HomeMy WebLinkAboutContracts & Agreements_110-2022DocuSign Envelope ID. BD69BB67-A86D-49AD-B587-4E8AF16380AF
AGREEMENT TO PERFORM PROFESSIONAL SERVICES
This agreement for the provision of audit services for sales, use and transaction tax
revenue ("Agreement") is made and entered in this 21 st day of June, 2022 ("Effective Date"), by
and between the City of Redlands, a municipal corporation ("City") and Hinderliter de Llamas
and Associates, a California corporation ("Consultant") City and Consultant are sometimes
individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the
mutual promises contained herein, City and Consultant agree as follows
ARTICLE 1— ENGAGEMENT OF CONSULTANT
1 1 City hereby engages Consultant to provide audit services for sales, use and transaction
tax revenue for City (the "Services")
1.2 The Services shall be performed by Consultant in a professional manner, and Consultant
represents that it has the skill and the professional expertise necessary to provide the
Services to City at a level of competency presently maintained by other practicing
professional consultants in the industry providing like and similar types of Services.
ARTICLE 2 — SERVICES OF CONSULTANT
2 1 The Services that Consultant shall perform are more particularly described in Exhibit
"A," titled "Scope of Services," which is attached hereto and incorporated herein by this
reference.
2.2 Consultant shall comply with applicable federal, state and local laws and regulations in
the performance of this Agreement including, but not limited to, any applicable State
prevailing wage laws
ARTICLE 3 — RESPONSIBILITIES OF CITY
31 City designates Danielle Garcia, Director of Management Services, as City's
representative with respect to performance of the Services, and such person shall have the
authority to transmit instructions, receive information, interpret and define City's policies
and decisions with respect to performance of the Services
ARTICLE 4 — PERFORMANCE OF SERVICES
4 1 Consultant shall perform and complete the Services in a prompt and diligent manner
4.2 The term of this Agreement shall be for a period of three (3) years from the Effective
Date of this Agreement (the "Initial Term") The City shall have the option to extend the
Initial Term of this Agreement by two (2) additional one-year terms (each, an "Extended
Term"), on the same terms and conditions, by providing written notice to Consultant at
least thirty (30) days prior to the expiration of the Initial Term or any Extended Term.
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4.3 If Consultant's Services include deliverable electronic visual presentation materials, such
materials shall be delivered in a form, and made available to City, consistent with City
Council -adopted policy for the salve It shall be the obligation of Consultant to obtain a
copy of such policy from City staff.
ARTICLE 5 — PAYMENTS TO CONSULTANT
5 1 The compensation for the Consultant's performance of the Services will be the amount of
twenty-five thousand two hundred dollars ($25,200 00) for the Services provided during
the Initial Term. Should this Agreement be extended, the compensation for Consultant's
performance for the Services shall be the amount of eight thousand four hundred dollars
($8,400 00) in addition to CPI costs for the first Extended Term, and eight thousand four
hundred dollars ($8,400 00) in addition to CPI costs for the second Extended Term,
bringing the total possible amount of compensation to the amount of forty-two thousand
dollars ($42,000 00) in addition to CPI costs. For the Initial Term and each Extended
Term, City shall pay the Consultant on a time and materials basis amount in accordance
with the rates specified in Exhibit "B," titled "Fee Schedule," which is attached hereto
and incorporated herein by this reference
Consultant may adjust its Based Fix Fee pursuant to the Consumer Price Index as set
forth in Exhibit `B"
Consultant shall be compensated fifteen percent (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 as set forth in Exhibit `B"
5.2 Consultant shall submit quarterly invoices to City describing the Services performed
during the preceding month. Consultant's invoices shall include a brief description of the
Services performed, the dates the Services were performed, the number of hours spent
and by whom, and a description of reimbursable expenses related to the Services City
shall pay Consultant no later than thirty (30) days after receipt and approval by City of
Consultant's invoice
5.3 Any notice or other communication required, or which may be given, pursuant to this
Agreement, shall be in writing Any such notice shall be deemed delivered (i) on the date
of delivery in person, (ii) five (5) days after deposit in first class registered mail, with
return receipt requested, (iii) on the actual delivery date if deposited with an overnight
courier; or (iv) on the date sent by facsimile or electronic mail transmission (including
PDF), if confirmed with a copy sent contemporaneously by first class, certified,
registered or express mail, in each case properly posted and fully prepaid to the
appropriate address set forth below, or such other address as a Party may provide notice
in accordance with this section.
CITY.
City Clerk
City of Redlands
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CONSULTANT.
HDL Companies
Andy Nickerson, President
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35 Cajon Street
P 0 Box 3005 (mailing)
Redlands, CA 92373
jdonaldson@cityofredlands org
Phone (909) 798-7531
120 S State College Boulevard
Brea, California 92821
Phone 714-879-5000
ARTICLE 6 — INSURANCE AND INDEMNIFICATION
6 1 The following insurance coverage required by this Agreement shall be maintained by
Consultant for the duration of its performance of the Services Consultant shall not
perform any Services unless and until the required insurance listed below is obtained by
Consultant. Consultant shall provide City with certificates of insurance and endorsements
evidencing such insurance prior to commencement of the Services. Insurance policies
shall include a provision prohibiting cancellation or modification of the policy except
upon thirty (30) days prior written notice to City
A. Workers' Compensation and Employer's Liability insurance in the amount that meets
statutory requirements with an insurance carrier acceptable to City, or certification to
City that Consultant is self -insured or exempt from the workers' compensation laws
of the State of California. Consultant shall execute and provide City with Exhibit
"D," titled "Workers' Compensation Insurance Certification," which is attached
hereto and incorporated herein by this reference, prior to performance of the Services
B Comprehensive General Liability insurance with carriers acceptable to City in the
minimum amount of One Million Dollars ($1,000,000) per occurrence and Two
Million Dollars ($2,000,000) aggregate, for public liability, property damage and
personal injury is required. City shall be named as an additional insured and such
insurance shall be primary and non-contributing to any insurance or self-insurance
maintained by City
C Consultant shall secure and maintain professional liability insurance throughout the
term of this Agreement in the amount of One Million Dollars ($1,000,000) per claim
made
D Business Auto Liability coverage, with minimum limits of One Million Dollars
($1,000,000) per occurrence, combined single limit bodily injury liability and
property damage liability This coverage shall include all Consultant owned vehicles
used in connection with Consultant's provision of the Services, hired and non -owned
vehicles, and employee non -ownership vehicles City shall be named as an additional
insured and such insurance shall be primary and non-contributing to any insurance or
self-insurance maintained by City
E. Consultant is expressly prohibited from assigning or subcontracting any of the
Services without the prior written consent of City In the event of mutual agreement
by the Parties to assign or subcontract a portion of the Services, Consultant shall add
such assignee or subcontractor as an additional insured to the insurance policies
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required hereby and provide City with the insurance endorsements prior to any
Services being performed by the assignee or subcontractor
6.2 Consultant shall defend, indemnify and hold harmless City and its elected and appointed
officials, employees and agents from and against any and all claims, losses or liability,
including attorneys' fees, arising from injury or death to persons or damage to property
occasioned by any negligent act or omission by, or the willful misconduct of, Consultant,
or its officers, employees and agents in performing the Services.
ARTICLE 7 — CONFLICTS OF INTEREST
7 1 Consultant covenants and represents that it does not have any investment or interest in
any real property that may be the subject of this Agreement or any other source of
income, interest in real property or investment that would be affected in any manner or
degree by the performance of Consultant's Services. Consultant further covenants and
represents that in the performance of its duties hereunder, no person having any such
interest shall perform any Services under this Agreement.
7.2 Consultant agrees it is not a designated employee within the meaning of the Political
Reform Act because Consultant:
A. Does not make a governmental decision whether to
(i) approve a rate, rule or regulation, or adopt or enforce a City law;
(ii) issue, deny, suspend or revoke any City permit, license, application,
certification, approval, order or similar authorization or entitlement;
(iii) authorize City to enter into, modify or renew a contract;
(iv) grant City approval to a contract that requires City approval and to which
City is a party, or to the specifications for such a contract;
(v) grant City approval to a plan, design, report, study or similar item,
(vi) adopt, or grant City approval of, policies, standards or guidelines for City
or for any subdivision thereof.
B Does not serve in a staff capacity with City and in that capacity, participate in
making a governmental decision or otherwise perform the same or substantially
the same duties for City that would otherwise be performed by an individual
holding a position specified in City's Conflict of Interest Code under Government
Code section 87302.
7.3 In the event City determines that Consultant must disclose its financial interests,
Consultant shall complete and file a Fair Political Practices Commission Form 700,
Statement of Economic Interests, with the City Clerk's office pursuant to the written
instructions provided by the City Clerk.
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ARTICLE 8 — GENERAL CONSIDERATIONS
8 1 In the event any action is commenced to enforce or interpret any of the terms or
conditions of this Agreement the prevailing Party shall, in addition to any costs and other
relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the
use of in-house counsel by a Party
8.2 Consultant shall not assign any of the Services, except with the prior written approval of
City and in strict compliance with the terms and conditions of this Agreement. Any
assignment or attempted assignment without such prior written consent may, in the sole
discretion of City, result in City's immediate termination of this Agreement.
8.3 Consultant is for all purposes under this Agreement an independent contractor and shall
perform the Services as an independent contractor Neither City nor any its agents shall
have control over the conduct of Consultant or Consultant's employees, except as herein
set forth. Consultant shall supply all necessary tools and instrumentalities required to
perform the Services. Assigned personnel employed by Consultant are for its account
only, and in no event shall Consultant or personnel retained by it be deemed to have been
employed by City or engaged by City for the account of, or on behalf of City Consultant
shall have no authority, express or implied, to act on behalf of City in any capacity
whatsoever as an agent, nor shall Consultant have any authority, express or implied, to
bind City to any obligation.
8 4 This Agreement may be terminated by City, in its sole discretion, by providing not less
than five (5) days prior written notice to Consultant of City's intent to terminate. If this
Agreement is terminated by City, an adjustment to Consultant's compensation shall be
made, but (1) no amount shall be allowed for anticipated profit or unperformed Services,
and (2) any payment due Consultant at the time of termination may be adjusted to the
extent of any additional costs to City occasioned by any default by Consultant. Upon
receipt of a termination notice, Consultant shall immediately discontinue its provision of
the Services and, within five (5) days of the date of the termination notice, deliver or
otherwise make available to City, copies (in both hard copy and electronic form, where
applicable) of project related data, design calculations, drawings, specifications, reports,
estimates, summaries and such other information and materials as may have been
accumulated by Consultant in performing the Services Consultant shall be compensated
on a pro-rata basis for Services completed up to the date of termination.
8 5 Consultant shall maintain books, ledgers, invoices, accounts and other records and
documents evidencing costs and expenses related to the Services for a period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant pursuant to this Agreement. Such books shall be available at reasonable times
for examination by City at the office of Consultant.
8 6 This Agreement, including the Exhibits incorporated herein by reference, represents the
entire agreement and understanding between the Parties as to the matters contained
herein, and any prior negotiations, written proposals or verbal agreements relating to such
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matters are superseded by this Agreement Except as otherwise provided for herein, any
amendment to this Agreement shall be in writing, approved by City and signed by City
and Consultant.
8 7 This Agreement shall be governed by and construed in accordance with the laws of the
State of California, without regard to its conflicts of laws provisions. The Parties agree
that all actions or proceedings arising in connection with this Agreement shall be tried
and litigated only in the state courts located in San Bernardino County, California, and
the federal courts located in Riverside County, California
8 8 If one or more of the sentences, clauses, paragraphs or sections contained in this
Agreement is declared invalid, void or unenforceable by a court of competent
jurisdiction, the same shall be deemed severable from the remainder of this Agreement
and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or
sections contained herein, unless to do so would deprive a Party of a material benefit of
its bargain under this Agreement
IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have
signed in confirmation of this Agreement
CITY OF REDLANDS
BY�
aul T Barich, Mayor
ATTEST
knei/R-ot.e_ Lt4Ze6424"/
Donaldson, City Clerk
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HINDERLITER DE LLAMAS AND
ASSOCIATES
DocuSlgned by
By 514,01,YUV MCIat 'Sbin,
2H83u3.9 g82_.
Andrew Nickerson, President
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EXHIBIT "A"
SCOPE OF SERVICES
Using confidential taxpayer records as authorized by Revenue and Taxation Code Section 7056,
Consultant will identify and correct errors that result in underpayments of tax to the City The
firm will employ a series of analyses, comparisons with other data sources and physical field
canvassing to find, document and submit for correction all taxpayer errors that result in lost City
revenue or could result in lost revenue in the future When errors are identified, Consultant staff
will promptly file claims for their correction following CDTFA procedures. Thereafter,
Consultant will work with CDTFA to ensure the prompt recovery of all escaped revenues
Documentation of errors will be regularly provided to the City
In conducting these activities on behalf of the City, Consultant will provide reports that
accurately depict the City's sales tax base, use tax collections and revenues. All reports, graphs,
tables and revenue forecasts are designed to enhance the City's capacity to plan for, expand and
manage its sales and use tax revenues. Reports identifying and comparing the retail composition
of various sub -geographic areas of the City will also be provided.
Services also include
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 1984-1985 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 Department of Tax and Fee Administration and updated
quarterly This software shall allow City staff to search businesses by street address, account
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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 Department of Tax and Fee Administration
information for the purpose of correcting allocation errors that are identified and (ii) follow-up
with individual businesses and the California Department of Tax and Fee Administration to
promote recovery by the City of back or prospective quarterly payments that may be owing
4 If during the course of its audit, 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.
Section 7056 — Confidentiality Requirements
Section 7056 of the State of California Revenue and Taxation code specifically limits the disclosure of
confidential taxpayer information contained in the records of the California Department of Tax and Fee
Administration This section specifies the conditions under which a CITY may authorize persons other
than CITY officers and employees to examine State Sales, Use and Transactions 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.
A. CONSULTANT is authorized by this Agreement to examine sales, use or transactions and use
tax records of the Department of Tax and Fee Administration provided to CITY pursuant to
contract under the Bradley -Burns Uniform Sales and Use Tax Law
B. 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
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C. 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.
D CONSULTANT is prohibited from retaining the information contained in or derived from those
sales or transactions and use tax records, after this Agreement has expired Information
obtained by examination of Department of Tax and Fee Administration records shall be used
only for purposes related to collection of local sales and use tax or for other governmental
functions of the CITY as set forth by resolution adopted pursuant to Section 7056 (b) of the
Revenue and Taxation Code The resolution shall designate the 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
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EXHIBIT "B"
Fee Schedule Title
Consultant shall provide the sales tax and economic analysis services described in Exhibit "A"
during the Initial Term of this agreement for a fee of $8,400 annually, or $700 00 per month
(hereinafter referred to as "monthly fee") commencing July 1, 2022 The monthly fee shall be
invoiced quarterly in arrears and undisputed amounts shall be paid by City no later than 30 days
after the invoice date The monthly fee shall increase annually starting in calendar year 2023 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.
B Consultant shall be compensated fifteen percent (15%) of all new and recovered sales, use and
transactions tax revenue received by the City as a result, in whole or in part, of the allocation
audit and recovery services described in the above (hereafter referred to as "audit fee"),
including without limitation, any reimbursement or other payment from any state fund and any
point -of -sale misallocations
1 The audit fee shall be paid even if City assists, works in parallel with, and/or incurs attorneys'
fees or other costs or expenses in connection with any of the relevant Services. Among other
things, the audit fee applies to state fund transfers received for back quarter reallocations and
monies received in the first eight consecutive reporting quarters following completion of the
allocation audit by Consultant and confirmation of corrections by the California Department of
Tax and Fee Administration. 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 CDTFA 549-S petition forms of any other correspondence between Consultant and the
Department of Tax and Fee Administration or the taxpayer
2 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
C Consultant shall invoice City for any optional consulting and other Services requested in
writing and rendered to City based on the following hourly rates on a monthly or a quarterly
basis at Consultant's option. All such undisputed invoices shall be payable by City no later than
30 days following the invoice date City shall not be invoiced for any consulting services totaling
less than an hour in any month. The hourly rates in effect as of the Effective Date are as follows
Principal $325 per hour
Programmer $295 per hour
Senior Analyst $245 per hour
Analyst $195 per hour
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Hourly rates for optional services are exclusive of expenses and are subject to adjustment by
Consultant annually On July 1st of each year starting in calendar year 2023, Consultant shall
provide City with an updated schedule of hourly rates. The rates will not be increased by more
than five percent (5%) per year
D Consultant, with the consent of the City may divide any recovery bills in excess of $25,000
over a one (1) year period (Four (4) quarterly billings)
F Consultant shall provide City with an itemized quarterly invoice showing all formula
calculations and amounts due for the audit fee (including, without limitation, a detailed listing of
any corrected lnisallocations), which undisputed invoices shall be paid by CITY no later than 30
days following the invoice date
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EXHIBIT "C"
WORKERS' COMPENSATION INSURANCE CERTIFICATION
Every employer, except the State, shall secure the payment of compensation in one or more of
the following ways
(a) By being insured against liability to pay compensation by one or more insurers
duly authorized to write compensation insurance in this State.
(b) By securing from the Director of Industrial Relations, a certificate of consent to
self -insure, either as an individual employer, or as one employer in a group of
employers, which may be given upon furnishing proof satisfactory to the Director
of Industrial Relations of ability to self -insure and to pay any compensation that
may become due to his or her employees.
CHECK ONE
I am aware of the provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for Workers' Compensation or to undertake self-
insurance in accordance with the provisions of that Code, and I will comply with such provisions
before commencing the performance of the work and activities required or permitted under this
Agreement. (Labor Code §1861)
I affirm that at all times, in performing the work and activities required or permitted under
this Agreement, I shall not employ any person in any manner such that I become subject to the
workers' compensation laws of California. However, at any time, if I employ any person such
that I become subject to the workers' compensation laws of California, immediately I shall
provide the City with a certificate of consent to self -insure, or a certification of workers'
compensation insurance
I certify under penalty of perjury under the laws of the State of California that the information
and representations made in this certificate are true and correct.
HINDERLITER DE LLAMAS
AND ASSOCIATES
By Date
Andy Nickerson, President
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