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2001-066 ORDNANCE NO gO0/- 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 I2575 (PSA 2650) - DELOITTE & TOUCHE LLP IN THE AMOUNT OF $39,400) WHEREAS, The professional services provider (the "Provider) menUoned in this ordinance m being selected as the most highly qualified on the basis of ars demonstrated competence and qualifications to perform the proposed professional services, and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I The City Manager is hereby authorized to enter into a professional service contract with the Provider, Deloitte and Touche LLP is to provide Assistance In Implementation of the Governmental Accounting Standards Board Statement No 34 (GASB 34), a copy of which is attached hereto and incorporated by reference herein SECTION II The City Manager m authorized to expend funds as required by the attached contract SECTION 111 The finchngs in the preamble of this ordinance are incorporated herein by reference ,SECTION IV This ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED tills the ~)-~ day of '.2~~2001 EULINE BROCK, MAYOR ATTEST ~NIFER ~WALTER~, CITY SECRETARY ApPt~)VED )~S_ TO ~.RGAI/FORM HERBE~~ ATTORNEY BY m PO 12575 (p~A ~6$~R~FESSIONAL SERVICES FOR DELOITTE AND TOUCHE LLP ORDINANCE - 20 PROFESSIONAL SERVICES AGREEMENT FOR ACCOUNTING SERVICES STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT IS made and entered Into as of the day 2001, by and between the City of Denton, a Texas Municipal Corporation, with its prlnclpal.,..______, e~__.bffice at 215 E McKanney 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 mdependent 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 obtmned 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 I A D & T will provide services to assist the (CITY) m its implementing the requirements of Governmental Accounting Standards Board (GASB) Statement No 34, "Basic Financial Statements - and Management's Discussion and Analys~s - for State and Local Govemmants" ("GASB 34") and converting the September 30, 2000 general purpose financtal 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 whmh 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 Extub~t "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 hm~tation, 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 professtonal fees for the performance of the servtces as described in Exhtbtt "A"m the mount of $ 35,400 plus expenses not to exceed $4,000 B CITY and D & T recogmze that the scope of services and compensatton under thts Agreement are predtcated upon 0) expectattons of reasonable cooperatmn wtth D & T by CITY pursuant to thts Agreement, and (n) the absence of any trregularmes or ctrcumstances which might necessttate the extenston of servtces beyond the normal scope C Should 0) trregulamxes, (n) the absence of such reasonable cooperatton, (m) tncrease tn level of services reqmred under apphcable laws, regulattons, or professtonal standards, 0v) other unforeseen condtttons be encountered whtch mtght necessitate the extenston of services as stated m Exhibit "A", D & T agrees to advtse CITY promptly in writing of the ctrcumstances and to request an equitable adjustment before stgmficant addmonal t~me ts tncurred by D & T Any such requests for adjustments shall be m wnttng and shall contmn an explanation of why the adjustments are necessary D CITY and D & T agree to negotiate ~n good froth to determine an eqmtable adjustment Should CITY and D & T be unable to agree upon an eqmtable adjustment w~thtn fourteen (14) days ofD & T's written request, or such other ttme period as agreed upon tn writing by CITY and D & T, rather party may, notw~thstandtng any other provtston tn thts Agreement, terminate th~s Agreement upon thirty (30) days written nottce to the other party CITY shall be hable for trine charges and expenses actually tncurred by D & T except for any such add~ttonal time and expense whmh has been tncurred as a result of the mrcumstances necess~tattng the adjustment ARTICLE 6 BILLING AND PAYMENT A D & T shall submit periodtc detmled ~tem~zed tnvotces for ttme charges and expenses ~ncurred as the servtces hereunder are performed Such tnvomes are payable upon presentatton CITY wtll be tn material breach of thts Agreement ff CITY's account becomes ninety (90) days or more overdue D & T may, at its sole option and wtthout waiver of any rights pursuant to the termtnatton pmvtsion m thts Agreement or otherwtse, 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 Partaal payments to D & T will be made on the basis of detmled 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 t~me a statement is rendered C Nothing contmned in this Article shall require the CITY to pay for any work which is not submitted m compliance with the terms of thts 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 obtmned written authorization from the CITY ARTICLE 7 OWNERSHIP OF WORKPRODUCT, DOCUMENTS, AND PROPERTY A The ownersbap 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 ~tems specified as deliverables or work product in Exl'ablt "A" shall become property of CITY upon termination of this agreement To the extent that any D & T technology is contmned in any of the dehverables, D & T hereby grants the client a royalty-free, fully prod-up worldwide, non-exclusive license to use such D & T technology in connection with the deliverables D & T is entitled to retmn 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 hmltataon, damages for bodily and personal ~njury, 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 foregoxng mdemmty obligation, CITY shall provide D & T with prompt notme of any claim for which lndemnlficatmn 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, ~n 1ts sole discretion, with counsel of its own choosing Nothing in flus 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 eqmty, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental lmmumty, which defenses are hereby expressly reserved ARTICLE 10 INSURANCE During the performance of the Services under this Agreement, D & T shall mmntain, throughout the duration of this Agreement, the following insurance A Professional Liability Insurance with policy hmlts of not less than $1,000,000 annual aggregate, with respect to negligent acts, errors, or omiss~ons 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 pohcles 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 tturty (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 Cemficate of Insurance evidencing that a substitute policy famishing 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 tturty (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 fmllng to fulfill its obligations under this Agreement No such termination will be effected unless the other party is given (1) written nonce (delivered by certified mall, 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 consultatmn 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 sat!sfactonly performed and for reimbursable expenses incurred prior to the date of term~nation in accordance with the terms of tl~s 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 reqmred by, apphcable professional standards The D & T shall turn over all documents prepared or furnished by D & T for dehvery to CITY pursuant to th~s Agreement to the CITY on or before the date of termination, but may mmntmn cop~es of such documents for ~ts files ARTICLE 13 SUBCONTRACTING Neither th~s Agreement, nor the services to be provided hereunder may be assigned or subcontracted w~thout the prior written approval of CITY ARTICLE 14 NOTICES All notices, commumcat~ons, and reports reqmred or permitted under th~s Agreement shall be personally dehvered or mmled to the respective part~es by depositing same ~n the Umted States mall at the address shown below, certtfied mml, return receipt requested unless otherwise specffied here~n To D & T To CITY Deloitte & Touche, LLP C~ty of Denton, Texas 2200 Ross Avenue ATTN Anna Mosqueda State 1600 T~tle D~rector, Management and Budget Dallas, Texas 75201 215 E McK~nney Denton, Texas 76201 All nottces shall be deemed effective upon receipt by the party to whom such not~ce ~s g~ven ARTICLE 15 ENTIRE AGREEMENT Th~s Agreement, ~nclud~ng all Exhibits and Amendments annexed hereto and made a part hereof, constitutes the entire agreement between the part~es hereto w~th respect to the subject matter hereof and supersedes all other oral or written representattons, understandtngs or agreements relating to the subject matter hereof Neither party shall be bound by the prows~ons of any pre- pnnted or other written terms and conditions subsequent to the date of tl:ns Agreement relating to the GASB 34 PAGE 7 subject matter hereof unless such additional terms and conditions are made effective pursuant to the Amendments subsection of th~s section ARTICLE 16 SEVERABILITY If any prows~on of th~s Agreement ~s found or deemed by a court of competent jurisdiction to be ~nvahd or unenfomeable, ~t shall be considered severable from the remmnder of th~s Agreement and shall not cause the remmnder to be mvahd or unenforceable In such event, the pames shall reform tbas Agreement to replace such stricken pmws~on w~th a vahd and enforceable pmws~on which comes as close as possible to expressing the ~ntent~on of the stricken prows~on ARTICLE 17 COMPLIANCE WITH LAWS D & T shall comply w~th all federal, state, local laws, rules, regulations, and orthnances apphcable to the professional servmes performed pursuant to th~s Agreement, as they may now read or may hereafter be amended ARTICLE 18 EMPLOYMENT PRACTICES/DISCRIMINATION PROHIBITED In perfornnng the services reqmred hereunder, D & T shall not d~scnm~nate agmnst any person on the bas~s of race, color, rehg~on, sex, nauonal ong~n or ancestry, age, or physical hand~cap D & T agrees that ~n connection w~th the services to be prowded to CITY hereunder that ~t w~ll comply w~th all apphcable laws and regulations regarding employment d~scnm~nat~on ARTICLE 19 PERSONNEL/CONFLICTS OF INTEREST A D & T represents that ~t has or will secure at ~ts own expense all professional and support personnel reqmred to perform all the services reqmred under thts Agreement Such personnel shall not be employees or officers of, nor have any contractual relauons w~th CITY D & T shall inform the CITY of any conflict of ~nterest under the professional standards of the AICPA or the Texas State Board of Pubhc Accountancy that may be thscovered or arise during the term of tlus Agreement GASB 34 PAGE 8 B All services reqmred hereunder will be performed by D & T All persounel engaged in work shall be qualffied, and shall be authorized and permitted under state and local laws to perform such services ARTICLE 20 ASSIGNABILITY D & T shall not asstgn any tnterest tn tlus Agreement and shall not transfer any tnterest tn thts Agreement (whether by assignment, novation or otherwise) wtthout the prior written consent of the CITY ARTICLE 21 MODIFICATION OR AMENDMENT A No wmver or modfficatton of this Agreement or of may covenant, condmon or hnntatlon here~n contatned shall be vahd unless tn wnttng and duly executed by the party to be charged therewith and no evidence of any wmver or modfficatmn shall be offered or received tn evidence tn may proceeding arts~ng between the parttes hereto out of or affecting th~s Agreement, or the rights or obhgat~ons of the part~es hereunder, unless such wmver or modification ~s tn writing, duly executed, and, the part,es further agree that the provtsmns of ttus sectton wtll not be wmved unless as hereto set forth B No amendment ofthts Agreement shall be valid unless in writing and stgned by both part, es ARTICLE 22 FORCE MAJEURE Notwtthstandtng any other prows~on tn ttus Agreement, D & T shall not be hable or held responstble for any failure to perform or delays tn perforrmng ~ts obhgatlons under thts Agreement, ~nclu&ng but not hm~ted to, the completion of the audit and ~ssuance of ~ts report thereon, which result from ctrcumstances or causes beyond D & T's reasonable control, ~ncludtng, without hmltat~on, acts or omtss~ons or the fmlure to cooperate pursuant to th~s Agreement by CITY 0nclud~ng, w~thout hnntatton, entrees or md~wduals under tts control, or any of their respective officers, d~rectors, employees, other personnel and agents), fire or casualty, act of God, strike or labor d~spute, war or other wolence, or any law, order or reqmrement 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 wxth the laws of the State of Texas B in accomphshxng 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 m or upon, public and private property as reqmred for D & T to perform services under this Agreement E The headings of this Agreement are for informational purposes only and shall not m any way affect the substantive terms or conditions of tins 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, ~s authorized to enter into this Agreement 1N WITNESS WHEREOF, the City of Denton, Texas has caused th~s Agreement to be executed by its duly authorized City Manager, and D & T has executed thxs Agreement by and through its duly authorized undersigned Director on this the~,~t~/,/&lay of ~ ~ , 200 f CITY OF DENTON, TEXAS ! ~I~II~'H~L W {~j~,'C~ty Manager GASB 34 PAGE 10 ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY DELOITTE & TOUCHE TERRY KILE, Dtrector ATTEST GASB 34 PAGE 11 DeloRte & Touche LIP State 1600 ChaseTower 2200 Ross Avenue Dallas Texas 7S201 6778 Tel (214) 777 7000 Deloitte & Touche November 28, 2000 Ms Knstm Newman C,ty of Denton 215 E McKlnney Street Demon, TX 76201 Dear Ms Newman Delmtte & Touche LLP ("D&T") is pleased to provide this letter to confirm th~s engagement to prowde certain services to assist the City of Denton (the "City") in its implementing the reqmrements of Governmental Accounting Standards Board (GASB) Statement No 34, "Basic Financial Statements - and Management's D~scusslon and Analysis - for State and Local Governments" ("GASB 34") on the terms and conditions set forth herren 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 C~ty m converting the September 30, 2000 general purpose financial statements to thc format supulated ~n GASB 34 Phase 1 0 - ProJect Imtmt~on (expected to complete within 2 weeks from initiation date) D&T's objectives m this initial phase of the project is to assist the City m preparing an nnplementation 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, 1 3 Assist the City in ldemlfymg the types of information required under GASB 34 and of information sources at the City, 1 4 Idemify with the City the major funds to be presented at the fund level financial statemems, Deloitte Touche Exhibit A Tohrnatsu 1 5 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 w~thm 3 months from completion of Phase 1) 2 1 Provide consultation with respect to · Simplification ideas · Identification of consohdatlng and eliminating entries 2 2 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 m 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 m 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 2 Exhibit A 2 3 Summarize the critical areas where the C~ty will reqmre additional information or resources m order to complete the GASB 34 ~mplementat~on Also dunng th~s phase, D&T and the C~ty w~Ii joxntly develop possible recommendations of potential strategies the C~ty may adopt to facthtate finanmal statement preparation under GASB 34 Phase 3 0 - Dehverable (expected to complete w~thln 1 month of completion of Phase 2) Our deliverable for th~s project will be a written report that ~ncludes All the statements and schedules d~scussed m Phase 2 The comb~mng and ehm~naUng journal entries · A summary of cntmal areas where the C~ty w~ll reqmre addiUonal ~nformat~on and resources to complete GASB 34 ~mplementahon All the electmmc spreadsheets wall be ~ncluded as dehverable for th~s engagement Project Staffing We propose to staff thru engagement w~th Tracey Gmdry, manager, and Reem Samra and Terry K~le, directors Professional Fees and Term Our estimated professmnal fees for th~s 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/D~rector 30 $250 $ 7,500 Manager 60 145 8,700 Semor 160 120 19,200 25__Q0 $ 35,400 The estimated completion date of our project ~s dependent upon, among other th~ngs, your cooperatmn and the cooperaUon and avmlabd~ty of members of your staff 3 Exhibit A If the C~ty reqmres our asmstance in gathenng of ~nformat~on noted under task 1 5, the estimate to complete such act~wt~es ~s not ~ncluded ~n the fee estimate above We w~ll be happy to provide such asmstance at our hourly rate Such estxmates and description of the workplan are based on ~nformatmn known to us at the t~me of the mgmng of this engagement letter and the assumption that unexpected mrcumstances w~ll not be encountered durtng thxs engagement If modifications to our workplan are necessary, we wall promptly d~scuss such changes w~th you and arrive at a rewsed agreed-upon workplan description Th~s engagement letter, ~ncludmg the General Business Terms attached hereto as Exhibit I and made a part hereof, constitutes the entire agreement between the C~ty and D&T w~th respect to thts engagement, supercedes all other oral and written representatmns, understandings or agreements relating to th~s engagement, and may not be amended except by the mutual written agreement of the C~ty and D&T If the foregoing sets forth your understanding and you are ~n agreement w~th the terms and conditions set forth hereto, please mgn the enclosed copy of th~s letter at the space ~ndlcated below and return ~t to us Yours truly, ACCEPTED AND AGREED TO BY Pnntedn~eofmgn~r M~el W. Jez T~tle C~ty Manager Date February 20, 2001 Attachment 4 Exhibit A EXHIBIT I GENERAL BUSINESS TERMS I Serwces It is understood and agreed that the services of Deloitte & Touche LLP ("D&T) may include adwce and recommendations, but all decisions m connection with the implementation of such advice and recommendations shall be the respons~bthty of, and made by, City of Denton (the "Chent' ) In connection w~th ~ts services hereunder, D&T shall be entitled to rely on all declsmns and approvals of the Chent 2 Payment of Invmces Properly submitted mvo~ces upon which payment is not received w~tthn thirty (30) days of the invoice date shall accrue a late charge of the lesser of(l) 1 ½% per month or 01) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law W~thout hmltmg ~ts rights or remedies, D&T shah have the r~ght to halt or terminate entirely ~ts services until payment is received on past 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 e~ther party at any t~me by g~wng written notice to the other party not less than 30 calendar days before the effective date of termmatmn 4 Ownership a) D&T Technology D&T has created, acquired or otherwise has r~ghts m, and may, in connection with the performance of serwces hereunder, employ, provide, modify, create, acquire or otherwise obtain rlghts m, various concepts, ~deas, methods, methodologies, procedures, processes, know-how, and techmques (including, without limitation, function, process, system and data models, templates, the generalized 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 m the engagement letter to which these terms are attached (the "Dehverables") shall become the property of the Chent To the extent that any D&T Technology Is contained m any of the Deliverables, D&T hereby grants the Chent, upon full and final payment to D&T hereunder, a royalty-free, fully paid-up, worldwide, non-exclusive hcense to use such D&T Technology in connection w~th the Dehverables c) Ownership of D&T Property To the extent that D&T utthzes any of its property (including, without hmltat~on, the D&T Technology or any hardware or software of D&T) in connection w~th 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 Chent shall acquire no right or interest in such property Notwithstanding anything in this engagement letter, including these terms, to the contrary, the part,es acknowledge and agree that (a) D&T shall own all right, t~tle, and interest, including, without hmitat~on, all r~ghts 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, w~thout hm~tatlon, providing services or creating programming or materials for other chents) D&T does not agree to any terms that may be construed as precluding or lnmt~ng m any way ~ts right to (a) prowde consulting or other serwces of any kind or nature whatsoever to any person or entity as D&T m ~ts sole d~scretlon deems appropriate or (b) develop for itself, or for others, matermls that are competitive w~th those produced as a result of the sarwces prowded hereunder, ~rrespect~ve of their similarity to the Dehverables 5 5 L~m~tatlon 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 L~mltat~on on Damages a) The Chent agrees that D&T and its personnel shall not be hable to the Client for any claims, habtht~es, or expenses relating to th~s engagement for an aggregate amount m excess of the fees pa~d by the Chent to D&T pursuant to this engagement, except to the extent finally.~uthcmlly determined to have resulted from the bad faith or intentional misconduct of D&T In no event shall D&T or ~ts personnel be hable for consequential, special, indirect, incidental, putative or exemplary loss, damage, or expense relating to th~s engagement b) The hm~tatlon on habthty of this engagement letter shall apply to the fullest extent of the law, whether m contract, statute, tort (such as negligence), or otherwise 7 Cooperation The Client shall cooperate w~th D&T in the performance by D&T of its services hereunder, including, without limitation, providing D&T with reasonable factht~es and timely access to data, reformation and personnel of the Chent The Chent shall be responsible for the performance of ~ts personnel and agents and for the accuracy and completeness of all data and mformation prowded to D&T for purposes of the performance by D&T of ~ts serwces hereunder 8 Force Majeure D&T shall not be liable for any failures or delays resulting from circumstances or causes beyond ~ts reasonable control, mcluthng, without limitation, acts or omissions or the failure to cooperate pursuant to th~s engagement letter, including these terms, by the Chent (including, w~thout hmitat~on, entlt~es or mthv~duals 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 th~s engagement, may be brought by e~ther 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 IndependentContraetor It ls understood and agreed that each ofthe part~es hereto ls an ~ndependent contractor and that neither party IS, nor shall be considered to be, an agent, thstributor or representative of the other Neither party shall act or represent itself, directly or by ~mphcatmn, as an agent of the other or m any manner assume or create any obligation on behalf of, or in the name of, the other 11 Confidentlahty and Internal Use a) The Chent agrees that all serwces hereunder and Dehverables shall be solely for the Chent s mformat~onal purposes and ~nternal use The Chant further agrees that such serwces and Dehverables shall not be used by, or circulated, quoted, d~sclosed, or distributed to, nor shall reference to such serwces or Dehverables be made to, any person or entity other than the Chent b) To the extent that, m connection with th~s engagement, D&T comes rote possession of any proprietary or confidential mformatmn of the Chent, D&T w~ll not disclose such mformatmn to any third party without the Chent's consent, except (a) as may be reqmred by law, regulatmn, judmml or administrative process, or ~n accordance w~th apphcable professional standards, or m connection w~th ht~gat~on pertaining hereto, or (b) to the extent such information 0) shall have otherwise become pubhcly available (including, w~thout hm~tat~on, any mformat~on filed w~th any governmental agency and avmlable to the pubhc) other than as the result ora d~sclosure by D&T m breach hereof, (n) ~s d~sclosed by the Chent to a third party w~thout substantmlly the same restrictions as set forth hereto, (m) becomes available to D&T on a nonconfidential bas~s from a source other than the Chent whmh D&T does not beheve ~s proh~baed from d~sclos~ng such information to D&T by obhgat~on to the Chent, 0v) is known by D&T pr~or to Its receipt from the Chent w~thout any obhgat~on of confidentlahty w~th respect thereto, or (v) ~s developed by D&T independently of any d~sclosums made by the Chent to D&T of such mformat~on In addmon, the Chent acknowledges and agrees that any such mformat~on that comes to the attention of D&T m the course of performing th~s engagement will be considered and used by D&T ~n the context of responding to ~ts professional obhgatmns as the independent accountants for the Chent 12 Survival TheagreementsandundertakmgsoftheChentcontamedmtheengagementlettertowhmhthese terms are attached, together w~th the prov~s~ons of Paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 hereof, shall surwve the expiration or termination ofth~s engagement 13 Asstgnment Except as provlded below, ne~therpartymayasslgn, transfer or delegate any ofthe rlghts or obhgat~ons hereunder w~thout the pr~or written consent of the other party D&T may assign or subcontract ~ts rights and obhgat~ons hereunder to any affihate or related entity w~thout the consent of the Chent 14 GovernmgLawandSeverabfl~ty These terms, and the engagemenl letter to wh~ch these terms are appended, including the exhibits, shall be governed by, and construed In accordance w~th, the laws of the State of New York (w~thout g~wng effect to the chome of law prmc~ples thereof) If any prowsmn of th~s engagement letter, including these terms, is found by a court of competent junsd~ctmn to be unenforceable, such prowslon shall not affect the other prows~ons, but such unenforceable prowsmn shall be deemed modified to the extent necessary to render ~t enforceable, preserving to the fullest extent permissible the intent of the part, es set forth In th~s engagement letter, including these terms