Agreement between
City of Chula Vista
and
LANCE SOLL AND LUNGHARD, LLP
To PROVIDE AUDIT SERVICES
This agreement (Agreement), effecive April 8, 2014, is between the City-related entity whose name and business forn is indicated on Exhibit A, Paragraph 2, (City), and the entity whose name, business form, place of business and telephone numbers are indicated on Exhibit A, Paragraphs 4 through 6, (Consultant), and is made with reference to the following facts:
RECITALS
WHEREAS, Section 1017 of the City Charter requires the City Council to appoint an independent auditor to audit the annual financial statements of the City and, WHEREAS, the Finance Department issued a Request for Proposal for Audit Services on January 31, 2014, and
WHEREAS, there were seven proposals received for Audit Services by the February 20, 2014 closing date, and
WHEREAS, a selection committee reviewed the seven proposals and interviewed two of the proposers, and
WHEREAS, the references were consulted for the two proposers, and WHEREAS, Consultant warrants and represents that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. •
[End of Recitals. Next Page Starts Obligatory Provisions.]
Two Party Agreement Berween the Ciry of Chula Vista and Lance Soll and Lunghard ta provide Audit Services #Financiel PARFPs/Anda RFP 2014 Anda REPSL 2 Pary Consulant Agoonsens - Final door Revised 09/13/15 MAL
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OBLIGATORY PROVISIONS PAGES
NOW, THEREFORE, for valuable consideration the City and Consultant do hereby mutually agree as follows:
All of the Recitals above are incorporated into this Agreement by this reference.
ARTICLEI. CONSULTANT'S OBLIGATIONS
A. General
1. General Duties. Consultant shall perform all of the services described on Exhibit A, Paragraph 7 (General Duties).
2. Scope of Work and Schedule. In performing and delivering the General Duties, Consultant shall also perform the services, and deliver to City the "Deliverables" described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the essence of this agreement. The General Duties and the work and Deliverables required in the Scope of Work and Schedule shall be referred to as the "Defined Services." Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement.
in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction.
b. Additional Services. In addition to performing the Defined Services, City may require Consultant to perform additional consulting services related to the Defined Services (Additional Services), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed.
3. Standard of Care. The Consultant expressly warrants that the work to be performed pursuant to this Agreement, whether Defined Services or Additional Services, shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. a. No Waiver of Standard of Care, Where approval by City is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors.
Two Party Agreement Between the City of Chula Vista and Lance Soll and Lunghard to provide Audir Services 1-Financial Phil REPs Audit RFP 2014 Audit KFPLSL 2 Party Consulant Agrerment - Final door Revised 09/18/13 INM
B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Consultant must comply with the federal or state law and implementing regulations. No provision of this Agreement requires the Consultant to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state. territorial, or local law, regulation, or ordinance. If compliance with any provision of this Agreement violates or would require the Consultant to violate any law, the Consultant agrees to notify City immediately in writing. Should this occur, the City and the Consultant agree that they will make appropriate arrangements to proceed with or, if necessary, amend or terminate this Agreement, or portions of it, expeditiously.
1. Subcontractors. Consultant agrees to take appropriate measures necessary to ensure that all participants utilized by the Consultant to complete its obligations under this Agreement, such as subcontractors, comply with all applicable laws, regulations, implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, the Consultant shall ensure that the subcontractor carries out the Consultant's responsibilities as set forth in this Agreement.
C. Insurance
1. General. Consultant must procure and maintain, during the period of performance of this Agreement, and for twelve months after completion, policies of insurance trom insurance companies to protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under this Agreement and the results of that work by the Consultant, his agents, representatives, employees or subcontractors, and provide documentation of same prior to commencement of work.
2. Minimum Scope of Insurance. Coverage must be at least as broad as:
a CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001).
b.Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto).
c.WC. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance.
d.E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects and Engineers' coverage is to be endorsed to include contractual liability
3: Minimum Limits of Insurance. Consultant must maintain limits no less than those included in the table below:
Two Pany Agreement Beaken ite Ciry of Chula Vista and Lance Soll and Lungiard io proside suda Services *Finia PAPREPsAcula RFP201: Andi RFPLSL 2 Pary Consulars Agrancs: - Final docs Revised 09/18/13 IMM
i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death, and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and the general aggregate limit must apply separately to this completed Project/location or the general aggregate limit must be twice the operations, as required occurrence limit.
applicable)
ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability; property damage.
ill. Workers' Statutory
Compensation $1,000,000 each accident
Employer's $1,000,000 disease-policy limit
Liability: $1,000,000 disease-each employee
iv. Professional $1,000,000 each occurrence
Liability or Errors
& Omissions
Liability:
4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the Consultant's insurance using ISO' CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. b. Primary Insurance. The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the
Two Party Agreement Behveen the Cig of Chula Vista and Lance Sell and Lunghard to provide Audit Services 3 percia/PhRFPs/udt RFP0014 Audi RFP SL 2 Parry Consultant Agreement - Final docx:
Revised 09/38/13 JMM
Consultant and in no way relieves the Consultant from its responsibility to provide insurance.
c. Cancellation. The insurance policies required by this Agreement shall not be canceled ..:%
by either party, except after thirty days' prior written notice to the City by certified mail, return receipt requested. The words "will endeavor" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents, or representatives shall be deleted from all certificates. d. Waiver of Subrogation. Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. In addition, Consultant waives any right it may have or may obtain to subrogation for a claim against the City.
a. Retro Date. The "Retro Date" must be shown, and must be before the date of the Agreement or the beginning of the work required by the Agreement. b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the work required by the Agreement.
c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of the Agreement, the Consultant must purchase "extended reporting'" coverage for a minimum of five years after completion of the work required by the Agreement. d. Copies. A copy of the claims reporting requirements must be submitted to the City for review.
7. Acceptability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers (LESLI) with a current A.M.
Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated.
8. Verification of Coverage. Consultant shall furnish the City with original certificates and w: amendatory endorsements effecting coverage required by Section I.C. of this Agreement The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required
Two Parry Agreement Between the Cin of Chula Vista and Lanca Soil and Lunghard 1o provide Audit Services Jinancia APAREPS Anda REP201 Audi RFPILSL 2 Pary Coasulans Agreement - Final dax Revised 09/18/13 IMM
insurance policies, including endorsements evidencing the coverage required by these specifications.
9. Subcontractors. Consultant must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements for each subconsuliant. All coverage for subconsultants is subject to all of the requirements included in these specifications.
10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity:
11. Additional Coverage. To the extent that Insurance coverage exceeds the minimums identified in section 3, recovery shall not be limited to the insurance minimums, but shall instead extend to the actual policy limits.
D. Security for Performance
1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond, in the amount indicated at Exhibit A, Paragraph 18, in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://www.fims.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form must be satisfactory to the Risk Manager or City.
2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide a Letler of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at its unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit," in Exhibit A, Paragraph 18.
3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credi indicated by a check mark in the parenthetical space immediately preceding th subparagraph entitled "Other Security"), then Consultant shall provide to the City such
Tie Party greement Betveen the City of Chria Vista and Lance Soil and Lunghard to provide Audit Services J-manciaNS/RFPs/Audit RFP 2014 Auda RFPLSI. 2 Party Consultaul Agreesent - Final doca Renssed 09/18/13 JMM
other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney.
• me:. E. Business License. Consultant agrees to obtain a business license from the City and to... otherwise comply with Title 5 of the Chula Vista Municipal Code.
ARTICLE II. CITY OBLIGATIONS
A. Consultation and Cooperation. City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule, and to provide direction and guidance to achieve the objectives of this Agreement. The City shall allow Consuitant access to its office facilities, files and records, as deemed necessary and appropriate by the City, throughout the term of this Agreement. In addition, City agrees to provide the materials identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of those materials beyond thirty days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultan's performance.
B. Compensation.
1. Following Receipt of Billing. Upon receipt of a properly prepared bill from Consultant, submitted to the City as indicated in Exbibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11.
2. Supporting Information. Any billing submitted by Consultant shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment.
3. Exclusions. In determining the amount of the compensation City will exclude any cost:
1) incurred prior to the effective date of this Agreement; or 2) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of the Consultant, its agents, employees, or subcontractors.
a. Errors and Omissions. In the event that the City: Administrator determines that the Consultant's negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions. Consultant shall reimburse City for any additional expenses incurred by the City. Nothing in this
Two Party Agreemenz Berween the City of Chula Vista and Lance Soll and Lunghard to provide Audit Services FinancaMPLARFPs Lodi RFP 2014 Aval RFPILSL 2 Pary Consoled Agreeanent - Firal dox Revised 09/18/13 JMM
paragraph is intended to limit City's rights under other provisions of this Agreement.
ws4 Payment Not Final Approval. The Consultant understands and agrees that payment to the, Consultant for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Consultant of the terms of the Agreement. The Consultant acknowledges that City will not make a final determination about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Consultant is not entitled to receive any portion of the compensation due or paid, City will notify the Consultant in wnting, stating its reasons. The Consultant agrees that Project closeout will not alter the Consultant's responsibility to retur any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. a. Consultant's Obligation to Pay. Upon notification to the Consultant that specific amounts are owed to City, whether for excess payments or disallowed costs, the Consultant agrees to remit to City promptly the amounts owed, including applicable ARTICLE III. ETHICS
A. Financial Interests of Consultant
1. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 14, as an "FPPC filer," Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report cconomic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney.
2. No Participation in Decision. Regardless of whether Consultant is desi guated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a govermental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement.
3. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an PPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used inaspresore.sor in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this Agreement.
Tieo Party Agreement Between the Ciry of Chulu Vista and Lance Sofi and Langüurd 10 provide Audit Services (mance/VhRFPs/Audit RFP 2014 Audii RFPILSL 2 Panty Consultat Agroement - Final doc Re13scd 09/38/13 JMN
4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPP Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political...*.
Practices Act.
5. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney if Consultant leams of an economic interest of Consultant's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder.
6. Specific Warranties Against Economic Interests. Consultant warrants, represents and agrees that:
a. Neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents (Consultant Associates) presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, (Prohibited Interest), other than as listed in Exhibit A, Paragraph 14. b. No promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or tor twelve months thereafter.
c. Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City.
d. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City.
IV. LIQUIDATED DAMAGES
A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13.
2:170/90%14271 "Estimating Damages. It is acknowledged by both parties that time is of the essence in the**** completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay.
Two Party Agreement Benteen she Cly of Chula Vista and Lance Sall and Lunghard ia provide Audit Services Finaacian/b/ARP: Audit RFP 2014 Audü REPSL 2 Pary Consulant Agiconers - Fibal doct Revised 09/18/13 JMB
2. Amount of Penalty. Failure to complete the Defined Services within the allotted time period specified in this Agreement shail result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 (Liquidated Damages Rate).
3. Request for Extension of Time. If the performance of any act required of Consultant is directly prevented or delayed by reason of strikes, lockouts, labor disputes, umusual govemmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Consultant, as determined by the City, Consultant shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Consultant claims the existence of such a delay, the Consultant shall notify the City's Contract Administrator, or designee, in writing of that fact within ten calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work.
ARTICLE V. INDEMNIFICATION
A. Defense, Indemnity, and Hold Harmless.
1. General Requirement. To the maximum extent allowed by law, Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from aud against any and all claims, demands, causes of action, costs, expenses, (including reasonable attorney's fees and actual costs), liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services, the results of such performance, or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party.
2. Design Professional Services. Notwithstanding the forgoing, if the services provided under this Agreement are design professional services, as defined by California Civil Code section 2782.5, as may be amended from time to time, the defense and indemnity obligation under Section I, above, shall be limited to the extent required by California Civil Code section 2782.8.
*3.-Costs of Defense and Award. Included in the obligations in Sections A.1 and A.2, above, is the Consultant's obligation to defend, at Consultant's own cost, expense and risk, any
Two Pary Agreement Behreen the City of Chula Vista and Lance Soil and Lunghard to provide Andit Services Financsa/PhiARIPsVAudit RFP12014 Audit RFPL.SL. 2 Party Coosultant Agrement - Final.do evased 09/18/13 JMD
and all suits, actions or other legal proceedings, that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections A.l. and A.2. Subject to the limitations in Sections A.l. and A.2., Consultant shail pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all related legal expenses and costs incurred by each of them.
4. Insurance Proceeds. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers.
5. Declarations. Consultant's obligations under Article V shall not be limited by any prior or subsequent declaration by the Consultant.
6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V.
7. Survival. Consultant's obligations under Article V shall survive the termination of this Agreement.
8. No Alteration of Other Obligations. This Article V, shall in no way alter, affect or modify any of the Consultant's other obligations and duties under this Agreement.
ARTICLE VI. TERMINATION OF AGREEMENT
A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement and less any damages caused City by Consultant's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination.
B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall; at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shali be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby
Two Party Agreemeni Berween the City of Chula Vista and Lance Soll and Lunghard to provide Audit Services J:Francia/PRFPs/odr RFP201S Audit RFP1SL2 Part Consultant Agreemens - Final doc Revised 09/8/13 JMM
expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth in this section.
ARTICLE VII. RECORD RETENTION AND ACCESS 120!
A. Record Retention. During the course of the Project and for three (3) years following completion, the Consultant agrees to maintain, infact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating 1o the Project as City may require.
B. Access to Records of Consultant and Subcontractors. The Consultant agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project C. Project Closeout. The Consultant agrecs that Project closeout does not alter the reporting and record retention requirements of this Agreement.
ARTICLE VII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT
A. Project Completion. Within ninety (90) calendar days following Project completion or termination by City, Consultant agrees to submit a final certification of Project expenses and audit reports, as applicable.
B. Audit of Consultants. Consultant agrecs to perform financial and compliance audits the City may require. The Consultant also agrees to obtain any other audits required by City.
Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit costs are allowable Project costs.
C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has closed the Project, and either forwards the final payment or acknowledges that the Consultant has remitted the proper refund. The Consultant agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE IX. MISCELLANEOUS PROVISIONS
A. Assignability. The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agrecment, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. ..amalLimited Consent. City hereby consents to the assignment of the portions of the Defined or Services identified in Exhibit A, Paragraph 16 to the subconsultants identified as "Permitted Subconsultants."
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property of City. No such materials or properties produced in whole or in part under this 2*2 Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement.
C. Independent Contractor. City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintaius the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard to them.
1. Actions on Behalf of City. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. Consultant shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement.
2. No Obligations to Third Parties. In connection with the Project, Consultant agrees and shall require that its agents, employees, subcontractors agree that City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement.
Notwithstanding that City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, City shall have no obligation or liability to any person or entity not a party to this Agreement.
D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement, against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be Taster amended, the provisions of which are incorporated by this reference as if filly set for herein, and such policies and procedures used by City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of .... resolving any dispute over the terms of this Agreement.
Iwo Party Agreement Beneen the City of Chula Fista and Lance Soll and Lunghard to provide Audi Services Financial PhilREPs Audit REP 2014 Audit RFP.SL. 2 Party Consocitant Agroemena - Final doct Resised 09/8/13 M
E. Administration of Contract. Each party designates the individuals (Contract Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator who is authorized by the party to represent it in the routine administration of this Agreement.
F. Term. This Agreement shall terminate when the parties have complied with all executory provisions hereof.
G. Statement of Costs. In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in the report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document.
H. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Consultant and/or its principals is/are licensed with the State of California or some other state as a real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor its principals are licensed real estate brokers or salespersons.
Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the designated parties.
J. Integration. This Agreement, together with any other written document referred to or contemplated in it, embody the entire Agreement and understanding between the parties relating to the subject matter hcreof. Neither this Agreement nor any provision of it may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought.
K. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all necessary resolutions or other actions have been taken so as to enable it to enter into this Agreement.
L. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the fedcral or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible.
Venue for this Agreement, and performance under it, shall be the City of Chula Vista. (End of page. Next page is signature page.)
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Two Party Agreement Benseen the Ciry of Chia Vista and Lance Soll and Lunglard ta provide Audi Services JEnascalPh/AR/PsHuda RFP2014 Alt REPULSE 1 Party Coassiant Agreement - Fusal doct Revised 09/1S/13 JMM
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Signature Page
to
Agreement between
City of Chula Vista and
LANCE SOLL AND LUNGHARD, LLP
TO PROVIDE AUDIT SERVICES
IN WITNESS WHEREOF, City and Consultant have executed this Agreement, indicating that they have read and understood same, and indicate their full and complete consent to its terms:
City of Chula Vista
Challer
By:
Cheryl Cox! Mayor
Attest:
Norseb
Donna Norris, City Clerk
Approved as to form:
LANCE SOLL AND LUNGHARD, LLP
By:
HARD KIKUCHI, PARTNET
Exhibit List to Agreement: Exhibit A
Two Party Agreement Between the Ciry of Chula Vista and Lance Soli and Lunghard to grovide Audir Services ClUses ber/AppDatal Local Wacrosofindon siT emporary Interact Files Content Outlock LX2N9VVS. 2 Pary Cosulart Apremen: • Firal does Revised 09/13/13 JMM
Exhibit A
to
Agreement between
City of Chula Vista
and
LANCE SOLL AND LUNGHARD, LLP
i. Effective Date: The Agreement shall take effect upon full execution of the Agreement, as of the effective date stated on page 1 of the Agreement.
2. City-Related Entity
(x) City oF Chula Vista, a municipal chartered corporation of the State of Califomia ( ) The Chula Vista Public Financing Authority, a
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( ) The Chula Vista Industrial Development Authority, a () Other: _ a [insert business form]
(City)
3. Place of Business for City:
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City of Chula Vista
276 Fourth Avenue •
Chula Vista, CA 91910 •
4. Consultant:
LANCE SOLL AND LUNGIARD, LIP
5. Business Form of Consultant:
() Sole Proprietorship
(X) Partnership
() Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
203 North Brea BLVD, Suite 203•
Brea, CA 92821
(714) 672-0022
Two Party Agreement Berween he Cry of Chula Vista and Lance Soll and Lunghard to provide Audit Services Revised 09/18/13 MM
7. General Duties:
The City prepares a Comprehensive Annual Financial Report (CAFR) and desires the auditor to express an opinion on the fair presentation of its basic financial statements included therein in !:.:
conformity with generally accepted accounting principles. The auditor is not required to audit the supporting schedules contained in the comprehensive annual financial report. However, the auditor is to provide an "in-relation-to" opinion on the supporting schedules based on the auditing procedures applied during the audit of the basic financial statements. The auditor is not
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
Upon completion of the audit for cach fiscal year the auditor shall issue the following reports:
1. An audit opinion on the fair presentation of the City's financial statements (CAFR) in conformity with generally accepted accounting principles. This opinion should be compliant with all provisions of GASB 34.
2. All reports required for compliance with the provisions of OMB Circular A-133 and the Single Audit Act Amendments of 1996.
3. A report of Agreed-Upon Procedures relative to the City's calculation of its Appropriation Limit in accordance with the Article XIIIB Appropriations Limit Uniform Guidelines and as mandated by the California Constitution.
4. An audit report for the Chula Vista Public Financing Authority.
5. An audit report for the Chula Vista Municipal Financing Authority.
In the required reports on compliance and internal controls, the auditor shall communicate any significant deficiencies found during the audit. A significant deficiency shall be defined as a deficiency, or combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance.
Significant deficiencies that are also material weaknesses shall also be identified as such in the report.
Other matters, for example deficiencies that are not significant deficiencies or material weaknesses discovered by the auditor shali be reported in a separate letter to management, which shall be referred to in the reports on compliance and internal controls.
The reports on compliance and internal control shall include all material instances of noncompliance. All normaterial instances of noncompliance shall be reported in a separate management letter, which shall be referred to in the report on compliance.
Two Party Agreement Between the Ciry of Chula Fista and Lonce Soll and Lunghard to provide Audit Serrices JF macialPhARFPs\Auda.RFP 2014 Audi RFPILSL 2 Party Consultznt Agreement - Final. doct Raised 09/1803 JM
Irregularities and illegal acts: Auditors shall be required to make an immediate, written report of all irregularities and illegal acts or indications of illegal acts of which they become aware to Maria Kachadoorian, Director of Finance.
The City of Chula Vista City Council serves as the City's Audit Committee. Auditors shall communicate to the City's Audit Committee all communications as required by SAS 114.
C. Special Requirements
Single Audit Act
Circular A-133, Audits of State, Local Governments and Non-Profit Organizations.
The City has determined that the United States Department of Housing and Urban Development will function as the cognizant agency in accordance with the provisions of the Single Audit Act Amendments of 1996 and U.S. Office of Management and Budget (OMB) Circular A-133, Audits of State and Local Govemments and Non-Profit Organizations. The schedule of expenditures of federal award and related auditor's report, as well as the reports on the internal controls and compliance are not to be included in the CAFR, but are to be issued separately.
Award
The City has obtained the "Certificate of Achievement for Excellence in Financial Reporting" from the Government Finance Officers Association of the United States and Canada for fisca year cnded June 30, 2012 and expects to receive the award for the fiscal year ended June 30. 2013. It is the City's intention to continue to receive the award annually and will expect the Comprehensive Annual Financial Report (CAFR) to meet the requirements of those programs.
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
() Other:
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1: Comprehensive Annual Financial Report, November 30 for each year audited
Deliverable No. 2: Single Audit Report, November 30 for each year audited Deliverable No. 3: Report of Agreed-Upon Procedures for Calculation of the City's Appropriation Limit.
Deliverable No. 4: Audit report for the. CV Public Financing Authority.
Deliverable No. 5: Audit report for the CV Municipal Financing Authority.
Twa Party Agreement Beveen the City of Chula Vista and Lance Soll and Lunghard to provide Audit Services 1-Financial PhilRFPs/Acdr RFP12014 Audit REP LS 2 Party Consultant Agreeneat - Final doc Ressed 09/1S/13 IMM
D. Date for completion of all Consultant services:
Consultant shall complete ail work identified in sections 7. and 8., above, for fiscal years 2014-15, 2015-16 and 2016-17. The work shall be on-going as the City requires guidance in carrying out their financial and administrative duties, but shall not exceed more than the completion of each year's finished Financial Reports as listed on pages 17 and 18 of this Agreement. All services shall be completed by January 31, 2017, unless City exercises its option to extend the agreement for two additional years.
9. Materials Required to be Supplied by City to Consultant:
The City will prepare the following statements and schedules for the auditor. Additional statements or schedules may be prepared if mutually agreed upon in advance. • General Purpose Financial Statements
• Cash and Investments
• Cash with Fiscal Agent/Trustee Transactions
Interest Income detail
Operating Transfers/ Residual Equity Transfers
Arbitrage Calculations
Schedule of Fixed Asset Transactions
Compensated Absences
Schedule of Investments
Schedule of Long-term Debt Transactions
Bank Reconciliation
• Budget Transfers
• Property Tax Schedule
• Loans Receivable & Payable
• Accounts Receivable & Accounts Payable
• Advances Receivable & Payable between Funds
• PERS Summary of Covered Payroll and Contributions
• City's calculation of the appropriation limit
• Any other required schedules
* Single Audit
Schedule of Expenditures of Federal Awards (SEFA)
10. Compensation:
1 .......:
A. (X) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below:
Twa Party Agreement Bereen the City of Chula Vista and Lance Soll and Lunghard to provide Audi Services Single Fixed Fee Amount: S78,265 payable as follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee Interim Audit Field Work 40%
Final Audit Field Work 40%
All reports are received 20%
The fee for fiscal year ending June 30, 2015 shall not exceed $81,875; the fee for fiscal year ending June 30, 2016 shall not exceed $85,844.
In addition, the City Manager shall have the authority to approve the extension of this Agreement for two one-year terms, at the City's sole discretion, upon notification to the Consultant. If the option to extend is exercised, the fee for fiscal years 2016-17 and 2017-18 will be adjusted by the annual change in the Consumer Price Index-All Urban (December-December). If the City extends the Agreement to include fiscal year ending 2017, the associated fee shall not exceed the cost of $85,844 plus a maximum increase of 5%; if the City extends the Agreement to include fiscal year ending 2018, the associated fee shall not exceed a maximum increase of 5% over the previous year's fees.
The City Manager will also be authorized to approve other services that may be required of the audit firm at the hourly rates stated below.
Milestone or Event or Deliverable Amount or Percent of Fixed Fee () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof . demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that .. atoni
said percentage of completion of the phase has been performed by the Consultant.
The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment.
B. () Phased Fixed Fee Arrangement.
Tiso Parts Agreement Berween the City of Chula Fista and Lance Soll and Lunghard to provide Audit Services JEnana PhARFPslAnd RFPI2D14 And RP LS1. 2 Party Consultant Agreement - Fural dosa Revised 09/18/13 JMM
For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled 1o the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase.
Phase Fee for Said Phase
1. $
2. $
() 1. Interim Monthiy Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 18 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Consultant shall have represented in writing that said percentage of completion of the phase has been performed by the Consultant.
The practice of making interim monthly advances shall not convert this agreement to C. (X) Hourly Rate Arrangement
For performance of the services other than the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of other Services that may be required, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions:
(1) () Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all o he Defined Services herein required of Consultant for S including all Materials, and other "reimbursables" (Maximum Compensation).
Tivo Pary Agreemens Berreen the City of Chula Vista and Lance Soll and Lunghard o provide Audit Services vised 09/1S/13 B
(2) () Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to _ (Authorization Limit), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. See Exhibit B for wage rates.
Rate Schedule
Category of Employee Name of Consultant Hourly Rate
Partner $280.00
Manager $ 185.00
Senior Accountant $ 140.00
Staff Accountant $ 125.00
Clerical Included
( ) Hourly rates may increase by 6% for services rendered after [month], 20, if delay in providing services is caused by City.
11. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required. City shall pay Consultant at the rates or amounts set forth below (X) None, the compensation includes all costs.
Cost or Rate
() Reports, not to exceed $_ $
() Copies, not to exceed $ $
() Travel, not to exceed S. $
() Printing, not to exceed $
Postage, not to exceed $ $
()
() Delivery, not to exceed S $
() Outside Services: $
() Other Actual Identifiable Direct Costs: $
, not to exceed $_ $
, not to exceed $_ $
12. Contract Administrators:
City: Phillip Davis, Assistant Director of Finance
276 Fourth Ave, Chula Vista, CA 91910
Twa Pary Agreement Between the Cir of Chula Vista and Lance Soll and Lunghard to proside Audit Services ....
(619) 409-3820
Consultant: Richard Kikuchi, Partner
203 North Brea BLVD., Suite 203, Brea CA 92821
(714) 672-0022
13. Liquidated Damages Rate:
() S _ per day.
() Other:
14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code (Chula Vista Municipal Code chapter 2.02):
X) Not Applicable. Not an FPPC Filer.
() FPPC Filer
() Category No. 1. Investments, sources of income and business interests. () Category No. 2. Interests in real property.
() Category No. 3. Investments, business positions, interests in real property, and sources of income subject to the regulatory, permit or licensing ahority of the department administering this Agreement.
() Category No. 4. Investments and business positions in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property.
() Category No. 5. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the City of Chula Vista or the City's Redevelopment Agency to provide services, supplies, materials, () Category No. 6. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the department administering this Agreement to provide services, supplies, materials, machinery or equipment.
() List Consultant Associates interests in real property within 2 radial miles of Project Property, if any:
Tiko Party Agreement Between the City of Chula Vista and Lance Soll and Lunghard ta provide Audis Services
15. () Consultant is Real Estate Broker and/or Salesman
16. Permitted Subconsultants:
17. Bill Processing:
A. Consultant's Billing to be submitted for the following period of time:
() Monthly
() Quarterly
(X) Other: As specified in section 10.
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
() 15th Day of each Month
() End of the Month
() Other:
C. City's Account Number: various
18. Security for Performance
() Performance Bond, S.
( ) Letter of Credit, $.
() Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then notwithstanding other provisions to the confrary to quin, the pair olio, coherencilo with Carentian peret the Cily seel be entitled Amount" until the City determines that the Retention Release Event, listed below, has occurred:
() Retention Percentage: _
() Retention Amount: $
Retention Release Event:
() Completion of All Consultant Services
( ) Other:
Two Party Agreement Betreen the Ciry of Chula Vista und Lance Soll and Lungsard to provide Audir Services J: FinancialPhiARFPs/Aud RFPi2014 Auda RFPS1. 2 Party Consultant Agroement - Final doox Revised 09/18/13 M
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( ) Other: The Retention Amount may be released on a monthly basis provided that Consultant has performed said monthly services to the sole satisfaction of the Assistant City Manager/Director of Development Services or his designee.
Two Party Agreement Between she City of Chula Vista and Lance Soll and Lunghard to provide Audit Services I Financial PERFPs/Audi: REP 2014 Andia REPLL 3 Party Cozsultant Agreemen- Fonaldox, Revisal 09118/33 JMM