HomeMy WebLinkAboutAGENDA REPORT 2024 0605 CCSA REG ITEM 10DCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of June 5, 2024
ACTION APPROVED STAFF
RECOMMENDATION.
BY A. Hurtado.
D. Consider Amendment and Restatement to Agreement for Property Tax Audit and
Information Services to HdL, Coren and Cone. Staff Recommendation: 1) Award
the amended and restated agreement to HdL, Coren and Cone; and authorize the
City Manager to execute the agreement, subject to the final language approval by
the City Manager and City Attorney; and 2) Authorize the City Manager to sign
property tax audits to enable HdL, Coren and Cone to perform audit services.
(Staff: Hiromi Dever, Interim Finance Director)
Item: 10.D.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Hiromi Dever, Interim Finance Director
DATE: 06/05/2024 Regular Meeting
SUBJECT: Consider Amendment and Restatement to Agreement for Property Tax
Audit and Information Services to HdL, Coren and Cone
BACKGROUND
Since 1995 the City has utilized the services of HdL, Coren and Cone (HdLCC) to
perform property tax audits and property tax information services. The City
currently receives quarterly property tax analysis from HdLCC along with audit
services.
This amendment will update the existing agreement to include an annual base fee
increase, update HdLCC hourly staff rates for ongoing consultation services, and
amend the agreement term.
Staff is requesting the City Council consider approving the agreement with HdLCC
and authorize the City Manager to sign the agreement.
DISCUSSION
The current agreement is 19 years old and was last updated on July 18, 2005.
HdLCC has requested the City amend its basic fixed fee service cost which includes
a one-time ten percent (10%) increase to $10,560 in the new agreement. The
annual fee will be adjusted annually in February by the CPI, not to exceed 5% per
year.
Item: 10.D.
313
Honorable City Council
06/05/2024 Regular Meeting
Page 2
Ongoing consultation services will continue to be provided at specified hourly rates
for HdLCC staff, which have been increased from the prior agreement.
The identification and correction of property tax errors continues on a contingency
basis, with HdLCC receiving 25% of revenues recovered or reallocated directly or
indirectly as the result of an audit, analysis, or consultation performed by HdLCC.
This rate is unchanged from the prior agreement.
While the prior agreement had no expiration date, the new agreement provides for a
five-year contract with the possibility of three one-year extensions. The contract has a
45-day termination clause by either party.
HdLCC has assisted the City with economic development and financial forecast of
the property tax revenues. The audit services have ensured that the City receives
the taxes that are generated by the properties which reside within the City.
ENVIRONMENTAL DETERMINATION
This action is exempt from the California Environmental Quality Act (CEQA) as it does
not constitute a project, as defined by Section 15378 of the State CEQA Guidelines.
Therefore, no environmental review is required.
FISCAL IMPACT
The potential maximum cost increase for basic services at 5% per year over eight
years starting at the base rate of $10,560 is $3,591. The actual cost is likely to be
less than 5% per year and related to the annual CPI.
COUNCIL GOAL COMPLIANCE
This action does not support a current strategic directive.
STAFF RECOMMENDATION
1)Award the amended and restated agreement to HdL, Coren and Cone; and
authorize the City Manager to execute the agreement, subject to the final language
approval by the City Manager and City Attorney; and
2)Authorize the City Manager to sign property tax audits to enable HdL, Coren and
Cone to perform audit services.
Attachment: Agreement for Property Tax Consulting/ Audit Services
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CITY OF MOORPARK
AMENDING AND RESTATING CONSULTING SERVICES AGREEMENT FOR
PROPERTY TAX AND AUDIT SERVICES
This Amended and Restated AGREEMENT (the “Agreement”) is made and
entered into as of the _____ day of __________, 2024 by and between the CITY OF
MOORPARK, a municipal corporation hereinafter called CITY, and HdL Coren & Cone,
a California Corporation hereinafter called CONSULTANT.
RECITALS
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, CONSULTANT is a state-wide expert in such data analysis with over
260 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; and
WHEREAS, CITY prefers to pay for certain of such services through a contingency
arrangement where payment is made from monies recovered and CONSULTANT is
willing to base its compensation on such a risk-based formula.
WHEREAS, CITY and consultant now wish to update the Agreement terms to
reflect the City’s current needs and the Consultant’s current offerings;
NOW, THEREFORE, CITY and CONSULTANT, for the consideration hereinafter
described, mutually agree to enter into this Amended and Restated Agreement which
supersedes all prior agreements, including the 1995 and the 2005 amendments, 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
ATTACHMENT
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return revenue to the client city. 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 is made to ensure compliance. New annexations 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.
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 all reports, technical
information, compilations of data, methodologies, formula, software, programs,
technologies and other processes previously and subsequently designed and
developed by CONSULTANT and used in the performance of the services
hereunder.
Successor Agency: “Successor Agency” means the City's administration
pursuant to Section 34176 of the Health and Safety Code of the former community
redevelopment agency of CITY).
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 CONSULTANT and then made
by county agencies which result in a return of additional revenue to the AGENCY.
Reviews of AGENCY 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 CONSULTANT shall perform all of the following duties as part of the Base
Services provided hereunder, unless otherwise specified in writing by the Contract
Officer:
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2.1 Analysis And Identification Of Misallocation Errors (Contingent Fee)
(a) In the first year of this Agreement, and as necessary thereafter but
not less than once every five (5) years, CONSULTANT shall conduct an analysis
to identify and verify 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.
(b) CONSULTANT shall annually reconcile the annual auditor-controller
assessed valuations report to the assessor's lien date rolls and identify
discrepancies.
(c) CONSULTANT 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) CONSULTANT may audit general fund or tax increment property tax
revenue or other revenues attributable to the CITY departments, districts,
(including but not limited to base year value audits; administration of tax sharing
agreements; tax increment allocation reviews; county allocation and payments
reviews).
2.2 Annual Services (Fixed Fee)
Annually, after the Property Tax Roll is available:
(a) CONSULTANT shall establish a Data Base for CITY available
through CONSULTANT’S online property tax application.
(b) Utilizing the Data Base, CONSULTANT will provide:
(1) A listing of the major property owners in the CITY, including
the assessed value of their property.
(2) A listing of the major property taxpayers, including an estimate
of the property taxes.
(3) A listing of property tax transfers which occurred since the
prior lien date.
(4) A listing of parcels that have not changed ownership since the
enactment of Proposition XIIIA.
(5) A comparison of property within the CITY by county-use code
designation.
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(6)A listing by parcel of new construction activity 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
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, median and average sales prices 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.
(12)One and five-year budget projections for the city general fund
and special districts. This report is interactive for tax modeling.
2.3 Successor Agency Services
Successor Agency Services including but not limited to:
(a)Annual tax increment projections and, as requested, cash flow
analysis for the Successor Agency by Project Area
(b)Review of Redevelopment Obligation Payment Schedules (ROPS)
as requested.
(c)Provide property tax information to the Oversight Board at the
direction of the Successor Agency
(d)Provide access to the Oversight Board to City and former
redevelopment agency documents at the direction of the Successor
Agency
(e)Monitor the County distribution of tax-sharing revenues to the
taxing entities of the former redevelopment agency
(f)Advice and consultation on the City/Successor Agency’s
preparation of required reports, such as revenue projections; review
of Recognized Obligation Payment Schedules (ROPS), submittals
to the Oversight Board and/or County or State agencies, and new
or revised legislative requirements
(g)Analysis of legislative and judicial matters impacting
Redevelopment Property Tax Trust Fund (RPTTF) revenues to the
Successor Agency and to the City.
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2.4 Quarterly Services/Monthly Services (Fixed Fee)
The CONSULTANT 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)Monthly update of CONSULTANT’S web-based software program to
include parcel transfer data and, in select counties, appeal updates.
2.5 On-Going Consultation (Fixed Fee)
During the term of this Agreement, CONSULTANT 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 CONSULTANT does not have a
current database.
3.3 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
3.4 Additional Meetings Requested
Meetings in excess of the annual meeting to review the analysis of property tax
data, trending information, and other findings with AGENCY shall be considered
an Optional Service.
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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 CONSULTANT, incorporating therein any material adjustment in the
contract and/or the time to perform this Agreement, which said adjustments are subject
to the written approval of the CONSULTANT. Any increase in compensation of up to fifty-
five thousand dollars ($55,000), or in the time to perform of up to one hundred eighty
(180) days may be approved by the City Manager. Any greater increases, taken either
separately or cumulatively must be approved by the City Council. It is expressly
understood by CONSULTANT 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 Support
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;
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, CONSULTANT will research
this information as may be required at an additional cost, subject to
City approval
5.A listing of the CITY levies assessment districts and direct
assessments.
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.
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5.3 License, Permits, Fees and Assessments
CONSULTANT 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 CONSULTANT 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 of the other.
6.0 CONSIDERATION
6.1 Base Fixed Fee Services
CONSULTANT shall provide the Base Services described in Section 2.0 above,
for a fixed annual fee of ten thousand five hundred sixty dollars ($10,560) invoiced
quarterly.
The Base Services Fixed Fee shall be subject to annual Consumer Price Index
(CPI) adjustment beginning July 1, 2025 and each July 1 thereafter. The maximum
annual CPI rate adjustment shall not exceed 5%.
The City Manager will administratively approve any authorized adjustment to the
Base Services Fixed Fee.
Each CPI adjustment will be calculated by computing the percentage upwards
change, if any, in the CPI for the twelve-month annual average period ending in February
of each year, and multiplying the applicable amount to be escalated by 100% of that
percentage upwards change on the CPI.
The CPI used will be the CPI-All Urban Consumers for the Los Angeles-Long
Beach-Anaheim, CA- as determined by the California Department of Industrial Relations.
By way of example, the calculation to determine the CPI multiplier is as follows:
1. Current year CPI, Annual Average (ending February) 224.6
2.Previous Year CPI, Annual Average (ending February) 221.4
3.Change in Index (Line 1 minus Line 2) 3.2
4.% Increase (3.2% ÷ 221.4 = .0144) X 100 = 1.44%
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The annual average is comparing one 12-month period against another 12-month
period.
6.2 Base Contingent Fee Services
For Base Services pursuant to Section 2.1 which are payable on a contingent
basis, CONSULTANT shall receive 25 percent of net general fund 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 CONSULTANT (including but
not limited to base year value audits; administration of tax sharing agreements; tax
increment allocation reviews; county allocation reviews). CONSULTANT shall separate
and support said reallocation and provide CITY with an itemized invoice showing all
amounts due as a result of revenue recovery or reallocation. CITY shall pay audit fees
after CONSULTANT'S submittal of evidence that corrections have been made by the
appropriate agency. Payment to CONSULTANT shall be made within thirty (30) days
after CITY receives its first remittance advice during the fiscal year for which the correction
applies.
6.3 Optional Services
Fees for Optional Services as outlined in Services in Section 3.0 above (except
Section 3.3) shall be billed at the following hourly rates:
Partner $250 per hour
Principal $225 per hour
Programmer $200 per hour
Associate $175 per hour
Senior Analyst $125 per hour
Analyst $ 90 per hour
Administrative $ 70 per hour
Hourly rates are exclusive of expenses and are subject to adjustment by
CONSULTANT annually. On July 1st of each year CONSULTANT shall provide CITY
with an updated schedule of hourly rates. In accordance with Section 6.1, the maximum
annual CPI rate adjustment shall not exceed 5%.
6.4 Fees for Bond Services
Services under Section 3.3 above will be determined depending upon the
complexity of the bond issue and the time available for completion of the task and will be
mutually agreed to be the parties.
6.5 Indirect Expenses
Except as specified above, no other charges shall be made for direct or indirect
expenses incurred by CONSULTANT in performing the services in the Scope of Services
including for administrative overhead, salaries of CONSULTANT’S employees, travel
expenses or similar matters.
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6.6 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.
7.2 Schedule of Performance
CONSULTANT 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 CONSULTANT,
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 Majeure
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 CONSULTANT, 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 CONSULTANT 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 Term
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 or prior to anniversary date, shall allow for three (3) additional one
year (1) extensions, for a total maximum term of eight years.
8.0 COORDINATION OF WORK
8.1 Representative of CONSULTANT
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The following principals of CONSULTANT are hereby designated as being the
principals and representatives of CONSULTANT authorized to act in its behalf with
respect to the work specified herein and make all decisions in connection therewith:
Nichole Cone-Morishita
HdL COREN & CONE
120 S. State College Blvd., Suite 200
Brea, CA 92821
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 CONSULTANT and devoting sufficient time
to personally supervise the services hereunder. For purposes of this Agreement, the
foregoing principals may not be replaced nor may their responsibilities be substantially
reduced by CONSULTANT without the express written approval of CITY.
8.2 Contract Officer
The Contract Officer shall be such person as may be designated by the City
Manager of CITY. It shall be the CONSULTANT’S responsibility to assure that the
Contract Officer is kept informed of the progress of the performance of the services and
the CONSULTANT 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.
8.3 Prohibition Against Subcontracting or Assignment
The experience, knowledge, capability and reputation of CONSULTANT, its
principals and employees were a substantial inducement for the CITY to enter into this
Agreement. Therefore, CONSULTANT 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 CONSULTANT, 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 CONSULTANT or any
surety of CONSULTANT of any liability hereunder without the express consent of CITY.
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8.4 Independent CONSULTANT
Neither the CITY nor any of its employees shall have any control over the manner,
mode or means by which CONSULTANT, 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 CONSULTANT’S employees, servants,
representatives or agents, or in fixing their number, compensation or hours of service.
CONSULTANT shall perform all services required herein as an independent
CONSULTANT of CITY and shall remain at all times as to CITY a wholly independent
CONSULTANT with only such obligations as are consistent with that role. CONSULTANT
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 CONSULTANT in its business or otherwise or a joint
venturer or a member of any joint enterprise with CONSULTANT.
9.0 INSURANCE AND INDEMNIFICATION
9.1 Insurance
The CONSULTANT 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) Commercial General Liability. Insurance including coverage for
premises and operations, products and completed operations, personal and advertising
injury, bodily injury and property damage, with a minimum policy limit of $3,000,000 per
occurrence and $5,000,000 in the annual general aggregate (occurrence form). A
combination of primary, excess and umbrella limits are acceptable to satisfy minimum
policy limit requirements.
(b) Automotive. Insurance including coverage for all non-owned and
hired automobiles used in the performance of this Agreement and with minimum limits of
$1,000,000 combined single limit each accident.
(c) Worker’s Compensation. 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 CONSULTANT 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
CONSULTANT in the course of carrying out the work or services contemplated in this
Agreement.
(d) Errors and Omissions (Professional Liability). A policy of
professional liability issuance written on a claims-made basis in an amount not less than
$1,000,000.
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9.2 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 CONSULTANT 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 CONSULTANT 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.
9.3 Indemnification
CONSULTANT 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 CONSULTANT, its agents,
employees, SUBCONSULTANTs, or invitees, provided for herein, or arising from the
negligent acts or omissions of CONSULTANT hereunder, or arising from
CONSULTANT’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.
9.4 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
CONSULTANT 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 CONSULTANT 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.
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10.0 RECORDS AND REPORTS
10.1 Reports
CONSULTANT 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.
10.2 Records
CONSULTANT shall keep, and require SUBCONSULTANTs 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 three (3) years following completion of the services hereunder, and the CITY shall have
access to such records in the event any audit is required.
10.3 Non-Disclosure of Proprietary Information
In performing its duties under this Agreement, CONSULTANT will produce reports,
technical information and other compilations of data to CITY. These reports, technical
information and compilations of data are derived by CONSULTANT using methodologies,
formulae, programs, techniques and other processes designed and developed by
CONSULTANT at a substantial expense. CONSULTANT'S reports, technical
information, compilations of data, methodologies, formulae, software, programs,
techniques and other processes designed and developed by CONSULTANT shall be
referred to as Proprietary Information. CONSULTANT'S Proprietary Information is not
generally known by the entities with which CONSULTANT competes.
CONSULTANT desires to protect its Proprietary Information. Accordingly, CITY
agrees that neither it nor any of its employees, agents, independent CONSULTANTs 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 CONSULTANT'S Proprietary
Information for any purpose not associated with CONSULTANT'S activities. Further,
CITY agrees that it nor any of its employees, agents, independent CONSULTANTs or
other persons or organizations over which it has control, will disseminate or disclose any
of CONSULTANT'S Proprietary Information to any person or organization not connected
with CONSULTANT, without the express written consent of CONSULTANT. The CITY
also agrees that consistent with its obligations under the California Public Records Act
and related disclosure laws, it will undertake all necessary and appropriate steps to
maintain the proprietary nature of CONSULTANT'S Proprietary Information.
Any use of the Proprietary Information or any other reports, records, documents or
other materials prepared by CONSULTANT hereunder for other projects and/or use of
uncompleted documents without specific written authorization by the CONSULTANT will
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be at the CITY’s sole risk and without liability to CONSULTANT, and the CITY shall
indemnify the CONSULTANT for all damages resulting therefrom.
10.4 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 disclosable or exempt under the statute, and shall resist the disclosure of
Proprietary Information which is exempt from disclosure to the extent allowable under the
law. CITY shall advise CONSULTANT in writing five (5) days prior to the intended
disclosure of any decision to disclose Proprietary Information, and the reasons therefore,
and if CONSULTANT then timely advises CITY in writing that it objects to the disclosure,
CITY shall not disclose the information. In such case, CONSULTANT shall then be solely
liable for defending the non-disclosure and shall indemnify and hold CITY harmless for
such nondisclosure.
11.0 ENFORCEMENT OF AGREEMENT
11.1 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 Los Angeles, State
of California, or any other appropriate court in such county, and CONSULTANT
covenants and agrees to submit to the personal jurisdiction of such court in the event of
such action.
11.2 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
CONSULTANT’S right to terminate this Agreement without cause pursuant to Section
11.6.
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11.3 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.
11.4 Rights 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.
11.5 Legal 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.
11.6 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, CONSULTANT shall immediately cease all services
hereunder except such as may be specifically approved by the Contract Officer. The
CONSULTANT 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.
11.7 Attorneys’ 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
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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.
12.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
12.1 Non-liability of CITY Officers and Employees
No officer or employee of the CITY shall be personally liable to the CONSULTANT,
or any successor in interest, in the event of any default or breach by the CITY or for any
amount which may become due to the CONSULTANT or to its successor, or for breach
of any obligation of the terms of this Agreement.
12.2 Conflict of Interest
No officer or employee of the CITY shall have any financial interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which effects his financial interest or the financial
interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. The CONSULTANT warrants
that it has not paid or given and will not pay or give any third party any money or other
consideration for obtaining this Agreement.
12.3 Covenant Against Discrimination
CONSULTANT covenants that, by and for itself, its heirs, executors, assigns, and
all persons claiming under or through them, that there shall be no discrimination against
or segregation of, any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement. CONSULTANT shall take affirmative action to ensure that applicants are
employed and that employees are treated during employment without regard to their race,
color, creed, religion, sex, marital status, national origin, or ancestry.
13.0 MISCELLANEOUS PROVISIONS
13.1 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 CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, CA 93021
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CONSULTANT: HdL COREN & CONE
120 S. State College Blvd., Suite 200
Brea, CA 92821
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.
13.2 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.
13.3 Integration; 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.
13.4 Severability
In the event that any one 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.
13.5 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.
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IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement as of the date first written above.
CITY OF MOORPARK HdL Coren & Cone
_______________________________ _______________________________
Troy Brown
City Manager
Nichole Cone-Morishita
CFO
Attest:
_______________________________
Ky Spangler
City Clerk
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EXHIBIT “A”
SCHEDULE OF PERFORMANCE
TIMELINE FOR DELIVERABLES
July/August Data available for purchase from counties
September 30 Data available on HdLCC’s web-based property tax application
September/October Unsecured audits performed and forwarded to county assessor
October Appeals quarterly updates emailed in counties where data is
available
October-February Delivery of preliminary property tax reports
January Appeals quarterly updates emailed in counties where data is
available
January/February General Fund Budget Projections
April Appeals quarterly updates emailed in counties where data is
available
April/May Final Books – Addendums emailed to clients
July Appeals quarterly updates emailed in counties where data is
available
Ongoing Secured Audits – City
Property sales reports
City and Successor Agency mid-year budget reviews and budget
projections
Analytical work at the request of clients
Monthly updates of database with property sale information
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