CC 2017-02-14_09i Agreement_Corp Yard Stormwater Improvements
MEMORANDUM
TO: CITY COUNCIL
FROM: GEOFF ENGLISH, PUBLIC WORKS DIRECTOR
BY: JILL MCPEEK, CAPITAL IMPROVEMENT PROJECT MANAGER
SUBJECT: CONSIDERATION TO APPROVE AN AGREEMENT FOR
CONTRACTOR SERVICES WITH APODACA PAVING FOR THE
CORPORATION YARD STORMWATER IMPROVEMENTS PROJECT,
PW 2016-14
DATE: FEBRUARY 14, 2017
RECOMMENDATION:
It is recommended the City Council:
1. Approve the construction plans and specifications for the Corporation Yard
Stormwater Improvements Project, PW 2016-14;
2. Find that the project is categorically exempt from CEQA pursuant to CEQA
Guidelines Section 15301(c);
3. Direct the City Clerk to file a Notice of Exemption;
4. Transfer $10,865 from the Public Works Administration Operating Fund to the
Corporation Yard Stormwater Improvements Project, PW 2016-014;
5. Approve an Agreement for Contractor Services with Apodaca Paving in the
amount of $26,449.60;
6. Authorize the Interim City Manager to approve change orders up to 10% of the
contract amount in the amount of $2,644.96 for additional work and/or
unanticipated costs during construction (total contract costs = $26,449.60 +
$2,644.96 = $29,094.56; and
7. Authorize the Mayor to execute the Agreement for Contractor Services.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The amended Capital Improvement Program Budget includes $21,800 for capital
improvement projects to improve stormwater protection mandates at the Corporation
Yard. The engineer’s estimate for the project was $21,100. The total cost of the project
including design, construction inspection and contingencies is estimated at $32,665. In
Item 9.i. - Page 1
CITY COUNCIL
CONSIDERATION TO APPROVE AN AGREEMENT FOR CONTRACTOR SERVICES
WITH APODACA PAVING FOR THE CORPORATION YARD STORMWATER
IMPROVEMENTS PROJECT, PW 2016-14
FEBRUARY 14, 2017
PAGE 2
addition, $10,000 was carried over from FY 2015/16 for operational items related to
stormwater compliance. It is recommended that this funding be utilized to augment the
project. Staff time will be necessary to provide oversight during project construction.
BACKGROUND:
The City has adopted a Stormwater Management Program (SWMP) to comply with
mandatory requirements of the U.S. Environmental Protection Agency (EPA) National
Pollutant Discharge Elimination System (NPDES) Phase II Final Rule and the State
Water Resources Control Board Water Quality Order No. 2003-0005-DWQ, NPDES
General Permit No. CA CAS000004, "Waste Discharge Requirements for Stormwater
Discharges from Small Municipal Separate Storm Sewer Systems" (MS4 General
Permit). Best Management Practice M04 (BMP M04) of the SWMP requires that a
Stormwater Pollution Prevention Plan (SWPPP) and Self-Inspection Checklists be
developed for the City’s Corporation Yard to reduce pollutants in stormwater runoff and
prevent the discharge of pollutants from the City’s Corporation Yard. The subject project
was identified as an opportunity to improve the Corporation yard’s effectiveness at
protecting water resources by reducing the amount of sediment and loose particles that
flow to the drainage system.
ANALYSIS OF ISSUES:
On November 21, 2016, requests for quotations (RFQs) were distributed to local paving
contractors to perform the subject project. On December 8, 2016, two quotes were
received. The lowest quote, $26,449.60 from Apodaca Paving was deemed responsive
and staff recommends award of a construction contract to Apodaca Paving accordingly.
Work is expected to begin in February 2016 and be completed by March 2016.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Approve an Agreement for Contractor Services with Apodaca Paving for the
Corporation Yard Stormwater Improvements Project;
2. Do not approve the agreement; or
3. Provide direction to staff.
ADVANTAGES:
The project is consistent with the City’s adopted SWMP to reduce pollutants in its storm
water runoff. The project is consistent with the Council goal to support City
infrastructure.
DISADVANTAGES:
No disadvantages have been identified.
Item 9.i. - Page 2
CITY COUNCIL
CONSIDERATION TO APPROVE AN AGREEMENT FOR CONTRACTOR SERVICES
WITH APODACA PAVING FOR THE CORPORATION YARD STORMWATER
IMPROVEMENTS PROJECT, PW 2016-14
FEBRUARY 14, 2017
PAGE 3
ENVIRONMENTAL REVIEW:
The project is categorically exempt from the California Environmental Quality Act
(CEQA) pursuant to Guideline Section 15301(c) for the minor alteration of existing
highways, streets and similar facilities.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
Attachments:
1. Bid Opening Log Sheet
2. Notice of Exemption
Item 9.i. - Page 3
Page 1
AGREEMENT FOR CONTRACTOR SERVICES
THIS AGREEMENT is made and effective as of February 14, 2017, between
APODACA PAVING (“Contractor”), and the CITY OF ARROYO GRANDE, a Municipal
Corporation (“City”). In consideration of the mutual covenants and conditions set forth
herein, the parties agree as follows:
1.TERM
This Agreement shall commence on February 14, 2017 and shall remain and
continue in effect until July 31, 2017, unless sooner terminated pursuant to the
provisions of this Agreement.
2.SERVICES
Contractor shall perform the tasks described and comply with all terms and
provisions set forth in Exhibit “A”, attached hereto and incorporated herein by this
reference.
3.PERFORMANCE
Contractor shall at all times faithfully, competently and to the best of his/her
ability, experience and talent, perform all tasks described herein. Contractor shall
employ, at a minimum generally accepted standards and practices utilized by persons
engaged in providing similar services as are required of Contractor hereunder in
meeting its obligations under this Agreement.
4.AGREEMENT ADMINISTRATION
City’s Public Works Director, Geoff English shall represent City in all matters
pertaining to the administration of this Agreement. Marc Apodaca shall represent
Contractor in all matters pertaining to the administration of this Agreement.
5.PAYMENT
The City agrees to pay the Contractor in accordance with the payment rates and
terms set forth in Exhibit “B”, attached hereto and incorporated herein by this reference.
6.SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Contractor at
least ten (10) days prior written notice. Upon receipt of said notice, the Contractor shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
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(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Contractor the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the City. Upon termination
of the Agreement pursuant to this Section, the Contractor will submit an invoice to the
City pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Contractor’s business; or
(c) Assignment of this Agreement by Contractor without the consent of City.
(d) End of the Agreement term specified in Section 1.
8. DEFAULT OF CONTRACTOR
(a) The Contractor’s failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Contractor is in default for cause under the
terms of this Agreement, City shall have no obligation or duty to continue compensating
Contractor for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Contractor. If such failure by the
Contractor to make progress in the performance of work hereunder arises out of causes
beyond the Contractor’s control, and without fault or negligence of the Contractor, it
shall not be considered a default.
(b) If the City Manager or his/her delegate determines that the Contractor is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Contractor a written notice of the default. The
Contractor shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Contractor
fails to cure its default within such period of time, the City shall have the right,
notwithstanding any other provision of this Agreement to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equity or under this Agreement.
9. LAWS TO BE OBSERVED. Contractor shall:
(a) Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Contractor under this Agreement;
(b) Keep itself fully informed of all existing and proposed federal, state and
local laws, ordinances, regulations, orders, and decrees which may affect those
engaged or employed under this Agreement, any materials used in Contractor’s
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performance under this Agreement, or the conduct of the services under this
Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City’s Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Contractor to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Contractor 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. Contractor shall maintain
adequate records of services provided in sufficient detail to permit an evaluation of
services. All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible. Contractor
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 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.
(b) 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 the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Contractor. With respect to computer files, Contractor shall make available to the City,
at the Contractor’s office and upon reasonable written request by the City, the
necessary computer software and hardware for purposes of accessing, compiling,
transferring, and printing computer files.
11. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for Contractor’s Services, to the fullest extent permitted by
law, Contractor shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents (“Indemnified Parties”) from and against any and
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all losses, liabilities, damages, costs and expenses, including attorney’s fees and costs
to the extent same are caused in whole or in part by any negligent or wrongful act, error
or omission of Contractor, its officers, agents, employees or subContractors (or any
entity or individual that Contractor shall bear the legal liability thereof) in the
performance of professional services under this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Contractor
shall indemnify, defend and hold harmless City, and any and all of its employees,
officials and agents from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs of any kind, whether actual, alleged or threatened, including
attorneys fees and costs, court costs, interest, defense costs, and expert witness fees),
where the same arise out of, are a consequence of, or are in any way attributable to, in
whole or in part, the performance of this Agreement by Contractor or by any individual
or entity for which Contractor is legally liable, including but not limited to officers, agents,
employees or subContractors of Contractor.
(c) General Indemnification Provisions. Contractor agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section
from each and every subContractor or any other person or entity involved by, for, with or
on behalf of Contractor in the performance of this agreement. In the event Contractor
fails to obtain such indemnity obligations from others as required here, Contractor
agrees to be fully responsible according to the terms of this section. Failure of City to
monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defend City as set forth here is binding on the successors, assigns or heirs of
Contractor and shall survive the termination of this agreement or this section.
(d) Indemnity Provisions for Contracts Related to Construction. Without
affecting the rights of City under any provision of this Agreement, Contractor shall not
be required to indemnify and hold harmless City for liability attributable to the active
negligence of City, provided such active negligence is determined by agreement
between the parties or by the findings of a court of competent jurisdiction. In instances
where City is shown to have been actively negligent and where City’s active negligence
accounts for only a percentage of the liability involved, the obligation of Contractor will
be for that entire portion or percentage of liability not attributable to the active
negligence of City.
12. INSURANCE
Contractor shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit “C” attached hereto and
incorporated herein as though set forth in full.
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13. INDEPENDENT CONTRACTOR
(a) Contractor is and shall at all times remain as to the City a wholly independent
Contractor. The personnel performing the services under this Agreement on behalf of
Contractor shall at all times be under Contractor’s exclusive direction and control.
Neither City nor any of its officers, employees, or agents shall have control over the
conduct of Contractor or any of Contractor’s officers, employees, or agents, except as
set forth in this Agreement. Contractor shall not at any time or in any manner represent
that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the City. Contractor shall not incur or have the power to incur
any debt, obligation, or liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Contractor in connection with
performance of this Agreement. Except for the fees paid to Contractor as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Contractor
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to Contractor for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE
Contractor declares and warrants that no undue influence or pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No
officer or employee of the City of Arroyo Grande will receive compensation, directly or
indirectly, from Contractor, or from any officer, employee or agent of Contractor, in
connection with the award of this Agreement or any work to be conducted as a result of
this Agreement. Violation of this Section shall be a material breach of this Agreement
entitling the City to any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceeds thereof, for work to be performed
in connection with the project performed under this Agreement.
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Contractor in performance of this Agreement shall
be considered confidential and shall not be released by Contractor without City’s prior
written authorization. Contractor, its officers, employees, agents, or subContractors,
shall not without written authorization from the City Manager or unless requested by the
City Attorney, voluntarily provide declarations, letters of support, testimony at
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depositions, response to interrogatories, or other information concerning the work
performed under this Agreement or relating to any project or property located within the
City. Response to a subpoena or court order shall not be considered “voluntary”
provided Contractor gives City notice of such court order or subpoena.
(b) Contractor shall promptly notify City should Contractor, its officers,
employees, agents, or subContractors be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, request for
admissions, or other discovery request, court order, or subpoena from any person or
party regarding this Agreement and the work performed thereunder or with respect to
any project or property located within the City. City retains the right, but has no
obligation, to represent Contractor and/or be present at any deposition, hearing, or
similar proceeding. Contractor agrees to cooperate fully with City and to provide the
opportunity to review any response to discovery requests provided by Contractor.
However, City’s right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
17. NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii)
delivery by a reputable document delivery service, such as but not limited to, Federal
Express, which provides a receipt showing date and time of delivery, or (iii) mailing in
the United States Mail, certified mail, postage prepaid, return receipt requested,
addressed to the address of the party as set forth below or at any other address as that
party may later designate by notice:
To City: City of Arroyo Grande
Geoff English, Public Works Director
300 East Branch Street
Arroyo Grande, CA 93420
To Contractor: Apodaca Paving
Marc Apodaca
P.O. Box 1
Grover Beach, CA 93483
18. ASSIGNMENT
The Contractor shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and Contractor understand and agree that the laws of the State of
California shall govern the rights, obligations, duties, and liabilities of the parties to this
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Agreement and also govern the interpretation of this Agreement. Any litigation
concerning this Agreement shall take place in the superior or federal district court with
jurisdiction over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party’s own independent investigation of any and all facts such party deems material.
21. TIME
City and Contractor agree that time is of the essence in this Agreement.
22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Contractor is bound by the contents of the City’s Request for Proposal, Exhibit
“D”, attached hereto and incorporated herein by this reference, and the contents of the
proposal submitted by the Contractor, Exhibit “E”, attached hereto and incorporated
herein by this reference. In the event of conflict, the requirements of City’s Request for
Proposals and this Agreement shall take precedence over those contained in the
Consultant’s proposals.
23. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for
convenience and reference only, and are not intended to be construed to define or limit
the provisions to which they relate.
24. AMENDMENTS
Amendments to this Agreement shall be in writing and shall be made only with
the mutual written consent of all of the parties to this Agreement.
25. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Contractor
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Contractor and has the authority to bind Contractor to the performance of
its obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF ARROYO GRANDE CONTRACTOR
By:__________________________ By:____________________________
Jim Hill, Mayor
Its:____________________________
Attest: (Title)
____________________________
Kelly Wetmore, City Clerk
Approved As To Form:
_____________________________
Heather Whitham, City Attorney
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EXHIBIT A
SCOPE OF WORK
Paving of a section in the back of the Corporation Yard in accordance with plans and
specifications for the Corporation Yard Stormwater Improvements project, PW 2016-14.
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EXHIBIT B
PAYMENT SCHEDULE
Base Bid:
Item SS (1) Item Description Unit Qty Unit Price Cost
1 19-2.04 Earthwork and Grading LS 1 7,000.00 7,000.00
2 39-1.04 Asphalt TN 120 149.58 17,949.60
Subtotals 24,949.60
Bid Total 24,949.60
Add Alternate Bid:
Item SS (1) Item Description Unit Qty Unit Price Cost
1 39-2.01D Berm LF 60 25.00 1,500.00
Subtotals 1,500.00
Add
Alternate
Bid Total 1,500.00
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EXHIBIT C
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Contractor will
maintain insurance in conformance with the requirements set forth below. Contractor
will use existing coverage to comply with these requirements. If that existing coverage
does not meet the requirements set forth here, Contractor agrees to amend,
supplement or endorse the existing coverage to do so. Contractor acknowledges that
the insurance coverage and policy limits set forth in this section constitute the minimum
amount of coverage required. Any insurance proceeds available to City in excess of the
limits and coverage required in this agreement and which is applicable to a given loss,
will be available to City.
Contractor shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office “Commercial
General Liability” policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident. If Contractor owns no vehicles, this
requirement may be satisfied by a non-owned auto endorsement to the general liability
policy described above. If Contractor or Contractor’s employees will use personal autos
in any way on this project, Contractor shall provide evidence of personal auto liability
coverage for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer’s liability limits no less than $1,000,000 per accident or
disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the underlying
coverages. Any such coverage provided under an umbrella liability policy shall include a
drop down provision providing primary coverage above a maximum $25,000 self-
insured retention for liability not covered by primary but covered by the umbrella.
Coverage shall be provided on a “pay on behalf” basis, with defense costs payable in
addition to policy limits. Policy shall contain a provision obligating insurer at the time
insured’s liability is determined, not requiring actual payment by the insured first. There
shall be no cross liability exclusion precluding coverage for claims or suits by one
insured against another. Coverage shall be applicable to City for injury to employees of
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Contractor, subContractors or others involved in the Work. The scope of coverage
provided is subject to approval of City following receipt of proof of insurance as required
herein. Limits are subject to review but in no event less than $1,000,000 per
occurrence.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Contractor and “Covered Professional Services” as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay
on behalf of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Contractor.
Contractor and City agree to the following with respect to insurance provided by
Contractor:
1. Contractor agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials
employees and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Contractor also agrees to require all Contractors, and subContractors to
do likewise.
2. No liability insurance coverage provided to comply with this Agreement
shall prohibit Contractor, or Contractor’s employees, or agents, from waiving the right of
subrogation prior to a loss. Contractor agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all Contractors
and subContractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or
applicable to this agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or its
operations limits the application of such insurance coverage.
4. 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.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called “third party action over” claims, including any exclusion for bodily
injury to an employee of the insured or of any Contractor or subcontractor.
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6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Contractor shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Contractor’s general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Contractor or deducted from sums due Contractor, at City option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to
City of any cancellation of coverage. Contractor agrees to require its insurer to modify
such certificates to delete any exculpatory wording stating that failure of the insurer to
mail written notice of cancellation imposes no obligation, or that any party will
“endeavor” (as opposed to being required) to comply with the requirements of the
certificate.
9. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Contractor or any subContractor, is intended to
apply first and on a primary, noncontributing basis in relation to any other insurance or
self insurance available to City.
10. Contractor agrees to ensure that subContractors, and any other party
involved with the project who is brought onto or involved in the project by Contractor,
provide the same minimum insurance coverage required of Contractor. Contractor
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Contractor agrees that upon request, all agreements with subContractors and
others engaged in the project will be submitted to City for review.
11. Contractor agrees not to self-insure or to use any self-insured retentions
or deductibles on any portion of the insurance required herein and further agrees that it
will not allow any Contractor, subContractor, Architect, Engineer or other entity or
person in any way involved in the performance of work on the project contemplated by
this agreement to self-insure its obligations to City. If Contractor’s existing coverage
includes a deductible or self-insured retention, the deductible or self-insured retention
must be declared to the City. At the time the City shall review options with the
Contractor, which may include reduction or elimination of the deductible or self-insured
retention, substitution of other coverage, or other solutions.
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12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Contractor ninety
(90) days advance written notice of such change. If such change results in substantial
additional cost to the Contractor, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps
that can be deemed to be in furtherance of or towards performance of this Agreement.
14. Contractor acknowledges and agrees that any actual or alleged failure on
the part of City to inform Contractor of non-compliance with any insurance requirements
in no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
15. Contractor will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City
executes a written statement to that effect.
16. Contractor shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Contractor’s insurance agent to this effect is acceptable. A certificate of insurance
and/or additional insured endorsement as required in these specifications applicable to
the renewing or new coverage must be provided to City within five days of the expiration
of the coverages.
17. The provisions of any workers’ compensation or similar act will not limit
the obligations of Contractor under this agreement. Contractor expressly agrees not to
use any statutory immunity defenses under such laws with respect to City, its
employees, officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as
a waiver of any coverage normally provided by any given policy. 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 limiting or all-inclusive.
19. These insurance requirements are intended to be separate and distinct
from any other provision in this agreement and are intended by the parties here to be
interpreted as such.
Item 9.i. - Page 17
Page 15
20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts
with or impairs the provisions of this Section.
21. Contractor agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or
Contractor for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
22. Contractor agrees to provide immediate notice to City of any claim or loss
against Contractor arising out of the work performed under this agreement. City
assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve City.
Item 9.i. - Page 18
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ATTACHMENT NO. 1
Item 9.i. - Page 29
ATTACHMENT NO. 2
Item 9.i. - Page 30