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RESOLUTION (ID#2225) DOC ID: 2225 B CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract Amendment From: Jason Simpson M/CC Meeting Date: 01/10/2013 s 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. (At Meeting of January 7, 2013, Item Continued to January 10,2013.) Financial Impact: The$200,000 amendment will be funded from salary and benefit costs from key positions in Finance and Human Resources that will take some time to be filled with qualified applicants on a permanent basis. Attachment A provides a summary of the restructuring costs to date and the proposed funding sources for this item's amendment. 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 departed positions. 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; Updated: 1/9/2013 by Jason Simpson B Packet Pg. 6 2225 3. Complete verification of accounting including: FY 2010-2011 and FY 2011-12 Audits C' 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. City Attorney Review: Supporting Documents: UFI Accounting Services Agreement(DOC) Resolution (DOCX) Attachment a-Funding Source for Services Breakdown (PDF) C C Updated: 1/9/2013 by Jason Simpson B Packet Pg. 7 ITEM � 2A NEW RESOLUTION � � RE : � � URBAN FUTURES � � REC'D: 01 /09/2013 � COMMON COUNCIL OFFICE till Of SAN OERNARO!NO 13 JAN -9 PH 3, 21 RESOLUTION NO. 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A THIRD 3 AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN URBAN FUTURES, INC. AND THE CITY OF SAN BERNARDINO REGARDING 4 ACCOUNTING,RESTRUCTURING, AND FISCAL ANALYSIS 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 Third 9 Amendment to Consultant Services Agreement Between the City of San Bernardino and 10 Urban Futures, Inc. for Accounting, Restructuring, and Fiscal Analysis Services, a copy of 11 12 which is attached and incorporated herein as Exhibit "A". 13 SECTION 2. The Purchasing Manager is hereby authorized to amend the existing 14 Purchase Order to Urban Futures, Inc. for accounting, restructuring, and fiscal analysis 15 services by increasing the amount by$200,000 for a total amount not to exceed$500,000. 16 SECTION 3. The authorization granted herein shall expire and be void and of no 17 further effect if the Third Amendment is not executed by both parties and returned to the 18 19 Office of the City Clerk within sixty(60) days following the effective date of this Resolution. 20 21 22 23 24 25 26 27 28 t I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A THIRD AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN URBAN 3 AFUTURES,TING,RESTRUCTURING,AND FISCAL ANALYSIS SERVICES. ARDING 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a meeting 7 thereof,held on the_day of 12013,by the following vote,to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ 11 JENKINS 12 VALDIVIA 13 14 SHORETT 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 19 Georgeann Hanna, City Clerk 20 21 The foregoing Resolution is hereby approved this day of 12013. 22 23 Patrick J. Morris,Mayor 24 City of San Bernardino 25 Approved as to form: JAMES F. PENMAN, 26 City orney 27 By 28 THIRD AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES,INC.REGARDING ACCOUNTING,RESTRUCTURING,AND FISCAL ANALYSIS SERVICES. THIS THIRD AMENDMENT is made and entered into as of January 10, 2013 by and between the CITY OF SAN BERNARDINO, a charter city ("City"), and URBAN FUTURES, INC. ("Consultant") as to accounting, restructuring, and fiscal analysis services only. In consideration of herein,the parties agree as follows: 1. This Amendment is made with respect to the following facts and purposes: �j a. On June 4, 201,/the City and Consultant entered into that certain agreement entitled "CONSULTANT SERVICES AGREEMENT", in the amount of $150,000 for consultant services, $86,000.00 of said $150,000 was specifically for restructuring and fiscal analysis services. b. On October 1, 2012, the parties approved the Second Amendment to increase the payment for restructuring and fiscal analysis services in the amount of $214,000.00. c. The parties now desire to modify the Scope of Work and increase the payment for the accounting, restructuring, and fiscal analysis services in the amount of $200,000, and amend the Agreement as set forth in this Amendment. 2. Section 2. Compensation of the Agreement is hereby amended to read as follows: City hereby agrees to pay Consultant a sum not to exceed a total of $500,000 for accounting, restructuring, and fiscal analysis services. City shall pay consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The Third Amendment amount shall not exceed $200,000 for additional accounting, restructuring and fiscal analysis services. 3. Section 3.1.Term of the Agreement is hereby amended to read as follows: This Agreement shall commence on the Effective Date and continue through June 30, 2013 unless the Agreement is previously terminated as provided for herein. 4. Exhibit A to the Agreement is hereby amended by adding thereto the items set forth on Attachment "A" to this Amendment, which is attached hereto and incorporated herein. THIRD AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES,INC.REGARDING ACCOUNTING,RESTRUCTURING, AND FISCAL ANALYSIS SERVICES. 5. Except for the changes specifically set forth herein, all other terms and conditions of the Agreement and its previous amendments shall remain in full force and effect. IN WITNESS THEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers,as of the date first above written. CITY OF SAN BERNARDINO URBAN FUTURES,INC. A Municipal Corporation Andrea Travis-Miller Michael Busch,President Acting City Manager ATTEST: Georgeann Hanna,City Clerk APPROVED AS TO FORM: I — es F. Penman, ity Attorney Attachment A Scope of Work Accountine Services ) Financial distinct services: 1� "m suggested and 2) Bankruptcy Implementation Services. The The Scope of Services below is broken down into two (2 Management / Accounting; breakdown of services provides for a logical transition from assignment initiation through completion. Financial Management/ Accountin Services ocal economic forecasts, financial/budget policies and practices, and dservice debt s 1. Fiscal Review to include: revenue/expenditure forecasts, current/future development bt s projections, 1 analysis; ent of the FY 2012-13 and FY 2013-14 Budgets; 2. Assist in the developm of accounting including: FY 2010-2011 and FY 2011-12 Audits and 3. Complete verification 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. Functio 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 p rocesses -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 Bankrnntcy 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. I RESOLUTION NO, 2032-95: A 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 INCORPORATED AND THE CITY OF SAN BERNARDINO FOR CONSULTANT SERVICES. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF Tf E CITY f OF SAN BERNARDINO AS FOLLOWS:' 6 ' SECTION I. The Acting City Manager of the City of San Bernardino is hereby 7 authorized and directed to execute on behalf of said City a Consultant Services Agreement 0 between Urban Futures Incorporated(UFI)and the City of San Bernardino for consultant 10 services,a copy of which is attached hereto;marked Exhibit"A"and incorporated herein by 13 reference as fully as though set forth atlength, 121 SECTION 2. The Purchasing Manager is hereby authorized to issue aPurchase Order to -. 13 Urban Futures Incorporated for consultant services for a total amount not to exceed$200,000. 14 SECTION 3.The authorization granted hereunder shall expire and be voidand-of no 15 further effect.ifthe agreement is not executed by both parties and retumed.to'the Office of the 15 City Clerk within sixty(60)days following the effective date of the Resolution. 17 1.1;J 38 10 20. 21 ' 22 23 25 1 2012-95 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT 2 SERVICES AGREEMENT BETWEEN URBAN FUTURES INCORPORATED AND THE CITY OF SAN BERNARDINO FOR CONSULTANT SERVICES. 3 I HEREBY CERTIFY that the foregoing Resolution was duty adopted by the Mayor and 4 Common Counoxl of the City of San Bernardino at a 3 ai.nt relcular meeting thereof, 5 held on the 4th day of June 2012,by the following vote,to wit: 6 COUNCILMEMBERS: AYES NAYES OSTAIN ABSENT 9 MARQUEZ x 8 JENKINS 9 'VALDIVIA X 10 SHORETT x n KELLEY X 12 3QliNSON: X Me CAMMACK i4 G � ehL Georgeann Hanna,City Cl k 1.5 rvy The foregoing Resolution is hereby approved this IO or June 2012., lb 19 Pat=i ).Morris, May -? San Bernardino 18 Approved as to farxe►: 19 JAMES F.PENMAN, 20 City Attorney 21 By 22 23 24 25 2 2012-95 CONSULTANT SERVICES AGREEMENT THIS AGREEMENT is made and entered into this Lth day of June . 2012 ("Effective Date"),by and between the CITY OF SAN BERNARDINO,a charter city("CITY"), and URBAN FUTURES,INC, ("CONSULTANT"). "WITNESS'ETH: A. WHEREAS, CITY proposes to have CONSULTANT perform the services described herein below;and B. WHEREAS, 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, CITY and CONSULTANT desire to contract for an Interim Public works Director and Related Financial Consulting as described in the Scope of Services,attached hereto as Exhibit"A';,and D. WHEREAS, no official or employee of CITY has a financial interest,within the provisions of California Government Code, Sections 1090-1092, in the subject matter of this Agreement. , NOW; THEREFORE, for and in consideration of the mutual covenants and conditions. contained herein,the parties hereby agree as follows: 1.0. SERVICES PROVIDED BY CONSULTANT 1.,1. Scope of Services. For the remuneration stipulated, CONSULTANT shall provide the professional services described inihe Scope of Services attached hereto as Exhibit"A" and incorporated herein by this reference. If a conflict arises between the Scope of Services and this Professional Services Agreement(hereinafter"Agreement"),the terms of the Agreement shall govern. 1.2. Professional Practices. All professional services to be provided by CONSULTANT pursuant to this Agreement shall be provided by skilled personnel and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. CONSULTANT also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise CITY of any changes in any laws that may affect CONSULTANT's performance of this Agreement. CONSULTANT further represents that no CITY'employee will provide any services under this Agreement. C100CUMENTS AND.sm-rrNos%sF.ASLAMXor-AL icTf,No bkTEMp1MINUTETRAQ\SANBERNARbINOCTTYCA@ SANSMARDINOCITYCA.IQM2.COMWORKW TTACIiMENTS\303 6.IKXX 1 2012-95 13.. W CONSULTANT warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including,but not limited to,those laws related to minimum hours and wages;occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment;and all other Federal,State and local laws and ordinances applicable to the services required under this Agreement. CONSULTANT shall indemnify and hold harmless CITY from and against all claims,demands;payments,suits,actions,proceedings,and Judgments of every nature and description including reasonable attorneys'fees and costs,presented,brought, or recovered against CITY for, or on account of any liability under any of the above-mentioned laws,arising from or related to CONSULTANT s performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, CONSULTANT shall not engage in,nor permit its officers,employees or agents to engage in,discrimination in employment of persons because of their race,religiou;-bolor,national origin,ancestry, age,mental or physical disability, medical condition, marital,status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the'-Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. 1.5 Non Exclusive Agreement CONSULTANT acknowledges that CITY may enter into agreements with othei consultants for services.similar to the services that are subject to ibis Agreement or may have its own �ernployees perform services similar to those services contemplated by this Agreement 1.6. Dele¢atiori and Assignment. This is`a personal'service contract,and the duties,set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of CITY. CONSULTANT may engage a subcontractotr($) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at CONSULTANT s sole cost and expense. 1.7 Conflicts of Lust. During the term of this Agreement,CONSULTANT shall at all times maintain a duty of loyalty and a fiduciary duty as to the CITY and shall not accept payment from or employment with any person or-entity which will constitute a conflict of interest with the,CITY. 1.8 CITY Business Certificate. CONSULTANT shall obtain and maintain during the term of this Agreement, a valid CITY Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of CONSULTANT to practice its profession,skill or business. 2.0. COMPENSATION AND BILLING C:VOCHMDn AND SETTINDS\SEASLANDADM SETTI NOS\T Empm,NULETRAWANaERNARDYNOCrrYCA QSANEERNARDRJOCITYCA•IQM2.COKW ORK\ATTACHMENTS\3D3 ® 4.DOCX 2 I i 2012-95 2.1. Compensation. Interim Public Works Director services shall be compensated at $16,000 per month for 144 hours per month. Financial Consulting Services shall be compensated CONSULTANT exceed$150,000. at an hourly rate of$225.00 on an as needed basis. In no event shall the total amount paid to 2.2. Additional Services. CONSULTANT shall not receive compensation for any services provided outside the Scope of Services Unless the CITY, prior to CONSULTANT performing the additional services,approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. CONSULTANT-may submit invoices to CITY for approval. said invoice shall be based on the total of all CONSULTANT s services which have been completed to CITY's sole satisfaction.CITY shall Pay CONSULTANT'S invoice within forty-five, (45) days from the date CITY receives said invoice. The invoice shall describe in detail, the services performed and the associated title for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order,where applicable,on all invoices. 2,4,.': RLy m+t-S end flits: Records ofCONSUL fAN i s services relating tcis Agreementshatlb�ntiwntatnhd lit accordance with recognized accounting principles And shall be made available to CITY for inspection and/or audit at'mutually convenient tunes £ttr a period of three(3)years from the Effective Date. „ 3.0. TERM AND*OTIIl'ICATION; 3.1, ,Term_. This Agreement shall commence on the Effective Date and continue through December 31,2012,unless the Agreement is previously terminated as provided for herein. 3,2 T"crmntation. CITY or CONSULTANT may terminate the services provided under Section 1.1 of this Agreement upon thirty(30)days written notice to the other party. In the event of termination, CONSULTANT shall be paid the reasonable value of services rendered to the date of termination. 3.3 Documents. In the event of termination of this Agreement, all documents prepared by CONSULTANT in its performance of this Agreement shall be delivered to the CITY within ten(10) days of delivery of termination notice to CONSULTANT, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONSULTANT shall be CITY's sole risk and without liability or legal expense to CONSULTANT. A.O. INSURANCE 4.1. b&nirrium Scone and Limits of Instua tee. CONSULTANT shall obtain and C.xDMUMEMS AND SM1NOSISEA WM\LOCAL SE3TIN6SI T,WNNUTETAAQV SANBERNAFDINOCIrYCA @SANBE.RNARDWOCITYCA.IQW.COIv WORK\ATTACHMENTSl303 6.DOCX 3 2012-95 maintain dining the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including' premises-operations, products/comPletcd operations, broad form Property damage, blanket contractual liability,independent contractors,personal injury with a policy limit of not less than One Million Dollars($1,000,000 00),combined single limits,per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than one Million Dollars($1,000,000.00), Combined single limits,per occurrence and aggregate. (c) Workers'compensation insurance as required by the State of California. 4.2. Endorsements. The commercial general liability-insurance policy shall contain or be endorsed to contain the following provisions:. (a} Additional.insureds: 'The-City of Sean Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds withrespect to this subject project and-contract with City." (b) :Notrce: "said policy shall not terminate,nor:shall it be materially changed or.cancelled, nor the coverage reduced,until thirty (30)days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino"shall be excess and not contributing with the insurance provided by this policy.„ 4,3, Certificates of insurance. CONSULTANT shall provide to CITY certificates of insurance showing the insurance coverages anarequired endorsements described above,in a form and content approved by CITY,prior to performing any services under this Agreement. 4.4. Non-limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement,or the extent to which CONSULTANT may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in��g,and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any C¢1D000MENTS AND SE 7INGS\sEASLANDU.QCAL ,.INGMTEMPNINUTE P,AWANBBRNARDINOCITYCAQa SANBERNARDMOCrrYCA.IQM2.Co WWORKWTTACHMENTSU03 6D0C% 4 2012-95 inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement: 5;2. Notice . Any notices, documents, corresponderiee or other communications concerning this Agreement or the work hereunder may be provided by personal delivery,facsimile or mail and shall be addressed asset forth below. Such communication shall be deemed served or delivered: a)at the time of delivery if such communication is sent by personal delivery;b)at the time o£transmission if such communication is sent by facsimile; and c)48 hours after deposit in the U.S.Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail. IF TO CONSULTANT` IF TO CITY: Urban Frrittres,Inc. City Manager 31.11..North Tustin,Suite 230 300 North"b"Street Orange,CA•92865 San Bernardino,CA 92418 Telephone:. (714)283-9334 Telephone: (909)3845122 Facsimile:- (714)283-8963 Facsimile; (909) 384-5138 5.3., Attorneys' Fees: In the event that litigation is brought by any party in connection with this'Agreement;the prevailing party shall be entilMto recoverfrom the opposing party all , costs'and expenses,including reasonable atWrney9 fft iricurred ty,the prevailing party in the axercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the CITY shall be considered as "attorneys'fees"for the purposes of this Agreement. 5;4, Governinit Law: This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County,California. 5;5. Assimiment: CONSULTANT shall not voluntarily or by operation of law assign, transfer,sublet or encumber all or any part of CONSULTANT's interest tin this Agreement without CT[Y's prior written consent: Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of CITY''s consent, no subletting or assignment shall release CONSULTANT of CONSULTANT's obligation to perform all other obligations to be performed by CONSULTANT hereunder for the term of this Agreement. 5 ndemnifigA and Hold Harmless. CONSULTANT shall protect, defend, QWCOMENrs ANDSETrINWSEASLANDV.00AL sEr1•m&TEryjmmjTMAQVSAN BERNARDI NocrNcA @sANBERNARDiNOCRYCA.IQM2.COW W ORKWTTACHMENTSV D3 6.DOCX 6 2012-95 indemnify and hold harmless CITY and its:elected and appointed officials,boards,commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including,but not limited to,all civil claims or workers'compensation claims arising-from or in any way related to CONSULTANT's performance under this Agreement; except when caused solely by the CITY's negligence. 5:7. Independent Contractor. G0NSl1LTANT, at all times while performing under this Agreement,is and shall be acting at alltimes as an independent contractor and not as an agent or employee of CITY. CONSULTANT shall secure, at its expense, and be responsible for any and all payment of wages,benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for CONSULTANT and its officers, agents, and employees, and all business licenses,if any are required, in connection with the services to.be performed hereunder. Neither CONSULTANT nor its officers, agents and employees shall be entitled to receive any benefits which employees of CITY are entitled to receive and shall not be entitled to workers' compensation insurance, uneinploymenf compensation, medical insurance; life insurances vacations,paid holidays,pension,'profit sharing or social security on account of CONSULTANT . and its officers',agents' and employees'work for the CITY. This Agreement,does not create tlia Telationship.of'agent, 'servant, employee partnership or joint venture between the CITY acid CONSULTANT. 5.8 Conflict of Interest Disclosure CONSULTANT.or its employees may be subjectto the provisions of the California Political Reform Act of 1974(the "Act"),which(1)requires such persons to disclose financial interests that may be materially affected by the work performed under this Agreement, and(2)prohibits such persons from making or participating in making decisions that will'have a foreseeable financial affect on such interest. CONSULTANT shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by CITY. 5.9. Resuonsibility for Errors. CONSULTANT shall be responsible for its work and results under this Agreement. CONSULTANT,when requested,shall famish clarification and/or explanation as may be required by the CITY's representative, regarding any services rendered under this Agreement at no additional cost to CITY. In the event that an error or omission attributable to CONSULTANT occurs,then CONSULTANT shall,at no cost to CITY,provide all other CONSULTANT professional services necessary to rectify and correct the matter to the sole satisfaction of CITY and to participate in any meeting required with regard to the correction. 5.10. Prohibited&WIoymem. CONSULTANT shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. CIDOCUMENTS AND SETMOSMASLRNDU.00AL SgMaS1:IEMF1MnJUTE7R,WANBERNARDINOCrrYCA@ SANBERKA"INOCITYCA.7QM2.COM\WORMATTACNMENTSU03 6.DDCx 6 2012-95 5.11. QgA. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 532. N p Th'rd P Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and CONSULTANT and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement. 5.13. Headings paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify,explain or to be a full or accurate description of the content thereof and shall not in my way affect the meaning or interpretation of this Agreement. 5.14. ents: only a writing executed by all of the parties hereto or their respective successors and assigns may,amcnd this Agreement. 515, itaiver: ,The klelay or`failiurt•bf either party at sny time to:reguire perfomurnee or, r complianceby#1 o ofat>y o>{td obligations or agreements shell in-no gray be deemed a waiver of 111094lights'to requlie sueh;.gertbnmaitce or,compliance. ,No waiver of any provtslon of Ws pigreemenEsshallbe effectivevnlessJn,sting anti s gaed•by a duly authorized representatiap; the party against whom enforcement bf a.waiver is:sought. The waiver of any right or rerawy with respect to any oecarrence ors event shall not be deemed a waiver of any right or remedy v�ptki. respectlo Any other ooduiience'or event,nor:shall any waiver constitute a.continuing waiver. 5.16. Severabi If any provision of this Agieement'is determined by a court of. competent jurisdiction to be invalid or unenforceable for any reason,such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counter„patts: This Agreement may be executed in one or more counterparts,each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Comorate Authority.The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this,Agreement on behalf of said parties and that by doing so,the parties hereto are;formally bound to the provisions of this Agreement. /// c:IDocum 3xrs AND SErnNGS4sBASLANDV=AL SETMM7MeWRWMTRAMAMERNA"INWITYCA@ SAMERNARDINOCrrYCAIQM2 COMWORKWTTACH UM\303 6;DOCx 7 2012-45 C:\D000MENTS AND SETTINOS\SEASLAND\LOCAL SETTINGSI7EMPIM MTETRAQ\SANBERNARDINOCITYCA®SANBERNARDINOCITYCA.IQW.COM\WORKWTfACHMENTS\303 6.DOCX 8 2012-95 • IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed by and through their respective authorized officers,as of the date first above written. CITY OF SAN BERNARDINO, ' CONSULTANT A Municipal Corporation ff Andrea Tmvis-Miller,ticung Ctty Manager Signature J_I Name and Title - A T' ' `.1 Georgeann"Gigi"Hanna,Ci ler APPROVED AS TO FORM: JAMES F.PENMAN, - City Attorney c:\DGCUMEMS AND SMINriMSEASLAN Y&OCAL Sg"GSXTEM%MINUTFMAQ\SAN BERNARDI NOCrrYCA @SANEERNARDINOCITYCA,IQM2.COM\W ORKIATTACHMENTSU03 6.DOCX 9 City of San Bernardino d N _ « c S Proposal to Provide Interim Public Works Director and Related Financial Consulting Services a e LL a L E d v Q a L x W_ N d U d m .. (A V R C O U m N O a 0 a O c Prepared by: v M c =URBAN FUTURES IIncorporated m c m E M U m x Q u d w C Proposal to Provide Interim Public Works Director and Related Financial Consulting Services w m 7 1 w L LL C W 7 t w_ w C d E d d Q 0 Submitted By: a L = URBAN FUTURES Incorporated Ul W V .l d N Urban Futures, inc. D1 c Corporate Office w 3111 North Tustin, Suite 230 Orange, CA 92865 0 Phone: (714) 283-9334 L) Fax: (714) 283-8963 u CL 0 Northern California Office o 0 1470 Maria Lane, Suite 315 'mac" Walnut Creek, CA 94596 E Phone: (925)478-7450 m Fax: (925) 478-7967 A N www.urbanfuturesinc.com d E L u m x Q URBAN FUTURES Incorporated N Z d May 14,2012 « c N Jason Simpson 0 0 Finance Director City of San Bernardino 300 North V Street San Bernardino,CA 92418 d 0 0 LL Subject: Proposal for Interim Public Works Director and Related Financial Consulting Services `m f L Dear Mr. Simpson: « Urban Futures Inc. (UFI) is pleased to submit this proposal to provide interim public works director staffing E and consulting services. As a full service municipal consulting firm, UFI possesses the knowledge, staff, m and successful track record in providing the specific services required by the City of San Bernardino. Few a firms are able to provide the variety of services offered by UFI, while simultaneously ensuring the highest $ quality product at the lowest possible cost to the City. a We look forward to the opportunity to work the City of San Bernardino. If you have any questions, please contact me at(714) 283-9334 or MichaelB @UrbanFutureslnc.com. N d Sincerely, URBAN FUTURES INCORPORATED d rq OI C 40 N « Michael Busch u President&Chief Operating Officer N 0 a a 0 c E m E N m C m N c d E U u m Q 3111 N.Tustin, Suite 230 Orange,CA 92865-1753 1 (714)283-9334 Business 1 (714)283-5465 FAX N d u Table of Contents Y N Section 1 —Company Background................................................................................................................2 Section 2—Core Services....................................................................................... 3 CO Section 3—Proposed Scope of Services.......................................................................................................4 N ......................................................7 r Section 4—Fee Schedule....................................................................... LL c a r 3 c d E m v m a 0 « a r w_ N d U d y rn c R Y V V C 0 U m N O a 0 o. 0 c v A c m m c m U) C d E v ro a Company Background y M C Urban Futures, Inc. (UFI) is a full service consulting fine serving public agencies solely in the State of California. Founded in 1972, UFI is a closely held California corporation with offices in the cities of Orange u and Walnut Creek, California. co co Since our founding, UFI has served over 200 governmental entities in various capacities including,financial & management advisor, redevelopment consultant and interim staffing. We have helped many Califomia d public agencies serve local businesses and residents by working to create sound fiscal policies and management practices. " c A a Here is what we believe UFI"brings to the table": • s Extensive knowledge of the municipal operations and in depth knowledge of current trends; • A team of professionals with a combined 150+years of municipal management experience; m • Analytic sophistication that fosters a multi-disciplinary approach to problem solving regardless of E project size or type; and a Continuity of service; UFI is small enough so that there is never a break in the client/professional network, yet large enough to offer a full range of services. Y a Our greatest strength lies in the fact that our firm can provide a well-diversified approached to service K delivery through a comprehensive community, organization and sound management strategy. This combination enables UFI to develop and implement an innovative and community oriented strategy to u providing management advisory and interim staffing services. N to C W M N Y C O V M O a O CL O c a E m m c R N Y C d E r v m 4 -2- Core Services N C UFI offers public clients a wide range of specialized services including finance, investment advisory services, management consulting and interim staffing services. Our core lines of business include the following: v Financial Advisory Services Interim I Project Management Staffing co Investment Advisory Services Management Advisory&Administration Project Feasibility Studies Organizational Studies LL Urban Futures employs 25 individuals including 13 professionals and 12 paraprofessional and support staff. The firm has two offices,with the main office in the City of Orange and a Northern California Location in the City of Walnut Creek. The proposed work for this proposal will be conducted out of the Orange office. « Our staff has served public agencies in many different capacities. We understand that each agency faces different circumstances and we acknowledge each as an independent organization with unique goals and E objectives. Our services have included providing interim staffing, conducting budget analysis, recommending revenue diversification strategies, and creating fiscal policies for agencies to adopt. c « Our public finance and management advisory divisions are able to draw on the expertise of our staff to a produce excellent results. Because of our diversity, our staff has been called upon to advise public agencies in many different capacities. We believe our proposed staff, which includes a former municipal E public works director and city engineer, has the best qualifications to serve the City of San Bernardino. W d v d tp O! c N A « C V O a 0 a 0 C 9 W C d m C W N M C d E L V A Z'. Q -3- ro Proposed Scope of Services a Urban Futures Inc. is pleased to submit this proposal to the City of San Bernardino to provide interim public works director staffing and related financial consulting services. We understand that the City is seeking 0 interim professional expertise in all areas of the City's operation including engineering, public works,project management and development review functions. As this proposal will demonstrate, Urban Futures has been a recognized leader in providing high quality finance and administrative consulting/interim staffing services to public agencies throughout California. Although we're best known over the years for our creative financial advisory practice, our multi-disciplinary LL approach makes Urban Futures a valuable member of any team on any level. A a We are committed to initiating, facilitating, and maintaining open, collaborative communication with all i parties. Urban Future's approach is characterized by the following: • c CURIOSITY-Asking the right questions and engaging the right people m • CLARITY- Being proactive in identifying issues, opportunities, and solutions • CREATIVITY - Being an advocate for comprehensive solutions and being flexible with c alternatives and choices a • CONFIDENCE- Ensuring thorough,frequent, and regular communication L Our team will work hard to meet the needs of the City of San Bernardino and to help you achieve all of your W community goals d u Given the nature of this engagement, UP proposes to assemble a project team based on San Bernardino's d unique needs. Michael Busch will provide overall direction and expert guidance for the project while providing financial consulting services to the City. The professional we are offering as interim public works director is Jim Smith. rn Working in conjunction with the City's executive and public works staff, Urban Futures is prepared to engage its full team and resources to the effective and efficient implementation of services necessary to c improve the City's long term operational and fiscal health. U m 0 To implement the proposed services for the City of San Bernardino, Urban Futures is recommending the c CL following responsibilities to manage and facilitate financial and public works functions on the behalf of the n 0 City: 9 M E d m c A y r C d E L U 0 Q -4- �■ Scope of Services U> C , Interim Public Works Director C As proposed, the role of Urban Futures in this engagement is to establish, direct, plan, supervise and 0 organize the City's short and long-range development and capital project systems by creating and analyzing fiscal impacts of development activities and capital funded programs. In addition, under this CO engagement Urban Futures will manage the City's developer and bond funded capital projects and programs and assist in the negotiate of developer agreements. Specific responsibilities of this position 5 include: LL c m Under policy direction from the City Manager, plans, organizes, directs and integrates the City's public works and utilities activities and functions; provides expert professional assistance to City management in areas of expertise, including engineering, municipal water, wastewater collection, and street and landscape maintenance; and performs related duties as required. E Plans, organizes, controls, integrates and evaluates the work of the Public Works Department; develops, W implements and monitors long-term plans, goals and objectives focused on achieving the City's mission c and Council priorities; directs the development of and monitors performance against the annual department a budget; manages and directs the development, implementation and evaluation of plans, policies, systems Z a and procedures to achieve annual goals,objectives and work standards. r W Plans, organizes, directs and evaluates the performance of assigned staff; establishes performance requirements and personal development targets; regularly monitors performance and provides coaching for Z performance improvement and development; makes decisions on compensation and other rewards to i0 recognize performance; takes disciplinary action, up to and including termination, to address performance deficiencies, in accordance with the City's personnel rules and policies. Provides leadership and works with department staff to develop and retain highly competent, customer A service-oriented staff through selection, compensation, training and day-to-day management practices o which support the City's mission and values. U W Integrates and directs the efforts and results of supervisors and staff engaged in the maintenance and a 0 repair of the City's public works,water distribution and wastewater collection system infrastructure. a 0 Advises the City Council, City Manager, citizen groups, individuals, contractors and others on depart- E mental issues; assembles necessary resources to solve a broad range of programmatic and service E delivery problems in the delivery of public works and utilities services; assists in the preparation of new City m ordinances and the revision of existing ordinances. 0 Coordinates, reviews and approves the work of the City's contract City Engineer and a wide variety of d independent service providers, including traffic engineers, rubbish collectors, public works maintenance E 0 W a 5 w and construction contractors, public utilities maintenance and construction contractors; landscape architects and landscaping contractors,tree maintenance contractors and others. Z w « Monitors developments related to public works and utilities matters, evaluates their impact on City operations, and implements policy and procedure improvements. 'w c O Represents the City in negotiations with other agencies, utilities, groups and individuals on a wide variety of U. issues pertaining to public works and public utilities. Develops specifications and bid documents for a variety of public works and public utilities-related designs, construction and maintenance projects; recommends contract awards, negotiates contract provisions and ; « coordinates, reviews and approves contractor's performance. U. C Reviews and advises on development plans and permits for work in City rights-of-way. r « c d E d I at Q 0 « a r x W_ N d 0 t d N W c N t✓i 0 O V R N O a 0 IL O c E m c d r0 c m N C w E L U m x Q -6- m Fee Schedule N PROPOSED FEE SCHEDULE: C 0 The following proposed fee structure reflects contract staffing on a fixed fee basis for interim public c works director services and hourly fees for additional financial consulting services. Consulting U hours billed will be based on actual hours worked. The fee for these services is on a lump sum basis for the following tasks: a m Contract Finance Staff U. LL The following proposed fee structure reflects full-time staffing inclusive of vacation time, holidays and lunch breaks. Hours billed will be based on actual hours worked. r ■� 3 c m E m m rn Interim Public Works a Director 161000 144` 100% a a x Uj m m u m Financial Consulting* 225.00 t11A'= NIA m S « *Costs are based on an as needed basis. U) m c 0 V m m 0 a a 0 c E M E m m C m N C c m E r 0 m x a -7- 2012-241 FIRST AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY Of SAN BERNARDINO AND URBAN FUTURES,INC. REGARDING INTERIM PUBLIC WORKS DIRECTOR SERVICES THIS FIRST AMENDMENT is made and entered into as of October 1, 2012 by and between the CITY OF SAN BERNARDINO, a charter city ("CITY" and URBAN FUTURES, INC. ("CONSULTANT') as to Interim Public Works Director services only. In consideration of the mutual covenants and conditions set forth herein,the parties agree as follows:. 1. This Amendment is made with the respect to the following facts and purposes: a. On June 4, 2011 the City and Consultant entered into that certain agreement entitled "CONSULTANT SERVICES AGREEMENT", in the amount of$150,000.00, of which$64,000 was estimated specifically for the interim Public Works Director. b.The parties now desire to increase the payment for Interim Public Works Director services in the amount of$115,200.00 and amend the Agreement as set forth in this Amendment. 2. Section 2.Compensation of the Agreements hereby amended to read as fellows: City hereby agrees to pay Consultant a sum not to exceed a total of $179,200.00 (One Hundred Seventy-Nine Thousand Two Hundred Dollars and no cents). City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. Any terms in Exhibit A other than the payment rates and schedule of payment are null and void. The first amendment amount shall not exceed $115,200.00 (One Hundred Fifteen Thousand Two Hundred Dollars and no Cents) for additional interim Public Works Director consulting services. 3. Section3.1. Term of the Agreement is hereby amended to read as follows: This Agreement shall commence on the Effective Date and continue through June 30, 2013, unless the Agreement is previously terminated as provided for herein. 4. Exhibit A to the Agreement is hereby amended by adding thereto the items set forth on Attachment"A" to this Amendment, which is attached hereto and incorporated herein as though set forth in full. 5. Except for the changes specifically set forth herein, all other terms and conditions of the Agreement shall remain in full force and effect. 2012-141 FIRST AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES, INC. REGARDING INTERIM PUBLIC WORKS DIRECTOR SERVICES IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. CITY OF SAN BERNARDINO, CONSULTANT A Municipal Corporation Js Andrea Travis-Miller Michael Busch, President Acting City Manager ATTEST: Geo a. Gigi" Han , City Clerk APPROVED AS TO FORM:: J ES F PENMAN, ity Attorney 2012-241 Attachment to this First Amendment Exhibit A interim public Contract dated June 4,3013 Works Director original authorization 64,000.00 First Amendment-October 1,2612. 115,200.00 179,200.00 ADDENDUM TO FIRST AMENDMENT PER MAYOR AND COMMON COUNCIL APPROVAL ON OCTOBER 1,2012 TO CONSULTANT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES, INC. REGARDING INTERIM PUBLIC WORKS DIRECTOR SERVICES At the October 1, 2012 Mayor and Common Council meeting Resolution 2012-241 was adopted with the provision added in the agreement that the Interim Public Works Director shall report his day to day operations directly to the Acting City Manager,and if there is a conflict between the President of Urban Futures and the Acting City Manager,the Interim Public Works Director will take his direction(s)from the Acting City Manager. Joint Regular Meeting Summary October 1, 2012 7C. Council Offmce Discussion and Possible Action Re: Request for Proposals for Franchising of All Components of the City's Solid Waste Services, [Ward(s):All] No Action Taken Gdon Direct the City Manager to Issue "Request for Proposals for Solid Waste Collection, Receiving, Processing, Transfer and Disposal Services" Forthwith Including the Approval and Implementation of the Timeline Discussed in the Staff Report. Approved Motion: Continue the:matter to October 15,2012. 7D Conaclt cyffice creation of Quality of Life Ad floc Committee[Ward(s): Alt] No Action Taken Motion: Discussion and Possible Action of creating a Quality of Life Ad Hoe Committee, Approved Motion; Continue the matter to October 15,2012. JE, Finance Receive and File the City of San Aernardino Cash Flow Position Report as of September 26,2012[Ward(s):N/A] Consensus Motion: Receive and File Report and Information, 7F, Finance RES. ;012-241 - Resolution of the Mayor and Common.Council of the City of San Bernardino Authorizing The Execution of a First Amendment to Consultant Services Agreement Between Urban Futures Incorporated and the City of San Bernardino for Consultant Services Regarding Interim Public Works Director[Ward(s):Alt] Approved Motion: Adopt the Resolution; and add a provision in the agreement that the Interim Public Works Director shall report his day to day operations directly to the Acting City Manager,and if there is a conflict behveen the President of Urban Futures and the Acting City Manager, the Interim Public Works Director Will take his ditection(s) from the Acting City Manager. Mayor and Cmninon C.oancfi of Qje City ofSmi Bernardlao Page 5 Printed 50211012 2012-242 SECOND AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES, INC. REGARDING RESTRUCTURING AND FISCAL ANALYSIS SERVICES THIS SECOND AMENDMENT is made and entered into as of October 1, 2012 by and between the CITY OF SAN BERNARDINO,a charter city("CITY"), and URBAN FUTURES, INC. ("CONSULTANT")as to restructuring and fiscal analysis services only. In consideration of the mutual covenants and conditions set forth herein,the parties agree as follows: 1. This Amendment is made with the respect to the following facts and purposes: a. On June 4, 2011 the City and Consultant entered into that certain agreement entitled "CONSULTANT SERVICES AGREEMENT", in the amount of$150,000 for consultant services, $86,000.00 of said.$t 50,000 was specifically for restructuring and fiscal analysis services. b.The parties now desire to increase the payment for restructuring and fiscal analysis services in the amount of$214,000.00 and amend the Agreement as set forth in this Amendment. 2. Sectfon.2.Compensation of the Agreement is hereby amended to read as follows: City hereby agrees to pay Consultant a sum not to exceed a total of $300,000.00 (Three Hundred Thousand Dollars and no cents) for restructuring and fiscal analysis services. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the Manner set forth herein. Any terms in Exhibit A other than the payment rates and schedule of payment are null and void. The second amendment amount shall not exceed Two Hundred and Fourteen Thousand Dollars and no Cents($214;000.00) for additional consulting services regarding restructuring and fiscal analysis services. 3. Section 3.1.Term of the Agreement is hereby amended to read as follows: This Agreement shall commence on the Effective Date and continue through June 30, 2014, unless the Agreement is previously terminated as provided for herein. 4. Exhibit A to the Agreement is hereby amended by adding thereto the items set forth on Attachment"A"to this Amendment, which is attached hereto and incorporated herein as though set forth in full. 5. Except for the changes specifically set forth herein, all other terms and conditions of the Agreement shall remain in full force and effect. 2oi2-242 SECOND AMENDMENT TO CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND URBAN FUTURES, INC. REGARDING RESTRUCTURING AND FISCAL ANALYSIS SERVICES IN throughSheHrespective authorized officers, as of the date first above written.executed by CITY OF SAN BERNARDINO, CONSULTANT A Muni 'ppi Corporation 4A A Andrea Travis-Miller Mich Busch, President Acting City Manager ATTEST: Georgea -6igi" Han , City Clerk APPROVED AS TO FORM: JMESMF. PENMAN, ttorney 2012-242 Exhibit A Urban Futures Incorporated(UFI)is a full-service consulting film serving public agencies solely in the State of California. Financial services of UFI are needed as a result of current economic conditions, the delayed budget process,the delayed completion of the audit, implementation of the new financial software solution,and the recent retirement of the Director of Finance. Since June 4,2012,the City has declared insoiveney,Iled for Chapter 9 pmteedol on-August 1, 2012 and as a result additional resources are required to meet ongoing City demands.plus comply with City, Creditor and Federal Court deliverables related to the fiscal emergency plan,strategy, pre-pendency plan, pendency plan and ultimately final a plan of adjustment in order to emerge from bankruptcy. The financial consulting services will be charged at the hourly rate not to exceed of$225. Exhibit A Interim Public Restmaunng& Contract dated June 4,2012 Works Director Fiscal Analysts. Total Originai authorization 6 000-00 06,000.00 150,000.00 First Amendment-October 1,2012 128,000:00 128,000A0 Second.Amendment.October 1,2012 - 214,000.00. 214A00.00 19500.00 300,000.00 492;D00.00 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. N (hereinafter referred to as the "Consultant") (sometimes jointly referred to herein as the "Parties"). LL C 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 E Government Code, Section 37103, and holds all necessary licenses to practice and perform the a services herein contemplated; and Q d C. WHEREAS, CONSULTANT is competent, experienced and able to perform said r 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: rn a 1. TERM. U This agreement shall be in full force and effect for the term January 7, 2013 through June 30, w 2014. 2. CONSULTANT RESPONSIBILITIES: o U U 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. E L 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 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 m The Accounting Services for the City of San Bernardino will not exceed $400,000.00. This LL fee is inclusive of all professional fees and expenses. a i 6. NONDISCRIMINATION. AND REPORTING WORK PERFORMANCE. M In the performance of this Agreement and in the hiring and recruitment of employees, N 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 E f origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual n gender or sexual orientation, or any other status protected by law. o d U 7. CONFLICT OF INTEREST m c The Consultant shall maintain a code or standard of conduct. The Consultant shall neither U. 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 N 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. v 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 cm 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. 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 M 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, z without limitation, worker's compensation, disability insurance, vacation or sick pay. The U 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 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 finther to provide the City with proof of payment upon reasonable demand. The 2 Packet Pg. 9 �! 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. m 9. RECORDS LL The Consultant shall keep full and accurate records of all consulting work performed under s 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 (n shall turn over to the City all copies of the Work Records within seven (7) calendar days after d a written request by City. E a 10. BUSINESS LICENSEMN 0 d 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 LL 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 N evidence to the City that this number has been obtained. E 11. RIGHT TO OBTAIN OTHER CONTRACTURAL ARRANGEMENTS. rn 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 CO Territory thereof, or (b) in the United States of America or any Territory thereof, or through M 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) a 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 D legitimate business needs of the City. d E r 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 N pursuant to this Agreement. The costs, salary and expenses of the City Attorney and m members of his office in enforcing this Agreement on behalf of the CITY shall be considered 5 as "attorneys' fees" for the purposes of this paragraph. The Consultant agrees to obtain a c policy of insurance in the minimum amount of$1,000,000.00 (one million dollars) to cover a 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. w m U) 14. LIMITATION OF LIABILITY E The City agrees that Contractor's total liability to the City for any and all damages a whatsoever arising out of or in any way related to this Agreement from any cause, including o 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. LL In no event shall Contractor be liable for indirect, special, incidental, economic, N N 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 r 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. a 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 performance of the services specified in this Agreement. 0 0 15. MODIFICATION. a LL 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. E U R 16. CHOICE OF LAW. a 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. 11 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 a California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. U- 18. SEVERABILILTY a 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 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 C CL v 19. INTERPRETATION ° m U G No provision of this Agreement is to be interpreted for or against either parry because that party or that party's legal representative drafted such provision, but this Agreement is to be L.L. construed as if it were drafted by both parties hereto. N N .N. 20. WAIVER c m No waiver of a breach, failure of any condition, or any right or remedy contained in or m granted by the provisions of this Agreement shall be effective unless it is in writing and a signed by the parry waiving the breach, failure, right, or remedy. No waiver of any breach, y 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 v the writing so specifies. G 21. NOTICE 3 0 U Notices herein shall be presented in person or by certified or registered United States mail, as a follows: LL c d E r To the Consultant: Michael P. Busch, President Urban Futures, Inc. a 3111 N. Tustin Avenue, Suite 230 Orange, CA 92865 To the City: City of San Bernardino 5 Packet Pg. 12 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 N service. a 3 22. ENTIRE AGREEMENT LL c R a 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 P Y rel i n on an representation or � warranty outside those expressly set forth in this Agreement. E R IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed the day d and year first written above. ° U C CITY OF SAN BERNARDINO LL LL N Dated: By: Andrea Travis-Miller,Acting City Manager m E CONSULTANT "m rn Urban Futures, Inc. U Dated: By: m c Michael P. Busch, President o U U Approved as to Form: D C By: E James F. Penman, City Attorney R © Exhibit A 6 Packet Pg. 13 Scope of Work Accountin¢ 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. N d 3 Financial Management/Accounting Services L a 1. Fiscal Review to include: revenue/expenditure forecasts, current/future development projections, local economic forecasts, financial/budget policies and practices, and debt service analysis; m rn 2. Assist in the development of the FY 2012-13 and FY 2013-14 Budgets; d E 3. Complete verification of accounting including: FY 2010-2011 and FY 2011-12 Audits and CZ Bank Reconciliations; o d 4. Assist in the development of the FY 2011-12 CAFR; c 5. Audit financial practices and procedures; U. (� /) 6. Review and implement Cost Allocation Plans, internal sery ice charges; and N r 7. Implement new financial policies and procedures. E d d Functional Detail ° -Ensuring automated,proof of cash daily -Performing bank reconciliations -Accounts Receivable reconciliation -Develop and prepare accounts receivable audit schedules rn - Capital project budget aligning and securing accountin g P rocesses 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 r Bankruntcv Services E s U 1. Update the Pendency Plan and preparation of the Plan of Adjustment; a 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. 14 2.A.b RESOLUTION NO. 1 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 OF SAN BERNARDINO FOR ACCOUNTING SERVICES. 4 5 N v 6 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON r 7 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: Li c R 8 SECTION 1. The City Manager is hereby authorized and directed to execute a rn 9 Consultant Services Agreement between Urban Futures, Inc. (UFI) and the City of San m 10 Bernardino for accounting services, a copy of which is attached and incorporated herein as 11 E Exhibit "A". 12 A CL d 13 SECTION 2. The Purchasing Manager is hereby authorized to issue a Purchase Order u c m 14 to Urban Futures, Inc. for accounting services for a total amount not to exceed $400,000. LL 15 '^ SECTION 3. The authorization granted hereunder shall expire and be void and of no N 16 17 further effect if the Agreement is not executed by both parties and returned to the Office of o y 18 the City Clerk within sixty (60) days following the effective date of this Resolution. 19 /// o 20 /// N d 21 c 22 E r U 23 a 24 25 26 27 28 Packet Pg. 15 2.A.b 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT BETWEEN URBAN FUTURES, INC. AND THE CITY 3 OF SAN BERNARDINO FOR ACCOUNTING SERVICES. 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 ` 3 r.. thereof,held on the day of 2013,by the following vote,to wit: LL 7 8 Council Members: AYES NAYS ABSTAIN ABSENT D 9 MARQUEZ 5 w R 10 JENKINS cn 11 e VALDIVIA r 12 CL m SHORETT ° 13 r U C 14 KELLEY c U. 15 JOHNSON N N N 16 MCCAMMACK 17 0 A 18 19 Georgeann Hanna, City Clerk o 20 The foregoing Resolution is hereby approved this day of 2013. o N d 21 r U 22 Patrick J. Morris, Mayor s 23 City of San Bernardino a 24 Approved as to form: JAMES F. PENMAN, 25 City Attorney 26 By: 27 28 Packet Pg. 16 2Ac ' Attachment A Running DESCRIPTION Amount Balance N d L Restructuring Costs to Date ,L Pendency Plan Allocation for Professionals $ 2,000,000 Stradling Yocca $ 785,204 1,214,796 Urban Futures 331,364 883,432 c Restructuring costs paid to date $ 1,116,568 rn c d E t: R 6 Proposed Services: o Amendment Amounts m Urban Futures 200,000 LL Prostaff, LLC 100,000 N N Finance Budget: (225,000) Note 1 Human Resources Budget (75,000) Note 2 0 v _ Y R d L Note 1: Funding will come from the key finance positions not m yet filled, but needed as appoved in the Pendency Plan. u Note 2: Funding will come from recently vacated, key positions N in Human Resources. L 0 w Overall: These services are leveraging funds for full-time positions that are critical to City operations with consultants until they can be filled on a permanent basis. u°> rn c a c 3 LL N V G d E L U a d E r v m Q Pacti`ePg�i�=;