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AGREEMENT #4408
R20193, 10-3-01
CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
THIONTRACT ERVIC,ES AGREEMENT(herein "Agreement"), is made and entered
into this,� 1 day of , 2001, by and between the CITY OF PALM
SPRINGS, a municipal corporation, (herein "City") and Davis &Graeber Insurance Services, Inc.
(herein "Contractor"). (The term Contractor includes professionals performing in a consulting
capacity.) The parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Contractor shall provide those services specified in the "Scope of Services"
attached hereto as Exhibit"A" and incorporated herein by this reference, which services may be
referred to herein as the "services" or "work" hereunder. As a material inducement to the City
entering into this Agreement, Contractor represents and warrants that Contractor is a provider of
first class work and services and Contractor is experienced in performing the work and services
contemplated herein and, in light of such status and experience, Contractor covenants that it shall
follow the highest professional standards in performing the work and services required hereunder
and that all materials will be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase "highest professional standards" shall mean those standards of practice
recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's
proposal or bid which shall be incorporated herein by this reference as though fully set forth
herein. In the event of any inconsistency between the terms of such proposal and this Agreement,
the terms of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any
Federal, State or local governmental agency having jurisdiction in effect at the time service is
rendered.
1.4 Licenses. Permits. Fees and Assessments. Contractor shall obtain at its
sole cost and expense such lic ns ees, permits and approvals as may be required by law for the
performance of the services required by this Agreement. Contractor shall have the sole obligation
to pay for any fees, assessments and taxes, plus applicable penalties and interest,which may be
imposed by law and arise from or are necessary for the Contractor's performance of the services
required by this Agreement, and shall indemnify, defend and hold harmless City against any such
fees, assessments, taxes penalties or interest levied, assessed or imposed against City
hereunder.
1.5 Familiarity with Work. By executing this Contract, Contractor warrants that
Contractor(a) has thoroughly investigated and considered the scope of services to be performed,
(b) has carefully considered how the services should be performed, and (c)fully understands the
facilities, difficulties and restrictions attending performance of the services under this Agreement.
If the services involve work upon any site, Contractor warrants that Contractor has or will
investigate the site and is or will be fully acquainted with the conditions there existing, prior to
commencement of services hereunder. Should the Contractor discover any latent or unknown
conditions,which will materially affect the performance of the services hereunder,Contractorshall
immediately inform the City of such fact and shall not proceed except at Contractor's risk until
written instructions are received from the Contract Officer.
1.6 Care of Work. The Contractor shall adopt reasonable methods during the
life of the Agreement to furnish continuous protection to the work, and the equipment, materials,
papers, documents, plans, studies and/or other components thereof to prevent losses or
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damages, and shall be responsible for all such damages,to persons or property, until acceptance
of the work by City, except such losses or damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use reasonable
care and diligence to perform their respective obligations under this Agreement. Both parties
agree to act in good faith to execute all instruments, prepare all documents and take all actions
as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter
specified, neither party shall be responsible for the service of the other.
1.8 Additional Services. City shall have the right at any time during the
performance of the services,without invalidating this Agreement, to order extra work beyond that
specified in the Scope of Services or make changes by altering, adding to or deducting from said
work. No such extra work may be undertaken unless a written order is first given by the Contract
Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or(ii)
the time to perform this Agreement,which said adjustments are subject to the written approval of
the Contractor. Any increase in compensation of up to five percent (5%) of the Contract Sum or
$25,000; whichever is less, or in the time to perform of up to one hundred eighty (180) days may
be approved by the Contract Officer. Any greater increases, taken either separately or
cumulatively must be approved by the City Council. It is expressly understood by Contractor that
the provisions of this Section shall not apply to services specifically set forth in the Scope of
Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the
risk that the services to be provided pursuant to the Scope of Services maybe more costly or time
consuming than Contractor anticipates and that Contractor shall not be entitled to additional
compensation therefore.
1.9 Special Requirements. Additional terms and conditions of this Agreement,
if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto
as Exhibit"B" and incorporated herein by this reference. In the event of a conflict between the
provisions of Exhibit"B" and any other provisions of this Agreement, the provisions of Exhibit"B"
shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, the
Contractor shall be compensated in accordance with the "Schedule of Compensation"attached
hereto as Exhibit"C" and incorporated herein by this reference, but not exceeding the maximum
contract amount of Two Hundred Sixty Thousand Dollars($260„000.00) (herein "Contract Sum"),
except as provided in Section 1.8. The method of compensation may include: (i) a lump sum
payment upon completion, (ii) payment in accordance with the percentage of completion of the
services, (iii)payment fortime and materials based upon the Contractor's rates as specified in the
Schedule of Compensation, but not exceeding the Contract Sum or (iv) such other methods as
may be specified in the Schedule of Compensation. Compensation may include reimbursement
for actual and necessary expenditures for reproduction costs, telephone expense, transportation
expense approved by the Contract Officer in advance, and no other expenses and only if
specified in the Schedule of Compensation. The Contract Sum shall include the attendance of
Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not
be entitled to any additional compensation for attending said meetings.
2.2 Method of Payment. Unless some other method of payment is specified in
the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no
later than the first(1 st)working day of such month, Contractor shall submit to the City in the form
approved by the City's Director of Finance, an invoice for services rendered prior to the date of
the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated
thereon which are approved by City pursuant to this Agreement no later than the last working day
of the month.
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3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Contractor shall commence the services
pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all
services within the time period(s) established in the "Schedule of Performance" attached hereto
as Exhibit "D", if any, and incorporated herein by this reference. When requested by the
Contractor, extensions to the time period(s) specified in the Schedule of Performance may be
approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days
cumulatively.
3.3 Force Maieure. The time period(s)specified in the Schedule of Performance
for performance of the services rendered pursuant to this Agreement shall be extended because
of any delays due to unforeseeable causes beyond the control and without the fault or negligence
of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually
severe weather,fires,earthquakes,floods,epidemics,quarantine restrictions,riots,strikes,freight
embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the
Contractor shall within ten (10) days of the commencement of such delay notify the Contract
Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the
extent of delay, and extend the time for performing the services for the period of the enforced
delay when and if in the judgment of the Contract Officer such delay is justified. The Contract
Officer's determination shall be final and conclusive upon the parties to this Agreement. In no
event shall Contractor be entitled to recover damages against the City for any delay in the
performance of this Agreement,however caused,Contractor's sole remedy being extension of the
Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance,with Section 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services
but not exceeding five (5) years from the date hereof, except as otherwise provided in the
Schedule of Performance (Exhibit"D").
4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following principals of Contractor are
hereby designated as being the principals and representatives of Contractor authorized to act in
its behalf with respect to the work specified herein and make all decisions in connection therewith:
Ross Jones, Vice President
Davis & Graeber Insurance Services, Inc.
470 E. Highland Avenue
Redlands, CA 92373
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Contractor and devoting sufficient time to personally supervise the
services hereunder. For purposes of this Agreement,the foregoing principals may not be replaced
nor may their responsibilities be substantially reduced by Contractor without the express written
approval of City.
4.2 Contract Officer. The Contract Officer shall be such person as may be
designated by the City Manager of City. It shall be the Contractor's responsibility to assure that
the Contract Officer is kept informed of the progress of the performance of the services and the
Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless
otherwise specified herein, any approval of City required hereunder shall mean the approval of
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the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of
the City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability and reputation of Contractor, its principals and employees were a
substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not
contractwith any other entity to perform in whole or in part the services required hereunder without
the express written approval of the City. In addition, neither this Agreement nor any interest herein
maybe transferred,assigned, conveyed,hypothecated or encumbered voluntarily or by operation
of law, whether for the benefit of creditors or otherwise, without the prior written approval of City.
Transfers restricted hereunder shall include the transfer to any person or group of persons acting
in concert of more than twenty five percent (25%) of the present ownership and/or control of
Contractor, taking all transfers into account on a cumulative basis. In the event of any such
unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No
approved transfer shall release the Contractoror any surety of Contractor of any liability hereunder
without the express consent of City.
The City's policy is to encourage the awarding of subcontracts to persons or entities with
offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are
available, to persons or entities with offices located in the Coachella Valley ("Local
Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to
Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In
requesting for the City to consent to a subcontract with a person or entity that is not a Local
Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have
been made or that no Local Subcontractors are qualified to perform the work. Said good faith
efforts may be evidenced by placing advertisements inviting proposals or by sending requests for
proposals to selected Local Subcontractors. The City may consider Contractor's efforts in
determining whether it will consent to a particular subcontractor. Contractor shall keep evidence
of such good faith efforts and copies of all contracts and subcontracts�hereunder for the period
specified in Section 6.2.
4.4 Independent Contractor. Neither the City nor any of its employees shall
have any control over the manner, mode or means by which Contractor, its agents or employees,
perform the services required herein, except as otherwise set forth herein. City shall have no
voice in the selection, discharge, supervision or control of Contractor's employees, servants,
representatives or agents, or in fixing their number,compensation or hours of service. Contractor
shall perform all services required herein as an independent contractor of City and shall remain
at all times as to City a wholly independent contractorwith only such obligations as are consistent
with that role. Contractor shall not at any time or in any manner represent that it or any of its
agents or employees are agents or employees of City. City shall not in any way or for any
purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint
venturer or a member of any joint enterprise with Contractor.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Contractor shall procure and maintain, at its sole cost
and expense, in a form and content satisfactory to City, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a) Commercial General Liability Insurance. A policy of commercial general
liability insurance written on a per occurrence basis with a combined single limit of a least
$1,000,000 bodily injury and property damage including coverages for contractual liability,
personal injury, independent contractors, broad form property damage, products and
completed operations The General Liability Policy shall name the City of Palm Springs as
an additional insured in accordance with standard ISO additional insured endorsement
form CG2010(1185) or equivalent language. The Commercial General Liability Insurance
shall name the City, its officers, employees and agents as additional insured.
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(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which will include $1,000,000 employer's liability.
(c) Business Automobile Insurance. A policy of business automobile
liability insurance written on a per occurrence basis with a single limit liability in the amount
of $1,000,000 bodily injury and property damage, Said policy shall include coverage for
owned, non-owned, leased and hired cars.
(d) Additional Insurance. Policies of such other insurance, including
professional liability insurance in a minimal amount of $1,000,000 if contract has
professional liability exposure, as may be required in the Special Requirements.
All of the above policies of insurance shall be primary insurance. The insurer shall waive
all rights of subrogation and contribution it may have against the City, its officers, employees and
agents, and their respective insurers. In the event any of said policies of insurance are canceled,
the Contractor shall, prior to the cancellation date, submit new evidence of insurance in
conformance with this Section 5.1 to the Contract Officer. No work or services under this
Agreement shall commence until the Contractor has provided the City with Certificates of
Insurance or appropriate insurance binders evidencing the above insurance coverages and said
Certificates of Insurance or binders are approved by the City.
The contractor agrees that the provisions of this Section 5.1 shall not be construed as
limiting in any way the extent to which the Contractor may be held responsible for the payment of
damages to any persons or property resulting from the Contractor's activities or the activities of
any person or person for which the Contractor is otherwise responsible.
In the event the Contractor subcontracts any portion of the work in compliance with Section
4.3 of this Agreement the contract between the Contractor and such subcontractor shall require
the subcontractor to maintain the same polices of insurance that the Contractor is required to
maintain pursuant to this Section.
5.2 Indemnification. Contractor agrees to indemnify the City,its officers,agents
and employees against, and will hold and save them and each of them harmless from, any and
all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations,
errors,omissions or liabilities, (herein"claims or liabilities")that may be asserted or claimed by any
person, firm or entity arising out of or in connection with the negligent performance of the work,
operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided
for herein, or arising from the negligent acts or omissions of Contractor hereunder,or arising from
Contractor's negligent performance of or failure to perform any term, provision, covenant or
condition of this Agreement, whether or not there is concurrent passive or active negligence on
the part of the City, its officers, agents or employees but excluding such claims or liabilities arising
from the sole negligence or willful misconduct of the City, its officers, agents or employees, who
are directly responsible to the City, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the City,
its officers, agents or employees for any such claims or liabilities arising out of or in connection
with the negligent performance of or failure to perform such work, operations or activities of
Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and
employees harmless therefrom;
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(c) In the event the City, its officers, agents or employees is made a
party to any action or proceeding filed or prosecuted against Contractor for such damages or other
claims arising out of or in connection with the negligent performance of or failure to perform the
work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its
officers, agents or employees, any and all costs and expenses incurred by the City, its officers,
agents or employees in such action or proceeding, including but not limited to, legal costs and
attorneys' fees.
5.3 Performance Bond. Concurrently with execution of this Agreement,
Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement,
in the form provided by the City Clerk, which secures the faithful performance of this Agreement,
unless such requirement is waived by the Contract Officer. The bond shall contain the original
notarized signature of an authorized officer of the surety and affixed thereto shall be a certified
and current copy of his power of attorney. The bond shall be unconditional and remain in force
during the entire term of the Agreement and shall be null and void only if the Contractor promptly
and faithfully performs all terms and conditions of this Agreement.
5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this
Agreement shall be satisfactory only if issued by companies qualified to do business in California,
rated"A"or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the
Federal Register, and only if they are of a financial category Class VII or better, unless such
requirements are waived by the City Manager or designee of the City ("City Manager") due to
unique circumstances. In the event the City Manager determines that the work or services to be
performed under this Agreement creates an increased or decreased risk of loss to the City, the
Contractor agrees that the minimum limits of the insurance policies and the performance bond
required by this Section 5 may be changed accordingly upon receipt of written notice from the City
Manager or designee; provided that the Contractor shall have the right to appeal a determination
of increased coverage by the City Manager to the City Council of City within ten (10) days of
receipt of notice from the City Manager.
6.0 REPORTS AND RECORDS
6.1 Reports. Contractor shall periodically prepare and submit to the Contract
Officer such reports concerning the performance of the services required by this Agreement as
the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly
concerned about the cost of work and services to be performed pursuant to this Agreement. For
this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances,
techniques, or events that may or will materially increase or decrease the cost of the work or
services contemplated herein or, if Contractor is providing design services, the cost of the project
being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance,
technique or event and the estimated increased or decreased cost related thereto and, if
Contractor is providing design services, the estimated increased or decreased cost estimate for
the project being designed.
6.2 Records. Contractor shall keep, and require subcontractors to keep, such
books and records as shall be necessary to perform the services required by this Agreement and
enable the Contract Officer to evaluate the performance of such services. The Contract Officer
shall have full and free access to such books and records at all times during normal business
hours of City, including the right to inspect, copy, audit and make records and transcripts from
such records. Such records shall be maintained for a period of three (3) years following
completion of the services hereunder, and the City shall have access to such records in the event
any audit is required.
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Contractor,its employees,subcontractors and agents
in the performance of this Agreement shall be the property of City and shall be delivered to City
upon request of the Contract Officer or upon the termination of this Agreement, and Contractor
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shall have no claim for further employment or additional compensation as a result of the exercise
by City of its full rights of ownership of the documents and materials hereunder. Any use of such
completed documents for other projects and/or use of uncompleted documents without specific
written authorization by the Contractor will be at the City's sole risk and without liability to
Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom.
Contractor may retain copies of such documents for its own use. Contractor shall have an
unrestricted right to use the concepts embodied therein. All subcontractors shall provide for
assignment to City of any documents or materials prepared by them, and in the event Contractor
fails to secure such assignment, Contractor shall indemnify City for all damages resulting
therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Contractor in the performance of services under this
Agreement shall not be released publicly without the priorwritten approval of the Contract Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both as
to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute,claim or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside, State of California, or any other
appropriate court in such county, and Contractor covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement, the
injured party shall notify the injuring party in writing of its contentions by submitting a claim
therefor. The injured party shall continue performing its obligations hereunder so long as the
injuring party commences to cure such default within ten (10) days of service of such notice and
completes the cure of such default within forty-five (45) days after service of the notice, or such
longer period as may be permitted by the injured party; provided that if the default is an immediate
danger to the health, safety and general welfare, such immediate action may be necessary.
Compliance with the provisions of this Section shall be a condition precedent to termination of this
Agreement for cause and to any legal action, and such compliance shall not be a waiver of any
party's right to take legal action in the event that the dispute is not cured, provided that nothing
herein shall limitCity's orthe Contractor's right to terminate this Agreement without cause pursuant
to Section 7.8.
7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any
amount payable to Contractor(whether or not arising out of this Agreement) (i) any amounts the
payment of which may be in dispute hereunder orwhich are necessary to compensate Cityforany
losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be
liable to third parties, by reason of Contractor's acts or omissions in performing or failing to
perform Contractor's obligation under this Agreement. In the event that any claim is made by a
third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall
exist which shall appear to be the basis for a claim of lien, City may withhold from any payment
due,without liability for interest because of such withholding, an amount sufficient to cover such
claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect
the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided
herein.
7.4 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party on any default shall impair such right or remedy or be construed as a waiver.
A party's consent to or approval of any act by the other party requiring the party's consent or
approval shall not be deemed to waive or render unnecessary the other party's consent to or
approval of any subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other provision of this
Agreement.
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7.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the
parties are cumulative and the exercise by either party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
7.6 Legal Action. In addition to any other rights or remedies, either party may
take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages
for any default, to compel specific performance of this Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior to Expiration Of Term. This Section shall govern any
termination of this Agreement except as specifically provided in the following Section for
termination for cause. The City reserves the right to terminate this Agreement at any time, with
orwithout cause, upon thirty(30)days'written notice to Contractor, except that where termination
is due to the fault of the Contractor, the period of notice may be such shorter time as may be
determined by the Contract Officer. In addition,the Contractor reserves the right to terminate this
Agreement at any time upon, with or without cause, upon sixty (60) days' written notice to City,
except that where termination is due to the fault of the City, the period of notice may be such
shorter time as the Contractor may determine. Upon receipt of any notice of termination,
Contractor shall immediately cease all services hereunder except such as may be specifically
approved by the Contract Officer. Except where the Contractor has initiated termination, the
Contractor shall be entitled to compensation for all services rendered prior to the effective date
of the notice of termination and for any services authorized by the Contract Officer thereafter in
accordance with the Schedule of Compensation or such as may be approved by the Contract
Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination,
the Contractor shall be entitled to compensation only forthe reasonable value of the work product
actually produced hereunder. In the event of termination without cause pursuant to this Section,
the terminating party need not provide the non-terminating party with the opportunity to cure
pursuant to Section 7.2.
7.8 Termination for Default of Contractor. If termination is due to the failure of
the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 7.2, take over the work and prosecute the same to completion by contract
or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of
the services required hereunder exceeds the compensation herein stipulated (provided that the
City shall use reasonable efforts to mitigate such damages), and City may withhold any payments
to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as
previously stated.
7.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or madea party to any action or proceeding in any way connected with this Agreement,
the prevailing party in such action or proceeding, in addition to any other relief which may be
granted,whetherlegal orequitable,shall be entitled to reasonable attorney's fees. Attorney's fees
shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall
be entitled to all other reasonable costs for investigating such action, taking depositions and
discovery and all other necessary costs the court allows which are incurred in such litigation. All
such fees shall be deemed to have accrued on commencement of such action and shall be
enforceable whether or not such action is prosecuted to judgment.
7.10 Termination for Default of City. If termination is due to the failure of the City
to fulfill its obligations under this Agreement, Contract shall, after compliance with the provisions
of Section 7.2, immediately cease all further actions hereunder.
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8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Contractor, or any successor in interest, in the event of any
default or breach by the City or for any amount which may become due to the Contractor or to its
successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which effects his financial interest or the
financial interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. The Contractor warrants that it has not
paid or given and will not pay or give any third party any money or other consideration for
obtaining this Agreement.
8.3 Covenant Against Discrimination. Contractor covenants that, by and for
itself, its heirs, executors, assigns, and all persons claiming under orthrough them,that there shall
be no discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement. Contractor shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed, religion,
sex, marital status, national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person
shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of
the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM
SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the"case of the Contractor, to
the person at the address designated on the execution page of this Agreement. Either party may
change its address by notifying the other party of the change of address in writing. Notice shall
be deemed communicated at the time personally delivered or in seventy-two (72) hours from the
time of mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against
either party by reason of the authorship of this Agreement or any other rule of construction which
might otherwise apply.
9.3 Integration:Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations,arrangements,agreements and understandings,if any,between
the parties, and none shall be used to interpretthis Agreement. This Agreement may be amended
at any time by the mutual consent of the parties by an instrument in writing.
9.4 Severability. In the event that any one or more of the phrases, sentences,
clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity
orunenforceability shall not affect any of the remaining phrases, sentences,clauses, paragraphs,
or sections of this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder unless the invalid provision is so material that its
invalidity deprives either party of the basic benefit of their bargain or renders this Agreement
meaningless.
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IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date
first written above.
CITY OF PALM SPRINGS,
a municipal corporation
ATT —��� 1 /f
BL�i
City Manager
City Clerk
APPROVED AS TO FORM: \(C
heck one: _Individual_ Partnership
Corporation)
By: r "
City Att ate" CONTRACTOR:
By:
Signature (Notarized)
Peter M. Davis
Print Name & Title
Chief Executive. Officer
By:
, - Signature (Notarized)
• Martin Davis
Print Name &Title
Chief Financial Officer
Mailing Address:
Corporations require two notarized signatures: One Davis & Graeber Insurance Services, Inc.
from each of the following: A. Chairman of Board,
President, or any Vice President: AND B. Secretary, P.O. Box 40
Assistant Secretary,Treasurer,Assistant Treasurer,or
Chief Financial Officer).
Redlands, CA 92373
u S�� E.)II �I�J ii _ G✓'i�2 d �iK.,y�)7���.�1 'III{
MUSERS\WM\Lrsurance\Davis Graeber contract.wpd
September 20,2001(3:43pm) _I0_
CALIFORNIA ALL PURPOSE01KNOWLEDGMENT •
State of California
County of San Bernardino
On September 21, 2001 before me Shannon Lopez, Notary Public
Personally appeared Martin Davis
® personally known to me - OR=0 proved'-to me tsrr-the-basis-of-satisfactory_evidenee to be the
person(s) whose name(s is are subscribed to the within
instrument and acknowledged to me tha(/shefth-ey executed
the same inheOtheir authorized capacity(ies), and that by
is-her/-their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
SHANNON'0
r, coMM.N1285691 n WITNESS my hand and official seal.
NOTARY PUOLIC CALIFONNIA A
V SAN'MAROIN0 GW"y
+ ASy Camm E."re Oec2],2004�
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent
reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
CORPORATE OFFICER
Chief Financial Officer Contract Services Agreement
Title(s) Title or Type of Document
0-PAR-T-N ER-S- -EFMiTED
e-GrENERAL 15
-A�T0RiVEl--FN-FACT Number of Pages
-T-RU-S-TE-E(S)
--GUA-R )4AN/GE)N,SERVATOR
O-T-H E-R:
Date of Document
SIGNER IS REPRESENTING:
Davis & Graeber Insurance Services Inc City of Palm Springs
Signer(s) other than Named Above
CALIFORNIA ALL PURPOSEIRKNOWLEDGMENT •
State of California
County of San Bernardino
On September 21, 2001 before me Shannon Lopez. Notary Public
Personally appeared Peter M. Davis
® personally known to me - OR --0-proved-to-me-on-the-bas' of sa€is€a�tary evi�leFice to be the
person(s) whose name(s is -e subscribed to the within
Instrument and acknowledged to me that�ie/s4e-hey executed
the same i his7herd#I,eir authorized capacity(ies), and that by
fii herA--heir signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
SNANNONLOPE7_
m COMM.#1285691 n WITNESS my hand and official seal.
NDTAgY PUULIC CALIFDFNIF, A
V SAN 6cDNAFDINO LDUNTY �
My Camm Evpues Dec 27,2004J
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent
reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
I-Ni3IVI D44AL
CORPORATE OFFICER
Chief Executive Officer Contract Services Agreement
Title(s) Title or Type of Document
,P—PA-RTNERS —L-tMITED
G—ENERAL 15
ATTORNEY=fN FACT Number of Pages
TRUST-EE(S)
G UA-RDIANie O Nam€RAT O R
—OTHER:
Date of Document
SIGNER IS REPRESENTING:
Davis & Graeber Insurance Services Inc City of Palm Springs
Signer(s) other than Named Above
EXHIBIT "A"
SCOPE OF SERVICES
Contractor shall provide Property, Liability and Workers'Compensation Insurance Brokerage
Services per Request for Proposal 01-02, per the Contractor's proposal, and per the following
itemized work items:
A. Working on behalf of the City of Palm Springs, California, Contractor shall solicit insurance
and risk management proposals from qualified carriers and evaluate and recommend the
most effective risk financing programs. Each time there is a renewal of a financing program,
Contractor shall provide City with a copy of all bids,including the name of each insurance
company, amount of each bid and details regarding coverages encompassed within each
bid. Contractor is to evaluate various risk financing strategies, prepare a written summary
of each strategy and make appropriate recommendations. Contractor shall work with the
City staff,as applicable, and shall prepare a project time line, develop a marketing strategy;
make presentations; and implement the program to include negotiations with carriers and
other appropriate parties.
B. The Contractorshall develop projecttime lines and shall be available according to time lines
coordinated with, and acceptable to, City for planning, review, presentations, and
implementation meeting prior to the expiration date of the policies due for renewal. All
recommendations for coverage shall include comprehensive competitive prices from the
insurance market. Summaries shall include insurance company, price quoted, Best's
ratings, limits, deductibles and any changes in terms and conditions.
C. Contractor shall assist City staff in the development and maintenance of contractual
insurance standards and provide expertise as to the appropriate types and levels of
coverage necessary for proposed contracts.
D. Contractor shall review invoices received from carriers to assess,accuracy, initiate billing
activity, resolve accounting differences or discrepancies, and confirm premiums are"net of
commissions".
E. On behalf of the City,Contractor shall issue binders and insurance certificates of coverage,
request endorsements from carriers and issue identification cards for automobile insurance.
F. Contractor shall analyze insurance market trends and report in advance on the effect the
trends will have on pricing and coverage availability and shall make appropriate
recommendation so that City may take advantage of said trends.
G. Contractor shall provide routine verbal consulting advice on safety and loss control matters
as they relate to the City's risk management program. In addition, Contractor shall carry out
on-site risk assessment Inspections of a least one third of the City's facilities annually and
develop and provide training programs to reduce said risks.
H. Within 120 days of contract commencement, Contractor shall advise the City in setting up
an effective comprehensive Employee Safety Incentive Program.
I. Contractor shall maintain frequent contact with claims personnel to follow the progress of
claims management activities,remain abreast of loss development, and assist in resolving
problems/conflicts regarding claims administration issues.
EXHIBIT "A"
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SCOPE OF SERVICES
J. At Council's request, Contractorwill perform a complete analysis of City's current Workers'
Compensation Program and report and recommend as to the most effective program for the
City's consideration.
K. Meet with City's Management on a quarterly basis to review overall risk management
program.
L. Act as primary Safety Committee advisor, conduct a review of all safety incidents and
accident reports, attend monthly meetings with City's Safety Committee to discuss incident
trends and solutions and provide training services to City staff related to Risk Management
and Safety Committee issues.
M. Issue quarterly written performance reports to City's Management within 30 days of the end
of each quarter.
EXHIBIT "B"
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SPECIAL REQUIREMENTS
The requirement of Section 5.3 for the Performance Bond is hereby waived.
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EXHIBIT "C"
SCHEDULE OF COMPENSATION
For each year of the Agreement, Contractor shall be paid a flat fee of $52,000. Said fee
shall be paid in quarterly equal installments in October, January, April and July of each year.
Contractor to provide an invoice at least 30 days prior to required payments.
Total compensation is not to exceed $260,000.00.
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EXHIBIT "D"
SCHEDULE OF PERFORMANCE
The term of this contract is for five years.
Services under this contract shall be provided in a timely fashion so the City has at least 20
working days to review all bids and recommend insurance placements. Specific service time lines
called out in Exhibit "A", Scope of Services, shall be adhered to.
By November 31"of each year, Contractor shall advise City of the major training effort to
be undertaken by Contractor in that contract year.
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