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HomeMy WebLinkAboutC-7570-2 - Assignment Agreement and Amendment No. 1 (for On-Call PSA for Classification and Compensation Consulting Services)ASSIGNMENT AGREEMENT AND AMENDMENT NO. ONE BETWEEN THE CITY OF NEWPORT BEACH AND GALLAGHER BENEFIT SERVICES, INC. THIS ASSIGNMENT AGREEMENT AND AMENDMENT NO. ONE (to be referenced as "Assignment" or "Amendment No. One") is made and entered into as of this 23rd day of January , 2022, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City") and KANEKO & KRAMMER CORP., a California corporation DBA KOFF & ASSOCIATES, INC. ("Assignor"), whose address is 2835 7th Street, Berkeley, CA 94710 and GALLAGHER BENEFIT SERVICES, INC. a Delaware corporation, acting through its Koff & Associates division ("Assignee"), whose address is 2850 Golf Road, Rolling Meadows, IL 60008, and is made with reference to the following: RECITALS A. On December 1, 2018, City and Assignor entered into an On -Call Professional Services Agreement for classification and compensation consulting services, commencing on December 1, 2018, and terminating on November 30, 2021 ("Agreement"). B. Assignor wishes to assign its rights under the Agreement to Assignee, and City desires to consent to such assignment. C. In addition, City and Assignee desire to extend the term of the Agreement, update the billing rates, amend the Project Manager, Hold Harmless, and Notices sections, and update Insurance requirements. D. Efforts to clarify Assignee's corporate structure and the proper contracting entity for the amendment to the Agreement have precluded executing this Assignment and Amendment No. One prior to the Agreement's termination date. E. City, Assignor and Assignee desire for this Assignment and Amendment No. One to be effective retroactively, as of November 30, 2021. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. ASSIGNMENT As of November 30, 2021 ("Effective Date"), Assignee hereby accepts such assignment and hereby assumes, agrees and undertakes to perform all obligations of Assignor pursuant to the Agreement as of the Effective Date. Any reference to KANEKO & KRAMMER CORP., a California corporation DBA KOFF & ASSOCIATES, INC. and/or Consultant in the Agreement, shall be deemed to be a reference to GALLAGHER BENEFIT SERVICES, INC., a Delaware corporation, acting through its Koff & Associates division. As of the Effective Date, Assignor shall have no further rights of any kind whatsoever under the Agreement. 2. CITY CONSENT TO ASSIGNMENT Pursuant to Section 15 of the Agreement, City approves of this Assignment. 3. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on December 1, 2018 and shall terminate on November 30, 2023 unless terminated earlier as set forth herein." 4. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be amended in its entirety and replaced to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference. 5. PROJECT MANAGER Section 5.1 of the Agreement is amended in its entirety and replaced with the following: "5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Georg S. Krammer to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel." 6. HOLD HARMLESS Section 9.1 of the Agreement is amended in its entirety and replaced with the following: "To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, Gallagher Benefit Services, Inc. Assignment Agreement Page 2 a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them), or if it is subsequently determined that an employee of Consultant is not an independent contractor." 7. NOTICES Section 25.3 of the Agreement is amended in its entirety and replaced with the following: Attn: Georg S. Krammer GALLAGHER BENEFIT SERVICES, INC. a Delaware corporation, acting through its Koff & Associates division 2835 7th Street Berkeley, CA 94710 8. INSURANCE Exhibit C of the Agreement shall be deleted in its entirety and replace with Exhibit C, attached hereto and incorporated herein by reference. Any reference to Exhibit C in the Agreement shall hereafter refer to Exhibit C attached hereto. 9. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. 10. COUNTERPARTS This Assignment may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Gallagher Benefit Services, Inc. Assignment Agreement Page 2 IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement on the date first above written. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: (// q /2Z la A6roh C. Harp City Attorney ATTEST: Date: /g Zo LZ CITY OF NEWPORT BEACH, a California municipal corporation Date: H'15 -�02?, By: GraceX. Leung City Manager ASSIGNOR: KANEKO & KRAMMER CORP., a California corporation DBA KOFF & ASSOCIATES, INC. Date: r By: By:(- 1 1��l ^C.CQ,LUU1W Leilani I.B n G " rg . Krammer City Cler Clhf E 'ecutive Officer/Secretary ASSIGNEE: GALLAGHER BENEFIT SERVICES, INC. a Delaware corporation, acting through its Koff & Associates division Date: By: oa��C) Catherine B. Kaneko Managing Director Date: / 1Z- By: Z By:i F Ge rg S. rammer Managing Director [END OF SIGNATURES] Attachments: Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Gallagher Benefit Services, Inc. Assignment Agreement Page 3 EXHIBIT B SCHEDULE OF BILLING RATES Gallagher Benefit Services, Inc. Assignment Agreement Page B-1 Koff & Associates N :mfl' ie;'curcP5 noir! '�.ng '-0.1"'p- Koff in;;e Koff & Associates Rate Sheet Projects with a budget of $5,000 or less, the following rate schedule applies: $195 per hour for Chief Executive Officer and President $175 per hour for Senior Project Manager $170 per hour for Project Manager $165 per hour for Senior Associate $160 per hour for Associate $80 per hour for Administrative Coordinator $75 per hour for Administrative Assistant Projects with a budget of more than $5,000, composite hour rate of $165/hour will apply. 2835 Seventh Street, Berkeley, California 94710 1 510.658.5633 1 www.KoffAssociates.com EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Gallagher Benefit Services, Inc. Assignment Agreement Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than two years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement, other than Professional Liability, shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. The general liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. The General Liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. Any cancelled or non -renewed policy will be replaced with no coverage gap and a current Certificate of Insurance will be provided to the City. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such Gallagher Benefit Services, Inc. Assignment Agreement Page C-2 insurance coverage has been renewed or extended shall be filed with the City. If the general liability is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Riqht to Review Subcontracts. Consultant agrees that upon request, all agreements with subcontractors or others with whom Consultant enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. Gallagher Benefit Services, Inc. Assignment Agreement Page C-3 G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. H. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Gallagher Benefit Services, Inc. Assignment Agreement Page C-4