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HomeMy WebLinkAboutC2012-326 - 8/27/2012 - NAMuniServices, LLC Consultant Services Agreement I. Us. We are MuniServices, LLC, a Delaware limited liability company, and a wholly owned subsidiary of Portfolio Recovery Associates, Inc.; with an office at 7335 N. Palm Bluffs Avenue, Fresno, California 93711. In this Agreement we are referred to as 'MuniServices" or "we ", "our ", "us. We use our sister company, RDS, to assist us with work. Sometimes we will refer to you and us as the "Parties." If you need to contact us a short Iist of helpful contacts is attached as Attachment 3. If you are sending us a notice required by this Agreement, send it to: MuniServices, LLC Attn: Legal Department 7335 N. Palm Bluffs Avenue Fresno, CA 93711 Email: IegaMmuniservices.com Facsimile: 559.312.2957 When providing notice to us, you must also provide a copy of the notice to: PRA General Counsel, 120 Corporate BIvd., Suite 100, Norfolk, VA 23502. All notices, including notices of address changes, provided under this Agreement are deemed received on the third day after mailing if sent by regular mail, or the next day if sent overnight delivery. We do not accept notices by email or facsimile. Notice of rate changes or distribution changes must be sent by certified mail. 2. You. You are the City of Corpus Christi. You are a municipal corporation of the State of Texas. In this Agreement we will refer to you as "you", 'your', "yours ". If we are sending you a notice required by this Agreement, we will send it to: City of Corpus Christi Attn: Constance Sanchez, Finance Director 1201 Leopard Street Corpus Christi, TX 78401 Email: constancCURcctexas.com 3. Our Services and your payment. We will provide you with the services listed in Attachment 1 (the "Services"). You will pay us the fees listed in that same Attachment If we are providing more than one Service, each service will have a separate attachment and will be labeled Attachment 1- 1,1 -2, etc. 4. What our Services do not include. We do not provide to you or any third- parties any legal advice or services. We also do not provide tax advice to you or third parties. Also we cannot and therefore do not establish: the tax rates due from taxpayers; and the penalties and fees that are assessed against taxpayers (though we will calculate these amounts for you as part of the Services once you have established the rates). We also do not determine either the amount of refunds or the proper government account(s) that taxpayer receipts shall be deposited into. 5. Term of this Agreement. The initial term of this Agreement begins on 2012 (the "Effective Date" ] and continues for a period of three years from the Effective Date. Thereafter this Agreement will automatically renew for two successive one year terms (each a "Renewal Term "), unless either party notifies the other in writing of its intent not to renew 90 days prior to the end of the initial term or any Renewal Term. There are some other ways this Agreement can end and those are found in Article I of the General Provisions, Attachment 2. 2012 -326 8/27112 082712 MuniServices LLC INDEXED 6. General Provisions. The parties are also bound by the General Provisions as set forth in Attachment 2 of this Agreement, which are by this reference incorporated into this Agreement. If something in this Agreement contradicts the General Provisions, then what is said in this Agreement governs rather than the General Provisions. The Parties are signing this Agreement on the Effective Date indicated in Section S above. MuniServices, LLC B Marc Herman Title: President City of Corpus a M 'cipal By: Title: r By: Do ensen Title: S lient Services ATTEST: 09�_M� City Clerk Corpus Christi, TX -- NOT Audit & Admin 0$2712 TML �/� ATTACHMENT 1 -1 Local Occupancy Tax Program T E K A S Audit and Administration Services I�mer Article 1- Objectives and Methods MuniServices' Local Occupancy Tax Program Audit service is intended to assist the City in maximizing lodging tax revenue it is entitled to through an on -site examination of records and education of the lodging providers to ensure the appropriate collection and remittance of the lodging tax. The Administration service offers a turnkey approach to ensure appropriate collection, deposit, recording, delinquency follow up and reporting of the local lodging tax. This service includes all correspondence, forms and other such services to ensure appropriate and timely remittance of the tax. MuniServices will perform on -site examination of the records of ten percent (YD %) of the City's standard lodging properties peryear to insure compliance in collecting and returning the local hotel occupancy tax. Article 2 -Scope of Work A. Field Audit Services 1. Perform on -site examinations of the records of those providers requested by City to warrant further investigation; 2. Provide City staff with a detailed list of all records required to be made available by lodging providers for the further reviews, together with a draft engagement announcement letter to be sent to each lodging provider requiring examination; 3. In coordination with City staff, schedule and conduct reviews at the property locations of those providers identified and authorized for examination; 4. Verify accuracy of filed lodging tax returns with daily and monthly activity summaries; Review a random sample of the daily and monthly summaries to determine if the daily summaries reconcile to the monthly summaries; 6. Review bank statements to verify that deposits reconcile with the reported revenue on the lodging tax returns'; 7. Review exempted revenue for proper qualifying documentation; 8. Review a random sample of exempted guest revenue and trace registration and /or other source documents to verify compliance with the City ordinance; 9. Where possible, compare the State lodging tax filings with City's tax returns; 10. For each error /omission identified and confirmed, submit substantiating documentation to designated City staff in order to facilitate collection of revenue due from lodging providers for prior periods; 11. Coordinate with designated City official(s) as necessary to review findings and recommendations; Corpus Christi, TX— HOTAudit &Admin rev 082712 12. Prepare draft Notices of Deficiency Determination, and commendation, warning and credit letters, as applicable, for City to advise lodging providers of examination results 13. Provide assistance to City in reviewing any matters submitted in extenuation and mitigation by lodging . providers in contesting a deficiency determination; and 14. Prepare and document any changes to the review findings and provide revised tax, interest or penalty amounts due the City. B. Administration Services Remittance Processing 1. Taxes Processed: MuniServices will perform monthly remittance processing for lodging taxes as designated by the City. 2. Taxpayer Notification and Remittance: MuniServices will send individualized tax forms to all known lodging providers ( "Taxpayer(s) "). Taxpayers will remit payments as indicated in Exhibit A, Distribution Confirmation, attached and incorporated herein by reference. Upon reasonable notice to City, MuniServices may change the address for payments. Optional Online File and Pay - For an additional set up fee, online filing and remittance using standard MuniServices formatting will be provided for the Taxpayers convenience. 3. Deposit Process: Deposits are made to the extent that funds have been received, via Automated Clearing House of the amounts and to the designated recipients as instructed by the City for each type of tax collected, as shown in more detail on Exhibit 4. Posting Process: Taxpayer accounts are posted with payment information captured in the MuniServices revenue system. Additional information such as net sales, deductions, credit sales, measure of tax, name change and address change is captured and added to the payment data and taxpayer master file (as determined necessary by MuniServices). Late payments (postmarked by U.S. Postal Service after the due date) are invoiced at penalty amounts required by State code. Under - payments are invoiced for remaining tax due plus any required penalties. 5. Changes to Exhibit A: The City shall notify MuniServices in writing immediately of all changes in amounts to be deposited into the accounts of designated recipients. An amended Exhibit A shall be prepared and executed by the Parties as soon as reasonably possible. In addition, MuniServices shall provide documentation confirming each change under the preceding sentence with the first monthly report reflecting the applicable change. If the changes reflected in the monthly report do not properly reflect the intended changes of the City, then the City shall immediately notify MuniServices and, thereafter, MuniServices shall take the steps necessary to insure that designated recipients receive the amounts intended by the City. Compliance Services 1. Taxes Reviewed: MuniServices will perform compliance services for lodgings taxes designated by City under Remittance Processing Services. MuniServices will provide delinquency notification and follow -up. This includes correspondence, calls, and collection procedures and the related documentation. Delinquency policies and procedures will be applied consistently and within applicable tax laws. Unless otherwise directed by the City, MuniServices will make reasonable efforts to collect taxes designated by the City hereunder. Where deemed reasonably appropriate accounts may be turned over to audit or third party collection. If the City elects to have its attorney pursue collection of certain uncollected accounts, MuniServices will assist the City attorney as reasonably requested at its normal hourly rate as reflected herein. Corpus Christi, TX- HOTAudit &Admin rev 082712 2. Conduct of Compliance Services: To assure that all taxpayers are treated fairly and consistently and all compliance services are performed in a similar manner, MuniServices representatives who perform compliance services will use a similar compliance plan for each compliance service conducted. All funds due from compliance services will be remitted to City in the same manner as provided for pursuant to Section A above. General Provisions 1. Information Provided The City represents that the information provided to MuniServices in theperformance of services hereunder shall be provided free and clear of the claims of third parties. The City represents that it has the right to provide this information to MuniServices and that said information shall not be defamatory or otherwise expose MuniServices to liability to third parties. 2. Compliance with laws Each Party accepts responsibility for its compliance with federal, state, or local laws and regulations. 3. Taxpayer service MuniServices will provide a taxpayer assistance number for taxpayer questions. MuniServices will provide standard informational brochures for placement in the City offices, Chamber of Commerce offices, libraries and any other facilities as requested and /or deemed necessary. Article 3- Deliverables A. ReldAudit SQnkes Provide City staff with a draft Audit Announcement Letter to be sent to each lodging provider to be examined; and a written report of the findings of such examinations together with draft Notices of Deficiency Determination, and /or credit, warning or commendation letters as applicable; Review any extenuation or mitigation proffered to deficiency determinations and prepare draft response to City staff, and Provide other collections advice upon request. B. Adminstration Services MuniServices will make available to City detailed online reporting, including detailed payment listing, daily /weekly /monthly reconciliation reports, etc. MuniServices will provide the City with monthly reports including, but not limited to, payment listings showing all taxes received related to net receipts reported, a general ledger distribution that corresponds to the City's account numbers and all fees paid to MuniServices. These reports will be provided by the 10th of the month . following the tax month; The City AGREES TO EXAMINE THIS REPORT IMMEDIATELY. IF NO ERROR IS REPORTED BY THE City TO MuniServices WITHIN 50 DAYS, THE STATEMENT WILL BE DEEMED ACCURATE; All items credited will be subject to receipt of payment. Article 4- Compensation Audit The Audit Services shall be provided for a fixed fee of $1,000 for each bed and breakfast lodging property audited, and a fixed fee of $1,500 for all other lodging properties audited with 50% due at the time of audit approval and 50% upon completion of the audit. Corpus Christi, TX- HOTAudit &Admin revO82712 Administration The Administration Services shall be provided for an annual fixed fee of one hundred dollars ($100) per lodging property. Optional Online File and Pax By initialing in the space provided here, the City indicates it is selecting the optional online file and pay and authorizing MuniServices to bill the City for the one -time set up fee of $1,500 which will be invoiced upon execution of this Agreement Travel and Out -of- Pocket Reasonable travel and other out -of- pocket expenses associated with the performance of field audits will not exceed $150 per audited property without the prior written approval of the City. Such reimbursement shall be billed annually. Additional Consulting City may request that MuniServices provide additional consulting services at any time during the term of this 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, standard hourly rates range from $75 per hour to $300 per hour. These additional consulting services will be invoiced at least monthly based on actual time and expenses incurred. Article 5 - City Obligations In order for MuniServices to conduct the Audit and Administration services, we will request the assistance of the City in the following areas: A. Field Audit Services 1. Send Audit Announcement. Letter to each lodging provider to be examined with a copy to MuniServices. 2. Inform MuniServices of any circumstances concerning existing payees. B. Administration Service 1. Prior to the start of the work to be performed, provide MuniServices with (1) the most recent registration to collect the tax and (2) returns for the time period requested as needed to compile a historical database for the period of the statute of limitations; 2. Inform MuniServices of any circumstances concerning current existing payees; 3. Inform MuniServices of any updated information retained by the City concerning the existing lodging properties within the City (i.e. change of ownership, change of corporate status, etc.) and information regarding the development of new lodging properties within the City in a timely manner so that timely taxpayer notification can be provided by MuniServices and account information can be updated properly. 4. Cooperate in the transition by reviewing proposed processing and materials, offering comments and suggestions and providing timely approvals; S. Undergo training in the use of online applications. C. Distribution Confirmation The City will fill in the account information requested on Exhibit A and attach the same to the fully executed Agreement. Should there be any changes to the account or percentages in Exhibit A, the City shall immediately notify MuniServices in writing of all changes in amounts to be deposited into the accounts of designated recipients. Corpus Christi, TX- HOTAudit &Admin revO82712 EXHIBIT A DISTRIBUTION CONFIRMATION August 27, 2012 City of Corpus Christi Attn: Constance Sanchez, Finance Director 1201 Leopard Street Corpus Christi, TX 78401 Dear Ms. Sanchez: Funds will be distributed in the following accounts pursuant to this Agreement: Agency Routing # Account # Distribution % Tax Type 100% Lad in If at any time there are any discrepancies between the schedule set out above and your Municipality's records, please notify us in writing immediately. IT IS YOUR RESPONSIBILITY TO PROVIDE NOTICE TO US OF ANY CHANGES IN TAX RATES OR IN THE DISTRIBUTION OF FUNDS. NOTICE MUST BE IN WRITING AND SENT, VIA CERTIFIED MAIL, TO: MuniServices, LLC 2317 Third Avenue North, Suite 200 Birmingham, AL 35203 Attn.: Kennon Walthall, COO& SVP, Operations Thank you for your assistance. If you have any questions, or if I may be of assistance, please let me know. Connie Taylor, Client Relations Manager MuniServices (Phone) : 205-423-4144 (Fax): 205- 423 -4097 [E- mail): ctaylgr @revds.com I have reviewed the above distribution and verify that it is correct. By: Name: Title: Corpus Christi, TX— HOTAudit &Admtrn rev 082712 ATTACHMENT 2 General Provisions Article I Within 9 business days after signing You will designate, in writing, one individual to whom we may address this agreement. communications concerning this Agreement. This person or such person's designee will be the principal point of contact for us in obtaining decisions, information, approvals, and acceptances. 10 business days after you receive You have until this date to dispute in the invoice, or a portion of it, in writing. our invoice. Your written dispute must be post - marked by this date and must be sent to the addresses in paragraph 1 of the Agreement. (Paragraph 1 is located on the front page of the agreement and is titled "Us ".) 10 business days after we receive We will either correct the error or explain to you why we think the invoice is your written notice that you dispute correct. During this time, we will not try to collect the amount being disputed. an invoice or part of an invoice. 30 days after receiving our invoice. You must pay our invoice(s) by this date. If you do not pay by that time, we have the right to charge you interest at the rate of one and one -half percent (1.5 %) per month, or the maximum amount permitted by law, on any amounts you do not pay within thirty days. If we refer your account to an attorney for collection of past due amounts, we may charge you for our reasonable attorney fees, including costs for attorneys who are employed by us, and court costs incurred by us to the extent permitted by law. Any settlement of your account balance for less than what is owed requires our written consent. 40 days after receiving our invoice If you have not paid, and have not disputed an invoice as provided above, then we may terminate this Agreement with no further notice and we have no further obligation to you. When you provide us with By providing us information, you represent that: information for use in the Services. • you have the right to provide us the information without violating the rights of third - parties; • your release of the information to us does not violate any applicable laws and regulations; and • to the best of your knowledge the information is accurate and not defamatory. You will notify us immediately if there is a change in the information you have provided tows. If we send you a report or other You will review all reports we provide to you in a timely fashion and you will deliverable. notify us immediately if you find a discrepancy in any of the information we have provided to you. Upon payment therefore, we will grant you all right, title, and interest in and to the reports, charts, graphs, and other deliverables we are required to produce under this Agreement. While the Agreement is effective. We will keep in full force and effect insurance coverage during the term of this Agreement including without I imitation statutory workers' compensation insurance; employer's liability and commercial general liability insurance; comprehensive automobile liability insurance; professional liability and fidelity insurance. You may at any time request copies of our certificates. 90 -days after prior written notice. This Agreement terminates for convenience but only if the terminating party sends the notice to the person designated to receive notices under this Agreement (see paragraph 1 or 2, as applicable, of this Agreement). Carpus Christi, TX— HOTAudit &Admin rev 082712 After giving written notice of a breach The non- breaching parry may immediately terminate this Agreement if: other than a failure to pay. • the written notice of the breach was sent to the person designated to receive notices for the breaching party under this Agreement (see paragraph 1 or 2, as applicable, of this Agreement); and the breach is not your failure to pay (that situation is addressed separately below.); and • the breach has not been cured in a reasonable time after the breaching party received notice. Ordinarily, 30 days will be a reasonable time to cure the breach but if the party receiving notice of the breach can demonstrate that the breach will take more than 30. days to cure, the non- breaching party and breaching party will agree on an extended period to cure the breach. After the occurrence of a "financial A parry may terminate this Agreement immediately if the other party experiences default" a "Financial default." A "financial default" means: • a material adverse change in a party's financial condition that adversely affects its ability to perform hereunder; or • a party becomes or is declared insolvent or bankrupt; or • a party is the subject of any proceedings relating to liquidation or insolvency or for the appointment of a receiver; or • a party makes an assignment for the benefit of all or substantially all of its creditors; or • a party enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations. If you experience a "financial default" then we may, at our option, declare the entire outstanding amounts and costs owing to us hereunder immediately due and payable. This Agreement is terminated or You remain obligated to: (1) pay us for Services performed through the effective expires. date of the termination or expiration; (2) if applicable, provide us with all the information necessary for us to calculate what you owe us on revenue you receive after the termination or expiration; and (3) if applicable pay invoices we send you after the expiration or termination of this Agreement for Services performed before termination or expiration or for continuing payments required by the Scope of Work or for both. Corpus Christi, TX— HOTAudit &Admin rev 082712 Article Ii. The parties also agree to the following miscellaneous terms. 1. Independent Contractor. We are an independent contractor. Nothing in this Agreement is to be interpreted as: creating the relationship of employer and employee between you and us or between you and any of our employees or agents; or creating a partnership or joint venture between you and us. We are responsible for any subcontractors we use in performing Services for you and we are solely responsible to pay those subcontractors. We may perform similar services for others during this Agreement and you agree that our representation of other government sector clients is not a conflict of interest. 2. Compliance with Laws. The parties agree to comply with all applicable local, state and federal laws and regulations' during the term of this Agreement. 3. Intellectual Property. We retain all right, title, and interest in and to the processes, procedures, models, inventions, software, ideas, know -how, and any and all other patentable or copyrightable material used developed or reduced to practice in the performance of this Agreement. name, mark or logo of the other Party in any advertisement or printed solicitation without first having prior written approval of the other Party. The Parties shall take reasonable efforts to ensure that its Subcontractors shall not disseminate any oral or written advertisement, endorsement or other marketing materials referencing or relating to the other Party without that Party's prior written approval. In addition, the Parties agree that their contracts with all Subcontractors will include appropriate provisions to ensure compliance with the restrictions of this Section. 9. Entire Agreement. This Agreement is the entire Agreement between us and you for the Service(s). This Agreement supersedes and replaces any prior Agreements, of whatever kind or nature, for the Service(s) Any prior Agreements, discussions, or representations not expressly set forth in this Agreement are of no force or effect No additional terms, Purchase .Order Terms and Conditions, or oral or written representations of any kind are of any force and effect unless in writing and signed with the same formality as this Agreement 4. Waiver. Either party's failure to insist upon strict performance of any provision of this Agreement are not to be construed as a waiver of that or any other of a party's rights under this Agreement at any later date or time. 5. Force Majeure. Neither party is liable for failing to perform its obligations hereunder (other than payment obligations) where performance is delayed or hindered by war, riots, embargoes, strikes or acts of its vendors or suppliers, accidents, acts of God or any other event beyond its reasonable control. 6. Counterparts. This Agreement may be signed in separate counterparts including facsimile copies. Each counterpart (including facsimile copies) is deemed an original and all counterparts are deemed on and the same instrument and legally binding on the parties. 7. Assignment MuniServices may assign this Agreement, in whole or in part, without your consent to any corporation or entity into which or with which MuniServices has merged or consolidated; any parent, subsidiary, successor or affiliated corporation of MuniServices; or any corporation or entity which acquires all or substantially all of the assets of MuniServices. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors or assigns. 8. Public Release and Statements. Neither you nor we nor each of our representatives or agents shall disseminate any oral or written advertisement, endorsement or other marketing material relating to each other's activities under this Agreement without the prior written approval of the other Party. No Party or its agent will use the 10. No Oral Modification. No modification of this Agreement is effective unless set forth in writing and signed with the same formality as this Agreement. 11. Invalidity. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each party remain valid, binding, and enforceable. 12. Construction. This Agreement is to be construed in accordance with the laws of the State of Texas without regard to its conflict of laws principals. 13. Headings. The section headings herein are for convenience and reference purposes only and are not to serve as a basis for construction or interpretation. 14. Indemnification: MuniServices must indemnify and hold City, its officers, employees or agents (" Indemnitees l harmless of, from, and against all claims, demands, actions, damages, losses, costs, liabilities, expenses, and judgments recovered from or asserted against Indemnitees on account of injury or damage to person or property to the extent any such damage or injury arises out of, or is caused by, the negligent performance of this Agreement; or any negligent act or omission, or misconduct on the part of MuniServices, or any of its agents, servants, contractors, or employees in the performance of this Agreement. Corpus Christi,TX- HOTAudit &Admin rev082712 10 Attachment 3 MuniServices Helpful Contacts Contact Project Role Phone Email Ted Kamel . Client Services Manager 903. 952.9794 tted .kamei @muniservices.com Brenda Anderson Client Services Manager 817. 771.4066 brenda.anderson 0munisei3jres.com Doug Jensen Sr. Vice President Client Services 559.288.$943 doug.jensenOrguniservi Lisa Broussard Vice President Client Services 713.459.5079 Lis Andrea Hunter Vice President Audit Services 205.533.0297 abunter@revds.com Kandi Warnock HOT Production Manager 817. 905.7027 kandi.vvarnock @muniservicg %g Doug Estes Client Relations Manager 559.271.6868 dgug.estes&rnuruseMces&gm Billing Department 559.271.6946 billing0muni5i i m Patricia A. Dunn Contracts Manager 559.271.6852 1 Patricia.dunnOmuniservi Corpus Christi, TXWHOTAudit &Admin rev 082712 ZI