2014/02/25 City Council Resolution 2014-017RESOLUTION NO. 2014 -017
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING THE CONTRACT FOR INDEPENDENT AUDIT
SERVICES WITH MACIAS GINI AND O'CONNELL LLP
WHEREAS, the City currently undergoes a complete audit of its annual financial
statements by an outside independent auditing firm; and
WHEREAS, the current independent audit contract ended with the completion of the
June 30, 2013 audit; and
WHEREAS, the City of Rohnert Park Municipal Code Title 3 Chapter 3.04 provides that
the city's purchasing functions shall be governed by the city's purchasing policy; and
WHEREAS, consistent with City of Rohnert Park Purchasing Policy Section 3.6.6(D),
the City staff solicited proposals for Independent Audit Services, and seven (7) proposals were
received of which four (4) firms were interviewed; and
WHEREAS, staff recommended Macias Gini and O'Connell LLP (MGO) based on their
professional skill and qualifications, the scope of work included in their proposal and other factors
identified in the staff report presented to the City Council on February 25, 2014; and
WHEREAS, contract will cover audit services for three (3) audit years, with the
possibility of a two year extension: and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve a contract by and between Macias Gini and
O'Connell and the City of Rohnert Park for independent audit services in the following amounts:
Audit Year Audit Year Audit Year
Contractor Name 2013 -2014 2014 -2015 2015 -2016
Macias Gini and O'Connell $71,055 $73,188 $75,383
Walnut Creek, CA
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed
to execute documents pertaining to same for and on behalf of the City of Rohnert Park, including
the agreement for services in substantially similar form as shown in Exhibit A, subject to minor
modification by the City Manager or City Attorney.
DULY AND REGULARLY ADOPTED this 25t" day of February, 2014.
2014 -017
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Attachments: Exhibit A
CITY OF ROHNERT PARK
Josepl . Callinan, Mayor
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Exhibit A
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62
CALIFORSO
City of Rohnert Park
130 Avram Avenue
Rohnert Park, CA 94928
CONSULTANT SERVICES AGREEMENT
THIS AGREEMENT is entered into as of the 25th day of February, 2014 by and between
the CITY OF ROHNERT PARK ( "City "), a California municipal corporation, and Macias Gini
and O'Connell LLP ( "Consultant ")
RECITALS
WHEREAS, City desires to obtain professional Audit Services to perform examination of
the City's financial records; and
WHEREAS, Consultant hereby warrants to the City that Consultant is skilled and able to
provide such services described in Section 3 of this Agreement; and
WHEREAS, City desires to retain Consultant pursuant to this Agreement to provide the
services described in Section 3 of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree
as follows:
1. Incorporation of Recitals. The recitals set forth above, and all defined terms set
forth in such recitals and in the introductory paragraph preceding the recitals, are hereby
incorporated into this Agreement as if set forth herein in full.
2. Project Coordination.
A. City. The City Manager or his /her designee, shall represent City for all
purposes under this Agreement. The Accounting Supervisor is hereby designated as the Project
Manager. The Project Manager shall supervise the progress and execution of this Agreement.
B. Consultant. The Consultant shall assign David Bullock, CPA to have
overall responsibility for the progress and execution of this Agreement for Consultant.
3. Scope and Performance of Services
A. Scope of Services. Subject to such policy direction and approvals as the
City through its staff may determine from time to time, Consultant shall perform the services set
out in the "Scope of Work" attached hereto as Exhibit A and incorporated herein by reference.
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B. Time of Performance. The services of Consultant are to commence upon
receipt of a written notice to proceed from City, but in no event prior to receiving a fully
executed agreement from City and obtaining and delivering the required insurance coverage, and
satisfactory evidence thereof, to City. Bound copies of the Comprehensive Annual Financial
Report, and the Rohnert Park Financing Authority financial statements are to be completed no
later than December 15 for each consecutive year 2014, 2015 & 2016. All additional work is to
be completed by March of the following year.
C. Standard of Quality. City relies upon the professional ability of
Consultant as a material inducement to entering into this Agreement. All work performed by
Consultant under this Agreement shall be in accordance with all applicable legal requirements
and shall meet the standard of quality ordinarily to be expected of competent professionals in
Consultant's field of expertise.
4. Compensation and Method of Pam.
A. Compensation. The compensation to be paid to Consultant, including both
payment for professional services and reimbursable expenses, shall be at the rate and schedules
attached hereto as Exhibit B, and incorporated herein by reference. However, in no event shall
the amount City pays Consultant exceed for the years 2013/2014 $71,055, 2014/2015 $73,188, &
2015/2016 $75,383. Payment by City under this Agreement shall not be deemed a waiver of
unsatisfactory work, even if such defects were known to the City at the tune of payment.
A. Timing of Payment. Consultant shall submit itemized monthly statements
for work performed. City shall make payment, in full, within thirty (30) days after approval of
the invoice by the Project Manager.
B. Changes in Compensation. Consultant will not undertake any work that
will incur costs in excess of the amount set forth in Paragraph 4(A) without prior written
amendment to this Agreement.
C. Taxes. Consultant shall pay all taxes, assessments and prerniurns under
the federal Social Security Act, any applicable unemployment insurance contributions, Workers
Compensation insurance premiums, sales taxes, use taxes, personal property taxes, or other taxes
or assessments now or hereafter in effect and payable by reason of or in connection with the
services to be performed by Consultant.
D. No Overtime or Premium Pay. Consultant shall receive no premium or
enhanced pay for work normally understood as overtime, i.e., hours that exceed forty (40) hours
per work week, or work performed during non - standard business hours, such as in the evenings
or on weekends. Consultant shall not receive a premium or enhanced pay for work performed on
a recognized holiday. Consultant shall not receive paid time off for days not worked, whether it
is in the form of sick leave, administrative leave, or for any other form of absence.
E. Litigation Support. Consultant agrees to testify at City's request if
litigation is brought against City in connection with Consultant's work product. Unless the
action is brought by Consultant or is based upon Consultant's negligence, City will compensate
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Consultant for the preparation and the testimony at Consultant's standard hourly rates, if
requested by City and not part of the litigation brought by City against Consultant.
5. Amendment to Scope of Work. City shall have the right to amend the Scope of
Work within the Agreement by written notification to the Consultant. In such event, the
compensation and time of performance shall be subject to renegotiation upon written demand of
either party to the Agreement. Consultant shall not commence any work exceeding the Scope of
Work without prior written authorization from the City. Failure of the Consultant to secure
City's written authorization for extra or changed work shall constitute a waiver of any and all
right to adjustment in the contract price or time due, whether by way of compensation,
restitution, quantum meruit, etc. for work done without the appropriate City authorization.
6. Term. This Agreement shall commence upon its execution by both parties and
shall continue for three years with the option to renew the agreement for two (2) additional years .
upon mutual agreement of both parties. Contract shall remain in full force and effect until
completed, amended pursuant to Section 21, or otherwise terminated as provided herein.
7. Inspection. Consultant shall furnish City with every reasonable opportunity for
City to ascertain that the services of Consultant are being performed in accordance with the
requirements and intentions of this Agreement. All work done and all materials furnished, if any,
shall be subject to the Project Manager's inspection and approval. The inspection of such work
shall not relieve Consultant of any of its obligations to fulfill the Agreement as prescribed.
8. Ownership of Documents. Title to all work papers compiled by the Consultant
under the Agreement shall be vested in City, none of which shall be used in any manner
whatsoever, by any person, firm, corporation, or agency without the expressed written consent of
the City. Data prepared or obtained under the Agreement shall be made available, upon request,
to City without restriction or limitations on their use. (Except as stated in paragraph 19. D.
regarding Consultant not being liable for such use.). Consultant may retain copies of the above -
described information but agrees not to disclose or discuss any information gathered, discussed
or generated in any way through this Agreement without the written permission of City during
the term of this Agreement, unless required by law. Consultant's working papers, including audit
programs, analytical review schedules, and statistical sampling results, analyses and schedules
are the Consultant's property.
9. Employment of Other Consultants, Specialists or Experts. Consultant will not
employ or otherwise incur an obligation to pay other consultants, specialists or experts for
services in connection with this Agreement without the prior written approval of the City.
10. Conflict of Interest.
A. Consultant covenants and represents that neither it, nor any officer or
principal of its firm, has, or shall acquire any investment, income, business entity, interest in real
property, or other interest, directly or indirectly, which would conflict in any manner with the
interests of City, hinder Consultant's performance of services under this Agreement, or be
affected in any manner or degree by performance of Consultant's services hereunder. Consultant
further covenants that in the performance of the Agreement, no person having any such interest
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shall be employed by it as an officer, employee, agent, or subcontractor without the express
written consent of the City. Consultant agrees to at all times avoid conflicts of interest, or the
appearance of any conflicts of interest, with the interests of the City in the performance of the
Agreement.
B. Consultant is not a designated employee within the meaning of the
Political Reform Act because Consultant:
(1) will conduct research and arrive at conclusions with respect to its
rendition of information, advice, recommendation, or counsel independent of the control and
direction of the City or of any City official, other than normal contract monitoring; and
(2) possesses no authority with respect to any City decision beyond the
rendition of information, advice, recommendation, or counsel. (2 Cal. Code Regs.
§ 18700(a)(2).)
11. Liability of Members and Employees of City. No member of the City and no
other officer, elected official, employee or agent of the City shall be personally liable to
Consultant or otherwise in the event of any default or breach of the City, or for any amount
which may become due to Consultant or any successor in interest, or for any obligations directly
or indirectly incurred under the terms of this Agreement.
12. Indemnity. To the fullest extent permitted by law, Consultant hereby agrees to
defend (by counsel reasonably satisfactory to the City), indemnify, and hold harmless the City, its
officers, elected officials, employees, agents, and volunteers from and against any and all claims,
demands, damages, costs, liabilities, or obligations brought on account of or arising out of any
acts, errors, or omissions of Consultant, its officers, employees, agents, and subcontractors
undertaken pursuant to this Agreement excepting liabilities due to the sole negligence or willful
misconduct of City. The City has no liability or responsibility for any accident, loss, or damage
to any work performed under this Agreement whether prior to its completion and acceptance or
otherwise. Consultant's duty to indemnify and hold harmless, as set forth herein, shall include
the duty to defend as set forth in California Civil Code § 2778. This indemnification obligation
is not limited in any way by any limitation on the amount or type of damages or compensation
payable by or for Consultant under Worker's Compensation, disability or other employee benefit
acts or the terms, applicability or limitations of any insurance held or provided by Consultant and
shall continue to bind the parties after termination /completion of this agreement. This
indemnification shall be regardless of and not in any way limited by the insurance requirements
of this contract. This indemnification is for the full period of time allowed by law and shall
survive the termination of this agreement.
13. Consultant Not an Agent of City. Consultant, its officers, employees and agents
shall not have any power to bind or commit the City to any decision.
14. Independent Contractor. It is expressly agreed that Consultant, in the performance
of the work and services agreed to be performed by Consultant, shall act as and be an
independent contractor and not an agent or employee of City; and as an independent contractor,
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Consultant shall obtain no rights to retirement benefits or other benefits which accrue to City's
employees, and Consultant hereby expressly waives any claim it may have to any such rights.
15. Compliance with Laws.
A. General. Consultant shall use the standard of care in its profession to
comply with all applicable federal, state, and local laws, codes, ordinances, and regulations.
Consultant represents and warrants to City that it has and shall, at its sole cost and expense, keep
in effect or obtain at all times during the term of this Agreement any licenses, permits, insurance
and approvals which are legally required for Consultant to practice its profession. Consultant
shall maintain a City business license. The City is not responsible or liable for Consultant's
failure to comply with any or all of the requirements contained in this paragraph.
B. Workers' Compensation. Consultant certifies that it is aware of the
provisions of the California Labor Code which require every employee to be insured against
liability for workers' compensation or to undertake self - insurance in accordance with the
provisions of that Code, and Consultant certifies that it will comply with such provisions before
commencing performance of the Agreement and at all times in the performance of the
Agreement.
C. Prevailing Wage. Consultant and Consultant's sub - consultants (if any)
shall, to the extent required by the California Labor Code, pay not less than the latest prevailing
wage rates to workers and professionals as determined by the Director of Industrial Relations of
the State of California pursuant to California Labor Code, Part 7, Chapter 1, Article 2. Copies of
the applicable wage determination are on file at the City's office of the City Clerk.
D. Injury and Illness Prevention Program. Consultant certifies that it is aware
of and has complied with the provisions of California Labor Code § 6401.7, which requires every
employer to adopt a written injury and illness prevention program.
E. City Not Responsible. City is not responsible or liable for Consultant's
failure to comply with any and all of its requirements under this section and Agreement.
F. Waiver of Subrogation. Consultant and Consultant's insurance company
agree to waive all rights of subrogation against City, its officers, elected officials, employees,
agents and volunteers for losses paid under Consultant's workers' compensation insurance policy
which arise from the work performed by Consultant for the City.
16. Confidential Information. All data, documents, discussions or other information
developed or received by or for Consultant in performance of this Agreement are confidential
and not to be disclosed to any person except as authorized by the City, or as required by law.
17. Assignment; Subcontractors; Employees
A. Assignment. Consultant shall not assign, delegate, transfer, or convey its
duties, responsibilities, or interests in this Agreement or any right, title, obligation, or interest in
or to the same or any part thereof without the City's prior written consent. Any assignment
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without such approval shall be void and, at the City's option, shall immediately cause this
Agreement to terminate.
B. Subcontractors; Employ. Consultant shall be responsible for
employing or engaging all persons necessary to perform the services of Consultant hereunder.
No subcontractor of Consultant shall be recognized by the City as such; rather, all subcontractors
are deemed to be employees of the Consultant, and Consultant agrees to be responsible for their
performance. Consultant shall give its personal attention to the fulfillment of the provisions of
this Agreement by all of its employees and subcontractors, if any, and shall keep the work under
its control. If any employee or subcontractor of Consultant fails or refuses to carry out the
provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper
manner, it shall be discharged immediately from the work under this Agreement on demand of
the Project Manager.
18. Insurance. Without limiting consultant's indemnification provided herein,
Consultant shall comply with the requirements set forth in Exhibit C to this Agreement.
19. Termination of Agreement; Default.
A. This Agreement and all obligations hereunder may be terminated at any
time, with or without cause, by the City upon 5 -days' written notice to Consultant.
B. If Consultant fails to perform any of its obligations under this Agreement
within the time and in the manner herein provided or otherwise violate any of the terms of this
Agreement, in addition to all other remedies provided by law, City may terminate this Agreement
immediately upon written notice. In such event, Consultant shall be entitled to receive as full
payment for all services satisfactorily rendered and expenses incurred hereunder, an amount
which bears the same ratio to the total fees specified in the Agreement as the services
satisfactorily rendered hereunder by Consultant bear to the total services otherwise required to be
performed for such total fee; provided, however, that the City shall deduct from such amount the
amount of damages, if any, sustained by City by virtue of the breach of the Agreement by
consultant.
C. In the event this Agreement is terminated by City without cause,
Consultant shall be entitled to any compensation owing to it hereunder up to the time of such
termination, it being understood that any payments are full compensation for services rendered
prior to the time of payment.
D. Upon termination of this Agreement with or without cause, Consultant
shall turn over to the City Manager immediately copies of studies, computations, and other data,
whether or not completed, prepared by Consultant or its subcontractors, if any, or given to
Consultant or its subcontractors, if any, in connection with this Agreement. Such materials shall
become the permanent property of the City. Consultant shall be entitled to retain copies of such
documents and shall not be required to erase all electronic backup copies or data. As stated
above in section 8, Consultant's working papers remain the property of Consultant. Consultant,
however, shall not be liable for the City's use of incomplete materials nor for the City's use of
complete documents if used for other than the project contemplated by this Agreement.
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20. Suspension. The City shall have the authority to suspend this Agreement and the
services contemplated herein, wholly or in part, for such period as it deems necessary due to
unfavorable conditions or to the failure on the part of the Consultant to perform any provision of
this Agreement. Consultant will be paid for satisfactory Services performed through the date of
temporary suspension.
21. Merger; Amendment. This Agreement constitutes the complete and exclusive
statement of the agreement between the City and Consultant and shall supersede all prior
negotiations, representations, or agreements, either written or oral. This document may be
amended only by written instrument, signed by both the City and Consultant. All provisions of
this Agreement are expressly made conditions.
22. Interpretation. This Agreement shall be interpreted as though it was a product of a
joint drafting effort and no provisions shall be interpreted against a party on the ground that said
party was solely or primarily responsible for drafting the language to be interpreted.
23. Litigation Costs. If either party becomes involved in litigation arising out of this
Agreement or the performance thereof, the court in such litigation shall award reasonable costs
and expenses, including attorneys' fees, to the prevailing party. In awarding attorneys' fees, the
court will not be bound by any court fee schedule, but shall, if it is in the interest of justice to do
so, award the full amount of costs, expenses, and attorneys' fees paid or incurred in good faith.
24. Time of the Essence. Time is of the essence of this Agreement.
25. Written Notification. Any notice, demand, request, consent, approval or
communication that either party desires or is required to give to the other party shall be in writing
and either served personally or sent by prepaid, first class mail. Any such notice, demand, etc.
shall be addressed to the other party at the address set forth below. Either party may change its
address by notifying the other party of the change of address. Notice shall be deemed
communicated within 72 hours from the time of mailing if mailed as provided in this section.
If to City: City Clerk
City of Rohnert Park - City Hall
130 Avram Avenue
Rohnert Park, CA 94928
If to Consultant: David Bullock, CPA (Partner)
Macias Gini and O'Connell LLP
2121 N. California Blvd., Suite 750
Walnut Creek, CA 94596
26. Consultant's Books and Records.
A. Consultant shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or relating to charges for
services, or expenditures and disbursements charged to the City and all documents and records
which demonstrate performance under this Agreement for a minimum period of three (3) years,
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or for any longer period required by law, from the date of termination or completion of this
Agreement.
B. Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time during regular business
hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated
representative of any of these officers. Copies of such documents shall be provided to the City
for inspection when it is practical to do so. Otherwise, unless an alternative is mutually agreed
upon, the records shall be available at Consultant's address indicated for receipt of notices in this
Agreement.
27. Agreement Binding. The terms, covenants, and conditions of this Agreement
shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and
subcontractors of both parties.
28. Equal Employment Opportunity. Consultant is an equal opportunity employer
and agrees to comply with all applicable state and federal regulations governing equal
employment opportunity. Consultant will not discriminate against any employee or applicant for
employment because of race, age, sex, creed, color, sexual orientation, marital status or national
origin. Consultant will take affirmative action to ensure that applicants are treated during such
employment without regard to race, age, sex, creed, color, sexual orientation, marital status, or
national origin. Such action shall include, but shall not be limited to, the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; lay -offs or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship. Consultant further agrees to post in conspicuous places, available to employees
and applicants for employment, notices setting forth the provisions of this nondiscrimination
clause.
29. City Not Obligated to Third Parties. The City shall not be obligated or liable for
payment hereunder to any party other than the Consultant.
30. Waiver. No failure on the part of either party to exercise any right or remedy
hereunder shall operate as a waiver of any other right or remedy that party may have hereunder.
31. Severability. If any one or more of the provisions contained herein shall for any
reason be held to be invalid, illegal or unenforceable in any respect, then such provision or
provisions shall be deemed severable from the remaining provisions hereof, and such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had not been contained
herein.
32. Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by this reference:
A. Exhibit A: Scope of Work
B. Exhibit B: Compensation
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C. Exhibit C: Insurance Requirements
33. Execution. This Agreement may be executed in several counterparts, each of
which shall constitute one and the same instrument and shall become binding upon the parties
when at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
34. News Releases /Interviews. All Consultant and sub - consultant news releases,
media interviews, testimony at hearings and public comment shall be prohibited unless expressly
authorized by the City.
35. Applicable Law; Venue. This Agreement shall be construed and interpreted
according to California law. In the event that suit shall be brought by either party hereunder, the
parties agree that trial of such action shall be held exclusively in a state court in the County of
Sonoma, California.
36. Authority. Each individual executing this Agreement on behalf of one of the
parties represents that he or she is duly authorized to sign and deliver the Agreement on behalf of
such party and that this Agreement is binding on such party in accordance with its terms.
37. STATEMENT OF ECONOMIC INTEREST. If City determines Consultant
comes within the definition of Consultant under the Political Reform Act (Government Code
§87100), Consultant shall complete and file and shall require any other person doing work under
this Agreement to complete and file a "Statement of Economic Interest" with the Clerk of the
City of Rohnert Park disclosing Consultant and /or such other person's financial interests.
IN WITNESS WHEREOF, the City and Consultant have executed this Agreement as of the date
first above written.
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CITY OF ROHNERT PARK CONSULTANT
By:
City Manager
Date:
Per Resolution No. 2014 - _adopted by the
Rohnert Park City Council at its meeting of
February 25, 2014 .
By:
City Attorney
By:
City Clerk
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By:
Title:
Date:
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Scope of Work
The City Council and Finance Department requires outside auditing services to audit all of the
City funds. In addition the audit firm is to issue the required opinion letters in order for the City
to satisfy the requirements to issue a "single audit" edition of its General Purpose Financial
Statement.
The audits of the General Purpose Financial Statements shall be made in accordance with
generally accepted auditing standards and Government Auditing Standards, issued by the
Comptroller General of the United States, and will include tests of the accounting records and
such other auditing procedures as the auditor considers necessary in the circumstances in order to
allow for an expression of an opinion of the General Purpose Financial Statements being audited.
Audits to be performed include:
• Comprehensive Annual Financial Report (CAFR)
• Single Audit Financial Statements if required
• Report on the City's GANN Appropriations Limit calculations
• Rohnert Park Financing Authority Financial Report (RPFA)
• Transportation Development Act (TDA) Compliance Report if required
The auditors will be required to observe the adequacy of the system of internal control, and if
weaknesses are noted, make appropriate recommendations. The auditor's comments shall be
included in a separate management letter.
The scope of the audit shall comply with all the general law provisions, code regulations and
bond requirements of all the funds of the City of Rohnert Park. All state and federal regulations
regarding audit requirements shall be included in the scope of the audit. It shall be the auditor's
responsibility to assist the City in observation of and compliance with the necessary GFOA
requirements for the Certificate of Achievement for Excellence in Financial Reporting.
It shall be the auditor's responsibility to have their department print all the reports.
Auditors shall provide in -house client training on new standard's and government auditing and
financial reporting as is warranted.
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EXHIBIT B
Compensation
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EXHIBIT C
INSURANCE REQUIREMENTS for Consultant Services Agreement
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:
General Liability Insurance using Insurance Services Office "Commercial General Liability"
policy form 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 $2,000,000 (Two Million Dollars) per
occurrence.
Business Auto Coverage on ISO Business Auto Coverage form CA 0001 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 (One Million Dollars) 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 benefits as required
by law with employer's liability limits no less than $1,000,000 (One Million Dollars) per accident
or disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall
provide coverage at least as broad as specified for the underlying coverage's. Any such coverage
provided under an umbrella liability policy shall include a drop down provision providing
primary coverage above a maximum $25,000 self - insured retention for liability not covered by
primary but covered by the umbrella. Coverage shall be provided on a "pay on behalf' basis, with
defense costs payable in addition to policy limits. Policy shall contain a provision obligating
insurer at the time insured's liability is determined, not requiring actual payment by the insured
first. There shall be no cross liability exclusion precluding coverage for claims or suits by one
insured against another. Coverage shall be applicable to City for injury to employees of
Consultant, sub - consultants or others involved in the Work. The scope of coverage provided is
subject to approval of City following receipt of proof of insurance as required herein. Limits are
subject to review but in no event less than $2,000,000 (Two Million Dollars) per occurrence.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a
policy form coverage specifically designed to protect against acts, errors or omissions of the
consultant and "Covered Professional Services" as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no less than $1,000,000
(One Million Dollars) per claim and in the aggregate. The policy must "pay on behalf of the
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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.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted
carriers in the state of 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 insured's the City, its officers, elected officials,
employees, agents, and volunteers using standard ISO endorsement No. CG 20 10 or an
approved equivalent. If completed operations coverage is excluded, the policy must be
endorsed to include such coverage. Consultant also agrees to require all contractors, 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 contractors and subcontractors to
do likewise.
3. The worker's compensation policy is to be endorsed with a waiver of subrogation. The
insurance company, in its endorsement, agrees to waive all rights of subrogation against the
City, its officers, elected officials, employees, agents, and volunteers for losses paid under
the terms of this policy which arise from the work performed by the named insured for the
City.
4. All insurance coverage and limits provided by Contractor 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.
5. None of the coverage's 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.
6. 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 contractor or subcontractor.
7. 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.
8. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverage's 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
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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 and to pay the premium. Any
premium so paid by City shall be charged to and promptly paid by Consultant or deducted
from sums due Consultant, at City option.
9. Certificate(s) are to reflect that the insurer will provide 30 days' notice to City of any
cancellation of coverage. Consultant agrees to require its insurer to modify such certificates
to delete any exculpatory wording stating that failure of the insurer to ]nail 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.
10. 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.
11. 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.
12. 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
contractor, 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 that 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.
13. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Consultant ninety (90) days advance
written notice of such change. If such change results in substantial additional cost to the
Consultant, the City will negotiate additional compensation proportional to the increased
benefit to City.
14. 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.
15. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to
inform Consultant of non - compliance with any insurance requirement in no way imposes
any additional obligations on City nor does it waive any rights hereunder in this or any
other regard.
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