Sample_Contract.pdf

City of Santa Cruz Recreational Services, Operations, and Maintenance Agreement for Harvey West Pool

June 2024 (Form Rev.01/24) Page 1

SAMPLE Professional Services Agreement With

[NAME OF FIRM]

For

RECREATIONAL SERVICES AND MAINTENANCE

OPERATIONS OF HARVEY WEST POOL

THIS AGREEMENT for professional services is made by and between the City of Santa Cruz (“City”) and [NAME OF ORGANIZATION] (“Operator”) (each is referred to individually as a “Party” and collectively, as the “Parties”) as of ____________, 20__ (the “Effective Date”).

NOW, THEREFORE, in consideration of each other’s mutual promises, the Parties hereto agree as follows:

SECTION 1: SCOPE OF WORK

Operator will furnish services as defined and described in the Scope of Work, attached hereto as Exhibit A and incorporated herein.

SECTION 2: RESPONSIBILITIES OF OPERATOR

All work performed by Operator, or under Operator’s direction, shall be rendered in accordance with the generally accepted practices, and to the standards of, Operator's profession. Operator represents and agrees that Operator: (i) is fully experienced and properly qualified to perform the work and services provided for herein, (ii) has the financial capability required for the performance of the work and services, and (iii) is properly equipped and organized to perform the work and services in a competent, timely, and workmanlike/professional manner, in accordance with the requirements of this Agreement.

Operator shall not undertake any work beyond the Scope of Work set forth in Exhibit A unless such additional work is approved in advance and in writing by City. The cost of such additional work shall be reimbursed to Operator by City on the same basis as provided for in Section 4.

If, in performing the work, it is necessary to conduct field operations, security and safety of the job site will be the Operator's responsibility excluding, the security and safety of any facility of City within the job site which is not under the Operator's control.

Operator shall meet with Tony Elliot Director of the Parks & Recreation Department, hereinafter called "Director", or other designated and authorized City personnel, or third parties as necessary, on all matters connected with carrying out of Operator’s services described in Exhibit A. Such meetings shall be held at the request of either Party.

Review and City approval of completed work shall be obtained monthly, or at other intervals as may be mutually agreed upon during the course of this Agreement. Review, approval, or acceptance of Operator’s work by City or others shall not relieve Operator from responsibility for errors and omissions in Operator’s work.

SECTION 3: RESPONSIBILITIES OF THE CITY

City shall make available to Operator all necessary data and information in the City's possession and shall actively assist Operator in obtaining such information from other agencies and individuals as needed. Operator is entitled to reasonably rely upon the accuracy and completeness of such data and information, and Operator shall provide City prompt written notice of any known defects in such data and information.

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The Director may authorize a staff person to serve as his or her representative. The work in progress shall be reviewed at such intervals as may be mutually agreed upon between the Parties. The City will be the sole judge of acceptable work, provided that such approval will not be unreasonably withheld or delayed. If the work is not acceptable, City will inform Operator of the changes or revisions necessary to secure approval.

SECTION 4: LEASE RENTAL PAYMENT

Operator agrees to pay the City monthly rent in the amount negotiated in the Scope of Work Schedule A. Operator specified in this Section 4 will constitute full and complete compensation for all obligations assumed by Operator under this Agreement. Such payments shall be considered the full compensation for all personnel, materials, supplies, and equipment used by Operator in the Scope of Work Where conflicts regarding compensation may occur, the provisions of this section apply.

Variations from the budget for each task which are justified by statements indicating personnel time expended and submittal of a revised budget are only allowed with prior City approval; however, in no event shall the total fee charged for the Scope of Work set forth in Exhibit A exceed the budget without advance written City authorization in the form of an amendment or change order.

Invoices shall detail the time worked by each class of employee on each task and the expenses incurred for which billing is made. Unless otherwise specified in the fee schedule, payments shall be made monthly by the City within 30 days based on itemized invoices from the Operator which list the actual costs and expenses.

This Agreement is contingent upon the appropriation of sufficient funding by the City for the services covered by this Agreement. If funding is reduced or deleted by the City for the services covered by this Agreement, the City has the option without penalty or liability to either terminate this Agreement or to offer an amendment to this Agreement indicating the reduced amount.

SECTION 6: CHANGES IN WORK

City may negotiate changes in the Scope of Work. No changes in the Scope of Work shall be made without the written approval of City and Operator. Any change requiring compensation in excess of the sum specified in Exhibit B shall be approved in advance in writing by the City. Only City’s authorized representative(s) is authorized to approve changes to this Agreement on behalf of City.

SECTION 7: TERM AND SCHEDULE

The term of this Agreement shall be for one (1) year beginning on the effective date of this Agreement and terminating on June 30, 2025. At the option of the City, this Agreement may be renewed annually under the same contractual terms and conditions by letter agreement.

Operator shall begin work as specified in a written authorization (e.g., Notice to Proceed) to perform services. The written authorization to perform work shall not be issued until after this Agreement has been approved and authorized by the City.

Neither party will be held responsible for delay or default caused by declared emergencies, natural disasters, or any Force Majeure event which is beyond the party's reasonable control. Operator will, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and will, upon the cessation of the cause, diligently pursue performance of its obligations in this Agreement.

June 2024 (Form Rev.01/24) Page 3

The City reserves the right to obtain the item(s) and/or services covered by this Agreement from another source during any on-going suspension of service due to the circumstances outlined above.

SECTION 8: TERMINATION

The City may terminate the Agreement for any reason by providing written notice to Operator not less than 10 calendar days prior to an effective termination date.

The City may, at its option, allow Operator to cure its failure to perform within 10 business days (or longer period authorized in writing by the City) from the date of the City’s termination notice. The termination shall be effective if Operator has not cured within the specified time period to the City’s satisfaction.

Operator may terminate this Agreement for cause if the City fails to cure a material default in performance within a period of 30 calendar days (or such longer period agreed to by the Operator), from the date of the Operator’s written termination notice specifying the default in performance. Operator must provide a written notice of termination to the City not less than 30 calendar days of the effective termination date.

Upon notice of termination by either the City or Operator, the Operator will immediately act to not incur any additional obligations, costs or expenses, except as may be reasonably necessary to terminate its activities. The City’s only obligation to the Operator will be just and equitable payment for services authorized by, and received to the satisfaction of, the City up to and including the effective date of termination less any amounts withheld. All finished or unfinished work or documents procured or produced under the Agreement will become property of the City upon the termination date. In the event of Operator’s failure to perform pursuant to the Agreement, the City reserves the right to obtain services elsewhere and Operator will be liable for the difference between the prices set forth in the terminated Agreement and the actual cost to the City. Termination of the Agreement pursuant to this paragraph shall not relieve the Operator of any liability to City for additional costs, expenses, or damages sustained by City due to failure of the Operator to perform pursuant to the Agreement. City may withhold any payments to Operator for the purpose of set-off until such time as the exact amount of damages due City from Operator is determined. After the effective date of termination, Operator will have no further claims against the City under the Agreement. No other compensation will be payable for anticipated profit on unperformed services.

SECTION 9: INSURANCE

Prior to the beginning of and throughout the duration of the Agreement, Operator will maintain and comply with the Insurance Requirements as set forth in Exhibit D. Operator will insure the City against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder.

The insurance coverages required shall not in any way limit the liability of the Operator.

SECTION 10: INDEMNIFICATION

Operator agrees, to the fullest extent permitted by law, to indemnify, defend, and hold harmless the City, its officials, officers, employees, agents, and volunteers (collectively, “Indemnitees”) from and against any and all liability, claim, action, loss, injury, damage, judgment, or expense, including attorneys’ fees and costs (“Losses”) caused by or resulting from the negligence, recklessness, or willful misconduct of Operator, Operator’s officers, employees, agents, or subcontractors in any way related to this Agreement. Operator’s duty to indemnify and hold harmless Indemnitees shall not apply to the extent such Losses are caused by the sole or active negligence or willful misconduct of Indemnitees. Operator’s obligation to defend shall arise regardless of any claim or assertion that Indemnitees caused or contributed to the Losses.

In the event this Agreement involves the performance of design professional services by Operator, Operator’s officers, employees, agents, or subcontractors, Operator’s costs to defend Indemnitees shall not exceed the

June 2024 (Form Rev.01/24) Page 4

Operator’s proportionate percentage of fault per Civil Code §2782.8. This section shall survive the termination or expiration of this Agreement.

SECTION 11: EQUAL EMPLOYMENT OPPORTUNITY/NON-DISCRIMINATION POLICIES

City’s policies promote a working environment free from abusive conduct, discrimination, harassment, and retaliation; and require equal opportunity in employment for all regardless of race, religious creed (including religious dress and grooming practices), color, national origin (including language use restrictions), ancestry, religion, disability (mental and physical), medical condition, sex, gender (including gender identity and gender expression), physical characteristics, marital status, age, sexual orientation, genetic information (including family health history and genetic test results), organizational affiliation, and military or veteran status, or any other consideration made unlawful by local, State or Federal law. City requires Operator to comply with all applicable Federal and State and local equal employment opportunity laws and regulations, and Operator is responsible for ensuring that effective policies and procedures concerning the prevention of abusive conduct, discrimination, harassment, and retaliation exist in Operator’s business organization. The City’s current Equal Employment Opportunity and Non-Discrimination policies to which this Section applies may be viewed at http://www.codepublishing.com/CA/SantaCruz/?SantaCruz09/SantaCruz0983.html and http://www.cityofsantacruz.com/home/showdocument?id=59192.

SECTION 12: LEGAL ACTION/ATTORNEYS’ FEES

If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief. The laws of the State of California, with jurisdiction in the Santa Cruz County Superior Court, shall govern all matters relating to the validity, interpretation, and effect of this Agreement and any authorized or alleged changes, the performance of any of its terms, as well as the rights and obligations of Operator and the City.

SECTION 13: AMENDMENTS

This Agreement may not be amended in any respect except by way of a written instrument which expressly references and identifies this particular Agreement, which expressly states that its purpose is to amend this particular Agreement, and which is duly executed by the City and Operator. Operator acknowledges that no such amendment shall be effective until approved and authorized by the City’s authorized representative. No representative of the City is authorized to obligate the City to pay the cost or value of services beyond the scope of services set forth in Exhibit A. Such authority is retained solely by the City Manager, Director, or their designee. Unless expressly authorized by the City Manager or Director, Operator’s compensation shall be limited to that set forth in Exhibit B, Fee Schedule.

SECTION 14: MISCELLANEOUS PROVISIONS

1. Independent Contractor. In the performance of this Agreement, it is expressly understood that Operator, including each of Operator’s employees, agents, subcontractors or others under Operator’s supervision or control, is an independent contractor solely responsible for its own acts and omissions, and shall not be considered an employee of the City for any purpose. Operator agrees to indemnify, defend and hold harmless the City, its officials, officers, employees, and agents against any claim or liability, including attorneys’ fees and costs, arising in any manner related to this Agreement that an employee, agent or others under Operator’s supervision or control was misclassified.

In the event that Operator or any employee, agent, or subcontractor of Operator providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Operator shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Operator or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

http://www.codepublishing.com/CA/SantaCruz/?SantaCruz09/SantaCruz0983.html http://www.cityofsantacruz.com/home/showdocument?id=59192

June 2024 (Form Rev.01/24) Page 5

2. Operator Not an Agent. Except as City may specify in writing, Operator shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Operator shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.

3. Subcontractors. Operator shall obtain prior approval of the City prior to subcontracting of any work pursuant to this Agreement. If at any time, the City determines any subcontractor is incompetent or unqualified, Operator will be notified and will be expected to immediately cancel the subcontract. Operator shall require and verify that all subcontractors maintain insurance meeting all of the requirements stated herein, including naming the City of Santa Cruz, its officers, officials, employees, agents, and volunteers as additional insureds. Any modification to the insurance requirements for subcontractors must be agreed to by the City in writing.

Operator shall be as fully responsible to the City for the negligent acts and omissions of its contractors and subcontractors or subcontractors, and of persons either directly or indirectly employed by them, or acting on Operator’s behalf pursuant to this Agreement, as it is for the acts and omissions of persons directly employed by Operator. The Operator’s obligation to pay its subcontractors is an independent obligation from the City’s obligation to make payments to the Operator.

4. Assignment. This Agreement shall not be assigned without first obtaining the express written consent of the

Director or after the approval of the City Council. Neither party may assign this Agreement unless this Agreement is amended in accordance with its terms.

5. Conflicts of Interest. Operator agrees to comply with conflict-of-interest laws in performing the work and services under this Agreement. Operator covenants (on behalf of Operator and Operator’s employees, agents, representatives, and subcontractors) that there is no direct or indirect interest, financial or otherwise, which would conflict in any manner or degree with the performance of services required under this Agreement. Operator acknowledges and agrees to comply with applicable provisions of conflict-of-interest law and regulations, including the CA Political Reform Act, Sections 1090 and 87100 of the Government Code, and the City’s conflict of interest code. Operator will immediately advise City if Operator learns of a conflicting financial interest of Operator during the term of this Agreement.

6. City Property. The work, or any portion, of Operator in performing this Agreement shall become the property of

City. The Operator may be permitted to retain copies of such work for information and reference in connection only with the provision of services for the City. All materials and work product, whether finished or unfinished, shall be delivered to City upon completion of contract services or termination of this Agreement for any reason. Operator acknowledges and agrees that the work product shall be considered a work made for hire within the meaning of the patent and copyright laws of the United States; and Operator agrees that all copyrights which arise from creation of project-related documents and materials pursuant to this Agreement shall be vested in the City and Operator waives and relinquishes all claims to copyright or other intellectual property rights in favor of City. Any work product related to this Agreement shall be confidential, not to be used by the Operator on other projects or disclosed to any third party, except by agreement in writing by the City, or except as otherwise provided herein. Operator’s final deliverables shall comply with Section 508 (29 U.S.C. Section 794d) accessibility requirements, as applicable.

10. Confidentiality.

a. Operator shall not acquire any ownership interest in data and information (“City Data”) received by Operator from City, which shall remain the property of the City. Certain information may be considered confidential (“Confidential Information”). Confidential Information shall mean all information or proprietary materials (in every form and media) not generally known to the public and which has been or is hereafter disclosed or made available directly or indirectly to Operator through any means of

June 2024 (Form Rev.01/24) Page 6 communication, either verbally or in writing even if it has not been designated in writing as “Confidential” to Operator in connection with this Agreement. Unless otherwise required by law, Operator shall not, without City’s written permission, use or disclose City Data and/or Confidential Information other than in the performance of the obligations under this Agreement. As between Operator and City, all City Confidential Information shall remain the property of the City. Operator shall not acquire ownership interest in the City’s Confidential Information.

b. Operator shall be responsible for ensuring and maintaining the security and confidentiality of City Data and Confidential Information, protect against any anticipated threats or hazards to the security or integrity of City Data and Confidential Information, protect against unauthorized access to or use of City Data and Confidential Information that could result in substantial harm or inconvenience to City or any end users;

and ensure the proper return and/or disposal of City Data and Confidential Information upon termination of this Agreement with notice to the City.

c. Operator shall take appropriate action to address any incident of unauthorized access to City Data and Confidential Information, including addressing and/or remedying the issue that resulted in such unauthorized access, notifying City as soon as possible of any incident of unauthorized access to City Data and Confidential Information, or any other breach in Operator’s security that materially affects City or end users; and be responsible for ensuring compliance by its officers, employees, agents, and subcontractors with the confidentiality provisions hereof. Should confidential and/or legally protected City Data be divulged to unauthorized third parties, Operator shall comply with all applicable federal and state laws and regulations, including but not limited to California Civil Code sections 1798.29 and 1798.82 at Operator’s sole expense. Operator shall not charge City for any expenses associated with Operator’s compliance with these obligations.

d. Operator shall defend, indemnify and hold harmless City, its officials, officers, employees and agents against any claim, liability, loss, injury or damage (including attorneys’ fee and costs) arising out of, or in connection with, the unauthorized use, access, and/or disclosure of City Data and/or Confidential Information by Operator and/or its agents, employees or subcontractors, excepting only loss, injury or damage caused by the sole negligence or willful misconduct of the City. This provision shall survive the termination or expiration of this Agreement.

11. Operator's Records/Audits. Operator shall maintain accurate accounting records and other written documentation pertaining to the costs incurred relating to this Agreement for examination and audit by the City, State, or federal government, as applicable, in compliance with Gov. Code §8546.7 for a contract in excess of $10,000, or in compliance with other applicable federal laws (e.g. 48 CFR 31) or regulations for a period of three (3) years from:

the date of the final City payment for Operator's services, or from the date of final disposition of real property or equipment acquired with federal funds, or date of the termination of this Agreement, whichever is later. If Operator engages a subcontractor to perform work related to this Agreement with a cost of $10,000 or more over a 12-month period, such subcontract shall contain these same requirements. This provision shall survive the termination of this Agreement.

12. California Public Records Act. City is a public agency subject to the disclosure requirements of the California

Public Records Act (“CPRA”). If Operator’s proprietary information is contained in documents or information submitted to City, and Operator claims that such information falls within one or more CPRA exemptions, Operator must clearly mark such information “Confidential and Proprietary,” and identify the specific lines containing the information. In the event of a request for such information, City will make best efforts to provide notice to Operator prior to such disclosure. If Operator contends that any documents are exempt from the CPRA and wishes to prevent disclosure, it is required to obtain a protective order, injunctive relief, or other appropriate remedy from a court of law in Santa Cruz County before the City is required to respond to the CPRA request.

June 2024 (Form Rev.01/24) Page 7

If Operator fails to obtain such remedy within the time the City is required to respond to the CPRA request, City may disclose the requested information without any liability. Operator further agrees that it shall defend, indemnify and hold City harmless against any claim, action or litigation (including but not limited to all judgments, costs, and attorney’s fees) that may result from denial by City of a CPRA request for information arising from any representation, or any action (or inaction), by the Operator.

13. Compliance with Laws. All activities of Operator, its employees, subcontractors and/or agents will be carried out in compliance with all applicable federal, state, and local laws and regulations. Operator further agrees to comply with the covenant of good faith and fair dealing and other provisions of Santa Cruz Municipal Ordinance chapter 3.09, or otherwise Operator may be subject to penalties including being declared an irresponsible contractor.

14. Licensure. Operator agrees that Operator, its subcontractors and/or agents (if any) has/have complied with all applicable federal, state, and local licensing requirements and agrees to provide proof of a current City of Santa Cruz Business Tax Certificate if:

• Operator, its subcontractor(s) and agent(s) or its business is/are located in the City of Santa Cruz;

• Will perform actual work in the City of Santa Cruz for 6 or more days annually; or

• Will use company vehicles to deliver within the City of Santa Cruz for 6 or more days annually.

For additional information and licensing requirements, view the City’s Business Licenses and Permits webpage or call the Revenue and Taxation division at 831/420-5070.

15. Living Wage. Every contract for services to the City for $10,000 or more, is subject to City of Santa Cruz Living Wage Ordinance number 2000-25. If applicable, Operator agrees to comply with the requirements of the Living Wage ordinance as provided in Santa Cruz Municipal Code Chapter 5.10.

16. Dispute Resolution. The Parties agree to attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement. Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested.

Promptly upon such notification, the Parties shall meet at a mutually agreeable time and place in order to exchange relevant information and perspective, and to attempt to resolve the dispute. In the event that no resolution is achieved, and if, but only if, the parties mutually agree, then prior to pursuing formal legal action, the parties shall make a good faith effort to resolve the dispute by non-binding mediation or negotiations between representatives with decision-making power, who, to the extent possible, shall not have had substantive involvement in the matters of the dispute. To the extent that the dispute involves or relates to a public works project, the Parties agree to attempt to resolve the dispute by complying with the claims process as set forth in Public Contract Code sections 9204(e), 20104-20104.6, but without waiving the requirements of the California Tort Claims Act, Gov’t Code section 800 et seq. unless otherwise agreed to by the Parties.

17. Force Majeure. Neither party hereto shall be considered in default in the performance of its obligation hereunder to the extent that the performance of any such obligation is prevented or delayed by an act of God, natural disaster, pandemic, acts of terrorism, war, a strike, lockout or other labor difficulty, or other peril, which is beyond the reasonable control of the affected party and without the negligence of the respective Parties. Each party hereto shall give notice promptly to the other of the nature and extent of any Force Majeure claimed to delay, hinder or prevent performance of the services under this Agreement. Each Party will, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and will, upon the cessation of the cause, diligently pursue performance of its obligations in this Agreement. In the event either party is prevented or delayed in the performance of its respective obligation by reason of such Force Majeure, the only remedy is that there may be an equitable adjustment of the schedule based on City’s sole discretion.

18. Complete Agreement. This Agreement, along with any attachments, is the full and complete integration of the

Parties’ agreement with respect to the matters addressed herein, and that this Agreement supersedes any previous http://www.cityofsantacruz.com/index.aspx?page=252

June 2024 (Form Rev.01/24) Page 8 written or oral agreements between the Parties with respect to the matters addressed herein. Unless otherwise stated, to the extent there is any conflict between this Agreement and any other agreement (written or oral), the terms of this Agreement shall control.

19. Severability. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the other provisions unenforceable, invalid or illegal.

20. Waiver. Waiver by any party of any portion of this Agreement shall not constitute a waiver of the same or any other portion hereof.

21. Governing Law. This Agreement shall be governed by and interpreted in accordance with California law.

22. Contract Interpretation. Each party acknowledges that it has reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

23. Notices. If either party shall desire or is required to give notice to the other such notice shall be given in writing, via email, and concurrently delivered by: (a) personal delivery, in which case notice is effective upon delivery;

(b) overnight courier (i.e., Federal Express) with charges prepaid or charged to the sender’s account, in which case notice is effective when delivered; (c) priority U.S. Mail, in which case notice shall be deemed delivered on the second business day after the deposit thereof with the U.S. Postal Service. Notices shall be addressed to recipient as follows:

To CITY:

Parks & Recreation Department Tremain Hedden-Jones 323 Church St, Santa Cruz, CA 95060 tjones@santacruzca.gov

(831) 420-5272

To OPERATOR:

Business Name Operator Contact Name Address Email/Phone

Changes to the above information shall be given to the other party in writing ten (10) business days before the change is effective.

24. Counterparts. The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be deemed an original but all of which, together, shall constitute one and the same instrument. A scanned, electronic, facsimile or other copy of a party’s signature shall be accepted and valid as an original.

25. Warranty of Authority. The signatories to this Agreement warrant and represent that each is authorized to execute this Agreement and that their respective signatures serve to legally obligate their respective representatives, agents, successors and assigns to comply with the provisions of this Agreement.

[SIGNATURES ON FOLLOWING PAGE]

mailto:tjones@santacruzca.gov

June 2024 (Form Rev.01/24) Page 9

Approved As To Form:

By: _____________________________ Date: __________________

Office of the City Attorney

CITY OF SANTA CRUZ

By: _____________________________ Date: __________________

Tony Elliot Director of Parks & Recreation

OPERATOR

Printed: ___________________________ Title: __________________

Printed: ___________________________ Title: __________________

June 2024 (Form Rev.01/24) Page 10

EXHIBIT A: SCOPE OF WORK

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EXHIBIT B: INSURANCE REQUIREMENTS

Operator shall procure and maintain insurance against claims for injuries to persons or damages to property and otherwise which may arise from or in connection with the performance of the work under this Agreement and the results of that work by Operator, its agents, representatives, employees, or subcontractors.

A. CERTIFICATE REQUIREMENTS

The City will be issued a Certificate of Insurance (a Memorandum of Understanding will not be accepted) with the following minimum requirements:

• Certificate(s) will show current policy number(s) and effective dates,

• Coverage and policy limits will meet, or exceed, requirements below,

• The Certificate Holder will be City of Santa Cruz, Risk Management, 1200 Pacific Ave., Suite 290, Santa

Cruz, CA 95060,

• Certificate will be signed by an authorized representative,

• An endorsement, if required below, will be provided to show the City, its officers, officials, employees, and volunteers as additional insureds, and

• Coverages must be maintained during the term of the Agreement with the City, unless a longer duration is required as specified below.

B. MINIMUM SCOPE AND LIMITS OF INSURANCE

Operator acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. If Operator maintains broader insurance coverage and/or higher limits than the minimums shown below, the City of Santa Cruz requires and shall be entitled to the broader insurance coverage and/or higher limits maintained by Operator. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Cruz.

Coverage will be at least as broad as:

• COMMERCIAL GENERAL LIABILITY (CGL): $1,000,000 PER OCCURRENCE; $2,000,000 AGGREGATE Proof of coverage for $1 Million per occurrence and $2 Million in the aggregate including products and completed operations, property damage, bodily injury, personal and advertising injury will be provided on Insurance Services Office (ISO) Form CG 00 01 covering CGL.

• PROFESSIONAL LIABILITY (ERRORS AND OMISSIONS): $2,000,000 PER OCCURRENCE OR CLAIM, $2,000,000

AGGREGATE.

Operator will maintain insurance appropriate to Operator’s profession; with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after date of completion of the services under this Agreement.

If coverage is canceled or non-renewed and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date or start of work date, Operator must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the contract of work.

• AUTOMOBILE LIABILITY:

Proof of coverage for $1,000,000 provided on ISO Form Number CA 00 01 covering any auto (Code 1), or if Operator has no owned autos, hired, (Code 8) and non-owned autos (Code 9), per accident for bodily injury and property damage.

• WORKERS’ COMPENSATION AS REQUIRED BY THE STATE OF CALIFORNIA, WITH STATUTORY LIMITS, AND EMPLOYER’S LIABILITY INSURANCE: $1,000,000 per accident for bodily injury or disease.

June 2024 (Form Rev.01/24) Page 12

The Worker’s Compensation policy must be endorsed with a waiver of subrogation in favor of the City for all work performed by the Operator and its employees.

(Not required if Operator provides written verification it has no employees) - If Operator has no employees, Operator shall complete and sign a Workers’ Compensation Exemption Declaration and Release of Liability.

• For Data Security and Privacy Liability

1. Operator shall maintain one or more insurance policies - Privacy, Technology and Data Security Liability, Cyber Liability, or Technology Professional Liability Insurance coverage in the amount of $5,000,000 per occurrence or claim, $5,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Operator in this contract.

2. The policy(ies) shall include coverage for claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information.

3. The policy(ies) shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.

4. The policy(ies) shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City in the care, custody, or control of the Operator.

• CONTRACTORS’ POLLUTION LIABILITY and/or ASBESTOS POLLUTION LIABILITY (CPL) (if project involves environmental hazards) with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

1. If the services involve lead-based paint or asbestos identification / remediation, the Pollution Liability shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification / remediation, the Pollution Liability shall not contain a mold exclusion and the definition of “Pollution” shall include microbial matter including mold.

2. The Automobile Liability policy shall be endorsed to include Transportation Pollution Liability insurance, covering hazardous materials to be transported by Operator pursuant to the Agreement. This coverage may also be provided on the Operator’s Pollution Liability policy.

C. OTHER INSURANCE PROVISIONS

The insurance policies are to comply with the following provisions:

• ADDITIONAL INSURED STATUS

The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Operator including materials, parts, or equipment furnished in connection with such work or operations, products and completed operations. General liability coverage will be provided in the form of an endorsement to Operator’s insurance at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 (if a later edition is used).

http://intranet/Modules/ShowDocument.aspx?documentid=5534 http://intranet/Modules/ShowDocument.aspx?documentid=5534

June 2024 (Form Rev.01/24) Page 13 o PRIMARY COVERAGE

For any claims related to this Agreement, Operator’s and all subcontractor’s insurance coverage will be primary and non-contributory as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents, or volunteers will be excess of Operator’s and all subcontractor’s insurance and will not contribute with it.

• NOTICE OF CANCELLATION

Each insurance policy required above shall state that the coverage shall not be canceled, except with notice to the City.

• WAIVER OF SUBROGATION

Operator hereby grants to the City a waiver of any right to subrogation, except as otherwise not applicable, which any insurer of said Operator may acquire against the City by virtue of the payment of any loss, including attorney’s fees under such insurance. Operator agrees to obtain any endorsement that may be necessary to effectuate this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

• EXCESS LIABILITY/UMBRELLA INSURANCE POLICIES

Operator may use excess liability/umbrella policies to meet the required liability limits on the condition that they provide all of the insurance coverages required herein, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The excess liability/umbrella insurance policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying CGL insurance. No insurance policies maintained by the additional insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Operator’s primary and excess liability policies are exhausted.

• DURATION OF COVERAGE

CGL & Excess Liability/Umbrella policies for any construction related work, including, but not limited to, maintenance, service, or repair work, shall continue coverage for a minimum of 5 years for Completed Operations liability coverage. Such Insurance must be maintained, and evidence of insurance must be provided, for at least five (5) years after completion of the contract of work.

• SELF-INSURED RETENTIONS (SIR)

Self-insured retentions must be declared to and approved by the City. City may require Operator to purchase coverage with a lower retention or provide proof of ability to pay losses and related expenses. 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.

• ACCEPTABILITY OF INSURERS

Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A: VII, unless otherwise acceptable to the City.

• CLAIMS MADE POLICIES

If any of the required policies provide coverage on a claims-made basis:

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided, for at least five (5) years after completion of the contract of work.

June 2024 (Form Rev.01/24) Page 14

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Operator must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

• VERIFICATION OF COVERAGE

Operator will furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy (and CPL, automobile and any Excess Liability/Umbrella policies, as applicable) listing all policy endorsements to be approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning will not waive the Operator’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

D. SUBCONTRACTORS

Operator shall include their subcontractor(s) as additional insured(s) under the policies or shall furnish separate certificates and endorsements for each contractor and subcontractor. Operator shall require and verify that all contractors and subcontractors maintain insurance meeting all the requirements stated herein, and Operator shall ensure that City, its officers, officials, employees, agents, and volunteers are named as additional insureds on insurance required from its contractor(s) and subcontractor(s).

E. SPECIAL RISKS/CIRCUMSTANCES

City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances and provide notice to Operator.