Contract No. 10433 (CCS)
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement"), entered into as of May 2. 2017("Execution Date"), by and between the City of Santa Monica ("City") and Alliant Insurance Services, Inc. ("Alliant"), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. Alliant is qualified to do business, and is doing business, in the State of California.
Alliant represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.
C. The City and Alliant now desire to enter into an agreement for Alliant to provide professional services to the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terinates on June 30, 2022, unless sooner terminated in accordance with Section 14.
2. Alliant Services. Alliant will perform all of the services ("Services") described in Exhibit A, Scope of Services. Alliant will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to Alliant any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by Alliant.
4. Compensation. The City will compensate Alliant for the Services performed in an amount not to exceed $425,000, as set forth in Exhibit B
5. Invoices, Alliant will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
6. Notices. Áll notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, - 1-
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by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6. 1 All notices, demands, requests or approvals to the City:
Finance/Risk Management
City of Santa Monica
1717 4* Street, Suite 270
Santa Monica, California 90401
Attention: Michael Spenelli
Re: Contract No. 10433
with a copy to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No. 10433
6.2 All notices, demands, requests or approvals to Alliant:
Alliant
100 Pine Street, 11" Floor
San Francisco, CA 94111
Attention: Michael Simmons
Re: Contract No. 10433
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
Neither the City nor its officers or employees will have any control over the conduct of Alliant or any of Alliant's agents, employees, or subconsultants, except as otherwise provided in this Agreement.
8. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement.
This Agreement may be modified only by written agreement signed by City and Alliant, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, Alliant must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by Alliant or Alliant's agents, representatives, employees or subconsultants for the duration of this Agreement. Alliant must obtain insurance that, at a minimum, meets the - 2-
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requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 Indemnification. As to Alliant's Services produced under this Agreement, Alliant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, "City") from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney's fees, or payments for injury to any person or property (collectively, "Losses") caused or claimed to be caused by the acts, errors and/or omissions of Alliant, or Alliant's employees, agents, officers, and subconsultants. Alliant's responsibilities under this Section 10.1 inclüde liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of Alliant, its employees, agents or officers, or subconsultants; provided, however, that Alliant's duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City.
Notwithstanding Alliant's obligation to defend City hereunder, City has the right to conduct its own defense and seck reimbursement for reasonable costs of defense from Alliant, if City chooses to do so,
10.2 Enforcement Costs. Alliant agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
11. Prohibition Against Transters.
11.1 Alliant may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City's consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Alliant or of any general partner or joint venturer or syndicate member of Alliant, if a partnership or joint venture or syndicate exists, which results in changing the control of Alliant, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
12. Permits and Licenses. Alliant, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
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13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If Alliant fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City's written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to Alliant.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days' written notice to Alliant. Upon termination of this Agreement, City will pay Alliant any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. Alliant must comply with all laws of the State of California and the United States, and all ordinances, rules, and regulations enacted or issued by City.
16. Discrimination. Alliant may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. Alliant may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
18. Records.
18.1 Alliant must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the 'City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. Alliant must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 Alliant must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles.
Alliant must clearly identify all records and make them readily accessible to the City. At the City's request, Alliant must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 Alliant must allow the City to have free access to Alliant's books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right.to examine or audit Alliant's records, and Alliant agrees to cooperate with any examination or audit of its records. If - 4-
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a City audit discloses an error of 5% or more in information reported by Alliant, Alliant agrees to pay the cost of the City's audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19. Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by Alliant or any subconsultant for this Agreement will be the exclusive property of City. No work product given to or prepared by Alliant or any subconsultant pursuant to this Agreement may be made available to any individual or organization by Alliant without prior written approval by City.
19.2 At the City's request, Alliant must furnish reports concerning the status of the Services.
20. Standard of Care. Alliant agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of Alliant's profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If Alliant proposes to have any subconsultant perform any part of the Services, Alliant must submit a request for approval in writing, describing the scope of. work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant's services. The City, in its sole discretion, may grant or deny the request.
21.2 Alliant will be responsible for the quality of any subconsultant's work. Every subcontract or agreement of any kind entered into between Alliant and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 10433 (CCS) entered into between the City of Santa Monica and Alliant on
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and Alliant agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agrcement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate.
The parties agree that venue exists in either court, and each party expressly waives any - 5-
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right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
25. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
CITY OF SANTA MONICA,
ATTEST: a municipal corporation
Lick ol
denise Andersmeara By:
DENISE ANDERSON-WARREN RICK COLE
City Clerk City Manager
APPROVED AS TO FORM:
JOSEPIMLAWRENCE
Interim City Attorney
Alliant Corporation
Bruital Sin
Mitan simon sittin,
Title: _
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Exhibit A
Scope of Services
1. Structuring, Marketing and Negotiating Property Insurance Coverage Alliant will provide the following services on an annual basis:
A. Evaluate the City's existing property. insurance program, and if necessary, recommend changes to terms, conditions, or coverage limits to insure the program is affordable and adequately protects the City.
B. Incorporate any agreed upon changes to terms, conditions or coverage limits into bid specifications for the City's property insurance program; advertise the City's property insurance requirements to the markets capable of meeting the City's property insurance needs.
C. Provide to Risk Management in writing the Alliant's best estimate of the property 'insurance premium for the upcoming policy period by January 1" of each year.
D. Negotiate with underwriters and obtain property insurance coverage that best meets the City's requirements at the least cost. Alliant will only secure property insurance coverage with financially responsible insurers.
E. Advise the Risk Manager in writing of property insurance premium pricing for the upcoming policy period at least thirty days prior to the expiration of the existing property insurance policy. Risk Manager can waive such notice if the Alliant can demonstrate there are extenuating circumstances which preclude or make undesirable such thirty day notice.
F. Bind property insurance coverage before existing policy expires.
G. Verify that new policies, binders, certificates, endorsements and other documents are accurate and reflect the terms and conditions agreed to during negotiations.
H. Provide in writing a summary of the key components of the City's property insurance program and any changes to coverage, and a schedule of insurers for the new policy period by July 15" of each year.
2. Insurance Consulting Services
Alliant will provide the following services:
A. Respond to property insurance related questions and requests for advice in a timely manner.
B. Make a good faith effort to keep Risk Management informed of all market developments that might affect the City's access to or cost of property insurance.
C. Provide advice to Risk Management on ways to strengthen City loss prevention and safety programs.
D. Assist Risk Management staff with the property claim submission and claim handling process.
E. Maintain a user friendly electronic data base of the City's building inventory with pertinent building construction and valuation information.
F. Inspect the City's properties every three years and update building values as appropriate.
3. Administrative Services
•Alliant will provide the following services:
A. Issue property certificates and associated endorsements in a timely manner.
B. Attend occasional meetings with City representatives as requested C. Inform the City immediately of any proposed changes to personnel assigned to the City's account. Such changes must be approved by the City.
D. Maintain accurate claims data on an accident date basis and provide loss runs to the City as requested.
E. Cooperate in any transition to another Alliant at the expiration of the five year contract.
Exhibit B
Budget
Alliant shall be compensated a total of $425,000 over the five-year contract period as set forth below:
• July 1, 2017: $81,000
• July 1, 2018: $83,000
July 1, 2019: $85,000
• July 1, 2020; $87,000
• July 1, 2021: $89,000
• Should there be a future need to place coverage outside of the current property placement, those placements would be subject to commission.
Transparency and Disclosure. During the time of this AGREEMENT, ALLIANT will,. upon request, disclose COMMISSIONS, where possible, received by ALLIANT in connection with any insurance placements on behalf of CLIENT under ALLIANT'S "Transparency and Disclosure" policy, a copy of which is made available upon request.
Pursuant to its policy, ALLIANT will conduct business in conformance with all applicable insurance regulations and in advancement of the best interests of its clients. In addition, ALLIANT'S conflict of interest policy precludes it from accepting any form of broker incentives that would result in business being placed with carriers in conflict with the interests of ALLIANT'S clients.
Alliant Specialty Insurance Services (ASIS). In addition to the COMPENSATION that ALLIANT receives, its related entity, Alliant Specialty Insurance Services (ASIS) and its underwriting operations, Alliant Underwriting Services (AUS), may receive compensation from ALLIANT and/or carriers for providing underwriting services. The financial impact of the compensation received by ASIS is a cost included in the premium. Compensation received by ASIS will be disclosed in writing to CLIENT and is agreed to by CLIENT as part of the premium. CLIENT further acknowledges that ALLIANT and ASIS maintain an arm's length relationship. CLIENT understands that while ALLIANT represents CLIENT as an individual entity, ASIS independently administers its program as a whole and not on behalf of any particular member.
Alliant Business Services (ABS). Additionally, ALLIANTS internal operating group, Alliant Business Services (ABS), may reccive compensation from ALLIANT and/or carriers for providing designated, value-added services. Services contracted for by the CLIENT directly will be invoiced accordingly. Otherwise, services will be provided at the expense of ALLIANT and/or the carrier.
Exhibit C
Insurance Requirements and Verifications
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope/Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if the Consultant has no owned autos, Code 8 (hired) and Code 9 (non- owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: Workers' Compensation insurance as required by the State of California, with Statutory Limits and Employers' Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1). • 4. Professional Liability: Insurance appropriate to the Consultant's profession with a :
limit of not less than $1,000,000 each claim/$2,000,000 in the annual aggregate (see footnote #2).
If the Consultant maintains higher limits than the minimums shown above, the City of Santa Monica 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 City of Santa Monica.
Other Insurance Provisions
1. The policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status (CGL): The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance at least as broad as Insurance Services Office Form CG 20 10 11 85.
b. Primary Coverage (CGL, Auto, and Professional Liability): For any claims related to this contract, the Consultant's insurance shall be primary as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self- insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it.
c. Notice of Cancellation (all policies): Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation (all policies): Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
• Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower deductible or retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides "claims made" coverage:
a. The Retroactive Date must be shown, and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another "claims made" policy form with a Retroactive Date prior to the effective Agreement date, the Consultant must purchase "extended reporting" coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach. Alternatively, the City of Santa Monica may purchase such coverage (but has no special obligation to do so), and without further notice to the Consultant, the City may deduct from sums due to the Consultant any premium costs advanced by the City for such insurance.
Subcontractors
• Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
#1: Workers' Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City's Workers' Compensation Coverage Exemption Declaration Form.
#2: Professional Liability insurance is required if the Consultant is providing a professional service regulated by the State (e.g., insurance agents, doctors, lawyers, architects, engineers, certified public accountants, etc.). However, some Consultants, such as software designers, claims administrators, or human resources professionals, should also carry Professional Liability insurance. Contact Risk Management for guidance.