23-Deliberate and act on a Resolution repealing Resolution No. 2010-081
CITY COUNCIL AGENDA ITEM BRIEFING SHEET
Submittal Date: Originating Department: Presented By: Agenda Item No.:
9/03/10
Council Date: Finance Gene Anderson 23.
09/13/10
RECOMMENDED MOTION:
Move to approve a resolution repealing Resolution No. 2010-081 and approving a new agreement
between the with MuniServices, LLC for local hotel occupancy tax consulting services and authorizing
the City Manager to negotiate and execute all necessary documents.
POLICY ISSUE(S):
Fiscal management.
The City Council had previously approved an agreement with MuniServices subject to the company's
acceptance of two changes in the proposed contract. One change was that the automatic renewal clause
was to be removed and the second change was that fees were to be paid only on the businesses that were
actually audited. These changes have been incorporated into the attached agreement; however, the fee
for audit only services is $1,200 per hotel audited. The prior agreement fees were $600 per hotel but
were levied against all hotels. Four of those hotels would have been audited in a given year while the
remaining eight hotels would only have an analysis of their quarterly returns performed that year.
The proposed agreement would also provide a review of the current hotel occupancy tax ordinance and
MuniServices would work with the local hotels and City staff in improving understanding and
compliance with the local occupancy tax ordinance.
BOARD/COMMISSION RECOMMENDATION:
None
EXHIBITS:
Resolution with agreement.
ACTION: BUDGET INFO:
❑ Financial Report ❑ Minute Order Exp. Expected $2,400
❑ Department Report ® Resolution Budget 2010-11 $2,400
❑ Presentation ❑ Ordinance I TD Actual $0
❑ Public Hearing ❑ Other Acct. Name Consultants
Acct. Number 01-0318-21-00
FISCAL NOTES:
Occupancy taxes are 8.17% ($40,402) below last year as of August 31, 2010.
REVIEWED AND APPROVED BY:
® Administration ® City Clerk ❑ Community Development ❑ EMS/IT ® Finance ❑ Fire
❑ Municipal Court ® Legal ❑ Library ❑ Police ❑ Eng./Public Works ❑ Utilities
City of Paris Revised 2/04/08
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DRAFT
S: citydata Attorney RESWORK~ CURRENTS MuniServices Contract Res -AMENDED FINAL 09-03-2010.docx
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS,
REPEALING RESOLUTION NO. 2010-081 AND APPROVING AND
AUTHORIZING THE EXECUTION OF AN AMENDED 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 TRAINING 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, on July 26, 2010, the City Council of the City of Paris passed Resolution
No. 2010-081, approving an Agreement between The City of Paris and MuniServices, LLC
for Local Hotel Occupancy Tax Consulting Services subject to City Council's acceptance of
two changes in the Agreement; and,
WHEREAS, the first change to the agreement was the removal of the automatic
renewal clause, and the second change was to the compensation clause to require the City
to pay fees only on hotels and motels that were actually audited; and,
WHEREAS, these changes have been incorporated into the proposed amended
agreement, in the form of Exhibit A attached hereto; however, the fee for audit-only
services is $1,200 per hotel audited. The prior agreement fees were $600 per hotel but
were levied against all hotels and motels located in the City of Paris, Texas. Four of those
hotels would have been audited in a given year, while the remaining hotels would only
have an analysis of their quarterly returns performed that year; and,
WHEREAS, the proposed amended agreement would also include a review of the
current hotel occupancy tax ordinance and MuniServices, LLC would work with City Staff
and local hotels and motels to improve understanding and compliance with the local
occupancy tax ordinance; and,
WHEREAS, the proposed amended agreement would provide a number of services
including: 1) Review of the current hotel occupancy tax ordinance, 2) Collection and
analysis of data on all of local hotels, and 3) Performance of on-site audits of hotel and
motel records; and,
WHEREAS, it is deemed to be in the best interest of the City of Paris and its citizens
that such amended Agreement with MuniServices, LLC for Local Hotel Occupancy Tax and
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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. Resolution No. 2010-081 of the City Council of the City of Paris, Texas
is hereby repealed.
Section 3. The proposal of MuniServices, LLC for professional services set forth
in the amended 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 approved and replaces all prior written Agreements between
the City of Paris and MuniServices, LLC; and,
Section 4. 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 5. This resolution shall be effective immediately upon passage.
PASSED AND ADOPTED this 13th day of September, 2010.
Will Biard, Mayor
ATTEST:
Janice Ellis, City Clerk
APPROVED AS TO FORM:
W. Kent McIlyar, City Attorney
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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 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;
• 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;
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• 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 II. 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 may be renewed for
additional one-year terms upon written agreement of the parties, subject however, to City's availability
of funding which lawfully may be applied, until terminated. 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 City of Paris
A Municipal Corporation
rR ,qM ~ ,
By: ' By:
Marc Herman Name:
Title: President Title:
ATTEST:
L~. Prirre.__~~iftrTT %By:
Kevin Cerutti City Clerk
Title: Vice-President, Finance
APPROVED AS TO FORM:
City Attorney
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aunwffm~ a. I
ATTACHMENT "A"
General Provisions
1. What this agreement covers. This agreement covers any performing under this Agreement; and treat the Confidential
services You selected on Our website or that We have agreed to information with the same care as it uses to maintain the
provide to You. We are not required to perform nor are You required confidentiality of its own Confidential Information, which shall
to pay for services that are not in a written or click-thru agreement be at least reasonable care. The party receiving the disclosing
that incorporates these terms and conditions. party's Confidential information shall not disclose the
2. Meaning of certain words in this agreement. Confidential Information to any third party without the written
consent of the Disclosing Party, except to employees,
• "We", "Our", "Us", and similar terms mean MuniServices, LLC. consultants or agents to whom disclosure is necessary to
• "You," "Yours" (including in the possessive) means The City of perform this Agreement and who have agreed in writing to
Paris. treat the Confidential information according to the terms of
this section five, or except if ordered to disclose the
• "Scope of Work" means the written statement that: describes Confidential Information by any court or state or federal
the services We will provide to You; incorporates these terms agency. All Confidential Information remains the sole property
and conditions; and states what You will pay Us for those of the disclosing party. We will hold taxpayer information in
services. For this agreement, the Scope of Work is found in strict confidence.
Articles I and 11 of the agreement.
5.2 If a party who has received Confidential Information is served
• "Confidential information" means each party's products, with a subpoena or other legal process concerning the
services, technical data, trade secrets, inventions, processes, Confidential Information, the party who was served shall
and constituent information. Any information meeting this promptly notify the other party and shall cooperate with the
description is "Confidential Information" even if the disclosing other party, at the other party's expense, in any lawful effort
party did not mark the information as "Confidential to contest the validity of the subpoena or other legal process.
Information" or did not notify the receiving party that the
information was "Confidential Information." Information is not 5.3 The parties agree that a breach of the terms of this section
confidential if it: (a) is rightfully known to the receiving party five would result in irreparable injury to the non-breaching
prior to receipt from the disclosing party as reasonably party and a remedy in damages would be inadequate. The
evidenced by such party; (b) becomes known to the receiving parties agree that in the event of such breach or threatened
party from a source other than one who is under an obligation breach, the non-breaching party is entitled to seek an
of confidentiality to the disclosing party; or (c) becomes publicly injunction to prevent the breach or threatened breach, in
known or otherwise ceases to be confidential other than by an addition to any other remedies available at law or in equity.
unauthorized act. 5.4 The obligations in this section five continue for a period of five
3. Our relationship with You. We are an independent contractor years from the date of disclosure of the Confidential
and not Your employee or agent. We can perform services for others Information, except that for any trade secrets (as defined by
during this Agreement. We are responsible for any subcontractors applicable law), the obligations of confidentiality continue
We use in performing services for You and We are solely responsible indefinitely from the date of disclosure and survive the
to pay those subcontractors. Nothing in this Agreement is to be termination of this Agreement indefinitely.
interpreted as: creating the relationship of employer and employee 5.5 The confidentiality obligations of this section five do not
between You and Us or between You and any of Our employees or extend to any information required to be disclosed pursuant
agents; or creating a partnership, joint venture between You and Us; to the Texas Open Records Act, the United States Freedom of
or designating Us as Your agent. Furthermore, nothing in this Information Act, and similar State Acts, or other public
agreement requires Us to give You legal advice or determine Your disclosure acts of the United States or a state or territory
legal liabilities and We have no obligation to do so. You agree that thereof.
the advice We give is not legal advice.
6. How this Agreement Starts and Ends. This Agreement starts on
4. How We will invoice. We will send You timely invoices for Our the date stated in the introductory paragraph of the Agreement (the
services. [If You would like the invoices separated by service, please "Start Date") and continues until terminated or until the expiration
send Us an email to that effect and We will separate the invoices.] date stated in Article II - Term. Either party may terminate this
Your payment to Us is due within thirty days after You receive Our Agreement:
invoice(s). We will charge You interest at the rate of one and one-half
a. upon 90-days prior written notice to the other party; or
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 b. immediately, upon written notice, if a party has materially
charge You for any costs or expenses related to Our services unless breached this Agreement including any Scope of Work and the
the Scope of Work for the service specifically says We will charge You non-breaching party has given the breaching party notice of the
for costs or expenses. material breach and has given the breaching party thirty days to
5. Treatment of Confidential Information. 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
5.1 The party receiving the disclosing party's Confidential reasonable given the circumstances. Under this Agreement Your
information shall: use the Confidential Information solely for 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 material hold Us harmless from any Losses arising from or related to a claim that
breach. information You provided to Us contains any false, misleading, or
7. Your payment obligations after this agreement ends. Even if defamatory information regarding a third party.
this agreement is terminated or expires You remain obligated to: (1) 14. Miscellaneous provisions.
pay Us for services performed through the effective date of the 14.1 Personnel. At any time, You may request removal or
termination or expiration; (2) provide Us with all the information replacement of personnel We have assigned and We will promptly
necessary for Us to calculate what You owe Us on revenue You replace such personnel. The time for any deliverables required or
receive after the termination or expiration; and (3) pay invoices We any increase in costs will be adjusted to reflect any adverse impact
send You after the expiration or termination of this agreement for resulting from the change in personnel.
services performed before termination or expiration or for
continuing payments required by the Scope of Work or for both. 14.2 Gratuities, Gifts, Conflict of Interest. We shall, at all times,
comply with Your policies regarding gifts, gratuities, or conflicts of
8. Our commitment not to discriminate. On any work We perform interest that You provides to Us. At no time shall We, or Our
under this agreement, shall not discriminate on the grounds of employees, agents, directors, or contractors offer or accept any gift
race, color, religion, sex, , national origin, or veteran status in the or gratuity: from a third party who may be subject to findings
selection and retention of employees, subcontractors, the resulting from Services; to or from You, official, employee,
procurements of materials or leases of equipment. contractor, or agent, or from any other party where such gift or
9. Our Limited Warranty. We represent that all services performed gratuity could be construed as a conflict of interest.
under this agreement shall be performed by persons with the skills 14.3 Dispute Resolution. Any dispute relating to this agreement
and abilities necessary and that the services that We shall provide, the shall be submitted for resolution through mediation. The mediator
tangible deliverables, if any, are free and clear of the proprietary shall be selected from the list of individuals maintained by the
claims of third parties, unless We notify You to the contrary. This State District Court, County of Lamar, who participate in the
section 9 is Our complete warranty statement. We disclaim any other court's alternative dispute resolution process by joint agreement of
warranties to the fullest extent allowed by law. the parties. In the event the parties are unable to resolve the
10. Your warranty to Us. You represent that the information You dispute through the mediation process, then either party may
or Your employees or agents provide to Us will be provided free and commence an action in the State District Court, County of Lamar
clear of the claims of third-parties. You represent that You have the State of Texas. In all cases, the prevailing party to such dispute is
right to provide Us the information You provide and that entitled to recover costs and expenses, including reasonable
information provided will not be obscene, defamatory, or otherwise attorney's fees.
expose Us to liability to third parties. 14.4 Ownership of Work Product. We retain all right, title, and
11. Limitation of liability. To the maximum extent permitted by interest in and to the processes, procedures, models, inventions,
law, neither MuniServices, nor its employees, contractors or agents software, ideas, know-how, and any and all other patentable or
are liable for any indirect incidental, special, punitive or copyrightable material used, developed, or reduced to practice in
consequential damages, lost data or cost of procurement of the performance of this agreement. Upon payment therefore, We
substitute goods or services arising from or related to the services, will grant You all right, title, and interest in and to the reports,
This limitation applies: whether damages are based on breach of charts, graphs, and other deliverables We are required to produce
warranty or any obligation arising from a breach of warranty; and under this agreement.
whether liability is asserted in contract or tort; and whether or not 14.5 Assignment. Neither party may assign this agreement or
We have been advised of the possibility of any such loss or any of its rights or obligations under this agreement without the
damage. prior written consent of the other party, which consent must not be
12. Scope of disclaimers and limitation of liability. The disclaimers unreasonably withheld. Any assignment without prior written
and limitations of liability in sections 9 and 11 apply regardless of the consent is void. Notwithstanding the foregoing, the parties may
form of action, whether in contract, tort, strict liability or otherwise and assign all or part of this agreement immediately, without the prior
whether damages were foreseeable. Those disclaimers and limitations written consent of the non-assigning Party: (a) to the assigning
of liability survive failure of any exclusive remedies provided in this party's successor in interest who expressly assumes responsibility
Agreement. for the assigning party's obligations under this agreement; or (b) if
13. Indemnification. To the extent permitted by law, a party shall necessary to satisfy the rules, regulations and/or orders of any
defend, indemnify, and hold harmless the other party, its directors, federal or state governmental agency or body. Notwithstanding the
officers, employees and affiliates, from any and all claims, suits, foregoing, We may assign monies due under this agreement
without
demands, losses, damages, liabilities, costs and expenses, including consent (whether characterized as an account receivable or
reasonable attorney's fees (collectively "Losses") arising from or related otherwise). Any violation of the provisions of this paragraph
or death arising from or renders this agreement voidable at the option of the non assigning
to a claim of injury to person or property
caused by the negligent acts or negligent omissions of employees, party.
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
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(including facsimile copies) is deemed an original and all
14.6 Insurance. counterparts are deemed on and the same instrument and legally
binding on the parties.
a. Public Liability. During the term of this Agreement, We will
maintain a policy of public liability insurance with minimum 14.12 Entire Agreement. This agreement, including the Scope of
coverage's in accordance with the requirements You provide to Work that incorporates these terms and conditions, is the entire
Us. We will cause You, Your officials and employees to be named agreement between Us and You for the service(s) in the Scope of
on all liability policies described above as additional insureds for Work. This agreement supersedes and replaces any prior
activities taken pursuant to this Agreement. agreements, of whatever kind or nature, for the service(s) in the
Scope of Work. Any prior agreements, discussions, or
b. Workers' Compensation. During the term of this representations not expressly set forth in this agreement are of no
Agreement, We shall comply with the terms of the laws of Texas force or effect. No additional terms, PO Terms and Conditions, or
concerning workers' compensation, including but not limited to, oral or written representations of any kind are of any force and
maintaining in full force and effect one or more policies of effect unless in writing and signed with the same formality as this
insurance insuring against any liability We may have for workers' agreement
compensation.
14.13 No Oral Modification. No modification of this agreement is
14.7 Severobility. If a court of competent jurisdiction holds any effective unless set forth in writing and signed with the same
part of this agreement to be unenforceable, the unenforceable part formality as this agreement. No waiver of the requirements of this
will be construed as nearly as possible to reflect the original intent section is effective unless in writing and signed by our president.
of the parties and the remainder of the provisions will remain in full
force and effect. 14.14 Construction. This Agreement is to be construed in
accordance with the laws of the State of Texas without regard to its
14.8 Waiver. Either party's failure to insist upon strict conflict of laws principals.
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 14.15 Headings. The section headings herein are for convenience
this agreement at any later date or time. and reference purposes only and are not to serve as a basis for
construction or interpretation.
14.9 Force Mojeure. Neither party is liable for failing to perform
its obligations hereunder (other than payment obligations) where 14.16 Partial Payment. No receipt by Us of an amount less than
performance is delayed or hindered by war, riots, embargoes, Your full amount due will be deemed to be other than payment "on
strikes or acts of its vendors or suppliers, accidents, acts of God, or account", nor will any endorsement or statement on any check or
any other event beyond its reasonable control. any accompanying letter effect or evidence an accord and
satisfaction. We may accept such check or partial payment without
14.10 Notices. All notices, including notices of address changes, prejudice to Our right to recover the balance or pursue any of Our
provided under this agreement are deemed received on the third rights.
day after mailing if sent by mail, or immediately if sent by facsimile.
Notices shall be sent to the following:
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: ganderson@paristexas.gov
Facsimile: 903.785.8519
14.11 Copies. This agreement may be signed in separate
counterparts including facsimile copies. Each counterpart
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Signature: Signature.
Email: kevin.cerutti@muniservices.com Email: marc.herman@muniservices.com
Title: V.P. Finance Title: President
i% Document Integrity Verified f'y Echoslgn Tran'adton Number. xxsv5xxK2Z4M23 MMUNAWW"
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