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ED Commercial Cannabis Business Support ServicesAGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF SAN RAFAEL AND A VENU INSIGHTS & ANALYTICS, LLC FOR COMMERCIAL CANNABIS BUSINESS SUPPORT SERVICES This Agreement is made and entered into this day of Nov e,\'rl O ev-, 2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and A VENU INSIGHTS & ANALYTICS, LLC (Fonnerly known as MUNISERVICES, LLC) (hereinafter "CONTRACTOR"). RECITALS WHEREAS, the CITY has dete1mined that it is in its best interest to obtain business suppmt services from a professional fmn to develop solutions for regulating and taxing new conunercial cannabis businesses; and WHEREAS, the CONTRACTOR has expe1tise in providing such services and possesses skills necessary to assist in the establislunent of protocol and processes to support this new indushy; and WHEREAS, the CITY desires to employ the CONTRACTOR to provide such services and CONTRACTOR is willing and able to provide said services. AGREEMENT NOW, THEREFORE, the patties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The Economic Development Director is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Thomas Adains is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall pe1fonn the duties and/or provide Cannabis Business Support se1vices as specified in Exhibit A attached hereto and incorporated herein by reference. This 4-3-7-1-f ORI INAL Agreement shall not include those services described in Exhibit A as "Optional Services", unless authmized by an amendment pursuant to Section 17 below. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and make available CITY staff required to suppmt the development of processes to suppmt the Commercial Cannabis Program. 4. COMPENSATION. CITY shall compensate CONTRACTOR at the rates set forth in Exhibit A attached. Total compensation under the Agreement shall not exceed $25,000. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. 5. TERM OF AGREEMENT. The te1m of this Agreement shall be for 1 year(s) from the date of execution. 6. TERMINATION. A. Discretionary. Either paity may terminate this Agreement without cause upon thilty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may tenninate this Agreement for cause upon fifteen ( 15) days wiitten notice mailed or personally delivered to the other paity, and the notified patty's failure to cure or coffect the cause of the tennination, to the reasonable satisfaction of the party giving such notice, within such fifteen ( 15) day time period. C. Effect of Termination. Upon receipt of notice of tennination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon te1mination, any and all CITY documents or mate1ials provided to CONTRACTOR and any ai1d all of CONTRACTOR's documents and mate1ials prepared for or relating to the perfmmance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thi1ty (30) days after tennination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the pe1fonnance of its duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 2 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and mate1ials maintained by CONTRACTOR in connection with its pe1fonnance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The paities agree that they shall not assign or trai1sfer ai1y interest in this Agreement nor the pe1fonnance of any of their respective obligations herew1der, without the prior written consent of the other patty, which consent shall not be unreasonably withheld, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. Dming the tem1 of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occmTence/two million dollai·s ($2,000,000) aggregate, for death, bodily injury, personal inju1y, or prope1ty damage. 2. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimwn amount of one million dollars ($1,000,000) dollai·s per occwTence. 3. If any licensed professional pe1fonns ai1y of the services required to be perfonned m1der this Agreement, a professional liability insurance policy in the minimwn amount of one million dollars ($1,000,000) per occmTence/two million dollai·s ($2,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's perfonnance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONTRACTOR shall maintain worker's compensation insurance, as required by the State of California, with statutmy limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injmy or disease. CONTRACTOR's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR in subpai·agraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurai1ce or worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, and employees, as additionally named insureds (for both ongoing and completed operations) 3 under the policies. 2. The additional insured coverage under CONTRACTOR'S insurance policies shall be ptimaiy with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontiibutmy" coverage in CONTRACTOR'S policies shall be at least as broad as ISO fonn CG20 010413 . 3. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONTRACTOR hereby grants to CITY a waiver of any tight to subrogation which any insurer of CONTRACTOR may acquire against CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is wtittcn on a Claims Made Fmm, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. 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 p1imary and noncontributmy 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 it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurai1ce coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthennore, the requirements for coverage and limits shall be: (I) 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. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the nained insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses . D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT 4 MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy lan2ua2e or specific endorsements evidencin2 the other insurance reguirements set forth in this A2reement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. Except as othe1wise provided in Paragraph 8., CONTRACTOR shall, to the fullest extent pennitted by law, indemnify, release, defend with counsel approved by CITY, and hold hannless CITY, its officers, agents, and employees (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expeti fees and all other costs and fees of litigation, ( collectively "CLAIMS"), arising out of CONTRACTOR'S negligent pe1fonnance of its obligations or w1lawful conduct of its operations under this Agreement. The CONTRACTOR's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City lndemnitees, the CONTRACTOR's indemnification obligation shall be reduced in prop01iion to the City lndemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR's indemnification obligations . In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S perfonnance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City lndemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. Where the services to be provided by CONTRACTOR under this Agreement are design professional se1vices to be perfonned by a design professional as that tern1 is defined under Civil Code Section 2782.8, CONTRACTOR shall, to the fullest extent pennitted by law, indemnify, release, defend and hold harn1less the City Indemnitees from and against any CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONTRACTOR in the peiforn1ance of its duties and obligations under this Agreement or its failme to comply with any of its obligations contained in this Agreement, except such CLAIM which is caused by the sole negligence or willful misconduct of CITY. In no event shall the cost to defend charged to the design professional exceed the design professional's prop01iionate percentage of fault. C. The defense and indemnification obligations of this Agreement are unde1iaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall smvive the tennination or completion of this Agreement for the full period of time allowed by law . 5 12. NONDISCRJMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national migin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the pe1fonnance of its duties and obligations under this Agreement. CONTRACTOR shall petfonn all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD-PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third patty, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other patty. 15. NOTICES. All notices and other communications required or pennitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delive1y, or deposited with the United States Postal Se,vice, postage prepaid, addressed to the patties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Se1vice. Notice shall be given as follows: TO CITY's Project Manager: TO CONTRACTOR: 16. INDEPENDENT CONTRACTOR. Danielle O'Leary City of San Rafael 1400 Fifth A venue P.O. Box 151560 San Rafael, CA 94915-1560 A venu Insights & Analytics Attn: Contract Depat1ment 7625 N. Palm Ave., Ste. 108 Fresno, CA 93711 For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of 6 CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT --AMENDMENTS. A. The tenns and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the paities with respect to the subject matter of this Agreement. B. This w1itten Agreement shall supersede any and all p1ior agreements, oral or wiitten, regai·ding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a wiitten amendment to this Agreement. D. The tenns and conditions of this Agreement shall not be altered or modified except by a wiitten amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the tenns and conditions of this Agreement, and the te1ms and conditions of the attached exhibits or the docmnents expressly incorporated by reference, the te1ms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under ai1y ordinai1ce, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amom1ts. 19. WAIVERS. The waiver by either paity of any breach or violation of any tenn, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other te1111 , covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other tern1, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either paity of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other paity of any te1m, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing paity in any action brought to enforce the te1111s and conditions of this Agreement, or arising out of the pe1fonnance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 7 21. CITY BUSINESS LICENSE I OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Mwlicipal Code CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work pe1fonned under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Fonn W-9 (Request for Taxpayer Identification Number and Ce1tification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the patties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL JIM ~CmjTZ, City Man ger ATTEST: ------ LINDSAY LARA, City Clerk APPROVED AS TO FORM: 8 Exhibit A City of San Rafael Proposal Collllllercial Cannabis Business Support Services Cannabis Business Support Services Avenu -Insights and Analytics {also known as MuniServices) welcomes the opportunity to provide the City of San Rafael with cannabis business support services. Avenu will share our team's expertise and experience with City staff to develop solutions for regulating and taxing new commercial cannabis businesses. Avenu offers expertise in local, state and federal government regulatory and policy issues along with our extensive experience related to California taxation and legislation . Avenu believes each local jurisdiction must determine what is best for its community. Avenu provides services based on the specific and unique needs of each client -we provide our cannabis clients with the flexibility to define the project scope, including City staff participation levels, as mutually agreed upon by the City and Avenu. Avenu's costs for Commercial Cannabis Services will depend on the specific client needs along with the number, type and size of the authorized businesses. Services will be billed on a time and materials basis with a total not-to-exceed {NTE) dollar amount for this contract of $25,000. The majority of services will be billed at a $200 hourly rate for cannabis team personnel combined with the standard Avenu staff billing rates, when applicable, reflected below. Commercial Cannabis Business Operator Orientation Meetings Avenu will work with City Staff to orient applicants and selected vendors of cannabis operations in order to educate the selected vendor(s) on their tax obligations and tax payment processes, reporting requirements, ongoing site visits by city staff, spontaneous audits and ongoing communication between city staff, city consultants and business owner(s). The process will include education related to ordinance and regulation requirements for commercial cannabis businesses to address issues and requirements that are unique to the City of San Rafael, including but not limited to: • State and local best practices • Business licensing requirements o Business license fees o Renewals • Compliance with operating requirements • Record keeping and retention requirements • Financial reporting and payment requirements Estimated Cost: $600 -$3,000 per meeting {Cost are will depend on staff, prep, and follow up) Preparation of Cost Recovery Plan Ave nu will work with City Staff to identify expected costs to the City associated with issuing and administering Cannabis Business Licenses and to develop a licensing and cost recovery fee structure for commercial cannabis businesses. Avenu will identify projected costs for staff time, overhead, consulting, administrative oversight, fire inspections, code inspections, financial audits, compliance audits and any City-required functions related to this project. Avenu will also quantify the ongoing cost to administer the authorized cannabis businesses to allow the City to determine appropriate application fees and annual renewal fees. Avenu has staff with expertise in developing cost and resource evaluations. Avenu will also develop and implement a study to determine the cost of annual fire and code inspections and financial and compliance audits for full cost recovery as part of our service offering. Estimated Cost: $2,000 -$5,000 CITY OF SAN RAFAEL, CA AUGUST 6, 2018 2 Policies and Procedures for the City to Manage Large Cash Payments Avenu understands the complexities of the cash component of the cannabis industry. Our expert team includes members with extensive experience addressing cash payments with the California Board of Equalization and at the City level. Ave nu will work with City Staff to implement policies and procedures to manage expected large cash payments including, but not limited to the following: • Development of return processing guidelines • Security o Appropriate staff coverage o Limited access to cash and facilities o Video and camera placement o Facility evaluation o Documentation and verification o Separation of Duties • Staff health and safety concerns o Specific safety supplies o Adequate ventilation o Limited exposure to cash o Cleaning supplies • Specialized equipment o Cash counting machines o Storage safes • Transportation • Armored Car services Estimated Cost: $2,000 -$8,000 Supplemental Consulting Services MuniServices is available to work with City Staff on an ongoing or on an as needed basis, to address issues and concerns that may arise during the implementation or during the on-going operations of commercial cannabis businesses that are beyond the scope of identified categorized tasks. Supplemental consulting services can vary depending on the depth, priority and timing of the issue. Services could include, but not limited to: • Business educational and compliance reviews • Review and evaluation of existing ordinances and regulations • Technical evaluation of new or emerging issues • Resolution of unexpected community or business issues related to the operation of cannabis businesses Estimated Cost: The majority of the work will be performed by members of the cannabis team and will be charged at a $200 Hourly Rate. Additional work will be charged based upon the Avenu staff job classification: • Legal: $325 per hour • Principal: $200 per hour • Project Manager: $175 per hour • Client Services: $150 per hour • Director or Manager: $175 per hour • Senior Analyst: $125 per hour • Analyst: $100 per hour • Administrative: $75 per hour CITY OF SAN RAFAEL, CA AUGUST 6, 2018 3 Optional Services The following services are optional services subject to city approval -we propose the City consider these services as either an addendum to this contract at a future date or a separate contract(s) in the future. Revenue Collection Procedures and Process Avenu will discuss with City staff the options for in-house revenue collection and processing or third-party collection and processing. Should the City wish to use a third party to collect cannabis revenue and process the payments, Avenu will coordinate activities associated with processing tax or fee returns. This would include, but not be limited to: • Process tax/fee returns • Evaluate and review returns • Facilitate the payments of cash or other currency • Identify discrepancies Estimated Cost: $200 -$500 per month for each authorized business Commercial Cannabis Business Financial and Compliance Audits We recommend the City authorize a comprehensive audit program as part of its cannabis business oversight. While the audits typically would not be conducted until after businesses have been in operation for one year, we believe that operators are more likely to take the regulations seriously and comply with them when they realize that an audit program is in place and they may get audited in the future. Avenu has extensive experience auditing commercial cannabis businesses to ensure gross receipts are accurately being reported and the business is operating in compliance with city ordinances. Upon request from the City, Avenu will perform finance and compliance audits to ensure the business is collecting and remitting the correct amount of tax and is operating within the provisions of the City ordinances. The scope of work associated with these activities will be based on the size and type of authorized commercial cannabis businesses and can be provided based on an agreed upon hourly rate. The scope and time needed for the audit would be dependent on the completeness and reliability of the business operation and records. Audits would generally be completed on an annual basis. Estimated Cost: $7,500 to $25,000 per audit for each business. (The scope and time needed for the audit would be dependent on the type, size, completeness and reliability of the business operation and records.) CITY OF SAN RAFAEL, CA AUGUST 6, 2018 4 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Economic Development Project Manager: Danielle O'Leary Extension: 3460 Contractor Name: MuniServices Contractor's Contact: Thomas Adams Contact's Email: Thomas.adams@muniservices.com D FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION DEPARTMENT 1 Project Manager a. Email PINS Introductory Notice to Contractor b. Email contract (in Word) & attachments to City Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to contractor for their signature 4 Project Manager When necessary, * contractor-signed agreement agendized for Council approval *PSA > $20,000; or Purchase> $35,000; or Public Works Contract> $125,000 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager COMPLETED DATE 8/21/2018 8/21/2018 8/21/2018 8/21/2018 8/23/2018 ~ N/A Or Click here to enter a date. 10/29/18 l{)/30/ T8" lt)/3/)j/~ ti / I ftr\ I I \\ I 1 l I ~ REVIEWER Check/Initial ~ A.G/D.O. ~ ~ LG ~ LG ~ ~ A.G. ~ ~ " .,-, \\ ),, w~