PISMO BEACH CITY COUNCIL STAFF REPORT
Agenda Item #9.I
Meeting Date: February 6, 2024
TITLE:
Agreement with Matrix Consulting Group, Ltd., for Operational Review and Assessment of the Public Works Department
RECOMMENDATION:
Adopt a Resolution authorizing the City Manager to enter into a Professional Services Agreement with Matrix Consulting Group, Ltd., in the amount of $58,000 for an Operational Review and Assessment of the Public Works Department, and Appropriating Related Budget Adjustments in Fiscal Year 2024.
DISCUSSION:
The City of Pismo Beach Public Works Department is comprised of three divisions:
Engineering, Utilities, and Public Facilities. Over the years, the department has been restructured and staffing has been adjusted to meet the needs of the community at those times. As the City prepares to potentially serve as the operating staff for Central Coast Blue, and to ensure the department meets the current and long-term needs of the City, staff proposes that an Operational Review and Assessment be completed.
The work product will include a current state assessment of the department, analysis and findings in work practices, policies, and procedures, service levels, customer service, operations, and use of technology. This analysis will provide the City with insights into opportunities for future improvement so that the department will be prepared to deliver the highest quality service, in alignment with City Goals.
A Request for Proposals (RFP) was released and qualified proposals were submitted to the City. After review and consideration, Matrix Consulting Group Ltd. (proposal provided as Attachment 1.A) was selected as the most qualified to meet the needs of the City.
Conclusion and Recommendation
Staff recommends that the City Council adopt a Resolution (Attachment 1) authorizing the City Manager to enter into a Professional Services Agreement (Attachment 2) with Matrix Consulting Group, Ltd., in the amount of $58,000 to complete an Operational Review and Assessment of the Public Works Department.
FISCAL IMPACT:
The fiscal impact of approving the attached Resolution is $58,000. Staff recommends that Council transfer $58,000 from the FY 2024 General Fund Next Level Service budget contract services account to the General Fund City Manager’s Office professional services account budget to support the cost of the agreement.
Council Agenda 2-6-2024 9.I-1
ATTACHMENTS:
1. Resolution
1.A. Exhibit A to Resolution: Scope of Services
2. Proposed Matrix Consulting Group contract
Submitted by:
Jorge Garcia, City Manager
City Manager Approval:
Council Agenda 2-6-2024 9.I-2
RESOLUTION NO. R-2024-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 MATRIX CONSULTING GROUP LTD. IN THE AMOUNT OF $58,000 FOR AN OPERATIONAL REVIEW AND
ASSESSMENT OF THE PUBLIC WORKS DEPARTMENT, AND APPROPRIATING RELATED BUDGET ADJUSTMENTS IN FISCAL YEAR 2024
WHEREAS, the City of Pismo Beach delivers critical services to the community through its Public Works Department; and
WHEREAS, in order to ensure that the department is structured to meet the current and future needs of the City, staff proposes that an operational review and assessment be conducted; and
WHEREAS, this project will include a current assessment of the department, analysis and finding in work practices, policies, procedure, and use of technology to ensure the highest level of service to the community; and
WHEREAS, an RFP for the assessment was advertised and the proposal from Matrix Consulting Services, Ltd. was evaluated and selected by a review panel.
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 Matrix Consulting Group, Ltd. in the amount of $58,000 for Operational Review and Assessment of the Public Works Department (scope provided as Exhibit A).
BE IT FURTHER RESOLVED that the City Council of the City of Pismo Beach hereby de-appropriates $58,000 from the General Fund Next Level Services budget and appropriates $58,000 in the General Fund City Manager’s Office professional services account budget to support this agreement in Fiscal Year 2024.
UPON MOTION OF Council Member , seconded by Council Member , the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 6th day of February 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Council Agenda 2-6-2024 9.I-3
Attachment 1
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Pismo Beach, California, on _______________________. ________________________
Erica Inderlied, City Clerk
Council Agenda 2-6-2024 9.I-4
Attachment 1
Proposal to Conduct a Public Works Dept. Operational Review and Assessment Matrix Consulting Group 13
4 Statement of Understanding and Scope of Work
This section of our proposal includes an overview of our project understanding followed by a detailed task plan.
Project Understanding
The project will include an operational review and assessment of the City of Pismo Beach Public Works Department with the goal to further promote an environment of continuous improvement centered on core public works best management practices.
This assessment will include the operations, staffing, and organizational structure of the Department and its primary divisions of Engineering, Public Facilities, and Utilities.
Project Task Plan
The following task plan outlines our proposed project task plan to conduct an organizational review and assessment of the Public Works Department.
Task 1 Project Kickoff
In this task, the project team will hold a virtual project initiation and kickoff meeting with the City’s project steering committee and appropriate departmental and divisional personnel. During this kickoff, the City will share the study goals and desired scope of service objectives. The project team will review the proposed task plan and schedule. As a result of this project initiation, the project team will finalize the project schedule, data collection instrument, and updated project task plan (if necessary). Then we will begin scheduling initial staff interviews.
Task Deliverable – The project team will develop a kickoff meeting agenda and provide a project schedule, data collection list, and updated work plan (if necessary) to the City’s project coordinator(s) and schedule initial interviews with staff.
Task 2 Develop an Existing Condition Assessment
To evaluate the department operations, processes, and work practices, we need to develop an in-depth understanding of the key issues impacting and shaping service requirements both internally and externally. To develop this perspective, we will conduct interviews with staff, management and internal stakeholders who are involved in various activities of the department. These interviews will focus on understanding and documenting the following areas:
Council Agenda 2-6-2024 9.I-5
Attachment 1.A
Proposal to Conduct a Public Works Dept. Operational Review and Assessment Matrix Consulting Group 14
•Adequacy of service levels and gaps in existing levels of service. • Goals and objectives for the delivery of services for each division. • Document technical skill set, training, and certifications of staff. • Adequacy of management systems and technology and the extent to which managers utilize this information to make meaningful service decisions. • Outsourcing philosophy of the department, the services that are currently outsourced/contracted and additional candidates for alternative service delivery to meet peak workload demands.
• Identification of relevant workload for staff in each functional area. • Understand the current technology systems and utilization.
Next, we will develop a detailed description of the services provided the Department. Our focus will be on how services are delivered, staffed, and managed, as well as the costs associated with the delivery of those services. The development of this detailed description will be based on interviews as well as on the collection of operating information and data, including the following:
• The current organization of the Department.
• Documentation of all key operations:
–Service scope and content.
–How staff are scheduled and deployed.
–Workload data and base service levels.
–The extent of any contracted services by type, size, and cost. • Documentation of management systems to support divisional operations:
– Organizational business processes and procedures; and – Performance monitoring systems.
• Document current performance targets related to major services areas. • Document the current coordination mechanisms and procedures in place to coordinate service delivery among different departments and divisions.
Council Agenda 2-6-2024 9.I-6
Attachment 1.A
Proposal to Conduct a Public Works Dept. Operational Review and Assessment Matrix Consulting Group 15
Once initial data collection activities have been completed, the project team will prepare a document that presents our understanding of the current organization, staffing, and operations.
Task Deliverable – A current state assessment summarizing the current organizational structure, staffing levels, roles, workload, management systems and technology used by the department.
Task 3 Conduct an Operational Assessment
In this task, our project team will utilize a best management practices assessment to evaluate processes, policies, use of technology, management planning, and the general operations of the department. We will address these issues by employing several different approaches, such as those outlined below:
•Best Management Practice (BMP) Assessment: The best practice assessment will include the identification of areas where the Department currently meets the best practice and more importantly, the analysis will identify areas where current gaps and shortcomings exist and therefore present opportunities for improvement of existing operations. We have developed a comprehensive list of best practices from organizations including the American Public Works Association (APWA). The best practice assessment will begin to clearly identify operational issues and will provide the baseline information for the APWA Self-Assessment process.
The BMP assessment will include practices specific to each of the operational areas and divisions as well as departmental management practices related to purchasing and personnel.
• Evaluate the adequacy of major work practices. This analysis will include the review of departmental and divisional workload. Additional analysis will focus on the identification of opportunities to streamline internal processes and assignments as well as work practices to increase productivity and/or enhance their effectiveness. Also, we will identify the degree to which key projects or work tasks are not being accomplished due to lack of staff and assess the extent to which tasks could be absorbed through streamlining of work process, if at all.
Analysis will also focus on defining specific roles of various staff each division and updating corresponding job duties if needed. Process diagrams will be revised if significant process reengineering is recommended.
•Evaluate customer service including internal and external customers. The project team will analyze the level of service provided to both internal and external Council Agenda 2-6-2024 9.I-7
Attachment 1.A
Proposal to Conduct a Public Works Dept. Operational Review and Assessment Matrix Consulting Group 16
customers. The project team will address coordination between divisions for the various business processes and approach used for public outreach and education. •Evaluate current technology systems. This task will focus on understanding and assessing current technology systems utilized by the Department. The project team will evaluate the current software suites to evaluate how effectively all functionalities of the software have been implemented, degree to which GIS is implemented and utilized, how mobile and handheld devices are used in the field, and the degree to which current systems result in efficient information-sharing and elimination of duplicative input. We will also evaluate how proposed changes to the use of technology may impact efficiencies and operations and identify any current issues related to accessibility and training related to the use of technology.
In conjunction with earlier interviews and data collection, the project team will, at this juncture, be able to evaluate the operations of the Department as compared to industry best management practices.
Task Deliverable – A summary of the analysis and key findings in work practices, policies and procedures, service levels, customer service, operations, and use of technology in the Public Works Department.
Task 4 Conduct a Staffing and Organizational Assessment This task involves an evaluation of workload, staffing levels, management practices and the organizational structure. We will evaluate these areas by employing several different approaches, such as those outlined below:
•Evaluate staff resources. In this analysis, we will evaluate the existing and projected workload to identify the staffing resources needed to complete these work tasks in respect to desired service levels. This will include a review of both internal and contracted staffing resources.
This task will review any training programs in place and identify any gaps in skills sets of staff and staff training needs to improve department operations. Per the objectives outlined in the RFP, this will include identification of resource(s) and/or training needed for the APWA Self-Assessment process and possible accreditation.
The staffing assessment will also include a task to identify the staffing resources necessary should the City be the operator of Central Coast Blue, a major regional recycled water project that will include construction of an Advanced Water Council Agenda 2-6-2024 9.I-8
Attachment 1.A
Proposal to Conduct a Public Works Dept. Operational Review and Assessment Matrix Consulting Group 17
Purification Facility to treat wastewater from Pismo Beach and the South San Luis Obispo County Sanitation District.
•Assess how the department is organized. The project team will evaluate the plan of organization for the department and each primary work group. We will utilize several principles in the evaluation of organizational structure including:
–Does the approach to organizing development foster accountability and are supervisor spans of control appropriate and consistent? –Does the current organizational structure provide adequate communication and coordination and enhance shared knowledge?
–Do the plans of organization enable staff to provide better public service? –Is there consistency among organizational structure, employee classification, and roles and responsibilities between divisions and departments?
The result of this analysis will be a proposed organizational structure highlighting any changes (if necessary) for the Public Works Department. •Evaluate management practices. The project team will evaluate how best practices are implemented and monitored, the extent to which managers are implementing effective asset management techniques, effective operational practices, identifying needed training for employees, and implementing, tracking, and reporting on performance measures.
At the conclusion of this task the project team will have evaluated the staffing, structure, and management of the Department.
Task Deliverable – A summary of the analysis and key findings in organizational structure, staffing allocation and resources, and management practices.
Task 5 Operational Review and Assessment Report
Once the work tasks noted above have been completed, our analysis, findings, and conclusions will be documented and reviewed with the project steering committee and City leadership. The draft and final reports will contain the following elements:
• An executive summary that includes the recommendations with implementation plans for each showing the priority, lead entity for recommendation implementation, timeframe, and any cost/savings.
Council Agenda 2-6-2024 9.I-9
Attachment 1.A
Proposal to Conduct a Public Works Dept. Operational Review and Assessment Matrix Consulting Group 18
• Detailed analysis of the staffing and operations of the Public Works Department along with recommendations to improve the current approaches. Identification of improvement opportunities relating to philosophies and commitments of the department, staffing required given these commitments, and managerial and operational practices for improved service delivery.
Once the City has reviewed the draft final report and implementation timeframe and provided input, we would develop the final report. We will be available to make a presentation of our findings and recommendations to the City Manager and/or City Council.
Task Deliverable – The product of this task would be the draft and final reports including an implementation plan.
Task 6 Corporation Yard Master Plan (Optional Future Task) The RFP also included information regarding an optional future task to evaluate the condition of City facilities located at the Cooperation Yard, assess their ability to meet the needs of current services, anticipate growth and future needs, analyze gaps in delivering services and create an action plan to ensure the effectiveness in delivering services to the community for the next thirty years by including a ten-, twenty, and thirty-year needs assessments.
While a detailed scope is to be defined at a future date, we have included the appropriate team members to accomplish this task that is to include:
• Mapping and identifying existing uses of existing buildings, infrastructure and assets.
• Identifying necessary use of space and potential new buildings that may be required.
Depending on the exact scope, we also have several architectural firms we frequently partner with on space planning studies to develop the site plans, layouts, floor plans, and elevations.
No estimated hours or fees have been included in the proposal for this optional task.
Council Agenda 2-6-2024 9.I-10
Attachment 1.A
Proposal to Conduct a Public Works Dept. Operational Review and Assessment Matrix Consulting Group 19
5 Schedule
We have proposed a work plan that would complete the assessment over a 20-week time period. The following graphic outlines the proposed project schedule.
Week
Task 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
1. Project Kickoff
2. Existing Conditions
3. Operations
4. Staffing Assessment
5. Draft & Final Report
Deliverables associated with each task will be provided at the conclusion of the task.
Council Agenda 2-6-2024 9.I-11
Attachment 1.A
January 18, 2024
Jorge E. Garcia, City Manager
City of Pismo Beach
760 Mattie Road
Pismo Beach, CA 93449
Dear Mr. Garcia:
The Matrix Consulting Group proposed to conduct an organizational review and assessment of the City of Pismo Beach’s Public Works Department for $58,000. The following table shows for each task the estimated hours required at each classification.
Task
Sr. Vice
President
Vice
President
Mgr./
Subcons.
Sr.
Consultant
Total
Hours
Total
Fee
Project Kickoff 1 4 2 2 9 $1,925
Existing Condition Assessment 2 8 32 32 74 $13,650
Operational Assessment 2 8 32 32 74 $13,650
Staffing Assessment 2 8 32 24 66 $12,450
Draft and Final Report 4 16 24 24 68 $13,300
Total Hours 11 44 122 114 291
Hourly Rate $325 $225 $200 $150
Total Professional Fees $3,575 $9,900 $24,400 $17,100 $54,975 Travel Expenses $3,025
Total Project Cost $58,000
We bill monthly for actual time and expenses incurred in providing services. If desired, we are amendable to a payment schedule based upon completion of each deliverable outlined in our task plan.
I can be reached at the address and phone number listed below, or via email at [email protected].
Richard Brady, President
Matrix Consulting Group, Ltd.
matrix
consulting group
Council Agenda 2-6-2024 9.I-12
Attachment 1.A
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 Matrix Consulting Group, Ltd. (“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:
Operational review and assessment of the Public Works Department 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 December 31, 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 fifty eight thousand dollars ($58,000.00), 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.
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.
Council Agenda 2-6-2024 9.I-13
Attachment 2
VII. CITY REPRESENTATIVE
The Assistant City 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 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.
Council Agenda 2-6-2024 9.I-14
Attachment 2
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.
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 Council Agenda 2-6-2024 9.I-15
Attachment 2
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 of any kind that has not been first submitted to CITY and approved of in writing by CITY’s Risk Manager or City Attorney.
Council Agenda 2-6-2024 9.I-16
Attachment 2
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.
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.
Council Agenda 2-6-2024 9.I-17
Attachment 2
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 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.
Council Agenda 2-6-2024 9.I-18
Attachment 2
CITY:
City of Pismo Beach, a Municipal Corporation
Signed:
Name: Mike James
Title: Assistant City Manager
Dated: ________________________________
Signed:
Name: Jorge E. Garcia
Title: City Manager
Dated: ________________________________
Address for giving notice (See Section XVIII):
760 Mattie Road, Pismo Beach, CA 93449
ATTEST:
Signed:
Name: Erica Inderlied
Title: City Clerk
APPROVED AS TO FORM:
Signed:
Name: David M. Fleishman
Title: City Attorney
VENDOR:
Matrix Consulting Group, Ltd.
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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Council Agenda 2-6-2024 9.I-19
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Attachment 2
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Exhibit B
Council Agenda 2-6-2024 9.I-30
Attachment 2