CONTRACT 3823 Professional Services Agreement CLOSED3823 .. ,
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
Macias Gini & O'Connell, LLP
This AGREEMENT is entered into this 21 st day of May, 2008, by and between the CITY OF
EL SEGUNDO, a municipal corporation and general law city ( "CITY ") and MACIAS GINI &
O'CONNELL, a California Limited Liability Partnership ( "CONSULTANT ").
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the terms
and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed Thirty Seven Thousand Dollars ($37,000) for CONSULTANT's services.
CITY may modify this amount as set forth below. Unless otherwise specified by
written amendment to this Agreement, CITY will pay this sum as specified in the
attached Exhibit `B," which is incorporated by reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit "A," which is
incorporated by reference.
B. CONSULTANT will, in a professional manner, furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all tests,
testing and analyses, calculation, and all other means whatsoever, except as herein
otherwise expressly specified to be furnished by CITY, necessary or proper to perform
and complete the work and provide the professional services required of
CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT will use
the appropriate generally accepted professional standards of practice existing at the time of performance
utilized by persons engaged in providing similar services. CITY will continuously monitor
CONSULTANT's services. CITY will notify CONSULTANT of any deficiencies and
CONSULTANT will have fifteen (15) days after such notification to cure any shortcomings to CITY's
satisfaction. Costs associated with curing the deficiencies will be borne by CONSULTANT.
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4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and hourly rates
for each personnel category and reimbursable costs (all as set forth in Exhibit `B ") the tasks
performed, the percentage of the task completed during the billing period, the cumulative percentage
completed for each task, the total cost of that work during the preceding billing month and a
cumulative cash flow curve showing projected and actual expenditures versus time to date.
5. NON - APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for
current services are within the current budget and within an available, unexhausted and unencumbered
appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment
of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs
incurred up to the conclusion of the current fiscal year.
6. ADDITIONAL WORK.
A. CITY's city manager ( "Manager") may determine, at the Manager's sole
discretion, that CONSULTANT must perform additional work ( "Additional
Work") to complete the Scope of Work. If Additional Work is needed, the Manager
will give written authorization to CONSULTANT to perform such Additional
Work.
B. If CONSULTANT believes Additional Work is needed to complete the Scope of Work,
CONSULTANT will provide the Manager with written notification that contains a
specific description of the proposed Additional Work, reasons for such Additional
Work, and a detailed proposal regarding cost.
C. Payments over $10,000 for Additional Work must be approved by CITY's city council.
All Additional Work will be subject to all other terms and provisions of this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
i. Carefully investigated and considered the scope of services to be performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending performance
of the services under this Agreement.
B. If services involve work upon any site, CONSULTANT agrees that CONSULTANT
has or will investigate the site and is or will be fully acquainted with the conditions
there existing, before commencing the services hereunder.
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Should CONSULTANT discover any latent or unknown conditions that may
materially affect the performance of the services, CONSULTANT will immediately
inform CITY of such fact and will not proceed except at CONSULTANT's own risk
until written instructions are received from CITY.
8. TERM. The term of this Agreement will be from May 21, 2008= to May 21, 2009. Unless
otherwise determined by written amendment between the parties, this Agreement will terminate in
the following instances:
A. Completion of the work specified in Exhibit `B ";
B. Termination as stated in Section 16.
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23 of
this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's own
risk.
10. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond
CONSULTANT's control, CITY may grant a time extension for the completion of the contracted
services. If delay occurs, CONSULTANT must notify the Manager within forty -eight hours (48
hours), in writing, of the cause and the extent of the delay and how such delay interferes with the
Agreement's schedule. The Manager will extend the completion time, when appropriate, for the
completion of the contracted services.
11. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of
this Agreement takes precedence over the attached Exhibits; this Agreement supersedes any conflicting
provisions. Any inconsistency between the Exhibits will be resolved in the order in which the Exhibits
appear below:
A. Exhibit A: Scope of Work;
B. Exhibit B: Compensation Schedule
12. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
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contract time will be adjusted accordingly. All such changes must be authorized in writing, executed
by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in the services
will be determined in accordance with written agreement between the parties.
13. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
14. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain
during the term of this Agreement, all necessary permits, licenses, and certificates that may be
required in connection with the performance of services under this Agreement.
15, WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONSULTANT's
performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this
Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant, or condition contained in this Agreement, whether of the same or different
character.
16. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time with
or without cause.
B. CONSULTANT may terminate this Agreement at any time with CITY's mutual
consent. Notice will be in writing at least thirty (30) days before the effective
termination date.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice, any additional work
performed by CONSULTANT after receiving a termination notice will be performed
at CONSULTANT" own cost; CITY will not be obligated to compensate
CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies, surveys,
drawings, maps, reports and other materials prepared by CONSULTANT will, at
CITY's option, become CITY's property, and CONSULTANT will receive just and
equitable compensation for any work satisfactorily completed up to the effective date
of notice of termination, not to exceed the total costs under Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may procure on
its own terms services similar to those temunated.
F. By executing this document, CONSULTANT waives any and all claims for damages
that might otherwise arise from CITY's termination under this Section.
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17. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement are CITY's property.
CONSULTANT may retain copies of said documents and materials as desired, but will deliver all
original materials to CITY upon CITY's written notice. CITY agrees that use of CONSULTANT's
completed work product, for purposes other than identified in this Agreement, or use of incomplete
work product, is at CITY's own risk.
18. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under
this Agreement, no copies, sketches, or graphs of materials, including graphic art work, prepared
pursuant to this Agreement, will be released by CONSULTANT to any other person or public CITY
without CITY's prior written approval. All press releases, including graphic display information to
be published in newspapers or magazines, will be approved and distributed solely by CITY, unless
otherwise provided by written agreement between the parties.
19. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request reimburse defense costs
for CITY and all its officers, volunteers, employees and representatives
from and against any and all suits, actions, or claims, of any character
whatever, brought for, or on account of, any injuries or damages
sustained by any person or property resulting or arising from any
negligent or wrongful act, error or omission by CONSULTANT or any of
CONSULTANT's officers, agents, employees, or representatives, in the
performance of this Agreement.
Indemnification for other Damages. CONSULTANT indemnifies and
ii.
holds CITY harmless from and against any claim, action, damages, costs
(including, without limitation, attorney's fees), injuries, or liability,
arising out of this Agreement, or its performance. Should CITY be
named in any suit, or should any claim be brought against it by suit or
otherwise, whether the same be groundless or not, arising out of this
Agreement, or its performance, CONSULTANT will defend CITY (at
CITY's request and with counsel satisfactory to CITY) and will
indemnify CITY for any judgment rendered against it or any sums paid
out in settlement or otherwise.
B. For purposes of this section "CITY" includes CITY's officers, officials, employees,
agents, representatives, and certified volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
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D. The requirements as to the types and limits of insurance coverage to be maintained
by CONSULTANT as required by Section 23, and any approval of said insurance by
CITY, are not intended to and will not in any manner limit or qualify the liabilities
and obligations otherwise assumed by CONSULTANT pursuant to this Agreement,
including, without limitation, to the provisions concerning indemnification.
20. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
21. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT
will act as an independent contractor and will have control of all work and the manner in which is it
performed. CONSULTANT will be free to contract for similar service to be performed for other
employers while under contract with CITY. CONSULTANT is not an agent or employee of CITY
and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY
provides for its employees. Any provision in this Agreement that may appear to give CITY the right to
direct CONSULTANT as to the details of doing the work or to exercise a measure of control over
the work means that CONSULTANT will follow the direction of the CITY as to end results of the
work only.
22. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with respect
to all services and matters covered under this Agreement. CITY will have free access at all
reasonable times to such records, and the right to examine and audit the same and to make transcript
therefrom, and to inspect all program data, documents, proceedings and activities. CONSULTANT
will retain such financial and program service records for at least three (3) years after termination or
final payment under this Agreement.
23. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONSULTANT will procure and maintain the following types
of insurance with coverage limits complying, at a minimum, with the limits set forth
below:
Type of Insurance Limits
Commercial general liability: $1,000,000
Professional Liability $1,000,000
Business automobile liability $1,000,000,
Workers compensation Statutory requirement
B. Commercial general liability insurance will meet or exceed the requirements of
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ISO -CGL Form No. CG 00 01 1185, 88 or equivalent. The amount of insurance set
forth above will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will be endorsed
to name CITY, its officials, and employees as "additional insureds" under said
insurance coverage and to state that such insurance will be deemed "primary" such
that any other insurance that may be carried by CITY will be excess thereto. Such
endorsement must be reflected on ISO Form No. CG 20 10 1185 or 88, or equivalent.
Such insurance will be on an "occurrence," not a "claims made," basis and will not be
cancelable or subject to reduction except upon thirty (30) days prior written notice to
CITY.
C. Professional liability coverage will be on an "occurrence basis" if such coverage is
available, or on a "claims made" basis if not available. When coverage is provided on a
"claims made basis," CONSULTANT will continue to renew the insurance for a period
of three (3) years after this Agreement expires or is terminated. Such insurance will
have the same coverage and limits as the policy that was in effect during the term of this
Agreement, and will cover CONSULTANT for all claims made by CITY arising out of
any errors or omissions of CONSULTANT, or its officers, employees or agents during
the time this Agreement was in effect.
D. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01
06 92, including symbol 1 (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement and such other
evidence of insurance or copies of policies as may be reasonably required
by CITY from time to time. Insurance must be placed with insurers with a current A.M.
Best Company Rating equivalent to at least a Rating of "A:VII."
F. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at CONSULTANT's
expense and deduct the cost of such insurance from payments due to CONSULTANT
under this Agreement or terminate pursuant to Section 16.
24. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written approval to
use any consultants while performing any portion of this Agreement. Such approval must approve of
the proposed consultant and the terms of compensation.
25. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the status on
the project, which will include a schedule update and a short narrative description of progress during
the past month for each major task, a description of the work remaining and a description of the work
to be done before the next schedule update.
26. NOTICES. All communications to either party by the other party will be deemed made when
received by such party at its respective name and address as follows:
If to CONSULTANT:
Macias Gini & O'Connell, LLP
1201 Dove Street, Suite 680
Newport Beach, CA 92660
Attention: Mindy Jacobs
If to CITY:
City of El Segundo
350 Main Street
El Segundo, CA 90245
Attention: Deborah Cullen
3 8 2 3 • 4, 0.60
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly addressed as
noted above. In all other instances, notices will be deemed given at the time of actual delivery. Changes
may be made in the names or addresses of persons to whom notices are to be given by giving notice in
the manner prescribed in this paragraph.
27. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest laws
and regulations including, without limitation, CITY's conflict of interest regulations.
28. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person, other than CONSULTANT's bona fide employee, to solicit or secure
this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed to pay any
company or person, other than CONSULTANT's bona fide employee, any fee, commission,
percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. Should CONSULTANT breach or violate this warranty, CITY may
rescind this Agreement without liability.
29. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any other
party. There will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's
obligations under this Agreement.
30. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this agreement
will be in Los Angeles County.
31, COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state, and
local laws applicable to this Agreement.
32. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There is One, Two Page (2) Exhibit Attachments to this
Agreement. This Agreement will bind and inure to the benefit of the parties to this Agreement and any
subsequent successors and assigns.
33. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this
Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole, and
in accordance with its fair meaning; it will not be interpreted strictly for or against either Party.
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34. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent
necessary in the opinion of the court to render such portion enforceable and, as so modified, such
portion and the balance of this Agreement will continue in full force and effect.
35. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action
has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the
actions described herein. This Agreement may be modified by written amendment. CITY's executive
manager, or designee, may execute any such amendment on behalf of CITY.
36. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection with
this Agreement will be considered signed when the signature of a party is delivered by facsimile
transmission. Such facsimile signature will be treated in all respects as having the same effect as an
original signature.
37. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
38. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
39. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural
elements, or other similar causes beyond the Parties' reasonable control, then the Agreement will
immediately terminate without obligation of either party to the other.
40. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents
that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to perform the
Agreement in a manner satisfactory to CITY. CONSULTANT represents that its financial
resources, surety and insurance experience, service experience, completion ability, personnel,
current workload, experience in dealing with private consultants, and experience in dealing with
public agencies all suggest that CONSULTANT is capable of performing the proposed contract and
has a demonstrated capacity to deal fairly and effectively with and to satisfy a public CITY.
[Signatures on next page]
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IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first
hereinabove written.
CITY OF EL SEGUNDO
g a gen la city.
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ATTEST:
Cin1y M6Aern,
City Clerk
APPROVED T��t,, , M: j
MARK D. S Ci orney
By: t
Karl IFBeY er, Assistant Cjb Attorney
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Secretary
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Taxpayer ID No. �, -� D 300 Yg 7
or_ela_nd
TEMPORAi,Y SERVICES
A Division of Macas Giri & O'Connell LLP
May 8, 2008
Deborah Cullen
City of El Segundo
350 Main Street
El Segundo, CA 90245 -3813
Dear Ms. Cullen:
MIBIT A F B 38 2 3 ,•••
NEWPORT BEACH
1201 [love Street, Suite 680
Newport Beach, CA 92660
949.252.3142
SACRAMENTO
WALNUT CREEK
OAKLAND
LOSANGELES
SAN MARCOS
SAN DIEGO
In accordance with your request, we are presenting this proposal to provide Temporary
Services to the City of El Segundo. You have indicated you will require the services of an
Accounting Manager for approximately three months. We propose to satisfy your
requirements by providing the services of Jacqueline Horak.
Following is some important information about our services:
1. RESPONSIBILITY: Temporary staff shall report directly to you during this
assignment. It is understood that the management of your organization is responsible
for the substantive outcome of the work and, therefore, has a responsibility to be in a
position in fact and appearance to make an informed judgment on the results of these
services.
2. EMPLOYEE: Temporary staff will at all times be an employee of Moreland
Temporary Services, a division of Macias Gini & O'Connell LLP.
3. INSURANCE: Moreland Temporary Services, a division of Macias Gini &
O'Connell LLP, maintains general liability, automobile liability, excess liability,
workers compensation and employers' liability, and professional liability insurance.
Certificates of Insurance are available upon request.
4. RATES: The billing rate for these services is $75 per hour. Overtime will be billed
at time - and -a -half. Any work performed in excess of 12 hours per day will be billed
at double -time. The base billing rate will increase 5 percent on the annual
commencement date of employment (e.g. every 12 months).
5. BILLING: Services will be billed twice a month on approximately the first and
fifteenth days of the month.
6. EXTENSION: These services may be extended by our mutual agreement.
W W W. m go C p a. COm �.�.. An Independent+. Member of the SDO Seidman Attionce
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Deborah Cullen
City of El Segundo
Page 2
7. NOTICE: At any time during the performance of these services, you may terminate
or significantly reduce these services for any reason with two weeks notice. Although
you will have day -to -day contact with our temporary staff, please provide information
about any changes or termination directly to Mindy Jacobs at mjacobs @mgocpa.com.
GUARANTEE: If you are not satisfied with the Temporary Services provided, you
may discontinue the services at no charge. If this should occur, please notify me by
telephone by 5:00 p.m. on the first day of service. If the Temporary Services are
continued beyond the first day, you are responsible to pay for each hour of service
provided and it is understood that no credit or refund can be given for any reason. It
is your responsibility to monitor the performance of the temporary worker to the
degree necessary to ensure satisfaction with the services provided.
9. FINDER'S FEE: Our Temporary Services are made possible as a result of sustained
expenses in developing and maintaining a qualified staff of temporary employees.
Therefore, your utilization of our staff is on a temporary basis. Should you hire our
staff on a permanent basis (either full -time or part-time) or contract with them directly
for any services either (a) during this temporary assignment or (b) within one year
following the termination of this temporary assignment, you agree to immediately
notify Moreland Temporary Services, a division of Macias Gini & O'Connell LLP,
and to pay a finder's fee of $12,500.00 to us within thirty (30) days of such hiring or
contracting. Additionally, should you refer our staff for a temporary or contract
assignment to any other entity, associate or business acquaintance during the time
period specified above, then you agree to give immediate notice to Moreland
Temporary Services, a division of Macias Gini & O'Connell LLP, of such referral
and you also agree to pay a finder's fee of $12,500.00 within thirty (30) days of a
hiring or contracting by such other entity. THIS PROVISION IS WAIVED AFTER
TEMPORARY STAFF COMPLETES 520 HOURS OF SERVICE UNDER THIS
AGREEMENT.
Thank you for the opportunity to provide this proposal. Please call if you would like to
discuss our proposal in more detail. Please acknowledge acceptance of our proposal by
signing and returning one copy of this letter for our files.
Very truly yours,
MORELAND TEMPORARY SERVICES
A DIVISION OF MACIAS GINI & O'CONNELL LLP
Mindy Jacobs
G
Manager
ACCEPTANCE:
Signature:,!'.�i ----
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Title: U� l' . e.TZ2LQ E �1 d-�
Date: 5 21 D