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HomeMy WebLinkAboutRevenue & Cost Specialists LLC; 2006-10-20;AMENDMENT NO. 1 TO AGREEMENT FOR PARTIAL UPDATE OF FEES AND COST ALLOCATION PLAN SERVICES (Revenue & Cost Specialists, LLC) Amendment No. 1 is entered into and effective as of the _ day of , 2008, amending the agreement dated October 20, 2006 (the_ "A<£«ement>'y by and between the City of Carlsbad, a municipal corporation, ("City"), and Revenue & Cost Specialists, LLC ("Contractor"). RECITALS A. The Parties executed Amendment No. 1 to the Agreement for Partial Update of Fees and Cost Allocation Plan Services; and B. The Parties desire to alter the Agreement's scope of work to Amendment No. 1 ; and C. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1 . In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis not-to-exceed $5,000. Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by November 30, 2008. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR "By: (e-mail address) (sign here) (print name/title) (e-mail address) CITY OF CAR1S corporation/or th municipal te of Caliwnia If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. 'Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD Br , pity Attorney Jeputy City Attorney City Attorney Approved Version #05.22.01 REVENUE & COSJ SPECIALISTS, L.L.C. 2545 Chapman Avenue, Suite 103 Fullerton, California 92831 (714)992-9020 October 9, 2007 David Barnum, Finance Manager City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Dear Dave, This letter is in response to our phone conversation regarding the City's interest in an update to the Cost Allocation Plan (CAP). Scope of Work RCS will perform the following based on data provided by the City: 1. Obtain CAP Workpapers and Budget or Actual Costs from City. 2. Enter updated information on organizational structure and account codes. 3. Determine if any new subpools need to be created or whether existing subpools should be deleted. 4. Enter actual cost information for subpools. 5. Obtain updated allocation factors from City. 6. Enter updated allocation factors 7. Prepare a draft CAP report for the City to review. 8. Attend a meeting with staff at the City to review the updated CAP report to identify any necessary changes. 9. Update the Cost Allocation files for changes identified in Step #8. 10. Print two final CAP reports for both the Total & A87 versions. City of Carlsbad - CAP Update Proposal Page 2 11. Prepare a set of bound workpapers for the updated CAP. 12. Provide the City with updated data files for the software. RCS agrees to perform the above work in a timely and professional manner. RCS also warrants that our software generates accurate results. Nevertheless, it is the City's responsibility to provide us with accurate numbers for input and to review the results for reasonableness given staffs knowledge of City operations. Timing RCS understands that the City wants the project completed so that the results would be available by December 31, 2007. RCS agrees that this deadline is reasonable given a timely start to the project and timely responses from City staff to RCS requests for information. The following is a project timeline: STEP(S) 1 2,3,4 5 6,7 8 9,10 11,12 DESCRIPTION Obtain data from City Update data files on computer Obtain final allocation factors from City Final data entry and preparation of draft in PDF format Meeting at City to review draft - Week of: Make final changes to data & prepare final Reports Return workpapers and files to City DUE DATE 10-17-07 10-26-07 10-31-07 11-2-07 11-5-07 11-16-07 by 12-31-07 Fixed Fee RCS agrees to perform the above scope of work for a fixed fee of $5,000 with half billed upon the completion of step #7 and the balance at the end of the project. Should the City request any services beyond the above Scope of Work, RCS will bill at $150 per hour. Staffing Rick Kermer will manage the project and perform the work. City of Carlsbad - CAP Update Proposal Page 3 RCS looks forward to again being of service to the City of Carlsbad. Sincerely, RICK KERMER, CPA President AGREEMENT FOR PARTIAL UPDATE OF FEES AND COST ALLOCATION PLAN SERVICES REVENUE & COST SPECIALISTS, LLC THIS AGREEMENT is made and entered into as of the c day of , 2006, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and REVENUE & COST SPECIALIST, LLC ("Contractor"). RECITALS A. City requires the professional services of a contractor that is experienced in fee updates. B. Contractor has the necessary experience in providing professional services and advice related to fee updates. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in Contractor's letter dated August 24, 2006 (attached Exhibit "A"), which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be at a cost not to exceed thirteen thousand dollars ($13,000). No other compensation for the Services will be allowed except for items covered by subsequent City Attorney Approved Version #04.01.02 amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the City Attorney Approved Version #04.01.02 Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. City Attorney Approved Version #04.01.02 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. City Attorney Approved Version #04.01.02 4 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Natalia Kornoukhova Rick Kermer Management Analyst President Finance Department Revenue & Cost Specialist, LLC City of Carlsbad 2545 E. Chapman Avenue, Suite 103 1635 Faraday Avenue Fullerton, CA 92831 Carlsbad, CA 92008 Phone No. (714) 992-9020 Phone No. (760) 602-2498 Email rkemer@cs.com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. City Attorney Approved Version #04.01.02 Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. City Attorney Approved Version #04.01.02 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.. the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor City Attorney Approved Version #04.01.02 acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONT Tsign here) Rick Kermer. President CITY OF CARLSBAD, a municipal corporation-of the State of California (print name/title) rkermer@cs.com T\ RAYMOND R.PATCHETT City Manager ATTEST: Eric Johnson. Partner (print name/title) eric@ revenuecost.com (e-mail address) zb, ° LORfeAINE M. WOOD ' City Clerk 8 City Attorney Approved Version #04.01.02 If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. 'Group A. "Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: I BALU£ity-Attorney /WB\ Deputy City Attorney City Attorney Approved Version #04.01.02 s , REVENUE & COST SPECIALISTS, L.L.C. 2545 Chapman Avenue, Suite 103 Fullerton, California 92831 (714)992-9020 August, 24, 2006 David Barnum, Budget Manager City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Dear David, This letter is in response to our phone conversations over the last several months regarding the City's interest in performing a partial update. This proposal and price are identical to the proposal and price given to Cheryl Gerhardt on July 24, 2003. Scope of Work RCS will perform the following: 1. Attend an initial meeting with staff to discuss the project goals and approaches. Obtain updated information on salaries, benefits, operating expenses and cost allocation factors. If this meeting is unnecessary, City can use this meeting for RCS to attend the Council worksession discussing the adoption of the fees. 2. Input updated salary, benefits and cost information into the Municipal Business System. 3. Input updated allocation factors into the Cost Allocation Module and send updated data files to the City for printing draft Cost Allocation Plan (CAP) reports. 4. Attend a meeting with staff to review the updated Cost Allocation reports to identify any necessary changes. 5. Update the Cost Allocation files for changes identified in Step #4 and send updated files to the City for printing of final CAP reports. 6. Update service time based on data provided by staff. Update Proposal - City of Carlsbad Page 2 7. Create new services based on data provided by staff. 8. Update service revenues, units, current fee and description based on data provided by the City staff. Update service suggested fees based on the Council-adopted percentage of recovery for each service. Provide staff with updated files for printing a draft service cost detail report. 9. Attend a meeting at the City to review the draft service cost report and to obtain any changes necessary to that report. 10. Input revisions based on the meeting in Step #7. 11. Provide staff with updated files incorporating all staff changes for printing the final service cost detail report. 12. Provide training to staff on the software during trips to the City for the scheduled meetings in Steps #1, 4, & 9. RCS agrees to perform the above work in a timely and professional manner. RCS also warrants that our software generates accurate results. Nevertheless, it is the City's responsibility to provide us with accurate numbers for input and to review the results for reasonableness given staff's knowledge of City operations. Timing RCS understands that the City wants the project completed so that the results would be available by December 15, 2006. RCS agrees that this deadline is reasonable given a timely start to the project and timely responses from City staff to RCS requests for information. Fixed Fee RCS agrees to perform the above scope of work for a fixed fee of $10,350. RCS will bill $5,000 upon the completion of Step #5 and will bill the balance upon completion of Step #11. This price and the Proposal are good until September 30, 2006. Should the City wish RCS to print and bind the two draft (Steps #3 & 8) and final (Steps #5 & 11) reports, RCS will bill the City our actual printing, binding and shipping costs plus a 10% overhead for handling. It is estimated that each report that is bound and shipped would cost about $30. Should the City wish that a RCS principal attend any meeting in addition to the three scheduled meetings in Steps #1,4 & 9, RCS will bill for meeting preparation (if necessary), travel (two hours) and attendance time at $125 per hour plus $0.445 per mile. Update Proposal - City of Carlsbad Page 3 Staffing Rick Kermer will manage the project and attend staff meetings. He will be assisted as necessary to achieve the project time-line by Eric Johnson, Principal of PCS. PCS looks forward to again being of service to the City of Carlsbad. Sincerely, RICK KERMER, CPA President