08.f. Agreement with BFGCMEMORANDUM
TO: CIN COUNCIL
FROM: STEVEN ADAMS, ClN MANAGER $f
SUBJECT: CONSIDERATION OF THE FIRST AMENDMENT TO THE
ARCHITECTURAL SERVICES AGREEMENT WlTH BFGC - IBI
GROUP ARCHITECTURE PLANNING FOR THE POLICE BUILDING
PROJECT AND AN AGREEMENT WlTH THE SUCCESSOR
AGENCY FOR USE OF TAX INCREMENT FUNDS
DATE: MAY 22,2012
RECOMMENDATION:
It is recommended the City Council: 1) approve and authorize the City Manager to
execute an amendment extending the architectural services agreement with BFGC
Architects for the Police Building project; and 2) approve an agreement with the
successor agency in a form acceptable to the City Attorney for continued use of tax
increment funds budgeted for the project.
FINANCIAL IMPACT:
There is currently $1 11,000 remaining in the balance of tax increment funds
budgeted for the Police Building project architectural services.
BACKGROUND:
At the May 22, 2007 meeting, the City Council approved an agreement BFGC - IBI
Group Architecture Planning to develop a feasibility study and needs assessment for
expansion of the existing Police Station. As a result of that study, alternative sites
were pursued and the City Council approved an agreement with BFGC Architects at
the October 13, 2009 meeting for design of the proposed Police Station project at
West Branch Street and Rodeo Drive.
At the April 12, 201 1 meeting, the City Council and Redevelopment Agency Board of
Directors approved a new agreement to include a site analysis on alternatives
identified and to begin preparation of final design when the preferred site is
approved. In addition, the Redevelopment Agency Board of Directors approved
findings required to utilize Redevelopment Agency funds for this purpose.
Agenda Item 8.f.
Page 1
CITY COUNCIL
CONSIDERATION OF THE FIRST AMENDMENT TO THE ARCHITECTURAL
SERVICES AGREEMENT WlTH BFGC ARCHITECTS FOR THE POLICE
BUILDING PROJECT AND AN AGREEMENT WlTH THE SUCCESSOR AGENCY
FOR USE OF TAX INCREMENT FUNDS
MAY 22,2012
PAGE 2
Work was suspended while waiting for results of the June 5' bond measure and the
agreement was due to expire on April 30'~. Therefore, it needs to be renewed to
remain active.
ANALYSIS OF ISSUES:
Work will not be performed under the terms of the agreement unless the bond
measure passes and the City provides direction to proceed. If full design becomes
necessary, an additional agreement using bond proceeds will need to be established.
Costs are currer~tly being developed and discussed.
Since the Redevelopment Agency no longer exists, to continue to use the tax
increment funds earmarked for the scope of work in the agreement, it will now be
necessary for the City to enter into an agreement with the Successor Agency. As a
result, proceeding to use these funds for this purpose will be contingent upon
approval of the Oversight Board and acceptance by the State Department of Finance
as an enforceable obligation.
There is also a potential issue with regard to the availability of the funds. Staff is
working to obtain State Department of Finance approval of the Recognized
Obligation Payment Schedule (ROPS), which has been approved by the Oversight
Board. However, the Department of Finance has advised counties to redistribute any
funds requested from agencies that do not have an approved ROPS.
ALTERNATIVES:
The following alternatives are presented for consideration:
Approve staffs recommendations;
Do not approve the amendment or agreement; or
Provide other direction to staff.
ADVANTAGES:
Staffs recommendations will enable tax increment funds budgeted for police building
architectural services to continue to be used for this purpose.
DISADVANTAGES:
No disadvantages have been identified.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item. Environmental review will be
prepared when site alternatives are identified.
Agenda Item 8.f.
Page 2
CITYCOUNCIL
CONSIDERATION OF THE FIRST AMENDMENT TO THE ARCHITECTURAL
SERVICES AGREEMENT WlTH BFGC ARCHITECTS FOR THE POLICE
BUILDING PROJECT AND AN AGREEMENT WlTH THE SUCCESSOR AGENCY
FOR USE OF TAX INCREMENT FUNDS
MAY 22,2012
PAGE 3
PUBLIC NOTIFICATION AND COMMENTS:
'The agenda was posted in front of the City Hall on Thursday, May 17, 2012 and on
the of City's website on Friday, May 18, 2012.
Attachments:
1. First Amendment to Consultant Services Agreement
Agenda Item 8.f.
Page 3
FIRST AMENDMENT TO
AGREEMENT FOR CONSULTANT SERVICES
BETWEEN THE CITY OF ARROYO GRANDE AND
BFGC - IBI GROUP ARCHITECTURE PLANNING
This FIRST AMENDMENT TO THE AGREEMENT FOR CONSULTANT
SERVICES (herinafter referred to as the "First Amendment") is made and entered into this
, of May, 2012, by and between the CITY OF ARROYO GRANDE ("City"), a
municipal corporation, and BFGC - IBI GROUP ARCHI'TECTURE PLANNING,
(hereinafter referred to as "Consultant").
WHEREAS, the parties entered into an Agreement for Consultant Services ("Agreement")
dated May 1,201 1, a true and correct copy of which is attached hereto as Exhibit "A" and
incorporated herein by this reference; and
WHEREAS, the parties desire to amend the terms of the Agreement in order to extend the
term.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agrees as follows:
Section 1 of the Agreement is hereby amended in its entirety to read as follows:
TERM 1. -
This Agreement shall commence on May 1, 201 1 and shall remain and continue in
effect until December 31, 201 2.
IN WITNESS WHEREOF, the parties have executed this First Amendment on the day and
year first set forth above.
CITY OF ARROYO GRANDE: CONSULTANT:
Steven Adams, City Manager William R. Tuculet, Principal Architect
Attest:
Alistair Baillie, Senior Director
Kelly Wetmore, City Clerk
Approved As To Form: David Chow, Director
Timothy J. Carmel, City Attorney
Agenda Item 8.f.
Page 4
ATTACHMENT 1
EXHIBIT A
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT, is made and effective as of May 1, 2011, between BFGC - IBI
GROUP ARCHITECTURE PLANNING ("Consultant"), and the CITY OF ARROYO
GRANDE, a Municipal Corporation ('Cityn). In consideration of the mutual covenants
and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on May 1, 201 1 and shall remain and continue
in effect until April 31, 2012, 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 hislher
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
City's Community Development Director shall represent City in all matters
pertaining to the administration of this Agreement. Craig Atkinson 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 "Bn, attached hereto and incorporated herein by this reference. -
SUSPENSION OR TERMINA1'ION OF AGREEMENT WITHOUT CAUSE
(a) The City may at any time, for any reason, with or without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Consultant 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.
Page 1
Agenda Item 8.f.
Page 5
(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, provided that the work performed is of value to the City. Upon termination
of the Agreement pursuant to this Section, the Consultant will submit an invoice to the
City pursuant to Section 5.
7. TERMINATION ON OCCURRENCE OF STATED EVENTS
This Agreement shall terminate automatically on the occurrence of any of the
following events:
(a) Bankruptcy or insolvency of any party;
(b) Sale of Consultant's business; or
(c) Assignment of this Agreement by Consultant without the consent of City.
(d) End of the Agreement term specified in Section I.
8. DEFAULT OF CONSULTANT
(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 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 hislher delegate determines that the Consultant is in
default in the performance of any of *the terms or conditions of this Agreement, helshe
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,
notwithstanding any other provision of this Agreement to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equrty 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;
(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
Page 2
Agenda Item 8.f.
Page 6
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 Crty 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 Crty and
may be used, reused, or othewise 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.
11. INDEMNIFICAY'ION FOR PROFESSIONAL LIABILITY. To the fullest extent
permitted by law, Consultant shall indemnrfy, 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 which arise out of, pertain to, or relate to the negligence, recklessness,
or willful misconduct of the Consultant.
Page 3
Agenda Item 8.f.
Page 7
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.
13. INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the Crty a wholly
independent Consultant. The personnel performing the sewices 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 Crty 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 pressure was or is
used against or in concert with any officer or employee of the City of Arroyo Grande in
connection with the award, terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement, or financial inducement. No
officer or employee of the City of Arroyo Grande will receive compensation, directly or
indirectly, from 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 equrty.
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 hislher 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.
Page 4
Agenda Item 8.f.
Page 8
16. RELEASE OF lNFORMATlONlCONFLlCTS OF INTEREST
(a) 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 declarations, letters of support, testimony at
depositions, response to interrogatories, or other information concerning the work
performed under this Agreement or relating to any project or property located within the
City. Response to a subpoena or court order shall not be considered "voluntary"
provided 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
opportunrty to review any response to discovery requests provided by Consultant.
However, Crty's right to review any such response does not imply or mean the right by
Crty 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 anb may be given either by (i) personal service, (ii)
delivery by a reputable document delivery service, such as but not limited to, Federal
Express, which provides a receipt showing date and time of delivery, or (iii) mailing in
the United States Mail, certified mail, postage prepaid, return receipt requested,
addressed to the address of the party as set forth below or at any other address as that
party may later designate by notice:
To City: City of Arroyo Grande
Teresa McClish
300 East Branch Street
Arroyo Grande, CA 93420
To Consultant: BFGC Architecture
Craig Atkinson
41 15 Broad Street, Suite 86
San Luis Obispo, CA 93401
Page 5
Agenda Item 8.f.
Page 9
18. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, without the prior written consent of the City.
19. GOVERNING LAW
The City and 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 the superior or federal district court with.
jurisdiction over the City of Arroyo Grande.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandirlgs, representations, and statements, or written, are merged
into this Agreement and shall be of no further force or effect. Each party is entering into
this Agreement based solely upon the representations set forth herein and upon each
party's own independent investigation of any and all facts such party deems material.
21. TIME
City and 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 writinq 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
Page 6
Agenda Item 8.f.
Page 10
behalf of the Consultant and has the authority to bind Consultant to the performance of
its obligations hereunder.
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:
City Manager
Attest:
h *
.
By:
Approved As To Form:
David Chow, Director
Page 7
Agenda Item 8.f.
Page 11
EXHIBIT A
SCOPE OF WORK
Consultant shall prepare some or all of the following tasks as requested and authorized
by City on a time and materials basis: '
1. Alternative Site Analysis
Consultant shall prepare schematic design, assess feasibility, and prepare cost
estimates for alternative project sites identified.
2. Schematic Design
a. Site Visits to document existing conditions.
b. Provide Schematic Design Documents based on the mutually agreed-upon
program, schedule, and budget for the Cost of the Work. The documents shall
establish the conceptual design of the Project illustrating the scale and
relationship of the Project components. The Schematic Design Documents shall
include a conceptual site plan, if appropriate, and preliminary building plans,
sections and elevations. At the Architect's option, the Schematic Design
Documents may include study models; perspective sketches, electronic modeling
or combination of these media. Preliminary selections of construction materials
shall be noted on the drawings or described in writing. A minimum of two and
maximum of four alternative draft schematic design documents will be prepared
for staff and Council consideration.
3. Design Development
a. Provide Design Development documents based on the approved Schematic
Design Documents and updated budget for the Cost of the Work. The Design
Development Documents shall illustrate and describe the refinement of the
design of the Project, establishing the scope, relationships, forms, size and
appearance of the Project by means of plans, sections and elevations, typical
construction details, and equipment layouts. The Design Development
Documents shall include specifications that identrfy major materials and systems
and establish in general their quality levels.
b. Statement of Probable Construction Cost - A detailed construction Cost Estimate
can be provided as an additional service.
4. Prepare Construction Documents including specifications.
a. Provide Construction Documents based on the approved Design Development
Documents and the updated approved budget for the Cost of the Work. The
Construction Documents shall set forth in detail the requirements for construction
of the Project. The Construction Documents shall include Drawings and
Specification that establish in detail the quality levels of material and systems
required for the Project.
b. During the development of the Construction Documents, the Architect shall assist
the Owner in the development and preparation of: (1) bidding and procurement
information which describes the time, place and conditions of bidding; bidding or
proposal forms; and the form of agreement between the Owner and the
Contractor; and (2) the Conditions of the Contract for Construction (General,
Page 8
Agenda Item 8.f.
Page 12
Supplementary and other Conditions). The Architect also shall compile the .
Project Manual that includes the Conditions of the Contract for Construction and
Specifications and may include bidding requirements and sample forms.
5. Assistance with securing Building Permit Approvals.
6. Bidding Assistance:
a. Attend Pre-Bid Conference if one is deemed necessary.
b. Respond to bidder questions.
c. Prepare addendums if required.
d. Provide recommendations regarding award of Contract.
Page 9
Agenda Item 8.f.
Page 13
EXHIBIT B
PAYMENT SCHEDULE
Consultant shall invoice Crty at no more than a monthly basis for work completed as
described in Exhibit A Scope of Work. Work shall not exceed one hundred and sixty
thousand dollars ($160,000.00) and shall be billed based upon the following rates:
Page 10
Agenda Item 8.f.
Page 14
2011 STANDARD HOURLY RATE SCHEDULE
BASIS FOR COMPENSATION
ARCHITECTURAL SERVICES:
SeniorIConsulting Principal
Principal Architect
AssociateslProject Director
Senior Project Architect
Project Architect
Project Manager
Technical l
Technical II
Technical Ill
Technical lV
Construction Administrator I
Construction Administrator II
Administrative I
Administrative II
Administrative Ill
Expert Witness Services
Architect's Consultants
Reimbursable Expenses
How Rates are In effed until December 31.201 1 -
$ 200-255Nr.
$ 160-185Hr.
$ 140-175Nr.
$ 125-165Nr.
$ 110-1 50Mr.
S 1 10-1 301Hr.
$ 80-115lHr.
$ 5490Mr.
$ 60-78Mr.
$ 55-75Nr.
$ 115-150Mr.
$ 90-125lHr.
$ 70-78lHr.
$ 4585Nr.
$ 35-50lHr.
$ 350Mr.
1.2 x Cost to Architect
1.2 x Cost to Architect
CROUP 181 Gmup b a ~mup af flrms pmidlng pmtssslonal anlvices
BFGC -IBI Gmup Architecmn, Plannlng h a dlvWcn of IBI Gmup USA
Agenda Item 8.f.
Page 15
EXHIBIT C
INSLIRANCE 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 lnsurance 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 IS0 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 may 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 benefrts as
required by law with employer's liability limits no less than $1,000,000 per accident or
disease.
Professional Liabilrty 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 Consuttant and "Covered Professional Servicesn 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.
Page I d
Agenda Item 8.f.
Page 16
Insurance procured pursuant to these requirements shall be written by insurer aat are
admitted camers in the state California and with an A.M. Bests rating of A- or better and
a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant 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 IS0 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 to comply with this Agreement
shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability 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 full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or its
operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called "third party action over" claims, including any exclusion for bodily
injury to an employee of the insured or of any Consu,ltant or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant 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
Page 12
Agenda Item 8.f.
Page 17
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Consuttant or deducted from sums due Consultant, at City option.
8. Certiicate(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 mod@
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 in 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 Consuttant, the City will negotiate additional compensation
proportional to the increase benefrt 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
Page 13
Agenda Item 8.f.
Page 18
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 agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until Crty
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 been
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
andlor 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 Crty, 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.
Page 14
Agenda Item 8.f.
Page 19
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.
Page 15
Agenda Item 8.f.
Page 20