HomeMy WebLinkAboutC-4412 - PSA for Sales and Use Tax Auditing and other Revenue ServicesCITE OF NEWPORT
December 19, 2012
Nicholas O'Hare, President
Municipal Revenue Advisors, Inc,
2055 Woodburn Ave.
Westlake Village, CA 91361
RE: Professional Services Agreement Between City of Newport Beach and
Municipal Revenue Advisors, Inc. for Sales and Use Tax Auditing and Other
Revenue Services
Dear Mr.; -k Tr9re:
The City of Newport Beach ( "City ") has elected to terminate the Professional Services
Agreement dated November 3, 2009, and referenced as City Contract No. C -4412,
between the City and Municipal Revenue Advisors, Inc, for sales and use tax auditing
and other revenue services ( "Agreement'). Termination of this Agreement was effective
November 30, 2012. The City shall pay you for the services and costs incurred
pursuant to the terms of the Agreement, and continue to provide you with information
necessary for the preparation of invoices for your compensation.
Thank you for your service to the City of Newport Beach. Should you have any
questions about this correspondence, please contact me at (949) 644 -3123.
Sincerely,
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'Dan Matsuiewicz
Finance Director
cc: City Clerk File C -4412
PROFESSIONAL SERVICES AGREEMENT WITH
MUNICIPAL REVENUE ADVISORS, INC
FOR
SALES AND USE TAX AUDITING AND OTHER REVENUE SERVICES
THIS AGREEMENT is made and entered into as of this 10 day of �M
2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and Municipal Revenue Advisors Inc. a California Corporation whose
address is 2055 Woodburn Ave Westlake Village, California, 91361 ( "Consultant"), and
is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is
now being conducted under the statutes of the State of California and the Charter
of City.
B. City is planning to obtain professional services to augment the City's
revenue enhancement and information efforts.
C. City desires to engage Consultant to provide the various revenue
enhancement and information services described in EXHIBIT A, entitled "SCOPE
SERVICES ( "Project ").
D. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of the Project, shall be
Nicholas O'Hare.
F. City has solicited and received a proposal from the Consultant, has
reviewed the previous experience and evaluated the expertise of the Consultant,
and desires to retain the Consultant to render professional services under the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
TERM
The term of this Agreement shall commence on the above written date, and shall
be for a five year period commencing upon the effective date, which is the date on
which the City's representative executes the Agreement unless terminated earlier
as set forth herein. This agreement may be extended for one (1) year if both
parties agree.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The Consultant shall perform the services in accordance with the schedule
included in Exhibit A. The failure by Consultant to perform the services in a
diligent and timely manner may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due
to causes beyond Consultant's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable
time extensions for unforeseeable delays that are beyond Consultant's
control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on the basis in accordance with the
provisions of this Section and the Compensation and Payment Schedule
attached hereto as part of Exhibit B and incorporated herein by reference.
Consultant's compensation for all work performed in accordance with this
Agreement, including all reimbursable items and sub consultant fees shall not
exceed Thirty Thousand Dollars and no /100 ($30,000). No billing rate changes
shall be made during the term of this Agreement without the prior written
approval of City.
4.1 Consultant shall submit invoices to City describing the work performed.
Consultant's bills shall include the name of the person who performed the
work, a brief description of the services performed and /or the specific task
in the Scope of Services to which it relates, the date the services were
performed, the number of hours spent on all work billed on an hourly
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basis, and a description of any reimbursable expenditures. City shall pay
Consultant no later than thirty (30) days after approval of the monthly
invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of
the services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Compensation and Payment Schedule as set forth in Exhibit
B.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Nicholas O'Hare to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
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This Agreement will be administered by the Revenue Division. The Revenue
Manager, shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or his/her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City. By delivery of completed
work, Consultant certifies that the work conforms to the requirements of
this Agreement and all applicable federal, state and local laws and the
professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
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9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties ") from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever (individually, a Claim; collectively, "Claims "),
which may arise from or in any manner relate (directly or indirectly) to any breach
of the terms and conditions of this Agreement, any work performed or services
provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent and /or willful acts, errors and /or omissions of
Consultant, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence, active negligence or willful misconduct of the Indemnified
Parties. Nothing in this indemnity shall be construed as authorizing any award of
attorney's fees in any action on or to enforce the terms of this Agreement. This
indemnity shall apply to all claims and liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon
the amount of indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
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12.
13.
14.
COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance for
his or her employees in accordance with the laws of the State of
California. In addition, Consultant shall require each subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State of California for
all of the subcontractor's employees. Any notice of cancellation or non -
renewal of all Workers' Compensation policies must be received by City at
least thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree to
waive all rights of subrogation against City, its officers, agents, employees
and volunteers for losses arising from work performed by Consultant for
City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury, personal injury, and property
damage, including without limitation, contractual liability. If commercial
general liability insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work
to be performed under this Agreement, or the general aggregate limit shall
be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage for all
activities of the Consultant arising out of or in connection with work to be
performed under this Agreement, including coverage for any owned, hired,
non -owned or rented vehicles, in an amount not less than one million
dollars ($1,000,000) combined single limit for each occurrence.
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either party
except after thirty (30) calendar days (10 calendar days written
notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more
of the assets of the corporation, partnership or joint - venture.
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16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
Data delivered to City shall be in a format prescribed by the City. City agrees
that Consultant shall not be liable for claims, liabilities or losses arising out of, or
connected with (a) the modification or misuse of the data by City, or anyone
authorized by City; (b) the decline of accuracy or readability of data due to
inappropriate storage conditions or duration; or (c) any use by City, or anyone
authorized by City, of data for additions to this Project, for the completion of this
Project by others, or for any other Project, excepting only such use as is
authorized, in writing, by Consultant. By acceptance of data, City agrees to
indemnify Consultant for damages and liability resulting from the modification or
misuse of such data. All written documents shall be transmitted to City in the
City's latest adopted version of Microsoft Word and Excel. All data provided by
City to Consultant for processing shall be returned to City within 30 days of
termination of agreement in the format provided by City.
19. CONFIDENTIALITY
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All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
Additionally, the Certificate of Confidentiality attached hereto as Exhibit A.1 is
incorporated herein by reference.
20. OPINION OF COST
Not Applicable
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
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24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the expense shall be borne by Consultant. Nothing
in this paragraph is intended to limit City's rights under the law or any other
sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Glen Everroad, Revenue Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663 -8915
Phone: 949 - 644 -3141
Fax: 949 - 723 -3544
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
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Municipal Revenue Advisors, Inc.
Attention: Nicholas O'Hare
2055 Woodburn Ave
Westlake Village Ca. 91361
Phone:805 340 -6131
Fax: 805 496 -7635
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City and CONSULTANT shall have the
right, at their sole discretion and without cause, of terminating this Agreement at
any time by giving seven (7) calendar days prior written notice to the other party.
In the event of termination under this Section, City shall pay Consultant for
services satisfactorily performed and costs incurred up to the effective date of
termination for which Consultant has not been previously paid. Notwithstanding
termination, City shall continue to provide CONSULTANT with information that is
necessary for the preparation of invoices for CONSULTANT's compensation for
additional revenue received by the City after termination which resulted from
Consultant's efforts prior to the terrnination. Following the termination of this
agreement, the confidentiality provisions of Section 19 and Exhibit C of this
agreement shall continue to apply to any data provided by the City to Consultant
and Consultant shall not use data provided by City for any purpose other than
preparation of invoices as allowed in the preceding sentence. On the effective
date of termination, Consultant shall deliver to City all reports, Documents and
other information developed or accumulated in the performance of this
Agreement, whether in draft or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
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30.
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32.
33.
34.
35.
36.
WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
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37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
38. AUTHORITY TO ENTER AGREEMENT
Consultant has all requisite power and authority to conduct its business and to
execute, deliver and perform the Agreement. Consultant warrants that the
individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and to bind Consultant.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
David R. Hunt
City Attorney
for the City of Newport Beach
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: C_._ C
Dav iff
City Manager
for the City of Newport Beach
CONSULTANT:
By: �14/
%cholas O'Hare
Title: President
Print Name:
By:
Title: Secretary
Print Name:
Attachments: Exhibit A — Scope of Services, Deliverable and Compensation
Exhibit B — Compensation and Payment Schedule
Exhibit C — Certificate of Confidentiality
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EXHIBIT "A" — SCOPE OF SERVICES
Municipal Revenue Advisors Services
For The City of Newport Beach
CONSULTANT shall provide the services listed below at the compensation rates listed
in Exhibit B. The services covered by this Agreement are:
1. Use Tax (Self Accrual)
2. Tax Refunds on City's Exempt Purchases
3. Data Matching Services
4. Sales Tax Reviews
5. Sales Tax Information Services
6. Business License Services
7. Corollary Consulting Services
Consultant shall meet with City staff to define the desired result for each service listed
above prior to commencing the service, review applicable City ordinances and establish
appropriate reporting relationships. City may select all services or select individual
services by notifying Consultant. City shall provide Consultant the necessary
information, maps, and data bases related to each service such as business license
files, sales tax registration files, etc.
1. USE TAX (Self Accrual)
A. City Purchases and Construction Contracts Subject to Use Tax
Consultant shall analyze City's vendors and contractors to identify
those vendors and contractors whose sales /use tax allocation may
be changed to benefit the City.
ii. Consultant shall meet with City staff to discuss general tax
relationships and opportunities related to the City's purchases and
construction contracts.
iii. Consultant shall perform a vendor survey annually, utilizing City's
chart of accounts, in order to identify self accrual opportunities. (By
self reporting the use tax on the City's Direct Pay Permit, the 1%
local tax will be directly allocated to the City rather than by a
percentage basis through the County pool.) City shall provide the
chart of accounts to Consultant electronically. The chart of
accounts shall include vendor name, address and dollar value for
the most recent year. Consultant shall provide City a written report
of the identified vendors.
iv. Consultant shall work with vendors and contractors as necessary to
reach revenue enhancement objectives.
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B. Business Cooperation Program ( "BCP ")
i. Partnering with City staff, Consultant shall work with businesses to
allocate the sales tax on their sales and the use tax on their
purchases to the City.
Consultant shall meet with City staff to establish a list of high
priority businesses generating significant amounts of sales and use
tax to the City or having the potential of generating significant
amounts of sales /use tax to the City.
iii. Consultant shall develop individualized revenue enhancing
strategies for each prioritized business designed to enhance sales
and use tax revenue received by the City.
iv. Consultant, with City staff, shall meet with the identified businesses
and their contractors, if applicable, on an economic development
business friendly basis, in order to emphasize good corporate
citizenship and the benefits provided by City to the business
community. Consultant shall, at such meetings, incorporate
additional individualized sales and use tax revenue strategies as
part of the relationship building process.
V. Consultant shall train City staff to utilize Consultant's Data
Matching program (if selected) for this service. This tool may be
used by City staff to research BCP information on City's
businesses.
TAX REFUNDS ON THE CITY'S EXEMPT PURCHASES
Consultant shall conduct a review of the City's "sales and use tax paid
purchases" annually, to determine which purchases are exempt from California
sales and use taxes. Consultant shall also prepare refund claims for exempt
purchases, including the legal basis for the exemption and documentation that
sales tax was paid on the purchases
A. Utilizing City's chart of accounts, Consultant shall work with City staff to
identify those purchases which may be exempt from taxes.
B. Consultant shall prepare and provide refund claims for each vendor.
C. Consultant shall work with the appropriate government agency's Refund
Section to process the claims.
For the above services, Consultant shall prepare and provide Quarterly Reports
to City on the status of each service document and verify the additional revenue
received by City.
CUSTOM DATA MATCHING SERVICES
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A. Consultant can match dissimilar databases, including but not limited to,
the Sales Tax database and Business License database, with all other
reasonably compatible City supplied databases every forty -five (45) days
or more frequently, if requested by the City's License Supervisor.
Consultant shall provide "executable" software with user viewing screens
displaying City requested "indicators" for each record from all databases
on a single screen. Such software shall enable City to filter the data for
meaningful display. Consultant's proprietary software, "Business Tax —
Sales Tax" ( "BTST ") shall provide City a list of unlicensed businesses
( "Targets "). BTST compiles multiple sources of data, which gives staff the
ability to:
View a comprehensive reconciliation of the State Board of
Equalization ( "SBE ") State -wide Registration Database of SBE
Permits, City Registration and Allocation files, and City's Business
License file by utilizing Consultant's BTST software;
ii. See each business's "complete" relationship within the City, in
summary and detailed views;
iii. Cross - reference additional databases, including, but not limited to
the Department of Consumer Affairs and State Contractors License
Board databases;
iv. Prioritize noticing efforts by source (quality of source) and number
of sources;
V. Deal with unlicensed businesses with confidence, by having facts at
hand;and
vi. Export "target lists" in standard, Excel format.
B. Upon request by City, and to the best of its ability, Consultant shall provide
additional Custom Data Matching Services to the City, such as including
additional data bases in BTST or integrating different data bases and
different soft ware programs.
4. SALES TAX REVIEWS
A. Consultant shall assist City in identifying the revenue to which it is entitled
to from sales and use taxes by:
i. Identifying point of sale errors and informing the SBE of such
errors;
ii. Identifying businesses doing business within the City that have not
obtained a Sales /Use Tax Permit. Such businesses shall be
reported to the SBE.
B. To achieve these goals Consultant shall:
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Conduct initial and on -going reviews in order to identify and correct
"point of sale" and point of use distribution errors;
ii. Identify businesses conducting sales activities in the City which
have not obtained a Sales /Use Tax Permit as required by law;
iii. Initiate contacts with the appropriate sale, management and
accounting officials of those companies believed to be misreporting
sales tax to the State;
iv. Initiate contacts with appropriate officials at companies to identify
additional use tax opportunities;
V. Prepare and submit to the SBE all information necessary to correct
any identified allocation errors;
vi. Identify businesses located in the City that are properly reporting
Sales Tax but have the potential for modifying their operation to
provide an even greater share to the City;
vii. For Consultant related reviews, challenge SBE denials, if warranted
after research in the required time frame set forth by SBE. In
addition, Consultant shall prepare petition letters and any
necessary supporting information for submittal, and include the
tracking of petitions in the quarterly aging reports;
viii. For Consultant related reviews, represent the City, if necessary, at
challenge hearing(s) at no extra cost;
ix. For non - Consultant related negative or positive reviews, Consultant
shall, on a Corollary Consulting Basis, represent the City when
requested by the City to do so; and [Glen — do you understand what
this means ?]
X. Provide, not less than on a quarterly basis, AB990 and SBE "549s"
aging reports.
5. SALES TAX INFORMATION SERVICES
A. Consultant shall provide data information in electronic format, utilizing
SBE supplied data quarterly and benchmark year reports, detailing the
economic activity of the business community as represented by sales /use
tax revenue received by the City. Reports shall allow for multi level trend
analysis from individual businesses, geographic areas to the entire City.
Such reports shall include:
i. Top Revenue Producers;
ii. Top Revenue Producers by Business Type;
IR
iii. Orange County Pool Taxpayers over $5,000.00 per quarter;
iv. Geo Code Area;
V. Revenue History; and
vi. Custom Economic Development Reports..
6. BUSINESS LICENSE SERVICES Utilizing Data Matching Service
Consultant shall provide AT NO ADDITIONAL CHARGE, upon request by City
and not less than on a quarterly basis, the data for BTST, which, utilizing pre-
programmed filters and City staff generated filters, this database and information
system allows City staff to review and prioritize potentially unlicensed
businesses.
On a Custom Data Matching Service basis, Consultant shall provide a database
that is cleaned, mapped, and importable so that it can be utilized by the City's
enforcement staff to generate notices to potentially unlicensed businesses
( "Results Table ").
City agrees to provide Consultant, on a quarterly basis, performance reports of
its business licensing activity such as the number of notices sent, the number of
licenses issued from notices and the revenue attributable such licenses.
7. COROLLARY CONSULTING SERVICES TO BE DETERMINED AND AGREED
TO BY CITY AND CONSULTANT
A. Consultant shall work with City staff on a corollary consulting basis to
develop contract and tax clause language that can be added to its
contracts, development agreements and purchase orders in order to
maximize the City's tax revenue.
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EXHIBIT "B"
COMPENSATION AND PAYMENT SCHEDULE
City agrees to pay to Consultant the following compensation for and in consideration of
the diligent and timely performance and completion of all services set forth in this
Agreement:
A contingent fee for Realized Benefits that are realized by City due to
Consultant's efforts. "Realized Benefits" shall mean actual new revenue received
by City due to non - payment and underpayment of tax, recovery of tax payments
made on exempt purchases, reduction of prior, current and future tax liabilities on
accounts payable.
Fixed and Hourly based Fees as applicable to the following specified services:
1. USE TAX SERVICES
A. City Purchases and Contracts — 12.5% Contingent Fee of Realized
Benefits for a period not to exceed 11 quarters.
B. Business Cooperation Program ( "BCP ") - 15% Contingent Fee of
Realized Benefits. No hourly charges are applicable to the BCP
services.
2. TAX REFUNDS ON EXEMPT PURCHASES — 20% Contingent Fees of
Realized Benefits received by City.
3. DATA MATCHING SERVICES
A. Quarterly Update Fee - $750.00 per quarter.
B. CUSTOM DATA MATCHING SERVICES —
Consultant shall provide these services on an hourly basis as
follows (rates vary based on services selected, hourly rates
computed to 1 /1 0th hour increments):
• Consultant rate- $175.00 /hour
• Programmer rate - $125.00hour
• Data Processing rate - $100 /hour.
4. SALES TAX REVIEWS — 15% Contingent Fee of Realized new additional
revenue for a total of 11 quarters
The Contingent Fee shall be paid on Realized Benefits starting with the
first quarterly return corrected by the SBE showing positive allocation
received by the City. The commencement date of the contingency fee
a
compensation period shall be the City's date of correction by the SBE for
misallocation.
5. SALES TAX INFORMATION SERVICES - $750.00 per Quarter.
6. UNLICENSED BUSINESS - FREE OF CHARGE
7. COROLLARY CONSULTING SERVICES TO BE DETERMINED AND
AGREED TO BY BOTH THE CITY AND CONSULTANT
Consultant shall provide these services on an hourly basis as follows
(hourly rates computed to 1 /10th hour increments):
Consultant rate- $175.00 /hour
Programmer rate - $125.00hour
Data Processing rate - $100 /hour
8. PAYMENT SCHEDULE
Payment for Realized Benefits shall require an invoice from Consultant
stating the nature of the City's Realized Benefits and City approval for
each Realized Benefit. All invoices are due and payable when received
by the City within 30 days of receipt. Payments received after 30 days
shall include interest payments of 10% monthly of the full amount of the
invoice.
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EXHIBIT C
CERTIFICATE OF CONFIDENTIALITY
The following conditions specified in Section 7056 (b), (1) of the State of
California Revenue and Taxation Code are hereby made part of this
Agreement entered into by and between City and Municipal Revenue
Advisors (CONSULTANT):
A. CONSULTANT is authorized by this Agreement to examine sales and use
tax records of the State SBE of Equalization provided to City pursuant to
contract under the Bradley -Burns Uniform Sales and Use Tax Law.
B. CONSULTANT is required to disclose information contained in or derived
from those sales and use tax records only to an officer or employee of City
who is authorized by resolution of the City Council to examine the
information.
C. CONSULTANT is prohibited from performing consulting services for any
retailer doing business in City during the term of this Agreement.
D. CONSULTANT is prohibited from retaining the information contained in, or
derived from. those sales and use tax records after the Agreement has
expired.
Information obtained by examination of SBE records shall be used only for
purposes related to collection of local sales and uses taxes or for other
governmental functions of City as set forth by resolution adopted pursuant to
Section 7056 (b) of the California Revenue and Taxation Code.
The resolution shall designate CONSULTANT as a person authorized to
examine sales and use tax records and shall certify that this Agreement
meets the requirements set forth above in Section 7056 (b) (1) of the
California Revenue and Taxation Code.
CONSULTANT hereby certifies that any and all information utilized in the
conduct of work performed is to be utilized only for these purposes
authorized by City and by the Bradley -Bums Uniform Local Sales and Use
Tax Law.
Many of CONSULTANT's Services require access to SBE Confidential Data Files,
in accordance to Regulation 72 56 the City Council must approve Municipal
Revenue Advisors, Inc as an authorized recipient of the SBE data.
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