4003 CLOSED4003.
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
MUNISERVICES, LLC
This AGREEMENT is entered into this lst day of October, 2009, by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ( "CITY ") and
MuniServices, LLC, a Delaware limited liability company, and its affiliates ( "CONSULTANT ").
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed twelve thousand dollars ($12,000.00) for CONSULTANT's services.
CITY may modify this amount as set forth below. Unless otherwise specified by
written amendment to this Agreement, CITY will pay this sum as specified in the
attached Exhibit "A," which is incorporated by reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit "A"
(Proposal Transient Occupancy Tax (TOT) Analysis & Compliance Program),
which is incorporated by reference.
B. CONSULTANT will, in a professional manner, furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all
tests, testing and analyses, calculation, and all other means whatsoever, except as
herein otherwise expressly specified to be furnished by CITY, necessary or proper
to perform and complete the work and provide the professional services required
of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing at the time
of performance utilized by persons engaged in providing similar services. CITY will
continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any
deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any
shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne
by CONSULTANT.
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8. TERM. The term of this Agreement will be from October 1, 2009 to September 30, 2010.
Unless otherwise determined by written amendment between the parties, this Agreement will
terminate in the following instances:
A. Completion of the work specified in Exhibit "A ";
B. Termination as stated in Section 16.
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
own risk.
10. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond
CONSULTANT's control, CITY may grant a time extension for the completion of the contracted
services. If delay occurs, CONSULTANT must notify the Manager within forty -eight hours (48
hours), in writing, of the cause and the extent of the delay and how such delay interferes with the
Agreement's schedule. The Manager will extend the completion time, when appropriate, for the
completion of the contracted services.
11. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main
body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes
any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below (check all that apply):
A. ® Exhibit A: Scope of Work;
B. ❑ Exhibit B: Budget; and
C. ❑ Exhibit C: Proposal for Services.
12. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in
the services will be determined in accordance with written agreement between the parties.
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property. CONSULTANT may retain copies of said documents and materials as desired, but
will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of
CONSULTANT's completed work product, for purposes other than identified in this Agreement,
or use of incomplete work product, is at CITY's own risk.
18. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic art work,
prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or
public CITY without CITY's prior written approval. All press releases, including graphic
display information to be published in newspapers or magazines, will be approved and
distributed solely by CITY, unless otherwise provided by written agreement between the parties.
19. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request reimburse defense
costs for CITY and all its officers, employees and representatives
from and against any and all suits, actions, or claims, of any character
whatever, brought for, or on account of, any injuries or damages
sustained by any person or property resulting or arising solely from
any negligent or wrongful act, error or omission by CONSULTANT
or any of CONSULTANT's officers, agents, employees, or
representatives, in the performance of this Agreement.
ii. Indemnification for other Damages. CONSULTANT indemnifies and
holds CITY harmless from and against any claim, action, damages,
costs (including, without limitation, attorney's fees), injuries, or
liability, directly arising out of this Agreement, or its performance.
Should CITY be named in any suit, or should any claim be brought
against it by suit or otherwise, whether the same be groundless or not,
arising directly out of this Agreement, or its performance,
CONSULTANT will defend CITY (at CITY's written request and
with counsel reasonably satisfactory to CITY) and will indemnify
CITY for any judgment rendered against it or any sums paid out in
settlement or otherwise.
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees, and representatives.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 23, and any approval of
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bodily injury, personal injury, and property damage for the policy coverage.
Liability policies will be endorsed to name CITY, its officials, and employees as
"additional insureds" under said insurance coverage and to state that such
insurance will be deemed "primary" such that any other insurance that may be
carried by CITY will be excess thereto. Such endorsement must be reflected on
ISO Form No. CG 20 10 1185 or 88, or equivalent. Such insurance will be on an
"occurrence," not a "claims made," basis and will not be cancelable or subject to
reduction except upon thirty (30) days prior written notice to CITY.
C. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on a "claims made basis," CONSULTANT will continue to renew the
insurance for a period of three (3) years after this Agreement expires or is
terminated. Such insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
CONSULTANT for all claims made by CITY arising out of any errors or
omissions of CONSULTANT, or its officers or employees during the time this
Agreement was in effect.
D. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 0106 92, including symbol 1 (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required
by CITY from time to time. Insurance must be placed with insurers with a current
A.M. Best Company Rating equivalent to at least a Rating of "A:VII."
F. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at
CONSULTANT's expense and deduct the cost of such insurance from payments
due to CONSULTANT under this Agreement or terminate pursuant to Section 16.
24. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement. Such approval
must approve of the proposed consultant and the terms of compensation.
25. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the project, which will include a schedule update and a short narrative description of
progress during the past month for each major task, a description of the work remaining and a
description of the work to be done before the next schedule update.
26. NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
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34. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
35. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager, or designee, may execute any such amendment on behalf of CITY.
36. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection
with this Agreement will be considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
37. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
38. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
39. FORCE MMEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, acts of terrorism, war, embargo, government action, civil or military authority, the
natural elements, or other similar causes beyond the Parties' reasonable control, then the
Agreement will immediately terminate without obligation of either party to the other.
40. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private consultants, and experience in
dealing with public agencies all suggest that CONSULTANT is capable of performing the
proposed contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public CITY.
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4003 ,
Exhibit A
Proposal
Transient Occupancy Tax (TOT) Analysis & Compliance Program
MuniServices's TOT Analysis and Compliance Program ( "Compliance Program") assists the City of El
Segundo ( "City ") to realize TOT revenue to which it is entitled and educates collectors and remitters of
TOT to assist in future compliance with the City's ordinances.
1. The Compliance Program. After MuniServices receives the lodging provider return information
from the City for the most recent forty - eight (48) months or the period covered by the applicable statute
of limitation, whichever is shorter, MuniServices will provide its Compliance Program as a single service
consisting of the following two -phase process.
1.1 Analysis & Discovery —Phase 1. During this phase, MuniServices will:
a. Perform discovery services designed to identify and locate lodging providers not
properly registered with the City and not appearing on the City rolls as TOT remitters;
b. Analyze lodging provider return information from the most recent 48 months or the
period covered by the applicable statue of limitation, whichever is shorter, in order to
identify unusual or suspicious reporting and /or activities that warrant further review;
c. Conduct unobtrusive collection of information on each property, including number of
rooms, occupancy rate, property's condition, business dynamics;
d. Provide a detailed analysis report to the City identifying lodging providers who might
require additional investigation or review to determine their compliance with the City's
TOT ordinance;
e. Coordinate with designated City official(s) as necessary to review the analysis report;
f. Develop with the designated City staff a list of lodging providers to be subject to a
compliance review of lodging and tax records; and
During the term of this Agreement, provide up to ten (10) hours of additional consulting
time to assist the City in evaluating or implementing any of the proposed actions
suggested by the above report.
1.2 Compliance Review —Phase 2. During this phase, MuniServices will conduct a compliance
review consisting of some or all of the following procedures:
Provide City staff with a detailed list of all records required to be made available by
lodging providers for the reviews, together with a draft engagement announcement
letter to be sent to each lodging provider;
b. Examine records pertaining to TOT for each lodging provider selected for a compliance
review.
c. Verify accuracy of filed TOT returns with daily and monthly activity summaries;
d. Review a random sample of the daily and monthly summaries to determine if the daily
summaries reconcile to the monthly summaries;
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4.2 Phase 2.
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City shall pay MuniServices a fixed fee of $900 per lodging property reviewed.
MuniServices will invoice this fixed fee fifty percent (50 %) upon approval of the list of
lodging providers to be subject to a compliance review of lodging and tax records under
subparagraph 1.1(f) and fifty percent (50 %) upon delivery of the compliance review
report.
If the City does not approve the list of lodging providers to be subject to a compliance
review of lodging and tax records under subparagraph 1.1(f) within 90 days after the
completion of MuniServices's analysis report, City shall pay $1,100 per lodging
property reviewed .
City shall reimburse MuniServices up to a combined total of $750 for out of pocket
expenses and Travel Costs without MuniServices needing prior approval from the City.
( "Travel Costs" includes but is not limited to the costs of car rental, gasoline, and
traveling time at a reduced hourly rate of $50 per hour.) But if MuniServices expects to
spend more than $750 for out of pocket expenses and Travel Costs, MuniServices shall
get prior approval from the City for the amount greater than $750. MuniServices will
invoice these out of pocket expense and Travel Costs immediately upon delivery of the
compliance review report.
5 . Estimated Total Cost
Assuming that City elects, within 90 days after the completion of MuniServices' analysis
reports, to have audit review (phase 2) for all nine (9) hotel properties within the City
limit, and assuming all nine (9) properties have more than 10 room, MuniServices'
estimated proposed maximum fee for the above services is $14,250 [(9 * $600) + (9
$900) + $750].
However, due to our unique proposed phased approach and typically based on our prior
experiences, as a result of Phase 1, there might only be approximately 50% of total
properties that will be recommended for Phase 2 Audit Review. In this scenario, if the
City agrees with the recommendation, the estimated total cost for the service will only
be $9,375 [(9 * $600) + (4 * $900) + $375] which is considerably less than the above
estimated proposed maximum fee.
6 . Additional Consulting. City may request that MuniServices provide additional consulting services at
any time during the term of the Agreement to which this Agreement is attached. If MuniServices and
City agree on the scope of additional consulting services requested, then MuniServices shall provide the
additional consulting services on a Time and Materials basis. Depending on the personnel assigned to
perform the work, MuniServices standard hourly rates range from $75 per hour to $300 per hour.
These additional consulting services will be invoiced no less frequently than monthly based on actual
time and expenses incurred.
Hours of consulting expressly included in MuniServices's compliance service or the seminar service listed
below are not "additional consulting services" for purposes of this section (5).
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