Ordinance No. 8,207•
980226 -1
ORDINANCE NO. 8207
AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO A MEMORANDUM OF
EXTENSION OF THE AGREEMENT FOR FINANCIAL AUDITING SERVICES WITH
TILLER AND COMPANY, P.C.; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN IN AN AMOUNT NOT TO EXCEED FIFTY -EIGHT THOUSAND ONE
HUNDRED FORTY AND NO 1100 DOLLARS ($58,140.00) FOR EACH YEAR OF
THE CONTRACT; MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs
the City Manager and the City Clerk of the City of Baytown to execute and attest to a Memorandum of
Extension of the Agreement for Financial Auditing Services with Tiller & Company, P.C. A copy of said
contract is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Tiller &
Company, P.C., in an amount not to exceed FIFTY -EIGHT THOUSAND ONE HUNDRED FORTY
AND NO 1100 DOLLARS ($58,140.00) pursuant to the contract.
Section 3: That pursuant to the provision of Texas Local Government Code Annotated
§252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of FIFTEEN THOUSAND AND NO /100 DOLLARS ($15,000.00) or
less, subject to the provision that the original contract price may not be increased by more than twenty-five
percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor
to such decrease.
Section 4: This ordinance shall take effect immediately from and after is passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 26h day of February, 1998.
ATTEST:
Re'' /'
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
IN-900 RAMIREZ,`SR., City
1M y D o c u m e n is \Co uncil \M e e ti ng s1 Feb ru a r7
Zia c e
PETE C. ALFARCf, Mayor
® MEMORANDUM OF EXTENSION
OF THE
AGREEMENT FOR FINANCIAL AUDITING SERVICES
STATE OF TEXAS §
COUNTY OF HARRIS §
WHEREAS, on the 10th day of August, 1995, the City of Baytown, a municipal corporation
located in Harris and Chambers Counties, Texas, hereinafter referred to as the "City," accepted the
proposal, under the terms and conditions specified in the Request for Proposal No. 0695 -01, of Tiller
and Company, P.C., a Texas corporation, hereinafter referred to as the "Company," for the
performance of financial auditing services for the City of Baytown, Texas, hereinafter the
"Agreement "; and
WHEREAS, the Agreement encompassed financial auditing services for the 1995, 1996, and
1997 fiscal years; and
WHEREAS, the Company and the City desire to extend the Agreement under the same terms
and conditions for fiscal years 1998, 1999 and 2000;
NOW THEREFORE, for and in consideration of the foregoing premises and the mutual
covenants and agreements herein contained, the Parties hereto do hereby mutually agree as follows:
I.
Unless a different meaning clearly appears from the context, words and phrases as used in
this Memorandum of Extension of the Agreement for Financial Auditing Services, hereinafter
referred to as the "Memorandum," shall have the same meanings as in the Agreement.
II.
Pursuant to the section entitled "Contractual Arrangements" of the Agreement, the City and
the Company hereby renew the Agreement for financial auditing services to include and cover the
1998, 1999 and 2000 fiscal years. The Company understands and agrees that such renewal shall be
subject to the same terms and conditions as found in the Agreement unless otherwise provided
herein.
Memorandum of Extension, Page I
ORBIT A
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III.
The Company hereby commits to performing the financial auditing services required by the
City's Director of Finance at the fees stated below for each audit:
1998 $ 37,100.00 $ 6,030.00 $ 7,000.00 $ 8,010.00 $ 58,140.00
1999 $ 37,100.00 $ 6,030.00 $ 7,000.00 $ 8,010.00 $ 58,140.00
2000 $ 37,100.00 $ 6,030.00 $ 7,000.00 $ 8,010.00 $ 58,140.00
$174,420.00
IV.
THE COMPANY AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND
DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS,
AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEYS' FEES, FOR DAMAGE TO ANY PROPERTY, LOSS
OF REVENUE, OR ANY OTHER INJURIES OR DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE SERVICES PERFORMED BY THE COMPANY PURSUANT
TO THIS MEMORANDUM, THE CONDUCT OR MANAGEMENT OF THE COMPANY'S
ACTIVITIES, OR FROM ANY ACT OR OMISSION BY THE COMPANY, ITS AGENTS,
EMPLOYEES, OR SUBCONTRACTORS, WHERE SUCH DAMAGES, LOSSES OR
INJURIES ARE CAUSED BY (I) THE JOINT NEGLIGENCE OF THE CITY AND ANY
OTHER PERSON OR ENTITY OR (II) THE JOINT OR SOLE NEGLIGENCE OF THE
COMPANY. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
THE COMPANY AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS INDEMNITY BY THE COMPANY TO INDEMNIFY AND PROTECT
THE CITY FROM (I) THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE,
WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING
INJURY, DEATH OR DAMAGE AND /OR (II) THE CONSEQUENCES OF THE
COMPANY'S SOLE OR JOINT NEGLIGENCE. FURTHERMORE, THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE
CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY
WHERE THE INJURY, LOSS OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE
OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY.
In the event that any action or proceeding is brought against the City by reason of any matter
from which the City is indemnified herein, the Company further agrees and covenants to defend the
action or proceeding by legal counsel acceptable to the City. This article shall survive the expiration
or termination of this Memorandum.
Memorandum of Extension, Page 2
® V.
The City shall pay the Company only for services actually performed and accepted. Such
payment shall be within thirty (30) days after the City's receipt of an invoice for such services or
upon receipt and acceptance of the services, whichever is later.
VI.
The Company hereby assumes all liability and responsibility for injuries, claims or suits for
damages to person or property, of whatever kind or character, whether real or asserted, occurring
during the term of this Memorandum, arising out of or by reason of the services to be provided by
the Company. This article shall survive the expiration or termination of this Memorandum.
VII.
The Company shall provide the City with Certificates of Insurance evidencing the coverages
required in Exhibit "A," which is attached hereto and incorporated herein for all intents and
purposes.
VIII.
The Company shall not sell, assign, or transfer any of its rights or obligations under this
Contract, in whole or in part, without prior written consent of the City.
IX.
The City, besides all other rights or remedies it may have, shall have the right to terminate
this Memorandum with or without cause upon ten (10) days' written notice from the City Manager
to the Company of the City's election to do so. Furthermore, the City may immediately terminate
this Memorandum if the Company breaches the terms hereof. A breach of this Memorandum shall
include, but not be limited to, the following:
failing to pay insurance premiums, claims or other charges;
2. failing to pay any payments due the City, State or Federal Government from the
Company or its principals, including, but not limited to, any taxes, fees, assessments,
liens, or any payments identified in this Agreement;
3. the institution of voluntary or involuntary bankruptcy proceeding against the
® Company;
Memorandum of Extension, Page 3
® 4. the dissolution of the Company;
5, the violation of any provision of this Agreement; and/or
6. the abandonment of the Agreement or any portion thereof and discontinuance of the
Company's services or any portion thereof, as determined by the City Manager.
Upon delivery of any notice of termination required herein, the Company shall discontinue
all services in connection with the performance of the Agreement. Within ten (10) days after receipt
of the notice of termination, the Company shall submit a final statement showing in detail the
services satisfactorily performed and accepted and all other appropriate documentation required
herein for payment of services.
X.
It is expressly understood and agreed by both the Company and the City that this
Memorandum for fiscal years 1999 and 2000 are contingent upon funds being appropriated by the
City Council of the City of Baytown for financial auditing services. Should funds not be
appropriated, this Memorandum shall become null and void and both parties shall be relieved of any
and all obligations hereunder without liability to the other party or to any other person or entity, with
the exception of the liabilities assumed by the Company pursuant to articles IV and VI hereof.
XI.
Unless otherwise provided in this Contract, any notice provided for or permitted to be given
must be in writing and delivered in person or by depositing same in the Unites States mail, postpaid
and registered or certified, and addressed to the party to be notified, with return receipt requested,
or by delivering the same to an officer of such party. Notice deposited in the mail as described
above shall be conclusively deemed to be effective, unless otherwise stated in this Contract, from
and after the expiration of three (3) days after it is so deposited.
For the purpose of notice, the addresses of the parties shall be as follows unless properly
changed as provided for hereinbelow:
CITY OF BAYTOWN
Attn: City Manager
P. O. Box 424
Baytown, Texas 77522 -0424
0 Memorandum of Extension, Page 4
® TILLER AND COMPANY, P.C.
Attn: Mark R. Tiller, CPA
1300 Rollingbrook, Suite 507
Baytown, TX 77522 -0563
Each party shall have the right from time to time at any time to change its respective address
and each shall have the right to specify a new address, provided that at least fifteen (15) days' written
notice is given of such new address to the other party.
XII.
Failure of either party hereto to insist on the strict performance of any of the agreements
herein or to exercise any rights or remedies accruing thereunder upon default or failure of
performance shall not be considered a waiver of the right to insist on and to enforce by an
appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or
remedy occurring as a result of any future default or failure of performance.
XIII.
This Memorandum shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of its execution or performance.
The place of making and the place of performance for all purposes shall be Baytown, Harris County,
Texas.
XIV.
All parties agree that should any provision of this Memorandum be determined to be invalid
or unenforceable, such determination shall not affect any other term of this Memorandum, which
shall continue in full force and effect.
XV.
This Memorandum shall not bestow any rights upon any third party, but rather, shall bind
and benefit the Company and the City only.
XVI.
This Memorandum together with the Agreement contains all the agreements of the parties
relating to the subject matter hereof and is the full and final expression of the agreement between the
parties.
Memorandum of Extension, Page 5
The provisions of this Memorandum and the provisions of the Agreement should be read
together and construed as one agreement provided that, in the event of any conflict or inconsistency
between the provisions of this Memorandum and the provisions of the Agreement, the provisions
of this Memorandum shall control.
XVII.
This Memorandum along with the Agreement shall in all respects be interpreted and
construed in accordance with and governed by the laws of the State of Texas and the City, regardless
of the place of its execution or performance. The place of making and the place of performance for
all purposes shall be Baytown, Harris County, Texas.
XVIII.
The officers executing this Memorandum on behalf of the parties hereby represent that such
officers have full authority to execute this Memorandum and to bind the party he represents.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one and
the same agreement, this day of February, 1998.
CITY OF BAYTOWN, TEXAS
BOBBY ROUNTREE, City Manager
ATTEST:
EILEEN P. HALL, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
Memorandum of Extension, Page 6
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TILLER AND COMPANY, P.C.
MARK R. TILLER, CPA
Managing Shareholder
STATE OF TEXAS
COUNTY OF HARRIS
Before me on this day personally appeared Mark R. Tiller, in his capacity as Managing
Shareholder of Tiller and Company, P.C., on behalf of such corporation, known to me to be the
person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of February, 1998.
Notary Public in and for the State of Texas
c:klh79\ finance\ FinancialAuditingServicesExtension \ExtensionofTillerAgreement
Memorandum of Extension, Page 7
0 Exhibit A: Minimum Insurance Requirements
Throughout the term of this Agreement, the COMPANY at its own expense shall
purchase, maintain and keep in force and effect insurance against claims for injuries to
or death of persons or damages to property which may arise out of or result from the
COMPANY's operations and/or performance of the work under this Agreement, whether
such operations and /or performance be by the COMPANY, its agents, representatives,
volunteers, employees or subcontractors or by anyone directly or indirectly employed
by any of them, or by anyone for whose acts any of them may be liable.
The COMPANY's insurance coverage shall be primary insurance with respect to the
CITY, its officers, agents and employees. Any insurance or self - insurance maintained
by the CITY, its officials, agents and employees shall be considered in excess of the
COMPANY's insurance and shall not contribute to it. Further, the COMPANY shall
include all subcontractors as additional insureds under its commercial general liability
policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverage for subcontractors shall be subject to all of the requirements stated herein.
The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this contract:
Commercial General Liability (CGL)
General Aggregate: $1,000,000
Per Occurrence: $500,000
Fire Damage: $50,000
a. Coverage shall be at least as broad as ISO CG 00 01 10 93
b. No coverage shall be excluded from standard policy without notification of
individual exclusions being attached for review and acceptance.
Errors & Omissions (E &O)
Limit: $250,000
a. Claims -made form is acceptable. Coverage will be in force for two (2) years after
project is completed.
Workers' Compensation: Statutory Limits
Employer's Liability: $500,000
a. Waiver of Subrogation Required.
Upon execution of this contract, COMPANY shall file with the CITY valid Certificates of
Insurance and endorsements acceptable to the CITY. Such Certificates shall contain a
provision that coverage afforded under the policies will not be canceled, suspended,
voided, or reduced until at least sixty (60) days' prior written notice has been given to
the CITY via certified mail, return receipt requested.
The COMPANY shall also file with the CITY valid Certificates of Insurance covering all
subcontractors.
The following general requirements are applicable to all policies:
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a. AM Best Rating of A:VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be
accepted.
c. Liability policies will be on occurrence form. E & O can be on claims -made form.
d. Each insurance policy shall be endorsed to state that coverage shall not be suspended,
voided, canceled, or reduced in coverage or in limits except after sixty (60) days prior
written notice by certified mail, return receipt requested, has been given to City of Baytown.
e. City of Baytown, its officials and employees are to be added as Additional Insured to
liability policies.
f. Upon request of and without cost to City of Baytown, certified copies of all insurance
policies and /or certificates of insurance shall be furnished to City of Baytown's
representative. Certificates of insurance showing evidence of insurance coverage
shall be provided to City of Baytown's representative prior to execution of this
agreement.
g. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any
and /or all insurance coverage shall be furnished to City of Baytown's
representative.
h. City of Baytown reserves the right to reject any proposal that does not meet the
minimum insurance requirements outlined above.
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Tiller & Co. Audfting ServicesMLLAUDT.DOC