HomeMy WebLinkAbout15288 AGT. # 07-001
1 1. AGREEMENT FOR SALES TAX AUDIT AND INFORMATION SERVICES
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3 This Agreement is made and entered into as of the 9th day of January, 2007 and is
a retroactive to December 18, 2006, by and between the COUNTY OF FRESNO, hereinafter called
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COUNTY, and HINDERLITER, DE LLAMAS AND ASSOCIATES a California Corporation,
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hereinafter called CONTRACTOR.
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RECITALS
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9 WHEREAS, sales tax revenues can be increased through a system of continuous
o monitoring, identification and correction of"point of sale" allocation errors, and
11 WHEREAS, an effective program of sales tax management will improve identification of
12 sales tax opportunities as they relate to economic development and provide for more accurate sales
13 tax forecasting; and
4 WHEREAS, County desires the combination of report preparation and data analysis
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necessary to effectively manage the municipal sales tax base and recover revenues erroneously
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allocated to other jurisdictions and allocation pools; and
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WHEREAS, Contractor has the programs, equipment and personnel required to deliver the
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sales tax services referenced herein.
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20 THEREFORE, County and Contractor, for the consideration hereinafter described, mutually
21 agree as follows:
22 Services
23 The Contractor shall perform all services and fulfill all responsibilities for the provision of
24 sales tax services as identified in County's Request for Proposal (RFP) No. 946-4338, dated
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October 4, 2006 and Contractor's response, dated October 27, 2006, both incorporated herein by
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reference and made part of this Agreement, and is listed below.
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In the event of any inconsistency among these documents, the inconsistency shall be
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1 resolved by giving precedence in the following order of priority: (1) to this Agreement and Exhibits;
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(2) to the Response to RFP; and (3) the RFP. A copy of County's RFP No. 946-4338 and
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Contractor's response, shall be retained and made available during the term of this Agreement by
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County's Auditor-Controller/Treasurer-Tax Collector Department.
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The Contractor shall perform the following services:
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A. Optional Sales Tax and economic analysis:
8 1. Contractor shall establish a special data base that identifies the name, address and
quarterly allocations of the major sales tax producers within the County for the most current and
10 previous four quarters from the date of this Agreement. Major sales tax producers are defined as
11 those businesses meeting a quarterly revenue threshold determined by County. Since 100% of the
12 business outlets registered with the Board of Equalization are tracked monthly, this major producer's
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data base is designed to highlight the activities of major businesses. A second data base covering
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the same period will be established showing total sales tax receipts for each business category
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identified by the Board of Equalization. These data bases will be utilized to generate special reports
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17 to the County on, major sales tax producers by rank and category, analysis of sales tax activity by
18 category and business districts or redevelopment areas specified by County, analysis of reporting
:9 aberrations, and per capita and outlet comparisons with state wide sales.
28 2. Contractor shall provide up-dated reports each quarter identifying changes in sales by
21 major businesses and by category; area growth and decline comparisons; and current graphics,
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2 tables and top 100 listings. Quarterly aberrations due to State audits, fund transfers, and
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receivables along with late or double payments will be identified
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3. Contractor wilt additionally provide an analysis for the County to share with Chambers of
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Commerce and other economic development interest groups that analyze County's sales tax trends
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by major groups, and geographic areas without disclosing confidential information.
28 4. Contractor will provide annual reports for the County Administrative Officer and Auditor-
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Controller/Treasurer-Tax Collector identifying historical growth comparisons with state, county,
2 selected Count and C.P.I. indices; to y averages g p producer listings and make up and volatility of the
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economic base. Annual reconciliation worksheets to assist with budget forecasting will also be
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provided.
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B. Allocation Audit and Recovery
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1. Contractor shall conduct an initial and on-going sales tax audit in order to identify and
8 correct "point-of-sale" distribution errors and thereby generate previously unrealized sales tax
9 income for the County. Common errors that will be monitored and corrected included: transposition
10 errors resulting in misallocations; erroneous consolidation of multiple outlets; misidentifying
11 transactions as a "use tax" rather than a "sales tax"; and erroneous fund transfers and adjustments.
12 2. Contractor will initiate contacts with the appropriate sales management and accounting
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officials in companies that have businesses where a probability of error exists to verify whether
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current tax receipts accurately reflect the local sales activity. Such contacts will be conducted in a
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manner to encourage local business retention and expansion.
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17 3. Contractor shall prepare and submit to the Board of Equalization all information necessary
18 to correct any allocation errors that are identified and shall follow-up with the individual businesses
19 and the State Board of Equalization to ensure that all back quarter payments due the County are
20 recovered.
21 4. If, during the course of its audit, Contractor finds businesses located in the County that
22 are properly reporting sales tax but have the potential for modifying their operation to provide an
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even greater share to the County, Contractor will work with those businesses and the County to
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encourage such changes.
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C. On going Consultation
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Contractor shall work with the County on questions related to tenant mix alternatives for
28 maximum sales tax returns; advise County business license staff on utilization of reports to enhance
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j 1 business license collection efforts; provide sales tax projections on specific projects for
2 redevelopment negotiation and County budget purposes; and provide sample reports, letters and
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programs to enhance the sales tax base through improved economic development efforts.
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TERM OF CONTRACT
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Contractor shall satisfactorily complete all work required with five (5) years of the date of this
Agreement. Contractor and County agree that the performance of these services may be extended
8 for two (2) one-year increments at the sole discretion of the County. Notice of exercise of the
9 County's option to extend shall be delivered thirty (30) days prior to the end of the fifth year and
1 o each succeeding option year.
'-1 This Agreement shall be in effect until December 18, 2011 and may be extended through
12 December 15, 2013.
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CONFIDENTIALITY
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Section 7056 of the State of California Revenue and Taxation Code specifically limits the
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disclosure of confidential taxpayer information contained in the records of the State Board of
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Equalization. This section specifies the conditions under which a County may authorize persons
18 other than County officers and employees to examine State Sales and Use Tax records.
19 The following conditions specified in Section 7056 (b), (1) of the State California Revenue
23 and Taxation Code are hereby made part of this contractual agreement.
21 A. Contractor is authorized by this Agreement to examine sales or transactions and use tax
22 records of the Board of Equalization provided to County pursuant to contract under the Bradley-
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Burns Uniform Sales and Use Tax Law,
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B. Contractor is required to disclose information contained in, or derived from, those sales or
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transactions and use tax records only to an officer or employee of the County who is authorized by
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resolution to examine the information.
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28 C. Contractor is prohibited from performing consulting services for a retailer, as defined in
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1 California Revenue & Tax Code Section 6015, during the term of this Agreement. Further,
2 Contractor agrees not to perform sales tax services for cities within the County of Fresno without
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written consent from the County Administrative Officer and Auditor-Controller/Treasurer-Tax
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Collector during the term of the contract.
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D. Contractor is prohibited from retaining the information contained in, or derived from, those
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sales or transactions and use tax records after this Agreement has expired. Information obtained by
8 examination of Board records shall be used only for purposes related to collection of local sales and
9 use tax or for other governmental functions of the County as set forth by resolution adopted pursuant
=o to Section 7056(b) of the Revenue and Taxation Code. The resolution shall designate the
11 Contractor as a person, authorized to examine sales and use tax records and certify that this
_2 Agreement meets the requirements set forth above in Section 7056(b), (1) of the Revenue and
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Taxation Code.
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PROPRIETARY INFORMATION
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In performing its duties under this contract, Contractor will produce reports, technical
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17 information and other compilations of data to County. These reports, technical information and
18 compilations of data are derived by Contractor using methodologies, formulae, programs,
19 techniques and other processes designed and developed by Contractor at a substantial expense.
20 Contractor's reports, technical information, compilations of data, methodologies, formulae,
21 programs, techniques and other processes designed and developed by Contractor shall be referred
22 to as Proprietary Information. Contractor's Proprietary Information is not generally known by the
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entities with which Contractor competes.
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Contractor desires to protect its Proprietary Information. Accordingly, County agrees that
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neither it nor any of its employees, agents, independent contractors or other persons or
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27 organizations over which it has control, will at any time during or after the term of the Agreement,
23 directly or indirectly use any of the Contractor's Proprietary Information for any purpose not
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associated with Contractor's activities. Further, County agrees that neither it nor any of its
2 employees, grants, independent contractors or other persons or organizations over which it has
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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
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County also agrees that it will undertake all necessary and appropriate steps to maintain the
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proprietary nature of Contractor's Proprietary Information.
B CONSIDERATION
' 9 A. Contractor shall be paid 15% of all new Sales and/or Use tax revenue received by the
:0 County as a result of audit and recovery work performed by Contractor (hereafter referred to as
11 "audit fees"). New sales and/or use tax revenue shall not include any amounts determined by
12 County or Contractor to be increment attributable to causes other than Contractor's work pursuant to
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this Agreement. In the event that Contractor is responsible for an increase in the tax reported by
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businesses already properly making tax payments to the County, it shall be Contractor's
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responsibility to separate and support the incremental amount attributable to its efforts prior to the
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17 application of audit fee. Said audit fees will apply to state fund transfers received for back quarter
16 reallocations and monies received in the first eight consecutive reporting quarters following
19 completion of the audit by Contractor and confirmation of corrections by the State Board of
20 Equalization. Contractor shall provide County with an itemized quarterly invoice showing all formula
21 calculations and amounts due for audit fees.
22 Contractor shall obtain County approval prior to beginning the work of correcting tax
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reporting methodology or "point of sale" for specific businesses where said payment of the
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percentage fee will be expected. County shall pay audit fees upon Contractor's submittal of
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evidence of State Fund Transfers and payments to County from businesses identified in the audit
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and approved by the County.
29 B. The fee for the Optional Services outlined under Section A, page 2, 'Services" shall be at no
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1 additional cost. The only requirement is that the County adopts a separate resolution authorizing the
2 State Board of Equalization to provide Contractor access to the confidential databases required for
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the audit.
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C. The above sums shall constitute full reimbursement to Contractor for all direct and indirect
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expenses incurred by Contractor in performing audits including the salaries of Contractor's
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employees, and travel expenses connected with contacting local and out-of-state businesses and
8 Board of Equalization.
9 TERMINATION
13 This Agreement may be terminated by either party by giving 30 days written notice to the
11 other of such termination and specifying the effective data thereof. Upon the presentation of such
12 notice, Contractor may continue to work through the date of termination. Upon termination as
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provided herein, Contractor-shalI be paid the value of all tax analysis and reporting work performed
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less payments previously made by County. In ascertaining the value of the work performed up to
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the date of termination, consideration shall be given to amounts due for any unpaid invoices, and to
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17 businesses identified by Contractor which make tax payments after termination of this Agreement as
18 a result of Contractor's work. After County receives said tax payments for such businesses,
19 Contractor shall be paid the audit fees resulting from tax payments made by the business for back
20 quarter reallocations and the first eight consecutive reporting quarters following completion of the
2= audit by Contractor and confirmation of corrections by the State Board of Equalization.
22 Compensation for any audit work previously authorized and satisfactorily performed shall be made
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at the times provided in the preceding section entitled "Consideration".
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All documents, data, surveys and reports prepared by Contractor pursuant to this Agreement
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26 shall be considered the property of the County and upon payment for services performed by
27 Contractor, such documents and other identified materials shall be delivered to County by
28 Contractor,
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INDEPENDENT CONTRACTOR
2 In performance of the work, duties and obligations assumed by Contractor under this
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Agreement, it is mutually understood and agreed that Contractor, including any and all of
Contractor's officers, agents, and employees will at all times by acting and performing as an
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independent contractor, and shall act in an independent capacity and not as an officer, agent,
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7 servant, employee, joint venturer, partner, or associate of the County. Furthermore, County shall
8 have no right to control or supervise or direct the manner by which Contractor shall perform its work
9 and function.
10 However, County shall retain the right to administer this Agreement so as to verify that
11 Contractor is performing its obligations in accordance with the terms and conditions thereof.
12 Contractor and County shall comply with all applicable provisions of law and the rules and
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regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof.
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Because of its status as an independent contactor, Contractor shall have absolutely.no right
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to employment rights and benefits available to County employees. Contractor shall be solely liable
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17 and responsible for providing to, or on behalf of, its employees all legally-required employee
18 benefits. In addition, Contractor shall be solely responsible and save County harmless from all
19 matters relating to payment of Contractor's employees, including compliance with Social Security,
20 withholding and all other regulations governing such matters. It is acknowledged that during the
2: term of this Agreement, Contractor may be providing services to others unrelated to the County or to
22 this Agreement.
23 MODIFICATION
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Any matters of this Agreement may be modified from time to time by the written consent of all
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parties without, in any way, affecting the remainder.
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NON-ASSIGNMENT
2 Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties
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under this Agreement without the written consent of the other party.
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INDEMNIFICATION
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Contractor hereby agrees to, and shall hold County, it's elective and appointive boards,
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officers, agents and employees, harmless from any liability for damage or claims for damage for
P personal injury, including death, as well as from claims for breach of confidentiality or property
9 damage which may arise from Contractor's willful or negligent acts, errors or omissions or those of
to its employees or agents. Contractor agrees to and shall defend County and its elective and
11 appointive boards, officers, agents and employees from any suits or actions at law or in equity for
12 damages caused, or alleged to have been caused, by reason of any of the aforesaid willful or
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negligent acts, errors or omissions.
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County hereby agrees to, and shall hold Contractor, its officers, agents, and employees,
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harmless from any liability for damage or claims for damage for personal injury, including death, as .
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17 well as from claims for breach of confidentiality or property damage which may arise from County's
18 negligent acts, errors or omissions under this Agreement. County agrees to and shall defend
19 Contractor and its officers, agents and employees from any suits or actions at law or in equity for
20 damaged caused, or alleged to have been caused, by reason of any of the aforesaid negligent acts,
21 errors or omissions.
22 INSURANCE
23 Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR
24 or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect the
25 following insurance policies throughout the term of this Agreement:
26 A. Commercial General Liabilfi+
27 Commercial General Liability Insurance with limits of not less than One Million
28 Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million Dollars ($2,000,000). This
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1 policy shall be issued on a per occurrence basis. COUNTY may require specific coverages including
2 completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal
3 liability or any other liability insurance deemed necessary because of the nature of this contract.
4 B. Automobile Liability
5 Comprehensive Automobile Liability Insurance with limits for bodily injury of not
6 less than Two Hundred Fifty Thousand Dollars ($250,000.00) per person, Five Hundred Thousand
7 Dollars ($500,000.00) per accident and for property damages of not less than Fifty Thousand Dollars
8 ($50,000.00), or such coverage with a combined single limit of Five Hundred Thousand Dollars
9 ($500,000.00). Coverage should include owned and non-owned vehicles used in connection with this
to Agreement.
1' C. Professional Liability
12 If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N.,
13 L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than
14 One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual
15 aggregate.
16 D. Worker's Compensation
17 A policy of Workers Compensation insurance as may be required by the California Labor Code.
is CONTRACTOR shall obtain endorsements to the Commercial General Liability
19 insurance naming the County of Fresno, its officers, agents, and employees, individually and
20 collectively, as additional insured, but only insofar as the operations under this Agreement are
21 concerned. Such coverage for additional insured shall apply as primary insurance and any other
22 insurance, or self-insurance, maintained by COUNTY, its officers, agents and employees shall be
23 excess only and not contributing with insurance provided under CONTRACTOR's policies herein. This
2, insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written
25 notice given to COUNTY.
26 Within Thirty (30) days from the date CONTRACTOR executes this Agreement,
27 CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the
28 foregoing policies, as required herein, to the County of Fresno, (Name and Address of the official who
wnty or Fresno will administer this contract), stating that such insurance coverage have been obtained and are in full
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I force; that the County of Fresno, its officers, agents and employees will not be responsible for any
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premiums on the policies; that such Commercial General Liability insurance names the County of
3 Fresno, its officers, agents and employees, individually and collectively, as additional insured, but only
4 insofar as the operations under this Agreement are concerned; that such coverage for additional
5 insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by
6 COUNTY, its officers, agents and employees, shall be excess only and not contributing with insurance
7 provided under CONTRACTOR's policies herein; and that this insurance shall not be cancelled or
8 changed without a minimum of thirty (30) days advance, written notice given to COUNTY.
9 In the event CONTRACTOR fails to keep in effect at all times insurance coverage
to as herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate
11 this Agreement upon the occurrence of such event.
12 All policies shall be with admitted insurers licensed to do business in the State of California.
13 Insurance purchased shall be purchased from companies possessing a current A.M. Best, Inc. rating
14 of A FSC VI or better.
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16 AUDITS AND INSPECTIONS
17 The Contractor shall at any time during business hours, and as often as the County may
is deem necessary, make available to the County for examination all of its records and data with
19 respect to the matters covered by this Agreement. The Contractor shall, upon request by. the
20 County, permit County to audit and inspect all of such records and data necessary to ensure
21 Contractor's compliance with the terms of this Agreement.
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If this Agreement exceeds Ten Thousand and No/100 Dollars ($10,000.00), Contractor shall
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be subject to the examination and audit of the Auditor General for a period of three (3) years after
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final payment under contract (Government Code Section 8546.7).
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I NOTICES
2 The persons and their addresses having authority to give and receive notices under this
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Agreement include the following:
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COUNTY CONTRACTOR
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Vicki Crow, C.P.A. Hinderliter, de Llamas and Associates
6 Auditor-ControllerrTreasurer-Tax Collector 1340 Valley Vista Drive, Suite 200
2282 Tulare Street, Room 105 Diamond Bar, CA 91765
' Fresno, CA 93715
B
9 Any and all notices between the County and the Contractor provided for or permitted under
=0 this Agreement or by law shall be in writing and shall be deemed duly served when personally
11 delivered to one of the parties, or in lieu of such personal service, when deposited in the United
12 States Mail, postage prepaid, addressed to such party.
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GOVERNING LAW
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Venue for any action arising out of or relating to this Agreement shall only be in Fresno
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County, California.
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17 The rights and obligations of the parties and all interpretation and performance of this
18 Agreement shall be governed in all respects by the laws of the State of California.
19 ENTIRE AGREEMENT
20 This Agreement constitutes the entire agreement between the Contractor and County with
21 respect to the subject matter hereof and supersedes all previous negotiations, proposals,
22 commitments, writings, advertisements, publications, and understandings of any nature whatsoever
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unless expressly included in this Agreement.
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
2 and year first hereinabove written.
3 CONTRACTOR: ATTEST:
4
Hinderliter, de Llamas & Associates BERNICE E. SEIDEL, Clerk
5
Board of Supervisors
6
By.
' Lloy de Llamas
By:
B
9
President and CEO Date:
10 Date: /Gliz
11 Mailing Address: REVIEWED & RECOMMENDED FOR
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12 Hinderliter, de Llamas & Associates APPROVAL:
1340 Valley Vista Drive, Suite 20
13 Diamond Bar, CA 91765
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15 APPROVED AS TO LEGAL FORM: Auditor-Controller/Treasurer-Tax Collector
16 DENNIS MARSHAL APPROVED AS TO ACCOUNTING FORM:
17 COUNTY COUNSEL VICKI CROW, C.P.A.
18 AUDITOR-CONTROLLER/TREASURER-TAX
19 By: COLLECTOR
20
21 COUNTY OF FRESNO
22 By: By.
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Chairman, Board of Supervisors
24 FOR ACCOUNTING USE ONLY:
Date:
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Fund No.: 0001
26 Budget Unit No.: 2540
Account No.: 7295
27 Requisition No.: 410200234 _
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County of Fresno
Fresno,Califonnia
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
2 and year first hereinabove written.
3
CONTRACTOR: ATTEST:
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Hinderliter, de Llamas & Associates BERNICE E. SEIDEL, Clerk
5
Board of Sup-rvisors
6
7 By.
Lloyd de Llamas X
By: v - a<
e
9 President and CEO e: JAN 0 .9 2007
10 Date:
11 Mailing Address: REVIEWED & RECOMMENDED FOR
12 Hinderliter, de Llamas & Associates APPROVAL:
1340 Valley Vista Drive, Suite 20
13 Diamond Bar, CA 91765
14
15 APPROVED AS TO LEGAL FORM: Auditor-Controller/Treasurer-Tax Collector
16 DENNIS MARSHAL
APPROVED AS TO ACCOUNTING FORM:
17 COUNTY COUNSEL VICKI CROW C.P.A.
ie
AUDITOR-CONTROLLER/TREASURER-TAX
19 By. COLLECTOR
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zl COUNT R NO
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By: ZBy:
23
Chairman, Board of Supervisors
24
Date:
JAN 0 9 2007 FOR ACCOUNTING USE ONLY:
25
Fund No.: 0001
26 Budget Unit No.: 2540
Account No.: 7295
27 Requisition No.: 410200234
28
)unty of Fresno
esno,California
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CERTIFICATE OF DELIVERY OF DOCUMENT
f am employed by the County of Fresno as a Deputy Clerk of the
Board of Supervisors. On January 9, 2007, 1 delivered a copy of Agreement
No. 07-001 to the Chairman of the Fresno County Board of Supervisors.
�r
vier Flores, Deputy Clerk