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HomeMy WebLinkAbout1996-03-05; City Council; Resolution 96-781 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 l? 18 19 20 21 22 23 24 25 26 27 28 e rn RESOLUTION NO. 96-78 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO ENTER INTO AN AGREEMENT WITH MUNICIPAL RESOURCE CONSULTANTS WHEREAS, the California Revenue and Taxation Code Section 19556 requires the City of Carlsbad to annually furnish the Franchise Tax Board with specified business tax information on all businesses subject to the tax; and WHEREAS, California Government Code Section 17561 provides that the State Controller’s Office reimburse cities for certain costs incurred for state- mandated local programs. City-incurred costs that are eligible for such reimbursement include administrative, operational and related costs which are reasonably necessary to implement and maintain a Franchise Tax Board compliance program; and WHEREAS, Municipal Resource Consultants developed an FTB- approved business license reporting system and information service which will provide data on City of Carlsbad businesses; and WHEREAS, Municipal Resource Consultants is the only firm known to provide desired services; and WHEREAS, staff believes our needs can best be met by the services offered by Municipal Resource Consultants. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California as follows: 1. That the above recitations are true and correct. Ill /I/ Ill 1 2 3 # 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I) e 2. That the Mayor is hereby authorized to execute the attached Agreement between the City of Carlsbad and Municipal Resource Consultants, a partnership of John T. Austin, Inc. and Allen W. Charkow, Inc. to provide business license consulting services. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council on the 5th day of MARCH , 1996, by the following vote, to wit: AYES: Council Members Lewis, Nygaard, Finnila, Hall NOES: None ABSENT: Council Member ATTEST: (SEAL) e e AGREEMENT THIS AGREEMENT, made and entered into as of the 7th day of MARCH , 19s by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to 2 'City", and Municipal Resource Consultants, a partnership of John T. Austin, Inc. and Allen V Charkow, Inc., herein after referred to as "Contractor." RECITALS City requires the services of a business license management service Contractor to provid the necessary consulting services for preparation of business license inventory management an reports to the State of California; and Contractor possesses the necessary skills and qualification to provide the services required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants containec herein, City and Contractor agree as follows: 1. CONTRACTOR'S OBLIGATIONS The Contractor will provide a business inventory management service under the Busines: License Information Service (BLIS) program described in Exhibit "A to this Agreement. Contractor will develop and maintain a computerized inventory of businesses operating in the City and produce business license information for State-mandated reporting. The optional Busines: License Administration Service is not authorized by City. 2. CITY OBLIGATIONS The City shall provide a monthly listing on electronic media of all businesses currently registered with the City. The City shall submit claims to the State of California for City's estimated and actual costs of complying with mandated business license reporting requirements. rev. 1 0/16/95 e !P 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (I 0) days after receipt of notification tl proceed by the City and be completed by the State mandate reporting deadline of March 3 each fiscal year. Extensions of time may be granted if requested by the Contractor and agreec to in writing by the Finance Director. The Finance Director will give allowance for documentec and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight o the part of the Contractor, or delays caused by City inaction or other agencies' lack of time1 action. 4. FEES TO BE PAID TO CONTRACTOR The total annual fee payable for the services to be performed shall be $65,443.00. N other compensation for services will be allowed except those items covered by supplement: agreements per Paragraph 8, "Changes in Work." The City reserves the right to withhold a te percent (10%) retention until the project has been accepted by the City. 5. DURATION OF CONTRACT This Agreement shall extend for a period of three (3) years from date thereof. Th contract may be extended by the City Manager for two (2) additional one (1) year periods c parts thereof, based upon a review of satisfactory performance and the City's needs. The partie shall prepare extensions in writing indicating effective date and length of the extended contrac 6. PAYMENT OF FEES Payment will be made to the Contractor upon submission of the mandated report to th State and satisfactory installation and implementation of the business license inventory at th City. However, no payment will be made until City has been paid by the State. In the event thi the State Controller's Office should make incremental payments to City, the amount du Contractor from each payment shall be in proportion to the cost of Contractor services as rev. 10/16/5 2 0 m relates to the total amount of City business license mandated clqim. Contractor shall be notific by City of State payment(s) in a timely manner. Payment of approved items on the invoice sh; be mailed to the Contractor prior to the last day of the month the invoice was submitted. 7. FINAL SUBMISSIONS Contractor shall deliver mandated City business license information to the State by Marc 31 of each year. Within 60 days of completion and approval of the Agreement the Contract( shall deliver to the City the following items: first monthly report of business license inventory fc City; installation of the business license inventory on City computer(s); training of City employee: other BLlS services as described in Exhibit "A." 8. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Contractor or the City, an informal consultations with the other party indicate that a change in the conditions of the contra( is warranted, the Contractor or the City may request a change in contract. Such changes sha be processed by the City in the following manner: A letter outlining the required changes shs be forwarded to the City by Contractor to inform them of the proposed changes along with statement of estimated changes in charges or time schedule. A Standard Amendment t Agreement shall be prepared by the City and approved by the City according to the procedure: described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to Agreement sha not render ineffective or invalidate unaffected portions of the Agreement. 9. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained any company o person, other than a bona fide employee working for the Contractor, to solicit or secure thi Agreement, and that Contractor has not paid or agreed to pay any company or person, othe than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any othe rev. 10/16/9! 3 e e consideration contingent upon, or resulting from, the award or making of this Agreement. Fc breach or violation of this warranty, the City shall have the right to annul this Agreement withoi liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwis recover, the full amount of such fee, commission, percentage, brokerage fees, gift, or contingei fee. IO. NONDlSCRlMlNATlON CLAUSE The Contractor shall comply with the State and Federal laws regarding nondiscriminatior 11. TERMINATION OF CONTRACT In the event of the Contractor’s failure to prosecute, deliver, or perform the work a provided for in this contract, the City may terminate this contract for nonperformance by notifyin the Contractor by certified mail of the termination of the Contractor. The Contractor, thereupor has five (5) working days to deliver said documents owned by the City and all work in progres to the Finance Director. The Finance Director shall make a determination of fact based upon th documents delivered to City of the percentage of work which the Contractor has performed whicl is usable and of worth to the City in having the contract completed. Based upon that finding a: reported to the City Manager, the Manager shall determine the final payment of the contract. This Agreement may be terminated by either party upon tendering thirty (30) days writtei notice to the other party. In the event of such suspension or termination, upon request of thl City, the Contractor shall assemble the work product and put same in order for proper filing anc closing and deliver said product to City. In the event of termination, the Contractor shall be paic for work performed to the termination date; however, the total shall not exceed the lump sum fet payable under paragraph 4. The City shall make the final determination as to the portions o tasks completed and the compensation to be made. rev.1 0/16/9! 4 e rn 12. DISPUTES If a dispute should arise regarding the performance of work under this Agreement, th following procedure shall be used to resolve any question of fact or interpretation not otherwis settled by Agreement between parties. Such questions, if they become identified as a part of dispute among persons operating under the provisions of this contract, shall be reduced tl writing by the principal of the Contractor or the City Finance Director. A copy of' SUC documented dispute shall be forwarded to both parties involved along with recommende methods of resolution which would be of benefit to both parties. The City Finance Director c principal receiving the letter shall reply to the letter along with a recommended method c resolution within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggrieve paw, a letter outlining the dispute shall be forwarded to the City Council for their resolutioi through the Office of the City Manager. The City Council may then opt to consider the directec solution to the problem. In such cases, the action of the City Council shall be binding upon thc parties involved, although nothing in this procedure shall prohibit the parties seeking remedie available to them at law. 13. CLAIMS AND LAWSUITS The Contractor shall agree that any contract claim submitted to the City must be assertec as part of the contract process as set forth in this Agreement and not in anticipation of litigatior or in conjunction with litigation. The Contractor acknowledges that if a false claim is submittec to the City, it may be considered fraud and the Contractor may be subject to crimina prosecution. The Contractor acknowledges that California Government Code sections 12650 g seq., the False Claims Act, provides for civil penalties where a person knowingly submits a falsc claim to a public entity. These provisions include false claims made with deliberate ignorance 01 the false information or in reckless disregard of the truth or falsity of information. If the City ol rev. 10/16/95 5 0 m ~ Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney’s fees. The Contractor shall acknowledge that the filing of i false claim may subject the Contractor to an administrative debarment proceeding wherein thc Contractor may be prevented to act as a Contractor on any public work or improvement for i The provisions of arlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 anc period of up to five year (Initial) (Initial) w fF 3.32.028 pertaining to false claims are incorporated herein by reference. 14. STATUS OF THE CONTRACTOR The Contractor shall perform the services provided for herein in Contractor’s own way a an independent Contractor and in pursuit of Contractor’s independent calling, and not as a employee of the City. Contractor shall be under control of the City only as to the result to b accomplished, but shall consult with the City as provided for in the request for proposal. Th persons used by the Contractor to provide services under this Agreement shall not be considere( employees of the City for any purposes whatsoever. The Contractor is an independent Contractor of the City. The payment made to th Contractor pursuant to the contract shall be the full and complete compensation to which th Contractor is entitled. The City shall not make any federal or state tax withholdings on behalf c the Contractor or his/her employees or subcontractors. The City shall not be required to pay an workers’ compensation insurance or unemployment contributions on behalf of the Contractor ( his/her employees or subcontractors. The Contractor agrees to indemnify the City within 30 daq for any tax, retirement contribution, social security, overtime payment, unemployment paymei or workers’ compensation payment which the City may be required to make on behalf of tt- Contractor or any employee or subcontractor of the Contractor for work done under th rev. 1 0/16/! 6 e m Agreement or such indemnification amount may be deducted by the City from any balance owinc to the Contractor. The Contractor shall be aware of the requirements of the Immigration Reform and Contrc Act of 1986 and shall comply with those requirements, including, but not limited to, verifying th eligibility for employment of all agents, employees, subcontractors and Consultants that arc included in this Agreement. 15. CONFORMITY TO LEGAL REQUIREMENTS The Contractor shall cause all drawings and specifications to conform to all applicabli requirements of law: federal, state and local. Contractor shall provide all necessary supportini documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. 16. OWNERSHIP OF DOCUMENTS All plans, studies, sketches, drawings, reports, and specifications as herein required art the property of the City, whether the work for which they are made be executed or not. In tht event this contract is terminated, all documents, plans, specifications, drawings, reports, an( studies shall be delivered forthwith to the City. Contractor shall have the right to make one (I copy of the plans for his/her records. 17. REPRODUCTION RIGHTS The Contractor agrees that all copyrights which arise from creation of the work pursuan to this contract shall be vested in City and hereby agrees to relinquish all claims to suct copyrights in favor of City. 18. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses rev.1 0/16/9E 7 e W including attorney fees arising out of the performance of the work described herein caused I whole or in part by any negligent act or omission of the contractor, any subcontractor, anyor directly or indirectly employed by any of them or anyone for whose acts any of them may I: liable, except where caused by the active negligence, sole negligence, or willful misconduct I the City of Carlsbad. Contractor shall at its own expense, upon written request by the City, defend any SUC suit or action brought against the City, its officers, officials, employees or volunteers. Contractor indemnification of City shall not be limited by any prior or subsequent declaration by tb Contractor. 19. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies du thereunder without the prior written consent of the City. 20. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contra1 by the Contractor, Contractor shall be fully responsible to the City for the acts and omissions ( Contractor’s subcontractor and of the persons either directly or indirectly employed by th subcontractor, as Contractor is for the acts and omissions of persons directly employed k Contractor. Nothing contained in this contract shall create any contractual relationship betwes any subcontractor of Contractor and the City. The Contractor shall bind every subcontractor an every subcontractor of a subcontractor by the terms of this contract applicable to contractor’ work unless specifically noted to the contrary in the subcontract in question approved in writin by the City. rev. 10/16/6 8 m 21. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to negotiatc make, accept, or approve, or take part in negotiating, making, accepting, or approving of thi Agreement, shall become directly or indirectly interested personally in this contract or in any pa thereof. No officer or employee of the City who is authorized in such capacity and on behalf ( the City to exercise any executive, supervisory, or similar functions in connection with th performance of this contract shall become directly or indirectly interested personally in thi contract or any part thereof. 22. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the Cit) either before, during or after the execution of this contract, shall affect or modify any of the term or obligations herein contained nor entitle the Contractor to any additional payment whatsoeve under the terms of this contract. 23. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terms conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, an( each of their respective heirs, executors, administrators, successors, and assigns. 24. EFFECTIVE DATE This Agreement shall be effective on and from the day and year first written above. 25. CONFLICT OF INTEREST The City has determined, using the guidelines of the Political Reform Act and the City': confict of interest code, that the Contractor will not be required to file a conflict of interes statement as a requirement of this agreement. However, Contractor hereby acknowledges tha rev. 10/16/9f 9 0 W Contractor has the legal responsibility for complying with the Political Reform Act and nothin in this agreement releases Contractor from this responsibility. 26. INSURANCE The Contractor shall obtain and maintain for the duration of the contract and any and i amendments insurance against claims for injuries to persons or damage to property which ma arise out of or in connection with performance of the work hereunder by the Contractor, hi agents, representatives, employees or subcontractors. Said insurance shall be obtained fror an insurance carrier admitted and authorized to do business in the State of California. Thl insurance carrier is required to have a current Best’s Key Rating of not less than “A-:VI and sha meet the City’s policy for insurance as stated in Resolution No. 91-403. A. Coverages and Limits. Contractor shall maintain the types of coverages and minimum limits indicatec herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If the submittec policies contain aggregate limits, general aggregate limits shall apply separately to the worl under this contract or the general aggregate shall be twice the required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for Contractor’: work for the City). $1,000,000 combined single-limit per accident for bodily injury and propertj damage. 3. Workers’ Compensation and Employer’s Liability. Workers’ Compensatior limits as required by the Labor Code of the State of California and Employer’s Liability limits o $1,000,000 per accident for bodily injury. rev.1 0/16/95 10 0 W B. Additional Provisions. Contractor shall ensure that the policies of insurance required under thi Agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excludin Workers’ Compensation. 2. The Contractor shall furnish certificates of insurance to the city befor commencement of work. 3. 4. The Contractor shall obtain occurrence coverage. This insurance shall be in force during the life of the Agreement and an extension thereof and shall not be canceled without 30 days prior written notice to the City ser by certified mail. 5. If the Contractor fails to maintain any of the insurance coverages require herein, then the City will have the option to declare the Contractor in breach, or may purchas replacement insurance or pay the premiums that are due on existing policies in order that th required coverages may be maintained. The Contractor is responsible for any payments mad by the City to obtain or maintain such insurance and the City may collect the same from th Contractor or deduct the amount paid from any sums due the Contractor under this Agreemen rev. 1 0/16/9 11 0 W 27. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive writte notice on behalf of the City and on behalf of the Contractor in connection with the foregoing ar as follows: For City: Title: Finance Director Name: Lisa Hildabrand Address: 1200 Carlsbad Villaae Drive Carlsbad, California 92008 For Contractor: Title: Partner Name: John T. Austin Address: 321 07 W. Lindero Canyon Rd., Suite 23 Westlake Villaqe, California 91 361 28. BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duratio of the contract. 29. LICENSING AGREEMENT Subject to the terms and conditions set forth in this Agreement, Contractor shall provic to the City a license to use Contractor's software, database, and other property (hereafter referre to as "Property") as further described in Exhibit "A." Contractor shall provide said Property at tt time, place, and in the manner specified in Exhibit "A." Said Property shall only be used by the City. The City shall not sublet, duplicate, ( modify said Property. Said Property may only be used for the purposes described in Exhibit "P rev. 1 0/16/! 12 a 0 $ Said Property shall be returned to Contractor at the time the license expires. Contractor ma terminate the license, at its sole option, if City violates any of the stated restrictions. The Properi remains the sole and exclusive property of Contractor. The license granted hereunder shall not imply ownership by City of said Property, right of City to sell said Property, or rights to use said Property for the benefits of others, This licene is transferable only with Contractor's written consent. As used herein, the term "proprietary information" means any information which relate to internal controls, computer, or data processing programs; data that has been modified k Contractor proprietary techniques resulting in standardized, specifically correlated, or integrate information; electronic data processing applications, routines, subroutines, techniques, c systems; or business affairs and methods of operation or proposed methods of operation c Contractor, except such information which is not obtained through this Agreement or which i in the public domain at the time of its disclosure to the other party. City shall hold in confidenc using levels of effort consistent with its own policies applicable to its confidential information an shall not disclose to any other party any Contractor proprietary information (as such term i herein defined) which may be disclosed to City by Contractor in connection with this Agreemer or otherwise learned or obtained by City in connection with this Agreement. The parties furthc agree not to take any other action inconsistent with the confidential nature of Contractc proprietary information. The obligations imposed by this Paragraph shall survive any expiratioi or termination of this Agreement. Contractor agrees to defend and indemnify the City of Carlsbad from and against a claims, liabilities, losses and expenses arising out of the City's compliance with the provision of this agreement with regard to maintaining the confidentiality of Contractor proprietar information. rev. 1 0/16/9 13 @ a 1’ 30. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplate( herein, embody the entire Agreement and understanding between the parties relating to th subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party again: which enforcement of such amendment, waiver or discharge is sought. Executed by Contractor this day of , 19-. CONTRACTOR: CITY: MUNICIPAL RESOURCE CONSULTANTS PARTNER : JOHN T. AUSTIN, INC . Mayor ATTEST: n4 ALETHA L. RAUTENKRANZ City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or Vice-president and Secretary or Assistant Secretary must sign for corporations. only one officer signs, the corporation must attach a resolution certified by the Secretary c Assistant Secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL BY Jbp&+City Attorney 2s 7.96 rev. 1 0/16/9 cityfl 14 e CALIFORNIA ALL-PURP 8 E ACKNOWLEDGMENT personally appeared 0 personally known to me - OR -@ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/de subscribed to the within instrument and acknowledged to me that he/sh&wy executed the same in his/Mr authorized capacity(ies), and that by his/he++wh-signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) 0 Individual 0 Individual 0 Corporate Officer U Partner - 0 Limited 0 General 0 Attorney-in-Fact U Attorney-in-Fact 0 Guardian or Conservator i? Guardian or Conservator Signer Is Representing: Signer Is Representing. Reorder Call Toll Free 1-80 Prod No 5907 0 1994 National Notary Association - 0236 Hemniel Ave P 0 Box 7 184 - Canoga Park CA 91 309 71 84 e 0 e A RESOLUTION OF THE BOARD OF DIRECTORS OF JOHN T. AUSTIN, INC. AUTHORIZING JOHN T. AUSTIN TO ENTER INTO ANY AGREEMENT ON BEHALF OF JOHN T. AUSTIN, INC. AND MRC WHEREAS, John T Austin Inc. is corporation formed under the laws of the State of California; and WHEREAS, John T. Austin, Inc. is a partner in the firm doing business as Municipal Resource Consultants (“MRC”), a partnership formed under the laws of the State of California; and WHEREAS, John T. Austin is the President of John T. Austin, Inc.; and WHEREAS, from time to time John T. Austin, Inc. and MRC may enter into agreements necessitating execution by an officer of the corporation authorized to bind the corporation or MRC. NOW, THEREFORE, THE BOARD OF DIRECTORS OF JOHh’ T. AUSTIN, INC. DOES HEREBY RESOLVE AS FOLLOWS: 1. That John T. Austin as President of the Corporation is authorized to enter into any and all agreements and contracts, into which the Corporation may legally enter, on behalf of John T. Austin, Inc.; and 2. That John T. Austin is authorized to enter into any agreements and contracts on behalf of MRC of which John T. Austin, Inc. is a partner, in accordance with Section 15009 of the California Corporations Code. PASSED, APPROVED .AND ADOPTED THIS 16th DAY OF JANUARY, 1996 By: a m €3. Aust irector Date:-Janua 16 1996