AGREEMENT
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AGR.5089.B
THIS AGREEMENT, dated for purposes of identification only this 23RD day ofJrE 2020, is made and entered into by and between the CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "ANAHEIM,"
A
N
D
KPMG LLP, a Delaware registered Limited Liability Partnership, hereinafter referred to as "ACCOUNTANTS".
WITNESSETН
WHEREAS, ANAHEIM is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City of Anaheim; and
WHEREAS, ANAHEIM desires to retain ACCOUNTANTS to provide financial and compliance auditing services; and
WHEREAS, the work required to perform said financial and compliance auditing services is of a type and complexity requiring the services of a professional auditing firm; and WHEREAS, ACCOUNTANTS represent that they are qualified and certified to perform the auditing services as described in this Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
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1. SERVICES TO BE PERFORMED BY ACCOUNTANTS
1.1 ANAHEIM does hereby retain ACCOUNTANTS to do and perform services necessary to perform a Financial Audit of financial statements, including a compliance audit of ANAHEIM that covers including all ANAHEIM funds and departments, including governmental, proprietary, and fiduciary funds, for the three fiscal years ending June 30, 2020, June 30, 2021 and June 30, 2022, as more fully set forth in the "KPMG Proposal RFP 106FIN01132020" attached hereto as Exhibit A.
Governmental funds of the City include: the General Fund; Other General Purpose Funds; Special Revenue Funds; Debt Service Funds; and Capital Project Funds.
Proprietary funds of the City include: Water Utility; Electric Utility; Sanitation Utility; Golf Courses; Convention, Sports and Entertainment Venues, ARTIC Management Enterprise Funds, and four Internal Service Funds include: Gencral Benefits and Insurance; Motorized Equipment; Information and Communication Services; and Municipal Facilities Maintenance Funds.
Fiduciary funds of the City include: Successor Agency; Mello-Roos Agency; and other Custodian Funds Joint Power Authorities (JPA) of the City include: Metro Cities Fire Authority; North Net Training Center; and the Orange County Cities Hazardous Materials Emergency Response Authority.
ACCOUNTANTS hereby accept said assignment and agree to perform said work and services in accordance with the terms and conditions of this Agreement. Said services to be performed include, but are not limited to, the following tasks:
.01 Audit ANAHEIM'S financial statements for each fiscal year ending June 30, 2020, June 30, 2021 and June 30, 2022, in accordance the provisions of the Single Audit Act Amendments of 1996 in accordance with audit standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Controller General for the United States,.; 2 .02 Prepare a report on ACCOUNTANTS' audit of ANAHEIM's financial statement for each fiscal year ending June 30, 2020, June 30, 2021 and June 30, 2022which expresses an opinion as to the fairness of their presentation in conformity with generally accepted accounting principles, applicable to the various fund types of ANAHEIM, or state the reasons for any exceptions to said principles; .03 Issue appropriate reports, in accordance with government auditing standards, the Single Audit Act Amendments of 1996 and the Uniform Guidance, as well as issue reports for inclusion in the separate annual reports for Comprehensive Annual Financial Report (CAFR), Single Audit, Electric Utility Fund, Water Utility Fund, Metro Cities Fire Authority, North Net Joint Power Training, the Orange County Cities Hazardous Materials Emergency Response Authority, review of the Gann Appropriation Limit agreed-upon procedures, review of the (REAC) agreed-upon procedures, and a review of Federal Asset Forfeiture Program compliance.
.04 Meet twice with ANAHEIM's Audit Committee each fiscal year to develop a work plan for the normal audit procedures to be performed by ACCOUNTANTS as well as monitor the financial progress of ANAHEIM through the year; .05 Prepare a list of schedules to be prepared by ANAHEIM personnel and a list of underlying supporting documents to be made available by ANAHEIM, for each entity being audited;
.06 Review interim ANAHEIM financial statements and major related accounting issues to identify matters requiring timely attention or those which could jeopardize ACCOUNTANTS' ability to issue an unqualified audit opinion at each fiscal year end; .07 Submit, by the first day of December of each year or the date identified in the Audit and Annual Report Process Schedule published by the City's Finance Department, fifteen (15) copies of ACCOUNTANTS' management letter setting forth findings and/or recommendations on those matters noted and observed during the conduct of the audit of the financial statements and developed within the scope usually associated with such an audit relating to, but not limited to, the following: (i) improvement in systems of internal control and 3 any other material matters coming to the attention of the firm during the conduct of the audit; (ii) improvement in accounting system and procedures; and (iii) apparent non-compliance with laws, rules and regulations;
1.2 The Financial Audit to be performed by ACCOUNTANTS shall cover ANAHEIM'S financial statements as of June 30, 2020, June 30, 2021 and June 30, 2022, which will be prepared by ANAHEIM'S Finance Department in accordance with generally accepted accounting principles; provided however, that ANAHEIM may at its sole option terminate this Agreement for any reason after ACCOUNTANTS' completion of either the June 30, 2020 audit or the June 30, 2021 audit, by giving ACCOUNTANTS written notice prior to December 31, 2020 or December 31, 2021, respectively.
1.3 ANAHEIM personnel shall provide timely cooperation and provide assistance to ACCOUNTANTS including, without limitation, providing ACCOUNTANTS with adequate working space, access to City books, records, files, and personnel and the preparation of necessary schedules and the production of underlying supporting documents for ACCOUNTANTS' inspection and auditing. The time period(s) specified for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of ACCOUNTANTS, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, pestilence, and other natural catastrophes, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, civil disturbance or disobedience, sabotage, restraint by court order or public authority and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including ANAHEIM, which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by exercise of due diligence has been unable to overcome, if ACCOUNTANT shall within ten (10) days of the commencement of such delay notify the ANAHEIM in writing of the causes of the delay.
1.4 ACCOUNTANTS shall keep their work papers and other data collected during the conduct of the audits on file in legible form for a period not less than five (5) years 4 while ACCOUNTANTS serve as ANAHEIM auditors and not less than two (2) years thereafter.
In any event, the required retention period for any audit year shall not exceed six years.
ACCOUNTANTS shall make their work papers available to regulators and government entities with a cognizant oversight role, if requested, subject to ACCOUNTANTS' firm policy and applicable professional standards relating to audit work papers, the terms of which policy shall be described in writing to ANAHEIM if ANAHEIM so requests. ACCOUNTANTS if reasonably requested, shall provide ANAHEIM with adequate support, copies of selected work papers for any proposed journal entries and relevant information, provided such disclosure does not undermine the effectiveness and integrity of the audit process.
1.5 All services to be performed by ACCOUNTANTS shall be directed by professional accountants certified by the California State Board of Accountancy, and all personnel engaged in the work shall be qualified for their respective roles. Unless a change is approved by the Finance Director/City Treasurer, the Engagement Managing Director on this engagement shall be Brianne Wiese and the Manager shall be David Huynh.
1.6 The financial audit requirements shall cover all funds of ANAHEIM. А compliance audit will be required under the provisions of the Single Audit Act Amendments of 1996 as outlined in the Uniform Guidance. That financial audit also shall be in accordance with all applicable generally accepted auditing standards.
1.7 If requested and subject to the satisfactory completion of applicable procedures, provide "consent" in connection with any security offerings in which ANAHEIM may be engaging, enabling ANAHEIM to reprint the most recent audit opinion and related financial statements in the official statement;
1.8 If requested, conduct a performance/ administrative review of a specific operational area to be determined by ANAHEIM;
1.9 Provide an annual governmental accounting training seminar as webcasts for ANAHEIM employees, which training seminar webcasts shall be primarily geared for accountant, senior accountant and fiscal officer level employees and shall include all education materials;
5 1.10 Provide training to key ANAHEIM staff to aid in auditing;
1.11 Provide access for key ANAHEIM staff, on a space-available basis, to any ACCOUNTANTS-sponsored education courses, at a fee to be negotiated depending upon the course requested;
1.12 Provide training in auditing techniques;
for ANAHEIM;
1.13 Provide access to ACCOUNTANTS' various research results performed
1.14 When possible, provide ongoing continuity throughout this engagement term to ensure effective and efficient audits, particularly at partner, manager and senior levels;
1.15 Provide full report production responsibility for the Single Audit, Electric Utility, Water Utility, Expenditures of Federal Awards financial reports, GANN Appropriations Limit Agreed-Upon Procedures, and Agreed-upon procedures for Real Estate Assessment Center need;
1.16 Provide full report production responsibility for the Metro Cities Fire Authority, North Net Joint Training, and the Orange County Cities Hazardous Materials Emergency Response Authority;
1.17 Provide partner and manager time commitments in accordance with the hours reflected in Exhibit A hereto. ACCOUNTANTS shall identify those employees who will provide services to ANAHEIM, and they shall adjust their current client load to provide all necessary attention to performance of the services provided in this Agreement. Any change in audit partner or manager shall require the approval of ANAHEIM'S Finance Director/City Treasurer;
1.18 Provide staffing with sufficient municipal accounting expertise and technical knowledge to minimize the burden on ANAHEIM staff;
1.19 Provide assistance as necessary with GFOA, GASB and CSMFO in the preparation of the financial statements.
6 2. TERM
2.1 This Agreement shall encompass auditing services performed for the three (3) fiscal years ending June 30, 2020, June 30, 2021 and June 30, 2022. ANAHEIM may, in its sole discretion, extend this Agreement for up to three additional one year terms as provided in Section 3.4 below.
2.2 The several phases of the work undertaken pursuant to this Agreement shall commence, respectively, on the Effective Date of this Agreement and on January 1, 2021 and January 1, 2022, respectively.
3. COMPENSATION
3.1 ANAHEIM shall pay ACCOUNTANTS for services rendered pursuant to this Agreement at ACCOUNTANTS' rates set forth in Exhibit A. ACCOUNTANTS and ANAHEIM agree that no changes to the rates set forth in Exhibit A shall be made during the term of this Agreement.
3.2 The Parties agree that the contract amount includes all out-of-pocket expenses of ACCOUNTANTS and that ACCOUNTANTS shall not be reimbursed for any expenses.
3.3 It is understood by and agreed between the Parties to this Agreement that full and complete payment to ACCOUNTANTS for services rendered and expenses incurred in performing the annual audits required by this Agreement shall not exceed the following amounts set forth in the "Fee Structure" attached as Exhibit A hereto: Six Hundred Seventy Four Thousand Dollars ($674,000.00) for the fiscal year ending June 30, 2020; Six Hundred Ninety Eight Thousand Dollars ($698,000.00) for the fiscal year ending June 30, 2021; and Seven Hundred Twenty One Thousand Four Hundred Dollars ($721,400.00) for the fiscal year ending June 30, 2022.
3.4 The term of this Agreement may be extended by ANAHEIM, acting through the Finance Director/City Treasurer, in its sole discretion for up to three (3) additional terms of one (1) year each. ANAHEIM shall give notice of its intent to extend this Agreement 7 for such additional one-year term to ACCOUNTANTS in writing no less than one hundred twenty (120) days prior to end of the applicable fiscal year. In the event of such extension, ACCOUNTANTS' annual audit fees for any extension period shall not exceed the following amounts set forth in Exhibit A hereto: Seven Hundred Forty Five Thousand Four Hundred Dollars ($745,400.00) for the fiscal year ending June 30, 2023; Seven Hundred Seventy One Thousand One Hundred Dollars ($771,100.00) for the fiscal year ending June 30, 2024; and Seven Hundred Ninety Seven Thousand Seven Hundred Dollars ($797,700.00) for the fiscal year ending June 30, 2025.
3.5 Any special projects performed pursuant to Section 1.8 above shall be billed at the rates set forth in Exhibit A. The parties will negotiate mutually acceptable terms for any non-audit services.
3.6 Payment for audit services rendered hereunder shall be made based on invoices submitted by ACCOUNTANTS during the field work period for each annual audit.
Payment for other services rendered hereunder shall be made based on invoice submitted by ACCOUNTANTS for actual time expended, or other arrangements agreed to by ANAHEIM's Finance Director/City Treasurer. It is understood and agreed that said invoices shall not be submitted to ANAHEIM more than once a month. ANAHEIM shall pay ACCOUNTANTS within thirty (30) days after approval of an invoice by ANAHEIM staff. to3.7 In agreeing to the maximum limitations on fees to be paid ACCOUNTANTS as set forth in in Sections 3.3 and 3.4 of this Agreement, the Parties contemplate that conditions shall be satisfactory to the normal progress and completion of the services to be rendered by ACCOUNTANTS. However, if unusual circumstances are encountered which make it necessary for ACCOUNTANTS to do additional work ACCOUNTANTS shall report such conditions immediately to the Finance Director/City Treasurer of ANAHEIM and the Parties may negotiate such additional compensation as is warranted.
8 4. ADMINISTRATION
This Agreement will be administered by the ANAHEIM Finance Department.
The Finance Director/City Treasurer is authorized to take any and all actions on behalf of ANAHEIM as set forth herein, including extending or terminating this Agreement and/or negotiating fees or additional compensation pursuant to Sections 3.5 and 3.7 above.
5. STANDARD OF CARE
5.1 ACCOUNTANTS shall perform all Services under this Agreement in accordance with applicable professional standards. ACCOUNTANTS represent and maintain that they are skilled in the professional calling necessary to perform the Services.
ACCOUNTANTS warrant that all employees and subconsultants, if any, shall have sufficient skill and experience to perform the Services assigned to them. By delivery of completed work, ACCOUNTANTS certify that the work conforms to the requirements of this Agreement; all applicable federal, state and local laws that apply to this engagement; and the professional standard of care.
5.2 ACCOUNTANTS represent and warrant to ANAHEIM that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of ACCOUNTANTS to practice its profession. ACCOUNTANTS shall maintain a City of Anaheim business license during the term of this Agreement.
6. INDEPENDENT CONTRACTOR
6.1 Neither ANAHEIM nor any of its employees shall have any control over the manner, mode or means by which ACCOUNTANTS, its agents or employees, perform the services required herein, except as otherwise set forth herein. Except as expressly provided herein, ANAHEIM shall have no voice in the selection, discharge, supervision or control of ACCOUNTANTS' employees, servants, representatives, contractors, or agents, or in fixing their number, compensation or hours of service. ACCOUNTANTS shall perform all services required herein as an independent contractor of ANAHEIM and shall remain at all times, as to 9 ANAHEIM, a wholly independent contractor with only such obligations as are consistent with that role. ACCOUNTANTS shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of ANAHEIM. ANAHEIM shall not in any way or any purpose become or be deemed to be a partner of ACCOUNTANTS in its business or otherwise or a joint venture or a member of any joint enterprise with ACCOUNTANTS. for
6.2 In consideration for the compensation paid to ACCOUNTANTS by ANAHEIM, ACCOUNTANTS agree that ANAHEIM shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, health oror any other benefits, and ACCOUNTANTS agree that it shall not sue or file a claim, petition or application therefor against ANAHEIM or any of its officers, employees, agents, representatives or sureties.
7. INSURANCE
7.1 Without limiting ANAHEIM's right to indemnification, it is agreed that ACCOUNTANTS shall secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage as follows:
.01 Workers' Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence. .02 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Contractors' Liability (if applicable), in an amount of not less than One Million Dollars ($1,000,000.00) per occurrence, combined single limit, written on an occurrence form; and
.03 Professional Liability Insurance in an amount not less than $1,000,000 per claim, and CONSULTANT shall maintain such coverage for at least one (1) year from the termination of this Agreement.
10 7.2 ANAHEIM's Risk Manager is hereby authorized to adjust the requirements set forth above in the event that such reduction is in ANAHEIM's best interest.
7.3 Each insurance policy required by this Agreement shall not be cancelled, until after thirty (30) days' prior written notice has been given by ACCOUNTANT to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805.
7.4 Each insurance policy required by this Agreement, excepting policies for automobile, workers' compensation and professional liability, shall contain the following clause (or clause of similar effect):
"The City of Anaheim, its officers, agents, employees, representatives and volunteers are added as additional insureds as respects operations or activities of, or on behalf of the named insured, performed under contract with the City of Anaheim."
7.5 Prior to commencing any work under this Agreement, ACCOUNTANTS shall deliver to ANAHEIM insurance certificates confirming the existence of the insurance required by this Agreement, and including the applicable clauses referenced above.
In addition to any other remedies ANAHEIM may have if
ACCOUNTANTS fail to maintain any insurance policies or policy endorsements to the extent and within the time herein required, ANAHEIM may, at its sole option:
.01 Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; .02 Instruct ACCOUNTANTS to stop work under this Agreement and/or withhold any payment(s) which become due to ACCOUNTANTS hereunder until ACCOUNTANTS demonstrate compliance with the requirements hereof; .03 Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies ANAHEIM may have and is not the exclusive remedy for ACCOUNTANTS' failure to maintain insurance or secure appropriate endorsements.
11 7.6 Nothing herein contained shall be construed as limiting in any way the extent to which ACCOUNTANTS may be held responsible for payments of damages to persons or property resulting from ACCOUNTANTS' (or ACCOUNTANTS' contractors/subcontractor's, if any) performance of the work covered under this Agreement.
8. INDEMNIFICATION
8.1 As respects acts, errors or omissions in the performance of professional services, ACCOUNTANTS agree to indemnify and hold harmless ANAHEIM, its officials, officers, and employees from and against claims, losses, damages, defense costs, or liability, arising out of ACCOUNTANTS' (or ACCOUNTANTS' contractors' or subcontractors', if any) negligent acts, errors or omissions in the performance of professional services under this Agreement.
8.2 As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by ISO-based general and automobile liability insurance coverage, ACCOUNTANTS agree to indemnify, defend (at ANAHEIM's option), and hold harmless ANAHEIM, its officials, officers, employees, agents, and representatives from and against claims, losses, damages, defense costs, or liability, involving death, bodily injury, or damage to tangible property (collectively referred to hereinafter as "Claims"), arising directly out of ACCOUNTANTS' (or ACCOUNTANTS' contractors' or subcontractors', if any) acts, errors, omissions, or work, relative to this Agreement or for Claims to the extent which arise out of the sole negligence or willful misconduct of ANAHEIM.
8.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not ANAНЕІМ, АСCOUNTANT, or any other person maintains, or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
8.4 Notwithstanding anything herein to the contrary, ACCOUNTANTS have no obligation to indemnify ANAHEIM from any claims resulting from the acts or omissions by ANAHEIM; and in no event would any indemnification provided under this section be effected 12 by ACCOUNTANTS if doing so would violate the American Institute of Certified Public Accountants (AICPA) or other applicable professional standards.
9. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to ANAHEIM for entering into this Agreement is the professional reputation, experience and competence of ACCOUNTANTS. Neither the whole nor any interest in, nor any of the rights or privileges granted under this Agreement shall be assigned, transferred or encumbered in any way without the prior written consent of ANAHEIM. Any such purported assignment, transfer, encumbrance, pledge, subuse, or permission given without such consent shall be void as to ANAHEIM. If ANAHEIM approves an assignment or transfer, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of ACCOUNTANTS.
10. SUBCONTRACTING
ACCOUNTANTS shall be fully responsible to ANAHEIM for all acts and omissions of any subcontractor that ACCOUNTANTS retain to furnish services that ANAHEIM has engaged ACCOUNTANTS to provide. Nothing in this Agreement shall create any contractual relationship between ANAHEIM and subcontractor nor shall it create any obligation on the part of ANAHEIM to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. ANAHEIM is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and ANAHEIM pursuant to this Agreement.
11. USE AND OWNERSHIP OF DOCUMENTS AND DAТA
ANAHEIM shall furnish to ACCOUNTANTS such documents and materials as may be relevant and pertinent to the provision of services hereunder as ANAHEIM may possess or acquire.
All documents and materials furnished by ANAHEIM to ACCOUNTANTS, shall remain the property of ANAHEIM and shall be deleted or returned to ANAHEIM upon 13 termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by ACCOUNTANTS, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of ANAHEIM, and ANAHEIM shall have the sole right to use such materials in its discretion without further compensation to ACCOUNTANTS or any other party. This section does not apply to the ACCOUNTANTS' working papers, which remain ACCOUNTANTS' exclusive property.
Notwithstanding the foregoing, ACCOUNTANTS may retain a copy of information received, developed, or otherwise relating to this Agreement in order to comply with its contractual obligations and applicable professional standards. ACCOUNTANT shall make ANAHEIM aware of any information stored on routine back-up media for the purpose of disaster recovery.
ANAHEIM and ACCOUNTANT shall determine the appropriate methods for destruction for information that was originated by ANAHEIM and stored on back-up media for the purposes of disaster recovery. In addition, latent data such as deleted files and other non-logical data types, such as memory dumps, swap files, temporary files, printer spool files and metadata that can customarily only be retrieved by computer forensics experts and are generally considered inaccessible without the use of specialized tools and techniques shall not be subject to the requirements for the return or destruction of records as contemplated by this Section of the Agreement.
12. CONFIDENTIALITY
Except where otherwise permitted or required by applicable law, legal process, or professional standards, all documents, including drafts, preliminary drawings or plans, notes, ideas and communications that result from the Services provided under this Agreement, shall be kept confidential by ACCOUNTANTS and its partners, principals, employees, vendors, and subcontractors, unless ANAHEIM authorizes, in writing, the release of said information.
ANAHEIM acknowledges that in connection with the performance of services under this Agreement, ACCOUNTANTS may use the services of entities and/or firms controlled by ACCOUNTANTS to complete the services required by this Agreement. ANAHEIM also acknowledges that in connection with the performance of services under this Agreement, ACCOUNTANTS use vendors within and without the United States to provide at ACCOUNTANTS' direction administrative and clerical services to ACCOUNTANTS. These 14 vendors may in the performance of such services have limited access to information, including but not limited to confidential information, received by ACCOUNTANTS from or at the request or direction of ANAHEIM. ACCOUNTANTS represent to ANAHEIM that each such vendor has agreed to conditions of confidentiality with respect to ANAHEIM's information to the same or similar extent as ACCOUNTANTS have agreed to pursuant this Agreement.
ACCOUNTANTS will have full responsibility to cause these vendors to comply with such conditions of confidentiality and ACCOUNTANTS shall be responsible for any consequences of their failure to comply. ANAHEIM accordingly consents to ACCOUNTANTS disclosure to a vendor and the use by such vendor of data and information, including but not limited to confidential information, received from or at the request or direction of ANAHEIM for the purposes set forth herein.
14. RECORDS
ACCOUNTANTS shall keep timekeeping and expense records in connection with the work to be performed under this Agreement. ACCOUNTANTS shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to ANAHEIM, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to ACCOUNTANTS under this Agreement. All such records and invoices shall be clearly identifiable.
ACCOUNTANTS shall allow an employce of ANAHEIM to examine, audit and make transcripts or copies of such records during regular business hours. When permissible under applicable professional standards, ACCOUNTANTS shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to ACCOUNTANTS under this Agreement to regulators and government entities with a cognizant oversight role.
15. WITHHOLDINGS
ANAHEIM may withhold payment to ACCOUNTANTS of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement.
ACCOUNTANTS shall not discontinue work as a result of such withholding. ACCOUNTANTS 15 to
to
shall have an immediate right to appeal to the City Manager or his/her designee with respect such disputed sums and his/her decision shall be final. ACCOUNTANTS shall be entitled receive interest on any withheld sums at the rate of return that ANAHEIM earned on investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
16. ERRORS AND OMISSIONS
its
In the event of errors or omissions that are due to the negligence or professional inexperience of ACCOUNTANTS which result in expense to ANAHEIM greater than what would have resulted if there were not errors or omissions in the work accomplished by ACCOUNTANTS, the additional cost and expense shall be borne by ACCOUNTANTS.
Nothing in this paragraph is intended to limit ANAHEIM's rights under the law or any other sections of this Agreement.
17. ANAHEIM'S RIGHT TO EMPLOY OTHER ACCOUNTANTS
ACCOUNTANTS acknowledge and agree that this Agreement and the provision of services hereunder are nonexclusive and that ANAHEIM may enter into similar agreements with other entities for the provision of similar services.
18. СONFLICTS OF INTEREST
18.1 ACCOUNTANTS' Firm and the members of the engagement team performing work for ANAHEIM pursuant to this Agreement represent that they do not have a financial interest, as defined in Section 87103 of the Government Code, in the subject matter of this Agreement other than the right to receive payment from ANAHEIM for services rendered.
18.2 ACCOUNTANTS agree that they shall not make, participate in making, nor in any way attempt to use their position as auditors to influence any decision of ANAHEIM which ACCOUNTANTS know, or has reason to know, that any of its officers, partners employees has a financial interest as defined in Section 87103 of the Government Code in or
18.3 The members of ACCOUNTANTS' engagement team agree to comply 16 with any applicable provisions of ANAHEIM'S Conflict of Interest Code and/or any obligations they may have under California Government Code Section 87100 et seq.
19. NOTICES
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given or made or sent by either ANAHEIM or ACCOUNTANTS to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
ANAHEIM
City of Anaheim
Attn: City Clerk
200 S. Anaheim Blvd.
Anaheim, CA 92805
with a copy to:
Finance Director/City Treasurer
City of Anaheim
200 S. Anaheim Blvd., Suite 643
Anaheim, CA 92805
20. DEFAULT
20.1 Events of Default.
ACCOUNTANTS
KPMG LLP
Attn: Brianne Wiese, Managing Director
550 South Hope St, Suite 1500
Los Angeles, CA 90071
.01 For purposes of this Section 20, the word "Default" shall mean the failure of ACCOUNTANTS to perform any of ACCOUNTANTS' duties or obligations or the breach by ACCOUNTANTS of any of the terms and conditions set forth in this Agreement. In addition, ACCOUNTANTS shall be deemed to be in Default upon ACCOUNTANTS' (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an 17 involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of ACCOUNTANTS' assets or of ACCOUNTANTS' interests hereunder.
.02 Neither party shall be deemed to be in Default in the performance of any obligation required to be performed by the party hereunder unless and until the party has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from the other party specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of the defaulting party's obligation is such that more than thirty (30) days are required for its performance, then the defaulting party shall not be deemed to be in Default if the defaulting party shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion.
20.2 Termination for ACCOUNTANTS' Default. In the event of any Default by ACCOUNTANTS that ACCOUNTANTS is unable to cure within the time period specified in
20.1, ANAHEIM may terminate this Agreement. Such termination shall be effective immediately upon receipt by ACCOUNTANTS of written notice from ANAHEIM. In such event, ACCOUNTANTS shall be compensated for deliverables accepted and services performed up until the time of termination. ANAHEIM shall have all other rights and remedies as provided by law.
21. COMPLIANCE WITH ALL LAWS
ACCOUNTANTS shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted, and including, but not limited to, the laws and regulations that prohibit the use of public funds for campaign activities or personal use. In addition, all work prepared by ACCOUNTANTS shall conform to applicable local, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the City Manager.
18 EXHIBIT A
KPMG Proposal RFP 106FIN01132020
Note: The exhibit includes confidential and protected information and is not subject to public disclosure.