HomeMy WebLinkAboutItem 5e. Authorize an Agreement with SLO Martin Properties, LLC, for Park Maintenance and Outdoor Dining (2163 Santa Rosa St) Item 5e
Department: Parks and Recreation
Cost Center: 7002
For Agenda of: 2/6/2024
Placement: Consent
Estimated Time: N/A
FROM: Greg Avakian, Parks & Recreation Director
Prepared By: Devin Hyfield, Recreation Manager
Brendan Pringle, Business Analyst
SUBJECT: AUTHORIZE AN AGREEMENT BETWEEN THE CITY OF SAN LUIS
OBISPO AND SLO MARTIN PROPERTIES, LLC FOR PARK
MAINTENANCE AND OUTDOOR DINING
RECOMMENDATION
Authorize the City Manager to execute an agreement with SLO Martin Properties, LLC
for park maintenance and outdoor dining on City-owned property, located at 2163 Santa
Barbara Street.
POLICY CONTEXT
The Public Art Master Plan notes that the City’s public art collection will be maintained
and preserved in accordance with Best Management practices for public art. Objective
2.3 likewise encourages staff to “Explore public-private sponsorships for maintenance
through the establishment of a sponsorship program of individual art pieces”.
Additionally, the park maintenance requirements imposed by the proposed agreement
with SLO Martin Properties, LLC are consistent with the City’s internal park maintenance
standards.
DISCUSSION
Background
In October 2004, Council approved an agreement between the City and Village Host
Pizza and Grill, SLO, LLC to maintain the park space located at 2163 Santa Barbara
Street, formerly the Water Conservation Demonstration Garden (APN 003 -748-035). The
previous owner (Pizza Brokers, Inc.) built an outdoor dining area that extended onto City
property and, in exchange, the owner was required to maintain the park space and the
public art piece for a five-year period. Village Host Pizza and Grill inherited the conditions
of the initial agreement with the City when it took over the business (from the previous
owners, Pizza Brokers, Inc.) and completed any deficiencies left from the previous
owners, including the installation of the public art piece, at an expense of $12,000. Since
2004, the park space and public art piece have been reasonably maintained to City
standards and expectations.
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Item 5e
Village Host Pizza and Grill no longer owns the business at the location, and City staff
have been working with the new owners, SLO Martin Properties, LLC, to continue the
maintenance arrangement in exchange for their use of the City -owned park space. The
property owner is currently in the process of retaining a new tenant for the building and
active improvements are underway.
Proposed Agreement
SLO Martin Properties and City staff concur on a ten (10) year agreement with an optional
two (2) year extension. Staff supports the longer-term agreement as there is sufficient
language in the new agreement regarding performance expectations by SLO Martin
Properties to maintain the area by prescribed standards and steps to rectify any
deficiencies should they occur.
The proposed agreement will provide updated conditions for the maintenance of both the
public art installation and park space adjacent to the business, in accordance with the
Public Art Master Plan and ongoing park maintenance standards established by Public
Works. Additionally, SLO Martin Properties is proposing a significant upgrade to the
existing landscape, as outlined on the attached Landscape Plan (See Exhibit B of the
proposed agreement.) This includes the removal of the turf and many existing plants
(leaving the few healthy plants that remain); removal of existing wood borders and
addition of new metal borders; decomposed granite; and the introduction of new drought-
tolerant landscaping. These proposed improvements have been reviewed and approved
by the Parks Maintenance Supervisor. The draft agreement in Attachment A is still being
finalized, but should Council authorize the City Manager to enter this agreement, it will be
in substantially the same form as that in Attachment A.
Previous Council or Advisory Body Action
On June 3, 2003, Council approved an agreement with Pizza Brokers, Inc. for the
donation of park improvements at 2163 Santa Barbara Street. On October 19, 2004, the
City approved the initial agreement with Village Host Pizza & Grill SLO, LLC. On February
2, 2010, the City entered into an updated agreement with Village Host Pizza and Grill
SLO, LLC for a 10-year period. The current agreement has expired, and ownership has
changed.
Public Engagement
Public comment on the item can be provided to the City Council through written
correspondence prior to the meeting and through public testimony at the meeting.
CONCURRENCE
The Public Works and Parks and Recreation Departments concur with the
recommendation.
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Item 5e
ENVIRONMENTAL REVIEW
The California Environmental Quality Act does not apply to the recommended action in
this report because the action does not constitute a “Project” under CEQA Guidelines
Section 15378.
FISCAL IMPACT
Budgeted: N/A Budget Year: 2023-24
Funding Identified: N/A
Fiscal Analysis:
Funding
Sources
Total Budget
Available
Current
Funding
Request
Remaining
Balance
Annual
Ongoing
Cost
General Fund $N/A $N/A $N/A $N/A
State
Federal
Fees
Other:
Total $N/A $N/A $N/A $N/A
There is no fiscal impact directly associated with this item. The owners will continue to
pay related utility costs and maintain the park space. Without this arrangement with SLO
Martin Properties, the City could incur costs of $2,520 annually for maintenance, plus an
estimated utility cost for irrigation and public art lighting of approximately $2,500/year.
ALTERNATIVES
1. Do not enter into the Agreement. The City would assume responsibility for the
maintenance and utilities of the park space and public art piece at a time when there
are no funds allocated in the Parks Maintenance budget for expansion. Another
agreement would have to be developed regarding the outdoor dining area and could
possibly result in fees charged to SLO Martin Properties for that portion on City
property. If such an agreement is not reached, use of the area for outdoor dining by
SLO Martin Properties could be precluded. The proposed agreement provides a
mutually beneficial situation for both parties, with the City having the property space
and public art maintained by the neighboring restaurant ownership and SLO Martin
Properties able to offer outdoor seating as a benefit to its customers.
2. Modify the Terms of the Proposed Agreement. The new agreement strengthens
the previous arrangement between the City and SLO Martin Properties as negotiated.
Council could choose to add modifications as deemed necessary.
ATTACHMENTS
A - Draft Park Maintenance and Outdoor Dining Agreement
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*Should there be any discrepancies between the legal description set forth in Exhibit A-1 and the premises
depicted in Exhibit B, the latter shall govern as to the area maintained by Contractor under this agreement.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SLO Martin Properties, LLC
Attn: Tai Martin
P.O. Box 2359
Avila Beach, CA 93424
(Space Above For Recorder's Use)
AGREEMENT BETWEEN THE CITY OF SAN LUIS OBISPO AND
SLO MARTIN PROPERTIES, LLC FOR PARK MAINTENANCE AND OUTDOOR DINING
This Agreement made and entered into on December __, 2023 (“Effective Date”) by and between the CITY
of San Luis of San Luis Obispo (hereinafter, “CITY)” and SLO Martin Properties, LLC, (hereinafter,
“CONTRACTOR” (collectively referred to as the “Parties”.)
RECITALS
WHEREAS, the CITY owns a parcel at 2163 Santa Barbara Street, San Luis Obispo, California, that
serves as a gateway to the community, legally described in Exhibit A-1*, attached hereto and incorporated
herein by reference (hereinafter referred to as “City Owned Park Space”); and
WHEREAS, CONTRACTOR owns a parcel at 2138 Broad Street, San Luis Obispo, California,
(hereinafter referred to as the “Contractor Property”), legally described in Exhibit A-2; and
WHEREAS, CONTRACTOR has an outdoor patio area in which a portion was built on the CITY-
owned park space adjacent to CONTRACTOR’s property at 2138 Broad Street, and
WHEREAS, CONTRACTOR’s predecessor in interest, Village Host Pizza & Grill, and CITY had a
previous agreement to maintain the City Owned Park Space, that expired on February 9, 2020, and
WHEREAS, CONTRACTOR’s predecessor in interest previously improved and maintained the CITY-
owned park space adjacent to CONTRACTOR’s property at 2138 Broad Street, via a property use
agreement, which agreement provided for Village Host’s use of the outdoor dining area in consideration
of Village Host’s performance of terms and provisions in that Agreement; and
WHEREAS, CONTRACTOR’s business benefits from the outdoor patio space and public art piece
located in the CITY-owned park space.
NOW, THEREFORE, in consideration of the mutual promises, agreements, covenants and
conditions herein set forth, CITY and CONTRACTOR mutually agree, and covenant as follows:
1. TERM. The term of this agreement shall be for a period of fifteen (15) years from the date
entered. The terms of the Agreement may be extended for a period of three to five years upon
mutual agreement of the Parties.
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2. OPERATION AND MANGEMENT PLAN. In exchange for maintenance of the improvements made
to the outdoor dining area partially located on City Owned Park Space and installation of the
public art piece “The Dancers”, the CONTRACTOR shall be entitled to use the previously
described space subject to the following conditions:
2.1 CONTRACTOR shall maintain the City Owned Park Space in accordance with the approved
landscape plan, attached and incorporated herein by reference as Exhibit B, and the detailed
description of work at Level 3 incorporated herein by reference as Exhibit C – SCOPE OF
WORK AND SERVICE LEVEL, to the satisfaction of the CITY's Parks Maintenance Supervisor.
2.2 CONTRACTOR shall maintain the outdoor dining area, the City Owned Park Space, and the
public art piece in a clean and safe manner at all times, and shall ensure proper functioning
of the lighting on the public art piece.
2.3 Items used for dining outdoors may not be left outside overnight, except for tables, chairs
and umbrellas in the outdoor dining area.
2.4 CONTRACTOR shall continue to pay all related utility costs toward maintenance of City
Owned Park Space.
2.5 CONTRACTOR and their tenant shall comply at all times with the San Luis Obispo Municipal
Code and with state regulations related to landscape irrigation. CONTRACTOR shall not use
potable water to irrigate non-functional turf, as defined by California Water Code § 996 and
pursuant to the State Water Resources Control Board’s emergency regulation OAL 2023-
0526-01 (June 5, 2023), a copy of which is attached as Exhibit E. CONTRACTOR acknowledges
and agrees to comply with California Water Code § 10608.14 which will prohibit the use of
potable water for irrigation of non-functional turf beginning January 1, 2027.
3. CITY OBLIGATIONS
3.1 CITY will periodically inspect the City Owned Park Space and public art piece to verify
CONTRACTOR’s compliance with maintenance requirements.
3.2 CITY shall permit the CONTRACTOR to serve alcoholic beverages in the outdoor dining area,
subject to approval from the Alcoholic Beverage Control Board.
4. FEES. In exchange for maintenance responsibilities undertaken by CONTRACTOR and the
maintenance and upkeep of the required public art piece, no rent will be charged to
CONTRACTOR for use by CONTRACTOR and its tenant of the outdoor dining area and the City
Owned Park Space.
5. FAILURE TO PERFORM. In the event that the City Owned Park Space is not maintained by
CONTRACTOR and/or its tenant to an acceptable level, the CITY will provide written notice to the
CONTRACTOR of the corrective work required for compliance with this Agreement.
CONTRACTOR will have thirty (30) days from the date of receipt of the notice to remedy any
deficiencies. If the CONTRACTOR fails to perform the requested work after thirty (30) days’
notice, CITY will obtain the services of a landscape contractor to restore the City Owned Park
Space to the standards set forth in Paragraph 2.1 of this Agreement, at the sole expense of
CONTRACTOR.
6. ALTERATIONS. CONTRACTOR is not authorized to make any other alterations to City Owned Park
Space other than those outlined in this agreement without prior written authorization from the
CITY Parks Maintenance Supervisor.
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7. INSURANCE & INDEMNIFICATION
7.1 Indemnification. To the fullest extent permitted by law (including, but not limited to
California Civil Code Sections 2782 and 2782.8), CONTRACTOR shall defend, indemnify, and hold
harmless the CITY, and its elected officials, officers, agents, employees and volunteers (herein
for the purposes of this provision collectively referred to as “CITY INDEMNITEES”) from and
against any and all causes of action, claims, liabilities, obligations, judgments, losses, costs,
expenses or damages, including reasonable legal counsels’ fees and costs of litigation arising out
of or in any way connected with CONTRACTOR’S or its tenant’s use of the City Owned Park Space,
and CONTRACTOR’S performance or failure to perform its obligations under this Agreement,
including the CITY INDEMNITEES’ active or passive negligence, except for such loss or damage
arising from the sole negligence or misconduct of the CITY INDEMNITEES relating to
CONTRACTOR’s use of the outdoor dining area and the City Owned Park Space under this
AGREEMENT. In the event any CITY INDEMNITEE(S) is/are made a party to any action, lawsuit, or
other adversarial proceeding arising from CONTRACTOR’S or its use of the CITY outdoor dining
area and the City Owned Park Space encompassed by this agreement, CONTRACTOR’S
performance of this Agreement, the CONTRACTOR shall have an immediate duty to defend the
CITY INDEMNITEE(S) at CONTRACTOR’s cost, or at the CITY’s option, reimburse the CITY their
costs of defense, including reasonable attorney’s fees, incurred in defense of such matters.
The CONTRACTOR’s obligation to indemnify, defend and hold harmless the CITY and/or CITY
INDEMNITEES includes, but is not limited to, any liability or expense, including defense costs and
legal fees, arising from the negligent acts or omissions, or willful misconduct of CONTRACTOR,
or its tenant’s, officers, employees, agents, participants, representatives, or vendors.
7.2 Insurance. Without limiting CONTRACTOR’s indemnification of CITY , and prior to use of the
City Owned Park Space, CONTRACTOR or its Tenant shall obtain, provide, and maintain at its own
expense during the term of this Agreement, policies of insurance of the types and amounts set
forth in this Section 7.2 and Exhibit D (attached hereto and incorporated herein by reference)
and in a form that is satisfactory to CITY.
CONTRACTOR acknowledges that the insurance coverage and policy limits set forth in this
Section 7.2 constitute the minimum amount of coverage required. Any insurance proceeds
available to CONTRACTOR in excess of the limits and coverage identified in this Agreement and
which is applicable to a given loss, claim or demand, will be equally available to CITY.
CITY reserves the right to require additional insurance coverage(s) not specified in this section,
if, in the sole discretion of the CITY, such additional coverages are necessary to protect the CITY.
8. SAFETY. CONTRACTOR shall conform to the rules and regulations pertaining to safety established
by OSHA and the California Division of Industrial Safety.
Whenever CONTRACTOR operations on the Contractor Property or the City Owned Park Space
create a condition hazardous to the public or CITY employees, it shall, at its expense and without
cost to the CITY, furnish, erect and maintain such fences, temporary railings, barricades, lights,
signs and other devices and take such other protective measures as are necessary to prevent
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accidents or damage or injury to the public and employees.
9. PRESERVATION OF CITY PROPERTY. The CONTRACTOR shall provide and install suitable
safeguards, approved by the CITY , to protect CITY property from injury or damage. If CITY
property is injured or damaged resulting from the CONTRACTOR or its tenant operations, it shall
be replaced or restored at the CONTRACTOR’S expense. The facilities shall be replaced or
restored to a condition as good as when the CONTRACTOR began the work on the City Owned
Park Space.
10. TERMINATION.
10.1 Either party may terminate the Agreement for convenience, provided two hundred
seventy (270) days written notice is given to the non-terminating party. The Agreement may
be terminated by either party for cause, provided that written notice has been given in the
manner specified herein stating the reasons for the intended termination and providing the
other party at least ten (10) days to cure any alleged breach. If the party receiving notice fails
or refuses to cure the alleged breach within ten (10) days, or to make substantial progress
toward cure to the satisfaction of the parting demanding cure, this Agreement may be
terminated ten (10) days after receipt of the notice as specified herein. Nothing in this
provision alters the procedure for termination of this Agreement because of CONTRACTOR’S
failure to maintain, as set forth in Paragraph 5.
10.2 Notwithstanding any other provision of this Agreement, should CONTRACTOR cease
operations at 2138 Broad Street, this Agreement will terminate. Any successor(s) in interest
will be required to execute an agreement with the CITY for use of the outdoor patio space
within sixty (60) days of commencing operations. This subparagraph is binding on
successor(s) in interest during the Term of this agreement.
10.3 Should this Agreement be terminated, both Parties agree to execute a document
indicating termination for recordation purposes.
11. AUTHORITY TO EXECUTE AGREEMENT. Both CITY and CONTRACTOR do covenant that each
individual executing this agreement on behalf of each party is a person duly authorized and
empowered to execute Agreements for such party.
12. COMPLIANCE WITH LAW. The CONTRACTOR shall keep him/her/itself informed of State and
Federal laws and regulations which in any manner affect those employed by it or in any way
affect the performance of its service pursuant to this Agreement. The Contractor shall at all times
observe and comply with all such laws and regulations. The CITY, and its officers and employees,
shall not be liable at law or in equity occasioned by failure of the Contractor to comply with this
Section.
13. 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
Agreement and also govern the interpretation of this Agreement. Any litigation concerning this
Agreement shall take place in San Luis Obispo County Superior Court, regardless of other courts
with jurisdiction over the matter.
14. BUSINESS LICENSE AND TAX. The CONTRACTOR shall maintain a valid CITY of San Luis Obispo
business license & tax certificate when applicable before execution of the contract. Additional
information regarding the CITY’s business license and tax program may be obtained by calling
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(805) 781-7134. This Agreement creates an interest in real property that may be subject to a
possessory interest tax. Contractor shall be responsible for any payment of any taxes due.
15. ASSIGNMENT. The CONTRACTOR shall not assign, transfer, convey or otherwise dispose of the
contract, or its right, title or interest, or its power to execute such a contract to any individual or
business entity of any kind without the previous written consent of the CITY. The CONTRACTOR
shall have the right to assign its rights and obligations under this Agreement to a buyer of the
Property subject to the CITY, CONTRACTOR and the buyer executing documentation affirming
the continued obligations under the terms and conditions of this Agreement.
16. NON-DISCRIMINATION.
16.1 There shall be no discrimination against or segregation of any person or group of
persons on account of race, religion, sex, sexual orientation, national origin or ancestry, age,
physical, mental or economic status in the operation, lease, use, occupancy, tenure or
enjoyment of the City Owned Park Space or the improvements thereon, or any part thereof,
and permittee, or any person claiming under or through it, shall not establish or permit any
such practice of discrimination or segregation with reference to the selection, location,
number, use or occupancy of employees, contractors, subcontractors, laborers, or material
men, tenants, lessees, subtenants, sublessees, invitees or vendees of the City Owned Park
Space or the improvements thereon, or any part thereof.
16.2 CONTRACTOR shall not restrict access or use of the City Owned Park Space or the
improvements thereon, or any portion thereof, on the basis of race, religion, sex, sexual
orientation, national origin or ancestry, age, physical, mental, or economic status of any
person.
17. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original in which counterparts shall together contain the signatures of all the
parties hereto and shall constitute a single, binding, and complete Agreement for Park
Maintenance and Dining.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and
year first above written.
ATTEST: CITY OF SAN LUIS OBISPO, A Municipal Corporation
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
Sadie Symens, Deputy City Attorney
State of California
County of
On before me,_____________________________________________,
personally appeared ______________________________________ who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies),and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ___________________________________ _ (Seal)
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and
year first above written.
CONTRACTOR
By: _____________________________
Tai Martin, CEO
SLO Martin Properties, LLC
State of California
County of
On before me,_____________________________________________,
personally appeared ______________________________________ who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies),and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ___________________________________ _ (Seal)
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
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EXHIBIT A-2
LEGAL DESCRIPTION OF CONTRACTOR-OWNED PARCEL
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EXHIBIT C
SCOPE OF WORK
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Exhibit D
INSURANCE REQUIREMENTS
Without limiting Contractor’s indemnification of City, and prior to commencement of Lease,
Contractor 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
satisfactory to the City.
General liability insurance. Contractor shall maintain commercial general liability insurance
with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not
less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal
injury, and property damage. The policy must include contractual liability that has not been
amended. Any endorsement restricting standard ISO “insured contract” language will not be
accepted.
Workers’ compensation insurance. Contractor shall maintain Workers’ Compensation
Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least
$1,000,000). Contractor shall submit to City, along with the certificate of insurance, a Waiver of
Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.
Property insurance. Upon commencement of construction of Contractor improvements and
betterments, or installation of equipment, with approval of City, Contractor shall obtain and
maintain insurance on Contractor’s improvements and betterments. Policy shall be provided
for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in
any such policy.
Commercial property insurance (if applicable)
Covering the leased premises, fixtures, equipment, building, all property situated in, on, or
constituting a part of the premises and any improvements. Coverage shall be at least as broad
as the Insurance Services Offices broad causes of loss form CP 10 20 and approved of in writing
by City. Coverage shall be sufficient to insure 100% of the replacement value and there
shall be no coinsurance provisions. The policy shall include an inflation guard endorsement,
100% rents coverage, contents coverage, coverage for personal property of others, ordinance
or law and increased cost of construction coverage. City shall be included as an insured and
as loss payee on any such insurance. City shall not be liable for any business income or
other consequential loss sustained by Contractor. City shall not be liable for any loss of
Contractor’s personal property even if such loss is caused by negligence of City, City’s
employees, or agents.
Proof of insurance. Contractor shall provide certificates of insurance and required
endorsements to City as evidence of the insurance coverage required herein. 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
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Exhibit D
City for the contract period and any additional length of time required thereafter. City reserves
the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage. Contractor shall procure and maintain for the contract period, and any
additional length of time required thereafter, insurance against claims for injuries to persons or
damages to property, or financial loss which may arise from or in connection with the
performance of the Work hereunder by Contractor, their agents, representatives, employees,
or subconsultants.
Primary/noncontributing. Coverage provided by Contractor shall be primary and any insurance
or self-insurance procured or maintained by City shall not be required to contribute with it. The
limits of insurance required herein may be satisfied by a combination of primary and umbrella
or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a
provision that such coverage shall also apply on a primary and non-contributory basis for the
benefit of City before the City’s own insurance or self- insurance shall be called upon to protect
it as a named insured.
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 Contractor or City will withhold amounts
sufficient to pay premium from Contractor payments. In the alternative, City may cancel this
Agreement.
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 the City’s Risk Manager.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this
agreement shall be endorsed to waive subrogation against City, its elected or appointed
officers, agents, officials, employees, and volunteers or shall specifically allow Contractor or
others providing insurance evidence in compliance with these specifications to waive their right
of recovery prior to a loss. Contractor hereby waives its own right of recovery against City and
shall require similar written express waivers and insurance clauses from each of its
subconsultants. Enforcement of contract provisions (non estoppel). Contractor acknowledges
and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-
compliance with any requirement imposes no additional obligations on the City nor does it
waive any rights hereunder.
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
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Exhibit D
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 the Contractor maintains higher limits than the minimums shown above,
the City requires and shall be entitled to coverage for the 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.
Notice of cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to
provide the 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. If any of
the Contractor’s insurers are unwilling to provide such notice, then Contractor shall have the
responsibility of notifying the City immediately in the event of Contractor’s failure to renew any
of the required insurance coverages or insurer’s cancellation or non-renewal.
Additional insured status. General liability, automobile liability, and umbrella/excess liability
insurance policies shall provide or be endorsed to provide that City and its officers, officials,
employees, agents, and volunteers shall be additional insureds under such policies. 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.
Separation of insureds. A severability of interests provision must apply for all additional
insureds ensuring that Contractor’s insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The
policy(ies) shall not contain any cross-liability exclusions.
Pass-through clause. Contractor agrees to ensure that its subconsultants, subcontractors, and
any other party who is brought onto or involved in the project/service by Contractor
(hereinafter collectively “subcontractor”), provide the same minimum insurance coverage and
endorsements required of Contractor. Contractor agrees to monitor and review all such
coverage and assumes all responsibility for ensuring that such coverage is provided in
conformity with the requirements of this section. However, in the event Contractor’s
subcontractor cannot comply with this requirement, which proof must be submitted to the City,
Contractor shall be required to ensure that its subcontractor provide and maintain insurance
coverage and endorsements sufficient to
the specific risk of exposure involved with subcontractor’s scope of work and services, with
limits less than required of the Contractor, but in all other terms consistent with the
Contractor’s requirements under this agreement. This provision does not relieve the Contractor
of its contractual obligations under the agreement and/or limit its liability to the amount of
insurance coverage provided by its subcontractors. This provision is intended solely to provide
Contractor with the ability to utilize a subcontractor who may be otherwise qualified to
perform the work or services but may not carry the same insurance limits as required of the
Contractor under this agreement given the limited scope of work or services provided by the
subcontractor. Contractor agrees that upon request, all agreements with subcontractors, and
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Exhibit D
others engaged in the project, will be
submitted to City for review.
City’s right to revise specifications. 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 and Contractor may renegotiate
Contractor’s compensation.
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, or require proof of ability to pay losses and related
investigations, claim administration, and defense expenses within the retention through
confirmation from the underwriter.
Timely notice of claims. Contractor shall give City prompt and timely notice of claims made or
suits instituted that arise out of or result from Contractor’s performance under this Agreement,
and that involve or may involve coverage under any of the required liability policies.
Additional insurance. Contractor shall also procure and maintain, at its own cost and expense,
any additional kinds of insurance, which in its own judgment may be necessary for its proper
protection. Contractor’s personal property, fixtures, equipment, inventory, and vehicles are
not insured by City against loss or damage due to fire, theft, vandalism, rain, water, criminal or
negligent acts of others, or any other cause.
Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing
maintenance of the required insurance coverage, as well as endorsements effecting general liability
coverage.. All endorsements are to be received and approved by the City before work commences.
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