HomeMy WebLinkAbout2003-03-31 City Council (7)TO:
FROM:
DATE:
SUBJECT:
CITY MANAGER
MARCH 31, 2003
HONORABLE CITY COUNCIL
DEPARTMENT: HUMAN RESOURCES
CMR: 201:03
APPROVAL OF AN AMENDMENT IN THE AMOUNT OF $75,000
TO EXTEND THE EXISTING CONTRACT FOR WORKERS’
COMPENSATION ADMINISTRATION SERVICES WITH ATHENS
ADMINISTRATORS THROUGH JUNE 30, 2003
RECOMMENDATION
Staff recommends that the Council approve and authorize the Mayor to:
1. Execute the attached contract amendment extending the
workers’ compensation administration services contract
Administrators through June 30, 2003.
2.
City’s existing
with Athens
Increase the amount of the contract by an additional $75,000 to pay the
premiums through the agreement’s term.
DISCUSSION
On November 1, 1999, the City entered into a three-year contract for workers’
compensation services. Athens Administrators has provided workers’ compensation
administration services to the City for the past 9 years. Athens has demonstrated its
ability to provide a high level of quality, service and results in its claims administration
services. Athens has assisted the City in significantly reducing its claims costs even
while the industry continues to experience rising medical and administrative costs each
year.
The three-year contract fees were as follows: $170,000 for 1999-2000; $178,500 for
2000-01; and, $160,656 for 2001-02. The City goes to bid every three years for workers’
compensation administrator, to ensure the rates paid for this service remain competitive
and that the services received are optimal. Due to the transition of benefits
administration duties to within the Human Resources Department in 2002, and the new
CMR: 201:03 Page 1 of 2
Benefit Manager’s leave of absence, it was not possible to complete the Request for
Proposal (RFP) process to put in place a new worker’s compensation contract by the
contract expiration date of October 31, 2002. As permitted under Sections 5 and 6 of the
contract, the parties agreed to extend the contract’s term, based on the same terms and
conditions, until the City could complete its RFP process and put a new contract in place.
Initially, a change order for $59,000 was executed to fund the extension of the Athens
contract, at the third-year contract rate, while the RFP process was conducted.
Subsequently, it was determined that further extension of this contract, through June 30,
2003 was needed in order for staff to complete the required RFP process and put a new
contract in place. A new workers’ compensation administration contract will be in place
by that date. The fee proposed for this additional extension is $75,000, which is prorated
based on the third-year rate of the current contract.
RESOURCE IMPACT
Funding for this agreement is provided in the 2002-03 budget.
POLICY IMPLICATIONS
This request does not contain any policy implications.
ENVIRONMENTAL REVIEW
This is not a project under the California Environmental Quality Act (CEQA).
ATTACHMENTS
A: Amendment No. One to Agreement No. C0118212
B: Agreement No. CO 118212
PREPARED BY: Sandra Blanch, Risk & Benefits Manager
DEPARTMENT HEAD:
Leslie Loomis
Director of Human Resources
CITY MANAGER APPROVAL:
Emily Harrison
Assistant City Manager
CMR: 201:03 Page 2 of 2
AMENDMENT NO. ONE TO AGREEMENT NO. C0118212
BETWEEN THE CITY OF PALOALTOAND
ATHENS ADMINISTRATORS FOR
WORKERS’ COMPENSATION ADMINISTRATION SERVICES
This -~en~ment No. One to Agreement No. C01!82i2
("Agreement") is entered into , by and
between the CiTY OF PALO ALTO ("C!TY"~, and ATHENS ADHiNiSTRATORS,
a whol!y-owned subsidiary of James C. Jenkins insurance Services,
inc., located at 2552 Stanwel! Drive, Concord, California 94522
("CONTRACTOR").
RE C I TAL S:
WHEREAS, the AGreement was entered ~nto me~wee~, the
~arties for the provision of certain .....v~_,,:: s compensation
administrative services; and
WHEREAS, the .......~n~al term of the agreemen~was N~,,~mm~ -~
!!999 through October 31, ?000 The ~ -~ ~n~, ....~gr~=m~_.~ may be renewed on
an annual basis, for a term not ~o exceed three (3) years to expire
no !a~er than .... October ~=,~ _?OO°=; and
by b~=ngu Order #i datec Seotem~er 28,~°’~00 :~e
par:ies increased the commensation section of the contrac: to
<~0,004 OO; and
~ Ch~. = Order ~2 ~ ......WHEREAS, my ......g- _~ dated N~vemmer ~3, ~000 the
par:ies extended the term of the Agreement for an additional one
year term and increased :he compensation section of the Agreement
by an additional sum no: :o exceed Si78,500; and
WHm~m~q, by Char, G= ~d=r #3 dated November 16, ?00i
oar:ies exuended the term of ~>= AGreement for a third one year
term and increased the commensation section of :he Agreement b,! an
additional sum not ~- exceed Si60 656 00; and<-~,¯-
WHEREAS, by ietuer agreement dated November 13, 2001
attached to Change Order #4, the parties extended the term of the
Agreement through and including June 30, 2003 and increased :he
comoensauion secuion of the Agreement for the final conuract period
by an additiona! sum not to exceed $59,500; and
WHEREAS, the paruies wish to increase the compensation
section of the Agreement for the fina! contract period by an
additional sum not to exceed $75,000 for a tota! contract not to
exceed amount of S~, oou~
OoOz~,.sdl 7060_8a
NOW, THEREFORE, in consideration of the covenants, terms,
conditions, and provisions of this ~endment, the parties agree:
SECTION i.
to read as follows:
Section 5 entitled ......±mRH is herebv~ amended
This Agreement shall commence on November !,
1999, and shall continue for one (!) year.
This Agreement may be renewed for a total term
not to exceed three (3) years and eight (8)
months, to expire no later than June 30, 2003.
Each renewal hereof shal! be subject to the
City Council’s continued annual appropriation
of sufficient funds for this Agreement and the
mutual agreement between the parties to renew
the Agreement for the additional period. The
City Manager is authorized on behalf of CITY
to agree to renew the contract for a second
and third year upon the Manager’s
determination that renewal is in the best
interest of the CITY.
.... _~@d=u:~n==T{ the ~arties desire to negotiate 4, :=:~ ~
yearly renewals as authorized by this section,
the marties shall commence negotiations for
each successive ~" _annu== term beginning 60 days
prior to the end of the then ........ ........... c~:~u annual
term. Agreement for each successive annua!
term shall be concluded at least thirty (30)
days prior to the end of the then current
annual term.
SECTION 2. Section 4. enumtied’ ’"COHPENS~:!ON~m- " _is ¯hereby
amended, to read as fol!ows:
For the ful! performance of the administrative
services described herein by CONTKhCTOR for
the first year of the ~erm of this Agreement,
CiTY shall pay CONTKhCTOR the total sum of One
Hundred Seventy Thousand Four Dollars
(S!70,004}, payable in eleven (!i) monthly
billings of $14,166.00 and one monthly billing
of $14,178.00. For the second year of the
term of this Agreement, CITY shall pay
CONT~hCTOR a sum not to exceed of One Hundred
Seventy-Eight Thousand Five Hundred Dollars
(S!78,500) . For the third year of <he term of
this Agreement, CITY shall pay CONTKhCTOR a
sum not to exceed One Hundred Sixty Thousand
030327 sdl 7060582
2
Six Hundred Fifty-Six Dollars. For the fina!
term of this Agreement beginning November !,
2002 to June 30, 2003, CITY shal! pay
CONTRACTOR a sum not to exceed One Hundred
Thirty-Four Thousand Five Hundred Dollars
($134,500) for a tota! contract not to exceed
amount of Six Hundred Forty-three Thousand Six
Hundred Sixty Dollars ($643,660). Pa~.ents
shal! be made in accordance with this section
and the rate schedules attached hereto as
Exhibits "D-i" and "D-2" Each monthly
payment shal! be made within thirty (30) days
of receipt by CITY of a properly supported
invoice, provided by CONTKhCTOR, in tripli-
cate, mailed to the City of Palo Alto, Attn:
Risk Manager, 250 Hami!<on Avenue, Paio Alto,
CA.
in addition <o the commensation set forth in¯C,~’~C~R and CITY have agreedthis section, ~ ~
to a cost reduction guarantee, as set forth in
E k£~ i- "~"
Any additional services for which additional
fees would be payable shall be negotiated by
the paruies outside the scope of this
Agreement, and shall be subject ro approval of
the City Council.
..........Tn the even< thi~ Agreement is renewed for any.
additional one year terms, u±~: shall pay
CONTRACTOR an amount to be negotiated by the
marries, in amount not to exceed five percent
’5%~_"~ ) over the orevious one year :erm an@ as
set forth in the rate schedules a:tached
hereto as Exhibits " -i and "D-2" and
incormorated herein by reference.
cPP~iON 3 ~- Agreement is hereby amended to ~nc]ude~¯~±~_
an~ ~m-9"_ -- Renewal Period Ra~e S~:~u=~-~=s~’~=~, attached
hereto and=nco:so~ -~ rated in fu!~_ by this reference.
SECTION 4. Excepn as herein modified, all other
provisions o£ :he Agreement, inc!udin@ any exhibits and subsequent
amendments thereto, shall remain in full force and effect.
//
//
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3
IN WITNESS WHEREOF, the parries have by their duly
authorized representatives executed this _<mendment on the dare
first above written.
ATTEST:CITY OF PALO ALTO
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Mayor
ATHENS ADMiNiSTKhTORS, a
wholly owned subsidiary of
James C. Jenkins insurance
Services, inc.
Assistant City Hanaaer
Dire~, r .....~o_ of Administrat2ve
Services
Director of Human Resources
Manager
By:
Name:
Tit!e:
By:
Name:
Title:
==xp~2er identification No.
94-~s~8~3
~om~!~ance wi<h Cor~. Code 9 2i3 is
required if <he enzi<y on whose behalf
:his con<r~c< is si~ned is a corpora:ion.
resolu<ion a::es:in@ <o <he signazory
au<hori:v of ~8= individuals s{m<{~:: in
<heir r==~_,__:~e capaai<ies is acsep:abie~
EXHIBITS :
B-!:
B-2:
Letter Agreement da~ed Maw 29, ~01
Let:er Agreement dared November 13, 2001
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CERTIFICATE OF ACKNOWLEdDG~ENT
(Civil Code § 1i89)
STATE OF
COUNTY OF
)
)
)
On
notary public in and
, before me, ~he undersigned, a
for said County, personally appeared
personally known ~o me (or proved co me on the basis of
satisfactory evidence) ~o be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/~heir authorized
capacity(ies), and nhat by his/her!their signature(s) on ~he
instrument the person(s), or the en~itv upon behalf of which ~he
person(s) acted, executed the instrument.
WITNESS my hand and of~,-{al seal.
Signature of Notary Public
030327 sdl 7060582
CERTIFICAT~ OF ACKNOWLEDgMeNT
(Civi! Code § 1189)
On
notary public ~’ n and---=or
, before me, the undersigned, a
said Countv, Dersonal~v a~meared
personally known no me (or proved no me on Uhe basis of
satisfactory evidence) to be the person(s) whose name(s) is!are
subscribed to the within instrument, and acknowledged to me that
he/she/<hey executed the same in his/her/their authorized
capacity~=~) , and ~ bv ~ ~/he~/÷~=~ ~ ~ignature~s]on the
instrument ~he oer~on (s), or the en~itv uoon~ ~,~ ~
person(s) acted, executed =he instrument.
WTTNmSS my hand and ....~.....~o::=.~:a! seal
:gn=uu:: or NoEar’~7 Public
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EXHIBIT D-I
Ms. Sandra Blanch, Risk Manager
Human Resources Department
The City of Palo Alto
250 Hamilton Avenue
Palo Alto, Calif. 94303
May 29, 2001 8 0 200i
Risk Management & ~,afe~:
Re: tWorkers’ Compensation Staffing & Fees’
Dear Sandra:
1 wanted to take this opportunity to apologize to you .personally and on behalf of Athens
Administrators for the difficulties that have occurred regarding your dedicated senior examiner.
As I told you, we are interviewing some excellent candidates and plan to have an experienced,
certified replacement examiner or~ your account within the next two weeks. We wil! keep you
closely apprised of our progress.
You expect and deserve nothing short of top quality service and outcomes on your account and it
is our intention to provide such for you immediately. In that regard, we are on an interim basis
adding a second senior examiner to. your account to assist your new senior examiner in bringing
your files to the highest standard possible. An additional focus will be reducing the open claim
inventory through aggressive and proactive handling. This senior examiner’s name is Ms.
Heather Hornbrook and she will begin assisting on your account on July I’L Heather has been
with Athens for over ten years and has extensive public agency background. I’m sure you will
find her an excellent added asset on your account. Her services will remain in effect on your
account untiI such time as both you and Athens feel we have the situation under control and have
restored your account to optimum efficiency and quality.
Our present contract calls for a monthly administration fee of $!4.875 per month. Should you
elect to continue the contract through the third service year, effective October 1, 2001 the
contract also calls for a cost of living adjustment not to exceed 5%.
Because we feel we have not been able to provide the services and results which are up to our
standards, we are hereby unilaterally reducing your monthly fee by 10% and waiving any cost of
living adjustment which might become effective on October 1, 2001. Effective June 1,200I your
new monthly fee will be reduced to $13,388 and this monthly fee shall remain in effect throughout
the remainder of the present service term or until October 1,2002.
Sandra, want you to know that we hold you in the highest regard and that we value very. much
the City of Palo account and our long relationship. Please accept our sincerest apologies for the
recent difficulties that have beset both the City of Palo Alto and Athens Administrators. I promise
you our utmost commitment to bringing your account to the highest possible standards and
performance and soon possible.
A Sincerely.
Peter J. Brown, President
Athens Adrninis~ators ¯ Jen’~nslAthens Insurance Services ¯ Athens Benefits Insu,-ance Services Inc. ¯ Diversified Ciairns I~su~ce Se~ces Inc.
Jentdn s/Athens
November 13, 2001
www. jenkins-athens.corn
Ms. Sandra Blanch, Risk Manager
Human Resources Department
THE CITY OF PALO ALTO
250 Hamilton Avenue
Palo Alto, CA 94303
Re: IExtension of Current Service Aareemen~
Dear Sandra:
Many thanks for your phone call today regarding your recent "blessed event". On behalf
of the staff at Athens allow me to extend our congratulations to IOom and Dad!
You have asked that the present Service Agreement be extended through .June 30, 2003
to allow you time for maternity leave, etc. Certainly I would be most happy to oblige you
and the City of Palo Alto. Accordingly, we have agreed that:
The present Service Agreement will be extended through June 30, 2003.
Effective Q~r 1, 2002 we will be allowed to reinstate our monthly service
fee to the former rate of $14,875. (In my letter of May 29, 2001 I voluntarily
reduced the monthly fee by 10% or to $13,388.)
All other terms and conditions of the Service Agreement shall remain
unchanged.
Best regards,
Peter J. Brown, President
Athens Administrators
PJB/ds
AGREEMENT
BETWEEN THE CITY OF PALO ALTO
AND ATHENS ADMINISTRATORS
FOR WORKERS’ COMPENSATION ADMINISTRATION SERVICES
THIS AGREEMENT is made and entered into this day of
~7--- , 1999, by and between the CITY OF PALO ALTO,
a munici~a! corporation of California, hereinafter referred to as
"CITY," and ATHENS ADMINISTRATORS (Taxpayer Identification Number
94-2448663), a wholly-owned subsidiary of James C. Jenkins
insurance Services, Inc., with offices at 2552 Stanwe!l Drive,
Concord, CA 94522, hereinafter referred to as "CONTRACTOR";
W I TNE S S E TH:
WHEREAS, CITY desires to contract for certain workers’
compensation admini-strative services; and
WHEREAS, CITY desires to engage CONTRACTOR to provide
these services by reason of its qualifications and experience for
performing such services, and CONTRACTOR has offered to provide the
required services on the terms and in the manner set forth herein;
NOW, THEREFORE, in consideration df their mutual
covenants, the parties hereto agree as fol!ows:
SECTION 1 - DEFINITIONS
i.i CITY
The term "CITY" shall mean the City of Palo Alto,
California.
1.2 CITY _MANAGER
The term "City Manager" shall mean the duly appointed
City Manager of the City of Palo Alto, California, or his or her
designated representative.
1.3 RISK ~ANAGER
The term "Risk Manager" shall mean the duly appointed
Risk Manager of the City of Palo Alto, California, or his or her
designated representative.
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i. 4 PROJECT
The term "Project" shall mean the services described in
Exhibit "A", entitled "Scope of Services," attached hereto and made
a part hereof by this reference.
SECTION 2 -PROJECT COORDINATION
2.1 CIT____~Y
The City Manager shall be representative of CITY for all
purposes under this Agreement. Sandra Blanch, the Risk Manager, is
designated as the Project Manager for the City Manager, and she
shal! supervise the progress and execution of this Agreement.
2.2 CONT~hCTOR
CONTRACTOR shall assign a single Project Director to have
overall responsibility for the progress and execut±on of this
Agreement for CONTRACTOR. Peter J. Brown, the President of
CONTRACTOR, hereby is designated as the Project Director for
CONTRACTOR. Should circumstances or conditions subsequent to the.
execution of this Agreement require a substitute Project Director
for any reason, the Project Director designee shall be subject to
the prior written approval of the Project Manager. A Senior
Examiner will be assigned by CONTRACTOR for this Agreement, and
shall work exclusively on this Agreement. The examiner shal! be
supervised by Jan Ramaciotti.
SECTION 3 - DUTIES OF CONTRACTOR
3.1 SERVICES TO BE FURNISHED
CONTRACTOR shall provide all specified services as set
forth in Exhibit A.
3.2 LAWS TO BE OBSERVED
CONTRACTOR shall:
3.2.1 Procure all permits and licenses, pay all
charges and fees, and give all notices which may be necessary and
incident to the due and lawfu! prosecution of the services to be
performed by CONTRACTOR under this Agreement;
3.2.2 Keep itself fully informed of all existing
and future federa!, state, and local laws, ordinances, regulations,
orders, and decrees which may affect those engaged or emp!oyed
under this Agreement, any materials used in CONTRACTOR’s
performance under this Agreement, or the performance of the
services under this Agreement;
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3.2.3 At all times observe and comply with, and
cause all of its subcontractors and employees, if any, to observe
and comply with, the laws, ordinances, regulations, orders and
decrees mentioned above; and
3.2.4 immediately report to the Project Manager
in writing any discrepancy or inconsistency it discovers in the
laws, ordinances, regulations, orders, and decrees mentioned above
in relation to any plans, drawings, specifications or provisions of
this Agreement.
3.3 RELEASE OF REPORTS AND INFOPd~T!ON
No reports, information, data or other material given to,
or prepared or assembled by, CONTRACTOR or its subcontractors, if
any, under this Agreement shall be made available to any individua!
or organization by CONTRACTOR or its subcontractors, if any,
without the prior written approval of the City Manager.
3.4 COPIES OF REPORTS AND INFO~hTION
If CITY requests additional copies of any reports,
drawings, data or any other material which CONTRACTOR is required
to furnish in limited quantities as part of the services under this
Agreement, CONTRACTOR shal! provide such additiona! copies as are
requested and CITY shal! compensate CONTRACTOR for the costs of
duplicating of such copies at CONTRACTOR’s cost.
3.5 0UALIFICATIONS OF CONTRACTOR
CONTRACTOR represents that it has the expertise and
professional qualifications to furnish the services described under
this Agreement. As evidence thereof, CONTRACTOR.warrants that one
or more members of emp!oyees of the firm are licensed by the State
of California and that the services to be provided under this
Agreement will be performed by them or under their supervision.
3.6 COMPLIANCE WITH ADA
CONTRACTOR states that it is aware of the requirements of
the Americans with Disabilities Act of 1990, and the Fair
Emp!oyment and Housing Act provisions, relating to the rights of
persons with disabilities. CONTRACTOR shall comply with or ensure
by its advice that compliance with such provisions will be effected
pursuant to the terms of this Agreement.
SECTION 4 - COMPENSATION
For the full performance of the administrative services
described herein by CONTRACTOR for the first year of the term of
this Agreement, CITY shal! pay CONTKhCTOR the tota! sum Of One
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Hundred Seventy Thousand Dollars ($170,000), payable in eleven (ii)
monthly billings of $14,166.00 and one monthly billing of
$14,174.00. Each monthly payment shal! be made within thirty (30)
days of receipt by CITY of a properly supported invoice, provided
by CONTRACTOR, in triplicate, mailed to the City of Palo Alto,
Attn: Risk Manager, 250 Hamilton Avenue, Palo Alto, CA.
In addition to the compensation set forth in this
section, CONTRACTOR and CITY have agreed to a cost reduction
guarantee, as set forth in Exhibit "A".
Any additional services for which additional fees
would be payable shall be negotiated by the parties outside the
scope of this Agreement, and shall be subject to approval of the
City Counci!.
In the event this Agreement is renewed for any
additional one year terms, CITY shall pay CONTKhCTOR an amount to
be negotiated by the parties, in amount not to exceed five percent
(5%) over the previous one year term.
SECTION 5 - TERM
This Agreement shall commence on November i, 1999, and
shal! continue for one (i) year. This Agreement may be renewed on
an annua! basis, for a tota! term not to exceed three (3) years, to
expire no later than October 31, 2002. Each annua! renewa! hereof
shal! be subject to the City Council’s continued annual
appropriation of sufficient funds for this Agreement and the mutua!
agreement between the parties to renew the Agreement for an
additional year. The City Manager is hereby authorized on behalf
of CITY to agree to renew the contract for a second and third year
upon the Manager’s determination that renewal is in the best
interest of the CITY.
If the parties desire to negotiate additional yearly
renewals as authorized by this section, the parties shal! commence
negotiations for each successive annua! term beginning 60 days
prior to the end of the then current annual term. Agreement for
each successive annual term shal! be concluded at least thirty (30)
days prior to the end of the then current annual term.
SECTION 6 - EXTENSION OF TERM
In the event that the services called for under this
Agreement are not completed within the time specified above, the
City Manager shal! have the option to extend the time for
completion. This paragraph does not preclude the recovery of
damages for delay by either party.
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SECTION 7 - TERMINATION OR SUSPENSION OF AGREEMENT
7.1 RIGHT TO SUSPEND OR TERMINATE
Notwithstanding Section 5 hereof, the City Manager may
suspend this Agreement, in whole or in part, or terminate this
Agreement, with or without cause, by giving sixty (60) days’ prior
written notice thereof to CONTRACTOR. Upon receipt of such notice,
CONTRACTOR shall immediately discontinue its performance under this
Agreement.
CONTRACTOR may terminate this Agreement or suspend work
on the Project by giving sixty (60) days’ prior written notice
thereof to CITY, but only in the event of substantia! failure of
performance by CITY or in the event CITY abandons or indefinitely
postpones the Project.
7.2 PAYMENT
Upon such suspension or termination by CITY, CONTRACTOR
shall be paid for al! services actually rendered to CITY to the
date of such suspension or termination; provided, however, if this
Agreement is suspended or terminated for fault of CONTRACTOR, CITY
shall be obligated to compensate CONTKhCTOR only for that portion
of CONTKhCTOR’s services which are of benefit to CITY, as such
determination may be made by the City Manager in the reasonable
exercise of his or her discretion.
7.3 RETURN OF MATERIALS
Upon such suspension or termination, CONTRACTOR shall
turn over to the City Manager immediately any and all documents and
other data, whether or not completed, prepared by CONTRACTOR or its
subcontractors, if any, or given to CONTRACTOR or its
subcontractors, if any, in connection with this Agreement.Such
materials shal! become the permanent property of CITY.
7.4 FINAL ACCOUNTING
Upon any cancellation or termination of this Agreement,
CONTRACTOR shal! make a fina! accounting of al! fees payable to
CONTRACTOR hereunder and a final accounting of any funds be!onging
to CITY then in the possession of CONTRACTOR, and any balance due
either party shal! be paid to the party entitled thereto no later
than forty-five (45) days following such cancellation or
termination, unless necessary for the fina! administration of any
outstanding claims. It shal! be understood that all claim files,
open and closed, are and remain the exclusive property of CITY and
CITY shall retain the right and option to remove from CONTRACTOR
said claim files upon any cancellation or termination of this
Agreement.
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SECTION 8 - INDEPENDENT JUDGMENT
Failure of CITY to agree with CONTRACTOR’s independent
findings, conclusions, or recommendations, if the same are ca!led
for under this Agreement, on the basis of differences in matters of
judgment, shal! not be construed as failure on the part of
CONTRACTOR to meet the requirements of this Agreement.
SECTION 9 -ASSIGNMENT;PERSONAL SERVICES;SUBCONTRACTORS
AND EMPLOYEES
9.1 ASSIGNMENT
Both parties shall give their personal attention to the
faithful performance of this Agreement and shal! not assign,
transfer, convey, or otherwise dispose of this Agreement or any
right, title or interest in or to the same or any part thereof
without the prior written consent of the other party, and then only
subject to such terms and conditions as the other party may
require. A consent to one assignment shal! not be deemed to be a
consent to any subsequent assignments. Any assignment without such
approva! shall be void and, at the option of the other party, shal!
terminate this Agreement and any license or privilege granted
herein. This Agreement and any interest herein shall not be
assignable by operation of law without the prior written consent of
the other party.
9.2 PERSONAL SERVICES
It is agreed that this Agreement is for the personal
services of CONTRACTOR and cannot be performed by any other person
or organization.
9.3 SUBCONTRACTORS; EMPLOYEES
CONTRACTOR shall be responsible for employing or engaging
all persons necessary to perform the services of CONTRACTOR
hereunder. No subcontractor of CONTRACTOR will be recognized by
CITY as such; rather, all subcontractors are deemed to be employees
of CONTRACTOR, and it agrees to be responsible for their
performance. CONTRACTOR shal! give its persona! attention to the-
fulfillment of the provisions of this Agreement by all of its
emp!oyees and subcontractors, if any, and shal! keep the work under
its control. If any employee or subcontractor of CONTRACTOR 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, the
emp!oyee or subcontractor shal! be discharged immediately from the
work under this Agreement on demand of the Project Manager.
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6
SECTION I0 - NOTICES
All notices hereunder shall be given in writing and
mailed, postage prepaid, by certified mail, addressed as follows:
To CITY:Office of the City Clerk
Post Office Box 10250
Palo Alto, CA 94303
To CONTRACTOR: Attention of the Project Director
at the address of CONTRACTOR recited above
SECTION ii - INTEREST OF CONTRACTOR
In accepting this Agreement, CONTRACTOR covenants that it
presently has no interest, and shall not acquire any interest,
direct or indirect, financial or otherwise, which would conflict in
any manner or degree with the performance of the services
hereunder. CONTRACTOR further covenants that, in the performance
of this Agreement, no subcontractor or person having such an
interest shall be employed. CONT~hCTOR certifies that no one who
has or wil! have any financial interest under this Agreement is an
officer or emp!oyee of CITY. It is expressly agreed that in the
performance of the professional services required under this
Agreement, CONTRACTOR, and any of its subcontractors or emp!oyees,
shal! at all times be considered independent contractors and not
agents or emp!oyees of CITY.
SECTION 12 - INDEMNITY
CONTRACTOR agrees to protect, indemnify, defend and hold
harmless CITY, its Council members, officers, agents and employees
from any and al! demands, claims, or liability of any nature,
including death or injury to any person, property damage or any
other !oss, caused by or arising out of CONTRACTOR’s, its
officers’, agents’, subcontractors’ or employees’ negligent acts,
errors, or omissions, or willful misconduct, or conduct for which
the law may impose strict liability on CONTRACTOR in the
performance of or failure to perform its obligations under this
Agreement.
SECTION 13 -WORKERS’ COMPENSATION
CONTRACTOR, by executing this Agreement, certifies that
it is aware of the provisions of the Labor Code of the State of
California which require every emp!oyer to be insured against
liability for workers’ compensation or to undertake self-insurance
in accordance with the provisions of that Code, and certifies that
it will comply with such provisions before commencing the
performance of the work of this Agreement.
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SECTION 14 - INSURANCE.
14 . 1 INSURANCE COVERAGE
CONTRACTOR, at its sole cost and expense, shall obtain
and maintain, in full force and effect throughout the entire term
of this Agreement, the insurance coverage described in Exhibit "B",
attached hereto and made a part hereof by this reference, insuring
not only CONTRACTOR and its subcontractors, if any, but also, with
the exception of workers’ compensation, emp!oyer’s liability, and
professiona! liability insurance, naming as additiona! insureds
CITY, its Counci! members, officers, agents and employees, and each
of them, concerning this Agreement and the Project.
All insurance coverage required hereunder shall be
provided through carriers with a Best rating of A:VII or higher
that are admitted to do business in the State of California. Any
and al! subcontractors of CONTRACTOR under this Agreement shall
obtain and maintain, in full force and effect throughout the term
of this Agreement, identica! insurance coverage, with CITY named as
additional insured under such policies as required above.
14.2 EVIDENCE OF COVERAGE
Certificates of such insurance, preferably on the forms
provided by CITY, shal! be filed with CITY concurrently with the
execution of this Agreement. The certificates shal! be subject to
the approva! of the Risk Manager and shal! contain an endorsement
stating that the insurance is primary coverage and will not be
canceled or altered by the insurer except after filing with the
City Clerk thirty (30) days’ prior written notice of such
cancellation or alteration, and that the City of Palo Alto is named
as an additiona! insured except in policies of workers’
compensation, emp!oyer’s liability, and professiona! liability
insurance. Current certificates of such insurance shall be kept on
file at all times during the term of this Agreement with the City
Clerk.
14.3 NO LIMIT OF LIABILITY
The procuring of such required policy or policies of
insurance shall not be construed to limit CONTRACTOR’s liability
hereunder nor to fulfill the indemnification provision and
requirements of this Agreement under Section 13 hereof.
Notwithstanding said policy or policies of insurance, CONTRACTOR
shal! be obligated for the full and total amount of any damage,
injury, or loss caused by the services performed under this
Agreement, including after the Agreement has terminated or expired.
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SECTION 15 -AUDITS
CONTRACTOR agrees to permit CITY to audit, at any
reasonable time during the term of this Agreement and for three (3)
years thereafter, CONTRACTOR’s records pertaining to matters
covered by this Agreement. CONTRACTOR further agrees to maintain
such records for at least three (3) years after the term of this
Agreement.
SECTION 16 -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.
SECTION 17 -WAIVERS
The waiver by either party of any breach or violation of
any term, covenant, or condition of this Agreement, or of any
provisions of .any ordinance or law, shal! not be deemed to be a
waiver of any other term, covenant, condition, ordinance, or law. or
of any subsequent breach or violation of the same or of any other
term, covenant, condition, ordinance, or law. The subsequent
acceptance by either party of any fee or other money which may
become due hereunder shall not be deemed to be a waiver of any
preceding breach or violation by the other party of any term,
covenant, or condition of this Agreement or of any applicable law
or ordinance.
SECTION 18 -COSTS AND ATTORNEYS’ FEES
The prevailing party in any action brought to enforce the
terms of this Agreement or arising out of this Agreement may
recover its reasonable costs and attorneys’ fees expended in
connection with such an action from the other party.
SECTION 19 - NO IMPLIED WAIVER
No payment, partial payment, acceptance, or partial
acceptance by CITY shall operate as a waiver on the part of CITY of
any of its rights under this Agreement.
SECTION 20 -NONDISCRIMINATION; PENALTY
20.1 DUTY OF CONTRACTOR
No discrimination shall be made in the employment of
persons under this Agreement because of the age, race, co!or,
nationa! origin, ancestry, religion, disability, sexual preference
or sex of such person. If the value of this Agreement is, or may
be, Five Thousand Dollars ($5,000) or more, CONTRACTOR agrees to
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meet all requirements of the Palo Alto Municipal Code pertaining to
nondiscrimination in emp!oyment, including completing the
"Compliance Report--Nondiscrimination Provisions of City of Pa!o
Alto Contracts" on the form furnished by CITY, attached hereto as
Exhibit "C" and made a part hereof by this reference.
CONTRACTOR agrees that each agreement for services from
independent providers shal! contain a provision substantially as
follows:
"Provider shall provide CONTRACTOR with a
certificate stating that he (or she) is
currently in compliance with all Federal and
State of California laws covering
nondiscrimination in employment; and that he
(or she) wil! not discriminate in the
emp!oyment of any person under this contract
because of the age, race, color, nationa!
origin, ancestry, religion, disability, sexua!
preference or sex of such person."
20.2 PENALTY FOR DISCRIMINATION
if CONTRACTOR is found in violation of the
nondiscrimination provisions of the State of California Fair
Emp!oyment Practices Act or similar provisions of federa! law or
executive order in the performance of this Agreement, it shall
thereby be found in.material breach of this Agreement. Thereupon,
CITY shall have the power to cancel or suspend this Agreement, in
whole or in part, or to deduct from the amount payable to
CONT~hCTOR the sum of Twenty-Five Dollars ($25) for each person for
each calendar day during which such person was discriminated
against, as damages for breach of contract, or both. Only a
finding of the State of California Fair Employment Practices
Commission or the equivalent federa! agency or officer shall
constitute evidence of a violation of contract under this section.
SECTION 21 -AGREEMENT CONTAINS ALL UNDERSTANDINGS;
~ENDMENT
This document represents the entire and integrated
agreement between CITY and CONTRACTOR and supersedes al! prior
negotiations, representations, and agreements, either written or
ora!. This document may be amended only by written instrument,
signed by both CITY and CONTRACTOR.
SECTION 22 -GOVERNING LAW
This Agreement shall be governed by the laws of the State
of California.
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CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
) as.
COUNTY OF )
Onl~~O~y~ , 14~, before me, the undersigned,
a Notary Public. . in/ and. for~ said ,~ounty and State, personally
appeared ~.F~< V~ ~Lf~_].~,~ ~.{/ ~ ~{Kfk~4"t , personally
known to me or provedto me on the basis of satisfactory evidence
to be the person(s) whose name(s) ~subscribed to the within
instrument and acknowledged to me that h~executed the
same in h~h~_~-s~ t~ authorized capacity(ies), and that by
bi~~hei_psignature(s) on the instrument the person(s), or the
entity upon~ behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
DEBORAH A. BEASLEY
COMM. 1126934
NOTARY PUBLK; - C ’.~LIFOf~ACON’TRA COSTA COUNTY "
Comm. Expires Feb, 12, 2001
Signature of Notary Public
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