HomeMy WebLinkAboutCC Resolution 14449 (Sales Tax Audit Consulting Agreement) 1
RESOLUTION NO. 14449
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
DESIGNATING PERSONS AND ENTITIES AUTHORIZED TO EXAMINE CITY
SALES TAX AND TRANSACTIONS AND USE TAX RECORDS
WHEREAS, the City Council has approved by resolution an agreement with Hinderliter,
de Llamas and Associates, to provide the City with sales tax and transactions and use tax audit
and information services; and
WHEREAS, pursuant to Ordinance No. 1122, the City of San Rafael entered into a
contract with the State Board of Equalization to perform all functions incident to the
administration and collection of local sales and use taxes; and
WHEREAS, pursuant to Resolution No. 13646, the City of San Rafael entered into a
contract with the State Board of Equalization to perform all functions incident to the
administration and collection of local transactions and use taxes; and
WHEREAS, the City Council of the City of San Rafael deems it necessary for
authorized representatives of the City to examine confidential sales and transactions and use tax
records of the State Board of Equalization, which have since been assigned to the California
Department of Tax and Fee Administration (CDTFA), pertaining to sales and transactions and
use taxes collected by the CDTFA for the City; and
WHEREAS, Section 7056 of the California Revenue and Taxation Code sets forth
certain requirements and conditions for the disclosure of Board of Equalization records and
establishes criminal penalties for the unlawful disclosure of information contained in, or derived
from sales or transactions and use tax records of the Board; and
WHEREAS, Section 7056 of the California Revenue and Taxation Code requires that
any person designated by the City shall have an existing contract to examine the City’s sales and
use tax records.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
HEREBY RESOLVES AS FOLLOWS:
Section 1. That the City Manager or other officer or employee of the City (hereafter referred
to as City) designated in writing by the City Manager to the California Department of Tax and
Fee Administration (CDTFA), is hereby appointed to represent the City with authority to
examine all of the sales, use or transactions tax records of the CDTFA pertaining to sales, use or
transactions taxes collected for the City by the CDTFA pursuant to the contract between the City
and the CDTFA under the Bradley-Burns Uniform Local Sales and Use Tax Law or the
Transaction and Use Tax Law. The information obtained by examination of CDTFA records
shall be used only for purposes related to the collection of City sales or transactions and use
taxes by the Board pursuant to that contract.
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Section 2. That Hinderliter, de Llamas and Associates is hereby designated to examine the
sales or transactions and use tax records of the City pertaining to sales, use or transactions taxes
collected for the City by the CDTFA. The entity designated by this section meets all of the
following conditions:
(a) Has an existing contract with the City to examine those sales and use tax records.
(b) Is required by that contract to disclose information contained in, or derived from,
those sales or transactions and use tax records only to the officer(s) or employee(s)
authorized under Section 1 of this resolution to examine the information.
(c) Is prohibited by that contract from performing consulting services for a retailer during
the term of that contract.
(d) Is prohibited by that contract from retaining the information contained in, or derived
from those transactions and use tax records, after that contract has expired.
The information obtained by examination of CDTFA records shall be used only for purposes
related to the collection of City sales, use or transactions taxes by the CDTFA pursuant to the
contract between the City and the CDTFA.
Section 3. The City Clerk of the City is hereby directed to certify adoption of this Resolution
and to send a copy to:
California Department of Tax and Fee Administration
Local Tax Section MIC:27
P O Box 942879
Sacramento, CA 94279-0001
I, Lindsay Lara, Interim City Clerk of the City of San Rafael, hereby certify that the
foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the
San Rafael City Council held on the 16th day of January, 2018, by the following vote to wit:
AYES: Councilmembers: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: Councilmembers: None
ABSENT: Councilmembers: None
_____________________________________
LINDSAY LARA, INTERIM CITY CLERK
AGREEMENT
BETWEEN THE CITY OF SAN RAFAEL
AND IDNDERLITER, DE LLAMAS AND ASSOCIATES
FOR SALES TAX AND TRANSACTION AND USE TAX
AUDITS AND INFORMATION SERVICES
This Agreement is made and entered into the _\_ day of January, 2018, by and between
the CITY OF SAN RAFAEL (hereinafter "CITY"), and mNDERLITER, DE LLAMAS AND
ASSOCIATES, a California Corporation, (hereinafter "CONTRACTOR").
RECITALS
WHEREAS, the City of San Rafael entered into an agreement with Hinderliter, de
Llamas and Associates to provide the CITY with sales tax audit and transaction and use tax audit
and information services; and
WHEREAS, sales, transaction and use tax revenues can be increased through a system of
continuous monitoring, identification and correction of allocation errors; and
WHEREAS, an effective program of sales and use tax management will improve
identification of economic opportunities; provide for more accurate sales and use tax forecasting;
assist in related revenue collections; and
WHEREAS, CONTRACTOR has the programs, equipment and personnel required to
deliver the sales and use tax related services referenced herein.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. PROJECT COORDINATION.
A. CITY. The City Manager shall be the representative of the CITY for all purposes
under this Agreement. The CITY's Finance Director or Accounting Manager are 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. CONTRACTOR shall assign a single PROJECT DIRECTOR to
have overall responsibility for the progress and execution of this Agreement for CONTRACTOR.
Lloyd de Llamas 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.
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2. "SALES TAX" DEFINED.
The tenn "sales tax", wherever that tenn is used in this Agreement, shall mean both the
City's Sales and Use tax and the City's Transactions and Use tax.
3. DUTIES OF CONTRACTOR.
CONTRACTOR shall perfonn the duties and/or services as follows:
A. Sales Tax and Economic Analysis.
1) CONTRACTOR shall establish a special database that identifies the name,
address and quarterly allocations of the all sales tax producers within the CITY
for the most current and previous eight quarters back, or earlier, if the CITY has
prior historical sales tax data available on computer readable magnetic media. A
second database covering the same period will be established showing total sales
tax receipts for each business category identified by the California
(DEPARTMENT OF TAX AND FEE ADMINISTRATION). These databases
will be utilized to generate special reports to the CITY on major sales tax
producers by rank and category, analysis of sales tax activity by category,
business district or redevelopment area specified by CITY, analysis or reporting
aberrations and per capita and outlet comparisons with state-wide sales.
2) CONTRACTOR shall provide updated reports each quarter identifying changes
in sales by individual businesses, business groups and categories and by
geographic area; and current graphics, tables and top 100 listings. Quarterly
aberrations due to State audits, fund transfers and receivables along with late or
double payments will be identified. Quarterly reconciliation worksheets to assist
Finance Officers with budget forecasting will be included.
3) CONTRACTOR shall additionally provide a quarterly summary analysis for the
CITY or its Redevelopment Agency to share with Chambers of Commerce and
other economic development interest groups that analyze CITY's sales tax
trends by major groups and geographic areas without disclosing confidential
information.
4) CONTRACTOR shall provide annual reports for the Administrator and City
Council identifying historical growth comparisons with state, county, selected
city averages and c.P.1. indices; top producer listings and composition and
volatility of the economic base. Annual reconciliation worksheets to assist
Finance Officers with budget forecasting shall also be provided.
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5) CONTRACTOR shall make available to CITY staff the CONTRACTOR's
sales tax computer software program and database containing sellers' permit
information for all in-City business outlets registered with the DEPARTMENT
OF TAX AND FEE ADMINISTRATION. In addition, CONTRACTOR shall
process for CITY the monthly registration and allocation files provided by the
DEPARTMENT OF TAX AND FEE ADMINISTRATION in magnetic media.
Printouts of registration changes and dollars allocated by business name and
number shall be provided from these files on a monthly basis.
B. Allocation Audit and Recovery.
1) CONTRACTOR shall conduct an initial and on-going sales tax audit in order to
identify and correct "point-of-sale" distribution errors and thereby generate
previously unrealized sales tax income for CITY. Common errors that will be
monitored and corrected include transposition error resulting in misallocations;
erroneous consolidation of multiple outlets; misreporting of "point-of-sale" to
the wrong location; delays in reporting new outlets; misallocating use tax
payments to the allocation pools or wrong jurisdictions; and erroneous fund
transfers and adjustments.
2) CONTRACTOR shall initiate contacts with the appropriate 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 so as to enhance City's relations with the business community.
3) CONTRACTOR shall prepare and submit to the DEPARTMENT OF TAX
AND FEE ADMINISTRATION all information necessary to correct any
allocation errors that are identified and shall follow-up with the individual
businesses and the DEPARTMENT OF TAX AND FEE ADMINISTRATION
to ensure that all back quarter payments due the CITY are recovered.
4) If during the course of its audit CONTRACTOR finds businesses located within
CITY that are properly reporting sales tax but have the potential for modifying
their operation to provide an ever greater share to the CITY, CONTRACTOR
shall so advise City upon request, shall work with those businesses and CITY to
encourage such changes.
C. Ongoing Consultation.
CONTRACTOR shall work with CITY and Redevelopment Agency staffs on
questions related to tenant mix alternatives for maximum sales tax returns; advise
CITY business license staff on utilization of reports to enhance business license
collection efforts; provide sales tax projections for economic development projects
and budget planning; and provide sample reports, letters and programs to enhance
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the sales tax base through improved economic development efforts; and provide
general information and support on sales and use tax related questions.
D. Confidentiality.
1) Section 7056 of the California Revenue and Taxation Code specifically limits
the disclosure of confidential taxpayer information contained in the records of
the 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 and Use Tax records . The
following conditions specified in California Revenue and Taxation Code section
7056 (b)(1) are hereby made part ofthis Agreement.
2) CONTRACTOR is authorized by this Agreement to examine sales 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.
3) CONTRACTOR is required to disclose information contained in, or derived
from, those sales or transactions and use tax records only to an officer or
employee of CITY who is authorized by resolution to examine the information.
4) CONTRACTOR is prohibited from performing consulting services for a retailer
as defined in California revenue and Taxation Code section 6015, during the
term of this Agreement.
5) CONTRACTOR 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 the collection of local sales and use tax or for
other governmental functions of CITY as set forth by resolution adopted
pursuant to California Revenue and Taxation Code section 7056 (b). The
resolution shall designate CONTRACTOR as a person authorized to examine
sales and use tax records and certify that this Agreement meets the requirements
set forth above and in California Revenue and Taxation Code section 7056
(b)(1).
4. CONTRACTOR'S PROFESSIONAL STANDARDS.
CONTRACTOR shall maintain or exceed the level of competency presently maintained by
other similar practitioners in the State of California, for professional and technical soundness,
accuracy and adequacy of all work, advice and materials provided to CITY under the term of this
Agreement.
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5. DUTIES OF CITY.
CITY shall adopt a resolution in a form acceptable to the DEPARTMENT OF TAX AND
FEE ADMINISTRATION and in compliance with California Revenue and Taxation Code section
7056, authorizing CONTRACTOR to examine the confidential sales tax records of CITY. CITY
further agrees to provide any information or assistance that may be readily available such as
business license records within CITY and to provide CONTRACTOR with proper identification for
contacting businesses. CITY further agrees to continue CONTRACTOR's authorization to
examine the confidential sales tax records of the CITY by maintaining CONTRACTOR's name on
the CITY Resolution or by providing copies of future allocation reports on computer readable
magnetic media until such time as all audit adjustments have been completed by the
DEPARTMENT OF TAX AND FEE ADMINISTRATION and percentage reimbursements due
the CONTRACTOR have been paid.
6. CONSIDERATION.
A. CITY shall pay CONTRACTOR seven hundred, fifty dollars ($750.00) per month
for CONTRACTOR's 1) establishment of the sales and transactions tax databases, 2) provision of
the ongoing reports and 3) the provision of the computer software program and databases
referenced herein. This amount shall be referred to as the "monthly fee".
B. In addition to the monthly fee, CITY shall pay CONTRACTOR 15%, limited to a
period of eight consecutive reporting quarters, of all new sales, transactions and/or use tax revenue
received by CITY as a result of audit and recovery work performed by CONTRACTOR including
any reimbursement from the Sales and Use Tax Compensation Fund as outlined in California
Revenue and Taxation Code section 97.68. This amount shall be referred to as the "audit fee".
New sales, transactions and/or use tax revenue shall not include any amounts determined by CITY
or CONTRACTOR to be increment attributable to causes other than CONTRACTOR's work
pursuant to this Agreement. In the event that CONTRACTOR is responsible for an increase in the
tax reported by businesses already properly making tax payments to CITY, it shall be
CONTRACTOR's responsibility to separate and support the incremental amount attributable to its
efforts prior to the computation of the audit fee. Said audit fees will apply to State Fund Transfers
received for back quarter reallocations and monies received in the first eight consecutive reporting
quarters following completion of the audit by CONTRACTOR and confirmation of corrections by
the DEPARTMENT OF TAX AND FEE ADMINISTRATION. CONTRACTOR shall provide
CITY with an itemized quarterly invoice showing all formula calculations and amounts due for
audit fees.
C. CONTRACTOR shall obtain CITY approval prior to beginning the work of
correcting tax reporting methodology or "point-of-sale" for specific businesses where said payment
of the audit fee will be expected. Said approval shall be deemed given when the City Manager or
his designated representative, approves a Sales Tax Audit Authorization form. CITY shall pay audit
fees upon CONTRACTOR's submittal of evidence of State Fund Transfers and payments to CITY
from businesses identified in the audit and approved by the CITY.
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D. The above sum shall constitute full reimbursement to CONTRACTOR for all direct
and indirect expenses incurred by CONTRACTOR in performing audits including salaries of
CONTRACTOR's employees and travel expenses in connection with contacting local and out of-
state businesses and DEPARTMENT OF TAX AND FEE ADMINISTRATION representatives.
7. PROPRIETARY INFORMATION.
In performing its duties under this Agreement, CONTRACTOR will produce reports,
technical information and other compilations of data to CITY. These reports, technical information
and compilations of data, are derived by CONTRACTOR using methodologies, formulae,
programs, techniques and other processes designed and developed by CONTRACTOR at a
substantial expense. CONTRACTOR's reports, technical information, compilations of data,
methodologies, formulae, programs, techniques and other processes designed and developed by
CONTRACTOR shall be referred to as Proprietary Information. CONTRACTOR's Proprietary
Information is not generally known by the entities with which CONTRACTOR competes.
CONTRACTOR desires to protect its Proprietary Information. Accordingly, to the extent
permitted by law, CITY agrees that neither it nor any of its employees, agents, independent
contractors or other persons organizations over which it has control, will at any time during the or
after the term of this Agreement, directly or indirectly use any of CONTRACTOR's Proprietary
Information for any purpose not associated with CONTRACTOR's activities. Further, to the extent
permitted by law, CITY agrees that neither it nor any of its employees, agents, independent
contractors or other persons organizations over which it has control, will disseminate or disclose
any of CONTRACTOR's Proprietary Information to any person or organization not connected with
CONTRACTOR, without the express written consent of CONTRACTOR. The CITY also agrees,
to the extent permitted by law, that it will undertake all necessary and appropriate steps to maintain
the proprietary nature of CONTRACTOR's Proprietary Information.
8. TERM OF AGREEMENT.
The term of this Agreement shall be for three (3) years commencing on January 1,2018,
and ending on December 31, 2020.
9. TERMINATION.
Either party may terminate this Agreement without cause upon thirty (30) days written
notice mailed or personally delivered to the other party.
A. Discretionary. Either party may terminate this Agreement without cause upon thirty
(30) days written notice mailed or personally delivered to the other party.
B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days
written notice mailed or personally delivered to the other party, and the notified party's failure to
cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such
notice, within such fifteen (15) day time period.
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C. Effect of Termination. Upon receipt of notice of termination, 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 termination, any and all CITY documents or materials
provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials
prepared for or relating to the performance of its duties under this Agreement including but not
limited to, data, surveys and reports, shall be delivered to CITY as soon as possible, but not later
than thirty (30) days after termination and upon CITY's payment of remaining consideration
pursuant to section 7E, below.
E. Payment of Compensation Upon termination. Upon the presentation of such notice,
CONTRACTOR may continue to work through the date of termination. Upon termination as
provided herein, CONTRACTOR shall be paid the value of all tax analysis and reporting work
performed to date less any payments previously made by CITY. In ascertaining the value of the
work performed up to the date of termination, consideration shall be given to amounts due for any
unpaid invoices, and to businesses identified by CONTRACTOR which make tax payments after
termination of this Agreement as a result of CONTRACTOR's work. After CITY receives said tax
payments for such businesses, CONTRACTOR shall be paid the audit fee resulting from tax
payments made by the business for back quarter reallocations and the first eight consecutive
reporting quarters following completion of the audit by CONTRACTOR and confirmation of
corrections by the DEPARTMENT OF TAX AND FEE ADMIN1STRATION. Compensation for
any audit work previously authorized and satisfactorily performed shall be made at the times
provided in the preceding section 6 ("Consideration") of this Agreement.
10. OWNERSlllP OF DOCUMENTS.
The written documents and materials prepared by the CONTRACTOR in connection with
the performance 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.
11. INSPECTION AND AUDIT.
Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for
inspection and audit, all documents and materials maintained by CONTRACTOR in connection
with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate
with CITY or its agent in any such audit or inspection.
12. ASSIGNABILITY.
The parties agree that they shall not assign or transfer any interest in this Agreement nor the
performance of any of their respective obligations hereunder, without the prior written consent of
the other party, and any attempt to so assign this Agreement or any rights, duties or obligations
arising hereunder shall be void and of no effect.
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13. INSURANCE.
A. Scope of Coverage. During the term 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 occurrence/two million dollars ($2,000,000) aggregate, for
death, bodily injury, personal injury, or property damage.
2) An automobile liability (owned, non-owned, and hired vehicles) insurance
policy in the minimum amount of one million ($1,000,000) dollars per occurrence.
3) If any licensed professional performs any of the services required to be performed
under this Agreement, a professional liability insurance policy in the minimum amount of one
million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover
any claims arising out of the CONTRACTOR's performance 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 statutory limits, and
employer's liability insurance with limits of no less than one million dollars ($1,000,000) per
accident for bodily injury 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 subparagraph A of this section above shall also meet the following
requirements:
1) Except for professional liability insurance or worker's compensation insurance, the
insurance policies shall be specifically endorsed to include the CITY, its officers, agents,
employees, and volunteers, as additionally named insureds (for both ongoing and completed
operations) under the policies.
2) The additional insured coverage under CONTRACTOR'S insurance policies shall be
primary 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
noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO
form CG20 01 04 13.
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) The insurance policies shall be specifically endorsed to provide that the insurance carrier
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shall not cancel, terminate or otherwise modify the terms and conditions of said insurance
policies except upon ten (l0) days written notice to the PROJECT MANAGER.
5) If the insurance is written on a Claims Made Form, 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 primary and
noncontributory 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 insurance coverage requirements and/or
limits shall be available to CITY or any other additional insured party. Furthermore, the
requirements for coverage and limits shall be: (1) the minimum coverage and limits
specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of
any insurance policy or proceeds available to the named insured; whichever is greater.
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 named 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
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 language or specific endorsements
evidencing the other insurance requirements set forth in this Agreement. 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.
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14. INDEMNIFICATION.
A. CONTRACTOR hereby agrees to, and shall hold CITY, its elective and appointive
boards, officers, agents and employees, harmless from any liability for damage or claims for
damage for personal injury, including death, as well as from claims for breach of confidentiality or
property damage which may arise from CONTRACTOR'S willful or negligent acts, errors or
omissions or those of its employees or agents. CONTRACTOR agrees to and shall defend CITY
and its elective and appointive boards, officers, agents and employees from any suits or actions at
law or in equity for damages caused, or alleged to have been caused, by reason of any of the
aforesaid willful or negligent acts, errors or omissions.
B. CITY hereby agrees to, and shall hold CONTRACTOR, its officers, agents and
employees, harmless from any liability for damage or claims for damage for personal injury,
including death, as well as from claims for breach of confidentiality or property damage which may
arise from CITY'S negligent acts, errors or omissions including misuse or improper disclosure of
confidential information contained in reports submitted by contractor under this Agreement. CITY
agrees to and shall defend CONTRACTOR and its officers, agents and employees from any suits or
actions at law or in equity for damage caused, or alleged to have been caused, by reason of any of
the aforesaid negligent acts, errors or omissions and/or misuse or improper disclosure of
confidential information.
C. The defense and indemnification obligations of this Agreement are undertaken in
addition to, and shall not in any way be limited by, the insurance obligations contained in this
Agreement, and shall survive the termination or completion of this Agreement for the full period of
time allowed by law.
15. NONDISCRIMINATION.
CONTRACTOR shall not discriminate, in any way, against any person on the basis of age,
sex, race, color, religion, ancestry, national origin, sexual orientation or disability in connection
with or related to the performance of its duties and obligations under this Agreement.
16. COMPLIANCE WITH ALL LAWS.
CONTRACTOR shall observe and comply with all applicable federal, state and local laws,
ordinances, codes and regulations, in the performance of its duties and obligations under this
Agreement. CONTRACTOR shall perform 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.
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17. NO THIRD PARTY BENEFICIARIES.
CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in
any third party, any benefit or right owed by one party, under the terms and conditions of this
Agreement, to the other party.
18. NOTICES.
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and given by personal
delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the
parties 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 Service. Notice shall be given as
follows:
TO CITY:
TO CONTRACTOR:
Van Bach, Accounting Manager
Project Manager
City of San Rafael
1400 Fifth Ave. (P.O. Box 151560)
San Rafael, CA 944915-1560
Andrew Nickerson
President
Hinderliter, De Llamas and Associates, Inc.
1340 Valley Vista Drive, Suite 200
Diamond Bar, CA 91765
19. INDEPENDENT CONTRACTOR.
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
CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not
that of an employee of CITY.
20. ENTIRE AGREEMENT --AMENDMENTS.
A. The terms and conditions of this Agreement and all documents expressly
incorporated by reference, represent the entire Agreement of the parties with respect to the subject
matter of this Agreement.
B. This written Agreement shall supersede any and all prior agreements, oral or
written, regarding 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 written amendment to this
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Agreement.
D. The terms and conditions of this Agreement shall not be altered or modified except
by a written amendment to this Agreement signed by the CONTRACTOR and the CITY.
E. If any conflicts arise between the terms and conditions of this Agreement, and the
terms and conditions of any documents expressly incorporated by reference, the terms and
conditions of this Agreement shall control.
21. 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 any ordinance,
agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or
other amounts.
22. WAIVERS.
The waiver by either party of any breach or violation of any term, covenant or condition of
this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any
other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or
violation of the same or other term, covenant, condition, ordinance, law or regulation. The
subsequent acceptance by either party 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 party of any term, condition, covenant of this Agreement or any
applicable law, ordinance or regulation.
23. COSTS AND ATTORNEY'S FEES.
The prevailing party in any action brought to enforce the terms and conditions of this
Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs
(including claims administration) and attorney's fees expended in connection with such action.
24. CITY BUSINESS LICENSE / OTHER TAXES.
CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY
business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay any and
all state and federal taxes and any other applicable taxes. CONTRACTOR's taxpayer identification
number is 33-0008507, and CONTRACTOR certifies under penalty of perjury that said taxpayer
identification number is correct.
25. APPLICABLE LAW.
The laws of the State of California shall govern the rights, obligations, duties and liabilities
of the parties to this Agreement and shall also govern the interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month
and year first above written.
CITY OF SAN RAFAEL CONTRACTOR
By:Q~~
Andrew Nicke on, Presi&iit
ATTEST:
City Clerk
ED AS TO FORM:
13
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: Finance
Project Manager: Mark Moses / Van Bach
Extension: 5018
Contractor Name: Hinderliter DeLia mas and Associates
Contractor's Contact: Peggy Fickett
Contact's Email: pfickett@hdlcompanies.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
Pub lic 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
6 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
N/A
12/15/2017
12/22/2017
12/22/2017
Cli ck here to
enter a date .
D N/A
Or
1/16/2018
1/10/17
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REVIEWER
Check/Initial
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