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HomeMy WebLinkAboutReso 79-17 Amending & Restating Agrmnt with Hinderliter, de Llamas & Assoc RESOLUTION NO. 79 — 17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING AND RESTATING CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND HINDERLITER, de LLAMAS AND ASSOCIATES WHEREAS, pursuant to Ordinance No. 8-82, the City of Dublin entered into a contract with the State Board of Equalization to perform all functions relating to the administration and collections of local sales and use taxes; and WHEREAS, the City Council of the City of Dublin and Hinderliter, de Llamas and Associates entered into an agreement on August 14, 1989 to investigate and review sales and use tax transactions and collections for the City, contained in the records of the State Board of Equalization; and WHEREAS, the City and the Consultant now wish to amend and restate the Agreement to update the Agreement terms to reflect the City's current needs and to increase the compensation as to reflect the updated scope of services. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve amended and restated consulting services agreement with Hinderliter, de Llamas and Associates, as attached hereto as Exhibit A. PASSED, APPROVED AND ADOPTED this 20th day of June 2017, by the following vote: AYES: Councilmembers Biddle, Gupta, Hernandez and Mayor Haubert NOES: ABSENT: Councilmember Goel ABSTAIN: Mayor ATTEST: peP.L+,f City Clerk Reso No. 79-17, Adopted 6/20/2017, Item No. 4.9 Page 1 of 1 AMENDED AND RESTATED CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND HINDERLITER,de LLAMAS AND ASSOCIATES WHEREAS, sales, use and transactions tax (sometimes collectively referred to herein as "sales and use tax") revenues can be increased through a system of continuous monitoring, identification and correction of allocation errors,and WHEREAS, an effective program of sales and use tax management will improve identification of economic opportunities; provide for more accurate sales and use tax forecasting; and assist in related revenue collections; and WHEREAS, City desires the combination of data entry, report preparation and analysis necessary to effectively manage its sales and use tax base; the recovery of revenues erroneously allocated to other jurisdictions and allocation pools; and to maximize its financial and economic planning;and WHEREAS, Consultant has the programs, equipment and personnel required to deliver the sales and use tax related services referenced herein; WHEREAS, CITY and Contractor entered into a Sales Tax Analysis, Audit and Information Services agreement dated August 14, 1989; WHEREAS, CITY and Contractor now desire to update the Agreement terms to reflect the City's current needs and the Contractor's current offerings; NOW THEREFORE, CITY and Consultant, for the consideration hereinafter described, mutually agree to enter into this Amended and Restated Agreement as follows: [This section is intentionally left blank] 1 i I This Amended and Restated Agreement is made and entered into between the City of Dublin ("City") and Hinderliter de lammas & Associates ("Consultant") as of July 1, 2017 (the "Effective Date"). In consideration of their mutual covenants,the parties hereto agree as follows: Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A,the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end on June 30,2020,the date of completion specified in Exhibit A,and Consultant shall complete the work described in Exhibit A prior to that date,unless the term of the Agreement is otherwise terminated or extended,as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial,first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City,in its sole discretion,at any time during the term of this Agreement,desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant fees for services as shown in Exhibit B, Compensation Schedule, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal,attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently,the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees,agents,and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement,based on the cost for services performed and reimbursable costs incurred prior to the invoice date. No individual performing work under this Contract shall bill more than 2,000 hours in a fiscal year unless approved, in writing,by the City Manager or his/her designee.Invoices shall contain the following information: ■ Serial identifications of progress bills;i.e., Progress Bill No. 1 for the first invoice, etc.; ■ The beginning and ending dates of the billing period; ■ A copy of the applicable time entries or time sheets shall be submitted showing the following: o Daily logs of total hours worked by each individual performing work under this Contract o Hours must be logged in increments of tenths of an hour or quarter hours o If this Contract covers multiple projects,all hours must also be logged by project assignment o A brief description of the work, and each reimbursable expense ■ A Task Summary containing the original contract amount,the amount of prior billings,the total due this period,the balance available under the Agreement,and the percentage of completion; ■ The total number of hours of work performed under the Agreement by Consultant and each employee,agent,and subcontractor of Consultant performing services hereunder,as well as a separate notice when the total number of hours of work by Consultant and any individual employee,agent,or subcontractor of Consultant reaches or exceeds 800 hours,which shall include an estimate of the time necessary to complete the work described in Exhibit A; ■ The Consultant's signature. 2.2 Monthly Payment. City shall make monthly payments,based on invoices received,for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement, City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement, City shall make no payment for any extra,further,or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.4 Hourly Fees. Fees for work performed by Consultant on based on the amounts shown on t the compensation schedule attached as Exhibit B. 2.5 fRESERVED1 2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 3 2.7 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8,the City shall compensate the Consultant for all outstanding costs incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.8 Authorization to Perform Services, The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein,Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section,and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks,filing cabinets,and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location,quantity, and time of furnishing those facilities shall be in the sole discretion of City, In no event shall City be obligated to furnish any facility that may involve incurring any direct expense,including but not limited to computer,long-distance telephone or other communication charges,vehicles,and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense,shall procure"occurrence coverage' insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives,employees,and subcontractors. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractors to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s)and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to City as an additional insured. Furthermore,the requirements for coverage and limits shall be(1)the minimum coverage and limits specified in this Agreement;or(2)the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured;whichever is greater. The additional insured coverage under the Consultant's policy shall be"primary and non-contributory"and will not seek contribution from City's insurance or self- insurance and shall be at least as broad as CG 20 0104 12. In the event Consultant fails to maintain coverage as required by this Agreement,City at its sole discretion may purchase the coverage required and the cost will be paid by Consultant. Failure to exercise this right shall not constitute a waiver of right to exercise later. Each insurance policy shall include an endorsement providing that it shall not be cancelled,changed, or allowed to lapse without at least thirty(30)days'prior written notice to City of such cancellation,change,or lapse. 4.1 Workers'Compensation. Consultant shall,at its sole cost and expense,maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers'Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS($1,000,000.00)per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance 4 complies fully with the provisions of the California Labor Code. Determination of whether a self- insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator.The insurer, if insurance is provided,or the Consultant,if a program of self- insurance is provided, shall waive all rights of subrogation against the City and its officers,officials, employees,and volunteers for loss arising from work performed under this Agreement. An endorsement shall state that coverage shall not be canceled except after thirty(30) days'prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended,voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used,either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury,including death resulting therefrom,and damage to property resulting from activities contemplated under this Agreement,including the use of owned and non- owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 1 ("any auto"). 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers,employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following:liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant;premises owned,occupied,or used by Consultant;and automobiles owned,leased,or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers,employees,agents,or volunteers. b. The insurance shall cover on an occurrence or an accident basis,and not on a claims-made basis. C. An endorsement must state that coverage is primary insurance with respect to the City and its officers,officials,employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. 5 d. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers,employees, agents,and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty(30)days'prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended,voided or reduced in coverage or in limits. 4.3 Professional Liability Insurance. Consultant,at its own cost and expense,shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS($1,000,000)covering the licensed professionals'errors and omissions. 4.3.1 Any deductible or self-insured retention shall not exceed$150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be suspended,voided, canceled by either party,reduced in coverage or in limits,except after thirty(30)days' prior written notice by certified mail, return receipt requested, has been given to the City. 43.3 The following provisions shall apply if the professional liability coverages are written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work,so long as commercially available at reasonable rates. C. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement,Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise,at the Consultant's sole cost and expense,any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests'rating of no less than A:VII. 4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Consultant shall fumish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its 6 behalf. The City reserves the right to require complete,certified copies of all required insurance policies and endorsements. Failure to exercise this right shail not constitute a waiver of right to exercise later. 4.4.3 Sub consultants. Consultant agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement including the Indemnification and Insurance requirements to the extent they apply to the scope of the sub consultant's work.sub consultants hired by Consultant agree to be bound to Consultant and the City in the same manner and to the same extent as Consultant is bound to the City under the Contract Documents. Sub consultant further agrees to include these same provisions with any Sub-subcontractor. A copy of the Owner Contract Document Indemnity and Insurance provisions will be furnished to the sub consultant upon request. The General Consultant shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and will provide proof of compliance to the City. 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages,scope,limits,and forms of such insurance are either not commercially available,or that the City's interests are otherwise fully protected. 4.4.5 Deductibles and Self-Insured Retentions. All self-insured retentions(SIR) and/or deductibles must be disclosed to the City for approval and shall not reduce the limits of liability. Policies containing any self-insured retention provision and/or deductibles shall provide or be endorsed to provide that the SIR and/or deductibles may be satisfied by either the named insured or the City. 4.4.6 Excess Insurance. The limits of insurance required in this Agreement 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(if agreed to in a written contract or agreement)before City's own insurance or self-insurance shall be called upon to protect City as a named insured. 4.4.7 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced,limited,or materially affected in any other manner,Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required,City may, at its sole option exercise any of the following remedies,which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: ■ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; ■ Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder,or both stop work and withhold any payment,until Consultant demonstrates compliance with the requirements hereof;and/or 7 ■ Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. To the maximum extent allowed by law, Consultant shall indemnify, keep and save harmless the City, and City Councilmembers,officers, agents and employees against any and all suits,claims or actions arising out of any injury to persons or property, including death,that may occur,or that may be alleged to have occurred,in the course of the performance of this Agreement by a negligent act or omission or wrongful misconduct of the Consultant or its employees,subcontractors or agents. Consultant further agrees to defend any and all such actions,suits or claims and pay all charges of attorneys and all other costs and expenses arising therefrom or incurred in connection therewith;and if any judgment be rendered against the City or any of the other individuals enumerated above in any such action, Consultant shall,at its expense,satisfy and discharge the same. Consultant's responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to,and shall not in any way be limited by,the insurance obligations contained in this Agreement. In the event that Consultant or any employee,agent,or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS)to be eligible for enrollment in PERS as an employee of City,Consultant shall indemnify,defend,and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees,agents,or subcontractors,as well as for the payment of any penalties and interest on such contributions,which would otherwise be the responsibility of City. Consultant/Sub consultant's responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. Section 6. STATUS OF CONSULTANT. 6.1 Independent Consultant. At all times during the term of this Agreement,Consultant shall be an independent Consultant and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however,otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City,state,or federal policy, rule, regulation, law,or ordinance to the contrary, Consultant and any of its employees,agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation,benefit,or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System(PERS)as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No Agent. Except as City may specify in writing,Consultant shall have no authority,express or implied,to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority,express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 8 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity,Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents,and any subcontractors have all licenses,permits, qualifications,and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees,agents,any subcontractors shall,at their sole cost and expense,keep in effect at all times during the term of this Agreement any licenses,permits,and approvals that are legally required to practice their respective professions. In addition to the foregoing,Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate,on the basis of a person's race, religion,color, national origin, age,physical or mental handicap or disability,medical condition, marital status,sex,or sexual orientation, against any employee, applicant for employment,subcontractor, bidder for a subcontract,or participant in,recipient of,or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules,and requirements related to equal opportunity and nondiscrimination in employment,contracting,and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days'written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs,computer software,video and audio tapes,and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may,in its sole and exclusive discretion,extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement,as provided for herein. Consultant understands and agrees that, if City grants such an extension,City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly,unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 9 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence,experience,and specialized personal knowledge. Moreover,a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein,other than to the subcontractors noted in the proposal,without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included,but not be limited to,the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans,specifications,drawings, reports,design documents,and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant;or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance All reports,data, maps, models,charts,studies,surveys, photographs,memoranda,plans,studies,specifications, records, files,or any other documents or materials, in electronic or any other form,that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement, It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City,all data, plans,specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account,invoices,vouchers,canceled checks,and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three(3)years,or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 10 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS($10,000.00),the Agreement shall be subject to the examination and audit of the State Auditor,at the request of City or as part of any audit of the City,for a period of three(3)years after final payment under the Agreement. 9.4 Confidentiality;Ownership/Use of Information. 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 State Board of Equalization. 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. 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; Consultant is authorized by this Agreement to examine sales,use or transactions and use tax records of the Board of Equalization provided to City pursuant to contract under the Bradley-Bums Uniform Sales and Use Tax Law Revenue and Taxation Code section 7200 et.seq. • Consultant 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. • Consultant is prohibited from performing consulting services for a retailer, as defined in California Revenue&Taxation Code Section 6015,during the term of this Agreement. • Consultant 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 Board of Equalization 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 Consultant 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. 9.5 Software Use. Consultant hereby provides authorization to City to access Consultant'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 Consultant. 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, 9.6 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 Consultant's 11 business, including without limitation: Consultant's(i)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 IV-D shall survive any expiration or termination of this Agreement or otherwise. The terms of this Section IV-D shall not apply to any information that is public information. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys'Fees. If a party to this Agreement brings any action, including an action for declaratory relief,to enforce or interpret the provision of this Agreement,the prevailing party shall be entitled to reasonable attorneys'fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement,the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid,void,or unenforceable,the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products, Consultant shall prepare and submit all reports,written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business,regardless of location,would place Consultant in a "conflict of interest,"as that term is defined in the Political Reform Act,codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 etseq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve(12)months, an employee,agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,or official of the City in the previous twelve months,Consultant warrants that it did not 12 participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code§1090 et.seq.,the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that,in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code§ 1090 and,if applicable,will be disqualified from holding public office in the State of California, Principals and those performing work for City of Dublin may be required to submit a California Fair Political Practices Commission(FPPC) Form 700: Statement of Economic Interests documenting potential financial conflicts of interest, For additional information,proposers should refer to the FPPC website at http://www,fppc.ca.gov/Form700.html. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting,focus group,or interview related to this Agreement,either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the City Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: The HdL Companies Attn:Andrew Nickerson 1340 Valley Vista Drive, Suite 200 Diamond Bar, CA 91765 Any written notice to City shall be sent to: The City of Dublin Attn:Colleen Tribby 100 Civic Plaza Dublin,CA 94568 10.11 Integration. This Agreement,including Exhibits A and B, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements,either written or oral. 13 IN WITNESS HEREOF,the parties have caused their authorized representatives to execute this Agreement on the 1st day of July,2017. CITY OF DUBLIN Consultant Christopher L. Foss Andrew Nickerson, President Attest: Caroline Soto, City Clerk Approved as to Form: John Bakker,City Attorney 14 EXHIBIT A SCOPE OF SERVICES The Consultant shall perform the following services(collectively,the"Services"): A. SALES TAX AND ECONOMIC ANALYSIS SERVICES 1. Consultant 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 1988-1989 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. Consultant 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. Consultant shall meet quarterly with City. 3. Consultant 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. Consultant shall make available to City staff Consultant's web-based sales tax computer software program containing sellers permit and quarterly allocation information for all in-city business outlets registered with the Board of Equalization 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. Consultant 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 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. Consultant 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. Consultant shall (i) prepare and submit to the Board of Equalization information for the purpose of correcting allocation errors that are identified and (ii)follow-up with individual businesses and the State Board of Equalization to promote recovery by the City of back or prospective quarterly payments that may be owing. 4. If during the course of its audit, Consultant 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, Consultant may so advise City and work with those businesses and the City to encourage such changes. C. CONSULTING AND OTHER OPTIONAL SERVICES Consultant 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, Consultant 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. EXHIBIT B COMPENSATION SCHEDULE Consultant shall provide the sales tax and economic analysis Services described in Section II-A above for a fee of $650 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 Consultant. Consultant 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 Section II-B 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. 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 Consultant and confirmation of corrections by the State Board of Equalization. City shall pay audit fees upon Consultant's submittal of evidence of Consultant's work in support of recovery of subject revenue, including, without limitation, copies of BOE 549-S petition forms of any other correspondence between Consultant and the Board of Equalization or the taxpayer. For any increase in the tax reported by businesses already properly making tax payments to City, it shall be Consultant's responsibility to support in its invoices the audit fee attributable, in whole or in part, to Consultant's Services. Consultant shall invoice City for any consulting and other optional Services rendered to City in accordance with Section II-C above based on the following hourly rates on a monthly or a quarterly basis, at Consultant'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 $295 per hour Programmer $250 per hour Senior Analyst $195 per hour Analyst $100 per hour