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HomeMy WebLinkAbout2013-186 RESOLUTION NO. 2013-186 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE 3 REDEVELOPMENT AGENCY OF SAN BERNARDINO, AUTHORIZING THE EXECUTION OF A CONSULTANT SERVICES AGREEMENT WITH ROGERS, 4 ANDERSON, MALODY & SCOTT, LLP FOR ECONOMIC DEVELOPMENT 5 AGENCY/SUCCESSOR AGENCY AUDIT SERVICES. 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 on behalf 9 of said Agency a Consultant Services Agreement between Rogers, Anderson, Malody & 10 Scott, LLP and Successor Agency of San Bernardino for Economic Development Agency/ 11 12 Successor Agency Audit Services. 13 SECTION 2. The Purchasing Manager is hereby authorized to issue a purchase order 14 for the Economic Development Agency/ Successor Agency Audit Services for a total amount 15 not to exceed $54,000.00. 16 SECTION 3. The authorization granted hereunder shall expire and be void and of no 17 18 further effect if the Consultant Services Agreement for Economic Development Agency/ 19 Successor Agency Audit Services is not completed within sixty (60) days following the 20 effective date of the Resolution. 21 /// 22 /// 23 /// 24 25 /// 26 /// 27 28 /// 2013-186 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO, ACTING AS THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF SAN BERNARDINO, AUTHORIZING THE 3 EXECUTION OF A CONSULTANT SERVICES AGREEMENT WITH ROGERS, ANDERSON, MALODY & SCOTT, LLP FOR ECONOMIC DEVELOPMENT 4 AGENCY/SUCCESSOR AGENCY AUDIT SERVICES. 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 joint regular meeting 7 thereof, held on thefflay of J ,e , 2013, by the following vote, to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ x 11 JENKINS x 12 VALDIVIA x 13 14 SHORETT x 15 KELLEY x 16 JOHNSON x 17 MCCAMMACK x 18 19 20 Georgea Hanna, City Clerk 21 The foregoing Resolution is hereby approved this L day of June , 2013. 22 23 'atrick J. Morris, May• 24 CI • San Bernardino 25 Approved as to form: 26 JAMES F. PENMAN, City Attorney 27 B 28 2013-186 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF SAN BERNARDINO AND ROGERS,ANDERSON,MALODY& SCOTT,LLP. This Consultant Service Agreement (this "Agreement") is made and entered into this 17th day of June 2013 ("Effective Date") by and between the City of San Bernardino, Acting as the Successor Agency to the Redevelopment Agency of San Bernardino (hereinafter referred to as the "Agency") and Rogers, Anderson, Malody & Scott, LLP. (hereinafter referred to as the "Consultant") (sometimes jointly referred to herein as the "Parties"). WITNESSETH: A. WHEREAS, The AGENCY is in need of a Consultant to provide financial audit services for fiscal year 2011- 2012. B. WHEREAS, it has been determined by the Finance Director 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 commence on the Effective Date and continue through the completion of services as set forth in Exhibit "A," unless the Agreement is previously terminated as provided for herein. 1.1 Termination. CITY or CONSULTANTS 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, CONSULTANTS shall be paid the reasonable value of services rendered to the date of termination. 1.2 Documents. In the event of termination of this Agreement, all documents prepared by CONSULTANTS in their performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to CONSULTANTS, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONSULTANTS shall be at CITY's sole risk and without liability or legal expense to CONSULTANTS. 1 2013-186 2. CONSULTANT RESPONSIBILITIES: Consultant is responsible for performing the 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. AGENCY RESPONSIBILITIES The Agency 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 Agency. The Agency will provide a contact person to assist in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS 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 Agency or as otherwise required by law. 5. COMPENSATION Except as provided herein, CONSULTANT shall be paid an amount not to exceed $54,000.00 as set forth in Exhibit "A." 5.1. Additional Services. CONSULTANTS shall not receive compensation for any services provided outside the scope of services specified in the Proposal unless the CITY, prior to CONSULTANTS 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. 5.2. Method of Billing. CONSULTANTS may submit invoices to CITY for approval. said invoice shall be based on the total of all CONSULTANTS' services which have been completed to CITY's sole satisfaction. CITY shall pay CONSULTANTS' 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 time 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. 5.3. Records and Audits. Records of CONSULTANTS' services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 2 2013-186 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 Agency. This Agreement is by and between the Consultant and the Agency, and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership,joint venture or association, between the Agency and the Consultant. The Agency 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 Agency. 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 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 Agency with proof of payment upon reasonable demand. The Consultant holds the Agency harmless from and against any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages or injuries suffered by the Agency(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 indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the Agency 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, 3 2013-186 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 Agency and the Consultant shall turn over to the Agency all copies of the Work Records within seven (7) calendar days after a written request by Agency. 10. BUSINESS LICENSE/TIN Consultant shall obtain a City San Bernardino business license and provide the Agency 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 Agency 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, Agency 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 Agency, 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 Agency acknowledges that the provisions of this Section are reasonable in light of the legitimate business needs of the Agency. 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 only assign or transfer any interest in this Agreement to Eadie and Payne, LLP as agreed to by Agency. 13. INDEMNIFICATION. The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino and the Successor Agency ("Agency"), 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 Agency Attorney and members of his office in enforcing this Agreement on behalf of the AGENCY 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 4 2013-186 provide the Agency 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 Agency agrees that Contractor's total liability to the Agency 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 limited. 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 Agency 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 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 5 2013-186 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: Rogers, Anderson, Malody & Scott, LLP 735 East Carnegie Drive, Suite 100 San Bernardino CA 92408 To the Agency: Successor Agency of the City of San Bernardino Finance Department 300 North D Street San Bernardino, CA 92418 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 Agency 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. 6 2013-186 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF SAN BERNARDINO AND ROGERS, ANDERSON,MALODY& SCOTT,LLP. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF SAN BERNARDINO,ACTING AS SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF SAN BERNARDINO Dated: By: Allen J. Parker, City Manager CONSULTANT Rogers, Anderson, Malody & Scott, LLP Dated: By: Approved as to Form: By: ` f ' • �L,a J-. . Penman, City Attorney 7 2013-186 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF SAN BERNARDINO AND ROGERS, ANDERSON,MALODY & SCOTT, LLP. This Consultant Service Agreement (this"Agreement") is made and entered into this 17th day of June 2013 ("Effective Date") by and between the City of San Bernardino, Acting as the Successor Agency to the Redevelopment Agency of San Bernardino (hereinafter referred to as the "Agency") and Rogers, Anderson, Malody & Scott, LLP. (hereinafter referred to as the "Consultant") (sometimes jointly referred to herein as the"Parties"). WITNESSETH: A. WHEREAS, The AGENCY is in need of a Consultant to provide financial audit services for fiscal year 2011- 2012. B. WHEREAS, it has been determined by the Finance Director 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 commence on the Effective Date and continue through the completion of services as set forth in Exhibit "A," unless the Agreement is previously terminated as provided for herein. 1.1 Termination. CITY or CONSULTANTS 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, CONSULTANTS shall be paid the reasonable value of services rendered to the date of termination. 1.2 Documents. In the event of termination of this Agreement, all documents prepared by CONSULTANTS in their performance of this Agreement shall be delivered to the CITY within ten(10) days of delivery of termination notice to CONSULTANTS, at no cost to CITY. Any use of uncompleted documents without specific written authorization from CONSULTANTS shall be at CITY's sole risk and without liability or legal expense to CONSULTANTS. 2013-186 2. CONSULTANT RESPONSIBILITIES: Consultant is responsible for performing the 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. AGENCY RESPONSIBILITIES The Agency 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 Agency. The Agency will provide a contact person to assist in the timely resolution of any issues that may arise. 4. CONFIDENTIALITY OF REPORTS 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 Agency or as otherwise required by law. 5. COMPENSATION Except as provided herein, CONSULTANT shall be paid an amount not to exceed $54,000.00 as set forth in Exhibit "A." 5.1. Additional Services. CONSULTANTS shall not receive compensation for any services provided outside the scope of services specified in the Proposal unless the CITY, prior to CONSULTANTS 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. 5.2. Method of Billing. CONSULTANTS may submit invoices to CITY for approval. said invoice shall be based on the total of all CONSULTANTS' services which have been completed to CITY's sole satisfaction. CITY shall pay CONSULTANTS' 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 time 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. 5.3. Records and Audits. Records of CONSULTANTS' services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date. 2 2013-186 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 Agency. This Agreement is by and between the Consultant and the Agency, and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership,joint venture or association, between the Agency and the Consultant. The Agency 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 Agency. 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 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 Agency with proof of payment upon reasonable demand. The Consultant holds the Agency harmless from and against any and all claims, demands, losses, costs, fees, liabilities,taxes, penalties, damages or injuries suffered by the Agency (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 indemnification shall apply to any and all claims, demands, losses, costs, fees, liabilities, taxes, penalties, damages and injuries suffered by the Agency 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, 3 2013-186 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 Agency and the Consultant shall turn over to the Agency all copies of the Work Records within seven (7) calendar days after a written request by Agency. 10. BUSINESS LICENSE/TIN Consultant shall obtain a City San Bernardino business license and provide the Agency 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 Agency 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, Agency 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 Agency, 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 Agency acknowledges that the provisions of this Section are reasonable in light of the legitimate business needs of the Agency. 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 only assign or transfer any interest in this Agreement to Eadie and Payne, LLP as agreed to by Agency. 13. INDEMNIFICATION. The Consultant agrees to indemnify, defend and hold harmless the City of San Bernardino and the Successor Agency ("Agency"), 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 Agency Attorney and members of his office in enforcing this Agreement on behalf of the AGENCY 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 4 2013-186 provide the Agency 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 Agency agrees that Contractor's total liability to the Agency 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 limited. 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 Agency 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 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 5 2013-186 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: Rogers, Anderson, Malody & Scott, LLP 735 East Carnegie Drive, Suite 100 San Bernardino CA 92408 To the Agency: Successor Agency of the City of San Bernardino Finance Department 300 North D Street San Bernardino, CA 92418 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 Agency 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. 6 2013-186 CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO,ACTING AS THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF SAN BERNARDINO AND ROGERS,ANDERSON, MALODY & SCOTT, LLP. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF SAN BERNARDINO,ACTING AS SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF SAN BERNARDINO ----7 i k,,./.._ Dated: 441 ` BY: 7 "All . Parker, City Manager CONSULTANT Rogers, Anderson, Malody & Scott, LLP Dated: l3 Die 3 BY � 2 1---- "CT-Ai GA Approved as to Form: By: o_sul 6i-e-.,Z. .z J< e . Penman, City Attorney 7