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HomeMy WebLinkAboutA6017 - MUNISERVICES LLC TOT COMPLIANCE PROGRAM AUDITING SVCSCONTRACT ABSTRACT Contract Company Name: MuniServices, LLC Company Contact: Laura Burnett, laura.burnettCcilavenuinsiahts.com, 805-990-2348 Summary of Services: Consulting services for transient occupancy tax (TOT) program auditing services. Contract Price: No cap. Funding Source: Finance — Consulting Services 1001035 - 40105 Contract Term: Amendment No. 4 has a one-year term expiring June 30, 2023. (7/l/2022 through 6/30/2023) 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 Contract prepared by: Submitted on: 7/18/2021 Note: 6/30/2022 (Amendment No. 4) 11 —Consent Calendar A6017 By: Evelyn Beltran AMENDMENT NO.4 TO CONSULTING SERVICES AGREEMENT NO.,A6017 WITH MUNISERVICES, LLC FOR TRANSIENT OCCUPANCY TAX (TOT) PROGRAM AUDITING SERVICES THIS FOURTH AMENDMENT ("Amendment No. 4" ), to the Consulting Services Agreement No, A6017 for Transient Occupancy Tax (TOT) Compliance Program Auditing Services is made and entered into to be effective on the date that the City Manager executes this amendment by and between the CITY OF PALM SPRINGS, a California charter and municipal corporation (hereinafter referred to as "City"), and MuniServices, LLC, a Delaware Limited Liability Company (hereinafter referred to as "MuniServices") (collectively, the "Parties"). RECITALS A. City and MuniServices previously entered into a consulting services agreement for TOT Compliance Auditing Program Services ("Agreement"), to perform, among other things, certain compliance and protective services in connection with the City's transient occupancy tax, which was made and entered into on October 6, 2010, in the amount of $175,000, through June 30, 2012. B. Amendment No. 1 authorized Consultant to perform additional TOT Compliance Auditing Services, removed the not to exceed amount of the original agreement, and extended the term of the Agreement for six (6) years, commencing on July 1, 2012, and ending on June 30, 2018. C. Amendment No. 2 amended the scope of work adding language to Exhibit A of the Agreement and extended the tens of the Agreement for three (3) years, commencing on July 1, 2018, and ending on June 30, 2021. D. Amendment No. 3 amended the language of Section 10.3 "Covenant Against Discrimination" of the Agreement and extended the term for one (1) year, commencing on July 1, 2021, and ending on June 30, 2022. NOW,THEREFORE, the Parties hereby amendthe Agreement as follows: AGREEMENT 1. Section 4.4 of the Agreement shall be amended to add the following sentence: "Un`less earlier terminated in accordance with Section 4.5 of this Agreement, the term of the Agreement is hereby extended for one (1) year, commencing on July 1, 2022, and ending on June 30, 2023, unless extended by mutual written agreement of the parties. " 2. The City and MuniServices agree that, except as amended by this Amendment No. 4, all terms and conditions of the Agreement and the First, Second, and Third Amendments to the Agreement shall remain in full force and effect, and that the provisions of this Amendment N o . 4 shall become a part of the Agreement as if fully written therein. 55575.18140\34492243.1 IN WITNESS WHEREOF, the parties have executed and entered into this Amendment as of the date first written below. Dated: APPROVED AS TO FORM By: Jeffrey S. Ballinger, City Attorney Dated: June 14, 2022 "CITY" City of Palm Springs By: ft/ Justin Clifton, City Manager ATTEST: CONSULTANT "MUNISERVICES" MuniServices, LLC. B'u' , Name: [76z s-" 4ele Title: CFO APPROVED BY CITY COUNCIL e-30-2azzl;6a Ka? c;+y Cie-rK 55575.19140\34492243.1 GOVEREV-01 ACoirv' CERTIFICATE OF LIABILITY INSURANCE ZVVALSH DATE1/241/2022 Y, 022 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 pollcy(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 FlanaganSth Floor Chicago, IL6o661 _. C T CT Colleen Sokolowski PHONE FAX ac No E.1: ae No: - E�-pVhss,csokofowski@thompsonflanagan.com INSURERS AFFORDING COVERAGE NAIC0 INSURER A: Hartford Underwriters Insurance Company INSURED Avenu Holdings, LLC 7625 Palm Ave., Suite 108 Fresno, CA 93711 INSURERB:TrumbullInsurance Company 27120 wsuR Rc:Hartford Casualty Insurance Company 29424 INSURER°: Landmark American Insurance Company 33138 INSURERE:Axis Insurance Company 37273 INSURERF: COVERAGES CERTIFICATE. NUMBER: REVISION NIIMRFR- 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 CONTRACTOROTHER 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 JLUL TypE OFINSURANCE 124109 X X POLICY NUMBER POUCYEW POLICYEXP LIMITS A X COMMERCIALGENERALLIABILITY CIAIMSb1ADE �X OCCUR 83 UUN AA6800 1124/2022 1/2412023 EACH OCCURRENCE E 1,000,000 DAMAGE TO RENTED 300,000 MEDEXP An one rsan S 10,000 PERSONAL a ADV INJURY S 1,000,000 GENLAGGREGATE LIMIT APPLIES PER: X POLICY ma LOC OTHER: GENERAL AGGREGATE S 2,000,000 PRODUCTS-COMP/OPAGG 2,000,OOD E B AUTOM09ILELIAa1LITY X ANY AUTO OWNED AOU�IIOraSWULNEED A� ONLY AUIOSONLQ 83 LIEN AE7365 112412022 1/24/2023 COMBINED SINGLE LIMIT 1.000.00 BODILY INJURY(Peron E BODILY INJURY Perawd nt E Pe�ecct AGE S C X UMBRELLALIAB EXCESS IJAD OCCUR CLAIMS -MADE 83 RHU AA6623 112412022 112412023 EACH OCCURRENCE E 10,000,000 [I AGGREGATE S 10,000,000 DED I X I RETENTIONS 10,000 C INORXERSCOMPENSATION AND EMPLOYERS' LIABILITY ANY CPRRORPaREIETOT/PPRTNER/EJ(ECUTNE YIN OF.tlE InB FJ(CLUDEDT IM N If NOder DESCRIPTION O OPERATIONS belm NIA X 83 WE AE7C2X 1124/2022 1/24/2023 X I PER OTH- A LITE E.L. EACH ACCIDENT E 1,000,000 E.L. DISEASE -EA EMPLOYE 1.000,000 E.L. DISEASE -POLICY LIMIT S 1,000,000 D E Prime Tech E801Cyber Crime LCY794123 P-001.000245516.02 1/2412022 3/1512021 112412023 311612022 Per ClaimlAgg Limit 2,500.000 2,000,000 DESCRIPTIONOFOPERATIONS/LOCATIONS/VEHICLES (AMMIO1,AddN nal Remarks Schedule,mayWadachedxmomspacabmyulredI 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 Primary8'NoR-Contributory. Waiver of subrogation applies under the General Liability and Workers Compensation policies. -- - I 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 AUTHORIZED REPRESENTATIVE Attn:Finance Director 3200 3200 E. TahquUz Canyon Way CF�aL ACORD 25 (2016103) - - 171988-2016 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 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.3 TO CONSULTING SERVICES AGREEMENT NO. A6017 WITH AVENU MUNISERVICES, LLC. FOR TRANSIENT OCCUPANCY TAX (TOT) PROGRAM AUDITING SERVICES THIS THIRD AMENDMENT ("Amendment No. 3"), to the Consulting Services Agreement No. A6017 for Transient Occupancy Tax (TOT) Compliance Program Auditing Services is made and entered into to be effective on the date that the City Manager executes this amendment by and between the CITY OF PALM SPRINGS, a California charter and municipal corporation (hereinafter referred to as "City"), and MuniServices, LLC, a Delaware Limited Liability Company (hereinafter referred to as "MuniServices") (collectively, the "Parties"). RECITALS A. City and MuniServices previously entered into a consulting services agreement for TOT Compliance Auditing Program Services, to perform, among other things, certain compliance and protective services in connection with the City's transient occupancy tax, which was made and entered into on October 6, 2010, in the amount of $175,000, through June 30, 2012. B. Amendment No. I authorized Consultant to perform additional TOT Compliance Auditing Services, removed the not to exceed amount of the original agreement, and extended the term of the agreement for six (6) years, commencing on July 1, 2012, and ending on June 30, 2018. C. Amendment No. 2 amended the scope of work adding language to Exhibit A of the consulting services agreement and extended the term of the agreement for three (3) years, commencing on July 1, 2018, and ending on June 30, 2021. NOW,THEREFORE, the Parties hereby amend the agreement as follows: AGREEMENT 1. SECTION 4.4 of the agreement shall be amended to read as follows: "Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect, commencing on October 1, 2010 and ending on June 30, 2022, unless extended by mutual written agreement of the parties." 2. Section 10.3 of the Agreement shall be amended to read as follows: "10.3 Covenant Against Discrimination. Contractor shall not discriminate on the basis of actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation as these terms are defined by California Law, or association with members of classes protected under section 7.09.040 of the Palm Springs Municipal Code or in retaliation for opposition to any practices forbidden under that Section, against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or 55575.18140"4442243.1 organizations, operated by that contractor, and shall include a similar provision in all subcontracts entered into pursuant to this contract." 3. The City and MuniServices agree that, except as amended by this Amendment No. 3, all terms and conditions of the Agreement and the First and Second Amendments to the Agreement shall remain in full force and effect, and that the provisions of this Amendment N o . 3 shall become a part of the Agreement as if fully written therein. IN WITNESS WHEREOF, the parties have executed and entered into this Amendment (Amendment No. 3) as of the date first written below. Dated: 1Z��?,02A APPROVED AS TO FORM By: Jeffrey S. aIlinger, City Attorney Dated: "CITY" City of P#im Springs By: Justin Cli on, City Mana K�1M11*11Ii MuniServi By: Name: Carl Kumpf Title: CFO 55575.18140\34492243.1 AMENDMENT NO. 1 TO CONSULTING SERVICES AGREEMENT TOT Compliance Program Auditing Services by MuniServices, LLC (Agreement No. 6017) THIS FIRST AMENDMENT to the Consulting Services Agreement No. 6017 for TOT Compliance Auditing Program Services is made and entered into to be effective on the day of 12013 by and between the City of Palm Springs, a California charter city and municipal orporation (hereinafter referred to as the City), and MuniServices LLC, a Delaware limited liability company, its subsidiaries and affiliates (hereinafter referred to as "MuniServices") collectively, the "Parties". RECITALS A. City and Consultant previously entered into a consulting services agreement for TOT Compliance Auditing Program Services, which was made and entered into on October 6, 2010 (the "Agreement") in the amount of $175,000 through June 30, 2012. B. Section 3.3 of the Agreement provides that the Agreement may be amended at any time with the mutual written consent of the Parties for Additional Services. C. City and Consultant desire to amend the Agreement to authorize Consultant to perform additional TOT Compliance Auditing Program Services as per the Unit Rates in the attached "TOT Analysis & Compliance Program" and "TOT Backstop Audit Services" scope of work in accordance with the per unit rates and charges for the period July 1, 2012 through June 30, 2018. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows: AGREEMENT 1. Amendment to Section 1.1. Exhibit "A" of the Agreement, entitled "Scope of Services": Exhibit "A" of the Agreement is hereby amended to include the following additional services, which shall read as follows: SCOPE OF WORK: Consultant shall provide TOT Analysis & Compliance Program Services as well as TOT Backstop Audit Services to the City per the scope of work as defined in the attached proposals. 2. Amendment to Section 3.1. Exhibit "A" of the Agreement, entitled "Compensation of Consultant": Exhibit "A" of the Agreement, concerning total compensation, is hereby amended to read as follows: "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", and TOT compliance audit services at the Unit Rates defined in the attached proposals for the period of July 1, 2012 through June 30, 2018. 3. Amendment to Section 4.2. Exhibit "A" of the Agreement. entitled "Schedule of Performance": Exhibit "A" of the Agreement is hereby amended to include the following additional provisions: ORIGINAL BID AND/OR AGREEMENT "Schedule of Performance: Effective July 1, 2012 thru September 5, 2013, Consultant shall provide TOT audit compliance services to cover audits through June 30, 2018 covering audit through FY 16-17. 4. Full Force and Effect. This modifying Amendment is supplemental to the Agreement and is by reference made part of said Agreement. All of the terms, conditions, and provisions, thereof, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this Amendment and any provisions of the Agreement, the provisions of this Amendment shall in all respects govern and control. 5. Corporate Authority. The persons executing this Amendment on behalf of the Parties hereto warrant that (1) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said party, (iii) by so executing this Amendment, such party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have executed this Amendment as of the dates stated below. ATTEST: By son, - mes ThompCity Clerk Date: to/00I 90r3 6 F%120. A Ci yy AA!orri6y Date: aeOr d Date:) 7 1/3 Date: "CITY" CITY OF PALM SPRINGS, CA. Bye David H. Ready, City ager Date: APPROVED BY CITY CO[INCIL �-Lt V - - 4 ,ti "CONSULTANT" MuniSeces, LLC By: 3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of —EM5Ap.,_ _ On' "201Z before me, M fir. personally appeared _ fol 51qn PATRICIA ANITA DUNN NOTARY PUBLIC - CAUFORNIA COMMISSION • 1II5=4 FRBSNO COUNTY my COMM, 6W, t sowber 30. 2011$ t who proved to me on the basis of satisfac ory evidence to be the person(s) whose name(s) is/are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same in his/herAheir authorized capacity(es), and that by hisJherAhoir signatuie(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, ewmAed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Caldomia that the foregoing paragraph Is true and correct. WITNESS my hand and official I. SIgnaturt'/f� PBW Nataty seal Above try. d OPTIONAL Though the bbrrnad on below is aw reodred by law: ft may pmw vahnd* to pernm r b*v on ft dommeM and vaW prevent frlrud dent ramoval and reaHachmw# of M kxm to vmU w doann W De Ion of Attached Document T111e or Type of baeument:.-- Document Date. Slgner(s) Other Than Named Above. Capac4(1es) Claimed by Signers) signer's Name: C individual © Corporate Officer — Tille(s). — ❑ Partner — O Umited U General ❑ Attorney in Fad ❑ Trustee El Guardian or Conservator O Other ___ ... _..! Signer Is Representing; . - ...1_ . LL 7a Number of ❑ Corporate Officer--Titie(s):.. ❑ Partner — L: Urn"w ❑ General ❑ Attorney in Fact ❑ 'trustee ❑ Guardian or Conservator ❑ Other: ---- Signer Is Representing:. QZW MAQW Aro��mn• ooso o. son ova ro e000 aea2.au A cis oia�s arox. rrrat+Narrrmo lam MM Ft.oresF.Cd IN WITNESS WHEREOF, the City and the Consultant have caused this Agreement to be executed the day and year first above written. 4 EXHIBIT A TRANSIENT OCCUPANCY TAX (TOT) ANALYSIS & COMPLIANCE PROGRAM Article I -Objectives and Methods MuniServices TOT Analysis and Compliance Program ("Compliance Program") is designed to assist the City in realizing TOT revenue to which it is entitled, and to educate collectors and remitters of TOT to assist in future compliance with the City's ordinances. Article 2-Scope of Work 1. The Compliance Program. Within 90 days of MuniServices receipt of the lodging provider return information from the City for the most recent forty eight (48) months, or the period covered by the applicable statute of limitation, whichever is shorter, MuniServices will provide its Compliance Program as a single service consisting of the following two- phase process. 1.1. Analysis & Discovery - Phase 1. During this phase, MuniServices will: 1. Analyze lodging provider return information from the most recent 48 months or the period covered by the applicable statute of limitation, whichever is shorter, in order to identify unusual or suspicious reporting and/or activities that warrant further review; 2. Conduct unobtrusive collection of information on each property, including number of rooms, occupancy rate, property's condition, business dynamics; 3. Provide a detailed analysis report to the City identifying lodging providers who might require additional investigation or review to determine their compliance with the City's TOT ordinance; 4. Coordinate with designated City official(s) as necessary to review the analysis report; 5. Develop with the designated City staff a list of lodging providers to be subject to a compliance review of lodging and tax records; and 6. During the term of this Agreement, provide up to ten (10) hours of additional consulting time to assist the City in evaluating or implementing any of the proposed actions suggested by the above report. 1.2. Compliance Review - Phase 2. Based on our previous experiences, on average only about 30 of the properties will be recommended for Phase II. During this phase, MuniServices will conduct a compliance review consisting of some or all of the following procedures: a. Provide City staff with a detailed list of all records required to be made available by lodging providers for the reviews, together with a draft engagement announcement letter to be sent to each lodging provider; 5 b. Examine records pertaining to TOT for each lodging provider selected for a compliance review. c. Verify accuracy of filed TOT returns with daily and monthly activity summaries; d. Review a random sample of the daily and monthly summaries to determine if the daily summaries reconcile to the monthly summaries; e. if MuniServices believes such a review is necessary, review secondary and tertiary documentation such as bank statements to verify that deposits reconcile with the reported revenue on the TOT returns or other tax filings; f. Review exempted revenue for proper supporting documentation; g. Submit to designated City staff a compliance review report that includes: • MuniServices review findings; • For each erroribmission identified and confirmed, accompanying documentation that MuniServices believes is necessary to facilitate recovery of revenue due from lodging providers for prior periods; • Draft notices of deficiency determination, commendation and warning letters as applicable; and recommendations; h. Coordinate with designated City official(s) as necessary to review compliance review report; i. Provide assistance to City in reviewing any matters submitted in extenuation and mitigation by lodging providers in contesting a deficiency determination; and j. Prepare and document any changes to the compliance review findings and provide revised tax, interest or penalty amounts due the City. Article 3-Deliverables The Compliance Program - Analysis & Discovery - Phase 1 Provide a detailed analysis report to the City identifying lodging providers who might require additional investigation or review to determine their compliance with the City's TOT ordinance. The Compliance Program - Compliance Review - Phase 2 Provide City staff with a detailed list of all records required to be made available by lodging providers for the reviews, together with a draft engagement announcement letter to be sent to each lodging provider. Submit to designated City staff a compliance review report that includes: • MuniServices review findings; • For each error/omission identified and confirmed, accompanying documentation that MuniServices believes is necessary to facilitate recovery of revenue due from lodging providers for prior periods; • Draft notices of deficiency determination, commendation and warning letters as applicable; and recommendations; 0 C Article 4-Compensation What the City will pay MuniServices 1. Compliance Program. City will compensate MuniServices for the Compliance Program as follows. 1.1 Phase 1. City shall pay MuniServices a fixed fee of $500 per each lodging property. This fee applies to all lodging properties located in the City limits. MuniServices will invoice fifty percent (50%) of this fixed fee upon execution of the contract and the City providing a list of properties to be audited. Over the contract period, the City will be providing Muni Services with various lists of properties to be audited. The remaining fifty percent (50%) upon delivery of the analysis report (see subparagraph 1.1(d) above). Payment will be made to MuniServices within thirty -days (30) of receipt of MuniServices' invoice. Any amounts which remain unpaid after thirty -days (30) shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law. 1.2 Phase 2. a. City shall pay MuniServices a fixed fee of $750 per each lodging property reviewed. MuniServices will invoice this fixed fee fifty percent (50%) upon approval by the City of the list of lodging providers to be subject to a Phase 2 compliance review of lodging and tax records. The remaining fifty percent (50%) upon delivery of the compliance review report. Payment will be made to MuniServices within thirty -days (30) of receipt of MuniServices' invoice. Any amounts which remain unpaid after thirty -days (30) shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law. b. City shall reimburse MuniServices for out-of-pocket expenses and travel costs ("Travel Costs" include, but are not limited to, the costs of car rental, gasoline, and traveling time at a reduced hourly rate of $50 per hour). Provided that no more than 30% of the properties will be reviewed under Phase Il, City shall reimburse MuniServices for out-of-pocket expenses and Travel Costs not to exceed $2,000 per trip. If MuniServices expects to spend more than $2,000 for out-of-pocket expenses and Travel Costs per trip, MuniServices shall get prior approval from the City for the amount greater than $2,000. MuniServices will invoice these out-of-pocket expense and Travel Costs immediately upon delivery of the compliance review report. Payment will be made to MuniServices within thirty -days (30) of receipt of MuniServices' invoice. Any amounts which remain unpaid after thirty -days (30) shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law, whichever is greater. 7 y 3. Additional Consulting. City may request that MuniServices provide additional consulting services at any time during the term of the Agreement. If MuniServices and City 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, MuniServices' standard hourly rates range from $75 per hour to $300 per hour. The following are sample hourly rates based on the job classification: • Principal: $300 per hour • Client Services: $250 per hour • Information Technology (IT) support: $200 per hour • Operational Support: o Director: $175 per hour o Manager: $150 per hour o Senior Analyst: $125 per hour o Analyst: $100 per hour o Administrative: $75 per hour These additional consulting services will be invoiced at least quarterly based on actual time and expenses incurred. Hours of consulting expressly included in MuniServices compliance service or the seminar service are not "additional consulting services" for purposes of this section. Article 5 — City Obligations Data City shall provide copies of returns submitted by all domiciled lodging providers for the most recent forty-eight (48) months or the period covered by the applicable statute of limitation, whichever is shorter, to MuniServices prior to the start of Phase I. If the City has the full return data digitized, submitting such in electronic format would be preferable. B2 C TRANSIENT OCCUPANCY TAX (TOT) Vacation Rental AUDIT SERVICES Article 1-Objectives and Methods MuniServices TOT Audit Services for Vacation Rentals is designed to assist the City in maximizing TOT revenue to which it is entitled, and to minimize the cost of lost revenue by educating collectors and remitters of TOT to assist in future compliance with the City's ordinances. This agreement is to perform audits of Vacation Rental properties at the City's direction. MuniServices will be directed by the City to perform audits described in the "Scope of Services" below on a case by case basis. Article 2-Scope of Vacation Rental Compliance Audit The Vacation Rental concept supports open communication between MuniServices staff and City staff. MuniServices experience in providing the Vacation Rental compliance audit service has demonstrated that the program generates the maximum amount of revenue possible to the City when the City's audit staff and MuniServices audit staff work closely together. Within 90 days of MuniServices receipt of the lodging provider return information from the City for the most recent forty-eight (48) months, or the period covered by the applicable statute of limitation, whichever is shorter, MuniServices will provide its Vacation Rental Compliance Audit service as a single service consisting of the following: a. For each lodging property that the City identifies as being potentially non -compliant, MuniServices will coordinate with the business and the City to make the necessary corrections plus retroactive adjustments for eligible amounts of Transient Occupancy taxes due to the City. MuniServices coordinates and communicates between typically three parties; (a) sales/operations personnel at the taxpayer's local operation; (b) tax personnel at the company's corporate headquarters; and (c) the in-state/out-of-state district offices. Correction of the account is considered to have been made once the payments on identified taxpayer accounts are being properly allocated by the taxpayer to the City in the period in which the payment was made. Since MuniServices is operating as an additional support and resource to the City's internal program, the City will have the opportunity to review any individual error and/or omission prior to MuniServices Vacation Rental Compliance Audit of any particular account. MuniServices will detect and document any subsequent errors or omissions not identified by the City. M11niSery1ces Obligations a. Prepare a draft engagement announcement letter to be sent to each lodging provider and review the letter with the designated City staff member before sending to the lodging provider; b. Examine records pertaining to TOT for each lodging provider selected for a compliance review. 0 c. Verify accuracy of filed TOT returns with daily and monthly activity summaries; d. If MuniServices believes such a review is necessary, review secondary and tertiary documentation such as bank statements to verify that deposits reconcile with the reported revenue on the TOT returns or other tax filings; e. Review exempted revenue for proper supporting documentation; f. Submit to designated City staff a compliance review report that includes: • MuniServices review findings; • For each error/omission identified and confirmed, accompanying documentation that MuniServices believes is necessary to facilitate recovery of revenue due from lodging providers for prior periods; • Draft notices of deficiency determination, commendation and warning letters as applicable; and recommendations; g. Coordinate with designated City official(s) as necessary to review compliance review report; h. Provide assistance to City in reviewing any matters submitted in extenuation and mitigation by lodging providers in contesting a deficiency determination; and i. Prepare and document any changes to the compliance review findings and provide revised tax, interest or penalty amounts due the City. Article 3-Deliverables Provide City staff with a detailed list of all records required to be made available by lodging providers for the reviews, together with a draft engagement announcement letter to be sent to each lodging provider. Submit to designated City staff a compliance review report that includes: • MuniServices review findings; • For each error/omission identified and confirmed, accompanying documentation that MuniServices believes is necessary to facilitate recovery of revenue due from lodging providers for prior periods; • Draft notices of deficiency determination, commendation and warning letters as applicable; and recommendations; Article 4-Compensation What the City will pay MuniServices City shall pay MuniServices a fixed fee of $950 per each lodging property audited. This fee applies to all lodging properties located in the City limits. MuniServices will invoice fifty percent (50%) of this fixed fee upon receipt of the list of properties subject to the Vacation Rental Compliance Audits as directed by the City. No audits will be performed without prior authorization by the City. The remaining fifty percent (50%) upon delivery of the compliance review report. Payment will be made to MuniServices within thirty -days (30) of receipt of MuniServices' invoice. Any amounts which remain unpaid after thirty -days (30) shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law. IM c When travel is required, City shall reimburse MuniServices for out-of-pocket expenses and travel costs ("Travel Costs" include, but are not limited to, the costs of car rental, hotel, meals, gasoline, and traveling time at a reduced hourly rate of $50 per hour). City shall reimburse MuniServices for out-of-pocket expenses and Travel Costs not to exceed $2000 per trip. if MuniServices expects to spend more than $2000 for out-of-pocket expenses and Travel costs, MuniServices shall get prior approval from the City for the amount greater than $2000. MuniServices will invoice the out-of-pocket expenses and Travel Costs immediately upon delivery of the compliance review report. Payment will be made to MuniServices within thirty -days (30) of receipt of MuniServices' invoice. Any amounts which remain unpaid after thirty -days (30) shall accrue interest at the rate of one and one- half percent (1.5%) per month, or the maximum amount permitted by law, whichever is greater. Additional Consulting City may request that MuniServices provide additional consulting services at any time during the term of the Agreement. If MuniServices and City 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, MuniServices' standard hourly rates range from $75 per hour to $300 per hour. The following are sample hourly rates based on the job classification: • Principal: $300 per hour • Client Services: $250 per hour • Information Technology (IT) support: $200 per hour • Operational Support: o Director: $175 per hour o Manager: $150 per hour o Senior Analyst: $125 per hour o Analyst: $100 per hour o Administrative: $75 per hour These additional consulting services will be invoiced at least quarterly based on actual time and expenses incurred. Hours of consulting expressly included in MuniServices compliance service are not "additional consulting services" for purposes of this section. Article 5 - City Obligations City Obligations 7. The designated City staff member(s) will provide MuniServices with a list of the lodging providers to be subject to a compliance review of lodging and tax records. 8. Because this is a Vacation Rental Compliance Audit by MuniServices, City will provide MuniServices the following: i. summary information from the most recent forty-eight (48) months or shorter, to include gross rents, exemptions, and identified reporting anomalies; 11 ii. For each property, City will provide number of rooms, occupancy rate, and any business dynamics associated with the property; and iii. Provide MuniServices with a designated City staff to address any questions rising from the materials provided. rd CONSULTING SERVICES AGREEMENT TOT Compliance Program Auditing Services by MuniServices LLC , THIS AGREEMENT FOR CONSULTING SERVICES ("Agreement") is made and entered into on 0. 6 , 201Q, by and between the City of Palm Springs, a California charter city and municipal corporation ("City"), and MuniServices LLC, a Delaware limited liability company, its subsidiaries and affiliates ("Consultant"). City and Consultant are individually referred to as "Party" and are collectively referred to as the "Parties". RECITALS A. City has concluded the initial first phase "pilot TOT compliance program" of Category F hotels and now requires the services of a professional auditing firm to perform a TOT compliance program audit of the City's remaining 135 lodging providers (excluding individual vacation rentals (Category I). The Audit will be performed in a manner consistent with MuniServices's Transient Occupancy Tax ("TOT") analysis and Compliance Program ("Compliance Program") as described in MuniServices's Proposal ("Project"). B. Consultant has submitted to City a proposal to provide Transient Occupancy Tax (TOT) Auditing Services to City under the terms of this Agreement. C. Based on its experience, education, training, and reputation, Consultant is qualified and desires to provide the necessary services to City for the Project. D. City desires to retain the services of Consultant for the Project. In consideration of these promises and mutual agreements, the Parties agree as follows: AGREEMENT 1. CONSULTANT SERVICES 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide TOT auditing services for approximately 123 hotels and motels representing over 6,000 rooms and 12 vacation rental agencies representing approximately 726 registered vacation rental homes in a manner consistent with the provisions of the Compliance Program as described in the MuniServices Proposal to City as described in the Scope of Services/Work attached to this Agreement as Exhibit "A" and incorporated by reference (the "services" or "work"). Exhibit "A" 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 consistent with prevailing industry standards. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern. 1.2 Compliance with Law. Consultant services rendered under this Agreement shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations. Revised: 6116110 72V5".] ORIGINAL BID AND/OR A REEMENT 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. Consultant shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit "A". The total amount of Compensation shall not exceed $175,000.00 (one hundred seventy five thousand dollars). 3.2 Method of Payment. In any month in which Consultant wishes to receive payment, Consultant shall submit to City an invoice for services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City's finance director. Payments shall be based on the rates set forth in Exhibit "A" for authorized services performed. City shall pay Consultant for all expenses stated in the invoice that are approved by City and 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 City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or work, when required by the enactment or revision of any subsequent law; or 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 by the City Council of City for each fiscal year. Revised 6/16/10 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. 4. PERFORMANCE SCHEDULE 4.1 Time of Essence. Time is of the essence in the performance of this Agreement. 4.2 Schedule of Performance. All services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit "A." Any time period extension must be approved in writing by the Contract Officer. 4.3 Force Maieure. The time for performance of services to be rendered under this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, if Consultant notifies the Contract Officer within ten (10) days of the commencement of such condition. Unforeseeable causes include, but are 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. After Consultant notification, the Contract Officer shall investigate 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. 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 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of two (2) years, commencing on October 1, 2010, and ending on September 30, 2012, unless extended by mutual written agreement of the parties. 4.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant. 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 City. Upon receipt of the notice of termination, Consultant shall immediately cease all services 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 after such notice. Consultant may terminate this Agreement, with or without cause, upon thirty (30) days written notice to City. 5. COORDINATION OF WORK 5.1 Representative of Consultant. The following principal of Consultant is designated as being the principal and representative of Consultant authorized to act and make all decisions in its behalf with respect to the specified services and work: Bryan Whitford, National Manager. 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 3 Revised 6116'10 G (' Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services under this Agreement. 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 ("Contract Officer"). Consultant shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the services. Consultant shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. 5.3 Prohibition Against Subcontracting or Assignment. 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 not contract with any other individual or entity to perform any services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest 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, except as otherwise specified. Consultant shall perform all required services 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 in this Agreement. Consultant shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Consultant by providing written notice to Consultant. Name: Title: Doug Jensen Vice President, Client Services Bryan Whitford National Manager Steve Stark Client Services Manager Tim Olson Senior Auditor Gennaro DiMassa Senior Auditor Tami Nguyen Auditor Tom Manning Auditor 4 Revised: 6116/10 Ted Kamel Auditor Kandi Warnock Auditor 6. INSURANCE Consultant shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference. 7. INDEMNIFICATION. 7.1 Indemnification. To the fullest extent permitted by law, 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 and all third party liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively third party "Claims"), including but not limited to third party Claims 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, that arise out of or relate to Consultant's performance under this Agreement. This indemnification clause excludes third party Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and Iimits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other liability under this Agreement. Consultant's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 8. RECORDS AND REPORTS 8.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer reports concerning the performance of the services required by this Agreement, or as the Contract Officer shall require. 8.2 Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable 4 Revised 6116110 720599.1 times, including the right to inspect, copy, audit, and make records and transcripts from such records. 8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of this Agreement shall be the property of City. Consultant shall deliver all above -referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Consultant may retain copies of such documents for Consultant's own use. Consultant shall have an unrestricted right to use the concepts embodied in such documents. 8.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 8.5 Cost Records. Consultant shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred while performing under this Agreement. Consultant shall make such materials available at its offices at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment for inspection by City and copies shall be promptly furnished to City upon request. 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 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 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 9.3 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. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement. 6 Revised 6116110 9.4 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. 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. 9.5 Legal Action. In addition to any other rights or remedies, either party may take legal 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. 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 Conflict of Interest. No officer or employee of the City shall have any direct or indirect financial interest in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects their financial interest or the financial interest of any corporation, partnership, or association in which he/she is, directly or indirectly, interested in violation of any state statute or regulation. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 10.3 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 11.1 Notice. Any notice, demand, request, consent, approval, or communication that 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. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. Either party may change its address by notifying the other party of the change of address in writing. Revised 6/16110 O 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: Patricia Dunn, Legal Dept. 7335 North Palm Bluffs Ave. Fresno, CA 93711 11.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and supersedes all other written agreements. 11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. 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. 11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 11.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third -party beneficiary or otherwise, upon any entity or person not a party to this Agreement. 11.7 Recitals, The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement. g Revised: 6/16110 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs Date: (�(�,'( a010 By:� David H. Ready City Manager APPROVED BY CITY COUNCIL APPROVED .. 'O FORM: By: Dou as C. Holland, Attorney Date: September 22, 2010 Date: September 22, 2010 #*r ATTEST mes Thompson, City Clerk "CONSULTANT" MuniServices, LLC By: Marc Herman, President evin Cerut i, P Finance 9 Revised 6/16110 G r� CALIFOMIA ALL-PURP08B ACKNOWLEDIIIMMT State of California County of �.StnQ On 091 2-?b 0before rr e, 04r }lr 04 { Duri V1 r **MD r�l ftm aM d +r GO VWCNt w personally appeared Keuk ilkk+6A o*r- t _...... I+wniyof W +l to itll ICu tpU N COmndubn # 1770921 I -opm-awl /txe Notary Sal Asaw who proved to me on the basis of satisfactory evidence to be the persons) whose name(s) Ware subscribed to the within instrument and acknowledged to me that helshehhey s ecuted the same in his/herAhelr authorized capacity(les), and that by hisAwAheir slgnature(s) on the h,strument 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 Calltomla that the foregoing paragraph Is true and correct - WITNESS my ha and official seal. Signature _�" d Notary FUM OPTIONAL Though the Infbawtlon below la not r"L*ed by law, It may prow vababre to persons r6yFrq on ale docvmerrf and could pmwat fraudtdent mrrwval and waftachment of tlris form to another document. Description of Attached Document Title or type of Document: Document Date: Signer(s) Other Than Named Above: Cspecity(ies) Clalmed by Signer(s) Signer's Name- 0 Individual ❑ Corporate Officer Title(s): ❑ Partner —El Limited ID General MMMMMrm ❑ Attorney in Fact ❑ Trustee Top of Ilwmb here ❑ Guardian or Conservator ❑ Other. Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ ThOt" ❑ Guardian or Conservator ❑ Other: Signer Is RepresentIM: �t.C11T ThU'-11317R,::r 08o07 Nat" Nowy AnodasNw ONO De Sao Aw M 11=2402 •CMwearpr. CA 013134100• �ta ra%dodr7.a o bm #MW newder:CdT011Fme 1�06e'70%OS27 j [7 Revised 6/16110 ? cC qq I 0 EXHIBIT "A" CONSULTANT'S SCOPE OF SERVICES/WORK Including, Schedule of Fees And Schedule of Performance ] ] Revised: 6116110 720i99.1 O 0 PROPOSAL Transient Occupancy Tax (TOT) Compliance Program PROJECT SCOPE OF WORK MuniServices' TOT Audit Program ("Compliance Program") is designed to assist the City of Palm Springs ("City") identify and collect deficient TOT revenue through audit of fiduciary collectors for the period of the statute of limitations. From this performance it is anticipated that City can derive retrospective revenue exceeding the cost of the Program. Additionally, the Program is designed to promote the timely and appropriate return and remittance of the TOT revenue in the future through instruction of fiduciary collectors in their duties, and strengthening the compliance ethic among them. This too can benefit City through receipt of more revenue to which it is entitled sooner rather than later. Ancillary services related to audit performance shall include analysis of past returns and other relevant data to better target auditing; preparation of audit and related analytical reports to City; preparation of draft correspondence for City to inform those audited of outcomes -- that is, notices of deficiency determination, or commendation, credit or warning letters; review of any matters submitted in extenuation or mitigation of audit findings and preparation of draft responses thereto on behalf of City; provision of other collection advice as requested by City; etc. Ancillary services related to instructional performance shall include preparation of and dissemination to fiduciary collectors such informational materials as guidelines on taxable and non-taxable nature of charges (upon City approval); recommendation to City of enhancements in administration; conduct of seminars for fiduciary collectors as deemed helpful; provision of particular and specific advice as may be requested by fiduciary collectors and City; etc. 12 Revised. 06MO The compliance ethic can be strengthened among the fiduciary collectors through awareness that they are under heightened scrutiny and subject to audit. Recognition that a level playing field exists for them and their competitors can also serve to enhance compliance and promote satisfaction. Such performance and the benefits to be derived have been demonstrated to City through the Pilot Program. City has requested a proposal to expand this performance from the Pilot Program to 135 additional transient lodging properties and rental agencies. MuniServices understands that Individual Vacation Rentals (City Category 1) will be audited by City, and therefore, as requested, those fiduciary collectors of the TOT are excluded from this proposal. SCHEDULE OF PERFORMANCE The Compliance Program shall be conducted over a two-year period beginning October 1, 2010 and concluding September 30, 2012, if not completed sooner. Audits shall be conducted at the rate of 20 to 30 audits per quarter. Instructional performance shall be in concert with and proportional to audit performance. It is assumed that City shall strive to timely make available to MuniServices copies of returns and materials requested, and otherwise be responsive to the coordination necessary for this timetable to be achieved, as it has done and been during the Pilot Program. If City wishes, it may have an option to authorize each quarterly increment. MuniServices assumes that City shall exercise such in a manner consistent with the two-year timeframe. Candidates for audit can be as arrayed by City. Delivery of reporting shall be as each audit is completed, unless City would prefer block delivery by quarterly increment. In that instance, delivery shall be by the end of the quarter, cooperation of those fiduciary collectors audited permitting. COST PROPOSAL 13 Revised 6116110 F?C5�9 E MuniServices shall provide the Compliance Program for an aggregate fee of $168,750.00, plus reimbursement of expenses. This fee equates to $1,250.00 each for the 135 lodging properties and rental agencies encompassed. With audits being conducted at a pace of 20 to 30 audits per quarter, quarterly fees will be paid for accordingly. Once the number of audits for a given upcoming quarter has been determined, then the appropriate amount of the advance and delivery payments for that quarter may be determined. The quarterly rate shall be payable 50% in advance with the remaining 50% payable upon delivery to City of applicable audit reporting and draft findings correspondence. However, should MuniServices be unreasonably delayed in completion of audits by lack of cooperation from fiduciary collectors, it shall be entitled to payment at the conclusion of a quarter of the remaining 50% plus expenses for those audits on which delivery has been made to City. Expenses shall be billed at the conclusion of the quarter in which they are incurred. It is anticipated that expenses will be approximately $1,000 per quarter depending upon the level of cooperation from the fiduciary collectors, but is not expected to exceed $6,250 in the aggregate. City may request MuniServices to provide additional consulting services at any time during the term of the Program. If MuniServices and City agree on the scope of additional consulting services requested, then MuniServices shall provide the additional consulting services on a Time and Materials basis. Depending on the personnel assigned to perform that work, MuniServices' hourly rates shall range from $75.00 per hour to $300.00 per hour. These additional consulting services shall be invoiced no less frequently than monthly based on actual time and expenses incurred. 14 Revised: 6116110 Bryan Whitford shall direct the Compliance Program. He joined MuniServices in 1998. He holds B.A. and M.P.A. degrees and served for two decades as a city and county manager before entering the government revenue enhancement business in 1991. Since then, he has conducted or directed thousands of compliance audits on behalf of hundreds of clients nationwide, including an approximate 100 municipal and county clients in California. He is a recognized expert on local excise taxation, having published articles, assisted in the drafting of ordinances and statutes, developed return forms and systems, consulted with governments and affected industries, spoken at numerous seminars, and testified before Congress and state legislatures. His testimony in court on excise tax issues is generally qualified as "expert". Other personnel to be assigned have a combined experience of more than forty years in performing lodging tax audits, 10 years in lodging hospitality management and 12 years in State and local government, as well as significant other audit and analysis experience. Tim Olson, Gennaro DiMassa and Tami Nguyen shall be principally involved with the work. Assistance as needed shall be provided by Tom Manning, Ted Kamel and Kandi Warnock. No substitution to this exceptional staffing is anticipated. 15 Revised 6116110 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 6116110 INSURANCE 1. Procurement and Maintenance of Insurance. Consultant shall procure and maintain 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 procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of 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 extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. 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. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement 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 is: required _ _ is not required; 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. 3. Primary Insurance. For any claims related to this Agreement, Consultant's insurance coverage shall be primary with respect to the 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 I? Revised 6116110 contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1) to purchase tail 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 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. 5. Sufficiency of Insurers. Insurance required in this Agreement 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 BT—, Class VII, or better, unless otherwise acceptable to the City. 6. 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 andior 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: l . "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" may be 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. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. g Revised 6116MO 72Q599. I 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. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant's obligation to provide them. 7. 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 (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) 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. S. 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 liability. �{] Revised 6/16/10 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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