2011/09/01 HDL Coren and Cone Property tax consulting and audit services CITY OF AGREEMENT FOR PROPERTY TAX
CONSULTING/AUDIT SERVICES
This AGREEMENT (the "Agreement') is made and entered into as of the tat day of
September, 2011 by,and between the CITY OF MENIFEE a municipal corporation hereinafter
called CITY, and HdL Goren & Cone, a California Corporation hereinafter called
CONTRACTOR.
RECITALS
WHEREAS, property tax revenues can be verified and potentially increased through a
system of continuous monitoring, identification and reconciliation to county records; and
WHEREAS, an effective program of property tax management will assist the CITY in
fiscal, economic and community development planning; and
WHEREAS, CITY desires the property tax data based reports and data analysis
required to effectively manage the CITY property tax base and identify and recover revenues
misallocated within the CITY, or to other jurisdictions; and
WHEREAS, CONTRACTOR is a state-wide expert in such data analysis with over 150
public agency clients for whom such services are performed and has the programs, equipment,
data and personnel required to deliver the property tax services referenced herein;
WHEREAS, CITY prefers to pay for certain of such services through a contingency
arrangement where payment is made from monies recovered and CONTRACTOR is willing to
base its compensation on such a risk-based formula.
NOW, THEREFORE, CITY and CONTRACTOR, for the consideration hereinafter
described, mutually agree as follows:
1.0 DEFINITIONS
For purposes of this Agreement, the following terms shall have the meaning stated
below:
Audit Review: "Audit" or "Audit Review" shall mean the comparison of databases to
ensure that parcels are correctly coded with the appropriate tax rate area to return
revenue to the client city or redevelopment agency. Audits include the secured and
unsecured tax rolls and where secured records are corrected; the corresponding
unsecured records related to those properties are also corrected. A review of the
calculation methodologies developed by auditor/controller offices in the administration of
property tax revenues or tax increment revenues is made to ensure compliance. New
annexations and newly created redevelopment project areas are audited the 1st or 2nd
year after the area's adoption due to the timing of LAFCO and the State Board of
Equalization in assigning new tax rate areas and county processing of those changes.
County: "County" shall mean the County in which the CITY is located.
Data Base: "Data Base" shall mean a computerized listing of property tax parcels and
information compiled for CITY from information provided by the County.
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Days: "Days" shall mean calendar days.
Property Tax Roll: "Property Tax Roll" shall mean the assessed values of parcels on
the secured and unsecured lien date rolls as reported by the County.
Proprietary Information: "Proprietary Information" shall be the reports, technical
information, compilations of data, methodologies, formula, software, programs,
technologies and other processes previously designed and developed by
CONTRACTOR and used in the performance of the services hereunder.
RDA: "RDA" means the community redevelopment agency of CITY established
pursuant to Health and Safety Code Sections 33,000 at, seq. ("CRU).
Recovered/Reallocated Revenue: "Recovered or Reallocated Revenue" shall mean
additional revenue received-as a result of an audit or review of properties submitted for
correction or for corrections due erroneous calculations or incorrect methods of
distributing revenue discovered by the CONTRACTOR and then made by county
agencies which result in a return of additional revenue to the city/agency. Reviews of
city administered pass throughs are performed to ensure the correctness of distributions
being made to participating agencies.
Scope of Services: "Scope of Services" shall mean all of the Base Services specified
in Section 2.0, the Optional Services in Section 3.0, the Additional Services in Section
4.0, or any other services rendered hereunder.
TRA: "Tax Rate Area" shall mean the area subject to the tax rate.
2.0 BASE SERVICES
The CONTRACTOR shall perform all of the following duties as part of the Base Services
provided hereunder, unless otherwise specified in writing by the Contract Officer:
2.1 Analysis And Identification Of Misallocation Errors IContinnent
Fee
(a) In the first year of this Agreement, and as necessary thereafter
but not less than once every five (5) years, CONTRACTOR shall conduct an analysis to
identify and verify in the CITY parcels on the secured Property Tax Roll which are not
properly attributed to a CITY, and will provide the correct TRA designation to the proper
County agency. Typical errors include parcels assigned to incorrect TRAs within the
CITY or an adjacent city, and TRAs allocated to wrong taxing agencies.
(b) CONTRACTOR shall annually reconcile the annual auditor-
controller assessed valuations report to the assessor's lien date rolls and identify
discrepancies.
(c) CONTRACTOR shall annually review parcels on the unsecured
Property Tax Roll to identify inconsistencies such as value variations, values being
reported to a mailing address rather than the situs address, and errors involving TRAs
(to the extent records are available).
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(d) In Counties with automated data, CONTRACTOR shall quarterly
audit documentary transfer tax remittance detail provided by County and identify
misallocations that may be recovered for CITY.
(a) CONTRACTOR may audit general fund or tax increment
property tax revenue or other revenues attributable to the RDA and CITY departments,
districts, (including but not limited to base year value audits; administration of tax sharing
agreements; tax increment allocation reviews; county allocation and payments reviews).
2.2 Annual Services (Fixed Feel
Annually, after the Property Tax Roll is available:
(a) CONTRACTOR shall establish a Data Base for CITY for
installation on personal computers or a network.
(b) Utilizing the Data Base, CONTRACTOR will provide:
(1) A listing of the major property owners in the CITY,
including the assessed value of their property.
(2) A listing of the major property tax payers, including an
estimate of the property taxes.
(3) A listing of property tax transfers which occurred since
the prior lien date.
(4) A listing of parcels that have not changed ownership
since the enactment of Proposition XIIIA.
(5) A comparison of property within the CITY by county-use
code designation.
(6) A listing by parcel of new construction activity utilizing
-city building department data, including building permits with assessor parcel
numbers and project completion dates, to identify non-residential parcels with
new construction activity and to provide reports for use in the CITY's preparation
of Gann (Propositions 4 and 111) State Appropriation Limit calculations.
(7) A listingbf multiple owned parcels.
(8) A listing of absentee owner parcels.
(9) Calculate an estimate of property tax revenue anticipated
to be received for the fiscal year by the CITY. This estimate is based upon the
initial information provided by the County and is subject to modification. This
estimate shall not be used to secure the indebtedness of the CITY.
(10) Development of historical trending reports involving
taxable assessed values for the CITY and RDA, median and average sales
prices, foreclosure activity and related economics trends.
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(11) Upon written request, analyses based on geographic
areas designated by the CITY to include assessed valuations and square footage
computations for use in community development planning.
2.3 Quarterly Services (Fixed Feel
The CONTRACTOR shall perform the following services quarterly:
(a) A listing of property tax appeals filed on properties in the CITY
(selected counties).
(b) A listing of property transfers that have occurred since the last
report.
(c) An update of computer program parcel transfer data.
2.4 OnGoina Consultation (Fixed Feel
During the term of this Agreement, CONTRACTOR will serve as the CITY's resource
staff on questions relating to property tax and assist in estimating current year property tax
revenues. On-going consultation would include, but not be limited to, inquiries resolved through
use of the CITY's data base.
3.0 OPTIONAL SERVICES
The following services are available on a time and materials basis:
3.1 Specified Data
Generation of specialized data-based reports which would require additional
programming, the purchase of additional data, costs for county staff research, or similar matters
not necessary to carry out services outlined in Section 2.0.
3.2 County Research
Any research with County agencies for which CONTRACTOR does not have a current
database.
3.3 Redevelopment Financial Services
Redevelopment Financial Services including but not limited to:
(a) Tax increment projections
(b) Feasibility studies
(c) Agency or Project Area cash flows
(d) Low and moderate income housing set-aside calculations, findings
and consultations
(a) Fiscal impact studies
(f) Legislative analysis
(g) Redevelopment plan adoption and amendment financial feasibility
studies
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3.4 Bond Services
Bond services are available for a fixed negotiated fee, including:
(a) Tax Allocation Bonds fiscal consultant reports
(b) Mello-Roos Special Tax studies
(c) Independent redevelopment and financial consultant reports, such
as escrow release reports and additional bond tests
4.0 ADDITIONAL SERVICES
CITY shall have the right at any time during the performance of the services, without
invalidating this Agreement, to order extra work beyond that specified in the Scope of Services
or make changes by altering, adding to or deducting from said work. No such extra work may
be undertaken unless a written order is first given by the City Manager or Finance Director to
the Contractor, incorporating therein any material adjustment in the contract and/or the time to
perform this Agreement, which said adjustments are subject to the written approval of the
Contractor. Any increase in compensation of up to $25,000, or in the time to perform of up to
one hundred eighty (180) days may be approved by the City Manager.. Any greater increases,
taken either separately or cumulatively must be approved by the City Council. It is expressly
understood by Contractor that the provisions of this Section shall not apply to services
specifically set forth in the Scope of Services or reasonably contemplated therein.
6.0 OBLIGATIONS OF THE PARTIES WITH RESPECT TO SERVICES
5.1 City Materials and Support
CITY agrees to provide the following information:
1. Current CITY maps and zoning map;
2. A copy of reports received by the CITY annually from the Auditor-
Controller's office detailing assessed values (secured, unsecured and
utilities), as well as unitary values for reconciliation analysis;
3. Parcel listing and maps of CITY parcel annexations since the lien date
roll;
4. A listing of completed Qew construction projects with Assessor's map
book, page and parcel numbers (APN) for proper identification and
tracking for two years prior to the date of this Agreement. If the data does
not include the APN information, CONTRACTOR will research this
information at an additional cost;
5. A listing of the CITY levies assessment districts and direct assessments.
6. RDA formation documents, debt service schedules, plan caps, DDA/OPA
agreements.
5.2 Compliance with Law
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All services rendered hereunder shall be provided in accordance with all ordinances,
resolutions, statutes, rules, and regulations of the CITY and any Federal, State or local
governmental agency having jurisdiction in effect at the time service is rendered. Contractor
and its subcontractors shall use a-verify to determine if the employees are legally entitled to
work in the United States and shall keep documentation available for review during the length of
the contract with the City.
5.3 License, Permits. Fees and Assessments
CONTRACTOR shall obtain such licenses, permits and approvals (collectively the
"Permits") as may be required by law for the performance of the services required by this
Agreement. CITY shall assist CONTRACTOR in obtaining such Permits, and CITY shall absorb
all fees, assessments and taxes which are necessary for any Permits required to be issued by
CITY.
5.4 Further Responsibilities of Parties
Both parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all
instruments, prepare all documents and take all actions as may be reasonably necessary to
carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be
responsible for the service of the other.
6.0 CONSIDERATION
6.1 Base Fixed Fee Services
CONTRACTOR shall provide the Base Services described in Section 2.0 above, for a
fixed annual fee of$ 15,850.00 (invoiced quarterly).
6.2 Base Continuant Fee Services
For Base Services pursuant to Section 2.1 which are payable on a contingent basis,
CONTRACTOR shall receive 25 percent of net general fund or tax increment property tax
revenue or other revenues attributable to RDA, CITY departments, districts, or funds recovered
or reallocated'which are directly or indirectly the result of an audit, analysis or consultation
performed by CONTRACTOR (including but not limited to base year value audits; administration
of tax sharing agreements; tax increment allocation reviews; county allocation reviews).
CONTRACTOR shall separate and support said reallocation and provide CITY with an itemized
invoice showing all amounts due as a result of revenue recovery or reallocation. CITY shall pay
audit fees after Contractors submittal of evidence that corrections have been made by the
appropriate agency. Payment to CONTRACTOR shall be made within thirty (30) days after
CITY receives its first remittance advice during the fiscal year for which the correction applies.
The fee for documentary transfer tax audit recovery services will be 25% of documentary
transfer tax recovered as a result of our audit efforts.
6.3 Optional Services
Fees for Optional Services as outlined in Services in Section 3.0 above (except Section
3.4)shall be billed at the following hourly rates:
Partner $195 perhour
Principal $175 per hour
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Associate $135 per hour
Senior Analyst $100 per hour
Analyst $65 per hour
Administrative $45 per hour
Hourly rates are exclusive of expenses and are subject to adjustment by CONTRACTOR
annually. On July 1st of each year CONTRACTOR shall provide CITY with an updated
schedule of hourly rates. The rates will not be increased by more than five percent (5%) per
year. In addition, expenses for Optional Services shall be billed at 1.15 times actual incurred
costs.
6.4 Fees for Bond Services
Services under Section 3.5 above will be determined depending upon the complexity of
the bond issue and the time available for completion of the task and will be mutually agreed to
be the parties.
6.6 Indirect Expenses
Except as specified above, no other charges shall be made for direct or indirect
expenses incurred by CONTRACTOR in performing the services in the Scope of Services
including for administrative overhead, salaries of CONTRACTOR'S employees, travel expenses
or similar matters.
6.6 Due Date
All fees are due 30 days immediately following billing. All amounts that are not paid
when due shall accrue interest from the due date at the rate of one percent per month (12% per
annum).
7.0 TERM PERFORMANCE SCHEDULE
7.1 Time of Essence
Time is of the essence in the performance of this Agreement.
7.2 Schedule of Performance
CONTRACTOR shall commence the services pursuant to this Agreement upon receipt
of a written notice to proceed and shall perfomr all services within the time period(s) established
in the"Schedule of Performance" attached hereto as Exhibit"A", and incorporated herein by this
reference. When requested by the CONTRACTOR, extensions to the time period(s) specked in
the Schedule of Performance may be approved in writing by the Contract Officer but not
exceeding one hundred eighty (180) days cumulatively.
7.3 Force Maieure
The time period(s) specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the
CONTRACTOR, including, but not restricted to, acts of God or of the public enemy, unusually
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severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes,
freight embargoes, wars, litigation, and/or acts of any governmental agency, including the CITY,
If the CONTRACTOR shall within ten (10) days of the commencement of such delay notify the
Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the
facts and the extent of delay, and extend the time for performing the services for the period of
the enforced delay when and if in the judgment of the Contract Officer such delay is justified.
7.4 Term
Unless earlier terminated in accordance with Section 11.6 of this Agreement, this
Agreement shall continue in full force and effect for five (5) years, and, unless a notice of
termination is given on September 1, 2015, shall be automatically extended from year to year
until and such notice shall be given.
8.0 COORDINATION OF WORK
8.1 Representative of Contractor
The following principals of CONTRACTOR are hereby designated as being the
principals and representatives of CONTRACTOR authorized to act in its behalf with respect to
the work specified herein and make all decisions in connection therewith:
City of Menifee
City Clerk
29714 Haun Road
Menifee, CA 92586
HdL COREN & CONE
1340 Valley Vista Drive, Suite 200
Diamond Bar, CA 91765
It is expressly understood that the experience, knowledge, capability and reputation of
the foregoing principals were a substantial inducement for CITY to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of CONTRACTOR and devoting sufficient time to personally supervise the
services hereunder. For purposes of this Agreement, the foregoing principals may not be
replaced nor may their responsibilities be substantially reduced by CONTRACTOR without the
express written approval of CITY.
8.2 Contract Officer
The Contract Officer shall be such person as may be designated by the City Manager of
CITY. It shall be the CONTRACTOR'S responsibility to assure that the Contract Officer is kept
informed of the progress of the performance of the services and the CONTRACTOR shall refer
any decisions which must be made by CITY to the Contract Officer. Unless otherwise specified
herein, any approval of CITY required hereunder shall mean the approval of the Contract
Officer. The Contract Officer shall have authority to sign all documents on behalf of the CITY
required hereunder to carry out the terms of this Agreement.
8.3 Prohibition Against Subcontracting or Assignment
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The experience, knowledge, capability and reputation of CONTRACTOR, its principals
and employees were a substantial inducement for the CITY to enter into this Agreement.
Therefore, CONTRACTOR shall not contract with any other entity to perform in whole or in part
the services required hereunder without the express written approval of the CITY. In addition,
neither this Agreement nor any interest herein may be transferred, assigned, conveyed,
hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of
creditors or otherwise, without the prior written approval of CITY. Transfers restricted hereunder
shall include the transfer to any person or group of persons acting in concert of more than fifty
percent (50%) of the present ownership and/or control of CONTRACTOR, taking all transfers
into account on a cumulative basis. In the event of any such unapproved transfer, including any
bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the
CONTRACTOR or any surety of CONTRACTOR of any liability hereunder without the express
consent of CITY.
8.4 IndeyendehtContractor
Neither the CITY nor any of its employees shall have any control over the manner, mode
or means by which CONTRACTOR, its agents or employees, perform the services required
herein, except as otherwise set forth herein. CITY shall have no voice in the selection,
discharge, supervision or control of CONTRACTOR'S employees, servants, representatives or
agents, or in fixing their number, compensation or hours of service. CONTRACTOR shall
perform all services required herein as an independent CONTRACTOR of CITY and shall
remain at all times as to CITY a wholly independent CONTRACTOR with only such obligations
as are consistent with that role. CONTRACTOR shall not at any time or in any manner
represent that it or any of its agents or employees are agents or employees of CITY. CITY shall
not in any way or for any purpose become or be deemed to be a partner of CONTRACTOR in
its business or otherwise or a joint venturer or a member of any joint enterprise with
CONTRACTOR.
9.0 INSURANCE AND INDEMNIFICATION
9.1 Insurance
The CONTRACTOR shall procure and maintain, at its sole cost and expense,. in a form
and content 'satisfactory to CITY, during the entire term of this Agreement including any
extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance. The policy of insurance
shall be in an amount not less than either (i)o combined single limit of $1,000,000 for bodily
injury, death and property damage or(ii) bodily injury limits of$500,000 per person, $1,000,000
per occurrence and $1,000,000 products and completed operations and property damage limits
of$500,000 per occurrence and $500,000 in the aggregate.
(b) Worker's Compensation Insurance. A policy of worker's compensation
insurance in such amount as will fully comply with the laws of the State of California and which
shall indemnify, insure and provide legal defense for both the CONTRACTOR and the CITY
against any loss, claim or damage arising from any injuries or occupational diseases occurring
to any worker employed by or any persons retained by the CONTRACTOR in the course of
carrying out the work or services contemplated in this Agreement.
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(c) Automotive and General Insurance. A policy of comprehensive
automobile liability insurance written on a per occurrence basis in an amount not less than
either (i) bodily injury liability limits of $250,000 per person and $500,000 per occurrence and
property damage liability limits of$100,000 per occurrence and $2,000,000 in the aggregate or
(ii) combined single limit liability of $2,000,000. Said policy shall Include coverage for owned,
non-owned, leased and hired cars. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the tens of this Agreement in an
amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the work contemplated by this Agreement, TWO
MILLION DOLLARS ($2,000,000.00) general aggregate, TWO MILLION DOLLARS
($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability
Insurance or an Automobile Liability form or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required occurrence limit.
Such coverage shall include but shall not be limited to, protection against claims arising from
bodily and personal injury, including death resulting therefrom, and damage to property resulting
from activities contemplated under this Agreement, including the use of hired, owned and non-
owned vehicles.
(d) Errors and Omissions (Professional Liability). A policy of professional
liability issuance written on a claims made basis in an amount not less than One Million Dollars
($1,000,000).
(a) General Requirements. All of the above policies of insurance shall be
primary insurance and shall name the CITY, its officers, employees and agents as additional
insureds. The insurer shall waive all rights of subrogation and contribution it may have against
the CITY, its officers, employees and agents and their respective insurers. All of said policies of
insurance shall provide that said insurance may not be amended or cancelled without providing
thirty (30) days prior written notice by registered mail to the CITY. In the event any of said
policies of insurance are cancelled, the CONTRACTOR shall, prior to the cancellation date,
submit new evidence of insurance in conformance with this Section 9.0 to the Contract Officer.
No work or services under this Agreement shall commence until the CONTRACTOR has
provided the CITY with Certificates of Insurance or appropriate insurance binders evidencing
the above insurance coverages and said Certificates of Insurance or binders are approved by
the CITY.
(f) Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
1. The insurance shall covgr on an occurrence or an accident basis, and not
on a claims-made basis.
2. Any failure of Consultant to comply with reporting provisions of the policy
shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
9.2 Indemnification
CONTRACTOR agrees to indemnify the CITY, its officers, agents and employees
against, and will hold and save them and each of them harmless from, any and all actions, suits,
claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions
or liabilities, (herein "claims or liabilities")that may be asserted or claimed by any person, firth or
entity arising out of or in connection with the negligent performance of the work, operations or
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activities of CONTRACTOR, its agents, employees, subcontractors, or invitees, provided for
herein, or arising from the negligent acts or omissions of CONTRACTOR hereunder, or arising
from CONTRACTOR'S negligent performance of or failure to perform any term, provision,
covenant or condition of this Agreement, whether or not there is concurrent passive or active
negligence on the part of the CITY, its officers, agents or employees but excluding such claims
or liabilities arising from the sole negligence or willful misconduct of the CITY, its officers, agents
or employees, who are directly responsible to the CITY.
9.3 Sufficiency of Insurer or Surety
Insurance or bonds required by this Agreement shall be satisfactory only if issued by
companies qualified to do business in California, rated "A" or better in the most recent edition of
Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a
financial category Class VII or better, unless such requirements are waived by the Risk
Manager of the CITY due to unique circumstances. In the event the Risk Manager of CITY
("Risk Manager") determines that the work or services to be performed under this Agreement
creates an increased or decreased risk of loss to the CITY, the CONTRACTOR agrees that the
minimum limits of the insurance policies and the performance bond required by this Section 9.0
may be changed accordingly upon receipt of written notice from the Risk Manager; provided that
the CONTRACTOR shall have the right to appeal a determination of increased coverage by the
Risk Manager to the CITY Council of CITY within 10 days of receipt of notice from the Risk
Manager.
10.0 RECORDS AND REPORTS
10.1 Reports
CONTRACTOR shall periodically prepare and submit to the Contract Officer such
reports concerning the performance of the services required by this Agreement as the Contract
Officer shall require.
10.2 Records
CONTRACTOR shall keep, and require subcontractors to keep, such books and records
as shall be necessary to perform the services required by this Agreement and enable the
Contract Officer to evaluate the performance of such services. The Contract Officer shall have
full and free access to such books and records at all times during normal business hours of
CITY, including the right to inspect, copy, audit and make records and transcripts from such
records. Such records shall be maintained fo(a period of three (3) years following completion
of the services hereunder, and the CITY shall have access to such records in the event any
audit is required.
10.3 Non-Disclosure of Proorietary Information
In performing its duties under this Agreement, CONTRACTOR will produce reports,
technical information and other compilations of data to CITY. These reports, technical
information and compilations of data are derived by CONTRACTOR using methodologies,
formulae, programs, techniques and other processes designed and developed by
CONTRACTOR at a substantial expense. CONTRACTOR'S reports, technical information,
compilations of data, methodologies, formulae, software, programs, techniques and other
processes designed and developed by CONTRACTOR shall be referred to as Proprietary
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Information. CONTRACTOR'S Proprietary Information is not generally known by the entities
with which CONTRACTOR competes.
CONTRACTOR desires to protect its Proprietary Information. Accordingly, CITY agrees
that neither it nor any of its employees, agents, independent contractors or other persons or
organizations over which it has control, will at any time during or after the term of this
Agreement, directly or indirectly use any of CONTRACTOR'S Proprietary Information for any
purpose not associated with CONTRACTOR'S activities. Further, CITY agrees that it nor any of
its employees, agents, independent contractors or other persons or organizations over which it
has control, will disseminate or disclose any of CONTRACTOR'S Proprietary Information to any
person or organization not connected with CONTRACTOR, without the express written consent
of CONTRACTOR. The CITY also agrees that consistent with its obligations under the
California Public Records Act and related disclosure laws, it will undertake all necessary and
appropriate steps to maintain the proprietary nature of CONTRACTOR'S Proprietary
Information.
Any use of the Proprietary Information or any other reports, records, documents or other
materials prepared by CONTRACTOR hereunder for other projects and/or use of uncompleted
documents without specific written authorization by the CONTRACTOR will be at the CITY's
sole risk and without liability to CONTRACTOR, and the CITY shall indemnify the
CONTRACTOR for all damages resulting therefrom.
10.4 Release of Documents Pursuant to Public Records Act
Notwithstanding any other provision in this Agreement, all obligations relating to
disclosure of Proprietary Information remain subject to the Freedom of Information Act or
California Public Records Act, Cal. Gov't Code §§ 6250 at seq. (collectively, the °PRA"). The
Parties intend that if CITY is served with a request for disclosure under the PRA, or any similar
statute, the CITY in good faith will make the determination as to whether the material is
discloseable or exempt under the statute, and shall resist the disclosure of Proprietary
Information which is exempt from disclosure to the extent allowable under the law. CITY shall
advise CONTRACTOR in writing five (5) days prior to the intended disclosure of any decision to
disclose Proprietary Information, and the reasons therefore, and if CONTRACTOR then timely
advises CITY in writing that it objects to the disclosure, CITY shall not disclose the information.
In such case, CONTRACTOR shall then be solely liable for defending the non-disclosure and
shall indemnify and hold CITY harmless for such nondisclosure.
11.0 ENFORCEMENT OF AGREEMENT
11.1 California Law
This Agreement shall be construed and interpreted both as to validity and to
performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Riverside, State of California, , and
CONTRACTOR covenants and agrees to submit to the personal jurisdiction of such court in the
event of such action.
11.2 Disoutes
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In the event of any dispute arising under this Agreement, the injured party shall notify the
injuring party in writing of its contentions by submitting a claim in accordance with Government
Code Section 900 at seq. The injured party shall continue performing its obligations hereunder
so long as the injuring party commences to cure such default within ten (10) days of service of
such notice and completes the cure of such default within forty-five (45) days after service of the
notice, or such longer period as may be permitted by the injured party; provided that if the
default is an immediate danger to the health, safety and general welfare, such immediate action
may be necessary. Compliance with the provisions of this Section shall be a condition
precedent to termination of this Agreement for cause and to any legal action, and such
compliance shall not be a waiver of any party's right to take legal action in the event that the
dispute is not cured, provided that nothing herein shall limit CITY's or the CONTRACTOR'S
right to terminate this Agreement without cause pursuant to Section 11.6.
11.3 Waiver
No delay or omission in the exercise of any right or remedy by a nondefaulting party on
any default shall impair such right or remedy or be construed as a waiver. A party's consent to
or approval of any act by the other party requiring the party's consent or approval shall not be
deemed to waive or render unnecessary the other party's consent to or approval of any
subsequent act. Any waiver by either party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this Agreement.
11.4 Riahts and Remedies are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same
or different times, of any other rights or remedies for the same default or any other default by
the other party.
11.5 Legal Action
In addition to any other rights or remedies, either party may take legal action, in law or in
equity, to cure, correct or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any
other remedy consistent with the purposes of this Agreement.
11.6 Termination Prior to Expiration of Term
This Section shall govern any termination of this Agreement. The Parties reserve the
right to terminate this Agreement at any time, with or without cause, upon forty-five (45) days'
written notice to the non-terminating party, except that where termination Is for cause, the
Parties will comply with the dispute resolution process in Section 11.2. Upon issuance of any
notice of termination, CONTRACTOR shall immediately cease all services hereunder except
such as may be specifically approved by the Contract Officer. The CONTRACTOR shall be
entitled to compensation for all services rendered prior to the effective date of the notice of
termination and for any services authorized by the Contract Officer thereafter. In the event of
termination without cause pursuant to this Section, the terminating party need not provide the
non-terminating party with the opportunity to cure pursuant to Section 11.2.
11.7 Attomevs' Fees
Professional Services Agreement HdL Coren&Cone Page 13
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If either party to this Agreement is required to initiate or defend or made a party to any
action or proceeding in any way connected with this Agreement, the prevailing party in such
action or proceeding, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney's fees. Attoney's fees shall include attorney's
fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other
reasonable costs and expenses the court allows which are incurred in such litigation. All such
fees shall be deemed to have accrued on commencement of such action and shall be
enforceable whether or not such action is prosecuted to judgment.
12.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
12.1 Non-liability of CITY Officers and Employees
No officer or employee of the CITY shall be personally liable to the CONTRACTOR, or
any successor in interest, in the event of any default or breach by the CITY or for any amount
which may become due to the CONTRACTOR or to its successor, or for breach of any
obligation of the terms of this Agreement.
12.2 Conflict of Interest
No officer or employee of the CITY shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in violation of any
State statute or regulation. The CONTRACTOR warrants that it has not paid or given and will
not pay or give any third party any money or other consideration for obtaining this Agreement.
12.3 Covenant Against Discrimination
CONTRACTOR covenants that, by and for itself, its heirs, executors, assigns, and all
persons claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry in the performance of this Agreement.
CONTRACTOR shall take affirmative action to insure that applicants are employed and that
employees are treated during employment without regard to their race, color, creed, religion,
sex, marital status, national origin, or ancestry.
13.0 MISCELLANEOUS PROVISIONS
13.1 Notice
Any notice, demand, request, document, consent, approval, or communication either
party desires or is required to give to the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail addressed as follows:
CITY City Clerk
City of Menifee
29714 Haun Road
Menifee, California 92586
Professional Services Agreement Hell,Coren&Cone Page 14
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CONTRACTOR, HdL COREN'& CONE
1340 Valley Vista Drive, Suite 200
Diamond Bar, California 91765
Either party may change its address by notifying the other party of the change of
address in writing. Notice shall be deemed communicated at the time personally delivered or in
seventy-two (72) hours from the time of mailing N mailed as provided in this Section.
13.2 Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply.
13.3 Integration'P, Amendment
It is understood that there are no oral agreements between the parties hereto affecting
this Agreement and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties, and none shall be
used to interpret this Agreement. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing.
13.4 Severability
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or
sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out the
intent of the parties hereunder unless the invalid provision is so material that its invalidity
deprives either party of the basic benefit of their bargain or renders this Agreement
meaningless.
13.5 Corporate Authority
The persons executing this Agreement on behalf of the parties hereto warrant that (i)
such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (III) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not
violate any provision of any other Agreement to which said party Is bound.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date first written above.
CIL��i(yr EN�IFDEE �
William A. Rawlings
City Manager
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CONTRACTOR:
HdL COREN &CONE
A California Corporation
APPROVED AS TO FORM:
Professional Services Agreement HdL Coren&Cone Page 16
EXHIBIT"A"
SCHEDULE OF PERFORMANCE
TIMELINE FOR DELIVERABLES
July/August Data available for purchase from counties
September 30 Dataset and software available for installation on city computers
September-October Unsecured audits performed and forwarded to county assessor
October-February Delivery of preliminary property tax reports
December Quarterly data updates—Database/software
Appeals quarterly updates emailed in counties where the data is available
March Quarterly data updates—Database/software
Appeals quarterly updates smelled in counties where the data is available
March/April General Fund Budget Projections
April/May Final Books—Addendums emailed to clients
June Quarterly data updates—Database/software
Appeals quarterly updates emailed in counties where the data is available
Ongoing Secured Audits—City and Redevelopment Project Areas
Malakai Audits (Base year reviews for public purchased property after
project formation)
Revenue audits of City, RDA and District receipts for correctness
Property sales reports
Redevelopment Project Area base year parcel assembly
City and RDA mid-year budget reviews and budget projections
Analytical work at the request of clients
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