HomeMy WebLinkAboutC-9464-1 - PSA for an Evaluation of LIUNA Supplemental Pension EvaluationAMENDMENT NO. TWO TO
PROFESSIONAL SERVICES AGREEMENT
? WITH EIDE BAILLY LLP FOR
LIUNA SUPPLEMENTAL PENSION EVALUATION
V THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. Two") is made and entered into as of this 21 st day of February, 2025
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and EIDE BAILLY LLP, a California foreign
limited liability partnership registered with North Dakota as a foreign limited liability
partnership, and registered with Minnesota as a limited liability partnership ("Consultant"),
whose address is 4310 17th Ave S, Fargo, North Dakota 58103, and is made with
reference to the following:
RECITALS
A. On October 13, 2023, City and Consultant entered into a Professional Services
Agreement ("Agreement") for Consultant to evaluate and provide options regarding
the City's LIUNA supplemental pension plan ("Project").
B. On April 9, 2024, City and Consultant entered into Amendment No. One to the
Agreement ("Amendment No. One") to extend the term of the Agreement to March
31, 2025.
C. The parties desire to enter into this Amendment No. Two to extend the term of the
Agreement to March 31, 2026.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on March 31, 2026, unless terminated earlier as set forth herein."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: ' / � �t
r
By: ,' (t:�
Rare n G. Harp
Git� Attorney
ATTEST:
Date: 3, . AD
By: O&J.
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 31b125
By:_ gym C�l�
Jason AI-Imani
Finance Director
CONSULTANT: Eide Bailly LLP, a
California foreign limited liability
partnership registered with North Dakota
as a foreign limited liability partnership,
and registered with Minnesota as a
limited liability partnership
Date: IMINCA 65; �0:25
B
y•
Bradf rd ii1ockabrand
Partner `
[END OF SIGNATURES]
Eide Bailly LLP Page 2
AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT
WITH EIDE BAILLY LLP FOR
LIUNA SUPPLEMENTAL PENSION EVALUATION
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 9th day of April, 2024
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and EIDE BAILLY LLP, a California foreign
limited liability partnership registered with North Dakota as a foreign limited liability
partnership, and registered with Minnesota as a limited liability partnership ("Consultant"),
whose address is 4310 17th Ave S, Fargo, North Dakota 58103, and is made with
reference to the following:
RECITALS
A. On October 13, 2023, City and Consultant entered into a Professional Services
Agreement ("Agreement") for Consultant to evaluate and provide options regarding
the City's LIUNA supplemental pension plan ("Project").
B. The parties desire to enter into this Amendment No. One to extend the term of the
Agreement to March 31, 2025.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on March 31, 2025, unless terminated earlier as set forth herein."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Aareement shall remain unchanaed and shall be in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: q/q/ 2Lf
in
in C. Harp
Attorney
ATTEST:
Date: �J•o
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: g1to124p
By: 0l .aw
Jas n AI -Imam
Finance Director
CONSULTANT: Eide Bailly LLP, a
California foreign limited liability
partnership registered with North Dakota
as a foreign limited liability partnership,
and registered with Minnesota as a
limited liability partnership
Date:
By:46�9pm--�By: Signed in Counterpart
Leilani I. Brown Bradford Rockabrand
City Clerk Partner
:-In
[END OF SIGNATURES]
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Eide Bailly LLP Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By: A
2itron C. Harp -%4 'lot,y Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 41 i 012,+
By: QaWXAWW
Jason AI -Imam
Finance Director
CONSULTANT: Eide Bailly LLP, a
California foreign limited liability
partnership registered with North Dakota
as a foreign limited liability partnership,
and registered with Minnesota as a
limited liability partnership
Date: 04/10/2024
f�
By:
Bradford Rockabrand
Partner
[END OF SIGNATURES]
Eide Bailly LLP Page 2
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■■EN
T PROFESSIONAL SERVICES AGREEMENT
Qr WITH EIDE BAILLY LLP FOR
LIUNA SUPPLEMENTAL PENSION EVALUATION
v
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 13th day of October, 2023 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and EIDE BAILLY LLP, a California foreign limited liability partnership registered with
North Dakota as a foreign limited liability partnership, and registered with Minnesota as a
limited liability partnership ("Consultant"), whose address is 4310 17th Ave S, Fargo,
North Dakota 58103, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to evaluate and provide options regarding the
City's LIUNA supplemental pension plan ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2024, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Forty Two Thousand
Dollars and 00/100 ($42,000.00), without prior written authorization from City. No billing
rate changes shall be made during the term of this Agreement without the prior written
approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit A to this Agreement or specifically approved in writing in advance by
City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
Eide Bailly LLP Page 2
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit A.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Scott Catlett to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld.
5.2 Consultant warrants that it will continuously furnish the necessary personnel
to complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Finance Department. City's Finance
Director or designee shall be the Project Administrator and shall have the authority to act
for City under this Agreement. The Project Administrator shall represent City in all matters
pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
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8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify and hold
harmless City, its City Council, boards and commissions, officers, agents, volunteers, and
employees and any person or entity owning or otherwise in legal control of the property
upon which Consultant performs the Project and/or Services contemplated by this
Agreement (collectively, the "Indemnified Parties") from and against any and all claims
(including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), including, without limitation, attorneys' fees,
disbursements and court costs incurred by the City in conducting its own defense or
responding to such Claim or Claims, which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them), and/or if it is subsequently determined that an
employee of Consultant is not an independent contractor.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
negligence, active negligence or misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action on
or to enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by Consultant.
10. INDEPENDENT CONTRACTOR
10.1 It is understood that City retains Consultant on an independent contractor
basis and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
Eide Bailly LLP Page 4
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
10.2 Consultant agrees and acknowledges that no individual performing
Services or Work pursuant to this Agreement shall: work full-time for more than six (6)
months; work regular part-time service of at least an average of twenty (20) hours per
week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or
already be a CalPERS member.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit B, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
Eide Bailly LLP Page 5
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
specifically produced or specifically prepared by Consultant, its officers, employees,
agents and subcontractors for and required to be delivered to City under this Agreement
(hereinafter, "Documents"), shall become the exclusive property of City, and City shall
have the sole right to use such materials in its discretion without further compensation to
Consultant or any other party. Consultant shall, at Consultant's expense, provide such
Documents, including all logins and password information to City upon prior written
request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
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unless City expressly authorizes in writing the release of information or such disclosure
is required by law or applicable professional standards.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall have
an immediate right to appeal to the City Manager or designee with respect to such
disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of return that City earned on its investments during the time period, from the date
of withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project
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24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Finance Director
Finance Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Bradford Rockabrand
Eide Bailly LLP
4310 17th Ave S
Fargo, North Dakota 58103
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
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identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. Consultant
shall have the right to terminate this Agreement after each deliverable upon sixty (60)
days' prior written notice to City. In the event of termination under this Section, City shall
pay Consultant for Services satisfactorily performed and costs incurred up to the effective
date of termination for which Consultant has not been previously paid. On the effective
date of termination, Consultant shall deliver to City all reports, Documents and other
information developed or accumulated in the performance of this Agreement, whether in
draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
Eide Bailly LLP Page 9
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein. No
verbal agreement or implied covenant shall be held to vary the provisions herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 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 the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Eide Bailly LLP Page 10
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: I ?Zl
By: 4,-.)
ron C. Harp i2 %15/Z3 wc-
City
ATTEST:
Date:
1
:.
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 1II7 7,011
Jason AI -Imam
Finance Director
CONSULTANT: Eide Bailly LLP, a
California foreign limited liability
partnership registered with North Dakota
as a foreign limited liability partnership,
and registered with Minnesota as a limited
liability partnership
Date: (> I I cA r a0 a 4
By:
Bra4forRockabrand
Partner
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates
Exhibit B — Insurance Requirements
Eide Bailly LLP Page 11
EXHIBIT A
SCOPE OF SERVICES AND SCHEDULE
OF BILLING RATES
Eide Bailly LLP Page A-1
Exhibit A
Scope of Services
• Work with the LIUNA staff to:
o Obtain updated termination valuation reports.
o Fully understand the process and terms associated with terminating membership in the plan
and obtain written documentation of the process and terms.
o Confirm that one or more of the three groups of employees currently enrolled in LIUNA would
be permitted to individually separate from the LIUNA plan and obtain written documentation
of LIUNA's determination.
o Determine whether LIUNA will allow the executive employees within the Key and
Management group to separate from the LIUNA plan in the event that the entire Key and
Management group ultimately does not separate from the LIUNA plan and obtain written
documentation of LIUNA's determination.
• Work with the City's chosen actuary to validate work done by the prior actuary and augment it, as
required, to:
o Provide accurate and comprehensive information regarding the value of the LIUNA pension
benefit versus other self -directed investment options available to various classes of
employees such as those with retroactive service credit, those who have not yet vested in the
plan, and those with various combinations of the plan's historical benefit formulas.
o Determine the impact of exiting the plan on the various classes of employees.
o Determine the impact of exiting the plan on retirees.
o Identify any concerns regarding the plan's actuarial assumptions and/or benefit structure.
o Analyze termination valuation reports provided by LIUNA to identify any concerns.
o Prepare a risk analysis documenting any risks associated with staying in the plan (e.g.,
discount rate changes, governance concerns, benefit formula changes, etc.).
• Work with the City's legal counsel to:
o Document any legal constraints associated with exiting the plan relative to the impact on
various classes of employees.
• Update staff's historical narrative of the City's membership in the plan from the date of admission
through today and prepare a high-level summary of the document to provide a historical
understanding to key stakeholders such as the City Council, executive leadership, and union
representatives.
• Develop one or more scenarios for exiting the plan that highlight the cost by bargaining group and
work with City Management to identify appropriate options for payment of the termination payments
for consideration by the City Council and union representatives.
• Provide a concise written summary report incorporating the historical narrative, results of the
actuary's analyses, and information regarding the costs and benefits associated with exiting the plan
versus staying in the plan under the selected scenario(s).
• Assist with any presentations to the City Council or union representatives.
EideBailly
CPAs & BUSINESS ADVISORS
October 31, 2023
Jason AI -Imam
Finance Director/ Treasurer
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
This letter outlines the understanding of the terms and objectives of the consulting engagement between Eide
Bailly LLP (Eide Bailly) and the City of Newport Beach, California (the City or you).
Scope of Engagement
We will work with you to provide consulting services to assist the City with the evaluation of options for exiting
its LIUNA supplemental pension plan.
Our engagement will be performed under the Statements on Standards for Consulting Services issued by the
American Institute of Certified Public Accountants (AICPA). We will not provide audit, review, compilation, or
financial statement preparation services to any historical or prospective financial information or provide
attestation services under the AICPA Statements on Standards for Attestation Engagements and assume no
responsibility for any such information.
You will provide us, as promptly as possible, all requested information and documentation reasonably deemed
necessary or desirable by us in connection with the engagement. You represent and warrant that all information
and documentation provided or to be provided to us is true, correct, and complete, to the best of your
knowledge and belief. We are authorized to rely upon such information and documentation without
independent investigation or verification.
We may use third party service providers and/or affiliated entities (including Eide Bailly Shared Services Private
Limited) (collectively, "service providers") in order to facilitate delivering our services to you. Our use of service
providers may require access to client information by the service provider. We will take reasonable precautions
to determine that they have the appropriate procedures in place to prevent the unauthorized release of
confidential information to others. We will remain responsible for the confidentiality of client information
accessed by such service provider and any work performed by such service provider.
We agree to retain our work papers for a period of at least eight years from the date of our work.
Eide Bailly LLP has owners that are not licensed as certified public accountants as permitted under Section 5079
of the California Business Code. It is not anticipated that any of the non -licensee owners will be performing
services for the City.
What inspires you, inspires us. eidebailly.(om
10681 Foothill Blvd., Ste. 300 Rancho Cucamonga, CA 91730-3831 T 909.466.4410 F 909.466,4431 EOE
Timeline
We will begin our work upon acceptance of this engagement agreement and execution of the City's required
professional services agreement by both parties. We would expect to complete our work within 180 days of
receipt of the executed engagement and professional services agreements. This timetable assumes the timely
receipt of any requested information and the cooperation of the parties involved. If delays are experienced in
receiving information, the delivery of our work will be delayed accordingly.
Fees
Eide Bailly is dedicated to professionalism and service to our clients. Although professional fees should be
reasonable, they must be representative of the professional quality of the services to be provided. Our fees are
based upon the amount of time required to complete the assignment and the level of personnel assigned, plus
actual out-of-pocket expenses. Per our proposal in response to your informal request for proposals, we agree to
a not to exceed fee amount of $42,000 for this engagement. We will notify you well in advance if we believe this
amount is not sufficient to complete the engagement due to additional information learned during our work or
additional work requested by the City.
The following hourly rates will be used for this engagement:
Staff Level
Partner
Hourly Rate
$371
Director
$350
Senior Manager
$318
Manager
$265
Supervisor
$235
Senior Associate
$201
Staff Associate
$159
In addition, we will be compensated for any time and expenses, including time and expenses of legal counsel,
we may incur in conducting or responding to discovery requests or participating as a witness or otherwise in any
legal, regulatory, or other proceedings as a result of our Firm's performance of these services. You and your
attorney will receive, if lawful, a copy of every subpoena we are asked to respond to on your behalf and will
have the ability to control the extent of the discovery process to control the costs you may incur.
Should our relationship terminate before our work is completed, you will be billed for services to the date of
termination. All bills are payable upon receipt. A service charge of 1% per month, which is an annual rate of 12%,
will be added to all accounts unpaid 30 days after billing date. If collection action is necessary, expenses and
reasonable attorney's fees will be added to the amount due.
The City accepts responsibility for the results of the services being provided and agrees to perform the following
functions in connection with this engagement:
• Make all management decisions and perform all management functions.
• Designate a competent individual to oversee the services.
• Evaluate the adequacy and results of the services performed.
• Accept responsibility for the results of the services.
• Establish and maintain internal controls, including monitoring ongoing activities.
DISPUTE RESOLUTION
The following procedures shall be used to resolve any disagreement, controversy or claim that may arise out of
any aspect of our services or relationship with you, including this engagement, for any reason ("Dispute").
Specifically, we agree to first mediate.
Mediation
All Disputes between us shall first be submitted to non -binding mediation by written notice ("Mediation
Notice") to the other party. In mediation, we will work with you to resolve any differences voluntarily with the
aid of an impartial mediator. The mediator will be selected by mutual agreement, but if we cannot agree on a
mediator, one shall be designated by the American Arbitration Association ("AAA").
The mediation will be conducted as specified by the mediator and agreed upon by the parties. The parties agree
to discuss their differences in good faith and to attempt, with the assistance of the mediator, to reach an
amicable resolution of the Dispute. Mediation will be conducted with the parties in person in Laguna Hills, CA.
Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally
by the parties.
Either party may commence suit on a Dispute after the mediator declares an impasse.
LIMITATION OF DAMAGES AND NO PUNITIVE DAMAGES
The exclusive remedy available to you in any adjudication proceeding shall be the right to pursue claims for
actual damages that are directly caused by acts or omissions that are breaches by us of our duties under this
agreement and/or under applicable professional standards, such damages will be limited to no more than two
times fees paid under this agreement. In no event shall we be liable to you for any punitive or exemplary
damages, or for attorneys' fees.
TIME LIMITATION
The nature of our services makes it difficult, with the passage of time, to gather and present evidence that fully
and fairly establishes the facts underlying any Dispute. We both agree that, notwithstanding any statute of
limitations that might otherwise apply to a Dispute, it is reasonable that you may not bring any legal proceeding
against us unless it is commenced within twenty-four (24) months ("Limitation Period") after the date when we
deliver our report, return or other deliverable under this agreement to you, regardless of whether we do other
services for you or that may relate to the agreed -upon procedure report.
The Limitations Period applies and begins to run even if you have not suffered any damage or loss, or have not
become aware of the existence or possible existence of a Dispute.
INDEMNITY
You agree that none of Eide Bailly LLP, its partners, affiliates, officers or employees (collectively "Eide Bailly")
shall be responsible for or liable to you for any misstatements that we may fail to detect as a result of knowing
representations made to us, or the concealment or intentional withholding of information from us, by any of
your owners, directors, officers or employees, whether or not they acted in doing so in your interests or for your
benefit, and to hold Eide Bailly harmless from any claims, losses, settlements, judgments, awards, damages and
attorneys' fees from any such misstatement, provided that the services performed hereunder were performed
in accordance with professional standards, in all material respects.
If a claim is brought against you by a third -party that arises out of or is in any way related to the services
provided under this engagement, you agree to indemnify Eide Bailly LLP, its partners, affiliates, officers and
employees against any losses, including settlement payments, judgments, damage awards, punitive or
exemplary damages, and the costs of litigation (including attorneys' fees) associated with the services
performed hereunder provided that the services were performed in accordance with professional standards, in
all material respects.
ASSIGNMENTS PROHIBITED
You agree that you will not and may not assign, sell, barter or transfer any legal rights, causes of actions, claims
or Disputes you may have against Eide Bailly LLP, its partners, affiliates, officers and employees, to any other
person or party, or to any trustee, receiver or other third party.
Please sign and return the attached copy of this letter to indicate your acknowledgment of, and agreement with,
the arrangements for our engagement including our respective responsibilities. If you have any questions,
please let us know.
We appreciate the opportunity to be of service to you and look forward to working with you and your staff.
Respectfully,
Dr. Bradford Rockabrand, CPA
Partner
***************************************************************
RESPONSE:
This letter correctly sets forth our understanding.
Acknowledged and agreed on behalf of the City of Newport Beach, California by:
Name:
Title:
Date:
4
EXHIBIT B
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than two million dollars ($2,000,000) per
occurrence, four million dollars ($4,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Eide Bailly LLP Page B-1
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
two million dollars ($2,000,000) per claim and four million dollars
($4,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. Prior to
the expiration of any such policy, evidence of insurance showing that such
insurance coverage has been renewed or extended shall be filed with the
City. If such coverage is cancelled or reduced, Consultant shall, within ten
(10) days after receipt of written notice of such cancellation or reduction of
coverage, file with the City evidence of insurance showing that the required
Eide Bailly LLP Page B-2
insurance has been reinstated or has been provided through another
insurance company or companies.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in additional cost to
Consultant, City and Consultant may renegotiate Consultant's
compensation or terminate the Agreement in accordance with Section 27.
Termination.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Notice of Cancellation. Consultant shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
Eide Bailly LLP Page B-3
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance that involve or may involve coverage under any of the required
liability policies under this Agreement. City 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.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
Eide Bailly LLP Page B-4
4,L Insured
Name
Account Number
Address:
Status
A—nt Information
Account Number FVOOG07119
Risk Type Professional Services.".0raement
Do Not Call
Address Information
Mailing Add —
Insured,
EIDE BAILLY UP
Address 1
4310 17TH,AVE S
Address 2.
FARGO
EIDE BAILLY LLP
FV00001119
4.310 17TH AVE S. FARGO, NO.58103
Comof ant Mm Waived 00ciencies.
Address Updated
Physi-I Address
Tuesday, February 13, 2024 2:37:45 PM - Inbox - BCleberg@newportbeachca.gov - Outlook