HomeMy WebLinkAboutHdL Companies a dba of Hinderliter de Llamas & Assoc Agreement Consultant Services - 2-1-24 DocuSign Envelope ID:84AE5C06-9A39-4FBD-89CF-81701E6C1229
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AGREEMENT
CITY OF FRESNO, CALIFORNIA
CONSULTANT SERVICES
THIS AGREEMENT (Agreement) is made and entered into, effective on February 1, 2024, by
and between the CITY OF FRESNO, a California municipal corporation (City), and Hinderliter
de Llamas and Associates, dba HdL Companies, a California Corporation (Consultant).
RECITALS
WHEREAS, the City desires to obtain professional Sales and Use Tax auditing, database
information, quarterly Sales Tax reporting, and revenue projection analysis services for the
Bardley Burns 1% local Sales and Use Tax, as well as the Fresno Clean and Safe
Neighborhood Parks Transactions and Use Tax, also known as Measure P (Project); and
WHEREAS, the Consultant is engaged in the business of furnishing services as a sales and
use tax auditing, database information, quarterly sales tax reporting, and revenue projection
analysis consultant and hereby represents that it desires to and is professionally and legally
capable of performing the services called for by this Agreement; and
WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements
of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and
WHEREAS, this Agreement will be administered for the City by its Budget Director
(Administrator) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and
premises hereinafter contained to be kept and performed by the respective parties, it is mutually
agreed as follows:
1. Scope of Services. The Consultant shall perform to the satisfaction of the City the
services described in Exhibit D, including all work incidental to, or necessary to perform,
such services even though not specifically described in Exhibit D. The City will also
have the right to approve the HdL's representative who will provide the quarterly reports
and facilitate quarterly meetings.
2. Term of Agreement and Time for Performance. This Agreement shall be effective from
the date first set forth above (Effective Date) and shall continue in full force and effect
through January 31, 2027, subject to two optional one-year extensions, exercised at the
City's sole discretion subject .to any earlier termination in accordance with this
Agreement. The services of the Consultant as described in Exhibit A are to commence
upon the Effective Date and shall be completed in a sequence assuring expeditious
completion, but in any event, all such services shall be completed prior to expiration of
this Agreement and in accordance with any performance schedule set forth in Exhibit
D.
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3. Compensation.
(a) The Consultant's sole compensation for satisfactory performance of all services
required or rendered pursuant to this Agreement shall be paid on the basis of the
rates set forth in the schedule of fees and expenses contained in Exhibit A.
(b) Detailed statements shall be rendered monthly for services performed in the
preceding month and will be payable in the normal course of City business. The
City shall not be obligated to reimburse any expense for which it has not received
a detailed invoice with applicable copies of representative and identifiable
receipts or records substantiating such expense.
(c) The parties may modify this Agreement to increase or decrease the scope of
services or provide for the rendition of services not required by this Agreement,
which modification shall include an adjustment to the Consultant's compensation.
Any change in the scope of services must be made by written amendment to the
Agreement signed by an authorized representative for each party. The
Consultant shall not be entitled to any additional compensation if services are
performed prior to a signed written amendment.
4. Termination, Remedies, and Force Maieure.
(a) This Agreement shall terminate without any liability of the City to the Consultant
upon the earlier of: (i) the Consultant's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced
by a third party against the Consultant; (ii) seven calendar days prior written
notice with or without cause by the City to the Consultant; (iii) the City's non-
appropriation of funds sufficient to meet its obligations hereunder during any City
fiscal year of this Agreement, or insufficient funding for the Project; or (iv)
expiration of this Agreement.
(b) Immediately upon any termination or expiration of this Agreement, the Consultant
shall (i) immediately stop all work hereunder; (ii) immediately cause any and all
of its subcontractors to cease work; and (iii) return to the City any and all
unearned payments and all properties and materials in the possession of the
Consultant that are owned by the City. Subject to the terms of this Agreement,
the Consultant shall be paid compensation for services satisfactorily performed
prior to the effective date of termination. The Consultant shall not be paid for any
work or services performed or costs incurred which reasonably could have been
avoided.
(c) In the event of termination due to failure of the Consultant to satisfactorily perform
in accordance with the terms of this Agreement, the City may withhold an amount
that would otherwise be payable as an offset to, but not in excess of, the City's
damages caused by such failure. In no event shall any payment by the City
pursuant to this Agreement constitute a waiver by the City of any breach of this
Agreement which may then exist on the part of the Consultant, nor shall such
payment impair or prejudice any remedy available to the City with respect to the
breach.
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(d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise
any right, remedy (in contract, law or equity), or privilege which may be available
to it under applicable laws of the State of California or any other applicable law;
(ii) proceed by appropriate court action to enforce the terms of the Agreement;
and/or (iii) recover all direct, indirect, consequential, economic and incidental
damages for the breach of the Agreement. If it is determined that the City
improperly terminated this Agreement for default, such termination shall be
deemed a termination for convenience.
(e) The Consultant shall provide the City with adequate written assurances of future
performance, upon Administrator's request, in the event the Consultant fails to
comply with any terms or conditions of this Agreement.
(f) The Consultant shall be liable for default unless nonperformance is caused by an
occurrence beyond the reasonable control of the Consultant and without its fault
or negligence such as, acts of God or the public enemy, acts of the City in its
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes,
unusually severe weather, and delays of common carriers. The Consultant shall
notify Administrator in writing as soon as it is reasonably possible after the
commencement of any excusable delay, setting forth the full particulars in
connection therewith, and shall remedy such occurrence with all reasonable
dispatch, and shall promptly give written notice to Administrator of the cessation
of such occurrence.
5. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by the Consultant
pursuant to this Agreement shall not be made available to any individual or
organization by the Consultant without the prior written approval of the
Administrator. During the term of this Agreement, and thereafter, the Consultant
shall not, without the prior written consent of the City, disclose to anyone any
Confidential Information. The term Confidential Information for the purposes of
this Agreement shall include all proprietary and confidential information of the
City, including but not limited to business plans, marketing plans, financial
information, materials, compilations, documents, instruments, models, source or
object codes and other information disclosed or submitted, orally, in writing, or by
any other medium or media. All Confidential Information shall be and remain
confidential and proprietary in the City.
(b) Any and all writings and documents prepared or provided by the Consultant
pursuant to this Agreement are the property of the City at the time of preparation
and shall be turned over to the City upon expiration or termination of the
Agreement. The Consultant shall not permit the reproduction or use thereof by
any other person except as otherwise expressly provided herein.
(c) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each subcontractor
to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement.
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6. Professional Skill. It is further mutually understood and agreed by and between the
parties hereto that inasmuch as the Consultant represents to the City that the Consultant
and its subcontractors, if any, are skilled in the profession and shall perform in
accordance with the standards of said profession necessary to perform the services
agreed to be done by it under this Agreement, the City relies upon the skill of the
Consultant and any subcontractors to do and perform such services in a skillful manner
and the Consultant agrees to thus perform the services and require the same of any
subcontractors. Therefore, any acceptance of such services by the City shall not
operate as a release of the Consultant or any subcontractors from said professional
standards.
7. Indemnification. To the furthest extent allowed by law, including California Civil Code
section 2782, Consultant shall indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and volunteers from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in contract, tort or strict liability,
including but not limited to personal injury, death at any time and property damage), and
from any and all claims, demands and actions in law or equity (including reasonable
attorney's fees, litigation expenses and cost to enforce this Agreement)that arise out of,
pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant,
its principals, officers, employees, agents, or volunteers in the performance of this
Agreement.
If Consultant should subcontract all or any portion of the services to be performed under
this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless
and defend City and each of its officers, officials, employees, agents, and volunteers in
accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. Insurance.
(a) Throughout the life of this Agreement, the Consultant shall pay for and maintain
in full force and effect all insurance as required in Exhibit B, which is incorporated
into and part of this Agreement, with an insurance company(ies) either (i)
admitted by the California Insurance Commissioner to do business in the State
of California and rated no less than "A-VII" in the Best's Insurance Rating Guide,
or (ii) as may be authorized in writing by the City's Risk Manager or designee at
any time and in its sole discretion. The required policies of insurance as stated in
Exhibit B shall maintain limits of liability of not less than those amounts stated
therein. However, the insurance limits available to the City, its officers, officials,
employees, agents, and volunteers as additional insureds, shall be the greater of
the minimum limits specified therein or the full limit of any insurance proceeds to
the named insured.
(b) If at any time during the life of the Agreement or any extension, the Consultant or
any of its subcontractors/sub-consultants fail to maintain any required insurance,
all services and work under this Agreement shall be discontinued immediately,
and all payments due, or that become due, to the Consultant shall be withheld
until insurance is in compliance with the requirements. Any failure to maintain the
required insurance shall be sufficient cause for the City to terminate this
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Agreement. No action taken by the City pursuant to this section shall in any way
relieve the Consultant of its responsibilities under this Agreement. The phrase
"fail to maintain any required insurance" shall include, without limitation,
notification received by the City that an insurer has commenced proceedings, or
has had proceedings commenced against it, indicating that the insurer is
insolvent.
(c) The fact that insurance is obtained by the Consultant shall not be deemed to
release or diminish the liability of the Consultant, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify
the City shall apply to all claims and liability regardless of whether any insurance
policies are applicable.The policy limits do not act as a limitation upon the amount
of indemnification to be provided by the Consultant. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the
liability of the Consultant, its principals, officers, agents, employees, persons
under the supervision of the Consultant, vendors, suppliers, invitees, consultants,
sub-consultants, subcontractors, or anyone employed directly or indirectly by any
of them.
9. Conflict of Interest and Non-Solicitation.
(a) Prior to the City's execution of this Agreement, the Consultant shall complete a
City of Fresno conflict of interest disclosure statement in the form as set forth in
Exhibit C. During the term of this Agreement, the Consultant shall have the
obligation and duty to immediately notify the City in writing of any change to the
information provided by the Consultant in such statement.
(b) The Consultant shall comply, and require its subcontractors to comply, with all
applicable (i) professional canons and requirements governing avoidance of
impermissible client conflicts; and (ii) federal, state, and local conflict of interest
laws and regulations including, without limitation, California Government Code
Section 1090 et. seq., the California Political Reform Act (California Government
Code Section 87100 et. seq.) and the regulations of the Fair Political Practices
Commission concerning disclosure and disqualification (2 California Code of
Regulations Section 18700 et. seq.). At any time, upon written request of the
City, the Consultant shall provide a written opinion of its legal counsel and that of
any subcontractor that, after a due diligent inquiry, the Consultant and the
respective subcontractor(s) are in full compliance with all laws and regulations.
The Consultant shall take, and require its subcontractors to take, reasonable
steps to avoid any appearance of a conflict of interest. Upon discovery of any
facts giving rise to the appearance of a conflict of interest, the Consultant shall
immediately notify the City of these facts in writing.
(c) In performing the work or services to be provided hereunder, the Consultant shall
not employ or retain the services of any person while such person either is
employed by the City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by
the City Manager, if no actual or potential conflict is involved.
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(d) The Consultant represents and warrants that it has not paid or agreed to pay any
compensation, contingent or otherwise, direct or indirect, to solicit, or procure this
Agreement or any rights/benefits hereunder.
(e) Neither the Consultant, nor any of the Consultant's subcontractors performing
any services on this Project, shall bid for, assist anyone in the preparation of a
bid for, or perform any services pursuant to, any other contract in connection with
this Project unless fully disclosed to and approved by the City Manager, in
advance and in writing. The Consultant and any of its subcontractors shall have
no interest, direct or indirect, in any other contract with a third party in connection
with this Project unless such interest is in accordance with all applicable law and
fully disclosed to and approved by the City Manager, in advance and in writing.
Notwithstanding any approval-given by the City Manager under this provision, the
Consultant shall remain responsible for complying with Section 9(b), above.
(f) If the Consultant should subcontract all or any portion of the work to be performed
or services to be provided under this Agreement, the Consultant shall include the
provisions of this Section 9 in each subcontract and require its subcontractors to
comply therewith.
(g) This Section 9 shall survive expiration or termination of this Agreement.
10. Recycling Program.am. In the event the Consultant maintains an office or operates a
facility(ies), or is required herein to maintain or operate same, within the incorporated
limits of the City of Fresno, the Consultant at its sole cost and expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling program,
approved by the City's Solid Waste Management Division, for each office and
facility. Literature describing the City recycling programs is available from the
City's Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(b) Immediately contact the City's Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of the City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (a) above and the ongoing maintenance thereof.
11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of the City
within the body of this Agreement, and not otherwise specifically provided for,
shall be effective only if signed by the Administrator or designee.
(b) Records of the Consultant's expenses pertaining to the Project shall be kept on
a generally recognized accounting basis and shall be available to the City or its
authorized representatives upon request during regular business hours
throughout the life of this Agreement and for a period of three years after final
payment or, if longer, for any period required by law. In addition, all books,
documents, papers, and records of the Consultant pertaining to the Project shall
be available for the purpose of making audits, examinations, excerpts, and
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transcriptions for the same period of time. If any litigation, claim, negotiations,
audit or other action is commenced before the expiration of said time period, all
records shall be retained and made available to the City until such action is
resolved, or until the end of said time period whichever shall later occur. If the
Consultant should subcontract all or any portion of the services to be performed
under this Agreement, the Consultant shall cause each subcontractor to also
comply with the requirements of this paragraph. This Section 11(b) shall survive
expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by the City, the Consultant shall have
provided evidence to the City that the Consultant is licensed to perform the
services called for by this Agreement (or that no license is required). If the
Consultant should subcontract all or any portion of the work or services to be
performed under this Agreement, the Consultant shall require each subcontractor
to provide evidence to the City that subcontractor is licensed to perform the
services called for by this Agreement (or that no license is required) before
beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and local law, the
Consultant shall not employ discriminatory practices in the provision of services,
employment of personnel, or in any other respect on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or
veteran of the Vietnam era. Subject to the foregoing and during the performance of this
Agreement, the Consultant agrees as follows:
(a) The Consultant will comply with all applicable laws and regulations providing that
no person shall, on the grounds of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of
the Vietnam era be excluded from participation in, be denied the benefits of, or
be subject to discrimination under any program or activity made possible by or
resulting from this Agreement.
(b) The Consultant will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era. The Consultant shall ensure that applicants are employed, and the
employees are treated during employment, without regard to their race, religious
creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as
a disabled veteran or veteran of the Vietnam era. Such requirement shall apply
to the Consultant's employment practices including, but not be limited to, the
following: employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The
Consultant agrees to post in conspicuous places, available to employees and
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applicants for employment, notices setting, forth the provision of this
nondiscrimination clause.
(c) The Consultant will, in all solicitations or advertisements for employees placed by
or on behalf of the Consultant in pursuit hereof, state that all qualified applicants
will receive consideration for employment without regard to race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era.
(d) The Consultant will send to each labor union or representative of workers with
which it has a collective bargaining agreement or other contract or understanding,
a notice advising such labor union or workers' representatives of the Consultant's
commitment under this section and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
(e) If the Consultant should subcontract all or any portion of the services to be
performed under this Agreement, the Consultant shall cause each subcontractor
to also comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, the Consultant is acting solely
as an independent contractor. Neither the Consultant, nor any of its officers,
agents, or employees shall be deemed an officer, agent, employee,joint venturer,
partner or associate of the City for any purpose. The City shall have no right to
control or supervise or direct the manner or method by which the Consultant shall
perform its work and functions. However, the City shall retain the right to
administer this Agreement so as to verify that the Consultant is performing its
obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between the
Consultant and the City. The Consultant shall have no authority to bind the City
absent the City's express written consent. Except to the extent otherwise
provided in this Agreement, the Consultant shall bear its own costs and expenses
in pursuit thereof.
(c) Because of its status as an independent contractor, the Consultant and its
officers, agents, and employees shall have absolutely no right to employment
rights and benefits available to the City employees. The Consultant shall be
solely liable and responsible for all payroll and tax withholding and for providing
to, or on behalf of, its employees all employee benefits including, without
limitation, health, welfare and retirement benefits. In addition, together with its
other obligations under this Agreement, the Consultant shall be solely
responsible, indemnify, defend and save the City harmless from all matters
relating to employment and tax withholding for and payment of the Consultant's
employees, including, without limitation, (i) compliance with Social Security and
unemployment insurance withholding, payment of workers' compensation
benefits, and all other laws and regulations governing matters of employee
withholding, taxes and payment; and (ii) any claim of right or interest in the City
employment benefits, entitlements, programs and/or funds offered employees of
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the City whether arising by reason of any common law, de facto, leased, or co-
employee rights or other theory. It is acknowledged that during the term of this
Agreement, the Consultant may be providing services to others unrelated to the
City or to this Agreement.
14, Notices. Any notice required or intended to be given to either party under the terms of
this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or
sent by United States registered or certified mail, with postage prepaid, return receipt
requested, addressed to the party to which notice is to be given at the party's address
set forth on the signature page of this Agreement or at such other address as the parties
may from time to time designate by written notice. Notices served by United States mail
in the manner above described shall be deemed sufficiently served or given at the time
of the mailing thereof.
15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it
shall be binding upon, and shall inure to the benefit of, all parties, and each parties'
respective heirs, successors, assigns, transferees, agents, servants, employees, and
representatives.
16. Assignment.
(a) This Agreement is personal to the Consultant and there shall be no assignment
by the Consultant of its rights or obligations under this Agreement without the
prior written approval of the City Manager or designee. Any attempted
assignment by the Consultant, its successors or assigns, shall be null and void
unless approved in writing by the City Manager or designee.
(b) The Consultant hereby agrees not to assign the payment of any monies due the
Consultant from the City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). The City retains the right to pay any
and all monies due the Consultant directly to the Consultant.
17. Compliance With Law. In providing the services required under this Agreement, the
Consultant shall at all times comply with all applicable laws of the United States, the
State of California and the City, and with all applicable regulations promulgated by
federal, state, regional, or local administrative and regulatory agencies, now in force and
as they may be enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach
of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
19. Governing Law and Venue. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of California, excluding, however, any
conflict of laws rule which would apply the law of another jurisdiction. Venue for
purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
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20. Headings. The section headings in this Agreement are for convenience and reference
only and shall not be construed or held in any way to explain, modify or add to the
interpretation or meaning of the provisions of this Agreement.
21. Severability. The provisions of this Agreement are severable. The invalidity, or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
22. Interpretation. The parties acknowledge that this Agreement in its final form is the result
of the combined efforts of the parties and that, should any provision of this Agreement
be found to be ambiguous in any way, such ambiguity shall not be resolved by
construing this Agreement in favor of or against either party, but rather by construing the
terms in accordance with their generally accepted meaning.
23. Attorney's Fees. If either party is required to commence any proceeding or legal action
to enforce or interpret any term, covenant or condition of this Agreement, the prevailing
party in such proceeding or action shall be entitled to recover from the other party its
reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference,
incorporated into and made a part of this Agreement.
25. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any exhibit or attachment hereto, the terms and conditions of the body
of this Agreement shall control and take precedence over the terms and conditions
expressed within the exhibit or attachment. Furthermore, any terms or conditions
contained within any exhibit or Attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in equity.
27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within
this Agreement are intended for the specific parties hereto as identified in the preamble
of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it
is not intended that any rights or interests in this Agreement benefit or flow to the interest
of any third parties.
28. Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, representations or agreements, either written or oral.
This Agreement may be modified only by written instrument duly authorized and
executed by both the City and the Consultant.
29. The City Manager, or designee, is hereby authorized and directed to execute and
implement this Agreement. The previous sentence is not intended to delegate any
authority to the City Manager to administer the Agreement, any delegation of authority
must be expressly included in the Agreement.
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30. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES IN CONNECTION WITH OR OTHERWISE ARISING OUT OF THIS
AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR EXEMPLARY OR PUNITIVE
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT
[Signatures follow on the next page.]
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DocuSign Envelope ID:92EFFFA5-ABE5-4D91-87A5-05B2B79FF4C2
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,California, the
day and year first above written.
CITY OF FRESNO, Hinderliter de Llamas and Associates,
a California municipal corporation a Ca 'Q�o�� �poration
2/9/2024
By: Scu ire QaAAA' By-
�-amfifwuft. isi,
Finance Director Name: Andrew Nickerson
APPROVED AS TO FORM: Title: President/CEO
ANDREW ANZ (If corporation or LLC., Board Chair, Pres.
City or or Vice SUR11L
By: 223 By: �iG�a�� N-
and let Date
Supervising Deputy City Attorney Name: Richard Park
ATTEST: Title: CFO
TODD STERMER, CMC (If corporation or LLC., CFO, Treasurer,
City Q'fefWuSigned by: Secretary or Assistant Secretary)
2kL� 2/13/2024 Any Applicable Professional License:
By. 9CEB907EED3Adp$ Number:
Name:
Deputy Date of Issuance:
CITY: CONSULTANT:
City of Fresno Hinderliter de Llamas and Associates
Attention: Henry J. Fierro Budget Director Attention: Maria Soto-Sanchez, Contracts
2600 Fresno Street Manager
Fresno, CA 93721 120 S. State College Blvd.,STE 200
E-mail: hen .fierro fesno. ov Brea, CA 92821
Phone: 714-879-5000
E-mail: contracts@hdlcompanies.com
Attachments:
1. Exhibit A-Schedule of Fees and Expenses
2. Exhibit B-Insurance Requirements
3. Exhibit C-Conflict of Interest Disclosure
4. Exhibit D - Scope of Services
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EXHIBIT A
SCHEDULE OF FEES AND
EXPENSES
Summary of Fees
Fees for Audit, Information, and Management Services regarding the Bradley Burns 1% Sales Tax
• 15% audit fee applied to amount of Sales Tax correction submitted to the California
Department Taxes and Fees Administration (CDTFA) and receipt of corrected revenues
received by the client.
$1,000 per month for Sales and Use Tax Information and Management Services. The monthly
fee to increase annually by the percentage increase in the "CPI" for the preceding twelve-
month period.
Fees for Transactions Tax Audit and Management Services regarding Measure P
■ $200 per month fee to monitor and report on the City's Transactions and Use Tax— Measure
P. The monthly fee to increase annually by the percentage increase in the "CPI"for the
preceding twelve-month period.
• a 25% contingency fee against retroactive adjustments only (no prospective billing).
Details of Fees
Sales and Use Tax Audit Services—Bradley Burns 1%
15% fee of all new sales and use tax revenue received by the City as a result of audit and
recovery work performed by the firm. This audit fee applies to monies received in the first eight
consecutive reporting quarters beginning with the receipt of the audit revenue in addition to any
retroactive back quarter adjustments obtained by HdL.
Audit fees billed only after completion of the audit, submittal of corrections to the CDTFA and
receipt of revenues by the client. 100% of all new revenue generated by HdL flows to the City after
the completion of the eight quarters. The fee constitutes the full reimbursement to HdL and covers
all direct and indirect costs incurred by the firm under this contract. This includes all salaries of
HdL employees, travel expenses and service contracting costs as well as the software to be
delivered to the City under this proposal.
Invoices are submitted only,for recoveries previously approved by the City. HdL will not bill for
audit revenues until the client has received said monies. Further, if during the billing cycle, a
taxpayer receives a refund for overpayment of taxes generated during that cycle, HdL credits back
any proportionate share of the fee that may have been levied.
Invoices are submitted quarterly after the City has received the revenue from the audit correction.
The invoice includes the name, address, and sales tax registration number of each company, and
the specific amount of revenue allocated by the CDTFA to the City for those businesses.
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If a misallocation correction involves additional revenue from a company that had already been
partially allocating revenues to the City, the City and HdL will agree in a Work Authorization, prior to
billing, the methodology for identifying the incremental revenue attributable to HdL's work.
Sales and Use Tax Information and Management Services
This includes access to the City's sales tax database through our web-based software and quarterly
meetings with one of our principals. In preparation for each meeting, a principal of the firm analyzes
the City's data in detail and meets with appropriate City officials to review trends, point out businesses
that should be contacted as part of the City's business retention program and discuss and make
recommendations regarding the economic and budget implications of the quarter's data. Also included
is a non-confidential newsletter that can be shared with your council and the public. The fee for this
service will be $1,000 per month.*
Transactions Tax Audit and Management Services - Measure P
HdL will monitor and report on the City's Transactions and Use Tax— Measure P. The fee for this
service is $200 per month* and a 25% contingency fee against retroactive adjustments only (no
prospective billing). Audit fees are billed only after the completion of the audit, submittal of corrections
to the CDTFA and receipt of revenue by the City.
*The monthly fee will increase annually by the percentage increase in the "CPI"for the preceding
twelve-month period.
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EXHIBIT B
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on an
occurrence form and shall provide coverage for "bodily injury," "property damage" and
"personal and advertising injury" with coverage for premises and operations (including
the use of owned and non-owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under "Minimum Limits of
Insurance."
2. The most current version of Commercial Auto Coverage Form CA 00 01, providing
liability coverage arising out of the ownership, maintenance or use of automobiles in the
course of your business operations. The Automobile Policy shall be written on an
occurrence form and shall provide coverage for all owned, hired, and non-owned
automobiles or other licensed vehicles (Code 1-Any Auto).
3. Workers' Compensation insurance as required by the State of California and Employer's
Liability Insurance.
4. Professional Liability (Errors and Omissions) and Cyber Liability (Privacy and Data
Breach) insurance appropriate to CONSULTANT'S profession. Cyber Liability shall
cover claims involving privacy violations, information theft, damage to or destruction of
electronic information, intentional and/or unintentional release of privation information
(including credit monitoring costs), alteration of electronic information, extortion and
network security.
MINIMUM LIMITS OF INSURANCE
CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to CITY, its
officers, officials, employees, agents and volunteers as additional insureds, shall be the greater
of the minimum limits specified herein or the full limit of any insurance proceeds available to
the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
(i) $1,000,000 per accident for bodily injury and property damage.
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3. WORKERS' COMPENSATION INSURANCE as required by the State of California with
statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
6. CYBER LIABILITY (PRIVACY AND DATA BREACH)
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate
UMBRELLA OR EXCESS INSURANCE
In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet
the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no
less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess
insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of
the CITY, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONSULTANT shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and CONSULTANT shall also be responsible for payment of any
self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be endorsed
to contain, the following provisions:
1. CITY, its officers, officials, employees, agents and volunteers are to be covered as
additional insureds. CONSULTANT shall establish additional insured status for the City
and for all ongoing and completed operations by use of endorsements providing
additional insured status as broad as that contained in ISO Form CG 20 10 11 85 or CG
20100413.
2. The coverage shall contain no special limitations on the scope of protection afforded to
CITY, its officers, officials, employees, agents and volunteers. Any available insurance
proceeds in excess of the specified minimum limits and coverage shall be available to
the Additional Insured.
3. CONSULTANT'S insurance coverage shall be primary insurance with respect to the
CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by the CITY, its officers, officials, employees, agents and
volunteers shall be excess of CONSULTANT'S insurance and shall not contribute with
it. CONSULTANT shall establish primary and non-contributory status on the General
Liability policy by use of ISO Form CG 20 01 04 13, or by an executed endorsement that
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provides primary and non-contributory status as broad as that contained in ISO Form
CG 20 01 04 13.
4. The Workers' Compensation insurance policy is to contain, or be endorsed to contain,
the following provision: CONSULTANT and its insurer shall waive any right of
subrogation against CITY, its officers, officials, employees, agents and volunteers.
5. All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by certified mail, return receipt requested, has been
given to CITY. CONSULTANT is also responsible for providing written notice to the CITY
under the same terms and conditions. Upon issuance by the insurer, broker, or agent
of a notice of cancellation, non-renewal, or reduction in coverage or in limits,
CONSULTANT shall furnish CITY with a new certificate and applicable endorsements
for such policy(ies). In the event any policy is due to expire during the work to be
performed for CITY, CONSULTANT shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than fifteen (15) calendar
days prior to the expiration date of the expiring policy.
6. Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
7. The fact that insurance is obtained by CONSULTANT shall not be deemed to release or
diminish the liability of CONSULTANT, including, without limitation, liability under the
indemnity provisions of this Agreement. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by CONSULTANT. Approval or purchase
of any insurance contracts or policies shall in no way relieve from liability nor limit the
liability of CONSULTANT, its principals, officers, agents, employees, persons under the
supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-
consultants, subcontractors, or anyone employed directly or indirectly by any of them.
CLAIMS-MADE POLICIES
If the Professional Liability (Errors and Omissions) or Cyber Liability insurance policies are
written on a claims-made form:
1. The retroactive date must be shown, and must be before the effective date of the
Agreement or the commencement of work by CONSULTANT.
2. Insurance must be maintained and evidence of insurance must be provided for at least
five (5) years after completion of the Agreement work or termination of the Agreement,
whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not
less than a five (5) year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made
policy form with a retroactive date prior to the effective date of the Agreement or the
commencement of work by CONSULTANT, CONSULTANT must purchase "extended
reporting" coverage for a minimum of five (5) years completion of the Agreement work
or termination of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to CITY for review.
5. These requirements shall survive expiration or termination of the Agreement.
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VERIFICATION OF COVERAGE
CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be received
and approved by the CITY'S Risk Manager or designee prior to CITY'S execution of the
Agreement and before work commences. All non-ISO endorsements amending policy
coverage shall be executed by a licensed and authorized agent or broker. Upon request of
CITY, CONSULTANT shall immediately furnish City with a complete copy of any insurance
policy required under this Agreement, including all endorsements, with said copy certified by
the underwriter to be a true and correct copy of the original policy. This requirement shall
survive expiration or termination of this Agreement.
SUBCONTRACTORS
If CONSULTANT subcontracts any or all of the services to be performed under this Agreement,
CONSULTANT shall require, at the discretion of the CITY Risk Manager or designee,
subcontractor(s) to enter into a separate side agreement with the City to provide required
indemnification and insurance protection. Any required side agreement(s) and associated
insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk
Manager or designee. If no side agreement is required, CONSULTANT shall require and verify
that subcontractors maintain insurance meeting all the requirements stated herein and
CONSULTANT shall ensure that CITY, its officers, officials, employees, agents, and volunteers
are additional insureds. The subcontractors' certificates and endorsements shall be on file with
CONSULTANT, and CITY, prior to commencement of any work by the subcontractor.
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Exhibit C
Conflict of Interest
Disclosure and Acknowledgement
Agreed Upon Procedures (AUPs)
YES* NO
1 Are you currently in litigation with the City of Fresno or any of
its agents?
2 Do you represent any firm, organization, or person who is in
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who
do business with the City of Fresno?
4 Are you or any of your principals, managers, or professionals,
owners, or investors in a business which does business ❑
with the City of Fresno, or in a business which is in litigation
withthe City of Fresno?
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee ❑ &�
who has any significant role in the subject matter of this
service?
6 Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in ❑
connection with this Project?
* If the answer to any question is yes, please explain in full below.
ignc y:
Explanation: FUVGU
wd" M&U' ew
93 9e 124 .
Srgna ur
1/18/2024 1 2:36:32 PM PST
Date
Andrew Nickerson
(Name)
Hinderliter de Llamas and Associates
(Company)
120 S. State College Blvd. STE 200,
(Address)
❑ Additional page(s) attached. Brea, CA 92821
(City, State Zip)
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Exhibit D
Scope of Services
Task 1. Conduct Sales and Use Tax Auditing Services
1. Detailed description of the Consultant's Sales and Use Tax auditing process and
procedures to detect, correct and recover misallocated revenue for the City including, but
is not limited to, the following:
a. Identify and correct the sales/use tax reporting errors of business within the City that
are not properly registered based on their business activities in the City. Identify and
correct the reporting of businesses that are improperly reporting tax to state and
county pools (i.e. classifying sales tax as use tax), thereby depriving the City of sales
tax.
b. Detection of other misallocation objectives, aims and strategies.
c. Type of audit methodologies.
d. Correction of misallocations process.
e. Timing Considerations* / Projected timeline of implementation.
f. Quarterly Progress Reports that focus on the status of audit work in progress, actual
sales/use tax produced for the City by the audit service on a quarterly and cumulative
basis
Important Note: As many California cities are not receiving the sales and use tax revenue
to which they are entitled due to point-of-sale and other types of taxpayer reporting errors,
it is vital for the City to recover misallocations. It is critical for the consultant to demonstrate
their procedures used to detect, correct and recover sales and use tax revenue for the City
based on California Department of Tax and Fee Administration (CDTFA, Department)
records. This process includes, but is not limited to, the one percent of revenues generated
by the Bradley-Burns Uniform Local Sales and Use Tax Law as well as certified and passed
special sales tax, including Measure P Special Sales Tax that began on July 1, 2021, and
will be in place for 30 years.
*Under California CDTFA regulations, cities and counties may only recover misallocated
revenue for the three quarters prior to the CDTFA being notified of a reporting error. It is
imperative that the City recover misallocated revenue.
Task 2. Information Services
1. Synopsis of the Consultant's system, software, database and/or tools supporting the ability
to furnish Revenue projection analysis (forecasting) must include, but is not limited to, the
following;
a. Installation and quarterly maintenance of the City's sales tax registration and
allocation data compatible with the City's designated PCs and establishing a system
password-protected database and/or tool.
b. Train and provide City staff with an easy-to-follow user manual.
c. Flexibility to search and analyze the contribution of sales/use tax revenue from each
business in the City using various criteria and parameter selection.
Important Note: The consultant's transparency of their Revenue projection analysts
(forecasting) must allow the City to understand the sources of locally generated sales tax
revenue and evaluate the changes in the City's economic base that cause fluctuations in
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this major revenue stream.
Task 3. Generate Quarterly Sales Tax Reporting Services
1. Reporting overview showcasing the Consultant's capability to generate Quarterly sales tax
reports and related reporting services must include, but is not limited to, the following;
a. Management summary reports highlighting sales tax performance for the most
recent quarter.
b. Analysis reports comparing sales tax performance for the latest complete
quarter/report benchmark year to previous quarters and years and includes, but not
limited to, the following;
i. Sales Tax reconciliation report
ii. Historical cash allocation analysis report
iii. Historical performance of Top 100 sales tax generators report
iv. Sales Tax change analysis report
v. Sales Tax generators by business code and by economic category
vi. Geo-Area Analysis report
c. Provide up to 40 rolling quarters of Sales Tax data (Bradley Burns 1% and Measure
P) by Business Name, Permit #, Business Category, Business Segment, Business
Code, Street Address, open date and closed date.
Task 4. Evaluate and Provide Revenue Projection Analysis (Forecasting) Services
1. Demonstrate the consultant's ability in evaluating and providing revenue projection analysis
(forecasting) services which should include the analytics on how close the City's historical
forecasts have been to actual results.
a. Provide sample forecast sales tax revenue reports reflecting year over year analysis
and future year's total sales tax revenue for use in the annual budget and 5-year
sales tax forecast incorporating growth assumptions regarding future development
in the City.
b. Provide sample summary reports comparing multi-fiscal year historical projections
and forecasts to actual sales tax results with an explanation of variance(s) and fiscal
yearend updated forecasts for end of year reporting, utilizing the 60-day accrual
convention, needs of the City.
2. Depict how the consultant will work with the City and advise City staff, and others as
appropriate, on how to increase sales and use tax collections and assist the City with
strategies to preserve and enhance sales and use tax revenue generated by existing
businesses within the City. The inclusion of the consultant's knowledge in current federal
and state laws as it relates to sales and use tax in California should be evident in this
narrative.
Important Note: The forecasting deliverables should include projected sales and use tax
revenue forthcoming to the City as a result of allocation audits, timing of expected recovered
revenue and one-time versus ongoing revenue. The forecast should include conservative, most
likely and optimistic scenarios.
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APPENDIX B
(Submit with Proposal,if applicable)
Proposers Name
CERTIFICATION FOR LOCAL PREFERENCE
FOR:
We Certify that we qualify as a local business pursuant to Fresno Municipal Code Section 4-109
Location of Business: Primary Office ❑
(Please provide street address. no PO Box) Branch Office k
(Please mark as applicable)
Address
1111 E. Herndon Avenue
Suite 301
Fresno, CA 93720
Phone-
714-879-5000
The undersigned Proposer hereby declares under penalty of perjury under the laws of the State of California
that the information contained on this CERTIFICATION FOR LOCAL PREFERENCE is correct and complete.
The above Statement is part of the proposal. Signing this proposal on the signature
page thereof shall also constitute signature of this Certification.
Proposers are cautioned that making a false certification may subject the certifier to
criminal prosecution.
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