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HomeMy WebLinkAbout2015-263 RESOLUTION NO. 2015-263 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 3 BETWEEN THE CITY OF SAN BERNARDINO AND THE PUN GROUP, LLP, CERTIFIED PUBLIC ACCOUNTANTS FOR THE PROVISION OF FINANCIAL 4 AUDITING SERVICES. 5 6 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The City Manager is hereby authorized and directed to execute the 9 Financial Auditing Service Agreement with The Pun Group, LLP, Certified Public 10 Accountants, a copy of which is attached and incorporated herein as Exhibit "A". 11 SECTION 2. The Finance Department is hereby authorized to issue a Purchase 12 13 Order to The Pun Group, LLP, Certified Public Accountants for Financial Auditing Services 14 for an amount not to exceed $329,000 for the Fiscal Year 2013-14 financial audit and an 15 amount not to exceed $374,000 for the Fiscal Year 2014-15 financial audit. The Finance 16 Department is also authorized to amend the Fiscal Year 2015-16 operating budget to include 17 18 an appropriation for $374,000 for auditing services from the fund balance of the General 19 Fund. 20 SECTION 3. The authorization granted hereunder shall expire and be void and of no 21 further effect if the Service Agreement for Financial Auditing Services is not completed 22 23 within sixty (60) days following the effective date of the Resolution. 24 25 26 27 28 1 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PUN GROUP, LLP, 3 CERTIFIED PUBLIC ACCOUNTANTS FOR THE PROVISION OF FINANCIAL AUDITING SERVICES. 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 joint regular meeting thereof, held on 7 the 7th day of December, 2015, by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 10 MARQUEZ X 11 BARRIOS X 12 VALDIVIA X 13 SHORETT X 14 NICKEL X 15 16 JOHNSON X 17 MULVIHILL X 19 George , Hanna, C C, City Clerk 20 �/ da of Decemb 2015. The foregoing Resolution is hereby approved this 21 22 Z 23 R. Carey Davi Mayor City of San B rnardino 24 Approved as to form: 25 Gary D. Saenz, City Attorney 26 By: 27 28 2 2015-263 Exhibit A FINANCIAL AUDITING SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PUN GROUP,LLP THIS AGREEMENT for Auditing Services is made and entered into on this 7'' day of December,2015 by and between the City of San Bernardino, a charter city("CITY"), and The Pun Group, LLP, Certified Public Accountants ("AUDITORS"). WITNESSETH : A. WHEREAS, CITY proposes to have AUDITORS perform the services described herein below; and B. WHEREAS, AUDITORS represent that they have that degree of specialized expertise contemplated within California Government Code, Section 37103,and hold all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and AUDITORS desire to contract for financial auditing services 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 AUDITORS 1.1. Scope of Services. For the remuneration stipulated,AUDITORS shall provide the professional services described in the 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 AUDITORS 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. AUDITORS also warrant that they are familiar with all laws that may affect their performance of this Agreement and shall advise CITY of any changes in any laws that may affect AUDITORS' performance of this Agreement. AUDITORS further represents that no CITY employee will provide any services under this Agreement. i 2015-263 Exhibit A 1.3. Warranty. AUDITORS warrant that they 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. AUDITORS 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 AUDITORS 's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, AUDITORS 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, 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. AUDITORS acknowledge that CITY may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation 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. AUDITORS may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at AUDITORS's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, AUDITORS 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. AUDITORS 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 AUDITORS to practice their profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. AUDITORS shall be compensated for work performed and the City 2 2015-263 Exhibit A shall be billed once per month. The total not to exceed fee for audit services is $329,000 for the financial audit for Fiscal Year 2013-14 and the total not to exceed fee for audit services is $374,000 for the financial audit for Fiscal Year 2014-15. The total contract amount shall not exceed $703,000. 2.2. Additional Services. AUDITORS shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to AUDITORS 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. AUDITORS may submit invoices to CITY for approval. Said invoices shall be based on the total of all AUDITORS's services which have been completed to CITY's sole satisfaction. CITY shall pay AUDITORS 's invoices within forty-five (45) days from the date CITY receives said invoices. The invoices 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. 2.4. Records and Audits. Records of AUDITORS's services relating to this Agreement shall be maintained in accordance with generally accepted auditing standards 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. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue through the completion of the Fiscal Years 2013-14 and 2014-15 financial audits, which is estimated to be completed on or before June 30, 2016, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or AUDITORS 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, AUDITORS 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 AUDITORS in their performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to AUDITORS, at no cost to CITY. Any use of uncompleted documents without specific written authorization from AUDITORS shall be at CITY's sole risk and without liability or legal expense to AUDITORS. 3 2015-263 Exhibit A 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. AUDITORS shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed 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 San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: 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. AUDITORS shall provide to CITY certificates of insurance showing the insurance coverages and required 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 AUDITORS may be held responsible for payments of damages to persons or property. 4 2015-263 Exhibit A 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 writing,and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery,facsimile or mail and shall be addressed as set 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 of 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: Kenneth H. Pun, CPA, CGMA City Manager The Pun Group, LLP City of San Bernardino 200 E. Sandpointe Ave., Suite 600 300 North"D" Street Santa Ana, CA 92707 San Bernardino, CA 92418 Telephone (949) 777-8801 Telephone: (909) 384-5122 Facsimile: (949) 777-8850 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 entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise 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. Governing 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. Assignment. AUDITORS shall not voluntarily or by operation of law assign, 5 2015-263 Exhibit A transfer, sublet or encumber all or any part of AUDITORS's interest in this Agreement without CITY'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 AUDITORS of AUDITORS's obligation to perform all other obligations to be performed by AUDITORS hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. AUDITORS shall protect, defend, 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 AUDITORS's performance under this Agreement, except when caused solely by the CITY's negligence. 5.7. Independent Contractor. AUDITORS, at all times while performing under this Agreement, are and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. AUDITORS shall secure, at their 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 AUDITORS and their officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither AUDITORS 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, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of AUDITORS and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and AUDITORS. 5.8. Conflict of Interest Disclosure. AUDITORS or its employees may be subject to 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 effect on such interest. AUDITORS 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. Responsibility for Errors. AUDITORS shall be responsible for their work and results under this Agreement. AUDITORS, when requested, shall furnish 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 6 2015-263 Exhibit A attributable to AUDITORS occurs, then AUDITORS shall, at no cost to CITY, provide all other AUDITORS 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 Employment. AUDITORS shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. 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. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and AUDITORS 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 any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement 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. Counterparts. 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. 7 2015-263 Exhibit A 5.18. Corporate Authority.The to execute Agreement on behalf of behalf hereto warrant that they are duly authorized said parties and that by doing so,the parties hereto are formally bound to the provisions of this Agreement. s 2015-263 Exhibit A FINANCIAL AUDITING SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PUN GROUP,LLP 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, AUDITORS A Municipal Corporation Allen J. Parker, City Manager Kenneth H. Pun, CPA, CGMA, Managing Partner APPROVED AS TO FORM: Gary D. Saenz, City Attorney B : 9 2015-263 Exhibit A FINANCIAL AUDITING SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PUN GROUP,LLP THIS AGREEMENT for Auditing Services is made and entered into on this 7'" day of December,2015 by and between the City of San Bernardino, a charter city("CITY"),and The Pun Group,LLP, Certified Public Accountants ("AUDITORS"). WITNESSETH : A. WHEREAS, CITY proposes to have AUDITORS perform the services described herein below; and B. WHEREAS, AUDITORS represent that they have that degree of specialized expertise contemplated within California Government Code,Section 37103, and hold all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, CITY and AUDITORS desire to contract for financial auditing services 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 AUDITORS I.I. Scope of Services. For the remuneration stipulated,AUDITORS shall provide the professional services described in the 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 AUDITORS 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. AUDITORS also warrant that they are familiar with all laws that may affect their performance of this Agreement and shall advise CITY of any changes in any laws that may affect AUDITORS' performance of this Agreement. AUDITORS further represents that no CITY employee will provide any services under this Agreement. i 2015-263 Exhibit A 1.3. Warranty. AUDITORS warrant that they 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. AUDITORS 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 AUDITORS 's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement,AUDITORS 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, 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. AUDITORS acknowledge that CITY may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement. 1.6. Delegation 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. AUDITORS may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at AUDITORS 's sole cost and expense. 1.7 Conflicts of Interest. During the term of this Agreement, AUDITORS 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. AUDITORS 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 AUDITORS to practice their profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. AUDITORS shall be compensated for work performed and the City 2 2015-263 Exhibit A shall be billed once per month. The total not to exceed fee for audit services is $329,000 for the fee for audit services is financial audit for Fiscal Year 2013-14 3Fiscal Year 2014-15 t The total contrat amount shall not $374,000 for the financial audit fo exceed$703,000. 2.2. Additional Services. AUDITORS shall not receive compensation for any services provided outside the Scope of Services unless the CITY, prior to AUDITORS 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. AUDITORS may submit invoices to CITY for approval. Said invoices shall be based on the total of all AUDITORS's services which have been completed to CITY's sole satisfaction. CITY shall pay AUDITORS 's invoices within forty-five (45) days from the date CITY receives said invoices. The invoices 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. 2.4. Records and Audits. Records of AUDITORS's services relating to this Agreement shall be maintained in accordance with generally accepted auditing standards 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. 3.0. TERM AND NOTIFICATION. 3.1. Term. This Agreement shall commence on the Effective Date and continue through the completion of the Fiscal Years 2013-14 and 2014-15 financial audits, which is estimated to be completed on or before June 30, 2016, unless the Agreement is previously terminated as provided for herein. 3.2 Termination. CITY or AUDITORS 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, AUDITORS 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 AUDITORS in their performance of this Agreement shall be delivered to the CITY within ten (10) days of delivery of termination notice to AUDITORS, at no cost to CITY. Any use of uncompleted documents without specific written authorization from AUDITORS shall be at CITY's sole risk and without liability or legal expense to AUDITORS. 3 2015-263 Exhibit A 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. AUDITORS shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises-operations, products/completed 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 San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice: 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. AUDITORS shall provide to CITY certificates of insurance showing the insurance coverages and required 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 AUDITORS may be held responsible for payments of damages to persons or property. 4 2015-263 Exhibit A 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 writing,and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set 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 of 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: Kenneth H. Pun, CPA, CGMA City Manager The Pun Group, LLP City of San Bernardino 200 E. Sandpointe Ave., Suite 600 300 North"D" Street Santa Ana, CA 92707 San Bernardino, CA 92418 Telephone (949) 777-8801 Telephone: (909) 384-5122 Facsimile: (949) 777-8850 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 entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise 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. Governing 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. Assignment. AUDITORS shall not voluntarily or by operation of law assign, 5 2015-263 Exhibit A transfer, sublet or encumber all or any part of AUDITORS's interest in this Agreement without CITY'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 AUDITORS of AUDITORS's obligation to perform all other obligations to be performed by AUDITORS hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. AUDITORS shall protect, defend, 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 AUDITORS's performance under this Agreement, except when caused solely by the CITY's negligence. 5.7. Independent Contractor. AUDITORS, at all times while performing under this Agreement, are and shall be acting at all times as an independent contractor and not as an agent or employee of CITY. AUDITORS shall secure,at their 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 AUDITORS and their officers, agents,and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither AUDITORS 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, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of AUDITORS and its officers', agents' and employees' work for the CITY. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the CITY and AUDITORS. 5.8. Conflict of Interest Disclosure. AUDITORS or its employees may be subject to 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 effect on such interest. AUDITORS 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. Responsibility for Errors. AUDITORS shall be responsible for their work and results under this Agreement. AUDITORS, when requested, shall furnish 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 6 1015-263 Exhibit A attributable to AUDITORS occurs, then AUDITORS shall, at no cost to CITY, provide all other AUDITORS 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 Employment. AUDITORS shall not employ any current employee of CITY to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. 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. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of CITY and AUDITORS 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 any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event,nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement 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. Counterparts. 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. 7 2015-263 Exhibit A 5.18. Corporate 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. 8 LU15-Lbj Exhibit A FINANCIAL AUDITING SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PUN GROUP,LLP 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, AUDITORS A Municipal Corporation Allen J. arker, City Manager Kenneth H. Pun, CPA, CGMA, Managing Partner APPROVED AS TO FORM: Gary D. Saenz, City Attorney B : 9