Government agencies employ varying methods of ensuring the duties of the Office of the Auditor are fulfilled, ranging from employing an individual to utilizing a firm. The City has utilized both of these options in fulfilling the duties.
DISCUSSION:
The Office of the City Auditor has been vacant since October 2018. The Council opened a search through the executive recruitment firm Neher & Associates. However, after an extended period, the recruitment was unsuccessful. A Charter review began in 2019 and due to the pandemic, was completed in 2022. Recommendations were added to the ballot for the November 2022 election that amended the qualifications candidates must possess, making recruitments more inclusive of varying certifications and experience. This aimed to ensure a larger candidate pool. Given these anticipated changes, it was prudent for the City to hold off the recruitment to ensure the candidates had the proper qualifications.
In March 2023, Council directed staff to initiate a request of proposals for an executive recruiter in order to launch a national search for candidates. The City currently holds contracts with five recruitment firms, which was approved by Council by Resolution No. 2021-347 on September 7, 2021. Staff requested quotes and three proposals were received. Ralph Anderson and Associates was selected based on their extensive experience with national high-level executive searches.
Staff was also directed to initiate a Request for Proposals (RFP) for firms capable of serving the needs of the City regarding City Auditing services. The RFP was launched simultaneously with the executive search. This would allow all alternatives to be evaluated and considered.
The executive recruitment was successful in producing four qualified candidates, of which three accepted an invitation to interview. The RFP produced three qualified firms, all of which accepted an invitation to interview. Interviews were conducted on July 10, 2023, and evaluated on their experience, expertise, and ability to fulfill the needs of the City.
Upon completion of the interviews of both individuals and the consulting firms, the Council determined that the firm, Moss Adams, LLP, Stockton, CA, was the most qualified and selected Collen Rozillis to be appointed to the position of City Auditor. Section 902.1 of the Modesto City Charter establishes the required qualifications of the City Auditor, which consists of adequate professional proficiency for the job, demonstrated by relevant certifications such as Certified Internal Auditor (CIA), Certified Public Accountant (CPA), or Chartered Accountant (CA), or have an advanced degree and at least five (5) years of experience in government auditing, evaluation, or analysis. and Ms. Rozillis satisfies all requirements. The Charter does not require the City Auditor to be an employee of the City. Similar to the Office of the City Attorney, the City Council may choose to hire a qualified firm to provide city auditor services and designate a member of the firm to serve as the City Auditor. Ms. Rozillis may assign other qualified employees of Moss Adams to perform auditing services, but Ms. Rozillis will remain responsible for ensuring that all services are provided in accordance with the requirements of the agreement and the City Charter. Moss Adams may not assign any other individual to serve as the City Auditor other that Colleen Rozillis without the prior approval of the City Council.
The Agreement will remain in effect until terminated. The City Council may terminate the agreement at any time, for any reason.
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City Council, September 12, 2023
City Auditing Services Agreement
In accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the Agreement is for Professional Services and, therefore, exempt from the bidding requirement. The approval for the City Auditing services to Moss Adams conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing Professional Services for City Auditing.
FISCAL IMPACT:
The total cost for this agreement will not exceed $250,000 annually for all services. Funding for these services will be absorbed in the current budget.
COMMITTEE RECOMMENDATION:
This item was not presented to a committee.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the appointment of Colleen Rozillis, as City Auditor, and approving an Agreement for Auditing Services between the City of Modesto and Moss Adams, LLP, Stockton, CA; for an amount not to exceed $250,000 annually and authorizing the Mayor, or her designee, to execute the Agreement.
Christina Alger, Director of Human Resources
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. City Auditor and Auditing Services Agreement
3. Exhibit A-Moss Adams Proposal
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1 Reso 2023-?
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE APPOINTMENT OF COLLEEN ROZILLIS
AS CITY AUDITOR, AND APPROVING AN AGREEMENT FOR AUDITING
SERVICES BETWEEN THE CITY OF MODESTO AND MOSS ADAMS, LLP, STOCKTON, CA FOR AN AMOUNT NOT TO EXCEED $250,000 ANNUALLY;
AND AUTHORIZING THE MAYOR, OR HER DESIGNEE, TO EXECUTE THE
AGREEMENT
WHEREAS, Section 900 of the Modesto City Charter provides that the City Auditor shall be appointed by and serve at the pleasure of the City Council of the City of Modesto, and
WHEREAS, in March 2023 the City Council began a recruitment for individual to serve as City Auditor, while a simultaneously initiate a Request for Proposals (RFP) for firms capable of serving the needs of the City regarding City Auditing services, and WHEREAS, the City Council interviewed three individuals and three firms qualified to serve as City Auditor, and
WHEREAS, the City Council evaluated the individuals and firms based on their experience, expertise, and ability to fulfill the needs of the City; and WHEREAS, upon completion of the interviews of both individuals and the consulting firms, the Council determined that the firm, Moss Adams, LLP, Stockton, CA, was the most qualified and selected Collen Rozillis to be appointed to the position of City Auditor, and
WHEREAS, the Charter does not require the City Auditor to be an employee of the City, and the City Council may choose to hire a qualified firm to provide city auditor services, and designate a member of the firm to serve as the City Auditor; and #28..
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2 Reso 2023-?
WHEREAS, Moss Adams may not assign any other individual to serve as the City Auditor other that Colleen Rozillis without the prior approval of the City Council; and
WHEREAS, the City Council desires to appoint Colleen Rozillis as City Auditor effective September 12, 2023, and enter into an Agreement with Moss Adams, LLP, for auditor services, and
WHEREAS, in accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the Agreement is for Professional Services and, therefore, exempt from the bidding requirement. The approval for the City Auditing services to Moss Adams conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing Professional Services for City Auditing.
NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Modesto hereby appoints Colleen Rozillis to serve as City Auditor for the City of Modesto, effective September 12, 2023.
BE IT FURTHER RESOLVED that the Council hereby approves an Agreement for auditing services between the City of Modesto and Moss-Adams, LLP for an amount not to exceed $250,000 per year.
BE IT FURTHER RESOLVED that the Mayor, or her designee, is hereby authorized to execute the Agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th’day of September by ??? who moved its adoption, which motion being duly seconded by ??? , was upon roll call carried and the resolution adopted by the following vote:
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3 Reso 2023-?
AYES: Councilmembers: ???
NOES: Councilmembers: ???
ABSENT: Councilmembers: ???
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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AGREEMENT FOR CITY
AUDITOR AND AUDITING
SERVICES
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this ______day of September, 2023, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and MOSS-ADAMS LLP, a Washington limited liability partnership, hereinafter referred to as "Firm".
This Agreement is made with regard to the following recitals:
A. The Office of the City Auditor is established by Section 902.1 of the Modesto City Charter, and the duties of such office are set forth therein.
B. The City Council is hiring a City Auditor to plan, organization, direct and review the activities and operations for City Internal Auditing Services including: Conduct financial, operational, and performance audits to determine compliance with laws and the appropriate utilization of resources including public funds, personnel, property, equipment, and space to ensure efficiency of operations; review system of internal controls confirming the adequacy and effectiveness of the controls and that work complies with applicable professional standards; identify causes of inefficiencies or uneconomical practices including inadequacies in management information systems, internal and administrative procedures, organizational structure, use of resources, allocation of personnel, purchasing polices, and equipment; consult with operating departments to recommend appropriate improvements to procedures, review progress on implementing the recommended improvements, and ensure action is taken; conduct research, analysis, and special studies on complex and sensitive administrative and policy issues; prepare reports with recommendations for appropriate action; provide presentations on annual audit plans and results of audits to the Audit Committee and provide timely information and report progress and #28..
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results of audits to City Council; and carry out such other powers and duties as set forth in Section 902.1 of the Modesto City Charter.
C. The City Council conducted a competitive recruitment to identify the individual or entity most qualified and best suited to fulfill the duties of the City Auditor, and desires to retain Firm to perform services as City Auditor. Colleen Rozillis, an employee of the Firm, shall be designated as the City Auditor.
D. Firm is qualified, willing and able to provide the services as City Auditor.
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Firm shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to within Exhibit "A" or "project".
The Firm shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until terminated in accordance with the provisions of the termination clause in this Agreement.
Firm shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Firm notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Firm shall diligently proceed with the preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
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City shall pay firm and hourly rate of pay is TWO-HUNDRED AND TWENTY-FIVE DOLLARS PER HOUR ($225) and an annual amount not to exceed TWO_HUNDRED FIFTY THOUSAND DOLLARS ($250,000) as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit "A" and for performance by Firm of all of its duties and obligations under this Agreement.
Firm shall invoice City not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All undisputed invoices shall be paid in full the following payment terms within thirty days after receipt of a properly prepared invoice, City will pay Firm “Net 30 terms via CITY’s ePay Program.” The City is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
CITY department/division name and address
Billing period
Service hours worked by day and week by individual
Total
Any other information reasonably requested by City
4. OBLIGATIONS OF FIRM.
Throughout the term of this Agreement, Firm shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. Firm has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Firm will follow the applicable industry standard current, generally accepted and #28..
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professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. APPOINTED CITY AUDITOR.
Colleen Rozillis is employed by Firm and will serve as the City Auditor pursuant to the Modesto City Charter Section 902.1, a copy of which is attached hereto and referred to herein as Exhibit “A” and incorporated herein by reference. As City Auditor, Colleen Rozillis will be responsible for the performance of the services referred to in this Agreement and for performing the services identified in the City Charter. Ms. Rozillis will file a Statement of Economic Interest (Form 700) both at the start and end of this Agreement, as well as annually in accordance with applicable regulations of the Fair Political Practices Commission. Colleen Rozillis may assign other qualified employees of the Firm to perform work under this Agreement, except that Colleen Rozillis shall remain responsible for ensuring that all services are provided in accordance with the requirements set forth herein. Firm may not assign any other individual to serve as the City Auditor other that Colleen Rozillis without the prior approval of the City Council. City has entered into this Agreement in reliance on those presentations by Firm.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All final reports, and other completed deliverables created under this Agreement and delivered to the City, hereunder excluding any Firm Material (defined below) contained or embodied therein (“Deliverables”) shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City for City’s internal use only (consistent with the purpose of the particular Services), and (ii) City may not alter or amend any Deliverables issued under Firm's name. Firm may retain a copy of Deliverables for archival purposes. Firm shall own: (i) its working papers and any engagement documentation; and (ii) any #28..
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general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, materials, or other intellectual property which may have been discovered, created, received, or developed by Firm either prior to or as a result of providing services under the Agreement (collectively, "Firm Materials"). Firm retains all intellectual property rights in the Firm Materials (including any developments, improvements, and knowledge generated during or as a result of the performance of the project), and in any working papers compiled in connection with the project.
Upon payment for particular project and subject to the other terms of this Agreement, City may use any Firm Materials that are included in any Deliverables solely to the extent necessary to use the Deliverables.
Notwithstanding anything to the contrary in this Agreement, Firm and its personnel are free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of this Agreement so long as they acquire and apply such information without any unauthorized use or disclosure of confidential or proprietary information of City.
Title to Data
All materials, documents, data or information provided by the City and furnished to Firm in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Firm after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
Each party agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from the other party, and in the case of the City, through the City Manager.
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8. INTEREST OF CONTRACTOR.
Firm warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Firm warrants that, in performance of this Agreement, Firm shall not employ any person having any such interest. Firm understands that, if this Agreement is made in violation of Government Code § 1090 et seq., the entire Agreement is void and Firm will not be entitled to any compensation for services performed. Firm agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
9. AMENDMENTS.
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Firm to modify the scope of services provided for under this Agreement. This Agreement, including the Exhibits attached hereto, may be amended only by a writing signed by both Parties. City will not be responsible to pay any charges Firm may incur in performing services not identified in Exhibit ‘A’ unless first authorized by the City in writing.
10. INDEPENDENT CONTRACTOR.
All acts of Firm, its agents, officers, and employees and all others acting on behalf of Firm relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Firm, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City. Firm has no authority or responsibility to exercise any rights or power vested in the City. No agent, officer, or employee of the City is to be considered an employee of Firm. It is understood by both Firm and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
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Firm, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
Firm shall determine the method, details and means of performing the work and services to be provided by Firm under this Agreement. Firm shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Firm in fulfillment of this Agreement. Firm has control over the manner and means of performing the services under this Agreement. Firm is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Firm has the responsibility for employing other persons or firms to assist Firm in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Firm, such persons shall be entirely and exclusively under the direction, supervision, and control of Firm. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Firm.
It is understood and agreed that as an independent contractor and not an employee of City neither the Firm or Firm's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
It is further understood and agreed that Firm must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Firm's personnel.
As an independent contractor, Firm hereby indemnifies and holds City harmless from any and all third-party claims that may be made against City based upon any contention by an employee of Firm that an employer-employee relationship exists between such #28..
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employee and the City by reason of this Agreement.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance.
12. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in the contract, Firm shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement.
13. NOTICES.
Any and all notices permitted or required to be given hereunder shall be deemed duly given and effective (1) upon actual delivery, if delivery is by hand; (2) overnight courier service which obtains confirmation of delivery ;or (3) five (5)days after delivery into the United States mail if delivery is by postage paid registered or certified (return receipt requested) mail. Each such notice shall be sent to the parties at the address respectively indicated below or to any other address as the respective parties may designate from time to time.
FOR FIRM: Name: Moss Adams LLP
Address: 999 Third Avenue, suite 2800
Seattle, WA 98104
Attn: Mark Steranka
With copies to: Moss Adams LLP
999 Third Avenue, suite 2800
Seattle, WA 98104
Attn: Legal Department
FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Attention: Christina Alger, Human
Resources Director
Phone: (209) 571-5126
14. INSURANCE REQUIREMENTS.
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The Firm shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies. (a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent Firms and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.
Upon failure of the Firm to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith #28..
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declared suspended or terminated. Failure of the Firm to obtain and/or maintain any required insurance shall not relieve the Firm from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Firm concerning indemnification. The City, its agents, officers, officials, employees, and volunteers shall be named as an additional insured (blanket endorsement acceptable) on Firm’s Commercial General Liability and Automobile Liability policies. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, officials, employees, and volunteers for losses arising from work performed by Firm for the City. The Firm's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A-:VII or with approval of the Risk Manager. The Firm must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.
FIRM shall provide CITY with blanket endorsements evidencing proof of the CITY’s additional insured status as to both the general liability and automobile liability insurance policies. In addition, FIRM shall provide CITY with a Workers Compensation subrogation waiver by way of a blanket endorsement. All endorsements referenced above must include the applicable policy number.
For any claims related to this project, the FIRM’S insurance coverage shall be primary insurance as respects the Entity, its agents, officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its agents, officers, officials, employees, and volunteers shall be excess of the FIRM’S insurance and shall not contribute with it.
15. TERMINATION OF AGREEMENT.
Termination by Firm
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Should City default in the performance of this Agreement or materially breach any of its provisions, or for any other cause, at its option Firm may terminate this Agreement by giving written notice to City, provided that City will have thirty (30) days to cure such breach.
The termination date shall be the effective date of the notice if City fails to cure. For the purposes of this section, material breach of this Agreement shall include but not be limited to any of the following: failure to cooperate reasonably with Firm, willful destruction of Firm's property by City, dishonesty or theft. Firm may terminate this Agreement, without cause, upon One Hundred Eighty (180) days prior notice to the City.
Termination by City
The City may terminate the Firm's performance under the Agreement, with or without cause, and in its sole and absolute discretion, in accordance with the requirements of Section 900 of the Modesto City Charter, as it may be amended from time to time. The City shall endeavor to provide the Firm with consultation with the City prior to termination.
Termination for Failure to Make Agreed-Upon Payments
Should City fail to pay Firm all or any part of the payments set forth in this Agreement on the date due, at its option Firm may terminate this Agreement if the failure is not remedied within thirty (30) days after Firm notifies City in writing of such failure to pay. The termination date shall be the effective date of the notice.
Voluntary Termination
The parties may terminate this contract upon mutual written Agreement.
In the Event of Termination
If this Agreement is terminated pursuant to this Paragraph, Firm shall cease all its work on the project as of the termination date and shall see to it that its employees, #28..
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subcontractors and agents are notified of such termination and cease their work. If City so requests, and at City's cost, Firm shall provide sufficient oral or written status reports to make City reasonably aware of the status of Firm's work on the project. Further, (i) if City so requests, and at City's cost, Firm shall deliver to City any Deliverables, if any, which have been produced to date.
If the Agreement is terminated pursuant to any of the subsections contained in this paragraph, City will pay Firm an amount based on the percentage of work completed on the termination date, this percentage shall be determined by City in its sole discretion. If the Agreement is terminated pursuant to the subparagraph entitled Termination by City for Default of Firm, Firm understands and agrees that City may, in City's sole discretion, refuse to pay Firm for that portion of Firm's services which were performed by Firm on the project prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.
16. INDEMNITY.
The Firm shall hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all third party claims, losses, liabilities, judgments or damages arising from bodily injury to person or damage to real or tangible property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, to the extent caused by the negligent or intentional acts or omissions of Firm, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement. In order to seek or receive indemnification hereunder, City shall provide Firm with prompt written notice of such claim and cooperate with Firm in handling the claim. Firm Adams shall be entitled to control the handling of such claim and to defend or settle any such claim, in its sole discretion, with counsel reasonably acceptable to the City.
Firm's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Firm to procure and maintain a policy of insurance. #28..
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In the event that Firm or any employee, agent, or subcontractor of Firm providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Firm shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Firm or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
17. DISPUTE RESOLUTION.
Venue for all claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
18. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Firm and City. Additional or new terms contained in this Agreement which vary from Firm's proposal are controlling and are deemed accepted by Firm by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
19. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent #28..
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jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
20. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
21. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all information regarding Firm's charges to City under this Agreement.
Firm agrees to retain information regarding charges under this Agreement for a period of four (4) years following the date of final payment for Firm services. City's representative shall have the right to reproduce any of the aforesaid documents.
22. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
23. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
24. COMPLIANCE WITH LAWS.
Firm shall require compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Firm shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
25. CITY BUSINESS LICENSE.
Firm will have a City of Modesto business license.
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26. NO THIRD PARTY BENEFICIARY
City and Firm are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons.
27. LIMITATIONS
(A) EXCEPT FOR THE FIRM’S INDEMNITY OBLIGATIONS, THE TOTAL
LIABILITY OF FIRM, ITS OFFICERS, DIRECTORS, PARTNERS, PRINCIPALS, MEMBERS, EMPLOYEES, SUBCONTRACTORS, AND AGENTS (COLLECTIVELY, “FIRM PERSONS”)
TO CITY OR ANY THIRD PARTY FOR ANY AND ALL DAMAGES WHATSOEVER ARISING
OUT OF THIS AGREEMENT FROM ANY OTHER CAUSE, INCLUDING BUT NOT LIMITED
TO NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT,
OR BREACH OF WARRANTY SHALL NOT, IN THE AGGREGATE, EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000). THIS LIMITATION WILL NOT APPLY TO THE EXTENT LOSSES ARE CAUSED BY FIRM FRAUD OR WILLFUL MISCONDUCT.
(B) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES IN CONNECTION WITH OR OTHERWISE ARISING OUT OF THIS AGREEMENT WEVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under the authority of Resolution No. ____, adopted by the Council of the City of Modesto on the __day of _______________, 2023, and Moss Adams caused this Agreement to be duly executed. 5437824.1
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9/12/2023 4:45:00 PM
OFFICE OF THE CITY CLERK
NOTICE OF SPECIAL MEETING
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
TUESDAY, SEPTEMBER 12, 2023 AT 4:45 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.
Any and all of the following agenda items are subject to action being taken by the Modesto City Council.
The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:
CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Stephanie Lopez v. City of Modesto, et al.
Superior Court of California, County of Stanislaus
Stanislaus County Case No.: CV-21-00925
BY ORDER OF THE CHAIR
/S
Diane Nayares-Perez, City Clerk
Posted pursuant to Government Code Section 54956 on the bulletin board at Tenth Street Place on at by
date time signature
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