Loading...
MBIA MuniServices - 2005 Agreement for Consultant Services r- ..- . ~) CONSULTANT SERVICES AGREEMENT THIS AGREEMENT is made at Gilroy, California, as of .L1(. L <I' H "./'/ 2005 ("Execution Date") by and between the City of Gilroy, a municipal corporation (hereafter referred to as "City" or "Client") and MBIA MuniServices Company (hereafter referred to as "Consultant" or "MMC"), who agree as follows: 1. Services. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in Exhibit "A" (the Exhibit). Consultant shall provide said services at the time, place, and in the manner specified in the Exhibit. Consultant shall not be compensated for services outside the scope of the Exhibit. 2. Payment. City shall pay Consultant for services rendered pursuant to this Agreement at the times and in the manner set forth in the Exhibit. The payments specified in the Exhibit shall be the only payments to be made to Consultant for services rendered pursuant to this Agreement, unless the City approves additional compensation for additional service. Consultant shall submit all billings for services rendered pursuant to this Agreement to City in the manner specified in the Exhibit. 3. Facilities and Equipment. Consultant shall, at its sole cost and expense, furnish all facilities and equipment that may be required for furnishing services pursuant to this Agreement. 4. Extra Services. City shall pay Consultant for those City authorized extra services, not reasonably included within the services described in Exhibit "A" such amounts as mutually agreed to in advance. Unless the City and Consultant have agreed in writing before the performance of extra services, no liability and no right to claim compensation for such extra services or expenses shall exist. 5. Assignment. This Agreement is assignable by Consultant, provided that City has consented in writing to any assignment. 6. Term. This Agreement shall remain in effect for a term of one (1) year beginning at the Execution Date, during which time the parties anticipate that MMC will complete all work under this Agreement; however, this Agreement shall continue under the same terms and conditions if any audits continue longer than the one (1) year period until those audits are complete. This Agreement may be renewed for a period of one (1) year upon written agreement ofthe parties prior to expiration of the then-current contract. 7. Hold Harmless. Client shall defend, indemnify and hold harmless MMC from any law suit or together legal proceedings, brought by any party resulting form erroneous information provided to MMC by Client and upon which MMC can reasonably be expected to rely. Provided, however, MMC shall be solely responsible for errors, omissions, and or negligent acts of MMC, its employees and agents, and shall indemnify and hold harmless Client, its officers, agents and employees, from and against any and all claims, demands, actions, suits and proceedings by others against all liability arising out of the actions of MMC in the performance of this Agreement. INVH1665322.1 01-072705-04706083 -1- 8. Data and File Retention. All data reports and other documentation (other than Consultant's drafts, notes and internal memorandum) shall become the property of the Client upon termination of this Agreement and upon payment in full of all compensation due MMC. Once this Agreement has terminated, if requested by the Client, all, or the designated portions of such, shall be delivered to the Client within 90 days of such request. If after 90 days has past, the Client has not requested the documentation, MMC shall have the authority to archive and or destroy such information. MMC does not warehouse data (magnetic media on computer disk drives) and will not retain data used to perform the contracted services, except for that data that is available through "Public Domain". All magnetic media will be returned to the Client immediately after it has been processed my MMC. All Data that has been derived from "Public Domain" data is the property ofMMC. 9. Governing LawNenue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue shall be proper exclusively in Santa Clara County. 10. Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void, then both parties shall be relieved of all obligations under that provision. The remainder of the Agreement shall be enforced to the fullest extent permitted by law. 11. Waivers. All conditions, covenants, duties and obligations contained in this Agreement can be waived only by written agreement executed by all parties. Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver, nor in any way limit the legal or equitable remedies available to that party. No waiver by either party of any default or breach shall constitute a waiver of any subsequent default or breach. 12. Arbitration. All Claims, demands, disputes, controversies, differences, or misunderstandings between the parties arising out of, or by virtue of, this Contract shall be submitted to and determined by arbitration in accordance with the Rules of the American Arbitration Association for commercial arbitrations, such arbitration to be held in Santa Clara County, California. The arbitrator's decision shall be final, binding and conclusive on all parties: it will not be appealable and shall include a finding for payments of the costs of such arbitration, not including fees and expense of counsel and witnesses. Judgment of a court of competent jurisdiction may be entered upon the award and may be enforced as such in accordance with the provisions of the award. This agreement to arbitrate is specifically enforceable by the parties to this Contract. Nothing within this paragraph shall prevent any party from resorting to judicial proceedings if interim injunctive or other equitable relief is necessary to prevent and irreparable injury to a party. 13. Independent Contractor. At all times during the term of this Contract, MBIA MuniServices Company (Consultant) shall be an Independent Contractor and shall not be an employee of the City of Gilroy (City). City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. INVH1665322.1 01-072705-04706083 -2- As MCC is not City's employee, MCC shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, MCC acknowledges and agrees that: *City will not withhold FICA (Social Security) from MCC'S payments; *City will not make state or federal unemployment insurance contributions on MCC'S behalf; *City will not withhold state or federal income tax from payment to MCC; *City will not make disability insurance contributions on behalf ofMCC; *City will not obtain workers' compensation insurance on behalf ofMCC. 14. Subcontracts. Any subcontracts entered into by Consultant for services to be rendered towards the completion of Consultant's portion of this Agreement shall be for Consultant's benefit alone, and as such shall be its responsibility with no liability resting on the City. Consultant agrees to provide a list of all subcontractors to be used in connection with services to be rendered toward the completion of its portion of this Agreement to the City within ten (10) working days of execution of this Agreement. 15. Licenses, Permits, Etc. Consultant represents and warrants to City that he has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice his profession. Consultant represents and warrants to City that Consultant shall, at his sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice his profession. 16. Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Consultant's obligations pursuant to this Agreement. Neither party shall be considered in default of this Agreement to the extent performance is prevented or delayed by any cause, present or future, which is beyond the reasonable control of the party. 17. Insurance. (a) In addition to any other obligations under this Agreement, MCC shall, at no cost to City, obtain and maintain throughout the term of this Agreement: (1) Comprehensive Liability Insurance, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; and (2) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence and aggregate. As a condition precedent to City's obligations under this Agreement, MCC shall furnish evidence of such coverage (naming City, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (1) immediately above) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. INVH1665322.1 01-072705-04706083 -3- (b) MCC agrees to provide workers' compensation insurance for MCC'S employees and agents and agrees to hold harmless, defend with counsel acceptable to City and indemnify City, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising out of any injury, disability, or death of. any ofMCC's employees. 18. Consultant Not Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 19. Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any person or persons assigned by Consultant to perform services pursuant to this Agreement, Consultant shall remove any such person immediately upon receiving notice from City of the desire of City for the removal of such person or persons. 20. Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices his/her profession. All products of whatsoever nature which Consultant delivers to City pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in Consultant's profession. 21. Reports, Charts or Other Products. All reports, charts and other products resulting from the performance of this agreement are the property of the City. 22. City Representative. The City Manager or his/her designee is the representative of the City and will administer this Agreement for the City. 23. Termination. Either party may terminate this Agreement upon ninety (90) days written notice in the event that the other party has breached any of its obligations hereunder. In the event of breach, the breaching party shall have thirty (30) days from the date of notice to cure all such breaches. In the event of termination under this Section, City shall pay Consultant for services performed up to the effective date of termination for which Consultant has not been previously paid. 24. Whole and Entire Agreement This instrument contains the whole and entire agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the others as of its date. Any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force and effect. 25. Equal Emplovment Opportunity; During the performance of this Agreement, Consultant, for itself, its assignees and successors in interest, agrees as follows: INVH1665322.1 01-072705-04706083 -4- INVH1665322.1 01-072705-04706083 (a) Compliance With Regulations: Consultant shall comply with the Executive Order 11246 entitled "Equal Employment Opportunity": as labor regulations (41 C.F.R. Part 60), hereinafter referred to as the "Regulations. " (b) Nondiscrimination: Consultant, with regard to the work performed by it after award and prior to completion of the work pursuant to this Agreement, shall not discriminate on the ground of race, color, religion, sex or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. (c) Solicitation for Subcontractor, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by Consultant for work to be performed under any subcontract, including procurements of materials or equipment, such potential subcontractor or supplier shall be notified by Consultant of Consultant's obligation under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex or national ongms. (d) Information and Reports: Consultant shall provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of Consultant is in the exclusive possession of another who fails or refuses to furnish this information, Consultant shall so certify to the City and shall set forth what efforts it has made to obtain the information. (e) Sanctions for Noncompliance: In the event of noncompliance by Consultant with the nondiscrimination provisions of this Agreement, the City shall impose such contract sanctions as it may determine to be appropriate, including, but not limited to: (i) Withholding of payments to Consultant under the contract until Consultant complies; (ii) Cancellation, termination, or suspenSIOn of the Agreement, m whole or in part. (f) Incorporation of Provisions: Consultant shall include the provisions of paragraphs "a" through "e" in every subcontract, including Regulations, order, or instructions issued pursuant thereto. Consultant shall take such action with respect to any Regulations, order or instructions issued pursuant thereto. Consultant shall take such action with respect to any subcontract or procurement as the City may direct as a means of enforcing -5- such prOVISIOns, including sanctions for noncompliance; provided, however, that in the event Consultant becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Consultant may request City to enter such litigation to protect the interests of the City. 26. Confidentiality. Consultant agrees that it shall keep all information it receives concerning City taxpayers confidential and that it shall not use this information for any purpose other than as expressly provided in this Agreement or otherwise expressly consented to by City. 27. Notices. Any notice to be given from one party to the other pursuant to this Agreement shall be deposited with the United States Postal Service postage prepaid and addressed as follows: To City: Irma Navarro Revenue Manager City of Gilroy 7351 Rosana Street Gilroy, CA 95020 To Consultant: MBIA MuniServices Company 7335 N. Palm Bluffs Drive Fresno, CA 93711 Attn: Legal Department Email: legal@muniservices.com Nothing in this Paragraph shall be construed to prevent the giving of notice by personal service. 28. Exhibits. All Exhibits referred to herein are attached hereto and are by this reference incorporated herein. 29. Counterparts. This Agreement shall be signed by the parties in two (2) original counterparts, both of which shall constitute but one (1) Agreement. EXECUTED as of the day and year first above stated. Date: {- ('j INVH1665322.1 01-072705-04706083 -6- MBIA MuniS. e. rvices ~c By: ;!Ih~______ Marc Herman Title: President Date: '1 / ~ ~I \) ~- . I Date:l / ~ ~ I b~-' I I ~ TTES1 (/ ~~l\-" /1/ ( L td ( CITY CLERK .~. (' ! l APPROVED AS TO FORM: .\ ... "f\-1 C i\Z~ CITY ATTORNEY INVH1665322.1 01-072705-04706083 -7- EXHIBIT A TRANSIENT OCCUPANCY TAX MMC shall perform a Transient Occupancy Tax (TOT) audit as follows: o Review the guest registration process and associated documentation for revenue tracking, tax collection and exempt-status qualification o Verify accuracy of filed TOT 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 o Review bank statements to verify that deposits reconcile with the reported revenue on the TOT returns o 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 o Where possible, compare the state and federal tax filings with the TOT returns o Schedule and conduct audit finding review meetings with each property operator to explain the findings and allow the operator full opportunity to provide additional documentation that might mitigate the audit findings o Prepare and document any changes to the audit findings and their effects on the final billing of any potential remaining tax, interest or penalty amounts due the City TIMING & COMPENSATION - TRANSIENT OCCUPANCY TAX AUDIT MMC shall commence the revenue enhancement audits within 10 working days of authorization (unless instructed otherwise by the City)with the objective of delivering the initial audit reports within 90 to 120 working days. Thereafter, MMC shall provide the City with audit progress reports to include, but not be limited to, the following: o Status of work in progress, including copies of reports provided to taxpayers/intermediaries addressing each reporting error/omission individually, including where applicable the business name, address, telephone number, account identification number, individuals contacted, date(s) of contact, nature of business, reason(s) for error/omission and recommended corrective procedure o Actual revenue produced for the City by MMC's service on a quarterly and cumulative basis o Projected revenue forthcoming to the City as a result of MMC's audit service, specified according to source, timing and one-time versus ongoing o Alphabetical listing of all errors/omissions detected for the City by MMC including, for each, the account number, correction status, payment amount received by the City, period to which payment is related and payment type (e.g., reallocation, deficiency assessment, etc) MMC will conduct the audit work on a fixed fee basis whereby MMC is compensated for each property audited. Under this arrangement, MMC's compensation is $800 for each audited property, payable once the audit has been completed. All expenses incurred by MMC in providing the transient occupancy tax audit service work will be absorbed by MMC.