HomeMy WebLinkAboutContract 1795c_rr43
TRANSMITTAL
TERRA NOVA PLANNING & RESEARCH, INC.®
42635 Melanie Place, Suite 101
Palm Desert, CA. 92211
Phone: (760) 341-4800
FAX#: (760) 341-4455
E-mail: kcuza@terranovaplanning.com
DATE: July 5, 2018 Via Email and USPS
TO: Leisa Lukes
Business Development Manager
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
FROM: Kimberly L. Cuza
Assistant to Nic
Criste
RE: Agreement for Services between The City of Cathedral City and Terra Nova Planning &
Research Inc.
Enclosed please find one original signed and notarized Agreement for Services. Please provide back a
copy of the fully executed agreement, once available, for our files.
Please do not hesitate to contact Nicole or me should you have any questions, or need anything further.
Kindest Regards!
Cc:
Enclosures: X Yes A No
A E -Mail
Documents to follow: A FEDEX/UPS
A Mail
Confidentiality Notice: This transmittal is intended only for the use of the individual or entity to which it is addressed and
may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of
this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended
recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us immediately by telephone and return the
original message to us at the above address via the U.S Postal Service. Thank You.
AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
TERRA NOVA PLANNING & RESEARCH, INC.
This Agreement for Services ("Agreement") is entered into as of July 11, 2018,
("Effective Date") by and between the City of Cathedral City, a municipal corporation
("City") and Terra Nova Planning & Research, Inc., a California Corporation ("Service
Provider"). City and Service Provider are sometimes hereinafter individually referred to
as "Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. City has sought, by a request for consultant proposal the performance of
the services defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of a proposal for the performance
of the services defined and described particularly in Section 2 of this Agreement, was
selected by the City to perform those services.
C. Pursuant to the City of Cathedral City's Municipal Code, City has authority
to enter into this Services Agreement and the City Manager has authority to execute
this Agreement.
D. The Parties desire to formalize the selection of Service Provider for
performance of those services defined and described particularly in Section 2 of this
Agreement and desire that the terms of that performance be as particularly defined and
described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants
made by the Parties and contained here and other consideration, the value and
adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 19 "Termination of Agreement" of this
Agreement, the Term of Phase 1 of this Agreement is for 4 months commencing on the
Effective Date. The term of Phase 2 is conditioned upon City Council's decision to
move forward with annexation activities at the conclusion of Phase 1, with the option to
include Phase 2 as an amendment to this Agreement.
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lump sum), the labor category in each invoice shall include detailed descriptions of task
performed and the amount of time incurred for or allocated to that task. City shall
independently review each invoice submitted by the Service Provider to determine
whether the work performed and expenses incurred are in compliance with the
provisions of this Agreement. In the event that no charges or expenses are disputed,
the invoice shall be approved and paid according to the terms set forth in subsection
(c). In the event any charges or expenses are disputed by City, the original invoice
shall be returned by City to Service Provider for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by
Service Provider which are disputed by City, City will use its best efforts to cause
Service Provider to be paid within forty-five (45) days of receipt of Service Provider's
correct and undisputed invoice.
(d) When payments made by City equal ninety-five percent of the maximum
fee provided for in this Agreement, no further payments shall be made until the final
work under this Agreement has been accepted by the City.
(e) Payment to Service Provider for work performed pursuant to this
Agreement shall not be deemed to waive any defects in work performed by Service
Provider.
(f) The Service Provider shall submit invoices under this Agreement to:
Leisa Lukes, Business Development Manager
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Service Provider's work under this
Agreement, either during performance or when completed. City shall reject or finally
accept Service Provider's work within sixty (60) days after submitted to City. City shall
reject work by a timely written explanation, otherwise Service Provider's work shall be
deemed to have been accepted. City's acceptance shall be conclusive as to such work
except with respect to latent defects, fraud and such gross mistakes as amount to
fraud. Acceptance of any of Service Provider's work by City shall not constitute a
waiver of any of the provisions of this Agreement including, but not limited to, Section
15 "Indemnification" and Section 16 "Insurance."
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys,
reports, data, notes, computer files, files and other documents prepared, developed or
discovered by Service Provider in the course of providing the Services pursuant to this
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SECTION 8. INDEPENDENT CONTRACTOR.
(a) Service Provider is and shall at all times remain a wholly independent
contractor and not an officer, employee or agent of City. Service Provider shall have no
authority to bind City in any manner, nor to incur any obligation, debt or liability of any
kind on behalf of or against City, whether by contract or otherwise, unless such
authority is expressly conferred under this Agreement or is otherwise expressly
conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of
Service Provider shall at all times be under Service Provider's exclusive direction and
control. Neither City, nor any elected or appointed boards, officers, officials, employees
or agents of City, shall have control over the conduct of Service Provider or any of
Service Provider's officers, employees, or agents except as set forth in this Agreement.
Service Provider shall not at any time or in any manner represent that Service Provider
or any of Service Provider's officers, employees, or agents are in any manner officials,
officers, employees or agents of City.
(c) Neither Service Provider, nor any of Service Provider's officers,
employees or agents, shall obtain any rights to retirement, health care or any other
benefits which may otherwise accrue to City's employees. Service Provider expressly
waives any claim Service Provider may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK.
(a) Service Provider represents and warrants that it has the qualifications,
experience and facilities necessary to properly perform the Services required under this
Agreement in a thorough, competent and professional manner. Service Provider shall
at all times faithfully, competently and to the best of its ability, experience and talent,
perform all Services. In meeting its obligations under this Agreement, Service Provider
shall employ, at a minimum, generally accepted standards and practices utilized by
persons engaged in providing services similar to the Services required of Service
Provider under this Agreement. In addition to the general standards of performance set
forth this section, additional specific standards of performance and performance criteria
may be set forth in Exhibit "A" "Scope of Work" that shall also be applicable to Service
Provider's work under this Agreement. Where there is a conflict between a general and
a specific standard of performance or performance criteria, the specific standard or
criteria shall prevail over the general.
(b) Service Provider warrants that (1) it has thoroughly investigated and
considered the work to be performed, (2) it has investigated the issues, regarding the
scope of services to be provided, (3) it has carefully considered how the work should be
performed, and (4) it fully understands the facilities, difficulties and restrictions attending
performance of the work under this Agreement.
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shall file the subject Form 700 with the City Clerk's Office pursuant to the written
instructions provided by the Office of the City Clerk within ten (10) days of the request.
(c) City understands and acknowledges that Service Provider is, as of the
date of execution of this Agreement, independently involved in the performance of non -
related services for other governmental agencies and private parties. Service Provider
is unaware of any stated position of City relative to such projects. Any future position of
City on such projects shall not be considered a conflict of interest for purposes of this
section.
(d) City understands and acknowledges that Service Provider will perform
non -related services for other governmental agencies and private Parties following the
completion of the Services under this Agreement. Any such future service shall not be
considered a conflict of interest for purposes of this section.
SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
(a) All information gained or work product produced by Service Provider in
performance of this Agreement shall be considered confidential, unless such
information is in the public domain or already known to Service Provider. Service
Provider shall not release or disclose any such information or work product to persons
or entities other than City without prior written authorization from the City Manager,
except as may be required by law.
(b) Service Provider, its officers, employees, agents or subcontractors, shall
not, without prior written authorization from the City Manager or unless requested by the
City Attorney of City, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories or other information concerning the work
performed under this Agreement. Response to a subpoena or court order shall not be
considered "voluntary" provided Service Provider gives City notice of such court order
or subpoena.
(c) If Service Provider, or any officer, employee, agent or subcontractor of
Service Provider, provides any information or work product in violation of this
Agreement, then City shall have the right to reimbursement and indemnity from Service
Provider for any damages, costs and fees, including attorney's fees, caused by or
incurred as a result of Service Provider's conduct.
(d) Service Provider shall promptly notify City should Service Provider, 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 party
regarding this Agreement and the work performed thereunder. City retains the right, but
has no obligation, to represent Service Provider or be present at any deposition,
hearing or similar proceeding. Service Provider agrees to cooperate fully with City and
to provide City with the opportunity to review any response to discovery requests
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(d) Limitation of Indemnification. Notwithstanding any provision of this
section to the contrary, design professionals are required to defend and indemnify the
City only to the extent permitted by Civil Code Section 2782.8, which limits the liability of
a design professional to claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses, expenses or costs that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the design
professional. The term "design professional," as defined in Section 2782.8, is limited to
licensed architects, licensed landscape architects, registered professional engineers,
professional land surveyors, and the business entities that offer such services in
accordance with the applicable provisions of the California Business and Professions
Code.
(e) City's Negligence. The provisions of this section do not apply to claims
occurring as a result of City's sole negligence. The provisions of this section shall not
release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officials, employees and agents.
SECTION 16. INSURANCE.
Service Provider agrees to obtain and maintain in full force and effect during the
term of this Agreement the insurance policies set forth in Exhibit "C" "Insurance" and
made a part of this Agreement. All insurance policies shall be subject to approval by
City as to form and content. These requirements are subject to amendment or waiver if
so approved in writing by the City Manager. Service Provider agrees to provide City
with copies of required policies upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of Service Provider are material considerations for
this Agreement. City has an interest in the qualifications and capability of the persons
and entities who will fulfill the duties and obligations imposed upon Service Provider
under this Agreement. In recognition of that interest, Service Provider shall not assign
or transfer this Agreement or any portion of this Agreement or the performance of any
of Service Provider's duties or obligations under this Agreement without the prior written
consent of the City. Any attempted assignment shall be ineffective, null and void, and
shall constitute a material breach of this Agreement entitling City to any and all
remedies at law or in equity, including termination of this Agreement pursuant to
Section 19 "Termination of Agreement." City acknowledges, however, that Service
Provider, in the performance of its duties pursuant to this Agreement, may utilize
subcontractors.
SECTION 18. CONTINUITY OF PERSONNEL.
Service Provider shall make every reasonable effort to maintain the stability and
continuity of Service Provider's staff and subcontractors, if any, assigned to perform the
Services. Service Provider shall notify City of any changes in Service Provider's staff
9
acts of the public enemy, acts of federal, state or local governments, acts of City, court
orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather.
The term and price of this Agreement shall be equitably adjusted for any delays due to
such causes.
SECTION 22. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and
available to City as public records, and which are necessary for carrying out the
Services shall be furnished to Service Provider in every reasonable way to facilitate,
without undue delay, the Services to be performed under this Agreement.
SECTION 23. NOTICES.
All notices required or permitted to be given under this Agreement shall be in
writing and shall be personally delivered, or sent by telecopier or certified mail, postage
prepaid and return receipt requested, addressed as follows:
To City:
City of Cathedral City
Attn: Leisa Lukes, Business Development Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Telephone: 760.770.0386
Email: LLukes@cathedralcity.gov
To Service Provider: Terra Nova Planning & Research, Inc.
Attn: Nicole Sauviat Criste, Principal
42635 Melanie Place, Suite 101
Palm Desert, CA 92211
Telephone: 760.341.4800
Email: NCriste@terranovaplanning.com
Notice shall be deemed effective on the date personally delivered or transmitted
by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the
United States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Service Provider
represents and warrants that he/she/they has/have the authority to so execute this
Agreement and to bind Service Provider to the performance of its obligations
hereunder.
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shall be entitled to an award of reasonable attorney's fees, costs and expenses, in
addition to any other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire,
complete, final and exclusive expression of the Parties with respect to the matters
addressed therein and supersedes all other agreements or understandings, whether
oral or written, or entered into between Service Provider and City prior to the execution
of this Agreement. No statements, representations or other agreements, whether oral
or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by
any court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall not be affected thereby and the Agreement shall be
read and construed without the invalid, void or unenforceable provision(s).
SECTION 33. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the
terms of any Exhibit hereto, or with the terms of any document incorporated by
reference into this Agreement, the terms of this Agreement shall control.
[THIS SECTION LEFT INTENTIONALLY BLANK]
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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.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
COUNTY OF RIVERSIDE
On Jo v
Date
, 2018, before me, A\cs— r,-\\-0. \ ��tiS A) c.+c„
Name And Title Of Officer (e.g. "Jane Doe, Notary Public"1� ‘'X t^
personally appeared lo1n,v‘ ®Dyke. C S \ e. t A} , CC\ tc1•k C r d S k ,
Name of Sigher(s)
who proved to me on the basis of satisfactory evidence to be the
person@ whose namq,)s ,ieare subscribed to the within
instrument and acknowledged to me that bed/sl4%they executed
the same in I /her/their authorized capacity lei, and that by
h01)e/their signature& on the instrument the persor; or the
entity upon behalf of which the person) 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.
ABRAHAM ISLAS
; V Commission 41 2107949
z ' '; ;'" Notary Public - California I
t'►/ Riverside County
Ali Comm. Exelres At 2_0,_20_194
WITNESS my hand and official seal.
A\( ok\f\c.."/‘
1
OPTIONAL
Signature of Notary Public
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S)
Signer's Name:
Individual
Corporate Officer
Partner(s)
Title(s)
Limited
General
Attorney -I n -Fact
Trustee(s)
Guardian/Conservator
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
DESCRIPTION OF ATTACHED DOCUMENT
% 0,1"--0zf-42.4 Ce'j
Title or Type of Document
\\ L1000-0 A.e
Number Of Pages
Date Of Document
Signer(s) Other Than Named Above
scenarios. Constraints and opportunities to be analyzed include roadway
infrastructure and potential deficits (on an order of magnitude basis), water
and sanitary sewer, flood control challenges, provision of municipal services
(including quantified need for additional staff), and MSHCP adjacencies and
development potential. Additional issue areas may be generated at the kick-off
meeting.
E. Prepare Fiscal Impact Analysis
The fiscal impact analysis will be developed based on the constraints and
opportunities analysis, and will include both general fund and restricted fund
costs and revenues. The analysis will be prepared for each of up to three
scenarios, and will be comprehensive enough to be used in the Phase 2 LAFCO
annexation, if an annexation is the City Council's direction. The fiscal impact
analysis can be prepared based on a phased development assumption —
showing costs and revenues at 5 year intervals as development occurs, for
example — or as a build out analysis, at the City's discretion.
F. Community Outreach
The community of Thousand Palms has been very attentive in the past to
the City's Sphere expansions. Based on that history, we would recommend that
Phase 1 include a presentation to the Thousand Palms Community Council,
once the preliminary analysis of the annexation scenarios has been identified.
At this stage, we would not recommend further meetings as part of Phase 1.
Terra Nova will work with City staff in developing a presentation, preparing
handout materials and PowerPoint slides, and will assist in a joint presentation,
with City staff, to the Community Council.
G. Draft and Final Annexation Study
The constraints and opportunities analysis and the fiscal impact analysis
will be combined into a single document which will include recommendation on
future actions. This document will be reviewed and discussed with City staff,
edited as necessary, and will be distributed to Planning Commission and City
Council for their consideration.
H. Hearing Attendance
Working with City staff, we will assist in the preparation of staff reports
and presentation materials for Planning Commission and City Council
meetings. We have assumed that City staff would be the primary author of the
staff report, with Terra Nova support. We would also participate in the
presentation to both the Planning Commission and the City Council.
A-2
Exhibit "B"
Phase 1 - Annexation Study
Project Budget
City Team Meetings , Internal Meetings, etc. $3,180.00
(10 hrs @ $165./Hr.)
(10 hours @ $115./Hr.)
(4 hrs @ $95./Hr.)
Preparation and Attendance: Community Council Presentation, Planning Commission
and City Council Hearings (3) $6,920.00
(16 hrs @ $165./Hr.)
(24 hours @ $115./Hr.)
(16 hrs @ $95./Hr.)
Research and Documentation $4,200.00
(20 hours @ $115./Hr.)
(20 hrs @ $95./Hr.)
Land Use Scenarios (3) $3,150.00
(8 hrs @ $165./Hr.)
(6 hours @ $115./Hr.)
(12 hours @ $95./Hr.)
Physical Constraints and Opportunities Report, Annexation Study $10,650.00
(16 hrs @ $165./Hr.)
(30 hours @ $115./Hr.)
(48 hrs @ $95./Hr.)
Fiscal Impact Analysis (3 Scenarios) $14,010.00
(34 hrs @ $165./Hr.)
(60 hrs @ $140./Hr.)
GIS Mapping & Exhibit Preparation $2,520.00
(42 hrs @ $60./Hr.)
Project Management $4,950.00
(30 hrs @ $165./Hr.)
Administrative Support $900.00
(20 hrs @ $45./Hr.)
Miscellaneous Office Expenses: copies, postage, etc. $500.00
Total Phase 1 Costs $50,980.00
B-1
Terra Nova Fee Schedule
Terra Nova invoices its clients on a cost -basis using an hourly billing system. The scope
of each planning effort is typically broken down by task and assigned estimated necessary
staff time and the applicable hourly rate. Reimbursable expenses are charged on a cost
basis, except where otherwise indicated. Clients are invoiced on a monthly basis.
STANDARD FEE SCHEDULE
2018
Terra Nova Staff Hourly
Rate
Principal Planner
Senior Planner
Associate Planner
Assistant Planner
Media Specialist
Graphic Design Specialist
Administrative Assistant
$ 165.00
$ 140.00
$ 115.00
$ 95.00
$ 85.00
$ 60.00
$ 45.00
REIMBURSABLES
Photo Copies
(8.5"X11"BW) $0.15 ea.
(8.5" X 11" Color) $ 0.30 ea.
(11" X 17" BW) $ 0.30 ea.
(11" X 17" Color) $ 0.60 ea.
Large Format Plots
BW $ 1.00/S. F.
Color $ 5.00/SF
Telephone Toll Charges Cost
FAX Transmittals Cost
Reproduction, Special photographic services,
document printing, aerial photogrammetry, postage, etc. Cost
B-2
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintain
insurance, acceptable to the City, in full force and effect throughout the term of this
Agreement, against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the Services by Service Provider, its
agents, representatives or employees. Service Provider shall procure and maintain the
following scope and limits of insurance:
Only the following "marked" requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence
basis to protect Service Provider and City against liability or claims of liability which may
arise out of this Agreement in the amount of one million dollars ($1,000,000) per
occurrence and subject to an annual aggregate of two million dollars ($2,000,000).
Coverage shall be at least as broad as Insurance Services Office form Commercial
General Liability coverage (Occurrence Form CG 0001). There shall be no
endorsement or modification of the CGL limiting the scope of coverage for either
insured vs. additional insured claims or contractual liability. All defense costs shall be
outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less
than $1,000,000 for injuries, including accidental death, to any one person, and subject
to the same minimum for each person, in an amount not less than one million dollars
($1,000,000) for each accident, and property damage insurance in an amount of not
less than one million dollars ($1,000,000). A combined single limit policy with
aggregate limits in an amount of not less than $2,000,000 shall be considered
equivalent to the said required minimum limits. Coverage shall be at least as broad as
Insurance Services Office form number CA 0001 covering Automobile Liability,
including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to
the approval of the City.
X Workers' Compensation Insurance: Workers' Compensation insurance that
includes a minimum of one million dollars ($1,000,000) of employers' liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of
subrogation against the City and its respective elected officials, officers, employees,
agents and representatives. In the event a claim under the provisions of the California
Workers' Compensation Act is filed against City by a bona fide employee of Service
Provider participating under this Agreement, Service Provider is to defend and
indemnify the City from such claim.
C-1
c. Service Provider's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits
of the insurer's liability.
d. Any failure to comply with the reporting or other provisions of
the insurance policies, including breaches of warranties, shall not affect coverage
provided to City, and its respective elected and appointed officers, officials, employees
or volunteers.
e. The insurer waives all rights of subrogation against the City,
its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager
otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation
against City, and its respective elected and appointed officers, officials, employees and
agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or
before the effective date of this Agreement, certificates of insurance necessary to
satisfy City that the insurance provisions of this contract have been complied with. The
City may require that Service Provider furnish City with copies of original endorsements
effecting coverage required by this Exhibit "C". The certificates and endorsements are
to be signed by a person authorized by that insurer to bind coverage on its behalf. City
reserves the right to inspect complete, certified copies of all required insurance policies,
at any time.
1. Service Provider shall furnish certificates and endorsements from
each subcontractor identical to those Service Provider provides.
2. Any deductibles or self-insured retentions must be declared to and
approved by City. At the option of City, either the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City or its respective elected or
appointed officers, officials, employees and volunteers, or the Service Provider shall
procure a bond guaranteeing payment of losses and related investigations, claim
administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall
not be construed to limit Service Provider's liability hereunder nor to fulfill the
indemnification provisions and requirements of this Agreement.
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