Loading...
Ordinance No. 11,309ORDINANCE NO. 11,309 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A LETTER AGREEMENT WITH PERZEL & LARA TO PERFORM INVESTIGATIVE SERVICES IN CONNECTION WITH CERTAIN FINANCIAL TRANSACTIONS OF THE CITY'S HURRICANE IKE DEBRIS MONITORING FIRM BECK DISASTER RECOVERY; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED FORTY -FIVE THOUSAND AND NO /100 DOLLARS ($45,000.00); MAKING OTHER PROVISIONS RELATED THERE-1-0; 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 hereby authorizes and directs the City Manager to execute a letter agreement with Perzel & Lara to perform investigative services in connection with certain financial transactions of the City's Hurricane Ike debris monitoring firm Beck Disaster Recovery. A copy of the letter agreement 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 Perzel cot. Lara in an amount not to exceed FORTY -FIVE THOUSAND AND NO /100 DOLLARS ($45,000.00); for services in accordance with the letter agreement authorized in Section 1 hereinabove. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less. provided that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative Baytown this the 25'h day of February. 2010. APPROVED AS TO FORM: S ACIO RAMIREZ, SR_. City orney K_\Karen\Ciles \Ci,y Counci1\C1rdinances120 l OlF.b --y ?5 \l'erze18l_arai_olterrlgreement. doe of the City Council of the City of DONCARLOS, Mayor Exhibit "A" February is, 2010 William Vola Baytown Office of Emergency Management 205 E. Wye Drive Baytown, TX 77552 Re: Forensic Investigation of BDR Dear Mr. Vola, At your request, I am remitting this letter regarding the forensic services we are asked to perforni for the City of Baytown. This letter will serve to confirm our understanding and agreement whereby the City is retaining this firm to perform investigative services in connection with an examination of certain financial transactions. Pursuant to your request, the scope of otir services will cover the examination and reconciliation of BDR timecards, BDR payroll classifications and BDR mileage reimbursement clainns against BIER payroll records front ADP. Om- primary objective is to assess the likelihood that certain financial improprieties have occurred. In order to perform our analysis, we will request access to all accounting data and will require a meeting and cooperation with staff and management. We will document the results of the initial phase of this engagement in a sunlmaly report, which will be provided to you \within till days of the execution of this letter agreement At the completion, we will document our findings in a formal report. If our findings and conclusions serve as a basis for a claim resulting in a lawsuit, such report may be utilized in a manner you deem appropriate. Fee. The fee for services shall not exceed Forty Five Thousand DOLLARS ($ 45,000.00) based upon our current rate schedule. Our current standard hourly rates for staff range from $85 to $150. Principals are billed at $250 per hour for work production and $300 per hour for deposition and trial testimony. Out of Pocket E.vl)enses. Any out of pocket expenses will be billed to you and may include such items as travel, copies, long distance phone calls, postage, computerized data base research and charges for other research materials as necessary to complete the engagement. These additional charges will be separately stated on all billings and shall not exceed Five Hundred DOLLARS ($ 500), without your prior written authorization. All expenses associated with meals and lodging, however, ►nest be approved in writing by you prior to its incurring any expense associated therewith; otherwise, you shall not be liable and we shall not make a claim against you for any such expenses. PI:R /.E11, & LUU FORENSIC CPV-s, VA. CrfifirdPublir.leivrartrurl.. • an..iur +rsC%Ntsrr6rnN.. • Crrlilir•1liduatirut.Dealr�l.+ Crr /ifirr! l un rn.ir l itrrmr(rrLLral t: +/a • C'rrli jirrl ii• utrf D 7• rr• nrr it rxd r.: /.c • Llti•rrl i.nr .wrp/rrr! • / n'ud %rent J16w) <rnd lrrr r.ai�nti. n 1�l•hsilc: I����c.prrir�l lora.rvnu 2105 Drew Sher(, Sidw 200 Civil •11aIvr, Florida 33765 Pinrlin;: 727 -466 -11777 ilillcborou_It: 813 - 891 - 411111 Fam 813- 1191 -41111 William Vola, Baytown Office of Emergency Management Page 2 Interest. Payments are due and payable thirty days after receipt of services or after receipt of an hivoice therefore, whichever is later. Invoices may be submitted to you for payment at the conclusion of each phase of service. hiterest on late payment shall be calculated pursuant to Section 2251.025 of the Texas Government Code. Payment thereafter shall first be applied to accrued interest and then to the unpaid balance. Termination. Should information become known that would make our continued involvement in this engagement inappropriate we reserve the right to withdraw from this engagement upon ten (10) days' written notice to you. In the event invoices become past due, we reserve the right to cease work until all outstanding balances are brought current. Additionally, you shall have the right to tenninate your engagement with or without cause upon ten (10) days' written notice to us. Upon delivery of any notice of termination required herein, we shall discontinue all services in connection with the engagement. Within ten (10) days after receipt of the notice of termination, we shall submit a fmal statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. 1ndenuuty. WE AGREE 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 US PURSUANT TO THIS AGREEMENT, OUR CONDUCT OR MANAGEMENT OF OUR SERVICES, OR FROM ANY ACT OR OMISSION BY US, OUR AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHERE SUCH DAMAGES, LOSSES OR INJURIES ARE CAUSED BY OUR JOINT OR SOLE NEGLIGENCE. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY US TO INDEMNIFY AND PROTECT YOU FROM THE CONSEQUENCES OF OUR SOLE OR JOINT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO YOU FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, LOSS OR DAMAGE RESULTS FROM THE YOUR SOLE NEGLIGENCE, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. William Vola, Baytown Office of Emergency Management Page 3 In the event that any action or proceeding is brought against you by reason of any matter from which you are indemnified herein, we further agree and covenant to defend the action or proceeding by legal counsel acceptable to you. This article shall survive the expiration or tennination of our engagement. Release. By this Agreement, the City does not consent to litigation or suit, and tl►e City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. We assume full responsibility for the work performed hereunder and hereby release, relinquish and discharge the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with our work to be performed hereunder. This release shall apply with respect to our work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. Insurance. Throughout our services to you, we at our own expense shall purchase, maintain and keep in force and effect an errors and omissions policy with a limit of at least SI,000,000, which will be in force for two years after services are completed and accepted by you. We shall file the certificate of insurance with you prior to any services being performed. Such certificate shall contain a provision that coverage afforded will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to you via certified mail, return receipt requested. Independent Contractor. In all activities or services performed hereunder, we are and at all times shall remain an independent contractor, not an agent or employee of City. We, as an independent contractor, shall be solely responsible for our services and shall have ultimate control over the execution of the services under this Agreement. No Assignment. We shall not sell, assign, or transfer any of our rights or obligations under this agreement, in whole or in part, without your prior written consent. Notice. 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: CITY OF BAYTOWN PERZEL & LARA FORENSIC CPA'S, P.A. Attn: City Manager Attn: Odalys Lara P. 0. Box 424 2105 Drew, Suite 206 Baytown, Texas 77522 -0424 Clearwater, FL 33765 William Vola, Baytown Office of Emergency Management Page 4 No waiver. 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. Choice of Law and Venue. This Agreement 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. No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, we hereby agree that no claim or dispute between the parties hereto arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable state arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that you are subjected to an arbitration proceeding notwithstanding this provision, we consent to be joined in the arbitration proceeding if our presence is required or requested by you for complete relief to be recorded in the arbitration proceeding. Severability. All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. Entire Agreement. This 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. In the event of any ambiguity in any of the terns of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he represents. We sincerely appreciate this opportunity to be of service to you. If you agree with the foregoing ternis, please sign a copy of this letter in the space provided. We will begin work immediately upon receipt of the retainer and the filly executed letter. Very truly yours, Odalys Lara, CPA, C' A, CFFA, CFF Perzel & Lara Forensic, CPA's, P.A. Acknowledged: The services described in the foregoing are in accordance with my understanding. The terns described in this letter are acceptable and are hereby agreed to. By: Date Garrison C. Brumback, City Manager February 18, 2010 William Vola Baytown Office of Emergency Management 205 E. Wye Drive Baytown, TX 77552 Re: Forensic Investigation of BDR Dear Mr. Vola, At your request, I am remitting this letter regarding the forensic services we are asked to perform for the City of Baytown. This letter will serve to confirm our understanding and agreement whereby the City is retaining this firm to perform investigative services in connection with an examination of certain financial transactions. Pursuant to your request, the scope of our services will cover the examination and reconciliation of BDR timecards, BDR payroll classifications and BDR mileage reimbursement claims against BDR payroll records from ADP. Our primary objective is to assess the likelihood that certain financial improprieties have occurred. In order to perform our analysis, we will request access to all accounting data and will require a meeting and cooperation with staff and management. We will document the results of the initial phase of this engagement in a summary report, which will be provided to you within 60 days of the execution of this letter agreement At the completion, we will document our findings in a formal report. If our findings and conclusions serve as a basis for a claim resulting in a lawsuit, such report may be utilized in a manner you deem appropriate. Fee. The fee for services shall not exceed Forty Five Thousand DOLLARS ($ 45,000.00) based upon our current rate schedule. Our current standard hourly rates for staff range from $85 to $150. Principals are billed at $250 per hour for work production and $300 per hour for deposition and trial testimony. Out of Pocket Expenses. Any out of pocket expenses will be billed to you and may include such items as travel, copies, long distance phone calls, postage, computerized data base research and charges for other research materials as necessary to complete the engagement. These additional charges will be separately stated on all billings and shall not exceed Five Hundred DOLLARS ($ 500), without your prior written authorization. All expenses associated with meals and lodging, however, must be approved in writing by you prior to us incurring any expense associated therewith; otherwise, you shall not be liable and we shall not make a claim against you for any such expenses. PERZEL & URA FORENSIC CPA's, P.A. PERZEL P LARA Cert fed Public Accountants • Business Consultants • Certified Paluation Analysts Certified Forensic Financial Analysts • Certified Fined Deterrence Analysts • Litigation Support • Fraud Prevention and Investigation Website: www.perzellara.com 2105 Drew Street, Suite 200 Clearwater, Florida 33765 Pinellas: 727-466-0777 Hillsborough: 813-891-4100 Fax: 813-891-4101 1. William Vola, Baytown Office of Emergency Management Page 2 Interest Payments are due and payable thirty days after receipt of services or after receipt of an invoice therefore, whichever is later. Invoices may be submitted to you for payment at the conclusion of each phase of service. Interest on late payment shall be calculated pursuant to Section 2251.025 of the Texas Government Code. Payment thereafter shall first be applied to accrued interest and then to the unpaid balance. Termination. Should information become known that would make our continued involvement in this engagement inappropriate we reserve the right to withdraw from this engagement upon ten (10) days' written notice to you. In the event invoices become past due, we reserve the right to cease work until all outstanding balances are brought current. Additionally, you shall have the right to terminate your engagement with or without cause upon ten (10) days' written notice to us. Upon delivery of any notice of termination required herein, we shall discontinue all services in connection with the engagement. Within ten (10) days after receipt of the notice of termination, we 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. Indemnity. WE AGREE 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 US PURSUANT TO THIS AGREEMENT, OUR CONDUCT OR MANAGEMENT OF OUR SERVICES, OR FROM ANY ACT OR OMISSION BY US, OUR AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHERE SUCH DAMAGES, LOSSES OR INJURIES ARE CAUSED BY OUR JOINT OR SOLE NEGLIGENCE. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY US TO INDEMNIFY AND PROTECT YOU FROM THE CONSEQUENCES OF OUR SOLE OR JOINT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO YOU FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, LOSS OR DAMAGE RESULTS FROM THE YOUR SOLE NEGLIGENCE, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. William Vola, Baytown Office of Emergency Management Page 3 In the event that any action or proceeding is brought against you by reason of any matter from which you are indemnified herein, we further agree and covenant to defend the action or proceeding by legal counsel acceptable to you. This article shall survive the expiration or termination of our engagement. Release. By this Agreement, the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive the City's sovereign immunity. We assume full responsibility for the work performed hereunder and hereby release, relinquish and discharge the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with our work to be performed hereunder. This release shall apply with respect to our work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. Insurance. Throughout our services to you, we at our own expense shall purchase, maintain and keep in force and effect an errors and omissions policy with a limit of at least $1,000,000, which will be in force for two years after services are completed and accepted by you. We shall file the certificate of insurance with you prior to any services being performed. Such certificate shall contain a provision that coverage afforded will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to you via certified mail, return receipt requested. Independent Contractor. In all activities or services performed hereunder, we are and at all times shall remain an independent contractor, not an agent or employee of City. We, as an independent contractor, shall be solely responsible for our services and shall have ultimate control over the execution of the services under this Agreement. No Assignment. We shall not sell, assign, or transfer any of our rights or obligations under this agreement, in whole or in part, without your prior written consent. Notice. 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: CITY OF BAYTOWN Attn: City Manager P. O. Box 424 Baytown, Texas 77522-0424 PERZEL & LARA FORENSIC CPA'S, P.A. Attn: Odalys Lara 2105 Drew, Suite 206 Clearwater, FL 33765 William Vola, Baytown Office of Emergency Management Page 4 No waiver. 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. Choice of Law and Venue. This Agreement 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. No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, we hereby agree that no claim or dispute between the parties hereto arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable state arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that you are subjected to an arbitration proceeding notwithstanding this provision, we consent to be joined in the arbitration proceeding if our presence is required or requested by you for complete relief to be recorded in the arbitration proceeding. Severability. All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. Entire Agreement. This 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. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he represents. We sincerely appreciate this opportunity to be of service to you. If you agree with the foregoing terms, please sign a copy of this letter in the space provided. We will begin work immediately upon receipt of the retainer and the fully executed letter. Very truly yours, cu Odalys Lara, CPA, CVA, CFFA, CFF Perzel & Lara Forensic, CPA's, P.A. Acknowledged: The service describe •bed in tla foregoing are in accordance with my understanding. The terms By: Garrison C. B. 'ack, City Manager areptable and are hereby agreed to. Date/off ‘/M