No preview available
HomeMy WebLinkAboutPR 15638: MUNISERVICES, LLC CONSULTING CONTRACTCity of Port Arthur Memorandum To: Steve Fitzgibbons, City Manager From: Rebecca Underhill, CPA, Assistant ana r -Administration Date: November 19, 2009 Re: PR 15638 I recommend that the City Council adopt Proposed Resolution 15638 authorizing a consulting contract for the services of MuniServices, LLC for Local Hotel Occupancy Tax and Hospitality Consulting Program. The purpose of the program is to assist the city in realizing all of the lodging tax revenue to which it is entitled through conducting annual analyses of returns and, when warranted, on-site examinations of records; providing annual reports; offering administrative support; and educating lodging providers to ensure appropriate collection and remittance of the hotel occupancy tax. The cost of this consulting contract will not exceed $15,000. Z:\Finance\Resolutions\Muniservices Contract PR 15638.doc P.R. 15638 11/19/09 JJA RESOLUTION NO. A RESOLUTION AUTHORIZING A CONSULTING CONTRACT WITH MUNISERVICES, LLC FOR LOCAL HOTEL OCCUPANCY TAIr: AND HOSPITALITY CONSULTING PROGRAM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: THAT the City Manager of the City of Port Arthur is hereby authorized and directed to execute on behalf of the City of Port Arthur a consulting contract between the City and MuniServices Local Hotel Occupancy Tax and Hc-spitality Consulting Program to assist the city in realizing all of the lodging tax revenue to whicr- it is entitled; and THAT a copy of said contract is attached hereto and made a part hereof as Exhibit "A"; and, THAT a copy of the caption of this resolution be spread upon the Minutes of the City Council. READ, ADOPTED, AND APPROVED, this day of December, 2009, A.D., at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following vote: AYES: Mayor: Council members: NOES: Mayor ATTEST: Terri Hanks, City Secretary Z:\Finance\Resolutions\Muniservices Contract PR 15638.doc APPROVED AS TO FORM: Valecia Tizen , Acti ity Attorney APPROVED FOR ADMINISTRATION: Stephen Fitzgibbons, City Manager ti''`'i Rebecca Underhill, Assistant City Manager - Administration APPROVED AS TO AVAILABILITY OF FUNDS: ~~~~~ Deborah Echols, Finance Director 1 ~0 '. ~ ~~ 5- 5~7. S ~~ ~ Z:\Finance\Resolutions\Muniservices Contract PR 15638.doc EXHIBIT A Z:\Finance\Resolutions\Muniservices Contract PR 15638.doc Agreement Between The City of Port Arthur, Texas and MuniServices, LLC for Local Hotel Occupancy Tax and Hospitality Consulting Program This Agreement is made as of 2009 between MuniServices, LLC, a Delaware limited liability company, its subsidiaries and affiliates, with an office at 7335 N. Palm Bluffs Avenue, Fresno, CA 93711, ("MuniServices") and the City of Port Arthur, a municipal corporation of the State of Texas ("Municipality'). ARTICLE I. SCOPE OF WORK A. Local Hotel Occupancy (HOT) Objectives and Methods MuniServices Local Hotel Occupancy Tax and Hospitality Consulting Program is intended to assist the Municipality in realizing all of the lodging tax revenue to which it is entitled through conducting annual analyses of returns and, when warranted, on-site examinations of records; providing annual reports reflecting and projecting revenue trends; identifying any providers who should be subjected to field auditing or other scrutiny; offering ordinance and administrative enhancements as needed; and educating lodging providers to ensure appropriate collection and remittance of the lodging tax. Ordinance, Return and Administration Review Services (Inception of Contract): • Review Municipality's lodging tax ordinance, return form and administrative procedures; • Recommend potential enhancements to better acquaint the lodging providers with their responsibilities in collecting and paying-over the tax, and to improve revenue generation and administration by the Municipality; • Provide a written report to Municipality, including suggestions for new ordinance language, form design and process development, as applicable; and • Meet with Municipality to discuss findings, and to identify any recommendations for further review. Analysis and Compliance Review Services (Annually): • Obtain and analyze lodging provider return information in the possession of the Municipality initially for the prior four-year (4) period, thereafter annually for the prior year; • Conduct unobtrusive collection of information on each property, including number of rooms, occupancy rate, physical condition, business dynamics, etc.; • Provide a report to the Municipality on trend analysis to include projections for gross rent revenue and occupancy rates, and other information conducive to assessment of visitation; • Perform discovery services designed to identify and locate lodging providers not properly registered with the Municipality and not appearing on the Municipality rolls as lodging tax remitters; 1 Port Arthur, TX HOT 102709 • Analyze lodging provider return information from the past three years in order to identify unusual or suspicious reporting and/or activities that warrant further review; and • Provide a detailed report to the Municipality identifying lodging providers who require additional investigation or examination to determine their compliance with the Municipality's lodging tax ordinance; Field Audit Services (As Deemed Needed By Analysis): • Perform on-site examinations of the records of those providers identified through analysis to warrant further investigation, but only as authorized by Municipality and not to involve more than one-third (1/3) of the Municipalities properties in any one year contract period; • Provide Municipality staff with a detailed list of all records required to be made available by lodging providers for the further reviews, together with a draft engagement announcement letter to be sent to each lodging provider requiring examination; • In coordination with Municipality staff, schedule and conduct reviews at the property locations of those providers identified and authorized for examination; • Verify accuracy of filed lodging tax returns with daily and monthly activity summaries; • Review a random sample of the daily and monthly summaries to determine if the daily summaries reconcile to the monthly summaries; • Review bank statements to verify that deposits reconcile with the reported revenue on the lodging tax returns'; • Review exempted revenue for proper qualifying documentation; • Review a random sample of exempted guest revenue and trace registration and/or other source documents to verify compliance with the Municipality ordinance; • Where possible, compare the State and federal tax filings with the lodging tax returns; • For each error/omission identified and confirmed, submit substantiating documentation to designated Municipality staff in order to facilitate collection of revenue due from lodging providers for prior periods; • Coordinate with designated Municipality official(s) as necessary to review findings and recommendations; • Provide assistance to Municipality in reviewing any matters submitted in extenuation and mitigation by lodging providers in contesting a deficiency determination; and • Prepare and document any changes to the review findings and provide revised tax, interest or penalty amounts due the Municipality. ~< Port Arthur, TX HOT 102709 2 Seminar Services (Once Every Third (3rd) Year, When Desired by Municipality): • Conduct a seminar session with Municipality staff to present and discuss issues pertaining to lodging tax administration. Key topics for normal Municipality staff sessions include applicable state and federal law, return analysis, deficiency determination techniques and collections. Municipality may add select topics of Municipality concern to be reviewed at this session; • Conduct a seminar session for local lodging providers to disseminate information intended to further the providers' understanding of their duties and responsibilities under the Municipality's lodging tax ordinance, their responsibilities for collections and record keeping, and to address any points requiring clarification in the lodging providers' understanding of the Municipality's lodging tax ordinance. T. Municipality staff shall be encouraged to attend both :seminar sessions so as to become familiar with the issues and concerns facing local lodging providers and to interact directly with the lodging providers. ARTICLE II. TERM This Agreement starts on the date stated in the introductory paragraph and continues for a period of one-year (1) "initial term." After the "initial term" and thereafter, this Agreement shall automatically renew for successive one-year (1) periods, subject however, to Municipality's availability of funding which lawfully may be applied, until terminated. If funding will not be available, the Municipality must provide at least 30-days advance written notice of the lack of funding. Termination requirements are listed in Section 6 of the General Provisions attached and incorporated herein as Attachment "A". ARTICLE III. COMPENSATION A. Local Hotel Occupancy (HOT) The Local Hotel Occupancy Tax and Hospitality Consulting Services shall be provided at an Annual Fixed Fee per lodging property located in the Municipality as per the following classification of lodging properties: six hundred dollars ($600) per standard lodging property, six hundred dollars ($600) per timeshare property, and three hundred ($300) per bed and breakfast facility. The Fixed Fee shall be invoiced upon execution of this Agreement, and at the beginning of each renewal term. Additionally, MuniServices shall be entitled to reimbursement of reasonable travel and other out-of-pocket expenses associated with the conduct of field audits and seminars, not-to-exceed $1,000 per contract year without prior written approval of the Municipality. Such reimbursement shall be billed incrementally. B. Additional Consulting. Municipality may request that MuniServices provide additional consulting services at any time during the term of this Agreement. If MuniServices and Municipality agree on the scope of the additional consulting services requested, then MuniServices shall provide the additional consulting on a Time and Materials basis. Depending on the personnel assigned to perform the work, standard hourly rates range from $75 per hour to $300 per hour. These additional consulting services will be invoiced at least monthly based on actual time and expenses incurred. Port Arthur, Tx HOT 102709 3 ARTICLE IV. GENERAL PROVISIONS In addition to the above provisions, the parties are also bound by the general provisions as set forth in Attachment "A" of this Agreement, which are by this reference incorporated herein. If there is a disagreement between Articles I, II, and III, and these general provisions, Articles I, I1, and 111 prevail. ~i}: The Parties are signing this Agreement on the date stated in the introductory clause. MuniServices, LLC ay: arc Herm n Title: President By: evin Cerutti City of Port Arthur A Municipal Corporation By: Name: Title: ATTEST: City Clerk Title: Vice-President, Finance PoR Arthur, TX HOT 102709 APPROVED AS TO FORM: City Attorney 4 ATTACHMENT "A" General Provisions 1. What this agreement covers. This agreement this agreement requires Us to give You legal advice or covers any services You selected on Our website or determine Your legal liabilities and We have no that We have agreed to provide to You. We are not obligation to do so. You agree that the advice We give required to perform nor are You required to pay for is not legal advice. services that are not in a written or click-thru 4. How We will invoice. We will send You timely agreement that incorporates these terms and invoices for Our services. [If You would like the conditions. invoices separated by service, please send Us an email 2. Meaning of certain words in this agreement. to that effect and We will separate the invoices.] Your • "We", "Our", "Us", and similar terms mean payment to Us is due within thirty days after You MuniServices, LLC. receive Our invoice(s). We will charge You interest at the rate of one and one-half percent (1.5%) per • "You," "Yours" (including in the possessive) month, or the maximum amount permitted by law, on means the You of Atherton. any amounts You do not pay within those thirty days. • "Scope of Work" means the written statement We will not charge You for any costs or expenses that: describes the services We will provide to related to Our services unless the Scope of Work for You; incorporates these terms and conditions; the service specifically says We will charge You for and states what You will pay Us for those costs or expenses. services. For this agreement, the Scope of 5. Treatment of Confidential Information. Work is found in Articles I and II of the agreement. 5.1 The party receiving the disclosing party's Confidential Information shall: use the • "Confidential Information" means each party's Confidential Information solely for performing products, services, technical data, trade secrets, under this Agreement; and treat the inventions, processes, and constituent Confidential Information with the same care as information. Any information meeting this it uses to maintain the confidentiality of its own description is "Confidential Information" even if Confidential Information, which shall be at least the disclosing party did not mark the information reasonable care. The party receiving the as "Confidential Information" or did not notify disclosing party's Confidential Information shall the receiving party that the information was not disclose the Confidential Information to any "Confidential Information:' Information is not third party without the written consent of the confidential if it: (a) is rightfully known to the Disclosing Party, except to employees, receiving party prior to receipt from the consultants or agents to whom disclosure is disclosing party as reasonably evidenced by such necessary to perform this Agreement and who party; (b) becomes known to the receiving party have agreed in writing to treat the Confidential from a source other than one who is under an Information according to the terms of this obligation of confidentiality to the disclosing section five, or except if ordered to disclose the party; or (c) becomes publicly known or Confidential Information by any court or state otherwise ceases to be confidential other than or federal agency. All Confidential Information by an unauthorized act. remains the sole property of the disclosing 3. Our relationship with You. We are an party. We will hold taxpayer information in independent contractor and not Your employee or strict confidence. agent. We can perform services for others during this 5.2 If a party who has received Confidential Agreement. We are responsible for any Information is served with a subpoena or other subcontractors We use in performing services for You legal process concerning the Confidential and We are solely responsible to pay those Information, the party who was served shall subcontractors. Nothing in this Agreement is to be promptly notify the other party and shall interpreted as: creating the relationship of employer cooperate with the other party, at the other and employee between You and Us or between You party's expense, in any lawful effort to contest and any of Our employees or agents; or creating a the validity of the subpoena or other legal partnership, joint venture between You and Us; or process. ~ designating Us as Your agent. Furthermore, nothing in ry4 5.3 The parties agree that a breach of the terms of this section five would result in irreparable injury to the non-breaching party and a remedy in damages would be inadequate. The parties agree that in the event of such breach or threatened breach, the non-breaching party is entitled to seek an injunction to prevent the breach or threatened breach, in addition to any other remedies available at law or in equity. 5.4 The obligations in this section five continue for a period of five years from the date of disclosure of the Confidential Information, except that for any trade secrets (as defined by applicable law), the obligations of confidentiality continue indefinitely from the date of disclosure and survive the termination of this Agreement indefinite-y. 5.5 The confidentiality obligations of this section five do not extend to any information required to be disclosed pursuant to the Texas Open Records Act, the United States Freedom of Information Act, and similar State Acts, or other public disclosure acts of the United States or a state or territory thereof. 6. How this Agreement Starts and Ends. This Agreement starts on the date stated in the introductory paragraph of the Scope of Work (the "Start Date") and continues until terminated or until the expiration date stated in the Scope of Work. Either party may terminate this Agreement: a. upon 90-days prior written notice to the other party; or b. immediately, upon written notice, if a party has materially breached this Agreement including any Scope of Work and the non-breaching party has given the breaching party notice of the material breach and has given the breaching party thirty days to cure the breach (except in the case of non-payment for which the cure period shall be ten (10) days) or such amount of time as is reasonable given the circumstances. Under this Agreement Your failure to pay any amount when due under this Agreement (after 10-days prior written notice of Your failure to pay) is a material breach. 7. Your payment obligations after this agreement ends. Even if this agreement is terminated or expires You remain obligated to: (1) pay Us for services performed through the effective date of the termination or expiration; (2) provide Us with all the information necessary for Us to calculate what You owe Us on revenue You receive after the termination or expiration; and (3) pay invoices We send You after the expiration or termination of this agreement for 2 services performed before termination or expiration or for continuing payments required by the Scope of Work or for both. 8. Our commitment not to discriminate. On any work We perform under this agreement, We shall not discriminate on the grounds of race, color, religion, sex, national origin, or veteran status in the selection and retention of employees, subcontractors, the procurements of materials or leases of equipment. 9. Our Limited Warranty. We represent that all services performed under this agreement shall be performed by persons with the skills and abilities necessary and that the services that We shall provide, the tangible deliverables, if any, are free and clear of the proprietary claims of third parties, unless We notify You to the contrary. This section 9 is Our complete warranty statement. We disclaim any other warranties to the fullest extent allowed by law. 30. Your warranty to Us. You represent that the information You or Your employees or agents provide to Us will be provided free and clear of the claims of third-parties. You represent that You have the right to provide Us the information You provide and that information provided will not be obscene, defamatory, or otherwise expose Us to liability to third parties. 31. Limitation of liability. To the maximum extent permitted by law, neither MuniServices, nor its employees, contractors or agents are liable for any indirect, incidental, special, punitive or consequential damages, lost data or cost of procurement of substitute goods or services arising from or related to the services. This limitation applies: whether damages are based on breath of warronty or any obligation arising from a breach of warronty; and whether liability is asserted in contract or tort; and whether or not We have been advised of the possibility of any such loss or damage. Our liability under this agreement will not exceed an amount equal to the fees You paid for the service to which the claim pertains. This section 11 sets forth Your exclusive remedy for claims arising from or out of this agreement. This section allocates the risks between Us and You and Our' pricing reflects the allocation of risk and limitation of liability in this section 11. 12. Scope of disclaimers and limitation of liability. The disclaimers and limitations of liability in sections 9 and 11 apply regardless of the form of action, whether in contract, tort, strict liability or otherwise and whether damages were foreseeable. Those disclaimers and limitations of liability survive failure of any exclusive remedies provided in this Agreement. 13. Indemnification. A party shall defend, indemnify, and hold harmless the other party, its directors, officers, employees and affiliates, from any and all claims, suits, demands, losses, damages, liabilities, costs and expenses, including reasonable attorney's fees (collectively "Losses") arising from or related to a claim of injury to person or property or death arising from or caused by the negligent acts or negligent omissions of employees, agents, or representatives of the indemnifying party which acts or omissions arise from the indemnifying party's performance (or non- performance) under this Agreement. You shall defend, indemnify, and hold Us harmless from any Losses arising from or related to a claim that information You provided to Us contains any false, misleading, or defamatory information regarding a third party. 14. Miscellaneous provisions. 14.1 Personnel. At any time, You may request removal or replacement of personnel We have assigned and We will promptly replace such personnel. The time for any deliverables required or any increase in costs will be adjusted to reflect any adverse impact resulting from the change in personnel. 14.2 Gratuities, Gifts, Conflict of Interest. We shall, at all times, comply with Your policies regarding gifts, gratuities, or conflicts of interest that Vou provides to Us. At no time shall We, or Our employees, agents, directors, or contractors offer or accept any gift or gratuity: from a third party who may be subject to findings resulting from Services; to or from You, official, employee, contractor, or agent, or from any other party where such gift or gratuity could be construed as a conflict of interest. 14.3 Dispute Resolution. Any dispute relating to this agreement shall be submitted for resolution through mediation. The mediator shall be selected from the list of individuals maintained by the State District Court, County of Jefferson, who participate in the court's alternative dispute resolution process by joint agreement of the parties. In the event the parties are unable to resolve the dispute through the mediation process, then either party may commence an action in the State District Court, County of Jefferson State of Texas. In all cases, the prevailing party to such dispute is entitled to recover costs and expenses, including reasonable attorney's fees. 14.4 Ownership of Work Product. We retain all right, title, and interest in and to the processes, procedures, models, inventions, software, ideas, 3 know-how, and any and all other patentable or copyrightable material used, developed, or reduced to practice in the performance of this agreement. Upon payment therefore, We will grant You all right, title, and interest in and to the reports, charts, graphs, and other deliverables We are required to produce underthis agreement. 14.5 Assignment. Neither party may assign this agreement or any of its rights or obligations under this agreement without the prior written consent of the other party, which consent must not be unreasonably withheld. Any assignment without prior written consent is void. Notwithstanding the foregoing, the parties may assign all or part of this agreement immediately, without the prior written consent of the non-assigning Party: (a) to the assigning party's successor in interest who expressly assumes responsibility for the assigning party's obligations under this agreement; or (b) if necessary to satisfy the rules, regulations and/or orders of any federal or state governmental agency or body. Notwithstanding the foregoing, We may assign monies due under this agreement without consent (whether characterized as an account receivable or otherwise). Any violation of the provisions of this paragraph renders this agreement voidable at the option of the non-assigning party. 14.61nsurance. a. Public Liability. During the term of this Agreement, We will maintain a policy of public liability insurance with minimum coverage's in accordance with the requirements You provide to Us. We will cause You, Your officials and employees to be named on all liability policies described above as additional insureds for activities taken pursuant to this Agreement. b. Workers' Compensation. During the term of this Agreement, We shall comply with the terms of the laws of Texas concerning workers' compensation, including but not limited to, maintaining in full force and effect one or more policies of insurance insuring against any liability We may have for workers' compensation. 14.7 Severability. If a court of competent jurisdiction holds any part of this agreement to be unenforceable, the unenforceable part will be construed as nearly as possible to reflect the original intent of the parties and the remainder of the provisions will remain in full force and effect. 14.8 Waiver. Either party's failure to insist upon strict performance of any provision of this agreement is not to be construed as a waiver of that its or any other of a party's rights under this agreement at any later date or time. 14.9 Force Majeure. Neither party is liable for failing to perform its obligations hereunder (other than payment obligations) where performance is delayed or hindered by war, riots, embargoes, strikes or acts of its vendors or suppliers, accidents, acts of God, or any other event beyond its reasonable control. 14.10 Notices. All notices, including notices of address changes, provided under this agreement are deemed received on the third day after mailing if sent by mail, or immediately if sent by facsimile. Notices shall be sent to the following: To Us: MuniServices, LLC 7335 North Palm Bluffs Avenue Fresno, CA 93711 Attention Legal Department Email: Legal@muniservices.com Facsimile: 559-312-2957 To You: City of Port Arthur 444 Fourth Street Port Arthur, TX 77640 Attn: Rebecca Underhill Email: Rebecca@oortarthur.net Facsimile: 409-983-8150 14.11 Copies. This agreement may be signed in separate counterparts including facsimile copies. Each counterpart (including facsimile copies) is deemed an original and all counterparts are deemed on and the same instrument and legally binding on the parties. 4 14.12 Entire Agreement. This agreement, including the Scope of Work that incorporates these terms and conditions, is the entire agreement between Us and You for the service(s) in the Scope of Work. This agreement supersedes and replaces any prior agreements, of whatever kind or nature, for the service(s) in the Scope of Work. Any prior agreements, discussions, or representations not expressly set forth in this agreement are of no force or effect. No additional terms, PO Terms and Conditions, or oral or written representations of any kind are of any force and effect unless in writing and signed with the same formality as this agreement 14.13 No Oral Modification. No modification of this agreement is effective unless set forth in writing and signed with the same formality as this agreement. No waiver of the requirements of this section is effective unless in writing and signed by our president. 14.14 Construction. This Agreement is to be construed in accordance with the laws of the State of Texas without regard to its conflict of laws principals. 14.15 Headings. The section headings herein are for convenience and reference purposes only and are not to serve as a basis for construction or interpretation. 14.16 Partial Payment. No receipt by Us of an amount less than Your full amount due will be deemed to be other than payment "on account", nor will any endorsement or statement on any check or any accompanying letter effect or evidence an accord and satisfaction. We may accept such check or partial payment without prejudice to Our right to recover the balance or pursue any of Our rights.