Thank you for allowing Contractor the opportunity to do business with you. Contractor’s agreement to provide labor, services, and materials (collectively, the “Work”) is conditioned by the following terms in this document (hereinafter called, the “Acknowledgment”) and Contractor’s proposal dated 12/11/2024 (the “Proposal”), both of which are incorporated herein by reference and made a part of the contract between Contractor and City. Collectively, the Acknowledgment, Proposal, and any other contract document agreed to between Contractor and City for the Work are hereinafter referred to as the “Contract ”. In the event of a conflict between the Acknowledgment, Proposal, or any other document, the terms in this Acknowledgment control (the only exception to this is limited to if the terms of the Proposal give Contractor greater rights or protections, then in such limited instances, the Proposal controls).
References to specific sections or articles below, if any, are not meant to limit the applicability of such modifications to only such sections or articles, to the extent that the modifications may also apply to other sections or articles of the Contract.
Contractor will accept the terms of the prime contract and contract documents only to the extent that those terms have been presented to Contractor and only to the extent they do not add to or conflict with this Acknowledgment or the Proposal.
Notwithstanding any other provision to the contrary (including without limitation provisions regarding order of precedence) w hether in this document or any other contract document, Contractor’s Work shall be performed in accordance with the applicable law, code, or regulation (collectively “Code”) in effect on the date that Contractor submitted to you it’s initial proposal and not any subsequently changed, amended, altered, or implemented Code.
AGREEMENT FOR MINOR CONSTRUCTION SERVICES
Section 1.1, Section 8:
The Contract may be terminated for default only and provided that Contractor is first allowed ten (10) days to commence to cure the deficiency upon receipt by Contractor of written notice specifying in detail the deficiency. In the event the Contract is terminated through no fault of Contractor, City agrees to pay for all material furnished, or manufactured, and labor performed up to the date of termination, including a reasonable margin.
In the event City sells the building or its interest is terminated prior to the expiration of the Contract, City agrees to assign the Contract to the new owner or successor and to cause the new owner to assume City’s obligations under the Contract. If the new owner or successor fails to assume City’s obligations under the Contract, then City agrees to pay Contractor all sums due for the unexpired term on an accelerated basis.
Section 1.2:
Contractor agrees to the City’s right to inspect and reject Contractor’s Work. If any Work is rejected, Contractor must be allowed a reasonable time, upon receipt of prior written notice, in order to remedy the deficiency.
Section 1.3, Section 9.10, Section 9.19:
Subject to the provisions of this Acknowledgment regarding price adjustments, the Work is to be performed for a fixed price a t the amount indicated in the Contract. Contractor shall be entitled to an equitable adjustment in price and/or time for performance, as applicable, for changes in scope of work, or compression, acceleration, delay or inefficiency outside of Contractor’s control. If Contractor is directed by City to furnish any labor, service, or material that is outside of the mutually agreed upon sc ope of Work of the Contract (“Out of Scope Work”), Contractor may, at its discretion, agree to perform such Out of Scope Work (1) subject to receipt of a written notice to proceed prior to commencement of any such Out of Scope Work; and (2) contingent upon receipt of a mutu ally
OTIS ELEVATOR COMPANY
(“Contractor”)
ACKNOWLEDGMENT
MODERNIZATION
Thank you for your order.
Please refer to our contract number in all
correspondence. Address all inquiries to:
OTIS ELEVATOR COMPANY
Contract Number: TBD
Your Order Number: TBD
Acknowledgment Date: November 25, 2024
Sold To: City of Cathedral City (“City” or “you”)
Job Location:
(Please Add Location)
Attachment 1 to Exhibit A
agreed upon and executed change order within thirty (30) calendar days of such written notice to proceed. In such instances where Contractor agrees to perform such Out of Scope Work, if the parties are unable to agree to terms that lead to the issuance of a mutually agreed upon and executed change order within such thirty (30) day period, Contractor may suspend the Out of Scope Work, without default or penalty to Contractor and Contractor reserves the right to seek reasonable compensation for any such Out of Scope Work performed but not paid. Contractor shall not be liable for any project delay or damage, including but not limited to liquidated or consequential damages, associated with a delay in the issuance of a mutually agreed upon and executed change order.
Section 1.4; and Exhibit B:
All schedules, start dates, completion dates, durations and schedule revisions shall be agreed to in writing by both parties before becoming effective.
Section 1.5, Section 1.6:
Contractor’s warranty only covers defective material and workmanship for a period that shall not extend longer than one (1) year from the date of completion of each elevator or escalator equipment or acceptance thereof by beneficial use, whichever is the earlier, of each elevator or escalator equipment. Contractor’s duty and City’s remedy under this warranty are limited to Contractor correcting a covered defect that City reports to Contractor within the warranty period which, at Contractor’s option, Contractor will repair or replace, provided all payments due under the terms of the Contract have been made in full. This warranty excludes ordinary wear and tear and any damage due to Causes Beyond Contractor’s Reasonable Control. Warranty work will be completed during the local Contractor office’s regular business hours and excludes local area Union holidays. Should any warranty work be performed outside of these regular business hours, the City will be responsible for the premium portion of labor at Contractor’s standard service billing rates. THIS
EXPRESS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 1.6, Section 3.5:
Contractor does not assume any liability or responsibility for loss or damage to its Work nor to any property, equipment or materials that is caused by the City or anyone for whom the City is responsible.
Section 2, Section 4.3; and Exhibit C:
a) A down payment of 50% is required at the execution of the Contract. The balance shall be paid on completion if the Work is completed within a thirty-day period. If the Work is not completed within a thirty-day period, monthly progress payments shall include the value of the Work performed and materials stored on or off site through the end of the particular month less a 5% retainage and the aggregate of previous payments. The retainage shall be paid when the Work is completed. b) Contractor does not agree to paid-when-paid, paid-if-paid, nor greater than net 30 payment terms. c) Contractor’s Proposal is based on a delivery date of XXXXX. If the delivery date is delayed ninety (90) calendar days or greater, City agrees to pay applicable factory material , logistical, and/or transportation price increases. A fully executed change order and full payment of the price increase, in addition to full payment of the required down payment by City is required prior to the factory material being ordered and released. Additionally, if your project schedule changes and extends installation or completion of labor into a future year or year(s), City agrees to pay applicable labor escalation price increases. A fully executed change order regarding the labor escalation price increase must be executed prior to mobilization and the start of any Work. d) The purchase price in the Contract is subject to increase in the event of commodity, fuel, and/or shipping transportation costs increases.
e) Any payment not made when due shall be subject to interest at the rate of one and one -half percent (1.5%) per month or the maximum permitted by law, whichever is less, plus reasonable attorney’s fees and collection costs. Contractor reserves the right to discontinue the Work at any time until payments shall have been made as agreed and Contractor has assurance satisfactory to it that subsequent payments will be made when due.
f) Contractor agrees to provide lien waivers on Contractor’s standard forms with respect to work or material for which Contractor has been paid for in full.
Section 3.1 – Waiver of Claims:
Contractor does not agree to waive any such claims.
Section 3.1 – Lien:
Contractor agrees to provide lien waivers with respect to material or work for which we have been paid in full, not for any unpaid work or material.
Section 3.1 – Back Charge, Section 9.3:
No Backcharges will be accepted by Contractor without the prior written approval of an authorized representative of Contractor.
Section 3.4:
Contractor agrees to abide by City’s safety policy as long as said policy is not in conflict with Contractor’s safety policy(ies) or Contractor’s agreement with the International Union of Elevator Constructors (IUEC).
Attachment 1 to Exhibit A
City agrees to provide Contractor with unrestricted ready and safe access to all areas in which any Work is performed and to keep all work areas free of excessive debris, waste, or hazardous materials. Further, City shall prohibit others from interfering with the Work.
Section 4:
Notwithstanding anything to the contrary, Contractor agrees to indemnify City for loss, damage, or penalty (collectively “Damage”) to the extent such Damage is solely caused by Contractor’s negligence, willful misconduct, or material breach of the Contract, but not to the extent caused by others. Contractor’s duty to indemnify does not include a duty to defend during the pendency of any claim or action as both parties shall defend themselves during the pendency of any claim or action.
Section 4.2 – Arbitration:
Contractor agrees to submit to non-binding arbitration by the American Arbitration Association but does not waive its rights to pursue other remedies available at law or in equity.
Section 4.2 – Mediation:
In the event any disputes arise in connection with the performance of any obligation under the Contract, Contractor agrees to consult and consider the use of mediation or other form of alternative dispute resolution prior to resorting to litigation.
Section 4.4:
City agrees to immediately notify Contractor if City is aware or becomes aware of the existence of asbestos or other hazardous material in any place where Contractor’s personnel are or may be required to perform services. In the event it should become necessary to abate, encapsulate or remove asbestos or other hazardous material, City agrees to be responsible for such abatement, encapsulation or removal, and any governmental reporting, and in such event Contractor shall be entitled to (i) delay its Work un til it is determined to Contractor’s satisfaction that no hazard exists and (ii) compensation for delays encountered.
Section 5.1:
Contractor does not agree to any inspection, audit, or copy of any of Contractor’s confidential, proprietary, or trade secret information, data, or documents including, without limitation, financials.
Section 5.2:
Contractor shall exclusively own all intellectual property rights, title, and interest in (i) all Contractor’s goods, services, and software, as well as any and all intellectual property conceived and/or developed by Contractor in the course of its Work for City. The City agrees to keep any Contractor software resident in the Contractor’s goods or services in confidence as a trade secret for Contractor and will not permit others to examine, copy, disclose, disassemble, modify, or reverse engineer Contractor’s equipment, services or software for any purpose whatsoever. Contractor hereby grants to City a limited, non-exclusive right and license to use Contractor’s intellectual property as embodied in Contractor’s goods, services, and software exclusively in connection with and at the physical location where such goods, services, or software are delivered under the Contract. Use of such software for any other purpose is prohibited. Work for Hire provision(s), if any, shall apply only to the extent the information, services, goods, or other items referenced in such provision(s) are specifically developed by Contractor solely for City’s exclusive use only (and no other customer of Contractor) and City was expressly contemplated to be the exclusive owner of such information under a separate written agreement. Contractor will supply an owner’s manual with instructions on how to operate and maintain the equipment. Contractor will not supply any additional information such as internal, confidential, or proprietary information of Contractor including internal manuals, manufacturing drawings, or source code.
Any counters, meters, tools, remote monitoring devices, communication devices, resident software or other service equipment (“Contractor Peripherals”) which Contractor may use or install to deliver service under the Contract remains Contractor’s property, solely for the use of Contractor’s employees. Contractor Peripherals are not considered as part of the equipment. If the Contract is terminated for any reason, Contractor shall be given access to the premises to remove the Contractor Peripherals at Contractor’s expense. Contractor shall only be required to follow its own cyber security policies and procedures.
Section 6; and Exhibit F:
Notwithstanding anything to the contrary, Contractor will supply an insurance certificate evidencing the insurance carried by Contractor conditioned on the understanding that it represents full compliance with all insurance requirements applying to Contractor for the Work on this project. Contractor does not provide copies of its insurance policies nor declaration pages, certified or otherwise, does not waive subrogation, and does not add others as additional insured. All limits and values related to covera ge if any is provided to City shall be actual values without qualifying language such as “at least”, “not less than”, “no less than”, “minimum” or the like. Covera ge, if any, will be on an occurrence basis. Coverage limits may be achieved through a combination of underlying and exces s policies. Umbrella limits, if any, will be on a stand-alone, not follow-form basis. Renewal certificates will be provided during the term of the Contract. In lieu of adding parties as additional insured, such parties shall be named insured on an Owner’s and Contractor’s Protective (OCP) Liability policy with a limit of $2,000,000.
City shall maintain “Builder’s Risk” insurance upon the full value of our Work and material delivered to the job site, at no cost to Contractor.
Attachment 1 to Exhibit A
If the project is covered by an Owner/Contractor Controlled Insurance Program (“CIP”), Contractor agrees to participate provided it is at no cost to Contractor and subject to Contractor’s review and express acceptance of the proposed program. Any CIP requirement which violates or is counter to the intent of any condition found in any of Contractor’s labor agreement(s) is immediately void and unenforceable. In the event Contractor enrolls in any CIP program, the OCP is waived and Contractor will add (not name) others as Additional Insured for off-site operations only. Policies, Declaration Pages, and any rating information related to Contractor’s liability insurance has been deemed proprietary and will not be shared with third parties. Contractor does not allow credits, deducts, deductibles or the reduction of its goods and services in exchange for participation. Contractor does not provide professional liability coverage.
Section 7:
Contractor will provide surety bond(s) in the form provided by Contractor’s surety at no cost to Contractor, if required. This is in lieu of participation in any type of surety wrap-up or Subguard program.
Section 9.1:
Neither party may assign the Contract, without the prior written consent of the other party, which will not be unreasonably w ithheld.
Section 9.2, Section 9.4:
Contractor shall not be liable for any loss, damage or delay nor be found to be in default or breach due to any cause beyond it’s reasonable control including, but not limited to, acts of God or nature; fire; explosion; theft; floods; water; weather; traf fic conditions; transportation, material or labor disruptions; epidemic, pandemic, quarantine or other local, state, or federal government ac tion in response thereto; sabotage; cyber -security; national emergency; act of terrorism; earthquake; riot; civil commotion; w ar; vandalism; national or local labor strikes, lockouts, other labor disputes; misuse, abuse, neglect, mischief, or work by others (collectively “Causes Beyond Contractor’s Reasonable Control”). Contractor shall be allowed a reasonable amount of additional time for the performance of the Work due to Causes Beyond Contractor’s Reasonable Control. Contractor’s ability to maintain scheduled job progress is further conditioned upon the timely furnishing to Contractor by City of completed and code compliant hoi stway(s) (wellways) and machine rooms, necessary approvals and power of proper characteristics for Contractor’s uninterrupted use.
Section 9.3:
Under no circumstances shall either party be liable for special, indirect, consequential or liquidated damages of any kind including, but not limited to, loss of goodwill, loss of business opportunity, additional financing costs or loss of use of any equip ment or property.
This limitation of liability also applies to indemnity of third-party claims.
Section 9.5:
Contractor will provide union labor with the full expectation that they will work in harmony with others. To effect this, Subcontractor agrees to provide sufficient workers, equipment and materials for prompt and diligent prosecution of the Work. Notwithstandin g any language to the contrary, a work stoppage, whether caused by strikes, lockouts or other labor disputes, shall not constitute a breach of contract or an event of default.
Exhibit C:
Contractor does not agree to provide any such discounts.
IN GENERAL
OVERTIME
Should Contractor agree to work overtime, City agrees to pay Contractor overtime premium wages.
STORAGE
City will provide suitable and safe storage areas, adjacent to the elevator shafts or escalator areas, for material and equipment during the course of the Work. Added costs to Contractor resulting from off-site storage or relocation of the storage facilities at City’s request shall be reimbursed by City.
BARRICADES
City shall be responsible to erect/maintain all barricades at all of Contractor’s elevator hoistway locations throughout the job site in strict conformance with good safety practices, the Code of Federal Regulations as governed by the Occupational Safety Health Act, and any other applicable regulations.
INSPECTION COST
Contractor agrees to pay for the cost of one inspection after completion of the Work. Should additional inspections be necessary for causes not attributable to Contractor, City agrees to pay for said inspections.
CUTTING & PATCHING
Contractor’s acceptance is conditioned on the understanding that others shall furnish at their cost the cutting and patching of walls, floors or structural portions of the building.
Attachment 1 to Exhibit A
TOOLS
City shall not have the right to take possession of Contractor’s tools, machinery or equipment unless City has paid in full for such materials and Contractor has expressly agreed to the sale of such materials in writing.
WC IMMUNITY
Contractor does not waive its rights to immunity under worker’s compensation, disability or employee benefits acts or laws.
TITLE AND RESERVATION OF RIGHTS
Title to each elevator or escalator equipment as applicable shall pass to City when final payment for such equipment is received.
Contractor shall retain a security interest in all material furnished hereunder and not paid for in full. City agrees that a copy of the Contract may be used as a financing statement for the purpose of placing upon public record Contractor’s interest hereunder in the material and City agrees to execute a UCC -1 form or any other document reasonably requested by Contractor for tha t purpose.
Contractor reserves the right to discontinue the Work at any time or to withhold the release of completed elevator or escalator equipment until all overdue payments, with interest, shall have been made as agreed herein. Nothing shall serve to void or reduce Contractor’s entitlement to payment for Work properly performed or material suitably stored.
CONFIDENTIALITY
To the extent that a party receives (“Receiving Party”) any non -public data, information and other materials from the other party (“Disclosing Party”) that is disclosed pursuant to the Contract (hereinafter “Confidential Information”), the Receiving Party shall not with respect to such Confidential Information (1) disclose the Confidential Information to any third party, (2) use the Confi dential Information for its own benefit, or (3) use the Confidential Information for the benefit of others. Each party s hall safeguard any Confidential Information received pursuant to the Contract using at least the level of care that it uses to protect its own c onfidential information, but in no case shall it use less than reasonable care. Neither party shall have an obl igation of confidentiality with respect to any Confidential Information which: (i) was already known to the Receiving Party prior to acquisition from, or disclosure by the Disclosing Party; (ii) is received without restriction as to disclosure by Receiving Party from a third party having the right to disclose it; (iii) is approved for release by written authorization from the Disclosing Party; or (iv) is or becomes publicly known wi thout fault of the Receiving Party. The Disclosing Party may at its sole di scretion request the return and/or deletion of any Confidential Information provided to the Receiving Party, and the Receiving Party shall immediately delete and/or return such Confidential Information and certify in writing its compliance with the request . The Receiving Party shall not reverse engineer, reverse assemble, or decompile Confidential Information. Confidential Information may be disclosed to (i) contract workers, consultants and ag ents of the Receiving Party or (ii) the owner of the subject e quipment at the subject premises who have a need to know for the benefit of Contractor and who have executed agreements with the Receiving Party obligating them to treat such information in a manner consistent with the terms of the Contract.
BACKROUND CHECKS AND TESTS
Contractor supports City’s efforts to maintain a safe and productive work environment; however, Contractor’s collective bargaining agreement with the IUEC prohibits Contractor from completing background checks, searches, or tests on Contractor employees in the IUEC bargaining unit. Therefore, Contractor cannot agree to authorize any party to complete criminal background checks, searches, or tests on any Contractor employees. Contractor will request IUEC represented employees furnishing Work for City to agr ee to voluntarily submit to a criminal background check and agrees not to staff with employees who do not consent to same to the ex tent that City requires background checks. City agrees to pay any and all costs associated with obtaining criminal background checks conducted. Subject to the forgoing, Contractor will take appropriate action in the event that City advises Contractor of any action by any of our employees that is contrary to the maintenance of a safe, healthy and productive workplace.
BUY AMERICAN
The equipment that Contractor will provide under the Contract is produced from components procured from a variety of sources located throughout the world. Therefore, Contractor cannot confirm compliance with the Buy American Act (or applicable Domestic Sourcing Act). However, these components are selected or designed to meet applicable U.S. standards.
COMMERCIAL ITEMS CLARIFICATION
The components, equipment and services proposed by Contractor are commercial items as defined by the Federal Acquisition Regulations (“FAR”) and the prices in any resulting contract and in any change proposal are based on Contractor’s standard commercial accounting policies and practices which do not consider any special requirements of the government cost principles and do not meet the requirement of Part 31 of the FAR. Contractor agrees only to perform a contract for the sale of a commercial item on a fixed price basis. In addition, Contractor will not agree to submit or certify to any cost pricing data nor does Contractor agree to any requirements to establish price reasonableness under FAR Part 15 or to meet any Cost Accounting Standards. In stating its position, Contractor refers to FAR Part 12 - “Acquisition of Commercial Items.” In addition, no federal government procurement regulations, such as FARs or DFARs, shall apply to the Contract except those regulations expressly accepted in writing by Contractor.
MINORITY/WOMEN/DISABLED VETERAN-OWNED BUSINESS ENTERPRISE The materials and components that comprise Contractor’s products are procured from a variety of sources located throughout the world, which allows Contractor to provide its customers with high quality equipment at competitive prices, but limits Contractor’s ability to Attachment 1 to Exhibit A
meet certain percentages of M/W/DBE set aside goals. Contractor is committed to achieving diversity within Contractor’s workforce and in Contractor’s supply base, however, Contractor cannot commit to specific set aside targets in the Contract.
THIRD PARTIES
Contractor is not obligated to contract with any 3rd party vendors (e.g. insurance compliance vendors, payment processing vendors, etc.), or to comply with or execute any 3rd party vendor forms, terms and conditions, or agreements regarding City’s vertical transportation equipment or Contractor’s performance under the Contract. While Contractor is not obligated, to the extent that Contractor works with any such 3rd party vendor, it will be for administrative purposes only and any costs associated will be passed through to City. In the event of any conflict, ambiguity, or inconsistency between the terms and conditions of the Contract and any 3rd party vendor agreement, form, or terms and conditions, the Contract shall prevail.
TAX STATUS
If Contractor’s quoted price is based, in part, on City’s tax exemption status, but City fails to furnish a valid tax exemption certificate to Contractor or such tax exemption status is either inapplicable, invalid, incorrect, or otherwise not accepted by the appropriate taxing authority, then City agrees the quoted price shall be increased to be inclusive of the required tax amount.
UNION:
Contractor has a contract with the International Union of Elevator Constructors (IUEC) and therefore cannot agree to be bound by any provision that modifies or conflicts with the union labor agreement.
COVID VACCINE MANDATES
Contractor will not accept any Covid vaccine mandates unless Contractor is given the opportunity to review the requirements and can assure Contractor can fully comply. Non acceptance of any Covid vaccine mandates by Contractor will not be cause for breach of contract or any other cause of action (damages, penalties or otherwise).
LEED:
Contractor will make good faith efforts to satisfy LEED requirements, if any, but cannot guarantee compliance with any specific requirements or status certification.
Attachment 1 to Exhibit A
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EXHIBIT “B”
SCHEDULE OF PERFORMANCE
Twelve (12) weeks lead time from when contractor receives approval from City and down payment. For construction, scheduled to begin approximately middle of March with each elevator car to take approximately 5 weeks, and occur consecutively, not concurrently.
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EXHIBIT “C”
COMPENSATION
City shall pay contractor total compensation for the completion of work in the amount of $267,600.69 to include sales tax and a 3% pre-payment discount.
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EXHIBIT “D”
REPRESENTATIVES
CITY’S REPRESENTATIVE
City of Cathedral City
Facilities
Attn: Edward Moore
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Phone: (760) 770-0390
Fax: (760) 328-8622
Email Address: [email protected]
CONTRACTOR’S REPRESENTATIVE
OTIS Elevator Company
Attn: Brian Kegler
4949 Viewridge Avenue
San Diego, CA 92123
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EXHIBIT “E”
BONDS REQUIRED
No Bonds Required
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EXHIBIT “F”
INSURANCE REQUIREMENTS FOR CITY OF CATHEDRAL CITY
The City requires a certificate of insurance, including an underwriter’s endorsement, prior to commencement of the Services.
The insurance policies are to include additional endorsements that contain the following provisions:
1. That the City of Cathedral City and its respective elected officials, officers, employees, agents and representatives are additional insureds under the policy;
2. The policies are primary and non -contributory to any insurance that may be carried by City;
3. The City is entitled to thirty (30) days’ prior written notice of cancellation, material reduction, or non-renewal of the policy or policies.
4. The insurance shall be carried only by responsible insurance companies that have rated “A -” and “V” or better by the A.M. Best Key Rating Guide, that are licensed to do business in the State of California. City will accept insurance provided by non -admitted “surplus lines” carriers only if the carrier is authorized to do business in the State of California.
Only the following “marked” requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis to protect Contractor and City against liability or claims of liability which may arise out of this Agreement in the amount of one million dollars ($1,000,000) per occurrence and subject to an annual aggregate of two million dollars ($2,000,000). There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. additional insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Contractor shall also procure and shall maintain during the term of this Agreement vehicle liability insurance in an amount not less than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for each person, in an amount not less than one million dollars ($1,000,000) for each accident, and property damage insurance in an amount of not less than one million dollars ($1,000,000).
X Workers’ Compensation Insurance: For all of Contractor’s employees who will provide Services under this Agreement and to the extent required by applicable state or federal law, Contractor shall keep in full force and effect a Workers’
4848-7813-0734 v2
Compensation policy that includes a minimum of one million dollars ($1,000,000) o f employers’ liability coverage. Contractor shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officials, officers, employees, agents and representatives. In the event a claim under the provisions of the California Workers’ Compensation Act is filed against City by a bona fide employee of Contractor participating under this Agreement, Contractor is to defend and indemnify the City from such claim.
Staff Report
City Council
Item No. 5.H
Meeting Date: December 11, 2024
From: Kevin Biersack, Financial Services Director
Title: Resolutions Authorizing the City Manager to Execute Agreements with the California Department of Tax and Fee Administration for the Implementation of a Local Transactions and Use Tax and the Authorization of Examination of Records
RECOMMENDATION:
1. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CATHEDRAL CITY, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO
EXECUTE AGREEMENTS WITH THE CALIFORNIA DEPARTMENT OF TAX AND FEE
ADMINISTRATION FOR IMPLEMENTATION OF A LOCAL TRANSACTIONS AND USE TAX.”
2. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY OF CATHEDRAL CITY
AUTHORIZING EXAMINATION OF SALES AND TRANSACTIONS AND USE TAXES RECORDS.”
3. Authorize the necessary budget amendment of $175,000.
BACKGROUND:
On July 24, 2024, the City Council unanimously adopted Resolution No. 2024-33, calling for the placement of a general tax measure on the ballot for the November 5, 2024, General Municipal Election. The ballot measure, identified as Measure W, proposed a 1/2 cent (1/2ȼ) increase to the general transaction and use tax (sales tax), increasing from 1 cent (1ȼ) to 1.5 cents (1.5ȼ). According to the certified results from the Riverside County Registrar of Voters, Measure W was approved by a majority of votes cast in Cathedral City.
On December 10, 2024, the City Council is anticipated to adopt a resolution reciting the facts of the General Municipal Election and declaring the results based on the Riverside County Registrar’s Official Canvass Certificate and Official Statement of Votes Cast for Cathedral City. Following the declaration of election results, the sales tax will become operative on April 1, 2025, and will remain in effect until repealed by voters.
While some components of the agreement package can be processed administratively by staff, City Council approval is required for the following:
1. Resolution Authorizing the City Manager to Execute the California Department of Tax and Fee Administration (CDTFA) (referred to as “Department”) Agreements This resolution includes the following two exhibits:
Exhibit 1: Preparatory Agreement
This agreement outlines the preparatory work required to administer the sales tax, including developing procedures, programming for data processing, designing forms, training staff, and other necessary tasks. Preparatory costs, as outlined in Revenue and Taxation Code Section 7272, are capped at $175,000 and include both direct and indirect expenses.
Exhibit 2: Administrative Agreement
This agreement authorizes the Department to exclusively perform all functions related to the administration and operation of the sales tax ordinance. The Department will collect and transmit the tax revenue to the City, deducting administrative costs as specified by law.
2. Resolution Authorizing Examination of Confidential Tax Records This resolution designates authorized personnel, including the City Manager, Assistant City Manager, Financial Services Director, and the City’s sales and use tax consultant, HdL Companies, to examine confidential sales tax records maintained by the Department. This authorization complies with Revenue and Taxation Code Section 7056.
Once the resolutions are adopted and agreements executed, the Department will proceed with implementing the sales tax on the City’s behalf. The sales tax is scheduled to become operative on April 1, 2025.
Spending Priorities and Transparency
Measure W funds will serve as a critical resource to support identified priorities, ensuring continued investment in public safety, infrastructure, and essential services. The City Council has previously adopted a Resolution Outlining the Spending Priorities (Resolution No. 2024- 33), which provides a framework for how these revenues will be allocated.
The spending plan highlights the City’s commitment to transparency and accountability by prioritizing investments in the following areas:
(1) Public Safety
1) Maintaining 911 medical emergency/ambulance/fire/police response and gang prevention programs
2) Recruiting/retaining well-trained paramedics/firefighters
(2) Infrastructure and Road Improvements
1) Repairing streets/potholes
2) Preparing for/responding to and recovering from rainstorms/natural disasters
(3) Parks and Recreation
1) Keeping public areas/parks safe/clean
2) Addressing homelessness
The City remains committed to the responsible administration of Measure W revenues.
Updates on the implementation of spending priorities will be provided regularly to the City Council, Finance Advisory Committee, and the community. These updates will include reports on expenditures, progress on approved projects, and outcomes of related initiatives.
Additionally, all expenditures will undergo annual audits to confirm compliance with the City’s biennial budget and ensure alignment with the community’s priorities.
FISCAL IMPACT:
For the CDTFA‘s preparatory costs, as outlined in Revenue and Taxation Code Section 7272, there is a General Fund expenditure budget adjustment (100-900-910-911-8600- 8601) to include both direct and indirect expenses not to exceed $175,000.
Approval of these resolutions will enable the collection of the local sales and use tax, which is estimated to generate $5 million annually.
FIVE-YEAR STRATEGIC PLAN:
Goal B - COMMUNITY INVESTMENT
Objective: Cathedral City roads, gateways, public spaces, and other infrastructure are well planned, designed, constructed and maintained.
B-11 City Council to support a measure to provide funding for parks and recreation services through the DRD and other resident priorities including streets and enhanced Fire Department services.
Goal C - FISCAL STABILITY AND SUSTAINABILITY
Objective: Cathedral City has economically prospered by facilitating the investment of private dollars in high quality development which benefits the community. We remain financially solvent by instituting prudent fiscal policies and transparent financial practices.
Goal E – SAFETY
Objective: Cathedral City is safe for all who live, work, visit, and play in our community.
ATTACHMENTS:
1. Draft Resolution – Department Agreements
a. Exhibit A – Preparatory Agreement
b. Exhibit B – Administrative Agreement
2. Draft Resolution – Examination of Records
RESOLUTION NO. 2024-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CATHEDRAL
CITY, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE
AGREEMENTS WITH THE CALIFORNIA DEPARTMENT OF TAX AND
FEE ADMINISTRATION FOR IMPLEMENTATION OF A LOCAL
TRANSACTIONS AND USE TAX
WHEREAS, on December 11, 2024, the City Council approved Ordinance No. 881 amending the City Municipal Code and providing for a local transactions and use tax: and WHEREAS, the California Department of Tax and Fee Administration (Department) administers and collects the transactions and use taxes for all applicable jurisdictions within the state; and
WHEREAS, the Department will be responsible to administer and collect the transactions and use tax for the City; and
WHEREAS, the Department requires that the City enter into a “Preparatory Agreement” and an “Administration Agreement” prior to implementation of said taxes, and WHEREAS, the Department requires that the City Council authorize the agreements:
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cathedral City, California, as follows:
SECTION 1. Preparatory Agreement” attached as Exhibit A and the “Administrative Agreement” attached as Exhibit B are hereby approved and the City Manager is hereby authorized to execute each agreement.
ADOPTED ON DECEMBER 11, 2024.
NANCY ROSS
MAYOR
ATTEST:
TRACEY R. HERMOSILLO
CITY CLERK
Resolution No. 2024-____ Page 2
I, Tracey R. Hermosillo, City Clerk of the City of Cathedral City, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Cathedral City on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Cathedral City, California, on ___________________.
TRACEY R. HERMOSILLO
CITY CLERK
EXHIBIT A
2(Rev. 07/24)
AGREEMENT FOR PREPARATION TO ADMINISTER AND OPERATE
CITY'S TRANSACTIONS AND USE TAX ORDINANCE
In order to prepare to administer a transactions and use tax ordinance adopted in accordance with the provision of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code, the City of Cathedral City, California, hereinafter called City, and the CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION, hereinafter called Department, do agree as follows:
1. The Department agrees to enter into work to prepare to administer and operate a transactions and use tax in conformity with Part 1.6 of Division 2 of the Revenue and Taxation Code which has been approved by a majority of the electors of the City and whose ordinance has been adopted by the City.
2. City agrees to pay to the Department at the times and in the amounts hereinafter specified all of the Department's costs for preparatory work necessary to administer the City's transactions and use tax ordinance. The Department's costs for preparatory work include costs of developing procedures, programming for data processing, developing and adopting appropriate regulations, designing and printing forms, developing instructions for the Department's staff and for taxpayers, and other appropriate and necessary preparatory costs to administer a transactions and use tax ordinance.
These costs shall include both direct and indirect costs as specified in Section 11256 of the Government Code.
3. Preparatory costs may be accounted for in a manner which conforms to the internal accounting and personnel records currently maintained by the Department. The billings for costs may be presented in summary form. Detailed records of preparatory costs will be retained for audit and verification by the City.
4. Any dispute as to the amount of preparatory costs incurred by the Department shall be referred to the State Director of Finance for resolution, and the Director's decision shall be final.
5. Preparatory costs incurred by the Department shall be billed by the Department periodically, with the final billing within a reasonable time after the operative date of the ordinance.
City shall pay to the Department the amount of such costs on or before the last day of the next succeeding month following the month when the billing is received.
EXHIBIT A
2(Rev. 07/24)
6. The amount to be paid by City for the Department's preparatory costs shall not exceed one hundred seventy-five thousand dollars ($175,000) (Revenue and Taxation Code Section 7272.)
7. Communications and notices may be sent by first class United States mail or through email at [email protected]. If and when communications and notices may include confidential information, communications and notices must be sent through encrypted email at [email protected] or by mail. Communications and notices to be sent to the Department shall be addressed to:
California Department of Tax and Fee Administration
P.O. Box 942879 MIC: 27
Sacramento, California 94279-0027
Attention: Administrator
Local Revenue Branch
Communications and notices to be sent to City shall be addressed to:
City of Cathedral City
Attention: City Manager &
Financial Services Director
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
8. The date of this agreement is the date on which it is approved by the Department of General Services. This agreement shall continue in effect until the preparatory work necessary to administer City's transactions and use tax ordinance has been completed and the Department has received all payments due from City under the terms of this agreement.
CITY OF CATHEDRAL CITY CALIFORNIA DEPARTMENT OF TAX
AND FEE ADMINISTRATION
By By
(Signature) Administrator
Local Revenue Branch
Charles McClendon Date:
City Manager
Date:
EXHIBIT B
1(Rev. 7/24)
AGREEMENT FOR STATE ADMINISTRATION
OF CITY TRANSACTIONS AND USE TAXES
The City Council of the City of Cathedral City has adopted, and the voters of the City of Cathedral City (hereafter called “City” or “District”) have approved by the required majority vote, the City of Cathedral City Transactions and Use Tax Ordinance (hereafter called “Ordinance”), a copy of which is attached hereto. To carry out the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code and the Ordinance, the California State Department of Tax and Fee Administration, (hereinafter called the “Department”) and the City do agree as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, wherever the following terms appear in the Agreement, they shall be interpreted to mean the following:
1. "District taxes" shall mean the transactions and use taxes, penalties, and interest imposed under an ordinance specifically authorized by Revenue and Taxation code Section 7285.9, and in compliance with Part 1.6, Division 2 of the Revenue and Taxation Code.
2. "City Ordinance" shall mean the City's Transactions and Use Tax Ordinance referred to above and attached hereto, Ordinance No. 881, as amended from time to time, or as deemed to be amended from time to time pursuant to Revenue and Taxation Code Section 7262.2.
ARTICLE II
ADMINISTRATION AND COLLECTION
OF CITY TAXES
A. Administration. The Department and City agree that the Department shall perform exclusively all functions incident to the administration and operation of the City Ordinance.
EXHIBIT B
2(Rev. 7/24)
B. Other Applicable Laws. City agrees that all provisions of law applicable to the administration and operation of the Department Sales and Use Tax Law which are not inconsistent with Part 1.6 of Division 2 of the Revenue and Taxation Code shall be applicable to the administration and operation of the City Ordinance. City agrees that money collected pursuant to the City Ordinance may be deposited into the State Treasury to the credit of the Retail Sales Tax Fund and may be drawn from that Fund for any authorized purpose, including making refunds, compensating and reimbursing the Department pursuant to Article IV of this Agreement, and transmitting to City the amount to which City is entitled.
C. Transmittal of money.
1. For the period during which the tax is in effect, and except as otherwise provided herein, all district taxes collected under the provisions of the City Ordinance shall be transmitted to City periodically as promptly as feasible, but not less often than twice in each calendar quarter.
2. For periods subsequent to the expiration date of the tax whether by City’s self-imposed limits or by final judgment of any court of the State of California holding that City’s ordinance is invalid or void, all district taxes collected under the provisions of the City Ordinance shall be transmitted to City not less than once in each calendar quarter.
3. Transmittals may be made by mail or electronic funds transfer to an account of the City designated and authorized by the City. A statement shall be furnished at least quarterly indicating the amounts withheld pursuant to Article IV of this Agreement.
D. Rules. The Department shall prescribe and adopt such rules and regulations as in its judgment are necessary or desirable for the administration and operation of the City Ordinance and the distribution of the district taxes collected thereunder.
E. Preference. Unless the payor instructs otherwise, and except as otherwise provided in this Agreement, the Department shall give no preference in applying money received for state sales and use taxes, state-administered local sales and use taxes, and district transactions and use taxes owed by a taxpayer, but shall apply moneys collected to the satisfaction of the claims of the State, cities, counties, cities and counties, redevelopment agencies, other districts, and City as their interests appear.
EXHIBIT B
3(Rev. 7/24)
F. Security. The Department agrees that any security which it hereafter requires to be furnished by taxpayers under the State Sales and Use Tax Law will be upon such terms that it also will be available for the payment of the claims of City for district taxes owing to it as its interest appears. The Department shall not be required to change the terms of any security now held by it, and City shall not participate in any security now held by the Department.
G. Records of the Department.
When requested by resolution of the legislative body of the City under section 7056 of the Revenue and Taxation Code, the Department agrees to permit authorized personnel of the City to examine the records of the Department, including the name, address, and account number of each seller holding a seller’s permit with a registered business location in the City, pertaining to the ascertainment of transactions and use taxes collected for the City. Information obtained by the City from examination of the Department's records shall be used by the City only for purposes related to the collection of transactions and use taxes by the Department pursuant to this Agreement.
H. Annexation. City agrees that the Department shall not be required to give effect to an annexation, for the purpose of collecting, allocating, and distributing District transactions and use taxes, earlier than the first day of the calendar quarter which commences not less than two months after notice to the Department. The notice shall include the name of the county or counties annexed to the extended City boundary. In the event the City shall annex an area, the boundaries of which are not coterminous with a county or counties, the notice shall include a description of the area annexed and two maps of the City showing the area annexed and the location address of the property nearest to the extended City boundary on each side of every street or road crossing the boundary.
ARTICLE III
ALLOCATION OF TAX
A. Allocation. In the administration of the Department's contracts with all districts that impose transactions and use taxes imposed under ordinances, which comply with Part 1.6 of Division 2 of the Revenue and Taxation Code:
1. Any payment not identified as being in payment of liability owing to a designated district or districts may be apportioned among the districts as their interest appear, or, in the discretion
EXHIBIT B
4(Rev. 7/24)
of the Department, to all districts with which the Department has contracted using ratios reflected by the distribution of district taxes collected from all taxpayers.
2. All district taxes collected as a result of determinations or billings made by the Department, and all amounts refunded or credited may be distributed or charged to the respective districts in the same ratio as the taxpayer's self-declared district taxes for the period for which the determination, billing, refund or credit applies.
B. Vehicles, Vessels, and Aircraft. For the purpose of allocating use tax with respect to vehicles, vessels, or aircraft, the address of the registered owner appearing on the application for registration or on the certificate of ownership may be used by the Department in determining the place of use.
ARTICLE IV
COMPENSATION
The City agrees to pay to the Department as the State's cost of administering the City Ordinance such amount as is provided for by law. Such amounts shall be deducted from the taxes collected by the Department for the City.
ARTICLE V
MISCELLANEOUS PROVISIONS
A. Communications. Communications and notices may be sent by first class United States mail to the addresses listed below, or to such other addresses as the parties may from time to time designate or through email at [email protected]. If and when communications and notices may include confidential information, communications and notices must be sent through encrypted email at [email protected] or by mail.
EXHIBIT B
5(Rev. 7/24)
Communications and notices to be sent to the Department shall be addressed to:
California State Department of Tax and Fee Administration P.O. Box 942879
Sacramento, California 94279-0027
Attention: Administrator
Local Revenue Branch
Communications and notices to be sent to the City shall be addressed to:
City of Cathedral City Attn: City
Manager and Financial Services Director
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Unless otherwise directed, transmittals of payment of District transactions and use taxes will be sent to the address above.
B. Term. The date of this Agreement is the date on which it is approved by the Department of General Services. The Agreement shall take effect on April 1, 2025. This Agreement shall continue until December 31 next following the expiration date of the City Ordinance, and shall thereafter be renewed automatically from year to year until the Department completes all work necessary to the administration of the City Ordinance and has received and disbursed all payments due under that Ordinance.
C. Notice of Repeal of Ordinance. City shall give the Department written notice of the repeal of the City Ordinance not less than 110 days prior to the operative date of the repeal.
EXHIBIT B
6(Rev. 7/24)
ARTICLE VI
ADMINISTRATION OF TAXES IF THE
ORDINANCE IS CHALLENGED AS BEING INVALID
A. Impoundment of funds.
1. When a legal action is begun challenging the validity of the imposition of the tax, the City shall deposit in an interest-bearing escrow account, any proceeds transmitted to it under Article II. C., until a court of competent jurisdiction renders a final and non-appealable judgment that the tax is valid.
2. If the tax is determined to be unconstitutional or otherwise invalid, the City shall transmit to the Department the moneys retained in escrow, including any accumulated interest, within ten days of the judgment of the trial court in the litigation awarding costs and fees becoming final and non- appealable.
B. Costs of administration. Should a final judgment be entered in any court of the State of California, holding that City's Ordinance is invalid or void, and requiring a rebate or refund to taxpayers of any taxes collected under the terms of this Agreement, the parties mutually agree that:
1. Department may retain all payments made by City to Department to prepare to administer the City Ordinance.
2. City will pay to Department and allow Department to retain Department's cost of administering the City Ordinance in the amounts set forth in Article IV of this Agreement.
3. City will pay to Department or to the State of California the amount of any taxes plus interest and penalties, if any, that Department or the State of California may be required to rebate or refund to taxpayers.
4. City will pay to Department its costs for rebating or refunding such taxes, interest, or penalties. Department's costs shall include its additional cost for developing procedures for processing
EXHIBIT B
7(Rev. 7/24)
the rebates or refunds, its costs of actually making these refunds, designing and printing forms, and developing instructions for Department's staff for use in making these rebates or refunds and any other costs incurred by Department which are reasonably appropriate or necessary to make those rebates or refunds. These costs shall include Department's direct and indirect costs as specified by Section 11256 of the Government Code.
5. Costs may be accounted for in a manner, which conforms to the internal accounting, and personnel records currently maintained by the Department. The billings for such costs may be presented in summary form. Detailed records will be retained for audit and verification by City.
6. Any dispute as to the amount of costs incurred by Department in refunding taxes shall be referred to the State Director of Finance for resolution and the Director's decision shall be final.
7. Costs incurred by Department in connection with such refunds shall be billed by Department on or before the 25th day of the second month following the month in which the judgment of a court of the State of California holding City's Ordinance invalid or void becomes final. Thereafter Department shall bill City on or before the 25th of each month for all costs incurred by Department for the preceding calendar month. City shall pay to Department the amount of such costs on or before the last day of the succeeding month and shall pay to Department the total amount of taxes, interest, and penalties refunded or paid to taxpayers, together with Department costs incurred in making those refunds.
CITY OF CATHEDRAL CITY CALIFORNIA STATE DEPARTMENT OF
TAX AND FEE ADMINISTRATION
By By
(Signature) Administrator
Local Revenue Branch
Charles McClendon Date:
City Manager
(Date)
RESOLUTION NO. 2024-____
A RESOLUTION OF THE CITY OF CATHEDRAL CITY
AUTHORIZING EXAMINATION OF SALES OR
TRANSACTIONS AND USE TAXED RECORDS
WHEREAS, pursuant to Ordinance Number 881 of City of Cathedral City (District), and Revenue and Taxation Code section 7270, the District entered into a contract with the California Department of Tax and Fee Administration (Department) to perform all functions incident to the administration and collection of transactions and use taxes; and WHEREAS, the Board of the District deems it desirable and necessary for authorized officers, employees and representatives of the District to examine confidential sales or transactions and use tax records of the Department pertaining to transactions and use taxes collected by the Department for the District pursuant to that contract; and WHEREAS, Section 7056 of the California Revenue and Taxation Code sets forth certain requirements and conditions for the disclosure of Department records, and Section 7056.5 of the California Revenue and Taxation Code establishes criminal penalties for the unlawful disclosure of information contained in, or derived from, the sales or transactions and use tax records of the Department;
Now, therefore, the Board of the District of the City of Cathedral City hereby resolves as follows:
Section 1. That the City Manager, Assistant City Manager and Financial Services Director, or other officer or employee of the District designated in writing by the City Manager to the California Department of Tax and Fee Administration is hereby appointed to represent the District with authority to examine sales or transactions and use tax records of the Department pertaining to transactions and use taxes collected for the District by the Department pursuant to the contract between the District and the Department.
Section 2. The information obtained by examination of Department records shall be used only for purposes related to the collection of District transactions and use taxes by the Department pursuant to that contract, and for purposes related to the following governmental functions/general services of the District:
(a) Public Safety
1) Maintaining 911 medical emergency/ambulance/fire/police response and gang prevention programs
2) Recruiting/retaining well-trained paramedics/firefighters (b) Infrastructure and Road Improvements
1) Repairing streets/potholes
2) Preparing for/responding to and recovering from rainstorms/natural disasters
(c) Parks and Recreation
1) Keeping public areas/parks safe/clean
2) Addressing homelessness
Resolution No. 2024-____ Page 2
The information obtained by examination of Department records shall be used only for those governmental functions of the District listed above.
Section 3. That Hinderliter, de Llamas & Associates DBA HdL Companies is hereby designated to examine the sales or transactions and use tax records of the Department pertaining to transactions and use taxes collected for the District by the Department. The person or entity designated by this section meets all of the following conditions, which are also included in the contract between the District and the HdL Companies:
a) has an existing contract with the District to examine those sales or transactions and use tax records;
b) is required by that contract to disclose information contained in, or derived from, those sales or transactions and use tax records only to the officer or employee authorized under Section 1 of this resolution to examine the information. c) is prohibited by that contract from performing consulting services for a retailer during the term of that contract;
d) is prohibited by that contract from retaining the information contained in, or derived from those sales or transactions and use tax records, after that contract has expired.
NOW, THEREFORE, BE IT RESOLVED that the information obtained by examination of Department records shall be used only for purposes related to the collection of District transactions and use taxes by the Department pursuant to the contract between the District and the Department [and for those purposes relating to the governmental functions of the District listed in section 2 of this resolution.
INTRODUCED, APPROVED AND ADOPTED ON DECEMBER 11,2024.
Nancy Ross
Mayor
ATTEST:
Tracey R. Hermosillo
City Clerk
APPROVED AS TO FORM:
Eric S. Vail
City Attorney
Resolution No. 2024-____ Page 3
I, Tracey R. Hermosillo, City Clerk of the City of Cathedral City, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Cathedral City on December 11, 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Tracey R. Hermosillo,
City Clerk