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HomeMy WebLinkAbout2010-351 (NOTE: COMPANION RESOLUTION 2010-350) RESOLUTION NO. 2010-351 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH HINDERLITER, DE LLAMAS, COMPANIES, LLC TO PROVIDE ANALYSIS AND AUDIT SERVICES FOR THE CITY OF SAN BERNARDINO'S TRANSACTIONS AND USE TAX COLLECTED BY THE STATE BOARD OF EQUALIZATION AND PROPERTY TAX AUDIT AND ANALYSIS SERVICES. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1: The City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City an Agreement with Hinderliter, De Llamas Companies, LLC to provide analysis and audit services for the City of San Bernardino transactions and use tax collected by the State Board of Equalization, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2: The City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City an Agreement with Hinderliter, De Llamas Companies, LLC to provide Property Tax Audit and Analysis Services a copy of which is attached hereto, marked Exhibit "B" and incorporated herein by reference as fully as though set forth at length. SECTION 3: The authorization to execute the above mentioned agreements is rescinded if the parties to the agreement fail to sign it within sixty (60) days of the passage of this resolution. //1 1// //1 //1 //1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2010-351 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH HINDERLITER, DE LLAMAS, COMP ANIES, LLC TO PROVIDE ANALYSIS AND AUDIT SERVICES FOR THE CITY OF SAN BERNARDINO'S TRANSACTIONS AND USE TAX COLLECTED BY THE STATE BOARD OF EQUALIZATION AND PROPERTY TAX AUDIT AND ANALYSIS SERVICES. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a i oint regular meeting thereof, held on the 18th day of October ,2010, by the following vote, to wit: COUNCILMEMBERS AYES NAYS ABSTAIN ABSENT MARQUEZ X DESJARDINS X X BRINKER SHORETT X KELLEY X JOHNSON X MCCAMMACK X ~~h.~ Rachel G. Clark, City Clerk 1'",,,, The foregoing resolution is hereby approved this c:;....o:.- day of Oc tober , 2010. Approved as to form: JAMES F. PENMAN, City Attorney .~ 2 2010-351 AGREEMENT FOR SALES, USE AND TRANSACTIONS TAX AUDIT AND INFORMATION SERVICES This Agreement is made and entered into as of the 18thday of October ,2010 by and between the CITY OF SAN BERNARDINO, a municipal corporation hereinafter called CITY, and HINDERLITER, de LLAMAS AND ASSOCIATES a California Corporation, hereinafter called CONTRACTOR. I. RECITALS WHEREAS, sales, use and transactions 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, CITY desires the combination of data entry, report preparation, and data analysis necessary to effectively manage its sales and use tax base and recover revenues erroneously allocated to other jurisdictions and allocation pools; and WHEREAS, CONTRACTOR has the programs, equipment and personnel required to deliver the sales and use tax related services referenced herein; THEREFORE, CITY and CONTRACTOR, for the consideration hereinafter described, mutually agree as follows: II. SERVICES The CONTRACTOR shall perform the following services: A. MANAGEMENT REPORTS AND ECONOMIC ANALYSIS 1. CONTRACTOR shall establish a special database that identifies the name, address and quarterly allocations of all sales tax producers within the CITY for the most current and previous back to 1990 or earlier, if the CITY has prior historical sales tax data available on computer readable magnetic media and update the information quarterly. This database will be utilized to generate special reports to the CITY on: major sales tax producers by rank and category, sales tax activity by categories, business districts or redevelopment areas, identification of reporting aberrations, and per capita and outlet comparisons with regional and statewide sales. EXHIBIT "A" 2010-351 2. CONTRACTOR shall provide up-dated reports each quarter identifying changes in sales by individual businesses, business groups and categories and by geographic area. 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 officer with budget forecasting will be included along with separate reports to monitor and project the City's Measure Z Transactions Tax that was adopted in 2006. 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 make available and train the CITY Staff on the use of HdL sales tax computer software program and database containing sellers permit . and quarterly allocation information for all in-city business outlets registered with the Board of Equalization and keep the registration and allocation data current with quarterly updates. B. ALLOCATION AUDIT AND RECOVERY - SALES TAX 1. CONTRACTOR shall conduct an initial and on-going sales and use tax audit to identify and correct "point-of-sale" distribution errors and thereby generate previously unrealized sales tax income for the CITY. Common errors that will be monitored and corrected, include: transposition errors resulting in misallocations; erroneous consolidation of multiple outlets; misreporting of "point of sale" to the wrong location; failure to properly report out of state purchases to in-state warehouses; improper reporting of capital purchases to state or county allocation pools; misdirection of self-imposed use tax and erroneous fund transfers and adjustments. 2. CONTRACTOR will 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 Board of Equalization all information necessary to correct any allocation errors that are identified and shall follow-up with the individual businesses and the State Board of Equalization to ensure that all back quarter payments due the CITY are recovered. 2 2010-351 4. If during the course of its audit, CONTRACTOR finds businesses or capital projects located in the CITY that have the potential for modifying their operation to provide an even greater share of sales or use tax to the CITY, CONTRACTOR shall so advise CITY and upon request, shall work with those businesses, CONTRACTOR and the CITY to encourage such changes. C. DEFICIENCY/ALLOCATION AUDITS - TRANSACTIONS TAX 1. CONTRACTOR shall conduct on-going reviews to identify and correct unreported transactions and use tax payments and distribution errors thereby generating previously unrealized revenue for the CITY. Said reviews shall include: (i) Comparison of county-wide local tax allocations to transactions tax for brick and mortar stores and other cash register-based businesses, where clearly all transactions are conducted on-site within the Measure "Z" CITY boundaries, and therefore subject to transactions tax. (ii) Review of any significant one-time use tax allocations to ensure that there is corresponding transaction tax payments for taxpayers with nexus within the CITY boundaries. (iii) Review of state-wide transactions tax allocations and patterns to identify any obvious errors and omissions. (iv) Identification and follow-up with any potentially large purchasers of supplies and equipment (e.g. hospitals, universities, manufacturing plarits, agricultural operations, refineries) to ensure that their major vendors are properly reporting corresponding transactions tax payments to the Measure "Z" Transactions Tax District. 2. CONTRACTOR will initiate, where the probability of an error exists, contacts with the appropriate taxpayer management and accounting officials 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 Board of Equalization all information necessary to correct any allocation errors and deficiencies that are identified, and shall follow-up with the individual businesses and the State Board of Equalization to ensure that all back quarter payments due the CITY are recovered. 3 2010-351 D. ON GOING CONSULTATION Throughout the term of this agreement, CONTRACTOR shall provide sales tax estimates for proposed annexations, economic development projects and budget projections, monitor the CITY's sales tax sharing agreements and budgeted revenue projections against actual receipts, evaluate sales and use tax related legislative and regulatory proposals that potentially impact the CITY, assist in targeting business retention and tax leveraging opportunities, provide training on sales, transactions and use tax revenues when requested and generally serve as CITY staff on sales, use and transactions tax issues. III. CONFIDENTIALITY Section 7056 of the State of California Revenue and Taxation code specifically limits the disclosure of confidential taxpayer information contained in the records of the State Board of Equalization. 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 Section 7056 (b), (1) of the State of California Revenue and Taxation Code are hereby made part of this agreement. A. CONTRACTOR is authorized by this Agreement to examine sales, use or transactions and use tax records of the Board of Equalization provided to CITY pursuant to contract under the Bradley-Bums Uniform Sales and Use Tax Law. B. CONTRACTOR is required to disclose information contained in, or derived from, those sales, use or transactions and use tax records only to an officer or employee of the CITY who is authorized by resolution to examine the information. C. CONTRACTOR is prohibited from performing consulting services for a retailer, as defined in California Revenue & Taxation Code Section 6015, during the term of this Agreement. D. CONTRACTOR is prohibited from retammg 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 Board of Equalization records shall be used only for purposes related to collection of local sales and use tax or for other governmental functions of the CITY as set forth by resolution adopted pursuant to Section 7056 (b) of the Revenue and Taxation Code. The resolution shall designate the 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 Section 7056 (b), (1) of the Revenue and Taxation Code. 4 2010-351 IV. PROPRIETARY INFORMATION AND SOFTWARE In performing its duties under this agreement, CONTRACTOR will provide a special software system for CITY's use during the term of the contract that allows the CITY to review and print reports on the Board of Equalization Sellers Permit registration and allocation data for the CITY. This software has been developed by CONTRACTOR at substantial expense and is therefore considered by Contractor to be proprietary. CONTRACTOR desires to protect its Proprietary Software. Accordingly, City agrees that neither it nor any of its employees, agents, independent contractors or other persons or organizations over which it has control, will at any time during or after the term of the Agreement, directly or indirectly use any of CONTRACTOR'S Proprietary Software for any purpose not associated with this agreement. Further, City agrees that neither it nor any of its employees, agents, independent contractors or other persons or organizations over which it has control, will disseminate or disclose any of CONTRACTOR'S Proprietary Software to any person or organization not connected with CONTRACTOR . without the express written consent of CONTRACTOR. The City also agrees that it will undertake all necessary and appropriate steps to maintain the proprietary nature of CONTRACTOR'S Proprietary Software and will not attempt to duplicate, decompile, disassemble, derive the source code or re-engineer the software without proper reimbursement to the CONTRACTOR or without the CONTRACTOR's specific written consent. V. CONSIDERATION A. CONTRACTOR shall establish the sales and transactions tax databases, shall provide the ongoing reports and analysis and shall make available the computer software program and databases referenced above for a fee of $650.00 per month, invoiced quarterly (hereafter referred to as "monthly fee"). B. CONTRACTOR shall be further paid 15% of all new Bradley-Bums sales, or use tax revenue received by the CITY as a result of audit and recovery work performed by CONTRACTOR (hereafter referred to as "audit fees") including any reimbursement from the Sales and Use Tax Compensation Fund as outlined in Section 97.68 of the Revenue and Taxation Code. 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 the CITY, it shall be CONTRACTOR'S responsibility to separate and support the incremental amount attributable to its efforts prior to the application 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 State Board of 5 2010-351 Equalization. CONTRACTOR shall provide CITY with an itemized quarterly invoice showing all formula calculations and amounts due for audit fees. For City's Measure "Z" Transactions Tax, CONTRACTOR shall be paid 25% of all new transactions or use tax revenue received by the CITY as a result of audit and recovery work performed by CONTRACTOR (hereafter referred to as "audit fees"). New revenue shall not include any amounts determined and verified 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 the CITY, it shall be CONTRACTOR'S responsibility to separate and support the incremental amount attributable to its efforts prior to the application of the audit fee. Said audit fees will apply to state fund transfers received for those specific quarters identified as being missing and/or deficient following completion of the audit by CONTRACTOR and confirmation of corrections by the State Board of Equalization. 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 percentage fee will be expected. Said approval shall be deemed given when the City Manager or his designated representative, signs a Sales Tax Audit Authorization form, a copy of which is attached as "Exhibit A." 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. C. Above sum shall constitute full reimbursement to CONTRACTOR for all direct and indirect expenses incurred by CONTRACTOR in performing audits including the salaries of CONTRACTOR'S employees, and travel expenses connected with contacting local and out-of-state businesses and Board of Equalization representatives. VI. CITY MATERIALS AND SUPPORT CITY shall adopt a resolution in a form acceptable to the State Board of Equalization and in compliance with Section 7056 of the Revenue and Taxation Code, authorizing CONTRACTOR to examine the confidential sales, transactions and use tax records of CITY. CITY further agrees to continue CONTRACTOR'S authorization to examine the confidential sales, transactions and use 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 State Board of Equalization and audit fees due the CONTRACTOR have been paid. 6 2010-351 VII. LICENSES, PERMITS, FEES AND ASSESSENTS CONTRACTOR shall obtain such licenses, permits and approvals (collectively the "Permits") as may be required by law for the performance of the services required by this Agreement. CITY shall assist CONTRACTOR in obtaining such Permits, and CITY shall absorb all fees, assessments and taxes which are necessary for any Permits required to be issued by CITY. VIII. TERMINATION This Agreement may be terminated for convenience by either party by giving 30 days written notice to the other of such termination and specifying the effective date thereof. 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 less 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 fees 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 State Board of Equalization. Compensation for any audit work previously authorized and satisfactorily performed shall be made at the times provided in the preceding section entitled "Consideration." All documents, data, surveys and reports prepared by CONTRACTOR pursuant to this Agreement shall be considered the property of the CITY and upon payment for services performed by CONTRACTOR, such documents and other identified materials shall be delivered to CITY by CONTRACTOR. IX. INDEPENDENT CONTRACTOR Neither the CITY nor any of its employees shall have any control over the manner, mode or means by which CONTRACTOR, its agents or employees, perform the services required herein, except as otherwise set forth herein. CITY shall have no voice in the selection, discharge, supervision or control of CONTRACTOR'S employees, servants, representatives or agents, or in fixing their 'number, compensation or hours of service. CONTRACTOR shall perform all services required herein as an independent contractor of CITY and shall remain at all times as to CITY a wholly independent contractor with only such obligations as are consistent with that role. CONTRACTOR shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of CITY. CITY shall not in any way or for any purpose become or be deemed to be a partner of CONTRACTOR in its business or otherwise or a joint venturer or a member of any joint enterprise with CONTRACTOR. 7 2010-351 X. NON-ASSIGNMENT This Agreement is not assignable either in whole or in part by CONTRACTOR without the written consent of CITY. XI. ATTORNEY'S FEES In the event a legal action is commenced to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. XII. GOVERNING 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. XIII. INDEMNIFICATION CONTRACTOR agrees to indemnify the CITY, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of CONTRACTOR, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of CONTRACTOR hereunder, or arising from CONTRACTOR'S negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the CITY, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the CITY, its officers, agents or employees, who are directly responsible to the CITY. XIV. NOTICE All notices required by this Agreement shall be given to CITY and CONTRACTOR in writing, by personal delivery or first class mail postage prepaid, addressed as follows: 8 2010-351 CITY: BARBARA P ACHON, DIRECTOR OF FINANCE CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418 CONTRACTOR: HINDERLITER, DE LLAMAS, & ASSOCIATES 1340 Valley Vista Drive, Suite 200 Diamond Bar, CA 91765 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf. ~~ Q.~ City Clerk CONTRACTOR: HINDERLITER, DE LLAMAS & ASSOCIATES A California Corporation -4;~. ~ APPROVED AS TO FORM: James F. Penman, City Attorney 9 2010-351 SAMPLE SAMPLE EXHIBIT A Sales Tax Audit Work Authorization No. The following business or businesses, located in the City of San Bernardino, have been identified as having the potential for generating additional sales tax revenue to the City of San Bernardino. Contractor is hereby authorized to contact the given business(s) and the State Board of Equalization to verify the accuracy of the current reporting methodology and obtain the necessary documentation for the Board of Equalization, to modify allocation formulas, and to return previous misallocated revenue that may be due to City. Contractor's compensation shall be 15% of the new sales and/or use tax revenue received by the City as a result of audit and recovery work performed by Contractor, as set forth in the Agreement between Contractor and City. CITY OF SAN BERNARDINO By: Date: HINDERLITER, DE LLAMAS AND ASSOCIATES By: Date: 2010-351 SAMPLE SAMPLE EXHIBIT B Transactions Tax Audit Work Authorization No. The following business or businesses, located in the City of San Bernardino have been identified as having the potential for generating additional tax revenues to the City of San Bernardino. Contractor is hereby authorized to contact the given businesses) and the State Board of Equalization to verify the accuracy of the current reporting methodology and obtain the necessary documentation for the Board of Equalization, to bill for uncollected transactions and use tax payments or modify misallocated payments and to return revenues that may be due to the District. Contractor's compensation shall be 25% of the new sales and/or use tax revenue received by the District as a result of audit and recovery work performed by Contractor, as set forth in the. Agreement between Contractor and City. CITY OF SAN BERNARDINO By: Date: HINDERLITER, DE LLAMAS AND ASSOCIATES By: Date EXHIBIT B 2010-351 AGREEMENT FOR SALES, USE AND TRANSACTIONS TAX AUDIT AND INFORMATION SERVICES This Agreement is made and entered into as of the 18th day of October ,2010 by and between the CITY OF SAN BERNARDINO, a municipal corporation hereinafter called CITY, and HINDERLITER, de LLAMAS AND ASSOCIATES a California Corporation, hereinafter called CONTRACTOR. I. RECITALS WHEREAS, sales, use and transactions 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, CITY desires the combination of data entry, report preparation, and data analysis necessary to effectively manage its sales and use tax base and recover revenues erroneously allocated to other jurisdictions and allocation pools; and WHEREAS, CONTRACTOR has the programs, equipment and personnel required to deliver the sales and use tax related services referenced herein; THEREFORE, CITY and CONTRACTOR, for the consideration hereinafter described, mutually agree as follows: II. SERVICES The CONTRACTOR shall perform the following services: A. MANAGEMENT REPORTS AND ECONOMIC ANALYSIS 1. CONTRACTOR shall establish a special database that identifies the name, address and quarterly allocations of all sales tax producers within the CITY for the most current and previous back to 1990 or earlier, if the CITY has prior historical sales tax data available on computer readable magnetic media and update the information quarterly. This database will be utilized to gE(nerate special reports to the CITY on: major sales tax producers by rank and category, sales tax activity by categories, business districts or redevelopment areas, identification of reporting aberrations, and per capita and outlet comparisons with regional and statewide sales. 2010-351 CITY OF SAN BERNARDINO AGREEMENT FOR PROPERTY TAX CONSUL TING/ AUDIT SERVICES This AGREEMENT (the "Agreement") is made and entered into as of the day of ,2010 by and between the CITY OF SAN BERNARDINO, a municipal corporation hereinafter called CITY, and HdL Coren & Cone, a California Corporation hereinafter called CONTRACTOR. RECIT ALS WHEREAS, property tax revenues can be verified and potentially increased through a system of continuous monitoring, identification and reconciliation to county records; and WHEREAS, an effective program of property tax management will assist the CITY in . fiscal, economic and community development planning; and WHEREAS, CITY desires the property tax data based reports and data analysis required to effectively manage the CITY property tax base and identify and recover revenues misallocated within the CITY, or to other jurisdictions; and WHEREAS, CONTRACTOR is a state-wide expert in such data analysis with over 150 public agency clients for whom such services are performed and has the programs, equipment, data and personnel required to deliver the property tax services referenced herein; WHEREAS, CITY prefers to pay for certain of such services through a contingency arrangement where payment is made from monies recovered and CONTRACTOR is willing to base its compensation on such a risk-based formula. NOW, THEREFORE, CITY and CONTRACTOR, for the consideration hereinafter described, mutually agree as follows: 1.0 DEFINITIONS For purposes of this Agreement, the following terms shall have the meaning stated below: Audit Review: "Audit" or "Audit Review" shall mean the comparison of databases to ensure that parcels are correctly coded with the appropriate tax rate area to return revenue to the client city or redevelopment agency. Audits include the secured and unsecured tax rolls and where secured records are corrected; the corresponding unsecured records related to those properties are also corrected. A review of the calculation methodologies developed by auditor/controller offices in the administration of property tax revenues or tax increment revenues is made to ensure compliance. New annexations and newly created redevelopment project areas are audited the 1st or 2nd year after the area's adoption due to the timing of LAFCO and the State Board of Equalization in assigning new tax rate areas and county processing of those changes. 728209.1 2010-351 County: "County" shall mean the County in which the CITY is located. Data Base: "Data Base" shall mean a computerized listing of property tax parcels and information compiled for CITY from information provided by the County. Days: "Days" shall mean calendar days. Property Tax Roll: "Property Tax Roll" shall mean the assessed values of parcels on the secured and unsecured lien date rolls as reported by the County. Proprietary Information: "Proprietary Information" shall be the reports, technical information, compilations of data, methodologies, formula, software, programs, technologies and other processes previously designed and developed by CONTRACTOR and used in the performance of the services hereunder. RDA: "RDA" means the community redevelopment agency of CITY established pursuant to Health and Safety Code Sections 33,000 et, seq. ("CRL"). Recovered/Reallocated Revenue: "Recovered or Reallocated Revenue" shall mean additional revenue received as a result of an audit or review of properties submitted for correction or for corrections due erroneous calculations or incorrect methods of distributing revenue discovered by the CONTRACTOR and then made by county agencies which result in a return of additional revenue to the city/agency. Reviews of city administered pass throughs are performed to ensure the correctness of distributions being made to participating agencies. Scope of Services: "Scope of Services" shall mean all of the Base Services specified in Section 2.0, the Optional Services in Section 3.0, the Additional Services in Section 4.0, or any other services rendered hereunder. TRA: "Tax Rate Area" shall mean the area subject to the tax rate. 2.0 BASE SERVICES The CONTRACTOR shall perform all of the following duties as part of the Base Services provided hereunder, unless otherwise specified in writing by the Contract Officer: 2.1 Analvsis And Identification Of Misallocation Errors (Contineent Fee~ (a) In the first year of this Agreement, and as necessary thereafter but not less than once every five (5) years, CONTRACTOR shall conduct an analysis to identify and verify in the CITY parcels on the secured ,Property Tax Roll which are not properly attributed to a CITY, and will provide the correct TRA designation to the proper County agency. Typical errors include parcels assigned to incorrect TRAs within the CITY or an adjacent city, and TRAs allocated to wrong taxing agencies. 2 728209.1 2010-351 (b) CONTRACTOR shall annually reconcile the annual auditor- controller assessed valuations report to the assessor's lien date rolls and identify discrepancies. (c) CONTRACTOR shall annually review parcels on the unsecured Property Tax Roll to identify inconsistencies such as value variations, values being reported to a mailing address rather than the situs address, and errors involving TRAs (to the extent records are available). (d) In Counties with automated data, CONTRACTOR shall quarterly audit documentary transfer tax remittance detail provided by County and identify misallocations that may be recovered for CITY. 2.2 Annual Services (Fixed Fee) Annually, after the Property Tax Roll is available: (a) CONTRACTOR shall establish a Data Base for CITY for installation on personal computers or a network. (b) Utilizing the Data Base, CONTRACTOR will provide: (1) A listing of the major property owners in the CITY, including the assessed value oftheir property. (2) A listing of the major property tax payers, including an estimate of the property taxes. (3) the prior lien date. A listing 'of property tax transfers which occurred since (4) A listing of parcels that have not changed ownership since the enactment of Proposition XIIIA. (5) code designation. A comparison of property within the CITY by county-use (6) A listing by parcel of new construction activity utilizing city building department data, including building permits with assessor parcel numbers and project completion dates, to identify non-residential parcels with new construction activity and to provide reports for use in the CITY's preparation of Gann (Propositions 4 and 111) State Appropriation Limit calculations. (7) A listing of multiple owned parcels. (8) A listing of absentee owner parcels. (9) Calculate an estimate of property tax revenue anticipated to be received for the fiscal year by the CITY. This estimate is based upon the 3 728209,1 2010-351 initial information provided by the County and is subject to modification. This estimate shall not be used to secure the indebtedness of the CITY. (10) Development of historical trending reports involving taxable assessed values for the CITY and RDA, median and average sales prices, foreclosure activity and related economics trends. (11) Upon written request, analyses based on geographic areas designated by the CITY to include assessed valuations and square footage computations for use in community development planning. 2.3 Quarterlv Services (Fixed Fee) The CONTRACTOR shall perform the following services quarterly: (a) A listing of property tax appeals filed on properties in the CITY (selected counties). (b) A listing of property transfers that have occurred since the last report. (c) An update of computer program parcel transfer data. 2.4 On-Goine Consultation (Fixed Fee) During the term of this Agreement, CONTRACTOR will serve as the CITY's resource staff on questions relating to property tax and assist in estimating current year property tax revenues. On-going consultation would include;but not be limited to, inquiries resolved through use of the CITY's data base. 3.0 OPTIONAL SERVICES The following services are available on a time and materials basis: 3.1 Specified Data Generation of specialized data-based reports which would require additional programming, the purchase of additional data, costs for county staff research, or similar matters not necessary to carry out services outlined in Section 2.0. 3.2 County Research Any research with County agencies for which CONTRACTOR does not have a current database. 3.3 Redevelopment Financial Services Redevelopment Financial Services including but not limited to: 4 728209.1 2010-351 (a) Tax increment projections (b) Feasibility studies (c) Agency or Project Area cash flows (d) Low and moderate income housing set-aside calculations, findings and consultations (e) Fiscal impact studies (f) Legislative analysis (g) Redevelopment plan adoption and amendment financial feasibility studies 3.4 Bond Services Bond services are available for a fixed negotiated fee, including: (a) Tax Allocation Bonds fiscal consultant reports (b) Mello-Roos Special Tax studies (c) Independent redevelopment and financial consultant reports, such as escrow release reports and additional bond tests 4.0 ADDITIONAL SERVICES CITY shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any material adjustment in the contract and/or the time to perform this Agreement, which said adjustments are subject ~o the written approval of the Contractor. Any increase in compensation of up to $25,000, or in the time to perform of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. 5.0 OBLIGATIONS OF THE PARTIES WITH RESPECT TO SERVICES 5.1 City Materials and SUDDort CITY agrees to provide the following information: 1. Current CITY maps and zoning map; 2. A copy of reports received by the CITY annually from the Auditor- Controller's office detailing assessed values (secured, unsecured and utilities), as well as unitary values for reconciliation analysis; 3. Parcel listing and maps of CITY parcel annexations since the lien date roll; 5 728209.1 2010-351 4. A listing of completed new construction projects with Assessor's map book, page and parcel numbers (APN) for proper identification and tracking for two years prior to the date of this Agreement. If the data does not include the APN information, CONTRACTOR will research this information at an additional cost; 5. A listing of the CITY levies assessment districts and direct assessments. 6. RDA formation documents, debt service schedules, plan caps, DDA/OP A agreements. 5.2 Compliance with Law All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the CITY and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 5.3 License. Permits. Fees and Assessments CONTRACTOR shall obtain such licenses, permits and approvals (collectively the "Permits") as may be required by law for the performance of the services required by this Agreement. CITY shall assist CONTRACTOR in obtaining such Permits, and CITY shall absorb all fees, assessments and taxes which are necessary for any Permits required to be issued by CITY. 5.4 Further Responsibilities of Parties Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service ofthe other. 6.0 CONSIDERATION 6.1 Base Fixed Fee Services CONTRACTOR shall provide the Base Services described in Section 2.0 above, for a fixed annual fee of$19,500.00 (invoiced quarterly). 6.2 Base Contine:ent Fee Services For Base Services pursuant to Section 2.1 which are payable on a contingent basis, CONTRACTOR shall receive 20 percent of net -general fund or tax increment property tax revenue or other revenues attributable to CITY departments, districts, or funds recovered or reallocated which are directly or indirectly the result of an audit, analysis or consultation performed by CONTRACTOR (including but not limited to base year value audits; administration of tax sharing agreements; tax increment allocation reviews; county allocation reviews). CONTRACTOR shall separate and support said reallocation and provide CITY with 6 728209.1 2010-351 an itemized invoice showing all amounts due as a result of revenue recovery or reallocation. CITY shall pay audit fees after Contractor's submittal of evidence that corrections have been made by the appropriate agency. Payment to CONTRACTOR shall be made within thirty (30) days after CITY receives its first remittance advice during the fiscal year for which the correction applies. Optional Services Fees for Optional Services as outlined in Services in Section 3.0 above (except Section 3.4) shall be billed at the following hourly rates: Partner $195 per hour Principal $175 per hour Associate $135 per hour Senior Analyst $100 per hour Analyst $ 65 per hour Administrative $ 45 per hour Hourly rates are exclusive of expenses and are subject to adjustment by CONTRACTOR annually. On July 1st of each year CONTRACTOR shall provide CITY with an updated schedule of hourly rates. The rates will not be increased by more than five percent (5%) per year. In addition, expenses for Optional Services shall be billed at 1.15 times actual incurred costs. 6.3 Fees for Bond Services Services under Section 3.5 above will be determined depending upon the complexity of the bond issue and the time available for comple~ion of the task and will be mutually agreed to be the parties. 6.4 Indirect Expenses Except as specified above, no other charges shall be made for direct or indirect expenses incurred by CONTRACTOR in performing the services in the Scope of Services including for administrative overhead, salaries of CONTRACTOR'S employees, travel expenses or similar matters. 6.5 Due Date All fees are due 30 days immediately following billing. All amounts that are not paid when due shall accrue interest from the due date at ,the rate of one percent per month (12% per annum). 7.0 TERM PERFORMANCE SCHEDULE 7.1 Time of Essence Time is of the essence in the performance of this Agreement. 7 728209.1 2010-351 7.2 Schedule of Performance CONTRACTOR shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "A", and incorporated herein by this reference. When requested by the CONTRACTOR, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively. 7.3 Force Maieure The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the CONTRACTOR, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes,. freight embargoes, wars, litigation, and/or acts of any governmental agency, including the CITY, if the CONTRACTOR shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. 7.4 llerm Unless earlier terminated in accordance with Section 11.6 of this Agreement, this Agreement shall continue in full force and effect for five (5) years, and, unless a notice of termination is given on the fourth anniversary date, shall be automatically extended from year to year until and such notice shall be given. COORDINAllION OF WORK 7.5 Representative of Contractor The following principals of CONTRACTOR are hereby designated as being the principals and representatives of CONTRACTOR authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Paula Cone HdL COREN & CONE 1340 Valley Vista Drive, Suite 200 Diamond Bar, CA 91765 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for CITY to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of CONTRACTOR and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be 8 728209.1 2010-351 replaced nor may their responsibilities be substantially reduced by CONTRACTOR without the express written approval of CITY. 7.6 Contract Officer The Contract Officer shall be such person as may be designated by the City Manager of CITY. It shall be the CONTRACTOR'S responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the CONTRACTOR shall refer any decisions which must be made by CITY to the Contract Officer. Unless otherwise specified herein, any approval of CITY required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the CITY required hereunder to carry out the terms of this Agreement. 7.7 Prohibition Aeainst Subcontractine or Assienment The experience, knowledge, capability and reputation of CONTRACTOR, its principals and employees were a substantial inducement for the CITY to enter into this Agreement. Therefore, CONTRACTOR shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the CITY. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of CITY. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than fifty percent (50%) of the present ownership and/or control of CONTRACTOR, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the CONTRACTOR or any surety of CONTRACTOR of any liability hereunder without the express consent of CITY. 7.8 Independent Contractor Neither the CITY nor any of its employees shall have any control over the manner, mode or means by which CONTRACTOR, its agents or employees, perform the services required herein, except as otherwise set forth herein. CITY shall have no voice in the selection, discharge, supervision or control of CONTRACTOR'S employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. CONTRACTOR shall perform all services required herein as an independent contractor of CITY and shall remain at all times as to CITY a wholly independent contractor with only such obligations as are consistent with that role. CONTRACTOR shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of CITY. CITY shall not in any way or for any purpose become or be deemed to be a partner of CONTRACTOR in its business or otherwise or a joint venturer or a member of any joint enterprise with CONTRACTOR. 9 728209.1 2010-351 8.0 INSURANCE AND INDEMNIFICATION 8.1 Insurance The CONTRACTOR shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to CITY, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Comprehensive General Liability Insurance. The policy of insurance shall be in an amount not less than either (i) a combined single limit of $1,000,000 for bodily injury, death and property damage or (ii) bodily injury limits of $500,000 per person, $1,000,000 per occurrence and $1,000,000 products and completed operations and property damage limits of $500,000 per occurrence and $500,000 in the aggregate. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which . shall indemnify, insure and provide legal defense for both the CONTRACTOR and the CITY against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the CONTRACTOR in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of $250,000 per person and $500,000 per occurrence and property damage liability limits of $100,000 per occurrence and $250,000 in the aggregate or (ii) combined single limit liability of $500,000. Said policy shall incl~de coverage for owned, non-owned, leased and hired cars. (d) Errors and Omissions (Professional Liability). A policy of professional liability issuance written on a claims made basis in an amount not less than One Million Dollars ($1,000,000). (e) General Requirements. All of the above policies of insurance shall be primary insurance and shall name the CITY, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the CITY, its officers, employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to the CITY. In the event any of said policies of insurance are cancelled, the CONTRACTOR shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 9.0 to the Contract Officer. No work or services under this Agreement shall commence until the CONTRACTOR has provided the CITY with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the CITY. 10 728209.1 2010-351 8.2 Indemnification CONTRACTOR agrees to indemnify the CITY, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities of CONTRACTOR, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or omissions of CONTRACTOR hereunder, or arising from CONTRACTOR'S negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the CITY, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the CITY, its officers, agents or employees, who are directly responsible to the CITY. 8.3 Sufficiency of Insurer or Surety Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the CITY due to unique circumstances. In the event the Risk Manager of CITY ("Risk Manager") determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the CITY, the CONTRACTOR agrees that the minimum limits of the insurance policies and the performance bond required by this Section 9.0 may be changed accordingly upon receipt of written notice from the Risk Manager; provided that the CONTRACTOR shall have the right to appeal a determination of increased coverage by the Risk Manager to the CITY Council of CITY within 10 days of receipt of notice from the Risk Manager. 9.0 RECORDS AND REPORTS 9.1 Reports CONTRACTOR shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 9.2 Records CONTRACTOR shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of CITY, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of seven (7) years following completion of the 11 728209.1 2010-351 services hereunder, and the CITY shall have access to such records in the event any audit is required. 9.3 Non-Disclosure of 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, software, 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, subject to the limitations of the Public Records Act, G.C. section 6250 et seq., CITY agrees that neither it nor any of its employees, agents, independent contractors or other persons or organizations over which it has control, will at any time during 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, and further, CITY agrees that it nor any of its employees, agents, independent contractors or other persons or 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. 9.4 Release of Documents Pursuant to Public Records Act Notwithstanding any other provision in this Agreement, all obligations relating to disclosure of Proprietary Information remain subject to the Freedom of Information Act or California Public Records Act, Cal. Gov't Code ~~ 6250 et seq. (collectively, the "PRA"). The Parties intend that if CITY is served with a request for disclosure under the PRA, or any similar statute, the CITY in good faith will make the determination as to whether the material is subject to inspection, or exempt under the statute. CITY shall advise CONTRACTOR in writing five (5) days prior to the intended disclosure of any decision to disclose Proprietary Information, and the reasons therefore, and if CONTRACTOR then timely advises CITY in writing with specific supporting legal authority that it objects to the disclosure, CITY shall not disclose the information. In such case, CONTRACTOR shall then be solely liable for defending the non- disclosure and shall indemnify and hold CITY harmless for such nondisclosure. 10. ENFORCEMENT OF AGREEMENT 10.1 California Law This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate 12 728209.1 2010-351 court in such county, and CONTRACTOR covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 10.2 Disputes In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit CITY's or the CONTRACTOR'S right to terminate this Agreement without cause pursuant to Section 11.6. 10.3 Waiver No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 10.4 Riehts and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 10.5 Leeal Action In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 10.6 Termination Prior to Expiration of Term This Section shall govern any termination of this Agreement. The Parties reserve the right to terminate this Agreement at any time, with or without cause, upon forty-five (45) days' written notice to the non-terminating party, except that where termination is for cause, the Parties will comply with the dispute resolution process in Section 11.2. Upon issuance of any notice of termination, CONTRACTOR shall immediately cease all services hereunder except such as may 13 728209.1 2010-351 be specifically approved by the Contract Officer. The CONTRACTOR shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non- terminating party with the opportunity to cure pursuant to Section 11.2. 10.7 Attornevs' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 11.0 MISCELLANEOUS PROVISIONS 11.1 Notice Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail addressed as follows: CITY Barbara Pachon, Director of Finance City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 CONTRACTOR: HdL COREN & CONE 1340 Valley Vista Drive, Suite 200 Diamond Bar, California 91765 Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy- two (72) hours from the time of mailing if mailed as provided in this Section. 11.2 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 14 728209.1 2010-351 11.3 Inte2ration: Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 11.4 Severability In the event that anyone or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 11.5 Corporate Authority The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CONTRACTOR: HdL COREN & CONE A California Corporation CITY OF SAN BERNARDINO BY:~ APPROVED AS TO FORM: . James F. enman, City Attorney By: 15 728209.1 2010-351 EXHIBIT" A" SCHEDULE OF PERFORMANCE TIMELINE FOR DELIVERABLES July/August Data available for purchase from counties September 30 Dataset and software available for installation on city computers September-October Unsecured audits performed and forwarded to county assessor October-February Delivery of preliminary property tax reports December Quarterly data updates - Database/software Appeals quarterly updates emailed in counties where the data is available March Quarterly data updates - Database/software Appeals quarterly updates emailed in counties where the data is available March/April General Fund Budget Projections April/May Final Books - Addendums emailed to clients June Quarterly data updates - Database/software Appeals quarterly updates emailed in counties where the data is available Ongoing Secured Audits - City and Redevelopment Project Areas Malakai Audits (Base year reviews for public purchased property after project formation) Property sales reports Redevelopment Project Area base year parcel assembly City and RDA mid-year budget reviews and budget projections Analytical work at the request of clients 728209.\ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUT~~ 12007 -414 1 2 3 4 5 6 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DESIGNATING MUNISERVICES, LLC AS THE AUTHORIZED CITY REPRESENTATIVE TO EXAMINE TRANSACTIONS (SALES) AND USE TAX RECORDS, AND DESIGNATING THE CITY MANAGER, THE DIRECTOR OF FINANCE AND THE DEPUTY DIRECTOR OF FINANCE AS THE CITY OFFICERS AUTHORIZED TO RECEIVE INFORMATION CO NT AINED IN, OR DERIVED FROM, THE TRANSACTIONS (SALES) AND USE TAX RECORDS, AND RESCINDING RESOLUTION 87-130. ., I WHEREAS, pursuant to Ordinance No. MC1229 of the City of San Bernardino and Section 7270 of the Revenue and Taxation Code, the City of San Bernardino entered into a contract with the State Board of Equalization to perform all functions incident to the administration and operation of the Transactions and Use Tax Ordinance; and WHEREAS, the City of San Bernardino deems it desirable and necessary for authorized representatives of the City of San Bernardino to examine confidential transactions and use tax records of the State Board of Equalization pertaining to transactions and use taxes collected by the Board of Equalization for the City of San Bernardino pursuant to that contact; and WHEREAS, Section 7056 of the Revenue and Taxation Code sets forth certain requirements and conditions for the disclosure of State Board of Equalization records and establishes criminal penalties for the unlawful disclosure of information contained in or derived from, the transactions and use tax records of the Board of Equalization. NOW, THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City of San Bernardino designates the City Manager, the Director of Finance and the Deputy Director of Finance as the authorized officers to the State Board of Equalization to represent the City of San Bernardino with authority to examine transactions and use tax records of the State Board of Equalization pertaining to 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 2010-351 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DESIGNATING MUNISERVICES, LLC AS THE AUTHORIZED CITY REPRESENTATIVE TO EXAMINE TRANSACTIONS (SALES) AND USE TAX RECORDS, AND DESIGNATING THE CITY MANAGER, THE DIRECTOR OF FINANCE AND THE DEPUTY DIRECTOR OF FINANCE AS THE CITY OFFICERS AUTHORIZED TO RECEIVE INFORMATION CONTAINED IN, OR DERIVED FROM, THE TRANSACTIONS (SALES) AND USE TAX RECORDS, AND RESCINDING RESOLUTION 87-130. transactions and use taxes collected for the City of San Bernardino by the State Board of ., . Equalization pursuant to the contract between the City of San Bernardino and the State Board of Equalization. The information obtained by examination of State Board of Equalization records shall be used only for purposes related to the collection of the City of San Bernardino's transactions and use taxes by the State Board of Equalization pursuant to the contract. SECTION 2. The City of San Bernardino designates MuniServices, LLC to examine the transactions and use tax records of the State Board of Equalization pertaining to transactions and use taxes collected for the City of San Bernardino by the State Board of Equalization. MuniServices, LLC, designated by this section, meets all the following conditions: a. has an existing contract with the City of San Bernardino to examine those transactions and use tax records; b. is required by that contract to disclose information contained in, or derived, from those transactions and use tax records only to the officers authorized under Section 1 of this Resolution to examine infonnation; 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. 2 1 2 3 4 5 6 2010-351 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DESIGNATING MUNISERVICES, LLC AS THE AUTHORIZED CITY REPRESENTATIVE TO EXAMINE TRANSACTIONS (SALES) AND USE TAX RECORDS, AND DESIGNATING THE CITY MANAGER, THE DIRECTOR OF FINANCE AND THE DEPUTY DIRECTOR OF FINANCE AS THE CITY OFFICERS AUTHORIZED TO RECEIVE INFORMA TION CO NT AlNED IN, OR DERIVED FROM, THE TRANSACTIONS (SALES) AND USE TAX RECORDS, AND RESCINDING RESOLUTION 87-130. SECTION 3. The City of San Bernardino Resolution 87-130 is hereby rescinded ., I and replaced by this resolution. 8 9 10 11 12 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the ~ day of October , 2007, by the following vote, to wit: ABSENT ABSTAIN NAYS AYES COUNCILMEMBERS ESTRADA ~ 13 14 . BAXTER x 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRINKER x x DERRY x KELLEY x JOHNSON McCAMMACK ~ ~~~.~ Ra el Clark, City Clerk The foregoing resolution is hereby approved thi~d' day of October 2007. ~ J. Morris, Ma r San Bernardino Approved as to form: JAMES F. PENMAN City Attorney BY: ). ~ ~: .~A _ v~ (jC/2 ..----- J 3