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HomeMy WebLinkAbout06.F- Finance RESOLUTION (ID#2225) DOC ID: 2225 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract Amendment From: Jason Simpson M/CC Meeting Date: 01/07/2013 Prepared by: Jason Simpson, Dept: Finance Ward(s): All Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing The Execution of a Consultant Services Agreement Between Urban Futures Incorporated and the City of San Bernardino for Accounting Services. Financial Impact: Account Budgeted Amount: $400,000.00 Motion: Adopt the Resolution. Synopsis of Previous Council Action: None. Background: Urban Futures Incorporated(UFI) is a full-service consulting firm serving public agencies solely in the State of California. UFI has proposed to provide the City with accounting services, as well as continue to provide financial consulting services as a result of the Chapter 9 filings, and assist as needed with staffing support for the recently departed, Deputy Director of Finance and Financial Analyst. Accounting services of UFI are needed as a result of current economic conditions,the delayed budget process, the delayed completion of the audit, implementation of a new financial software, and recover from an accounting back log. This effort will assist with the continued progress to be in full compliancy with the Chapter 9 filings, Federal Court deadlines and State mandated fiscal reporting. Since June 4, 2012, the City declared insolvency, filed for Chapter 9 protection on August 1, 2012, and as a result additional accounting resources are required to meet ongoing City demands plus comply with City, Creditor and Federal Court deliverables related to the fiscal emergency plan in order to emerge from bankruptcy. UFI accounting services will assist the City in sustaining high fiscal operational levels predicated by extenuating circumstances surrounding the Chapter 9 filing. The below is in part representative of the services that will be provided: 1. Fiscal Review to include: revenue/expenditure forecasts, current/future development projections, local economic forecasts, financialibudget policies and practices, and debt service analysis; 2. Assist in the development of the FY 2012-13 and FY 2013-14 Budgets; 3. Complete verification of accounting including: FY 2010-2011 and FY 2011-12 Audits and Bank Reconciliations; 4r" r 4. Assist in the development of the FY 2011-12 CAFR; Updated: 1/3/2013 by Linda Sutherland Packet Pg. 61 2225 5. Audit financial practices and procedures; 6. Review and implement Cost Allocation Plans, internal service charges; and 7. Implement new financial policies and procedures. City Attorney Review: Supportin¢Documents: UFI Accounting Services Agreement(DOC) Resolution (DOCX) f Updated: 1/3/2013 by Linda Sutherland Packet Pg. 62 6.F.a CONSULTANT SERVICES AGREEMENT +- BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES,INC. CONSULTING SERVICES This Consultant Service Agreement (this "Agreement') is made and entered into this 7th day of January 2013 ("Effective Date") by and between the City of San Bernardino, a public body, corporate and politic (hereinafter referred to as the "City") and Urban Futures, Inc. (hereinafter referred to as the "Consultant') (sometimes jointly referred to herein as the "Parties"). 3 U. LL C WITNESSETH: A. WHEREAS, The CITY of San Bernardino is in need of a Consultant to provide rn Accounting Services, and m U) B. WHEREAS, it has been determined by the Director of Finance that Consultant c represents that it has that degree of specialized expertise contemplated within California E Government Code, Section 37103, and holds all necessary licenses to practice and perform the m services herein contemplated; and v a d C. WHEREAS, CONSULTANT is competent, experienced and able to perform said c responsible services; and LL D. WHEREAS, CONSULTANT will provide the most advantageous and N responsible services; c NOW THEREFORE, in consideration of mutual covenants contained in this Agreement E and the mutual benefits to be derived there from, the parties agree as follows: d a 1. TERM. U This agreement shall be in full force and effect for the term January 7, 2013 through June 30, 2014. m r c 2. CONSULTANT RESPONSIBILITIES: o U U Consultant is responsible for performing the scope of work as identified in exhibit A a contained herein. The Consultant commits the necessary principal personnel to the D performance of such services for the duration of this Agreement. v E 3. CITY RESPONSIBILITIES v m a The City shall provide, in a reasonable timely fashion, the Consultant with any documentation, records, reports, statistics or other data or information pertinent to the provision of services, which are reasonably available to the City. The City will provide a contact person to assist in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS 1 Packet Pg. 63 The Consultant shall keep confidential all reports, information and data received, prepared or assembled pursuant to performance hereunder. Such information shall not be made available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 5. COMPENSATION N d L The Accounting Services for the City of San Bernardino will not exceed $400,000.00. This fee is inclusive of all professional fees and expenses. L 6. NONDISCRIMINATION: MONITORING AND REPORTING WORK PERFORMANCE E In the performance of this Agreement and in the hiring and recruitment of employees, Consultant shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual V gender or sexual orientation, or any other status protected by law. v O m 7. CONFLICT OF INTEREST c LL The Consultant shall maintain a code or standard of conduct. The Consultant shall neither solicit nor accept gratuities, favors, or anything of monetary value for work completed under N the Scope of Services. To the extent permissible by state laws, rules and regulations, the standards adopted by the Consultant shall provide for penalties, sanctions, or other c disciplinary actions to be applied for violations of such standards by the Consultant. E d d L 8. INDEPENDENT CONTRACTOR a N d The Parties intend that the relationship between them created under the Agreement is that of an independent contractor only. The Consultant shall perform each element of the work set forth in the Scope of Services as an independent contractor and shall not be considered an = employee of the City. This Agreement is by and between the Consultant and the City, and is not intended, and shall not be construed, to create the relationship of agent, servant, o employee, partnership, joint venture or association, between the City and the Consultant. a The City is interested only in the results obtained under the Agreement; unless otherwise LL indicated and under unusual circumstances, the manner and means of performing the services are subject to the Consultant's sole control. The Consultant shall have no right or authority to bind or commit the City. The Consultant shall not be entitled to any benefits, including, E without limitation, worker's compensation, disability insurance, vacation or sick pay. The Consultant shall be responsible for providing at its expense, and in its name, disability, a worker's compensation or other insurance. The Consultant assumes full and sole responsibility for, and shall therefore pay, any and all f federal and state income taxes, Social Security, estimated taxes, unemployment taxes, and any other taxes incurred as result of the compensation set forth herein. The Consultant agrees fiuther to provide the City with proof of payment upon reasonable demand. The 2 PacketPg. 64 Consultant holds the City harmless from and against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the City (including, but not limited to, attorney fees and court costs, whether or not litigation is commenced) arising out of the failure of the Consultant to comply with this provision. Further, this right indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the City as a result of the classification of the Consultant as independent contractor under this Agreement. 'a m 9. RECORDS w 0 LL The Consultant shall keep full and accurate records of all consulting work performed under a this Agreement. All records, content, sketches, drawings, prints, computations, charts, reports and other documentation made in the course of the consulting work performed m hereunder, or in anticipation of the consulting work to be performed in regard to this E Agreement, shall at all times be and remain the sole property of the City and the Consultant in shall turn over to the City all copies of the Work Records within seven(7) calendar days after 95 a written request by City. m E t= a 10. BUSINESS LICENSEMN d c m Consultant shall obtain a San Bernardino business license and provide the City with evidence c that its license has been obtained on or before receipt of payment hereunder. The Consultant agrees to keep said license current and valid throughout the term of this Agreement. L` Ln CM Consultant shall obtain a state and federal taxpayer identification number and shall provide N evidence to the City that this number has been obtained. m E 11. RIGHT TO OBTAIN OTHER CONTRACTURAL ARRANGEMENTS. m a The Consultant at any time has the right: (a) accept employment or other association with any person, city or company in the United States of America or any Territory thereof, or through media reasonably accessible by persons in the United States of America or any w Territory thereof, or (b) in the United States of America or any Territory thereof, or through media reasonably accessible by Persons in the United States of America or any Territory thereof, engage in activities, projects or services similar in nature or competitive with those 'o of the City, limited only by the confidential information described in Section 4, or (c) become employed by, associate with or otherwise engage any entity anywhere in the world. LL The City acknowledges that the provisions of this Section 12 are reasonable in light of the legitimate business needs of the City. m E 12. SUCCESSOR AND ASSIGNMENT. v m x a The services as contained herein are to be rendered by the Consultant whose name is as appears first above written and said Consultant shall not assign nor transfer any interest in this Agreement without the prior written consent of the City. 13. INDEMNIFICATION. 3 PacketPg. 65 The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino ("City"), its agents, officers and employees from and against all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury or property damage arising out of this Agreement from the Consultant's or the Consultant's employees or agents negligence, errors or omissions connected with the services performed by or on behalf of the Consultant pursuant to this Agreement. The costs, salary and expenses of the City Attorney and v members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. The Consultant agrees to obtain a L policy of insurance in the minimum amount of$1,000,000.00 (one million dollars) to cover any and all claims. The Consultant shall provide the City with evidence that the necessary D liability insurance has been obtained, and that the Agency has been named as an additional o, insured on said policy by the Effective Date hereof. S U) 14. LIMITATION OF LIABILITY v E The City agrees that Contractor's total liability to the City for any and all damages whatsoever arising out of or in any way related to this Agreement from any cause, including d but not limited to contract liability or Contractor's negligence, errors, omissions, strict ° liability,breach of contract or breach of warranty shall not, in the aggregate, exceed $150,000. c LL In no event shall Contractor be liable for indirect, special,incidental, economic, N consequential or punitive damages, including but not limited to lost revenue, lost profits, N replacement goods, loss of technology rights or services, loss of data, or interruption or loss of use of software or any portion thereof regardless of the legal theory under which such E damages are sought even if Contractor has been advised of the likelihood of such damages, and notwithstanding any failure of essential purpose of any limited remedy. N d Any claim by the City against Contractor relating to this Agreement must be made in writing and presented to Contractor within one (1) year after the date on which Contractor completes N performance of the services specified in this Agreement. c c 0 0 15. MODIFICATION. a This Agreement may be supplemented, amended, or modified only by the mutual agreement Z) of the Parties. No supplement, amendment, or modification of this Agreement shall be c binding unless it is in writing and signed by both parties. E r U 16. CHOICE OF LAW. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction's laws. 17. COMPLIANCE WITH LAWSNENUE 4 Packet Pg. 66 The parties agree to be bound by applicable federal, state, and local laws, regulations and directives as they pertain to the performance of this Agreement. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties i to be mandatory and not permissive in nature. LL 18. SEVERABILILTY n In the event that any provision herein contained is held to be invalid, void or illegal by any m court of competent jurisdiction, the same shall be deemed severable from the remainder of S this Agreement and shall in no way affect, impair, or invalidate any other provision contained 2 herein. If any such provision shall be deemed invalid due to its scope of breadth, such provision shall be deemed valid to the extent of the scope of breadth permitted by law. E E m CL 19. INTERPRETATION o d U No provision of this Agreement is to be interpreted for or against either party because that party or that party's legal representative drafted such provision, but this Agreement is to be LL [ construed as if it were drafted by both parties hereto. N \� N N 20. WAIVER C d No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, a failure, right, or remedy, shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. rn c 21. NOTICE 3 0 Notices herein shall be presented in person or by certified or registered United States mail, as a follows: LL c m E To the Consultant: Michael P. Busch, President U Urban Futures, Inc. a 3111 N. Tustin Avenue, Suite 230 Orange, CA 92865 CTo the City: City of San Bernardino 5 Packet Pg.67 6.F.a Finance Department 300 North D Street San Bernardino, CA 92418 Attn: Jason Simpson, Director of Finance Phone: (909) 384-5242 Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. d 5 22. ENTIRE AGREEMENT LL A This Agreement, with Exhibit "A", constitutes the final, complete and exclusive statement of D the terms and the agreement between the parties pertaining to the engagement of the Consultant by the City and the entire understanding of the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, no is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. E E IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day a and year first written above. o d CITY OF SAN BERNARDINO c LL Dated: By: N Andrea Travis-Miller,Acting City Manager d E CONSULTANT M Urban Futures, Inc. 0 U Dated: By: U) M C Michael P. Busch,President 0 U Approved as to Form: E: c v By: E James F. Penman, City Attorney m a Exhibit A 6 Packet Pg. 68 6.F.a [ Scope of Work �✓ AccountinL Services The Scope of Services below is broken down into two (2) distinct services: 1) Financial Management / Accounting; and 2) Bankruptcy Implementation Services. The suggested breakdown of services provides for a logical transition from assignment initiation through completion. Financial Management/Accounting Services LL c a 1. Fiscal Review to include: revenue/expenditure forecasts, current/future development projections, local economic forecasts, financial/budget policies and practices, and debt service rn analysis; w w m rn 2. Assist in the development of the FY 2012-13 and FY 2013-14 Budgets; r d E 3. Complete verification of accounting including: FY 2010-2011 and FY 2011-12 Audits and t Bank Reconciliations; d 0 m 4. Assist in the development of the FY 2011-12 CAFR; c m c 5. Audit financial practices and procedures; L.L. N 6. Review and implement Cost Allocation Plans, internal service charges; and c 7. Implement new financial policies and procedures. E d d Functional Detail -Ensuring automated,proof of cash daily -Performing bank reconciliations U -Accounts Receivable reconciliation v -Develop and prepare accounts receivable audit schedules -Capital project budget aligning and securing accounting processes c -Develop workable accounting check points and accurate reporting o -Develop utilization of the accounting fixed asset module -General Fund Budget review a FL -FY 13 and FY 14 budget coordination c BankruDYCV Services E U U 1. Update the Pendency Plan and preparation of the Plan of Adjustment; c 2. Attend bankruptcy court proceedings &provide expert witness duties as needed; and 3. Assist in the analysis and negotiations with creditors as necessary. 7 Packet Pg. 69 I RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT 3 SERVICES AGREEMENT BETWEEN URBAN FUTURES, INC. AND THE CITY 4 OF SAN BERNARDINO FOR ACCOUNTING SERVICES. 5 6 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 7 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The City Manager is hereby authorized and directed to execute a 9 Consultant Services Agreement between Urban Futures, Inc. (UFI) and the City of San 10 Bernardino for accounting services, a copy of which is attached and incorporated herein as 11 Exhibit "A". 12 SECTION 2. The Purchasing Manager is hereby authorized to issue a Purchase Order 13 14 to Urban Futures, Inc. for accounting services for a total amount not to exceed $400,000. 15 SECTION 3. The authorization granted hereunder shall expire and be void and of no 16 further effect if the Agreement is not executed by both parties and returned to the Office of the 17 City Clerk within sixty(60) days following the effective date of this Resolution. 18 19 20 21 22 23 24 25 26 27 28 il�ll� RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 1 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT 2 SERVICES AGREEMENT BETWEEN URBAN FUTURES, INC. AND THE CITY OF SAN BERNARDINO FOR ACCOUNTING SERVICES. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a meeting 6 thereof, held on the_day of 2013, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ 9 10 JENKINS 11 VALDIVIA 12 SHORETT 13 KELLEY 14 JOHNSON 15 16 MCCAMMACK 17 18 Georgeann Hanna, City Clerk 19 The foregoing Resolution is hereby approved this day of 2013. 20 21 Patrick J. Morris, Mayor 22 City of San Bernardino 23 Approved as to form: 24 JAMES F. PENMAN, City Attorney 25 26 By: 11c (1�•. .u� �tiy "'^ 27 28 � CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES, INC. CONSULTING SERVICES This Consultant Service Agreement (this "Agreement') is made and entered into this 7th day of January 2013 ("Effective Date") by and between the City of San Bernardino, a public body, corporate and politic (hereinafter referred to as the "City") and Urban Futures, Inc. (hereinafter referred to as the "Consultant') (sometimes jointly referred to herein as the "Parties"). WITNESSETH: A. WHEREAS, The CITY of San Bernardino is in need of a Consultant to provide Accounting Services, and B. WHEREAS, it has been determined by the Director of Finance that Consultant represents that it has that degree of specialized expertise contemplated within California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CONSULTANT is competent, experienced and able to perform said responsible services; and D. WHEREAS, CONSULTANT will provide the most advantageous and responsible services; NOW THEREFORE, in consideration of mutual covenants contained in this Agreement and the mutual benefits to be derived there from, the parties agree as follows: 1. TERM. This agreement shall be in full force and effect for the term January 7, 2013 through June 30, 2014. 2. CONSULTANT RESPONSIBILITIES Consultant is responsible for performing the scope of work as identified in exhibit A contained herein. The Consultant commits the necessary principal personnel to the performance of such services for the duration of this Agreement. 3, CITY RESPONSIBILITIES The City shall provide, in a reasonable timely fashion, the Consultant with any documentation, records, reports, statistics or other data or information pertinent to the provision of services, which are reasonably available to the City. The City will provide a contact person to assist in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS 1 r—� `,W The Consultant shall keep confidential all reports, information and data received, prepared or assembled pursuant to performance hereunder. Such information shall not be made available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 5. COMPENSATION The Accounting Services for the City of San Bernardino will not exceed $400,000.00. This fee is inclusive of all professional fees and expenses. 6. NONDISCRIMINATION: MONITORING AND REPORTING WORK PERFORMANCE In the performance of this Agreement and in the hiring and recruitment of employees, Consultant shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. CONFLICT OF INTEREST The Consultant shall maintain a code or standard of conduct. The Consultant shall neither solicit nor accept gratuities, favors, or anything of monetary value for work completed under the Scope of Services. To the extent permissible by state laws, rules and regulations, the standards adopted by the Consultant shall provide for penalties, sanctions, or other disciplinary actions to be applied for violations of such standards by the Consultant. 8. INDEPENDENT CONTRACTOR The Parties intend that the relationship between them created under the Agreement is that of an independent contractor only. The Consultant shall perform each element of the work set forth in the Scope of Services as an independent contractor and shall not be considered an employee of the City. This Agreement is by and between the Consultant and the City, and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture or association, between the City and the Consultant. The City is interested only in the results obtained under the Agreement; unless otherwise indicated and under unusual circumstances, the manner and means of performing the services are subject to the Consultant's sole control. The Consultant shall have no right or authority to bind or commit the City. The Consultant shall not be entitled to any benefits, including, without limitation, worker's compensation, disability insurance, vacation or sick pay. The Consultant shall be responsible for providing at its expense, and in its name, disability, worker's compensation or other insurance. The Consultant assumes full and sole responsibility for, and shall therefore pay, any and all j federal and state income taxes, Social Security, estimated taxes, unemployment taxes, and any other taxes incurred as result of the compensation set forth herein. The Consultant agrees further to provide the City with proof of payment upon reasonable demand. The 2 Consultant holds the City harmless from and against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the City (including, but not limited to, attorney fees and court costs, whether or not litigation is commenced) arising out of the failure of the Consultant to comply with this provision. Further, this right indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the City as a result of the classification of the Consultant as independent contractor under this Agreement. 9. RECORDS The Consultant shall keep full and accurate records of all consulting work performed under this Agreement. All records, content, sketches, drawings, prints, computations, charts, reports and other documentation made in the course of the consulting work performed hereunder, or in anticipation of the consulting work to be performed in regard to this Agreement, shall at all times be and remain the sole property of the City and the Consultant shall turn over to the City all copies of the Work Records within seven(7) calendar days after a written request by City. 10. BUSINESS LICENSEMN Consultant shall obtain a San Bernardino business license and provide the City with evidence that its license has been obtained on or before receipt of payment hereunder. The Consultant agrees to keep said license current and valid throughout the term of this Agreement. Consultant shall obtain a state and federal taxpayer identification number and shall provide evidence to the City that this number has been obtained. 11. RIGHT TO OBTAIN OTHER CONTRACTURAL ARRANGEMENTS The Consultant at any time has the right: (a) accept employment or other association with any person, city or company in the United States of America or any Territory thereof, or through media reasonably accessible by persons in the United States of America or any Territory thereof, or (b) in the United States of America or any Territory thereof, or through media reasonably accessible by Persons in the United States of America or any Territory thereof, engage in activities, projects or services similar in nature or competitive with those of the City, limited only by the confidential information described in Section 4, or (c) become employed by, associate with or otherwise engage any entity anywhere in the world. The City acknowledges that the provisions of this Section 12 are reasonable in light of the legitimate business needs of the City. 12. SUCCESSOR AND ASSIGNMENT. The services as contained herein are to be rendered by the Consultant whose name is as appears first above written and said Consultant shall not assign nor transfer any interest in © this Agreement without the prior written consent of the City. 13. INDEMNIFICATION. 3 The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino ("City"), its agents, officers and employees from and against all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury or property damage arising out of this Agreement from the Consultant's or the Consultant's employees or agents negligence, errors or omissions connected with the services performed by or on behalf of the Consultant pursuant to this Agreement. 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 "attorneys' fees" for the purposes of this paragraph. The Consultant agrees to obtain a policy of insurance in the minimum amount of$1,000,000.00 (one million dollars) to cover any and all claims. The Consultant shall provide the City with evidence that the necessary liability insurance has been obtained, and that the Agency has been named as an additional insured on said policy by the Effective Date hereof. 14. LIMITATION OF LIABILITY The City agrees that Contractor's total liability to the City for any and all damages whatsoever arising out of or in any way related to this Agreement from any cause, including but not limited to contract liability or Contractor's negligence, errors, omissions, strict liability, breach of contract or breach of warranty shall not, in the aggregate, exceed $150,000. In no event shall Contractor be liable for indirect, special, incidental, economic, consequential or punitive damages, including but not limited to lost revenue, lost profits, replacement goods, loss of technology rights or services, loss of data, or interruption or loss of use of software or any portion thereof regardless of the legal theory under which such damages are sought even if Contractor has been advised of the likelihood of such damages, and notwithstanding any failure of essential purpose of any limited remedy. Any claim by the City against Contractor relating to this Agreement must be made in writing and presented to Contractor within one (1)year after the date on which Contractor completes performance of the services specified in this Agreement. 15. MODIFICATION. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the Parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by both parties. 16. CHOICE OF LAW. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction's laws. 17. COMPLIANCE WITH LAWS/VENUE 4 The parties agree to be bound by applicable federal, state, and local laws, regulations and directives as they pertain to the performance of this Agreement. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 18. SEVERABILILTY In the event that any provision herein contained is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair, or invalidate any other provision contained herein. If any such provision shall be deemed invalid due to its scope of breadth, such provision shall be deemed valid to the extent of the scope of breadth permitted by law. 19. INTERPRETATION No provision of this Agreement is to be interpreted for or against either party because that party or that party's legal representative drafted such provision, but this Agreement is to be construed as if it were drafted by both parties hereto. 20. WAIVER No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy, shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 21. NOTICE Notices herein shall be presented in person or by certified or registered United States mail, as follows: To the Consultant: Michael P. Busch, President Urban Futures, Inc. 3111 N. Tustin Avenue, Suite 230 Orange, CA 92865 To the City: City of San Bernardino 5 Finance Department 300 North D Street San Bernardino, CA 92418 Attn: Jason Simpson, Director of Finance Phone: (909) 384-5242 Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. 22. ENTIRE AGREEMENT This Agreement, with Exhibit "A", constitutes the final, complete and exclusive statement of the terms and the agreement between the parties pertaining to the engagement of the Consultant by the City and the entire understanding of the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, no is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF SAN BERNARDINO Dated: By: Andrea Travis-Miller, Acting City Manager CONSULTANT Urban Futures, Inc. Dated: By: Michael P. Busch, President Approved as to Form: James F. Penman, City Attorney Exhibit A 6 Scope of Work Accounting Services The Scope of Services below is broken down into two (2) distinct services: 1) Financial Management / Accounting; and 2) Bankruptcy Implementation Services. The suggested breakdown of services provides for a logical transition from assignment initiation through completion. Financial Management/Accounting Services 1. Fiscal Review to include: revenue/expenditure forecasts, current/future development projections, local economic forecasts, financial/budget policies and practices, and debt service analysis; 2. Assist in the development of the FY 2012-13 and FY 2013-14 Budgets; 3. Complete verification of accounting including: FY 2010-2011 and FY 2011-12 Audits and Bank Reconciliations; 4. Assist in the development of the FY 2011-12 CAFR; © 5. Audit financial practices and procedures; 6. Review and implement Cost Allocation Plans, internal service charges; and 7. Implement new financial policies and procedures. Functional Detail -Ensuring automated,proof of cash daily - Performing bank reconciliations -Accounts Receivable reconciliation -Develop and prepare accounts receivable audit schedules - Capital project budget aligning and securing accounting processes - Develop workable accounting check points and accurate reporting - Develop utilization of the accounting fixed asset module - General Fund Budget review - FY 13 and FY 14 budget coordination Bankruptcy Services 1. Update the Pendency Plan and preparation of the Plan of Adjustment; 2. Attend bankruptcy court proceedings&provide expert witness duties as needed; and © 3. Assist in the analysis and negotiations with creditors as necessary. 7 Entered Into Rec. at MCC/CDC Mg.417L 26f'NNA °i,{b by. /—/' -C/7NO.liN�O s' Agenda Iterl (,o jo::� � e y d by: ,o City CIeVCDC Secretary CitWf San Bernardino INTER OFFICE MEMORAND OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO TO: Mayor and Council Members FROM: Henry Empeno, Jr., Senior Deputy City Attorney DATE: January 7, 2013 RE: January 7, 2013 Council Meeting, Agenda Item No. 6(F), Resolution Authorizing Execution of a Consultant Services Agreement With Urban Futures Incorporated. Minute Traq Doc. No. 2225 The City Attorney has declined to sign his approval to this Resolution and to the proposed Agreement. Under this proposed Agreement, Urban Futures, Inc., will provide the City with accounting services, as well as continue to provide financial consulting services as a result of the Chapter 9 filings,and assist as needed with staffing support for the recently departed Deputy Director of Finance and Financial Analyst. Compensation for these services will not exceed$400,000.00 and the term of the proposed agreement is January 7, 2013 through June 30, 2014. Urban Futures,hic.,currently has an existing Consultant Services Agreement with the City to provide financial consulting services,which the Mayor and Council approved on June 4,2012 as Resolution 2012-95. In this Agreement for $150,000, with a term through December 31, 2012, Urban Futures, Inc., was to provide an Interim Public Works Director and related financial consulting services. This Agreement was amended twice by the Mayor and Common Council on October 1, 2012. In the First Amendment,Resolution 2012-241, compensation for Interim Public Works Director consulting services was increased from$64,000 by$115,200 to a total amount of $179,200; and the term of the Agreement was extended through June 30, 2013. In the Second Amendment, Resolution 2012-242, compensation for "restructuring and fiscal analysis services" was increased from $86,000 by $214,000 to a total amount of $300,000; and the term of the Agreement was extended through June 30,2014. In the Second Amendment,Urban Futures,Inc., was to provide financial services "needed as a result of current economic conditions, the delayed budget process, the delayed completion of the audit, implementation of new financial software solution,and the retirement of the Director of Finance,"and provide additional resources to comply with requirements related to the City's Bankruptcy. Agenda Item No. 6F January 7, 2013 FdEMPENOWgenda Itet \Agendalte No.6F.MCC.Menw.1.7.13.wpd Memo To: Mayor and Council Members Date: January 7,2013 Page No.: 2 The new Agreement with Urban Futures, hie., proposes provisions which are materially different than several standard provisions in the June 4, 2012 Agreement approved by the Mayor and Council and the City Attorney;modified standard provisions such as and Nondiscrimination and Conflict of Interest; deleted Professional Practices and Insurance requirements: and added a new Limitation of Liability section. For these reasons,we recommend that the Mayor and Council reject the proposed Agreement, and direct the Finance Department to propose an Amendment to the existing contract with Urban Futures, hie. i i Henry Empe>no, Jr. j Senior Deputy City Attorney cc: James F. Penman, City Attorney Gigi Hanna, City Clerk Andrea Travis-Miller, City Manager Jason Simpson, Finance Director F:TMPENOWgmda 11em\Ag=dalt=No.6F.MCC.Memo.1.7.13.wpd