HomeMy WebLinkAboutRES 10-106 RESOLUTION NO. 10-106
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute an agreement,
substantially in the form attached hereto as Exhibit"A," with MuniServices,LLC,of Fresno,
California, for compliance review services in the area of local hotel occupancy tax
collection for an estimated annual expenditure of$24,000 per year for three (3) years.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 27th day of April,
2010.
- Mayor Becky Ames -
Agreement Between
The City of Beaumont and
MuniServices,LLC for
Local Hotel Occupancy Tax and
Hospitality Consulting Program
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 Beaumont, a municipal corporation of the
State of Texas("Municipality").
ARTICLE I. SCOPE OF WORK
I A. Local Hotel Occupancy(HOT)
Objectives and Methods
MuniServices Local Hotel Occupancy Tax and Hospitality Consulting Program is intended to assist the
Municipality in realizing all of the lodging tax revenue to which it is entitled through conducting annual
3 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
j educating lodging providers to ensure appropriate collection and remittance of the lodging tax.
Ordinance,Return and Administration Review Services(Inception of Contract):
• Review Municipality's lodging tax ordinance,return form and administrative procedures;
• Recommend potential enhancements to better acquaint the lodging providers with their
responsibilities in collecting and paying-over the tax, and to improve revenue generation
and administration by the Municipality;
• Provide a written report to Municipality, including suggestions for new ordinance language,
form design and process development,as applicable;and
• Meet with Municipality to discuss findings,and to identify any recommendations for further
review.
Analysis and Compliance Review Services(Annually):
• Obtain and analyze lodging provider return information in the possession of the
Municipality initially for the prior four-year(4)period,thereafter annually for the prior year;
• Conduct unobtrusive collection of information on each property, including number of
rooms,occupancy rate, physical condition, business dynamics,etc.;
i
• Provide a report to the Municipality on trend analysis to include projections for gross rent
revenue and occupancy rates,and other information conducive to assessment of visitation;
• Perform discovery services designed to identify and locate lodging providers not properly
registered with the Municipality and not appearing on the Municipality rolls as lodging tax
remitters;
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Beaumont,TX-NOT 011810
EXHIBIT "A"
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• Analyze lodging provider return information from the past three years in order to identify
unusual or suspicious reporting and/or activities that warrant further review;and
• Provide a detailed report to the Municipality identifying lodging providers who require
additional investigation or examination to determine their compliance with the
Municipality's lodging tax ordinance;
Field Audit Services(As Deemed Needed By Analysis);
• 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 Municipality 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 Municipality 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';
i
• 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 Municipality ordinance;
• 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 Municipality staff in order to facilitate collection of revenue due from lodging
providers for prior periods;
• Coordinate with designated Municipality official(s) as necessary to review findings and
recommendations;
• Provide assistance to Municipality 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 Municipality.
MUM a
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Seminar Services(Once Every Third(3r6)Year,When Desired by Municipality):
• Conduct a seminar session with Municipality staff to present and discuss issues pertaining to
lodging tax administration. Key topics for normal Municipality staff sessions include
applicable state and federal law, return analysis, deficiency determination techniques and
collections. Municipality may add select topics of Municipality concern to be reviewed at
this session;
• Conduct a seminar session for local lodging providers to disseminate information intended
to further the providers' understanding of their duties and responsibilities under the
Municipality's lodging tax ordinance, their responsibilities for collections and record
keeping, and to address any points requiring clarification in the lodging providers'
understanding of the MunicipaliWs lodging tax ordinance.
r
Municipality staff shall be encouraged to attend both seminar sessions so as to become familiar with the
issues and concerns facing local lodging providers and to interact directly with the lodging providers.
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 shall automatically
renew for successive one-year (1) periods, subject however, to Municipality's availability of funding
which lawfully-may be applied, until terminated. If funding will not be available, the Municipality 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".
A
ARTICLE III.COMPENSATIQD1
A. Local Hotel Occupancy(HOT)
The Local Hotel Occupancy Tax and Hospitality Consulting Services shall be provided at an Annual Fixed
Fee per lodging property located in the Municipality as per the following classification of lodging
properties: six hundred dollars ($600) per standard lodging property, six hundred dollars ($600) per
I timeshare property, and three hundred ($300) per bed and breakfast facility. The Fixed Fee shall be
i
invoiced upon execution of this Agreement, and at the beginning of each renewal term. Additionally,
MuniServices shall be entitled to reimbursement of reasonable travel and other out-of-pocket expenses
associated with the conduct of field audits and seminars, not-to-exceed$500 per contract year without
prior written approval of the Municipality. Such reimbursement shall be billed incrementally.
B. Additional Consulting.
I Municipality may request that MuniServices provide additional consulting services at any time during
the term of this Agreement. If MuniServices and Municipality 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.
MUS
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R ARTICLE IV.GENERAL PROVISIONS
Y 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, 11,and III prevail.
The Parties are signing this Agreement on the date stated in the introductory clause.
MuniServices,LLC City of Beaumont
A Municipal Corporation
By: ~Hero Here an tan 19, By:
Marc Herman Name:
Title: President Title:
ATTEST:
c
By:Kevin Cap=(Jan 19,2010)
Kevin Cerutti City Clerk
E Title: Vice-President, Finance
3
4
APPROVED AS TO FORM:
I City Attorney
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Beaumont,TX-HOT 011810
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ATTACHMENT"A"
General Provisions
L What this agreement covers. This agreement covers any unless the Scope of Work for the service specifically says We will
services You selected on Our website or that We have agreed to charge You for costs or expenses.
provide to You. We are not required to perform nor are You S. Treatment of Confidential Information.
required to pay for services that are not in a written or click-thru
agreement that incorporates these terms and conditions. 5.1 The party receiving the disclosing party's Confidential
2. Meaning of certain words In this agreement. Information shall: use the Confidential Information solely
for performing under this Agreement; and treat the
• "We", "Our","Us", and similar terms mean MuniServices, Confidential Information with the same care as it uses to
LLC. maintain the confidentiality of its own Confidential
• "You," "Yours" (including in the possessive) means The Information,which shall be at least reasonable care. The
City of Beaumont. party receiving the disclosing party's Confidential
Information shall not disclose the Confidential
• "Scope of Work" means the written statement that: Information to any third party without the written
describes the services We will provide to You;incorporates consent of the Disclosing Party, except to employees,
these terms and conditions,and states what You will pay consultants or agents to whom disclosure is necessary to
Us for those services. For this agreement,the Scope of perform this Agreement and who have agreed in writing
Work is found in Articles I and II of the agreement. to treat the Confidential Information according to the
• "Confidential Information" means each party's products, terms of this section five,or except if ordered to disclose
services, technical data, trade secrets, inventions, the Confidential Information by any court or state or
processes, and constituent information. Any information federal agency. All Confidential information remains the
meeting this description is"Confidential information"even sole property of the disclosing party. We will hold
if the disclosing party did not mark the information as taxpayer information in strict confidence.
"Confidential Information" or did not notify the receiving 5.2 If a party who has received Confidential Information is
party that the information was"Confidential Information." served with a subpoena or other legal process concerning
Information is not confidential if it: (a) is rightfully known the Confidential Information, the party who was served
to the receiving party prior to receipt from the disclosing shall promptly notify the other party and shall cooperate
party as reasonably evidenced by such party; (b) becomes with the other party,at the other party's
known to the receiving rom a source other than one validity the expense,in any
g party lawful effort to contest the validity of the subpoena or
who is under an obligation of confidentiality to the other legal process. Being a governmental entity, all
disclosing party; or (c) becomes publicly known or information in Our possession is subject to the Public
otherwise ceases to be confidential other than by an Information Act. Any such confidential information will
unauthorized act. be treated as such in accordance with the Act.
3. Our relationship with You. We are an independent 5.3 The parties agree that a breach of the terms of this
contractor and not Your employee or agent. We can perform section five would result in irreparable injury to the non-
services for others during this Agreement. We are responsible breaching party and a remedy In damages would be
for any subcontractors We use in performing services for You inadequate. The parties agree that in the event of such
and We are solely responsible to pay those subcontractors. breach or threatened breach,the non-breaching party is
Nothing in this Agreement is to be interpreted as: creating the entitled to seek an injunction to prevent the breach or
relationship of employer and employee between You and Us or threatened breach, in addition to any other remedies
between You and any of Our employees or agents;or creating a available at law or in equity.
partnership,joint venture between You and Us; or designating
5
Us as Your agent. Furthermore, nothing in this agreement .4 The obligations in this section five continue for a period
requires Us to give You legal advice or determine Your legal of five years from the date of disclosure of the
liabilities and We have no obligation to do so. You agree that Confidential Information, except that for any trade
the advice We give is not legal advice. secrets (as defined by applicable law),the obligations of
confidentiality continue indefinitely from the date of
4. How We will invoice. We will send You timely invoices for disclosure and survive the termination of this Agreement
Our services. [If You would like the invoices separated by indefinitely.
service, please send Us an email to that effect and We will
separate the invoices.) Your payment to Us is due within thirty 5.5 The confidentiality obligations of this section five do not
days after You receive Our invoice(s). We will charge You extend to any information required to be disclosed
interest at the rate of one and one-half percent (1.5%) per pursuant to the Texas Open Records Act, the United
month, or the maximum amount permitted by law, on any States Freedom of Information Act, and similar State
amounts You do not pay within those thirty days. We will not Acts,or other public disclosure acts of the United States
charge You for any costs or expenses related to Our services or a state or territory thereof.
1 Rev 031910
6. How this Agreement Starts and Ends. This Agreement out of this agreement This section allocates the risks between
starts on the date stated in the introductory paragraph of the Us and You and Our'pricing reflects the al/oavtion of risk and
Scope of work(the'5ga D ")and continues until terminated limitation of liability in this section 11.
or until the expiration date stated in the Scope of Work. Either
parry may terminate this Agreement:
1Z
Scope of disdaimers and limitation of pabilitty. The
a. upon 90-days prior written notice to the other party;or disclaimers and limitations of liability in sections 9 and 11 apply
b. immediately, upon written notice, if a parry has regardless of the form of action,whether in contract,tort,strict
materially breached this Agreement including any Scope of liability or otherwise and whether damages were foreseeable.
Work and the non-breaching party has given the breaching Those disclaimers and limitations of liability survive failure of any
party notice of the material breach and has given the exclusive remedies provided in this Agreement.
breaching party thirty days to cure the breach(except in the
13. Indemnification. (Omitted by agreement between the
case of non-payment for which the cure period shall be ten paw)
(10)days)or such amount of time as is reasonable given the
circumstances. Under this Agreement Your failure to pay any 14. Miscellaneous provisions.
amount when due under this Agreement(after 10-days prior 14.1 Personnel. At any time,You may request removal or
written notice of Your failure to pay)is a material breach. replacement of personnel We have assigned and We will
7. Your payment obligations after this agreement ends, promptly replace such personnel. The time for any
Even if this agreement is terminated or expires You remain deliverables required or any increase in costs will be adjusted
obligated to: (1) pay Us for services performed through the to reflect any adverse impact resulting from the change in
effective date of the termination or expiration; and (2) pay personnel.
invoices We send You after the expiration or termination of this 14.2 Gratuities, Gifts, Conflict of Interest. We shall, at all
agreement for services performed before termination or times, comply with Your policies regarding gifts,gratuities,or
expiration or for continuing payments required by the Scope of conflicts of interest that You provides to Us. At no time shall
Work or for both. We, or Our employees,agents, directors, or contractors offer
& Our commitment not to discriminate. On any work We or accept any gift or gratuity:from a third parry who may be
perform under this agreement,We shall not discriminate on the subject to findings resulting from Services; to or from You,
grounds of race,color, religion, sex, national origin,or veteran official, employee, contractor, or agent, or from any other
status in the selection and retention of employees, party where such gift or gratuity could be construed as a
subcontractors, the procurements of materials or leases of conflict of interest.
equipment. 14.3 Dispute Resolution. Any dispute relating to this
9. Our limited Warranty. We represent that all services agreement shall be submitted for resolution through
performed under this agreement shall be performed by persons mediation. The mediator shall be selected from the list of
with the skills and abilities necessary and that the services that individuals maintained by the State District Court, County of
We shall provide,the tangible deliverables, If any,are free and Jefferson, who participate in the court's alternative dispute
clear of the proprietary claims of third parties,unless We notify resolution process by joint agreement of the parties. In the
You to the contrary. This section 9 is Our complete warranty event the parties are unable to resolve the dispute through
statement. We disclaim any other warranties to the fullest the mediation process,then either party may commence an
extent allowed by law. action in the State District Court,County of Jefferson State of
10. Your warranty to Us. You represent that the information Texas. in all cases, the prevailing party to such dispute is
You or Your employees or agents provide to Us will be provided entitled to recover costs and expenses, including reasonable
attorney's fees.
free and clear of the claims of third-parties. You represent that
You have the right to provide Us the information You provide 14.4 Ownership of Work Product. We retain all right,title,
and that information provided will not be obscene,defamatory, and Interest in and to the processes, procedures, models,
or otherwise expose Us to liability to third parties. Inventions, software, ideas, know-how, and any and all other
11. Limitation of liability. To the maximum extent permitted patentable or copyrightable material used, developed, or
by law,neither MuniServices,nor its em reduced to practice in the performance of this agreement.
ployees,contractors or Upon payment therefore,We will
agents are liable for any indirect;,incidental,special,punitive Po p Y grant You all right,title,and
or consequential damages,lost data or cost of procurement of interest in and to the reports, charts, graphs, and other
substitute goods or services arising from or related to the deliverables we are required to produce under this
services. This limitation applies:whether damages are based agreement.
on breach of warranty or any obligation arising from a breach 14.5 Assignment. Neither party may assign this agreement
of warranty; and whether liability Is asserted in contract or or any of its rights or obligations under this agreement without
tort and whether or not we have been advised of the the prior written consent of the other party, which consent
Possibility of any such knss or damage.Our liability under this must not be unreasonably withheld. Any assignment without
agreement will not exceed an amount equal to the flees You prior written consent is void. Notwithstanding the foregoing,
paid for the service to which the claim pertains. This section the parties may assign all or part of this agreement
11 sets forth Your exclusive remedy for claims arising from or immediately, without the prior written consent of the non-
2 Rev 031910
assigning Party: (a) to the assigning party's successor in To You:
Interest who expressly assumes responsibility for the assigning City of Beaumont
party's obligations under this agreement;or(b)if necessary to POB 3827
satisfy the rules, regulations and/or orders of any federal or Beaumont,TX 77704
state governmental agency or body. Notwithstanding the Attn:Laura H.Clark,CPA,CFO
foregoing, We may assign monies due under this agreement Email:iclark@ci.beaumont.tx.us
without consent (whether characterized as an account Facsimile:409-880-3132
receivable or otherwise).Any violation of the provisions of this
paragraph renders this agreement voidable at the option of 14.11 Copies. This agreement may be signed in separate
the non-assigning party. counterparts including facsimlie copies. Each counterpart
14.6 Insurance. (including facsimile copies) is deemed an original and all
counterparts are deemed on and the same instrument and
a. Public Liability. During the term of this Agreement,We legally binding on the parties.
Will maintain a policy of public liability insurance with
rninimum coverage's in accordance with the requirements 14.12 Entire Agreement.This agreement,Including the Scope
You provide to Us. We will cause You, Your officials and of Work that Incorporates these terms and conditions, is the
employees to bg named on all liability policies described entire agreement between Us and You for the service(s)in the
above as additional insureds for activities taken pursuant to Scope of Work. This agreement supersedes and replaces any
this Agreement. prior agreements, of whatever kind or nature, for the
service(s) in the Scope of Work. Any prior agreements,
b. Workers' Compensation. During the term of this discussions, or represerrtations not expressly set forth in this
Agreement,We shall comply with the terms of the laws of agreement are of no force or effect. No additional terms, PO
Texas concerning workers'compensation, including but not Terms and Conditions,or oral or written representations of any
limited to, maintaining in full force and effect one or more kind are of any force and effect unless in writing and signed
policies of insurance insuring against any liability We may with the same formality as this agreement
have for workers'compensation.
14.13 No Oral Modification. No modification of this
14.7 Sevembillty. If a court of competent Jurisdiction holds agreement is effective unless set forth in writing and signed
any part of this agreement to be unenforceable, the with the same formality as this agreement. No waiver of the
unenforceable part will be construed as nearly as possible to requirements of this section is effective unless in writing and
reflect the original intent of the parties and the remainder of signed by our president.
the provisions will remain in full force and effect.
14.14 Construction. This Agreement is to be construed in
14.8 Waiver. Either party's failure to insist upon strict accordance with the laws of the State of Texas without regard
performance of any provision of this agreement is not to be to its conflict of laws principals.
construed as a waiver of that or any other of a party's rights
under this agreement at any later date or time. 14.15 Headings. The section headings herein are for
convenience and reference purposes only and are not to serve
14.9 Force Majeure. Neither party is liable for failing to as a basis for construction or interpretation.
perform Its obligations hereunder (other than payment
obligations)where performance is delayed or hindered by war, 14.16 Partial Payment. No receipt by Us of an amount less
riots, embargoes, strikes or acts of its vendors or suppliers, than Your full amount due will be deemed to be other than
accidents, acts of God, or any other event beyond its payment"on account",nor will any endorsement or statement
reasonable control. on any check or any accompanying letter effect or evidence an
accord and satisfaction. We may accept such check or partial
14.10 Notices. All notices, including notices of address payment without prejudice to Our right to recover the balance
changes, provided under this agreement are deemed received or pursue any of Our rights.
on the third day after mailing if sent by mail,or immediately if
sent by facsimile.
Notices shall be sent to the fo8owin¢:
To Us:
MunlServices,LLC
7335 North Palm Bluffs Avenue
Fresno,CA 93711
Attention Legal Department
Email:Legal @muniservices.com
Facsimile:559-312-2957
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Agreement Between
The City.of Beaumont and
MuniServices,LLC for
Local Hotel Occupancy Tax and
Hospitality Consulting Program
This Agreement is made as of 2010 between MuniServices, LLC, a
l Delaware limited liability company,its s bsidiaries and affiliates, with an office at 7.335 N. Palm Bluffs
Avenue, Fresno, CA 93711, ("MuniServices") and the City of Beaumont,a municipal corporation of the
State of Texas("Municipality").
l
ARTICLE I. SCOPE OF WORK
A. Local Hotel Occupancy(HOT)
e' Objectives and Methods
f' -MuniServices local Hotel Occupancy Tax and Hospitality Consulting Program is intended to assist the
Municipality 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.
Ordinance,Return and Administration Review Services(Inception of Contract):
i
Review Municipality's lodging tax ordinance,return form and administrative procedures;
• Recommend potential enhancements to better acquaint the lodging providers with their
responsibilities in collecting and paying-over the tax, and to improve revenue generation
and administration by the Municipality;
• Provide a written report to Municipality,including suggestions for new ordinance language,
form design and process development,as applicable;and
. Meet with Municipality to discuss findings,and to identify any recommendations for further
review.
Anailysis and Compliance Review Services(Annually):
r
• Obtain and analyze lodging provider return information in the possession of the
Municipality initially for the prior four-year(4)period,thereafter annually for the prior year;
a`
• Conduct unobtrusive collection of Information on each property, including number of
rooms,occupancy rate,physical condition,business dynamics,etc.;
• Provide a report to the Municipality on trend analysis to include projections for gross rent
revenue and occupancy rates,and other information conducive to assessment of visitation;
• Perform discovery services designed to identify and locate lodging providers not properly
registered with the Municipality and not appearing on the Municipality rolls as lodging tax
remitters;
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Beaumont,TX-NOT 011810
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• Analyze lodging provider return information from the past three years in order to identify-
unusual or suspicious reporting and/or activities that warrant further review,and
• Provide a detailed report to the Municipality identifying lodging providers who require
additional investigation or examination to determine their compliance with the
F Municipality's lodging tax ordinance;
Field Audit Services(As Deemed Needed By"lysis);
• Perform on-site examinations of the records of those providers identified thiough analysis
to warrant further investigation, but only as authorized by Municipality and not to involve
more than one-third(113)of the Municipalities properties in any one year contract period;
• Provide Municipality staff with a detailed list of all records required to be made available by
�S 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 Municipality 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';
r • 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 Municipality ordinance;
• 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 Municipality staff in order to facilitate collection of revenue due from lodging
providers for prior periods;
• Coordinate with designated Municipality official(s) as necessary to review findings and
recommendations;
• Proaride assistance to Municipality 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 Municipality.
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Seminar Services(Once Every Third(3rd)Year,When Desired by Municipality):
r;
• Conduct a seminar session with Municipality staff to present and discuss issues pertaining to
lodging tax administration. Key topics for normal Municipality staff sessions include
applicable state and federal law, return analysis, deficiency determination techniques and
collections. Municipality may add select topics of Municipality concern to be reviewed at
this session;
f.
• Conduct a seminar session for local lodging providers to disseminate information intended
to further the providers' understanding of their duties and responsibilities under the
Municipality's lodging tax ordinance; their responsibilities for collections and record
keeping, and to address any points requiring clarification in the lodging providers'
understanding of the Municipality's lodging tax ordinance.
C" Municipality staff shall be encouraged to attend both seminar sessions so as to become familiar with the
Issues and concerns facing local lodging providers and to interact directly with the lodging providers.
r!
ARTICLE If. TERM
Fi
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 automatically
renew for successive one-year (1) periods, subject however, to Municipalit�(s availability of funding
which lawfully.may be applied, until terminated. If funding will not be available, the Municipality must
i provide at least 36-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 W.
ARTICLE Ill.COMPENSATION
A. Local Hotel Occupancy(HOT)
The Local Hotel Occupancy Tax and Hospitality Consulting Services shall be provided at an Annual Foxed
Fee per lodging property located in the Municipality as per the following classification of lodging
properties: six hundred dollars ($600) per standard lodging property, six hundred dollars ($600) per
timeshare property, and three hundred ($300) per bed and breakfast facility.The Fixed Fee shall be
invoiced upon execution of this Agreement, and at the beginning of each renewal term. Additionally,
E MuniServices shall be entitled to reimbursement of reasonable travel and other out-of-pocket expenses
associated with the conduct of field audits and seminars,not-to-exceed$500 per contract year without
prior written approval of the Municipality. Such reimbursement shall be billed incrementally.
� B. Additional Consulti
t Municipality may request that MuniServices provide additional consulting services at any time during
the term of this Agreement. If MuniServices and Municipality 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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Beaumont TX-NOT 011810
Le Document Intesirdy Veilied EchoSign Transaction Number.33CEJ466T3V2V
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 hergin. If there is a
E' disagreement between Articles I,11,and III,and these general provisions,Articles 1,11,and III prevail.
The Parties are signing this Agreement on the date stated In the introductory clause.
`. MuniServices,LLC City of Beaumont
A Municipal Corporation .
j'
By:Wrc Mme,On 19.2010) By:
Marc Herman Name: y t,
—�-
Ft
Title: President Title: en-yW
ATTEST:
By;KrAn Cerw(Jan 19.2010) 141, atil
e
Kevin Cerutti Pty Clerk
Title: Vice-President,Finance
APPROVED AS TO FORM:
Att ey
a
4
Beaumont TX-HOT 011810
>d'Document Inteadly Verified Eoboftn Transaction Number:33CEJ466T3V2V
ATTACHMENT"An
Genera!Provisions
L What this agreement covers. This agreement covers any unless the Scope of Work for the service specifically says We will
services You selected on Our website or that We have agreed to charge You for costs or expenses.
provide to You. We are not required to perform nor are You S. Treatment of Confnderntlal Infomvatim
required to pay for services that are not in a written or crick-thru
agreement that incorporates these terms and conditions. 5.1 The party receiving the disclosing party's Confidential
2 MeanirrgaFcertaimwordsinth�agreemert. Information shall:use the Confidential Information solely
for performing under this Agreement; and treat the
• "We "Our°,"Us",and similar terms mean MuniServices, Confidential Information.with the same care as It uses to
LLC. maintain the confidentiality of its own Confidential
• "You," "Yours" (including in the possessive) means The Information,which shall be at least reasonable care. The
City of Beaumont. party receiving the disclosing party's Confidential
Information shall not disclose the Confidential
• "Scope of Wont" means the written statement that: information to any third party without the written
describes the services We will provide to You;incorporates consent of the Disclosing Party, except to employees,
these terms and conditions;and states what You will pay consultants or agents to whom disclosure is necessary to
Us for those services. For this agreement,the Scope of perform this Agreement and who have agreed in writing
Work Is found in Articles I and H of the agreement to treat the Confidential Information according to the
• "Confidential Information" means each party's products, terms of this section five,or except if ordered to disclose
services, technical data, trade secrets, inventions, the Confidential information by any court or state or
processes, and constituent information. Any information federal agency. All Confidential Infomiation remains the
meeting this description is"Confidential information"even sole property of the disclosing party. We will hold
if the disclosing party did not mark the information as taxpayer information in strict confidence.
"Confidential Information"or did not notify the receiving 5.2 if a party who has received Confidential Information is
party that the information was"Confidential Information." served with a subpoena or other legal process concerning
Information is not confidential if it(a) is rightfully known the Confidential Information the
party who was served _
to the receiving party prior to receipt from the disclosing shall promptly notify the other party and shall cooperate
party as reasonably evidenced by such party;(b)becoMes with the other at the other a
party, party's expense,in any
known to the receiving party from a source other than one lawful effort to contest the vafidlty of the subpoena or
who is under an obligation of confidentiality to the other legal process. Being a governmental entity, all
disclosing party; or (c) becomes publicly known or Information in Our possession Is subject to the Public
otherwise ceases to be confidential other than by an information Act. Any such confidential information will
unauthorized act be treated as such in accordance with the Act.
3. Our relationship with You. We are an independent 53 The rties agree gree that a breach of the terms of this
contractor and not Your employee or agent. We can perform section five would result in irreparable injury to the non-
services for others during this Agreement We are responsible breaching party and a remedy in damages would be
for any subcontractors We use in performing services for You inadequate. The parties agree that in the event of such
and We are solely responsible to pay those subcontractors. breach or threatened )reach,the non-breaching
Nothing in this Agreement is to be interpreted as: creating the entitled tD seek an injunction to prevent the breach or
relationnhip of employer and employee between You and Us or threatened breach, in addition to any other remedies
between You and any of Our employees or agents;or creating a available at law or in equity.
partrfership,joint venture between You and Us; or designating
' Us as Your agert. Furthermore, nothing in this agreement 5.4 The obligations in this section five continue for a period
requires Us to give You legal advice or determine Your legal of five years from the date of disclosure of the
liabilities and We have no oblation to do so. You agree that Confidential Information, except that for arty trade
the advice We give is not legal advice. secrets(as defined by applicable law),the obligations of
confidentiality continue indefinitely from the date of
4. How We will invoice. We will send You timely invoices for disclosure and survive the termination of this Agreement
Our services. (If You would like the invoices separated by indefinitely.
service, please send Us an email to that effect and We will 5.5 The confidentiality obligations of this section five do not
kx
separate the invo ,s.] Your payment to Us is due within thirty extend to any information required to be disclosed
days after You receive Our Involoe(s). We will charge You
Interest at the rate of one and one-half percent (15 States Freedom per Pursuant a the Texas Open Records Act, the United
month, or the maximum amount permitted by law, on any dom of Information Act, and similar State
amounts You do not pay within those thirty days. We will not Acts, a other public thereof.
acts of the United States
ova state
charge You for any costs or expenses related to Our services te or territory teoff.
1 Rev 031910
6. Haw this Agreement Starts and Ends. This Agreement out of this agreement This section allocates the risks between
starts on the date stated In the inti ucbory paragraph of the Us and You and Our'pdcing reJMcts the allocation of risk and
Scope of work(the Date')and continues until terminated Ilmftatfon of lilability in this section SL
or until the expiration date stated in the Scope of Work. Either
party may terminate this Agreement:
a: upon 90� � Scop6 of dlsdaimers and (imitation of liability. The
po 90-days prior written notice to the other party;or disclaimers and limitations of liability in sections 9 and 11 apply
b. immediately, upon written notice, if a party has regardless of the form of action,whether in contract,tort,strict
materially breached this Agreement including any Scope of liability or otherwise and whether damages were foreseeable.
Work and the non-breaching parry has given the breaching Those disclaimers and limitations of Witty survive failure of any
party notice of the material breach and has given the exclusive remedies provided in this Agreement
breaching party thirty days to cure the breach(except in the 18, Indemnification. [Omitted by agreement between the
case of non-payment for witch the cure period shall be ten
parties
(10)days)or such amount of time as is reasonable given the )
circumstances. Under this Agreement Your failure to pay any 14. Misoeligne bus provisions.
amount when due under this Agreement(after 10-days prior 14.1 Persohnel. At any time,You may request removal or
written notice of Your failure to pay)is a material breach. replacement of personnel We have assigned and We will
7. Your payment obligations after this agreement ends. promptly replace such personnel. The time for arty
Even If this agreement is terminated or expires You remain deliverables required or any increase in costs will be adjusted
obligated to: (1) pay Us for services performed through the to reflect any adverse impact resulting from the change in
effective date of the germination or expiration; and (2) pay personnel.
invoices We send You afterthe expiration or termination of this 14.2 Gratuities, Gifts, Cmflkt of Interest. We shall, at all
agreement for services performed before 'termination or times,comply with Your policies regarding gifts,gratuities,or
expiration or for continuing payments required by the Scope of conflicts of interest that You provides to Us. At no time shall
Work or for both. We,or Our employees,agents,directors, or contractors offer
8. Our corrrpiitment not to discriminate. On any work We or accept any gift or gratuity:from a third party who may be
perform under this agreement,We shall not discriminate on the subject to findings resulting from Services; to or from You,
grounds of race,color, religion, sex, national origin,or veteran official, employee, contractor, or agent, or from any other
status in the selection and retention of employees, party where such gift or gratuity could be construed as a
subcontractors, the procurements of materials or leases of conflict of Interest
equipment 14.3 Dispute Resolution. Any dispute relating to this
9. Our Umked Warranty. We represent that all services agreement shall be submitted for resolution through
performed under this agreement shag be performed by persons mediation. The mediator shall be selected from the list of
with the sidlls and abilities necessary and that the services that individuals ma(rtained by the State District Court, County of
We shall provide,the tangible deliverables, If any,are free and Jefferson, who participate in the court's alternative dispute
clear of the proprietary claims of third parties,unless We notify resolution process by joint agreement of the parties. in the
You to the contrary. This section 9 is Our complete warranty event the parties are unable to resolve the dispute through
statement We disclaim arty other warranties to the fullest the mediation process,then either party may commence an
extent allowed by law. action in the State District Court,County of Jefferson State of
10. Your warranty to Us. You represent that the Information Texas. in all cases, the prevailing party to such dispute is
You or Your employees or agents provide to Us will be provided entitled to recover costs and expenses,Including reasonable
free and clear of the claims of third-parties. You represent that attorney's fees.
You have the right to provide Us the information You provide 14.4 Ownership of Work Product. We retain all right,title,
and that information provided will not be obscene,defamatory, and interest In and to the processes, procedures, models,
or otherwise expose Us to liability to third parties. Inventions, software, ideas,know-how,and any and all other
11. Llmitatfon of Gabiliity. To the nmdmum extent permitted patentable or copyrightable material used developed, or
lyknv,neither MuidServkes,nor ltsem l reduced to practice in the performance of this agreement.
employees,contractors or Upon payment therefore,we will grant You all
agw s are Gable for any F»dlrect incidental;speda4 punitive right.title,and
or consequential damages,lost data or cost of procurement of interest in and to the reports, charts, graphs, and other
substitute goods or services arising from or related to the deliverables We are required to produce under this
services. This 11MRation applies:whether damages are based
agreement.
on breach of warranty or any obligation arising from a breach 14.5 Assignment. Neither party may assign this agreement
of warranty,and whether/laNifty Is asserted M contact or or any of its rights or obligations under this agreement without
torrC and whether or not We have been advised of the the prior written consent of the other parry, which consent
possibility of any such lass or damage.Our Pwbility under this must not be unreasonably withheld.Arry assignment without
agreement wig not exceed an amount equal to the fees You prior written conserrt is void.-Notwithstanding the foregoing,
paid for the service to which the claim pertains. This section the parties may assign all or part of this agreement
11 sets forth Your exclusive remedy for claims arising from or immediately, without the prior written consent of the non-
2 Rev 031910
assigning Party: (a) to the assigning party's successor in To You:
interest who expressly assumes responsibility for the assigning City of Beaumont
party's obligations under this agreement;or(b)if necessary to POS 3827
satisfy the rules,regulations and/or orders of any federal or Beaumont,TX 77704
state governmental agency or body. Notwithstanding the Attn:Laura H.Clark,CPA,CFO
foregoing, We may assign monies due under this agreement Email:Nark @ci.beaumonttx.us
without consent (whether characterized as an account Facsimile:409-880-3132
receivable or otherwise).Any violation of the provisions of this
paragraph renders this agreement voidable at the option of 14.11 Copies. This agreement may be signed in separate
the non-assigning party. counterparts including facsimile copies. Each counterpart
14.6 Insurance. (including facsimile copies) is deemed an original and all
counterparts are deemed on and the same instrument and
a. Public Liability. During the term of this Agreement,We legally binding on the parties.
will maintain a policy of public liability insurance with
rrfnimum coverage's in accordance with the requirements 14.12 ErrtireAgreernerit This agreement,Including the Scope
You provide to Us. We will cause You, Your.offlcials and of Work that Incorporates these terms and conditions, Is the
employees to bq named on all liability policies described entire agreement between Us and You for the services)in the
above as additional insureds for activities taken pursuant to Scope of Work. This agreement supersedes and replaces any
this Agreement. prior agreements, of whatever kind or nature, for the
service(s) in the Scope of Work. Any prior agreements,
b. Workers' Compensation. During the term of this discussions, or representations not expressly set forth in this
Agreement,We shall comply with the terms of the laws of agreement are of no force or effect. No additional terms,PO
Texas concerning workers'compensation,including but not Terms and Conditions,or oral or written representations of any
limited to, maintaining in full force and effect one or more kind are of arty force and effect unless in writing and signed
policies of insurance insuring against any liability We may with the same formality as this agreement
have for workers'compensation.
• 14.13 No Oro! Modljfcotion. No modification of this
14.7 Severabillty. if a court of competent jurisdiction.holds agreement is effective unless set forth in writing and signed
any part of this agreement to be unenforceable, the with the same formality as this agreement. No waiver of the
unenforceable part will be construed as nearly as possible to requirernents of this section Is effective unless In writing and
reflect the original intent of the parties and the remainder of signed by our president.
the provisions will remain in full force and effect.
14.14 Construction. This Agreement is to be construed in
14.8 Waiver. Ether party's failure to Insist upon strict accordance with the laws of the State of Texas without regard
performance of any provision of this agreement is not to be to Its conflict of laws principals.
construed as a waiver of that or any other of a party's rights
underthis agreement at any later date or time. 14.15 Nearlings. The section headings herein are for
convenience and reference purposes only and are not to serve
14.9 Force Majeure. Neither party is liable for fairmg to as a basis for construction or interpretation.
perform Its obligations hereunder (other than payment
obligations)where performance is delayed or hindered by war, 14.16 Partial Payment. No receipt by Us of an amount less
riots, embargoes, strikes or acts of its vendors or suppliers, than Your full amount due will be deemed to be other than
accidents, acts of God, or any other event beyond its payment"on account,nor will any endorsement or statement
reasonable control. on any check or any accompanying letter effect or evidence an
accord and satisfaction. We may accept such check or partial
14.10 Notices. All notices, including notices of address payment without prejudice to Our right to recover the balance
changes,provided under this agreement are deemed received or pursue any of Our rights.
on the third day after mailing if sent by mail,or immediately if
sent by facsimile.
Notices shall be sent to the following:
To Us:
MunlServices,LLC
7335 North Palm Bluffs Avenue
Fresno,CA 93711
Attention Legal Department
Email:Legal@muniservices.com
Facsimile:559-312-2957
3 Rev 031910