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HomeMy WebLinkAbout2006-240 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2006-240 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ROGERS ANDERSON MALODY AND SCOTT L.L.P. FOR THE PROVISION OF FINANCIAL AUDITING SERVICES. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor is hereby authorized and directed to execute on behalf of said City an agreement with Rogers Anderson Malody and Scott L.L.P. relating to financial auditing services, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. Upon execution of said agreement, the Purchasing Manager of the City of San Bernardino is directed to issue a Purchase Order to Rogers Anderson Malody and Scott in the amount not to exceed $55,200 for FY 06-07; $56,900 for FY 07-08, and $58,600 for FY 08-09. SECTION 2. The authorization to execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. III III III III III III III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ROGERS ANDERSON MALODY AND SCOTT L.L.P. FOR THE PROVISION OF FINANCIAL SERVICES. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor joint and Common Council of the City of San Bernardino at an regular meeting thereof, held on the 10th day of July Council Members: AYES ESTRADA x - BAXTER x MCGINNIS x - DERRY x - KELLEY x - JOHNSON x - MCCAMMACK -1L- , 2006, by the following vote, to wit: NAYS ABSTAIN ABSENT ~1h.~ Rac el G. Clark, City Clerk The foregoing resolution is hereby approved this /,;;.,,+Jtv day of July 2006. ~~ City of San Bernardino Approved as to Form JAMES F. PENMAN, City Attorney srI- -rl__ 2006-240 AGREEMENT FOR AUDITING SERVICES July This Agreement for Auditing Services is made and entered into on this 10th day of lWJf/, 2006 by and between the City of San Bernardino, a municipal corporation (hereinafter referred to as "CITY") and Rogers, Anderson, Malody and Scott, L.L.P., Certified Public Accountants (hereinafter referred to as "AUDITORS"). WITNESSETH WHEREAS, AUDITORS are recognized as competent and qualified certified public accountants who were selected by the CITY through competitive procedures, and are duly authorized to practice and licensed as such by the California State Board of Accountancy; NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: I. TERM. Unless terminated earlier or cancelled as provided for herein, the term of this Agreement shall be for the each of the fiscal year ending June 30, 2007 through 2009. 2. SCOPE OF SERVICES. The AUDITORS agree to provide services and perform all work necessary in a manner satisfactory to the CITY as set forth in the proposal, the request for proposal (RFP) for audit services dated 4/13/2006, and AUDITOR'S proposal dated May 4, 2006. These documents are attached hereto and by reference incorporated herein and made a part hereof. 3. CITY'S OBLIGATIONS. For furnishing services specified in this Agreement, CITY will pay and the AUDITORS shall receive the full compensation as set forth in the proposal attached hereto and by reference incorporated herein and made a part hereof. Additionally, CITY agrees to provide AUDITORS with supporting schedules, trial balances and reconciliations as necessary to complete the services requested. 4. PAYMENT SCHEDULE. The AUDITORS shall submit a monthly billing based on the percentage of audit work completed. After approval of the CITY'S Director of Finance, said invoice shall be paid within 30 days. 5. COMPLETION OF AUDIT AND DELIVERY OF AUDIT OPINIONS. A. AUDITORS shall complete all work by the dates provided in the request for proposal of each fiscal year included in the term of this Agreement. B. AUDITORS shall deliver their final typed audit opinions and other reports as set forth in the proposal for each fiscal year included in the term of this Agreement provided CITY furnishes the information to AUDITORS pursuant to the request for proposal in a timely manner. 2006-240 6. TERMINATION. A. Termination Without Cause. CITY and AUDITORS shall have the right to terminate this Agreement, by giving not less than thirty (30) days written notice of termination to the other party. On the date of termination stated in the written notice, AUDITORS shall discontinue performance of the services, preserve the product of the services, and turn over to CITY the product of the services in accordance with written instructions of CITY. If CITY terminates the Agreement under this Subsection A of Section 6, CITY shall compensate AUDITORS within thirty (30) days following the effective date of termination a fee for all services satisfactorily provided prior to the effective date of termination based on the amounts and rates set forth in the proposal. If AUDITORS terminate the Agreement under this Subsection A of Section 6, CITY shall compensate AUDITORS in the same amount CITY would compensate AUDITORS in the event CITY terminated the agreement under this Subsection A of Section 6, less any costs CITY pays other auditors to review or re-perform the services provided by AUDITORS prior to the date of termination. In the event of termination without cause by eithe party, CITY's payment as provided herein shall constitute full satisfaction of CITY's obligations under this Agreement. B. Termination by CITY for Cause. I. CITY may, by written notice to AUDITORS, immediately terminate the whole or any part of this Agreement in any ofthe following circumstances: a. AUDITORS fail to perform the services required by this Agreement within the time specified herein, or within any extension of that time; b. AUDITORS fail to perform satisfactorily the services called for by this Agreement, or otherwise breaches any provision of this Agreement, and do not correct such failure within a period of ten (10) days or such longer period as CITY may authorize in writing after notice is given by CITY specifying such failure of breach; or c. AUDITORS make a general assignment for the benefit of their creditors, files or have filed against them a petition in bankruptcy, or have a receiver appointed on account of their insolvency. d. AUDITORS fail to maintain the insurance required pursuant to Section 10. 2. Immediately upon receiving written notice of termination, AUDITORS shall discontinue performing services, preserve the product of the services, and turn over to the City the product of the services in accordance with written instructions of CITY. In the event CITY terminates this Agreement in whole or in part as provided above in Paragraph 1 of this Subsection B of Section 6, CITY shall pay AUDITORS a fee for all services satisfactorily provided by AUDITORS prior to the effective date of termination based on the amounts 2006-240 and rates set forth in the proposal, less any fees CITY pays other auditors to review or re-perform the services provided by AUDITORS prior to the date of termination. Said payment shall constitute full satisfaction of City's obligations under this Agreement. C. Termination bv AUDITORS for Cause. AUDITORS may immediately terminate this Agreement if CITY is in breach of the Agreement and does not correct such breach within a period often (IO) days (or such longer period as AUDITORS may authorize in writing) after notice is given by AUDITORS specifying such failure of breach. If AUDITORS terminate the Agreement pursuant to this Subsection C of Section 6, CITY shall compensate AUDITORS within thirty (30) days following the effective date of termination a fee for all services satisfactorily provided prior to the effective date of termination based on the amounts and rates set forth in Appendix B, and such payment shall constitute full satisfaction of CITY's obligations under this Agreement. 7. NOT OBLIGATION TO THIRD PARTIES. The CITY shall not be obligated or liable hereunder to any party other than the AUDITORS. 8. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT. The experience, knowledge, capability and reputation of AUDITORS, its principals and employees were a substantial inducement for the CITY to enter into this Agreement. Therefore AUDITORS shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the CITY. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of CITY. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of AUDITORS, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including in any bankruptcy proceeding this Agreement shall be void. No approved transfer shall release any surety of AUDITORS of any liability hereunder without the express consent of CITY. 9. INDEPENDENT CONSULTANT. Neither the CITY nor any of its employees shall have any control over the manner, mode or means by which the AUDITORS, its agents or employees perform the services required herein, except as otherwise set forth. The CITY shall have no voice in the selection, discharge, supervision or control of AUDITORS' employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. AUDITORS agree to maintain continuity of managerial personnel assigned to the engagement except for reasons beyond AUDITORS' control. AUDITORS shall perform all services required herein as an independent contractor of CITY and shall remain at all times to the CITY a wholly independent consultant with only such obligations as are consistent with that role. AUDITORS shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of CITY. CITY shall not in any way or for any purpose become or be deemed to be a partner of AUDITORS in its business or otherwise of a joint venture or a member of any joint enterprise with AUDITORS. 2006-240 10. INSURANCE. The AUDITORS shall procure and maintain, at its cost, comprehensive general liability and property damage insurance, including automobile and excess liability insurance, against all claims for injuries against persons or damages to property resulting from AUDITORS' negligent acts or omissions rising out of or related to AUDITORS' performance under this Agreement. AUDITORS shall also carry Workers' Compensation Insurance in accordance with State Workers' Compensation laws. Said Workers' Compensation Insurance shall be through its business services firm Conrad Business Services, Inc. AUDITORS agree to maintain professional liability insurance to protect CITY from AUDITORS' negligent acts, errors or omissions of a professional nature. If any claim related tot he performance hereunder be asserted against either party hereto, the party claimed against shall receive all reasonable assistance from the other. The requirements herein for subrogation may be waived by the CITY with respect to such professional liability insurance. The insurance required hereunder shall be kept in effect during the term of this Agreement and shall not be subject to reduction in coverage below the limits established herein nor cancellation or termination without thirty (30) days prior written notice by registered letter to the CITY. The insurer shall waive the right of subrogation against CITY, its officers, employees and agents, and the coverage shall be primary for losses arising out of AUDITORS' performance hereunder and neither the CITY nor its insurers shall be required to contribute to any such loss. A certificate evidencing the foregoing and naming the CITY as an additional insured shall be delivered to and approved by the CITY prior to commencement of the services hereunder. The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of AUDITORS' obligation to indemnify the CITY, its officials and employees. The amount of insurance required hereunder shall be as follows: 1. Workers Compensation to statutory limits; 2. Commercial General Liability: Each occurrence $1,000,000 Personal injury $1,000,000 Aggregate limit $2,000,000 3. Hired Auto and Non-Owned Auto Liability: Each occurrence $1,000,000 Aggregate limit $1,000,000 4. Professional Liability: Each claim and in the aggregate $1,000,000 11. PREVAILING PARTY. If any court action occurs as a result of a dispute between the parties concerning any element of this agreement, the prevailing party shall be entitled to reasonable attorney's fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this agreement on behalf of the City shall be considered as "attorney's fees" for the purpose of this paragraph. 2006-240 12. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: CITY: Barbara Pachon, Finance Director City of San Bernardino 300 North "D" Street, 6th Floor San Bernardino CA 92418 AUDITORS: Terry P. Shea, Partner Rogers Anderson Malody & Scott L.L.P. 290 N "D" Street, Suite 300 San Bernardino CA 9240 I 13. AUTHORITY TO EXECUTE AGREEMENT. Both CITY and AUDITORS do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute agreements for such party. IN WITNESS WHEREFORE, the parties hereto have caused this instrument to be executed the day and year first written above. THE CITY OF SAN BERNARDINO B~or ATTEST: ~!.J.~ City lerk APPROVED AS TO FORM: ROGERS ANDERSON MALODY & SCOTT ;fl I~ Terry P ~a, Partner