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HomeMy WebLinkAboutBARTEL ASSOCIATES, LLC. 1 - 2003INSURANCE ON FILE WORK MAY PROCEED UN[IL INSURANCE EX?IRES 9-/ CLERK OF COUNCIL DA]r[: t N-2003-'134 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this I~~'!a day of 3e.~}e_~m loeb, 2003 by and between Barrel Associates, LLC, a Cahfornm hrmted habfllty company (hereinafter "Consultant"), and the City of Santa Aha, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS The City desires to retain a consultant having special skill and knowledge in the field of actuarial consulting, to perform an actuarial study of the City's CalPERS retirement system. B. Consultant represents that Consultant is able and willing to provide such services to the City. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services required for Phase I of the actuarial study, as set forth in Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement, shall not exceed $5,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2004, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Community Development Agency and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Reserved. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: 2 (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of the Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6549 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: Barrel Associates, LLC ! 99 Fremep2_Strevt, 14th F!oc.:.:.:.:.:.:.:.:.:~- San Fmnciaco, Ca!ifomia 94105 Telefacsimile (~ Attn: John E. Bartel A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City persormel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, perlbrmance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this ' Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or dan~ages to City in the event that such anthority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 1N WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST:· . ~ PATRICIA E. HEALY Clerk of the Council CITY OF SANTA ANA DAVID NNREAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney Laur~ gheedy ~ Assistant City Attorney RECOMMENDED FOR APPROVAL: JEd(e~RDEi rEeKc tSoTr ~ the Community Development Agency CONSULTANT JOHN E. BARTEL President Tax ID# O & ~ O 7 c2 ) :~ 7t'~' September 17, 2003 John P. Reekstin Executive Director City of Santa Aaa 20 Civic Center Plaza P. O. Box 1988 Santa Ana, CA 92702 Re: Oty of Santa Ana= Actuarial Information Dear Mr. Name: Bartel Associates would be happy to provide the City of Santa Aha actuarial consulting services. The City participates in CalPERS retirement program, providing Miscellaneous employees the 2% ~ 55 benefit and Safety officers the 3% ~ 50 benefit. Additionally, the City expects Miscellaneous CalPERS con~ibutlon rates (employer only) to approach 10% ofpersable wages and Safety rotes (employer only) to approach 30% within the next couple of years. Consequently, the City is concerned about CalPERS issues and is considering issuing a pension obligation bend. I believe it's important the City first become familiar with CalPERS information. To accomplish this, we suggest a 2 phase approach: Phase 1 - Review CalPERS actuarial information, meeting with CalPERS actuaries, if necessary. We will then explain what has happened to City contribution rotes, including what options the City has and where future rotes will likely go, in easily understood terms. Phase 2 - Work with the City to review the pension obligation bond alternative. Time for Phase 1 is quite easy to predict: Hours · Review historical information, including prior actuarial reports 10.0 · City meeting preparation time 4.0 · Meet with the City to discuss strategy, issues, etc. 2:0 · Total 16.0 BartelAssodates, LLC EXHtB !' A John P. Reekstin September 17, 2003 Page 2 Please note, for Phase 1: · We will bill the City at the following hourly rotes (however, most of the time for the above project would be at the President/Senior Actuary level): President & Senior Actuary$225 Actuary $175 Consultant $150 Actuarial Analyst $125 Support Staff $75 · We don't anticipate any questions for CalPERS. However, if we do have questions and must talk with CalPEPS, the above time might be increased by 2 hours. · We agree to: · not spend more than 18 hours for the above work, without prior approval; · not bill for initial Santa Arm or Sacramento meeting travel time; and · limit miscellaneous expenses (for allocated travel, computer, report production and the like) to $350 or 10% of hourly fees, whichever is less. To complete Phase 1, please provide me copies of CalPEPS Miscellaneous and Safety June 30, 2002 Actuarial Valuations, which the City should receive shortly. Phase 2 time is much more difficult to predict However, we've found that fees for similar projects have ranged from $8,000 to $15,000. In any case, for Phase 2: · We will bill the City at the hourly rates indicated above · We agree to: · not bill for Santa Arm or Sacramento meeting travel time, provided meetings are not scheduled with short notice; and · limit miscellaneous expenses to 10% of hourly fees. We are prepared to begin Phase 1 immediately and can set a meeting date as soon as we receive die above information. Meeting dates are usually set approx/mately 34 weeks at~er we receive the actuarial information. I look forward to working with you and the City. Sincerely, John E. Bartel President jb: JEB Encl. o:\prospect\clty of santa aha[letter 03-09-17.doc BarMAssodates, &LC EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company_ This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to , this endorsement form as a part of Named Insured Countersigned by Authorized Representative ALANDALk iNSUFu6,NCE AOI~'NCY JOHN SARGEANT INSURANCE AGENCY P_ O. BOX 831 GLENDALE CA 91209 (8t8) 244-1144 BARTEL-ASSOCIATES, L.LC. a~15 BOREL AVENUE, t445 SAN MATI~O ....... p.1 CERTIFICATE OF LIABILITY INSURANCE THIS CERTIFICATE EI ISSUED ~ ~Y ~ C~S ~ R~HTS ~ HA~UAL~ ~C~PANY A 72SBA AD2098 / 9/4/2003 9/1/2004 ~R~O,~,L~,~U~ ~ ~2~00700~ (~-~M L ,~(~.~ ~;~ A,~E~ L]Mrr ,~,p~j ~;~ i,~1~ P'ROOuc'r~- OCJ~,~,~G I~~ F"t, ~LO~ L~ ~ MI~. PRO~$10NAL Ll~[Ll~ ME03559 ~11/~ ~11~ $1,~,~/~N.AG ~E A~ACHED CG'~10ffi~/9~ FOR ADDITI~AL INSURED~ ~ RE~E~S ~Ll~ NO: 72SB~D~98 ON LY. CO~RAGE ~O~DED BY ~ NO: 7~B~ IS PRIMARY. 4 CITY OF SANTA ANA ATI'N: ROBERT CORTEZ P. O. BOX 1988 SANTA ANA CA 92702 ~v. ~5 03 03:38p Rlandale/Glendale (818)~4~-5~88 p.~ IMPORTANT If the cer~cats holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. A s~atement on this cmfificate does not co~fer rights to the ce~ficate ho[der itl lieu of such endor~:,ement(e). If SUBROGATION I~ WAIVED, subject to the terms and c~ndit[on~ of the policy, oe~ain policies may require an endorsement. A statement on U~s ~ does not confer rights to the certificate holder in lieu of ~ueh endomemem'~s). DISCLAIMER The Cert~tfl:~tte of Ineure~c,e on the reveme ~ ~f thi~ f~rm doee n~t ~on~ute e con'e~ac~ between the i~suin9 irk.~urer(s), author[zed mpresentatNe or producer, and the cert~cate hOtder, nor doe~ it m~ii. a~v~/y Or I1 ~8~vl~ eme~d, external m' alter the coverage effon~ed by the Ix~Jic~ listed thereon. BARTEL-ASSOCIATES, L.L.C. POLICYNUMBER: 72 SBA AD2098 COMMERCIAL GENERAL. LIABILITY CG 20 10 ~3 aZ THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE ["~" of"e'~" ~' or.a'~": ..... THE C05~[3NITY REDEVELOPMENT AGENCY OF THP. CITY OF SANm-A ANA, AND CITY OF SANTA ANA, TI{EIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, (If no er~ apfzears above, ~ required to omni, ere this endomemefX will be shown in the Decla~tiofls Who Is An Insured (Section II) is eme~led to include as an insured the per~m m' Ot[lanizati~n shown in the Schedule. IxX only with mspec~ t~ ~alx~y arising om ~ your o.goa~j olx~a~ons pedomted for that insured. page I of I