Loading...
HomeMy WebLinkAboutMINUTES - 01191993 - 1.29 y� 10 2 9 TO: BOARD OF SUPERVISORS Contra 1. Costa FROM: Phil Batchelor, County Administrator n. ;S County DATE: rrq-- ----- cTy January 19, 1993 SUBJECT: CONTRACT WITH HINDERLITER, DE LLAMAS AND ASSOCIATES SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: Approve the contract with Hinderliter, de Llamas and Associates for Sales Tax Monitoring and Information Services . FISCAL IMPACT: The contract cost is not known and is based on two factors . First, a $9 ,600 flat fee for sales tax information, and technical assistance. Second, a 15% of all revenue received by the County as a result of a contractor' s audit. However, it is anticipated that the consultant will recover substantially more revenues to offset the contract cost. BACKGROUND: The need for more detailed sales tax information is essential to revenue forecasting and economic development planning. Revenue forecasting has been difficult over the years because of substantial changes in revenue. A lack of monthly or annual revenue patterns require a more indepth analysis of sales tax revenue. The State Board of Equalization provides monthly sales tax information is provided to the County on computer diskettes, which is extremely difficult to compile, summarize and print. Moreover, special computer programming and a large capacity personal computer are necessary. The revenue generating potential of various commercial firms is critical to economic and redevelopment planning. This issue has been discussed several times at meetings of the Economic Progress Committee and the Finance Committee. 7 CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED _21_ OTHER VOTE OF SUPERVISORS j 1 HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS N THE DATE SHOWN. cc: County Administrator ATTESTED Auditor-Controller PH BATCHELOR,CLER OFTHEBOARDOF Contractor SUPERVISORS AND COUNTY ADMINISTRATOR i BY M382 (10/88) DEPUTY 1' h.L. Contra Costa County STANDARD CONTRACT Standard Form 1/88 (Purchase of Services) Number Fund/Org # 1200 Account # 2310 Other # 1. Contract Identification. Department: County Administrator's Office Subject: Sales Tax Audit and Information Services 2. Parties. The County of.Contra Costa, California (County), for its Department named above, and the following named Contractor mutually agree and promise as follows: Contractor: Hinderliter, de Llamas and Associates Capacity: Private-for-Profit Corporation Taxpayer ID# 33-0008507 Address: 2220 E. Alcosta Ave., Suite 205 Glendora, CA 91740 3. Term. The effective date of this Contract is July 1, 1992 and it terminates June 30, 1993 unless sooner terminated as provided herein. 4. Payment Limit. County's total payments to Contractor under this contract shall not exceed $ see service plan. 5. County's Obligations. County shall make to the Contractor those payments described in the Payment Provisions attached hereto which are incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein. 6. Contractor's.Obligations. Contractor shall provide those services and care out that work described in the Service Plan attached hereto which is incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein. 7. General and Special Conditions. This Contract is subject to the General Conditions and Special Conditions (if any) attached hereto, which are incorporated herein by reference. 8. Project:- .This Contract implements in whole or in part the following described Project, the application and approval documents of which are incorporated herein by reference. See Service Plan, pages 6-11. 9 Legal Authority. This Contract is entered into under and subject to the following legal authorities: California Government Code Section 31000. California Revenue and Taxation Code Section 7056 10. Signatures. These signatures attest the parties' agreement hereto: COUNTY OF CONTRA COSTA, CALIFORNIA BOARD OF SUPERVISORS ATTEST: Phil Batchelor, Clerk of the Board J of Supep 'sor nd Co t i'Administrator By / M By Chair/Designee Deputy CONTRACTOR By By � si, (Designate official business capacity) (Designate official business capacity) Note to Contractor: For corporations (profit or nonprofit, the contract must be signed by two officers. Signature A must be that of the president or vice-president and Signature B must be that of the secretary or assistant secretary(Civil Code §1190.1 and Corporation Code §313). All signatures must be acknowledged as set forth on page two. Contra Costa County Standard Form 1/87 APPROVALS/ACKNOWLEDGEMENT Number APPROVALS RECOMMENDED BY DEPARTMENT FORM APPROVED By (-) _Ot" ��� B __J,L4 Designee APPROVED: COUNTY ADMINISTRATION By DesigAee ACKNOWLEDGEME4ACK State of California LEDG4EMENT by on,Partnership or Individual) Cc: my of The person(s) signing above for Contractor, personally known to me in the individual or business capacity(ies) stated, or proved to me on the basis of satisfactory evidence to be the stated individual or representative(s) of the partnership or corporation named above in the capacity(ies) stated, personally appeared before me today and acknowledged that he/she/they executed it, and acknowledged to me that the partnership named above executed it or acknowledged to me that the corporation named above executed it pursuant to its by-laws or a resolution of its board of directors. Dated (Notarial Seal) Notary Public/Deputy County Clerk Contra Costa. County Standard Form 1/87 GENERAL CONDITIONS (Purchase' of Services) 5. Termination. a. Written Notice-. This ,Contract may be terminated by either party, at their sole discretion, upon thirty-day advance written notice thereof to the other, and may be cancelled immediately. by written mutual consent. b. Failure to Perform. The County, upon written notice to Contractor, may immediately terminate this Contract should the Contractor fail to perform properly any of its obligations hereunder. In the event of such termination, the County may proceed with the work in any reasonable manner it chooses . The cost to the County of completing Contractor' s performance shall be deducted from any sum due the Contractor under this Contract, without prejudice to the County's rights otherwise to recover its damages . c. . Cessation of Funding. Notwithstanding Paragraph 5.a. above, in the event that Federal, State, or other non-County funding for this Contract ceases, this Contract is terminated without notice. 6. Entire Agreement. This Contract contains all the terms and conditions agreed upon by the parties. Except as expressly . provided herein, no other• understanding, -oral or otherwise, regarding the subject matter of this Contract shall be deemed to exist or to bind any of the parties hereto. 7. Further Specifications for Operating Procedures. Detailed specifications of operating procedures and budgets required by this Contract, including but not limited to, monitoring, evaluating, auditing, billing, or regulatory changes,,, may be devel- oped and set forth in a written Informal Agreement between the Contractor and the County. Such Informal Agreements shall be designated as such and shall not be amendments to this Contract except to the extent that they further detail or clarify that which is already required hereunder. Such Informal Agreements may not enlarge in any manner the scope of this Contract, including any sums of money .to be paid the Contractor as provided herein.. Informal Agreements may be approved and signed by the head of the County Department for which this Contract is made or his designee. 8. Modifications and Amendments. a. General Amendments. This . Contract may be modified or .amended by a written document executed by the Contractor and the Contra .Costa County Board of Supervisors or, after. Board approval, by its designee, subject to any required State or Federal approval. b. Administrative Amendments. Subject to the Payment Limit , the Payment Provisions and the. Service Plan may be amended by a written administrative amendment executed by the Contractor and the County Administrator or his designee, subject to any required State or Federal approval, provided that .such administrative amendments . may not materially change the Payment Provisions or the Service Plan. 9.. Disputes. Disagreements between the County and Contractor concerning the meaning, requirements , or performance of this Contract shall be subject to final determination in writing by the head of the County Department for which this Contract is made or his designee or in accordance with the applicable procedures (if any) required by the State or Federal Government . . -2- Contra Costa 'County Standard Form 1/87 GENERAL CONDITIONS (Purchase of Services) 10. Choice of Law and Personal Jurisdiction. a. This Contract is made in Contra Costa County and shall be governed and construed in accordance with the laws of the State of California. b. Any action relating to this Contract shall be instituted and prosecuted in the courts of Contra Costa County, State of California. 11. Conformance with Federal and -St ate Regulations and Laws. Should Federal or State regulations or laws touching upon the subject of this Contract be adopted or revised during the term hereof, this Contract shall be deemed amended to assure conformance with such Federal or State requirements. 12. No Waiver by County. Subject to Paragraph 9. (Disputes) of these General Conditions, inspections. or approvals, or statements by any officer, agent or employee of the County indicating the Contractor's performance or any part thereof complies with the requirements of this Contract, or acceptance of the whole or any part of said performance, or payments therefor, or any combination of these acts, shall not relieve the Contractor's obligation to fulfill this Contract as prescribed; nor shall the County be thereby estopped from bringing any action for damages or enforcement arising from any failure to comply with any of the terms and conditions of this Contract. 13. Subcontract and Assignment. This Contract binds the heirs, successors, assigns and representatives of Contractor. The Contractor shall not enter into subcontracts for any work contemplated under this Contract and shall not assign this Contract or monies due or to become due, without the prior written consent of the County Administrator or his designee, subject to any required State or Federal approval. 14. Independent Contractor Status. This Contract is by and between two independent contractors and is not intended to and shall not be construed. to create the relationship between the parties of agent, servant, employee, partnership, joint venture or association. 15. Conflicts of Interest. Contractor, its officers, partners, associates, agents , and employees, shall not make, participate in making, or in any way attempt to use the position afforded them by . this Contract- to .influence any governmental decision in which he or she knows or has reason to know that he or she has a financial interest under California Government Code Sections 87100, et _ seq., or otherwise. 16. Confidentiality. Contractor agrees to comply and to require its officers, partners, associates , agents and employees to comply with all applicable State or Federal statutes or regulations respecting confidentiality, including but not limited to , the identity of persons. served under ;this Contract , their_ records, or services provided them, and assures that: a. All applications and records concerning any individual made or kept by Contractor or any public officer or agency in connection with the administration of or relating to services provided under this Contract will be confidential, and will not be open to examination for any purpose not directly connected with the administration of such service. -3- Centra Costa 'County Standard Form 1/88 GENERAL CONDITIONS (Purchase of Services) b. No person will publish or disclose or permit or cause to be published or disclosed, any list of persons receiving services, except as may be required in the administration of such service. Contractor agrees to inform all .employees, agents and partners of the above provisions, and that any person knowingly and intentionally ,.disclosing such information other ,than as authorized by law, may be guilty of a misdemeanor. 17. Nondiscriminatory Services. Contractor agrees that all 'goods and 'services under this Contract shall be available .to all qualified persons regardless of age, sex, race, religion, color, national origin, or, ethnic .background, "or handicap, and that none shall be used, . in whole or. in part, for religious worship .or instruction. 18. Indemnification. The ,Contractor shall defend, indemnify, save, and hold harmless the County and its officers and .employees from any and all claims, costs and liability for any damages, sickness, death, or injury to person(s) or property, including without limitation all consequential damages, from any cause whatsoever arising directly or indirectly from or connected with the operations or services of the Contractor or its agents, servents, employees or subcontractors hereunder, save and except claims or litigation arising through the sole negligence or sole willful misconduct of the- County or its officers or employees. Contractor will reimburse the County for any expenditures-, including reasonable attorneys fees, the County may make by reason of the matters that .are the subject of this indemnification, and if requested by the County will defend any claims or litigation to which this indemnification provision applies .at the sole cost" ,and. expense of the Contractor. 19. Insurance.. During the entire term of this Contract. and any extension or modification thereof, the Contractor shall keep in effect insurance policies meeting . the following insurance requirements unless otherwise expressed in the Special Conditions: a. Liability Insurance. The Contractor shall provide comprehensive liabi- lity insurance, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $500,000 for all damages, including consequential damages , due to bodily injury, sickness or disease, or . death to any person or damage to . or destruction of property, including the loss of use thereof, arising from each occurrence. Such insurance shall be endorsed to include the County and its officers and employees as additional insureds as to all services performed by Contractor under this agreement. Said policies shall constitute primary insurance as to the County, the State and Federal Governments, and their officers, agents, and' employees, so ,that other insurance policies held by them or their self-insurance program(s) shall not be required to' contribute to any loss covered under the Contractor's insurance policy or policies. " b. Workers' Compensation. The Contractor shall provide workers' compensation insurance coverage for its employees. c. Certificate of Insurance. The Contractor shall provide the County with (a) certificate(s) of insurance evidencing liability and worker's compensation .insurance as required herein no later than the effective date of .this Contract. -"If the Contractor should renew the insurance policy(ies) or acquire either a new insurance policy(ies) or' amend the coverage afforded through an endorsement to the policy at any time during the term of this Contract, then Contractor shall provide (a) current certificate(s). of i.nsuran'ce. . d. Additional Insurance Provision's. The insurance policies prodided by the Contractor shall include a provision for thirty (30) days written notice to County before cancellation or material change of the above specified. coverage.; -4- Contra Costa' County Standard Form 1187 GENERAL CONDITIONS (Purchase of Services) 20. Notices. All notices provided for by this Contract shall be in writing and may be delivered by deposit in the United States mail, postage prepaid. Notices to the ',County shall be addressed to the head of the County Department for which this Contract is made. Notices to the Contractor shall be addressed to the Contractor's address designated herein. The effective date of notice shall be the date of deposit in the mails or of other delivery, except that the effective date of notice-.to the County shall be the date of receipt by the head of the County Department for which this Contract is made. 21. Primacy of General Conditions. Except for Special . Conditions which expressly supersede General Conditions , the Special Conditions (if any) and Service Plan do not limit any term of the General Conditions. 22. Nonrenewal. Contractor understands and agrees that there is no representation, implication, or understanding that the services provided by Contractor under this Contract will be purchased by County under a new contract following expiration or termination of this Contract, and waives all rights or claims to notice or hearing respecting any failure to continue purchase of all or any such services from Contractor. 23. Possessory Interest. If this Contract results in the Contractor • having possession of, claim to or right to the possession of land or improvements, but does not vest ownership of the land or improvements in the same person, or if this Contract results in the placement of taxable improvements on tax exempt land (Revenue & Taxation Code §107), such interest or improvements may represent a possessory interest subject to property tax, and Contractor may .be subject to the payment of property taxes )levied on such interest . Contractor agrees that this provision complies with the notice requirements of Revenue & Taxation Code §107.6, and .waives all rights to further notice or to damages under that or any comparable statute: 24. No Third-Party Beneficiaries. Notwithstanding mutual recognition that services under this Contract may provide some- aid or assistance to members of the County's population, it is not the intention of either the County or Contractor that such individuals occupy the position of intended third-party beneficiaries of the obligations assumed by either party to this Contract. 25. Copyrights and Rights in Data. Contractor shall not publish or, transfer any materials produced or resulting from activities supported by this agreement without the express written consent of the County Administrator. If any material is subject to copyright , the County 'reserves the right to copyright such and the Contractor_ agrees not to copyright such material . If the material is copyrighted, the County reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, and use such materials, in whole or in part , and to authorize others to do so. -5- SERVICE PLAN Contractor shall perform the following services: A. Sales Tax and Economic Anaiysis 1 . Contractor shall establish a special data base that identifies the name, address, and quarterly allocations of the 100. major sales tax producers as determined by amount of sales tax paid within Contra Costa County' s unincorporated area for the most current .and previous four quarters from the date of this Contract. Since 100% of the business outlets registered with the Board of Equalization are tracked monthly, the purpose of this major sales tax producers' data base shall be to highlight. the activities of major sales tax producers as defined above. A second data base covering the same time period shall be established showing total sales tax receipts for each business category , identified by the Board of Equalization.. These data bases shall . be utilized to generate special reports to the County . on: major sales tax producers.�by rank and category, analysis of sales tax activity by category and business districts or redevelopment areas specified by the County, analysis of reporting aberrations,. and per capita and outlet comparisons with state-wide sales . 2. Contractor shall provide up-dated reports each quarter identifying changes in sales by the major sales tax producers and by category; area growth and decline comparisons; and current graphics, tables, and top 100 listings . Quarterly aberrations due to State audits, fund:. . transfers, and receivables along with late or double payments shall be identified. 3 . Contractor shall provide an analysis for the County- to share with Chambers of Commerce and other economic development interest groups that analyze County sales tax trends by major groups 'and geographic areas without disclosing confidential information. 4 . Contractor shall provide annual reports for the .County identifying historical growth comparisons with state, County, selected county averages, and C.P . I . indices; top producer listings and makeup; and volatility of the economic base. Annual reconciliation worksheets to: assist County finance officers, -with budget forecasting shall also be provided. 5 . Contractor shall make available to County staff the HdL . DATA computer program and data base containing sellers permit information for all the County's unincorporated area businesses registered with the _ Board of Equalization. In addition, Contractor shall process the -monthly registration and allocation files provided by the Board of Equalization in magnetic media. Printouts of registration changes and dollars allocated by business name and number shall be . provided to the County from these files on a monthly basis. B. Allocation Audit and Recovery 1.. Contractor shall conduct an initial and on-going sales tax audit in order to identify and correct "point-of-sale" distribution errors and thereby generate previously unrealized sales tax income. Errors that shall be monitored and corrected include but are not limited to: transposition errors resulting in misallocations; erroneous consolidation of multiple outlets; misreporting of "point of sale" from the wrong location; delays in reporting new outlets; misidentifying transactions as a "use tax" rather than a "sales tax" ; and erroneous fund transfers and adjustments . Contractor shall conduct this audit for the major sales tax producers as defined in this Contract as well as for other . sales tax producers in the County's unincorporated areas for which errors are identified. 2. Contractor shall initiate contacts with the appropriate sales management and accounting officials in companies that have businesses where a probability of error exists to verify whether current tax receipts accurately reflect the local sales activity. Such contacts shall be conducted in a manner to encourage . local business- retention and expansion. 3 . Contractor shall prepare and submit to- the Board of Equalization all information necessary to correct any allocation errors that are identified and shall follow-up with. the individual businesses and the Board of Equalization to ensure that all back quarter payments due are recovered. 4 . If, during the course of its audit, Contractor finds businesses located in the County that are properly reporting sales tax but have the potential for modifying their operation to provide an even greater share to the County, Contractor shall work with those businesses and the County to encourage such changes . C. On-Going Consultation .Contractor shall -work with County staff on questions related to tenant mix alternatives for maximum sales tax .returns; advise County business license staff on utilization of reports to enhance business license collection efforts; provide sales tax projections on specific projects for redevelopment .negotiation and' County budget purposes; and provide sample reports, letters, and programs to enhance the sales tax base through improved economic development efforts . _2- D. Confidentiality Section 7056 of the California Revenue and Taxation Code specifically limits the disclosure of confidential taxpayer • information contained in the records of the Board of Equalization. This section specifies the conditions under which a county may authorize persons other than county officers and employees to examine State sales and use tax records . The following conditions specified in Section 7056(b) (1) of the California Revenue and Taxation Code are hereby made- part of this Contract. 1 . Contractor is authorized by this Contract to examine sales and use tax records of the Board of Equalization provided to the County pursuant to contract. under the Bradley-Burns Uniform Sales and Use Tax Law. 2. Contractor shall disclose information contained in, or derived from, those sales and use tax records only to officers or employees of the County who are .authorized by Board of Supervisors resolution to examine the information. 3 . Contractor is prohibited from retaining the information contained in, or derived from,. those sales and use tax records .after this Contract has expired. Information obtained by examination of Board of Equalization records shall be used only for purposes related to collection of local sales and use taxes or for other governmental functions of the County as set forth by Board of Supervisors resolution adopted pursuant ' to Section 7056(b) of the California Revenue and Taxation Code. The resolution shall designate Contractor as a person, authorize it to examine sales and . use tax records, and certify that this Contract meets the requirements set forth above and in Section 7056(b) (1) of the California Revenue and Taxation Code. 4 . Contractor is prohibited from performing consulting services for a retailer during the term of this Contract. E. Consideration 1 . Contractor shall establish the sales tax and audit data - bases and shall provide the monthly and quarterly updates referenced above for a fee of $800 . 00 per month, invoiced quarterly. 2 . Contractor shall additionally be paid 15% of the new sales and/or use tax revenue received by, the County during the first eight quarters following completion of that audit and recovery work, subject to conformation of corrections by -3- the Board of Equalization,'. which additional revenues area result of audit and recovery work performed by Contractor. The base shall be the average of the last four quarters of revenue, if any, received from a business prior to completion of Contractor's audit and recovery services . Contractor shall further be paid 15% of any revenue recovered for all back quarters provided that such recovered revenue is a result of audit and recovery work performed by Contractor. Contractor shall provide the County with an itemized quarterly invoice showing all formula calculations and amounts due, and the County shall pay such amounts as the County in its discretion determines are due on account of Contractor's work. Contractor shall obtain the County's approval prior to beginning the work of correcting tax reporting methodology or "point of sale" for specific businesses where payment of the percentage fee is expected. Said approval shall be granted by the County Administrator or .his designated representative on a Sales Tax Audit Work Authorization form, a copy of which is attached hereto as "Exhibit A. " The County shall pay the 15% fee upon Contractor' s submittal of evidence of state fund transfers and payments to the County from businesses identified in the audit and approval by the County. 3 . The above payments shall constitute full reimbursement to Contractor for all direct and indirect expenses incurred by Contractor in performing this Contract including but not limited to the salaries of Contractor's employees and travel expenses connected with contacting local. and out-of-state businesses and Board of Equalization representatives. F. County Materials and Support The County. shall adopt a resolution in a form acceptable to the Board of Equalization and in compliance with Section 7056 of the California Revenue and Taxation Code authorizing Contractor to examine the confidential sales tax records of the County. The County further. agrees to provide to Contractor any non- confidential information or assistance that may be readily available, such as names of businesses within the County and copies of the monthly sales tax allocation reports received from the Board of Equalization. G. Properties All documents, data, surveys, reports, and .other identified materials prepared by Contractor pursuant to this Contract shall be the property of the County. -4- 0 EXHIBIT A Sales Tax Audit . Work Authorization No. The . following business or businesses, located in the County of Contra Costa, have been identified as having the potential for generating additional. sales tax revenue to- the County of Contra Costa. Contractor is hereby 'authorized to contact the following business(es) and the Board of Equalization to verify the accuracy of the current reporting methodology and obtain the necessary documentation for the Board of Equalization to modify allocation formulas and to return previous misallocated revenue that may be due to the County. COUNTY OF CONTRA COSTA By: Date HINDERLITER, DE LLAMAS AND ASSOCIATES By: Date I : Qontr a Costa County Standard Form 1/87 PAM4ENT PROVISIONS (Fee Basis Contracts) Number 1. Payment Amounts. Subject to the Payment Limit of this Contract and subject to the following Payment Provisions, County will pay Contractor the following fee a:; full compensation for all services, work, expenses or costs provided or incurred by Contractor: [Check one alternative only. ] I ] a. $ monthly, or [ ] b. $ per unit, as defined in the Service Plan, or [ ] c. $ , after completion of all obligations and cond iti ons 'herein. [x[ d. See Service Plan. 2. Payment Demands. Contractor shall submit written demands. Said demands shall be made on County Demand Form D-15 and in the manner and form prescribed by County. Contractor shall submit said demands for payment no later than 30 days from the end of the month in which the contract services upon which such demand is based were actually rendered. Upon approval of said payment demands by the head of the County , Department for which this Contract is made, or his designee, County will make payments as specified in Paragraph 1. (Payment Amounts) above. 3. Right to Withhold. County has the right to withhold payment to the Contractor when, in the opinion of the County expressed in writing to the Contractor, (a) the Contractor's performance, in whole or in part, either has not been carried out or is insufficiently documented, (b) the Contractor has neglected, failed or refused to furnish information or to cooperate with any inspection, review or audit of its program, work or records, or (c) Contractor has failed to sufficiently itemize or document its demand(s) for payment . 4. Audit Exceptions. Contractor agrees to accept responsibility for receiving, reply- ing to, and/or complying with any audit exceptions by appropriate County, State or Federal audit agencies .occurring as a result of its performance of this Contract. Contractor also agrees to pay to the County within 30 days of demand by County the full amount of the County's obligation, if any, to the State and/or Federal government resulting from any audit exceptions, to the extent such are attributable to the Contractor's failure to perform properly any: of. its obligations under this Contract. Initials: Contractor County Dept.