RFP - Auditing Services
Contact Person:
Karla Campos
kcampos@la-quinta.org
760-777-7073
Deadline:
March 1, 2017
REQUEST FOR PROPOSAL
OF AUDITING SERVICES
Issued January 24, 2017
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REQUEST FOR PROPOSAL OF
AUDITING SERVICES
1.INTRODUCTION
The City of La Quinta (hereinafter referred to as the “City”) is soliciting proposals for auditing
services for the next five fiscal years, which began July 1, 2016 and ends June 30, 2021. The
enclosed “Request for Proposal” outlines the scope of the engagement, information required,
evaluation criteria, and other relevant information. If your firm would like to consider this
engagement, we invite your response due no later than 5 p.m. on March 1, 2017.
A selection committee of Investment Advisory Board members and two finance staff
members will evaluate, select and recommend proposals to the City Council. The City Council
will make the final decision on award of the Contract.
Additional information may be obtained by contacting:
Karla Campos
Finance Director/Treasurer
City of La Quinta
kcampos@la-quinta.org
(760)777-7073
(760)777-7105 Fax
Proposers must submit five copies of their proposals in two sealed envelopes, with one
envelope containing proposed costs of audit services and the other technical data, by no
later than 5:00 p.m. March 1, 2017 to the following address:
City of La Quinta
Finance Department – Audit Proposal
78495 Calle Tampico
La Quinta, CA 92253
Date of issuance December 1, 2016
Proposed Deadline March 1, 2017 at 5:00p.m.
The City reserves the right without prejudice to reject any or all proposals submitted. During
the evaluation process, the City reserves the right, where it may serve the City’s best interest,
to request additional information or clarifications from proposers, and to allow corrections of
errors or omissions. The City reserves the right to retain all proposals submitted and to use
any ideas in a proposal regardless of whether that proposal is selected.
Submission of a proposal indicates acceptance by the firm of the conditions contained in this
request for proposals and the professional services agreement (Exhibit A), unless clearly and
specifically noted in the proposal submitted and confirmed in the contract between the City
and the firm selected.
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There is no expressed or implied obligation for the City to reimburse responding firms for any
expenses incurred in preparing proposals in response to this request. A copy of this request
for proposal and the City’s most recent Comprehensive Annual Financial Report (CAFR) can
be found on the City’s website www.la-quinta.org.
2. AUDITING 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 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.
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3. SCOPE OF WORK TO BE PERFORMED
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.
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.
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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.
4. 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
5. INTERNAL CONTROL AND COMPLIANCE REPORTS
In the required reports on internal control, the auditor shall communicate in a letter
to management any reportable conditions found during the audit. A reportable
condition shall be defined as a significant deficiency in the design or operation of the
internal control structure, which could adversely affect the organization’s ability to
record, process, summarize, and report financial data consistent with the assertions
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of management in the financial statements. Reportable conditions that are also
material weaknesses shall be identified as such in the report.
Non-reportable conditions discovered by the auditors shall be reported in a separate
letter to management, which shall be referred to in the report on internal controls.
Auditors shall be required to make an immediate, written report of all irregularities
and illegal acts of which they become aware to the Finance Director, the City
Manager, and the City Attorney.
Auditors shall ensure that the City is informed of each of the following:
The auditor’s responsibility under generally accepted auditing
standards
Significant accounting policies and regulations
Management judgments and accounting estimates
Significant audit adjustments
Other information in documents containing audited financial
statements
Disagreements with management
Management consultation with other accountants
Major issues discussed with management prior to retention
Difficulties encountered in performing the audit
6. AWARDS
The City has obtained the “Certificate of Achievement for Excellence in Financial
Reporting” from the GFOA for fiscal year ended June 30, 2015 and expects to receive
the award for the fiscal year ended June 30, 2016. It is the City’s intention to continue
to receive the award annually and will expect the CAFR to meet the requirements of
those programs.
7. PROPOSAL REQUIREMENTS
a) Requirement to Meet All Provisions - Each individual or firm submitting a
proposal (proposer) shall meet all of the terms and conditions of this Request for
Proposals (RFP) specifications package. By virtue of its proposal submittal, the
proposer acknowledges agreement with and acceptance of all provisions of the
RFP specifications.
b) Proposal Submittal - Each proposal must be submitted in the format described in
the RFP specifications and accompanied by any other required submittals for
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supplemental materials. Proposal documents shall be submitted in person or by
mail to City of La Quinta, Finance Department, 78495 Calle Tampico, La Quinta, CA
92253 by 5:00 p.m. on March 1, 2017.
c) Proposal Quotes - The prices quoted by the proposer must be entered in figures
as described in Section 9G of the General Proposal Requirements.
d) Proposal Withdrawal - A proposer may withdraw its proposal, without prejudice
prior to the deadline submission, by submitting a written request to the Finance
Director for its withdrawal.
e) Proposal Retention and Award - The City reserves the right to retain all proposals
for a period of 60 days for examination and comparison. The City also reserves
the right to waive non-substantial irregularities in any proposal, to reject any or all
proposals, to reject or delete one part of a proposal and accept the other, except
to the extent that proposals are qualified by specific limitations.
f) Competency and Responsibility of Proposer - The City reserves full discretion to
determine the competence and responsibleness, both professionally and
financially, of proposers. Proposers will provide, in a timely manner, all
information that the City deems necessary to make such a decision.
g) Contract Requirement - The proposer to whom the award is made (Contractor)
shall execute a written contract with the City within ten calendar days after notice
of the award has been sent by mail to the address given in its proposal. The
contract shall conform with the form adopted by the City and incorporated in
these specifications as Exhibit A.
h) Insurance Requirements - The Contractor shall provide proof of insurance in the
form specified in Exhibit A within ten (10) calendar days after notice of contract
award as a precondition to the contract execution.
i) Business License- The Contractor must have a valid City of La Quinta business
license before execution of the contract. Additional information regarding the
City’s Business License program may be obtained through the City’s website or by
calling (760) 777-7000.
8. CONTRACT PERFORMANCE
a) Ability to perform - The Contractor warrants that it possesses, or has arranged
through subcontracts, all capital and other equipment, labor, materials, and
licenses necessary to carry out and complete the work hereunder in compliance
with any and all federal, state, county, city and special district laws, ordinances,
and regulations.
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The City expects that the professional staff provided by the independent audit
firm will be fully qualified with the appropriate experience, and that answers and
guidance given will be provided by partner/manager (supervisor and above) not
seniors and juniors.
b) Safety Provisions - The Contractor shall conform to the rules and regulations
pertaining to safety established by OSHA and the California Division of Industrial
Safety.
c) Contractor non-Discrimination - In the performance of this work, the Contractor
agrees that it will not engage in, nor permit such subcontractors as it may employ
to engage in, discrimination in employment of persons because of age, race, color,
sex, national origin or ancestry, sexual orientation, religion, or any characteristic
covered by prevailing California anti-discrimination laws, of such persons.
d) Work Delays - Should the Contractor be obstructed or delayed in the work
required to be done hereunder by changes in the work or by any default, act, or
omission of the City, or by strikes, fire, earthquake, or any of Act of God, or by the
inability to obtain materials, equipment, or labor due to Federal Government
restrictions arising out of defense or war programs, then the time of completion
may, at the City’s sole option, be extended for such periods as may be agreed
upon by the City and the Contractor.
e) Manner of Payment - Progress payments will be made on the basis of hours of
work completed during the course of the engagement in accordance with the
firm’s dollar cost bid proposal. Interim billings shall cover a period of not less than
a calendar month. Final payment will be made upon delivery of the firm’s final
reports.
f) Working Papers - All working papers and reports must be retained, at the auditor’s
expense, for a minimum of seven (7) years after the conclusion of the
engagement, unless the firm is notified in writing by the City of La Quinta Finance
Director of the need to extend the retention period. The auditor will be required to
make working papers available, upon request by the City. In addition, the firm
shall respond to the reasonable inquiries of successor auditors and allow
successor auditors to review working papers relating to matters of continuing
accounting significance.
g) Contract Term - The contract will have a five-year term. At the end of each year,
the City reserves the right to terminate services for the subsequent year upon 30
days notification.
h) Field Work - The City anticipates and expects the major field work for the City to
begin on or near the last work week of September of each year. This does not
include preliminary field work which may occur in April, May, or June.
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i) Draft Reports - The auditor shall provide draft copies of the audit reports and
management letter no later than November 20 of each year.
j) Final Reports - The auditor shall provide final copies of the audit reports and
management letter no later than December 10 of each year.
k) Attendance at Meetings and Hearings - As part of the scope of work, and
included in the contract price, is attendance by the Contractor at up to three
public meetings to present and discuss its findings and recommendations.
Contractor shall attend as many “working” meetings with staff as necessary in
performing scope of work tasks.
9. GENERAL PROPOSAL REQUIREMENTS
As stated in the evaluation process, the proposal will first be examined relative to technical
qualifications and approach to the audit. The technical proposal should address all the points
outlined in the request for proposals. The proposal should be prepared simply and
economically, providing a straightforward, concise description of the proposer’s capabilities
to satisfy the requirements of the request for proposals. While additional data may be
presented, each organization’s proposal should include at a minimum, the following
information as is deemed necessary: (please number each item as listed below)
A. Independence
The firm should provide an affirmative statement that it is independent of the City as defined
by generally accepted auditing standards and the U.S. General Accounting Office’s
Government Auditing Standards (1994). The firm also should provide an affirmative
statement that it is independent of all of the component units of the City, as defined by
those same standards.
The firm should also list and describe the firm’s professional relationships involving the City
or any of its agencies and component units for the past five years, together with a statement
explaining why such relationships do not constitute a conflict of interest relative to
performing the proposed audit. In addition, the firm shall give the City written notice of any
such professional relationships entered into during the period of this agreement.
B. License to Practice in California
An affirmative statement should be included that the firm and all assigned key professional
staff are properly licensed to practice in California.
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C. Firm Qualifications and Experience
The proposer should state the size of the firm, the size of the firms’ governmental audit staff,
the location of the office from which the work on this engagement is to be performed, the
number and nature of the professional staff to be employed in this engagement on a full-
time basis and the number and nature of the staff to be employed in this engagement on a
part-time basis.
If the proposer is a joint venture or consortium, the qualifications of each firm comprising the
joint venture or consortium should be separately identified and the firm that is to serve as
the principal auditor should be noted, if applicable.
The firm is also required to submit a copy of the report on its most recent external quality
control review, with a statement as to whether that quality control review included a review
of specific governmental engagements.
The firm shall also provide information on the results of any federal or state desk reviews or
field reviews of its audits during the past three years. In addition, the firm shall provide
information on the circumstances and status of any disciplinary action taken or pending
against the firm during the past three years with state regulatory bodies or professional
organizations, as well as any pending or settled litigation within the past three years.
D) Partner, Supervisory and Staff Qualifications and Experience
Identify the principal supervisory and management staff, including engagement partners,
managers, other supervisors and specialists, who would be assigned to the engagement.
Indicate whether each such person is registered or licensed to practice as a certified public
accountant in California. Provide information on the government auditing experience of
each person, including information on relevant continuing professional education for the
past three (3) years and membership in professional organizations relevant to the
performance of this audit.
Provide as much information as possible regarding the number, qualifications, experience
and training, including relevant continuing professional education, of the specific staff to be
assigned to this engagement. Including the description of any specialized skills, training, or
background in public finance that members of the engagement team possess. Indicate how
the quality of staff over the term of the agreement will be assured.
Include affirmative statement that engagement partners, managers, other supervisory staff
and specialists may be changed if those personnel leave the firm, are promoted or are
assigned to another office. Consultants and firm specialists mentioned in response to this
request for proposal can only be changed with the express prior written permission of the
City which retains the right to approve or reject replacements.
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Other audit personnel may be changed at the discretion of the proposer provided that
replacements have substantially the same or better qualifications or experience.
E. Similar Engagements with other Governmental Entities
For the firm’s office that will be assigned responsibility for the audit, list the most significant
engagements performed in the last five years that are similar to the engagement described
in this request for proposal. Indicate the scope of work, date, engagement partners, total
hours, and the name and telephone number of the principal client contact. A list of all
governmental audit clients in this section for the principal office should also be supplied.
Include a description of the engagement team’s experience in auditing and reviewing
financial statements receiving GFOA and CSMFO awards.
F. Specific Audit Approach
The proposal should set forth a work plan, including an explanation of the audit
methodology to be followed, to perform the services required in this request for proposal.
Proposers will be required to provide the following information on their audit approach:
Proposed segmentation of the engagement
Sample size and the extent to which statistical sampling is to be used in the
engagement
Type and extent of analytical procedures to be used in the engagement
Methods used to gain and document an understanding of the City of La Quinta’s
internal control structure.
Determination of laws and regulations that will be subject to audit test.
Selection of drawing audit samples for purposes of testing compliance
Indicate the location of the office in which the audit team will be based. The
municipal audit experience referenced in item E above must come from this office.
Sample of type of management letter usually issued.
G. Total Maximum Price
It is the City’s normal policy to solicit bids for audit services no less that once every five years,
subject to annual review. Accordingly, your proposal should encompass the five-year time
span.
The City, Housing Authority, and its agencies request a statement of maximum cost be made
for the annual audit as set forth in SCOPE OF WORK TO BE PERFORMED, REPORTS TO BE
ISSUED AND CONTRACT PERFORMANCE to include, in addition to “normal audit
requirements,” up to 40 hours each year of partner/manager time answering accounting
questions raised by the City.
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The cost bid should contain all pricing information relative to performing the audit
engagement as described in this request for proposal. The total maximum price to be bid is
to contain all direct and indirect costs including all out-of-pocket expenses. Cost should be
specified for each fiscal year.
The City requests that the proposal also include a schedule of rates by professional staff
classifications. The schedule should reflect rates for audit services and for consulting
services. It should also reflect the anticipated distribution of hours per staff classification.
Please itemize fees for the City, Housing Authority, Successor Agency, Financing Authority,
and partner/manager hours. The maximum annual fee will remain fixed for the five years
covered by the audit engagement agreement.
The City will not be responsible for expenses incurred in preparing and submitting the
technical proposal and cost bid. Such costs should not be included in the proposal.
The cost bid must include the following information:
Certification that the person signing the proposal is entitled to represent the firm,
empowered to submit the bid, and authorized to sign a contract with the City of La
Quinta.
A total maximum price for the five-year engagement.
H) Rates by Partner, Specialist, Supervisory and Staff Level Times Hours Anticipated for
Each
The cost bid should include a schedule of professional fees and expenses, which supports the
total maximum price. Separate form should be prepared for each of the fiscal years 2016-
17, 2017-2018, 2018-2019, 2019-2020, and 2020-2021.
I) Out-of-Pocket Expenses in the Total Maximum Price and Reimbursement Rates
All estimated out-of-pocket expenses to be reimbursed should be presented on the second
page of the cost bid. All expense reimbursements will be charged against the total
maximum price submitted by the firm.
J) Rates for Additional Professional Services
If it should become necessary for City to request the auditor to render any additional services
to either supplement the services requested in this RFP or to perform additional work as a
result of the specific recommendations included in any report issued on this engagement,
then such additional work shall be performed only if set forth in an addendum to the
contract between City and the firm. Any such additional work agreed to between City and
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the firm shall be performed at the same rates set forth in the schedule of fees and expenses
included in the cost bid.
K) Insurance Certificate
Each proposal must include a certificate of insurance showing:
1. The insurance carrier.
2. Scope of coverage and limits.
3. Deductibles and self-insured retention.
The purpose of this submittal is to generally assess the adequacy of the proposer’s insurance
coverage during proposal evaluation; endorsements are not required until contract award.
10. EVALUATION AND SELECTION PROCESS
Prior to submission deadline questions may be directed to:
Karla Campos
Finance Director/ Treasurer
City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
(760)777-7703
Proposer must submit five copies of the audit proposal to the City of La Quinta Finance
Department in two clearly labeled sealed envelopes, with one envelope containing costs of
the proposed audit services and the other technical data. Deadline for submission is 5:00
p.m. March 1, 2017.
The evaluation process consists of the following steps:
1. The proposals will be evaluated and rated by a selection committee consisting of
the Investment Advisory Board, up to two Council members, and two Finance staff
members based on the technical qualifications and approach of the proposer.
Final proposals will be selected from those organizations and ranked based on
their technical qualifications, approach, and price score.
2. The finalists will be required to make an oral presentation to the evaluation
committee.
Selection of the successful proposal will be at the sole discretion of the City Council.
It is expected the City Council will conduct its review and make a selection before April 30,
2017.
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THE CITY COUNCIL REQUESTS THAT ONCE PROPOSALS HAVE BEEN SUBMITTED, NO
UNSOLICITED CONTACT OR DISCUSSIONS CONCERNING THESE PROPOSALS BE MADE
PRIOR TO THE EVALUATION OF ALL PROPOSALS.
11. OTHER INFORMATION
A. Name and Telephone Number of Principal Contact
The auditor’s principal contact with the City will be the Accounting Manager, who will
coordinate the assistance to be provided by the City to the auditor. They can be contacted at
760-777-7150.
B. Background Information
The City of La Quinta encompasses approximately 31 square miles, has a residential
population of slightly more than 38,394 and is located in the Coachella Valley approximately
25 miles east of Palm Springs, CA.
Incorporated in 1982, governed by a Charter, the City is operated under a City Council/City
Manager form of government. Four City Council members are elected at large to serve four-
year terms. The Mayor is elected, serving a two-year term to be the City Council
administrative head. The Mayor/City Council also serve as Housing Authority members.
The City and its agencies have expanded the use of technology and reporting for much of the
finance and budget activities. This department currently consists of seven staff members.
The City contracts for some services to its residents and businesses including police, fire,
water and refuse disposal. As of June 30, 2016, City employment totaled 78 full-time and 14
part-time employees. The City participates in the State of California Public Employees’
Retirement System (PERS).
Copies of the City’s recent audited financial statements and budgets are located online at
www.la-quinta.org.
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The City of La Quinta uses the following fund types and account groups in its financial
reporting:
Fund Type/Account Group Number of Individual Funds Number of Funds on CAFR
General Fund 1 1
Special Revenue Funds 18 18
Debt Service Funds 5 1
Capital Projects Funds 8 8
Enterprise Funds 2 1
Internal Service Funds 4 4
Agency Funds 7 4
Private Purpose Funds 1 1
The City of La Quinta prepares its budgets on a basis consistent with generally accepted
accounting principles. The City currently uses Tyler Technologies (Incode 10) operating
financial software.
Last revised April 2015
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 (“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
, Project No. , 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
Last revised April 2015 -2-
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
Last revised April 2015 -3-
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
Dollars ($ ) (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
Last revised April 2015 -4-
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 _________, ____, 20__
and terminate on ____________, ___ 20___(“Initial Term”). This Agreement may be
extended for _____ 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.____________________________________
Last revised April 2015 -5-
E-mail: _____________________________
b. ___________________________________
E-mail: _____________________________
c. ___________________________________
E-mail: _____________________________
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
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
Last revised April 2015 -6-
independent contractor of City and shall remain at all times as to City a wholly
independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its agents
or employees are agents or employees of City. 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
Last revised April 2015 -7-
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
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. 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 officers, employees, agents, and volunteers as set forth in Exhibit F
(“Indemnification”) which is incorporated herein by this reference and expressly made
a part hereof.
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
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
Last revised April 2015 -8-
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.
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
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
Last revised April 2015 -9-
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
damages it reasonably believes were suffered by City due to the default of Consultant
in the performance of the Services required by this Agreement.
Last revised April 2015 -10-
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.
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
Last revised April 2015 -11-
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.
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
Last revised April 2015 -12-
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
Attention: Frank Spevacek,
City Manager
78-495 Calle Tampico
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.
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
Last revised April 2015 -13-
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
Agreement shall be binding upon the heirs, executors, administrators, successors, and
assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
Last revised April 2015 -14-
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:
By:
Name:
Title:
Dated:
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
Last revised April 2015 EXHIBIT A
Page 1 of 1
Exhibit A
Scope of Services
1. Services to be Provided:
[TO BE PROVIDED BY STAFF (include location of work)]
2. Performance Standards:
[TO BE PROVIDED BY STAFF]
Last revised April 2015 EXHIBIT B
Page 1 of 1
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 _______________________($_____________)
(“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.
[insert Consultant’s schedule of compensation]
Last revised April 2015 EXHIBIT C
Page 1 of 1
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.
[insert Project Schedule]
Last revised April 2015 EXHIBIT D
Page 1 of 1
Exhibit D
Special Requirements
[insert Special Requirements or indicate, “None” if there are 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.
Last revised April 2015 EXHIBIT F
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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.