOR shall be subject to examination and audit by the Auditor General for a period of three (3) years after final payment.

IX. CERTIFICATIONS
In addition to certification and licensing requirements identified elsewhere in this agreement, CONTRACTOR shall maintain the following certifications for the duration of this AGREEMENT:

A.None
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X. FINAL PAYMENT
Final payment, constituting the entire unpaid balance of the Agreement Sum, shall be paid by CITY to CONTRACTOR no sooner than thirty-five (35) days after a Notice of Completion has been recorded, unless otherwise stipulated in the Notice of Completion, provided the work has then been completed, the AGREEMENT fully performed, and a final Certificate for Payment has been issued by the Public Works Director/City Engineer.

XI. CONTRACTOR'S FAILURE TO PROCURE COMPLETION OF PROJECT In the event CONTRACTOR fails to furnish tools, equipment, or labor in the necessary quantity or quality, or fails to prosecute the work or any part thereof contemplated by this AGREEMENT in a diligent and workmanlike manner, and if CONTRACTOR for a period of three (3) calendar days after receipt of written demand from CITY or its designated representative to do so, fails to furnish tools, equipment, or labor in the necessary quantity or quality, and to prosecute its work and all parts thereof in a diligent and workmanlike manner, or after commencing to do so within said three (3) calendar days, fails to continue to do so; then CITY may exclude CONTRACTOR from the premises, or any portion thereof, and take possession of said premises or any portion thereof, together with all material and equipment thereon, and may complete the work contemplated by this AGREEMENT or any portion of said work, either by furnishing the tools, equipment, labor or material necessary, or by letting the unfinished portion of said work, or the portion taken over by CITY to another contractor or by a combination of such methods. In any event, the procuring of the completion of said work, or the portion thereof taken over by CITY, shall be a charge against CONTRACTOR, and may be deducted from any money due or becoming due to CONTRACTOR from CITY, or CONTRACTOR shall pay CITY the amount of said charge, or the portion thereof unsatisfied. The sureties, provided for under this AGREEMENT shall become liable for payment should CONTRACTOR fail to pay in full any said cost incurred by CITY.

XII.INSURANCE
A.Prior to the beginning of and throughout the duration of the Project, CONTRACTOR and its subcontractors shall maintain insurance in conformance with the requirements set forth below.

CONTRACTOR may use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth herein, CONTRACTOR agrees to amend, supplement or endorse the existing coverage to do so.

CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to CONTRACTOR or its subcontractors in excess of the limits and coverage identified in this AGREEMENT and which is applicable to a given loss, claim or demand, will be equally available to CITY.

CONTRACTOR shall provide the following types and amounts of insurance:

1. General liability insurance. CONTRACTOR shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended. Any endorsement restricting standard Insurance Services Office (ISO) “insured contract” language will not be accepted.

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Attachment 2

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Construction Services Agreement (Rev. 2/2/2018)

2. Automobile liability insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 (06/92) covering bodily injury and property damage for all activities of CONTRACTOR arising out of or in connection with the Project, 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. Umbrella or excess liability insurance. CONTRACTOR shall obtain and maintain an umbrella or excess liability insurance that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
i. A drop down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectable in whole or in part for any reason;
ii. Pay on behalf of wording as opposed to reimbursement; iii. Concurrency of effective dates with primary policies; iv. Policies shall “follow form” to the underlying primary policies; and v. Insureds under primary policies shall also be insureds under the umbrella or excess policies.

4. Workers’ compensation insurance. CONTRACTOR shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code et seq. In addition, CONTRACTOR shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California for all of the subcontractor’s employees.

5. CONTRACTOR shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers.

6. Pollution liability insurance. Environmental Impairment Liability Insurance shall be written on a CONTRACTOR’s Pollution Liability form or other form acceptable to CITY providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this AGREEMENT shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non- owned disposal sites.

7. Products/completed operations coverage. Coverage shall extend a minimum of three (3) years after project completion and shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage.

Policy shall specifically provide for a duty to defend on the part of the insurer. The CITY, its officials, officers, agents, and employees, shall be included as insureds under the policy.

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8. Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance for the entire duration of the Project until only CITY has an insurable interest. The Builder’s Risk coverage shall include the coverages as specified below.

i. The named insureds shall be CONTRACTOR and CITY, including its officers, officials, employees, and agents. All Subcontractors (excluding those solely responsible for design work) of any tier and suppliers shall be included as additional insureds as their interests may appear. CONTRACTOR shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to CITY. The policy shall contain a provision that all proceeds from the builder’s risk policy shall be made payable to CITY. ii. Policy shall be provided for replacement value on an "all risk" basis for the completed value of the project. There shall be no coinsurance penalty or provisional limit provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project; (4) ordinance or law coverage for contingent rebuilding, demolition, and increased costs of construction; (5) transit coverage (unless insured by the supplier or receiving contractor), with sub-limits sufficient to insure the full replacement value of any key equipment item; (6) ocean marine cargo coverage insuring any Project materials or supplies, if applicable; (7) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the site or any staging area. Such insurance shall be on a form acceptable to CITY to ensure adequacy of terms and sublimits and shall be submitted to CITY prior to commencement of construction.

B. Other provisions or requirements:

1. Proof of insurance. CONTRACTOR shall provide certificates of insurance to CITY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for Workers’ Compensation. Insurance certificates and endorsements must be approved by CITY’s Risk Manager prior to commencement of performance.

CITY’s Risk Manager or City Attorney may waive the requirement of any insurance policy set forth herein if he/she determines that such a policy is not commercially available to CONTRACTOR, or if the risk to CITY is sufficiently minimal to render such insurance unnecessary. If such a policy is commercially available, additional cost to CONTRACTOR in obtaining such a policy shall not be a basis upon which the insurance requirement will be waived. Current certification of insurance shall be kept on file with CITY at all times during the term of AGREEMENT. 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. CONTRACTOR shall procure and maintain for the duration of the AGREEMENT insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Project hereunder by CONTRACTOR, his agents, representatives, employees or subcontractors. CONTRACTOR must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations

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Attachment 2

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claims. CITY and its officers, elected officials, employees, and agents shall continue as additional insureds under such policies.

3. Primary/noncontributing. Coverage provided by CONTRACTOR shall be primary and any insurance or self-insurance procured or maintained by CITY shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY before 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 requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONTRACTOR or CITY will withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, CITY may terminate this AGREEMENT.

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 officers, agents, officials, employees, and volunteers or shall specifically allow CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

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

9. Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for nonpayment, for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. In the event CONTRACTOR’S policy of insurance cannot be endorsed to provide this notice of cancellation, CONTACTOR shall provide CITY notice 8 of 11
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of such cancellation, in writing, not later than 24 hours following the effective time of such cancellation.

10. Additional insured status. General liability and automobile insurance policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, agents, and volunteers 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."

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 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 CONTRACTOR’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.

13. Pass-through clause. CONTRACTOR agrees to ensure that its subconsultants, subcontractors, and any other party providing any work on the Project under the direction of CONTRACTOR, provide the same minimum insurance coverage and endorsements required of CONTRACTOR. CONTRACTOR agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section.

CONTRACTOR agrees that upon request, all agreements with consultants, subcontractors, and others engaged in performing work on the Project will be submitted to CITY for review.

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

15. Self-insured retentions. Any deductibles or self-insured retention must be declared to and approved by CITY. At the option of CITY, either the insurer shall reduce or eliminate such deductibles or self-insured retention as respects CITY, its elected and appointed officials, employees and volunteers, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Self-insurance will not be considered to comply with this paragraph unless approved by CITY.

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

17. Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Project.

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XIII.CONTRACTOR'S LICENSE
CONTRACTOR must possess at the time of commencing work and throughout the Project duration, a Contractor's License, issued by the State of California, which is current and in good standing.

CONTRACTOR shall ensure that any subcontractor working on the Project possesses at the time of commencing work and throughout the Project duration, a Contractor's License, issued by the State of California, which is current and in good standing.

XIV. REGISTRATION REQUIREMENTS
Pursuant to Section 1771.1(a) of the Labor Code:
“A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.” CONTRACTOR must be registered with the Department of Industrial Relations (DIR) of the State of California in order to be eligible to work on public works projects. CONTRACTOR must ensure registration with the DIR that is active and in good standing.

Except as otherwise provided in Labor Code Section 1771.1(a), no contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.

No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.

This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.

XV. CORPORATION IN GOOD STANDING
If CONTRACTOR is a corporation, the undersigned hereby represents and warrants that the corporation is duly incorporated and in good standing in the State of California, and that the undersigned is authorized to act for and bind the corporation.

XVI. PROVISIONS REQUIRED BY LAW
Each and every provision of law and clause required by law to be inserted in this AGREEMENT shall be deemed to be inserted herein and the AGREEMENT shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not currently inserted, then upon application of either party the AGREEMENT shall forthwith be physically amended to make such insertion or correction.
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XVII.SUBSURFACE HAZARDOUS MATERIALS
A.Pursuant to Public Contract Code Section 7104, in the event the Project includes trenches or other excavations extend deeper than four (4) feet below the surface, CONTRACTOR shall promptly, and before the following conditions are disturbed, notify CITY in writing of any:

1. Material that CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II or Class III disposal site in accordance with the provisions of existing law;

2. Subsurface or latent physical conditions at the site differing from those indicated in the Project specifications;

3. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in the Project or the character provided for in the CONTRACT.

B. Upon receipt of said notification CITY will investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in CONTRACTOR's cost of or the time required for performance of any part of the Project, CITY will issue a change order under the procedures described in the General Conditions.

C. In the event that a dispute arises between CITY and CONTRACTOR whether the conditions materially differ, or involve hazardous waste or cause a decrease or increase in CONTRACTOR's cost of or time required for performance of any part of the Project, CONTRACTOR shall not be excused from any scheduled completion date provided for by the AGREEMENT, but shall proceed with all work to be performed under the AGREEMENT.

CONTRACTOR shall retain any and all rights provided either by AGREEMENT or by law which pertain to the resolution of disputes and protests between the contracting parties.

XVIII. COMPONENT PARTS OF THE CONTRACT
This AGREEMENT entered into consists of the following CONTRACT DOCUMENTS, all of which are component parts of the AGREEMENT as if herein set out in full or attached hereto:

In addition, all Change Orders and Work Directive Changes authorizing additions, deletions, or modifications, and all appendices, bulletins and addenda as prepared prior to the date of opening Bids setting forth any modifications or corrections or interpretations of any of said documents. In the event of any conflict between the provisions thereof, the terms of said documents shall control over each other in the following order:

1. Agreement

2. Change Orders and Work Directive Changes

3. Addenda

4. Notice to Bidders

5. Contract Proposal

6. Special Provisions

7. Technical Provisions

8. Contract Plans

9. City of Pismo Beach Standard Specifications and Drawings

10. Standard Specifications for Public Works Construction, “Greenbook,” 2015 edition, or the latest edition thereof

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11. Standard Plans for Public Works Construction, “Greenbook,” 2015 edition, or the latest edition thereof

12. California State Department of Transportation Standard Specifications, latest edition, when specifically referenced in the plans.

All of the above named CONTRACT DOCUMENTS are intended to be complementary. Work required by one of the above named CONTRACT DOCUMENTS and not by others shall be done as if required by all.

XIX. ENTIRE CONTRACT
This AGREEMENT constitutes the entire contract of the parties. No other agreements or contracts, whether oral or written, pertaining to the work to be performed, exists between the parties. This AGREEMENT can be modified only by an amendment 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.

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: Jorge Garcia
Title: Interim 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
CONTRACTOR:

Brough Construction, Inc.

Signed:

Name: ________________________________
Title: _________________________________
Dated: ________________________________
Address for giving notice:
______________________________________
______________________________________
Email address for official communications:
______________________________________
Vendor Representative:

Name/Title: ____________________________

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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 CLAD Consulting, 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 Parks Playground Project – Construction Management, Inspection and Administration Services
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 June 30, 2024. 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 twenty-nine thousand two hundred forty-eight dollars ($129,248), unless otherwise first approved in writing by CITY.

Should this AGREEMENT be extended pursuant to Section II, VENDOR’s fee may be 2 of 12
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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.

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VII. CITY REPRESENTATIVE

The Engineering Manager 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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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. 6 of 12
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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.

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.

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 8 of 12
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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.

12.D-19Council Agenda 7-18-2023
Attachment 3

9 of 12
Vendor Agreement (Rev. 2/2/2018)
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.
10 of 12
Vendor Agreement (Rev. 2/2/2018)
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

12.D-20Council Agenda 7-18-2023
Attachment 3

11 of 12
Vendor Agreement (Rev. 2/2/2018)
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.

12 of 12
Vendor Agreement (Rev. 2/2/2018)
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: Jorge Garcia
Title: Interim 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:

CLAD Consulting, 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

12.D-21Council Agenda 7-18-2023
Attachment 3

Statement of Understanding & Scope of Work
CLAD understands that the City of Pismo Beach (City) will be removing existing play equipment, installing new play equipment, and conducting related site improvements at Chumash and Palisades Parks. CLAD intends to help the City with their goal of ensuring an exceptional quality of life for all its residents.

We will provide a Construction Manager (CM), L. Alberto Lopez, to coordinate project matters between the contractors, City, and Engineer of Record. Prior to construction, the CM will thoroughly familiarize himself with the project plans and specifications. The CM will then oversee all construction support activities and reporting on behalf of the City. We understand the importance of effective and timely construction in order to stay on track with the project budget and minimize the impact of construction on the surrounding community. We also understand the importance of a timely response to a contractor’s request, and that is why we have multiple people on the team to address and questions, concerns, and inspection in a timely manner. The CM will conduct weekly meetings with all relevant parties as necessary to maintain the project schedule and mitigate any potential obstacles or unforeseen conditions.

CLAD has observed that there will be limited access and tight conditions at Chumash Park, as well as a high-pressure gas main at the project site that will require location and an investigation into its depth. We understand that for any park project, equipment must be placed exactly as planned so that each play structure zone limit does not overlap and cause a hazard. The size of the playground and location of the structures must be precisely correct to ensure safety. Also, the site must be kept secure and safe at all times to avoid residents – especially children – from wandering into the work site and getting hurt.

Having ample experience with construction management projects within Pismo Beach and other local agencies, our CM will adhere to quality control standards, permit compliance, reporting protocols, and other applicable procedures set in place by the City in addition to State and Federal standards. All contractor documentation, including payroll, RFIs, payment applications, and closeout documents will be revised by the CM in accordance with the project schedule and construction progress. CLAD’s CM will act as a liaison between the City and the contractors, engineer, and any other government agencies involved with the project.

CLAD will provide daily onsite inspection services for the construction of improvements to both Chumash Park and Palisades Park. The CM will ensure that the project adheres to the engineer’s plans and specifications, as well as all safety and permitting requirements. We will maintain communication with residents and businesses impacted by construction as needed throughout the life of the project and relay all pertinent information to the City. The CM will review all submittals and required documentation throughout the life of the project. 14CM for Palisades & Chumash Parks
&YIJCJU"Statement of Understanding & Scope of Work
The geotechnical engineer will work under the direction of the CLAD CM. They will perform compaction testing at both parks, as well as subgrade inspection for the retaining wall at Palisades Park.

We understand the importance of the health of the trees for this project. CLAD will bring in a specialist to examine the six (6) loquats prior to their installation, and again at the end of the maintenance period.

Our team will utilize Procore as provided by the contractor to document, process, and submit all documentation received from the contractors, including submittals, RFIs, schedule changes, PCOs and COs, incident reports, payment applications, and close-out documents.

By the end of the project, CLAD will submit a master project file to the City in compliance with its recordkeeping standards.

City Responsibilities
Per the RFP document, CLAD expects the City to: designate a City staff member as the main point of contact for this project; act as a liaison with City Council and any other appropriate government body involved in the project; conduct plan checking and approvals in a timely manner so as not to impede the construction schedule; and handle all public construction progress updates.
15CM for Palisades & Chumash Parks

12.D-22Council Agenda 7-18-2023
Attachment 3

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16 CM for Palisades & Chumash Parks
June 1, 2023
Eric Eldridge, P.E.

Time and Materials, Not to Exceed Fee: $129,248
We thank you again for the opportunity to propose on this project and look forward to working with you.

Sincerely,
CLAD Consulting, Inc.

L. Alberto Lopez, RCE, QSD/P
Principal
805-440-0885
&YIJCJU#

12.D-23Council Agenda 7-18-2023
Attachment 3

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12.D-24Council Agenda 7-18-2023
Attachment 3

Pismo Beach City CouncilJuly 18, 2023

Pismo Beach City Council
July 18, 2023