Loading...
HomeMy WebLinkAbout2001-066ORDINANCE NO 9A - a(� AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH DELOITTE AND TOUCHE LLP FOR GOVERNMENTAL ACCOUNTING STANDARDS BOARD STATEMENT NO 34 (GASB 34 IMPLEMENTATION), AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE (PO 12575 (PSA 2650) — DELOITTE & TOUCHE LLP IN THE AMOUNT OF $39,400) WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services, and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I The City Manager is hereby authorized to enter into a professional service contract with the Provider, Deloitte and Touche LLP is to provide Assistance in Implementation of the Governmental Accounting Standards Board Statement No 34 (GASB 34), a copy of which is attached hereto and incorporated by reference herein SECTION II The City Manager is authorized to expend funds as required by the attached contract SECTION III The findings in the preamble of this ordinance are incorporated herein by reference SECTION IV This ordinance shall become effective immediately upon its passage and approval /�^�./��// PASSED AND APPROVED this the 6 VG day of 2001 EULINE BROCK, MAYOR ATTEST 0 WALTERS, CITY SECRETARY TO ATTORNEY BY PO 12575 (PSA 265 - P FESSIONAL SERVICES FOR DELOITTE AND TOUCHE LLP ORDINANCE - 2001 PROFESSIONAL SERVICES AGREEMENT FOR ACCOUNTING SERVICES STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the Wh day of 2001, by and between the City of Denton, a Texas Municipal Corporation, with its principal office at 215 E McKinney Street, Denton, Denton County, Texas 76201 (hereinafter referred to as "CITY") and Deloitte & Touche LLP, a Limited Liability Partnership, with an office at 2200 Ross Avenue, Suite 1600, Dallas, Texas, 75201 (hereinafter referred to as "D & T") acting herein, by and through their duly authorized representatives WHEREAS, CITY desires to engage D & T to provide services as herein defined, and WHEREAS, D & T is willing to provide such services to CITY, NOW THEREFORE, in consideration of the promises and mutual undertakings herein contained, the parties agree as follows ARTICLE 1 ENGAGEMENT OF D & T The CITY hereby contracts with D & T, as an independent contractor, and D & T hereby agrees to perform the services herein in connection with the engagement as stated in the Articles to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas The services to be performed by D & T are described in Article 2 below ARTICLE 2 SCOPE OF SERVICES D & T shall perform the following services GASB 34 PAGE 1 A D & T will provide services to assist the (CITY) in its implementing the requirements of Governmental Accounting Standards Board (GASB) Statement No 34, `Basic Financial Statements — and Management's Discussion and Analysis — for State and Local Governments" ("GASB 34") and converting the September 30, 2000 general purpose financial statements to the form stipulated in GASB Statement No 34 B D & T shall perform all those services set forth in D & T'S letter of engagement which proposal is attached hereto and made a part hereof as Exhibit "A" as if written word for word herein C D & T shall perform all those services set forth in accordance with the standards for consulting services of The American Institute of Certified Public Accountants ARTICLE 3 COMPLETION OF SERVICES This Agreement for services, as specified herein, shall terminate on the completion of D & T's services as described in Exhibit "A" ARTICLE 4 RESPONSIBILITIES OF CITY CITY understands that the proper and timely completion of D & T's services hereunder require the reasonable cooperation of CITY (including, without limitation, its agencies, and their respective officers, directors, employees, other personnel and agents) CITY agrees to provide all such reasonable cooperation requested by D & T, including, without limitation, the following A Access to, and/or copies of, CITY's books and records, B Access to CITY personnel, C Office space and access to support services such as copying and telephone, D Accuracy and completeness of data and completeness of information provided D & T for purposes of performance of its services hereunder GASB 34 PAGE 2 ARTICLE 5 COMPENSATION A CITY shall pay D & T's professional fees for the performance of the services as described in Exhibit "A"tn the amount of $ 35,400 plus expenses not to exceed $4,000 B CITY and D & T recognize that the scope of services and compensation under this Agreement are predicated upon (i) expectations of reasonable cooperation with D & T by CITY pursuant to this Agreement, and (n) the absence of any irregularities or circumstances which might necessitate the extension of services beyond the normal scope C Should (i) irregularities, (ir) the absence of such reasonable cooperation, (m) increase in level of services required under applicable laws, regulations, or professional standards, (iv) other unforeseen conditions be encountered which might necessitate the extension of services as stated in Exhibit "A", D & T agrees to advise CITY promptly in writing of the circumstances and to request an equitable adjustment before significant additional time is incurred by D & T Any such requests for adjustments shall be in writing and shall contain an explanation of why the adjustments are necessary D CITY and D & T agree to negotiate in good faith to determine an equitable adjustment Should CITY and D & T be unable to agree upon an equitable adjustment within fourteen (14) days of D & T's written request, or such other time period as agreed upon in writing by CITY and D & T, either party may, notwithstanding any other provision in this Agreement, terminate this Agreement upon tlurty (30) days written notice to the other party CITY shall be liable for time charges and expenses actually incurred by D & T except for any such additional time and expense which has been incurred as a result of the circumstances necessitating the adjustment ARTICLE 6 BILLING AND PAYMENT A D & T shall submit periodic detailed itemized invoices for time charges and expenses incurred as the services hereunder are performed Such invoices are payable upon presentation CITY will be in material breach of this Agreement if CITY's account becomes ninety (90) days or more overdue D & T may, at its sole option and without waiver of any rights pursuant to the termination provision in this Agreement or otherwise, suspend its GASB 34 PAGE 3 services and resume them upon receipt from CITY of the full amount due D & T which has been submitted by invoice to CITY B Partial payments to D & T will be made on the basis of detailed itemized statements rendered to and approved by the CITY through its City Manager or his designees, however, under no circumstances shall any statement for services exceed the value of the work performed by D & T at the time a statement is rendered C Nothing contained in this Article shall require the CITY to pay for any work which is not submitted in compliance with the terms of this Agreement CITY shall not be required to make any payments to D & T when D & T is in material default under this contract for more than 30 days after receipt of written notice of such default from CITY D It is specifically understood and agreed that D & T shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense or reimbursement above the maximum not to exceed fee as stated without first having obtained written authorization from the CITY ARTICLE 7 OWNERSHIP OF WORKPRODUCT, DOCUMENTS, AND PROPERTY A The ownership of work product, document and property, for purpose of this agreement is defined in Exhibit "A" B Except as provided in Article 7 A above, upon full and final payment of all undisputed amounts owed D & T hereunder, the tangible items specified as deliverables or work product in Exhibit "A" shall become property of CITY upon termination of this agreement To the extent that any D & T technology is contained in any of the deliverables, D & T hereby grants the client a royalty -free, fully paid -up worldwide, non-exclusive license to use such D & T technology in connection with the deliverables D & T is entitled to retain copies of deliverables and work product GASB 34 PAGE 4 ARTICLE 8 INDEPENDENT CONTRACTOR D & T shall provide services to CITY as an independent contractor, not as an employee of the CITY D & T shall not have or claim any right arising from employee status ARTICLE 9 INDEMNITY PROVISION D & T shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of D&T or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement As a condition to the foregoing indemnity obligation, CITY shall provide D & T with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with D & T in connection with any such claim D & T shall be entitled to control the handling of any such claim, with full disclosure of any and all claims, and actions taken thereunder, to the CITY, and D & T shall be entitled to defend or settle any such claim, in its sole discretion, with counsel of its own choosing Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a parry to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved ARTICLE 10 INSURANCE During the performance of the Services under this Agreement, D & T shall maintain, throughout the duration of this Agreement, the following insurance A Professional Liability Insurance with policy limits of not less than $1,000,000 annual aggregate, with respect to negligent acts, errors, or omissions in connection with the professional services performed by D & T pursuant to this Agreement GASB 34 PAGE 5 B D & T shall furnish insurance certificates or insurance policies at CITY's request to evidence such coverage The insurance policy shall contain a provision that such policy shall not be cancelled or modified without thirty (30) days prior written notice given by the Insurance carrier to CITY and D & T In the event of cancellation or non -renewal of such coverage, D & T shall, prior to the effective date of the non -renewal or cancellation, deliver to CITY a Certificate of Insurance evidencing that a substitute policy furnishing the same coverage is in full force and effect ARTICLE 11 ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval ARTICLE 12 TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days advance written notice to the other party B This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, and not less than 30 days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If the Agreement is terminated prior to completion of the services to be provided hereunder, D & T shall immediately cease all services and shall render a final bill for services to the CITY within 30 days after the date of termination The CITY shall pay D & T for all services rendered and satisfactorily performed and for reimbursable expenses incurred prior to the date of termination in accordance with the terms of tlus Agreement Should the CITY sub- sequently contract with a new D & T for the continuation of services on the audit engagement, D & T shall reasonably cooperate in providing information in accordance with, GASB 34 PAGE 6 and to the extent required by, applicable professional standards The D & T shall turn over all documents prepared or famished by D & T for delivery to CITY pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its files ARTICLE 13 SUBCONTRACTING Neither this Agreement, nor the services to be provided hereunder may be assigned or subcontracted without the prior written approval of CITY ARTICLE 14 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the address shown below, certified mail, return receipt requested unless otherwise specified herein ToD&T Deloitte & Touche, LLP 2200 Ross Avenue Suite 1600 Dallas, Texas 75201 To CITY City of Denton, Texas ATTN Anna Mosqueda Title Director, Management and Budget 215 E McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given ARTICLE 15 ENTIRE AGREEMENT This Agreement, including all Exhibits and Amendments annexed hereto and made a part hereof, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof Neither party shall be bound by the provisions of any pre- printed or other written terms and conditions subsequent to the date of this Agreement relating to the GAsa 34 PAGE 7 subject matter hereof unless such additional terms and conditions are made effective pursuant to the Amendments subsection of this section ARTICLE 16 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision ARTICLE 17 COMPLIANCE WITH LAWS D & T shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the professional services performed pursuant to this Agreement, as they may now read or may hereafter be amended ARTICLE 18 EMPLOYMENT PRACTICES/DISCRIMINATION PROHIBITED In performing the services required hereunder, D & T shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap D & T agrees that in connection with the services to be provided to CITY hereunder that it will comply with all applicable laws and regulations regarding employment discrimination ARTICLE 19 PERSONNEL/CONFLICTS OF INTEREST A D & T represents that it has or will secure at its own expense all professional and support personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, nor have any contractual relations with CITY D & T shall inform the CITY of any conflict of interest under the professional standards of the AICPA or the Texas State Board of Public Accountancy that may be discovered or arise during the term of this Agreement GAss 34 PAGE 8 B All services required hereunder will be performed by D & T All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services ARTICLE 20 ASSIGNABILITY D & T shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the CITY ARTICLE 21 MODIFICATION OR AMENDMENT A No waiver or modification of this Agreement or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed, and, the parties further agree that the provisions of this section will not be waived unless as herein set forth B No amendment of this Agreement shall be valid unless in writing and signed by both parties ARTICLE 22 FORCE MAJEURE Notwithstanding any other provision in this Agreement, D & T shall not be liable or held responsible for any failure to perform or delays in perfomung its obligations under this Agreement, including but not limited to, the completion of the audit and issuance of its report thereon, which result from circumstances or causes beyond D & T's reasonable control, including, without limitation, acts or omissions or the failure to cooperate pursuant to this Agreement by CITY (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), fire or casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority GASB 34 PAGE 9 ARTICLE 23 MISCELLANEOUS A Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas This Agreement shall be governed by and construed in accordance with the laws of the State of Texas B In accomplishing this engagement, D & T shall take such steps as are appropriate to coordinate the work involved with related work being carried on by CITY C If there is any conflict between the terms of this Agreement and any exhibit attached hereto, the term of this Agreement shall control D CITY shall assist D & T by placing at D & T's disposal, all available information pertinent to the engagement, including previous reports, any other data relative to the engagement, and arranging for the access to, and making all provisions for D & T to enter in or upon, public and private property as required for D & T to perform services under this Agreement E The headings of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement F Each party represents that it is authorized to enter into this Agreement and that the individual executing this Agreement on behalf of the party, is authorized to enter into this Agreement IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and D & T hasexecutedthis Agreement by and through its duly authorized undersigned Director on this thea ®//ay of 2001 CITY OF DENTON, TEXAS GASB 34 PAGE 10 ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By C-K� DELOITTE & TOUCHE By TERRY LE, Director ATTEST GASB 34 PAGE 11 Deloitte & Touche LLP Suite 1600 Chase Tower 2200 Ross Avenue Dallas Texas 75201 6778 Tel (214) 777 7000 www us delortte corn November 28, 2000 Ms Kristin Newman City of Denton 215 E McKinney Street Denton, TX 76201 Dear Ms Newman Deloitte &Touche Deloitte & Touche LLP ("D&T") is pleased to provide this letter to confirm this engagement to provide certain services to assist the City of Denton (the "City") in its implementing the requirements of Governmental Accounting Standards Board (GASB) Statement No 34, "Basic Financial Statements — and Management's Discussion and Analysis — for State and Local Governments" ("GASB 34") on the terms and conditions set forth herein We understand that the City needs the assistance of a professional services firm to assist it in the conversion of its 2000 general purpose financial statements to a GASB 34 presentation Project Workplan The following section describes D&T's overall workplan designed to assist the City in converting the September 30, 2000 general purpose financial statements to the format stipulated in GASB 34 Phase 10 - Project Initiation (expected to complete within 2 weeks from initiation date) D&T's objectives in this initial phase of the project is to assist the City in preparing an implementation workplan and model financial statements 1 1 Review and confirm the objectives, scope and timing of our work, 1 2 Establish primary D&T and City contact persons for the performance of this engagement, as well as regularly scheduled times for such contact persons to meet, 13 Assist the City in identifying the types of information required under GASB 34 and of information sources at the City, 14 Identify with the City the major funds to be presented at the fund level financial statements, Deloitte Touche Exhibit A Tohmatsu 15 Identify areas where substantial information gathering should be completed by the City prior to our commencement of the conversion Phase 2 0 — Sample Financial Statements (expected to complete within 3 months from completion of Phase 1) 2 1 Provide consultation with respect to • Simplification ideas • Identification of consolidating and eliminating entries 22 Convert the September 30, 2000 financial statements into a GASB 34 presentation including • Statement of Net Assets — Primary Government • Statement of Activities — Primary Government • Balance Sheet — Governmental Funds, including the reconciliation of fund balance between this statement and the net assets of the governmental activities • Statement of Revenues, Expenditures, and Changes in Fund Balances — Governmental Funds, including reconciliation of changes in fund balance to changes in net assets of governmental funds • Statement of Net Assets — Proprietary Funds • Statement of Revenues, Expenses, and Changes in Fund Net Assets — Proprietary Funds • Statement of Cash Flows — Proprietary Funds • Combining Balance Sheet — Nonmajor Governmental Funds, if needed • Combining Statement of Revenues, Expenditures, and Changes in Fund Balances — Nonmajor Governmental Funds, if needed • Combining Statement of Net Assets — Internal Service Fund (if it is determined that these funds will not be eliminated), if needed • Combining Statement of Revenues, Expenses, and Changes in Fund Net Assets — Internal Service Fund, if needed • Combining Statement of Cash Flows — Internal Service Fund, if needed Exhibit A 23 Summarize the critical areas where the City will require additional information or resources in order to complete the GASB 34 implementation Also during this phase, D&T and the City will jointly develop possible recommendations of potential strategies the City may adopt to facilitate financial statement preparation under GASB 34 Phase 3 0 — Deliverable (expected to complete within 1 month of completion of Phase 2) Our deliverable for this project will be a written report that includes All the statements and schedules discussed in Phase 2 The combining and eliminating j ournal entries A summary of critical areas where the City will require additional information and resources to complete GASB 34 implementation All the electronic spreadsheets will be included as deliverable for this engagement Project Staffing We propose to staff this engagement with Tracey Guidry, manager, and Reem Samra and Terry Kile, directors Professional Fees and Term Our estimated professional fees for this project are $35,400, plus expenses not to exceed $4,000 Our fees will be based on actual hours spent on the engagement at D&T's standard hourly rate as follows Hours Rate Per Hour Fees Partner/Director 30 $250 $ 7,500 Manager 60 145 8,700 Senior 160 120 19,200 250 35,400 The estimated completion date of our project is dependent upon, among other things, your cooperation and the cooperation and availability of members of your staff Exhibit A If the City requires our assistance in gathering of information noted under task 15, the estimate to complete such activities is not included in the fee estimate above We will be happy to provide such assistance at our hourly rate Such estimates and description of the workplan are based on information known to us at the time of the signing of this engagement letter and the assumption that unexpected circumstances will not be encountered during this engagement If modifications to our workplan are necessary, we will promptly discuss such changes with you and arrive at a revised agreed -upon workplan description rr*s*s*+►r This engagement letter, including the General Business Terms attached hereto as Exhibit I and made a part hereof, constitutes the entire agreement between the City and D&T with respect to this engagement, supercedes all other oral and written representations, understandings or agreements relating to this engagement, and may not be amended except by the mutual written agreement of the City and D&T If the foregoing sets forth your understanding and you are in agreement with the terms and conditions set forth herein, please sign the enclosed copy of this letter at the space indicated below and return it to us Yours truly, ACCEPTED AND AGREED TO BY Title City Manager Date February 20, 2001 Attachment Exhibit A EXHIBIT I GENERAL BUSINESS TERMS I Services It is understood and agreed that the services of Deloitte & Touche LLP ("D&T) may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, City of Denton (the "Client') In connection with its services hereunder, D&T shall be entitled to rely on all decisions and approvals of the Client 2 Payment of Invoices Properly submitted invoices upon which payment is not received within thirty (30) days of the invoice date shall accrue a late charge of the lesser of (1) 1'/2% per month or (u) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law Without limiting its rights or remedies, D&T shall have the right to halt or terminate entirely its services until payment is received on past due invoices 3 Term Unless terminated sooner in accordance with its terms, this engagement shall terminate on the completion of D&T's services hereunder This engagement may be terminated by either party at any time by giving written notice to the other party not less than 30 calendar days before the effective date of termination 4 Ownership a) D&T Technology D&T has created, acquired or otherwise has rights in, and may, in connection with the performance of services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques (including, without limitation, function, process, system and data models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems) (collectively, the "D&T Technology") b) Ownership of Deliverables Except as provided below, upon full and final payment to D&T hereunder, the tangible items specified as deliverables or work product in the engagement letter to which these terms are attached (the "Deliverables") shall become the property of the Client To the extent that any D&T Technology is contained in any of the Deliverables, D&T hereby grants the Client, upon full and final payment to D&T hereunder, a royalty -free, fully paid -up, worldwide, non-exclusive license to use such D&T Technology in connection with the Deliverables c) Ownership of D&T Property To the extent that D&T utilizes any of its property (including, without limitation, the D&T Technology or any hardware or software of D&T) in connection with the performance of services hereunder, such property shall remain the property of D&T and, except for the license expressly granted in the preceding paragraph, the Client shall acquire no right or interest in such property Notwithstanding anything in this engagement letter, including these terms, to the contrary, the parties acknowledge and agree that (a) D&T shall own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the D&T Technology and (b) D&T may employ, modify, disclose, and otherwise exploit the D&T Technology (including, without limitation, providing services or creating programming or materials for other clients) D&T does not agree to any terms that may be construed as precluding or limiting in any way its right to (a) provide consulting or other services of any kind or nature whatsoever to any person or entity as D&T in its sole discretion deems appropriate or (b) develop for itself, or for others, materials that are competitive with those produced as a result of the services provided hereunder, irrespective of their similarity to the Deliverables Limitation on Warranties THIS IS A SERVICES ENGAGEMENT D&T WARRANTS THAT IT SHALL PERFORM SERVICES HEREUNDER IN GOOD FAITH D&T DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IN ADDITION, D&T HAS NOT BEEN ENGAGED TO PROVIDE ANY YEAR 2000 SERVICES SUCH AS ASSESSMENT, CONVERSION OR TESTING ACCORDINGLY, D&T IS NOT PROVIDING SUCH SERVICES, AND D&T DOES NOT, AND WILL NOT, REPRESENT, WARRANT OR PROVIDE ANY ASSURANCES THAT THE CLIENT'S SYSTEMS OR ANY OTHER SYSTEMS (INCLUDING, WITHOUT LIMITATION, THE SYSTEMS OF THE CLIENT'S VENDORS, SERVICE PROVIDERS, CUSTOMERS, UNCONSOLIDATED SUBSIDIARIES OR JOINT VENTURES IN WHICH THE CLIENT HAS AN INVESTMENT OR OTHER THIRD PARTIES) ARE YEAR 2000 COMPLIANT, OR THAT THE CLIENT'S PLANS OR THE PLANS OF ANY THIRD PARTIES TO DEAL WITH THE YEAR 2000 ARE SUFFICIENT TO ADDRESS OR CORRECT ANY YEAR 2000 PROBLEMS THAT MIGHT ARISE, OR WITH RESPECT TO ANY OTHER MATTERS RELATING TO THE YEAR 2000 6 Limitation on Damages a) The Client agrees that D&T and its personnel shall not be liable to the Client for any claims, liabilities, or expenses relating to this engagement for an aggregate amount in excess of the fees paid by the Client to D&T pursuant to this engagement, except to the extent finally judicially determined to have resulted from the bad faith or intentional misconduct of D&T In no event shall D&T or its personnel be liable for consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to this engagement b) The limitation on liability of this engagement letter shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise 7 Cooperation The Client shall cooperate with D&T in the performance by D&T of its services hereunder, including, without limitation, providing D&T with reasonable facilities and timely access to data, information and personnel of the Client The Client shall be responsible for the performance of its personnel and agents and for the accuracy and completeness of all data and information provided to D&T for purposes of the performance by D&T of its services hereunder Force Maleure D&T shall not be liable for any failures or delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate pursuant to this engagement letter, including these terms, by the Client (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), acts or omissions or the failure to cooperate by any third party fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority 9 Limitation on Actions No action, regardless of form, arising under or relating to this engagement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non- payment may be brought by a party not later than one year following the date of the last payment due to such party hereunder 10 Independent Contractor It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor or representative of the other Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other 11 Confidentiality and Internal Use a) The Client agrees that all services hereunder and Deliverables shall be solely for the Client s informational purposes and internal use The Client further agrees that such services and Deliverables shall not be used by, or circulated, quoted, disclosed, or distributed to, nor shall reference to such services or Deliverables be made to, any person or entity other than the Client b) To the extent that, in connection with this engagement, D&T comes into possession of any proprietary or confidential information of the Client, D&T will not disclose such information to any third party without the Client's consent, except (a) as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards, or in connection with litigation pertaining hereto, or (b) to the extent such information (i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by D&T in breach hereof, (it) is disclosed by the Client to a thud party without substantially the same restrictions as set forth herein, (in) becomes available to D&T on a nonconfidential basis from a source other than the Client which D&T does not believe is prohibited from disclosing such information to D&T by obligation to the Client, (iv) is known by D&T prior to its receipt from the Client without any obligation of confidentiality with respect thereto, or (v) is developed by D&T independently of any disclosures made by the Client to D&T of such information In addition, the Client acknowledges and agrees that any such information that comes to the attention of D&T in the course of performing this engagement will be considered and used by D&T in the context of responding to its professional obligations as the independent accountants for the Client 12 Survival The agreements and undertakings of the Client contained in the engagement letter to which these terms are attached, together with the provisions of Paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 hereof, shall survive the expiration or termination of this engagement 13 Assignment Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder without the prior written consent of the other party D&T may assign or subcontract its rights and obligations hereunder to any affiliate or related entity without the consent of the Client 14 Governing Law and Severabihty These terms, and the engagement letter to which these terms are appended, including the exhibits, shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to the choice of law principles thereof) If any provision of this engagement letter, including these terms, is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this engagement letter, including these terms