HomeMy WebLinkAboutItem No. 10 - Agreement with R.T. Desai & Associates for Accounting
Consent Calendar
City of San Bernardino
Request for Council Action
Date: June 17, 2020
To: Honorable Mayor and City Council Members
From: Teri Ledoux, City Manager
By:Paul Espinoza, Finance Director
Subject: Agreement with R.T. Desai & Associates for Accounting
Consultant Services
Recommendation
Adopt Resolution No. 2020-125 of the Mayor and City Council of the City of San
Bernardino, California, approving the Professional Services Agreement between the
City of San Bernardino and consultant R.T. Desai & Associates for accounting services
in the amount of $150,000 and authorizing the City Manager, or designee, to execute
the agreement.
Background
R.T. Desai & Associates has assisted the City of San Bernardino for four years with its
accounting responsibilities due to a number of vacancies within the department.
Employee turnover within the Finance department has caused a backlog of tasks
required to be completed by a professional accountant. Recent staff departures of the
Senior Finance Specialist and the Accountant III in the Finance Department necessitate
the continuation of the agreement with R.T. Desai & Associates. In addition to the
professional accounting assistance that R.T. Desai & Associates will provide to Finance,
the consultant will also provide accounting and analytical services to both Public Works
and Community Development. Finance Department related tasks include preparation of
financial records for audits, financial statement preparation, bank reconciliation and
other general high level accounting duties.
On February 1, 2016 the Mayor and City Council authorized a Professional Services
Agreement between the City of San Bernardino and R.T. Desai & Associates in an
amount not to exceed $80,850 for accounting consulting services. That agreement
expired June 30, 2016. On June 20, 2016 the Mayor and City Council authorized a new
12-month Professional Services Agreement, effective July 1, 2016, between the City of
San Bernardino and R.T. Desai & Associates in an amount not to exceed $90,000 for
accounting consulting services. Also approved previously by the Mayor and City
Council were the following contract amendments: not to exceed $100,000 on May 15,
2017, not to exceed $150,000 on April 18, 2018 and a 15-month contract not to exceed
$175,000 on April 3, 2019. It is also important to note that the contractor has not raised
rates since the original contract approval in 2016. The agreement under consideration
provides an update of the terms and conditions of the original agreement and the prior 3
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amendments. It should be noted that this agreement will bring the compensation total
for the consultant to $665,000 since February 2016.
Discussion
Since 2014, the Finance Department has seen the turnover of twenty-two employees.
The Accounting Division has seen some of the highest turnover in recent years and has
prevented the City from making improvements in it processes and procedures. The City
recently hired a new Accounting Manager, and along with the Account III and R.T.
Desai & Associates, was able to successfully implement a methodology in reviewing the
FY2019 financial statements. This represents a significant step forward in the Cit
financial reporting. With the recent departures of the Senior Finance Specialist and
Account III, the department requires the professional level resources that can be
successfully filled by the consultant R.T. Desai & Associates though their nearly 5 year
relationship with the City.
During its time with the City, R.T. Desai & Associates was able to assist the City in
correcting the four areas where modified audit opinions were previously rendered:
Governmental Activities, Major Federal & State Grants Special Revenue Fund, Major
Low and Moderate Income Housing Special Revenue Fund, and Aggregate Remaining
Fund Information. The reasoning for the modified opinions was the fact that the City
had not adopted a methodology for reviewing the collectability of notes receivable,
primarily related to the former Redevelopment Agency (RDA) and Housing Division.
R.T. Desai & Associates has been performing the duties of an Independent Contractor
for the Finance Department under its existing contract since February 2016. During that
time it has been instrumental in providing the required accounting assistance that has
enabled the City to become current on all of its financial reporting obligations. That
additional assistance remains necessary at this time as key vacancies continue in the
high performing accounting professional is extremely important to the City during the
current economic climate.
The Finance Department has significant needs in the Accounting Division in order to
complete annual audits and ensure compliance with Generally Accepted Accounting
Principles (GAAP) and the Governmental Accounting Standards Board (GASB).
Additionally, there is substantial work to be completed to implement the process
other best practices that need to occur within the Finance Department. The Finance
Department requests a twelve (12) month agreement effective July 1, 2020 - June 30,
2021. The consultant agreement will provide an update between the city and consultant
on a large number of terms and conditions to reflect the updated liability requirements
2020-2025 Strategic Targets and Goals
Approval of the proposed agreement aligns with Key Target No. 1: Financial Stability by
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continuing to provide the City with qualified accounting services that will maintain
internal controls and ensure compliance with best practices throughout the Finance
Department.
Fiscal Impact
The total cost to the City for the amendment is a not to exceed amount of $150,000.
There are sufficient resources in the FY 2020/21 Proposed Budget to fund these
charges in account No: 001-120-0039*5502. Additionally, if vacancies remain, salary
savings will fund this contract until positions can be filled.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino,
California, adopt Resolution No. 2020-125, approving the Professional Services
Agreement between the City of San Bernardino and consultant R.T. Desai & Associates
for accounting services in the amount of $150,000; and authorizing the City Manager, or
designee, to execute the agreement.
Attachments
Attachment 1 Resolution 2020-- Agreement with RT Desai and
Associates
Attachment 2 June 20, 2016 Consulting Services Agreement
Ward: All
Synopsis of Previous Council Actions:
April 3, 2019 Mayor and City Council adopted Resolution No. 2019-53
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RESOLUTION NO. 2020-125
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING THE PROFESSIONAL SERVICES
AGREEMENT BETWEEN THE CITY OF SAN
BERNARDINO AND R.T. DESAI AND ASSOCIATES FOR
PROFESSIONAL ACCOUNTING SERVICES; AND
AUTHORIZING THE CITY MANAGER, OR DESIGNEE,
TO EXECUTE AGREEMENT
WHEREAS, on April 3, 2019, the Mayor and City Council authorized a Professional
Services Agreement Amendment No. 3 between the City of San Bernardino and R.T. Desai &
Associates in an amount not to exceed $515,000 for accounting consulting services; and
WHEREAS, the City of San Bernardino has determined that significant needs remain in
the Accounting section of the Finance Department and professional accounting consulting
services from R.T. Desai & Associates are required and in the best interest of the City.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. The City Manager is hereby authorized to execute the professional services
agreement with R.T. Desai & Associates to continue to provide assistance to the Finance
Department, as well as Public Works, and Community Development, in a not to exceed amount
of $150,000 for the period of July 1, 2020 through June 30, 2021.
SECTION 3. The Director of Finance or designee is hereby authorized to increase the
purchase order issued to R.T. Desai & Associates by $150,000.
SECTION 4. The City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 5. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 6. Effective Date. This Resolution shall become effective immediately.
Resolution No. 2020-125
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
by the Acting City Clerk this 17th day of June 2020.
John Valdivia, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, Acting City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
Resolution No. 2020-125
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, Acting City Clerk, hereby certify that the attached is a true
copy of Resolution No. 2020-___, adopted at a regular meeting held on the ___ day of _______
2020 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of
____________ 2020.
Genoveva Rocha, CMC, Acting City Clerk
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
ANDR.T.DESAI & ASSOCIATES
This Agreement is made and entered into as of June 17, 2020by and between the City of San
Bernardino, a charter city and municipal corporation organized and operating under the laws of
the State of California with its principal place of business at Vanir Tower, 290 North D Street,
San Bernardino, CA 92401(“City”), and R.T.DESAI & ASSOCIATES, ASOLE
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PROPRIETORSHIPwith its principal place of businessat1913 E 17Street, Unit 116,Santa
Ana, CA 92705(hereinafter referred to as “Consultant”). City and Consultant are hereinafter
sometimes referred to individually as “Party” and collectively as the “Parties.”
RECITALS
A.City is a public agency of the State of California and is in need of professional
services for the following project:
Asneeded professional accounting services(hereinafter referred to as “the Project”).
B.Consultant is duly licensed and has the necessary qualifications to provide such
services.
C.The Parties desire by this Agreement to establish the terms for City to retain
Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1.Incorporation of Recitals.The recitals above are true and correct and are hereby
incorporated herein by this reference.
2.Services.Consultant shall provide theCity with the services described in the
Scope of Services attached hereto as Exhibit “A.”
3.Professional Practices.All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel identified in their proposal.
Consultant warrants that Consultant 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.
4.Compensation.
a.Subject to paragraph 4(b) below, the City shall pay for such services in
accordance with the Schedule ofCharges set forth in Exhibit “A.”
b.In no event shall the total amount paid for services rendered by Consultant
under this Agreement exceed the sum of $150,000.This amount is to cover all related costs, and
the City will notpay any additional feesfor printing expenses. Consultant may submit invoices
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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 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.Additional Work.If changes in the work seem merited by Consultant or the City,
and informal consultations with the other party indicate that a change is warranted, it shall be
processed in the following manner: a letter outlining the changes shall be forwarded to the City
by Consultant with a statement of estimated changes in fee or time schedule. An amendment to
this Agreement shall be prepared by the City and executed by both Parties before performance of
such services, or the City will not be required to pay for the changes in the scope of work. Such
amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
6.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(“Term”).
7.Maintenance of Records; Audits.
a.Records of Consultant’s 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 four (4)
years from the Effective Date.
b.Books, documents, papers, accounting records, and other evidence
pertaining to costs incurred shall be maintained by Consultant and made available at all
reasonable times during the contract period and for four (4) years from the date of final payment
under the contract for inspection by City.
8.Time of Performance.Consultant shall perform its services in a prompt and
timely manner and shall commence performance upon receipt of written notice from the City to
proceed. Consultant shall complete the services required hereunder within Term.
9.Delays in Performance.
a.Neither City nor Consultant shall be considered in default of this
Agreement for delays in performance caused by circumstances beyond the reasonablecontrol of
the non-performing Party. For purposes of this Agreement, such circumstances include but are
not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and
other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint.
b.Should such circumstances occur, the non-performing Party shall, within a
reasonable time of being prevented from performing, give written notice to the other Party
describing the circumstances preventing continued performance and the efforts being made to
resume performance of this Agreement.
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10.Compliance with Law.
a.Consultant shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b.If required, Consultant shall assist the City, as requested, in obtaining and
maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c.If applicable, Consultant is responsible for all costs of clean up and/ or
removal of hazardous and toxic substances spilled as a result of his or her services or operations
performed under this Agreement.
11.Standard of Care.Consultant’s services will be performed in accordance with
generally accepted professional practices and principles and in a manner consistent with the level
of care and skill ordinarily exercised by members of the profession currently practicing under
similar conditions.
12.Conflicts of Interest.During the term of this Agreement, Consultant shall at all
times maintain a dutyof loyalty and a fiduciary duty 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.
13.City Business Certificate.Consultant shall, prior to execution of this Agreement,
obtain and maintain during the term of this Agreementa valid business registration certificate
from the Citypursuant to Title 5 of the City’s Municipal Code andany and all other licenses,
permits, qualifications, insurance, and approvals of whatever nature that are legally requiredof
Consultant to practice his/herprofession, skill, or business.
14.Assignment and Subconsultant.Consultant shall not assign, sublet, or transfer
this Agreement or any rights under or interest in this Agreement without the written consent of
the City, which may be withheld for any reason. Any attempt to so assign or so transfer without
such consent shall be void and without legaleffect and shall constitute grounds for termination.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in
this Agreement. Nothing contained herein shall prevent Consultant from employing independent
associatesand subconsultants as Consultant may deem appropriate to assist in the performance
of services hereunder.
15.Independent Consultant.Consultant is retained as an independent contractor and
is not an employee of City. No employee or agent of Consultant shall become an employee of
City. The work to be performed shall be in accordance with the work described in this
Agreement, subject to such directions and amendments from City as herein provided.
16.Insurance. Consultant shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this section. In
addition, Consultant shall not allow any subcontractor to commence work on any subcontract
until it has secured all insurance required under this section.
a.Additional Insured
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The City of San Bernardino, its officials, officers, employees, agents, and
volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies
of commercial general liability and automobile liability insurance using the endorsements and
forms specified herein or exact equivalents.
b.Commercial General Liability
(i)The Consultant shall take out and maintain, during the
performance of all work under this Agreement, in amounts notless than specified herein,
Commercial General Liability Insurance, in a form and with insurance companies acceptable to
the City.
(ii)Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 00 01) or exact equivalent.
(iii)Commercial General Liability Insurance must include coverage
for the following:
(1)Bodily Injury and Property Damage
(2)Personal Injury/Advertising Injury
(3)Premises/Operations Liability
(4)Products/Completed Operations Liability
(5)Aggregate Limits that Apply per Project
(6)Explosion, Collapse and Underground (UCX) exclusion
deleted
(7)Contractual Liability with respect to this Contract
(8)Broad Form Property Damage
(9)Independent Consultants Coverage
(iv)The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one
insured against another; (3) products/completed operations liability; or (4) contain any other
exclusion contrary to the Agreement.
(v)Thepolicy shall give City, its elected and appointed officials,
officers, employees, agents, and City-designated volunteers additional insured status using ISO
endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same
coverage.
(vi)The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
c.Automobile Liability
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(i)At all times during the performance of the work under this
Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non-owned and hired vehicles, in a form and
with insurance companies acceptable to the City.
(ii)Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials,
officers, employees, agents and City designated volunteers additional insured status.
(iv)Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
additional insured, but not a self-insured retention.
d.Workers’ Compensation/Employer’s Liability
(i)Consultant certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured against
liability for workers’ compensation or to undertake self-insurance in accordance with the
provisions of that code, and he/she will comply with such provisions before commencing work
under this Agreement.
(ii)To the extent Consultant has employees at any time during the
term of this Agreement, at all times during the performance of the work under this Agreement,
the Consultant shall maintain full compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement, all in accordance with the
“Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of
California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts
indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the
period required by this Agreement, workers’ compensation coverage of the same type and limits
as specified in this section.
e.Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant
shall maintain professional liability or Errors and Omissions insurance appropriate to its
profession, in a form and with insurance companies acceptable to the City and in an amount
indicated herein. This insurance shall be endorsed to include contractual liability applicable to
thisAgreement and shall be written on a policy form coverage specifically designed to protect
against acts, errors or omissions of the Consultant. “Covered Professional Services” as
designated in the policy must specifically include work performed under thisAgreement. The
policy must “pay on behalf of” the insured and must include a provision establishing the insurer's
duty to defend.
f.Minimum Policy Limits Required
(i)The following insurance limits are required for the Agreement:
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Combined Single Limit
Commercial General Liability$1,000,000 per occurrence/ $2,000,000 aggregate
for bodily injury, personal injury, and property
damage
Automobile Liability$1,000,000 per occurrence for bodily injury and
property damage
Employer’s Liability$1,000,000 per occurrence
Professional Liability$1,000,000 per claim and aggregate (errors and
omissions)
(ii)Defense costs shall be payable in addition to the limits.
(iii)Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
g.Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City
evidence of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s
equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-
S or equivalent), together with required endorsements. All evidence of insurance shall be
signed by a properly authorized officer, agent, or qualified representative of the insurer and
shall certify the names of the insured, any additional insureds, where appropriate, the type and
amount of the insurance, the location and operations to which the insurance applies, and the
expiration date of such insurance.
h.Policy Provisions Required
(i)Consultant shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this Agreement, except that the
Consultant shall provide at least ten (10) days prior written notice of cancellation of any such
policy due to non-payment of the premium. If any of the required coverage is cancelled or
expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s)
including the General Liability Additional Insured Endorsement to the Cityat least ten (10)
days prior to the effective date of cancellation or expiration.
(ii)The Commercial General Liability Policy and Automobile Policy
shall each contain a provision stating that Consultant’s policy is primary insurance and that any
insurance, self-insurance or other coverage maintained by the City or any named insureds shall
not be called upon to contribute to any loss.
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(iii)The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement. Consultantshall maintain such coverage continuously for a
period of at least three years after the completion of the work under this Agreement. Consultant
shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced
past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if
the policy is replaced by another claims-made policy with a retroactive date subsequent to the
effective date of this Agreement.
(iv)All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the
City, its officials, officers, employees, agents, and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each
of its subconsultants.
(v)The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability
in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the
City and shall not preclude the City from taking such other actions available to the City under
other provisions of the Agreement or law.
i.Qualifying Insurers
(i)All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum requirements:
(1)Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A:VII and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code
or any federal law.
j.Additional Insurance Provisions
(i)The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Consultant, and any approval of said insurance by the City, is not
intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise
assumed by the Consultant pursuant to this Agreement, including,but not limited to, the
provisions concerning indemnification.
(ii)If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursedby Consultant or City
will withhold amounts sufficient to pay premium from Consultant payments. In the alternative,
City may cancel this Agreement.
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(iii)The City may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(iv)Neither the City nor the City Council, nor any member of the City
Council, nor any of the officials, officers, employees, agents or volunteers shall be personally
responsible for any liability arising under or by virtue of this Agreement.
k.Subconsultant Insurance Requirements. Consultant shall not allow any
subcontractors or subconsultants to commence work on any subcontract until they have
provided evidence satisfactory to the City that they have secured all insurance required under
this section. Policies of commercial general liability insurance provided by such subcontractors
or subconsultants shall be endorsed to name the City as an additional insured using ISO form
CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by
Consultant, City may approve different scopes or minimum limits of insurance for particular
subcontractors or subconsultants.
17.Indemnification.
a.To the fullest extent permitted by law, Consultant shall defend (with
counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed
officials, officers,employees,agents,and authorized volunteers free and harmless from any and
all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability,
judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to
property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out
of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of
Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection
with the performance of the Consultant’s services, the Project,or this Agreement, including
without limitation the payment of all consequential damages, expert witness fees and attorneys’
fees and other related costs and expenses. Notwithstanding the foregoing, to the extent
Consultant’s services are subject to Civil Code Section 2782.8, the above indemnity shall be
limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, the City Council, members of the City Council, its employees, or
authorized volunteers.
b.Additional Indemnity Obligations.Consultant shall defend, with counsel
of City’s choosing and at Consultant’s own cost, expense and risk, any and all Claims covered by
this section that may be brought or instituted against the City, its elected and appointed officials,
employees, agents, or authorized volunteers.Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against the City, its elected and appointed officials,
employees, agents, or authorized volunteersas part of any such claim, suit, action or other
proceeding. Consultant shall also reimburse City for the cost of any settlement paid by the City,
its elected and appointed officials, employees, agents, or authorized volunteersas part of any
such claim, suit, action or other proceeding. Such reimbursement shall include payment for the
City’s attorney's fees and costs,including expert witness fees. Consultant shall reimburse the
City, its elected and appointed officials, employees, agents, or authorized volunteers, for any and
all legal expenses and costs incurred by each of them in connection therewith or in enforcingthe
indemnity herein provided. Consultant’s obligation to indemnify shall not be restricted to
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insurance proceeds, if any, received by the City, its elected and appointed officials, employees,
agents, or authorized volunteers.
18.California Labor Code Requirements.Consultant is aware of the requirements of
California Labor Code Sections 1720 et seq. and 1770 et seq.,as well as California Code of
Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on certain “public
works” and “maintenance” projects. If the Services are being performed as part of an applicable
“public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant
agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend,
indemnify and hold the City, its elected officials, officers, employees and agents free and
harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or
alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the
Consultant and all subconsultants to comply with all California Labor Code provisions, which
include but are not limited to prevailing wages, employment of apprentices, hours of labor and
debarment of contractors and subcontractors.
If the Services are being performed as part of an applicable “public works” or
“maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant
and all subconsultants performing such Services must be registered with the Department of
Industrial Relations. Consultant shall maintain registration for the duration of the Project and
require the same of any subconsultants, asapplicable. This Project may also be subject to
compliance monitoring and enforcement by the Department of Industrial Relations. It shall be
Consultant’s sole responsibility to comply with all applicable registration and labor compliance
requirements.
19.Verification of Employment Eligibility.By executing this Agreement, Consultant
verifies that it fully complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limitedto, the
Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall
require all subconsultants and sub-subconsultants to comply with the same.
20.Laws and Venue.This Agreement shall be interpreted in accordance with the
laws of the State of California. If any action is brought to interpret or enforce any term of this
Agreement, the action shall be brought in a state or federal court situated in the County of San
Bernardino, State of California.
21.Termination or Abandonment
a.City has the right to terminate or abandon any portion or all of the work
under this Agreement by giving ten (10) calendar days’written notice to Consultant. In such
event, City shall be immediately given title and possession to all original field notes, drawings
and specifications, written reports and other documents produced or developed for that portion of
the work completed and/or being abandoned. City shall pay Consultant the reasonable value of
services rendered for any portion of the work completed prior to termination. If said termination
occurs prior to completion of any task for the Project for which a payment request has not been
received, the charge for services performed during such task shall be the reasonable value of
such services, based on an amount mutually agreed to by City and Consultant of the portion of
such task completed but not paid prior to said termination. City shall not be liable for any costs
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other than the charges or portions thereof which are specified herein. Consultant shall not be
entitled to payment for unperformed services, and shall not be entitled to damages or
compensation for termination of work.
b.Consultant may terminate its obligation to provide further services under
this Agreement upon thirty (30) calendar days’ written notice to City only in the event of
substantial failure by City to perform in accordance with the terms of this Agreement through no
fault of Consultant.
22.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’s Officein
enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the
purposes of this Agreement.
23.Responsibility for Errors.Consultant shall be responsible for its work and results
under this Agreement. Consultant, 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 attributable to
Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other
services necessary to rectify and correct the matter to the sole satisfaction of the City and to
participate in any meeting required with regard to the correction.
24.Prohibited Employment.Consultant shall not employ any current employee of
City to perform the work under this Agreement while this Agreement is in effect.
25.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.
26.Documents. Except as otherwise provided in “Termination or Abandonment,”
above, all original field notes, written reports, Drawings and Specifications and other documents,
produced or developed for the Project shall, upon payment in full for the services described in
this Agreement, be furnished to and become the property of the City.
27.Organization.Consultant shall assign Ronak Desaias Project Manager. The
Project Manager shall not be removed from the Project or reassigned without the prior written
consent of the City.
28.Limitation of Agreement.This Agreement is limited to and includes only the
work included in the Project described above.
29.Notice.Any notice or instrument required to be given or delivered by this
Agreement may be given or delivered by depositing the same in any United States Post Office,
certified mail, return receipt requested, postage prepaid, addressed tothe following addresses and
shall be effective upon receipt thereof:
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CITY:CONSULTANT:
City of San BernardinoR.T.Desai and Associates
th
Vanir Tower, 290 North D Street1913 E 17Street, Unit 116
San Bernardino, CA 92401 Santa Ana, CA 92705
Attn: Paul Espinoza, Finance DirectorAttn: Ronak Desai
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
30.Third Party Rights.Nothing in this Agreement shall be construed to give any
rights or benefits to anyone other than the City and the Consultant.
31.Equal Opportunity Employment.Consultant represents that it is an equal
opportunity employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age or other interests
protected by the State or Federal Constitutions. Such non-discrimination shall include, but not
be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination.
32.Entire Agreement.This Agreement, including Exhibit “A,”represents the entire
understanding of City and Consultant as to those matters contained herein, and supersedes and
cancels any prior or contemporaneous oral or written understanding, promises or representations
with respect to those matters covered hereunder. Each Party acknowledges that no
representations, inducements, promises,or agreements have been made by any person which are
not incorporated herein, and that any other agreements shall be void. This is an integrated
Agreement.
33.Severability.If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination
shall not affect the validity or enforceability of the remaining terms and provisions hereof orof
the offending provision in any other circumstance, and the remaining provisions of this
Agreement shall remain in full force and effect.
34.Successors and Assigns.This Agreement shall be binding upon and shall inure to
the benefit of the successorsin interest, executors, administrators and assigns of each Party to
this Agreement. However, Consultant shall not assign or transfer by operation of law or
otherwise any or all of its rights, burdens, duties or obligations without the prior written consent
of City. Any attempted assignment without such consent shall be invalid and void.
35.Non-Waiver.The delay or failure of either Party at any time to require
performance or compliance by the other Party of any of its obligations or agreements shall inno
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 ofa waiver is sought. The
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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.
36.Time of Essence.Time is of the essence for each and every provision of this
Agreement.
37.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.
38.Amendments.Only a writing executed by all of the Parties hereto or their
respective successors and assigns may amendthis Agreement.
39.City’s Right to Employ Other Consultants.City reserves its right to employ other
consultants, including engineers, in connection with this Project or other projects.
40.Prohibited Interests.Consultant maintains and warrants that it has neither
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no official, officer or employee of City, during the term of his or
her service with City, shall have any direct interest in this Agreement, or obtainany present or
anticipated material benefit arising therefrom.
41.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 single Agreement.
42.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.
\[SIGNATURES ON FOLLOWING PAGE\]
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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
ANDR.T.DESAI & ASSOCIATES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN BERNARDINOCONSULTANT
Approved By:
Signature
Teri Ledoux
City Manager
Name
Approved as to Form:
Title
Sonia Carvalho
City Attorney
Attested By:
Genevieve Rocha,CMC, Acting City Clerk
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EXHIBIT A
SCHEDULE OF CHARGES:
Consultant shall be compensated at a rate of $120 per hour, with a not to exceed amountof
$150,000under this 12 monthterm agreement.
SCOPE OF WORK:
Thetasks assigned include preparation of financial records for audits, financial statement
preparation and general high level accounting dutiesas needed.
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