Exhibit CC 04-03-12 #6 Maze Financial Auditor Contract OFFICE OF ADMINISTRATIVE SERVICES
CITY HALL
10300 TORRE AVENUE •CUPERTINO, CA 95014-3202
CUPERTINO (408) 777-3220• FAX(408)777-3109
MEMORANDUM
To: City Council
From: David Woo
Cc: David Knapp, Carol Atwood
Subject: Agenda Item 6—Financial auditor contract
Date: April 3, 2012
Enclosed is a revised Agreement for Services with a change in Section 3 specifying the term of
the contract.
C Icy— ' �
AGREEMENT
BETWEEN
CITY OF CUPERTINO
AND
MAZE AND ASSOCIATES ACCOUNTANCY CORPORATION
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT MADE AS OF APRIL 3, 2012 BETWEEN CITY
OF CUPERTINO (hereinafter referred to as "City"), and MAZE AND ASSOCIATES
ACCOUNTANCY CORPORATION (hereinafter referred to as "Consultant").
WITNESSETH:
WHEREAS, CITY intends to prepare audited financial statements and reports
(hereinafter referred to as "Project"); and
WHEREAS, CITY requires certain professional services in connection with Project
(hereinafter referred as "Services"); and
WHEREAS, Consultant is qualified and prepared to provide such Services.
NOW, THEREFORE, in consideration of the promises contained herein, the parties agree
as follows:
ARTICLE 1 - SERVICES TO BE PERFORMED BY CONSULTANT
1.1 Consultant hereby agrees to provide the specific services and the associated scope
of services, payment, schedule, term and personnel as defined in that certain
"Proposal to Provide Annual Audit Services" dated February 27, 2012 (attached
hereto and incorporated herein as Exhibit A), along with the "Amended Total
Maximum Price and Total Estimated Hours per Fiscal Year", received March 9,
2012 (attached hereto and incorporated herein as Exhibit B) (collectively referred
to as the "Proposal").
ARTICLE 2 - COMPENSATION
2.1 Compensation for Consulting services performed under this Agreement shall be
compensated as described in the Proposal.
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ARTICLE 3 - PERIOD OF SERVICE TERM
3.1 Consultant's services will be performed and the specified services rendered and
deliverables submitted_within the time period or by the date stipulated in the
Proposal. The term of this contract is from April 3. 2012 until completion of
the audit for fiscal v ear 2016 audit. unless terminated earlier pursuant to
Article 1`.,
3.2 Consultant's services under this Agreement for each fiscal year will be considered
complete when the services are rendered and all deliverables are submitted and
accepted by the City for that fiscal year.
3.3 If any time period within or date by which any of the Consultant's services are to
be completed is exceeded through no fault of Consultant, all amounts of
compensation and the time for completion of performance shall be subject to
equitable adjustment.
ARTICLE 4 - CITY'S RESPONSIBILITIES.
City will do the following in a timely manner so as not to delay the services of
Consultant:
4.1 Provide all criteria and full information as to City's requirements for the
services assignment and designate in writing a person with authority to act on
City's behalf on all matters concerning the Consultant's services.
4.2 Furnish to Consultant all existing reports and other available data
pertinent to the Consultant's services which Consultant shall be entitled to use and
rely upon in performing Consultant's services under this Agreement.
4.3 Arrange for access to and make all provisions for Consultant to enter upon public
and private property as required for Consultant to perform services hereunder.
4.4 Perform such other functions as are indicated in the Proposal as duties
of City.
4.5 Bear all costs incident to compliance with the requirements of this Section.
ARTICLE 5 - STANDARD OF CARE
5.1 Consultant shall exercise the same degree of care, skill, and diligence in the
performance of the Services as is ordinarily provided by a professional Consultant
under similar circumstance and Consultant shall, at no cost to City, re-perform
services which fail to satisfy the foregoing standard of care.
ARTICLE 6 - SUBCONTRACTING
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6.1 No subcontract shall be awarded by Consultant until prior written approval is
obtained from the City.
ARTICLE 7—CONSULTANT-ASSIGNED PERSONNEL
7.1 Consultant shall designate in writing an individual to have immediate
responsibility for the performance of the services and for all matters relating to
performance under this Agreement. Key personnel to be assigned by Consultant
and substitution of assigned persons shall be stipulated in Proposal.
ARTICLE 8 - OWNERSHIP OF DOCUMENTS
8.1 Disclosure of work products, data, reports, files, estimates and other such
information and materials as may be accumulated by Consultant to complete
services under this Agreement shall be stipulated in the Proposal.
8.2 Consultant shall return documents obtained from the City before the end of the
Services, unless otherwise stated by the City.
8.3 All deliverables prepared by Consultant pursuant to this Agreement are
instruments of service in respect to this, project. They will be a matter of public
record after presentation to the City Council or its respective subcommittees.
ARTICLE 9 - RECORDS OF LABOR AND COSTS
9.1 Consultant shall maintain records of labor and costs used in
claims for compensation under this Agreement. Records shall mean a
contemporaneous record of time for personnel; a methodology and calculation of
the billing rate; and invoices, time sheets, or other factors used as a basis for
billable expenses. These records must be made available to the City upon
reasonable notice of no more than 48 hours during the period of the performance
of this Agreement.
9.2 After delivery of each year of Services under this Agreement, Consultant's
records of all costs used in claims for compensation under this Agreement shall be
available to the City for inspection and verification. These records will be
maintained by Consultant and made reasonably accessible to the City for a period
of three (3) years after completion of each year of the Proposal under this
Agreement.
9.3 Consultant agrees to cooperate and provide any and all information concerning
the Project costs which are a factor in determining compensation under this
Agreement as requested by the City or any public agency which has any part in
providing financing for, or authority over, the Services which are provided under
the Agreement.
PC/CITY/FRMS/A92502 3
9.4 Failure to provide documentation or substantiation of all Project costs used as a
factor in compensation paid under Article 2 hereof will be grounds for City to
refuse payment of any statement submitted by the Consultant and for a back
charge for any City funds, including interest from payment or grant, matching or
other funds from agencies assisting City in financing the Services specified in this
Agreement.
ARTICLE 10 - INSURANCE
Consultant shall provide and maintain at all times during the performance of the
Agreement the following insurances:
10.1 Workers' Compensation and Employer's Liability Insurance for protection of
Consultant's employees as required by law and as will protect Consultant from
loss or damage because of personal injuries, including death, to any of his
employees.
10.2 Comprehensive Automobile Liability Insurance. Consultant agrees to carry a
Comprehensive Automobile Liability Policy providing bodily injury liability.
This policy shall protect Consultant against all liability arising out of the use of
owned or leased automobiles both passenger and commercial. Automobiles,
trucks, and other vehicles and equipment (owned, not owned, or hired, licensed or
unlicensed for road use) shall be covered under this policy. Limits of liability for
Comprehensive Automobile Liability Insurance shall not be less than $1,000,000
Combined Single Limit.
10.3 Comprehensive General Liability. Insurance as will protect Consultant and
City from any and all claims for damages or personal injuries, including death,
which may be suffered by persons, or for damages to or destruction to the
property of others, which may arise from the Consultant's operations under this
Agreement, which insurance shall name the City as additional insured. Said
insurance shall provide a minimum of$1,000,000 Combined Single Limit
coverage for personal injury, bodily injury, and property damage for each
occurrence arid aggregate. Such insurance will insure Consultant and City from
any and all claims arising from the following:
1. Personal injury;
2. Bodily injury;
3. Property damage;
4. Broad form property damage;
5. Independent contractors;
6. Blanket contractual liability.
10.4 Consultant shall maintain a policy of professional liability insurance, protecting it
PC/CITY/FRMS/A92502 4
against claims arising out of negligent acts, errors, or omissions of Consultant
pursuant to this Agreement, in an amount of not less than $1,000,000. The said
policy shall cover the indemnity provisions under this Agreement.
10.5 Consultant agrees to maintain such insurance at Consultant's expense in full force
and effect in a company or companies satisfactory to the City. All coverage shall
remain in effect until completion of the Project.
10.6 Consultant will furnish the City with certificates of insurance issued by
Consultant's insurance carrier and countersigned by an authorized agent or
representative of the insurance company. The certificates shall show that the
insurance will not be cancelled, altered, or reduced without at least thirty (30)
days' prior written notice to the City. The certificates for liability insurance will
show that liability assumed under this Agreement is included.
ARTICLE 11 - LIABILITY AND INDEMNIFICATION
11.1 Having considered the risks and potential liabilities that may exist during the
performance of the Services and in consideration of the promises included herein,
City and Consultant agree to allocate such liabilities in accordance with this
Article 11. Words and phrases used in this Article shall be interpreted in
accordance with customary insurance industry usage and practice.
11.2 Where the law establishes a standard of care for Consultant's professional
services, and to the extent the Consultant breaches or fails to meet such
established standard of care, or is alleged to have breached or failed to meet such
standard of care, Consultant shall, to the fullest extent allowed by law, with
respect to all services performed in connection with the Agreement, indemnify,
defend, and hold harmless the City and its officers, officials, agents, employees
and volunteers from and against any and all liability, claims, actions, causes of
action or demands whatsoever against any of them, including any injury to or
death of any person or damage to property or other liability of any nature, that
arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of Consultant or Consultant's employees, officers, officials, agents or
independent contractors. Such costs and expenses shall include reasonable
attorneys' fees of counsel of City's choice, expert fees and all other costs and fees
of litigation. Consultant shall not be obligated under this Agreement to indemnify
City to the extent that the damage is caused by the sole or active negligence or
willful misconduct of City, its agents or employees.
11.3 Consultant shall, to the fullest extent allowed by law, with respect to all services
performed in connection with the Agreement indemnify, defend, and hold
harmless the City and its officers, officials, agents, employees and volunteers
from and against any and all liability, claims, actions, causes of action or demands
whatsoever against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of, pertain to, or
PC/CITY/FRMS/A92502 5
relate to the performance of this Agreement by Consultant or Consultant's
employees, officers, officials, agents or independent contractors. Such costs and
expenses shall include reasonable attorneys' fees of counsel of City's choice,
expert fees and all other costs and fees of litigation.
11.4 Consultant shall indemnify City against legal liability for damages arising out
of claims by Consultant's employees. City shall indemnify Consultant against
legal liability for damages arising out of claims by City's employees.
11.5 Indemnity provisions will be incorporated into all Project contractual
arrangements entered into by City and will protect City and Consultant to the
same extent.
11.6 Upon completion of all services, obligations and duties provided for in the
Agreement, or in the event of termination of this Agreement for any reason, the
terms and conditions of this Article shall survive.
ARTICLE 12 - INDEPENDENT CONTRACTOR
Consultant undertakes performance of the Services as an independent contractor and shall
be wholly responsible for the methods of performance. City will have no right to
supervise the methods used, but City will have right to observe such performance.
Consultant shall work closely with City in performing Services under this Agreement.
ARTICLE 13 - COMPLIANCE WITH LAWS
In performance of the Services, Consultant will comply with applicable regulatory
requirements including federal, state, and local laws, rules, regulations, orders, codes,
criteria and standards. Consultant shall procure the permits, certificates, and licenses
necessary to allow Consultant to perform the Services.
ARTICLE 14 - NONDISCLOSURE OF PROPRIETARY INFORMATION
Consultant shall consider all information provided by City and all reports, studies, and
other documents resulting from the Consultant's performance of the Services to be
proprietary unless such information is available from public sources. Consultant shall not
publish or disclose proprietary information for any purpose other than the performance of
the Services without the prior written authorization of City or in response to legal
process.
ARTICLE 15 - TERMINATION OF CONTRACT
15.1 The obligation to continue Services under this Agreement may be terminated by
either party upon seven days written notice in the event of substantial failure by
the other party to perform in accordance with the terms hereof through no fault of
the terminating party.
PC/CITY/FRMS/A92502 6
15.2 City shall have the right to terminate this Agreement or suspend performance
thereof for City's convenience upon written notice to Consultant, and Consultant
shall terminate or suspend performance of Services on a schedule acceptable to
City. In the event of termination of suspension for City's convenience, City will
pay Consultant for all services performed and costs incurred including termination
or suspension expenses. Upon restart of a suspended project, equitable
adjustment shall be made to Consultant's compensation.
ARTICLE 16 - UNCONTROLLABLE FORCES
16.1 Neither City nor Consultant shall be considered to be in default of this
Agreement if delays in or failure of performance shall be due to uncontrollable
forces, the effect of which, by the exercise of reasonable diligence, the
nonperfoimung party could not avoid. The term "uncontrollable forces" shall
mean any event which results in the prevention or delay of performance by a party
of its obligations under this Agreement and which is beyond the control of the
nonperforming party. It includes, but i s not limited to, fire, flood, earthquake,
storms, lightening, epidemic, war, riot. civil disturbance, sabotage, inability to
procure permits, licenses, or authorizations from any state, local, or federal
agency or person for any of the supplies, materials, accesses, or services required
to be provided by either City or Consultant under this Agreement, strikes, work
slowdowns or other labor disturbances, and judicial restraint.
16.2 Neither party shall, however,be excused from performance if nonperformance is
due to uncontrollable forces which are removable or remediable, and which the
nonperforming party could have, with the exercise of reasonable diligence,
removed or remedied with reasonable dispatch. The provisions of this Article
shall not be interpreted or construed to require Consultant or City to prevent,
settle, or otherwise avoid a strike, work slowdown, or other labor action. The
nonperforming party shall, within a reasonable time of being prevented or delayed
from performance by an uncontrollable force, give written notice to the other
party describing the circumstances and uncontrollable forces preventing continued
performance of the obligations of this Agreement. The Consultant will be
allowed reasonable negotiated extension of time or adjustments for City initiated
temporary stoppage of services.
ARTICLE 17 - MISCELLANEOUS
17.1 A waiver by either City or Consultant of any breach of this Agreement shall
not be binding upon the waiving party unless such waiver is in writing. In the
event of a written waiver, such a waiver shall not affect the waiving party's rights
with respect to any other or further breach.
17.2 The invalidity, illegality, or unenforceability of any provision of this Agreement,
PC/CITY/FRMS/A92502 7
or the occurrence of any event rendering any portion or provision of this
Agreement void, shall in no way effect the validity or enforceability of any other
portion or provision of the Agreement. Any void provision shall be deemed
severed from the Agreement and the balance of the Agreement shall be construed
and enforced as if the Agreement did not contain the particular portion or
provision held to be void.
ARTICLE 18 - INTEGRATION AND MODIFICATION
18.1 This Agreement (consisting of pages 1 to 9), together with the Proposal
is adopted by City and Consultant as a complete and exclusive statement of the
terms of the Agreement between City and Consultant. This Agreement
supersedes all prior agreements, contracts, proposals, representations,
negotiations, letters, or other communications between the City and Consultant
pertaining to the Services, whether written or oral.
18.2 The Agreement may not be modified unless such modifications are evidenced in
writing signed by both City and Consultant.
ARTICLE 19-SUCCESSORS AND ASSIGNS
19.1 City and Consultant each binds itself and its directors, officers, partners,
successors, executors, administrators; assigns and legal representatives to the
other party to this Agreement and to the partners, successors, executors,
administrators, assigns, and legal representatives of such other party, in respect to
all covenants, agreements, and obligations of this Agreement.
19.2 Neither City nor Consultant shall assign, sublet, or transfer any rights under or
interest in (including, but without limitation, monies that may become due or
monies that are due) this Agreement without the written consent of the other,
except to the extent that the effect of this limitation may be restricted by law.
Unless specifically stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any duty or
responsibility under this Agreement. Nothing contained in this paragraph shall
prevent Consultant from employing such independent consultants, associates, and
subcontractors as he may deem appropriate to assist him/her in the performance of
the Services hereunder and in accordance with Article 6.
19.3 Nothing herein shall be construed to give any rights or benefits to anyone other
than City and Consultant.
ARTICLE 20-GENERAL PROVISIONS
20.1 Notices. All written notices and demands of any kind which either party may be
required or may desire to serve upon the other party in connection with this
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Agreement may be served (as an alternative to personal service) by registered or
certified mail, overnight courier service or facsimile (followed promptly by hard
copy) at the addresses set forth below:
As to City: City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
A ttn: Finance Director
As to Consultant: Maze and Associates Accountancy Corp.
3478 Buskirk Avenue, Suite 215
Pleasant Hill, CA 94523
Attn: Cory Biggs
Any such notice or demand so served by registered or certified mail or overnight
courier shall be sent with postage or charges thereon fully prepaid and addressed
to the party to be served at the addresses set forth above.
20.2 Validity. If any of the provisions of this Agreement or the application thereof to
any persons or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement by the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held invalid
or unenforceable shall not be affected thereby, and every provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
20.3 Attorneys' Fees. In the event of any litigation between the parties hereto to
enforce any of the provisions of this Agreement or any right of either party hereto,
the unsuccessful party to such litigation agrees to pay to the successful party all
costs and expenses, including reasonable attorneys' fees, whether or not incurred
in trial or on appeal, incurred therein by the successful party, all of which may be
included in and as a part of the judgment rendered in such litigation. Any
indemnity provisions herein shall include indemnification for reasonable
attorneys' fees and costs, whether or not suit be brought and including fees and
costs on appeal.
20.4 Time of Essence. Time shall be of the essence hereof.
20.5 Governing Law. This Agreement shall be governed by the laws of California and
the parties hereto agree that any litigation between the parties hereto relating to
this Agreement shall take place (unless otherwise required by law) in a court
located in Santa Clara County, State of California. Each party waives its right to
jurisdiction or venue in any other location.
IN WITNESS THEREOF, the parties hereto have made and executed this Agreement as
of the day and year first above written.
PC/CITY/FRMS/A92502 9
CITY OF CUPERTINO MAZE AND ASSOCIATES
ACCOUNTANCY CORPORATION
By: By:
David W. Knapp Cory Biggs
Title: City Manager Title: Chief Executive Officer
Date: Date:
APPROVED AS TO FORM:
By:
Carol Korade
City Attorney
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