CC 2014-07-08_08.i. Agreement with Barnett Cox and AssocMEMORANDUM
TO: CITY COUNCIL
FROM: STEVEN ADAMS, CITY MANAGER ~
SUBJECT: CONSIDERATION OF CONSULTANT SERVICES AGREEMENT
WITH BARNETT COX & ASSOCIATES FOR TOURISM
MARKETING SERVICES
DATE: JULY 8, 2014
RECOMMENDATION:
·It is recommended the Council approve a consultant services agreement with
Barnett Cox & Associates for tourism marketing services to assist the Arroyo
Grande Tourism Business Improvement District (AGTBID).
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The cost of the agreement is proposed not to exceed $74,000. It will be paid
entirely from funding from the AGTBID. The cost is consistent with the amount
funded in the budget approved by the AGTBID Advisory Board and City Council.
The agreement will continue to provide assistance in developing marketing
efforts for the AGTBID, which helps reduce impacts of the program on City staff.
In addition, the agreement will continue to be managed by the Arroyo Grande -
Grover Beach Chamber of Commerce President/CEO. Therefore, there wi.11 be
little impact on City staff.
BACKGROUND:
At the May 14, 2013 meeting, the City Council adopted the Ordinance to
establish the AGTBID and appointed the members of the AGTBID Advisory
Board. The AGTBID became effective on June 13, 2013 and the assessmentfee
took effect on July 1, 2013. At the August 13, 2013 meeting, the City Council
approved an agreement with Barnett Cox & Associates for tourism marketing
services to assist the AGTBID. At the June 10, 2014 meeting, the City Council
voted to extend the AGTBID another year.
ANALYSIS OF ISSUES:
Barnett Cox & Associates has extensive experience with tourism and other
marketing efforts. The AGTBID Advisory Board has been pleased with the
assistance they have provided. They have been instrumental in the extensive
progress made by the AGTBID during its first year. Therefore, continued
Item 8.i. - Page 1
CITY COUNCIL
CONSIDERATION OF . CONSULTANT SERVICES AGREEMENT WITH
BARNETT COX & ASSOCIATES FOR TOURISM MARKETING SERVICES
JULY 8, 2014
PAGE2
assistance has been recommended. The proposed scope of work remains as
follows:
• Assist in ·developing marketing objectives and . strategies. Commission
.research projects as deemed . necessary to understand the Client's target
market, produ.ct appeal and key message components.
• Develop brand strategies, advertising campaigns and .·budget estimates
based on the Client's . marketing objectives and strategies.· Where
appropriate, the Consultant will provide measured objectives to: monitor
return on investment and campaign effectiveness.
• Provide all creative, production, media planning and buying services.
Development of communications CC\mpaigns using · advertising
commercials, ads, direct mail, brochures, Internet websites, social media,
Apps, collateral, point-of-purchase, and other processes as required by the
plan and as· agreed to by the Client. Arrange photOgraphy, printing •. display,
publicity, etc., as needed. Carry through production in all aspects to
completion.
• · Pinpoint and develop appropriate public and community relations
opportunities relating to communications campaigns. Provide specialized ·
services targeted to enhance the C,lient's brand and public image. ·
• Provide continuous, as.;needed, account service and consultation to ensure
prompt completion of projects.
• Develop and implement specialized areas of promotion as· needed, such as
internal communications, telemarketing, direct response, sales
. presentations, or incentive programs.
• Maintain internal procedures that ensure budget control, prompt billing and
·quality control.
• Provide regular contact reports on all meeting decisions, regular financial
and project status reports.
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
• Approve staff's recommendations; ·
• Modify the scope of services and approve the agreement;
• Continue the item and direct staff to review proposed modifications to the
scope of work with the AGTBID Advisory Board;
• Do not approve the agreement; or
• Provide other direction to staff.
Item 8.i. - Page 2
g~S~g~:;~~ON OF CONSULTANT SERVICES AG~EEMENT WITH
BARNETT COX & ASSOCIATES FOR TOURISM MARKETING SERVICES
JULY 8, 2014
PAGE3
ADVANTAGES:
Approval of this agreement will enable the AGTBID to continue moving forward in
implementing a comprehensive tourism marketing program. This will help
increase hotel stays, accomplish the goals of the AGTBID, improve the local
economy, and demonstrate rapid results to lodging businesses.
DISADVANTAGES:
There are no disadvantages identified.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC NOTIFICATION AND COMMENTS:
The agenda was posted in front of City Hall and on the City's website on
Thursday, July 3, 2014. No comments were received.
Item 8.i. - Page 3
AGREEMENT FOR CONSUL TANT SERVICES
THIS AGREEMENT, is made and effective as of 2014, between
BARNETT COX & ASSOCIATES, a California Corporation, ("Consultant"), and the
CITY OF ARROYO GRANDE, a Municipal Corporation ("City"). In consideration of the
mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on July 1, 2014 and shall remain and continue
in effect until June 30, 2015, unless sooner terminated pursuant to the provisions of this
Agreement.
2. SERVICES
Consultant shall perform the tasks described. and comply with all terms and
provisions set forth in Exhibit "A", attached hereto and incorporated herein by this
reference.
3; PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her
ability, experience and talent, perform all tasks described herein. Consultant shall
employ, at a minimum generally accepted standards and practices .utilized by persons
engaged in providing similar services as are required of Consultant hereunder in
. meeting its obligations under this Agreement.
4. AGREEMENT ADMINISTRATION
The City Manager shall represent City in all legal matters pertaining to the
administration of this Agreement. The City has contracted with the Arroyo Grande -
Grover Beach Chamber of Commerce (Chamber of Commerce) to manage this
program. Therefore, the Chamber of Commerce Executive Director shall serve as the
City Manager's designee and primary contact for the Consultant regarding ongoing
tasks related to the Scope of Work. Shari Clark shall represent Consultant in all matters
pertaining to the administration of this Agreement.
5. PAYMENT
The City agrees to pay the Consultant in accordance with the payment rates and
terms set forth in Exhibit "B", attached hereto and incorporated herein by this reference.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The City and/or Consultant may at any time, for any reason, with or
without cause, suspend or terminate this Agreement, or any portion hereof, by. serving
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upon the other party at least ten (10) days prior written notice. Upon receipt of said
notice, the Consultant shall immediately cease all work under this Agreement, unless
· the notice provides otherwise. If the City suspends or terminates a portion of this
Agreement such suspension or termination shall not make void or invalidate the
remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City
shall pay to Consultant ·the aCtual value of the work performed up to the time of
termination. Upon termination of the Agreement pursuant to this Section, the
Consultant will submit an invoice fo the City pursuant to Section 5. ·
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant's business; or
(c) Assignment of this Agreement by Consultant withoutthe consent of City.
(d) End_ ofthe Agreement term specified in Section 1.
8; DEFAULT OFCONSULTANT
(a) The Consultant's failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the_
terms of this Agreement, City shall have no obligation or duty to continue compensating
Consultant for any work performed after the date it provides the Consultant with written
notice of default and can terminate this Agreement immediately by written notice to the
Consultant. If such failure by the Consultant to make progress in the performance of
work hereunder arises out of causes beyond the Consultant's control, and without fault
or negligence of the Consultant, it shall not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she
shall cause to be served upon the Consultant a written notice of the default. The
· Consultant shall have ten (10) days after service upon it of said notice· in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant
fails to cure its default within_ such period of time, the City shall have the right,
notwithstand_ing any other provision of this Agreement to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equity or under this Agreement.
9. LAWS TO BE OBSERVED. Consultant shall:
(a) · Procure all permits and licenses, pay all charges and fees, and give all
notices which may be necessary and incidental to the due and lawful prosecution of the
services to be performed by Consultant under this Agreement;
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(b) Keep itself fully informed of all existing and proposed federal, state and
local laws, ordinances, regulations, orders, and decrees which may affect those
engaged or employed under this Agreement, any materials used in Consultant's
performance under this Agreement, or the conduct of the · services under this
Agreement;
(c) At all times observe and comply with, and cause all of its employees to
observe and comply with all of said laws, ordinances, regulations, orders, and decrees
mentioned above;
(d) Immediately report to the City's Contract Manager in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawings, specifications, or
provisions of this Agreement.
(e) The City, and its officers, agents and employees, shall not be liable at law
or in equity occasioned by failure of the Consultant to comply with this Section.
10. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts, and other such information required by City that relate
to the performance of services under this Agreement. Consultant shall maintain
adequate records of services provided in sufficient detail to permit an evaluation of
services. All such. records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible. Consultant
shall provide free access to the representatives of City or its designees at reasonable
times to such books and records; shall give City the right to examine and audit said
books and records; shall permit City to make transcripts therefrom as necessary; and
shall allow inspection of all work, data, documents, proceedings, and activities related to
this Agreement. Such records, together with supporting documents, shall be maintained
for a period of three (3) years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this·
Agreement, all original documents, designs, drawings, maps, models, computer files,
surveys, notes, and other documents prepared in the course of providing the services to
be performed pursuant to this Agreement shall become the sole property of the City and
may be used, reused, or otherwise disposed of by the City without the permission of the
Consultant. With respect to computer files, Consultant shall make available to the City,
at the Consultant's office and upon reasonable written request by the City, the
necessary computer software and hardware for purposes of accessing, compiling,
transferring, and printing computer files.
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(c) Consultant retains the right to show materials, not deemed confidential, for
promotional purposes and to retain rights to appropriate design identification in printed
materiafs for promotional purposes. ·
11. INDEMNIFICATION FOR PROFESSIONAL LIABILITY
(a) Indemnification for. Professional Liability. When the law . establishes a·
professional standard of care for Consultant's Services, to the fullest extent permitted by ·
law, Consultant shall indemnify, protect, defend and hold harmless City and any and all
of its officials, employees and agents ("Indemnified Parties") from and against any and
·all losses, liabilities, damages, costs and expenses, including attorney's fees and costs
· to the extent same are caused in whole or in. part by any negligent or wrongful act, error·
or omission of Consultant, its officers, agents, employees or subcontractors or any
entity or individual that Consultant shall. bear the legal liability thereof)• in the
performance of professional services u·nder this agreement.
(b) Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant
shall indemnify, defend and hold harmless City, and any and all of its employees,
officials arid agents from and against any liability" (including liability for claims, suits, ·
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, e.xpenses or costs of any kind, whether actual, alleged orthreatened, including.
attorneys fees and costs, court costs, interest, defense costs, and expert witness fees),.
where the same arise out of, are a consequence of, or are in any way. attributable to, in .
whole or in part, the performance of this Agreement by Consultant or by any individual
or entity for which Consultant is legally liable, including but not limited to officers,
agents, employees or subcontractors of Consultant.
(c). General Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section
from each and every subContractor or any other person or entity involved by, for, with or
on behalf of Consultant in the performance of this agreement. In the event Consultant ·
fails to obtain such indemnity obligations from others as required here, Consultant
agrees to be fully responsible according to the terms of this section. Failure of City to
monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defencj City as set forth here is binding on the successors, .assigns or heirs of
Consultant and shall survive the termination of this agreement or this.section.
12. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration. of this
. Agreement insurance coverage as specified in Exhibit "C" attached hereto and
incorporated herein as though set forth in full.
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13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the City a wholly
independent Consultant. The personnel performing the services under this Agreement
on behalf of Consultant shall at all times be under Consultant's exclusive direction and .
control. Neither City nor any of its officers, employees, or agents shall have control over ·
the conduct of Consultant or any of Consultant's officers, employees, or agents, except
as set forth in this Agreement. Consultant shall not at any time or in any manner
represent that it or any of its officers, employees, or agents are in any manner officers, . .
employees, or agents of the City. Consultant shall not incur or have the power to incur
any debt, obligation, or liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Consultant in connection with
performance of this Agreement. Except for the fees paid to Consultant as provided in
the Agreement, City shall not pay salaries, wages, or other compensation to Consultant
for performing services hereunder for City. City shall not be liable for compensation or
indemnification to. Consultant for injury or sickness arising out of performing services
hereunder.
14. UNDUE INFLUENCE.
Consultant declares and warrants that no undue influence or pr~ssure was or is ·
used against or in conc.ert with any officer or employee of the City of Arroyo Grande in
connection with the .award, terms or implementation of this Agreement, including any
. method of coercion, confidential financial arrangement, or financial inducement. No
officer or employee of the City of Arroyo Grande will receive compensation, directly or
indirectly, from Consultant, or from any officer, employee or agent of Consultant, in
. connection with the award of this Agreement or any work to be conducted as a result of
this Agreement. Violation of this Section shall be a material breach of this Agreement
entitling the City to any and all remedies at law or in equity.
15. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the project
during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, ·
in any agreement or sub-agreement, or the proceeds thereof,. for work to be performed
in connection with the project performed under this Agreement. ·
16. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) Subject to the exceptions listed in section 10, all information gained by
Consultant in performance of this Agreement shall be considered confidential and shall ·
not be released by Consultant without City's prior written authorization. Consultant, its
officers, employees, agents, or subcontractors, shall not without written authorization
from the City Manager or unless requested by the City Attorney, voluntarily provide.
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· declarations, letters of support, testimony at deposition.s, response to interrogatories, or
other information concerning the work performed under this Agreement or relating to
any project or property located within the City. Response to a subpoena or court order
shall not be considered "voluntary" provided Consultant gives City notice of such court
order or subpoena.
(b) Consultant shall promptly notify City should Consultant, its officers,.
employees, agents, or subcontractors be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, request for
admissions, or other discovery request, court order, or subpoena from any person or
party regarding this Agreement and the work performed thereunder or with respect to
any project or property· located within the City. City retains the right, but has no
obligation, to represent Consultant and/or be present at any deposition, hearing, or
similar proceeding. Consultant agrees to cooperate fully with City and to provide the
opportunity to review any response to discovery requests provided by Consultant.
However, City's right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
17. · NOTICES
Any notice which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by (i) personal service, (ii)
delivery by a reputable document delivery service, such as but not limited to, Federal
Express, which provides a receipt showing date and time of delivery, or (iii) mailing in
the United States Mail, certified mail, postage prepaid; return receipt requested,
addressed to the address of the party as set forth below or at any other address as that
party may later designate by notice:
To City:
To Consultant:
18. ASSIGNMENT
City of Arroyo Grande
Steven Adams
300 E. Branch Street
Arroyo Grande, CA 93420
Barnett Cox & Associates, Inc.
Shari Clark
711 Tank Farm Road
Suite 210
San Luis Obispo, CA 93401
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
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·19. GOVERNING LAW
The City and Consultant 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 Superior Court .
. 20. ENTIRE AGREEMENT
This Agreement contains the entire. understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, or written, are merged
into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party's own independent inve$tigation of any and all facts such party deems material.
21. TIME
City and Consultant agree that time is of the essence in this Agreement.
22. CONSTRUCTION
The parties agree that each has had an opportunity to have their counsel review
this Agreement and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in the interpretation of this Agreement
or any amendments or exhibits thereto. The captions of the sections are for
convenience and reference only, and are not intended to be construed to define or limit
the provisions to which they relate.
23. AMENDMENTS
· · Amendments to this Agreement shall be in writing and shall be made only with
the mutual written consent of all. of the parties to this Agreement.
24. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Consultant and has the authority to bind Consultant to the performance of
its obligations hereunder. ·
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be.
executed the day and year first above written.
CITY OF ARROYO GRANDE CONSULTANT
By: __________ _ By: ___________ _
· Tony Ferrara, Mayor
Its: '--------~---~---
Attest: (Title)
Kelly Wetmore, City Clerk
Approved As· To Form:
David Hirsch, Assistant City Attorney
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EXHIBIT A
SCOPE OF WORK
Under the direction of the City, Consultant will serve as Agent of Record and
consultant providing advertising, public relations, and marketing services on behalf
of the client to communicate information about tourism in the city of Arroyo Grande.
BCA will provide some or all of the services listed below:
• Assist in developing mar!<eting objectives and strategies. Commission research
projects as deemed necessary to understand the Client's target market, product
appeal and key message components. ·
• Develop brand strategies, advertising campaigns and budget estimates based on
the Client's marketing objectives and strategies. Where appropriate, BCA will
provide measured objectives to monitor return on investment and campaign
effectiveness.
• Provide . all creative, production, ·media planning and buying services.
Development of communications campaigns using advertising commercials,
ads,· direct mail, brochures, Internet websites, social media, Apps, collateral,
point-of-purchase, and other processes as required by the plan and as agreed to
by the Client. Arrange photography, printing, display, publicity, etc., as needed.
Carry through production in all aspects to completion.
• Pinpoint and develop appropriate public and community relations opportunities
. relating to communications campaigns. Provide specialized services targeted to
enhance the Client's brand and public image.
• Provide continuous, as-needed, account service and consultation to ensure
prompt completion of projects.
• Develop and implement specialized areas of promotion as needed, such as
internal commuriications, telemarketing, direct response, sales presentations, or
incentive programs. ·
• Maintain internal procedures that ensure budget control, . prompt billing and
quality control.
• Provide regular contact reports on all meeting decisions, regular financial and
project status reports.
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EXHIBIT B
PAYMENT SCHEDULE
Consultant shall be paid for actual work performed and shall complete the tasks set
forth in. Exhibit A Scope of Work for a total amount not to exceed Seventy-Four
Thousand Dollars ($74,000.00). Consultant shall invoice City at the following rates:
Company Principals
Account Management/Strategic Development
. Creative Services
Web Design/Web Development
Account Coordination/Production Services
$175.00 per hour
$120.00 per hour
$120.00 per hour·
$140.00 per hour
$80 per hour
Material costs, including media, licensing f~es, music fees, talent fees, production
charges and handling charges where applicable, are not included in the hourly fees and
may be subject to a surcharge. City may be subject to deposits on certain material
costs or fees subject to vendor policies. City may be subject to deposits on· certain
material. costs or fees subject to vendor policies. Consultant will serve as a
commissionable agent on behalf of the City, with vendors used for the City's services,
where· commissions may be applicable.
· Consultant will invoice City no more than monthly. Invoices shall be sent to the
'. .Chamber of Commerce Executive Director. Each invoice will reference job orders, .
components, specific services, media costs, production · costs, fees and material
expense· and sales tax where applicable. City shall mail payment to Consultant for the
net amount of uncontested invoices no later than thirty (30) days after receipt of each
. invoice by the City. Any past due balances under this Agreement shall bear interest at
· the rate of 1.5 percent per month (18.0 annual percentage rate) on unpaid balances.
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EXHIBIT C
INSURANCE REQUIREMENTS
. Prior to the beginning of and throughout the duration of the Work, Consultant Will
maintain insurance in. conformance with· the requirements set forth below. Consultant ·
will use. existing coverage to comply with these requirements. If that existing coverage
does not meet the requirements set forth here, Consultant agrees to amend,
supplement or endorse the existing coverage to do so. Consultant acknowledges that
the insurance coverage and policy limits set forth in this section constitute the minimum
amount of coverage required. Any insurance proceeds available to City in excess of the
limits and coverage required in this agreement and which is applicable to a given loss,
will be available to City.
· Consultant shall provide the following types and amounts of insurance:
. Commercial General. Liability Insurance using Insurance Services Office "Commercial
General Liability" policy from CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence.
Business Auto. Coverage on ISO Business Auto Coverage from CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this
requirement rriay be satisfied by a non-owned auto endorsement to the general liability
policy described above. If Consultant or Consultant's employees will ·use personal autos·
in any way on this project, Consultant shall provide evidence of personal auto liability
coverage.for each such person.
Workers Compensation on a state-approved policy form providing statutory benefits as
required by law with employer's liability limits no less than $1,000,000 per accident or
disease. ·
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designated to protect against acts, errors or
omissions of the Consultant and "Covered Professional Services" as designated in the
policy must specifically include work performed under this agreement. The policy limit ·
shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay ·
on behalf of' the insured and must include a provision establishing the insurer's duty to
defend. The policy retroactive date shall be on or before the effective date of this
agreement._
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Insurance procured pursuant to these requirements shall be written by insurer that are
admitted carriers in the state California and with an A.M: Bests rating of A-or better and
a minimum financial size VII.
General conditions pertaining . to prov1s1on of insurance coverage by Consultant.
Consultan.t and City agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials
employees and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Consultant also agrees to require all Consultants, and subcontractors to
do likewise.
2; No liability insurance. coverage provided tc:i comply with this Agreement
shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of
subrogation prior to a loss. Consultanf agrees to waive subrogation rights against City
regardless of the applicabi.lity of any insurance proceeds, and to require all Consultants
and subcontractors to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
· applicable to this agreement are intended to apply to the Jull extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or its
operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called "third party action over" claims, including any exclusion for bodily
i_njury to an employee of the insured or of any Consultant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
. and additional requirements by the City, as the need arises. Co"nsultant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction·
. of discovery period) that may affect City's protection without City's prior written consent
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages· required and an additional
insured endorsement to Consultant's general liability policy, shall be delivered to City at
or prior to the execution of this Agreement. In the event such proof of any insurance is
not delivered as required, or in the event such insurance is canceled at any time and no
. replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance· it deems necessary to protect its interests under this or any other agreement
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and to pay the premium. Any premium so paid by City shall be charged to and promptly ..
paid by Consultant or deducted from sums due Consultant, at City option.
8. Certificate(s) are to reflect that the insurer will provide 30 days .notice to
City .of any cancellation of coverage. Consultant agrees to require its insurer to modify
such certificates to delete any exculpatory wording stating that failure of the insurer to
mail written notice of cancellation imposes no obligation, or that any party will
. "endeavor" (as opposed to being required) to comply with the requirements of the
certificate.
9. · It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subcontractor, is intended to
apply first and on a primary, noncontributing basis in relation to any other insurance or
self insurance available to City.
10. Consultant agrees to ensure that subcontractors, and any other party
involved with the project who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
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. Consultant agrees that upon request, all agreements with subcontractors and
others engaged in the project will be submitted to City for review.
11. ·Consultant agrees not to self-insure or to use any self-insured retentions
or deductibles on any portion of the insurance required herein and further agrees that it
· .. will not allow any Consultant, subContractor, Architect, Engineer or other entity or
· person ih any way involved in the performance of work on the project contemplated by
this agreement to self-insure its obligations to City. If Consultant's existing coverage
·includes a deductible or self-insured retention, the deductible or self-insured retention
must be declared to the City. At the time the City shall review· options with the
Consultant, which may include .reduction or elimination of the deductible or self-insured
retention, substitution of other coverage, or other solutions. _
12. The City reserves the right at any time during the term of the contract to
change the amounts and types of insurance required by giving the Consultant ninety
• (90) days advance written notice of such change. If such change results in substantial
additional cost to the Consultant, the City will negotiate additional compensation
proportional to the increase benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party ·hereto taking any steps
that can be deemed to be in furtherance of or towards performance of this Agreement. ·
14. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirements
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in no way imposes any. additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
15. Consultant will renew the required coverage annually as long as City, or
its employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreeme.nt is canceled or
terminated for any reason. Termination of this obligation is not effective until City
executes a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has b~en
ordered shall be submitted prior to expiration. A coverage binder or letter from
Consultant's· insurance agent to this effect is acceptable. A certificate of insurance
and/or additional insured endorsement as required in these specifications applicable to
the renewing or new coverage must be provided to City within five days of the expiration
of the coverages.
17. The provisions of any workers' compensation or similar act will not limit
the obligations of Consultant under this agreement. Consultant expressly agrees not to
use any statutory immunity -defenses under such. laws with respect to City, its
employees, officials and agents.
18. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as
a waiver of any coverage normally provided by any given policy. Specific reference to a
given coverage feature is for purposes of clarification only as it pertains to a given issue,
and is not intended by any party or insured to be limiting or all-inclusive.
19. . . These insurance requirements are intended to be separate and distinct
from any other provision in this agreement and are intended by the parties here to be
interpreted as such. ·
· 20. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts
with or impairs the provisions of this Section.
21. Consultant agrees to be responsible for ensuring that no contract used by .
any party involved~ in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to City. It is not the intent of City to
. reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against City for payment of premiums or other amounts with respect
thereto.
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22. Consultant agrees to provide immediate notice to City of any claim .or loss
against Consultant arising out of the work performed under this agreement. City
assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve City.
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