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Hinderliter De Llamas and Associates - FY2023-018 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 CITY OF RANCHO PALOS VERDES AGREEMENT FOR SALES TAX , ALLOCATION AUDIT, RECOVERY, ECONOMIC ANALYSIS, CONSULTING & OPTIONAL SERVICES THIS PROFESSIONAL SERVICES AGREEMENT (herein "Agreement") is made and entered into this 14th day of September, 2022, by and between the CITY OF RANCHO PALOS VERDES, a California municipal corporation ("City"), and HINDERLITER, DE LLAMAS AND ASSOCIATES, a California Corporation (herein "Consultant") NOW,THEREFORE, the parties hereto agree as follows 1 SERVICES OF CONSULTANT 1 1 Scope of Services In compliance with all of the terms and conditions of this Agreement, the Consultant shall perform the work or services set forth in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by reference Consultant warrants that it has the experience and ability to perform all work and services required hereunder and that it shall diligently perform such work and services in a professional and satisfactory manner 1 2 Compliance With Law All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency of competent jurisdiction 1 3 California Labor Law If the Scope of Services includes any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seg and California Code of Regulations, Title 8, Section 16000 et seq , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq and 1810 et seq , and all other applicable laws 1 4 Licenses, Permits, Fees and Assessments Consultant shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by the Agreement 15 Special Requirements Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit"B" shall govern 2 COMPENSATION 2 1 Contract Sum For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference, but not exceeding the maximum contract amount of n/a(see Exhibit "C") ("Contract Sum") 1 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 2 2 Invoices Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement The invoice shall detail charges for all necessary and actual expenses by the following categories labor (by sub- category), travel, materials, equipment, supplies, and sub-contractor contracts Sub-contractor charges shall also be detailed by such categories Consultant shall not invoice City for any duplicate services performed by more than one person City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, City will use its best efforts to cause Consultant to be paid within forty five (45) days of receipt of Consultant's correct and undisputed invoice, however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission Review and payment by the City of any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law 2 3 Additional Services City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant Any increase in compensation of up to ten percent(10%) of the Contract Sum but not exceeding a total contract amount of Five Thousand Dollars ($5,000) or in the time to perform of up to ninety (90) days may be approved by the Contract Officer Any greater increases, taken either separately or cumulatively, must be approved by the City Council No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed 3. PERFORMANCE SCHEDULE 3 1 Time of Essence Time is of the essence in the performance of this Agreement 3 2 Schedule of Performance Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this reference When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding thirty(30) days cumulatively 3 3 Force Majeure The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public 2 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of the Agreement pursuant to this Section 3 4 Term Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit"D") 4 COORDINATION OF WORK 4 1 Representative of Consultant Andrew Nickerson, President, is hereby designated as being the representative of Consultant authorized to act on its behalf with respect to the work and services specified herein and make all decisions in connection therewith All personnel of Consultant and any authorized agents shall be under the exclusive direction of the representative of Consultant Consultant shall utilize only competent personnel to perform services pursuant to this Agreement Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff and subcontractors, and shall keep City informed of any changes 4 2 Contract Officer City's Director of Finance or such person as may be designated by the City Manager is hereby designated as being the representative the City authorized to act in its behalf with respect to the work and services specified herein and to make all decisions in connection therewith ("Contract Officer") 4 3 Prohibition Against Subcontracting or Assignment Consultant shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the City Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City Any such prohibited assignment or transfer shall be void 4 4 Independent Consultant Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth Consultant shall perform all services required herein as an independent contractor of City with only such obligations as are consistent with that role Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City, or that it is a member of a joint enterprise with City /// /// 3 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 5 INSURANCE AND INDEMNIFICATION 5 1 Insurance Coverages Without limiting Consultant's indemnification of City, and prior to commencement of any services under this Agreement, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City (a) General liability insurance Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage The policy must include contractual liability that has not been amended Any endorsement restricting standard ISO "insured contract" language will not be accepted (b) Automobile liability insurance Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non- owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident (c) Professional liability (errors & omissions) insurance Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of$1,000,000 per claim and in the aggregate Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three(3) years after completion of the services required by this Agreement (d) Workers' compensation insurance Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least$1,000,000) (e) Subcontractors Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor All coverages for subcontractors shall include all of the requirements stated herein (f) Additional Insurance Policies of such other insurance, as may be required in the Special Requirements in Exhibit"B" 5 2 General Insurance Requirements (a) Proof of insurance Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance Current certification of insurance shall be kept on file with City at all times during the term of this Agreement City reserves the right to require complete, certified copies of all required insurance policies, at any time 4 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 (b) Duration of coverage Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants (c) Primary/noncontributing Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured (d) City's rights of enforcement In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments In the alternative, City may cancel this Agreement (e) Acceptable insurers All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager (f) Waiver of subrogation All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants (g) Enforcement of contract provisions (non-estoppel) Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder (h) Requirements not limiting Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City 5 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 (i) Notice of cancellation Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage (I) Additional insured status General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies This provision shall also apply to any excess/umbrella liability policies (k) Prohibition of undisclosed coverage limitations None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing (I) Separation of insureds A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability The policy(ies) shall not contain any cross-liability exclusions (m) Pass through clause Consultant agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review (n) Agency's right to revise specifications The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation (o) Self-insured retentions Any self-insured retentions must be declared to and approved by City City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible Self-insurance will not be considered to comply with these specifications unless approved by City (p) Timely notice of claims Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies (q) Additional insurance Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work 5 3 Indemnification To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents ("Indemnified 6 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, invitees, or any individual or entity for which Consultant is legally liable ("indemnitors"), or arising from Consultant's or indemnitors' reckless or willful misconduct, or arising from Consultant's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, except claims or liabilities occurring as a result of City's sole negligence or willful acts or omissions The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement 5 4 RECORDS,REPORTS,AND RELEASE OF INFORMATION 5 5 Records Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services and shall keep such records for a period of three years following completion of the services hereunder The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records 5 6 Reports Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement or as the Contract Officer shall require 5 7 Confidentiality and Release of Information (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant Consultant shall not release or disclose any such information or work product to persons or entities other than the City without prior written authorization from the Contract Officer (b) Consultant shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives the City notice of such court order or subpoena (c) If Consultant provides any information or work product in violation of this Agreement, then the City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Consultant's conduct 7 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 (d) Consultant shall promptly notify the City should Consultant be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder The City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding Consultant agrees to cooperate fully with the City and to provide the City with the opportunity to review any response to discovery requests provided by Consultant 5 8 Ownership of Documents All studies, surveys, data, notes, computer files, reports, records, drawings, specifications, maps, designs, photographs, documents and other materials (the "documents and materials") prepared by Consultant in the performance of this Agreement shall be the property of the City and shall be delivered to the City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by the City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder Moreover, Consultant with respect to any documents and materials that may qualify as "works made for hire" as defined in 17 U S C § 101, such documents and materials are hereby deemed "works made for hire" for the City 6 ENFORCEMENT OF AGREEMENT AND TERMINATION 6 1 California Law This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California In the event of litigation in a U S District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California 6 2 Disputes, Default In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default instead, the City may give notice to Consultant of the default and the reasons for the default The notice shall include the timeframe in which Consultant may cure the default This timeframe is presumptively thirty (30) days, but may be extended, if circumstances warrant During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article 6 3 Legal Action In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et seq and 910 et seq , in order to pursue any legal action under this Agreement Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or 8 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 different times, of any other rights or remedies for the same default or any other default by the other party 6 4 Termination Prior to Expiration of Term This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer In addition, the Consultant reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder, but not exceeding the compensation provided therefore in the Schedule of Compensation Exhibit "C" In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7 2 6 5 Termination for Default of Consultant If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7 2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated 7. MISCELLANEOUS 7 1 Covenant Against Discrimination Consultant covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them,that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class in the performance of this Agreement Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class 7 2 Non-liability of City Officers and Employees No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount, which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement 9 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 7 3 Notice Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer(with her/his name and City title), City of Rancho Palos Verdes, 30940 Hawthorne Blvd , California 90275 and in the case of the Consultant, to the person(s) at the address designated on the execution page of this Agreement Either party may change its address by notifying the other party of the change of address in writing Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section 7 4 Integration, Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing 7 5 Severability In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless 7 6 Waiver No delay or omission in the exercise of any right or remedy by non-defaulting party on any default shall impair such right or remedy or be construed as a waiver A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement 7 7 Attorneys' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which any be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter proceeds to judgment 7 8 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply 7 9 Counterparts This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument 10 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 7 10 Warranty & Representation of Non-Collusion No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091 5 Consultant warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect Os [N Consultant's Authorized Initials 7 11 Corporate Authority The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties [Signatures On The Following Page] 11 DocuSlgn Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written CITY CIT . e ' •N . •- 'ALOS VERDES, a •.onicipal oration Zwalla Ara •anian, ity Manager ATTEST eresa aoka, City Clerk APPROVED AS TO FORM: ALESHIRE& WYNDER, LLP Zddievi41 ��►^ -� William W Wynder, City Attorney CONSULTANT Hinderliter de Llamas and Associates DocuSlgned by By[Wt rt0/ kkUrsoln, 2A93933940t2482 Name Andrew Nickerson Title President DocuSigned by By Patzt of Po �—'DD a02c?t,21.40.2 Name Richard Park Title CFO Address 120 S State College Blvd #200 Brea, CA 92821 Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups 1) Chairman of the Board, President or any Vice President, and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY 12 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 EXHIBIT"A" SCOPE OF SERVICES A SALES TAX AND ECONOMIC ANALYSIS SERVICES 1 CONTRACTOR shall establish a special database that identifies the name, address and quarterly allocations of all sales tax producers within the CITY for the most current and all quarters back to fiscal year 1991-1992 or earlier, if the CITY has prior historical sales tax data available on computer readable magnetic media This database will be utilized to generate special reports to the CITY on major sales tax producers by rank and category, sales tax activity by categories, or business districts, identification of reporting aberrations, and per capita and outlet comparisons with regional and statewide sales 2 CONTRACTOR shall provide updated reports following each calendar quarter identifying changes in sales by individual businesses, business groups and categories and by geographic area These reports may include, without limitation, quarterly aberrations due to State audits, fund transfers, and receivables along with late or double payments, and quarterly reconciliation worksheets to assist with budget forecasting CONTRACTOR will provide CITY mailer services quarterly 3 CONTRACTOR shall additionally provide following each calendar quarter a summary analysis for the CITY to share with Council Members Chambers of Commerce, other economic development interest groups and the public that analyze CITY'S sales tax trends by major groups, and geographic areas without disclosing confidential information 4 CONTRACTOR shall make available to CITY staff CONTRACTOR's web- based sales tax computer software program containing sellers permit and quarterly allocation information for all in-city business outlets registered with the Department of Tax and Fee Administration and updated quarterly This software shall allow CITY staff to search businesses by street address, account number, business name, business type and keyword, arrange data by geographic area, and print out a variety of reports B ALLOCATION AUDIT AND RECOVERY SERVICES 1 CONTRACTOR shall conduct initial and on-going sales, use and transactions tax audits to identify and correct distribution and allocation errors, and to proactively affect favorable registration, reporting or formula changes thereby generating previously unrealized sales, use and transactions tax income for the B-1 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 CITY and/or recovering misallocated tax from previously properly registered taxpayers Common errors that will be monitored and corrected include, but are not limited to transposition errors resulting in misallocations, erroneous consolidation of multiple outlets, formula errors, misreporting of"point of sale" to the wrong location, delays in reporting new outlets, misallocating use tax payments to the allocation pools or wrong jurisdiction, and erroneous fund transfers and adjustments 2 CONTRACTOR shall initiate contacts with state agencies, and sales management and accounting officials in companies that have businesses where a probability of error exists to verify whether current tax receipts accurately reflect the local sales activity Such contacts will be conducted in a professional and courteous manner 3 CONTRACTOR shall (i) prepare and submit to the Department of Tax and Fee Administration information for the purpose of correcting allocation errors that are identified and (ii) follow-up with individual businesses and the California Department of Tax and Fee Administration to promote recovery by the CITY of back or prospective quarterly payments that may be owing 4 If during the course of its audit, CONTRACTOR finds businesses located in the CITY that are properly reporting sales and use tax but have the potential for modifying their operation to provide an even greater share to the CITY, CONTRACTOR may so advise CITY and work with those businesses and the CITY to encourage such changes C CONSULTING AND OTHER OPTIONAL SERVICES CONTRACTOR may, from time to time in its sole discretion, consult with CITY staff, including without limitation, regarding (i) technical questions and other issues related to sales, use and transactions tax, (ii) utilization of reports to enhance business license collection efforts, and (iii) sales tax projections for proposed annexations, economic development projects and budget planning In addition to the foregoing optional consulting services, CONTRACTOR may, from time to time in its sole discretion, perform other optional Services, including without limitation, negotiating/review of tax sharing agreements, establishing purchasing corporations, and meeting with taxpayers to encourage self-assessment of use tax DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 EXHIBIT "B" SPECIAL REQUIREMENTS [THIS PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 EXHIBIT "C" SCHEDULE OF COMPENSATION A CONTRACTOR shall provide the sales tax and economic analysis Services described in the above for a fee of$250 per month, commencing with the month of the Effective Date (hereafter referred to as "monthly fee") The monthly fee shall be invoiced quarterly in arrears, and shall be paid by CITY no later than 30 days after the invoice date The monthly fee shall increase annually following the month of the Effective Date by the percentage increase in the "CPI" for the preceding twelve-month period In no event shall the monthly fee be reduced by this calculation For purposes of this Agreement, the "CPI" shall mean the Consumer Price Index - All Urban Consumers for the surrounding statistical metropolitan area nearest CITY, All Items(1982-84 = 100), as published by the U S Department of Labor, Bureau of Labor Statistics, or, if such index should cease to be published, any reasonably comparable index selected by CONTRACTOR B CONTRACTOR shall be further paid 15% of all new and recovered sales, use and transactions tax revenue received by the CITY as a result, in whole or in part, of the allocation audit and recovery services described in the above (hereafter referred to as "audit fee"), including without limitation, any reimbursement or other payment from any state fund and any point of sale misallocations 1 The audit fee shall be paid even if CITY assists, works in parallel with, and/or incurs attorneys' fees or other costs or expenses in connection with any of the relevant Services Among other things, the audit fee applies to state fund transfers received for back quarter reallocations and monies received in the first eight consecutive reporting quarters following completion of the allocation audit by CONTRACTOR and confirmation of corrections by the California Department of Tax and Fee Administration CITY shall pay audit fees upon CONTRACTOR'S submittal of evidence of CONTRACTOR'S work in support of recovery of subject revenue, including, without limitation, copies of CDTFA 549-S petition forms of any other correspondence between CONTRACTOR and the Department of Tax and Fee Administration or the taxpayer 1 For any increase in the tax reported by businesses already properly making tax payments to CITY, it shall be CONTRACTOR's responsibility to support in its invoices the audit fee attributable, in whole or in part, to CONTRACTOR's Seryices C-1 DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 C CONTRACTOR shall invoice CITY for any consulting and other optional Services rendered to CITY in accordance with the above based on the following hourly rates on a monthly or a quarterly basis, at CONTRACTOR's option All such invoices shall be payable by CITY no later than 30 days following the invoice date CITY shall not be invoiced for any consulting Services totaling less than an hour in any month The hourly rates in effect as of the Effective Date are as follows Principal $325 per hour Programmer $295 per hour Senior Analyst $245 per hour Analyst $195 per hour D CONTRACTOR may change such hourly rates from time to time upon not less than 30 days' prior written notice to CITY E Any invoices not paid in accordance with the Thirty(30) day payment terms, shall accrue monthly interest at a rate equivalent to ten percent(10%) per annum until paid F CONTRACTOR unilaterally retains the right to divide any recovery bills in excess of $25,000 over a one(1) year period (Four(4) quarterly billings) G CONTRACTOR shall provide CITY with an itemized quarterly invoice showing all formula calculations and amounts due for the audit fee (including, without limitation, a detailed listing of any corrected misallocations), which shall be paid by CITY no later than 30 days following the invoice date CONFIDENTIALITY, OWNERSHIP/USE OF INFORMATION A Section 7056 of the State of California Revenue and Taxation Code specifically limits the disclosure of confidential taxpayer information contained in the records of the California Department of Tax and Fee Administration Section 7056 specifies the conditions under which a CITY may authorize persons other than CITY officers and employees to examine State Sales and Use Tax records B The following conditions specified in Section 7056-(b), (1) of the State of California Revenue and Taxation Code are hereby made part of this Agreement 1 CONTRACTOR is authorized by this Agreement to examine sales, use or transactions and use tax records of the Department of Tax and Fee Administration provided to CITY pursuant to contract under the Bradley-Burns Uniform Sales and Use Tax Law Revenue and Taxation Code section 7200 et seq 2 CONTRACTOR is required to disclose information contained in, or derived from, those sales, use or transactions and use tax records only to an officer or employee of the CITY who is authorized by resolution to examine the information DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 3 CONTRACTOR is prohibited from performing consulting services for a retailer, as defined in California Revenue & Taxation Code Section 6015, during the term of this Agreement 4 CONTRACTOR is prohibited from retaining the information contained in, or derived from those sales, use or transactions and use tax records, after this Agreement has expired Information obtained by examination of Department of Tax and Fee Administration records shall be used only for purposes related to collection of local sales and use tax or for other governmental functions of the CITY as set forth by resolution adopted pursuant to Section 7056 (b) of the Revenue and Taxation Code The resolution shall designate the CONTRACTOR as a person authorized to examine sales and use tax records and certify that this Agreement meets the requirements set forth above and in Section 7056 (b), (1) of the Revenue and Taxation Code C Software Use CONTRACTOR hereby provides authorization to CITY to access CONTRACTOR'S Sales Tax website if CITY chooses to subscribe to the software and reports option The website shall only be used by authorized CITY staff No access will be granted to any third party without explicit written authorization by CONTRACTOR CITY shall not sublet, duplicate, modify, decompile, reverse engineer, disassemble, or attempt to derive the source code of said software The software use granted hereunder shall not imply ownership by CITY of said software, or any right of CITY to sell said software or the use of same, or any right to use said software for the benefit of others This software use authorization is not transferable Upon termination or expiration of this Agreement, the software use authorization shall expire, and all CITY staff website logins shall be de-activated D Proprietary Information As used herein, the term "proprietary information" means all information or material that has or could have commercial value or other utility in CONTRACTOR's business, including without limitation CONTRACTOR'S (1) computer or data processing programs, (ii) data processing applications, routines, subroutines, techniques or systems, desktop or web-based software, (iii) business processes, (iv) marketing plans, analysis and strategies, and (v) materials and techniques used, as well as the terms and conditions of this Agreement Except as otherwise required by law, CITY shall hold in confidence and shall not use (except as expressly authorized by this Agreement) or disclose to any other party any proprietary information provided, learned of or obtained by CITY in connection with this Agreement The obligations imposed by this Section shall survive any expiration or termination of this Agreement or otherwise The terms of this Section shall not apply to any information that is public information DocuSign Envelope ID 878A5746-13FF-45C7-AFB1-45AF63955CC1 EXHIBIT "D" SCHEDULE OF PERFORMANCE I Consultant shall perform all Services during the term of this Agreement which shall not exceed June 30,2025. II The City may, in its sole and unfettered discretion, extend the Term of this Agreement without change to the compensation formula up to two (2) times, each time for a period of one year D-1