Loading...
Synoptek/IT Assessment 12PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Synoptek ("Consultant"). The parties hereto agree as follows: 1.0 SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services related to assessing the organization's existing IT capacity, applications (including the finance system), staffing resources, and disaster recovery as specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference (the "services" or "work"). Consultant warrants that all services will be performed. in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services. 1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of La Quints and any Federal, State or local governmental agency of competent jurisdiction. 1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified. herein, Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the performance of the services required by this Agreement. 1.4 Familiarity with Work. By executing this Agreement, Consultant . warrants that (a) it has thoroughly investigated and considered the work to be performed, (b) it has investigated the site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully considered how the work should be performed, and (d) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, Consultant shall immediately. inform City of such fact and shall not proceed except at Consultant's risk until writteninstructions are received' from the Contract Officer' (as defined in °Section Last revised 7-3-12 1.5 Care of Work and Standard of Work. a. Care of Work. Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Consultant, and the equipment, materials, papers and other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. The performance of services by Consultant shall not relieve Consultant from any obligation to correct any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies are due to the negligence of Consultant. b. Standard of Work. Consultant acknowledges and understands that the services and work contracted for under this Agreement require specialized skills and abilities and that, consistent with this understanding, Consultant's services and work will be held to a heightened standard of quality and workmanship. Consistent with Section 1.4 hereinabove, Consultant represents to. City that it holds the necessary skills and abilities to satisfy the heightened standard of work as set forth in this Agreement. 1.6 Additional Services. In accordance with the terms and conditions of this Agreement, Consultant shall perform services in addition to those specified in the Scope of Services ("Additional Services") when directed to do so by the Contract Officer. Consultant shall not perform any Additional Services until receiving prior written authorization from the Contract Officer: It is specifically understood and agreed that oral requests and/or approvals of Additional Services shall be barred and are unenforeceable. Failure of Consultant to secure the Contract Manager's written authorization for Additional Services shall constitute a waiver of any and all right to adjustment of the Contract. Sum or time due, whether by way of compensation, restitution, quantum meruit, etc. for Additional Services provided without the appropriate authorization from the Contract Manager. Compensation for properly authorized Additional Services shall be made in accordance with Section 2.2 of this Agreement. 1.7 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in Exhibit "D" (the "Special Requirements"). In the event of a conflict between the provisions of the __Special Requirements and any other provisions of this Agreement, _t_he provisions of --------- the Special Requirements shall govern. ....... -_.. 2.0 COMPENSATION ___. - — Last revised 7-3-12 2 2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation") in a total.amount not to exceed Nine Thousand, Five Hundred Dollars ($9,500.00) (the "Contract Sum"), except as provided in Section 1.6. The method of compensation set forth in the Schedule of Compensation may include a lump sum payment upon completion, payment in accordance with the percentage of completion of the services, payment for time and materials based upon Consultant's rate schedule, but not exceeding the Contract Sum, or such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, transportation expense, telephone expense, and similar costs and expenses when and if specified in the Schedule of Compensation. Regardless of the method of compensation set forth in the Schedule of Compensation, Consultant's overall compensation shall not exceed the Contract Sum, except as provided in Section 1.6 of this Agreement, "Additional Services." 2.2 Compensation for Additional Services. Additional services approved in advance by the Contract Manager pursuant to Section 1.6 of this Agreement, "Additional Services," shall be paid for in an amount agreed to in writing by both City and Consultant in advance of the Additional Services being rendered by Consultant. Any compensation for Additional Services amounting to five percent (5%) or less of the Contract Sum may be approved by the Contract Officer. Any greater amount of compensation for additional services must be approved by the La Quinta City Council. Under no circumstances shall Consultant receive compensation for any Additional Services unless prior written approval for the Additional Services is obtained from the Contract Officer pursuant to Section 1.6 of this Agreement. 2.3 Method of Billing. Any month in which Consultant wishes to receive payment, Consultant shall submit to City no later than the tenth (10th) working day of such month, in the form approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice. Such invoice shall (1) describe in detail the services provided, including time and materials, and (2) specify each staff member who has provided services and the number of hours assigned to each such staff member. Such invoice shall contain a certification by a principal member of Consultant specifying that the payment requested is for work performed in accordance with the terms of this Agreement. City will pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement no later than thirty (30) days after invoices are received by the 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed diligently and within the time period established in Exhibit C (the 'Schedule of Performance'). Extensions to the time period specified in the Schedule of Performance may be approved in writing by the Contract Officer. 3.3 Force Majeure.- The time period specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency other than City, and unusually severe weather, if Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the forced delay when and if in his or her judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. Extensions to the Schedule of Performance which are determined by the Contract Officer to be justified pursuant to this Section shall not entitle the Consultant to additional compensation in excess of the Contract Sum. 3.4 Term. Unless earlier terminated in accordance with this Agreement, the term of this agreement shall commence on November 28, 2012. and terminate on December 28, 2012.(initial term). This agreement may be extended upon mutual agreement by both parties (extended term). 4.0 COORDINATION OF WORK 4.1 Representative of Consultant. The following principals of Consultant are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: a. Eric Codorniz, Chief Tecnology Officer It is expressly understood that the experience, knowledge,_ capability, and reputation of the foregoing principals were a substantial inducement for City to "enter into this Agreement. Therefore, the foregoing principals shall be responsible ----during the -term --of this Agreement for --directing all —activities of Consultant and devoting sufficient time to personally supervise the services hereunder. Last revised 7-3-12 4 The foregoing principals may not be changed by Consultant and no other personnel may be assigned to perform the service required hereunder without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be Robbeyn Bird, Finance Director or such other person as may be designated by the City Manager of City. It shall be Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and Consultant shall refer any decisions, which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Except as set forth in this Agreement, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. .4.5 City Cooperation. City shall provide Consultant with any . plans, publications, reports, statistics, records or other data or information pertinent to services to be performed hereunder which are reasonably available to Consultant only from or through action by City. 5.0 INSURANCE 5.1 Insurance. Prior to the beginning of and throughout the duration of the Work performed under this Agreement, Consultant shall_.procure.and maintain, at its 11 cost, and submit concurrently with its execution of this. Agreement, Commercial General Liability insuranceagainst all claims for injuries against persons or damages' to property resulting from -Consultant's -acts or -omissions -rising out of or -related to -- Consultant's performance under this Agreement. The insurance policy shall contain a severability of interest clause providing that the coverage shall be primary for Last revised 7-3-12 5 losses arising out of Consultant's performance hereunder and neither City nor its insurers shall be required to contribute to any such loss. A certificate evidencing the foregoing and naming City and its officers and employees as additional insured (on the Commercial General Liability policy only) shall be delivered to and approved by City prior to commencement of the services hereunder. The following policies shall be maintained and kept in full force and effect providing insurance with minimum limits as indicated below and issued by insurers with A.M. Best ratings of no less than A -:VI: Commercial General Liability (at least as broad as ISO CG 0001) $1,000,000 (per occurrence) $2,000,000 (general aggregate) Commercial Auto Liability (at least as broad as ISO CA 0001) $1,000,000 (per accident) Errors and Omissions Liability $1,000,000 (per claim and aggregate) Workers' Compensation (per statutory requirements) Consultant shall carry automobile liability insurance of $1,000,000 per accident against all claims for injuries against persons or damages to property arising out of the use of any automobile by Consultant, its officers, any person directly or indirectly employed by Consultant, any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related to Consultant's performance under this Agreement. If Consultant or Consultant's employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. The term "automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed for travel on public roads. The automobile insurance policy shall contain a severability of interest clause providing that coverage shall be primary for losses arising out of Consultant's performance hereunder and neither City nor its insurers shall be required to contribute to such loss. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered Professional Services" as designated' in the policy must specifically include work performed under this --agreement. The -policy -limit shall be no -less than-$1,000,000 perclaimand in the aggregate. The policy must "pay on behalf of" the insuredandmust include a Last revised 7-3-12 6 provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this agreement. Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's Compensation laws with employer's liability limits no less than $1,000,000 per accident or disease. All insurance required by this Section shall be kept in effect during the term of this Agreement and shall not be cancelable without written notice to City of proposed cancellation. The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify City, its officers, employees, contractors, subcontractors, or agents. 5.2 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement. b. Order Consultant to stop work under this Agreement and/or withhold any payment(s) which become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof. C. Terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to any other remedies City may have. The above remedies are not the exclusive remedies for Consultant's failure to maintain or secure appropriate policies or endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Consultant may be held responsible for payments of damages to persons or property resulting from Consultant's or its subcontractors' performance of work under this Agreement. 5.3 General Conditions pertaining to provisions of insurance coverage by Consultant. Consultant and City agree to the following with respect to insurance provided by Consultant: 1. Consultant agrees to have its insurer endorse the third party general. "liability coverage required herein to include as additional insureds City, its officials, employees and agents, —using standard ISO -endorsement --No -CG 2010 with an edition prior to 1992. . Consultant also _ agrees to. require all contractors, - and -- subcontractors to do likewise. Last revised 7-3-12 - 7 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to a loss. Consultant 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. Consultant 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 Consultant'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 Consultant or deducted from sums due Consultant, at City option. B. It is acknowledged by ,the .parties of ,,..this agreement -that all insurance coverage required to be provided by Consultant or, any subcontractor, is intended to apply first and on a primary, non-contributing basis in relation to any --- --other insurance or -self insurance available to City. Last revised 7-3-12 8 9. Consultant agrees to ensure that subcontractors, and any other party involved with the project that is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant 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. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 10. Consultant agrees not to self -insure or to use any self -insured retentions or deductibles on any portion of the insurance required herein (with the exception of professional liability coverage, if required) 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 Consultant'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 Consultant, which may include reduction or elimination of the deductible or self -insured retention, substitution of other coverage, or other solutions. 11. 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 Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to City. 12. 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. 13. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant 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. 14. Consultant 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 tothateffect. - Last revised 7-3-12 9 15. Consultant 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 Consultant's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five (5) days of the expiration of coverages. 16. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials and agents. 17. 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. 18. 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. 19. 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. 20. Consultant 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 Consultant 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. 21. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant 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 6.0 INDEMNIFICATION. Last revised 7-3-12 10 6.1 General Indemnification Provision. a. Indemnification for Professional Liability. When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents ('Indemnified Parties') from and against any and all claims, losses, liabilities of every kind, nature and description, damages, injury (including, without limitation, injury to or death of an employee of Consultant or subconsultants), costs and expenses of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this agreement. With respect to the design of public improvements, the Consultant shall not be liable for any injuries or property damage resulting from the reuse of the design at a location other than that specified in Exhibit A without the written consent of the Consultant. b. Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses) incurred in connection therewith and costs of investigation, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subconsultants of Consultant. 6.2 Standard Indemnification Provisions. Consultant agrees to obtain executed, indemnity agreements with provisions identical to, -those -set forth herein,., this section from each and every subconsultant or, any other person or entity involved by, for with or on behalf of Consultant in the performance of this agreement. In the event- Consultant fails to obtain such -indemnity -obligations from -- others as required herein, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these Last reviscd 7-3-12 11 requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this agreement or this section. a. Indemnity Provisions for Contracts Related to Construction. Without affecting the rights of City under any provision of this agreement, Consultant shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City's active negligence accounts for only a percentage of the liability involved, the obligation of Consultant will be for that entire portion or percentage of liability not attributable to the active negligence of City. b. Indemnification Provision for Design Professionals 1. Applicability of Section 6.2(b). Notwithstanding Section 6.2(a) hereinabove, the following indemnification provision shall apply to Consultants who constitute "design professionals" as the term is defined in paragraph 3 below. 2. Scope of Indemnification. To the fullest extent permitted by law, Consultant shall indemnify, defend, and hold harmless City and City's agents, officers, officials, employees, representatives, and departments ("Indemnified Parties') from and against any and all claims, losses, liabilities of every kind, nature and description, damages, injury (including, without limitation, injury to or death of an employee of Consultant or subconsultants), costs and expenses of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation, that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, anyone directly or indirectly employed by them or anyone that they control. 3. Design Professional Defined. As used in this Section 6.2(b), the term "design professional" shall be limited to licensed architects, registered professional engineers, Licensed _ professional land surveyors and landscape architects, all as defined under current law, and as may be amended from time to time by Civil Code § 2782.8. Last revised-7-3-12 12 7.0 RECORDS AND REPORTS. 7.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning Consultant's performance of the services required by this Agreement as the Contract Officer shall require. 7.2 Records. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the cost and the performance of such services. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principals. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.3 Ownership of Documents. Originals of all drawings, specifications, reports, records, documents and other materials, whether in hard copy or electronic form, which are prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement, shall be the property of City and shall be delivered to City upon termination of this Agreement or upon the earlier request of the Contract Officer, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full .rights of ownership of the documents and materials hereunder. Consultant shall cause all subcontractors to assign to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages suffered thereby. In the event City or any person, firm or corporation authorized by City reuses said documents and materials without written verification or adaptation by Consultant for the specific purpose intended and causes to be made or makes any changes or alterations in said documents and materials, City hereby releases, discharges, and exonerates Consultant from liability resulting from said change. The provisions of this clause shall survive the completion of this Contract and shall thereafter remain in full force and effect. 7.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer or as required by law. Consultant shall not disclose to any other entity or person any, information regarding .the activities of .. City, except as required by law or as authorized by City. Last revised 7-3-12 13 8.0 ENFORCEMENT OF AGREEMENT. 8.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the Contract Officer; provided that if the default is an immediate danger to the health, safety and general welfare, City may take such immediate action as City deems warranted. Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause pursuant to Section 8.7. 8.3 Retention of Funds. City may withhold from any monies payable to Consultant sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered by City due to the default of Consultant in the performance of the services required by this Agreement. 8.4 Waiver. No delay or omission in the exercise of any right or remedy of a non defaulting party on any default shall impair such right or remedy or be construed as a waiver. City's consent or approval of any act by Consultant requiring City's consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies 'expressly declared to be exclusive in this Agreement, the rights and -.-.--... -remedies-of the--parties-are-cumulative and -the exercise -by either party -of -one or more of such rights or remedies shall not preclude the exercise.by.it, at the same or Last fevised 7-3-12 14 different times, of any other rights or remedies for the same default or any other default by the other party. 8.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, at law or at equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.7 Termination Prior To Expiration Of Term. This section shall govern any termination of this. Agreement, except as specifically provided in the following Section 8.8 for termination for cause. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of -Compensation or such as may be approved by the Contract Officer, except as provided in Section 8.3. 8.8 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.2, take over work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of setoff or partial payment of the amounts owed City as previously stated in Section 8.3. 8.9 Attorneys' Fees. If either party commences .an action against the other party arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 9.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION. 9.1 Non -liability of City Officers and Employees. No officer or employee of,.. City shall be personally liable to Consultant, or any successor in interest, in the event or any default or breach by`City or for any amount which may become due to Consultant -or to--its-successor, or -for -breach of any obligation of -the -terms -of this -- Agreement. . Las[ revised 7-3-12 15 9.2 Conflict of Interest. No officer or employee of City shall have any personal interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which she or he is, directly or indirectly, interested, in violation of any State statute or regulation.. Consultant warrants that it has not paid or given and will not pay or give any third party any money or general consideration for obtaining this Agreement. 9.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its heirs, executors,. assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry. 10.0 MISCELLANEOUS PROVISIONS 10.1 Notice. Any notice, demand, request, consent, approval, communication either party desires or is required to give the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this section. To City: CITY OF LA QUINTA Attention: Frank Spevacek, City Manager 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92247-1504 To Consultant: SYNOPTECK Attention: Eric Codorniz 19520 Jamboree Road, Suite 230 Irvine, California 92612 10.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and all previous understanding, negotiations and agreements are integrated into and superseded by this Agreement. .10.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in.writing signed by both parties. 10.4 Severability. In the . event that any one .. or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be Last revised 7-3-12 16 declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder. 10.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. CITY OF LA QUINTA a California municipal corporation u k S vacek, City. Manager Date ATTEST: Susan Maysels, City Clerk APPROVED AS TO FORM: ....................................... i Last revised 7-3-12 17 CONSULTANT: SYNOPTECK By: Name: Eric Codorniz Title: Chief Technology Officer Date: i/Z Last revised 7-3-12 - 1 18 Exhibit A Scope of Services The scope of services is focused on assessing the organization's existing IT capacity, applications (including the finance system), staffing resources, and disaster recovery. The deliverable would be a written report providing the consultant's assessments, identification of risk to the city or the community, and strategic high-level recommendations to the City Manager. It is expected that the consultant would conduct on site visits to evaluate hardware and IT infrastructure, and interview the following personnel: IT staff, Finance Director and key finance staff, Human Resources Manager, Public Works Director, Planning Director, Community Services Director Building Director, Emergency Operations Manager, City Clerk, and the City Manager. It also may be necessary to interview the city's contact with the Sheriff's Department and CAL -Fire to understand technology interface for emergency operations. Specific Considerations of the IT assessment: ✓ Evaluation of any custom software developed applications for the city — What should be done with these solutions going forward and how should these solutions be supported? ✓ Evaluation of backup systems and disaster recovery systems and identification of risks to the City. ✓ Evaluation of the existing finance system and its current utility and usefulness for the next decade; and provide recommendations and feasible options (and tradeoffs of those options) for the city to consider? ✓ Evaluation of the City's Permitting infrastructure and GIS capabilities for Development Services and recommendations of options to consider. ✓ Exploration of IT service options. Are there services that can be delivered at a higher quality and more cost effectively by outside organizations? If so, what are those services and what are the options? What are compromises between options in terms of quality, cost, control, risk, etc.? ✓ Provide an assessment of internal IT staffing and development: what additional development do internal resources need? ✓ Provide observations and recommendations to advance a -Gov options that are considered best practices and which would serve the Community of La Quinta. Last revised 7-3-12 19 Exhibit B Schedule of Compensation With the exception of compensation for Additional Services, provided for in Section 2.2 of this Agreement, the maximum total compensation to be paid to Consultant under this Agreement is Nine Thousand, Five Hundred dollars ($9,500.00) ("Contract Sum"). The Consultant will commence work on November 28, 2012 with anticipated report delivery on December 17, 2012. Last revised 73-12 20 Exhibit C Schedule of Performance Consultant shall complete all services identified in the Scope of Services, Exhibit "A" of this Agreement in accordance. Last revised 7-3.12 21 Exhibit D Special Requirements None. Last revised 7-3-12 22 - p�"vKV 0 ✓y V CERTIFICATE OF LIABILITY INSURANCE R054 DATEIMWoDM'YYI11-27-2012 THIS CERTIFICATEIS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATIONIS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . MODUCER METLIFE AUTO & HOME INS AGCY/PHS CONTACT NAME; AME;OEat: 866)467-8730 FN�C, Not: (800)308-545 180001 P:(866)467-8730 F:(800)308-5459 - 301 WOODS PARK DRIVE ADDRESS: CLINTON NY 13323 INSURER(S)AFFORDING COVERAGE NAICE INsuRERA: Sentinel Ina Co LTD MMED INsuRERB: Property & Casualty Co of Hartford INSURERC: Hartford Ins Co of the Midwest SYNOPTEK INSUAERD: Hartford Fire Ins Co 348 W PARKCENTER BLVD # 200 BOISE ID 83706 INSURERS: INGURER F D'flnnATC rd,....DCD. RCVICITIM MI IMRCR• THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, LqA TYEEOEMMMAMCE IMR R,VO POLICY NUMBER IMMMOA'YYy) IMMA'M/YY✓V) LM1T5 GENERAL LMBRITY EACH OCCURRENCE s 1,000,000 PREMISES Ea oc. c 0 1,000,000 COMMERCIAL GENERAL LMDILITY MED EXP IAW one pongN 01O 000 A CWMs-MADE OOCCUR X General Liab 47 SBA ZF8441 05/01/2012 05/01/2013 PERSONAL 9ADVINJURY 41000000 GENERAL AGGREGATE s 2,000,000 GE ' LAMREE��y��I LIMIT APPLI S PER: PRODUCTS - COMPIOPAM 02,000,000 s PODCY I u PRO. Li LOC JFQT AL/TOMOBRE LIABILITY - COMBINED SINGLE LIMIT IEe BccWeMl s11000,000 BODILY INJURY IPar p omm 0$ALL ANYAUTO BODILY INJURY(I'm acd&mIl sAUTOS OWNED SCHEDULED AUTOS IX HIRED AUTOS X NONOVJNED 47 UEC JJ9501 05/01/2012 05/01/2013 PROPERTY DAMAGE (For uccideot) 0 AUTOS 0 X MMBRELLA !MB ]{ OCCUR EACH OCCURRENCE s AGGREGATE 8 5,000,000 A EXCESS LIAR CLAIMS -MADE Ell 47 SBA ZF8441 05/01/2012 05/01/2013 DE X flETENTION 0 10.000 0 C WORAERS CGMPENSAT/ON MI)EMxo1rEfiVM8&1rV V/N MYOFFIPPROPRIET 6XCLUDERV XECUTIVE❑ IMandamY h NIO A,TA ❑ 47 NEC LJ4470 OB/16/2012 08/16/2013 X WNY LA IU D R E.L. EACH ACCIDENT t 1,000,000 E.L. DISEASE - EA EMPLOYE 0 1,000,000 E.L. DISEASE -POLICY LIMIT q 1 00O 000 / / Ifyn,domollm Onder DESCRIPTION OF OPERATIONS below D TeCh E & O Ell El l 47TE0269678 06/01/2012 06/01/2013 Per glitch $1,000,000 OESCRIRTXWOEDEERATRWS/LOCATIONS/VEMCLES (Al WA ACORO 101, AddMonalflommRs smow N, a mom *am morqu"d) Those usual to the Insured's Operations. Please see cover page for special wording. City Of La Quinta SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED Attn: Frank J. Spevacek, City Manager BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE 78-495 Calla Tampico DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. t" AUMOMEEO REPRESENTATIVE PO BOX 1504 '''7 LA QUINTA, CA 92247 /A-r— 7aL-/� a 1oaR.7ntn ACORD 26 12010/05) The ACORD name and logo are registered marks of ACORD All rights METLIFE ALTO & HOME INS AGCY/PHS 301 WOODS PARK DRIVE CLINTON NY, 13323 City of La Quinta Attn: Frank J. Spevacek, City Manager 78-495 Calle Tampico PO BOX 1504 LA QUINTA, CA 92247 Additional Certholder Text Coverage is included for contractors, subcontractors or others involved in this project, per the business liability coverage form SS0008, attached to this policy. Certificate holder is an additional insured and a waiver of subrogation applies to the certificate holder per endorsement, attached to this policy. Coverage is primary & non-contributory per the Business Liability Coverage Form SS0008, attached to this policy. General Liability aggregate limits apply per project per endorsement SSO433, attached to this policy. 30 day notice of cancellation applies in favor of the certificate holder. ACORD 25 (2010/05) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. AMENDMENT - AGGREGATE LIMITS (PER PROJECT) This endorsement modifies insurance provided under the following: BUSINESS LIABILITY COVERAGE FORM A. Section D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE is amended as follows: 1. The General Aggregate Limit under Section D. LIABILITY AND MEDICAL EXPENSES LIMIT OF INSURANCE applies separately to each of your "projects". 2. The limits shown in the Declarations for Liability and Medical Expenses, Damage To Premises Rented To You and Medical Expenses continue to apply. 3. When coverage for liability arising out of the "products -completed operations hazard" is provided, any payments for damages because of "bodily Injury" or "property damage" Included in the "products -completed operations hazard" will reduce the Products -Completed Operations Aggregate Limit, and not reduce the General Aggregate Limit. 4. If the applicable "project" has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the "project" will still be deemed to be the same "project'. 5. The provisions of Section D. LIABILITY AND MEDICAL EXPENSES LIMIT OF INSURANCE not otherwise modified by this endorsement shall continue to apply as stipulated. B. Additional Definitions The following definition Is added to Section G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS: 1. "Project" means "your work" at location(s) away from premises owned or rented to you. Form SS 04 33 04 05 Page 1 of 1 © 2005, The Hartford r THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. NOTICE OF CANCELLATION TO CERTIFICATE HOLDER(S) This policy Is subject to the following additional Conditions: Y. -nt of A if this Iscancelled least ith Ay (30) days Company, n dvan ayme eother tof the cancellation eff cti a die a to the certificate h dum, notice of such ier(s) with will mailing addresses on file with the agent of record or the Company. the insured, notice of such B. If this policy is cancelled by the company for 666 payment of premium, or by cancellation will be provided within ten (10) days of the cancellation effective date to the certificate holders) with mailing addresses on file with the agent of record or the Company. If notice Is mailed, proof of mailing to the last known mailing address of the certificate holder(s) on file with the agent of record or the Company will be sufficient proof of notice. Any certificate ofnotification Insurance provided by this applicable ights ao this pois term. endorsement apply only to active certificate holder(s) who were Issued a certificate eFailure to proide such notce to the ffective, norv vwill It negate iancecancellation ofthepolicy. cate holder(s) Failure to send notice shall impose ll not amend or extend the lno liabi lity of any kind upon the Company or its agents or representatives. Page 1 of 1 Form SS 12 23 0611 2011, The Hartford BUSINESS LIABILITY COVERAGE FORM (b) Rented to, in the care, custody or b. Coverage under this provision does not control of, or over which physical control is being exercised for any apply to: or "properly damage" (1) "Bodily injury purpose by you, any of your "employees", 'volunteer workers", that occurred; or (2) "Personal and advertising Injury" any partner or member (if you are arising out of an offense committed a partnership or joint venture), or before you acquired or formed the any member (if you are a limited organization. liability company). 4. Operator Of Mobile Equipment 6. Real Estate Manager With respect to "mobile equipment' registered In Any person (other than your "employee" or your name under any motor vehicle registration "volunteer worker"), or any organization law, any person is an Insured while such while acting as your real estate manager. With W equipment along a public highway with your c. Temporary Custodians Of Your permission. Any other person or organization the of such person Is Property Any person or organization having proper responsible for conduct also an insured, but only with respect to liability the operation of the equipment, and temporary custody of your property if you arising out of only If no other Insurance of any kind is available die, but only: to that person or organization for this liability. (1) With respect to liability arising out of the or use of that property; and However, no person or organization is an insured maintenance (2) Until your legal representative has with respect to: a. "Bodily Injury" to a co -"employee" of the been appointed. person driving the equipment; or d. Legal Representative If You Die b, "Property damage" to property owned by. Your legal representative if you die, but rented to, in the charge of or occupied by only with respect to duties as such. That you or the employer of any person who is representative will have all your rights and an Insured under this provision. duties under this Insurance. 5, Operator of Nonowned Watercraft e. Unnamed Subsidiary With respect to watercraft you do not own that Any subsidiary and subsidiary thereof, of Is less than 51 feet long and is not being used yours which Is a legally incorporated entity to carry persons for a charge, any person is an of which you own a financial interest of Insured while operating such watercraft with more than 50% of the voting stock on the effective date of this coverage Part. your permission. Any other person or organization responsible for the conduct of The Insurance afforded herein for any In the Declarations such person Is also an Insured, but only with respect to liability arising out of the operation subsidiary not shown as a named Insured does not apply to t r ra onlyifbleotoother of the watercraft, at injury or damage with respect to which an insurance is also an insurance kiandlso or organization for this liability. Insured under this Insured under another policy or would be person However, no person or organization is an an Insured under such policy but for Its Insured with respect to: termination or upon the exhaustion of its a. "Bodily Injury" to a co -''employee" of the limits of insurance. person operating the watercraft; or 3. Newly Acquired Or Formed Organization b. "Property damage" to property owned by, Any organization you newly acquire or form, or rented to, in the charge of or occupied by of any person who Is other than a partnership, joint venture limited liability company, and over which you you or the employer an Insured under this provision. maintain financial Interest of more than 50% of as a Named g, Additional Insureds When Required By Agreement Or the voting stock, will qualify Insured if there Is no other similar insurance Written Contract, Written permit available to that organization. However:. The erson(s) or organization(s) identified in a. Coverage under this provision is afforded only until the 180th day after you acquire paragraphs a. through f, below are additional insureds when you have agreed, in a written or form the organization or the end of the period, whichever is earlier; and policy Page 11 of 24 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of e Any failure to make such () inspections, adjustments, tests or permit issued by a state or politicall that such person or organization servicing as the vendor has agreed to make or normally be added as an additional Insured on your be added undertakes to make In the usual policy, provided the injury or damage occurs course of business, in connection subsequent to the execution of the contract or with the distribution or sale of the agreement, or the Issuance of the permit. products; A person or organization is an additional (f) Demonstration, installation, insured under this provision only for that servicing or repair operations, period of time required by the contract, except such operations performed agreement or permit. at the vendor's premises in However, no such person or organization is an connection with the sale of the insured under this provision if such product; additional person or organization is included as an (g) Products which, after distribution Insured by an endorsement issued or sale by you, have been labeled additional by us and made a part of this Coverage Part, or relabeled or used as a including all persons or organizations added container, part or Ingredient of any as additional insureds under the specific other thing or substance by or for additional Insured coverage grants in Section the vendor; or F. — optional Additional Insured Coverages. (h) "Bodily injury" or "property a. Vendors damage" arising out of the sole Any person(s) or organization(s) (referred to negligence of the vendor for its or omissions or those of below as vendor), but only with respect to "bodily InJury" or "property damage" arising own acts its employees or anyone else out of "your products" which are distributed acting on Its behalf. However, this or sold In the regular course of the vendor's exclusion does not apply to: business and only if this Coverage Part (1) The exceptions contained In provides coverage for "bodily Injury" or Subparagraphs (d) or (f); or ^property damage" included within the (11) Such Inspections, adjustments, "products -completed operations hazard". tests or servicing as the vendor (1) The insurance afforded to the vendor has agreed to make or normally is subject to the following additional undertakes to make In the usual exclusions: course of business, in This Insurance does not apply to: connection with the distribution (a) "Bodily injury" or "property the vendor is or sale of the products. (2) This Insurance does not apply to any damage" for which obligated to pay damages by of Insured person or organization from have acquired such products, reason of the assumption liability In a contract or agreement. whom you or any Ingredient, part or container, This exclusion does not apply to entering Into, accompanying or liability for damages that the containing such products. vendor would have in the absence b, Lessors Of Equipment of the contract or agreement; (1) Any person or organization from (b) Any express warranty whom you lease equipment; but only "bodily unauthorized by you; with respect to their liability for (c) Any physical or chemical change made Intentionally injury", "property damage" or al and rosin injury" In the product by the vendor; cpaeuso in whole odrvi by y your of (d) Repackaging, except when maintenance, operation or useequipment leased to you by such e unpacked solely for the purpose Person or organization. Inspection, demonstration, testingg,, or the substitution of parts under instructions from the manufacturer, and then repackaged In the original container; Form SS 00 OB 04 05 Page 12 of 24 (6) When You Are Added As An Additional Insured To Other Insurance That is other Insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that Insurance; or (7) When You Add Others As An Additional Insured To This Insurance That Is other insurance available to an additional Insured. However, the following provisions apply to other insurance available to any person or organization who is an additional Insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this Insurance be primary. If other Insurance Is also primary, we will share with all that other Insurance by the method described In c. below. (b) Primary And Non -Contributory To Other insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this Insurance Is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other Insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional Insured has been added as an additional Insured. When this Insurance is excess, we will have no duty under this Coverage Part to defend the Insured against any "suit" if any other insurer has a duty to defend the Insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the Insured $ rights against all those other Insurers. Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM When this insurance Is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other Insurance would pay for the loss in the absence of this Insurance; and (2) The total of all deductible and self - Insured amounts under all that other insurance. We will share the remaining loss, If any, with any other Insurance that Is not described In this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other Insurance permits contribution by equal shares, we will follow this method also. Under this approach, each Insurer contributes equal amounts until it has paid its applicable limit of Insurance or none of the loss remains, whichever comes first. If any of the other insurance does notpermit t contribution by equal shares, V contribute by limits. Under this method, each insurer's share Is based on the ratio of Its applicable limit of Insurance to the total applicable limits of insurance of all Insurers. 8. Transfer Of Rights of Recovery Against Others To Us a. Transfer Of Rights Of Recovery a If the Insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to Impair them• At o ur request, the Insured will bring 'suit"or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. Waiver Of Rights Of Recovery (Waiver of Subrogation) waived any rights of any person or it part of any paymr If the insured has recovery against organization for ail waived their rights of recover) such person or organization in a agreement or permit that was prior to the injury or damage. Page 17 of 24