Agreement - Hinderliter, De Llamas & associates dba Hdl Companies - Expires 2025-06-30 -1- 4845-8215-5540v1
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FIRST AMENDMENT TO THE AGREEMENT FOR SERVICES BETWEEN THE CITY OF
GILROY AND HINDERLITER, DELLAMAS & ASSOCIATES DBA HDL COMPANIES.
WHEREAS, the City of Gilroy, a municipal corporation (“City”), and Hinderliter, De Llamas
& Associates dba HdL Companies, a California corporation (“CONSULTANT”), entered into that
certain agreement entitled Agreement for Services, effective on April 1, 2022, hereinafter referred to as
“Original Agreement”; and
WHEREAS, City and HdL Companies have determined it is in their mutual interest to amend
certain terms of the Original Agreement.
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, THE PARTIES AGREE AS
FOLLOWS:
1. The paragraph of Article 1 (Term of Agreement) of the Original Agreement shall be amended
to read as follows:
"This Agreement will become effective on April 1, 2022, and will continue in effect through
June 30, 2025, with automatic subsequent “Renewal Periods” of 12 months unless terminated
in accordance with the provisions of Article 7 of this Agreement.
Any lapse insurance coverage as required by Article 5, Section D of this Agreement shall
terminate this Agreement regardless of any other provision stated herein."
2. Article 4, Section A (Consideration) of the Original Agreement shall be amended to read as
follows:
“In consideration for the services to be performed by CONSULTANT, CITY agrees to pay
CONSULTANT the amounts set for in Exhibit “D” (“Payment Schedule”). Fees outlined in
Exhibit “D” pertain to Operations Management Services and Compliance Services.”
3. This Second Amendment to the Agreement for Services is entered into as of June 3, 2024, and
shall be effective June 3, 2024.
Except as expressly modified herein, all of the provisions of the Original Agreement and the First
Amendment shall remain in full force and effect. In the case of any inconsistencies between the
Original Agreement or the First Amendment and this Amendment, the terms of this Amendment shall
control.
3. This Amendment may be executed in counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the
dates set forth besides their signatures below.
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CITY OF GILROY CONSULTANT
By: By:
[signature] [signature]
Jimmy Forbis Robert Gray
[employee name] [name]
City Administrator Vice President
[title/department] [title]
Date: Date:
Approved as to Form ATTEST:
City Attorney City Clerk
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5/20/2024
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6/5/2024
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AGREEMENT FOR SERVICES
(For contracts over $5,000 - CONSULTANT)
This AGREEMENT made this 21th day of April, 2022, between:
CITY: City of Gilroy, having a principal place of business at
7351 Rosanna Street, Gilroy, California
and CONSULTANT: Hinderliter, De Llamas & Associates dba HdL Companies, a California
Corporation, having a principal place of business at 120 S. State College Blvd. Suite 200, Brea,
CA 92821.
ARTICLE 1. TERM OF AGREEMENT
This Agreement will become effective on April 1, 2022 and will continue in effect through August
31, 2024 unless terminated in accordance with the provisions of Article 7 of this Agreement.
Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall
terminate this Agreement regardless of any other provision stated herein. ______
Initial
ARTICLE 2. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the parties that CONSULTANT is an independent contractor and not
an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be
interpreted or construed as creating or establishing the relationship of employer and employee
between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties
acknowledge that CONSULTANT is not an employee for state or federal tax purposes.
CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY’S
employees, including, without limitation, disability or unemployment insurance, workers’
compensation, medical insurance, sick leave, retirement benefits or any other employment
benefits. CONSULTANT shall retain the right to perform services for others during the term of
this Agreement.
ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT
A. Specific Services
CONSULTANT agrees to: Perform the services as outlined in Exhibit “A” (“Specific
Provisions”) and Exhibit “B” (“Scope of Services”), within the time periods described in Exhibit
“C” (“Milestone Schedule”).
B. Method of Performing Services
CONSULTANT shall determine the method, details and means of performing the above-described
services. CITY shall have no right to, and shall not, control the manner or determine the method
of accomplishing CONSULTANT’S services.
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C. Employment of Assistants
CONSULTANT may, at the CONSULTANT’S own expense, employ such assistants as
CONSULTANT deems necessary to perform the services required of CONSULTANT by this
Agreement, subject to the prohibition against assignment and subcontracting contained in
Article 5 below. CITY may not control, direct, or supervise CONSULTANT’S assistants in the
performance of those services. CONSULTANT assumes full and sole responsibility for the
payment of all compensation and expenses of these assistants and for all state and federal income
tax, unemployment insurance, Social Security, disability insurance and other applicable
withholding.
D. Place of Work
CONSULTANT shall perform the services required by this Agreement at any place or location
and at such times as CONSULTANT shall determine is necessary to properly and timely perform
CONSULTANT’S services.
ARTICLE 4. COMPENSATION
A. Consideration
In consideration for the services to be performed by CONSULTANT, CITY agrees to pay
CONSULTANT the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event
however shall the total compensation paid to CONSULTANT exceed $99,000.00.
B. Invoices
CONSULTANT shall submit invoices for all services rendered.
C. Payment
Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment
will be made unless CONSULTANT has first provided City with a written receipt of invoice
describing the work performed and any approved direct expenses (as provided for in Exhibit “A”,
Section IV) incurred during the preceding period. If CITY objects to all or any portion of any
invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt
of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It
shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts
to which it has objected until the objection has been resolved by mutual agreement of the parties.
D. Expenses
CONSULTANT shall be responsible for all costs and expenses incident to the performance of
services for CITY, including but not limited to, all costs of equipment used or provided by
CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against
CONSULTANT and all other of CONSULTANT’S costs of doing business. CITY shall not be
responsible for any expenses incurred by CONSULTANT in performing services for CITY, except
for those expenses constituting “direct expenses” referenced on Exhibit “A.”
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ARTICLE 5. OBLIGATIONS OF CONSULTANT
A. Tools and Instrumentalities
CONSULTANT shall supply all tools and instrumentalities required to perform the services under
this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent
any tools, equipment or services from CITY.
B. Workers’ Compensation
CONSULTANT agrees to provide workers’ compensation insurance for CONSULTANT’S
employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and
indemnify CITY, its officers, representatives, agents and employees from and against any and all
claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses,
including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or
death of any of CONSULTANT’S employees.
C. Insurance
In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to
CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability
Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles,
with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due
to bodily injury, sickness or disease, or death to any person, and damage to property, including the
loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum
coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however,
Professional Liability Insurance written on a claims made basis must comply with the requirements
set forth below. Professional Liability Insurance written on a claims made basis (including without
limitation the initial policy obtained and all subsequent policies purchased as renewals or
replacements) must show the retroactive date, and the retroactive date must be before the earlier
of the effective date of the contract or the beginning of the contract work. Claims made
Professional Liability Insurance must be maintained, and written evidence of insurance must be
provided, for at least five (5) years after the completion of the contract work. If claims made
coverage is canceled or non-renewed, and not replaced with another claims-made policy form with
a retroactive date prior to the earlier of the effective date of the contract or the beginning of the
contract work, CONSULTANT must purchase so called “extended reporting” or “tail” coverage
for a minimum of five (5) years after completion of work, which must also show a retroactive date
that is before the earlier of the effective date of the contract or the beginning of the contract work.
As a condition precedent to CITY’S obligations under this Agreement, CONSULTANT shall
furnish written evidence of such coverage (naming CITY, its officers and employees as additional
insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via
a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation,
or of a material change in policy terms.
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D. Assignment
Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or
obligations of CONSULTANT under this Agreement may be assigned or subcontracted by
CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole
and absolute discretion.
E. State and Federal Taxes
As CONSULTANT is not CITY’S employee, CONSULTANT shall be responsible for paying all
required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges
and agrees that:
x CITY will not withhold FICA (Social Security) from CONSULTANT’S
payments;
x CITY will not make state or federal unemployment insurance contributions on
CONSULTANT’S behalf;
x CITY will not withhold state or federal income tax from payment to
CONSULTANT;
x CITY will not make disability insurance contributions on behalf of
CONSULTANT;
x CITY will not obtain workers’ compensation insurance on behalf of
CONSULTANT.
ARTICLE 6. OBLIGATIONS OF CITY
A. Cooperation of City
CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at
reasonable times following receipt by CITY of reasonable notice, to all documents reasonably
necessary to the performance of CONSULTANT’S duties under this Agreement.
B. Assignment
CITY may assign this Agreement or any duties or obligations thereunder to a successor
governmental entity without the consent of CONSULTANT. Such assignment shall not release
CONSULTANT from any of CONSULTANT’S duties or obligations under this Agreement.
ARTICLE 7. TERMINATION OF AGREEMENT
A. Sale of Consultant’s Business/ Death of Consultant.
CONSULTANT shall notify CITY of the proposed sale of CONSULTANT’s business no later
than thirty (30) days prior to any such sale. CITY shall have the option of terminating this
Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination
pursuant to this Article 7.A shall be in writing and sent to the address for notices to
CONSULTANT set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’
receipt of such notice of sale.
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If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated
upon death of CONSULTANT.
B. Termination by City for Default of Consultant
Should CONSULTANT default in the performance of this Agreement or materially breach any of
its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written
notification to CONSULTANT. For the purposes of this section, material breach of this
Agreement shall include, but not be limited to the following:
1. CONSULTANT’S failure to professionally and/or timely perform any of the
services contemplated by this Agreement.
2. CONSULTANT’S breach of any of its representations, warranties or covenants
contained in this Agreement.
CONSULTANT shall be entitled to payment only for work completed in accordance with the
terms of this Agreement through the date of the termination notice, as reasonably determined by
CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for
the tasks described on Exhibit C” which have been fully, competently and timely rendered by
CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to
CONSULTANT’S default in the performance of this Agreement or material breach by
CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY
may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any and
all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of
work as described in this Agreement, to the extent such costs and expenses exceed the amounts
CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant
to this Agreement.
C. Termination for Failure to Make Agreed-Upon Payments
Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4
of this Agreement on the date due, then if and only if such nonpayment constitutes a default under
this Agreement, CONSULTANT, at the CONSULTANT’S option, may terminate this Agreement
if such default is not remedied by CITY within thirty (30) days after demand for such payment is
given by CONSULTANT to CITY.
D. Transition after Termination
Upon termination, CONSULTANT shall immediately stop work, unless cessation could
potentially cause any damage or harm to person or property, in which case CONSULTANT shall
cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in
connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done
toward completion of the services required hereunder, and shall act in such a manner as to facilitate
any the assumption of CONSULTANT’s duties by any new consultant hired by the CITY to
complete such services.
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ARTICLE 8. GENERAL PROVISIONS
A. Amendment & Modification
No amendments, modifications, alterations or changes to the terms of this Agreement shall be
effective unless and until made in a writing signed by both parties hereto.
B. Americans with Disabilities Act of 1990
Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable
provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it
may be amended from time to time. CONSULTANT shall also require such compliance of all
subcontractors performing work under this Agreement, subject to the prohibition against
assignment and subcontracting contained in Article 5 above.
C. Attorneys’ Fees
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable
attorneys’ fees, which may be set by the court in the same action or in a separate action brought
for that purpose, in addition to any other relief to which that party may be entitled.
D. Captions
The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement
are for convenience only and shall not be considered nor referred to for resolving questions of
interpretation.
E. Compliance with Laws
The CONSULTANT shall keep itself informed of all State and National laws and all municipal
ordinances and regulations of the CITY which in any manner affect those engaged or employed in
the work, or the materials used in the work, or which in any way affect the conduct of the work,
and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over
the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the
Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a
contract or subcontract to the CITY OF GILROY for public works or for goods or services to
refrain from discriminatory employment or subcontracting practices on the basis of the race, color,
sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any
potential subcontractor.
F. Conflict of Interest
CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any
public agency interested in this Agreement has any pecuniary interest in the business of
CONSULTANT and that no person associated with CONSULTANT has any interest that would
constitute a conflict of interest in any manner or degree as to the execution or performance of this
Agreement.
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G. Entire Agreement
This Agreement supersedes any and all prior agreements, whether oral or written, between the
parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains
all the covenants and agreements between the parties with respect to the rendering of such services
in any manner whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other agreement,
statement or promise not contained in this Agreement shall be valid or binding.
No other agreements or conversation with any officer, agent or employee of CITY prior to
execution of this Agreement shall affect or modify any of the terms or obligations contained in
any documents comprising this Agreement. Such other agreements or conversations shall be
considered as unofficial information and in no way binding upon CITY.
H. Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of
California without regard to the conflict of laws provisions of any jurisdiction. The exclusive
jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and
federal courts located in Santa Clara County, California.
I. Notices
Any notice to be given hereunder by either party to the other may be effected either by personal
delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section
V.H. but each party may change the address by written notice in accordance with this paragraph.
Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be
deemed delivered as of three (3) days after mailing.
J. Partial Invalidity
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remaining provisions will nevertheless continue in full force without being
impaired or invalidated in any way.
K. Time of the Essence
All dates and times referred to in this Agreement are of the essence.
L. Waiver
CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance
under this Agreement shall not be construed as waiver(s) of any other condition of performance
under this Agreement.
Executed at Gilroy, California, on the date and year first above written.
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CONSULTANT: CITY:
HdL Companies CITY OF GILROY
By: By:
Name: Robert Gray Name: Jimmy Forbis
Title: Chief Information Officer Title: City Administrator
Social Security or Taxpayer
Identification Number 95-4627548
Approved as to Form ATTEST:
City Attorney City Clerk
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EXHIBIT “A”
SPECIFIC PROVISIONS
I. PROJECT MANAGER
CONSULTANT shall provide the services indicated on the attached Exhibit “B”, Scope of
Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To
accomplish that end, CONSULTANT agrees to assign Connor Duckworth, Client Advisor, who
will act in the capacity of Project Manager, and who will personally direct such Services.
Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all
technical and professional services including labor, material, equipment, transportation,
supervision and expertise to perform all operations necessary and required to complete the Services
in accordance with the terms of this Agreement.
II. NOTICE TO PROCEED/COMPLETION OF SERVICE
A. NOTICE TO PROCEED
CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written
“Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication
from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or
letter authorizing commencement of the Services. For purposes of this Agreement, Harjot Sangha,
Finance Director shall be the designated City contact person(s). Notice to Proceed shall be deemed
to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as
provided in the Section V.H. (“Notices”) of this Exhibit “A”.
B. COMPLETION OF SERVICES
When CITY determines that CONSULTANT has completed all of the Services in accordance with
the terms of this Agreement, CITY shall give CONSULTANT written Notice of Final Acceptance,
and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request
this determination of completion when, in its opinion, it has completed all of the Services as
required by the terms of this Agreement and, if so requested, CITY shall make this determination
within two (2) weeks of such request, or if CITY determines that CONSULTANT has not
completed all of such Services as required by this Agreement, CITY shall so inform
CONSULTANT within this two (2) week period.
III. PROGRESS SCHEDULE
The schedule for performance and completion of the Services will be as set forth in the attached
Exhibit “C”.
IV. PAYMENT OF FEES AND DIRECT EXPENSES
Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement.
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Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay
only for those direct expenses which have been previously approved in writing by CITY.
CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct
expenses.
Copies of pertinent financial records, including invoices, will be included with the submission of
billing(s) for all direct expenses.
V. OTHER PROVISIONS
A. STANDARD OF WORKMANSHIP
CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary
to perform the Services, and its duties and obligations, expressed and implied, contained herein,
and CITY expressly relies upon CONSULTANT’S representations and warranties regarding its
skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in
conformance to and consistent with the standards generally recognized as being employed by
professionals in the same discipline in the State of California.
Any plans, designs, specifications, estimates, calculations, reports and other documents furnished
under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for
acceptance shall be a product of neat appearance, well-organized, technically and grammatically
correct, checked and having the maker and checker identified. The minimum standard of
appearance, organization and content of the drawings shall be that used by CITY for similar
purposes.
B. RESPONSIBILITY OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy, and the
coordination of the Services furnished by it under this Agreement. CONSULTANT shall not be
responsible for the accuracy of any project or technical information provided by the CITY. The
CITY’S review, acceptance or payment for any of the Services shall not be construed to operate
as a waiver of any rights under this Agreement or of any cause of action arising out of the
performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in
accordance with applicable law for all damages to CITY caused by CONSULTANT’S negligent
performance of any of the services furnished under this Agreement.
C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT
CITY, through its authorized employees, representatives or agents, shall have the right, at any and
all reasonable times, to audit the books and records (including, but not limited to, invoices,
vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any
and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT
shall maintain for a minimum period of three (3) years (from the date of final payment to
CONSULTANT), or for any longer period required by law, sufficient books and records in
accordance with standard California accounting practices to establish the correctness of all charges
submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY’s
offices within five (5) business days after CITY’s request.
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D. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not
limited to, computer data and source code), drawings, descriptions, documents, discussions or
other information developed or received by or for CONSULTANT and all other written and oral
information developed or received by or for CONSULTANT and all other written and oral
information submitted to CONSULTANT in connection with the performance of this Agreement
shall be held confidential by CONSULTANT and shall not, without the prior written consent of
CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an
entity not connected with the performance of the such Services. Nothing furnished to
CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known
to the related industry (other than that which becomes generally known as the result of
CONSULTANT’S disclosure thereof) shall be deemed confidential. CONSULTANT shall not
use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this
Agreement in any magazine, trade paper, newspaper or other medium without the express written
consent of CITY.
E. NO PLEDGING OF CITY’S CREDIT.
Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of
CITY or incur any obligation in the name of CITY.
F. OWNERSHIP OF MATERIAL.
All material including, but not limited to, computer information, data and source code, sketches,
tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps,
calculations, photographs, reports and other material developed, collected, prepared (or caused to
be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain
and use copies thereof subject to Section V.D of this Exhibit “A”. CONSULTANT acknowledges
that the business license data is property of the City. If this Agreement is terminated as per Article
7, Section B, Consultant shall return CITY data in a machine-readable format acceptable to the
CITY.
CITY shall not be limited in any way in its use of said material at any time for any work, whether
or not associated with the City project for which the Services are performed.
G. CONFIDENTIALITY; SOFTWARE USE AND WARRANTY;
RECORDS.
As used herein, the term “proprietary information” means all information, techniques, processes,
services or material that has or could have commercial value or other utility in Consultant’s
Business, including without limitation: Consultant’s (i) software, computer or data processing
programs; (ii) data processing applications, routines, subroutines, techniques or systems; (iii)
desktop or web-based software; (iv) audit, tax or fee collection/administration or business
processes, methods or routines; (v) marketing plans, analyses and strategies; and (vi) materials,
techniques and intellectual property used. Except as otherwise required by law, Client must hold
in confidence and may not use (except as expressly authorized by this Agreement) or disclose to
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any other party any proprietary information provided, learned of or obtained by Client in
connection with this Agreement.
If access to any software which Consultant owns is provided to Client as part of this Agreement
(including, without limitation, if Client chooses to subscribe to such software and reports option
as part of the Services) (such Consultant-owned software is, collectively, the “Software”),
Consultant hereby provides a limited, non-exclusive, non-transferable license to Client for the use
by such of Client’s staff as may be designated from time to time by Client and approved by
Consultant in writing to use the Software pursuant to and during the Term of this Agreement. The
Software must only be used by such authorized Client staff, and Client must not sublicense, sublet,
duplicate, modify, decompile, reverse engineer, disassemble, or attempt to derive the source code
of the Software. The license granted hereunder does not imply ownership by Client or any of
Client’s staff of the Software nor any rights of Client or any of Client’s staff to sublicense, transfer
or sell the Software, or rights to use the Software for the benefit of others. Client may not create
(or allow the creation of) any derivative work or product based on or derived from the Software or
documentation, nor modify (or allow the modification of) the Software or documentation without
the prior written consent of Consultant. In the event of a breach of this provision (and without
limiting Consultant’s remedies), such modification, derivative work or product based on the
Software or documentation is hereby deemed assigned to Consultant. Upon termination of this
Agreement or this Software license, this Software license will be deemed to have expired and
Client must immediately deactivate, cease using and remove, delete and destroy all the Software
(including, without limitation, from Client’s computers and network). Consultant warrants that
the Software will perform in accordance with the Software’s documentation.
All documents, preliminary drafts, communications and any and all other work product related to
the Services and provided by Consultant to Client either in hard copy or electronically are the
property of Client. This does not include any software, programs, methodologies or systems used
in the creation of such work product, nor does it include any drafts, notes or internal
communications prepared by Consultant in the course of performing the Services that were not
otherwise provided to Client in either hardcopy or electronic form, all of which may be protected
by Consultant or others’ copyrights or other intellectual property. It is possible that any
documents, drafts, communications or other work product provided to Client may be considered
public records under applicable law and/or may be discoverable through litigation. Consultant
may publicly state that it performs the Services for Client.
Subject to applicable law, Consultant is responsible for retaining all final documents and other
final work product related to the Services for a period of not less than three (3) years from the date
provided to Client. Retention of any other documents, preliminary drafts, communications and
any and all other work product provided to Client by Consultant is the responsibility of Client.
Consultant has no responsibility to retain any drafts, notes, communications, emails or other
writings created or received by Client in the course of performing the Services (other than the final
documents and other final work product related to the Services and provided to Client for the term
of years referenced above).
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H. NO THIRD PARTY BENEFICIARY.
This Agreement shall not be construed or deemed to be an agreement for the benefit of any third
party or parties, and no third party or parties shall have any claim or right of action hereunder for
any cause whatsoever. Client acknowledges and agrees that any other public agency within the
State (e.g., city, county, district, public authority, public agency, municipality or other political
subdivision) may procure services that are substantially similar to any of the Services set forth in
this Agreement, provided that such public agency executes a separate agreement with Consultant
wherein the fees payable for the services rendered to such public agency are the responsibility of
such public agency and not Client.
I. NOTICES.
Notices are to be sent as follows:
CITY: Harjot Sangha, Finance Director
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
CONSULTANT: George Bonnin, Contract Adminsitrator
120 S. State College Blvd. Suite 200
Brea, CA 92820
J. FEDERAL FUNDING REQUIREMENTS.
If the box to the left of this sentence is checked, this Agreement involves federal
funding and the requirements of this Section V.I. apply.
If the box to the left of this sentence is checked, this Agreement does not involve
federal funding and the requirements of this Section V.I. do not apply.
1. DBE Program
CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal
Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs.
2. Cost Principles
Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost
for individual items.
3. Covenant against Contingent Fees
The CONSULTANT warrants that he/she has not employed or retained any company or person,
other than a bona fide employee working for the CONSULTANT, to solicit or secure this
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Agreement, and that he/she has not paid or agreed to pay any company or person, other than a
bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other
consideration, contingent upon or resulting from the award or formation of this Agreement. For
breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement
without liability or, at its discretion, to deduct from the agreement price or consideration, or
otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or
contingent fee.
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EXHIBIT “B”
SCOPE OF SERVICES
Consultant will provide the following Services relative to Client’s business license tax
administration.
1. Operations Management Services
1.1. Establish and maintain database of Client businesses.
1.2. Receive and process applications, renewals and payments in a timely fashion.
1.3. Send renewal notices to active businesses within 30 days of the renewal period end date or
at another interval specified by Client.
1.4. Provide businesses multiple options for submitting applications, renewals, payments, or
support requests (including via website, email, mail, phone, and fax. Consultant license specialists
will be available for live interactions Monday through Friday, 8:00am to 5:00pm Pacific).
1.5. Remit revenue to Client no less than monthly.
1.6. Provide Client staff access to website portal offering business registry inquiry, reporting,
and electronic department approval capabilities.
2. Compliance Services: 1) Identify and register businesses which are subject to licensure or
taxation, 2) collect known debt as pertains to business license or tax, and 3) identify under-reported
tax liability.
2.1. Discovery Services
2.1.1. Develop a list of businesses subject to Client licensure or taxation.
2.1.2. Notify non-compliant businesses of their options to comply or dispute their non-compliant
status. Notification and support to businesses will be facilitated through the website, mail, email,
phone and fax.
2.1.3. Review information and forms submitted by the business for completion and accuracy,
inclusive of any additional required documentation (i.e. home occupation permit). All submissions
are filed and stored electronically and made available to Client upon request.
2.1.4. Provide businesses with detailed invoicing and options to pay via website, mail, and phone.
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2.1.5. Remit revenue to Client no less than monthly, along with all business applications and any
additional documentation.
2.2. Collection Services
2.2.1. Identify businesses subject to Client licensure or taxation which have known debt to Client
and have failed to pay within an appropriate time frame.
2.2.2. Notify businesses of their options to comply or dispute their non-compliant status.
2.2.3. Provide businesses with detailed invoicing and options to pay via website, mail and phone.
2.2.4. Remit revenue to Client no less than monthly.
2.3. Audit Services
2.3.1. Identify potential under-reporting and/or misclassified businesses.
2.3.2. Audit businesses mutually agreed to by Client and Consultant that are identified as
potential under-reporting businesses.
2.3.3. Submit audit summaries to Client and discuss further actions.
2.3.4. Educate businesses on proper reporting practices.
2.3.5. Invoice and collect identified delinquencies.
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EXHIBIT “C”
MILESTONE SCHEDULE
As determined and agreed upon by the City staff and the Consultant.
Within 60 days of signing of the agreement, Consultant will transition all City business license
records, establish the on-line portals for application submission for intra-city approvals, be
prepared to send out renewal for licenses by May 31, 2022.
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EXHIBIT “D”
PAYMENT SCHEDULE
1. Operations Management Services
1.1. Fees for performing operations management Services shall be $15.00 for each
processed account, which is any account for which an application or renewal/return was processed, or
active account which was sent a renewal notice.
1.2. On the annual anniversary of the agreement, Fees will be increased with reference to
the 12-month percent change, as of preceding January 1st from the annual renewal date, in the most
recently published annual Consumer Price Index for All Urban Consumers (CPI-U), West Region, as
reported by the U.S. Bureau of Labor Statistics (the “CPI Change”) . Each annual increase in the Fees
will be equal to the lesser of ten percent (10%) or the actual CPI Change. For example, if the actual
CPI Change is 3.5%, then the annual increase will be 3.5%, and if the actual CPI Change is 12%, then
the annual increase will be 10%.
1.3. Fees related to travel and lodging expenses are billed at cost and apply to all meetings
(including implementation, training, operations and support). Travel expenses only apply to out of
scope travel and must therefore be pre-approved by Client.
1.4. Fees will be invoiced monthly to Client for Services performed during the prior month.
Fees will be netted out of Client’s monthly revenue disbursement. Client will submit payment for any
balance due to Consultant within 30 days of receiving the invoice.
2. Compliance Services
2.1. Fees for performing compliance Services apply to all monies received for the current
tax/license period and any other prior period collected (including monies received for taxes, penalties,
interest, and fees).
2.1.1. Fees for performing discovery Services shall be a contingency Fee of 35% of the
revenues received as a result of the Services.
2.1.2. In the event that Client discovers a non-compliant business and reports the business to
Consultant (including a calculation of all taxes/fees due), Consultant will categorize the business as a
collection service effort and thus apply the lower collection Services contingency Fee rate.
2.1.3. Fees for performing collection Services shall be a contingency Fee of 25% of the
revenues received as a result of the Services.
2.1.4. Fees for performing audit Services shall be a contingency Fee of 35% of the revenues
received as a result of the Services.
2.2. Consultant recognizes Client’s authority to waive or reduce the tax/fee debt of a
business. Should Client decide to do so for a business whose deficiency was identified by Consultant,
Consultant shall be entitled to compensation in the amount of one half (1/2) of the Fees Consultant
would have otherwise earned. Deficiencies which are uncollectable due to insolvency or dissolution
of the business, or for deficiencies which are otherwise incapable of collection (i.e. statute of limitation
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or other legal defense) shall not be considered a Client voluntary election to waive, and thus,
Consultant would not be entitled to compensation related thereto under this provision.
2.3. Fees related to travel and lodging expenses are billed at cost and applied to all meetings
(including implementation, training, operations, and support). Travel expenses only apply to out of
scope travel and must therefore be pre-approved by Client.
2.4. Fees will be invoiced monthly to Client for Services performed during the prior month.
Fees will be netted out of Client’s monthly revenue disbursement. Client will submit payment for any
balance due to Consultant within 30 days of receiving the invoice.
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