09.C Report Public Safety Facility Agreements Interwest and NewTel 2023-08-01

PISMO BEACH CITY COUNCIL STAFF REPORT
Agenda Item #9.C

SUBJECT/TITLE:

AGREEMENTS WITH INTERWEST CONSULTING GROUP, INC. FOR PLAN REVIEW & INSPECTION FOR, AND NEWTEL CONSULTING LLC FOR IT PROJECT MANAGEMENT RELATED TO, THE PUBLIC SAFETY FACILITY.

RECOMMENDATION:

1. Adopt a Resolution authorizing the City Manager to enter into a Professional Services Agreement with Interwest Consulting Group, Inc. in the amount of $491,897.20 for Plan Review and Inspection for the Construction of a Public Safety Facility; and

2. Adopt a Resolution authorizing the City Manager to enter into a Professional Services Agreement with NewTel Consulting LLC in the amount of $160,000 for IT Project Management Services for the Public Safety Facility.

BACKGROUND:

The City of Pismo Beach desires to complete design and construction of a Public Safety Facility as part of the Council’s goal to enhance first responder service to the community.

Completion of the project will require review of construction design, inspection of construction progress, and coordination of required IT systems in both temporary and permanent installations.

Plan Review & Inspection
Staff issued a Request for Proposals (RFP) for Plan Review & Inspection Services for the construction of the Public Safety Facility, due to the scale of the project and the specialized nature of the Design-Build process. Four proposals were received and were evaluated by a panel based on the following:
 Understanding of 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

Following review and evaluation of the cost proposals, additional information was requested of the applicants to ensure services offered were comparable. Based upon this evaluation, Interwest Consulting Group, Inc. was selected to perform the work. Plan review was proposed at a fixed fee of $34,297.20, and inspection at a rate of $110 per hour with an assumed construction schedule of 2 years, for an inspection total of $457,600 (cost proposal provided as Attachment 1.A).

IT Project Management
Staff issued a Request for Proposals (RFP) for Public Safety information Technology Project Management Services for the migration of Police and Fire and construction of the Public Safety Facility. Two proposals were received and were evaluated by a review

9.C-1Council Agenda 8-1-2023

committee. NewTel Consulting LLC’s (NewTel) (cost proposal provided as Attachment

2.A) was selected to perform the work based on the following:
Understanding the scope of work to be performed
Methods, schedule, and procedures to be used
Availability of essential personnel
History and performance of firm/project team on similar projects The RFP broke out the scope of work into three phases:
Phase one – Moving out of the current Police department. Phase two – Design work during construction.
Phase three – Moving into the new Public Safety Facility.

During contract negotiations, staff decided to move forward with phase one and phase three. Staff will complete phase two.

Conclusion and Recommendation
In order to keep this top-priority project moving forward, staff recommends that the Council adopt a Resolution (Attachment 1) authorizing the City Manager to execute and agreement with Interwest Consulting Group, Inc. (Attachment 3) in the amount of $491,897.20 for Plan Review and Inspection for Construction of a Public Safety Facility.

Staff also recommends that the Council adopt a Resolution (Attachment 2) authorizing the City Manager to enter into Professional Services Agreement (Attachment 4) with NewTel in the amount of $160,000 for IT project management services for the Public Safety Facility.

FISCAL IMPACT:

The fiscal impact of adopting the resolution is $491,897.20 for Interwest Consulting Group, Inc. and $160,000 for NewTel. The FY 2024 Capital Projects Fund Public Safety Facility project budget includes sufficient funds to support this project.

ALTERNATIVES:

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

ATTACHMENTS:

1. Resolution – Plan Review and Inspection

1.A Exhibit A to Resolution: Interwest Cost Proposal

2. Resolution – IT Project Management

2.A Exhibit A to Resolution NewTel Cost Proposal

3. Interwest Agreement

4. NewTel Agreement
Prepared by: Meeting Date: August 1, 2023
Ian Livingston, Building Official
Jason Takagi, Information Technology Manager

9.C-2Council Agenda 8-1-2023

Submitted by: Matthew Downing, Community Development Director Interwest City Manager Approval:

9.C-3Council Agenda 8-1-2023

RESOLUTION NO. R-2023-XXX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,

CALIFORNIA AUTHORIZING THE CITY MANAGER TO ENTER INTO A

PROFESSIONAL SERVICES AGREEMENT WITH INTERWEST CONSULTING GROUP, INC. IN THE AMOUNT OF $491,897.20 FOR PLAN REVIEW AND

INSPECTION FOR CONSTRUCTION OF A PUBLIC SAFETY FACILITY WHEREAS, the construction of a Public Safety Facility is a top Council priority for the Fiscal Year 2024 & 2025 budget cycle; and
WHEREAS, it has been determined that a Design-Build approach to the project will be the most effective; and
WHEREAS, this specialized process will necessitate the use of consulting services to assure compliance with the applicable state and local building codes; and WHEREAS, staff issued a Request for Proposals (RFP) for plan review and inspection services for the Project, and Interwest Consulting Group, Inc. has been selected to perform the work based on the firm’s experience and understanding of the work to be performed; and
WHEREAS, work includes phased approval of construction documents in accordance with Health and Safety Code requirements for essential services buildings.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to enter into a Professional Services Agreement with Interwest Consulting Group, Inc. in the amount of $491,897.20 for Project Management, Coordination, Construction Management and Construction Inspection Services for the Public Safety Facility Project (cost proposal provided as Exhibit A).

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
Attachment 1

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Attachment 1A

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Attachment 1A

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PAGE 1 OF 1
R-2023-___
RESOLUTION NO. R-2023-XXX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,

CALIFORNIA AUTHORIZING THE CITY MANAGER TO ENTER INTO A

PROFESSIONAL SERVICES AGREEMENT WITH NEWTEL CONSULTING LLC IN THE AMOUNT OF $160,000 FOR INFORMATION TECHNOLOGY PROJECT

MANAGEMENT SERVICES FOR THE PUBLIC SAFETY FACILITY
WHEREAS, during construction of the Public Safety Facility it is necessary to relocate emergency services into temporary facilities for the duration of the project, and then migrate personnel into the new building once construction is complete; and WHEREAS, staff issued a request for proposals (RFP) for information technology project management services for these aspects of the Public Safety Facility Project; and WHEREAS, staff received two responses to the RFP and the review committee selected NewTel Consulting LLC based on their understanding of the scope of work, methods, performance on similar projects, and value.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to enter into a Professional Services Agreement with NewTel Consulting LLC in the amount of $160,000 for Information Technology Project Management Services for the temporary relocation of emergency services during construction of the Public Safety Facility (cost proposal provided as Exhibit A).

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 1st day of August 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

RECUSED:

Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
Attachment 2

9.C-7Council Agenda 8-1-2023

Independent Experts in Public Safety, Transportation, and Education Sector Radio Systems Engineering
City of Pismo Beach
City Clerk
Proposal
For
Public Safety Information Technology Project Management Revision 2
Submitted by: NewTel Consulting LLC
July 14, 2023
NewTel Consulting LLC
Attachment 2A

9.C-8Council Agenda 8-1-2023

i Request for Proposal for Public Safety Information Technology Project Management July 14,2023 Table of Contents

1. Firm Profile ............................................................................................................................... 1

2. Qualifications Details ................................................................................................................ 1

2.1 Project Manager Availability ............................................................................................ 5

2.2 Additional Information ...................................................................................................... 5

3. Cost Proposal ........................................................................................................................... 6

Attachment 2A

9.C-9Council Agenda 8-1-2023

1 Request for Proposal for Public Safety Information Technology Project Management July 14, 2023

1. Firm Profile
NewTel Consulting LLC (NewTel) is a Santa Barbara County based Land Mobile Radio Engineering consulting firm that also provides a full range of Information Technology solutions and Project Management services to local, state, and federal governments in support of their Public Safety departments. The firm is incorporated as a Limited Liability Company in the State of California.

As an independent consulting firm, NewTel’s staff members have been involved with the design, engineering, procurement, vendor selection, and implementation of public safety radio systems and associated dispatch center’s information technologies since our inception in 2008.

Our consulting services have helped our clients across North America improve their communications systems and service delivery through a thoughtful, low-risk approach to introducing new cost-effective technologies and professional engineering, subject matter expertise, and project management services.

NewTel is currently staffed by six members with a wide range of skills ranging from engineering consulting, turn-key system integration, and technology and construction project management.

Our main office is in the City of Santa Maria, California. All work will be performed either at the assigned Project Manager’s work location or onsite in Pismo Beach as needed to perform the assigned duties.

To deliver the requested Public Safety IT Project Management services, NewTel will primarily assign Teri Maa as the assigned IT Project Manager.

Carlos Delatorre will be providing technical oversight to ensure that all pertinent requirements are captured in the Master Project Schedule and properly included in the respective subcontractor’s Scope of Work, while exercising internal contract management oversight to ensure that NewTel delivers as per contract with the City.

There have been no substantiated complaints against NewTel in the last 3 years nor any outstanding litigations to report. In fact, there have never been any substantiated complaints against NewTel since its inception.

2. Qualifications Details
NewTel’s primary staff has a combined expertise that has expanded over 30 years, with a great number of similar projects successfully completed.

Teri Maa Qualifications:

Attachment 2A

9.C-10Council Agenda 8-1-2023

2 Request for Proposal for Public Safety Information Technology Project Management July 14, 2023 Within the Central Coast, NewTel has performed similar services for the City of Santa Maria, City of Santa Barbara, and City of San Luis Obispo. As the IT Manager for the City of Santa Maria and San Luis Obispo during the relocation of their respective dispatch centers, Teri oversaw all EC/IT technologies relocation activities from planning to successful executions while managing internal resources and all hired subcontractors.

As an independent consultant, Teri has successfully provided project management services in multiple Public Safety technology projects to include a 29- million-dollar radio system implementation in support of the Los Angels World Airport Police Enforcement department that was completed under budget by 2 million dollars, and 6 months ahead of schedule.

Carlos Delatorre Qualifications:

Carlos performed as the Technical Project Manager for the final engineering and implementation phase of a new radio system for the City of San Luis Obispo that was done in conjunction with the relocation of their dispatch center. He was primarily responsible for overseeing the configuration, installation and testing of the radio system and for assisting with the planning and relocation of all dispatch equipment to the new dispatch center and for providing oversight of the final Cut-Over from the legacy to the new radio system at the new dispatch center.

For the City of Santa Maria, Carlos led a team of three engineers in the performance of multiple tasks related to the planning and relocation of the City’s Dispatch Center and the construction of two remote tower sites while acting as the principal engineer responsible for the performance of the radio communications Needs Assessment, the development of the Functional Requirements and RFP package, and for leading the formal negotiations between the City and Motorola Solutions saving the City over 4 million dollars.

Subsequently, his staff performed radio system administration on behalf of the city for a period of six years from 2014 – 2020. Working with the IT Manager and City Manager’s office, Carlos supported the planning and implementation of a multitude of technology related projects such as the installation of wireless networks, video surveillance systems, in- car video systems, fire alert systems, and the deployment of a citywide fiber ring supplying giga connectivity to the Police Department and to several other city- owned buildings and local businesses.

In 2014, the City of Santa Barbara awarded a contract to NewTel to provide Project Management and Systems Integration services for the relocation of their dispatch center to a new temporary location. NewTel provided new dispatch consoles, a new microwave system, and relocated all radio and IT resources as part of the project. On a regular basis, Carlos worked with the City’s staff, assigned Architectural firm, and with the General Contractor to plan all aspects of the relocation project and new construction requirements for specific Public Safety grade functionality.

Attachment 2A

9.C-11Council Agenda 8-1-2023

3 Request for Proposal for Public Safety Information Technology Project Management July 14, 2023 Carlos has performed as the Project Manager and Principal Engineer in an additional sixty-seven similar projects nationwide in support of a wide range of federal, county, city, and tribal government agencies, and internationally in Afghanistan, which attests to our ability to provide project management services for this project.

In one of the above referenced federal government projects, the assigned work included the planning and relocation of forty-seven 9-1-1 dispatch centers and Emergency Operations Centers for the Bureau of Indian Affairs, Office of Law Enforcement Services (BIA-OLES). These dispatch and EOC centers were spread-out throughout several western states and took over 4 years to complete. These 9-1-1 Centers provide dispatch and call taking radio communications support to all assigned BIA-OLES police officers that are distributed over five regions throughout the Midwest and Western states.

Internationally, Carlos Delatorre was hired to plan and engineer the upgrade and relocation of twelve Radio and Data Dispatch Centers spread out throughout Afghanistan in support of over 2,000 individual contractors supporting a US Department of State Police Training Program. The project required the subcontracting of several IT and EC technical services to local and international firms.

Working as a systems integrator, NewTel constructed a new dispatch center for San Carlos Apache Indian Reservation Police Department and provided all new EC and IT Systems. Planned and executed the successful relocation of dispatchers from the old to the new dispatch center and the transition from legacy to new technologies.

As a systems integrator and general contractor, NewTel remodeled a dispatch center for the White Mountain Indian Reservation Police Department and oversaw the planning and execution of the dispatch move to a temporary location and from there to the newly remodeled facility.

Our proven experience in managing the relocation of Public Safety dispatch centers has enable us to develop a successful and repeatable “Project Management Process” that we use every time our staff engages in similar projects to achieve success.

Each dispatch center’s relocation project is unique in complexity, but our understanding of this RFP’s SOW signals the need for a repetitive process that can be successfully applied to each of the three phases outlined for this project with minor modifications.

Each time that all EC and IT systems will be relocated from building to building, it will require the same thought process to ensure that all pertinent move tasks are performed in a timely, sequential, and successful manner. Our proven Project Management Methodology will undoubtedly add value to the City of Pismo Beach project.

We anticipate that all or some of the following sample project tasks will be required during each move, and specifically during Phase 1 and Phase 3, which will be directly supported by our project management team.

Attachment 2A

9.C-12Council Agenda 8-1-2023

4 Request for Proposal for Public Safety Information Technology Project Management July 14, 2023

SAMPLE PROJECT TASKS OUTLINE

Task Name:

Project Kickoff Meeting
Periodic Meetings
Detail review of existing IT Design Specifications

Detail review of currently projected requirements for all EC and IT technologies for each building

Review of assigned resources’ qualifications and availability Perform Site Surveys at all selected temporary buildings Coordination with General Contractor (GC) and Architect to review construction plans and to request any specific EC/IT related construction requirements

Coordination with City Agencies from Pismo Beach and Grover Beach Coordination with County Agencies prior to relocation
Coordination with State (CJIS) – PSAP Circuit Relocation

Coordination with potential supporting entities for all Dispatching Backup requirements Plan for systems relocation
Prepare temporary buildings to properly house EC/IT assets

Coordinate Telephony Demarcation relocation at new buildings Create Step-by-Step Migration Plans
Assist and Coordinate Fiber Re-routing

Oversee the implementation and testing of Fiber Optic Interconnects Attachment 2A

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5 Request for Proposal for Public Safety Information Technology Project Management July 14, 2023 Coordinate with IT Manager and Public Safety all proposed Move Schedules Place Equipment Orders (if required)
Ensure equipment racks are properly installed and grounded at new building(s) Ensure AC/DC power is available at new equipment rooms
Ensure completion of IT Equipment relocation and restoration of all services

Identify existing LMR, MW, Console Systems to be relocated to existing and new buildings

Coordinate w/Service Providers Relocation of Phone Circuits Develop Cut Over Plans
Manage Relocation Activities

As required, assist with the modification of existing LMR Licenses with FCC – even if the transmitter sites remain in place, the FCC license will require modification to show the actual location control station at the dispatch center.

Complete successful relocations

2.1 Project Manager Availability
The assigned Project Manager (Teri Maa) is available and ready to begin working upon contract execution.

2.2 Additional Information
Relocation of voice radio, dispatch, and data communication systems required special skills to identify components that will require relocation and proper installation. NewTel has the technical resources to provide such services and could be added to this contract as needed.

NewTel developed the Functional Specifications document for the City of Pismo Beach Police Department’s new Avtec Radio Dispatch Consoles and has previously provided limited emergency radio system repair services, so we are somewhat familiar with the City’s Public Safety radio and dispatch infrastructure.

Attachment 2A

9.C-14Council Agenda 8-1-2023

6Request for Proposal for Public Safety Information Technology Project Management July 14, 2023

3. Cost Proposal
NewTel has performed multiple Scope of Work reviews with the City’s IT Manager since our initial RFP response submittal to solidify our joint understanding of our scope of work. The result of these scope of work reviews redefined the scope for the Public Safety Information Technology Project Management position.

Therefore, our SOW is primarily related to the Public Safety Center’s 911/EC/IT technologies move to 3 temporary locations and assisting with the review of remodel plans for the buildings at 585 Dolliver and 330 Main during Phase 1, and the assessment of the needs of any IT systems added at the temporary locations during construction and the coordination for their respective testing and their respective migrations and testing to the new building, along with the coordination and scheduling of go-live events of systems at the new building.

Our assigned staff will perform all required project management tasks that we described in our sample project task’s outline and any others that may be identified on a per phase basis as we engage on the project to successfully deliver our assigned work.

Therefore, our revised cost estimate is based on a per phase fixed price basis, and not on projected phase durations or a specific number of hours to provide a better value to the City. For billing purposes, we will adhere to our normal billable rate for the PM of $100 per hour, and $125 per hour for the Contract Manager and Technical PM NewTel’s personnel will manage their workload and internally track work hours in a manner that we do not exceed the following per phase fixed cost estimates.

NewTel submit monthly basis for work performed in the previous month.

Fixed Cost Proposal

PHASE TOTAL
PHASE 1 $104,000.00
PHASE 3 $56,000.00
TOTAL $160,000.00
Thank you again for the opportunity to submit this proposal for your consideration.

Should you have any questions, please contact me directly via email at [email protected] or via telephone at (719) 661-7701.

Respectfully
Carlos Delatorre
President and CEO
Attachment 2A

9.C-15Council Agenda 8-1-2023

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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 Interwest Consulting Group, 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:

Plan Review and Inspection for construction of a Public Safety Facility 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, 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 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 four hundred ninety-one thousand, eight hundred ninety-seven dollars, and twenty cents ($491,897.20), unless otherwise first approved in writing by CITY. Should this AGREEMENT be extended pursuant to Section II, 2 of 12
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.

Attachment 3

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

The Building Official 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.

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Vendor Agreement (Rev. 2/2/2018)
services to be performed pursuant to this AGREEMENT shall become the sole property of CITY and may be used, reused, or otherwise disposed of by CITY without the permission of VENDOR. With respect to computer files, VENDOR shall make available to CITY, at VENDOR's office and upon reasonable written request by CITY, the necessary computer software and hardware for purposes of accessing, compiling, transferring, copying and/or printing computer files. VENDOR hereby grants to CITY all right, title, and interest, including any copyright, in and to the documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared by VENDOR in the course of providing the services under this AGREEMENT.

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

XIII. INDEMNIFICATION

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

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

B. Non-design, construction Professional Services:

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

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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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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.

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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.

Attachment 3

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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.

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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 Attachment 3

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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: Matthew Downing
Title: Community Development Director
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:

Interwest Consulting Group, 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
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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 NewTel Consulting LLC (“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:

Information Technology Project Management ServicesIRU3XEOLF6DIHW\)DFLOLW\ VENDOR represents and warrants that it is qualified to perform those services.

AGREEMENT:

I.SERVICES TO BE PERFORMED BY VENDOR
VENDOR will provide the services listed in the Scope of Services attached hereto as Exhibit A.

II.TERM
Unless earlier terminated in accordance with Section IV below, or unless the Scope of Services are substantially completed, the AGREEMENT will continue in full force and effect from the Effective Date through December 31, 2025. 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 sixty thousand dollars ($160,000), unless otherwise first approved in writing by CITY. Should this AGREEMENT be extended pursuant to Section II, VENDOR’s fee may be adjusted upon the written agreement of the parties, in the form of an amendment to this AGREEMENT. 2 of 12
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B. Schedule of Payment
VENDOR will submit invoices monthly for actual services performed and associated expenses.

VII. CITY REPRESENTATIVE
The Information Technology 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 Attachment 4

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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 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

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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.

XIII. INDEMNIFICATION

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

B. Non-design, construction Professional Services:

C. Design Professional Services:

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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.

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

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, 6 of 12
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hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

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

B. Other provisions or requirements:

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

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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.

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.
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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.

Attachment 4

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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.

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.

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

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

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.

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 Attachment 4

9.C-26Council Agenda 8-1-2023

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

XXVIII. VENDOR’S AUTHORITY TO EXECUTE
The persons executing this AGREEMENT on behalf of the VENDOR warrant that:

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: Nadia Feeser
Title: Administrative Services Director
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:

NewTel Consulting LLC
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
Attachment 4

9.C-27Council Agenda 8-1-2023

Pismo Beach City CouncilAugust 1, 2023

Pismo Beach City Council
August 1, 2023