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Contract No. 10929(CCS)
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”), entered into as of _________________(“Execution Date”), by and between the City of Santa Monica (“City”) and MOSS ADAMS LLP (“MOSS ADAMS LLP”), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. MOSS ADAMS LLP is qualified to do business, and is doing business, in the State of California. MOSS ADAMS LLP represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.
C. The City and MOSS ADAMS LLP now desire to enter into an agreement for MOSS ADAMS LLP to provide professional services to the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term.
1.1 Initial Term. The initial term of this Agreement (the “Initial Term”) shall begin on the Execution Date and terminate one year after the Execution Date, unless sooner terminated in accordance with Section 14.
1.2 Options to Extend. The City has four options to renew, on the mutual agreement of the City and MOSS ADAMS LLP, to extend the term of this Agreement on all the same terms and conditions, for additional one-year periods (each, an “Extension Term”). Each option to renew (each, a “Letter Renewal”) shall be administratively exercised by letter correspondence.
2. MOSS ADAMS, LLP Services. MOSS ADAMS LLP will perform all of the services (“Services”) described in Exhibit A, Scope of Services. MOSS ADAMS LLP will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to MOSS ADAMS LLP any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
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3.3 Promptly examine and render findings on all documents submitted for staff review by MOSS ADAMS LLP.
4. Compensation. The City will compensate MOSS ADAMS LLP for the Services performed during the Initial Term in an amount not to exceed $150,000, as set forth in Exhibit B. The total amount of compensation for Services performed during the initial Term and all Extension Terms (if any) shall not exceed $750,000, as set forth in Exhibit B.
5. Invoices. MOSS ADAMS LLP will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
Administration Finance Department
City of Santa Monica
1717 4th Street Suite 250
Santa Monica, California 90401
Attention: Gigi Decavalles-Hughes
Re: Contract No. 10909
with a copy to:
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No.
6.2 All notices, demands, requests or approvals to MOSS ADAMS LLP:
MOSS ADAMS LLP
999 Third Avenue Suite 2800
Seattle, WA 98104, USA
Attention: Mark Sterenka
Tel: 206-302-6409
Re: Contract No. 10909
With a copy to: General Counsel, at the same address.
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
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Neither the City nor its officers or employees will have any control over the conduct of MOSS ADAMS LLP or any of MOSS ADAMS LLP’s agents, employees, or subconsultants, except as otherwise provided in this Agreement.
8. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement.
This Agreement may be modified only by written agreement signed by City and MOSS ADAMS LLP and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, MOSS ADAMS LLP must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by MOSS ADAMS LLP or MOSS ADAMS LLP’s agents, representatives, employees or subconsultants for the duration of this Agreement. MOSS ADAMS LLP must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 Indemnification. As to MOSS ADAMS LLP’s Services produced under this Agreement, MOSS ADAMS LLP agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, “City”) from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney’s fees, or payments for injury to any person or property (collectively, “Losses”) to the extent caused by or claimed to be caused by the acts, errors and/or omissions of MOSS ADAMS LLP, or MOSS ADAMS LLP’s employees, agents, officers, and subconsultants. Notwithstanding the foregoing or anything to the contrary in this Agreement, and solely with respect to claims related to the rendering of professional services under this contract, MOSS ADAMS LLP’s obligations set forth above shall only apply to the extent the Losses arise or result from the negligent acts, errors, or omissions of MOSS ADAMS LLP, its employees or agents. Notwithstanding MOSS ADAMS LLP’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from MOSS ADAMS LLP, if City chooses to do so, to the extent MOSS ADAMS LLP fails to conduct a defense as set forth above.
10.2 Enforcement Costs. MOSS ADAMS LLP agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
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11. Prohibition Against Transfers.
11.1 MOSS ADAMS LLP may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City’s consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of MOSS ADAMS LLP or of any general partner or joint venturer or syndicate member of MOSS ADAMS LLP, if a partnership or joint venture or syndicate exists, which results in changing the control of MOSS ADAMS LLP, will be construed as an assignment of this Agreement.
Control means 50% or more of the voting power of the corporation.
12. Permits and Licenses. MOSS ADAMS LLP, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If MOSS ADAMS LLP fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City’s written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to MOSS ADAMS LLP.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days’ written notice to MOSS ADAMS LLP.
Upon termination of this Agreement pursuant to this Section 14.2, City will pay MOSS ADAMS LLP any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. MOSS ADAMS LLP must comply with all laws of the State of California and the United States, and all ordinances, rules, and regulations enacted or issued by City.
16. Discrimination. MOSS ADAMS LLP may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. MOSS ADAMS LLP may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
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18. Records.
18.1 MOSS ADAMS LLP must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. MOSS ADAMS LLP must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 MOSS ADAMS LLP must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles. MOSS ADAMS LLP must clearly identify all records and make them readily accessible to the City. At the City’s request, MOSS ADAMS LLP must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records, provided such access does not violate any applicable license terms.
18.3 MOSS ADAMS LLP must allow the City to have free access to MOSS ADAMS LLP’s books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit MOSS ADAMS LLP’s records, and MOSS ADAMS LLP agrees to cooperate with any examination or audit of its records. MOSS ADAMS LLP agrees to pay the amount of any undisputed overcharge.
19. Work Product; Reports.
19.1 Any final reports and other completed deliverables prepared or caused to be prepared by MOSS ADAMS LLP or any subconsultant for this Agreement and provided to the City, excluding any MOSS ADAMS LLP Material (defined below) contained or embodied therein will be the exclusive property of City.
No work product given to or prepared by MOSS ADAMS LLP or any subconsultant pursuant to this Agreement may be made available to any individual or organization by MOSS ADAMS LLP without prior written approval by City. MOSS ADAMS LLP shall own: (i) its working papers and any engagement documentation; and (ii) any accounting-related general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, materials or other intellectual property or information which may have been discovered, created, received, develop or derived by MOSS ADAMS LLP either prior to or as a result of providing services under the Agreement (collectively, “MOSS ADAMS LLP Materials”). The City shall have a non-exclusive, nontransferable license to use MOSS ADAMS LLP Materials for its own internal use and only for the purposes for which they are delivered to the extent they form part of a final report or deliverable. Notwithstanding anything to the contrary of this Agreement, MOSS ADAMS LLP and its personnel are free to use and employ their general skills, know-how, and expertise, and to use, DocuSign Envelope ID: ADACBD43-9561-42DA-817E-F90C876EABE3 - 6 -
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.
19.2 At the City’s request, MOSS ADAMS LLP must furnish reports concerning the status of the Services.
20. Standard of Care. MOSS ADAMS LLP agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of MOSS ADAMS LLP’s profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If MOSS ADAMS LLP proposes to have any subconsultant perform any part of the Services, MOSS ADAMS LLP must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant’s services. The City, in its sole discretion, may grant or deny the request.
21.2 MOSS ADAMS LLP will be responsible for the quality of any subconsultant’s work. Every subcontract or agreement of any kind entered into between MOSS ADAMS LLP and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 10929 (CCS) entered into between the City of Santa Monica and MOSS ADAMS LLP
on^^____________________.
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and MOSS ADAMS LLP agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
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25. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By: ______________________________
RICK COLE
City Manager
MOSS ADAMS LLP
#VENDOR
By: ________________________________
DocuSign Envelope ID: ADACBD43-9561-42DA-817E-F90C876EABE3 City Attorney
10/8/2019
Lane Dilg
10/8/2019
Mark Steranka
Moss Adams LLP
Partner
10/9/2019
City Manager
Rick Cole
City Clerk
Denise Anderson-Warren
10/9/2019
Exhibit A
Scope of Services
Moss Adams LLP will provide internal audit services and agreed upon procedures in accordance with applicable industry standards including, but not limited to, those established by the Institute of Internal Auditors (IIA) and the American Institute of CPAs (AICPA). These services include, but are not limited to:
Risk assessments. Advice and consultation on the design, preparation and compilation of risk assessments. Upon request, prepare, coordinate, and perform the identified risk assessment(s).
Audit plan. Develop an annual audit schedule in coordination with the City Manager and City management, with the advice of the Audit Subcommittee of the City Council.
Audits. Perform internal audits and produce audit reports, findings and recommendations. Topic areas include operational audits, internal control reviews, audits designed to detect fraud or malfeasance, revenue enhancement audits, and special audits as directed by the City Manager. Consultation and guidance. Within audit independence standards, consult with and advise staff in developing responses to audit findings. Monitoring and reporting. Monitor recommended corrective actions and report to stakeholders, including the City Manager, staff, the Audit Subcommittee of the City Council, and the City Council.
Presentation and communication. Communicate recommendations and conclusions to stakeholders.
Moss Adams LLP will ensure these services will be performed by staff that is fully qualified and with the appropriate experience (not just junior staff). Upon request, partners or managers will be available during City Council meetings to discuss the progress of audits, reports and any recommendations.
DocuSign Envelope ID: ADACBD43-9561-42DA-817E-F90C876EABE3 Exhibit B
Budget
Contractor shall provide the services described in Exhibit A pursuant to the pricing schedule below and in an amount not to exceed $150,000 in year one of the contract, and $150,000 per year for any renewal options exercised, for a total not to exceed of $750,000 over five years, contingent on Council budget approval.
Services will be provided based on the hourly rates below for each level staff to be assigned to any engagement and are inclusive of all fringe benefits, indirect costs, profit, etc.
Title Hourly Rate
Partner $300-$350
Director $300-$350
Senior Manager $250-$300
Manager $225-$250
Senior $200-$225
Staff $150-$200
Expenses include out-of-pocket costs for travel (i.e. airfare, lodging, auto expenses, parking, and meals).
Projects will be coordinated with City Staff and all project costs will be based on the hourly rates shown above and will be subject to budget appropriation. Project costs may not exceed initial project estimates without receiving prior approval by the City Manager’s office. Any project cost overages incurred without prior approval might not be reimbursed at the City’s discretion.
DocuSign Envelope ID: ADACBD43-9561-42DA-817E-F90C876EABE3 Exhibit C
Professional Services Agreement Insurance Requirements – Template 1 Professional Liability Insurance Required
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Professional Liability: Insurance appropriate to the Consultant’s profession with limits of no less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the DocuSign Envelope ID: ADACBD43-9561-42DA-817E-F90C876EABE3 form of an endorsement to the Consultant’s insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of a combination of (1) CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and (2) CG 20 37).
b. Primary Coverage: For any claims related to this Agreement, the Consultant’s insurance shall be primary coverage at least as broad as Insurance Services Offices Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant’s insurance and shall not contribute with it. c. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been as required under each respective policy. Consultant shall promptly notify the City of Santa Monica with a new certificate of insurance reflecting replacement coverage that meets the requirements of this Exhibit C.
d. Waiver of Subrogation (all policies except Professional Liability): Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A—:VII, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides “claims made” coverage:
DocuSign Envelope ID: ADACBD43-9561-42DA-817E-F90C876EABE3 a. The Retroactive Date must be shown and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained, and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another “claims made” policy form with a Retroactive Date prior to the effective Agreement date, the Consultant must purchase “extended reporting” coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them.
The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies (except declarations pages for Professional Liability), including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers’ Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
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