Loading...
HomeMy WebLinkAboutItem 15 - HDL Coren Cone Agreement - SRCity Council Agenda Report City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 www.lake-elsinore.org File Number: ID# 22-207 Agenda Date: 5/25/2022 Status: Approval FinalVersion: 1 File Type: Successor Consent Calendar In Control: City Council / Successor Agency Agenda Number: 15) Professional Services Agreement with HDL Coren & Cone for Property Tax Management, Information, and Audit Services Approve and authorize the Executive Director to execute and implement an agreement with HDL Coren & Cone, to provide property tax management, secured and unsecured parcels audits, assessment district processing, budget projections, Successor Agency services, and bond fiscal analysis in an annual amount not to exceed $100,000.00 and in such final form as approved by the Agency Council. Page 1 City of Lake Elsinore Printed on 5/19/2022 REPORT TO SUCCESSOR AGENCY BOARD OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE To: Honorable Agency Chairman and Members of the Successor Agency From: Jason Simpson, Executive Director Prepared by: Nancy Lassey, Finance Manager Date: May 25, 2022 Subject: Professional Services Agreement with HDL Coren & Cone for Property Tax Management, Information, and Audit Services Recommendation Approve and authorize the Executive Director to execute and implement an agreement with HDL Coren & Cone, to provide property tax management, secured and unsecured parcels audits, assessment district processing, budget projections, Successor Agency services, and bond fiscal analysis in an annual amount not to exceed $100,000.00 and in such final form as approved by Agency Counsel. Background HDL Coren & Cone has been the consultant to the Successor Agency to the Redevelopment Agency regarding property tax project area projections and reporting, tax distributions, required obligations, cash flows and Recognized Obligations Payment Schedule (ROPS) funding requests. Discussion HDL Coren & Cone property tax management, information and audit services are a critical component to the Successor Agency’s implementation of its enforceable obligations and its reporting and auditing requirements under the Redevelopment Dissolution Law. The Successor Agency’s efforts require a great deal of emphasis on ensuring that its obligations are accurately calculated and that future revenue is accurately forecasted. Property tax management, audit, and recovery of services are specialized in nature and require an in-depth knowledge of local and state government operations and legislation. Staff recommends the continuation of this partnership with HDL for another three years. HDL Coren & Cone May 25, 2022 Page 2 Fiscal Impact The agreement with HDL is for an annual fee of $20,145. On-going consultation fees are billed at hourly rates as shown in Exhibit A. Total billing within a year may vary based on the City’s need; however, Staff estimates that the annual billing will not exceed $100,000 per fiscal year. The billings related to the Successor Agency will be funded through the required obligations requests. Exhibits A – HDL Coren & Cone Scope of Services B – HDL Coren & Cone Agreement Successor Agency City of Lake Elsinore – April 19, 2022 PROPERTY TAX MANANGEMENT, INFORMATION AND AUDIT SERVICES SCOPE OF SERVICES Services provided include property tax management service, secured and unsecured parcel audits, assessment district processing, budget projections, Successor Agency support, and bond fiscal analysis. Reports and Management Analyses (1) The company will provide the following reports. Reports are also available from prior years if required. •A five-year history of the values within the city, successor agency and custom (city defined) geographic area; •A listing of the largest value changes, positive and negative between tax years; •A listing of the major property owners, including the assessed value of their property and property use code designation; •A listing of the major property tax payers, including an estimate of the property taxes; •A listing of property tax transfers which occurred since the lien date ordered by month; •A multiple year comparison of growth by use code designation over a 10-year period; •Calculate an estimate of property tax revenue anticipated to be received for the fiscal year based upon the initial information provided by the County and subject to modification. This report is interactive for tax modeling. This estimate shall not be used to secure the indebtedness of the City/Agency. •Property sales information, and Proposition 8 exposure and recapturing potential •Budget forecasting model for 1 and 5-year projections for General Fund, Successor Agency and VLF In Lieu Revenues. (1)Reports are based upon property tax information obtained from your county and supplemented by additional information from third parties. Some reports are dependent upon the availability of county data in electronic format. Successor Agency City of Lake Elsinore – April 19, 2022 Successor Agency Services Successor Agency Services including but not limited to: •Tax increment projections by project area and for the Successor Agency •Cash flows for the Successor Agency as requested •Assistance with Redevelopment Obligation Payment Schedules as requested (additional charges may be required) •Estimates of property tax revenues to be received by the City as requested •Monitor the County distribution of tax-sharing revenues to the City and to taxing entities of the former redevelopment agency •Coordinate as necessary with the Auditor-Controller the relationship between the tax- sharing, debt service and other obligations of former redevelopment agency Monthly/Quarterly Reports and System Updates •A listing of property tax appeals filed on properties in the City where data is available for purchase from the Clerk of the Board. •A listing of property transfers that have occurred since the last report will be available through the software provided and updated on a monthly basis. Web-Based Software •The HdLCC provides a web-based software application to clients as a user-friendly tool to access the City’s property tax data. HdLCC provides updates to the data portion of the product on monthly basis to reflect changes in ownership, updated appeals filings, and deed recordings. •As modifications and enhancements are made to the program, clients receive the enhanced version of the software at no additional cost. Training will be provided to city/agency staff within the first two months after the execution of the agreement for property tax management and audit services and is available annually for new staff members or staff requiring a refresher course. If additional training sessions are required, the fees in the compensation section under hourly fees will be charged. Successor Agency City of Lake Elsinore – April 19, 2022 Identification and Correction of Errors HdL Coren & Cone has the technology, methodology and trained staff to analyze all secured parcels within the City to identify costly errors resulting in the misallocation of property taxes. The company audits the secured and unsecured property tax rolls to ensure that each is coded to the appropriate taxing entity. The company performs an analysis of the Assessor Rolls to identify all parcels on both the secured and unsecured tax rolls and verify that parcel assessed valuations and the resulting taxes are correctly allocated to the City. This analysis is accomplished through the use of specialized computer software, GIS maps, assessor maps, city maps, city records, other pertinent documents, and field investigations. Fee for Services CONTRACTOR shall provide the Base Services described above, for a fixed annual fee of $20,145 (invoiced quarterly). The Base Fixed Fee shall be adjusted annually by the California Consumer Price Index (CCPI) for all items as determined by the California Department of Industrial Relations as measured February to February by the California All Urban Consumers index. Successor Agency City of Lake Elsinore – April 19, 2022 On-Going Consultation During the term of the contract, we serve as the resource staff to the County or agency on questions relating to property tax. This includes being "on-call" to assist with any property tax issues. On-going consultation would include, but not be limited to inquiries resolved through use of the City data base. All requests for information based upon the County’s property tax data sets are provided without additional costs. Special reports, additional research, or requests requiring additional computer programming may entail some additional costs. Attendance at City and/or Successor Agency meetings will be billed at our hourly rates. Fees for Optional Services shall be billed at the following hourly rates: Partner $250 per hour Principal $225 per hour Programmer $200 per hour Associate $175 per hour Senior Analyst $125 per hour Analyst $ 90 per hour Administrative $ 70 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/Agency with an updated schedule of hourly rates. The rates will not be increased by more than five percent (5%) per year. Identification and Correction of Errors Fees for the identification and correction of errors are on a contingent basis, CONTRACTOR shall receive 25 percent of general fund or tax increment property tax revenue or other revenues attributable to City 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/Agency with an itemized invoice showing all amounts due as a result of revenue recovery or reallocation. City/Agency shall pay audit fees after Contractor's submittal of evidence that corrections have been made by the appropriate agency. Payment to CONTRACTOR shall be made within thirty (30) days Successor Agency City of Lake Elsinore – April 19, 2022 after City receives its first remittance advice during the fiscal year for which the correction applies. HdL Coren & Cone 120 S State College Boulevard, Suite 200 Brea, California 92821 714.879.5000 @BCL@FC1C03C7 Page 1 AGREEMENT FOR PROFESSIONAL SERVICES HdL COREN & CONE PROPERTY TAX MANAGEMENT, INFORMATION, AND AUDIT SERVICES This Agreement for Professional Services (the “Agreement”) is made and entered into as of July 1, 2022, by and between the Successor Agency, a municipal corporation (‘‘Agency") and HdL Coren & Cone, a Corporation ("Consultant"). RECITALS A. The Agency has determined that it requires the following professional services: Property tax management, secured and unsecured parcel audits, assessment district processing, budget projections, Successor Agency support, and bond fiscal analysis. B. Consultant has submitted to Agency a proposal, dated April 19, 2022, attached hereto as Exhibit A (“Consultant’s Proposal”) and incorporated herein, to provide professional services to Agency pursuant to the terms of this Agreement. C. Consultant possesses the skill, experience, ability, background, certification and knowledge to perform the services described in this Agreement on the terms and conditions described herein. D. Agency desires to retain Consultant to perform the services as provided herein and Consultant desires to provide such professional services as set forth in this Agreement. AGREEMENT 1. Scope of Services. Consultant shall perform the services described in Consultant’s Proposal (Exhibit A). Consultant shall provide such services at the time, place, and in the manner specified in Consultant’s Proposal, subject to the direction of the Agency through its staff that it may provide from time to time. 2. Time of Performance. a. Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the professional services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the professional services contemplated pursuant to this Agreement according to the agreed upon performance schedule in Consultant’s Proposal (Exhibit A). b. Performance Schedule. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the Consultant’s Proposal (Exhibit A). When requested by Consultant, extensions to the time period(s) specified may be approved in writing by the Executive Director. Page 2 c. Term. Unless earlier terminated as provided elsewhere in this Agreement, this Agreement shall continue in full force and effect for a period commencing on July 1, 2022 and ending June 30, 2025. The Agency may, at its sole discretion, extend the term of this Agreement on a 12-month basis not to exceed 2 additional twelve (12) month renewal terms by giving written notice thereof to Consultant not less than thirty (30) days before the end of the contract term, such notice to be exercised by the Executive Director. 3. Compensation. Compensation to be paid to Consultant shall be in accordance with the fees set forth in Consultant's Proposal (Exhibit A), which is attached hereto and incorporated herein by reference. In no event shall Consultant's annual compensation exceed One Hundred Thousand Dollars ($100,000.00) without additional written authorization from the Agency. Notwithstanding any provision of Consultant's Proposal to the contrary, out of pocket expenses set forth in Exhibit A shall be reimbursed at cost without an inflator or administrative charge. Payment by Agency under this Agreement shall not be deemed a waiver of defects, even if such defects were known to the Agency at the time of payment. The compensation paid to Consultant may be adjusted on each July 1 following the first anniversary of the commencement of the term of this Agreement, provided that the request for cost of living adjustment shall be present ed to the Agency no later than June 1st of a particular year and, if approved by the Agency, will become effective on July 1st of that year. Any adjustment will be based on the Riverside – San Bernardino - Ontario All Urban Consumers Price Index (CPI) but in no event shall the price adjustment exceed five percent (5%). 4. Method of Payment. Consultant shall promptly submit billings to the Agency describing the services and related work performed during the preceding quarter to the extent that such services and related work were performed. Consultant’s bills shall be segregated by project task, if applicable, such that the Agency receives a separate accounting for work done on each individual task for which Consultant provides services. Consultant’s bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. Agency shall pay Consultant no later than forty-five (45) days after receipt of the quarterly invoice by Agency staff. 5. Background Checks. At any time during the term of this Agreement, the Agency reserves the right to make an independent investigation into the background of Consultant’s personnel who perform work required by this Agreement, including but not limited to their references, character, address history, past employment, education, social security number validation, and criminal or police records, for the purpose of confirm ing that such personnel are lawfully employed, qualified to provide the subject service or pose a risk to the safety of persons or property in and around the vicinity of where the services will be rendered or City Hall. If the Agency makes a reasonable determination that any of Consultant’s prospective or then current personnel is deemed objectionable, then the Agency may notify Consultant of the same. Consultant shall not use that personnel to perform work required by this Agreement, and if necessary, shall replace him or her with a suitable worker. 6. Suspension or Termination. a. The Agency may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of such notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the Page 3 Agency suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. b. In the event this Agreement is terminated pursuant to this Section, the Agency shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the Agency. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the Agency, pursuant to Section entitled “Method of Payment” herein. 7. Plans, Studies, Documents. a. Ownership of Documents. All plans, studies, documents and other writings prepared by and for Consultant, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notepad internal documents, shall become the property of the Agency upon payment to Consultant for such work, and the Agency shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant’s expense, provide such reports, plans, studies, documents and other writings to Agency upon written request. Agency shall have sole determination of the public’s rights to documents under the Public Records Act, and any third-party requests of Consultant shall be immediately referred to Agency, without any other actions by Consultant. b. Licensing of Intellectual Property. This Agreement creates a nonexclusive and perpetual license for Agency to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require that all subcontractors agree in writing that Agency is granted a nonexclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the Agency. Agency shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at Agency’s sole risk. c. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Agency, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Agency’s name or insignia, photographs relating to project for which Consultant’s services are rendered, or any publicity pertaining to the Consultant’s services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Agency. Page 4 8. Consultant’s Books and Records. a. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to Agency for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. b. Consultant shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the Executive Director, Agency Council, Agency Auditor or a designated representative of these officers. Copies of such documents shall be provided to the Agency for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant’s address indicated for receipt of notices in this Agreement. d. Where Agency has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant’s business, Agency may, by written request by any of the above-named officers, require that custody of the records be given to the Agency and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant’s representatives, or Consultant’s successor-in-interest. 9. Independent Contractor. a. Consultant is and shall at all times remain as to the Agency a wholly independent contractor pursuant to California Labor Code Section 3353. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither Agency nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the Agency. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatsoever against Agency, or bind Agency in any manner. b. Notwithstanding any other federal, state and local laws, codes, ordinances and regulations to the contrary and except for the fees paid to Consultant as provided in the Agreement, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by Agency, including but not limited to eligibility to enroll in PERS as an employee of Agency and entitlement to any contribution to be paid by Agency for employer contribution and/or employee contributions for PERS benefits. 10. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the Agency, Consultant Page 5 shall indemnify, defend, and hold harmless Agency for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of Agency. 11. Interests of Consultant. Consultant (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant’s services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant: a. will conduct research and arrive at conclusions with respect to his/her rendition of information, advice, recommendation or counsel independent of the control and direction of the Agency or of any Agency official, other than normal agreement monitoring; and b. possesses no authority with respect to any Agency decision beyond rendition of information, advice, recommendation or counsel. (FPPC Reg. 18700(a)(2).) 12. Professional Ability of Consultant. Agency has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant’s field of expertise. 13. Compliance with Laws. a. Consultant shall comply with all local, state and federal laws and regulations applicable to the services required hereunder, including any rule, regulation or bylaw governing the conduct or performance of Consultant and/or its employees, officers, or board members. b. Consultant represents that it has obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for performing the services described in this Agreement, including a City business license. 14. Licenses. Consultant represents and warrants to Agency that it has the licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Consultant to practice its profession. Consultant represents and warrants to Agency that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Consultant to practice its profession. Consultant shall maintain a City of Lake Elsinore business license. Page 6 15. Indemnity. Consultant shall indemnify, defend, and hold harmless the Agency and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from the sole negligence or willful misconduct of the Agency or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by Agency of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. 16. Insurance Requirements. a. Insurance. Consultant, at Consultant’s own cost and expense, shall procure and maintain, for the duration of the contract, unless modified by the Agency’s Risk Manager, the following insurance policies. i. Workers’ Compensation Coverage. Consultant shall maintain Workers’ Compensation Insurance and Employer’s Liability Insurance for his/her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California for all of the subcontractor’s employees. Any notice of cancellation or non-renewal of all Workers’ Compensation policies must be received by the Agency at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against Agency, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for Agency. In the event that Consultant is exempt from Worker’s Compensation Insurance and Employer’s Liability Insurance for his/her employees in accordance with the laws of the State of California, Consultant shall submit to the Agency a Certificate of Exemption from Workers Compensation Insurance in a form approved by the Agency Council. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance 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. Required commercial general liability coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 Page 7 covering Broad Form Comprehensive General Liability. No endorsement may be attached limiting the coverage. iii. Automobile Liability Coverage. Consultant shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence. Automobile liability coverage must be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 (“any auto”). No endorsement may be attached limiting the coverage. iv. Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability insurance appropriate for Consultant’s profession for protection against claims alleging negligent acts, errors or omissions which may arise from Consultant’s services under this Agreement, whether such services are provided by the Consultant or by its employees, subcontractors, or sub consultants. The amount of this insurance shall not be less than one million dollars ($1,000,000) on a claims-made annual aggregate basis, or a combined single limit per occurrence basis. b. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best’s rating of no less than A:VII and shall be endorsed with the following specific language: i. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers’ Compensation, shall bear an endorsement whereby it is provided that, the Agency and its officers, employees, servants, volunteers and agents and independent contractors, including without limitation, the Executive Director and Agency Council, are named as additional insureds. Additional insureds shall be entitled to the full benefit of all insurance policies in the same manner and to the same extent as any other insureds and there shall be no limitation to the benefits conferred upon them other than policy limits to coverages. ii. This policy shall be considered primary insurance as respects the Agency, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the Agency, including any self-insured retention the Agency may have, shall be considered excess insurance only and shall not contribute with it. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against the Agency, its elected or appointed officers, officials, employees or agents. v. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Agency, its elected or appointed officers, officials, employees, agents or volunteers. Page 8 vi. The insurance provided by this Policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the Agency. c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the Agency. At the Agency’s option, Consultant shall demonstrate financial capability for payment of such deductibles or self-insured retentions. d. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to Agency as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the Agency on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the Agency at all times during the term of this Agreement. 17. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to Agency: City of Lake Elsinore Attn: Executive Director 130 South Main Street Lake Elsinore, CA 92530 With a copy to: City of Lake Elsinore Attn: Agency Secretary 130 South Main Street Lake Elsinore, CA 92530 If to Consultant: HdL Coren & Cone Attn: Paula Cone 120 S. State College Blvd, Suite 200 Brea, CA 92821 18. Assignment and Subcontracting. The parties recognize that a substantial inducement to Agency for entering into this Agreement is the professional reputation, experience and competence of Consultant and the subcontractors listed in Exhibit B. Consultant shall be fully responsible to Agency for all acts or omissions of any subcontractors. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express consent of the Agency. Consultant shall not subcontract any portion of the work to be performed under this Agreement except as provided in Exhibit B without the written authorization of the Agency. If Agency consents to such subcontract, Consultant shall be fully responsible to Agency for all acts or omissions of those subcontractors. Nothing in this Agreement shall create any contractual relationship between Agency and any subcontractor nor shall it create any obligation on the part of the Agency to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 19. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. Page 9 20. Litigation Expenses and Attorneys’ Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys’ fees. 21. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and share the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 22. Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Agency shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of Agency, during the term of his or her service with Agency, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 23. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24. Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" proj ects. Consultant agrees to fully comply with all applicable federal and state labor laws (including, without limitation, if applicable, the Prevailing Wage Laws). It is agreed by the parties that, in connection with the Work or Services provided pursuant to this Agreement, Consultant shall bear all risks of payment or non-payment of prevailing wages under California law, and Consultant hereby agrees to defend, indemnify, and hold the Agency, and its officials, officers, employees, agents, and volunteers, free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. The foregoing indemnity shall survive termination of this Agreement. 25. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. Page 10 26. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. 27. Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. The Executive Director authorized to enter into an amendment or otherwise take action on behalf of the Agency to make the following modifications to the Agreement: (a) a name change; (b) grant extensions of t ime; (c) non- monetary changes in the scope of services; and/or (d) suspend or terminate the Agreement. 28. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 29. Entire Agreement; Incorporation; Conflict. This Agreement contains the entire understanding between the parties relating to the obligations described herein. All prior or contemporaneous understandings, agreements, representations and statements, oral or written, are superseded in total by this Agreement and shall be of no further force or effect. Consultant’s Proposal is incorporated only for the description of the scope of services and/or the schedule of performance and no other terms and conditions from such proposal shall apply to this Agreement unless specifically agreed to in writing. In the event of conflict, this Agreement shall take precedence over those contained in the Consultant’s Proposal. 30. Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and Agency and approved as to form by the Agency Council. [Signatures on next page] Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above. “AGENCY” CITY OF LAKE ELSINORE, a municipal corporation Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: Agency Council Assistant Executive Director “CONSULTANT” HdL Coren & Cone, a Corporation By: Paula Cone Its: President Attachments: Exhibit A – Consultant’s Proposal Exhibit B – List of Subcontractors EXHIBIT A EXHIBIT A CONSULTANT’S PROPOSAL [ATTACHED] EXHIBIT B EXHIBIT B LIST OF SUBCONTRACTORS [ATTACHED]