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CITY OF SAN MARINO
STANDARD PROFESSIONAL SERVICES AGREEMENT
TEMPLATE
(Current as of April 1, 2024)
The City Attorney has prepared this Standard Professional Services Agreement Template to streamline the negotiation and approval of contracts for professional services provided by outside companies or individuals (“Consultants”). This Template should not be used for purchasing goods, equipment, or software; public works projects; or professional services that include design professional services. “Design Professionals” are licensed architects, landscape architects, and professional land surveyors, and registered professional engineers. (See Cal.
Civ. Code § 2782.8.) Other templates may be available for these purposes.
To use the Template, first review Section 02.06.05 of the City Code (“Procurement of Goods, Services and Contracts for Public Projects”), a copy of which appears on the next page. Failure to comply with this Section may delay or nullify contract approval.
Second, contact the City Clerk to ensure you have the latest version of the Template.
Always begin with the latest version rather than editing an agreement created for another contract because the Template may be updated from time-to-time to incorporate changes needed to address changes in the law or to incorporate new ideas.
This will ensure you don’t omit any important updates or inadvertently include provisions that were approved only for use in that other contract. If you have any ideas for changes to the Template, please feel free to share them.
Third, complete the Template. The highlighted text and instructions show you what information is needed (e.g., the Consultant’s name, its contact information, the contract amount, the scope of services, and how and how much the Consultant will be paid).
Because the Scope of Services and Fee Schedule are the most variable terms from contract-to-contract, the Template includes them as separate Exhibits. You must provide the content of the Exhibits. When you are done, remove the highlighting, instructions, and these cover pages before releasing it to the Consultant.
You can also share a blank version of the Template with prospective Consultants (e.g., in RFPs and RFQs) to show them the terms the City expects Consultants to meet if selected. This might also make it less likely a Consultant will object to the City’s terms after selection. If you do this, do so only after removing all highlighting and cover pages and replacing the instructional notes with blanks.
Finally, not every provision of the Template will work for every contract. You or the Consultant might find changes are needed for practical reasons related to the services the City wants. The Consultant might also request changes for business reasons. This Template might also require modification for contracts that rely on state, federal, or This is a reproduction of portions of the San Marino City Code.
Always refer to an official copy of the Code and check with the City Clerk regarding recent possible amendments to ensure you are working with the most current version. ii
other grant funding. Please consult with the City Attorney’s office regarding any proposed changes early in the process so we may respond in a timely manner.
This is a reproduction of portions of the San Marino City Code.
Always refer to an official copy of the Code and check with the City Clerk regarding recent possible amendments to ensure you are working with the most current version. iii
San Marino City Code
Section 02.06.05
PROCUREMENT OF GOODS, SERVICES AND CONTRACTS FOR PUBLIC
PROJECTS
A. General Requirements:
1. Conformance With The City Budget: No procurement of goods, services or public projects, as defined in subsection C2 of this section, is authorized unless the person making the procurement for the city signs a statement prepared by the finance officer certifying that the proposed procurement conforms to the budget adopted by the city council.
2. Applicable Procedures: Procurements of goods and services, but excluding contracts for public projects shall conform to the procedures in this subsection A and subsection B of this section. Contracts for public projects shall conform to the procedures in this subsection A and subsection C of this section.
3. Execution Of Contracts For Public Projects And Professional Services: No contract for professional services or for a public project of thirty thousand dollars ($30,000.00) or more shall be executed unless previously approved by the city council and shall be executed only by the mayor or city manager. Contracts for public projects and professional services between five thousand dollars ($5,000.00) and thirty thousand dollars ($30,000.00) shall be executed and approved by the city manager.
4. Change Orders: Change orders may be approved only by a person authorized to originally procure the goods, services or public projects, provided that the price, as amended by the change order, does not exceed that person's authority under subsection A3 or B1 of this section.
5. Prohibition Against Splitting Procurements: No procurement shall be split or separated into smaller procurements for the purpose of evading the limitations of subsection B of this section.
6. Bonds And Insurance: The finance officer may require liability and other insurance and performance and payment bonds in such amounts as the finance officer deems reasonably necessary to protect the city's interests. Bond and insurance requirements, if any, shall be included in the procurement documents.
7. Procurement With State Or Federal Funds: All procurements of goods, services and public projects for which payment is to be made, in whole or in part, with federal or state funds, regardless of the estimated value, shall be in accordance with the procedures contained in this section and in accordance with applicable federal or state regulations, whichever are more restrictive.
This is a reproduction of portions of the San Marino City Code.
Always refer to an official copy of the Code and check with the City Clerk regarding recent possible amendments to ensure you are working with the most current version. iv
8. Emergency Procurements: The city council delegates to the city manager the power to declare a public emergency, as defined in Public Contract Code section 1102, to immediately take all actions directly required by the emergency, to procure needed goods, services and public projects and to contract for public projects without informal or formal bidding. The work may be done by City forces by force account, by negotiated contract or purchase order, or by a combination thereof. At the next meeting of the City Council occurring not later than fourteen (14) days after the emergency action, the City Manager shall provide a full report on the emergency, including an explanation of why the emergency did not permit a delay that would result from a competitive solicitation of bids, and why the City Manager's actions were necessary to respond to the emergency. At that meeting, and each meeting thereafter until the emergency action is terminated, the City Council shall determine by a four-fifths (4/5) vote that there is a need to continue the remedial action and whether that work should continue without the benefit of informal or formal bidding.
B. Procurement Of Goods And Services Other Than Public Projects: Procurement of goods and services, but excluding contracts for public projects, shall comply with the following procedures:
1. Persons Authorized To Procure Goods And Services: The Assistant City Manager and each Department Director shall designate in writing those persons who are authorized to procure goods and services for his or her department in the following amounts: a) up to and including one thousand dollars ($1,000.00); b) up to and including five thousand dollars ($5,000.00); and c) up to and including thirty thousand dollars ($30,000.00). No person authorized by the Assistant City Manager or a Department Director to procure goods and services may complete a procurement until the Finance Officer has received written notification of the authorization. The authorization shall include the manual signature of the authorized person. Only the Assistant City Manager and Department Directors may procure goods and services for their respective departments that exceed thirty thousand dollars ($30,000.00).
2. General Requirements:
a. Purchase Orders Not Required: Purchase orders are not required, but will be provided at the request of the vendor or at the direction of the Assistant City Manager or Department Director.
b. Waiver Of Bidding: Bidding required by this subsection B for procurements of thirty thousand dollars ($30,000.00) or less may only be dispensed with when the Assistant City Manager or the Director of the department undertaking the procurement determines in writing that the goods or services are only available from one (1) source or that the best interests of the City are served by dispensing with competitive bids. Bidding required by this subsection B for procurements over thirty thousand dollars ($30,000.00) may only be This is a reproduction of portions of the San Marino City Code.
Always refer to an official copy of the Code and check with the City Clerk regarding recent possible amendments to ensure you are working with the most current version. v
dispensed with when the Finance Officer determines in writing that the goods or services are only available from one (1) source or that the best interests of the City are served by dispensing with competitive bids.
3. Procurements Of One Thousand Dollars Or Less: No price comparison is required. The procurement shall be effected by purchase order, if requested by the vendor, or by City credit card, petty cash, or check. Procurements of the same goods or services from the same vendor during a fiscal year shall not exceed one thousand dollars ($1,000.00) unless the procedures are followed that apply to the aggregate dollar amount of the procurements, including approval by an individual authorized to make the procurement in that amount.
4. Procurements Greater Than One Thousand Dollars And Up To And Including Thirty Thousand Dollars: Three (3) written bids shall be obtained. With the exception of contracts for services, the award shall be made to the lowest responsible bidder. Contracts for services shall be awarded to the firm or individual that, in the opinion of the person in charge of the procurement, offers the best combination of quality and price. Procurements of the same goods or services need not be rebid more often than once each fiscal year, but the total dollar amount of the same goods or services procured from the same vendor during a fiscal year shall not exceed five thousand dollars ($5,000.00) unless the appropriate procedures for a purchase in the aggregate dollar amount are followed, including approval by an individual authorized to make the procurement in that amount. The vendor shall send an invoice to the City.
5. Procurements Greater Than Thirty Thousand Dollars: Written notices inviting bids for procurement of goods and written requests for proposals to procure services shall be provided to at least three (3) vendors and to all vendors requesting to receive notices inviting bids and requests for proposals for the types of services or goods to be procured. With the exception of contracts for services, the award shall be made to the lowest responsible bidder. Contracts for services shall be awarded to the firm or individual that, in the opinion of the person in charge of the procurement, offers the best combination of quality and price. The award shall be made by the City Council. (Ord. 0-07-1192, 12-12- 2007)
6. Cooperative Purchasing: Purchases of supplies, materials and equipment and sales of personal property made under a cooperative purchasing program utilizing purchasing agreements or bids received by the County, State, or other public agency are exempt from the requirements of this subsection. (Ord. 0-17- 1322, 3-31-2017)
C. Public Projects:
1. Applicability Of The Uniform Public Construction Cost Accounting Act: Public projects, as defined in subsection C2 of this section, shall be awarded in This is a reproduction of portions of the San Marino City Code.
Always refer to an official copy of the Code and check with the City Clerk regarding recent possible amendments to ensure you are working with the most current version. vi
accordance with the uniform public construction cost accounting act1, and in compliance with the provisions of this subsection C.
2. Definitions: The following terms are defined as set forth below:
FACILITY: Any plant, building, structure, ground facility, utility system, real property, streets and highways, or other public work improvement.
PUBLIC PROJECT:
a. Any of the following:
(1) Construction, reconstruction, erection, alteration, renovation, improvement, demolition, or repair work involving any publicly owned, leased or operated facility;
(2) Painting or repainting of any publicly owned, leased or operated facility. b. "Public project" does not include maintenance work. For purposes of this subsection C, "maintenance work" includes all of the following:
(1) Routine, recurring, and usual work for the preservation or protection of any publicly owned or publicly operated facility for its intended purposes; (2) Minor repainting;
(3) Resurfacing of streets and highways at less than one inch (1"); (4) Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems;
(5) Work performed to keep, operate and maintain publicly owned water, power or waste disposal systems, including, but not limited to, dams, reservoirs, power plants, and electrical transmission lines of two hundred thirty thousand (230,000) volts and higher.
3. General Requirements:
a. Designation Of Projects: The assistant city manager shall review all proposed public projects and shall classify each project as follows:
(1) Projects of thirty thousand dollars ($30,000.00) or less, which may be performed with the city's own forces by force account, by negotiated contract, or by purchase order.
1 Pub.Con.C. §22000 et seq.
This is a reproduction of portions of the San Marino City Code.
Always refer to an official copy of the Code and check with the City Clerk regarding recent possible amendments to ensure you are working with the most current version. vii
(2) Projects between thirty thousand dollars ($30,000.00) and one hundred twenty five thousand dollars ($125,000.00), which may be let by contract after informal bidding.
(3) Projects of one hundred twenty five thousand dollars ($125,000.00) or more, which must be let by contract after formal bidding. b. Prohibition Against Splitting Projects: Projects shall not be split or separated to avoid any of the bidding requirements contained herein or in Public Contract Code section 22000 et seq.
4. Procedures For Public Projects Of Thirty Thousand Dollars Or Less: Contracts for public projects of thirty thousand dollars ($30,000.00) or less may be approved and entered into for a department by the person or persons designated by the assistant city manager or the department director to procure goods and services pursuant to subsection B of this section.
5. Informal Bidding Procedures For Public Projects From Thirty Thousand Dollars To And Including One Hundred Twenty Five Thousand Dollars:
a. List Of Consultants: The assistant city manager shall develop a list of qualified contractors eligible to submit bids for public projects between thirty thousand dollars ($30,000.00) and up to one hundred twenty five thousand dollars ($125,000.00). The list shall be organized in accordance with the license classifications of the contractors state license board. Any licensed California contractor may be added to the list at any time by filing with the assistant city manager a completed application on a form provided by the city. b. Plans, Specifications And Working Details: The person in charge of the procurement shall cause to be prepared plans, specifications, and working details necessary to enable a qualified contractor to perform the required work.
c. Notice Inviting Bids: The person in charge of the procurement shall mail the notice inviting bids to all contractors on the list of qualified contractors for the category of work being bid, and to all construction trade journals as specified by the California uniform cost accounting commission pursuant to Public Contract Code section 22036. The notice inviting bids shall describe the project in general terms and how to obtain more detailed information about the project, and shall state the time and place for the submission of bids. The notices inviting bids shall be mailed no less than ten (10) calendar days before bids are due.
d. Receipt Of Bids: At the time specified in the notice inviting bids, the person in charge of the procurement shall open all bids timely received and shall recommend award of the contract to the lowest responsible bidder. If two (2) This is a reproduction of portions of the San Marino City Code.
Always refer to an official copy of the Code and check with the City Clerk regarding recent possible amendments to ensure you are working with the most current version. viii
or more responsive bids are the same and lowest, the award of the contract shall be determined by drawing lots. If no bids are received, bids may be again solicited, or the public project may be performed by city forces, or the city may enter into a negotiated contract with any qualified person or firm. e. Bids Over One Hundred Twenty Five Thousand Dollars: If all bids received are in excess of one hundred twenty five thousand dollars ($125,000.00), the city council may, by adoption of a resolution by a four-fifths (4/5) vote, award the contract, at one hundred thirty seven thousand five hundred dollars ($137,500.00) or less, to the lowest responsible bidder, if the city council determines that the city's cost estimate was reasonable.
6. Procedures For Public Projects Exceeding One Hundred Twenty Five Thousand Dollars: Contracts for public projects estimated by the assistant city manager to exceed one hundred twenty five thousand dollars ($125,000.00) shall be awarded pursuant to formal bidding in accordance with the provisions of Public Contract Code sections 22037 and 22038. If a contract is awarded, it shall be awarded to the lowest responsible bidder. If two (2) or more bids are the same and the lowest, the city council may accept either bid. If no bids are received, the public project may be performed by the city's own forces by force account, or by negotiated contract, without further compliance with the uniform public construction cost accounting act or this code. (Ord. 0-07-1192, 12-12-2007) 1 of 14
PROFESSIONAL SERVICES AGREEMENT
between
The City of San Marino
2200 Huntington Drive
San Marino, CA 91108
&
Revenue & Cost Specialists, LLC
1519 E Chapman Avenue, Suite C
Fullerton, CA 92831
This Professional Service Agreement (“the Agreement”) is made as of November 13, 2024 (the “Effective Date”), by and between Revenue & Cost Specialists, LLC (“Consultant”), and the City of San Marino (“City”), a California municipal corporation, (collectively, “the Parties”).
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RECITALS
A. City desires certain professional services as specified in this Agreement.
B. Consultant represents that it is qualified and able to provide City with such services.
NOW THEREFORE, in consideration of the Parties’ performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows:
AGREEMENT
1.0 Scope of Services
1.1. Consultant shall provide those services (“Services”) set forth in the attached Exhibit A.
1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City, as of the time and at the location the services are provided.
1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local laws, ordinances, codes, and regulations.
1.4. Consultant shall not be compensated for any work performed unless it is specified in Exhibit A or City authorizes such work in advance and in writing. Any work so authorized by City shall become part of the Services for purposes of this Agreement.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall continue through July 31, 2025 unless sooner terminated as provided in Section 5.0 of this Agreement.
3.0 Consultant’s Compensation
City will pay Consultant in accordance with the fee schedule set forth in Exhibit B but in no event will the City pay more than $29,750. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule set forth in Exhibit B, unless otherwise approved by City in writing. Pursuant to Section 02.06.05 of the San Marino City Code, this Agreement shall not be effective unless previously approved by the City Council if it is for professional services of greater than AMOUNT ($29,750).
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4.0 Method of Payment
4.1. Consultant shall submit to City monthly invoices for all services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the services were rendered and shall describe in detail the services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the services performed for each day in the period. City will pay Consultant all undisputed charges within 30 days of receiving Consultant’s invoice.
City will not withhold any applicable federal or state payroll and other required taxes, or other required or authorized deductions from payments made to Consultant.
4.2. Upon 24-hour notice from City, Consultant shall allow City or City’s agents or representatives to inspect at Consultant’s offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City’s rights under this Section 4.2 shall survive for two years following the expiration or earlier termination of this Agreement.
5.0 Termination
5.1. City may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to Consultant at least thirty (30) calendar days before the termination is to be effective.
5.2. Consultant may terminate this Agreement for cause in the event City fails to cure a default under this Agreement within thirty (30) days after Consultant has given City notice of such default.
5.3. Upon termination of this Agreement, Consultant shall cease all work under this Agreement and deliver to City all materials, reports, documents, notes or other written materials compiled through the last working day this Agreement is in effect. City shall pay Consultant for all services satisfactorily rendered through the last working day this Agreement is in effect; provided that in no event, including but not limited to termination, shall Consultant be entitled to receive more than the maximum compensation set forth in Section 3. Neither party shall have any other claim against the other party by reason of termination pursuant to this Section 5.0.
6.0 Reports, Information, and Work Product
6.1. Consultant shall deliver to City: (1) any reports on the status of the Services upon City’s request and in such time and in such form as City may require; and (2) all material furnished to Consultant by City upon City’s request and/or upon the expiration or termination of this Agreement.
6.2. Unless the Parties agree in writing, all draft and final reports, documents, and other written material created or developed by Consultant in the performance of this Agreement (collectively, “Work Product”) shall be and remain the property of City without restriction or limitation upon their use, duplication or dissemination by City upon final payment being made; provided, that any use other than as intended and an re-use, 4 of 14
modification or alternation thereof shall be at the City’s sole risk. Consultant shall not obtain or attempt to obtain copyright protection as to any of the Work Product. Nothing in this Agreement shall be deemed or construed as a waiver, release, transfer, assignment or divestiture by Consultant of any of its intellectual property and , knowhow or trade secrets.
6.3. Consultant warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work Product, and that upon final payment, City shall have full legal title to the Work Product, and full legal authority and the right to use and reproduce the Work Product forits intended purpose..
Consultant shall defend, indemnify, and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city officials, harmless from any loss, claim, or liability to the extent that any proper use by the City of any of the Work Product violates federal, state, or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents, or other means of protecting intellectual property rights, and/or interests in products, ideas, or inventions. Consultant shall bear all costs from the use of patented, copyrighted, trade secret, or trademarked documents, materials, equipment, devices, or processes in connection with its provision of the Work Product produced under this Agreement. If any use by city of any of the Work Product or other deliverables is held to constitute an infringement and the use of any of the same is enjoined, Consultant, at its expense, shall: (a) secure for City the right to continue using such Work Product and/or other deliverables by suspension of any injunction, or by procuring a license or licenses for City; or (b) modify the Work Product and other deliverables so that they become non-infringing while remaining in compliance with the requirements of this Agreement.
6.4. Consultant’s obligations under this Section 6.0 shall survive the expiration or termination of this Agreement.
7.0 Party Representatives
7.1. City’s representative for purposes of this Agreement is the City Manager or the person designated in writing by the City Manager. The City Manager’s designee may exercise the authority of the City Manager provided in this Agreement excepting approval of any expenditure that would exceed a total compensation allowed under the Agreement.
7.2. Eric S. Johnson is Consultant’s representative for purposes of this Agreement.
8.0 Notices
8.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses:
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To City: City of San Marino
2200 Huntington Drive
San Marino, California 91108
Attn: City Manager
To Consultant: Revenue & Cost Specialists, LLC
1519 E. Chapman Avenue, Suite C
Fullerton, CA 92831
Attn: Eric S. Johnson
8.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
9.0 Independent Consultant
9.1. Consultant is an independent contractor and not an employee of City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
9.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from all liability, damages, claims, costs, and expenses of any nature to the extent caused by Consultant’s personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section. All duties of Consultant under this Section 9.2 shall survive termination of this Agreement.
9.3. In the event that Consultant provides any of the Services by or through any employee or any person whose work under this Agreement becomes cause for any payment or contribution required by law, including but not limited to the California Public Employees' Pension Reform Act (PEPRA), to the Public Employee Retirement System, Consultant shall be solely responsible for all such payments or contributions.
Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from all liability, damages, claims, costs, and expenses of any nature to the extent caused by Consultant’s failure to make any such payment or contribution. City shall have the right to offset against the amount of any 6 of 14
fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section. All duties of Consultant under this Section
9.3 shall survive termination of this Agreement.
10.0 Subcontractors
Unless otherwise specified in Exhibit A, no portion of this Agreement shall be subcontracted without the prior written approval of the City Manager. Consultant is fully responsible to City for the performance of any and all subcontractors, if any.
11.0 Assignment
Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City Manager. Any purported assignment without such consent shall be void and without effect.
12.0 Insurance
12.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements, including but not limited to additional insured endorsements, effecting coverage required by this Agreement on forms satisfactory to City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by City, if requested. All certificates and endorsements shall be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
12.2. General liability insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
12.3 Automobile liability insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
12. 4 Professional liability (errors & omissions) insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in 7 of 14
the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
12.5 Workers’ compensation insurance. Consultant shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Agency, its officers, agents, employees, and volunteers.
Other provisions or requirements
12.6. Proof of insurance. Consultant shall provide certificates of insurance and required endorsements to Agency as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by Agency’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Agency for the contract period and any additional length of time required thereafter. Agency reserves the right to require complete, certified copies of all required insurance policies, at any time.
12.7 Duration of coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Consultant, their agents, representatives, employees, or sub-consultants.
12.8 Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by Agency shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Agency before the Agency’s own insurance or self- insurance shall be called upon to protect it as a named insured.
12.9 Agency’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Agency has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by Agency will be promptly reimbursed by Consultant or Agency will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Agency may cancel this Agreement.
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12.10 Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the Agency’s Risk Manager.
12.11 Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Agency, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subconsultants.
12.12 Enforcement of contract provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Consultant of non-compliance with any requirement imposes no additional obligations on the Agency nor does it waive any rights hereunder.
12.13 Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Agency.
12.14 Notice of cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the Agency with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant’s insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the Agency immediately in the event of Consultant’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
12.15 Additional insured status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that Agency and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
12.16 Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include 9 of 14
any limiting endorsement of any kind that has not been first submitted to Agency and approved of in writing.
12.17 Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any crossliability exclusions.
12.18 Pass through clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. 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. However, in the event Consultant’s Subcontractor cannot comply with this requirement, which proof must be submitted to the Agency, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant’s requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor.
Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to Agency for review.
12.19 Agency’s right to revise specifications. The Agency 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 Agency and Consultant may renegotiate Consultant’s compensation.
12.20 Self-insured retentions. Any self-insured retentions must be declared to and approved by Agency. Agency reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
12.21 Timely notice of claims. Consultant shall give Agency prompt and timely notice of claims made or suits instituted that arise out of or result from 10 of 14
Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
12.22 Additional insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
Indemnification, Hold Harmless, and Duty to Defend
12.23 To the maximum extent permitted by law, Consultant shall defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively “Indemnitees”) free and harmless from all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, to the extent caused by the negligentacts or omissions of Consultant, its employees, its agents, or its subcontractors in the performance of this Agreement, excluding consequential damages but including without limitation attorneys’ fees, except for such loss or damage arising from the sole negligence or willful misconduct of City. With respect to any and all such aforesaid suits, actions, or other legal proceedingsConsultant shall defend Indemnitees, To the extent of its indemnity obligation set forth above. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. Consultant shall have no obligation to indemnify City or any other Indemnitee against liability for claims by a third party for failure to comply with its obligations under Article XIII D of the California Constitution ( Proposition 218).
12.24 Consultant must obtain executed indemnity agreements with provisions identical to those in Section 12.23 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of the Services. If Consultant fails to obtain such indemnities, Consultant shall be fully responsible and indemnify, hold harmless, and defend the Indemnitees, to the same extent as its indemnity obligations set forth in Section 12.23 above.
13.0 Equal Opportunity
Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 11 of 14
14.0 Labor Certification
14.1. By its signature hereunder, Consultant certifies it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code. Consultant shall provide evidence of such coverage before commencing the performance of the Services.
14.2. Consultant certifies that in the performance of the Services, Consultant shall not, in any manner, employ any person or contract with any person so that any Services so performed by such person would be subject to the workers’ compensation laws of the State of California unless and until Consultant gives City a certificate of consent to self-insure or a certificate of Workers' Compensation Insurance Coverage.
14.3. In the event Consultant hires a subcontractor who has employees to perform the Services or any part thereof, then Consultant shall either require the subcontractor to obtain Workers’ Compensation Insurance Coverage, or must obtain Workers’ Compensation Insurance Coverage for the subcontractor’s employees.
14.4. Any Workers’ Compensation Insurance Coverage required by or for this Agreement shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, its agents, and its subcontractors.
15.0 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties.
16.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement.
17.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
18.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement.
19.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or 12 of 14
service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise.
20.0 Headings
Headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.
21.0 Force Majeure
Consultant shall not be liable for any failure to perform any obligation under this Agreement if Consultant presents that City in its sole judgment deems acceptable that such failure was due to strikes, lockouts, labor disputes, embargoes, acts of God, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
22.0 Final Payment Acceptance Constitutes Release
Consultant’s acceptance of City’s final payment under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for the Services or anything done or furnished relating thereto. Neither City’s payment to Consultant nor approval of payment constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such or payment or approval be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
23.0 Prohibited Interests; Conflict of Interest
23.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services.
Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant “financially interested” (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained.
23.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent 13 of 14
upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift.
23.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited “conflict of interest” under applicable laws as described in this subsection.
24.0 Attorneys’ Fees
If either party commences any legal, administrative, or other action against the other party arising out of or in connection with this Agreement, the prevailing party in such action shall be entitled to have and recover from the losing party all of its attorneys’ fees and other costs incurred in connection therewith.
25.0 Exhibits
Each exhibit referenced in this Agreement is hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control.
26.0 Corporate Authority
26.1. Each person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of Consultant and that by his or her execution, Consultant is formally bound to the provisions of this Agreement.
26.2. Consultant certifies it is aware of the requirements of Sections 313 of the California Corporations Code. If Consultant is a corporate entity, it shall either:
(a) provide City written proof that each person executing this Agreement on Consultant’s behalf is duly authorized to bind Consultant; or (b) provide two signatories to this Agreement, of whom the first must be Consultant’s chairman of the board, president, or a vice president and the second must be Consultant’s secretary, an assistant secretary, its chief financial officer, or an assistant treasurer.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the Effective Date. 14 of 14
CITY OF SAN MARINO
By:_________________________
Philippe Eskandar
City Manager
Attest:
By:_________________________
City Clerk
Approved as to Form:
By:_________________________
Joseph Montes
City Attorney
CONSULTANT
By:_____________________________
(Sign)
Name:__________________________
(Print)
Title: __________________________
(Print)
By:_____________________________
(Sign)
Name:__________________________
(Print)
Title: __________________________
(Print)
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