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HomeMy WebLinkAboutRES 19-134RESOLUTION NO. 19-134 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the firm of Whitley Penn, LLP, of Houston, Texas, be and it is hereby designated as the independent auditing firm for the City of Beaumont in the amount of no greater than $99,750.00 for the fiscal year ending September 30, 2019 with an option to renew on a year-to-year basis for a period not to exceed three (3) additional years, upon mutual consent of both parties. Fees for the audits of fiscal years 2020, 2021, and 2022 will be $101,745.00, $103,780.00, and $105,855.00, respectively. The agreement is substantially in the form attached hereto as Exhibit "A" and made a' part hereof for all purposes; and, THAT the City Manager be and he is hereby authorized to execute the contract with Whitley Penn, LLP for the purposes described herein. The meeting at which this resolution was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of July, 2019. 0 APPENDIX E THE STATE OF TEXAS § COUNTY OF JEFFERSON § Professional Services Contract This Professional Services Contract ("Contract") is hereby entered into on this day of 2019 and effective immediately by and between ("Contractor") and the City of Beaumont ("City"), a municipal corporation located in Jefferson County, Texas acting by and through its City Manager of his/her designee. WITNESSETH: That in consideration of the covenants and agreements hereinafter contained and subject to the terms and conditions hereinafter stated, the parties hereto do mutually agree as follows: I. Description of Work For the consideration hereinafter agreed to be paid to the Contractor by the City, Contractor will conduct an independent audit of the basic financial statements of the City for the fiscal year(s) ending September 30, 2019 and other related services ("services") as described in Contractors proposal. The services are to conform in every respect to this Contract and the following documents: • City Request for Proposal (RFP); and • Contractor's Proposal ("Proposal") to the RFP. All documents referred to above are incorporated herein as if written word for word. In the case of conflict the language of any of the documents listed above and this contract, the terms and conditions of this contract shall be final and binding on all parties. In the case of conflict in the language of the RFP and Proposal, the terms and conditions of the RFP shall be final and binding on all parties. II. Term This Contract shall commence on the day and year first written above and will terminate on the issuance of internal control recommendation letters and Single Audit Reports or May 31, 2020, whichever occurs first in accordance with the Proposal. This Contract may be extended on a year to year basis, for a period not to exceed one (1) additional year, upon mutual consent of City and Contractor. If Contractor desires to extend this Contract beyond the initial term, Contractor shall request such extension sixty (60) days prior to the expiration of the initial term of any extension thereof. EXHIBIT "A" Fees will be as follows: Fiscal:; .; .Year ; ;_ ,- � a—Financial and', Comprehensive Audit Fee �, Out -of -Pocket Expenses ,; ° Total -Fee 2019 $ $ $ 2020 $ $ $ 2021 $ $ $ 2022 $ $ $ Total Payment to Contractor will not exceed the amount specified above for each fiscal period, unless other conditions necessitate additional services which must be authorized in advance by the City Manager. Contractor's charges for services are not to exceed similar charges of Contractor for comparable services to other clients. Contractor will submit periodic billings for services rendered on the basis of hours of work completed during the course of the engagement and out of pocket expenses incurred in accordance with Contractor's dollar cost bid proposal. Interim billings shall cover a period of not less than a month. No interest shall ever be due on late payments. Payments to Contractor will be in the amount shown by the monthly statement and other documentation submitted and shall be subject to the approval of the Chief Financial Officer. City shall not be liable under this Contract for any services which are unsatisfactory or which have not been approved by City. Contractor will not be entitled to reimbursement for expenses incurred in accordance with this Contract unless Contractor has obtained the prior written consent of City to incur such expenses. For services not included in this Contract, it is agreed between City and Contractor that a separate agreement shall be entered into to cover such additional services. Any and all charges made to City, other than those specified in this Contract, shall be fully explained in a signed written document delivered to the Chief Financial Officer prior to incurring any charge or fee in excess of the amount stated in this Contract. Such written explanations shall include, but not be limited to: • nature of the additional charge, • • hours, • • hourly rate, • • statement that services provided were not included in basis Contract. -62- basis of such charge, persons involved, costs incurred, and Any out of pocket expenses will require approval of the Chief Financial Officer. Contractor will not incur such expenses until written approval is obtained from the Chief Financial Officer. Contractor and City recognize that the continuation of any contract after the close of any given fiscal year, which ends September 30 each year, of City shall be subject to the approval of the City Manager. III. Scope of Services Contractor agrees to provide the services under this Contract in accordance with the U.S. generally accepted auditing standards (GARS), Government Auditing Standards (GAS), the Single Audit Act of 1984 as currently amended, the provisions of Uniform Guidance and to perform the services to the highest professional standards. IV. City's Responsibility City agrees to: 1) Have City accounting staff provide necessary prepared -by -client working papers normally required for the annual audit and locate and reproduce documents necessary to the audit. 2) Provide adequate work space and physical facilities needed to complete services. V. Staff Requirements Contractor agrees that staff assigned to City's audit shall contain at least one (1) person with two (2) or more years of governmental auditing experience. This person shall be at a senior or higher level. There shall be at least one (1) additional person that has completed a minimum of one (1) full year in governmental auditing. Staff provided on site at City will be computer literate and knowledgeable of spreadsheet software. VI. Schedule A. Contractor agrees to meet the following time deadlines for each fiscal period: 1. All working papers to be prepared by City must be submitted, by written list, to City on or before September 30 of each year together with adequate written explanatory detail as to the purpose of the working papers as well as the methodology to be used in preparing such working papers and agreed-upon timing. -63- 2. Preliminary audit work conducted prior to year end closing may be scheduled by Contractor at a mutually agreeable time and date. 3. Audit fieldwork must be completed by January 31. 4. Year end audit adjustments and trial balances are to be submitted to City no later than February 28. 5. The completed CAFR and Single Audit Report drafts must be presented to the City Council by March- 31. 6. The management letter shall be submitted no more than thirty (30) calendar days after the submission of the CAFR. 7. Copies of all working papers or schedules shall be maintained by the Contractor for the latter of five (5) years acceptance by Council and all relevant Federal and State agencies or the time period required by any funding sources. B. The audit shall not be considered complete until the relevant Federal and State agencies have approved the audit plan and accepted the single audit report in writing. VII. Termination It is agreed and fully understood that City may, at its option and without prejudice to any other remedy it may be entitled to at law or in equity, cancel or terminate this Contract upon thirty (30) days' written notice to Contractor with the understanding that immediately upon receipt of said notice, all work being performed thereunder shall cease. Contractor shall be compensated in accordance with the terms of this Contract for all services performed through the date of receipt of notice provided that the City shall not be obligated to pay for any work which is unsatisfactory or not submitted in compliance with the terms of this Contract. Contractor shall deliver all original source documents belonging to City immediately after notice of termination of this Contract has been received by Contractor. VIII. Ownership of Documents All original source documents given to Contractor under the Contract are the sole property of City and shall be delivered to City without restriction on future use. IX. Confidential Work No reports, information, project evaluation, data or any other documentation developed by, given to, prepared by or assembled by Contractor under this Contract shall be disclosed or made available to any individual or organization by Contractor without the express prior written -64- approval of City. X. Contractors Liability Acceptance by City of Contractor's reports shall not constitute or be deemed a release of the responsibility and liability of Contractor, its employees, agents of associates for the accuracy and competency of their reports, information and other documents or services; nor shall acceptance or approval be deemed to be the assumption of such responsibility by City for any defect, error, or omission in the documents prepared by Contractor, its employees, agents or associates. XI. Non -Discrimination As a condition of this Contract, Contractor covenants that Contractor will take all necessary actions to insure that, in connection with any work under this Contract, Contractor, its associates and subcontractors, will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, ancestry, place of birth, or disability, either directly, indirectly or through contractual or other arrangements. In this regard, Contractor shall keep, retain and safeguard all records relating to this Contract or work performed thereunder place of birth, or disability, either directly, indirectly or through contractual or other arrangements. In this regard, Contractor shall keep, retain and safeguard all records relating to this Contract or work performed thereunder for a minimum period of five (5) years from the final contract completion, with full access allowed to authorized representatives of City, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. XII. Notices All notices, communications and reports required or permitted under this Contract shall be personally delivered or mailed to the respective parties by depositing same in the United States mail, postage prepaid, at the address shown below, unless and until either party is otherwise notified in writing by the other party, at the following addresses. Mailed notices shall be deemed communicated as of five (5) days after mailing. If intended for City Mail to: Todd Simoneaux, CPA Chief Financial Officer City of Beaumont P.O. Box 3827 Beaumont, TX 77704-3827 f'W Or Deliver to: Todd Simoneaux, CPA Chief Financial Officer City of Beaumont 801 Main St., Ste. 320 Beaumont, TX 77701 If intended for Contractor, Mail to: XIII. Applicable Law This Contract -is entered into subject to the Charter and Ordinances of City as they may be amended from time to time and is subject to and is to be construed, governed and enforced under all applicable Federal and State laws. Contractor will.make any and all reports required by Federal, State or local law, including but not limited to, proper reporting to Internal Revenue Service, as required in accordance with the Contractor's income. Situs of this Contract is agreed to be Jefferson County, Texas for all purposes including performance and execution. XIV. Severability If any of the terms, provisions, covenants or conditions of this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of this Contract. All provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Any other provisions of this Contract shall be consider as if such invalid, illegal or unenforceable provision had never been contained in this Contract. XV. Default If at any time during the term of this Contract, Contractor shall fail to commence work, in accordance with the provisions of this contract, fail to diligently provide services in an efficient, timely and careful manner and in strict accordance with the provisions of this Contract, fail to use adequate number or quality of personnel to complete the work or fail to perform any of its obligations under this Contract, then City shall have the right, if Contractor shall not cure any such default after fifteen (15) days' written notice thereof, to terminate this contract and complete the work in the manner it deems desirable, including engaging the services of other parties therefore. Any such act by City shall not be deemed a waiver of any right or remedy of City. If, after exercising any such remedy, the cost to the City of the performance of the balance of the work is in excess of that part of the Contract sum which has no theretofore been paid to Contractor thereunder, Contractor shall be liable for and shall reimburse the City for such expenses. XVI. Monies Withheld When City has reasonable grounds for believing that Contractor will be unable to perform this Contract fully and satisfactorily within the time fixed for performance, or that meritorious claim exists or will exist against Contractor or City arising out of the negligence, error or omission of Contractor or Contractor's breach of any provision of this Contract, then City may withhold payment of any amount otherwise due to Contractor under this Contract. Any amount so withheld may be retained by City for that period as it may deem advisable to protect City against any loss. City may, after written notice to Contractor, apply such money in satisfaction of any claim(s). This provision is intended solely for the benefit of City and no other person or entity shall have any right against City or claim against City by reason of City's failure or refusal to withhold monies. No interest shall be payable by City on any amounts withheld under this provision. This provision is not intended to limit or in any way prejudice any other right of City. 41 XVII. Indemnification Contractor shall and does hereby agree to indemnify and hold harmless City, its officers, agents and employees from any and all damages, loss or liability of any kind whatsoever by reason of death or injury to property to third persons caused by negligent act, error or omission of Contractor, its officers, agents, employees, invitees or other persons for whom Contractor is legally liable with regard to the performance of this Contract. Contractor will, at its own expense, defend, pay on behalf of and protect City, its officers, agents and employees against any and all such claims and demands. XVIII. Insurance A. Contractor shall at Contractor's own expense, purchase and keep in force during the term of this Contract such insurance as set forth below. Contractor shall not commence work -67- under this Contract until Contractor has obtained all insurance required and such insurance has been approved by City. All insurance policies provided under this Contract shall be written on an "occurrence basis" unless otherwise indicated. The insurance requirements shall remain in effect throughout the term of this Contract. Professional liability insurance — including contractual liability in an amount not less than $500,000. 2. Commercial general liability insurance - $500,000 combined single limit per occurrence for bodily injury, personal injury and property damage; this policy shall have no coverage removed by exclusion. Automobile liability - $500,000 combined single limit per accident for bodily injury and property damage; coverage should be provided as a "Code 1", any auto. 4. Workers compensation and employers' liability policy limits shall meet the minimum requirements defined in the Texas Workers' Compensation Commission. B. Other Insurance Provisions City shall be named as an additional insured on the commercial general liability and automobile liability insurance policies. These insurance policies shall contain the appropriate additional insured endorsement signed by a person authorized by that insurer to bind coverage on its behalf. 2. Should professional liability coverage be provided on a "claims -made" form, Contractor must maintain this policy for a period of four (4) years after completion of this contract or purchase extended reporting period or "tail" coverage. 3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled or reduced in coverage or in limits except after thirty (3 0) days prior to written notice has been provided to City. 4. Insurance is to be placed with insurers with a Best rating of no less than "AMI". The company must also be duly authorized to transact business in the State of Texas. 5. Workers compensation and employer's liability coverage — The insurer shall agree to waive all rights of subrogation against City, its officials, employees and volunteers for losses arising from the activities under this Contract. -68- 6. Certificates of insurance completed on the Accord form only and endorsements effecting coverage required by this clause shall be forwarded to: Purchasing Manager City of Beaumont P.O.. Box 3827 Beaumont, TX 77704-3827 XIX. Remedies No right or remedy granted herein or reserved to the parties is exclusive of any other right or remedy herein granted by law or equity provided or permitted; but each shall be cumulative of every other right or remedy given thereunder. NO covenant or condition of this Contract may be waived without consent of the parties. Forbearance or indulgence by either parry shall not constitute a waiver of any covenant or condition to be performed pursuant to this Contract. XX. Independent Contractor Contractor covenants and agrees that he/she is an independent contractor and not an officer, agent, servant or employee of City; that Contractor shall have exclusive control of and exclusive right to control the details of the work performed thereunder and all persons performing same shall be responsible of the acts and omissions of its officers, agents, employees, contractors, subcontractors and consultants; the doctrine of respondent superior shall not apply as between City and Contractor, its officers, agents, employees, contractors, subcontractors and consultants; and nothing herein shall be construed as creating a partnership or joint enterprise between City and Contractor. XXI. Entire Agreement This Contract embodies the complete agreement of the parties hereto, superseding all oral, written, previous and contemporary agreements between the parties relating to matters herein, and except as otherwise provided herein, cannot be modified without written agreement of the parties. XXII. Successors and Assigns City and Contractor each bind themselves, their successors, executors, administrators and assigns to the other party in this Contract. Neither City nor Contractor will assign, sublet, subcontract or transfer any interest in this Contract without the written consent of the other party. No assignment, delegation of duties or subcontract under this Contract will be effective without the written consent of the City. IWE XXIH. Non -Waiver It is further agreed that one (1) or more instances of forbearance by City in the exercise of its rights herein shall in no way constitute a waiver thereof. XXIV. Headings The headings of this Contract are for the convenience of reference only and shall not affect in any manner any of the terms and conditions thereof. XXV. Changes City may, from time to time, require changes in the scope of services to be performed under this Contract. Such changes as are mutually agreed by and between City and Contractor shall be incorporated by written modification to this Contract. XXVI. Performance of Services Contractor, its associates and employees shall perform all services called for in this Contract. Contractor covenants and agrees that all of its associates and employees who work on the engagement shall be fully qualified to undertake same and competent to perform the services described in this Contract. XXVH. Conflict of Interest Contractor covenants and agrees that Contractor, its associates and employees will have no interest, and will acquire in interest either direct or indirect, which will conflict in any manner with the performance of the services called for under this contract. All activities, investigations and other efforts made by Contractor pursuant to this Contract will be conducted by employees, associates or subcontractors of Contractor. XXVIII. No Third Party Beneficiary For purposes of this contract, including its intended operation and effect, the parties (City and Contractor) specifically agree and contract that: 1. The Contractor only affects matters/disputes between the parties to this Contract and is in no way intended by parties to benefit or otherwise affect any third person or entity, notwithstanding the fact that such third person or entities may be in a contractual relationship with City or Contractor or both; and -70- 2. The terms of this Contract are not intended to release, either by contract or operation of law, any third person or entity from obligations owing by them to either City or Contractor. XXIX. Venue The parties to this Contract agree and covenant that this Contract will be enforceable in Beaumont, Texas and that if legal action is necessary to enforce this Contract, exclusive venue will lie in Jefferson County, Texas. XXX. Procurement of Goods/Services from Beaumont Businesses and/or Historically Underutilized Businesses In performing this Contract, Contractor agrees to use diligent efforts to purchase goods/services from Beaumont businesses whenever such goods/services are comparable in quality and price. As a matter of policy with respect to City contracts and procurements, City also encourages the use, if applicable, of qualified contractors, subcontractors and suppliers where at least fifty one percent (51 %) of the ownership of such contractor, subcontractor or supplier is vested in ethnic minorities or women. The City MBE Policy set out a goal of 20% minority participation for construction contracts greater than $50,000 and 20% for professional services contracts greater than $25,000. In the selection of subcontractors, suppliers or other persons in organizations proposed for work on this Contract, the Contractor agrees to consider this policy and to use its reasonable and best efforts to select and employ such company or persons for work on this Contract. In witness whereof, the parties hereunto set their hands by their representatives duly authorized on this day and year first written above. CONTRACTOR By Signature Printed/Typed NAME Printed/Typed TITLE Tax Identification Number Witness: -71- CITY OF BEAUMONT Signature KYLE HAYES Printed/Typed NAME CITY MANAGER Printed/Typed TITLE Tax Identification Number Attest: Printed/Typed NAME Printed/Typed TITLE THE STATE OF TEXAS COUNTY OF JEFFERSON § TINA BROUSSARD Printed/Typed NAME CITY CLERK Printed/Typed TITLE Contractor Acknowledgment Before me, a Notary Public in and for the State of Texas, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed same for and as the act and deed of , as , thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. Given under my hand and seal of office this the day of Commission Expires THE STATE OF TEXAS COUNTY OF JEFFERSON 2019. Notary Public in and for the State of Texas Notary's Printed Name City Acknowledgement Before me, a Notary Public in and for the State of Texas, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that same was the act of said City of Beaumont, Texas, a municipal corporation of the State of Texas, and as the City Manager thereof, and for the purposes and consideration therein expressed in the capacity therein stated. Given under my hand and seal of office this the day of Commission Expires 2019. Notary Public in and for the State of Texas Notary's Printed name -72-