Contract No. 3438
PROFESSIONAL SERVICES AGREEMENT
This Professiona! Services Agreement ("Agreenient"), entered into as of February 20, 2019 ("Execution Date"), by and between the City of Santa Monica ("City") and Fleming Environmental, Inc. ("Consultant"), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. Consultant is qualified to do business, and is doing business, in the State of California. Consultant represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.
C. The City and Consultant now desire to enter into an agreement for Consultant to provide professional services to the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terminates on June 30, 2023 unless sooner terminated in accordance with Section 14.
2. Consultant Services. Consultant will perform all of the services ("Services") described in Exhibit A, Scope of Services. Consultant will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to Consultant any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by Consultant.
4. Compensation. The City will compensate Consultant for the Services performed in an amount not to exceed $80,000, as set forth in Exhibit B.
5. Invoices. Consultant will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
Water Resources Division
City of Santa Monica
1212 5' Street, 3™d Floor
Santa Monica, California 90401
Attention: David Tu
Re: Contract No. 3438
With a copy to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: Susan Cola
Re: Contract No. 3438
6.2 All notices, demands, requests or approvals to Consultant:
Fleming Environmental, Inc.
1372 E. Valencia Drive
Fullerton, California 92831
Attention: Patty Fleming
[email protected]
Re: Contract No. 3438
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint ventures of one another.
Neither the City nor its officers or employees will have any control over the conduct of Consultant or any of Consultant's agents, employees, or sub consultants, except as otherwise provided in this Agreement.
8. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement.
This Agreement may be modified only by written agreement signed by City and Consultant, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, Consultant must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by Consultant or Consultant.'s agents, representatives, employees or sub consultants for the duration of this Agreement. Consultant must obtain insurance that, at a minimum, meets the 2 requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 Indemnification. As to Consultant's Services produced under this Agreement, Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, "City") from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney's fees, or payments for injury to any person or property (collectively, "Losses") caused or claimed to be caused by the acts, errors and/or omissions of Consultant, or Consultant employees, agents, officers, and sub consultants. Consultant's responsibilities under this Section
10.1 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of Consultant, its employees, agents or officers, or sub consultants; provided, however, that Consultant's duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City.
Notwithstanding Consultant's obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from Consultant, if City chooses to do so.
10.2 Enforcement Costs. Consultant agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
11. Prohibition Against Transfers.
11.1 Consultant may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City's consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant or of any general partner or joint venturer or syndicate member of Consultant, if a partnership or joint venture or syndicate exists, which results in changing the control of Consultant, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
12. Permits and Licenses. Consultant, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
3 13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If Consultant fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City's written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to Consultant.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days' written notice to Consultant. Upon termination of this Agreement, City will pay Consultant any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. Consultant must comply with all laws of the State of California and the United States, and all ordinances, rules, and regulations enacted or issued by City.
16. Discrimination. Consultant may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. Consultant may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
18. Records.
18.1 Consultant must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. Consultant must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 Consultant must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles.
Consultant must clearly identify all records and make them readily accessible to the City. At the City's request, Consultant must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 Consultant must allow the City to have free access to Consultant's books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit Consultant.'s records, and Consultant agrees to cooperate with any examination or audit of its records. If a City audit discloses an error of 5% or 4 more in information reported by Consultant, Consultant agrees to pay the cost of the City's audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19. Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by Consultant or any subconsultant for this Agreement will be the exclusive property of City. No work product given to or prepared by Consultant or any subconsultant pursuant to this Agreement may be made available to any individual or organization by Consultant without prior written approval by City.
19.2 At the City's request, Consultant must furnish reports concerning the status of the Services.
20. Standard of Care. Consultant agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of Consultant's profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If Consultant proposes to have any subconsultant perform any part of the Services, Consultant must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant's services. The City, in its sole discretion, may grant or deny the request.
21.2 Consultant will be responsible for the quality of any subconsultant's work. Every subcontract or agreement of any kind entered into between Consultant and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 3438 entered into between the City of Santa Monica and Consultant on
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and Consultant agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement. 5 24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
25. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
CITY OF SANTA MONICA,
ATTEST: a municipa/corporation
Lick Ol
Denisé Anduam Man By:
DENISE ANDERSON-WARREN
City Clerk City Manager
APPROVED AS TO FORM:
LANE DILG
City Attorney
Fleming Environmental, Inc.
By: A
Name: Terry I. Fleming it.,
Title: President
6 Exhibit A
Scope of Services
1. Monthly Designated Operator Inspections
Fleming Environmental, Inc. shall conduct monthly visual inspections of underground storage tank systems at City facilities including:
• Big Blue Bus (BBB) - 1620 6*h Street
• Corporate Yard (Fleet Services) - 2500 Michigan Avenue • Fire Stations:
• Fire Station #1 - 1444 7' Street (City shall notify the Consultant in a timely fashion as to any scope changes required due to relocation / construction of new Fire Station #1 at 1337 7% Street during the term of this agreement).
• Fire Station #2 - 222 Hollister Avenue
• Fire Station #3 - 1302 19th Street
• Fire Station #5 - 2450 Ashland Avenue
• Public Safety Facility - 333 Olympic Drive
• Santa Monica Airport (Aeroplex) - 2501 Airport Avenue The City may opt to add/delete sites as required during the term of this contract at pricing adjustments mutually acceptable to the City and Consultant. Monthly visits shall be coordinated with City staff prior to performing inspections. The results of each inspection shall be recorded on a monthly inspection report form provided by the City.
The inspection report includes the following:
- Components where an alarm has occurred in the past month. Components where an alarm has occurred within the past month must be visually inspected regardless of the existence of a service record (including fill and piping containment sumps, transition sumps, vent boxes, and annular space).
- Rubber gaskets for fill and vapor recovery fill caps and covers. These items shall be inspected and replaced when necessary.
Power, warning, and alarm bulbs. These items shall be inspected and replaced when necessary.
- Boots and hoses shall be visually inspected for tears and replaced when necessary.
A copy of the monthly inspection report shall be left on site with the Tank Operator and a copy shall be provided to the Water Resources Protection Program within 72 hours of performing the inspection. A spare roll of paper shall be left at each location, if necessary. 7 Inspectors conducting monthly visual inspections must:
- Possess a current International Code Council (ICC) certificate indicating he/she has passed the California UST System Operator exam.
- Possess a Level 1 Veeder-Root certification.
2. Employee Training
Fleming Environmental, Inc. shall provide facility employee training in the proper operation and maintenance of underground storage tank systems. Training shall be conducted a minimum of twice per year at the BBB, Corporate Yard, Public Safety Facility, and Aeroplex. Facility employee training shall be conducted a minimum of three times per year at Fire Stations 1, 2, 3, and 5 to accommodate the established shift schedule.
3. General Maintenance and Repair
Fleming Environmental, Inc. shall be responsible for performing general maintenance and repair on all tank systems. Consultant is required to have proper certifications for general maintenance and repair including ICC Certification for both Service Technician and Installer, Vapor Recovery System Installation and Repair, and various equipment as required by the City. Any modifications/repairs made to the tank system outside of the monitoring certification is subject to additional permitting by the Santa Monica Fire Department (SMFD). Permit authorization from the SMFD is required prior to any on-site activity. Written documentation detailing the condition that requires repair/replacement, the scope of work, and identification of primary technician with appropriate certifications and other on-site personnel shall be submitted to the SMFD for review and approval. Non- emergency maintenance/repair shall be scheduled between Monday-Thursday. As a follow- up, Consultant shall provide a work order documenting that the maintenance/repair is complete. If the scope of work involves any components subject to a monitoring certification, an abbreviated monitoring certification shall be required. A representative from the SMFD may arrive at any time to confirm compliance with the scope of work.
Depending on the scope of work, an on-site inspection may be required after the work is completed if not coordinated as part of the service call. If work involves entry into a sump at least two (2) persons must be on-site; proposed date/time for on-site); proposed date/time for on-site activity (non-emergency maintenance / repair shall be scheduled between Monday-Thursday); as a follow-up, provide a work order documenting completed activity. If the scope of work involves any components subject to a monitoring certification, an abbreviated monitoring certification will be required. A representative from the SMFD may arrive at any time to confirm compliance with the scope of work.
Depending on the scope of work, an on-site inspection may be required after the work is completed if not coordinated as part of your service call. 8 4. Secondary Containment Testing Work Plan
Fleming Environmental, Inc. shall prepare a secondary containment testing work plan for each testing location in accordance to guidelines provided by the City. The work plan shall be submitted for approval by the Santa Monica Fire Department (SMFD) by 60 days prior to the testing date.
5. Secondary Containment Testing
Fleming Environmental, Inc. shall perform secondary containment testing for underground storage tanks (USTs) at various City facilities every three years, with the first scheduled testing to occur on or about January 2019 as directed by the City, including:
a) Big Blue Bus
b) Corporate Yards
c) Fire Stations 1, 2, 3, and 5
d) Public Safety Facility
e) Santa Monica Airport (Aeroplex)
Secondary containment testing shall be conducted according to the work plans submitted to and approved by the SMFD. Test results shall provide sufficient detail documenting any failures and/or necessary repairs and shall be reported on the Secondary Containment Testing Report Form provided by the City.
In addition to testing, Consultant shall clean all sumps, under dispenser containments, transition boxes, and spill buckets; provide a detailed map of components subject to testing; and ensure secondary containment components are clearly labeled.
6. Limited Same Day Maintenance/Repair Services
Fleming Environmental, Inc. shall provide limited same-day maintenance and repair services as requested and approved by the City to ensure satisfactory completion of the test where reasonable to include test boots at an additional cost for time and materials.
7. Reports and Repair Estimates
Fleming Environmental, Inc. shall document all services and repair work performed and provide a written report to City staff for each site visit including service date, technician name, facility location, discrepancies detected and corrective repairs recommended or completed. A written estimate shall be provided to City staff prior to proceeding with any additional recommended repair work. 9 8. Work Hours, Scheduling and Urgent Repair Requests and Response Time UST services may be required on a 24/7 basis. Fleming Environmental, Inc. shall coordinate work schedules in advance with the City to ensure proper site /equipment access on City property, safety and security. Consultant commits to responding to a Santa Monica or West Los Angeles work site within 24 hours of notice of an urgent repair request by City staff.
9. Contractor's License / Registration with the State of California Department of Industrial Relations
Fleming Environmental, Inc. shall maintain a valid California State Contractor's License (currently with General Engineering "A" and General Contractor "B" classifications; and Hazardous Substances Removal certification) during the term of this agreement. Consultant shall maintain a valid registration as a Public Works contractor on the Department of Industrial Relations website:
http://www.dir.ca.gov/PublicWorks/PublicWorks.html during the term of this agreement.
10. Prevailing Wage/ Certified Payroll Records
Certified payroll records and related prevailing wage project documentation for all work completed under this agreement shall be submitted per the following:
1) Electronically via the State Department of Industrial Relations' electronic Certified Payroll Reporting (eCPR) system;
2) Via hardcopy to the City's prevailing wage monitoring contractor, currently:
Gafcon, Inc.
Attn: Lizette Santillan
660 S. Figueroa Street, Ste. 1790
Los Angeles, CA 90017
3) If requested, to Water Resources/Wastewater Division staff.
Invoice payments will not be released by the City until certified payroll records and related prevailing wage project documentation have been submitted. The City shall notify Fleming Environmental, Inc. of any changes to the contact information for the City's prevailing wage monitoring contractor. The Consultant shall notify the City in writing prior to beginning work if job classifications other than Laborer (Group 1) will be used for any work under this agreement. Consultant shall observe all applicable California Labor Code regulations pertaining to prevailing wage projects (e.g. posting of prevailing wage project notices at job site, usage of apprentices, work hours limited to 8 hours per weekday 10 before overtime must be paid, etc.) including Sections 1771, 1774-1776, 1777.5, 1813 and 1815.
11. Invoices
Invoices shall include:
• Date(s) of work;
• Description and location(s) of the work completed (indicate costs by location so the City may allocate charges to the correct department/division account); • Itemized list of prevailing wage work hours completed to include prevailing wage job classification(s), staff names, date(s) of work, hours worked per day, overtime hours worked per day (if applicable) and billable rates in order for the City to compare to certified payroll records. Hourly rates and pricing shall include certified payroll record submittals and vehicle/transportation costs at no extra charge to the City (excepting administrative staff billable hours). • Reimbursable materials and services with markup charge(s), including copies of invoices paid by the Consultant, if the City does not provide as noted below; • Shipping/handling/delivery charges, if applicable; and • Taxes, if applicable.
Invoices for the Santa Monica Airport Aeroplex site only shall be sent directly to:
Aeroplex/Aerolease Group
3333 E. Spring Street, Suite 204
Long Beach, CA 90806
Attn: Luis Trujillo, Facilities Manager
[email protected]
12. Materials and Equipment
All materials used under this agreement are subject to City approval by the Wastewater Division and Santa Monica Fire Department. The City may opt to provide the Consultant with materials and equipment for work performed under this agreement; if not, the Consultant shall provide.
13. Waste Materials Disposal
Fleming Environmental, Inc. shall remove any trash and waste materials generated by work performed unless otherwise specified by Wastewater staff. Materials shall be disposed of properly in compliance with all Federal, State and local regulations. 11 14. Warranty
Fleming Environmental, Inc. shall provide a materials warranty of one year on parts, unless an exception is approved in advance by the City; and a labor warranty of 30 days from the date of service/repair.
Exhibit B
Budget
Year Fiscal Year / Dates (Inclusive) Budget Available
1 Fiscal Year (FY) 2018/19 Amount shall not exceed $40,000. (Contract execution date to June 30, 2019)
2 FY 2019/20 Amount shall not exceed $20,000.
July 1, 2019 to June 30, 2020)
3 FY 2020/21 Amount shall not exceed $20,000.
July 1, 2020 to June 30, 2021)
4 FY 2021/22 Any unspent funding up to $80,000 total
July 1, 2021 to June 30, 2022) Any unspent fundra vil to 580,000 otal 5 FY 2022/23
July 1, 2022 to June 30, 2023) contract value.
Any unspent amount for each year may be made available in the subsequent year(s), at the sole and complete discretion of the City and subject to budgetary approval. The total amount of compensation shall not exceed the sum of $80,000.
Pricing
Item / Service Year 1 Year 2 Year 3 Year 4 Year 5
Price Increase N/A 3% 3% 3% 3%
Recurring Services by Fiscal Year & Location
Big Blue Bus - 1620 6" Street
Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (2x per year)
Secondary Containment $1,650.00 $1,803.00
Testing
Corporate Yards (Fleet Services) - 2500 Michigan Avenue Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (2x per year)
Secondary Containment $3,750.00 $4,097.73
Testing
12 Fire Station #1 - 1444 7' Street
Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (3x per year)
Secondary Containment $1,850.00 $2,021.54
Testing
Item / Service Year 1 Year 2 Year 3 Year 4 Year 5
Fire Station #2 - 222 Hollister Avenue
Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (3x per year)
Secondary Containment $1,450.00 $1,584.45
Testing
Fire Station #3 - 1302 19th Street
Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (3x per year)
Secondary Containment $1,850.00 $2,021.54
Testing
Fire Station #5 - 2450 Ashland Avenue
Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (3x per year)
Secondary Containment $1,850.00 $2,021.54
Testing
Public Safety Facility - 333 Olympic Drive
Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (3x per year)
Secondary Containment $1,450.00 $1,584.45
Testing
Santa Monica Airport - Aeroplex - 2501 Airport Avenue
(Bill To: Aeroplex - 3333 E. Spring Street, Suite 204, Long Beach, CA 90806) Designated Operator $1,680.00 $1,730.40 $1,782.31 $1,835.78 $1,890.85 Inspections (monthly) / ($140.00/mo) ($144.20/mo) ($148.53/mo) ($152.98/mo) ($157.57/mo) Training (3x per year)
Secondary Containment $1,450.00 $1,584.45
Testing
As-Needed Repairs and Services - Hourly Billable Labor Rates Job Classification Year 1 Year 2 Year 3 Year 4 Year 5
Project Manager $125.00 $128.75 $132.61 $136.59 $140.69 Electrician $140.00 $144.20 $148.53 $152.98 $157.57
Laborer $110.00 $113.30 $116.70 $120.20 $123.81
General Admin $75.00 $77.25 $79.57 $81.95 $84.41
Overtime Rate* $165.00 $169.95 $175.05 $180.30 $185.71
Other Charges
13 Materials / Parts To be quoted individually and pre-approved by City staff.
Travel time to site for
service calls or to pick
To be charged at rates listed above with pre-approval of City staff. up parts related for
repairs
Hourly rates include all overhead and administration, compliance with prevailing wage/certified payroll submittal requirements (including hard copy submittals to the City's prevailing wage monitoring consultant), benefits and profit.
*Overtime is applicable to work completed above 8 hours per day Monday through Friday or before 7 a.m. and after 5 p.m.; and all Saturday/Sunday hours.
Payment Terms: Net 30.
14 Exhibit C
Insurance Requirements and Verifications
Environmental Consultants/Contractors Insurance Requirements Consultant/Contractor (hereinafter referred to as "Consultant") shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: Workers' Compensation insurance as required by the State of California, with Statutory Limits and Employers' Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #I).
4. Professional Liability: Insurance appropriate to the Consultant's profession with a limit of not less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate.
5. Pollution Liability: Insurance appropriate to the work being performed under this Agreement, with a limit of not less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate.
If the Consultant maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to any broader coverage and higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant 15 including materials, parts, or equipment furnished in connection with such work or operations. CL coverage can be provided in the form of an endorsement to the Consultant's insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of a combination of (1) CG 20 10, CG 2026, CG 20 33, or CG 20 38 and (2) CG 20 37).
b. Primary Coverage: For any claims related to this Agreement, the Consultant's insurance shall be primary coverage at least as broad as Insurance Services Offices Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it.
c. Transportation Pollution Liability: The Automobile Liability policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by the Consultant pursuant to this Agreement. This coverage may also be provided through the Pollution Liability policy.
d. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica. e. Waiver of Subrogation: Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Santa Monica for all work performed by the Contractor, its employees, agents and subcontractors.
Self-Insured Retentions
Self insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
16 Claims Made Policies
1. If the Professional Liability or Pollution Liability policy provides "claims made" coverage:
a. The Retroactive Date must be shown and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained, and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another "claims made" policy form with a Retroactive Date prior to the effective Agreement date, the Consultant must purchase "extended reporting" coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers' Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City's Workers' Compensation Coverage Exemption Declaration Form.
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