HomeMy WebLinkAbout12/17/2008 - STAFF REPORTS - 2.N. ry
ti 4
u N
CITY COUNCIL STAFF REPORT
DATE- DECEMBER 17, 2008 CONSENT CALENDAR
SUBJECT: CONTRACT WITH MUNISERVICES, LLC FOR AUDITING AND
ASSOCIATED CONSULTING SERVICES FOR THE CITY'S UTILITY
USER TAX / FRANCHISE COMPLIANCE PROGRAM
FROM: David H. Ready, City Manager
BY: Finance Department
SUMMARY
Utility User Tax (UUT) represents the City's fourth largest source of General Fund
revenue. UUT is collected by 150 utility providers from users of their services and is
passed on to the City to pay for operations that directly and indirectly help support those
utility services. With the advent of new technologies and growth in the number of
service providers, the complexity of the utility industry has increased significantly,
leading to potential leakage in the appropriate collection of this tax. This requires staff
to take a more sophisticated approach to ensure that the City is collecting the correct
amount of taxes due per our ordinance. MuniServices has designed a comprehensive
compliance program that would help the Finance staff address the City's needs in this
area.
RECOMMENDATION:
1. Approve a contract services agreement with MuniServices, LLC and its agents to
provide the City compliance and other services for a period of three years with three-
year extension options at the City's discretion, subject to final review and approval
by the City Attorney (included in the contract is a 30-day 'termination for
convenience' clause). Fees will be based upon 6/10th of 1% of the prior fiscal year's
UUT revenues.
2. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR FISCAL
YEAR 2008-2009".
3. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
The proposed contract with MuniServices includes compliance services that focus on
the tax collection responsibilities of our numerous utility service providers, and employs
a variety of enforcement tools to assure the proper and full collection of the City's UUT.
Item No. 2 • N •
City Council Staff Report
December 17, 2008— Page 2
UUT/Franchise Compliance Services Contract with MuniServices
Other services provided under the contract include recommendations of ordinance
updates and administrative rulings that reflect or anticipate changes in technology,
marketing, legislation and case law. MuniServices also provide procedural protections
and enforcement tools to facilitate the collection of our UUT. In addition, staff will be
kept abreast of important changes and events affecting our UUT and franchise fees
through regular client only conference calls and other web-based communications.
Collectively these integrated services will help maximize and protect our City's UUT and._
utility franchise revenues.
Section 7.04.030 of the Municipal Code provides that the City Council may authorize the
acquisition of supplies, equipment or services without competition when it is determined
that an unusual or unique situations exists, in that due to experience and expertise
demonstrated in prior contracts with the city a particular contractor is uniquely qualified
for a particular task, that makes the application of all requirements of competitive sealed
bidding or competitive sealed proposals contrary to the public interest. Pursuant to the
requirements of Section 7.04,030, the Procurement Manager and the Director of
Finance have determined that prior exemplary contract performance and special
expertise of MuniServices LLC for similar tax auditing services (sales tax and property
tax) for the City is acceptable and will adequately protect the public interest in that the
total cost of the services to be provided will likely be equal to or less than what could be
obtained through an independent City competitive process at this time.
FISCAL IMPACT:
Based upon UUT collected in the 2007-2008 fiscal year, the first year's annual fees will
be $40,677 with half of that amount or $20,339 payable in the current fiscal year. The
Director of Finance will report out the results of collection efforts associated with this
contract as appropriate.
Geoffre S. Kiehl, Finance Director Thomas Wilson,�Assistant City Manager
L
David H. Ready, C nag
Attachment:
Draft contract
Budget Amendment
CONSULTING SERVICES AGREEMENT
(MUNISERVIC'ES, LLC FOR AUDITING,GEOCODING, AND ASSOCLITED CONSULTING
SERVICES FOR UTILITY USER TAXI FRANCHISF. COMPLIANCE AND REVENUE
PROTECTION PROGRAM)
THIS AGREEMENT FOR CONSULTING SERVICES (the "Agreement") is made and
entered into this _ day of , 200 , 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 fima for UUf 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 Scope 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 terns
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, slate, and local laws, statutes
and ordinances and all lawful orders, rules, and regulations promulgated thereunder.
t Revised:31=0 1
�u7o_71
�:2
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 warrauts 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 arc approved by the Contract Officer consistent
with this Agreement, within thirty (30) days ofreceipt 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:3123107
>07039 2
cS
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
Us 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 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
3 Rovised:3123/07
:07639 9
I�
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/ 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
(Other may be assigned as needed to support the individuals listed above in providing
the contracted services to the City)
6. TNSTTRANCE
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 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 liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards,
A Revised:3123107
n7r„v
r3
settlements, damages, demands, orders, penalties, and expenses including legal costs and
attorney fees (collectively "Claims"), including but not limited to 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, 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 indemni fication obligation or other liability hereunder.
S. RECORDS AND REPORT'S
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 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 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 otber materials prepared by Consultant solely for performance of this Agreement
shall be the property of City and shall be delivered to City upon request of the Contract Officer
or upon the termination of this Agreement, and 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 hereunder. Consultant may retain copies of such
documents for its own use. Consultant shall have an unrestricted right to use the concepts
embodied therein_
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. [Deleted by agreement of the parties_]
9. ENFORCEMENT OF AGREEMENT
$ Revi5ed:3123107
Or
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 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
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.
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 deternnined 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 terns 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
6 Revised:3123107
5076392
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. MSCELLANEOUS PROVISIONS
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, Cali fomia 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. 1n 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 Authority. The persons executing this Agreement on behalf of the parties hereto
wan-ant 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.
7 ReviS¢d:3/22/07
iu)939 2
[SIGNATURE PAGE SEPARATELY ATTACHED]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
"CITY"
City of Palm Springs
Date: By:
David Ii. Ready
City Manager
APPROVED AS TO FORM: ATTEST
By: S�4ZM4,1t(_ By:
Dougl Holland, James Thompson,
City Attomey City Clerk
"CONSULTANT"
MuniServiees, LLC
Date: By :
Marc Herman
President
Date:
Kevin Cerruti
Vice President, Finance
APPROVED AS TO FORM:
Date:
Eric Myers, General Counsel
g Revised;3123107
k16391 [[
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On before me, ,
Oon Hoc FeeN Nueemtl neo IAe tA�
personally appeared
a�olrl cl Sgna{sl
who proved to me on the basis of satisfactory evidence to
be the person(s)whose name(s) is/are subscribed to the
within instrument and acknowledged to me that
he/shefthey executed the same in his/fner/iheit authorized
capacity(es), and that by his/her/their signAie(s) on the
instrument the person(s), or the entity upon behalf of
which the person(s)acted, executed the instrument-
I codify 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
Place rw:e•y Seal Fbxm Siff��Nre ch�caryra+a=
OP770NAL
Though the;mbnv3tion below iS not rcquircd bylaw,A racy prow ml ranla to pomons ralynrp en are ll=ment
and could prevent lraudulem removal and reattachment of ihha aortn m anvJher document.
Description of Attached Document
Title or Type of Documenl:.
Document Date: ._.____ Number of Pages:
Signer(s)Other Than Named Above;
Capacity(ies) Claimed by Signer(s)
Signer's Name;_., Signers Name:
❑ Indivlduat ❑Individual �W
❑ Corporate Of6eer—Tiae(s)_ ❑Corporate Officer•—Tille(s):
❑ Partner—❑Limited 1:1 General ❑Partner—❑Limited ❑General
Attorney in Fad - 17 Attomey in Fact
C] Trustee
sap o:;hu'b h!m Cl Tmstee Top of Ih,ma hom
❑ Guardian or Consorvaror ❑Guardian or Conservator
❑ Other;__,.,__ ❑Olhec
Slgnar Is Representing; Signer Is Represenling:
OYOaTM1aYo[wlNggr,h55an�1kn•335o L'p5pto,Lv-I±Oe¢c2<fP•Ch�-txmr.I�Ct sh3lrr2{02•�.rs;.nelonelVok�a,•e,q IIn NAOT a�[h�'Gnlhu•Ree1I11un9C�]
9 Revised 3l23107
507839 2
�U
EXHIBIT "A"
CONSULTANT'S
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
10 Reviwd:323107
50709 2
EXHIBIT A
AUDITING, GEOCODING,AND ASSOCIATED CONSULTING SERVICES
FOR
UTILITY USERS TAX/FRANCHISE
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 "Progr '), 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, gcocoding, information, and associated services and skills, in
conjunction with the legal and "protective" services Donald H_ Maynor, A Professional Law
Corporation (Ma or), 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
y
UUTI-073108v7 1 MuniServices City
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 with Maynor in providing the following
revenue protection services designed to protect the City's existing and future UUT
and utility franchise revenues:
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-073106v1 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
subj ects.
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 Wcbpage. 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 Attonney's
office in, i) gaining access to audit-related information under existing
_ �+ r
UUTI-013108v Mu l 3 niservices City T!;
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 MumiServices will provide no legal services that may
be required wider 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 3(13) below regarding compensation for City-
specific audits.
B. MuniServices Responsibilities for City-Specific Activities
1. Work Plan Approval for Citv-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 paynxent deviation from
a specific utility).
2. City Approval of Discovery Actions. For City-specific activities,
MtmiServices will receive prior authorization from the City's staff to obtain
and examine utility and customer records (hard copy and data fornat)
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 7284.6-.7). Throughout the
above process, MuniServices shall be available to meet with the City, utility
UUTI-07310Ev1 4 MuniServices Ciry
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 S13 278 gas and electric lists (including names
of customers refusing to pay surcharges), and certified copies of the UUT ordinance
and any subsequent arnendments.
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 Cor participating in
the Program shall be the greater of: i) six-tenths of a percent (0.6%) of the
total UUT revenues received by the City (excluding UUT revenues derived
from sewer, water, trash or CA.TV) based on the prior fiscal year, or ii) fifteen
thousand dollars ($15,000) (`Minimurn Fee"). In no case shall the City's
annual fixed fee exceed ninety-five thousand dollars (595,000) ("Maximum
Fee"). The Minimum Fee and Maxirnurn 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 S iYlzoM&MCLs City
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 irunediately 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 LUT/franchise 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-speci Gc 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-0731080 6 Alfw &iC ices Ch �
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 ,kill 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 maxirntun 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 all
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
UUTI-07310Ev1 7 NluntServices City 1 d
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 coirection/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.
�3
UUTI-073108v1 3 MuniServices City
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:3/23/07
50709 2
i
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 Scope of Insurance. The minimum amount of insurance required
hereunder shall be as follows:
I. 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 [THIS IS OPTIOV,11. 117TH USE C3FSHOR1-1 f 1?H C&fl; 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 RevMd.3/23/07
07037 2
21
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. { 1"HdS ,SEC TION TO BE IM LUI)FT) UNI,)- IF F.RPO)PS & 0AESSIO NS
INS UP,INCL LS PLOUPIL'D]
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 VTI, 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:
I. "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 Na" 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
13 Revised:3/23/07
507636 7,
22
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
Consaltant'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 liability.
14 Revised:3123107
wn6;e
r5
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET
FOR THE 2008-09 FISCAL YEAR.
WHEREAS, Resolution No. 22265 approving the budget forthe Fiscal Year2008-09
was adopted on June 18, 2008; and
WHEREAS, the City Manager has recommended, and the City Council desires to
approve, certain amendments to said budget.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS
DOES HEREBY RESOLVE, that the Director of Finance is authorized to record inter-fund
cash transfers as required in accordance with this Resolution, and that Resolution No.
22265, adopting the Fiscal Year 2008-09 budget is hereby amended as follows:
SECTION 1. ADDITIONS
Fund Activitv Account Amount
001 1300 43200 $20,340.00
General Fund Finance Contract Services
Purpose: Establish funding for contract service agreement with Muni Services to review
UUT collections.
SECTION 2. SOURCE
Fund Activity Account Amount
001 293 11 $20,340.00
General Fund Fund Balance
ADOPTED THIS 17th DAY OF DECEMBER, 2008,
David H. Ready, City Manager
ATTEST:
James Thompson, City Clerk
24
Resolution No.
Page 2
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that
Resolution No, is a full, true and correct copy, and was duly adopted at a regular
meeting of the City Council of the City of Palm Springs on by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
f �