2500 - Levine Management Group Inc - Management Services for Garvey and Angelus Senior ApartmentsPROFESSIONAL SERVICES AGREEMENT
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BY AND BETWEEN ROSEMEAD HOUSING DEVELOPMENT CORPORATION/CITY
OF ROSEMEAD AND LEVINE MANAGEMENT GROUP, INC.
PARTIES AND DATE.
This Agreement is made and entered into this 15t day July, 2021 by and between
the Rosemead Housing Development Corporation/City of Rosemead, a municipal
organization organized under the laws of the State of California with its principal place of
business at 8838 E. Valley Blvd., Rosemead, California 91770 ("City") and Levine
Management Group, Inc. with its principal place of business at 822 S. Robertson Blvd.,
Suite 200, Los Angeles, CA 90035 ("Contractor"). City and Contractor are sometimes
individually referred to herein as "Party" and collectively as 'Parties."
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain
professional services required by the City on the terms and conditions set forth in this
Agreement. Contractor represents that it is experienced in providing property
management services and is experienced and holds the duly required licenses and
certifications to perform the said services.
2.2 Project.
City desires to engage Contractor as an independent contractor to provide property
management services to the Rosemead Housing Development Corporation (`Project').
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to
furnish to the City all labor, materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately supply the professional services
necessary for the Project ("Services'). The Services are more particularly described in
("'1 r)
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Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be
subject to, and performed in accordance with, this Agreement, the exhibits attached
hereto and incorporated herein by reference, and all applicable local, state and federal
laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2021 to
June 30, 2024 with the option for up to two (2) one-year extensions at the sole and
absolute discretion of the City, unless earlier terminated as provided herein. Contractor
shall complete the Services within the term of the Agreement, and shall meet any other
established shcedules and deadlines.
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The
Services shall be performed by Contractor or under its supervision. Contractor will
determine the means, methods and details of performing the Services subject to the
requirements of this Agreement. City retains Contractor on an independent contractor
basis and not as an employee. Contractor retains the right to perform similar or different
services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Contractor shall also not be
employees of City and shall at all times be under Contractor's exclusive direction and
control. Contractor shall pay all wages, salaries, and other amounts due such personnel
in connection with their performance of Services under this Agreement and as required
by law. Contractor shall be responsible for all reports and obligations respecting such
additional personnel, including, but not limited to: social security taxes, income tax
withholding, unemployment insurance, disability insurance, and workers' compensation
insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services
expeditiously, within the term of this Agreement. Contractor represents that it has the
professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Contractor's conformance with the Schedule,
City shall respond to Contractor's submittals in a timely manner. Upon request of City,
Contractor shall provide a more detailed schedule of anticipated performance to meet the
Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Contractor shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Contractor has represented to City
that certain key personnel will perform and coordinate the Services under this Agreement.
Should one or more of such personnel become unavailable, Contractor may substitute
other personnel of at least equal competence upon written approval of City. In the event
that City and Contractor cannot agree as to the substitution of key personnel, City shall
be entitled to terminate this Agreement for cause. As discussed below, any personnel
who fail or refuse to perform the Services in a manner acceptable to the City, or who are
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determined by the City to be uncooperative, incompetent, a threat to the adequate or
timely completion of the Project or a threat to the safety of persons or property, shall be
promptly removed from the Project by the Contractor at the request of the City.
3.2.5 City's Representative. The City hereby designates the City
Manager, or his or her designee, to act as its representative for the performance of this
Agreement ("City's Representative"). City's Representative shall have the power to act
on behalf of the City for all purposes under this Agreement. Contractor shall not accept
direction or orders from any person other than the City's Representative or his or her
designee.
3.2.6 Contractor's Representative. Contractor will designate Jeffrey S.
Levine to act as its representative for the performance of this Agreement ("Contractor's
Representative"). Contractor's Representative shall have full authority to represent and
act on behalf of the Contractor for all purposes under this Agreement. The Contractor's
Representative shall supervise and direct the Services, using his/her best skill and
attention, and shall be responsible for all means, methods, techniques, sequences and
procedures and for the satisfactory coordination of all portions of the Services under this
Agreement.
3.2.7 Coordination of Services: Contractor agrees to work closely with City
staff in the performance of Services and shall be available to City's staff, Contractors and
other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees: Contractor shall
perform all Services under this Agreement in a skillful and competent manner, consistent
with the standards generally recognized as being employed by professionals in the same
discipline in the State of California. Contractor represents and maintains that it is skilled
in the professional calling necessary to perform the Services. Contractor warrants that
all employees and subcontractors shall have sufficient skill and experience to perform the
Services assigned to them. Finally, Contractor represents that it, its employees and
subcontractors have all licenses, permits, qualifications and approvals of whatever nature
that are legally required to perform the Services, including a City Business License, and
that such licenses and approvals shall be maintained throughout the term of this
Agreement. As provided for in the indemnification provisions of this Agreement,
Contractor shall perform, at its own cost and expense and without reimbursement from
the City, any services necessary to correct errors or omissions which are caused by the
Contractor's failure to comply with the standard of care provided for herein. Any employee
of the Contractor or its sub -contractors who is determined by the City to be uncooperative,
incompetent, a threat to the adequate or timely completion of the Project, a threat to the
safety of persons or property, or any employee who fails or refuses to perform the
Services in a manner acceptable to the City, shall be promptly removed from the Project
by the Contractor and shall not be re-employed to perform any of the Services or to work
on the Project.
3.2.9 Laws and Regulations. Contractor shall keep itself fully informed of
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and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. Contractor shall be liable for all
violations of such laws and regulations in connection with Services. If the Contractor
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the City, Contractor shall be solely responsible for all costs
arising therefrom. Contractor shall defend, indemnify and hold City, its officials, directors,
officers, employees and agents free and harmless, pursuant to the indemnification
provisions of this Agreement, from any claim or liability arising out of any failure or alleged
failure to comply with such laws, rules or regulations.
3.2. 10 Insurance: Time for Compliance. Contractor shall maintain
prior to the beginning of and for the duration of this Agreement insurance coverage as
specified in Exhibit B attached to and part of this agreement.
3.2.11 Safety: Contractor shall execute and maintain its work so as
to avoid injury or damage to any person or property. In carrying out its Services, the
Contractor shall at all times be in compliance with all applicable local, state and federal
laws, rules and regulations, and shall exercise all necessary precautions for the safety of
employees appropriate to the nature of the work and the conditions under which the work
is to be performed. Safety precautions as applicable shall include, but shall not be limited
to: (A) adequate life protection and life saving equipment and procedures; (B) instructions
in accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
3.3 Fees and Payments.
3.3.1 Compensation. As compensation for all of Contractor's ongoing
property leasing, management, and related services under this Agreement, Agent shall
receive a monthly fee in an amount equal to $49.00 per unit each month of the Gross
Rents received in that month.
3.3.2 Payment of Compensation. Contractor shall receive a monthly fee
from the Gross Rents received in that month, to be paid out of the Operating Accounts.
Such fee shall be payable on the ten (10th) day of the month following the month in which
the services were rendered.
3.3.3 Reimbursement for Expenses: Contractor shall not be reimbursed
for any expenses unless authorized in writing by City.
3.3.4 Extra Work: At any time during the term of this Agreement, City may
request that Contractor perform Extra Work. As used herein, "Extra Work" means any
work which is determined by City to be necessary for the proper completion of the Project,
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but which the parties did not reasonably anticipate would be necessary at the execution
of this Agreement. Contractor shall not perform, nor be compensated for, Extra Work
without written authorization from City's Representative.
3.3.5 Prevailing Wages: Contractor is aware of the requirements of
California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code
of Regulations, Title 8, Section 1600, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on "public
works" and "maintenance" project, as defined by the Prevailing Wage Laws, and if the
total compensation is $1,000 or more, Contractor agrees to fully comply with such
Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates
of per diem wages in effect at the commencement of this Agreement. Contractor shall
make copies of the prevailing rates of per diem wages for each craft; classification or type
of worker needed to execute the Services available to interested parties upon request,
and shall post copies at the Contractor's principal place of business and at the project
site. Contractor shall defend, indemnify and hold the City, its elected officials, officers,
employees and agents free and harmless from any claim or liability arising out of any
failure or alleged failure to comply with the Prevailing Wage Laws.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection: Contractor shall maintain complete
and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Contractor shall allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of such records and any other documents created pursuant to this
Agreement. Contractor shall allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of final
payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination: City may, by written notice
to Contractor, terminate the whole or any part of this Agreement at any time and without
cause by giving written notice to Contractor of such termination, and specifying the
effective date thereof, at least seven (7) days before the effective date of such termination.
Upon termination, Contractor shall be compensated only for those services which have
been adequately rendered to City, and Contractor shall be entitled to no further
compensation. Contractor may not terminate this Agreement except for cause.
3.5.1.2 Effect of Termination: If this Agreement is terminated
as provided herein, City may require Contractor to provide all finished or unfinished
Documents/ Data and other information of any kind prepared by Contractor in connection
with the performance of Services under this Agreement. Contractor shall be required to
provide such document and other information within fifteen (15) days of the request.
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3.5.1.3 Additional Services: In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms and
in such manner as it may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
CONTRACTOR:
Levine Management Group, Inc.
822 S. Robertson Blvd., Suite 200
Los Angeles, CA 90035-1613
Attn: Jeffrey S. Levine, President
CITY:
City of Rosemead
8838 E. Valley Boulevard
Rosemead, CA 91770
Attn: City Clerk's Office
Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed adequate
notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property:
This Agreement creates a non-exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual
property embodied in plans, specifications, studies, drawings, estimates, and other
documents or works of authorship fixed in any tangible medium of expression, including
but not limited to, physical drawings or data magnetically or otherwise recorded on
computer diskettes, which are prepared or caused to be prepared by Contractor under
this Agreement ("Documents & Data"). Contractor shall require all subcontractors to
agree in writing that City is granted a non-exclusive and perpetual license for any
Documents & Data the subcontractor prepares under this Agreement. Contractor
represents and warrants that Contractor has the legal right to license any and all
Documents & Data. Contractor makes no such representation and warranty in regard to
Documents & Data which were prepared by design professionals other than Contractor
or provided to Contractor by the City. City shall not be limited in any way in its use of the
Documents and Data at any time, provided that any such use not within the purposes
intended by this Agreement shall be at City's sole risk.
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3.5.3.2 Confidentiality. All ideas, memoranda, specifications,
plans, procedures, drawings, descriptions, computer program data, input record data,
written information, and other Documents and Data either created by or provided to
Contractor in connection with the performance of this Agreement shall be held confidential
by Contractor. Such materials shall not, without the prior written consent of City, be used
by Contractor for any purposes other than the performance of the Services. Nor shall
such materials be disclosed to any person or entity not connected with the performance
of the Services or the Project. Nothing furnished to Contractor which is otherwise known
to Contractor or is generally known, or has become known, to the related industry shall
be deemed confidential. Contractor shall not use City's name or insignia, photographs of
the Project, or any publicity pertaining to the Services or the Project in any magazine,
trade paper, newspaper, television or radio production or other similar medium without
the prior written consent of City.
3.5.4 Cooperation; Further Acts: The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees: If either party commences an action against the
other party, either legal, administrative or otherwise, arising out of or in connection with
this Agreement, the prevailing party in such litigation shall be entitled to have and recover
from the losing party reasonable attorney's fees and all costs of such action.
3.5.6 Indemnification: To the fullest extent permitted by law, Contractor
shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and
agents free and harmless from any and all claims, demands, causes of action, costs,
expenses, liability, loss, damage or injury, in law or equity, to property or persons,
including wrongful death, in any manner arising out of or incident to any alleged acts,
omissions or willful misconduct of Contractor, its officials, officers, employees, agents,
Contractors and contractors arising out of or in connection with the performance of the
Services, the Project or this Agreement, including without limitation the payment of all
consequential damages and attorneys fees and other related costs and expenses.
Contractor shall defend, at Contractor's own cost, expense and risk, any and all such
aforesaid suits, actions or other legal proceedings of every kind that may be brought or
instituted against City, its directors, officials, officers, employees, agents or volunteers.
Contractor shall pay and satisfy any judgment, award or decree that may be rendered
against City or its directors, officials, officers, employees, agents or volunteers, in any
such suit, action or other legal proceeding. Contractor shall reimburse City and its
directors, officials, officers, employees, agents and/or volunteers, for any and all legal
expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its directors, officials officers, employees,
agents or volunteers.
3.5.7 Entire Agreement: This Agreement contains the entire Agreement
of the parties with respect to the subject matter hereof, and supersedes all prior
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negotiations, understandings or agreements. This Agreement may only be modified by
a writing signed by both parties.
3.5.8 Governing Law: This Agreement shall be governed by the laws of
the State of California. Venue shall be in Los Angeles County.
3.5.9 Time of Essence: Time is of the essence for each and every
provision of this Agreement.
3.5. 10 City's Right to Employ Other Contractors: City reserves right to
employ other Contractors in connection with this Project.
3.5.11 Successors and Assigns: This Agreement shall be binding on the
successors and assigns of the parties.
3.5.12 Assignment or Transfer: Contractor shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions: Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for or
against any Party. Any term referencing time, days or period for performance shall be
deemed calendar days and not work days. All references to Contractor include all
personnel, employees, agents, and subcontractors of Contractor, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this Agreement. The
captions of the various articles and paragraphs are for convenience and ease of reference
only, and do not define, limit, augment, or describe the scope, content, or intent of this
Agreement.
3.5.14 Amendment; Modification: No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.15 Waiver: No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the other
Party any contractual rights by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries: There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability: If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
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remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests: Contractor maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Contractor, to solicit or secure this Agreement. Further, Contractor
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Contractor, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. Contractor further agrees to file, or shall cause its employees
or subContractors to file, a Statement of Economic Interest with the City's Filing Officer
as required under state law in the performance of the Services. For breach or violation
of this warranty, City shall have the right to rescind this Agreement without liability. For
the term of this Agreement, no member, officer or employee of City, during the term of his
or her service with City, shall have any direct interest in this Agreement, or obtain any
present or anticipated material benefit arising therefrom.
3.5.19 Equal Opportunity Employment: Contractor represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited
to, all activities related to initial employment, upgrading, demotion, transfer, recruitment
or recruitment advertising, layoff or termination. Contractor shall also comply with all
relevant provisions of City's Minority Business Enterprise program, Affirmative Action
Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.5.20 Labor Certification: By its signature hereunder, Contractor certifies
that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Worker's Compensation or to
undertake self-insurance in accordance with the provisions of that Code, and agrees to
comply with such provisions before commencing the performance of the Services.
3.5.21 Authority to Enter Agreement: Contractor has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement.
Each Party warrants that the individuals who have signed this Agreement have the legal
power, right, and authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts: This Agreement may be signed in counterparts, each
of which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required: Contractor shall not subcontract any
portion of the work required by this Agreement, except as expressly stated herein, without
prior written approval of City. Subcontracts, if any, shall contain a provision making them
subject to all provisions stipulated in this Agreement.
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[Signatures on next page]
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CITY OF ROSEMEAD
4oriko�lleda DD td e
City Manager
Attest:
Ericka Hernandez Date
City Clerk
Approved as to Form:
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LEVINE MANAGEMENT GROUP, INC.
B 2 2
JdeOrdylg evine Date
President
[If Corporation, TWO SIGNATURES, President
OR Vice President AND Secretary, AND
CORPORATE SEAL OF CONTRACTOR
REQUIRED]
Name:
Rachel Richman Date
City Attorney
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EXHIBIT A
SCOPE OF WORK
The Contractor shall provide property management services per the attached Scope of
Work.
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004
or)
PROPERTY MANAGEMENT AGRUEMENT SCOPE OF WORK
In consideration of the terms, conditions, and covenants hereinafter set forth, Owner
(Rosemead Housing Development Corporation and City of Rosemead) and Agent (Levine
Management Group, Inc.) hereby mutually agree as follows:
1. Definitions.
a) "Agent' shall mean Levine Management Group, Inc.
b) "Building(s)" shall mean, collectively, the real property commonly known as
Angelus Senior Housing located at 2417 Angelus Street, Rosemead, CA
91770 and/or Garvey Senior Housing located at 9118 Garvey Avenue,
Rosemead, CA 91770 and all improvements, appurtenances, and equipment
located thereon, including all dwelling units.
C) "Fiscal Year" shall begin on the I` day of July each year and end on the 30°i
day of June each year.
d) "Gross Collections" shall mean all amounts actually collected by Levine
Management Group, Inc., as rents or other payments, but excluding (i) income
derived from interest or investments, (ii) discounts and dividends on
insurance, and (iii) security deposits.
e) "Gross Rents" shall mean revenues collected from Tenants plus any federal
assistance paid to Owner with respect to the Building.
f) "Lease" shall mean any Lease in which Owner has agreed to let and Tenant
has agreed to accept the dwelling unit of the Senior Housing Site identified in
the Lease in accordance with the terms of the Lease.
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"121 1 MR
In consideration of the terms, conditions, and covenants hereinafter set forth, Owner
(Rosemead Housing Development Corporation and City of Rosemead) and Agent (Levine
Management Group, Inc.) hereby mutually agree as follows:
1. Definitions.
a) "Agent' shall mean Levine Management Group, Inc.
b) "Building(s)" shall mean, collectively, the real property commonly known as
Angelus Senior Housing located at 2417 Angelus Street, Rosemead, CA
91770 and/or Garvey Senior Housing located at 9118 Garvey Avenue,
Rosemead, CA 91770 and all improvements, appurtenances, and equipment
located thereon, including all dwelling units.
C) "Fiscal Year" shall begin on the I` day of July each year and end on the 30°i
day of June each year.
d) "Gross Collections" shall mean all amounts actually collected by Levine
Management Group, Inc., as rents or other payments, but excluding (i) income
derived from interest or investments, (ii) discounts and dividends on
insurance, and (iii) security deposits.
e) "Gross Rents" shall mean revenues collected from Tenants plus any federal
assistance paid to Owner with respect to the Building.
f) "Lease" shall mean any Lease in which Owner has agreed to let and Tenant
has agreed to accept the dwelling unit of the Senior Housing Site identified in
the Lease in accordance with the terms of the Lease.
h) "Operating Account' shall mean an account designated of record in an
account name identifying the site and approved by Owner in writing, at such
financial institution as Owner may specify from time to time in writing. Each
Senior Housing Site shall have its own account.
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h) "Operating Account' shall mean an account designated of record in an
account name identifying the site and approved by Owner in writing, at such
financial institution as Owner may specify from time to time in writing. Each
Senior Housing Site shall have its own account.
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i) "Owner" shall mean Rosemead Housing Development Corporation (RHDC)
and City of Rosemead.
j) "Rent" shall mean that monthly amount which Tenant is obligated to pay
Owner pursuant to the terms of a Lease.
k) "Tenant" shall mean a person or family occupying a dwelling unit in one of
the two senior housing sites pursuant to a Lease.
1) "Senior Housing Site(s)" shall mean Angelus Senior Housing located at 2417
Angelus Street, Rosemead, CA 91770 and/or Garvey Senior Housing located
at 9118 Garvey Avenue, Rosemead, CA 91770.
2. Appointment and Acceptance. Owner appoints Agent as exclusive agent for the
management of the Owner's two Senior Housing Sites, and Agent accepts the
appointment, subject to the terms and conditions set forth in the Professional Services
Agreement and Scope of Work. Agent represents that it is experienced in professional
management of property of the character and occupancy of Buildings, and Agent agrees
to manage the two Senior Housing Sites in accordance with the highest professional
standards for such property. Agent shall act in a fiduciary capacity with respect to the
proper protection of and accounting for Owner's assets, in an independent manner with
all third parties (including affiliates of Agent) and in the best interests of the Owner at all
times.
3. Manaaement Plan. A Management Plan for the Senior Housing Sites will be submitted to
Owner within 30 days of the executed Agreement. The Plan shall contain a
comprehensive and detailed description of the policies and procedures to be followed by
Agent in the management of the two Senior Housing Sites, including but not limited to
rent schedule, collection of delinquent rents and charges, resident selection, marketing,
etc.
4. Meeting with Owner. Agent agrees to cause a representative of Agent to confer with
Owner and to attend meetings with Owner at any reasonable time or times requested by
Owner.
5. Basic Information. Agent shall thoroughly familiarize itself with the character, location,
layout, plan and operation of the Senior Housing Sites, and especially the electrical,
heating, plumbing, and ventilating system, and all other mechanical equipment in the
Buildings.
6. Construction, Improvements, and Development. Should the need for construction or
major improvements arise, Agent shall facilitate the work of a general contractor in an
effort to minimize disturbance of the Tenants and promote timely completion of
rehabilitation or construction in the Buildings. Any disputes between the Agent and the
general contractor shall be immediately referred to Owner by Agent. Further, if
applicable, Agent shall do the following during construction:
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a) Post notices around the construction area warning Tenants and others that area
is under construction and trespass may be hazardous;
b) Respond to Tenant complaints regarding the construction activity and notify
Owner thereof; and
c) Notify Owner of any dangerous condition that emanates from construction.
Marketing. Agent shall carry out the marketing activities to lease units prescribed in the
Management Plan or approved by Owner in writing. Advertising expenses incurred by
Agent on behalf of Owner shall be paid out of the Operating Accounts as expenses of the
Senior Housing Sites.
8. Resident Selection. Agent shall accept applications for tenancy on a form of tenant
application per Management Plan or approved by the Owner. Agent shall review all
applications for eligibility. Applications shall not be unreasonably withheld from the
Owner for review, if requested. Agent and Owner agree to cooperate in the
implementation of the resident selection and affirmative marketing provisions of the
Management Plan. In carrying out these provisions, Agent shall:
a) Lease units in compliance with the unit mix, if any.
b) Assure that occupancy shall be open to all, regardless of race, color, ancestry,
religion, national origin, sex, marital status, handicap, or other characteristics
designated by applicable law.
c) Assure that all advertising, including brochures and media advertising, shall
include a reference to "Equal Housing Opportunity". Owner may request to
review all advertising and promotional material prior to use of such material.
d) Provide publications, information brochures, and leases in English and, if
requested by Owner, in Spanish, Mandarin and Cantonese.
e) Provide preference to the residents of the City of Rosemead to the extent
permissible under Federal and State fair housing laws.
f) Have each resident execute a Lease Agreement.
9. Leasing. Agent shall offer for rent and shall rent the dwelling units in the Buildings, and
from time to time thereafter, in accordance with a rent schedule approved by Owner and
the leasing guidelines and form of lease referred to herein below. Incident thereto, the
following provisions shall apply:
a) Agent shall show dwelling units for rent in the Buildings to all prospective
Tenants.
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b) Agent shall take and process applications for rentals, including prospective
Tenant interviews and credit checks. If an application is rejected, the applicant
shall be advised of the reason for rejection, in writing.
C) Agent shall comply with the special low-income housing requirements
concerning leasing and related matters as set forth by the governing housing
authority, Management Plan and/or Owner.
d) Agent shall be responsible for the certification and recertification of Tenants
covered by any Housing Assistance Payments Contract that may be applicable
to the Senior Housing Sites with respect to Federal Section 8 rent subsidies,
following procedures required by the U.S. Department of Housing and Urban
Development ("HUD"). After the first year of certification of Tenants, the
certification and recertification process shall be the sole responsibility of
Agent.
e) Agent shall, subject to prior written approval by Owner of any deviation from
Owner's approved rent schedule, Lease form, and leasing guidelines, execute
all Leases in the appropriate Building's name.
f) Agent shall negotiate any commercial leases and concession agreements
called for in the Management Plan or approved in writing by Owner and,
subject to prior written approval by Owner of all terms and conditions, shall
execute the same in its name, identified thereon as Agent for Owner.
g) Agent shall collect, deposit, and disburse security deposits, if required, in
accordance with the terns of each Lease. The amount of each security deposit
shall be as specified in the Management Plan or as approved by Owner in
writing. Security deposits shall be held by Agent in trust accounts, separate
from all other accounts and funds. Such accounts shall be in the name of
appropriate Senior Housing Site's name, and designated of record as "Security
Deposit Account." Interest on security deposits shall be paid according to law.
h) Agent shall maintain a current list of prospective Tenants and undertake all
arrangements necessary and incidental to the acceptance of rental applications
and the execution of Leases. Agent shall exercise its best efforts (including,
but not limited to, placement of advertising, interview of prospective Tenants,
assistance in completion of rental applications and execution of Leases,
processing of documents and credit, employment verifications, income and
explanation of the program and operations of Owner), to effect the leasing of
dwelling units, renewal of Leases.
i) Agent shall perform such other acts and deeds requested by Owner as are
reasonable, necessary, and proper in the discharge of Agent's rental duties
under this Agreement.
j) Agent shall prorate the first month's rent collected from a Tenant should the
Lease term commence on any other day than the first day of the month. If the
Lease term occurs after the twentieth (20th) day of the month, the prorated
amount, plus the next month's rent, shall be collected on or before the first day
of the Lease term.
k) Agent shall participate in the inspection of the dwelling unit identified in the
Lease together with the Tenant prior to move -in and upon move -out, and shall
record in writing any previous damage to the unit and any damage occurring
during the Tenant's occupancy.
1) Agent shall, unless otherwise agreed by Owner and Agent in writing, (i)
comply with the leasing guidelines and by this reference made a part hereof,
and (ii) use for each Lease the form of lease agreement and by this reference
made a part hereof, together with the form of Low -Income Lease Rider.
10. Collection of Rents, Etc. Agent shall collect when due, directly or through an on-site
manager, all rents, charges, and other amounts receivable on Owner's account in
connection with the management and operation of the two Senior Housing Sites. Such
receipts shall be held in Operating Accounts, separate from all other accounts and funds.
11. Enforcement of Leases. Agent shall make reasonable efforts to secure full compliance by
each Tenant with the terms of such Tenant's Lease. Voluntary compliance shall be
emphasized, and Agent shall counsel Tenants and make referrals to community agencies
in cases of financial hardship or other circumstances deemed appropriate by Agent, all to
the end that involuntary termination of tenancies shall be avoided to the maximum extent,
consistent with sound management of the Senior Housing Sites. Nevertheless, and subject
to any applicable procedures prescribed in the Management Plan, Agent may, and shall if
requested by Owner, lawfully terminate any tenancy when sufficient cause for such
termination occurs under the terms of the Tenant's Lease, including, but not limited to,
nonpayment of rent. For this purpose, Agent is authorized to consult with legal counsel to
be designated by Owner and bring actions for eviction and execute notices to vacate and
judicial pleadings incident to such actions; provided, however, that Agent shall keep
Owner informed of such actions and shall follow such instructions as Owner may
prescribe for the conduct of any such action. Reasonable attorneys' fees and other
necessary costs incurred in connection with such actions, as determined by Owner, shall
be paid out of the Operating Account. Agent shall properly assess and collect from each
Tenant or the security deposit the cost of repairing any damages to the dwelling unit
arising during the Tenant's occupancy.
12. Maintenance and Repairs. Agent shall cause the Senior Housing Sites to be maintained in
a decent, safe, and sanitary condition and in a rentable and tenantable state of repair, all
in accordance with the Management Plan and local codes, and Agent otherwise shall
maintain the Senior Housing Sites at all times in a condition acceptable to Owner,
including, but not limited to, performance of cleaning, painting, decorating, plumbing,
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carpentry, grounds care, and such other maintenance and repair work as may be
necessary; the cost of such activities will be considered Building expenses. Agent shall
not be responsible for those specific features of Building conditions for which Owner
does not agree to pay for reasonable recommended repairs or maintenance. Incident
thereto, the following provisions shall apply:
a) Special attention shall be given to preventive maintenance, and to the greatest
extent feasible, the services of regular maintenance personnel shall be used.
b) Agent shall coordinate a walk-through of Buildings with Owner at least once
per year to determine future capital improvement projects or other major
improvements.
C) Subject to Owners prior written approval, Agent shall contract with qualified
independent contractors for the maintenance and repair of major mechanical
systems, and for the performance of extraordinary repairs beyond the
capability of regular maintenance personnel. Agent shall obtain prior to
commencement of any work appropriate written evidence of such contractor's
liability and worker's compensation insurance.
d) Agent shall systematically and promptly receive and investigate all service
requests from Tenants, take such action thereon as may be justified, and keep
records of the same. Agent shall make all reasonable efforts to ensure that
emergency requests are received and serviced on a 24-hour basis. Complaints
of a serious nature shall be reported to Owner after investigation. Owner shall
have the right to receive copies of all service requests and the reports of action
taken thereon.
e) Agent shall use best efforts to take such action as may be necessary to comply
with any and all orders or requirements of federal, state, county, or municipal
authorities having jurisdiction over the Senior Housing Sites and orders of any
board of fire underwriters, insurance companies, and other similar bodies.
f) Subject to the provisions of paragraph 19 (Bids, Discounts, and Rebates)
hereof, Agent is authorized to purchase all materials, equipment, tools,
appliances, supplies, and services necessary for proper maintenance or repair
of the Senior Housing Sites.
g) Notwithstanding any of the foregoing provisions, the prior approval of Owner
shall be required for any contract, purchase, or expenditure within a Fiscal
Year exceeding $2,500.00 in any one instance or $15,000.00 in the aggregate,
for labor, materials, or otherwise, in connection with the maintenance and
repair of the Senior Housing Sites, except for emergency repairs involving
manifest danger to persons or property, or required to avoid suspension of any
necessary service to the Buildings. In the event of emergency repairs, Agent
shall notify Owner of the fact promptly, and in no event later than 72 hours
from the occurrence of the event.
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h) Notwithstanding any of the foregoing provisions, Agent shall solicit at least
three (3) formal bids on all contracts, expenditures, or purchases in excess of
$2,500.00.
13. Utilities and Services. In accordance with any applicable provisions of the Management
Plan, Agent shall make arrangements for water, electricity, gas, sewage, and trash
disposal, vermin extermination, decorating, laundry facilities, and telephone service in
connection with the Buildings.
14. Personnel. The Senior Housing Sites shall be staffed at a minimum with a full time,
onsite manager. All on-site personnel shall be contracted service providers or employees
of Agent and shall be paid from the Operating Accounts as an expense of the Senior
Housing Sites. Agent shall have sufficient personnel physically present at or available to
the Senior Housing Sites for the full and efficient performance of its duties under this
Agreement, including physical presence of responsible persons at such times as
reasonably may be requested by Owner. In addition, the Agent shall have staff available
who are fluent in Spanish, Mandarin and Cantonese to handle tenant concerns and
questions.
15. Operating Account. Disbursements from the Operating Accounts shall be governed by
the following:
a) From the funds collected and held by Agent in the Operating Accounts
pursuant to paragraph 10 (Collection of Rents) hereof, and subject to Owner's
approved operating budget, Agent shall make the following disbursements
promptly when payable, in the following order of priority:
1) salaries and any other compensation due and payable to the
employees referred to in paragraph 14 (Personnel) hereof
including Agent's compensation, together with related payroll
taxes;
3) other payments due and payable by Owner as operating
expenses incurred pursuant to Owner's approved operating
budget and in accordance with this Agreement, and
4) distributions to or at the direction of Owner, including
distributions to Owner's partners in accordance with Owner's
partnership agreement.
b) In the event that the balance in the Operating Account is at any time
insufficient to pay disbursements due and payable under subparagraph 15 (a)
(Operating Account) hereof, Agent shall promptly inform Owner of the fact
and Owner shall make best efforts to remit funds to cover the deficiency. In
no event shall Agent be required to use its own funds to pay such
disbursements.
C) The Agent shall maintain an Operating Account for rent collection and
payment of the site's operating expenses for each Senior Housing Site. The
Agent shall maintain a separate resident security deposit account for each
Senior Housing Site. in addition, the ^..Mer shall also t :..., a .we separate
1) The following separate accounts shall be established:
A. General Operating Account - The Agent shall maintain
an operating account for rent collection and payment of
the project's operating expenses.
D. Security Deposit Account - To be funded by the
residents' security deposits.
d) The Owner may complete a full banking analysis and may determine that
Owner shall maintain control and serve as Signatory on all bank accounts
related to the Senior Housing Sites.
16. Operating Budget. Agent shall prepare a recommended annual operating budget for the
two Senior Housing Sites for each fiscal year during the term of this Agreement, and
shall submit the same to Owner at least sixty (60) days before the beginning of such fiscal
year. The annual operating budget shall include a schedule of recommended rents to be
charged for each dwelling unit, including recommended rent increases, if any, with
respect to Lease renewals and new Leases. In preparing each proposed annual operating
budget, Agent shall use its best efforts to take account of anticipated increases in real
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estate taixes, utility charges, and other operating costs. To the extent feasible, Agent shall
support anticipated increases in real est4e twies and utility charges with written evidence
or documentation. Proposed annual operating budgets for the Senior Housing Sites shall
be subject to approval by Owner. Owner shall promptly inform Agent of any changes
incorporated in the approved operating budget, and Agent shall make reasonable efforts
to ensure that no expenditures in excess of the amounts set forth in such approved
operating budget, for each line item of operation expense itemized, without the prior
written approval of Owner, except as permitted pursuant to subparagraph 12 (f)
(Maintenance and Repairs) hereof for emergency repairs involving manifest danger to
persons or property, or required to avoid suspension of any services to the Buildings.
17. Records and Reports. In addition to any requirements specified in the Management Plan
or other provisions of this Agreement, Agent shall have the following responsibilities
with respect to records and reports:
a) Within thirty (30) days after execution of this Agreement, Agent shall
ascertain the general condition of the Buildings, including, but not limited to,
the taking of an inventory of all furniture, equipment, tools, and supplies, and
shall prepare a report on the physical and financial status of the Senior
Housing Sites. Report shall include recommended capital improvement
projects, improvements and other repairs to the Senior Housing Sites. Agent
shall provide Owner with a copy of the reports and inventories so prepared.
b) Agent shall establish and maintain a comprehensive system of records, books,
and accounts, including computerized systems, in accordance with the
Management Plan and in a manner satisfactory to Owner. All records, books,
and accounts shall be subject to examination at reasonable hours by any
authorized representative of Owner. Owner may audit said records, books,
and accounts at any time.
C) Agent shall prepare a monthly report, in accordance with any applicable
provisions of the Management Plan and in a form satisfactory to Owner,
containing and including at least the following: (i) a statement of income and
expenses and detailed accounts receivable and payable for the preceding
month, including an itemized list of all delinquent rents as of the fifteenth
(15th) day of the current month, as well as a report on action taken thereon by
Agent; (ii) a rent roll and cash receipts for the previous month; (iii) a
disbursements summary for the previous month; (iv) current bank statements
with reconciliation of the Operating and Security Deposit Accounts; (v) copies
of paid bills and invoices for the previous month; and (iv) a narrative of any
unusual actions taken or emergencies responded to, and a full report of any
accidents, claims, and potential claims, for the previous month. Agent shall
submit each such report to Owner on or before the fifteenth (15th) day of each
month, and shall concurrently mail a copy of the entire report to Owner's
Limited Partner.
d) Agent shall promptly furnish such additional information (including monthly
occupancy reports) as may be requested from time to time by Owner with
respect to the renting and financial, physical, or operational condition of the
Senior Housing Sites.
e) Agent shall prepare, execute, and file all forms, reports, and returns required
by law in connection with the employment of personnel, unemployment
insurance, workers' compensation insurance, disability benefits, Social
Security, and other similar insurance, and all other benefits or taxes now in
effect or hereafter imposed.
f) Agent shall establish Tenant files containing copies of leases, certification
forms, notices, and other documentation required by the governing housing
authority and/or Owner, if and to the extent applicable.
g) Except as may otherwise be expressly provided in this Agreement, all
bookkeeping, data processing services, and management overhead expenses
shall be bome by Agent out of its funds and shall not be treated as Senior
Housing Site's expenses.
h) If requested, Agent shall cause records to be audited annually by an
independent certified public accountant approved by Owner. Agent shall
submit the audit report to the Owner for review no later than 90 days after the
close of each Fiscal Year. The financial report shall contain a balance sheet as
of the end of the Fiscal Year prepared in accordance with generally accepted
accounting principles including an audited income and expense statement for
the Fiscal Year, a statement of cash flow for the Fiscal Year, and the
outstanding balances in the General Operating Accounts, and the Security
Deposit Accounts.
18. Fidelity Bond. As defined in the Professional Services Agreement and Insurance
Requirements.
19. Bids, Discounts, and Rebates. Agent shall solicit three (3) formal bids on all contracts or
purchases exceeding $2,500.00 for those items which can be obtained from more than
one source. Agent shall secure and credit to Owner all discounts, rebates, or
commissions obtainable with respect to purchase, service contracts, and all other
transactions on Owner's behalf.
20. Liabilitygent. Except as expressly provided to the contrary herein, the obligations
and duties of Agent under this Agreement shall be performed as agent of Owner, but
Agent, personally, shall be liable for its breaches of this Agreement; provided, however,
that the Agent shall not be responsible for incurring any expenditures in excess of
existing or reasonably projected available funds from the Senior Housing Sites or funds
supplied by Owner. All expenses incurred by Agent in accordance with its obligations
and duties under this Agreement and consistent with Owner's approved operating budget,
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except those due to its breaches of this Agreement and those expressly specified as
Agent's expenses herein, shall be for the account of Owner and shall be paid by the
Owner.
21. Indemnification. As defined in the Professional Services Agreement.
22. Insurance. As defined in the Professional Services Agreement and Insurance
Requirements.
24. Agent's Compensation. As compensation for all of Agent's ongoing property leasing,
management, and related services under this Agreement, Agent shall receive a monthly
fee in an amount equal to $49.00 per unit each month of the Gross Rents received in that
month, to be paid out of the Operating Account and treated as a Senior Housing Site
expense. Such fee shall be payable on the ten (10th) day of the month following the
month in which the services were rendered.
25. Compliance with Laws. In the performance of its obligations under the Agreement, Agent
shall comply with applicable local, state, and federal laws and regulations.
26. Term of Agreement. As defined in the Professional Services Agreement.
27. Notices. As defined in the Professional Services Agreement.
28. Amendment. As defined in the Professional Services Agreement.
29. Enforceability. As defined in the Professional Services Agreement section entitled,
"Invalidity, Severability."
30. Governing Law. As defined in the Professional Services Agreement.
31. CWtions. As defined in the Professional Services Agreement section entitled,
"Construction; References; Captions."
32. Execution of Counterparts. As defined in the Professional Services Agreement.
33. Successors and Assigns. As defined in the Professional Services Agreement.
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34. Nondiscrimination. In the performance of its obligations under the Agreement, Agent
shall comply with the provisions of all federal, state or local laws prohibiting
discrimination in housing on the basis of race, color, creed, ancestry, religion, orientation,
AIDS, ARC, or physical handicap, including Title VI of the Civil Rights Act of 1964
(Public Law 88-352) and the regulations issued pursuant thereto (24 CFR Part I);
Executive Order 11063 and the regulations issued pursuant thereto (25 CFR 570.601);
Fair Housing Amendments Act of 1988 and the regulations issued pursuant thereto (24
CFR Part 14 et al) and Title VIII of the 1968 Civil Right Act (Public Law 90-384).
35. Inspection of Units. Agent shall inspect all units in the Buildings at least annually and
shall invite the Owner to join in the inspection. Advance notice shall be given to the
Tenants as provided in the Lease Agreement and subject to law.
36. Contracts with Third Parties. Agent shall not enter into any contract for products or
service that is for longer than a period of one year unless such contract is terminable
without any penalty or premium with 30 days notice.
37. Hazardous Material. Agent shall comply with all applicable laws or regulations related to
hazardous materials under the Agent's control in managing the Senior Housing Sites and
take all necessary steps including enforcement of Tenant leases, to ensure that the Senior
Housing Sites are in compliance with such laws or regulations.
38. Spending Limitations. The Agent shall have no right, without prior written consent of the
Owner, to contract or otherwise deal with related parties for services or goods except
Owner's prior written consent is not necessary if (i) compensation paid or promised for
the goods and services is reasonable (i.e., at fair market value), is paid only for goods and
services actually furnished to the Senior Housing Sites, and does not exceed a total of
Two Thousand Five Hundred Dollars ($2,500.00) in any one instance or Fifteen
Thousand Dollars ($15,000.00) in the aggregate for all such contracts in any one Fiscal
Year, (ii) the goods or services to be furnished are reasonable for and necessary to the
management of the Senior Housing Sites, and (iii) the fees, terms and conditions of the
transactions are at least as favorable to the Senior Housing Sites as would be obtainable
in an arm's length transaction.
39. Interpretive Provisions.
a) This Agreement is personal to the Agent, and the Agent shall have no right,
power, or authority to assign all or any portion of this Agreement or any
monies due or to become due hereunder, or to delegate any duties or
obligations arising hereunder, either voluntarily or involuntarily or by
operation of law, without the prior written consent of the Owner.
Notwithstanding any such assignment, however, Agent shall not be released
from liability under this Agreement. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the Owner and Agent and
their respective legal representatives, successors, and assigns.
Notwithstanding anything to the contrary contained in this Agreement, Agent
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shall be subject to the terms of the Regulatory Agreements. Owner may assign
this Agreement to a limited partnership of which the Owner or an entity
controlled by the Owner is a general partner, and upon such assignment the
limited partnership shall become the Owner for purposes of this Agreement.
b) At its own expense, Agent shall qualify to do business and obtain and
maintain such licenses as may be required for the performance by the Agent
of its services under this Agreement.
C) This Professional Services Agreement and Scope of Work constitutes the
entire agreement between the Owner and the Agent with respect to the
management and operations of the two Senior Housing Sites and no change
will be valid unless made by supplemental written agreement executed by
both parties.
d) This Agreement may be signed by the parties hereto in counterparts with the
same effect as if the signatories to each counterpart signed a single instrument.
All counterparts (when taken together) shall constitute an original of this
Agreement. Agent acknowledges that certain contracts with affiliates may
require the approval of the Owner's limited partner and Agent shall not enter
into any such contracts without determining whether any such approval is
required as set forth in the Owner's Limited Partnership Agreement (and
obtained if required).
e) Notices required by this Agreement shall be delivered by messengef- �e the
mail,addresses may be ehanged by nefiee given in the same manfier. Nefiees A
be effeefive (i) en r-eeeipt if delivered by messefiger-, or (4) dffee (3) days a
depesk in the United States if . as defined in the
Professional Services Agreement.
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EXHIBIT B
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Contractor will maintain
insurance in conformance with the requirements set forth below. Contractor will use
existing coverage to comply with these requirements. if that existing coverage does not
meet the requirements set forth here, Contractor agrees to amend, supplement or endorse
the existing coverage to do so. Contractor acknowledges that the insurance coverage
and policy limits set forth in this section constitute the minimum amount of coverage
required. Any insurance proceeds available to City in excess of the limits and coverage
required in this agreement and which is applicable to a given loss, will be available to
City.
Contractor shall provide the following types and amounts of insurance:
Commercial General Liability Insurance: Contractor shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG
00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general
aggregate, for bodily injury, personal injury, and property damage. The policy must
include contractual liability that has not been amended. Any endorsement restricting
standard ISO "insured contract" language will not be accepted.
Automobile liability insurance: Contractor 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 the Contractor 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 1,000,000 combined single limit for each
accident.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements,
shall provide coverage at least as broad as specified for the underlying coverages. Any
such coverage provided under an umbrella liability policy shall include a drop down
provision providing primary coverage above a maximum $25,000 self-insured retention
for liability not covered by primary but covered by the umbrella. Coverage shall be
provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits.
Policy shall contain a provision obligating insurer at the time insured's liability is
determined, not requiring actual payment by the insured first. There shall be no cross
liability exclusion precluding coverage for claims or suits by one insured against another.
Coverage shall be applicable to City for injury to employees of Contractor, subContractors
or others involved in the Work. The scope of coverage provided is subject to approval of
City following receipt of proof of insurance as required herein. Limits are subject to review
but in no event less than $1 Million per occurrence.
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Professional liability (errors & omissions) insurance" Contractor shall maintain
professional liability insurance that covers the services to be performed in connection with
this agreement, in the minimum amount of $1,000,000 per claim and 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 three years after completion of the services required by this
agreement.
Crime Insurance: Contractor shall maintain commercial crime insurance which shall be
written on a "loss sustained form" or "discovery form" with limits of not less than
$1,000,000 per occurrence for Employee Dishonesty, Fraud, Depositor Forgery, Money
Orders & Counterfeit money, Fraudulent Fund Transfers, and Theft by Electronic Means.
Said policy shall also include coverage for Money & Securities — On and Off Premises —
including transportation by messenger, Fraudulent Instruction, Robbery and Burglary with
limits of not less than $1,000,000 per occurrence. The City, its officers, employees, and
agents shall be named as Loss Payees. If the policy is written on a "discovery form," it
must include an extended reporting period of not less than one (1) year.
Cyber Security & Privacy Liability Insurance: Contractor shall procure and maintain Cyber
Security and Privacy Liability insurance with limits of $1,000,000 per occurrence/loss,
$2,000,000 aggregate which shall include the following coverage:
a. Liability arising from the theft, dissemination and/or use of confidential or
personally identifiable information; including credit monitoring and regulatory fines arising
from such theft, dissemination or use of the confidential information.
b. Network security liability arising from the unauthorized use of, access to, or
tampering with computer systems, including hacker or denial of service attacks.
C. Liability arising from the failure of technology products (software) required under
the contract for Consultant to properly perform the services intended.
d. Electronic Media Liability arising from personal injury, plagiarism or
misappropriation of ideas, domain name infringement or improper deep -linking or framing,
and infringement or violation of intellectual property rights.
e. Liability arising from the failure to render professional services
If coverage is maintained on a claims -made basis, Contractor shall maintain such
coverage for an additional period of three (3) years following termination of the contract.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the state of California and with an A.M. Bests rating of A- or better
and a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Contractor.
Contractor and City agree to the following with respect to insurance provided by
Contractor:
Contractor agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds City, its officials,
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employees and agents, using standard ISO endorsement No. CG 2010. Contractor
also agrees to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Contractor, or Contractor's employees, or agents, from waiving the right of
subrogation prior to a loss. Contractor agrees to waive subrogation rights against
City regardless of the applicability of any insurance proceeds, and to require all
contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or
applicable to this agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the City or
its operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been
first submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for
bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Contractor shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect City's protection without City's prior
written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to Contractor's general liability policy, shall be delivered to City at or
prior to the execution of this Agreement. In the event such proof of any insurance
is not delivered as required, or in the event such insurance is canceled at any time
and no replacement coverage is provided, City has the right, but not the duty, to
obtain any insurance it deems necessary to protect its interests under this or any
other agreement and to pay the premium. Any premium so paid by City shall be
charged to and promptly paid by Contractor or deducted from sums due
Contractor, at City option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to City of any
cancellation of coverage. Contractor agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to
mail written notice of cancellation imposes no obligation, or that any party will
"endeavor" (as opposed to being required) to comply with the requirements of the
certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Contractor or any subcontractor, is intended to apply
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first and on a primary, noncontributing basis in relation to any other insurance or
self insurance available to City.
10. Contractor agrees to ensure that subcontractors, and any other party involved with
the project who is brought onto or involved in the project by Contractor, provide the
same minimum insurance coverage required of Contractor. Contractor agrees to
monitor and review all such coverage and assumes all responsibility for ensuring
that such coverage is provided in conformity with the requirements of this section.
Contractor agrees that upon request, all agreements with subcontractors and
others engaged in the project will be submitted to City for review.
11. Contractor agrees not to self -insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that
it will not allow any contractor, subcontractor, Architect, Engineer or other entity or
person in any way involved in the performance of work on the project contemplated
by this agreement to self -insure its obligations to City. If Contractor's existing
coverage includes a deductible or self-insured retention, the deductible or self-
insured retention must be declared to the City. At that time the City shall review
options with the Contractor, which may include reduction or elimination of the
deductible or selfinsured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change
the amounts and types of insurance required by giving the Contractor ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Contractor, the City will negotiate additional compensation
proportional to the increased benefit to City.
13. For purposes of applying insurance coverage only, this Agreement will be deemed
to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
14. Contractor acknowledges and agrees that any actual or alleged failure on the part
of City to inform Contractor of non-compliance with any insurance requirement in
no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
15.Contractor will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to
this agreement. This obligation applies whether or not the agreement is canceled
or terminated for any reason. Termination of this obligation is not effective until City
executes a written statement to that effect.
16. Contractor shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Contractor's insurance agent to this effect is acceptable. A certificate of insurance
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and/or additional insured endorsement as required in these specifications
applicable to the renewing or new coverage must be provided to City within five
days of the expiration of the coverages.
17.The provisions of any workers' compensation or similar act will not limit the
obligations of Contractor under this agreement. Contractor expressly agrees not
to use any statutory immunity defenses under such laws with respect to City, its
employees, officials and agents.
18. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. 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 limiting or all-
inclusive.
19. These insurance requirements are intended to be separate and distinct from any
other provision in this agreement and are intended by the parties here to be
interpreted as such.
20.The requirements in this Section supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts with or
impairs the provisions of this Section.
21. Contractor agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Contractor
for the cost of additional insurance coverage required by this agreement. Any such
provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There
shall be no recourse against City for payment of premiums or other amounts with
respect thereto.
Contractor agrees to provide immediate notice to City of any claim or loss against
Contractor arising out of the work performed under this agreement. 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.
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