HomeMy WebLinkAboutItem 4.10 - 3245 HdL Amendment #1 to Amendment (2)
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STAFF REPORT
CITY COUNCIL
DATE: June 2, 2020
TO: Honorable Mayor and City Councilmembers
FROM:
Linda Smith, City Manager
SUBJECT:
Amendment to the Hinderliter, de Llamas and Associates Agreement for
Sales Tax Analysis, Audit and Information Services
Prepared by: Christopher Rhoades, Financial Analyst
EXECUTIVE SUMMARY:
The City Council will consider an amendment to the agreement with Hinderliter, de
Llamas and Associates (HdL) for Sales Tax Analysis, Audit and Information services.
The amendment extends the agreement for an additional two years, to June 30, 2022.
STAFF RECOMMENDATION:
Adopt the Resolution Approving Amendment #1 to the Amended and Restated
Consulting Services Agreement between the City of Dublin and Hinderliter, de Llamas
and Associates.
FINANCIAL IMPACT:
The annual cost of the sales tax and economic analysis services is $8,364. There is
sufficient budget in the Fiscal Year 2020-21 Proposed Budget to cover these costs.
Audit services are billed at 15% of all new and recovered sales tax revenue received by
the City as a result of audit and recovery services provided on behalf of the City. The
audit service fee is offset by the additional revenue received by the City as a result of
the audit.
DESCRIPTION:
The City’s current agreement with Hinderliter, de Llamas and Associates (HdL) has
been in place since 1989. In 2017, the agreement was amended to bring it current with
the City's standard agreement terms and to provide a three-year term, expiring June 30,
2020. Currently, there are two major consulting firms that provide sales tax and
economic analysis services in California. Given HdL’s successful history working with
the City, Staff recommends extending the agreement at this time for an additional two
years.
HdL provides for services in two areas related to the collection and reporting of sales,
use and transaction tax, collectively referred to as Sales Tax: 1) Sales Tax Analysis and
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Information Services; and 2) Audit Services.
Sales Tax Analysis and Information
HdL provides quarterly reports identifying changes in sales by businesses, business
groups and categories, and geographic area, including quarterly aberrations due to
State audits and payment reconciliations. HdL also provides per capita comparison
reports with regional and statewide sales information to assist with sales tax forecasting.
Further, HdL maintains a database that identifies the name, address, and quarterly
allocations of all sales tax producers within the City, allowing City staff to generate
reports as needed.
Audit Services
HdL proactively conducts continual sales tax audits to identify and correct distribution
and allocation errors to recover misallocated tax. Once errors have been identified, HdL
prepares and submits documentation to the State Board of Equalization for the purpose
of correcting the identified error, in addition to following up with both the affected
business and the State Board of Equalization to promote a prompt recovery.
In addition to sales tax analysis and audit services, the City contracts with HdL under a
separate agreement for property tax consultation.
STRATEGIC PLAN INITIATIVE:
Strategy 1: Assure the City's long-term financial sustainability.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Approving Amendment #1 to the Amended and Restated Consulting
Services Agreement between the City of Dublin and Hinderliter de Llamas and
Associates
2. Exhibit A to the Resolution - Amendment #1 to the Amended and Restated
Consulting Services Agreement between the City of Dublin and Hinderliter de Llamas
and Associates
3. Amended and Restated Consulting Services Agreement Between the City of Dublin
and HDL
ATTACHMENT 1
RESOLUTION NO. XX - 20
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * * * * * * * * * * * ** *
APPROVING AMENDMENT #1 TO THE AMENDED AND RESTATED 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 amended and restated the Agreement on
June 20, 2017 to update the Agreement terms to reflect the City’s current needs and
extended the duration of services through June 30, 2020; and
WHEREAS, the City and the Consultant now wish to amend the Agreement to extend
the duration of services through June 30, 2022.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
does hereby approve amendment #1 to the amended and restated consulting services
agreement with Hinderliter, de Llamas and Associates, as attached hereto as Exhibit A.
PASSED, APPROVED AND ADOPTED this 2nd day of June 2020, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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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]
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.
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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 (RESERVEDI
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.
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 01 0412. 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
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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.
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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.
4.3.3 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 furnish 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
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behalf. The City reserves the right to require complete, certified copies of all required
insurance policies and endorsements. Failure to exercise this right shall 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
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■ 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.
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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.
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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.
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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 -Burns 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
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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 et seq.
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
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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 htta://www.fppc.ca,aov/Form700.htmi.
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.
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IN WITNESS HEREOF, the parties have caused their authorized representatives to execute this Agreement
on the 1st day of July, 2017.
CITY 0 IN
stopher L. Foss
Attest:
aroline Soto, City Clerk
Approved as to Form:
Jo ak er, City Attorney
Consultant
Andrew Nickerson, President
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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