2017-05-02 Award to Vavrinek, Trine, Day & Company - CC Staff RptCity of La Quinta
CITY COUNCIL MEETING: May 2, 2017
STAFF REPORT
AGENDA TITLE: AWARD PROFESSIONAL AUDITING SERVICES CONTRACT TO VAVRINEK,
TRINE, DAY & COMPANY, LLP
RECOMMENDATION
Award a professional auditing services contract to Vavrinek, Trine, Day & Company, LLP.;
and authorize the City Manager to execute the contract.
EXECUTIVE SUMMARY
Staff prepared a draft Request for Proposals (RFP) which was reviewed by the
Investment Advisory Board (IAB); two IAB members subsequently participated in
the selection process.
The City issued the RFP on January 25, 2017 with a submittal deadline of March 1,
2017. Nine firms responded.
The selection committee unanimously recommended Vavrinek, Trine, Day &
Company, LLP. (VTD).
FISCAL IMPACT
The annual cost will be $63,800 for five years, for a total contract amount of $319,000.
Annual auditing services are budgeted in the Finance Department account 101-1006-
60106, Auditing Services. Annual auditing services have averaged $55,000 for each of the
last two fiscal years. The top three interviewed firms proposed annual costs ranging from
$64,000 to $73,000.
BACKGROUND/ANALYSIS
City staff identified the need to issue an RFP for auditing services in the summer of 2016.
A draft RFP was developed and presented to the IAB for review and comment in
November 2016; a final RFP was then prepared and issued in January 2017.
In February staff updated the IAB and two members, Chairman George Batavick and
Member Steve Rosen, volunteered to be on the selection committee.
Nine firms responded by the March 1, 2017 deadline. The Financial Services Analyst and
Finance Director reviewed the proposals to ensure that the minimum qualifications were
met and organized proposals into one of three categories:
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1. Recommended for an interview
2. Intermediate or marginal
3. Not recommended to proceed further.
In April, the selection committee then interviewed the Partner, Audit Manager, and Audit
Supervisor who would be assigned to this engagement. Based upon the qualifications of
the firm and personnel assigned to this engagement, the scope of work, and the hourly
rates and total engagement cost, the selection committee recommended that the City
Council award this contract to VTD.
The five-year contract with an optional extension for two additional years will include
professional auditing services and preparation of the financial statements including the
State Controller Report. Also included is a compliance audit for special revenue programs,
a single audit on federal financial assistance, if necessary, and a review of the internal
controls. In addition, the contract would include 40 hours of consulting services to assist
with the implementation of accounting regulations or accounting questions.
ALTERNATIVES
Council may elect not to approve the contract and re-issue a RFP for auditing services.
This alternative is not recommended. To perform a complete audit for the current fiscal
year, an audit firm must perform interim audit work by June.
Prepared by: Karla Campos, Finance Director
Approved by: Frank J. Spevacek, City Manager
Attachment: 1. Professional Services Agreement for Auditing Services
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PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”) is made and
entered into by and between the CITY OF LA QUINTA, (“City”), a California municipal
corporation, and Vavrinek, Trine, Day & Co., LLP (VTD) (“Consultant”). The parties
hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Consultant shall provide those services related to Financial Auditing, as
specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated
herein by this reference (the “Services”). Consultant represents and warrants that
Consultant is a provider of first-class services and Consultant is experienced in
performing the Services contemplated herein and, in light of such status and
experience, Consultant covenants that it shall follow the highest professional
standards in performing the Services required hereunder. For purposes of this
Agreement, the phrase “highest professional standards” shall mean those standards
of practice recognized by one or more first-class firms performing similar services
under similar circumstances.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations, and laws of
the City and any Federal, State, or local governmental agency of competent
jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified
herein, Consultant shall obtain at its sole cost and expense such licenses, permits, and
approvals as may be required by law for the performance of the Services required by
this Agreement, including a City of La Quinta business license. Consultant and its
employees, agents, and subcontractors shall, at their sole cost and expense, keep in
effect at all times during the term of this Agreement any licenses, permits, and
approvals that are legally required for the performance of the Services required by this
Agreement. Consultant shall have the sole obligation to pay for any fees,
assessments, and taxes, plus applicable penalties and interest, which may be imposed
by law and arise from or are necessary for the performance of the Services required by
this Agreement, and shall indemnify, defend (with counsel selected by City), and hold
City, its elected officials, officers, employees, and agents, free and harmless against
any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed
against City hereunder. Consultant shall be responsible for all subcontractors’
compliance with this Section.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants
that (a) it has thoroughly investigated and considered the Services to be performed,
(b) it has investigated the site where the Services are to be performed, if any, and fully
ATTACHMENT 1
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acquainted itself with the conditions there existing, (c) it has carefully considered how
the Services should be performed, and (d) it fully understands the facilities, difficulties,
and restrictions attending performance of the Services under this Agreement. Should
Consultant discover any latent or unknown conditions materially differing from those
inherent in the Services or as represented by City, Consultant shall immediately inform
City of such fact and shall not proceed except at Consultant's risk until written
instructions are received from the Contract Officer (as defined in Section 4.2 hereof).
1.5 Standard of Care. Consultant acknowledges and understands that the
Services contracted for under this Agreement require specialized skills and abilities
and that, consistent with this understanding, Consultant’s work will be held to a
heightened standard of quality. Consistent with Section 1.4 hereinabove, Consultant
represents to City that it holds the necessary skills and abilities to satisfy the
heightened standard of quality as set forth in this Agreement. Consultant shall adopt
reasonable methods during the life of this Agreement to furnish continuous protection
to the Services performed by Consultant, and the equipment, materials, papers, and
other components thereof to prevent losses or damages, and shall be responsible for
all such damages, to persons or property, until acceptance of the Services by City,
except such losses or damages as may be caused by City's own negligence. The
performance of Services by Consultant shall not relieve Consultant from any obligation
to correct any incomplete, inaccurate, or defective work at no further cost to City,
when such inaccuracies are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this
Agreement, Consultant shall perform services in addition to those specified in the
Scope of Services (“Additional Services”) only when directed to do so by the Contract
Officer, provided that Consultant shall not be required to perform any Additional
Services without compensation. Consultant shall not perform any Additional Services
until receiving prior written authorization from the Contract Officer, incorporating
therein any adjustment in (i) the Contract Sum, and/or (ii) 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 the Services specifically set forth in the Scope of Services or reasonably
contemplated therein. It is specifically understood and agreed that oral requests
and/or approvals of Additional Services shall be barred and are unenforceable. Failure
of Consultant to secure the Contract Officer’s written authorization for Additional
Services shall constitute a waiver of any and all right to adjustment of the Contract
Sum or time to perform this Agreement, whether by way of compensation, restitution,
quantum merit, or the like, for Additional Services provided without the appropriate
authorization from the Contract Officer. Compensation for properly authorized
Additional Services shall be made in accordance with Section 2.3 of this Agreement.
1.7 Special Requirements. Additional terms and conditions of this Agreement,
if any, which are made a part hereof are set forth in Exhibit “D” (the “Special
Requirements”), which is incorporated herein by this reference and expressly made a
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part hereof. In the event of a conflict between the provisions of the Special
Requirements and any other provisions of this Agreement, the provisions of the
Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the Services rendered pursuant to this Agreement,
Consultant shall be compensated in accordance with Exhibit “B” (the “Schedule of
Compensation”) in a total amount not to exceed three hundred nineteen thousand
Dollars ($ 319,000) (the “Contract Sum”), except as provided in Section 1.6. The
method of compensation set forth in the Schedule of Compensation may include a
lump sum payment upon completion, payment in accordance with the percentage of
completion of the Services, payment for time and materials based upon Consultant's
rate schedule, but not exceeding the Contract Sum, or such other methods as may be
specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Consultant at all project meetings reasonably deemed necessary by
City; Consultant shall not be entitled to any additional compensation for attending
said meetings. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and
similar costs and expenses when and if specified in the Schedule of Compensation.
Regardless of the method of compensation set forth in the Schedule of Compensation,
Consultant’s overall compensation shall not exceed the Contract Sum, except as
provided in Section 1.6 of this Agreement.
2.2 Method of Billing. Any month in which Consultant wishes to receive
payment, Consultant shall submit to City no later than the tenth (10th) working day of
such month, in the form approved by City's Finance Director, an invoice for Services
rendered prior to the date of the invoice. Such invoice shall (1) describe in detail the
Services provided, including time and materials, and (2) specify each staff member
who has provided Services and the number of hours assigned to each such staff
member. Such invoice shall contain a certification by a principal member of
Consultant specifying that the payment requested is for Services performed in
accordance with the terms of this Agreement. Subject to retention pursuant to
Section 8.3, City will pay Consultant for all items stated thereon which are approved by
City pursuant to this Agreement no later than thirty (30) days after invoices are
received by the City’s Finance Department.
2.3 Compensation for Additional Services. Additional Services approved in
advance by the Contract Officer pursuant to Section 1.6 of this Agreement shall be
paid for in an amount agreed to in writing by both City and Consultant in advance of
the Additional Services being rendered by Consultant. Any compensation for
Additional Services amounting to five percent (5%) or less of the Contract Sum may be
approved by the Contract Officer. Any greater amount of compensation for Additional
Services must be approved by the La Quinta City Council. Under no circumstances
shall Consultant receive compensation for any Additional Services unless prior written
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approval for the Additional Services is obtained from the Contract Officer pursuant to
Section 1.6 of this Agreement.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement. If the Services not completed in accordance with the Schedule of
Performance, as set forth in Section 3.2 and Exhibit C, it is understood that the City will
suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this Agreement
shall be performed diligently and within the time period established in Exhibit C (the
“Schedule of Performance”). Extensions to the time period specified in the Schedule of
Performance may be approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of Performance
for performance of the Services rendered pursuant to this Agreement shall be
extended because of any delays due to unforeseeable causes beyond the control and
without the fault or negligence of Consultant, including, but not restricted to, acts of
God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine
restrictions, riots, strikes, freight embargoes, acts of any governmental agency other
than City, and unusually severe weather, if Consultant shall within ten (10) days of the
commencement of such delay notify the Contract Officer in writing of the causes of
the delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the Services for the period of the forced delay when
and if in his or her judgment such delay is justified, and the Contract Officer's
determination shall be final and conclusive upon the parties to this Agreement.
Extensions to time period in the Schedule of Performance which are determined by
the Contract Officer to be justified pursuant to this Section shall not entitle the
Consultant to additional compensation in excess of the Contract Sum.
3.4 Term. Unless earlier terminated in accordance with Sections 8.8 or 8.9 of
this Agreement, the term of this agreement shall commence on May 3, 2017 and
terminate on May 2, 2022 (“Initial Term”). This Agreement may be extended for two
additional year(s) upon mutual agreement by both parties (“Extended Term”).
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant
(“Principals”) are hereby designated as being the principals and representatives of
Consultant authorized to act in its behalf with respect to the Services specified herein
and make all decisions in connection therewith:
a. Phillip White, CPA, Partner
E-mail: pwhite@vtdcpa.com
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Office: 951-367-3000
It is expressly understood that the experience, knowledge, capability, and
reputation of the foregoing Principals were a substantial inducement for City to enter
into this Agreement. Therefore, the foregoing Principals shall be responsible during
the term of this Agreement for directing all activities of Consultant and devoting
sufficient time to personally supervise the Services hereunder. For purposes of this
Agreement, the foregoing Principals may not be changed by Consultant and no other
personnel may be assigned to perform the Services required hereunder without the
express written approval of City.
4.2 Contract Officer. The “Contract Officer” shall be Karla Campos, Finance
Director or such other person as may be designated in writing by the City Manager of
City. It shall be Consultant's responsibility to assure that the Contract Officer is kept
informed of the progress of the performance of the Services, and Consultant shall
refer any decisions, that must be made by City to the Contract Officer. Unless
otherwise specified herein, any approval of City required hereunder shall mean the
approval of the Contract Officer. The Contract Officer shall have authority to sign all
documents on behalf of City required hereunder to carry out the terms of this
Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability, and reputation of Consultant, its principals, and its employees
were a substantial inducement for City to enter into this Agreement. Except as set
forth in this Agreement, Consultant shall not contract with any other entity to perform
in whole or in part the Services required hereunder without the express written
approval of City. In addition, neither this Agreement nor any interest herein may be
transferred, assigned, conveyed, hypothecated, or encumbered, voluntarily or by
operation of law, without the prior written approval of City. Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in
concert of more than twenty five percent (25%) of the present ownership and/or
control of Consultant, taking all transfers into account on a cumulative basis. Any
attempted or purported assignment or contracting by Consultant without City’s
express written approval shall be null, void, and of no effect. No approved transfer
shall release Consultant of any liability hereunder without the express consent of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have
any control over the manner, mode, or means by which Consultant, its agents, or its
employees, perform the Services required herein, except as otherwise set forth herein.
City shall have no voice in the selection, discharge, supervision, or control of
Consultant’s employees, servants, representatives, or agents, or in fixing their number
or hours of service. Consultant shall perform all Services required herein as an
independent contractor of City and shall remain at all times as to City a wholly
independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents
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or employees are agents or employees 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 venture or a member of any joint enterprise with Consultant.
Consultant shall have no power to incur any debt, obligation, or liability on behalf of
City. Consultant shall not at any time or in any manner represent that it or any of its
agents or employees are agents or employees of City. Except for the Contract Sum
paid to Consultant as provided in this Agreement, City shall not pay salaries, wages, or
other compensation to Consultant for performing the Services hereunder for City. City
shall not be liable for compensation or indemnification to Consultant for injury or
sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary,
Consultant and any of its employees, agents, and subcontractors providing services
under this Agreement shall not qualify for or become entitled to any compensation,
benefit, or any incident of employment by City, including but not limited to eligibility to
enroll in the California Public Employees Retirement System (“PERS”) as an employee
of City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits. Consultant agrees to
pay all required taxes on amounts paid to Consultant under this Agreement, and to
indemnify and hold City harmless from any and all taxes, assessments, penalties, and
interest asserted against City by reason of the independent contractor relationship
created by this Agreement. Consultant shall fully comply with the workers’
compensation laws regarding Consultant and Consultant’s employees. Consultant
further agrees to indemnify and hold City harmless from any failure of Consultant to
comply with applicable workers’ compensation laws. City shall have the right to offset
against the amount of any payment 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 reimbursement or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Consultant represents that it employs
or will employ at its own expense all personnel required for the satisfactory
performance of any and all of the Services set forth herein. Consultant represents that
the Services required herein will be performed by Consultant or under its direct
supervision, and that all personnel engaged in such work shall be fully qualified and
shall be authorized and permitted under applicable State and local law to perform
such tasks and services.
4.6 City Cooperation. City shall provide Consultant with any plans, publications,
reports, statistics, records, or other data or information pertinent to the Services to be
performed hereunder which are reasonably available to Consultant only from or
through action by City.
5.0 INSURANCE
5.1 Insurance. Prior to the beginning of any Services under this Agreement and
throughout the duration of the term of this Agreement, Consultant shall procure and
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maintain, at its sole cost and expense, and submit concurrently with its execution of
this Agreement, policies of insurance as set forth in Exhibit E (the “Insurance
Requirements”) which is incorporated herein by this reference and expressly made a
part hereof.
6.0 INDEMNIFICATION.
6.1 Indemnification. Consultant shall defend, indemnify and hold the City, its
officials, officers, employees, and agents free and harmless from any and all liability
from loss, damage or injury to property or persons, including wrongful death, in any
manner arising out of or incident to any negligent acts, omissions, or willful
misconduct of Consultant arising out of or in connection with Consultant’s
performance of this agreement, including without limitation the payment of
attorneys’ fees. Further, consultant shall defend at its own expense, including
attorney’s fees, the entity, its officials, officers, employees, and agents in any legal
action based upon such negligent acts, omissions or willful misconduct.
7.0 RECORDS AND REPORTS.
7.1 Reports. Consultant shall periodically prepare and submit to the Contract
Officer such reports concerning Consultant's performance of the Services required by
this Agreement as the Contract Officer shall require. Consultant hereby acknowledges
that City is greatly concerned about the cost of the Services to be performed pursuant
to this Agreement. For this reason, 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 Services contemplated herein or, if Consultant is
providing design services, the cost of the project being designed, Consultant shall
promptly notify the Contract Officer of said fact, circumstance, technique, or event
and the estimated increased or decreased cost related thereto and, if Consultant is
providing design services, the estimated increased or decreased cost estimate for the
project being designed.
7.2 Records. Consultant shall keep, and require any subcontractors to keep,
such ledgers, books of accounts, invoices, vouchers, canceled checks, reports
(including but not limited to payroll reports), studies, or other documents relating to
the disbursements charged to City and the Services performed hereunder (the “Books
and Records”), as shall be necessary to perform the Services required by this
Agreement and enable the Contract Officer 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 shall be complete and detailed. The
Contract Officer 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 from such Books and Records. Such Books and Records
shall be maintained for a period of three (3) years following completion of the Services
hereunder, and City shall have access to such Books and Records in the event any
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audit is required. In the event of dissolution of Consultant’s business, custody of the
Books and Records may be given to City, and access shall be provided by Consultant’s
successor in interest. Under California Government Code Section 8546.7, if the
amount of public funds expended under this Agreement exceeds Ten Thousand
Dollars ($10,000.00), this Agreement shall be subject to the examination and audit of
the State Auditor, at the request of City or as part of any audit of City, for a period of
three (3) years after final payment under this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps, designs,
photographs, studies, surveys, data, notes, computer files, reports, records,
documents, and other materials plans, drawings, estimates, test data, survey results,
models, renderings, and other documents or works of authorship fixed in any tangible
medium of expression, including but not limited to, physical drawings, digital
renderings, or data stored digitally, magnetically, or in any other medium prepared or
caused to be prepared by Consultant, its employees, subcontractors, and agents in the
performance of this Agreement (the “Documents and Materials”) shall be the property
of City and shall be delivered to City upon request of the Contract Officer or upon the
expiration or 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. Any use, reuse or assignment of such completed Documents and
Materials for other projects and/or use of uncompleted documents without specific
written authorization by Consultant will be at City’s sole risk and without liability to
Consultant, and Consultant’s guarantee and warranties shall not extend to such use,
revise, or assignment. Consultant may retain copies of such Documents and Materials
for its own use. Consultant shall have an unrestricted right to use the concepts
embodied therein. 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. This section does not apply to the Contractor/Auditors’ working papers or
audit documentation, which are the property of the Contractor/Auditor in accordance
with professional auditing standards.
In the event City or any person, firm, or corporation authorized by City reuses said
Documents and Materials without written verification or adaptation by Consultant for
the specific purpose intended and causes to be made or makes any changes or
alterations in said Documents and Materials, City hereby releases, discharges, and
exonerates Consultant from liability resulting from said change. The provisions of this
clause shall survive the termination or expiration of this Agreement and shall
thereafter remain in full force and effect.
7.4 Licensing of Intellectual Property. This Agreement creates a non-exclusive
and perpetual license for City to copy, use, modify, reuse, or sublicense any and all
copyrights, designs, rights of reproduction, and other intellectual property embodied
in the Documents and Materials. Consultant shall require all subcontractors, if any, to
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agree in writing that City is granted a non-exclusive and perpetual license for the
Documents and Materials the subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any
and all of the Documents and Materials. Consultant makes no such representation
and warranty in regard to the Documents and Materials which were prepared by
design professionals other than Consultant or provided to Consultant by City. City
shall not be limited in any way in its use of the Documents and Materials at any time,
provided that any such use not within the purposes intended by this Agreement shall
be at City’s sole risk.
7.5 Release of Documents. The Documents and Materials shall not be released
publicly without the prior written approval of the Contract Officer or as required by
law. Consultant shall not disclose to any other entity or person any information
regarding the activities of City, except as required by law or as authorized by City.
8.0 ENFORCEMENT OF AGREEMENT.
8.1 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 Riverside, State of California, or any other appropriate court in such
county, and Consultant covenants and agrees to submit to the personal jurisdiction of
such court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this Agreement, the
injured party shall notify the injuring party in writing of its contentions by submitting a
claim therefore. The injured party shall continue performing its obligations hereunder
so long as the injuring party commences to cure such default within ten (10) days of
service of such notice and completes the cure of such default within forty-five (45)
days after service of the notice, or such longer period as may be permitted by the
Contract Officer; provided that if the default is an immediate danger to the health,
safety, or general welfare, City may take such immediate action as City deems
warranted. Compliance with the provisions of this Section shall be a condition
precedent to termination of this Agreement for cause and to any legal action, and
such compliance shall not be a waiver of any party's right to take legal action in the
event that the dispute is not cured, provided that nothing herein shall limit City's right
to terminate this Agreement without cause pursuant to Section 8.8. 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. In the alternative, City may, in
its sole discretion, elect to pay some or all of the outstanding invoices during any
period of default.
8.3 Retention of Funds. City may withhold from any monies payable to
Consultant sufficient funds to compensate City for any losses, costs, liabilities, or
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damages it reasonably believes were suffered by City due to the default of Consultant
in the performance of the Services required by this Agreement.
8.4 Waiver. No delay or omission in the exercise of any right or remedy of a
non-defaulting party on any default shall impair such right or remedy or be construed
as a waiver. City's consent or approval of any act by Consultant requiring City's
consent or approval shall not be deemed to waive or render unnecessary City's
consent to or approval of any subsequent act of Consultant. Any waiver by either
party of any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of this Agreement.
8.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and
remedies of the parties are cumulative and the exercise by either party of one or more
of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other
default by the other party.
8.6 Legal Action. In addition to any other rights or remedies, either party may
take legal action, at law or at equity, to cure, correct, or remedy any default, to
recover damages for any default, to compel specific performance of this Agreement,
to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with
the purposes of this Agreement.
8.7 Liquidated Damages. Since the determination of actual damages for any
delay in performance of this Agreement would be extremely difficult or impractical to
determine in the event of a breach of this Agreement, Consultant shall be liable for
and shall pay to City the sum of [EIGHT HUNDRED AND FIFTY dollars ($850.00)] as
liquidated damages for each working day of delay in the performance of any of the
Services required hereunder, as specified in the Schedule of Performance. In addition,
liquidated damages may be assessed for failure to comply with the emergency call
out requirements, if any, described in the Scope of Services. City may withhold from
any moneys payable on account of the Services performed by Consultant any accrued
liquidated damages.
8.8 Termination Prior To Expiration Of Term. This Section shall govern any
termination of this Agreement, except as specifically provided in the following
Section 8.9 for termination for cause. City reserves the right to terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice to
Consultant. Upon receipt of any notice of termination, Consultant shall immediately
cease all Services hereunder except such as may be specifically approved by the
Contract Officer. Consultant shall be entitled to compensation for all Services
rendered prior to receipt of the notice of termination and for any Services authorized
by the Contract Officer thereafter in accordance with the Schedule of Compensation or
such as may be approved by the Contract Officer, except as provided in Section 8.3.
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8.9 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance
with the provisions of Section 8.2, take over the Services and prosecute the same to
completion by contract or otherwise, and Consultant shall be liable to the extent that
the total cost for completion of the Services required hereunder exceeds the
compensation herein stipulated (provided that City shall use reasonable efforts to
mitigate such damages), and City may withhold any payments to Consultant for the
purpose of setoff or partial payment of the amounts owed City as previously stated in
Section 8.3.
8.10 Attorneys' 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; provided, however, that the attorneys’ fees awarded
pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing party in the
conduct of the litigation. Attorneys’ fees shall include attorneys’ fees on any appeal,
and in addition a party entitled to attorneys’ fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery, and
all other necessary costs the court allows which are incurred in such litigation. All
such fees shall be deemed to have accrued on commencement of such action and
shall be enforceable whether or not such action is prosecuted to judgment. The court
may set such fees in the same action or in a separate action brought for that purpose.
9.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non-liability of City Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of City shall be personally liable to Consultant, or
any successor in interest, in the event or any default or breach by City or for any
amount which may become due to Consultant or to its successor, or for breach of any
obligation of the terms of this Agreement.
9.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or
principal of it, 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 the 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 the Contract Officer. 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.
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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 effects his financial interest or the financial
interest of any corporation, partnership or association in which he is, directly or
indirectly, interested, in violation of any State statute or regulation. Consultant
warrants that it has not paid or given and will not pay or give any third party any
money or other consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Consultant covenants that, by and for
itself, its heirs, executors, assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group of
persons on account of any impermissible classification including, but not limited to,
race, color, creed, religion, sex, marital status, sexual orientation, national origin, or
ancestry in the performance of this Agreement. Consultant shall take affirmative
action to insure that applicants are employed and that employees are treated during
employment without regard to their race, color, creed, religion, sex, marital status,
sexual orientation, national origin, or ancestry.
10.0 MISCELLANEOUS PROVISIONS
10.1 Notice. Any notice, demand, request, consent, approval, or communication
either party desires or is required to give the other party or any other person shall be
in writing and either served personally or sent by prepaid, first-class mail to the
address set forth below. Either party may change its address by notifying the other
party of the change of address in writing. Notice shall be deemed communicated
forty-eight (48) hours from the time of mailing if mailed as provided in this Section.
To City: To Consultant:
CITY OF LA QUINTA VAVRINEK, TRINE, DAY & CO., LLP
Attention: Frank Spevacek, Attention: Phillip White, CPA, Partner
City Manager 19340 Jesse Lane, Suite 260
78-495 Calle Tampico Riverside, CA 92508
La Quinta, California 92253
10.2 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 or any other rule of
construction which might otherwise apply.
10.3 Section Headings and Subheadings. The section headings and subheadings
contained in this Agreement are included for convenience only and shall not limit or
otherwise affect the terms of this Agreement.
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10.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and such counterparts shall constitute one
and the same instrument
10.5 Integrated Agreement. This Agreement including the exhibits hereto is the
entire, complete, and exclusive expression of the understanding of the parties. 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 previous
negotiations, arrangements, agreements, and understandings, if any, between the
parties, and none shall be used to interpret this Agreement.
10.6 Amendment. No amendment to or modification of this Agreement shall be
valid unless made in writing and approved by Consultant and by the City Council of
City. The parties agree that this requirement for written modifications cannot be
waived and that any attempted waiver shall be void.
10.7 Severability. In the event that any one or more of the articles, phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be
declared invalid or unenforceable, such invalidity or unenforceability shall not affect
any of the remaining articles, phrases, sentences, clauses, paragraphs, or sections of
this Agreement which are hereby declared as severable and shall be interpreted to
carry out the intent of the parties hereunder 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.
10.8 Unfair Business Practices Claims. In entering into this Agreement,
Consultant offers and agrees to assign to City all rights, title, and interest in and to all
causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or
under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of
Division 7 of the Business and Professions Code), arising from purchases of goods,
services, or materials related to this Agreement. This assignment shall be made and
become effective at the time City renders final payment to Consultant without further
acknowledgment of the parties.
10.9 No Third Party Beneficiaries. With the exception of the specific provisions
set forth in this Agreement, there are no intended third-party beneficiaries under this
Agreement and no such other third parties shall have any rights or obligations
hereunder.
10.10 Authority. The persons executing this Agreement on behalf of each of the
parties hereto represent and 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, (iii) by so executing this Agreement, such party is formally bound to the
provisions of this Agreement, and (iv) that entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound. This
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Agreement shall be binding upon the heirs, executors, administrators, successors, and
assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below.
CITY OF LA QUINTA,
a California municipal corporation
FRANK J. SPEVACEK, City Manager
Dated:
CONSULTANT:
Vavrinek, Trine, Day & Co., LLP
By:
Name: Phillip M. White
Title: Partner
Dated: April 26, 2017
ATTEST:
SUSAN MAYSELS, City Clerk La Quinta,
California
By:
Name:
Title:
Dated:
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
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Exhibit A
Scope of Services
1. Services to be Provided:
a) City of La Quinta CAFR - The City expects the auditor to express an opinion
on the fair presentation of its basic financial statements. The auditor is not
required to express an opinion on the combining and individual non-major
fund financial statements and schedules. However, the auditor is to
provide an “in-relation-to” report based on the auditing procedures applied
during the audit of the basic financial statements. Certain limited
procedures should be applied to the supplementary information,
management’s discussion and analysis, and budgetary comparison
information, but an expression of an opinion is not required. The auditor is
not required to express an opinion on the introductory and statistical
sections.
b) Single Audit Act Report - The City receives federal funds which come under
the provision of the Single Audit Act. The auditor is not required to audit
the schedule of federal financial assistance. However, the auditor is to
provide an “in-relation-to” report on that schedule based on the auditing
procedures applied during the audit of the financial statements. This report
must satisfy all requirements of the Federal Single Audit Act of 1996.
c) GANN Limit - The auditor shall perform agreed-upon auditing procedures
pertaining to the City’s GANN Limit (Appropriations Limit) and render a
letter to the City regarding compliance.
d) Management Report - The auditor shall issue a separate management
letter that includes recommendations and disclosures of material and non-
material weakness for improvements on internal controls, accounting
procedures, disclosure violations of finance related legal and contracted
provisions, and other significant observations that are considered to be
non-reportable conditions such as recommendations for financial and
program management improvements.
e) Presentation - The independent audit firm is expected to meet at least once
each year with City Council to present and discuss the financial statements,
management letter, and other relevant subjects.
The independent audit firm is expected to meet at least once each year with
the Investment Advisory Board to present and discuss the City financial
statements as they relate to cash and investments and discuss any internal
control weaknesses with the Board.
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f) Updates - The independent audit firm is expected to keep the City, Housing
Authority, Finance Authority, and Successor Agency staff abreast of new
developments affecting municipal finance and reporting, impact on
accounting and reporting should the State of California impose state-
mandated procedures, impacts of Government Accounting Standards
Board disclosure requirements, required changes in grant procedures, and
the like.
g) Additional Consulting Hours - Included in the fee proposal shall be an
additional 40 hours of partner/manager time budgeted for research and
assistance to City staff concerning accounting and other technical matters
each year. The topic areas might include tax questions, the review of bond
documents, cost allocation programs, employee benefit programs, financial
policies, and cash flow projections. It must be understood that these hours
are above and beyond the professional times associated with the audit.
h) State Controller’s Report – The City requests that the annual State
Controller’s Report be completed with verification and confirmation by the
City.
2. Performance Standards:
The City annually issues a Comprehensive Annual Financial Report (CAFR). The City
may receive Community Development Block Grant money and/or other financial
assistance from the Federal Government and as such may issue a Single Audit Report.
In addition, the activities of the La Quinta Financing Authority are included in the
CAFR, but no Component Unit Financial Report (CUFR) is issued.
The City, Housing Authority, Finance Authority, and Successor Agency expect an audit
opinion for each of their financial reports to fairly represent their financial position and
to conform with generally accepted accounting principles. The City and its Agencies
expect the audit of each of their financial reports to be conducted in accordance with
generally accepted auditing standards. The City expects the Single Audit, if required,
to be conducted in accordance with U.S. Office of Management and Budget (OMB)
Circular A-133 and related correspondence.
The City requests a full scope audit of all fund types and account groups in accordance
with generally accepted auditing standards. Audit services are desired for the City,
Housing Authority, Successor Agency and Financing Authority on an annual basis as
set forth above. Proposals shall include separate quotes for the City and its
component units.
The City’s accounting personnel will provide assistance to the audit firm during the
course of the audit. Cooperation may be expected in answering questions, preparing
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schedules for working papers, and preparing confirmations. The City would expect
only reasonable requests of assistance from the auditing firm.
City staff currently produces schedules and other backup for most balance sheet
accounts at year end (accounts receivable listing, accounts payable listing,
compensated absences listing, bank reconciliations, schedule of fixed assets etc.). The
auditor is expected to produce any other necessary schedules. City staff will help
obtain any necessary information.
The City will provide the auditor with reasonable work space, desks and chairs. The
auditor will also be provided with access to an internet connection, photocopying
facilities and fax/scanning machines to be used for the audit.
1. Reports to be Issued:
The auditor shall issue:
a) A report of the fair presentation of the financial statements in conformity
with generally accepted accounting principles, basic financial statements,
including government-wide financial statements and fund financial
statements, for all funds, and accompanying notes to the basic financial
statements.
b) A report on internal controls over financial reporting and on compliance and
other matters based on an audit of the financial statements performed in
accordance with Government Auditing Standards.
c) A report on compliance with requirements applicable to each major
program and internal control over compliance in accordance with OMB
Circular A-133.
The independent audit firm shall print and bind the following financial
reports by no later than December 10th of each year:
City CAFR – 20 copies
Single Report Audit – 10 copies
Management Report –10 copies
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Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for in
Section 2.3 of this Agreement, the maximum total compensation to be paid to
Consultant under this Agreement is three hundred nineteen thousand dollar
($319,000) (“Contract Sum”). The Contract Sum shall be paid to Consultant in
installment payments made on a monthly basis and in an amount identified in
Consultant’s schedule of compensation attached hereto for the work tasks performed
and properly invoiced by Consultant in conformance with Section 2.2 of this
Agreement.
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Exhibit C
Schedule of Performance
Consultant shall complete all services identified in the Scope of Services, Exhibit A
of this Agreement, in accordance with the Project Schedule, attached hereto and
incorporated herein by this reference.
Annually the following items are to be completed:
Description Deadline
Interim audit field work May or June
Final audit field work September or October
Comprehensive Annual Financial Statements December 10th
Management Report December 10th
Single Audit Report December
City Council Presentation December
State Controllers Report January
Financial Advisory Committee Presentation January or February
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Exhibit D
Special Requirements
None
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Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of this
Agreement, the following policies shall be maintained and kept in full force and effect
providing insurance with minimum limits as indicated below and issued by insurers
with A.M. Best ratings of no less than A-:VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers’ Compensation
(per statutory requirements)
Consultant shall procure and maintain, at its cost, and submit concurrently
with its execution of this Agreement, Commercial General Liability insurance against
all claims for injuries against persons or damages to property resulting from
Consultant's acts or omissions rising out of or related to Consultant's performance
under this Agreement. The insurance policy shall contain a severability of interest
clause providing that the coverage shall be primary for losses arising out of
Consultant's performance hereunder and neither City nor its insurers shall be required
to contribute to any such loss. A certificate evidencing the foregoing and naming City
and its officers and employees as additional insured (on the Commercial General
Liability policy only) shall be delivered to and approved by City prior to
commencement of the services hereunder.
Consultant shall carry automobile liability insurance of $1,000,000 per
accident against all claims for injuries against persons or damages to property arising
out of the use of any automobile by Consultant, its officers, any person directly or
indirectly employed by Consultant, any subcontractor or agent, or anyone for whose
acts any of them may be liable, arising directly or indirectly out of or related to
Consultant's performance under this Agreement. If Consultant or Consultant’s
employees will use personal autos in any way on this project, Consultant shall provide
evidence of personal auto liability coverage for each such person. The term
“automobile” includes, but is not limited to, a land motor vehicle, trailer or semi-trailer
designed for travel on public roads. The automobile insurance policy shall contain a
severability of interest clause providing that coverage shall be primary for losses
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arising out of Consultant's performance hereunder and neither City nor its insurers
shall be required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as appropriate shall
be written on a policy form coverage specifically designed to protect against acts,
errors or omissions of the consultant and “Covered Professional Services” as
designated in the policy must specifically include work performed under this
agreement. The policy limit shall be no less than $1,000,000 per claim and in the
aggregate. The policy must “pay on behalf of” the insured and must include a
provision establishing the insurer’s duty to defend. The policy retroactive date shall be
on or before the effective date of this agreement.
Consultant shall carry Workers' Compensation Insurance in accordance
with State Worker's Compensation laws with employer’s liability limits no less than
$1,000,000 per accident or disease.
Consultant shall provide written notice to City within ten (10) working days
if: (1) any of the required insurance policies is terminated; (2) the limits of any of the
required polices are reduced; or (3) the deductible or self-insured retention is
increased. In the event any of said policies of insurance are cancelled, Consultant
shall, prior to the cancellation date, submit new evidence of insurance in conformance
with this Exhibit to the Contract Officer. The procuring of such insurance or the
delivery of policies or certificates evidencing the same shall not be construed as a
limitation of Consultant’s obligation to indemnify City, its officers, employees,
contractors, subcontractors, or agents.
E.2 Remedies. In addition to any other remedies City may have if Consultant
fails to provide or maintain any insurance policies or policy endorsements to the
extent and within the time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold
any payment(s) which become due to Consultant hereunder until Consultant
demonstrates compliance with the requirements hereof.
c. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any
other remedies City may have. The above remedies are not the exclusive remedies for
Consultant's failure to maintain or secure appropriate policies or endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to
which Consultant may be held responsible for payments of damages to persons or
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property resulting from Consultant's or its subcontractors' performance of work under
this Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage by
Consultant. Consultant and City agree to the following with respect to insurance
provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials,
employees, and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Consultant also agrees to require all contractors, and subcontractors to
do likewise.
2. No liability insurance coverage provided to comply with this
Agreement shall prohibit Consultant, or Consultant’s employees, or agents, from
waiving the right of subrogation prior to a loss. Consultant agrees to waive
subrogation rights against City regardless of the applicability of any insurance
proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Consultant and
available or applicable to this Agreement are intended to apply to the full extent of
the policies. Nothing contained in this Agreement or any other agreement relating to
City or its operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with
these requirements if they include any limiting endorsement of any kind that has not
been first submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would
serve to eliminate so-called “third party action over” claims, including any exclusion
for bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises. Consultant
shall not make any reductions in scope of coverage (e.g. elimination of contractual
liability or reduction of discovery period) that may affect City’s protection without
City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional
insured endorsement to Consultant’s general liability policy, shall be delivered to City
at or prior to the execution of this Agreement. In the event such proof of any
insurance is not delivered as required, or in the event such insurance is canceled at
any time and no replacement coverage is provided, City has the right, but not the
duty, to obtain any insurance it deems necessary to protect its interests under this or
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any other agreement and to pay the premium. Any premium so paid by City shall be
charged to and promptly paid by Consultant or deducted from sums due Consultant,
at City option.
8. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subcontractor, is intended to
apply first and on a primary, non-contributing basis in relation to any other insurance
or self-insurance available to City.
9. Consultant agrees to ensure that subcontractors, and any other party
involved with the project that is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant. Consultant
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of this
section. Consultant agrees that upon request, all agreements with subcontractors
and others engaged in the project will be submitted to City for review.
10. Consultant agrees not to self-insure or to use any self-insured
retentions or deductibles on any portion of the insurance required herein (with the
exception of professional liability coverage, if required) and further agrees that it will
not allow any contractor, subcontractor, Architect, Engineer or other entity or person
in any way involved in the performance of work on the project contemplated by this
agreement to self-insure its obligations to City. If Consultant’s existing coverage
includes a deductible or self-insured retention, the deductible or self-insured retention
must be declared to the City. At that time the City shall review options with the
Consultant, which may include reduction or elimination of the deductible or self-
insured retention, substitution of other coverage, or other solutions.
11. The City reserves the right at any time during the term of this
Agreement to change the amounts and types of insurance required by giving the
Consultant ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Consultant, the City will negotiate
additional compensation proportional to the increased benefit to City.
12. For purposes of applying insurance coverage only, this Agreement will
be deemed to have been executed immediately upon any party hereto taking any
steps that can be deemed to be in furtherance of or towards performance of this
Agreement.
13. Consultant acknowledges and agrees that any actual or alleged
failure on the part of City to inform Consultant of non-compliance with any insurance
requirement in no way imposes any additional obligations on City nor does it waive
any rights hereunder in this or any other regard.
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14. Consultant will renew the required coverage annually as long as City,
or its employees or agents face an exposure from operations of any type pursuant to
this agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. Termination of this obligation is not effective until City
executes a written statement to that effect.
15. Consultant shall provide proof that policies of insurance required
herein expiring during the term of this Agreement have been renewed or replaced
with other policies providing at least the same coverage. Proof that such coverage
has been ordered shall be submitted prior to expiration. A coverage binder or letter
from Consultant’s insurance agent to this effect is acceptable. A certificate of
insurance and/or additional insured endorsement as required in these specifications
applicable to the renewing or new coverage must be provided to City within five (5)
days of the expiration of coverages.
16. The provisions of any workers’ compensation or similar act will not
limit the obligations of Consultant under this agreement. Consultant expressly agrees
not to use any statutory immunity defenses under such laws with respect to City, its
employees, officials, and agents.
17. Requirements of specific coverage features or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor
as a waiver of any coverage normally provided by any given policy. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a given
issue, and is not intended by any party or insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and
distinct from any other provision in this Agreement and are intended by the parties
here to be interpreted as such.
19. The requirements in this Exhibit supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts
with or impairs the provisions of this Exhibit.
20. Consultant agrees to be responsible for ensuring that no contract used
by any party involved in any way with the project reserves the right to charge City or
Consultant for the cost of additional insurance coverage required by this agreement.
Any such provisions are to be deleted with reference to City. It is not the intent of City
to reimburse any third party for the cost of complying with these requirements. There
shall be no recourse against City for payment of premiums or other amounts with
respect thereto.
21. Consultant agrees to provide immediate notice to City of any claim or
loss against Consultant arising out of the work performed under this agreement. City
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assumes no obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve City.
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Exhibit F
Indemnification
F.1 General Indemnification Provision.
a. Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant’s Services, to the fullest extent permitted
by law, Consultant shall indemnify, protect, defend (with counsel selected by City), and
hold harmless City and any and all of its officials, employees, and agents
(“Indemnified Parties”) from and against any and all claims, losses, liabilities of every
kind, nature, and description, damages, injury (including, without limitation, injury to
or death of an employee of Consultant or of any subcontractor), costs and expenses of
any kind, whether actual, alleged or threatened, including, without limitation,
incidental and consequential damages, court costs, attorneys’ fees, litigation
expenses, and fees of expert consultants or expert witnesses incurred in connection
therewith and costs of investigation, to the extent same are cause in whole or in part
by any negligent or wrongful act, error or omission of Consultant, its officers, agents,
employees or subcontractors (or any entity or individual that Consultant shall bear the
legal liability thereof) in the performance of professional services under this
agreement. With respect to the design of public improvements, the Consultant shall
not be liable for any injuries or property damage resulting from the reuse of the design
at a location other than that specified in Exhibit A without the written consent of the
Consultant.
b. Indemnification for Other Than Professional Liability. Other than in
the performance of professional services and to the full extent permitted by law,
Consultant shall indemnify, defend (with counsel selected by City), and hold harmless
the Indemnified Parties from and against any liability (including liability for claims,
suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or
threatened, including, without limitation, incidental and consequential damages,
court costs, attorneys’ fees, litigation expenses, and fees of expert consultants or
expert witnesses) incurred in connection therewith and costs of investigation, where
the same arise out of, are a consequence of, or are in any way attributable to, in whole
or in part, the performance of this Agreement by Consultant or by any individual or
entity for which Consultant is legally liable, including but not limited to officers,
agents, employees, or subcontractors of Consultant.
F.2 Standard Indemnification Provisions. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth herein this section
from each and every subcontractor or any other person or entity involved by, for, with
or on behalf of Consultant in the performance of this Agreement. In the event
Consultant fails to obtain such indemnity obligations from others as required herein,
Consultant agrees to be fully responsible according to the terms of this Exhibit. Failure
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of City to monitor compliance with these requirements imposes no additional
obligations on City and will in no way act as a waiver of any rights hereunder. This
obligation to indemnify and defend City as set forth herein is binding on the
successors, assigns or heirs of Consultant and shall survive the termination of this
agreement or this section.
a. Indemnity Provisions for Contracts Related to Construction. Without
affecting the rights of City under any provision of this agreement, Consultant shall not
be required to indemnify and hold harmless City for liability attributable to the active
negligence of City, provided such active negligence is determined by agreement
between the parties or by the findings of a court of competent jurisdiction. In
instances where City is shown to have been actively negligent and where City’s active
negligence accounts for only a percentage of the liability involved, the obligation of
Consultant will be for that entire portion or percentage of liability not attributable to
the active negligence of City.
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