CITY OF LAGUNA NIGUEL
CITY COUNCIL AGENDA ITEM
To: Honorable Mayor and Council Members
FROM: Heidi Lee, Finance Manager
DATE: June 4, 2024
SUBJECT: Award Professional Services Agreement for Independent Auditing Services with CliftonLarsonAllen LLP
RECOMMENDATION
Staff recommends that the City Council:
1. Award the Professional Services Agreement for Independent Auditing Services with CliftonLarsonAllen LP for Fiscal Years 2023-2024, 2024-2025, and 2025- 2026, subject to extension administratively for two additional one-year periods.
2. Authorize the City Manager to execute the Professional Services Agreement and future amendments to the agreement for Independent Auditing Services with CliftonLarsonAllen LLP, subject to the City Attorney making non-substantive changes.
BACKGROUND
On an annual basis, a qualified independent Certified Public Accounting Firm conducts an audit of the City's financial statements. On August 6, 2019, the City Council approved an Agreement for Professional Auditing Services with Davis Farr, LLP, to provide auditing services to the City. The original agreement term included auditing services for fiscal years ending June 30, 2019, June 30, 2020, and June 30, 2021. The agreement also provided for two additional one-year options, encompassing fiscal years ending June 30, 2022, and June 30, 2023. The City exercised both one-year options with Davis Farr, LLP, resulting in a total five-year agreement term.
As a best practice, to ensure an accurate and independent review of the City's financial statements, the City changes auditing firms at a minimum of every five years. The City's current Independent Auditing Firm, Davis Farr, LLP, has performed exceptionally well conducting an audit of the City's financial statements, including preparing the Annual Comprehensive Financial Report. With Davis Farr, LLP having conducted the City's financial statements for the last five years, it is now appropriate to release a new Request for Proposal (RFP). The Laguna Niguel Municipal Code (LNMC) Section 3-6-8(i) requires the City to issue an RFP for professional auditing services and obtain a minimum of three proposals.
ANALYSIS
On March 15, 2024, the City issued an RFP (Attachment A) for professional auditing services : in compliance with LNMC Section 3-6-8(i). Due to an insufficient number of submitted proposals (three required), the City reissued the RFP on April 19, 2024. The goal of the RFP is to obtain a qualified independent accounting firm to provide an audit of financial transactions, preparation of the Annual Comprehensive Financial Report, perform a Single Audit, audit the appropriations limit (Gann Limit), review employee compensation, and perform two separate Agreed Upon Procedures (AUP's).
In response to the RFP, four qualified proposals were received. Using the criteria listed in the RFP, the proposals were evaluated based on each firm's qualifications, experience, references, cost, approach to conducting the audit, demonstration of the understanding of the objectives and scope of the audit, independence with respect to the City of Laguna Niguel and commitment to timeliness in the conduct of the audit. The table below summarizes the evaluation ranking, consultant, and proposed total cost. The proposed total cost includes each firm's respective three-year cost proposals.
Ranking Consultant Proposed Total Cost
1 CliftonLarsonAllen LLP (Recommended) $173,514
Lance, Soll & Lunghard, LLP $155,380
Vasquez & Company, LLP $145,800
4 Eide Bailly LLP $408,255
After thoroughly reviewing the proposals received and based on all relevant factors, staff believes CliftonLarsonAllen LLP represents the best overall proposal. CliftonLarsonAllen LLP's qualifications, extensive local government auditing experience, and commitment to the City's audit timeline, which will ensure the efficient use of staff time and city resources, make them well suited to perform professional auditing services for the City. In addition, the CliftonLarsonAllen LLP is completely independent and has had no prior affiliation with the City.
Staff recommends that the City Council award the Professional Services Agreement to CliftonLarsonAllen LLP for fiscal years ending June 30, 2024, June 30, 2025, and June 30, 2026, subject to extension administratively for two additional one-year periods covering fiscal years ending June 30, 2027, and June 30, 2028. The Professional Services Agreement with CliftonLarsonAllen LLP can be found in Attachment B. Awarding the Professional Services Agreement for Professional Auditing Services supports Goal 2 Fiscal Sustainability in the City adopted Strategic Plan.
ALTERNATIVES CONSIDERED
The City Council may direct staff to reject all proposals and rebid the RFP for Professional Auditing Services. Staff believes that rebidding the RFP will not result in more desirable bids and will result in the existing proposed audit timeline no longer being feasible.
FISCAL REVIEW
The total cost for professional auditing services will be $55,864 for the fiscal year ending June 30, 2024, $57,810 for the fiscal year ending June 30, 2025, and $59,840 for the fiscal year ending June 30, 2026, for a total not-to-exceed amount of $173,514 for the three year period. If the City chooses to exercise either of the two one-year options for fiscal years ending June 30, 2027, and June 30, 2028, the annual cost of the agreement will be $61,920 for the fiscal year ending June 30, 2027, and $64,100 for the fiscal year ending June 30, 2028, for a total five year not-to-exceed cost of $299,534.
LEGAL REVIEW
The City Attorney's Office has reviewed this report and agreement and has approved both as to form.
CONCLUSION
Staff recommends that the City Council:
1. Award the Professional Services Agreement for Independent Auditing Services with CliftonLarsonAllen LLP for Fiscal Years 2023-2024, 2024-2025, and 2025- 2026, subject to extension administratively for two additional one-year periods.
2. Authorize the City Manager to execute the Professional Services Agreement and future amendments to the agreement for Independent Auditing Services with CliftonLarsonAllen LLP, subject to the City Attorney making non-substantive changes.
Jamas Setonnau
Tamara S. Letourneau Scott C. Smith
City Manager City Attorney
→ FOR Kenn X. O'comon
Kevin X. O'Connor
Finance Manager Management Assistant
Attachments:
A. Request for Proposals for Professional Auditing Services B. Professional Services Agreement with CliftonLarsonAllen LLP
ATTACHMENT A
Request for Proposals for Professional Auditing Services
CITY OF LAGUNA NIGUEL
REQUEST FOR PROPOSALS
PROFESSIONAL AUDITING SERVICES
Reissued on April 19, 2024
1000880
COUNTRY
1989
City of Laguna Niguel
REQUEST FOR PROPOSALS
PROFESSIONAL AUDITING SERVICES
TABLE OF CONTENTS
INTRODUCTION
A. General Information 1
B. Term of Engagement 2
II. DESCRIPTION OF THE GOVERNMENT
A. Background of the City of Laguna Niguel 2
B. Component Units 2
C. Fund Structure 2
D. Pension Plans
E. Accounting and Computer Systems
F. Internal Audit Function 3
G. Federal Financial Assistance 3
H. Availability of Prior Audit Reports 3
Ill. SCOPE OF WORK TO BE PERFORMED AND STANDARDS TO BE FOLLOWED A. Scope of Work
B. Working Paper Retention
C. Irregularities and Illegal Acts
D. Investment, Banking & Audit Committee 6
IV. TIMETABLE OF DELIVERABLE REPORTS
A. Audit Planning and Interim Work
B. Final Year-End Fieldwork
C. Report Due Dates
V. PROPOSAL REQUIREMENTS
A. Inquiries
B. Submission of Proposals
VI. EVALUATION PROCEDURES
A. Review of Proposals 14
B. Evaluation Criteria 14
C. Oral Presentations 15
VII. APPENDIX A 16
CITY OF LAGUNA NIGUEL
REQUEST FOR PROPOSAL
FOR PROFESSIONAL AUDITING SERVICES
INTRODUCTION
A. General Information
The City of Laguna Niguel (the "City") is requesting proposals from qualified independent Certified Public Accounting firms to audit the financial statements of the 'ity for the fiscal years ending June 30, 2024, 2025 and 2026, with options fo xtensions for the fiscal years ending June 30, 2027 and 2028, in addition t performing other financial audits and agreed-upon procedures as specified below.
These audits are to be performed in accordance with auditing standards generally accepted in the United States of America, the standards set forth for financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States, and the U.S. Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance).
There is no expressed or implied obligation for the City to reimburse responding firms for any expenses incurred in preparing proposals in response to this request.
Materials submitted by respondents are subject to public inspection under the California Public Records Act (Government Code Sec. 6250 et seq.), unless exempt.
To be considered, three (3) copies of a proposal must be received by the City Clerk's Office at 30111 Crown Valley Parkway, Laguna Niguel, CA 92677 by 4:00 P.M. on Friday, May 10, 2024. The City reserves the right to reject any or all proposals submitted.
During the evaluation process, the City reserves the right, where it may serve the City's best interest, to request additional information or clarifications from proposers, or to allow corrections of errors or omissions. At the discretion of the City, firms submitting proposals may be requested to make oral presentations as part of the evaluation process.
The City reserves the right to retain all proposals submitted and to use any ideas in a proposal regardless of whether that proposal is selected. Submission of a proposal indicates acceptance by the firm of the conditions contained in this request for proposals, unless clearly and specifically noted in the proposal submitted and confirmed in the contract between the City and the firm selected It is anticipated the selection of a firm will be completed in May 2024. Following the notification of the selected firm, a recommendation and proposed contract will be prepared for review and approval by the City Council at the May 21, 2024 Council Meeting.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
I. INTRODUCTION (CONTINUED)
B. Term of Engagement
A three-year contract, with two one-year extension options is expected. The extension options will be subject to review by the City Council and satisfactory negotiation of terms, including a price acceptable to both the City and the selected firm. The proposal package shall present all-inclusive audit fees for each year of the contract term.
II. DESCRIPTION OF THE GOVERNMENT
A. Background of the City of Laguna Niguel
The City was incorporated on December 1, 1989, servicing an area of approximately
14.8 square miles in South Orange County with a current population of 64,702. The City is a general law city, which operates under the council/manager form of government. The following services are provided to its citizens: public safety, planning, building, code enforcement, engineering, street maintenance, street lighting, park maintenance, recreation, and general administrative services.
The City's fiscal year begins on July 1 and ends on June 30. The City's adopted operating budget in Fiscal Year 2023-2024 is approximately $ 53.9 million, with a capital improvement budget of approximately $6.9 million.
The City's operations are organized into five functions (general government, public safety, community development, public works, and parks and recreation), with 66 budgeted full-time positions. Public safety is contracted with the Orange County Sheriff's Department and Orange County Fire Authority. The accounting and financial reporting aspects of the City are centralized within the Finance program of the general government function. The Finance Department is headed by the Director of Finance and consists of a Finance Manager, Purchasing Manager, Accountant a Senior Account Clerk, and an Account Clerk. The Director is also responsible for the treasury function.
B. Component Units
The City has no component units to be audited as part of the audit of the City's financial statements.
C. Fund Structure
The City maintains a total of 10 funds, including the general fund, one internal service fund, one capital projects fund and 7 special revenue funds. The City adopts an annual appropriated budget for all funds.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
IL. DESCRIPTION OF THE GOVERNMENT (CONTINUED)
D. Pension Plans
The City participates in the California Public Employees' Retirement System ("CalPERS") for all full-time and eligible part-time employees. For those part-time employees not eligible for participation in CalPERS, the City contributes the full employer share for FICA (Social Security).
E. Accounting and Computer Systems
The City utilizes Tyler Technologies' ERP Pro 10 as its accounting system, which is cloud based. ERP Pro 10 modules implemented include accounts receivable, accounts payable, fixed assets, general ledger, project accounting, and purchasing.
Infrastructure assets are maintained via an Excel spreadsheet. Payroll is performed by the service organization Automatic Data Processing, LLC ("ADP"), which is web- based. The City also utilizes ActiveNet for its park and recreation revenues and Tyler Technologies' EnerGov for its Public Works and Community Development permit revenues. EnerGov is integrated with ERP Pro 10. Information Technology (IT) is contracted with a service organization.
F. Internal Audit Function
The City does not maintain an internal audit function.
G. Federal Financial Assistance
During the fiscal years to be audited, the City expects to receive and/or expend financial assistance from federal sources directly or as a pass-through.
H. Availability of Prior Audit Reports
The City will use its best efforts to make prior audit reports and audit letters available to proposers to aid their response to this request for proposal. Interested proposers who wish to review prior years' audit reports and letters should contact Trevor Agrelius, Director of Finance, at 30111 Crown Valley Parkway, Laguna Niguel, CA 92677, (949) 362-4300, or [email protected].
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
Ill. SCOPE OF WORK TO BE PERFORMED AND STANDARDS TO BE
FOLLOWED
A. Scope of Work
The following is a summary of the scope of work to be performed by the selected firm for the City for the fiscal years ending June 30, 2024, 2025 and 2026, with options for the fiscal years ending June 30, 2027, and 2028:
1. The firm will perform a financial audit of all funds and financial statements of the City. The audit will be conducted in accordance with auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States. The firm will prepare and do the word processing of the City's Annual Comprehensive Annual Financial Report ("AFR") in full compliance with Governmental Accounting Standards Board ("GASB"') Statement No. 34. The City's Finance Department will prepare the Transmittal Letter, Management's Discussion and Analysis ("MD&A") and Statistical Section. The City will submit the AFRC to the Government Finance Officers Association ("GFOA") for review in their Certificate of Achievement for Excellence in Financial Reporting program. The City has received this award for the past twenty-three years, anticipating the twenty fourth for the AFR submitted for the fiscal year ended June 30, 2023.
2. The firm will perform a Single Audit on the expenditures of federal awards in accordance with the Office of Management and Budget's Uniform Guidance. The firm will render the appropriate independent auditors' Reports on Internal Control over Financial Reporting and on Compliance and Other Matters based on an Audit of Financial Statements Performed in Accordance with Government Auditing Standards, and Report on Compliance for Each Major Program, Report on Internal Control over Compliance, and Report on the Schedule of Expenditures of Federal Awards Required by the Uniform Guidance. The separately issued Single Audit Report will include the schedule of expenditures of federal awards, footnotes, findings and questioned costs, and follow up on prior audit findings where applicable.
3. The firm shall perform agreed-upon procedures pertaining to the City's GANN Limit (Appropriations Limit) in compliance with Proposition 111 Article XIll-B Section 1.5 of the California Constitution, and render a report annually to the City regarding its compliance.
4. As necessary, the firm shall issue written communications that include commendations for improvements in internal control, accounting policies an rocedures, and other significant observations that are considered to be deficiencie in internal control, significant deficiencies or material weaknesses. Such communications shall be addressed to the City Council.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
III. SCOPE OF WORK TO BE PERFORMED AND STANDARDS TO BE
FOLLOWED (CONTINUED)
A. Scope of Work (Continued)
The following agreed-upon procedure will be mandatory each year:
5. Review of Employee Compensation, including both items below:
a. City Manager and Executive Team (currently 15 authorized positions), b. Five additional City employees to be selected each year.
The firm will perform a review of changes in pay rates during the fiscal year and determine if changes (pay rates, employee status, and benefits) were authorized and supported by appropriate documentation. This would also include reconciling authorized pay with payroll records, and agreeing employee records with any changes.
The following is a list of agreed-upon procedures performed over the last several years. The City would like to perform two (2) similar engagements each year:
6. Review of Investment Transactions (10) - To determine that the investments made by staff are in compliance with the City's applicable Investment Policy.
7. Review of Financial Institution Wire Transfers (24) - To ensure that all transfers out of financial institutions as reported on bank or investment statements are properly authorized and accounted for.
8. Review of Journal Entries (20) - To ensure that journal entries (including budget entries) are made with adequate support, proper approval, and are correctly recorded to the general ledger.
9. Review of Bank Reconciliations (4) - To verify correctness of the reconciliations, verify reviews were performed, and determine the appropriateness and adequacy of support for any reconciling items.
10. Review of Check Stock Sequence and Cancelled Checks - To verify the sequence of check stock, including unused checks, voided checks and cancelled checks to verify that all checks cleared through the City's financial institutions are presented to Council in the check registers and are properly accounted for within the accounting records of the City.
11. Review of Cash Receipts (30) - To ensure that the amounts collected from all locations accepting revenues are properly reflected on receipt documentation that agrees with the amount in the revenue tracking software (if applicable), to the general ledger, and the amount reflected on the bank statement.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
II. SCOPE OF WORK TO BE PERFORMED AND STANDARDS TO BE
FOLLOWED (CONTINUED)
A. Scope of Work (Continued)
The following items are optional:
12. Preparation of the annual Cities Financial Transactions Report for the State Controller's Office per Government Code section 53891.
13. Preparation of the Annual Street Report for the State Controller's Office per California Streets and Highways Code Section 2151.
At any point in time during the term of engagement, the firm may be requested to perform additional agreed-upon procedures or financial audits, or alternative agreed- upon procedures than the above listed items. Prior to commencement of these additional procedures, the estimated cost will be provided and shall not exceed the quoted hourly rates included in Attachment A.
The City's Finance staff will provide normal cooperation and assistance during the audit, including preparation of confirmations, pulling and refiling of transaction supporting documents and providing reconciliations of major general ledger accounts.
B. Working Paper Retention
All working papers and reports must be retained at the auditor's expense for a minimum of seven (7) years, unless the firm is notified in writing by the City of the need to extend the retention period. The auditor will be required to make working papers available, upon request, to the City, any government agencies, or their designees. In addition, the firm shall respond to the reasonable inquiries of successor auditors and allow successor auditors to review working papers relating to matters of continuing accounting significance.
C. Irregularities and Illegal Acts
Auditors shall be required to make an immediate, written report of all irregularities and illegal acts or indications of illegal acts of which they become aware to the following parties: City Council; City Manager; City Attorney; and Finance Director.
D. Investment, Banking and Audit Committee
The City has an Investment, Banking and Audit Committee ("Committee") comprised of five community members and two Council members. The selected firm may be asked to meet with the Committee prior to the final year-end audit and at the presentation of the draft audited financial reports at the Committee meeting each year.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
IV. TIMETABLE OF DELIVERABLE REPORTS
It is anticipated that the audit work will be performed in the following phases:
A. Audit Planning and Interim Work
Audit planning and interim work is expected to take place no later than May of each year. Documentation of the City's processes and systems of internal control, and related testing should be completed during the interim fieldwork phase. The firm will provide a Prepared By Client ("PBC") list to the Director of Finance no later than two weeks prior to interim fieldwork, and will provide the PBC list for the final year- end fieldwork at the close of the interim stage.
B. Final Year-End Fieldwork
It is expected that the City's books will be closed and ready for audit by approximately September 15 of each year. The fieldwork should begin no earlier than this date, nor begin after October 15, unless mutually agreed upon.
C. Report Due Dates
The firm shall be responsible for the preparation and word processing of the ACFR and other required reports, and shall make every effort to provide a draft of the ACFR to the City before the end of final year-end fieldwork each year.
The firm shall provide all report and communications drafts (including the AFR) for review to the Director of Finance by the final week of November of each year. Final drafts for presentation to the Investment, Banking & Audit Committee should be provided to the Director of Finance no later than November 30th of each year.
Draft copies of all reports and communications will be presented to the Investment, Banking & Audit Committee on the last Wednesday of January of each year.
Committee meetings take place at 5:00 p.m. in the Council Chambers.
Electronic versions of the final issued reports shall be provided no later than December 15"h of each year. The firm is required to print and bind hard copies of the ACFR, Single Audit Report, and the remaining deliverable reports to be delivered to the Director of Finance.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
PROPOSAL REQUIREMENTS
A. Inquiries
Inquiries concerning the request for proposals and the subject of the request for proposals must be made by May 2, 2024. The City will respond by email regarding all questions no later than May 6, 2024. Inquiries should be made to:
Jarod Nozawa, Purchasing Manager
30111 Crown Valley Parkway, Laguna Niguel, CA 92677
[email protected]
CONTACT WITH PERSONNEL OF THE CITY OTHER THAN THE ABOVE
REGARDING THIS REQUEST FOR PROPOSALS MAY BE GROUNDS FOR ELIMINATION FROM THE SELECTION PROCESS.
B. Submission of Proposals
The following is required to be received by 4:00 P.M. on Friday, May 10, 2024 for a proposing firm to be considered.
1. A master copy (so marked) of a Technical Proposal, along with two (2) copies, in an envelope marked "Professional Auditing Services" that include the following:
a. Title Page - The title page shall show the proposal subject, the Firm's name, primary contact and contact information, the Firm's California CPA License Number and Firm's Federal Identification Number.
b. Table of Contents
c. Transmittal Letter - The transmittal letter should briefly state the proposer's understanding of the work to be performed, the commitment to perform the work in the required time frame, and statements as to why the firm believes i is best qualified to perform the engagement. The transmittal letter should also make a statement that the firm's offer is a firm, irrevocable offer for 90 days. d. Detailed Proposal - The detailed proposal should follow the order set forth in Section B.4. of this request for proposals.
2. The proposer shall submit an original and two (2) copies of a dollar cost bid in a separate sealed envelope marked as follows:
SEALED DOLLAR COST BID
PROPOSAL FOR CITY OF LAGUNA NIGUEL
FOR PROFESSIONAL AUDITING SERVICES
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
V. PROPOSAL REQUIREMENTS (CONTINUED)
B. Submission of Proposals (Continued)
3. Proposers should send the completed proposal consisting of two separate envelopes addressed to the following:
City Clerk's Office
City of Laguna Niguel
30111 Crown Valley Parkway
Laguna Niguel, CA 92677
4. The following are to be included in the Technical Proposal:
a. General Requirements
The purpose of the technical proposal is to demonstrate the qualifications, competence, and capacity of the firms seeking to undertake an independent audit of the City in conformity with the requirements of this request for proposals. As such, the substance of proposals will carry more weight than their form or manner of presentation. The technical proposal should demonstrate the qualifications of the firm and of the particular staff to be assigned to this engagement. It should also specify an audit approach that will meet the request for proposal requirements.
THERE SHOULD BE NO DOLLAR UNITS OR TOTAL COSTS
INCLUDED IN THE TECHNICAL PROPOSAL DOCUMENT.
While additional data may be presented, the following subjects (items b through k), must be included. They represent the criteria against which the proposal will be evaluated.
b. Independence
The firm should provide an affirmative statement that it is independent with respect to the City as defined by auditing standards generally accepted in the United States of America and the U.S. Government Accounting Office's Government Auditing Standards.
The firm should also list and describe the firm's (or proposed subcontractors') professional relationships involving the City for the past five (5) years, together with a statement explaining why such relationships do not constitute a conflict of interest relative to performing the proposed audit.
In addition, the firm shall give the City written notice of any professional relationships entered into during the period of this agreement which might affect the firm's independence.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
V. PROPOSAL REQUIREMENTS (CONTINUED)
B. Submission of Proposals (Continued)
c. License to Practice in California
An affirmative statement should be included indicating that the firm and all assigned key professional staff are properly licensed to practice in California. d. Firm Qualifications and Experience
The proposer should state the size of the firm, the size of the firm's governmental audit staff, the location of the office from which the work on this engagement is to be performed and the number and nature of the professional staff to be employed in this engagement on a full-time basis and part-time basis.
The firm is also required to submit a copy of the report on its most recent external peer review, with a statement whether that peer review included a review of specific government engagements.
The firm shall also provide information on the results of any federal or state desk reviews or field reviews of its audits during the past three (3) years. In addition, the firm shall provide information on the circumstances and status of any disciplinary action taken or pending against the firm during the past three (3) years with state regulatory bodies or professional organizations.
Partner, Supervisory, and Staff Qualifications and Experience The firm should identify the principal supervisory and management staff, including engagement partners, managers, other supervisors and specialists, who would be assigned to the engagement and indicate whether each such person is licensed to practice as a certified public accountant in California.
The firm should also provide information on the government auditing experience of each person.
The firm should provide as much information as possible regarding the rober, qualieritiont, experience and trac stat insighing relevant gainin rofessional certifications.
The firm also should indicate how the quality of staff over the term of the agreement will be assured
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
V. PROPOSAL REQUIREMENTS (CONTINUED)
B. Submission of Proposals (Continued)
e. Partner, Supervisory, and Staff Qualifications and Experience (Continued)
Engagement partners, managers, other supervisory staff and specialists may be changed if those personnel leave the firm, are promoted or are assigned to another office. These personnel may also be changed for other reasons with the express prior written permission of the City. However, in either case, the City retains the right to approve or reject replacements.
Other audit personnel may be changed at the discretion of the proposer provided that replacements have substantially the same or better qualifications or experience.
f. Prior Engagements with the City of Laguna Niguel
The firm should list separately all engagements within the last five (5) years, if any, ranked on the basis of total staff hours, performed for the City by type of engagement (i.e., audit, management advisory services, other). For each engagement, indicate the scope of work, dates, engagement partners, total hours, the location of the firm's office from which the engagement was performed, and the name and telephone number of the principal client contact. g. Similar Engagements with Other Governmental Entities For the firm's office that will be assigned responsibility for the audit, list at least five (5) of the most significant municipal engagements performed in the last year that are similar to the engagement described in this request for proposals. These engagements should be ranked on the basis of total staff hours. Indicate the scope of work, date, engagement partners, total hours, and the name and telephone number of the principal client contact. The City reserves the right to contact any or all of the listed references regarding the audit services performed by the Proposer.
Criteria to determine similarity should include, but not limited to:
• Municipalities participating in the FOA's Certificate of Achievement for Excellence in Financial Reporting program
• Municipalities that underwent a Single Audit in the last two (2) years City of Laguna Niguel
Request for Proposal for Professional Auditing Services
V. PROPOSAL REQUIREMENTS (CONTINUED)
B. Submission of Proposals (Continued)
h. Specific Audit Approach
The proposal should set forth a work plan, including an explanation of the audıt methodology to be followed, to perform the services required in this request for proposals. In developing the work plan, reference should be made to such sources of information as the City's budget and related materials, organizational charts, manuals and programs, and financial and other management information systems.
Proposers will be required to provide the following information on their audit approach in this engagement:
•Proposed segmentation
• Level of staff and number of hours to be assigned to each proposed segment
• Sample sizes and the extent to which statistical sampling is to be used • Extent of use of EDP software
• Type and extent of analytical procedures
• Approach to be taken to gain and document an understanding of the City's internal control structure
• Approach to be taken in determining laws and regulations that will be subject to audit test work
• Approach to be taken in drawing audit samples for purposes of tests of compliance
• Approach to be taken to analyze and test information systems utilized by the City
i. Discussion of Relevant Accounting Issues
and disclosure of the City's financial reports.
j. Identification of Anticipated Potential Audit Problems The proposal should identify and describe any anticipated potential audit problems, the firm's approach to resolving these problems, and any special assistance that will be requested from the City.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
PROPOSAL REQUIREMENTS (CONTINUED)
B. Submission of Proposals (Continued)
5. The following (a through c) are to be included in the Sealed Dollar Cost Bid:
a. Total All-Inclusive Maximum Price
The sealed dollar cost bid should contain all pricing information relative to performing the services as described in this request for proposal. The total all- inclusive maximum price to be bid is to contain all direct and indirect costs including all out-of-pocket direct expenses.
should not be included in the proposal.
The first page of the sealed dollar cost bid should include the following:
Name of Firm
• Certification that the person signing the proposal is entitled to represent the firm, empowered to submit the bid, and authorized to sign a contract with the City
Total all-inclusive maximum price of the base contract for the term of engagement, which is also to be included in the format provided in the attachment (Appendix A) on the second page of the sealed dollar cost bid with the costs of the additional required procedures and optional items.
b. Hourly Rates of the Firm's Employees
The second page of the sealed dollar cost bid should also include a schedule, presented in the format provided in the attachment (Appendix A), of the hourly rates of the firm's employees for any additional work to be performed that would be included in a separate agreement.
c. Manner of Payment
The Sealed Dollar Cost Bid shall state the method by which the firm will bill the City for services rendered. For example, if the firm proposes to bill the City upon completion of audit phases (e.g. interim, year-end, and reporting), please so state. Progress payments will be made on the basis of hours of work completed during the course of the engagement. Interim billing shall cover a period of not less than a calendar month. No more than 90% of the total fee may be billed prior to delivery of final audit reports and financial statements.
The costs must be detailed on the invoices for the City, Single Audit, and each agreed-upon procedure report.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
VI. EVALUATION PROCEDURES
A. Review of Proposals
The City will use a point formula during the review process to score proposals. Each proposal will be scored by each of the criteria described in section V.B.4. At this point, firms with an unacceptably low technical score will be eliminated from further consideration.
After the technical score for each firm has been established, the sealed dollar cost bid will be opened and additional points will be added to the technical score based on the price bid. The maximum score for price will be assigned to the firm offering the lowest total all-inclusive maximum price. Appropriate fractional scores will be assigned to other proposers.
B. Evaluation Criteria
Proposals will be evaluated using three (3) sets of criteria. Firms meeting the mandatory criteria will have their proposals evaluated and scored for both technical qualifications and price. The following represent the principal selection criteria, which will be considered during the evaluation process.
Mandatory Elements
• The firm is independent and licensed to practice in California. • The firm's professional personnel have received adequate continuing professional education within the preceding two (2) years. • The firm has no conflict of interest with regard to any other work performed by the firm for the City.
• The firm submits a copy of its most recent external quality control review report and the firm has a record of quality audit work.
The firm adheres to the instructions in this request for proposals on preparing and submitting the proposal.
City of Laguna Niguel
Request for Proposal for Professional Auditing Services
VI. EVALUATION PROCEDURES (CONTINUED)
B. Evaluation Criteria (Continued)
2. Technical Qualifications (Maximum Points - 70)
• Expertise and Experience (Maximum Points - 35)
The firm's past experience and performance on comparable government engagements.
The quality of the firm's professional personnel to be assigned to the engagement and the quality of the firm's management support personnel to be available for technical consultation.
Qualifications will also be assessed independently of the firm- provided information by verification of provided references from similar engagements.
• Audit Approach (Maximum Points - 35)
• Adequacy of proposed staffing plan for various segments of the engagement.
Approach to gaining an understanding of the City's internal controls.
• Approach to audit testwork.
3. Price (Maximum Points - 30)
COST WILL NOT BE THE PRIMARY FACTOR IN THE SELECTION OF A FIRM.
C. Oral Presentations
During the evaluation process, firms may be required to make an oral presentation to City staff or the City's Investment, Banking, and Audit Committee. Such presita mas will pony de ths proposal. ot ap forus ma to bensked to make such orat presentations. Partners, managers, and supervisory staff assigned to the audit must It is anticipated that a selected firm will be approved by the City Council at the Council meeting on May 21, 2024, which the selected firm is expected to attend.
APPENDIX A
City of Laguna Niguel
Proposal for Professional Auditing Services
Cost of Services (All-Inclusive / Eixed Ece)
Base Contract (Mandatory Items):
Estimated Fiscal Year
Description Hours 2023-24 2024-25 2025-26 2026-27 2027-28 Total Audit of the City of Laguna Niguel
(including AFR preparation)
Single Audit*
GANN Limit
Appropriations Limit
UP - City Employe
Compensation
Out of Pocket Expenses
(please specify)
Total Base Contract
(Not to exceed maximum fee,
includingexpenses) - S • S - S
Additional Agreed-Upon Procedures (Two (2) To Be Selected Per Year):
Estimated Fiscal Year
Description Hours 2023-24 2024-25 2025-26 2026-27 2027-28 Total AUP #1
LAUP #2
Additional Reports (Optional):
Estimated Fiscal Year
Description Hours 2023-24 2024-25 2025-26 2026-27 2027-28 Total Cities Financial Transactions
Report to SCO $
Annual Street Report to SCO
Billable Hourly Rates by Classification (For Additional Work) Fiscal Year
Position 2023-24 2024-25 2025-26 2026-27 2027-28
Partner - $ $ $
Manager
In-Charge (Supervisor/Senior)
Staff
Other (please specify)
* - Single Audit may not occur in each year of the contract term - subject to City's expending of current federal awards granted and any new additional awards received and expended in future years.
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN CITY OF LAGUNA NIGUEL AND
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into by and between CITY OF
LAGUNA NIGUEL, California municipal corporation ("City") and a
("Consultant"). City and Consultant may be referred to individually as "Party" or collectively as "Parties." In consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit A and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants: a) all services set forth in the Scope of Services will be performed in a competent and satisfactory manner; b) all materials used for services will be both of good quality as well as fit for the purpose intended; and, c) Consultant shall follow the highest professional standards and practices in performing the services required hereunder.
1.2 Consultant's Proposal and City's RFP. Consultant's proposal or bid for this Agreement ("Consultant's Proposal"), dated → shall be
incorporated herein by this reference as though fully set forth herein. City circulated a Request for Proposals for the services provided for herein on _ City's Request for Proposals ("City's RFP"), which was responded to by Consultant's Proposal, shall be incorporated herein by this reference as though fully set forth herein. The Scope of Services shall include the scope of services or work included both in Consultant's Proposal as well as in City's RFP. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal (for scope of services or work, or schedule of performance), and the terms of City's RFP (for scope of services or work, or schedule of performance), the Consultant's Proposal shall govern, unless this Agreement provides otherwise. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal, and this Agreement, the terms of this Agreement shall govern. No other terms and conditions from Consultant's Proposal, other than description of scope of services or work, as well as description of schedule of performance, shall apply to this Agreement, unless specifically agreed to by City in writing.
Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, State or local governmental agency having jurisdiction in effect at the time services are rendered City, and its elected and appointed officers, employees, agents, designated volunteers, attorneys, 1 successors and assigns shall not be liable at law or in equity for failure of Consultant to comply with this Section.
1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain and maintain 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 Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
Additional Services and Compensation. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes to the work by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order, consistent with both Section 9.4 as well as the Laguna Niguel Municipal Code, is first given by City to Consultant, incorporating therein any adjustment in the Contract Sum for the actual costs of the extra work and/or the time to perform this Agreement, which said adjustments are subject to the written approval of Consultant. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other consultants.
1.6 Familiarity with Work. By executing this Agreement, Consultant represents and warrants Consultant: a) has thoroughly investigated and considered services to be performed, b) has carefully considered how services should be performed, and c) fully understands the facilities, difficulties and restrictions attending performance of services under this Agreement.
1.7 Software and Computer Services. If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer technology, Consultant represents and warrants that it is familiar with and/or has inspected City's current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant under this Agreement is compatible, and shall be fully functional, with such infrastructure, equipment, computer system and software of City. Consultant acknowledges that City is relying on this representation by Consultant as a material consideration in entering into this Agreement.
Prevailing Wages. If services include any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seq. and California Code of Regulations, Title 8, section 16000 et seq., and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws. To the maximum extent permitted by law, Consultant's obligations in Section 5.3 (Indemnification) expressly apply to acts or omissions arising out of, or incidental to, the payment of prevailing wages by any person or entity (including Consultant, its subcontractors, and each of their officers, employees and agents) in connection with any services, including without limitation the payment 2 of all consequential damages, attorneys' fees, and other related costs and expenses. All duties of Consultant pursuant to this section shall survive termination of the Agreement.
1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
Contract Sum. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit C and incorporated herein by this reference. The total compensation (excluding the Contingency Sum), including reimbursement for actual expenses, shall not exceed Dollars ($ ("Compensation Sum"), unless
additional compensation is approved pursuant to Section 1.5. This Agreement includes a contingency amount equal to percent of the Compensation Sum ("Contingency Sum") to account solely for additional work, or unforeseen conditions, related to the services. The total compensation (including the Contingency Sum), including reimbursement for actual expenses, shall not exceed Dollars ($
("Contract Sum"), unless additional compensation is approved pursuant to Section 1.5. The Consultant shall obtain written approval from the City for any use of the Contingency Sum.
Compensation may include reimbursement, for actual and necessary expenditures, if both specified in thè Schedule of Compensation, as well as approved by City in advance. Upon expiration of original term of the Agreement, if term is extended (pursuant to Section 3.2 or otherwise), fees and rates may only be increased both pursuant to Section 9.4 as well as subsequent to negotiation between the Parties on a reasonable increase. The maximum of such increase shall be no greater than the CPI increase (Orange County area for the applicable period of time. City has no obligation or duty to provide any such increase. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services, Consultant shall promptly notify the City Representative of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
2.2 Invoices. Unless some other method of payment is specified in Exhibit B, Special Requirements, in any month in which Consultant wishes to receive payment, no later than the first business day of such month, Consultant shall submit to City, in a form approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of this Agreement. Except as provided in Sections 7.3, 7.4 and 7.5, City shall pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement generally within thirty (30) days, and City will use its best efforts to make payment no later than forty-five (45) days, from the submission of an invoice in an approved form. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. Each invoice 3 is to include (unless otherwise specified by City): 1) line items for all personnel describing the work performed, the number of hours worked, and the hourly rate; 2) line items for all materials and equipment properly charged to the services; 3) line items for all other approved reimbursable expenses claimed, with supporting documentation; and 4) line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the services.
ARTICLE 3. PERFORMANCE SCHEDULE
3.0 Time of Essence. Time is of the essence in the performance of this Agreement..
3.1 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services, which shall be no later than , 20_. The term of this Agreement may be extended administratively (with total cumulative extension no greater than two years), by the City pursuant to Section 9.4 and without the need for further approval by the City Council, if the Consultant's performance is satisfactory and it is in the best interest of the City.
Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit D and incorporated herein by this reference.
3.3 Force Maieure. The time period(s) 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, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, (with the express exception of delays arising from the impact of COVID-19 and its variants to the extent such impact is foreseeable or should have reasonably been foreseeable), if Consultant shall within ten (10) days of the commencement of such delay notify City in writing of the causes of the delay.
City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of this Agreement pursuant to this Section.
ARTICLE 4. COORDINATION OF WORK
4.1 Consultant Representative. The Consultant Representative is ([title, work phone number and work email], who is
authorized to act on Consultant's behalf with respect to the work or services specified herein and to make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of the representative was a substantial inducement for City to enter into this Agreement. Therefore, the representative 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. For purposes of this Agreement, the representative may not be 4 replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City.
4.2 City Representative. The City Representative is such person as designated by the City Manager or her designee. The City Representative shall be the primary person on behalf of City responsible for the administration of the Agreement. It shall be Consultant's responsibility to assure that the City Representative is kept informed of both the progress of the performance of the services as well as any decisions which must be made by City.
4.3 Approvals from City. City approvals or actions, pursuant to the authority of this Agreement, may be made (unless otherwise specified) either by the City Manager, the Director, or by the City Representative (or by their respective delegates as provided for in writing).
4.4 Independent Contractor. Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Consultant, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall remain under 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 officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Consultant represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Consultant's exclusive control and direction.
No City employee benefits shall be available to Consultant, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Consultant or any officer, employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees' Retirement System, to be classified as other than an independent contractor for City, then Consultant shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Consultant, or any officer, employee, agent, or subcontractor Consultant used to provide services under this Agreement, is/are employees of City.
4.5 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. Therefore, without express written approval of City, Consultant shall not contract with any other entity to perform in whole or in part services required hereunder without express written approval of City, and neither this Agreement nor any interest herein may be transferred or assigned. No approved transfer shall release Consultant, or any surety or insured of Consultant, of any liability hereunder without express written consent of City. 5 ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages. Prior to commencement of any services under this Agreement, and without limiting Consultant's indemnification obligation to City, Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, for the duration of the Agreement, primary policies of insurance of the type and amounts below, issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by City, which shall cover all elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns of City. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. (a) Commercial General Liability Insurance. A policy of commercial general liability insurance, with coverage at least as broad as Insurance Services Office ("ISO"') form CG 00 01, written on a per occurrence basis for bodily injury, personal injury and property damage. Defense costs must be paid in addition to limits. Coverage for an additional insured shall not be limited to its vicarious liability. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate.
(b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Consultant in the course of carrying out the work or services contemplated in this Agreement.
(c) Automobile Liability. A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basis covering bodily injury and property damage in an amount not less than $1,000,000 combined single limit for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
(d) Professional Liability. Professional liability insurance appropriate to Consultant's profession. This coverage may be written on a "claims made" basis and must include coverage for contractual liability. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of City submit written evidence of this continuous coverage. Limits shall be no less than $1,000,000 per claim and no less than $1,000,000 general aggregate. 6 (e) Cyber Liability. Cyber liability insurance appropriate to Consultant's profession and the services hereunder, written on a per occurrence basis, with limits not less than $1,000,000 per occurrence/loss, and $2,000,000 in the aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Consultant pursuant to this Agreement and shall include, but not be limited to, claims involving: infringement of intellectual property; copyright; trademark; invasion of privacy violations; data breach; electronic information theft, loss, damage, destruction, alteration or misuse; release of private information; extortion; and, network security. The policy shall provide coverage for breach response costs, regulatory fines and penalties, and credit monitoring expenses, with limits sufficient to respond to these obligations.
(f) Excess Liability and Umbrella Liability Insurance. Excess liability insurance and/or umbrella liability insurance may be used to satisfy the obligations herein. If excess liability insurance is used then the policy shall meet all the requirements herein and be at least as broad as the primary coverages set forth herein. Such policy shall: 1) include a drop down feature requiring the policy to respond if primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 2) be payable on behalf of wording as opposed to reimbursement; 3) have concurrency of effective dates with primary policies; 4) "follow form" to the underlying primary policies; and, 5) provide insureds, under primary policies required herein, shall be insureds under the excess liability policy. (g)k Subcontractors. In the event Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, Consultant shall either: 1) include each subcontractor as insureds under its policies of insurance required herein; or, 2) Consultant shall, upon request of City, furnish to City all documentation, required in Article 5 for Consultant, for each subcontractor. All coverages for subcontractors shall include all of the requirements herein.
5.2 General Insurance Requirements.
Proof of Insurance, Enforcement and Notice. No work or services under this Agreement shall commence until both Consultant has provided City with insurance certificates, endorsement forms and appropriate insurance binders evidencing the above insurance coverages, as well as said documentation is approved by City. City reserves the right to inspect complete, certified copies of, and endorsements to, all required insurance policies, at any time.
Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. In the event any insurance policy required under this Agreement is cancelled or amended (and the insurance policy is not replaced pursuant to subsection (b) below), or does not comply with Article 5, then: 1) City has the right but not the duty to obtain insurance required herein and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments; or, 2) City, notwithstanding any other provisions of this Agreement, may immediately terminate this Agreement. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required insurance policies. (b) Cancellation/Amendment. All of herein required policies of insurance shall provide the insurance may not be amended or cancelled by insurer or any Party hereto without providing thirty (30) calendar days prior written notice (with exception of ten (10) calendar days 7 prior written notice for nonpayment of premium) to City. In the event any of said policies of insurance are amended or cancelled, Consultant shall, five (5) business days prior to the cancellation date, submit new evidence of insurance, or reinstatement of policy, in conformance with this Agreement to City.
Additional Insureds. The commercial general liability policy provided for in Section 5.1(a) and the automobile liability policy provided for in Section 5.1 (c) both shall name City and its elected and appointed officers, employees, agents and designated volunteers ("City Parties") as additional insureds and such coverage shall contain no special limitations on the scope of protection afforded to City and City Parties. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability, and policies of insurance shall not contain any cross-liability exclusions. (d) Primary, Subrogation, Contribution and Coverage. All of the above policies of insurance shall be primary insurance. The insurers (with exception of professional liability insurer) for above policies, Consultant and any subcontractors are all deemed hereof to waive all rights of subrogation and contribution they may have against City or City Parties, and their respective insurers, and all insurance policies required herein shall be endorsed to waive such rights. Any insurance maintained by City or City Parties will apply in excess of, and not contribute with, Consultant's insurance. If Consultant maintains broader coverage and/or higher limits than the minimum amounts provided herein, City requires and shall be entitled to the broader coverage and/or higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City and City Parties.
None of the coverages required herein will be in compliance with this Agreement if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Requirements of specific coverage features or limits contained herein are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any Party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. (e) Limitations, Self- Insured Retention and Deductibles. Consultant agrees that requirements of Article 5 shall not be construed as limiting in any way the extent to which Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant's activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant's indemnification liabilities as provided in Section 5.3. All insurance policies must specify that where the primary insured does not satisfy any self-insured retention, any additional insured may satisfy the self-insured retention (without impairment of obligation of primary insured under this Agreement to satisfy any self- insured retention). Any deductibles or self-insured retentions must be declared to and approved by City. At City's option, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City and City Parties, or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, attorney's fees, defense expenses and claims.
8 5.3 Indemnification.
(a) General Obligations. Consultant agrees, to the full extent permitted by law, to immediately indemnify, defend and hold harmless City and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns (each an "Indemnitee" and collectively, "Indemnitees") against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages or injuries to persons or property, demands, expenses, losses, costs, penalties, obligations, errors, omissions or liabilities of any kind that may be asserted or claimed by any person, firm or entity arising out of, pertaining to, incident to or in connection with any alleged acts, errors or omissions of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (each an "Indemnitor" and collectively, "Indemnitors") in connection with the performance of Consultant's Services, or arising from Indemnitors' reckless or willful misconduct, or arising from Indemnitors' negligent performance of or failure to perform the work, operations or activities provided herein, or any term, provision, covenant or condition of this Agreement, with such negligence or failure to perform to be determined by the City (herein "Claims or Liabilities"), and in connection therewith: 1) Consultant will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitees will reimburse and pay for all costs and expenses, including legal costs and attorneys' fees, incurred by Indemnitees in connection therewith; and, 2) Consultant will promptly pay and satisfy any judgment, award or decree rendered against Indemnitees, and reimburse Indemnitees for the cost of any settlement paid by Indemnitees, for any such Claims or Liabilities, and will save and hold Indemnitees harmless therefrom.
(b) Further Provisions. The indemnity obligation herein shall be binding on successors, assigns and heirs of Consultant and shall survive termination of this Agreement.
Consultant shall incorporate similar indemnity agreements as provided herein with its subcontractors, and if Consultant fails to do so Consultant shall be fully responsible to indemnify City hereunder therefor. Failure of City and/or City Parties (collectively "City" for solely this Section 5.3(b)) to monitor compliance with any of the indemnification provisions herein shall not be a waiver hereof. The indemnification provisions herein do not apply to claims or liabilities occurring as a result of City's sole negligence or willful misconduct, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnification provided herein includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services hereunder. Payment of invoices by City is not a condition precedent to enforcement of the indemnity obligation herein. In the event of any dispute between Consultant and City, as to whether liability arises from the sole negligence or willful misconduct of City, Consultant will be obligated to pay for City's defense until such time as a final judgment has been entered adjudicating City as solely negligent or responsible for willful misconduct. to City from Consultant as a result of Consultant's failure to promptly pay to City any 9 reimbursement or indemnification arising under Section 5.3 of this Agreement. Such offset, if any, does not satisfy any amount, greater than the offset, due to City from Consultant. (c) Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law (within the limitations, as applicable, of Civil Code section 2782.8), Consultant shall indemnify, defend and hold harmless Indemnitees against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all Claims and Liabilities, consistent with all obligations provided for in this Section 5.3, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services under this Agreement.
ARTICLE 6. RECORDS, REPORTS AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder ("books and records") as shall be necessary to perform the services required by this Agreement and enable City to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles (and, as applicable, maintained also in accordance with requirements of Labor Code section 1776), shall be complete and detailed, and shall be readily accessible. City shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained either for a period of no less than three (3) years following completion of the services hereunder, or for such period of time as required by applicable law, whichever period of time is longer. City shall have access to such books and records in the event any audit is required. Consultant shall fully cooperate with City in providing access to any and all Consultant records and documents if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
Reports. Consultant shall periodically submit written reports to City Representative concerning performance of services, upon request, and/or as necessary for City to be informed of both performance of services as well as any decisions which must be made by City.
6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials ("documents and materials") prepared (regardless of whether complete or incomplete) by Consultant, its officers, employees, agents and subcontractors in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of City and/or upon the termination of this Agreement, 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, use, reuse, or assignment of the documents and materials hereunder. Consultant may retain copies of such documents and materials under express condition that Consultant agrees such documents and materials are the sole property of City. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, with respect to any Consultant documents and materials that may qualify as 10 "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for City.
6.4 Confidentiality and Release of Information. All information gained or work product produced by Consultant in its performance of this Agreement shall be considered confidential, unless such information is in the public domain prior to such gain or production.
Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from City. No news releases, including photographs, public announcements, or confirmations of the same, of any part of the work, shall be made without prior written authorization from City. Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from City or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant immediately gives City notice of such court order or subpoena. If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Consultant's conduct. As concerning, regarding or related to, in any way, this Agreement and the work performed thereunder: a) Consultant shall immediately notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party; b) City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding; and, c) Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant, however, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law. This Agreement shall be interpreted, construed and governed 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 Orange, State of California, or any other appropriate court in such county, and Consultant agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.
District Court, venue shall lie exclusively in the Central District of California, Southern Division, in the County of Orange, State of California.
7.2 Suspension, or Termination, Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in Section 7.4 for termination for cause. City reserves the right to terminate or suspend this Agreement, or any portion hereof, at any time, for any reason, with or without cause, upon ten (10) days' notice to Consultant, except that where termination or suspension is due to the fault of Consultant, the period of notice may be such shorter time as determined by City. Upon receipt of any notice of termination or suspension, Consultant shall immediately cease all services hereunder, unless the notice 11 provides otherwise, or except such as specifically approved by City. Upon submittal of an invoice consistent with Section 2.2, Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination or suspension and for any services authorized by City thereafter in accordance with the Schedule of Compensation, or such as may be approved by City, except as provided in Section 7.5. In event of termination, or suspension, without cause pursuant to this Section, there is no need to provide opportunity to cure pursuant to Section 7.3.
Default of Consultant and Opportunity to Cure. In the event that Consultant is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively ten (10) days, but may be extended, or reduced, if circumstances warrant, as determined by City. During the period of time that Consultant is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices, without liability for interest. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default by conclusion of noticed timeframe, City may immediately both terminate this Agreement with notice to Consultant as well as pursue the remedy in Section 7.4, without prejudice to any other remedy to which City may be entitled at law, in equity or under this Agreement. Any failure on the part of City to give notice of Consultant's default shall not be deemed to result in a waiver of City's legal rights or any rights arising out of any provision of this Agreement.
7.4 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 7.3, take over the 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 set-off or partial payment of the amounts owed City therefor.
7.5 Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.6 Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver 12 of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. 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. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement of this Agreement imposes no additional obligations on City nor does it waive any rights hereunder. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
7.7 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 different times, of any other rights or remedies for the same default or any other default by the other Party.
7.8 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.9 Attornevs' Fees. If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and a Party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, consultants' fees, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. INDIVIDUAL LIABILITY, CONFLICTS AND NON-DISCRIMINATION
8.1 Non-liability of City Officers and Emplovees. No officer or employee of City shall be personally liable to Consultant, or any successor in interest, in the event of 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.
8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of City. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City, in its sole discretion, shall determine the existence of a conflict of interest and may terminate this Agreement in the event 13 such a conflict of interest exists upon sending Consultant written notice describing the conflict.
No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects their financial interest or the financial interest of any corporation, partnership or association in which they are, 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 other consideration for obtaining this Agreement.
8.3 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, gender, sexual orientation, marital status, national origin, ancestry or other protected class 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, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices. Any notice or other communication either Party desires or is required to give to the other Party or any other person in regards to this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, in the case of City addressed to Director at City of Laguna Niguel, _, Laguna Niguel, CA 92677, and in the case of Consultant, to the person(s) at the address designated on the execution page of this Agreement.
Either Party may change its address by notifying the other Party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.
9.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties as to the Agreement.
It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all prior and contemporaneous negotiations, arrangements, agreements and understandings, if any, between the Parties. concerning this Agreement, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing, approved by City and Consultant, and consistent with the Laguna Niguel Municipal Code. 14 Severability. Should a portion of this Agreement be declared invalid or unenforceable by a judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
No Undue Influence. Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to remedies in Section 7.4 and any and all remedies at law or equity. arties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iil) by so executing this assigns of the Parties.
¡SIGNATURES ON FOLLOWING PAGEJ
15 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF LAGUNA NIGUEL, a California
municipal corporation
Tamara S. Letourneau, City Manager
ATTEST:
Marissa J. Asistin, City Clerk
[NOTE (and delete this NOTE before this signature page is finalized): pursuant to City Purchasing Policy, if there are no substantive changes to Agreement template language, then City Attorney "approval as to form" is not required, and below signature bloc in its entirety may be removed.]
APPROVED AS TO FORM BY THE
CITY ATTORNEY FOR THE
CITY OF LAGUNA NIGUEL,
CALIFORNIA:
Scott C. Smith, City Attorney
CONSULTANT:
, a
By:
Name:
Title:
By:
Name:
Title:
Address:_
Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairperson of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. (Cal. Corp. Code § 313.) 16 APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS,
ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
17 EHIBIT A
SCOPE OF SERVICES
I. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
II. Consultant will perform services, described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts) L, and as specified in more detail below]. [NOTE (delete this entire NOTE when Exhibit A is finalized, and below Sections III-V formats are examples and do not have to be used:
• If Proposal / RFP has a complete and clear description of the scope of services and no need to refer to specific sections or pages, then: 1) delete below Sections III-V and delete the above language "and as specified in more detail below."
• If need to refer to specific sections or pages of the Proposal or RFP to clarify scope of services, hen: 1) below make those references and provide any other applicable details on scope of services; and, 2) keep Section II above (and remove yellow highlighting) • If Proposal does not have a complete and clear description of scope of services and do not want to reference Proposal / RFP at all, then: 1) below write a complete and clear description of scope of services; and, 2) delete above Section II; and, 3) renumber below Sections starting with "II."] III. Consultant will perform the following services:
A.
B.
IV. As part of the services, Consultant will prepare and deliver the following tangible work products to City:
A.
B.
V. During performance of the services, Consultant will keep City informed of the status of performance by delivering the following status reports:
A.
B.
[NOTE (and delete this entire NOTE when Exhibit A is finalized): If City expects specific individuals to perform the services, then list below those individuals and describe roles (below format is an example and does not have to be used). If City does not expect specific individuals to perform the services, then delete below Section VI. Be sure to renumber below as consistent with any numbering changes above.]
A(1)
VI. Consultant will utilize the following personnel to accomplish the services:
A.
B.
A(2)
EXHIBIT B
SPECIAL REQUIREMENTS
(Superseding Agreement Template)
NOT APPLICABLE
[NOTE (and delete this entire NOTE when Exhibit B is finalized): All revisions to the template go in this Exhibit B. If Consultant requests revisions to template, and/or if Staff recommends revisions to template: 1) delete above term "NOT APPLICABLE"; and, 2) write the requested and/or recommended revisions below. The following are suggested formats and other formats may be used if make more sense:
(amend template language)
Section 5.1(c), "Automobile Liability," shall be amended to read in its entirety (new text is identified in bold italics, deleted text in strike through) as follows:
"A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basis covering bodily injury and property damage in an amount not less than $1,000,000 $2,000,000 combined single limit for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile." (delete template language)
B. Section 5.1(d), "Professional Liability," is deleted in its entirety. (add new section to template)
C. Section X.X, ". →" is added in its entirety as follows:
"]
B(1)
EXHIBIT C
SCHEDULE OF COMPENSATION
I. City will compensate Consultant for the services performed upon submission of a valid invoice, as described in Section 2.2.
The total compensation for the services shall not exceed the total of the Contract Sum, as provided in Section 2.1 of this Agreement.
III. Consultant will be compensated for services provided pursuant to this Agreement in accordance with description in Consultant's Proposal.
[NOTE (and delete this entire NOTE when Exhibit C is finalized): If Proposal has a complete and clear description of the schedule of compensation, then delete below Section III. If Proposal does not have a complete and clear description of schedule of compensation, then: I) below write a complete and clear description of schedule of compensation (below Section III format is an example and does not have to be used); and, 2) delete above Section III.] III. Consultant shall perform the following tasks at the following rates:
TASK RATE TIME
A.
B.
C.
D.
C(1)
EXHIBIT D
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services and deliver all work products timely in accordance with the schedule described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts) [, and as specified in more detail below]. [NOTE (delete this entire NOTE when Exhibit D is finalized, and below Section Il-IV formats are examples and do not have to be used:
• If Proposal / RFP has a complete and clear description of the schedule of performance and no need to refer to specific sections or pages, then delete below Sections I-III and delete the above language "and as specified in more detail below."
• If need to refer to specific sections or pages of the Proposal or RFP to clarify schedule of performance, then: 1) below make those references and provide any other applicable details on schedule of performance; 2) keep Section I above (and remove yellow highlighting); and 3) delete Section I below.
• If Proposal / RFP does not have a complete and clear description of schedule of performance and do not want to reference Proposal / RFP at all, then: 1) below write a complete and clear description of schedule of performance (always keep below Section I if delete above Section I; and, 2) delete above Section I.]
Consultant shall perform all services and deliver all work products timely.
II. Consultant shall perform all services in accordance with the following schedule:
TASK DAYS TO PERFORM DEADLINE DATE
A.
B.
C.
D.
III. Consultant shall deliver the following tangible work products to City by the following dates.
A.
B.
C.
D(1)
ATTACHMENT B
Professional Services Agreement with CliftonLarsonAllen LLP
ATTACHMENT B
Professional Services Agreement with CliftonLarsonAllen LLP
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN CITY OF LAGUNA NIGUEL AND
CLIFTONLARSONALLEN LLP
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into by and between CITY OF LAGUNA NIGUEL, a California municipal corporation ("City") and CliftonLarsonAllen LLP, a Limited Liability Partnership - Out of State ("Consultant"). City and Consultant may be referred to individually as "Party" or collectively as "Parties." In consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit A and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants: a) all services set forth in the Scope of Services will be performed in a competent and satisfactory manner; b) all materials used for services will be both of good quality as well as fit for the purpose intended; and, c) Consultant shall follow the highest professional standards and practices in performing the services required hereunder.
1.2 Consultant's Proposal and City's RFP. Consultant's proposal or bid for this Agreement ("Consultant's Proposal"), dated April 15, 2024, shall be incorporated herein by this reference as though fully set forth herein. City circulated a Request for Proposals for the services provided for herein on March 15, 2024, and reissued on April 19, 2024. City's Request for Proposals ("City's RFP"), which was responded to by Consultant's Proposal, shall be incorporated herein by this reference as though fully set forth herein. The Scope of Services shall include the scope of services or work included both in Consultant's Proposal as well as in City's RFP. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal (for scope of services or work, or schedule of performance), and the terms of City's RFP (for scope of services or work, or schedule of performance), the Consultant's Proposal shall govern, unless this Agreement provides otherwise. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal, and this Agreement, the terms of this Agreement shall govern. No other terms and conditions from Consultant's Proposal, other than description of scope of services or work, as well as description of schedule of performance, shall apply to this Agreement, unless specifically agreed to by City in writing.
1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, State or local governmental agency having jurisdiction in effect at the time services are rendered.
City, and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns shall not be liable at law or in equity for failure of Consultant to comply with this Section.
1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain and maintain 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 Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
Additional Services and Compensation. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes to the work by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order, consistent with both Section 9.4 as well as the Laguna Niguel Municipal Code, is first given by City to Consultant, incorporating therein any adjustment in the Contract Sum for the actual costs of the extra work and/or the time to perform this Agreement, which said adjustments are subject to the written approval of Consultant. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other consultants.
1.6 Familiarity with Work. By executing this Agreement, Consultant represents and warrants Consultant: a) has thoroughly investigated and considered services to be performed, b) has carefully considered how services should be performed, and c) fully understands the facilities, difficulties and restrictions attending performance of services under this Agreement.
1.7 Software and Computer Services. If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer technology, Consultant represents and warrants that it is familiar with and/or has inspected City's current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant under this Agreement is compatible, and shall be fully functional, with such infrastructure, equipment, computer system and software of City. Consultant acknowledges that City is relying on this representation by Consultant as a material consideration in entering into this Agreement.
1.8 Prevailing Wages. If services include any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seq. and California Code of Regulations, Title 8, section 16000 et seq., and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws. To the maximum extent permitted by law, Consultant's obligations in Section 5.3 (Indemnification) expressly apply to acts or omissions arising out of, or incidental to, the payment of prevailing wages by any person or entity (including Consultant, its subcontractors, and each of their officers, employees and agents) in connection with any services, including without limitation the payment of all consequential damages, attorneys' fees, and other related costs and expenses. All duties of Consultant pursuant to this section shall survive termination of the Agreement.
1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit -2-
B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Aggregate Contract Sums. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit C and incorporated herein by this reference. The total compensation for each of the respective Services Time Periods listed in Exhibit C (including Contingency Sum(s), if any), including reimbursement for actual expenses, shall not exceed each Services Time Period's respective Contract Sum listed in Exhibit C, unless additional compensation is approved pursuant to Section 1.5. Specific periods of time during the contract term have specific not-to-exceed amounts as detailed in Exhibit C. The aggregate of the various Contract Sums shall not exceed One-Hundred Seventy-Three Thousand Five-Hundred Fourteen Dollars ($173,514.00), which is the total compensation available under this Agreement. However, funds available pursuant to the respective Contract Sum for each specific Services Time Period in Exhibit C may not be transferred between the Services Time Periods. The Consultant shall obtain written approval from the City for any use of any Contingency Sum provided for in Exhibit C. Compensation may include reimbursement, for actual and necessary expenditures, if both specified in the Schedule of Compensation, as well as approved by City in advance. Upon expiration of original term of the Agreement, if term is extended (pursuant to Section 3.2 or otherwise), fees and rates may only be increased both pursuant to Section 9.4 as well as subsequent to negotiation between the Parties on a reasonable increase. The maximum of such increase shall be no greater than the CPI increase (Orange County area for the applicable period of time. City has no obligation or duty to provide any such increase. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services, Consultant shall promptly notify the City Representative of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
2.2 Invoices. Unless some other method of payment is specified in Exhibit B, Special Requirements, in any month in which Consultant wishes to receive payment, no later than the first business day of such month, Consultant shall submit to City, in a form approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of this Agreement. Except as provided in Sections 7.3, 7.4 and 7.5, City shall pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement generally within thirty (30) days, and City will use its best efforts to make payment no later than forty-five (45) days, from the submission of an invoice in an approved form. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. Each invoice is to include (unless otherwise specified by City): 1) line items for all personnel describing the work performed, the number of hours worked, and the hourly rate; 2) line items for all materials and equipment properly charged to the services; 3) line items for all other approved reimbursable -3-
expenses claimed, with supporting documentation; and 4) line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the services.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services, and tasks described herein are completed, which include providing auditing services for the fiscal years ending June 30, 2024, June 30, 2025, and June 30, 2026. The term of this Agreement may be extended administratively (with total cumulative extension no greater than two years for auditing services for fiscal years ending June 30, 2027, and June 30, 2028, by the City pursuant to Section
9.4 and without the need for further approval by the City Council, if the Consultant's performance is satisfactory and it is in the best interest of the City.
3.3 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit D and incorporated herein by this reference.
3.4 Force Majeure. The time period(s) 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, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, (with the express exception of delays arising from the impact of COVID-19 and its variants to the extent such impact is foreseeable or should have reasonably been foreseeable), if Consultant shall within ten (10) days of the commencement of such delay notify City in writing of the causes of the delay.
City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of this Agreement pursuant to this Section.
ARTICLE 4. COORDINATION OF WORK
4.1 Consultant Representative. The Consultant Representative is Tiffany Fung, Signing Director, (714) 795-5407, [email protected], who is authorized to act on Consultant's behalf with respect to the work or services specified herein and to make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of the representative was a substantial inducement for City to enter into this Agreement.
Therefore, the representative 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. For purposes of this Agreement, the representative may not be replaced nor may their -4-
responsibilities be substantially reduced by Consultant without the express written approval of City.
4.2 City Representative. The City Representative is such person as designated by the City Manager or her designee. The City Representative shall be the primary person on behalf of City responsible for the administration of the Agreement. It shall be Consultant's responsibility to assure that the City Representative is kept informed of both the progress of the performance of the services as well as any decisions which must be made by City.
4.3 Approvals from City. City approvals or actions, pursuant to the authority of this Agreement, may be made (unless otherwise specified) either by the City Manager, the Finance Director, or by the City Representative (or by their respective delegates as provided for in writing).
4.4 Independent Contractor. Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Consultant, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall remain under 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 officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Consultant represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Consultant's exclusive control and direction.
No City employee benefits shall be available to Consultant, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Consultant or any officer, employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees' Retirement System, to be classified as other than an independent contractor for City, then Consultant shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Consultant, or any officer, employee, agent, or subcontractor Consultant used to provide services under this Agreement, is/are employees of City.
4.5 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. Therefore, without express written approval of City, Consultant shall not contract with any other entity to perform in whole or in part services required hereunder without express written approval of City, and neither this Agreement nor any interest herein may be transferred or assigned. No approved transfer shall release Consultant, or any surety or insured of Consultant, of any liability hereunder without express written consent of City. -5-
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages. Prior to commencement of any services under this Agreement, and without limiting Consultant's indemnification obligation to City, Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, for the duration of the Agreement, primary policies of insurance of the type and amounts below, issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by City, which shall cover all elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns of City. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's comensation. (a) Commercial General Liability Insurance. A policy of commercial general liability insurance, with coverage at least as broad as Insurance Services Office ("ISO") form CG 00 01, written on a per occurrence basis for bodily injury, personal injury and property damage. Defense costs must be paid in addition to limits. Coverage for an additional insured shall not be limited to its vicarious liability. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. Limits shall be no less than $1,000,000 per ocurrence for all covered losses and no less than $2,000,000 general aggregate.
(b) Worker's Comensation Insurance. A policy of worker's comensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Consultant in the course of carrying out the work or services contemplated in this Agreement.
(c) Automobile Liability. A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basıs covering bodily injury and property damage in an amount not less than $1,000,000 combined single limit for each acident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
(d) Professional Liability. Professional liability insurance appropriate to Consultant's profession. This coverage may be written on a "claims made" basis and must include coverage for contractual liability. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of City submit written evidence of this continuous coverage. Limits shall be no less than $1,000,000 per claim and no less than $1,000,000 general aggregate. -6-
(e) Cyber Liability. Cyber liability insurance appropriate to Consultant's profession and the services hereunder, written on a per occurrence basis, with limits not less than $1,000,000 per occurrence/loss, and $2,000,000 in the aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Consultant pursuant to this Agreement and shall include, but not be limited to, claims involving: infringement of intellectual property; copyright; trademark; invasion of privacy violations; data breach; electronic information theft, loss, damage, destruction, alteration or misuse; release of private information; extortion; and, network security. The policy shall provide coverage for breach response costs, regulatory fines and penalties, and credit monitoring expenses, with limits sufficient to respond to these obligations.
(f) Excess Liability and Umbrella Liability Insurance. Excess liability insurance and/or umbrella liability insurance may be used to satisfy the obligations herein. If excess liability insurance is used then the policy shall meet all the requirements herein and be at least as broad as the primary coverages set forth herein. Such policy shall: 1) include a drop down feature requiring the policy to respond if primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 2) be payable on behalf of wording as opposed to reimbursement; 3) have concurrency of effective dates with primary policies; 4) equiry femin, shat be intuireds undery polices hid, bly poide insureds, under primary policie.
Subcontractors. In the event Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, Consultant shall either: 1) include each subcontractor as insureds under its policies of insurance required herein; or, 2) Consultant shall, upon request of City, furnish to City all documentation, required in Article 5 for Consultant, for each subcontractor. All coverages for subcontractors shall include all of the requirements herein.
5.2 General Insurance Requirements.
(a) Proof of Insurance, Enforcement and Notice. No work or services under this Agreement shall commence until both Consultant has provided City with insurance certificates, endorsement forms and appropriate insurance binders evidencing the above insurance coverages, as well as said documentation is approved by City. City reserves the right to inspect complete, certified copies of, and endorsements to, all required insurance policies, at any time.
Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. In the event any insurance policy required under this Agreement is cancelled or amended (and the insurance policy is not replaced pursuant to subsection (b) below), or does not comply with Article 5, then: 1) City has the right but not the duty to obtain insurance required herein and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments; or, 2) City, notwithstanding any other provisions of this Agreement, may immediately terminate this Agreement. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required insurance policies. (b) Cancellation/Amendment. All of herein required policies of insurance shall provide the insurance may not be amended or cancelled by insurer or any Party hereto without providing thirty (30) calendar days prior written notice (with exception of ten (10) calendar days -7-
inor i er nice for nor came do comium so il, in the vent as of i polite or cancellation date, submit new evidence of insurance, or reinstatement of policy, in conformance with this Agreement to City.
Additional Insureds. The commercial general liability policy provided for in Section 5.1(a) and the automobile liability policy provided for in Section 5.1 (c) both shall name City and its elected and appointed officers, employees, agents and designated volunteers ("City Parties") as additional insureds and such coverage shall contain no special limitations on the scope of protection afforded to City and City Parties. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability, and policies of insurance shall not contain any cross-liability exclusions. (d) Primary, Subrogation, Contribution and Coverage. All of the above policies of insurance shall be primary insurance. The insurers (with exception of professional liability insurer) for above policies, Consultant and any subcontractors are all deemed hereof to waive all rights of subrogation and contribution they may have against City or City Parties, and their respective insurers, and all insurance policies required herein shall be endorsed to waive such rights. Any insurance maintained by City or City Parties will apply in excess of, and not contribute with, Consultant's insurance. If Consultant maintains broader coverage and/or higher limits than the minimum amounts provided herein, City requires and shall be entitled to the broader coverage and/or higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City and City Parties.
None of the coverages required herein will be in compliance with this Agreement if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Requirements of specific coverage features or limits contained herein are not intended as all inclusive, or to the exclusion of other coverage, or a waiver of any type. (e) Limitations, Self- Insured Retention and Deductibles. Consultant agrees that requirements of Article 5 shall not be construed as limiting in any way the extent to which Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant's activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant's indemnification liabilities as provided in Section 5.3. All insurance policies must specify that where the primary insured does not satisfy any self-insured retention, any additional insured may satisfy the self-insured retention (without impairment of obligation of primary insured under this Agreement to satisfy any self- insured retention). Any deductibles or self-insured retentions must be declared to and approved by City. At City's option, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City and City Parties, or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, attorney's fees, defense expenses and claims.
-8-
5.3 Indemnification.
(a) General Obligations. Consultant agrees, to the full extent permitted by law, to immediately indemnify, defend and hold harmless City and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns (each an "Indemnitee" and collectively, "Indemnitees") against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages or injuries to persons or property, demands, expenses, losses, costs, penalties, obligations, errors, omissions or liabilities of any kind that may be asserted or claimed by any person, firm or entity arising out of, pertaining to, incident to or in connection with any alleged acts, errors or omissions of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (each an "Indemnitor" and collectively, "Indemnitors") in connection with the performance of Consultant's Services, or arising from Indemnitors' reckless or willful misconduct, or arising from Indemnitors' negligent performance of or failure to perform the work, operations or activities provided herein, or any term, provision, covenant or condition of this Agreement, with such negligence or failure to perform to be determined by the City (herein "Claims or Liabilities"), and in connection therewith: 1) Consultant will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitees will reimburse and pay for all costs and expenses, including legal costs and attorneys' fees, incurred by Indemnitees in connection therewith; and, 2) Consultant will promptly pay and satisfy any judgment, award or decree rendered against Indemnitees, and reimburse Indemnitees for the cost of any settlement paid by Indemnitees, for any such Claims or Liabilities, and will save and hold Indemnitees harmless therefrom.
(b) Further Provisions. The indemnity obligation herein shall be binding on successors, assigns and heirs of Consultant and shall survive termination of this Agreement.
Consultant shall incorporate similar indemnity agreements as provided herein with its subcontractors, and if Consultant fails to do so Consultant shall be fully responsible to indemnify City hereunder therefor. Failure of City and/or City Parties (collectively "City" for solely this Section 5.3(b))) to monitor compliance with any of the indemnification provisions herein shall not be a waiver hereof. The indemnification provisions herein do not apply to claims or liabilities occurring as a result of City's sole negligence or willful misconduct, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnification provided herein includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services hereunder. Payment of invoices by City is not a condition precedent to enforcement of the indemnity obligation herein. In the event of any dispute between Consultant and City, as to whether liability arises from the sole negligence or willful misconduct of City, Consultant will be obligated to pay for City's defense until such time as a final judgment has been entered adjudicating City as solely negligent or responsible for willful misconduct.
Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney's fees, expert fees and costs of litigation. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any -9-
reimbursement or indemnification arising under Section 5.3 of this Agreement. Such offset, if any, does not satisfy any amount, greater than the offset, due to City from Consultant. (c) Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law (within the limitations, as applicable, of Civil Code section 2782.8), Consultant shall indemnify, defend and hold harmless Indemnitees against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all Claims and Liabilities, consistent with all obligations provided for in this Section 5.3, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services under this Agreement.
ARTICLE 6. RECORDS, REPORTS AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder ("books and records") as shall be necessary to perform the services required by this Agreement and enable City to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles (and, as applicable, maintained also in accordance with requirements of Labor Code section 1776), shall be complete and detailed, and shall be readily accessible. City shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained either for a period of no less than three (3) years following completion of the services hereunder, or for such period of time as required by applicable law, whichever period of time is longer. City shall have access to such books and records in the event any audit is required. Consultant shall fully cooperate with City in providing access to any and all Consultant records and documents if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
Reports. Consultant shall periodically submit written reports to City Representative concerning performance of services, upon request, and/or as necessary for City to be informed of both performance of services as well as any decisions which must be made by City.
Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials ("documents and materials") prepared (regardless of whether complete or incomplete) by Consultant, its officers, employees, agents and subcontractors in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of City and/or upon the termination of this Agreement, 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, use, reuse, or assignment of the documents and materials hereunder. Consultant may retain copies of such documents and materials under express condition that Consultant agrees such documents and materials are the sole property of City. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, with respect to any Consultant documents and materials that may qualify as -10-
"works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for City.
6.4 Confidentiality and Release of Information. All information gained or work product produced by Consultant in its performance of this Agreement shall be considered confidential, unless such information is in the public domain prior to such gain or production.
Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from City. No news releases, including the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant immediately gives City notice of such court order or subpoena. If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Consultant's conduct. As concerning, regarding or related to, in any way, this Agreement and the work performed thereunder: a) Consultant shall immediately notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party; b) City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding; and, c) Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant, however, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law. This Agreement shall be interpreted, construed and governed 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 Orange, State of California, or any other appropriate court in such county, and Consultant agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.
District Court, venue shall lie exclusively in the Central District of California, Southern Division, in the County of Orange, State of California.
7.2 Suspension, or Termination, Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in Section 7.4 for termination for cause. City reserves the right to terminate or suspend this Agreement, or any portion hereof, at any time, for any reason, with or without cause, upon ten (10) days' notice to Consultant, except that where termination or suspension is due to the fault of Consultant, the period of notice may be such shorter time as determined by City. Upon receipt of any notice of termination or suspension, Consultant shall immediately cease all services hereunder, unless the notice -11-
provides otherwise, or except such as specifically approved by City. Upon submittal of an invoice consistent with Section 2.2, Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination or suspension and for any services authorized by City thereafter in accordance with the Schedule of Compensation, or such as may be approved by City, except as provided in Section 7.5. In event of termination, or suspension, without cause pursuant to this Section, there is no need to provide opportunity to cure pursuant to Section 7.3.
Default of Consultant and Opportunity to Cure. In the event that Consultant is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively ten (10) days, but may be extended, or reduced, if circumstances warrant, as determined by City. During the period of time that Consultant is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices, without liability for interest. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default by conclusion of noticed timeframe, City may immediately both terminate this Agreement with notice to Consultant as well as pursue the remedy in Section 7.4, without prejudice to any other remedy to which City may be entitled at law, in equity or under this Agreement. Any failure on the part of City to give notice of Consultant's default shall not be deemed to result in a waiver of City's legal rights or any rights arising out of any provision of this Agreement.
7.4 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 7.3, take over the 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 set-off or partial payment of the amounts owed City therefor.
7.5 Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.6 Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this -12-
Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. 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. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement of this Agreement imposes no additional obligations on City nor does it waive any rights hereunder. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
7.7 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 different times, of any other rights or remedies for the same default or any other default by the other Party.
7.8 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.9 Attornevs' Fees. If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and a Party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, consultants' fees, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. INDIVIDUAL LIABILITY, CONFLICTS AND NON-DISCRIMINATION
8.1 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 of 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.
8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of City. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City, in its sole discretion, shall -13-
determine the existence of a conflict of interest and may terminate this Agreement in the event such a conflict of interest exists upon sending Consultant written notice describing the conflict.
No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects their financial interest or the financial interest of any corporation, partnership or association in which they are, 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 other consideration for obtaining this Agreement.
8.3 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, gender, sexual orientation, marital status, national origin, ancestry or other protected class 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, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices. Any notice or other communication either Party desires or is required to give to the other Party or any other person in regards to this Agreement must be in writing and may be given either by (i) personal service, (i) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, in the case of City addressed to Finance Director at City of Laguna Niguel, 30111 Crown Valley Parkway, Laguna Niguel, CA 92677, and in the case of Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.
9.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties as to the Agreement.
It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all prior and contemporaneous negotiations, arrangements, agreements and understandings, if any, between the Parties, concerning this Agreement, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing, approved by City and Consultant, and consistent with the Laguna Niguel Municipal Code. - 14-
Severability. Should a portion of this Agreement be declared invalid or unenforceable by a judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 No Undue Influence. Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to remedies in Section 7.4 and any and all remedies at law or equity.
Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (11) they are dul! authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing thi [SIGNATURES ON FOLLOWING PAGE]
-15-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF LAGUNA NIGUEL, a California
municipal corporation
Tamara S. Letourneau, City Manager
ATTEST:
Marissa J. Asistin, City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
Scott C. Smith, City Attorney
CONSULTANT:
CliftonLarsonAllen LIP, a Limited Liability
Partnership.
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Consultant is a corporation, with one signature required fron each of the following groups: 1) Chairperson of the Board, President or any Vice President; and 2) Secretary any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. (Cal. Corp. Code § 313.)
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS,
ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO THE CONSULTANT'S BUSINESS ENTITY.
-16-
EXHIBIT A
SCOPE OF SERVICES
I. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
II. Consultant will perform services, described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts), and as specified in more detail below.
1. Consultant shall perform all services described in the Consultant's Proposal and the City' Request for Proposal with the exception of the two optional additional reports 1) Cities Financial Transactions Report to the State Controllers Office, and 2) Annual Street Report to the State Controller's Office as detailed on page 27 of the Consultant's proposal and page 6 of the Request for Proposal.
A(1)
EXHIBIT B
SPECIAL REQUIREMENTS
(Superseding Agreement Template)
(amend template language)
A. Section 1.1, "Scope of Services," shall be amended to read in its entirety (new text is identified in bold italics, deleted text in strike through) as follows:
In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit A and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants: a) all services set forth in the Scope of Services will be performed in a competent and satisfactory manner; b) all materials used for services will be both of good quality as well as fit for the purpose intended; and, c) Consultant shall follow the highest professional standards and practices in performing the services required hereunder applicable professional standards.
B. Section 5.3(a), "General Obligations," shall be amended to read in its entirety (new text is identified in bold italics, deleted text in strike through) as follows:
Consultant agrees, to the full extent permitted by law, to immediately indemnify, defend and hold harmless City and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns (each an "Indemnitee" and collectively, "Indemnitees") against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages or injuries to persons or property, demands, expenses, losses, costs, penalties, obligations, errors, omissions or liabilities of any kind that may be asserted or claimed by any person, firm or entity directly arising out of, directly pertaining to, directly incident to or in connection directly connected to with any alleged acts, errors or omissions of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (each an "Indemnitor" and collectively, "Indemnitors") in connection with the performance of Consultant's Services, or arising from Indemnitors' reckless or willful misconduct, or arising from Indemnitors' grossly negligent performance of or failure to perform the work, operations or activities provided herein, or any term, provision, covenant or condition of this Agreement, with such negligence or failure to perform to be determined by the City (herein "Claims or Liabilities"), and in connection therewith: 1) Consultant will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitees will reimburse and pay for all costs and expenses, including legal costs and attorneys' fees, incurred by Indemnitees in connection therewith; and, 2) Consultant will promptly pay and satisfy any judgment, award or decree rendered against Indemnitees, and reimburse Indemnitees for the cost of any settlement paid by Indemnitees, for any such Claims or Liabilities, and will save and hold Indemnitees harmless therefrom.
B(1)
C. Section 6.1, "Records," shall be amended to read in its entirety (new text is identified in bold italics, deleted text in strike through) as follows:
Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder ("books and records") as shall be necessary to perform the services required by this Agreement and enable City to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles (and, as applicable, maintained also in accordance with requirements of Labor Code section 1776), shall be complete and detailed, and shall be readily accessible. City shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained either for a period of no less than three (3) years following completion of the services hereunder, or for such period of time as required by applicable law, whichever period of time is longer. City shall have access to such books and records in the event any audit is required. Consultant shall fully cooperate with City in providing access to any and all Consultant records and documents if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act. For the avoidance of doubt, books and records does not include Consultant's workpapers which are proprietary information and access is restricted.
D. Section 6.3, "Ownership of Documents," shall be amended to read in its entirety (new text is identified in bold italics, deleted text in strike through) as follows:
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials ("documents and materials") prepared (regardless of whether complete or incomplete) by Consultant, its officers, employees, agents and subcontractors in the performance of this Agreement which have been paid for in full shall be the property of City and shall be delivered to City upon request of City and/or upon the termination of this Agreement, 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, use, reuse, or assignment of the documents and materials hereunder. Consultant may retain copies of such documents and materials under express condition that Consultant agrees such documents and materials are the sole property of City. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, with respect to any Consultant documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for City. For the avoidance of doubt, documents and materials does not include Consultant's workpapers which are proprietary information and access is restricted.
B(2)
EXHIBIT C
SCHEDULE OF COMPENSATION
I. City will compensate Consultant for the services performed upon submission of a valid invoice, as described in Section 2.2.
The total compensation for the services identified in Exhibit A shall not exceed the aggregate of the Contract Sums, as described in Section 2.1 of this Agreement, and such Contract Sums are defined below for each of the Services Time Periods.
III. The total compensation for each Services Time Period is listed below. Funds available or each specific Services Time Period may not be transferred between the Services Time Periods listed below.
SERVICES TIME PERIODS
1. Time Period - Completion of auditing services for fiscal year ending June 30, 2024.
2. Specific Sum - Fifty-Five Thousand Eight-Hundred Sixty-Four Dollars ($55,864)
3. Contingency Sum - Zero Dollars ($O)
4. Contract Sum - Fifty-Five Thousand Eight-Hundred Sixty-Four Dollars ($55,864)
1. Time Period - Completion of auditing services for fiscal year ending June 30, 2025.
2. Specific Sum - Fifty-Seven Thousand Eight-Hundred Ten Dollars ($57,810)
3. Contingency Sum - Zero Dollars ($O)
4. Total Sum - Fifty-Seven Thousand Eight-Hundred Ten Dollars ($57,810)
1. Time Period - Completion of auditing services for fiscal year ending June 30, 2026.
2. Specific Sum - Fifty-Nine Thousand Eight-Hundred Forty Dollars ($59,840)
3. Contingency Sum - Zero Dollars ($O)
4. Total Sum - Fifty-Nine Thousand Eight-Hundred Forty Dollars ($59,840) IV. Consultant will be compensated for services provided pursuant to this Agreement in accordance with description in Consultant's Proposal.
C(1)
EXHIBIT D
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all services and deliver all work products timely in accordance with the schedule described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts).
D(1)