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HomeMy WebLinkAboutA5768 - MUNI SERVICESCONTRACT ABSTRACT Contract Company Name: MuniServices, LLC GWojw f #Z Company Contact: Laura Burnett, Iaura.burnett(cDavenuinsiahts.com, 805-990-2348 Summary of Services: Consulting services for auditing, geocoding, utility users tax/franchise compliance and revenue protection. Contract Price: Fluctuates depending on UUT revenues—$50,000 Funding Source: Finance — Consulting Services 1001035 - 40105 Contract Term: Amendment No. 2 expires June 30, 2023 — 1.5 years �\57(a8 wuT Contract Administration Lead Department: Department of Finance and Treasury Contract Administrator: Nancy Pauley Contract Approvals Council/ Community Redevelopment Agency Approval Date: Agenda Item No./ Resolution No. Agreement No: Contract Compliance Exhibits: Signatures: Insurance: Bonds 6/30/2022 V 1.1. (Consent Calendar) A5768 Contract prepared by: Submitted on: / By: Evelyn Beltran �� Note: -3 Z AMENDMENT NO.2 TO CONSULTING SERVICES AGREEMENT NO. A5768 WITH MUNISERVICES, LLC. FOR AUDITING, GEOCODING, UTILITY USERS TAX/FRANCHISE COMPLIANCE AND REVENUE PROTECTION PROGRAM SERVICES THIS SECONDAMENDMENT ("Amendment No. 2") to the Consulting Services Agreement No. A5768 for Utility Users Tax/Franchise Compliance and Revenue Protection Program (UUT) Services is made and entered into by and between the City of Palm Springs, a California charter city and municipal corporation (hereinafter referred to as the "City"), and MuniServices, LLC, a Delaware limited liability company (hereinafter referred to as the "Consultant") (collectively, the "Parties"). RECITALS A. City and Consultant entered into a Consulting Services Agreement ("Agreement") for Utility Users Tax/Franchise Compliance and Revenue Protection Program Services to assist the City to ensure broad participation by California public agencies, that is designed to preserve, protect, and enhance its utility users tax (UUT) and utility franchise revenues, made and entered into on January 26, 2009. B. Section 4.4 of the Agreement provides that, at the end for the first Term of the Agreement (ending on January 26, 2012), the Agreement would renew for successive three (3) year periods. C. By letter dated July 12, 2018, the Parties acknowledged the extension of the term of the agreement, for an additional three (3) years, ending on January 26, 2021. D. Amendment No. 1, extended the term of the agreement for one (1) year, commencing January 26, 2021, and ending on January 26, 2022. NOW, THEREFORE, the Parties hereby amend the Agreement as follows: AGREEMENT 1. Section 4.4 of the Agreement shall be amended to add the following sentence: "Unless earlier terminated in accordance with Section 9.5 of this Agreement, the term of the Agreement is hereby extended through June 30, 2023, unless further extended by mutual written agreement of the Parties. " 2. Except as herein modified, all other provisions of the Agreement, including any exhibits and subsequent amendments thereto, shall remain in full force and effect. 55575.18140\34492318.1 IN WITNESS WHEREOF, the parties have executed and entered into this Amendnart (Amendment No. 2) as of the date first written below. Dated: CI "CITY" City of Palm Springs By: Justin Cl on, City Manag APPROVED BY CITY COUNCIL APPROVED AS TO FORM ATTEST: -3o-2z rtt A l l AS' 6g By: By: Jeffrey S. Ballinger, City Attorney Monique omeli, CMC, Interim City Clerk Dated: April l 1, 2022 "CONSULTANT" MuniServic , By: Name• Cai Title: Chief Financial Officer :Ff3Fi1f3G��FLi73�II�1 GOVEREV-01 ZWALSH ,acoRO' CERTIFICATE OF LIABILITY INSURANCE DaT12412oly 12a/zoz2 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 Thompson Flanagan Executive Liability Group 626 W. Jackson Blvd. 5th Floor Chicago, IL 60661 CONTACT Colleen Solkolowskl PHONE FAx N/C, No, Ezt : A/C Nc Eo NIL , csokolowski@thompsonflanagan.com INSURERS AFFORDING COVERAGE NAICis INSURER A: Hartford Underwriters Insurance Company INSURED Avenu Holdings, LLC 7625 Palm Ave., Suite 108 Fresno, CA 93711 INSURER B:Trumbull Insurance Company 27120 INSURER c: Hartford Casualty Insurance Company 29424 INSURER D: Landmark American Insurance Company 33138 INNsuRRE 37273 UERF: 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 CONTRACTOR 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 TYPE OF INSURANCE ADDL JUM SUBR MD POLICY NUMBER POLICY EFF 1/24/2022 POLICY EXPLTR 1/24/2023 LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE � OCCUR X X 83 UUN AA6800 EACH OCCURRENCE S 1,000,000 DAMAGE TO RENTED $ 300,000 MED EXP (Anyone Parson S 10,000 PERSONAL B ADV INJURY S 1,000,000 GEN'L AGGREGATE UMIIT. APPU ES PER: X POUCY �LOG JECpT GENERAL AGGREGATE S 2,000,000 PRODUCTS-COMPIOPAGG S 2,000,000 S OTHER: B AUTOMOBILE LIABILITY COMBINED SINGLE UMIT (Ea accident) S 1,000,000 X BODILY INJURY (Perperson) S ANY AUTO 83 LIEN AE7365 112412022 112412023 OWNED SCHEDULED AUTOS ONLY AUTOS ,BODILY INJURY Peraccident $ Perra lnPAMAGE yy�Ep AUTOS ONLY AUTOS ONLY C X UMBRELLAUMB X OCCUR EACH OCCURRENCE $ 10,000,000 AGGREGATE S 10,000,000 EXCESS LIAR CLAIMS -MADE 83 RHU AA6623 1/24/2022 112412023 DED I X I RETENTIONS 10,000 S C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNEWEXECUTNE YIN E6V '! 0FRCERIMMEXCLUDED i antlatory In NH) NIA X 83 WE AE7C2X 1124/2022 112412023 OTH- X PTAR E.L. EACH ACCIDENT 1,000,000 $ E.L. DISEASE -EA EMPLOYE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS halos E.L. DISEASE -POLICY LIMIT S 1,000,000 D Prime Tech EBOICyber LCY794123 1124/2022 1/24/2023 Per Clairrl 2,500,000 E Crime P-001.000245516.02 3/1512021 3115/2022 Limit 2,000,000 DESCRIPnONOFOPERATIONSILOCAmONS/VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached it more space is required) The City of Palms Springs, its agents, officers, servants and employees are named as additional insureds under the General Liability policy with respect to the operations and work performed by the named insured as required by contract. The General Liability policy is Primary R Non -Contributory. Waiver of subrogation applies underthe General Liability and Workers Compensation policies. City of Palm Springs Attn: Finance Director 3200 E. Tahquitz Cany SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE. WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2016103) 91988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CITY OF PALM SPRINGS BUSINESS LICENSE 3200 E TAHQUITZ CANYON WAY, PALM SPRINGS, CA 92262 (760) 323-8289 PLEASE NOTE THAT IT IS YOUR RESPONSIBILITY TO RENEW AND UPDATE THIS LICENSE ANNUALLY. BUSINESS NUMBER: 20017296 EXPIRATION TAX/ADMIN. FEE CERT NO BUSINESS TYPE: REVENUE CONSULTING TO CITY 03/31/2023 21.00 65857 OWNER NAME: PORTFOLIO RECOVERY ASSOC INC 03/31/2023 67.00 65859 03/31/2023 L, 4.00 65860 BUSINESS NAME: MUNISERVICES LLC BUSINESS ADDRESS: PALM SPRINGS CITY HALL 3200 E TAHQUITZ CANYON WAY PALM SPRINGS, CA 92262 MUNISERVICES LLC ISSUANCE OF THIS LICENSE DOES NOT ENTITLE 251 LITTLE FALLS DR THE LICENSEE TO OPERATE OR MAINTAIN A BUSINESS IN VIOLATION OF ANY OTHER LAW WILMINGTON DE 19808 OR ORDINANCE. THIS IS NOT AN ENDORSEMENT OF THE ACTIVITY NOR OF THE APPLICANT'S QUALIFICATIONS. MUST BE POSTED IN A CONSPICUOUS PLACE AMENDMENT NO. l TO CONSULTING SERVICES AGREEMENT NO. A5768 WITH MUNISERVICES, LLC. FOR AUDITING, GEOCODING, UTILITY USERS TAX/FRANCHISE COMPLIANCE AND REVENUE PROTECTION PROGRAM SERVICES THIS FIRST AMENDMENT {"Amendment No. I") to the Consulting Services Agreement No. A5768 for Utility Users Tax/Franchise Compliance and Revenue Protection Program (UUT) Services is made and entered into by and between the City of Palm Springs, a California charter city and municipal corporation (hereinafter referred to as the "City"), and MuniServices, LLC, a Delaware limited liability company (hereinafter referred to as the "Consultant') (collectively, the "Parties"). RECITALS A. City and Consultant entered into a Consulting Services Agreement ("Agreement") for Utility Users Tax/Franchise Compliance and Revenue Protection Program Services to assist the City to ensure broad participation by California public agencies, that is designed to preserve, protect, and enhance its utility users tax (UUT) and utility franchise revenues, made and entered into on January 26, 2009. B. Section 4.4 of the Agreement provides that, at the end for the first Term of the Agreement (ending on January 26, 2012), the Agreement would renew for successive three (3) year periods. C. By letter dated July 12, 2018, the Parties acknowledged the extension of the term of the agreement, for an additional three (3) years, ending on January 26, 2021. NOW, THEREFORE, the Parties hereby amend the Agreement as follows: AGREEMENT 1. Section 4.4 of the Agreement shall be amended to add the following sentence: Unless earlier terminated in accordance with Section 9.5 of this Agreement, the term of the Agreement is hereby extended for one (1) year, commencing on January 26, 2021, and ending on January 26, 2022, unless further extended by mutual written agreement of the Parties. 2. Except as herein modified, all other provisions of the Agreement, including any exhibits and subsequent amendments thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed and entered into this Amendment No. 1 as of the date last written below. 55575.18140kW92318.1 Dated: 17, 16 q �zo u APPROVED AS TO FORM By: Jeffrey S. Ballinger, City Attorney Dated: I 5 5 5 7 5.18140\ 34492 318.1 "CITY" City of Pa m Springs By: - A A U�Iv Justin Clift , City Manag A57 65 ATTEST: "CONSULTANT" MuniServices, LLC, By: Name: a r um Title: CFO K ?ALM $A 0�,S ���fiORN� May 18„ 2021 MuniServices, LLC — MSC #220 Attn: Mike Melka, CFO P.O. Box 10992 Birmingham, AL 35202-0992 City of Palm Springs Department of Finance and Treasury 3200 E. Tahquirz Canyon Way • Palm Springs, California 92262 Tel: (760) 323-8229 • Fax: (760) 322-8320 • Web: www.paimspringsca.gov RE: Extension Letter per Agreement No. A5768 for Auditing, Geocoding, and Associated Consulting Services for Utility User Tax / Franchise Compliance and Revenue Protection Program Dear Doug, The referenced agreement will expire January 26, 2021, and in accordance with Section 4.4 of said agreement, it is to be automatically renewed for successive three-year periods. This is to inform you that we wish to extend the agreement for three (3) years, until January 26, 2024, with no additional fee increase. Additionally, the City Attorney has changed some wording in a section of the document for all our contracts, as follows: "Section 10.2 Covenant Against Discrimination" is hereby replaced in its entirety to read: In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. The original section 10.2 read: Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or ancestry. If this letter correctly reflects the terms agreed by MuniServices, LLC and the City, please counter sign this letter of agreement in the space provided below and return to me. By signing, you represent that you have authority to bind MuniServices, LLC to this agreement. If you have any questions or concerns regarding the extension of this Agreement, please contact me at your earliest convenience. Sincerely, P"AIr Nancy Pauley Director of Finance & Treasurer City of Palm Springs MuniServices, LLC Mike Melka, CFO Date /V-5-7068 0461., 4C-) / b- Justin Cliftn, City Managw Date W, to City Pal. Springs Department of Finance and Treasury � , ► 1200 IF, To1qunx Canyon kly • PAIm Springs. C &font,e 92262 �+ FORI'd ('60) 321.8229 • I°ax CAO) 322.8}20 • W ) w%-%pxhrlsprinjro-sov 4R I��' July 12, 2018 MuniServices, LLC — MSC #220 Attn: Doug Jensen, SVP Client Services P.O. Box 10992 Birmingham, AL 35202-0992 RE: Edenslon Letter per Agreement No. AS768 for Auditing, Geocoding, and Aa odaWl Consulting Services for Utility User Tax / Franchise Compliance and Revenue Protection Program Dear Doug, The referenced agreement expired 20188, and in accordance with Section 4.4 of said agreement, It is to be automatically renewed for successive three-year periods. This is to Inform you that we wish to extend the agreement for three (3) years, until'w%*41Ar2021, with no additional fee Increase. trit fy 2.L. Additionally, the City Attorney has changed some wording In a section of the document for all our contracts, as follows: "Section 10.2 Covenant Against Discrimination" Is hereby replaced in its entirety to read: In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to Cityrs lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not Incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, Including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination In city contracting. The original section 10.2 read: Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or ancestry. DUPLICATE ORIGINAL If th, s setter correctly reflects the terms agreed by MuniServices, LLC and the City, please countersign this letter of agreement in the space provided below and return to me. By signing, you represent that you have authority to bind MuniServices, LLC to this agreement. if you have any questions or concerns regarding the extension of this Agreement, please contact me at your earliest convenience. Sincerely, Marta L. Pendllet6n,fCPA Interim Director of Finance & Treasurer City of Palm Springs MunlServoces, LLC 4�f� 07/19/18 Doug JqWn, SvP Client Services Date F /C5 David H. Ready, City Ma r i APPROVED BY rM MANAGER &Uf'I ke i eley. A OU �. �r Q fffcrnrComm 7Iff City of Palm Springs Department of Finance and Treasury 3200 L. Thliquiu Cun}un Way 0 Palm Springs, Calil`nrnia 92262 Tel. (760) 3:3-8229 • Fax- (760) i22-LSi20 + Web. www.palmspringsca.gov July 12, 2018 MuniServices, LLC — MSC #220 Attn: Doug Jensen, SVP Client Services P.O. Box 10992 Birmingham, AL 35202-0992 RE: Extension Letter per Agreement No. A5768 for Auditing, Geocoding, and Associated Consulting Services for Utility User Tax / Franchise Compliance and Revenue Protection Program Dear Doug, -unary 2 e, The referenced agreement expiredrrc-3B, 2018, and in accordance with Section 4.4 of said agreement, it is to be automatically renewed for successive three-year periods. This is to inform you that we wish to extend the agreement for three (3) years, untll4wie-3% 2021, with no additional fee increase. TaVUUX" 240, Additionally, the City Attorney has changed some wording in a section of the document for all our contracts, as follows: "Section 10.2 Covenant Against Discrimination" is hereby replaced in its entirety to read: In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. The original section 10.2 read: Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or ancestry. ORIGINAL BID AND/OR AGREEMENT 7V If this letter correctly reflects the terms agreed by MuniServices, LLC and the City, pease counter sign this letter of agreement in the space provided below and return to me. By signing, you represent that you have authority to bind MuniServices, LLC to this agreement. If you have any questions or concems regarding the extension of this Agreement, please contact me at your earliest convenience. Sincerely, Marla L. Pendleton, CPA Interim Director of Finance & Treasurer City of Palm Springs MuniServices, LLC 141� Doug J qWn' SVP Client Services David H. Ready, City Manager aPrMsrcm ��APPRONED 6Y �0"- APPROYEP BY Cffv MANAGER 07/19/18 Date IrlisImp WE PC - PI-46 ' ate CONSULTING SERVICES AGREEMENT (MUNISERVICES, LLC FOR A UDITING, GEOCODING, AND ASSOCIATED CONSULTING SER VICES FOR UTILITY USER TAXI FRANCHISE COMPLIANCE AND REVENUE PROTECTION PROGRAM) THIS AGREEMENT FOR CONSULTING SERVICES (the "Agreement") is made and entered into this day of A4PJ vA4—V, 200 q, by and between the City of Palm Springs, a California charter city and municipal corporation ("City"), and MuniServices, LLC, a Delaware limited liability company, with an office at 7335 N. Palm Bluffs Avenue, Fresno, CA 93711, and its affiliates (hereinafter "Consultant"). RECITALS A. City requires the services of a municipal auditing firm for UUT auditing ("Project'). B. Consultant has submitted to City a proposal to provide auditing, geocoding, and associated services to City pursuant to the terms of this Agreement. C. Based on its experience, education, training, and reputation, Consultant is qualified to provide the necessary services to City for the Project and desires to provide such services. D. City desires to retain the services of Consultant for the Project. NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, City agrees to retain and does hereby retain Consultant and Consultant agrees to provide services to the City as follows: AGREEMENT 1. CONSULTANT SERVICES 1.1 Scone of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide auditing, geocoding, and associated consulting services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit "A" and incorporated herein by reference (the "services" or "work"), which includes the agreed upon schedule of performance and the schedule of fees. Consultant warrants that all services and work shall be performed in a competent, professional, and satisfactory manner in accordance with the prevalent standards in the industry. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.2 Compliance with Law. All services rendered under this Agreement shall be provided by Consultant in accordance with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations promulgated thereunder. ] Revised: 3123107 5076�9.2 ORIGINAL BID AND/OR AGREEMENT 1.3 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. 1.4 Familiarity„ with Work. By executing this Agreement, Consultant warrants that it has carefully considered how the work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the work under this Agreement. 2. TIME FOR COMPLETION. The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit "A." Consultant shall not be accountable for delays in the progress of its work caused by any condition beyond its control and without the fault or negligence of Consultant. Delays shall not entitle Consultant to any additional compensation regardless of the party responsible for the delay. 3. COMPENSATION OF CONSULTANT 3.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, Consultant shall be compensated and reimbursed, in accordance with the schedule of fees set forth in Exhibit "A". 3.2 Method of Payment. Consultant shall submit invoices as per Exhibit A. Payments shall be as set forth in Exhibit "A" for authorized services performed. City shall pay Consultant for all expenses stated thereon, which are approved by the Contract Officer consistent with this Agreement, within thirty (30) days of receipt of Consultant's invoice. 3.3 Changes. In the event any change or changes in the Scope of Services/Work is requested by the Contract Officer and agreed to by Consultant, the parties hereto shall execute a written amendment to this Agreement, setting forth with particularity all terms of such amendment, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product, or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 3.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated therefore by the City Council of City for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City but Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. 2 Revised: 3/23107 307639.2 4. PERFORMANCE SCHEDULE 4.1 Time of Essence. Time is of the essence in the performance of this Agreement but Consultant need only perform within a reasonable time agreed to by the Contract Officer. 4.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed pursuant to the agreed upon schedule of performance set forth in Exhibit "A." The extension of any time period must be approved in writing by the Contract Officer. 4.3 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not limited to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if Consultant shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 4.4 Term. Unless earlier terminated in accordance with Section 9.5 of this Agreement, this Agreement is effective as of the date in the introductory paragraph and remains in full force and effect for a period of three years. Thereafter, this Agreement shall automatically renew for successive three-year periods. 5. COORDINATION OF WORK 5.1 Representative of Consultant. The following principal of Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the services and work specified herein and make all decisions in connection therewith: Steve Gibson, Manager—UUT/Franchise Fee. It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer. 5.2 Contract Officer. The Contract Officer shall be the City Manager, or his/her designee. It shall be the Consultant's responsibility to keep the Contract Officer, or his/her designee, fully informed of the progress of the performance of the services and Consultant shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 5.3 Prohibition Against Subcontracting or Assiunment. The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, Consultant shall 3 Revised: 3123107 507619.2 not contract with any other individual or entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Consultant's work product, result, and advice. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 5.5 Personnel. Consultant agrees to assign the following individuals to perform the services set forth herein. Consultant shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer, which approval shall not unreasonably be withheld. Acting through the City Manager, the City shall have the right to order the removal of any personnel assigned by Consultant for any lawful reason by providing written notice to Consultant. Name: Title: Randy Dryden VP of Operation Ridwan Sasmita Director of Operations Steve Gibson Manager UUT 1 Franchise Tim Olson Sr. Auditor Gennaro DiMassi Sr. Auditor Michele Chai Sr. Auditor Robin Steward Data Analyst Tami Nguyen Auditor Carolyn Abe -Ishii Administrative Assistant (Others may be assigned as needed to support the individuals listed above in providing the contracted services to the City) 6. INSURANCE Consultant shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in Exhibit `B," which is attached hereto and is incorporated herein by reference. 7. INDEMNIFICATION. To the fullest extent permitted by Iaw, Consultant shall defend (at Consultant's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any 4 Revised: 3/23107 54'b?7.2 and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to CIaims arising from injuries to or death of persons (Consultant's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Consultant, its officers, employees, representatives, and agents, which Claims arise out of or are related to Consultant's negligent performance or willful misconduct under this Agreement, but excluding such Claims arising from the negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other liability hereunder. 8. RECORDS AND REPORTS 8.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 8.2 Records. Consultant keep such books and records as shall be necessary to properly perform the services r- `his Agreement and enable the Contract Officer to evaluate the performance of vic. 'te Contract Officer shall have full and free access to such books and recce-' "� s, including the right to inspect, copy, audit, and make records and 8-' drawings, specifications, reports, records, docil - - solely for performance of this Agreement shall �pity upon request of the Contract Officer or upL -` + Itant shall have no claim for further employe. ':'• exercise by City of its full rights or ownership, -,sultant may retain copies of such documents !� tricted right to use the concepts � P embodied the %( ' 8.4 Fc .x " " x-' " .savings, specifications, reports, records, documents, and ot. / ,altant in the performance of services under this Agreement shall nc.. .. / without the prior written approval of the Contract Officer. 8.5 Cost Rect. LOeleted by agreement of the parties.] 9. ENFORCEMENT OF AGREEMENT 9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of 5 Revised: 3123f07 50".2 California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 9.2 Waiver. No delay or omission in the exercise of any right or remedy of a non - defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 9.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 9.4 Legal Action. In addition to any other rights or remedies, either party may take Iegal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 9.5 Termination Prior to Expiration of Term. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the Contract Officer. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter and to other compensation as stated in section 6 of Exhibit A. Consultant may terminate this Agreement, with or without cause, upon thirty (30) days written notice to City. 10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 10.1 Non -Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor -in -interest, in the event of any default or breach by City or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 10.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, disability, sexual orientation, national origin, or ancestry. 11. MISCELLANEOUS PROVISIONS Revised: 3123107 5U-09 2 11.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 To Consultant: MuniServices, LLC Attention: Legal Department 7335 North Palm Bluffs Ave. Fresno, CA 93711 11.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 11.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 11.4 Severability. in the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 11.5 Authorily. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. 111 111 111 [SIGNATURE PAGE SEPARATELY ATTACHED] 7 Revised: 3123107 M11>.2 IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs Date: ©1 coo By �. David H. Ready City Manager APPROVED BY CITY COUNCIL ]� •11•D`b `fir• A�1[b� APPROVED AS TO FORM: ATTEST By: By. ug es Th DoC. Holland, amompson, City Attorney City Clerk "CONSULTANT" MuniServices, LLC Date: +21dog By: arc H an President Date: _ / - so or evin Cerruti Vice President, Finance APPROVED AS TO FORM: Date: I2-1 0 lob' 2�--- _ Eric M ersyersy General Cowl $ Revised: 3123)07 50�b39.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of a- ___. On p 1�. before me, R " o qr personally appeared EiMl�rr. Q y a.ln N&Mt•l o1 > a s) _ .r ;•r* y { shoo Notary Soil Ab" who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they eu*Wed the same in his/herAheir authorized capacity(iss), and that by NsNw/their signati:re(s) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. I certify under PENALTY 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 Zitz" '�n of Norwy ruurt OPTIONAL Though the information below is not mqulred by taw, R nw move valuable to persons mow on ft owument and could prevent fraudulent rl9movat and reattachment of Gina ibrm to another doemnent Description of Attached Document Title or Type of Document: c€a • 3! ran A- tk � fu Se�jz- � Document Date: — --. ,•,i..�, .. —Number of Pages: ko 9 Signer(s) Other Than Named Above: Capecity(fes) Claimed by Signer(s) Signer's Name: AlaM r, 0 Individual Corporate Officer — T de(s)• .PLt:a� © Partner--- Urnited General ❑ Attorney in Fact ❑ Trustee Top of dvima here I-] Guardian or Conservator 0 Other. Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited 0 General ❑ Attorney In Fact Top of [hunt hero © Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: u 4020DY Moml Notary AwodNUon• OW Do Soto ". MBax 24029ChRoumh. CA 013134NO2• w*%LNmiion N(Axy.*q bro OMW ROOrd*u CalTdW6 w1400.6764M27 9 Revised 3l23/07 EXHIBIT "A" CONSULTANT'S SCOPE OF SERVICES/WORK Including, Schedule of Fees 111 Schedule of Performance to Revised: 3/23/07 3�7b}9-2 EXHIBIT A AUDITING, GEOCODING, AND ASSOCIATED CONSULTING SERVICES FOR UTILITY USERS TAXIFRANCHISE COMPLIANCE AND REVENUE PROTECTION PROGRAM This Agreement (hereinafter "Agreement") is made as of , between MuniServices, LLC, a Delaware limited liability company, with an office at 7335 N. Palm Bluffs Avenue, Fresno, CA 93711, and its affiliates (hereinafter "MuniServices") and the City of Palm Springs, a municipal corporation of the State of California (hereinafter "City"). MuniServices agrees to provide the City with certain professional services in furtherance of a comprehensive utility users tax/franchise compliance and revenue protection program (hereinafter "Program"), with broad participation by California public agencies, that is designed to preserve, protect, and enhance its utility users tax (UUT) and utility franchise revenues. 1. PROGRAM OBJECTIVES MuniServices auditing, geocoding, information, and associated services and skills, in conjunction with the legal and "protective" services Donald H. Maynor, A Professional Law Corporation (Ma nor), will be used to establish and implement a Program that will allow participating California public agencies to preserve, protect and enhance their UUT and utility franchise revenues through a combination of auditing, geocoding, tax application compliance, business detection, ordinance update, legislative monitoring, technology update, and other essential compliance and protective services. An effective compliance Program will assist the City, and other participating public agencies, in identifying and correcting errors/omissions causing revenue deficiencies, and thereby produce new or previously unrealized revenue for such participants. The Program's tax preservation services will protect the City's existing UUT revenues from erosion due to new legislation, new technologies, outdated ordinance language and inaccurate information. By offering these essential services through a comprehensive Program, with widespread participation, there are the additional benefits of. i) achieving lower individual costs for such joint activities; and, ii) developing consensus -based decisions regarding ordinance interpretations and tax implementation that utility industries require of California public agencies. 2. FIXED FEE SERVICES A. Compliance Review Services At any time during the term of this Agreement, with the prior consent of the City where specifically indicated, MuniServices may perform compliance review activity on behalf of the City in any of the following areas: 1. UUT Tax Application and Franchise Fee Review: MuniServices will perform compliance reviews of major utility providers, with a focus on common client issues, to assure that the UUT is being properly applied to taxable services and charges, and that the franchise fee formula is being properly applied to the revenue base (as provided in standard franchise agreements). MuniServices will use the legal expertise of Maynor on matters requiring legal analysis or an UUTI-073108v1 ! MuniServices C'iry interpretation of ordinances, standard utility franchises, laws, and IRS letter rulings, which will be coordinated with the City Attorney. 2. Geocode Information and Review: MuniServices will develop and maintain a proprietary address range database to assure accurate address range information regarding the City's boundaries. Such databases will reflect the latest available LAFCO information regarding City boundary changes due to annexations or other municipal reorganizations. Upon request, this service will be made available to any utility service provider that serves customers within the City. 3. UUT Business Detection: MuniServices will perform periodic compliance reviews of major utility providers and utilize other detection tools to verify whether such companies are doing business within the City, and then identify such possible non -complying companies to the City's staff for enforcement actions. MuniServices will assist the City in developing compliance correspondence and enforcement procedures. 4. UUT Payment Calculations and Deviations: If the City provides MuniServices with regular and accurate UUT payment history (i.e., copies of all UUT remittances), MuniServices will identify to the City's staff possible gaps in payments, calculation mistakes, and other payment errors. MuniServices will assist the City in developing compliance correspondence and enforcement procedures. On request, MuniServices will provide the City, on a semi-annual basis, with a spreadsheet reflecting the City's UUT payments (based on remittance data provided by the City to MuniServices). B. Revenue Protection Services MuniServices will work cooperatively revenue protection services designed to and utility franchise revenues: with Maynor in providing the following protect the City's existing and future UUT 1. Ordinance Update and Legislative/Regulatory Review Services a. deleted by agreement of the parties. b. State and Federal Legislation. Monitor proposed state and federal legislation to identify issues affecting the City's UUT or utility franchise revenues, and, if justified, make recommendations to the City and lobbyists of California public agencies. c. Regulatory Agencies. Monitor proceedings at the various regulatory proceedings (e.g., California Public Utilities Commission, California Energy Commission, Federal Commerce Commission, Federal Energy Regulatory Commission) that affect the deregulation of the various utilities and make appropriate recommendations to the City. d. Information Services. Provide the City with periodic newsletters, special communications, and legislative bulletins. Maynor may also UUTI-073108v1 2 MuniServices city provide instruction to the City's staff through workshops and seminars on such subjects as industry deregulation, new technologies, complying with new utility -related legislation, and other timely subjects. 2. Statutory Compliance and Consulting Services a. Publication of Ordinance Requirements. Prepare and maintain an accurate copy of the City's UUT ordinance and its administrative rules and interpretations on the uutinfo.org website, and otherwise assist the City in complying with Public Utilities Code § 495.6. b. Web -Based Data Links. Prepare and maintain on the uutinfo.org website (and provide a link to the City's web page, if desired) the City's UUT ordinance and administrative rules and rulings, frequently asked questions, e-mail inquiry feature, and model forms for exemption applications, UUT remittances, information requests, and other tax compliance documents. c. Access to Client -Only Webpage. Provide the City's staff (with UUT responsibilities) access to the client -only features of the uutlaw.com webpage and periodic newsletters, including legislative tracking, legal memos, breaking news, special utility issue features (e.g., new technologies), and practice hints. d. Access to Information. Assist the City's staff in obtaining SB 278 lists, tax compliance information, exemption lists of utility service providers, and in determining the exempt status of utility customers pursuant to the exemption provisions of the City's UUT ordinance or federal excise tax law relating to telecommunications. e. Revenue Forecasts. Provide staff with revenue forecasts based on industry trends, historical trends, and other relevant factors. 3. Assistance to City's Internal UUT Staff a. Timely Response to Tax Application Inquiries. Provide technical assistance to existing City staff and the City Attorney's office, and provide timely analysis and draft responses to tax application inquiries from taxpayers or tax -collecting entities (e.g., utility providers, hotels, businesses) using Web -based interactive technology. b. Enforcement Assistance. Provide the City's staff and the City Attorney's office with: i) legal advice on specific issues that arise in the enforcement of the tax ordinance (e.g., nexus issues and questions from taxpayers or tax collectors); and, ii) compliance correspondence and legal notices as required by ordinance and due process. c. Audit Assistance. Assist the City's staff and the City Attorney's office in, i) gaining access to audit -related information under existing UUTI-073108v1 3 MuniServices City legal authorities; ii) addressing legal issues that arise in the course of an audit; iii) providing exemption analysis; and, iv) reviewing and developing legal measures to improve existing or proposed tax compliance programs, including tax amnesty programs. d. UUT Exemption Review. Review for accuracy the gas and electric exemption lists and telecommunication exemption certificates for non- residential customers, as provided by the City, and identify possible errors to the City's staff. C. MuniServices Does Not Provide Legal Services. It is agreed and understood MuniServices will provide no legal services that may be required under any of the PROGRAM activities described in this Agreement, but rather Maynor will provide such services only to the extent requested by the City Attorney. It is also acknowledged that in providing such requested legal services, Maynor's client will be the City, and not MuniServices. 3. CITY -SPECIFIC AUDITS A. Scope of City -Specific Audits At any time during the term of this Agreement, with the prior mutual consent of the City and MuniServices, MuniServices may perform a City -specific audit of a utility franchise or UUT payments from a specific utility, when the audit intends to focus on City -specific issues. See Section 5(B) below regarding compensation for City - specific audits. B. MuniServices Responsibilities for City -Specific Activities 1. Work Plan Approval for City -Specific Activities. MuniServices will submit to the City's staff a proposed Work Plan for review and approval that will serve as the basis for City -specific compliance activities (e.g., CATV UUT or franchise review, gas or electric franchise review, or payment deviation from a specific utility). 2. City Approval of Discovery Actions. For City -specific activities, MuniServices will receive prior authorization from the City's staff to obtain and examine utility and customer records (hard copy and data format) necessary to assure compliance with the City's UUT ordinance through the use of administrative subpoenas, nondisclosure agreements, and other procedures required by the utility service provider as a condition of providing access to confidential customer information. 3. MuniServices to Comply with Local Laws. In performing the compliance review services described in this subsection, MuniServices agrees to abide by the provisions of the City's UUT ordinance, any administrative rules the City may adopt relating to such ordinance, and the confidentiality requirements of state law (Revenue and Taxation Code Section 7284.E-.7). Throughout the above process, MuniServices shall be available to meet with the City, utility UUTI-073I0M 4 MuniServices 041. service providers, or their customers to review any MuniServices findings or recommendations arising out of its compliance review activities for the City. 4. CITY's RESPONSIBILITIES To facilitate and maximize the effectiveness of the above compliance review activities, the City shall diligently assist MuniServices by performing the following: A. Necessary Information. The City will provide MuniServices, on a timely basis, with information necessary to conduct its compliance review activities including but not limited to: monthly UUT payment histories, exemption lists, and SB 278 gas and electric lists (including names of customers refusing to pay surcharges), and certified copies of the UUT ordinance and any subsequent amendments. B. Letter of Authorization. The City will provide a letter of authorization identifying MuniServices as an authorized agent of the City to perform utility user's tax compliance audits, to receive and examine appropriate utility and customer records (hard copy and data format) necessary to assure UUT tax compliance, and to execute necessary nondisclosure agreements approved by the City. C. Legal Interpretations of Ordinance. Upon request, the City will provide MuniServices with appropriate legal and administrative interpretations of its UUT ordinance. It is agreed and understood that the City will retain the exclusive authority and responsibility to administer, interpret, and enforce its UUT ordinance, recognizing that the role of MuniServices and Maynor is limited to employing their unique expertise and proprietary tools for: i) detecting and identifying errors/omissions by utility service providers or utility users in the application, calculation, collection, and/or remittal of UUT; and, ii) providing the City with technical assistance, without assuming or being delegated the authority or responsibility of the City to administer, interpret, and enforce its UUT ordinance and standard utility franchise agreements. 5. COMPENSATION/TERM A. Annual Fixed Fee 1. Total Annual Fixed Fee. The City's total annual fixed fee for participating in the Program shall be the greater of: i) six -tenths of a percent (0.5%) of the total UUT revenues received by the City (excluding UUT revenues derived from sewer, water, trash or CATV) based on the prior fiscal year, or ii) fifteen thousand dollars ($15,000) ("Minimum Fee"). In no case shall the City's annual fixed fee exceed ninety-five thousand dollars ($95,000) ("Maximum Fee"). The Minimum Fee and Maximum Fee shall be increased at the rate of two percent (2%) each year. City will pay MuniServices its allocated fee of one -sixth of one percent (0.6%) of the total annual UUT fee, and MuniServices will allocate to Maynor 35% of such fee. At any time, Maynor and MuniServices may, by mutual agreement, adjust their proportional share of said total annual fixed fee, provided that such parties shall receive prior approval of such adjustment from the City. UUTI-073108v1 5 MuniServices City EO 2. deleted by agreement of the parties. 3. Quarterly Payments of Fixed Fee. Said annual fixed fee shall be paid in four equal quarterly payments with due dates of. March 31, June 30, September 30, and December 31. Invoices for services rendered shall be in arrears (invoiced for the immediately preceding quarter). If the effective date of this Agreement is other than on an invoice date, the City shall be invoiced /for the first quarterly payment on the immediately following invoice date as set forth herein. City shall be invoiced and responsible for a prorated portion of the preceding quarter based on the effective date of this Agreement. Payment will be made to MuniServices within thirty (30) days of receipt of MuniServices invoice therefore. Any amounts which remain unpaid after thirty (30) days shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law. These quarterly payments are nonrefundable. For purposes of this Section 5(A), the effective date of this Agreement shall be deemed to be the last date signed below, unless otherwise agreed to by the parties. B. Compensation for City -Specific Audit Services 1. With respect to a City -specific audit, including a CATV UUT.Tranchise audit referred to in Section 3(A) above, MuniServices shall be entitled compensation on rates and terms to be agreed upon following the City's request for the City -specific audit service. 2. In the event that any legal services from Maynor are required in connection with a City -specific audit, the cost of such services to the City shall be paid by MuniServices, and MuniServices shall disclose to the City the financial arrangement between MuniServices and Maynor regarding the payment of such costs. UUTI-073108v1 6 MuniServices {'uy C. City's Obligations Regarding the City -specific compliance review activities of MuniServices in Sections 3 and 5(B) above, the City agrees to: 1. Invoice the responsible party for tax deficiencies (plus interest and penalties if applicable) identified and confirmed by MuniServices within thirty (30) days following receipt of MuniServices detection report or correspondence; 2. Provide MuniServices with a copy of any settlement agreement with a taxpayer/tax collector within ten (10) days of entering into such agreement; and, 3. Notify MuniServices within ten (10) days following receipt by the City of payments (cash, installment, or other compensation directly benefiting the City) of such tax deficiencies, whether invoiced or not. Upon receipt of such notice, MuniServices will promptly invoice the City. MuniServices compensation is due and payable within thirty (30) days of the City's receipt of MuniServices invoice. Any amounts which remain unpaid after thirty (30) days shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law. D. MuniServices Expenses MuniServices shall absorb all expenses incurred by MuniServices in providing its services as described herein. These expenses include items such as employee salaries and benefits, insurance, airfare, auto rentals, meals, lodging, Federal Express, mail, telephone, copying, directories, on-line resources, and other overhead and miscellaneous expenses. 6. TERMINATION OF AGREEMENT A. Either the City or MuniServices may terminate this Agreement, by thirty (30) days prior written notice as provided in this Section. B. If the City terminates this Agreement at any time within twelve (12) months following the effective date of this Agreement, and Maynor has prepared an ordinance update for the City (whether or not the City adopts the recommended update), the City shall nevertheless pay MuniServices four (4) quarterly payments from the commencement of the Agreement to compensate MuniServices for services rendered. MuniServices shall also be entitled to additional compensation as described in Section 6(C). C. Upon termination by either party of the Agreement as provided herein, MuniServices shall be entitled to retain any fees it may have received from the City pursuant to Sections 5(A) and 6(B) of this Agreement. In addition, MuniServices shall be entitled to payment according to the terms of Section 5(B) for all additional revenues, including interest and penalties, resulting from MuniServices compliance review activities. Within thirty (30) days following termination, MuniServices shall provide the City with a list of detections of non-compliance resulting from the compliance UU7'1-073108v1 7 Muniservices city review activities of MuniServices. The City shall, in good faith, diligently seek to: i) correct such detections of non-compliance made by MuniServices prior to the date of termination; and, ii) collect the additional revenues that are due the City and MuniServices for past periods and for the twelve quarters going forward following the correction, even though the date of actual correction may occur after the termination date. MuniServices shall assist the City in this correction/collection effort, if so requested by the City. MuniServices right to compensation for City - Specific Audit Activities under Section 5(B) shall survive termination of this Agreement for any reason. UUTI-073108v1 8 MuniServices 09Y EXHIBIT "B" INSURANCE PROVISIONS Including Verification of Coverage, Sufficiency of Insurers, Errors and Omissions Coverage, Minimum Scope of Insurance, Deductibles and Self -Insured Retentions, and Severability of Interests (Separation of Insureds) Revised: 3123107 Insurance Consultant shall procure and maintain, at its sole cost and expense, and submit concurrently with its execution of this Agreement, in a form and content satisfactory to the City, public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's performance under this Agreement. Consultant shall also carry workers' compensation insurance in accordance with California workers' compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extension thereof,. Consultant shall provide City with 30-days advance notice of cancellation of such insurance. Failure to provide such notice shall be deemed a material breach of the Agreement. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. A. Minimum Scone of Insurance. The minimum amount of insurance required hereunder shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate; 2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; 3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate; and, 4. Workers' Compensation insurance in the statutory amount as required by the State of California and Employer's Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Consultant has no employees, Consultant shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. For any claims related to this Agreement, Consultant's insurance coverage shall be primary insurance as respects City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. For Workers' Compensation and Employer's Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. B. Errors and Omissions Coverage. If Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1) to purchase tail 12 Revised: 3123107 5D7h3e 7 insurance in the amount required by this Agreement to cover claims made within three years of the completion of Consultant's services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier, or equivalent coverage with another company, in the amount required by this Agreement for at least three years after completion of Consultant's services under this Agreement. Consultant shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. C. Sufficiency of Insurers. Insurance required herein shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. D. Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, effecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured... " ("as respects City of Palm Springs Contract No. or 'for any and all work performed with the City" maybe included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No. " or '!for any and all work performed with the City" may be included in this statement). 3. deleted by agreement of the parties. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. 13 Revised: 3/23/07 507639.2 Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant's obligation to provide them. E. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its elected officials, officers, employees, agents, and volunteers; or, Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self -insured retention under the policy. Consultant guarantees payment of all deductibles and self -insured retentions. F. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer's Iiability. 14 Revised: 3123b7 5d?G39.2 GOVEREV-01 f` 5 JGOLDBERG .44cofz5' CERTIFICATE OF LIABILITY INSURANCE DA E,MM,°°Y YY, 1/23/2023 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 endorsements . PRODUCER Thompson Flanagan Executive Liability Group 626 W. Jackson Blvd. 5th Floor Chicago, IL 60661 CONTACT Colleen Sokolowskl PHONE FAx (AIC, No, Ext: , No): E-MAIL . esokolowski@thompsonflanagan.com INSURE S AFFORDING COVERAGE I NAIC0 INSURER A: Hartford Underwriters Insurance Company INSURED Avenu Holdings, LLC 7625 Palm Ave., Suite 108 Fresno, CA93711 INSURERB:TrumbullInsurance Company 27120 INSURERC:Hartford Casualty Insurance Com an 29424 WSURER12 L, ndmark American Insurance Com n 33138 ITBURERE:Ax13Insurance Company 37273 NSURERF: 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. INSRLIL TYPE OF INSURANCE ADDL SUB POLICY NUMBER POLICY EFF POLICY ExP LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE OCCUR X X 3UUNAA6800 1124/2023 1124/2024 ENCE 1,000,00O ESIE.ENr6D 300�000 one 10,000 DV INJURY MAGGREGATE 1,000,000 GENL AGGREGATE LIMIT APPLIES PER: X POLICY j�j LOC REGATE f 2,000,000 OMPgPAGG f 2,000,000 f OTHER'. B AUTOMOBILE LIABILITY COMBINEDISINGLE LIMIT Ma �enX f 1,000,000 BODILY INJURY Per on S ANY AUTO OWNED SCHEDULED AUgT�O�S ONLY AUTOS 83 UEN AE7365 1/2412023 1124/2024 BODILY INJURY Parawdanl S PPerre ude^I AMAGE S AUTOS ONLY AUTOS ONLY f C X UMBRELLA LNB X OCCUR EACH OCCURRENCE 10,000,000 AGGREGATE 3 10,000,000 EXCESS LIAB I CWMS-MADE 83 RHU AA6623 1/24/2023 1124/2024 DELI I X I RETENTIONS 10,000 f C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORRRARTNER/ ECUTIVE YIN Wq�"nFl ER/MEEMggER EXCL UDEM -❑ IMandaroryln N�11 Il yes. tlesrnIm undar DESCRIPTION OF OPERATIONS balm NIA X 3 WE AE7C2X 1/24I2023 1/2412024 X PER OTH- E.L. EACH ACCIDENT 1,000,000 E.L. DISEASE - EA EMPLOYEE f 1,000,000 E L. DSEASE - POLICY UNIT f 1,000,000 D Prime Tech E&O/Cyber LCY794123 1124/2022 3115/2023 Per ClaimlAgg 2,500,000 E Crime P-001.000246516-03 3/1612022 3/1512023 Limit 2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, AMMoml Remarks SCN duM, may M attached K more apace Ia requimdl The City of Palms Springs, its agents, officers, servants and employees are named as additional Insureds under the General Liability policy with respect to the operations and work performed by the named insured as required by contract. The General Liability policy is Primary 8 Non -Contributory. *EGIVED subrogation applies under the General Liability and Workers Compensation policies. JAN 3 0 2023 FilClty Hall SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Palm Springs Attn: Finance Director 3200 E. Tahquitz Cany ACORD 25 (2016103) W 1988-2015 ACORD CORPORATION. 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