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.
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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