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HomeMy WebLinkAboutClifton Larson Allen LLP; 2021-01-12;City Attorney Approved Version 1/30/13 1 AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR TRANSIENT OCCUPANCY TAX AUDIT SERVICES CLIFTON LARSON ALLEN LLP This Amendment No. 1 is entered into and effective as of the _______ day of ___________________________, 20___, extending the agreement dated January 16, 2020 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, ("City"), and Clifton Larson Allen LLP, (“Contractor") (collectively, the “Parties”) for Transient Occupancy Tax Audit Services. RECITALS A. On January 12, 2021, the Parties executed an Assignment and Assumption Agreement to the Agreement for Transient Occupancy Tax Audit Services assigning the agreement from White Nelson Diehl Evans, LLP to Clifton Larson Allen, LLP; and B. The Parties desire to extend the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended and funded for a period of one (1) year ending on January 16, 2022. 2. All other provisions of the Agreement, as may have been amended from time to time, shall remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, shall include coverage for this Amendment. /// /// /// /// /// DocuSign Envelope ID: 9074EAAA-C803-46D4-A458-EFF5A2AEFB4A 21 January14th City Attorney Approved Version 1/30/13 2 4. The individuals executing this Amendment and the instruments referenced on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions hereof of this Amendment. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) Laura Rocha Deputy City Manager, Administrative Services as authorized by the City Manager David Forman, Principal (print name/title) ATTEST: By: (sign here) BARBARA ENGLESON City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or Vice-President Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _____________________________ Assistant City Attorney DocuSign Envelope ID: 9074EAAA-C803-46D4-A458-EFF5A2AEFB4A 1 City Attorney Approved 07/11/16 ASSIGNMENT AND ASSUMPTION AGREEMENT FOR TRANSIENT OCCUPANCY TAX AUDIT SERVICES THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Assignment Agreement”) is made and entered into this _______ day of ___________ 20__, by and between the CITY OF CARLSBAD, a political subdivision of the State of California (“City”), White Nelson Diehl Evans LLP, a California LLP (“Assignor”) and Clifton Larson Allen LLP, a Minnesota LLP, (“Assignee”), and is made with reference to the following facts: RECITALS A. On January 16, 2020, the City and Assignor entered into that certain Professional Services Agreement concerning Transient Occupancy Tax Audit Services, (the “Agreement”). B. Paragraph 24 of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the City. C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee desires to accept assignment of Assignor’s interest in the Agreement and City consents to the assignment of the interest in the Agreement from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all of Assignor’s rights and obligations as set forth in the Agreement. 2. Assumption. Assignee hereby assumes all of Assignor’s rights and obligations as set forth in the Agreement. 3. City Consent. City hereby agrees and consents to the assignment of all of Assignor’s rights and obligations as set forth in the Agreement to Assignee. 4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement. 4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Agreement, and except as to the sole negligence, or willful misconduct of City, Assignee shall defend, indemnify and hold the City, its officers and employees, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including attorneys fees, which arises out of or is in any way connected with this Assignment Agreement, notwithstanding that City may have benefitted from this Assignment Agreement. The hold harmless provision shall apply to any acts or omissions, wilfull misconduct or negligent conduct, whether active or passive, on the part of Assignee. The parties expressly agree that this section shall survive the expiration or early termination of this Agreement. DocuSign Envelope ID: E2C57067-A2B2-45D8-944E-6E0FEA4B79E0 January 2112th 2 City Attorney Approved 07/11/16 4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective successors. Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. 4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: City: City Manager City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Assignor: David Forman, Principal White Nelson Diehl Evans LLP 2965 Roosevelt Street Carlsbad, CA 92008 Assignee: David Forman, Principal Clifton Larson Allen LLP 2965 Roosevelt Street Carlsbad, CA 92008 4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Assignment Agreement and shall not affect any other provision, DocuSign Envelope ID: E2C57067-A2B2-45D8-944E-6E0FEA4B79E0 3 City Attorney Approved 07/11/16 term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect. 4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. ASSIGNOR: White Nelson Diehl Evans LLP CITY OF CARLSBAD, a municipal corporation of the State of California *By: By: (sign here) Laura Rocha Deputy City Manager, Administrative Services as authorized by the City Manager David Forman, Principal (print name/title) **By: (sign here) (print name/title) ATTEST: ASSIGNEE: Clifton Larson Allen LLP BARBARA ENGLESON City Clerk *By: (sign here) David Forman, Principal (print name/title) **By: (sign here) (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups: *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney By:_____________________________ Assistant City Attorney DocuSign Envelope ID: E2C57067-A2B2-45D8-944E-6E0FEA4B79E0 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORETHE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED INACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement onthis certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THISCERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIESBELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZEDREPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBRWVDADDLINSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIODINDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATIONAND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCEDAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY 12/15/20PAP_1000007_P-10 4th Floor 111 West Campbell John Hecht USA 847-385-6800 12/15/21 1653 Farady Arlington Heights, IL 60005 1-847-385-6800 Minneapolis, MN 55402 PSGCerts@lemme.com Suite 300 220 South Sixth St. CliftonLarsonAllen, LLP Carlsbad, CA 92008 Professional Liability Aggregate Each Claim Lemme, a division of EPIC Edgewood Partners Insurance Center NAUTILUS INS CO and various insurers Karen.Niesman@lemme.com_LEM 10,000,000 5,000,000 61155738 61155738 01/06/2021 City of Carlsbad A AGREEMENT FOR TRANSIENT OCCUPACY TAX AUDIT SERVICES WHITE NELSON DIEHL EVANS, LLP _.. THIS AGREEMENT is m9-,d~ and entered into as of the I~ day of \AMPv , 20_/.D, by and between the CITY OF CARLSBAD, a municipal corporation, ("Cit and White Nelson Diehl Evans, a limited liability partnership, ("Contractor"). RECITALS A. City requires the professional services of a certified public accounting and consulting firm that is experienced in providing transient occupancy tax audit services. B. Contractor has the necessary experience in providing professional services and advice related to assessing compliance with the City of Carlsbad's Transient Occupancy Tax Ordinance. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one year from the date first above written. The City Manager may amend the Agreement to extend it for four (4) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be in an amount not to exceed thirty thousand dollars ($30,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed thirty thousand dollars ($30,000) per Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". City Attorney Approved Version 6/12/18 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating City Attorney Approved Version 6/12/18 2 in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an "occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this projecUlocation or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. City Attorney Approved Version 6/12/18 3 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Brigid Okyere Title Internal Auditor Department Administrative Services City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. 760-602-2429 For Contractor Name David Forman Title Partner Address 2965 Roosevelt Street Carlsbad, CA 92008 Phone No. 760-729-2343 Email dforman@wndecpa.com Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attorney Approved Version 6/12/18 4 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. YesD No~ 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 6/12/18 5 under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTSAG~NSTCONTINGENTFEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version 6/12/18 6 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR By);;; ff~ • (sign here) ~ ,-_'\l \ t) f.Ot'""'-C.t..:'V'. ~ C.N<M"A.l t Go.-r-\-\1\(,f' (print name/title) By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California Deputy City Manager as authorized by the City Manager A TT~~T ~ -~ .. ~/ /' -:;: ~2!E~OV;j fl" City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: ::LIA~ J:J!([: Attorney Assistant City Attorney City Attorney Approved Version 6/12/18 7 EXHIBIT "A" SCOPE OF SERVICES The review period for the initial one (1) year term covers the past three (3) calendar years: 2017, 2018, and 2019. The review period for subsequent extensions will cover the most recent three (3) calendar years. The agreed upon procedures shall include the following required services for each hotel: 1. Review the City Municipal Code Title 3 Chapter 3.12 Transient Occupancy Tax and resolutions related to the transient occupancy tax. Review the City Municipal Code Title 3 Chapter 3.37 Carlsbad Tourism Business Improvement District and Chapter 3.38 Carlsbad Golf Lodging Business Improvement District. 2. Review the internal control procedures of the lodging operator to determine: • How "transient rent receipts" were accounted for and reported to the city. • What procedures were in place to identify transient and non-transient guests. • How exemptions, including complimentary rooms, are documented and reported to the City. 3. Verify the accuracy and timeliness of the monthly transient occupancy reports filed with the city for the past three (3) calendar years. 4. Trace the transient rent receipts reported on the transient occupancy tax returns prepared by the hotel to transient rent receipts recorded in their accounting records and verify that these are in accordance with the city's ordinance. 5. Trace the total number of days each uniUhotel room is occupied on the transient occupancy tax returns prepared by the hotel to the total number of days each uniUhotel room is occupied in their records and verify that these are in accordance with the city's ordinance. 6. Select samples of rental transactions during the review period and for each transaction selected, verify tax computations and trace the amounts of rental revenues and transient occupancy tax collected to the books and records of the hotel. 7. Review the supporting documentation, on a sample basis, for exemptions claimed. 8. Perform additional procedures that the city considers necessary to determine the reasonableness of reported revenues of the hotel operator. 9. Prepare an audit report after each project and submit to the city within 40 days after completion of fieldwork, and make a presentation of findings at a City Council meeting, if asked, depending upon results of the audit. City Attorney Approved Version 6/12/18 8 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 • A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of So..(\ 'S), :3 Q On Decernne< \~t2C>\9, before me, ---...=....,_;;'-'-------'----'--"-"-':....:.=.c:>£....---=c..----=---->--'----'-'------'----lµ..,,<....l"--'--'-'---=-l-+---'Jb=-l-~L_, Date Here Insert Name and Title of the 0 personally appeared --'S)~a.~u~~Ca...o\~B_. ~'f ..... o(~N'-0-~~D.~--------------- Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Sea/ Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ~J.t~ 1'JQ/f\CU (~Oh-N- Signature of Notaryb/ic ---------------oPTIONAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: er-'"'"'...-~ \~ . Document Date: __ .---_____ _ Number of Pages: ___ er(s) Other Than Named Above: ____________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: SB.u"d B-icf ~ 7 Corporate Officer -Title(s): ______ _ 1 Partner -r J Limited : 1 General 1 i Individual I Attorney in Fact . Trustee i i Guardian or Conservator , Other:--------..---------- Signer Is Representing: _____.,S~f....,\i.c-o.f-:.-------- Signer's Name: ____________ _ l Corporate Officer -Title(s): ______ _ 1 1 Partner - I ! Limited [ I General I I Individual r I Attorney in Fact l ; Trustee I I Guardian or Conservator I: Other: _____________ _ Signer Is Representing: _________ _ • ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACORD~ CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDNYYY) ~ 12/17/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT STEVE SCHNEIDER NAME: Silver Creek Insurance Agency, Inc. rA~~Nr.fo Extl· (714) 838-0693 I FAX IA/C Nol: (714) 838-9438 17742 Irvine Blvd E-MAIL steve@silvercreekagency.com ADDRESS: Suite 203 INSURER(S) AFFORDING COVERAGE NAIC# Tustin CA 92780 INSURER A: SENTINEL INS COL TD 11000 INSURED INSURER B: White Nelson Diehl Evans LLP INSURERC: 2875 Michelle Ste 300 INSURER D: INSURER E: Irvine CA 92606 INSURER F: COVERAGES CERTIFICATE NUMBER· REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR TYPE OF INSURANCE lr-J~n un,n POLICY NUMBER IMM/DDNYYYI IMM/DDNYYYI cX COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 D CLAIMS-MADE [X] OCCUR DAMAGE TO RENTED 1,000,000 PREMISES (Ea occurrence\ $ <---MED EXP (Any one person) $ 10,000 A 57SBABH5586 06/01/2019 06/01/2020 PERSONAL & ADV INJURY $ 1,000,000 <--- GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE $ 2,000,000 ~ □PRO-□LOG PRODUCTS -COMP/OP AGG $ 2,000,000 POLICY JECT OTHER. $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,000 ~ IEa accident\ ANY AUTO BODILY INJURY (Per person) $ ~ ~ OWNED SCHEDULED A AUTOS ONLY AUTOS 57SBABH5586 06/01/2019 06/01/2020 BODILY INJURY (Per accident) $ cX HIRED cX NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY I Per accident\ $ cX UMBRELLA LIAB ~ OCCUR EACH OCCURRENCE $ 4,000,000 A EXCESS LIAB CLAIMS-MADE 57SBABH5586 06/01/2019 06/01/2020 AGGREGATE $ 4,000,000 / OED I X I RETENTION$ 10000 PR/COMP OPS AGG s 4,000,000 WORKERS COMPENSATION x I r1ITUTE 1 I OTH- AND EMPLOYERS' LIABILITY ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE [S'.:] 57WECDX4233 06/01/2019 06/01/2020 E.L. EACH ACCIDENT $ 1,000,000 A OFFICER/MEMBER EXCLUDED? Y N/A (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ 1,000,000 Business Income Actual Loss Sustainec ✓ A 57SBABH5586 06/01/2019 06/01/2020 12 months DESCRIPTION OF OPERATIONS/ LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Those usual to the insured's operations. The City of Carlsbad, its officials, employees and volunteers are named as additional per additional insured form SS00080405 attached to this policy. Certificate holder is automatically added as additional insured when required by written contract. Business liability wavier of I subrogation applies. Coverage is primary and non-contributory. Policy will not be cancelled, materially changed or reduced until 30 day prior notice is provided. 1 Oday notice of cancellation applies for non-payment or premium. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Carlsbad ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 1653 Farady ~:, __ Carlsbad CA 92008 © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD A~RD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDNYYY) 12/16/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT KaeAnne Davao NAME: CAMICO Insurance Services PHONE 800-652-1772 I FAX 800-227-2090 IA/('c "1n l'vll• IA/C Nol: 1800 Gateway Drive, Suite 300 E-MAIL kdayao@camico.com ADDRESS: San Mateo, CA 94404 INSURER(S) AFFORDING COVERAGE NAIC# INSURER A: Great Divide Insurance Company 25224 INSURED INSURERB: White Nelson Diehl Evans LLP INSURERC: 2875 Michelle Drive, Suite 300 INSURER D: Irvine, CA 92606 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER· REVISION NUMBER· THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR TYPE OF INSURANCE ,,.,~~ l,m,~ POLICY NUMBER IMM/DDNYYY) IMM/DDNYYY) COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ I CLAIMS-MADE □ OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence I $ .__ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ ~ R'L AGGRE□E ~~~~ AP□S PER GENERAL AGGREGATE $ POLICY JECT LOG PRODUCTS -COMP/OP AGG $ OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ~ (Ea accident! ANY AUTO BODILY INJURY (Per person) $ .__ ~ OWNED SCHEDULED BODILY INJURY (Per accident) $ ~ AUTOS ONLY ~ AUTOS HIRED NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY /Per accident1 ~ .__ $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ ~ EXCESS LIAB CLAIMS-MADE AGGREGATE $ OED I I RETENTION $ $ WORKERS COMPENSATION I PER I I OTH-STATUTE ER AND EMPLOYERS" LIABILITY Y/N ANYPROPRIETOR/PARTNER/EXECUTIVE □ E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ If yes, describe under E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS below Professional Liability CAB201217 I 01/01/2019 01/01/2020 Per Claim/ $5,000,000/ A Aggregate Limit: $10,000,000 i ✓ DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) Should any of the above described policies be canceled before the expiration date thereof, CAMI CO will mail 30 days written notice to the certificate holder. CERTIFICATE HOLDER CANCELLATION City of Carlsbad SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Carlsbad, CA 92008 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ~v\l . I © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -CALIFORNIA Polley Number: 57 WEC DX4233 Endorsement Number: Effective Date: 06/01 /19 Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address: WHITE NELSON DIEHL EVANS LLP 2875 MICHELLE STE 300 IRVINE CA 92606 We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 2 % of the California workers' compensation premium otherwise due on such remuneration. SCHEDULE Person or Organization Job Description Any person or organization from whom you are required by written contract or agreement to obtain this waiver of rights from us Countersigned by --------~------Authorized Representative Form WC 04 03 06 (1) Printed in U.SA Process Date: 04/22/19 Policy Expiration Date: 06/01/20 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF SUBROGATION This endorsement modifies insurance provided under the following: BUSINESS LIABILITY COVERAGE FORM We waive any right of recovery we may have against: 1. Any person or organization shown in the Declarations, or 2. Any person or organization with whom you have a contract that requires such waiver. Form SS 1215 03 00 Page 1 of 1 © 2000, The Hartford