CITY OF PLACENTIA
PROFESSIONAL SERVICES AGREEMENT
WITH
Avenu Insights & Analytics
THIS AGREEMENT is made and entered into this 6th day of September, 2022 ("Effective Date"), by and between the CITY OF PLACENTIA, a municipal corporation ("City"), and AVENU INSIGHTS AND ANALYTICS, a California LLC ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to utilize the services of Consultant as an independent contractor to provide revenue auditing and compliance services, as more fully described herein; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise contemplated within California Government Code Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, City and Consultant desire to contract for the specific services described in Exhibit "A" (the "Project") and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described in Consultant's Statement of Work ("SOW"), attached hereto as Exhibit "A" and incorporated herein by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. Officers and employees shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this section.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to the complete satisfaction of the City and within the hereinafter specified. Evaluations of the work will be done by the City Administrator or his or her designee. If the quality of work is not satisfactory, and to the extent that the unsatisfactory work is not caused by or arise out of, in whole or in part, City's performance or actions under this Agreement, City in its discretion has
the right to:
(a) Meet with Consultant to review the quality of the work and resolve the matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Such actions shall include, but not be limited to the following:
employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.
Consultant shall, in all solicitations and advertisements for employees placed by, or on behalf of Consultant shall state that all qualified applicants will receive consideration for employment without regard to age, race, color, religion, sex, marital status, national origin, or mental or physical disability. Consultant shall cause the paragraphs contained in this Section to be inserted in all subcontracts for any work covered by the Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
1.6. Non -Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City, which consent shall not be unreasonably withheld, delayed or conditioned. Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Consultant's sole cost and expense. All insurance requirements contained in this Agreement are independently 2 Avenu Insights & Analytics
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applicable to any and all subcontractors that Consultant may engage during the term of this Agreement.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement that are marked confidential, or by thier nature, through the exercise of reasonable business judgment and in consideration of the circumstances of disclosure would reasonably be considered to be confidential, or that or otherwise not generally known to the public or publicly available are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the fee schedule set forth in Exhibit "A." Consultant's total compensation shall not exceed one hundred thousand Dollars ($ 100,000.00).
2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in the Consultant's SOW or which is inconsistent with or in violation of the provisions of this Agreement unless the City or the Project Manager for this Project, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
Should the City request in writing additional services that increase the hereinabove described "SCOPE OF SERVICES", an additional fee based upon the Consultant's standard hourly rates shall be paid to the Consultant for such additional services.
2.3. Method of Billing.. Consultant may submit invoices to the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice.
Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within thirty (30) days from the Effective Date of this Agreement. Said services shall be performed in strict compliance with the Project Schedule approved by City as set forth in Exhibit "A." The Project Schedule may be amended 3 Avenu Insights & Analytics
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by mutual agreement of the parties. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, pandemics, quarentines, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party. If a delay beyond the control of the Consultant is encountered, a time extension may be mutually agreed upon in writing by the City and the Consultant. The Consultant shall present documentation satisfactory to the City to substantiate any request for a time extension.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue for a period of thirty six (36) months, ending on September 30, 2025, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. At the City's option, and with City Council approval, the term of this Agreement may be extended for two (2) additional one (1) year periods.
4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing at least thirty (30) days prior written notice to Consultant. The termination of this Agreement shall be deemed effective thirty (30) days following receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City. If the City suspends, terminates or abandons a portion of this Agreement such suspension, termination or abandonment shall not make void or invalidate the remainder of this Agreement.
If the Consultant defaults in the performance of any of the terms or conditions of this Agreement, it shall have thirty (30) days after service upon it of written notice of such default in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
The City shall have the right, notwithstanding any other provisions of this Agreement, to terminate this Agreement, at its option and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement, immediately upon service of written notice of termination on the Consultant, if the latter should:
a. Be adjudged a bankrupt;
b. Become insolvent or have a receiver of its assets or property appointed because of insolvency;
c. Make a general assignment for the benefit of creditors; d. Default in the performance of any obligation or payment of any 4 Avenu Insights & Analytics
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indebtedness under this Agreement;
e. Suffer any judgment against it to remain unsatisfied or unbonded of record for thirty (30) days or longer; or
f. Institute or suffer to be instituted any procedures for reorganization or rearrangement of its affairs.
4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the effective date of City's termination within thirty-five (35) days after service of the effective date of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant. City shall not be liable for any claim of lost profits.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within fifteen (15) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and keep in full force and effect during the life of this Agreement all the following minimum scope of insurance coverages with an insurance company admitted to do business in California, rated "A," Class X, or better in the most recent Best's Key Insurance Rating Guide, and approved by City:
(a) Broad -form commercial general liability, in a form at least as broad as ISO from #CG 00 01 04 13, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or shall be twice the required occurrence limit. If Consultant maintains higher limits that the specified minimum limits, City requires and shall be entitled to coverage for the high limits maintained by the Consultant.
(b) Business automobile liability for owned vehicles, hired, and non -owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, each incident for bodily injury and property damage.
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(c) Workers' compensation insurance as required by the State of California and Employers Liability Insurance with a minimum limit of $1,000,000 per accident for any employee or employees of Consultant. Consultant agrees to waive, and to obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City, its officers, agents, employees, and volunteers for losses arising from work performed by Consultant for the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies.
Before execution of this Agreement by the City, the Consultant shall file with the Public Works Director/City Engineer the following signed certification:
I am aware of, and will comply with, Section 3700 of the Labor Code, requiring every employer to be insured against liability of Workers' Compensation or to undertake self-insurance before commencing any of the work.
The Consultant shall also comply with Section 3800 of the Labor Code by securing, paying for and maintaining in full force and effect for the duration of this Agreement, complete Workers' Compensation Insurance, and shall furnish a Certificate of Insurance to the Public Works Director/City Engineer before execution of this Agreement by the City.
The City, its officers and employees shall not be responsible for any claims in law or equity occasioned by failure of the consultant to comply with this section.
Neither the CITY nor any of its elected or appointed officials, officers, agents, employees, or volunteers makes any representation that the types of insurance and the limits specified to be carried by Consultant under this Agreement are adequate to protect Consultant.
If Consultant believes that any such insurance coverage is insufficient, Consultant shall provide, at its own expense, such additional insurance as Consultant deems adequate.
5.2. Endorsements. The commercial general liability insurance policy and business automobile liability policy shall contain or be endorsed to contain the following provisions as worded below:
(a) Additional insureds: "The City of Placentia and its elected and appointed boards, officers, officials, agents, employees, and volunteers are addition- al insureds with respect to: liability arising out of activities performed by or on behalf of the Consultant pursuant to its contract with the City; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant."
(b) Notice: "Consultant shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self-insured retention is increased. In the event of any cancellation or reduction in 6 Avenu Insights & Analytics
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coverage or limits of any insurance, Consultant shall forthwith obtain and submit proof of substitute insurance. Should Consultant fail to immediately procure other insurance, as specified, to substitute for any canceled policy, the City may procure such insurance at Consultant's sole cost and expense."
(c) Other insurance: "The Consultant's insurance coverage shall be primary insurance as respects the City of Placentia, its officers, officials, agents, employees, and volunteers. Any other insurance maintained by the City of Placentia shall be excess and not contributing with the insurance provided by this policy."
(d) Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of Placentia, its officers, officials, agents, employees, and volunteers.
(e) The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5.3. Deductible or Self -Insured Retention. If any of such policies provide for a deductible or self-insured retention to provide such coverage, the amount of such deductible or self-insured retention shall be approved in advance by City. No policy of insurance issued as to which the City is an additional insured shall contain a provision which requires that no insured except the named insured can satisfy any such deductible or self-insured retention.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. The certificates of insurance and endorsements shall be attached hereto as Exhibit "B" and incorporated herein by this reference.
5.5. Non -limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
6.2. Representatives. The City Administrator or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
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shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Proiect Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement. It shall be the Consultant's responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Consultant shall refer any decision, which must be made by City, to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement and who shall not be changed by Consultant without the express written approval by the City. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement, or the work hereunder may be provided by personal delivery, facsimile or if mailed, shall be addressed as set forth below and placed in a sealed envelope, postage prepaid, and deposited in the United States Postal Service. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 72 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT:
Avenu Insight & Analytics
5860 Trinity Parkway, Suite 120
Centreville, VA 20120
Tel: 213-200-6376
Attn: Rachelle Arizmendi
With a copy to:
contracts(a�avenuinsights.com
IF TO CITY:
City of Placentia
401 E. Chapman
Placentia, CA 92870
Tel: 714-993-8229
Attn: Director of Finance
6.5. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
6.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California. Consultant agrees to submit to the personal jurisdiction of such court in the event of such action.
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6.7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent which consent shall not be unreasonably withheld, delayed or conditioned. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement.
Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement.
6.8. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, hold free and harmless the City, its elected and appointed officials, officers, agents and employees, at Consultant's sole expense, from and against any and all claims, demands, actions, suits or other legal proceedings brought against the City, its elected and appointed officials, officers, agents and employees arising out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence, recklessness, or willful misconduct by the Consultant, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, recklessness, or willful misconduct of the Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected and appointed officials, officers, agents and employees based upon the work performed by the Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or not the Consultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnity provisions contained either in the City's specifications or Consultant's SOW, which shall be of no force and effect.
6.9 LIMITATIONS OF LIABILITY
LIMITS OF LIABILITY SHALL BE UNLIMITED FOR DIRECT DAMAGES. SPECIAL,
CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECTED DAMAGES
OF ANY KIND ARE LIMITED TO THE FEES OR OTHER CHARGES PAID BY CLIENT TO CONSULTANT DURING THE TERM OF THE AGREEMENT.
6.10. Independent Contractor. Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Consultant shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the 9 Avenu Insights & Analytics
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independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with the applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this paragraph.
6.11. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6.12. Cooperation. In the event any claim or action is brought against City relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require.
6.13. Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, preliminary notes, working documents, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City but shall be made available to the City within thirty (30) of request or within thirty (30) days of termination. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from City's use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant.
Consultant shall deliver to City any findings, reports, documents, information, data, preliminary notes and working documents, in any form, including but not limited to, computer tapes, discs, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. Consultant or Consultant's agents shall execute such documents as may be necessary from time to time to confirm City's ownership of the copyright in such documents.
6.14. Public Records Act Disclosure. Consultant has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required 10 Avenu Insights & Analytics
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by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant and its officers, employees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subconsultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.16. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement. In the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.
6.17. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.
6.18. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, the conflict shall be resolved by giving precedence in the following order, if applicable: This Agreement, the City's Request for Proposals, the Consultant's SOW.
6.19. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.20. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.21. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
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6.22. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.23. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.24. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.25. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations.
6.26. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6.27. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CITY OF PLACENTIA,
A municipal corporation
Mayor
12 Date:
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ATTEST:
City Clerk and ex -officio Clerk
of the City of Placentia
CONSULTANT
Date:
Signature
Grl Kumpf c' rn
Name and Title
34-2050121 (Avenu Insights and Analvtics, LLC FEIN)
Social Security or Taxpayer ID Number
APPROVED AS TO FORM:
Christian L. Bettenhausen, City Attorney
APPROVED AS TO INSURANCE:
Date:
Rosanna Ramirez, Risk Management
DEPARTMENTAL APPROVAL:
Jennifer Lampman, Director of Finance
13 Date:
Date:
9/12/2022
Avenu Insights & Analytics
Rev. 08/2017
EXHIBIT A
CONSULTANT'S STATEMENT OF WORK
1. DEFICIENCY AUDIT SERVICES
Objectives and Methods
CONSULTANTSs Deficiency Audit Service is designed to assist the CITY in maximizing local tax revenue it is entitled to through an examination of records and education of local taxpayers to ensure the appropriate collection and remittance of local taxes and fees.
Scope of Work
Audit Services
• Perform examinations of the records of those taxpayers requested by CITY; • Provide CITY staff with a draft engagement announcement letter to be sent to each taxpayer requiring examination;
• In coordination with CITY staff, schedule, and conduct reviews at the business location or remotely of those taxpayers identified and authorized for examination; • Verify accuracy of filed tax returns or fee schedules; • Review, as needed, taxpayer's bank statements, tax returns, general ledger accounts, and other books and records.
• For each error/omission identified and confirmed, submit substantiating documentation to designated CITY staff to facilitate collection of revenue due from taxpayers for prior periods; • Coordinate with designated CITY official(s) as necessary to review findings and recommendations; • Prepare draft Notices of Deficiency Determination and credit letters, as applicable, for CITY to advise taxpayers of examination results
• Provide assistance to CITY in reviewing any matters submitted in extenuation and mitigation by taxpayers in contesting a deficiency determination; and
• Prepare and document any changes to the review findings and provide revised tax amounts due to the CITY.
Deliverables & Timeline
Audit Services
• Provide CITY staff with a draft Audit Announcement Letter to be sent to each taxpayer to be examined; • For each error/omission identified and confirmed, submit a written report substantiating documentation to designated CITY staff in order to facilitate collection of revenue due from taxpayer's for prior periods together with draft Notices of Deficiency Determination, and/or credit, or other letters as applicable; • Prepare and document any changes to the review findings and provide revised tax amounts due to the CITY.
• Review any extenuation or mitigation proffered to deficiency determinations and prepare draft response to CITY staff; and
• Provide other collections advice upon request.
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2. CALIFORNIA UTILITY USER AND FRANCHISE FEE COMPLIANCE SERVICES Objectives and Methods
CONSULTANT agrees to provide CITY with certain professional services in furtherance of a comprehensive utility users tax/franchise fee compliance and revenue protection program ("Program"), that is designed to preserve, protect, and enhance its utility users tax ("UUT") and franchise fee revenues.
Scope of Work
Annual Fixed Fee Program
The UUT Compliance Program's services will protect CITY's existing UUT revenues from erosion due to new legislation, new technologies, outdated ordinance language and inaccurate information, focusing on these areas:
• Compliance
• Administrative
• Legislative Review and Implementation Strategy
• Ordinance Review, Administrative Rulings, and Tax Inquiries Compliance Activities
CONSULANT will provide the following Compliance Activities:
• UUT Tax Application Review: CONSULTANT will conduct a "focused" compliance review of the major service providers on behalf of one or more cities to assure that the provider's "tax application" matrix reflecting all the provider's current products and service, is being taxed properly, for the benefit of CITY and other client cities;
• UUT Payment Review: Identification of possible gaps in payments, irregularities, calculation mistakes (e.g., wrong tax rate), and other payment errors to CITY, provided that CITY provides CONSULTANT with regular UUT payment history. CONSULTANT will assist CITY with the appropriate compliance correspondence and enforcement actions;
• Comparative Analysis of UUT Payments: CONSULTANT will periodically perform a comparative analysis of a service provider's UUT payments to CITY with other neighboring or comparable client cities, after adjusting for rate, population, and median household income. CONSULTANT will also perform a comparative analysis of the franchise and UUT payments for gas and electricity;
• Detection
o CONSULTANT will annually update its proprietary database of "new telecom service providers" and send out a PUC 799 notice letter to such new providers on CITY's behalf; o CONSULTANT will annually update its proprietary database of new "video service providers" and send out a notice letter to such new providers on CITY's behalf; • Exemption Review: CONSULTANT will periodically review the exemption lists of the major service providers regarding non-residential customers;
• Optional: City -Specific Compliance Reviews. At CITY's option, CONSULTANT will offer "City -Specific" reviews of UUT or Franchise Fees on a performance fee or other negotiated basis, if the above activities or other factors (e.g., non -response by utility provider) would suggest that there is a reasonable need to do so; Administrative Activities
• UUT Website: Prepare and maintain an accurate copy of CITY's UUT ordinance and its administrative rules and interpretations on the uutinfo.org website, including a link to CITY's web page (if desired). Model forms for 15 Avenu Insights & Analytics
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exemptions and remittances, administrative rulings, and other tax compliance documents will be maintained on the www.uutinfo.org website;
• Revenue Forecasts and Management Reports: CONSULTANT will provide an annual report that outlines the year's activities in review, revenue forecasts, year -over -year (YOY) comparison charts and revenue generated from compliance activities. This report contains an analysis of UUT revenues, and a five-year revenue forecast on each of the utility business segments (electric, gas, CATV, wired telecom, wireless telecom, etc.); • Tax Application and Geocode Inquiries: CONSULTANT will provide technical assistance to CITY staff and provide timely analysis and draft responses to tax application inquiries from utility companies and will assist in responding to citizens regarding their utility bills and the computation of the UUT. CONSULTANT can assist CITY and the utility service providers in correcting geocoding errors in response to taxpayer complaints (additional fees may apply);
Revenue Protection and Enhancement Activities
• Legislative Review Services: CONSULTANT will monitor proposed state and federal legislation to identify issues affecting CITY's UUT or utility franchise revenues and, make recommendations to client cities, their lobbyists, and other potential stakeholders or municipal advocates and otherwise assist in developing effective consensus positions and coordinated advocacy;
• Technology and Marketing Analysis: CONSULTANT will identify, monitor, and anticipate changes in technology, services, or marketing of services, which may have an impact on future UUT revenues; UUT Ordinance Advisory Services
o Analysis and recommendation (including drafting amendment language) on proposed state and federal legislation;
o Assistance with tax application issues, including taxation of new technologies or services; including preparation of Administrative Rulings;
o Assistance on issues involving "bundling rule" and tax allocation/apportionment; o Assistance on nexus issues (re: tax application and collection); o Review of CITY's tax info/forms on uutinfo.org;
o Assistance on Voluntary Disclosure Agreements (offers to compromise owed taxes); o On request, review of exemption status of individual utility user; UUT Legislative and Regulatory Review Services
CONSULTANT will monitor proposed state and federal legislation to identify issues affecting CITY's UUT or utility franchise revenues, and, if justified, make recommendations to CITY and its lobbyists. Our Government Relations team works in collaboration representatives from the League of California Cities, the California Society of Municipal Finance Officers, the California Municipal Revenue Tax Association, Special Districts Association, City advocates, utility providers, the Public Utilities Commission, CDTFA, BOE, and others.
Our team will work with CITY for the protection of revenues including advocacy efforts on Federal bills affecting taxation of broadband telecommunication networks; taxation of wireless services; and taxation of on-line sales and certain digital goods. CONSULTANT is a Business Partner with the US Conference of Mayors allowing further access to policy decision makers and stakeholders on revenues issues, especially on Federal proposals. Our Government Relations team manages its communication with clients through a strong public relations program and provides crisis assistance on policy matters.
Deliverables & Timeline
Audit Services
CONSULTANT will begin scheduling audit examinations within 30 days of the execution of the contract with CITY and approval of the UUT audit leads. Although we can assure CITY of sufficient auditing resources to initiate audits 16 Avenu Insights & Analytics
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without delay on our part, the actual start date and time to completion for any given engagement will depend to some extent on the timely cooperation of the taxpayer being audited, including timeliness of source documents, provisions, response to inquiries, and quality and completeness of data provided; as well as the complexity of the audit itself, and the time required to resolve any issues that the taxpayer may raise regarding the results reported.
Start-up of UUT Audit Process (within first 30-60 days) • Procedural meeting with CITY;
• Request Documentation from CITY;
o Provide draft Letter of Authorization (LOA);
o CITY to apply their letterhead and return with their signature on LOA; • Receive CITY approval of the providers selected for audit; Start-up of UUT Audits
• CONSULTANT will provide an audit packet to each approved taxpayer to initiate audit: Audit notice, copy of signed LOA form CITY, UUT questionnaire, and Request for Information (RFI); Audit Reviews
• Review of data from the RFI received from taxpayer;
• Request data for sample months selected from taxpayer; Provide Final Workpapers to the Taxpayer
• CONSULTANT will submit workpapers with the taxpayer to ensure agreement with the audit findings:
computation or methodologies for computing the utility users' tax; Provide Final Audit Report to CITY
• Auditors will submit draft audit report and workpapers for review; • CITY will receive an electronic copy of the Final Audit Report UUT Website
• UUT Website: Prepare and maintain an accurate copy of CITY's UUT ordinance and its administrative rules and interpretations on the uutinfo.org website, including a link to CITY's web page (if desired).
Revenue Management Report (RMR)
• Accuracy: The Revenue Management Reports (RMR) rely on information provided by CITY.
CONSULTANT has no obligation to verify or otherwise clean or standardize the information provided by CITY;
• Timing: CONSULTANT's obligation to provide the RMR Service is conditioned on CITY's delivery of required payment information to CONSULTANT
City Assistance
Required Documentation from CITY
To conduct any UUT/Franchise Fee City Specific Reviews, CONSULTANT would require CITY support including items such as copies of payment information, annual copy of SB 278 data, etc.
CONSULTANT'S FEE SCHEDULE
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1. DEFICIENCY AUDIT SERVICES
In exchange for CONSULTANT performing the work indicated above, the CITY will pay CONSULTANT as follows:
Audit
CONSULTANT'S compensation for the Deficiency Audit Services shall be a contingency fee of 35%. The 35% contingency fee shall apply to revenue received by the CITY as a result of deficiencies identified in the review and shall include any eligible prior period revenues together with all penalties, interest, and late charges. The CITY agrees to use reasonable and diligent efforts to collect deficiencies identified by CONSULTANT.
Additional Consulting
CITY may request that CONSULTANT provide additional consulting services at any time during the term of this Agreement. If CONSULTANT and CITY agree on the scope of the additional consulting services requested, then CONSULTANT shall provide the additional consulting on a Time and Materials basis. Depending on the personnel assigned to perform the work, standard hourly rates range from $85 per hour to $250 per hour.
These additional consulting services will be invoiced at least monthly based on actual time and expenses incurred.
2. CALIFORNIA UTILITY USER AND FRANCHISE FEE COMPLIANCE SERVICES Annual Fixed Fee Program
• Total Annual Fixed Fee: CITY's total annual fixed fee for participating in the Program shall be the greater of i) seven -tenths of one percent (0.7%) of the total UUT revenues received by CITY (excluding UUT revenues derived from sewer, water, trash, or CATV) based on the prior fiscal year or ii) ten -thousand dollars ($10,000) ( the Minimum Fee); In no case shall the annual fixed fee exceed ninety-five thousand dollars ($95,000) (the Maximum Fee).
• Quarterly Payments of Fixed Fee: Said annual fixed fee shall be paid in four equal quarterly payments with due dates of: March 31, June 30, September 30, and December 31. Invoices for services rendered shall be in arrears (invoiced for the immediately preceding quarter). If the effective date of this Agreement is other than on an invoice date, CITY shall be invoiced for the first quarterly payment on the immediately following invoice date as set forth herein. CITY shall be invoiced and responsible for a prorated portion of the preceding quarter based on the effective date of this Agreement. Payment will be made to CONSULTANT within thirty (30) days of receipt of CONSULTANT invoice. Any amounts which remain unpaid after thirty (30) days shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law. These quarterly payments are nonrefundable Optional: City -Specific Compliance Review Services
• With respect to a city -specific compliance review referred to under the city -specific scope of work above, CONSULTANT shall be entitled to contingent fee compensation where CONSULTANT' compliance review activities result in CITY receiving additional UUT and Franchise Fee revenues from such city -specific compliance review activity;
• Accordingly, CITY shall pay CONSULTANT thirty-five percent (35%) of the additional revenues, including interest and penalties, that has resulted from its city -specific compliance review activities. CONSULTANT will seek to recover or assist CITY in recovering all revenue due CITY from prior periods, if any, and CONSULTANT will receive 35% of any retroactive recovery with a minimum compensation recovery period of twelve (12) calendar quarters. In cases where there are less than twelve calendar quarters in the retroactive recovery period, recovery in prospective quarters will be included to satisfy the twelve - calendar quarter minimum recovery period. If CITY determines that a correction should be applied prospectively from the date of the determination only, then CONSULTANT' Compensation shall apply to 18 Avenu Insights & Analytics
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the additional revenues resulting from the correction for the twelve calendar quarters following the commencement of the prospective correction;
• In calculating additional revenues, if actual revenue amounts are not available or easily obtained, CONSULTANT may, with the approval of CITY, use the best available information to estimate the additional revenues (e.g., averaging known underpayments or use of industry averages). As used in this subsection, the term "additional revenues" includes the value of any other services, credits, property of every kind or nature, or other consideration received by CITY in lieu of monetary payment; • Specifically, for Solid Waste compliance reviews, CONSULTANT shall be entitled to additional fixed fee compensation. The amount of the fixed fee compensation and the detailed of scope of work shall be determined prior to the start of the work and shall be mutually agreed to in writing between both parties; • CONSULTANT compensation is due and payable within thirty (30) days of CITY's receipt of CONSULTANT invoice. Any undisputed amounts which remain unpaid after thirty (30) days shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law Additional Consulting
• The CITY may request that CONSULTANT provide additional consulting services at any time during the term of the Agreement. If CONSULTANT and the CITY agree on the scope of the additional consulting services requested, then CONSULTANT shall provide the additional consulting on a Time and Materials basis. Depending on the personnel assigned to perform the work, CONSULTANT standard hourly rates range from $85 per hour to $250 per hour.
These additional consulting services will be invoiced at least monthly based on actual time and expenses incurred.
All reimbursable expenses shall receive prior approval from the CITY and shall be reimbursed at cost to CONSULTANT.
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