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PROFESSIONAL SERVICES AGREEMENT
WITH MOSS ADAMS LLP FOR
COMMERCIAL MARINA ATTEST SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement') is made and
entered into as of this 24th day of March, 2014 ( "Effective Date "), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
( "City"), and MOSS ADAMS LLP, a Washington limited liability partnership
( "Consultant'), whose address is 2030 Main Street, Suite 1400, Irvine, CA 92614, 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 provide attest services of gross revenue for
slip rentals at commercial marinas within the City ( "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 March 31, 2015, 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 flat rate not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit B 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 Four Thousand Eighty
Eight Dollars and 001100 ($4,088.00), 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 invoices to City describing the Work performed.
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 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 B 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 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 B.
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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 Simon Dufour 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 with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. 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/ Treasurer 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 the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
8.2 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 the highest professional standard.
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8.3 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.
8.4 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, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties ") from and against any
and all claims, demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
arising from personal injury (including death) or damage to real or tangible property
(individually, a Claim; collectively, "Claims "), to the extent proximately caused by any
breach of the terms and conditions of this Agreement by Consultant, or negligence in
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).
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 or willful 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
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
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
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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.
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 C, 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 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.
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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 final report or other completed deliverables( which may be
a map, record, plan, document and other writing produced, including but not limited to,
websites, blogs, social media accounts and applications) prepared or caused to be
prepared by Consultant, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, and delivered to the City, excluding any
Consultant Material (defined below) contained or embodied therein (hereafter,
"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.
Consultant may retain a copy of Documents for archival purposes, subject to continuing
obligations of confidentiality.
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.
17.4 Consultant shall own its working papers and any engagement
documentation. Consultant also shall own its accounting - related general skills, know -
how, expertise, ideas, concepts, methods, techniques, processes, materials or other
intellectual property which may have been discovered, created, received, developed or
derived by Consultant (collectively, "Consultant Materials "). The City shall have a non-
exclusive, non - transferable license to use Consultant Materials for its own internal use
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and only for the purposes for which they are delivered to the extent they form part of a
Document.
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 unless City expressly authorizes in writing the release of information.
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
not discontinue Work as a result of such withholding. 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
Moss Adams, LLP Page 7
borne by Consultant to the extent required by law. 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.
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 "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. 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: Dan Matusiewicz
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: Simon Dufour
Moss Adams, LLP
2030 Main Street, Suite 1400
Irvine, CA 92614
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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 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 parry written
notice thereof.
27.2 Notwithstanding the above provisions, either party 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 the other
party. 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 Documents developed or accumulated in
the performance of this Agreement.
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 applicable 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.
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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
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.
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 of race, religion, color, national origin, handicap,
ancestry, sex, 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]
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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: ` 7ioll f
City Attorney
ATTEST:
Date: "K �
By. F�—
Leilani
I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Dan Matusiewicz
Finance Director/ Treasu
CONSULTANT: Moss Adams LLP, a
Washington limited liability partnership
Date:
By:
Name:
Title:
Date:
By:
Name:
Title:
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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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: q
B y: A rf--
Aaron arp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: �e - /S l y
By,
n Na e icz
Finance Director/ Treasur r
CONSULTANT: Moss Adams LLP, a
Washington limited liability partnership
Date:
Name.
Title: Sc�;:y
Date:
By:
Name:_
Title:
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Moss Adams, LLP Page 11
EXHIBIT A
SCOPE OF SERVICES
Consultant shall be the City's designated Certified Public Accountant ( "CPA ") for
purposes of an agreed upon procedures (AUP) engagement concerning Commercial
Marina Operators gross slip revenues for purposes of calculation of the annual Marina
Index in accordance with the procedures set forth in City Council Resolution 2012 -96.
Description of Agreed Upon Procedures
In this engagement, Consultant will apply the
below Schedule of Agreed -Upon Procedures
Indexed Rate calculation prepared by the City,
Resolution No. 2012 -96:
agreed -upon procedures listed in the
(the "Schedule ") to the 2014 Target
in accordance with Attachment 2 of
1. Agree Gross Revenue for Slip Rental utilized in the 2014 Target Indexed Rate
calculation for the year ending December 31, 2013 to the Gross Revenue for Slip
Rental amounts provided by the nine Commercial Marina Operators identified for the
Marina Index Composition (the "Operators ").
2. Agree Total Marina Square Footage and Private Tidelands Square Footage utilized
in the Target Indexed Rate calculation for Operators to the Tideland Ariel Map Reports
prepared by the City of Newport Beach GIS Division.
3. Recalculate the mathematical accuracy of the 2014 Target Indexed Rate
calculation, noting the following calculation:
• The Index Square Footage of each Operator is calculated by Reducing the Total
Marina Square Footage by the Private Tidelands Square Footage.
• The Net Revenue for Slip Rentals is calculated multiplying the Gross Revenue for
Slip Rentals for each of the Operators by their percentage of Index Square Footage
to Total Marina Square Footage.
• The Aggregate 16% Equivalent Rent is calculated by multiplying the combined Net
Revenue for Slip Rentals for all of the Operators by point one six (0.16).
• The Aggregate Premises' Square Footage is calculated by summing the Index
Square Footage of the Operators.
• The Aggregate 16% Equivalent Rent is then divided by the Aggregate Premises'
Square Footaae to determine the Taraet Indexed Rate.
The City has specified the agreed -upon procedures, and is solely responsible for the
sufficiency of the procedures. Consultant will not evaluate the agreed -upon procedures
to determine if they are appropriate for the City's purposes. Consequently, Consultant
makes no representation regarding the sufficiency of the agreed -upon procedures either
for the purpose of this engagement or for any other purpose.
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At the conclusion of the engagement, Consultant will require a representation letter from
City management that, among other things, will confirm management's responsibility for
the calculation of the 2014 Target Indexed Rate calculation in accordance with
Attachment 2 of Resolution 2012 -96.
Because the agreed -upon procedures do not constitute an examination, Consultant will
not express an opinion on the 2014 Target Indexed Rate calculation or on City's
compliance with Attachment 2 of Resolution No 2012 -96. Moreover, Consultant has no
obligation to perform any procedures beyond those listed in the above Schedule.
Consultant's report will contain a paragraph indicating that had Consultant performed
additional procedures, other matters might have come to its attention that would have
been reported to City.
This engagement to apply the agreed -upon procedures will be performed in accordance
with the attestation standards established by the American Institute of Certified Public
Accountants. If, for any reason, Consultant is unable to complete the agreed -upon
procedures, Consultant will either describe any restrictions on the performance of the
agreed -upon procedures in our report, or will not issue a report.
Timing
Simon Dufour is responsible for supervising the engagement and authorizing the
signing of Consultant's report. Consultant will issue its report no later than two (2)
weeks after the effective date of this Agreement. Consultant's services will be
concluded upon delivery to City of Consultant's report on the agreed -upon procedures
applied to the 2014 Target Indexed Rate calculation.
Deliverables
When Consultant completes its work, Consultant will issue a report setting forth the
agreed -upon procedures and Consultant's findings. This report is intended solely for the
use of the City, and should not be used by anyone other than the City. Consultant shall
deliver a report to City within two (2) weeks of the Effective Date.
Use of Nonlicensed Personnel
Certain engagement personnel who are not licensed as certified public accountants
may provide services during this engagement.
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EXHIBIT B
SCHEDULE OF BILLING RATES
Level
Hours
to
date
Additional
Hours
Total Rate
Fees
Staff
4.75
2
6.75 150
1,013
Senior
Manager
7
1
8 325
2,600
Partner
1
1 475
475
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EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. 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 officers, agents,
employees and volunteers.
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 one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) 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) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a 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
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vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
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
one million dollars ($1,000,000) per claim and two million dollars
(2,000,000) 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 (except professional liability) shall be
endorsed to waive subrogation against City, its elected or appointed
officers, agents, officials, employees and volunteers 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. The general liability policy shall provide or be
endorsed to provide that City and its officers, officials, employees,
volunteers and agents 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.
D. Notice of Cancellation. The general liability policy and the auto insurance
policy required above shall be endorsed to state that coverage shall not be
canceled, except with notice to the City. The professional liability insurer
shall agree to endeavor to provide at thirty (30) days' notice of
cancellation.
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
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Agreement. City reserves the right to require complete, certified copies of
all required insurance policies (except declarations pages for professional
liability), should it be necessary, i.e., due to litigation.
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 substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. 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.
D. 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.
E. Self- insured Retentions. Any deductibles or self- insured retentions as to
general liability and automobile liability coverage must be declared to and
approved by City. The City may require the Consultant to provide proof of
ability to pay losses and related investigations, claim administration and
defense expenses with the retention. Any deductibles or self- insured
retentions as to professional liability coverage should be appropriate for an
accounting firm of the size and structure of Consultant.
F. 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 sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. 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.
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H. 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. If the Consultant maintains higher limits that the minimums
shown above, the City requires and shall be entitled to coverage for the
higher limits maintained by the Consultant. Any available insurance
proceeds in excess of the specified minimum limits of insurance coverage
shall be available to the City.
I. 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 general liability insurance
required from subcontractors.
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