2010-081-RES APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF PARIS AND MUNISERVICESRESOLUTION NO. 2010-081
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS,
APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT
BETWEEN THE CITY OF PARIS AND MUNISERVICES, LLC FOR AUDIT AND
REVIEW OF LOCAL HOTEL OCCUPANCY TAX COLLECTION BY LOCAL
LODGING ESTABLISHMENTS AND REVIEW OF LOCAL ORDINANCES
RELATED THERETO AND TRAIIVING FOR BOTH THE CITY OF PARIS AND
LOCAL LODGING ESTABLISHMENTS ON THE HOTEL OCCUPANCY TAX;
MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE
SUBJECT; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, MuniServices, LLC is a TML Business Service Partner with a program
that identifies businesses that provide distinctive, high-quality, and cost effective services
available to cities; and,
WHEREAS, the proposed agreement would provide a number of services including:
1) Review of the current hotel occupancy tax ordinance, 2) Collect and analyze data on all
of local hotels, and 3) perform on site audits of hotel records; and,
WHEREAS, MuniServices would work with the local hotels and City staff in
improving understanding and compliance with the local occupancy tax ordinance; and,
WHEREAS, is deemed to be in the best interest of the Ciry of Paris that such
Agreement with MuniServices, LLC for Local Hotel Occupancy Tax and Hospitality
Consulting Program, in the form of Exhibit A attached hereto and made a part hereof, be
approved;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PARIS THAT:
Section 1. The findings set out in the preamble to this resolution are hereby in
all things approved.
Section 2. The proposal of MuniServices, LLC for professional services described
in the Agreement Between the City of Paris and MuniServices, LLC for Local Hotel
Occupancy Tax and Hospitality Consulting Program attached hereto as Exhibit A be, and the
same is hereby accepted; and,
Section 3. The City Manager of the City of Paris be, and he is hereby authorized
and directed to execute on behalf of the City of Paris an agreement substantially in
accordance with the Agreement attached hereto as Exhibit "A" and incorporated herein by
reference.
Section 4. This resolution shall be effective immediately upon passage.
PASSED AND ADOPTED this 26th day of July, 2010.
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Will Biard, Mayor
ATTEST:
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nice jEllis, City Clerk
APPROVED AS TO FORM:
W. Kent McIlyar, C A orney
Agreement Between
The City of Paris and MuniServices, LLC for
local Hotel Occupancy Tax Consulting Services
This Agreement is made as of , 2010 between MuniServices, LLC, a Delaware
limited liability company, its subsidiaries and affiliates, with an office at 7335 N. Palm Bluffs Avenue,
Fresno, CA 93711, ("MuniServices") and the City of Paris, a municipal corporation of the State of Texas
("City").
ARTICLE I. SCOPE OF WORK
A. Local Hotel Occupancy (HOT)
Objectives and Methods
MuniServices Local Hotel Occupancy Tax and Hospitality Consulting Program is intended to assist the
City in realizing all of the lodging tax revenue to which it is entitled through conducting annual analyses
of returns and, when warranted, on-site examinations of records; providing annual reports reflecting
and projecting revenue trends; identifying any providers who should be subjected to field auditing or
other scrutiny; offering ordinance and administrative enhancements as needed; and educating lodging
providers to ensure appropriate collection and remittance of the lodging tax.
Field Audit Services
• Perform on-site examinations of the records of those providers identified through analysis
to warrant further investigation, but only as authorized by Municipality and not to involve
more than one-third (1/3) of the Municipalities properties in any one year contract period;
• Provide 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;
• In coordination with City staff, schedule and conduct reviews at the property locations of
those providers identified and authorized for examination;
• Verify accuracy of fi►ed lodging tax returns with daily and monthly activity summaries;
• Review a random sample of the daily and monthly summaries to determine if the daily
summaries reconcile to the monthly summaries;
• Review bank statements to verify that deposits reconcile with the reported revenue on the
lodging tax returns';
• Review exempted revenue for proper qualifying documentation;
• Review a random sample of exempted guest revenue and trace registration and/or other
source documents to verify compliance with the City ordinance;
Paris, TX HOT Audit 080510 E X H I B I TA.
• Where possible, compare the State and federal tax filings with the lodging tax returns;
• For each error/omission identified and confirmed, submit substantiating documentation to
designated City staff in order to facilitate collection of revenue due from lodging providers
for prior periods;
• Coordinate with designated City official(s) as necessary to review findings and
recommendations;
• Provide assistance to City in reviewing any matters submitted in extenuation and mitigation
by lodging providers in contesting a deficiency determination; and
• Prepare and document any changes to the review findings and provide revised tax, interest
or penalty amounts due the City.
ARTICLE 11. TERM
This Agreement starts on the date stated in the introductory paragraph and continues for a period of
one-year (1) "initial term." After the "initial term" and thereafter, this Agreement shall automaticatly
renew for successive one-year (1) periods, subject however, to City's availability of funding which
lawfully may be applied, until terminated. If funding will not be available, the City must provide at least
30-days advance written notice of the lack of funding. Termination requirements are listed in Section 6
of the General Provisions attached and incorporated herein as Attachment "A".
ARTICLE III. COMPENSATION
A. Local Hotel Occupancy (HOT)
The Local Hotel Occupancy Tax and Hospitality Consulting Services shall be provided at Annual Fixed Fee
of One-Thousand Two-Hundred Dollars ($1,200) per lodging property. The Fixed Fee shall be invoiced
fifty percent (50%) upon execution of this Agreement, and the remaining fifty percent (50%) upon
submission of the audit report together with the resulting, draft notices of deficiency determination
and/or letters of commendation for City issuance to the lodging providers examined. Additionally,
MuniServices shall be entitled to reimbursement of reasonable travel and other out-of-pocket expenses
associated with the conduct of field audits not-to-exceed Five-Hundred Dollars ($500) per contract year
without prior written approval of the City. Such reimbursement shall be billed incrementally.
B. 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.
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ARTICLE IV. GENERAL PROVISIONS
In addition to the above provisions, the parties are also bound by the general provisions as set forth in
Attachment "A" of this Agreement, which are by this reference incorporated herein. If there is a
disagreement between Articles I, II, and III, and these general provisions, Articles I, II, and III prevail.
The Parties are signing this Agreement on the date stated in the introductory clause.
MuniServices, LLC
By:
Marc Herman
Title: President
By:
Kevin Cerutti
Title: Vice-President, Finance
City of Paris
A Municipal Corporation
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Name: Kevin Carruth
Title: City Manager
ATTEST:
City Clerk Janice Ellis
APPROVED AS TO FORM:
City Attorney W. Rent Mcllyar
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Paris, TX HOT Audit 080510
ATTACHMENT "A"
General Provisions
1. What this agreement covers. This agreement covers any
services You selected on Our website or that We have agreed to
provide to You. We are not required to perform nor are You required
to pay for services that are not in a written or click-thru agreement
that incorporates these terms and conditions.
2. Meaning of certain words in this agreement.
•"We", "Our", "Us°, and similar terms mean MuniServices, LLC.
•"You," "Yours" (including in the possessive) means The City of
Paris.
•"Scope of Work" means the written statement that: describes
the services We will provide to You; incorporates these terms
and conditions; and states what You will pay Us for those
services. For this agreement, the Scope of Work is found in
Articles I and II ofthe agreement.
•"Confidential Information' means each party's products,
services, technical data, trade secrets, inventions, processes,
and constituent information. Any information meeting this
description is "Confidential Information" even if the disclosing
party did not mark the information as "Confidential
Information" or did not notify the receiving party that the
information was "Confidential Information" Information is not
confidential if it: (a) is rightfully known to the receiving party
prior to receipt from the disclosing party as reasonably
evidenced by such party; (b) becomes known to the receiving
party from a source other than one who is under an obligation
of confidentiality to the disclosing party; or (c) becomes publicly
known or otherwise ceases to be confidential other than by an
unauthorized act.
3. Our relationship with You. We are an independent contractor
and not Your employee or agent. We can perform services for others
during this Agreement. We are responsible for any subcontractors
We use in performing services for You and We are solely responsible
to pay those subcontractors. 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, joint venture between You and Us;
or designating Us as Your agent. Furthermore, nothing in this
agreement requires Us to give You legal advice or determine Your
legal liabilities and We have no obligation to do so. You agree that
the advice We give is not legal advice.
4. How We will invoice. We will send You timely invoices for Our
services. [If You would like the invoices separated by service, please
send Us an email to that effect and We will separate the invoices.]
Your payment to Us is due within thirty days after You receive Our
invoice(s). We will 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 those thirty days. We will not
charge You for any costs or expenses related to Our services unless
the Scope of Work for the service specifically says We will charge You
for costs or expenses.
5. Treatment of Confidential Information.
5.1 The party receiving the disclosing party's Confidential
Information shall: use the Confidential Information solely for
performing under this Agreement; and treat the Confidential
Information with the same care as it uses to maintain the
confidentiality of its own Confidential Information, which shall
be at least reasonable care. The party receiving the disclosing
party's Confidential Information shall not disclose the
Confidential Information to any third party without the written
consent of the Disclosing Party, except to employees,
consultants or agents to whom disclosure is necessary to
perform this Agreement and who have agreed in writing to
treat the Confidential Information according to the terms of
this section five, or except if ordered to disclose the
Confidential Information by any court or state or federal
agency. All Confidential Information remains the sole property
of the disclosing party. We will hold taxpayer information in
strict confidence.
5.2 If a party who has received Confidential Information is served
with a subpoena or other legal process concerning the
Confidential Information, the party who was served shall
promptly notify the other party and shall cooperate with the
other party, at the other party's expense, in any lawful effort
to contest the validity of the subpoena or other legal process.
5.3 The parties agree that a breach of the terms of this section
five would result in irreparable injury to the non-breaching
party and a remedy in damages would be inadequate. The
parties agree that in the event of such breach or threatened
breach, the non-breaching party is entitled to seek an
injunction to prevent the breach or threatened breach, in
addition to any other remedies available at law or in equity.
5.4 The obligations in this section five continue for a period of five
years from the date of disclosure of the Confidential
Information, except that for any trade secrets (as defined by
applicable law), the obligations of confidentiality continue
indefinitely from the date of disclosure and survive the
termination of this Agreement indefinitely.
5.5 The confidentiality obligations of this section five do not
extend to any information required to be disclosed pursuant
to the Texas Open Records Act, the United States Freedom of
Information Act, and similar State Acts, or other public
disclosure acts of the United States or a state or territory
thereof.
6. How this Agreement Starts and Ends. This Agreement starts on
the date stated in the introductory paragraph of the Scope of Work
(the "Start Date") and continues until terminated or until the
expiration date stated in the Scope of Work. Either party may
terminate this Agreement:
a. upon 90-days prior written notice to the other party; or
b. immediately, upon written notice, if a party has materially
breached this Agreement including any Scope of Work and the
non-breaching party has given the breaching party notice of the
material breach and has given the breaching party thirty days to
cure the breach (except in the case of non-payment for which the
cure period shall be ten (10) days) or such amount of time as is
reasonable given the circumstances. Under this Agreement Your
failure to pay any amount when due under this Agreement (after
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10-days prior written notice of Your failure to pay) is a materiai
breach.
7. Your payment obligations after this agreement ends. Even if
this agreement is terminated or expires You remain obligated to: (1)
pay Us for services performed through the effective date of the
termination or expiration; (2) provide Us with all the information
necessary for Us to calculate what You owe Us on revenue You
receive after the termination or expiration; and (3) pay invoices We
send You after the expiration or termination of this agreement for
services performed before termination or expiration or for
continuing payments required by the Scope of Work or for both.
8. Our commitment not to discriminate. On any work We perform
under this agreement, We shall not discriminate on the grounds of
race, color, religion, sex, national origin, or veteran status in the
selection and retention of employees, subcontractors, the
procurements of materials or leases of equipment.
9. Our Limited Warranty. We represent that all services performed
under this agreement shall be performed by persons with the skills
and abilities necessary and that the services that We shall provide, the
tangible deliverables, if any, are free and clear of the proprietary
claims of third parties, unless We notify You to the contrary. This
section 9 is Our complete warranty statement. We disclaim any other
warranties to the fullest extent allowed by law.
10. Your warranty to Us. You represent that the information You
or Your employees or agents provide to Us will be provided free and
clear of the claims of third-parties. You represent that You have the
right to provide Us the information You provide and that
information provided will not be obscene, defamatory, or otherwise
expose Us to liability to third parties.
11. Limitation of liability. To the maximum extent permitted by
law, neither MuniServices, nor its employees, contractors or agents
are liable for any indirect, incidental, special, punitive or
consequential damages, lost data or cost of procurement of
substitute goods or services arising from or related to the services.
This limitation applies: whether damages are based on breach of
warranty or any obligation arising from a breach of warranty; and
whether liability is asserted in contract or tort; and whether or not
We have been advised of the possibifity of any such /oss or
damage. Our liability under this agreement will not exceed an
amount equal to the fees You paid for the service to which the
claim pertains. This section 11 sets forth Your exclusive remedy for
daims arising from or out of this agreement. This section allocates
the risks between Us and You and Dur' pricing reflects the
allocation of risk and limitation of liability in this section 11.
12. Scope of disclaimers and limitation of liability. The disclaimers
and limitations of liability in sections 9 and 11 apply regardless of the
form of action, whether in contract, tort, strict liability or otherwise and
whether damages were foreseeable. Those disclaimers and limitations
of liability survive failure of any exclusive remedies provided in this
Agreement.
13. Indemnification. To the extent permitted by law, a party shall
defend, indemnify, and hold harmless the other party, its directors,
officers, employees and affiliates, from any and all claims, suits,
demands, losses, damages, liabilities, costs and expenses, including
reasonable attorney's fees (collectively "Losses°) arising from or related
to a claim of injury to person or properry or death arising from or
caused by the negligent acts or negligent omissions of employees,
agents, or representatives of the indemnifying party which acts or
omissions arise from the indemnifying party's performance (or non-
performance) under this Agreement. You shall defend, indemnify, and
hold Us harmless from any Losses arising from or related to a claim that
information You provided to Us contains any false, misleading, or
defamatory information regarding a third party.
14. Miscellaneous provisions.
14.1 Personnel. At any time, You may request removal or
replacement of personnel We have assigned and We will promptly
replace such personnel. The time for any deliverables required or
any increase in costs will be adjusted to reflect any adverse impact
resulting from the change in personnel.
14.2 Gratuities, Gifts, Conflict of Interest. We shall, at all times,
comply with Your policies regarding gifts, gratuities, or conflicts of
interest that You provides to Us. At no time shall We, or Our
employees, agents, directors, or contractors offer or accept any gift
or gratuity: from a third party who may be subject to findings
resulting from Services; to or from You, official, employee,
contractor, or agent, or from any other party where such gift or
gratuity could be construed as a conflict of interest.
14.3 Dispute Resolution. Any dispute relating to this agreement
shall be submitted for resolution through mediation. The mediator
shall be selected from the list of individuals maintained by the
State District Court, County of Lamar, who participate in the
court's alternative dispute resolution process by joint agreement of
the parties. In the event the parties are unable to resolve the
dispute through the mediation process, then either party may
commence an action in the State District Court, County of Lamar
State of Texas. In all cases, the prevailing party to such dispute is
entitled to recover costs and expenses, including reasonable
attorney's fees.
14.4 Ownership of Work Product. We retain all right, title, and
interest in and to the processes, procedures, models, inventions,
software, ideas, know-how, and any and all other patentable or
copyrightable material used, developed, or reduced to practice in
the performance of this agreement. Upon payment therefore, We
will grant You all right, title, and interest in and to the reports,
charts, graphs, and other deliverables We are required to produce
under this agreement.
14.5 Assignment. Neither party may assign this agreement or
any of its rights or obligations under this agreement without the
prior written consent of the other party, which consent must not be
unreasonably withheld. Any assignment without prior written
consent is void. Notwithstanding the foregoing, the parties may
assign all or part of this agreement immediately, without the prior
written consent of the non-assigning Party: (a) to the assigning
party's successor in interest who expressly assumes responsibility
for the assigning party's obligations under this agreement; or (b) if
necessary to satisfy the rules, regulations and/or orders of any
federal or state governmental agency or body. Notwithstanding the
foregoing, We may assign monies due under this agreement
without consent (whether characterized as an account receivable or
otherwise). Any violation of the provisions of this paragraph
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renders this agreement voidable at the option of the non-assigning
party.
14.6 Insurance.
a. Public Liability. During the term of this Agreement, We will
maintain a policy of public liability insurance with minimum
coverage's in accordance with the requirements You provide to
Us. We will cause You, Your officials and employees to be named
on ail liability policies described above as additional insureds for
activities taken pursuant to this Agreement.
b. Workers' Compensation. During the term of this
Agreement, We shall comply with the terms of the laws of Texas
concerning workers' compensation, inciuding but not limited to,
maintaining in full force and effect one or more policies of
insurance insuring against any liability We may have for workers'
compensation.
14.7 Severability. If a court of competent jurisdiction holds any
part of this agreement to be unenforceable, the unenforceable part
will be construed as nearly as possible to reflect the original intent
of the parties and the remainder of the provisions will remain in full
force and effect.
14.8 Waiver. Either party's failure to insist upon strict
performance of any provision of this agreement is not to be
construed as a waiver of that or any other of a party's rights under
this agreement at any later date or time.
14.9 Force Majeure. Neither party is liable for failing to perform
its obligations hereunder (other than payment obligations) where
performance is delayed or hindered by war, riots, embargoes,
strikes or acts of its vendors or suppliers, accidents, acts of God, or
any other event beyond its reasonable control.
14.10 Notices. All notices, including notices of address changes,
provided under this agreement are deemed received on the third
day after mailing if sent by mail, or immediately if sent by facsimile.
Notices shall be sent to the followins:
To Us:
MuniServices, LLC
7335 North Palm Bluffs Avenue
Fresno, CA 93711
Attention Legal Department
Email: legal(a)muniservices.com
Facsimile: 559-312-2957
To You:
City of Paris
POB 9037
Paris, TX 75461
Attn: Gene Anderson, CPA, Finance Director
Email: ganderson2paristexas.gov
Facsimile: 903.785.8519
14.11 Copies. This agreement may be signed in separate
counterparts including facsimile copies. Each counterpart
(including facsimile copies) is deemed an original and all
counterparts are deemed on and the same instrument and legally
binding on the parties.
14.12 Entire Agreement. This agreement, including the Scope of
Work that incorporates these terms and conditions, is the entire
agreement between Us and You for the service(s) in the Scope of
Work. This agreement supersedes and replaces any prior
agreements, of whatever kind or nature, for the service(s) in the
Scope of Work. Any prior agreements, discussions, or
representations not expressly set forth in this agreement are of no
force or effect. No additional terms, PO Terms and Conditions, or
orai or written representations of any kind are of any force and
effect unless in writing and signed with the same formality as this
agreement
14.13 No Oral Modification. No modification of this agreement is
effective unless set forth in writing and signed with the same
formality as this agreement. No waiver of the requirements of this
section is effective unless in writing and signed by our president.
14.14 Construction. This Agreement is to be construed in
accordance with the laws of the State of Texas without regard to its
conflict of laws principals.
14.15 Headings. The section headings herein are for convenience
and reference purposes oniy and are not to serve as a basis for
construction or interpretation.
14.16 Partial Payment. No receipt by Us of an amount less than
Your full amount due will be deemed to be other than payment "on
account", nor will any endorsement or statement on any check or
any accompanying letter effect or evidence an accord and
satisfaction. We may accept such check or partial payment without
prejudice to Our right to recover the balance or pursue any of Our
rights.
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ARTICLE IV. GENERAL PROVISIONS
In addition to the above provisions, the parties are also bound by the general provisions as set forth in
Attachment "A" of this Agreement, which are by this reference incorporated herein. If there is a
disagreement between Articles I, II, and III, and these general provisions, Articles I, II, and III prevail.
The Parties are signing this Agreement on the date stated in the introductory clause.
MuniServices, LLC
City of Paris
A Municipal Corporation
By:
Marc Herman
Title: President
By:
Name: Revin Carruth
Title: City Manager
ATTEST:
By:
Kevin Cerutti
Title: Vice-President, Finance
City Clerk Janice Ellis
APPROVED AS TO FORM:
City Attorney W. Rent Mcllyar
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Paris, TX HOT Audit 080510