HomeMy WebLinkAboutE-7 Staff Report - MuniServices AgreementsCONSENT ITEM
E-7
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: TALIKA M. JOHNSON, DIRECTOR OF ADMINISTRATIVE SERVICES
DATE: JANUARY 19, 2021
SUBJECT: APPROVAL OF FOUR PROFESSIONAL SERVICES AGREEMENTS FOR
REVENUE COMPLIANCE AUDIT AND DISCOVERY SERVICES
BACKGROUND:
One of the key initiatives Staff focused on the past two years is revenue enhancement and protection. To
continue with this effort, staff is regularly reviewing all the revenues the City are eligible to receive and
explore areas where the tax collection and validation process can improve. The City’s Municipal Code
allows the levy and collection of a Business License Tax from businesses, Transient Occupancy Tax
(TOT) from lodging establishments operating in the City, and Utility User’s Tax (UUT) on billed
purchases of electric, gas, and water. In addition, state law and the City’s Municipal Code defined that
the State video franchisee holder operating within the Azusa jurisdiction must pay a state video
franchise fee and PEG (Public, education, and government) access fee. As best practice, Staff
periodically conducts compliance audits to protect the City’s revenues by ensuring correct tax rates are
applied, reviewing remittances of collected revenues for accuracy, and billing for all revenues the City is
eligible to receive.
Approval of the proposed recommendations will allow MuniServices to perform Business License Tax,
TOT, UUT, and Video Franchise Fee/PEG compliance audit and discovery services for the City. The
proposed agreements shall be renewable with the renewal amount brought to council for approval at the
beginning of each fiscal year during the annual blanket purchase order approval process.
The recommended actions would ensure timely compliance audits to protect and enhance the City’s
revenues based on the scope of work outlined in each agreement. Approval of the agreements will also
minimize the compliance audit costs for the City. It is anticipated this program would improve
compliance audit and revenue recovery for business license tax, TOT, UUT, and State Video
Franchise/PEG fees.
RECOMMENDATIONS:
APPROVED
CITY COUNCIL
1/19/2021
Approval of four professional services agreements for revenue compliance audit and discovery services
January 19, 2021
Page 2
Staff recommends that the City Council take the following actions:
1) Approve waiving of purchasing procedures under municipal code Sec. 2-520(b) Sole Source.
2) Authorize the City Manager to execute a renewable professional services agreement with
MuniServices for Business License Tax compliance audit and discovery services in a not to
exceed amount of $25,000 for the balance of fiscal year 2020-2021;
3) Authorize the City Manager to execute a renewable professional services agreement with
MuniServices for Transient Occupancy Tax (TOT) compliance audit and discovery services in a
not to exceed amount of $25,000 for the balance of fiscal year 2020-2021;
4) Authorize the City Manager to execute a renewable professional services agreement with
MuniServices for Utility User Tax (UUT) compliance audit and discovery services in a not to
exceed amount of $25,000 for the balance of fiscal year 2020-2021;
5) Authorize the City Manager to execute a renewable professional services agreement with
MuniServices for the State Video Franchise fee/PEG compliance audit and discovery services
in a not to exceed amount of $25,000 for the balance of fiscal year 2020-2021;
ANALYSIS:
While the City has used MuniServices to perform some tax compliance audit for Business License Tax
since 2017, Staff did not have the opportunity to conduct the TOT, UUT and State Video Franchise/PEG
fee compliance audits recently. Legislatively and legally, the TOT, UUT and State Video
Franchise/PEG fee are complex, and MuniServices is the recognized expert in this field with extensive
legal, financial, and audit experience.
Because the City has a very large number of utility and video cable users, numerous businesses, and
nine hotels/motels within the Azusa jurisdiction with a population of nearly 50,000, the expansion of the
tax compliance audit program would achieve the goal of audit compliance and protecting and enhancing
the City’s revenues.
Transient Occupancy Tax (TOT)
For the privilege of occupancy in any hotel within the City, each transient is subject to and shall pay a
TOT in the amount of ten percent of the rent charged by the operator (Under Article IV. - ROOM TAX
of the City of Azusa Municipal Code).
Utility User’s Tax (UUT)
UUT's are locally levied taxes on end-users of electricity, natural gas, and water in Azusa. According to
ARTICLE VII (Utility User’s Tax) of the City’s municipal code, there is an imposed tax on electricity,
gas, and water. The tax rate for resident is four percent and eight percent for Commercial and
nonresidents.
State Video Franchise and Public, Education, and Government (PEG) Access Fees
Approval of four professional services agreements for revenue compliance audit and discovery services
January 19, 2021
Page 3
On September 29, 2006, the Legislature passed, and Governor Schwarzenegger signed into law
Assembly Bill 2987, the Digital Infrastructure and Video Competition Act of 2006 (DIVCA). Prior to
DIVCA, cable television franchises were issued by cities and counties. DIVCA replaces that system
with one in which video franchises are now issued by the California Public Utility Commission (CPUC),
rather than these local entities such as the City of Azusa. Any State video franchise holder operating
within the boundaries of the City shall pay a fee to the City equal to five percent of the gross revenue of
that State video franchise holder per CPUC and Municipal Code 22-293 (a). Any State video franchise
holder operating within the boundaries of the City of Azusa shall also pay a PEG fee to the City or the
City’s designee for capital support of public, educational, and/or governmental (PEG) purposes that are
consistent with State and Federal law equal to no more than one percent of gross revenues, as defined by
public utility code 5870(n) and Municipal Code 22-293 (b).
Table 1 summarized below shows the annual revenues for the four revenue categories related to the
proposed agreements, and ensuring compliance on these revenues sources are very important to the
fiscal health of the City:
Table 1 – Three-Year History of Revenues
As such, staff is recommending the scope of services of MuniServices to continue the Business License
tax compliance audit, and add TOT, UUT and State Video franchise/PEG fee compliance audits. The
program will be structured as revenue sharing agreements, and Staff anticipates the proposed service
agreements will be an effective program in terms of minimizing compliance audit costs as well as
protect and enhance the City’s revenues.
Staff requests authorization to enter into these four (4) agreements pursuant to AMC 2-520-(b) Sole
Source in best interest of the City as MuniServices is the leader in this industry and has provided the
City with excellent customer service. Furthermore, MuniServices agreed to honor past cost sharing rates
and places less administrative burden on the staff by continuing with their services.
Table 2 following summarizes the revenue sharing percentages in accordance to the proposed revenue
sharing agreements:
Table 2 – Muni Services Revenue Sharing Percentage –
Recovery of New Revenues Generated from Audit
Approval of four professional services agreements for revenue compliance audit and discovery services
January 19, 2021
Page 4
Tax Category Muni Svcs% Azusa %
Business License 35 65
Transient Occupancy Tax* 25 75
Utility User Tax 25 75
State video Franchise 25 75
* = There is a minimum annual fee of $2,000 associated with this category
The compliance audits will not result in increases in taxes assessed to residents or businesses, rather
ensures businesses responsible for assessing these taxes in accordance with the City’s Municipal Code
are properly remitted to the City.
FISCAL IMPACT:
Each of the four (4) agreements are revenue sharing based whereas the City shall only pay MuniServices
the percentage listed above of revenues recovered based on the audit findings. MuniServices will send
the City 100% of the revenues collected, the City will then remit to the Consultant the percentage agreed
upon. There is no minimum cost on the revenue sharing agreement unless Staff opts for additional
services with the exception of the TOT compliance audit agreement, where there is a minimum annual
fee of $2,000 or 25% of the recovered revenues, whichever is greater. Any revenues recovered will have
a positive fiscal impact for the City. With the adoption of annual Blanket Purchase Orders, Staff will
request the appropriate Blanket Purchase Order approval amount for each of the agreements based on
revenues collected resulting from the compliance audit.
Prepared by: Reviewed and Approved:
Richard Lam Talika M. Johnson
Budget Administrator Director of Administrative Services
Reviewed and Approved:
Sergio Gonzalez
City Manager
Attachments:
1) MuniServices Business License Tax Compliance Audit and Discovery Services Agreement (22
pages)
2) MuniServices TOT compliance audit and Discovery Services Agreement (20 pages)
3) MuniServices UUT compliance audit and Discovery Services Agreement (21 pages)
4) MuniServices State Video Franchise Fee/PEG compliance audit and Discovery Services
Agreement (22 pages)
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
1
PROFESSIONAL SERVICES AGREEMENT
By and Between
MuniServices, LLC
And
City of Azusa
Dated as of _________
Attachment 1
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
2
PROFESSIONAL SERVICES AGREEMENT
Business License Tax Compliance Audit and Discovery Services
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into
this ______day of ________, 2021 (the “Effective Date”), by and between the City of Azusa, a
California municipal corporation (the “City”) and MuniServices, LLC, (the “Consultant”). The City
and the Consultant are herein referred to, individually, as a “Party”, and, collectively, as the “Parties”.
City and Consultant agree as follows:
1.0 Services. Consultant, as an independent contractor, agrees to perform during the term of this
Agreement, each and every service described in the “Scope of Services” set forth on Exhibit A
to this Agreement (the “Scope of Services”). The initiation of service by the Consultant should
not commence until all of the following conditions have been satisfied:
(a) Consultant has furnished all the insurance documents required by Section 10.0
below; and
(b) Consultant has to furnish the W9 form to the City prior to the execution of the
agreement.
(c) To the extent that the Scope of Services involves more than one service,
Consultant shall perform the services only to the extent of the authorization
provided by the City Representative. The services of the Consultant shall
include the making of all investigations, studies, and analysis required by the
conditions involved in each request of the City Representative. The Scope of
Services shall not be modified without an amendment executed by the
authorized representatives of each Party.
1.1 Additional Services
Unless City and Consultant have agreed in writing before the performance of additional services
that are beyond the Scope of Services, City shall have no liability for such additional services and
Consultant shall have no right to claim compensation for such additional services or expenses.
The applicable hourly rates for authorized extra services shall be at the hourly rates set forth in the
Schedule of Compensation (Exhibit A) unless otherwise agreed to by the parties in writing.
2.0 Term of Agreement; Termination.
2.1 Term. The term of this Agreement is from the Effective Date until
_______________, unless earlier terminated herein; provided, however, that the
term of this Agreement may be renewed and extended annually by written
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
3
amendment executed by authorized representatives of each of the Parties or may
be earlier terminated as provided in Section 2.2 below (the “Term”).
2.2 Termination by City. The City may terminate any or all of the services agreed to
be performed under this Agreement (a) without cause, at any time during the
Term by giving the Consultant thirty (30) days’ notice in writing. Either party
may terminate this Agreement with cause, immediately upon giving the other
party written notice of such default or breach of this Agreement that is the basis
for the termination.
2.3 Effect of Termination. In the event of termination, Consultant shall have the right
and obligation to immediately assemble work in progress for the purpose of
closing out the job. All compensation for actual work performed and charges
outstanding based upon an hourly rate to-date of such work at $150 per hour at
the time of termination and shall be payable by City to Consultant within thirty
(30) days following submission and approval of a final invoice by Consultant
unless termination is for cause. In the event that such termination was for cause,
Consultant shall be compensated only to the extent required by law.
3.0 Compensation and Schedule of Compensation. The total compensation (including, but not
limited to all fees, expenses, reimbursements or other costs) payable by the City to the
Consultant under this Agreement shall not exceed the sum of __$25,000__ (the “Cost of
Services”). Contingency fees paid to Consultant pursuant to City-specific audits shall not be
included in the Cost of Services. The Cost of Services shall not be increased without a written
amendment executed by the authorized representatives of each Party. Consultant shall earn
the compensation set forth in the Cost of Services in accordance with the “Schedule of
Compensation” as attached to this Agreement as Exhibit A. No payment for expenses, labor
or any other cost shall be paid to Consultant unless it is within the Scope of Services.
4.0 Personnel.
4.1 The staff person designated by Consultant to be the primary point of contact (the
“Representative”) for day-to-day performance of this Agreement shall be:
Laura Burnett
Client Services Manager
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
Phone: 805.990.2348
Email: Laura.Burnett@avenuinsights.com
Representative shall be a key member of Consultant’s firm, and shall be directly
involved in performing, supervising or assisting in the performance of the Scope of
Services under this Agreement. The Representative shall be the key person to
communicate with, and periodically report to, City on the progress of the work. The
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
4
Consultant may, from time to time, remove or replace the Representative designated
in this Agreement only with prior written consent by the City’s Designated Official.
4.2 The services to be performed by Consultant shall be accomplished under the
general direction of, and coordination with, the staff person designated by the
City serving as the project manager (the “City Project Manager”). The City
Project Manager designated by the City for day-to-day administration of this
Agreement shall be:
Name: Richard Lam
Title: Budget Administrator
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
Phone: 626-812-5200, Ext 5481
The City may, from time to time, remove or replace the City Representative
designated in this Agreement by written notice to Consultant. The City
Representative has no authority to execute any amendments, consents or waivers on
behalf of the City.
4.3 With respect to matters that extend beyond the day-to-day administration of this
Agreement, the City designates Talika M. Johnson, The Administrative Services
Director, Administrative Services Department (the “Designated Official”) to
handle such matters.
Phone: (626) 812-5202
Email: TJohnson@azusaca.gov
5.0 Invoicing and Payment. Consultant shall provide City with written verification of the actual
compensation earned, which written verification shall be in a form reasonably satisfactory to
the City Representative. Invoices shall be made no more frequently than on a monthly basis
and no less frequently than every 60 days, and shall described in reasonable detail the work
performed (including a list of hours worked by personnel classification) together with any
receipts, invoices or other documentable expenses that are reimbursable under the Schedule
of Compensation. All payments shall be made within thirty (30) days after the issuance of
such invoice.
6.0 Standard of Skill. Consultant, and Consultant's officers, employees and agents, if any, are
skilled in the professional calling necessary to perform the work agreed to be done pursuant
to this Agreement. The work performed by Consultant shall be with the degree of skill and
diligence normally practiced in the industry for which Consultant is being retained by the
City. To the extent that Consultant’s industry is subject to guidelines, rules or other standards,
Consultant shall ensure that it complies with such guidelines, rules or other standards. The
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
5
acceptance of Consultant's work by the City shall not operate as a release of the Consultant
from such standard of care and workmanship.
7.0 Independent Contractor. Consultant is retained and engaged by the City only to the extent
set forth in this Agreement, and the Consultant's relationship to the City is that of an
independent contractor. Consultant shall be free to dispose of all portions of Consultant's time
and activities which Consultant is not obligated to devote to the City in such a manner and to
such persons, firms, or corporations as the Consultant sees fit except as expressly provided in
this Agreement. Consultant shall not be considered to have the status of an employee under
this Agreement or be entitled to participate in any insurance, medical care, vacation, sick
leave, or other benefits provided for City's officers or employees. Consultant shall be solely
responsible for any workers compensation insurance, withholding taxes, unemployment
insurance, and any other employer obligations associated with the performance by the
Consultant (including any of its officers, employees or other agents) of its obligations under
this Agreement. Consultant has no authority to bind City in any manner or to incur any
obligation, debt or liability of any kind on behalf of or against City, whether by contract or
otherwise, unless such authority is expressly conferred under this Agreement or is otherwise
expressly conferred in writing by the City.
8.0 Hold Harmless and Indemnity. Consultant shall fully and promptly undertake its
obligations as set forth below:
8.1 Hold Harmless. To the fullest extent provided by law, Consultant holds City,
its elected officials, officers, agents, and employees, harmless from all of
Consultant's claims, demands, lawsuits, judgments, damages, losses, injuries
or liability to Consultant, to Consultant's employees, to Consultant’s
contractors or subcontractors, or to the owners of Consultant's firm, which
damages, losses, injuries or liability occur during the work required under this
Agreement, or occur while Consultant is on City property, or which are
connected, directly or indirectly, with Consultant's performance of any activity
or work required under this Agreement.
8.2 Defense and Indemnity. Consultant shall investigate, defend, and indemnify
City, its elected officials, officers, agents, and employees, from any claims,
lawsuits, demands, judgments, and all liability including, but not limited to,
monetary or property damage, lost profit, personal injury, wrongful death,
general liability, automobile, infringement of any intellectual property rights
(including, copyright, patent and trademark), or professional errors and
omissions arising out of, directly or indirectly, any error, negligence,
recklessness, or omission of Consultant or any of Consultant’s officers, agents,
employees, representatives, sub-consultants, or subcontractors, or the willful
misconduct of Consultant or any of Consultant’s officers, agents, employees,
representatives, sub-consultants, or subcontractors, in performing the services
described in, or normally associated with, the work required under this
Agreement, or breach by Consultant of this Agreement. The duty to defend
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
6
shall include any suits or actions concerning any activity, product or work
required under this Agreement, and also include the payment of all court costs,
attorney fees, expert witness costs, investigation costs, claims adjusting costs
and any other costs required for and related thereto.
8.3 No Waiver. City does not waive, nor shall be deemed to have waived, any
indemnity, defense or hold harmless rights under this section because of the
acceptance by City, or the deposit with City, of any insurance certificates or
policies described in Section 10.0 below.
9.0 Correction or Re-Performance of Work. If City believes that any of the work performed
under this Agreement does not comply with the terms of this Agreement, City may deliver
notice to Consultant. Such City’s notice shall describe how the work performed, including
any deliverables resulting from such work, does not meet the requirements of this
Agreement, including failure to meet the applicable standard of care set forth in Section 6.0
and, upon City’s sole discretion, may also make a request for Consultant to re-perform the
services. If City requests Consultant to re-perform services, Consultant shall promptly re-
perform the services at no additional cost to City in a reasonably timely manner. Should
Consultant fail to make such correction or re-performance, the cost thereof shall be
withheld from any funds due to Consultant hereunder or charged to Consultant with such
amounts to be paid by Consultant within thirty (30) days of receipt of such invoice.
10.0 Insurance.
10.1 Insurance Coverage. Consultant shall maintain, throughout the Term, the
insurance coverage set forth in the “Insurance Requirements” as attached to this
Agreement as Exhibit B.
10.2 Delivery of Certificates of Insurance and Endorsements. Prior to the
commencement of any work by Consultant under this Agreement, Consultant
shall provide the City with copies of certificates (on an Accord form as modified
per City direction) for all policies together with the appropriate endorsements
required in Exhibit B. At the request of the City, Consultant shall deliver a copy
of its insurance policies.
10.3 Failure to Maintain Insurance. If Consultant receives a cancellation notice of any
insurance required by this Agreement, Consultant shall, within one day of receipt,
forward said notice to City Representative. If Consultant at any time during the
Term of this Agreement, should fail to secure or maintain any insurance required
under this Agreement, the City shall be permitted to obtain such insurance in the
Consultant's name or as an agent of the Consultant and shall be compensated by
the Consultant for the cost of the insurance premiums at the maximum rate
permitted by law computed from the date written notice is received that the
premiums have been paid. Such costs can be assessed by deducting such costs
from any amounts due and payable to the Consultant as compensation under the
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
7
terms of this Agreement.
11.0 Work Product.
11.1 Deliverables. Consultant shall deliver to the City the studies, plans,
specifications, drawings, photographs, maps, videos, records, designs, data,
reports, documents or other work products as are identified in the Scope of
Services (“Work Product”). The City may also request, and Consultant shall
provide to City, copies of all other information developed in the course of the
Consultant’s performance of this Agreement. Consultant shall, in such time and
in such form as the City may require, furnish reports concerning the status of
services required under this Agreement. Consultant shall, upon request by City
and upon completion or termination of this Agreement, deliver to the City all
Work Product produced by the Consultant. Consultant represents and warrants
that upon delivery of the Work Product, such Work Product shall be free of all
liens, security interests or any other encumbrances.
11.2 Ownership. Each and every item that constitutes Work Product produced,
prepared, or caused to be prepared by the Consultant pursuant to or in connection
with this Agreement shall be the exclusive property of the City.
12.0 Confidentiality.
12.1 Non-Disclosure Exemptions. Consultant may be granted access to information
that is exempt from disclosure to the public and may contain “trade secrets” when
it is necessary for Consultant to perform its obligations pursuant to this
Agreement. If Consultant is granted such access to confidential information,
Consultant shall not be considered to be a member of the public as that term is
used in the California Public Records Act.
12.2 Confidentiality Obligation. Consultant shall not disclose, publish, or authorize
others to disclose or publish, design data, drawings, specifications, reports, or
other information pertaining to the projects assigned to Consultant by the City
or other information to which the Consultant has had access during the Term
of this Agreement without the prior written consent of the Designated Official
during the Term of this Agreement and this obligation shall survive for a period
of two (2) years after the termination of this Agreement. Notwithstanding the
foregoing, the confidentiality obligations imposed by this Agreement shall
survive as to any of the following information (a) a trade secret under
applicable law for so long as such information constitutes a trade secret
thereunder, (b) each utility customer’s “data” under applicable law unless
Consultant has secured such customer’s express, written consent to release of
such customer’s information, (c) any information classified by City as “critical
infrastructure information” or “protected critical infrastructure information” or
“protected system,” or (d) any other documentation that has been identified as
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
8
confidential by City until City has advised Consultant in writing that such
information may be released.
13.0 Acceptance of Final Payment by Consultant. The acceptance by Consultant of the final
payment made under this Agreement shall release City from all claims and liabilities for
compensation to or for the benefit of Consultant for anything done, furnished, or relating
to Consultant's work or services. Acceptance of payment shall be any negotiation of City's
check or the failure to make a written extra compensation claim within 10 calendar days of
the receipt of that check; provided, however, approval or payment by City shall not
constitute, nor be deemed, a release of the responsibility and liability of Consultant, its
employees, agents, subcontractors and subconsultants for the satisfactory performance,
accuracy and/or competency of the information provided and/or work performed by
Consultant; nor shall such approval or payment be deemed to be an assumption of such
responsibility or liability by City for any defect or error in the work prepared by Consultant,
its employees, agents, subcontractors and subconsultants.
14.0 Records. Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts, and other such information required by the City, the Designated Official
or the City Representative. Consultant shall maintain adequate records on services provided
in sufficient detail to permit an evaluation of services. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Consultant shall provide access to the Designated Official or designees
at all proper times to such books and records, and gives the Designated Official or designees
the right to examine and audit such books and records and to make transcripts as necessary,
and to allow inspection of all work, data, documents, proceedings, and activities related to this
Agreement. Consultant shall maintain such records for at least four years after the termination
or final payment under this Agreement, whichever is later.
15.0 Conflict of Interest. Consultant agrees to be familiar with and comply with all applicable
federal, state and local conflict of interest laws. Consultant represents and warrants that it is
unaware of any City employee or official that has a financial interest in Consultant's
business. During the Term of this Agreement and/or as a result of being awarded this
Agreement, Consultant shall not offer or accept any financial interest in Consultant's
business by any City employee or official.
16.0 Payee Registration Form. City shall provide a W9 Form to Consultant and Consultant shall
deliver a completed W9 form to the City. Consultant acknowledges that this form is necessary
for the City to process any payment for services hereunder.
17.0 Non-Appropriation of Funds. Payments due and payable to Consultant for current
services are within the current annual budget and within an available, unexhausted and
unencumbered appropriation of City funds. In the event City has not appropriated
sufficient funds for payment of Consultant services beyond the current fiscal year, this
Agreement shall cover only those costs incurred up to the conclusion of the current fiscal
year.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
9
18.0 Compliance with Laws. Consultant agrees to perform all of its obligations under this
Agreement in accordance with all applicable federal, state and local laws, rules and
regulations. This obligation shall include, but is not limited to, the following requirements set
forth below:
18.1 Permits and Licenses. Consultant, at its sole expense, shall obtain and maintain
during the Term of this Agreement, all appropriate permits, licenses, and
certificates that may be required in connection with the performance of services
under this Agreement.
18.2 Anti-Terrorism Laws; Sanctions. The Consultant represents and warrants that:
(1) it is not a person described or designated in the Specially Designated Nationals and
Blocked Persons List of the Office of Foreign Assets Control, United States
Department of the Treasury or in Section 1 of Executive Order No. 13,224, 66 Fed.
Reg. 49,079 (2001), issued by the President of the United States of America
(Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism);
(2) it does not engage in any dealings or transactions with any such persons described
above; and
(3) is not otherwise blocked, subject to sanctions under or engaged in any activity in
violation of other United States economic sanctions, including but not limited to,
Trading with the Enemy Act, the International Emergency Economic Powers Act,
Accountability and Divestment Act or any other similar law or regulation with respect
to any country, the Sudan Accountability and Divestment Act, any OFAC Sanctions
Program, or any economic sanctions regulations administered and enforced by the
United States or any enabling legislation or executive order relating to any of the
foregoing.
19.0 Meet and Confer. The Parties agree to meet and confer concerning all claims, disputes
or other matters in question between the Parties arising out of or relating to this Agreement or
breach thereof prior to the institution of any litigation.
20.0 Waiver; Remedies Cumulative. Failure by a Party to insist upon the strict performance of
any of the provisions of this Agreement by the other Party, irrespective of the length of
time for which such failure continues, shall not constitute a waiver of such Party's right to
demand strict performance by such other Party in the future. No waiver by a Party of a
default or breach of the other Party shall be effective or binding upon such Party unless
made in writing by such Party, and no such waiver shall be implied from any omissions by
a Party to take any action with respect to such default or breach. No express written waiver
of a specified default or breach shall affect any other default or breach, or cover any other
period of time, other than any default or breach and/or period of time specified. All of the
remedies permitted or available to a Party under this Agreement, or at law or in equity,
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
10
shall be cumulative and alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or available
right or remedy.
21.0 Integrated Agreement; Construction. This Agreement, including any exhibit, schedule
or addendum attached hereto, supersedes any other agreements, either oral or in writing,
between the parties hereto with respect to the rendering of services hereunder, and contains
all of the covenants and agreements between the Parties with respect to said services. The
provisions of this Agreement shall be construed as a whole according to its common
meaning of purposes of providing a public benefit and not strictly for or against any Party.
No verbal agreement or implied covenant shall be held to vary the provisions of this
Agreement. In the event an inconsistency arises between any attachments (including any
exhibit, schedule or addendum) and any term of this Agreement, the terms of this Agreement
shall prevail. This Agreement shall bind and inure to the benefit of the Parties to this
Agreement and any subsequent permitted successors and assigns.
22.0 Amendment; Modification. This Agreement may only be amended or otherwise modified
upon written mutual agreement of each of the authorized representatives of the Parties.
23.0 Assignment. This Agreement is personal to the Consultant and may not be assigned without
the prior written approval of the Designated Official. Notwithstanding the foregoing, any
assignment in violation of this Section by the Consultant is voidable in the City’s sole
discretion.
24.0 Use of the Term “City.” Reference to “City” in this Agreement includes City Manager
or any authorized representative acting on behalf of City.
25.0 Severability. If any part, term, or provision of this Agreement shall be held illegal,
unenforceable, or in conflict with any law of a federal, state, or local governmental entity
having jurisdiction over this Agreement, the validity of the remaining portions or provisions
shall not be affected by such holding.
26.0 Execution Counterparts. This Agreement may be executed in any number of counterparts
and each such duplicate counterpart shall constitute an original, any one of which may be
introduced in evidence or used for any other purpose without the production of its duplicate
counterpart. Moreover, notwithstanding that any of the Parties did not execute the same
counterpart, each counterpart shall be deemed for all purposes to be an original, and all such
counterparts shall constitute one and the same instrument, binding on all of the Parties hereto.
Facsimile transmission and/or validated electronic transmission to one Party of a true copy of
a counterpart duly executed by the other Party shall constitute valid delivery of such
counterpart.
27.0 Governing Law. The terms of this Agreement shall be interpreted according to the laws of
the State of California. The Parties agree and consent to the jurisdiction of the state and federal
courts of competent jurisdiction exclusively in the County of Los Angeles, California.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
11
28.0 Survival. The provisions of Sections 8, 9, 10 and 12.0, shall survive for a period of four years
following the termination or expiration of this Agreement, whichever is later.
29.0 Notices. Any written notice required by this Agreement shall be given by depositing such
notice in the United States mail, postage prepaid or by personal delivery, and addressed as
follows:
TO CITY:
The City of Azusa_________________
Administrative Services Department
Attention: Richard Lam
Address: 213 E, Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
With a copy to:
The City of Azusa
Administrative Services Department
Attention: Talika M. Johnson
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: tjohnson@azusaca.gov
TO CONSULTANT:
MuniServices, LLC
Attention: Laura Burnett
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
With a copy to:
MuniServices, LLC
5860 Trinity Parkway, Suite 120
Centreville VA 20120
Attention: Contracts Dept.
Email: contracts@avenuinsights.com
30.0 All notices shall be effective upon deposit in the mail, as specified above, or personal delivery.
Either Party may change the specified person or address at which it is to receive notices by so
advising the other Party in writing. Safety Requirement. To the extent that Consultant
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
12
performs any work on premises owned or leased by the City, the Consultant agrees that it
shall comply with this Section. All work under this Agreement shall be performed in such a
manner as to provide safety to the public and to meet or exceed the safety standards outlined
by CAL-OSHA. The City reserves the right to issue restraint or cease and desist orders to the
Consultant when unsafe or harmful acts are observed or reported relative to the performance
of the work under this Agreement. The Consultant shall maintain the work sites free of
hazards to persons and property resulting from its operations. Any hazardous condition noted
by the Consultant, which is not the result of his operations, should immediately be reported to
the City Representative.
31.0 Copyright. In the event Consultant creates an original work product as part of the Scope
of Services (“work product”), Consultant agrees that work product is a work made for hire.
Consultant acknowledges that he/she received consideration for this work product and has
no copyright interest in any of the work product, or in any copyright related to the work
product. For example work product may involve: illustrations and graphic design services,
digital and print branding services, photographs, Meta Tags, text, photographs whether
edited or not, and other graphic images, appearing on the web sites or other applicable
medium, domain names, log-in credentials for social media and other on-line electronic
platforms. Further, if this Agreement is found by any court or other jurisdiction to not be
a work-for–hire as defined in 17 U.S.C. § 101, then Consultant hereby transfers any and
all interest of the copyright(s) in the work product to City. This transfer and assignment are
irrevocable and in perpetuity.
Further, Consultant represents and warrants: 1) that all work product shall be original and
not subject to any other ownership claims by third parties, and 2) if applicable, that consent
by individuals depicted in any work product have been obtained and written releases will
be delivered to City prior to the completion of the Scope of Services. Consultant
indemnifies and defends City as to any damages arising out of or relating to a breach of
this warranty and representation.
If applicable, Consultant agrees to provide all log-in credentials for social media and other
on-line electronic platforms to City within ten (10) days of establishing same, which shall
allow City at any time with the ability to access, utilize and maintain the social media
account or electronic on-line platform, should City choose to do so. In any event, upon
the conclusion of Consultant’s services, Consultant shall no longer utilize any log -in
credentials or electronic on-line platforms.
32.0 Prevailing Wages. To the extent that the Consultant performs any work described in
California Labor Code Section 1720(a)(1), including, but not limited to, inspection and land
surveying work, Consultant agrees that it shall comply with this Section. The Consultant, and
any subcontractor or subconsultant working on behalf of the Consultant with respect to this
Agreement, is required to pay not less than the established prevailing rates of wages to all
workers employed in the execution of this Agreement, and Consultant shall comply with all
other requirements applicable to Public Works Construction as specified in the California
Labor Code and/or Davis Bacon Act, if federal money is funding any part of this Agreement.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
13
Furthermore, Consultant must register as a public works contractor with the California
Department of Industrial Relations, if the compensation under this Agreement is greater than
$25,000.
[SIGNATURE PAGE FOLLOWS]
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
14
In recognition of the obligations stated in this Agreement, the Parties have executed this
Agreement on the date indicated above.
"CONSULTANT"
MUNISERVICES, LLC.
____________________________
Signature
_________________________
Name (Please Print)
__________________________
Title
__________________________
Date
"CITY"
CITY OF AZUSA
_____________________________
Signature
______________________________
Name (Please Print)
_______________________________
Title
__________________________
Date
1/13/2021
CFO
Mike Melka
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
15
EXHIBIT A
SCOPE OF SERVICES
BUSINESS LICENSE TAX COMPLIANCE AND DISCOVERY RECOVERY AUDIT
SERVICES
A. Objectives and Methods
CONSULTANT’s Discovery Recovery Business License Audit service (“DRE”) is designed for
compliance and to assist the CITY in locating tax revenue that the CITY may not be receiving
from its local tax registry. CONSULTANT provides detection, documentation and correction of
errors and omissions causing deficiencies thereby producing new revenue that would not otherwise
have been realized by the CITY. Moreover, our team works in full and collaborative partnership
with CITY’s revenue staff to supplement the operations and procedures currently in place.
The DRE service also aims to reduce future errors by informing the businesses that are identified
as having errors or omissions about the proper methods of compliance. Informing business owners
of the requirements of the ordinance helps to prevent future mistakes by businesses making future
enforcement efforts by the CITY less burdensome for the CITY.
A1. Scope of Work
CONSULTANT provides the DRE service as follows:
1.1. Initial Meeting. CONSULTANT meets with the CITY staff to review the procedures and
objectives of the DRE service, business entity relations and logistical matters, including
establishing an appropriate liaison with CITY management and staff and logical
checkpoints for measuring progress (the “Initial Meeting”). CONSULTANT and CITY
shall schedule the meeting within 10 days after CONSULTANT receives the fully signed
copy of the Agreement from the CITY with this Exhibit attached.
1.2. Workplan. Based on the Initial Meeting, CONSULTANT develops a workplan that
incorporates the logistical matters agreed to in the Initial Meeting and describes in detail
how the objectives of the DRE service shall be met (the “Workplan”).
1.3. Commencement of services. After the Workplan is developed, CONSULTANT shall
begin providing the services described in paragraphs 1.4 thru 1.5 below. CONSULTANT’s
obligation to provide services is contingent on the CITY providing the necessary
information and cooperation.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
16
1.4. Discovery Services. Discovery Services are designed to provide a full-service solution to
the CITY’s business license enforcement procedures. It does not replace current functions
but provides a focused and fulltime solution to the identification of entities subject to
taxation by the CITY, which are not properly registered, or otherwise not reporting taxes
to the CITY. In performing the Discovery Services, CONSULTANT shall:
a. Establish a comprehensive inventory of the entities subject to taxation by the CITY
and the database elements needed to facilitate a comprehensive comparative
analysis with the CITY’s records of those entities that are properly registered;
b. Compare CONSULTANT’s database of business records with the CITY’s records
to identify potential non-reporting and non-registered entities subject to taxation;
c. For unregistered or non-reporting entities identified and confirmed, assist the
entities, as necessary, to complete the CITY’s applicable registration form(s) and
determine the amount of tax due for current and prior periods (plus applicable
interest and penalties, where appropriate);
d. Invoice entities (including supporting documentation) on behalf of the CITY for
the amount of identified deficiencies, with payment to be remitted to
CONSULTANT;
e. Ensure that all submitted registration forms are completed correctly and in their
entirety;
f. Forward all completed registration forms and associated payments to the CITY in
batches at the frequency directed by the CITY. Applications will be forwarded with
copies of the payments and payments deposited into an account designated by the
CITY;
g. Collect the amount of identified deficiencies, together with supporting
documentation, and remit payment received to the CITY in bi-weekly batches;
typically on the 15th and by the last business day of each month. (CONSULTANT
shall follow the CITY’s business rules in collecting partial payments or the taxes in
full at the CITY’s direction);
h. Establish a call center open during normal business hours to assist entities with
questions concerning application of the CITY’s taxes, and reporting and remittance
requirements;
i. Educate entities regarding the CITY’s reporting requirements to prevent recurring
deficiencies in future years;
j. Contact personnel in sales, operations and/or tax accounting at each target business
to determine whether a business license fee is due, when necessary and appropriate.
This is accomplished with the highest regard to discretion and professional conduct.
CONSULTANT’s DRE audits are predicated on a non-controversial, constructive
public relations approach that emphasizes the importance of each business to the
CITY and the mutual benefits of correcting non-reporting errors;
k. Provide reports addressing each taxpayer not reporting, including the business
name, address, and telephone number to the CITY; and
l. Monitor and analyze the business license registration files of the CITY each quarter
in order to determine non-reporting businesses.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
17
1.5. Deficiency Audit Services. Deficiency Audit Services are designed to identify entities
subject to taxation by the CITY that are not properly reporting the full amount of tax which
they are subject to under the CITY’s ordinances. Deficiency Audit Services also identifies
entities that are potentially underreporting, or not reporting all applicable taxes.
CONSULTANT reviews entities’ records to ensure compliance with the CITY’s taxes. In
performing the Deficiency Audit Services, CONSULTANT shall:
a. Establish a comprehensive inventory of the registered entities subject to taxation
by the CITY and the database elements needed to facilitate an analysis of records
of those entity’s current and prior year’s tax remittance;
b. Compare CONSULTANT’s records with the CITY’s records to identify potential
under-reporting entities subject to taxation;
c. Meet with designated CITY staff to review and discuss potential audit candidates
and mutually agree which entities will be subject to review. Only entities mutually
agreed by CONSULTANT and the CITY to be reviewed shall be subject to
CONSULTANT’s audit services.
d. For potential under-reporting entities identified, CONSULTANT shall obtain
authorization from the CITY to conduct a review of the entities’ records and
determine the amount of tax due for current and prior periods (plus applicable
interest and penalties, where appropriate).
e. Submit audit summaries (also referred to as “Deficiency Notice”) to the CITY to
permit the CITY to determine the amount of a deficiency owed, if any.
A2. Deliverables
CONSULTANT shall provide the CITY with audit progress reports to include the following:
1. Status of work in progress, including copies of reports provided to taxpayers/intermediaries
addressing each reporting error/omission individually, including where applicable the
business name, address, telephone number, account identification number, individuals
contacted, date(s) of contact, nature of business, reason(s) for error/ omission and
recommended corrective procedure;
2. Actual revenue produced for the CITY by CONSULTANT’s service on a quarterly and
cumulative basis;
3. Projected revenue forthcoming to the CITY as a result of CONSULTANT’s audit service,
specified according to source, timing, and one-time versus ongoing; and
4. Alphabetical listing of all errors/omissions detected for the CITY by CONSULTANT,
including the account number, correction status, payment amount received by the CITY,
period to which payment is related and payment type (e.g., reallocation, deficiency
assessment) for each one.
Timing and Reporting
CONSULTANT shall commence project planning within 10 working days following
authorization.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
18
A3. CITY Assistance
The CITY agrees to:
a. Provide an electronic copy of the CITY’s License Registration File and License Payment
History file to CONSULTANT, together with any other information necessary for
CONSULTANT to compute CONSULTANT’s billing for services, in electronic format,
to CONSULTANT on no less than a quarterly basis during the term of the Agreement and
thereafter for so long as CONSULTANT’s right to invoice for services rendered continues;
b. Use reasonable and diligent efforts to collect, or to assist CONSULTANT in the collection
of, deficiencies identified by CONSULTANT pursuant to this Agreement. For accounts
that remain uncollected after CONSULTANT has exhausted its efforts to collect through
the standard process, CONSULTANT and the CITY may mutually agree to special
procedures that will make further attempts to collect amounts still outstanding. Typically,
these processes will be implemented by CONSULTANT; and
c. Notify CONSULTANT within 10 days following receipt by the CITY of payments, if any,
resulting from deficiencies identified by CONSULTANT.
Because CONSULTANT’s DRE Service may result in collection of deficiencies after termination
of the Agreement, the CITY’s obligation to collect fees and notify CONSULTANT, and
CONSULTANT’s right to continue to receive contingency fees, shall survive termination of this
Agreement for any reason.
The CITY shall have the right, at the CITY’s option, to elect not to proceed with recovery of any
identified deficiencies. Deficiencies which are uncollectible due to insolvency or dissolution of
the entity liable, or for deficiencies which are otherwise incapable of collection (e.g., statute of
limitations expiration or other legal defense) shall not be considered an “election” by the CITY for
the purposes of this Agreement. For deficiencies otherwise collectable but for which the CITY
elects not to collect, the CITY shall notify CONSULTANT of its election not to pursue (“waive”)
collection of said deficiencies. CONSULTANT shall be entitled to one-half (½) of the fee
CONSULTANT would have been entitled to for the waived portion of the deficiency.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
19
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant shall procure and maintain, for the Term of this Agreement, insurance against claims
for injuries to persons or damages to property which may arise from or in connection with the
performance of the work hereunder and the results of that work by the Consultant, its agents,
representatives, employees or subcontractors.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Commercial General Liability : Insurance Services Office Form CG 00 01 covering
commercial general liability insurance (“CGL”) on an “occurrence” basis, including
products and completed operations, property damage, bodily injury and personal &
advertising injury with limits no less than $1,000,000 per occurrence. If a general
aggregate limi t applies, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be at least $2,000,000.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
Consultant has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit
no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with statutory limits,
and employer’s liability insurance with limit of no less than $1,000,000 per accident for
bodily injury or disease.
4. Professional Liability or Errors and Omissions: Errors and Omissions insurance
appropriate to the Consultant’s profession (“E&O Insurance”), with limit no less than
$1,000,000 per occurrence or claim, $2,000,000 aggregate.
If Consultant maintains higher limits than the minimums shown above, the City requires and shall
be entitled to coverage for the higher limits maintained by Consultant.
B. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its officers, officials, employees, agents, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of work or operations performed
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
20
by or on behalf of the Consultant including materials, parts or equipment furnished in connection
with such work or operations. General liability coverage can be provided in the form of an
endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or
both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary
insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any
insuranor self-insurance maintained by the City, its officers, officials, employees, agents, or
volunteers shal l be excess of the Consultant’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide an endorsement that they are not subject to
cancellation without thirty (30) days’ prior written notice to the City or ten (10) days’ prior written
notice for non-payment of premium.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said
Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be neces sary to affect this waiver of
subrogation, but this provision applies regardless of whether or not the City has received a
waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City
may require the Consultant to purchase coverage with a lower deductible or retention or provide
proof of ability to pay losses and related investigations, claim administration, and defense
expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII,
unless otherwise acceptable to the City. Such insurers shall be licensed to provide insurance under
California state law.
Claims Made Policies. For the E&O Insurance Policy and any other insurance providing
claims-made coverage (e.g., pollution liability insurance, if applicable):
1. The “Retroactive Date” must be shown and must be before the Effective Date.
2. Insurance must be maintained, and evidence of insurance must be provided for at
least three (3) years after completion of the work required under the Agreement.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
21
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a Retroactive Date prior to the Agreement Effective Date,
the Consultant must purchase “extended reporting” coverage for a minimum of
three (3) years after completion of work.
Verification of Coverage
Consultant shall furnish the City with original cer tificates and amendatory endorsements or
copies of the applicable policy language effecting coverage required by this Agreement. All
certificates and endorsements are to be received and approved by the City before work
commences. However, failure to obtain the required documents prior to the work beginning
shall not waive the Consultant’s obligation to provide them. The City reserves the right to
require complete, certified copies of all required insurance policies, including endorsements
required by these specifications, at any time.
Cyber Liability Insurance
If Consultant will have access to the City’s databases or otherwise have access to electronic data
of the City that constitute personally identifiable information or data of any employee, customer,
citizen, voter or ratepayer, or pursuant to the Agreement shall receive such information directly
from customers, voters, or rate payers, Consultant shall maintain cyber liability insurance with
limits of not less than $1,000,000 for each occurrence and an annual aggregate of $2,000,000
covering claims involving privacy violations, information theft, damage to or destruction of
electronic information, intentional and/or unintentional release of private information, alteration
of electronic information, extortion and network security. Such coverage is required for any
professional services for which Consultant is engaged if the Consultant provides to the City any
products and/or services which involves or requires access to information technology (including
hardware and/or software) or other electronic data and for such length of time as necessary to cover
any and all claims. City shall inform Consultant if such insurance is required.
Contractors Pollution Liability and/or Asbestos Pollution Liability
If Consultant’s Scope of Services includes the handling or transportation of hazardous materials,
Consultant shall maintain pollution liability and/or asbestos pollution liability applicable to the
work being performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000
aggregate per policy period of one year. City shall inform Consultant if such insurance is required.
City of Azusa Business License Tax Compliance Audit and Discovery Services PSA/2021
22
EXHIBIT C
COMPENSATION
DISCOVERY RECOVERY AUDIT SERVICE
MuniServices' compensation for providing Discovery Services shall be a contingency fee of 35%
of the additional reve ue received by the City from the services. The contingency fee shall apply
to the current tax year, all eligible prior period revenues, and any applicable penalties, interest, and
late charges. The contingency fee only applies to revenue actually received by the City. The term
"current tax year" shall mean the most recent tax year for which local taxes are due and payable to
the City, and in which MuniServices has identified deficiencies.
Audit Services
MuniServices' compensation for the Audit Service shall be a contingency fee of 35%. The
contingency fee shall apply to revenue received by the City as a result of deficiencies identified in
the review and shall include any eligible prior period revenues together with all applicable
penalties, interest and late charges. The City agrees to use reasonable and diligent efforts to collect
deficiencies identified by MuniServices.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 1
PROFESSIONAL SERVICES AGREEMENT
By and Between
MuniServices, LLC
And
City of Azusa
Dated as of _________
Attachment 2
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 2
PROFESSIONAL SERVICES AGREEMENT
TRANSIENT OCCUPANCY TAX (TOT) COMPLIANCE AUDIT
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into this ______day of
_January 20_______, 2021 (the “Effective Date”), by and between the City of Azusa, a California municipal
corporation (the “City”) and MuniServices, LLC, (the “Consultant”). The City and the Consultant are herein referred
to, individually, as a “Party”, and, collectively, as the “Parties”.
City and Consultant agree as follows:
1.0 Services. Consultant, as an independent contractor, agrees to perform during the term of this Agreement,
each and every service described in the “Scope of Services” set forth on Exhibit A to this Agreement (the
“Scope of Services”). The initiation of service by the Consultant should not commence until all of the
following conditions have been satisfied:
(a) Consultant has furnished all of the insurance documents required by Section 10.0 below; and
(b) Consultant has to furnish the W9 form to the City prior to the execution of the agreement.
(c) To the extent that the Scope of Services involves more than one service, Consultant shall
perform the services only to the extent of the authorization provided by the City
Representative. The services of the Consultant shall include the making of all investigations,
studies, and analysis required by the conditions involved in each request of the City
Representative. The Scope of Services shall not be modified without an amendment executed
by the authorized representatives of each Party.
1.1 Additional Services
Unless City and Consultant have agreed in writing before the performance of additional services that are beyond
the Scope of Services, City shall have no liability for such additional services and Consultant shall have no right
to claim compensation for such additional services or expenses. The applicable hourly rates for authorized extra
services shall be at the hourly rates set forth in the Schedule of Compensation (Exhibit A) unless otherwise agreed
to by the parties in writing.
2.0 Term of Agreement; Termination.
2.1 Term. The term of this Agreement is from the Effective Date until ______________, unless
earlier terminated herein; provided, however, that the term of this Agreement may be renewed
and extended annually by written amendment executed by authorized representatives of each of
the Parties or may be earlier terminated as provided in Section 2.2 below (the “Term”).
2.2 Termination by City. The City may terminate any or all of the services agreed to be performed
under this Agreement (a) without cause, at any time during the Term by giving the Consultant
thirty (30) days’ notice in writing. Either party may terminate this Agreement with cause,
immediately upon giving the other party written notice of such default or breach of this
Agreement that is the basis for the termination.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 3
2.3 Effect of Termination. In the event of termination, Consultant shall have the right and obligation
to immediately assemble work in progress for the purpose of closing out the job. All
compensation for actual work performed and charges outstanding based upon an hourly rate to-
date of such work at $150 per hour at the time of termination and shall be payable by City to
Consultant within thirty (30) days following submission and approval of a final invoice by
Consultant unless termination is for cause. In the event that such termination was for cause,
Consultant shall be compensated only to the extent required by law.
3.0 Compensation and Schedule of Compensation. The total compensation (including, but not limited to all
fees, expenses, reimbursements or other costs) payable by the City to the Consultant under this Agreement
shall not exceed the sum of __$25,000___ (the “Cost of Services”). Contingency fees paid to Consultant
pursuant to City-specific audits shall not be included in the Cost of Services. The Cost of Services shall not
be increased without a written amendment executed by the authorized representatives of each Party.
Consultant shall earn the compensation set forth in the Cost of Services in accordance with the “Schedule of
Compensation” as attached to this Agreement as Exhibit A. No payment for expenses, labor or any other
cost shall be paid to Consultant unless it is within the Scope of Services.
4.0 Personnel.
4.1 The staff person designated by Consultant to be the primary point of contact (the
“Representative”) for day-to-day performance of this Agreement shall be:
Laura Burnett
Client Services Manager
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
Phone: 805.990.2348
Email: Laura.Burnett@avenuinsights.com
Representative shall be a key member of Consultant’s firm, and shall be directly involved in
performing, supervising or assisting in the performance of the Scope of Services under this
Agreement. The Representative shall be the key person to communicate with, and periodically report
to, City on the progress of the work. The Consultant may, from time to time, remove or replace the
Representative designated in this Agreement only with prior written consent by the City’s Designated
Official.
4.2 The services to be performed by Consultant shall be accomplished under the general direction
of, and coordination with, the staff person designated by the City serving as the representative
(the “City Representative”). The City Representative designated by the City for day-to-day
administration of this Agreement shall be:
Name: Richard Lam
Title: Budget Administrator
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
Phone: 626-812-5200, Ext 5481
The City may, from time to time, remove or replace the City Project Manager designated in this
Agreement by written notice to Consultant. The City Project Manager has no authority to execute
any amendments, consents or waivers on behalf of the City.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 4
4.3 With respect to matters that extend beyond the day-to-day administration of this Agreement, the
City designates Talika M. Johnson, The Administrative Services Director, Administrative
Services Department (the “Designated Official”) to handle such matters.
Phone: 626-812-5202
Email: tjohnson@azusaca.gov
5.0 Invoicing and Payment. Consultant shall provide City with written verification of the actual compensation
earned, which written verification shall be in a form reasonably satisfactory to the City Representative.
Invoices shall be made no more frequently than on a monthly basis and no less frequently than every 60 days
and shall described in reasonable detail the work performed (including a list of hours worked by personnel
classification) together with any receipts, invoices or other documentable expenses that are reimbursable
under the Schedule of Compensation. All payments shall be made within thirty (30) days after the issuance
of such invoice.
6.0 Standard of Skill. Consultant, and Consultant's officers, employees and agents, if any, are skilled in the
professional calling necessary to perform the work agreed to be done pursuant to this Agreement. The work
performed by Consultant shall be with the degree of skill and diligence normally practiced in the industry for
which Consultant is being retained by the City. To the extent that Consultant’s industry is subject to
guidelines, rules or other standards, Consultant shall ensure that it complies with such guidelines, rules or
other standards. The acceptance of Consultant's work by the City shall not operate as a release of the
Consultant from such standard of care and workmanship.
7.0 Independent Contractor. Consultant is retained and engaged by the City only to the extent set forth in this
Agreement, and the Consultant's relationship to the City is that of an independent contractor. Consultant shall
be free to dispose of all portions of Consultant's time and activities which Consultant is not obligated to devote
to the City in such a manner and to such persons, firms, or corporations as the Consultant sees fit except as
expressly provided in this Agreement. Consultant shall not be considered to have the status of an employee
under this Agreement or be entitled to participate in any insurance, medical care, vacation, sick leave, or other
benefits provided for City's officers or employees. Consultant shall be solely responsible for any workers
compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations
associated with the performance by the Consultant (including any of its officers, employees or other agents)
of its obligations under this Agreement. Consultant has no authority to bind City in any manner or to incur
any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise,
unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in
writing by the City.
8.0 Hold Harmless and Indemnity. Consultant shall fully and promptly undertake its obligations as set forth
below:
8.1 Hold Harmless. To the fullest extent provided by law, Consultant holds City, its elected
officials, officers, agents, and employees, harmless from all of Consultant's claims, demands,
lawsuits, judgments, damages, losses, injuries or liability to Consultant, to Consultant's
employees, to Consultant’s contractors or subcontractors, or to the owners of Consultant's
firm, which damages, losses, injuries or liability occur during the work required under this
Agreement, or occur while Consultant is on City property, or which are connected, directly or
indirectly, with Consultant's performance of any activity or work required under this
Agreement.
8.2 Defense and Indemnity. Consultant shall investigate, defend, and indemnify City, its elected
officials, officers, agents, and employees, from any claims, lawsuits, demands, judgments, and
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 5
all liability including, but not limited to, monetary or property damage, lost profit, personal
injury, wrongful death, general liability, automobile, infringement of any intellectual property
rights (including, copyright, patent and trademark), or professional errors and omissions
arising out of, directly or indirectly, any error, negligence, recklessness, or omission of
Consultant or any of Consultant’s officers, agents, employees, representatives, sub-
consultants, or subcontractors, or the willful misconduct of Consultant or any of Consultant’s
officers, agents, employees, representatives, sub-consultants, or subcontractors, in performing
the services described in, or normally associated with, the work required under this
Agreement, or breach by Consultant of this Agreement. The duty to defend shall include any
suits or actions concerning any activity, product or work required under this Agreement, and
also include the payment of all court costs, attorney fees, expert witness costs, investigation
costs, claims adjusting costs and any other costs required for and related thereto.
8.3 No Waiver. City does not waive, nor shall be deemed to have waived, any indemnity, defense
or hold harmless rights under this section because of the acceptance by City, or the deposit
with City, of any insurance certificates or policies described in Section 10.0 below.
9.0 Correction or Re-Performance of Work. If City believes that any of the work performed under this
Agreement does not comply with the terms of this Agreement, City may deliver notice to Consultant.
Such City’s notice shall describe how the work performed, including any deliverables resulting from such
work, does not meet the requirements of this Agreement, including failure to meet the applicable standard
of care set forth in Section 6.0 and, upon City’s sole discretion, may also make a request for Consultant to
re-perform the services. If City requests Consultant to re-perform services, Consultant shall promptly re-
perform the services at no additional cost to City in a reasonably timely manner. Should Consultant fail
to make such correction or re-performance, the cost thereof shall be withheld from any funds due to
Consultant hereunder or charged to Consultant with such amounts to be paid by Consultant within thirty
(30) days of receipt of such invoice.
10.0 Insurance.
10.1 Insurance Coverage. Consultant shall maintain, throughout the Term, the insurance coverage set
forth in the “Insurance Requirements” as attached to this Agreement as Exhibit B.
10.2 Delivery of Certificates of Insurance and Endorsements. Prior to the commencement of any
work by Consultant under this Agreement, Consultant shall provide the City with copies of
certificates (on an Accord form as modified per City direction) for all policies together with the
appropriate endorsements required in Exhibit B. At the request of the City, Consultant shall
deliver a copy of its insurance policies.
10.3 Failure to Maintain Insurance. If Consultant receives a cancellation notice of any insurance
required by this Agreement, Consultant shall, within one day of receipt, forward said notice to
City Representative. If Consultant at any time during the Term of this Agreement, should fail to
secure or maintain any insurance required under this Agreement, the City shall be permitted to
obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be
compensated by the Consultant for the cost of the insurance premiums at the maximum rate
permitted by law computed from the date written notice is received that the premiums have been
paid. Such costs can be assessed by deducting such costs from any amounts due and payable to
the Consultant as compensation under the terms of this Agreement.
11.0 Work Product.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 6
11.1 Deliverables. Consultant shall deliver to the City the studies, plans, specifications, drawings,
photographs, maps, videos, records, designs, data, reports, documents or other work products as
are identified in the Scope of Services (“Work Product”). The City may also request, and
Consultant shall provide to City, copies of all other information developed in the course of the
Consultant’s performance of this Agreement. Consultant shall, in such time and in such form as
the City may require, furnish reports concerning the status of services required under this
Agreement. Consultant shall, upon request by City and upon completion or termination of this
Agreement, deliver to the City all Work Product produced by the Consultant. Consultant
represents and warrants that upon delivery of the Work Product, such Work Product shall be free
of all liens, security interests or any other encumbrances.
11.2 Ownership. Each and every item that constitutes Work Product produced, prepared, or caused
to be prepared by the Consultant pursuant to or in connection with this Agreement shall be the
exclusive property of the City.
12.0 Confidentiality.
12.1 Non-Disclosure Exemptions. Consultant may be granted access to information that is exempt
from disclosure to the public and may contain “trade secrets” when it is necessary for Consultant
to perform its obligations pursuant to this Agreement. If Consultant is granted such access to
confidential information, Consultant shall not be considered to be a member of the public as that
term is used in the California Public Records Act.
12.2 Confidentiality Obligation. Consultant shall not disclose, publish, or authorize others to
disclose or publish, design data, drawings, specifications, reports, or other information
pertaining to the projects assigned to Consultant by the City or other information to which the
Consultant has had access during the Term of this Agreement without the prior written consent
of the Designated Official during the Term of this Agreement and this obligation shall survive
for a period of two (2) years after the termination of this Agreement. Notwithstanding the
foregoing, the confidentiality obligations imposed by this Agreement shall survive as to any
of the following information (a) a trade secret under applicable law for so long as such
information constitutes a trade secret thereunder, (b) each utility customer’s “data” under
applicable law unless Consultant has secured such customer’s express, written consent to
release of such customer’s information, (c) any information classified by City as “critical
infrastructure information” or “protected critical infrastructure information” or “protected
system,” or (d) any other documentation that has been identified as confidential by City until
City has advised Consultant in writing that such information may be released.
13.0 Acceptance of Final Payment by Consultant. The acceptance by Consultant of the final payment made
under this Agreement shall release City from all claims and liabilities for compensation to or for the benefit
of Consultant for anything done, furnished, or relating to Consultant's work or services. Acceptance of
payment shall be any negotiation of City's check or the failure to make a written extra compensation claim
within 10 calendar days of the receipt of that check; provided, however, approval or payment by City shall
not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees,
agents, subcontractors and subconsultants for the satisfactory performance, accuracy and/or competency
of the information provided and/or work performed by Consultant; nor shall such approval or payment be
deemed to be an assumption of such responsibility or liability by City for any defect or error in the work
prepared by Consultant, its employees, agents, subcontractors and subconsultants.
14.0 Records. Consultant shall maintain complete and accurate records with respect to sales, costs, expenses,
receipts, and other such information required by the City, the Designated Official or the City Representative.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 7
Consultant shall maintain adequate records on services provided in sufficient detail to permit an evaluation
of services. All such records shall be maintained in accordance with generally accepted accounting principles
and shall be clearly identified and readily accessible. Consultant shall provide access to the Designated
Official or designees at all proper times to such books and records, and gives the Designated Official or
designees the right to examine and audit such books and records and to make transcripts as necessary, and to
allow inspection of all work, data, documents, proceedings, and activities related to this Agreement.
Consultant shall maintain such records for at least four years after the termination or final payment under this
Agreement, whichever is later.
15.0 Conflict of Interest. Consultant agrees to be familiar with and comply with all applicable federal, state and
local conflict of interest laws. Consultant represents and warrants that it is unaware of any City employee
or official that has a financial interest in Consultant's business. During the Term of this Agreement and/or
as a result of being awarded this Agreement, Consultant shall not offer or accept any financial interest in
Consultant's business by any City employee or official.
16.0 Payee Registration Form. City shall provide a W9 Form to Consultant and Consultant shall deliver a
completed W9 form to the City. Consultant acknowledges that this form is necessary for the City to process
any payment for services hereunder.
17.0 Non-Appropriation of Funds. Payments due and payable to Consultant for current services are within
the current annual budget and within an available, unexhausted and unencumbered appropriation of City
funds. In the event City has not appropriated sufficient funds for payment of Consultant services beyond
the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the
current fiscal year.
18.0 Compliance with Laws. Consultant agrees to perform all of its obligations under this Agreement in
accordance with all applicable federal, state and local laws, rules and regulations. This obligation shall
include, but is not limited to, the following requirements set forth below:
18.1 Permits and Licenses. Consultant, at its sole expense, shall obtain and maintain during the Term
of this Agreement, all appropriate permits, licenses, and certificates that may be required in
connection with the performance of services under this Agreement.
18.2 Anti-Terrorism Laws; Sanctions. The Consultant represents and warrants that:
(1) it is not a person described or designated in the Specially Designated Nationals and Blocked Persons
List of the Office of Foreign Assets Control, United States Department of the Treasury or in Section
1 of Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United
States of America (Executive Order Blocking Property and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support Terrorism);
(2) it does not engage in any dealings or transactions with any such persons described above; and
(3) is not otherwise blocked, subject to sanctions under or engaged in any activity in violation of other
United States economic sanctions, including but not limited to, Trading with the Enemy Act, the
International Emergency Economic Powers Act, Accountability and Divestment Act or any other
similar law or regulation with respect to any country, the Sudan Accountability and Divestment Act,
any OFAC Sanctions Program, or any economic sanctions regulations administered and enforced by
the United States or any enabling legislation or executive order relating to any of the foregoing.
19.0 Meet and Confer. The Parties agree to meet and confer concerning all claims, disputes or other matters
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 8
in question between the Parties arising out of or relating to this Agreement or breach thereof prior to the
institution of any litigation.
20.0 Waiver; Remedies Cumulative. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, irrespective of the length of time for which such failure
continues, shall not constitute a waiver of such Party's right to demand strict performance by such other
Party in the future. No waiver by a Party of a default or breach of the other Party shall be effective or
binding upon such Party unless made in writing by such Party, and no such waiver shall be implied from
any omissions by a Party to take any action with respect to such default or breach. No express written
waiver of a specified default or breach shall affect any other default or breach, or cover any other period
of time, other than any default or breach and/or period of time specified. All of the remedies permitted or
available to a Party under this Agreement, or at law or in equity, shall be cumulative and alternative, and
invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect
to any other permitted or available right or remedy.
21.0 Integrated Agreement; Construction. This Agreement, including any exhibit, schedule or addendum
attached hereto, supersedes any other agreements, either oral or in writing, between the parties hereto with
respect to the rendering of services hereunder, and contains all of the covenants and agreements between
the Parties with respect to said services. The provisions of this Agreement shall be construed as a whole
according to its common meaning of purposes of providing a public benefit and not strictly for or against
any Party. No verbal agreement or implied covenant shall be held to vary the provisions of this Agreement.
In the event an inconsistency arises between any attachments (including any exhibit, schedule or addendum)
and any term of this Agreement, the terms of this Agreement shall prevail. This Agreement shall bind and
inure to the benefit of the Parties to this Agreement and any subsequent permitted successors and assigns.
22.0 Amendment; Modification. This Agreement may only be amended or otherwise modified upon written
mutual agreement of each of the authorized representatives of the Parties.
23.0 Assignment. This Agreement is personal to the Consultant and may not be assigned without the prior written
approval of the Designated Official. Notwithstanding the foregoing, any assignment in violation of this
Section by the Consultant is voidable in the City’s sole discretion.
24.0 Use of the Term “City.” Reference to “City” in this Agreement includes City Manager or any authorized
representative acting on behalf of City.
25.0 Severability. If any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state, or local governmental entity having jurisdiction over this Agreement,
the validity of the remaining portions or provisions shall not be affected by such holding.
26.0 Execution Counterparts. This Agreement may be executed in any number of counterparts and each such
duplicate counterpart shall constitute an original, any one of which may be introduced in evidence or used for
any other purpose without the production of its duplicate counterpart. Moreover, notwithstanding that any of
the Parties did not execute the same counterpart, each counterpart shall be deemed for all purposes to be an
original, and all such counterparts shall constitute one and the same instrument, binding on all of the Parties
hereto. Facsimile transmission and/or validated electronic transmission to one Party of a true copy of a
counterpart duly executed by the other Party shall constitute valid delivery of such counterpart.
27.0 Governing Law. The terms of this Agreement shall be interpreted according to the laws of the State of
California. The Parties agree and consent to the jurisdiction of the state and federal courts of competent
jurisdiction exclusively in the County of Los Angeles, California.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 9
28.0 Survival. The provisions of Sections 8, 9, 10 and 12.0, shall survive for a period of four years following the
termination or expiration of this Agreement, whichever is later.
29.0 Notices. Any written notice required by this Agreement shall be given by depositing such notice in the United
States mail, postage prepaid or by personal delivery, and addressed as follows:
TO CITY:
The City of Azusa
Administrative Services Department
Attention: Richard Lam
Address: 213 E, Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
With a copy to:
The City of Azusa
Administrative Services Department
Attention: Talika M. Johnson
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: tjohnson@azusaca.gov
TO CONSULTANT:
MuniServices, LLC
Attention: Laura Burnett
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
With a copy to:
MuniServices, LLC
5860 Trinity Parkway, Suite 120
Centreville VA 20120
Attention: Contracts Dept.
Email: contracts@avenuinsights.com
All notices shall be effective upon deposit in the mail, as specified above, or personal delivery. Either Party
may change the specified person or address at which it is to receive notices by so advising the other Party in
writing.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 10
30.0 Safety Requirement. To the extent that Consultant performs any work on premises owned or leased by the
City, the Consultant agrees that it shall comply with this Section. All work under this Agreement shall be
performed in such a manner as to provide safety to the public and to meet or exceed the safety standards
outlined by CAL-OSHA. The City reserves the right to issue restraint or cease and desist orders to the
Consultant when unsafe or harmful acts are observed or reported relative to the performance of the work
under this Agreement. The Consultant shall maintain the work sites free of hazards to persons and property
resulting from its operations. Any hazardous condition noted by the Consultant, which is not the result of his
operations, should immediately be reported to the City Representative.
31.0 Copyright. In the event Consultant creates an original work product as part of the Scope of Services
(“work product”), Consultant agrees that work product is a work made for hire. Consultant acknowledges
that he/she received consideration for this work product and has no copyright interest in any of the work
product, or in any copyright related to the work product. For example work product may involve:
illustrations and graphic design services, digital and print branding services, photographs, Meta Tags,
text, photographs whether edited or not, and other graphic images, appearing on the web sites or other
applicable medium, domain names, log-in credentials for social media and other on-line electronic
platforms. Further, if this Agreement is found by any court or other jurisdiction to not be a work-for–hire
as defined in 17 U.S.C. § 101, then Consultant hereby transfers any and all interest of the copyright(s) in
the work product to City. This transfer and assignment are irrevocable and in perpetuity.
Further, Consultant represents and warrants: 1) that all work product shall be original and not subject to
any other ownership claims by third parties, and 2) if applicable, that consent by individuals depicted in
any work product have been obtained and written releases will be delivered to City prior to the completion
of the Scope of Services. Consultant indemnifies and defends City as to any damages arising out of or
relating to a breach of this warranty and representation.
If applicable, Consultant agrees to provide all log-in credentials for social media and other on-line
electronic platforms to City within ten (10) days of establishing same, which shall allow City at any time
with the ability to access, utilize and maintain the social media account or electronic on-line platform,
should City choose to do so. In any event, upon the conclusion of Consultant’s services, Consultant shall
no longer utilize any log-in credentials or electronic on-line platforms.
32.0 Prevailing Wages. To the extent that the Consultant performs any work described in California Labor Code
Section 1720(a)(1), including, but not limited to, inspection and land surveying work, Consultant agrees that
it shall comply with this Section. The Consultant, and any subcontractor or subconsultant working on behalf
of the Consultant with respect to this Agreement, is required to pay not less than the established prevailing
rates of wages to all workers employed in the execution of this Agreement, and Consultant shall comply with
all other requirements applicable to Public Works Construction as specified in the California Labor Code
and/or Davis Bacon Act, if federal money is funding any part of this Agreement. Furthermore, Consultant
must register as a public works contractor with the California Department of Industrial Relations, if the
compensation under this Agreement is greater than $25,000.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 11
In recognition of the obligations stated in this Agreement, the Parties have executed this Agreement on the date
indicated above.
"CONSULTANT"
MUNISERVICES, LLC.
____________________________
Signature
_________________________
Name (Please Print)
__________________________
Title
__________________________
Date
"CITY"
CITY OF AZUSA
_____________________________
Signature
______________________________
Name (Please Print)
_______________________________
Title
__________________________
Date
CFO
1/13/2021
Mike Melka
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 12
EXHIBIT A
SCOPE OF SERVICES
1.1 Required Services, the Consultant shall:
a) Review the City Municipal Code for Transient Occupancy Tax (TOT)
b) Review the internal control procedures of the lodging operator to determine:
i. How "rent" and uncollected "rent" were accounted for and reported to the City of
Azusa, establishing what is included in "rent";
ii. Current procedures of transient and non-transient guests and provide a policy
recommendation;
m. Identify exemptions, including complimentary rooms, are documented and reported
to the City. The City requires that a business card or identification to be collected as
documentation.
c) Review the TOT revenues submitted and collected by the City compared to each Hotel and
Motel operator's records for fiscal years ended June 30, 2018, 2019,and 2020, and each Short-
term Rental (STR) operator's records for the three years following the first year after the Azusa
City Council approves STR operations in the City to determine:
i. Mathematical accuracy;
11. Whether the TOT payments were in accordance with the City's ordinances;
11i. Select a sample of rental transactions during the review period and for each
transaction selected, verify tax computations and review supporting documentation to
compare the amount of TOT revenues collected by the City compared to the lodging
operators' records;
iv. Review the supporting documentation, on a sample basis, for exemptions claimed
on the TOT forms;
v. Perform additional procedures that the City considers necessary to verify the
reasonableness of reported revenues of the lodging operators;
vi. Recommend best practices to help ensure better collections.
1.2 The Consultant shall:
a) Review all relevant City internal policies, ordinances and municipal codes;
b) Identify providers suitable for an on-site audit;
c) Compare the accuracy of filed lodging tax returns with activity summaries;
d) Review bank statements to reconcile deposits with reported revenue;
e) Assess exempted revenue for proper qualifying documentation;
f) Provide the City with the correct tax accounting of "other guest charges" (resort fees, cleaning
fees, etc.) that in the past may not have been taxed;
g) Work with the City to assess appropriate charges, and recommend appropriate charges;
h) Generate reports of revenue trends;
i) Offer ordinance and administrative enhancements to help bring the ordinances and internal
policies, if any, up to date per industry standards;
j) Provide education to lodging providers to ensure ongoing compliance and the promotions of a
positive relationship with the City.
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 13
2.0 Schedule of Services
a) Consultant will provide:
The TOT Compliance program , as described in Phase 1 and Phase 2 below, and review the City's
municipal code within 90 days of receipt of the lodging pro v ider "return information" from th e City,
Consultant will initiate the Compliance Program. The audit program is a single service consisting of a two-
phase process. The Phase 2 portion of the project is not possible without the Phase 1 work.
Phase 1: Hotel/Motel Analysis. During this phase
1. Inven tory. Establish a compreh ensive inventory of all lodg ing properties subject to taxation
by the City and the database elements (public and private databa ses) needed to facilitate
further analysis to identify and locate lodging provider s not properl y registered with the
City and not appearing on the City rolls as TOT remitters.
2. Analysi s. Anal yze lodging pro v id er "r eturn informat ion" to identify unu sual or su spicious
reporting and/or activities that warrant further review.
3. Data collection. Conduct unobtrusive collection of information on each property, including
number of rooms, occupancy rate, transient and non-transient guests, exemptions,
property 's condition, business dynamics, etc.
4. Reporting. Prov ide a detail ed anal ys is r eport to the City identify ing lodging pro vi ders wh o
might require additional investigation or review to determine their compliance with the City's
TOT ordinance and coordinate with the City to review the analysis report.
5. Identify Phase 2 reviews . Work with the City to develop a list of lodging providers subject
to a compliance review of lodging and tax record s.
Phase 2: Hotel/Motel Audit and Compliance Review.
Based on Consultant's hi storical experience, an average of 30% of properties reviewed in Phase 1 will be
recommend ed for Phase 2. During this phase, Consultant will conduct a compliance review that includes some
or all these procedures:
1. Records. Provide the City with a detailed list of all records required from lodging providers,
together with a draft engagement announcement letter to be sent to each lodging provider.
2. Examine & Verif y . Review records pertaining to TOT for each lodging provider selected
for a compliance review and verify the accuracy of filed TOT returns with daily and
monthly activity summaries.
a. Review a random sample of the daily and monthly summari es to determine if
the daily summaries reconcile to the monthly summaries.
b. If Consultant believes such a review is necessary, review secondary and
tertiary documentation such as bank statements to verify that deposits
reconcile with the reported revenue on the TOT returns or other tax filings.
c. Review exempted revenue for proper supportin g documentation.
3. Compliance Report . Submit and review with the City a compliance review report that
includes:
a. All review findings;
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 14
b. Documentation for each error/omission identified and confirmed by
Consultant that is necessary to facilitate recovery of revenue due from
lodging providers for prior periods.
c. Draft notices of deficiency determination, commendation and warning
letters as applicable.
4. Findings. Assist the City in reviewing any matters submitted in extenuation and mitigation
by lodging providers in contesting a deficiency determination. Prepare and document any
changes to the compliance review findings and provide revised tax, interest or penalty
amounts due the City.
5. Consulting. During the term of this Agreement, provide up to ten (10) hours at City's
discretion of additional consulting time to assist the City in evaluating or implementing
any of the proposed actions suggested by the above report.
b) Consultant's Compliance Review for Short-term Rentals. If the City Council approves a short-
term-rental ordinance and such ordinance becomes effective, then Consultant's Compliance
Review for STR's shall begin one year after the Azusa City Council approves STR operations
in the City:
Phase 1: Short Term Rental (STR) Analysis and Phase 2: STR on-site Audit:
1. Identify short-term rentals within the City limits. Identify the reasons why an owner may
not be compl ying. This phase is designed to establish a comprehensive list of short-term
rentals currently out of compliance.
2. Identify data sources. Consultant shall use several for-fee and public-domain data sources
to establish the true geographical area of the City, identify the business community
participant s and gather important demographic information for those participants.
3. Integrate data with records in Consultant data warehou se. Consultant shall use its
enormous data warehouse containing to integrate the data collected for this project into the
warehouse, combining it with other records to complete the picture of each entity.
4. Data analysis. After Consultant has scrubbed and standardized the new data, Consultant
shall run the data through proprietary systems designed to identify potentially non-
compliant entities and cross check the data against the City's existing list of compliant
entities. Consultant shall continually analyze the output from Consu l tant 's proprietary
systems to ensure the identified entities match the target objectives.
5. Human factor. Once the Consultant 's system completes its' analysis, Consultant shall
refine the list further through human analysis. Consultant 's analysts will comb through the
output listing and conduct additional research to confirm, exclude or add additional entities
to the final list.
6. Short-Term rental owner's compliance. This phase of the project is the effort to bring non-
compliant entities into compliance. Consultant will approach each interaction with the
mindset that entities are most frequently out of compliance by mistake not by intention .
7. Contact entities. Consultant will contact non-compliant entities directly by phone and
through the mail to help them comply. Consultant has a three-stage letter campaign which
has proven effective accompanied by outreach by phone and email. Each letter
communicates the need for compliance and method s the entity may follow to comply. The
City will approve the letters for use in the campaign prior to launching the campaign .
8. Register entities. Consultant will assist each confirmed unregistered or non-reporting
entity, as necessary, to complete the City's applicable registration form(s) and determine
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 15
the amount of tax due for current and prior periods (plus applicable interest and penalties,
where appropriate.)
9. Customer Support. Consultant shall establish a call center open during City's normal
business hours to assist entities regarding questions concerning application of City's taxes
and the entity 's reporting and remittance requirem ents.
10. Educate entities. The final step is to help educate the short-term rental owners' community
about the rules, regulations and reporting requirements of having vocat ion rentals in the
City to help prevent recurring deficiencies in future years.
c) Report Deliverables
1. The Compliance Program -Audit - Phase 1. Consultant will provide the City with
a detailed analysis report identifying lodging providers who might require
additional investigation or review to determine their compliance with the City's
TOT ordinance.
2. The Compliance Program - Compliance Review - Phase 2. Consultant will provide
City staff with a detailed list of all record s 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. This Phase will include:
a. Consultant 's review of all findings;
b. For each identified and confirmed error/omission, Consultant will request
accompanying documentation that Consultant believes is necessary to
facilitate recovery of revenue due from lodging provider s for prior periods;
c. Draft notices of deficiency determination, commendation and warning letters
as applicable;
d. Recommendations within 30 days of completing all audit reviews, Consu lt ant
will provide a summary report of all findings to the City.
d) TOT Consultation
In addition to the Analysis, Audit and Compliance Review, Consultant will provide consultation
services to the City that will include the following, which are described in detail above:
1. Provide as-needed consultation services aimed at maintaining and enhancing the City's TOT
revenue base, covering such topics as: revenue forecasting assistance, revenue tracking
software, statewide trend s, specific opportunities and threats to the City.
2. Provide timely information regarding existing and proposed legislation that could affect
TOT revenues, specifi call y indicating how the City might be impacted.
3. Review City's TOT ordinance and provide feedback and suggestions as needed.
4. Review City's TOT remittance materials and make suggestions for improvement.
5. Train City staff on optimum remittance processing techniques to maximize accurate
compl i ance.
e) Included Support Services
1. Government Relations/Legislative and Policy Updates/Advocacy;
2. Consultant 's product and service offerings are complemented by a dedicated
Government Relations team that provides local government advocacy, policy,
City of Azusa TOT Transient Occupancy Tax Audit Services PSA/2021 16
regulatory and legislative consulting support and expertise;
Agreement No. 8765-19-FN
3. Policy Updates. Periodic legislative updates are included with Consultant government
relations service. Consultant publishes comprehensive legislative and regulatory
policy updates throughout the year which provides details on potential state and
federal legislation that might affect local government revenues. Consultant also
prepares advocacy documents t hat include "action alerts" and sample draft letters.
City of Azusa TOT PSA/2020 17
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant shall procure and maintain, for the Term of this Agreement, insurance against claims
for injuries to persons or damages to property which may arise from or in connection with the
performance of the work hereunder and the results of that work by the Consultant, its agents,
representatives, employees or subcontractors.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Commercial General Liability : Insurance Services Office Form CG 00 01 covering
commercial general liability insurance (“CGL”) on an “occurrence” basis, including
products and completed operations, property damage, bodily injury and personal &
advertising injury with limits no less than $1,000,000 per occurrence. If a general
aggregate limit applies, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be at least $2,000,000.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
Consultant has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit
no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with statutory limits,
and employer’s liability insurance with limit of no less than $1,000,000 per accident for
bodily injury or disease.
4. Professional Liability or Errors and Omissions: Errors and Omiss ions insurance
appropriate to the Consultant’s profession (“E&O Insurance”), with limit no less than
$1,000,000 per occurrence or claim, $2,000,000 aggregate.
If Consultant maintains higher limits than the minimums shown above, the City requires and shall
be entitled to coverage for the higher limits maintained by Consultant.
B. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its officers, officials, employees, agents, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of work or operations performed
by or on behalf of the Consultant including materials, parts or equipment furnished in connection
with such work or operations. General liability coverage can be provided in the form of an
endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or
both CG 20 10 and CG 20 37 forms if later revisions used).
City of Azusa TOT PSA/2020 18
Primary Coverage
For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary
insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any
insuranor self-insurance maintained by the City, its officers, officials, employees, agents, or
volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide an endorsement that they are not subject to
cancellation without thirty (30) days’ prior written notice to the City or ten (10) days’ prior written
notice for non-payment of premium.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said
Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of
subrogation, but this provision applies regardless of whether or n ot the City has received a
waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City
may require the Consultant to purchase coverage with a lower deductible or retention or provide
proof of ability to pay losses and related investigations, claim administration, and defense
expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII,
unless otherwise acceptable to the City. Such insurers shall be licensed to provide insurance under
California state law.
Claims Made Policies. For the E&O Insurance Policy and any other insurance providing
claims-made coverage (e.g., pollution liability insurance, if applicable):
1. The “Retroactive Date” must be shown and must be before the Effective Date.
2. Insurance must be maintained, and evidence of insurance must be provided for at
least three (3) years after completion of the work required under the Agreement.
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a Retroactive Date prior to the Agreement Effective Date,
the Consultant must purchase “extended reporting” coverage for a minimum of
three (3) years after completion of work.
City of Azusa TOT PSA/2020 19
Verification of Coverage
Consultant shall furnish the City with original cer tificates and amendatory endorsements or
copies of the applicable policy language effecting coverage required by this Agreement. All
certificates and endorsements are to be received and approved by the City before work
commences. However, failure to obtain the required documents prior to the work beginning
shall not waive the Consultant’s obligation to provide them. The City reserves the right to
require complete, certified copies of all required insurance policies, including endorsements
required by these specifications, at any time.
Cyber Liability Insurance
If Consultant will have access to the City’s databases or otherwise have access to electronic data
of the City that constitute personally identifiable information or data of any employee, customer,
citizen, voter or ratepayer, or pursuant to the Agreement shall receive such information directly
from customers, voters, or rate payers, Consultant shall maintain cyber liability insurance with
limits of not less than $1,000,000 for each occurrence and an annual aggregate of $2,000,000
covering claims involving privacy violations, information theft, damage to or destruction of
electronic information, intentional and/or unintentional release of private information, alteration
of electronic information, extortion and network security. Such coverage is required for any
professional services for which Consultant is engaged if the Consultant provides to the City any
products and/or services which involves or requires access to information technology (including
hardware and/or software) or other electronic data and for such length of time as necessary to cover
any and all claims. City shall inform Consultant if such insurance is required.
Contractors Pollution Liability and/or Asbestos Pollution Liability
If Consultant’s Scope of Services includes the handling or transportation of hazardous materials,
Consultant shall maintain pollution liability and/or asbestos pollution liability applicable to the
work being performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000
aggregate per policy period of one year. City shall inform Consultant if such insurance is required.
City of Azusa TOT PSA/2020 20
EXHIBIT C
COMPENSATION
TRANSIENT OCCUPANCY TAX AUDIT and COMPLIANCE SERVICES
Muni Services will provide the TOT service for a minimum fixed fee of $2,000 or a 25%
contingency fee of the additional revenue due to the City, whichever is greater. The 25%
contingency fee applies to the current tax year, all eligible prior period revenues, and any applicable
penalties, interest and late charges. The contingency fee applies to revenue due to the City whether
the City collects the fees or not from the lodging providers. The term "current tax year" will mean
the most recent tax year for which local taxes are due and payable to the City, and in which
MuniServices as identified deficiencies.
Additional Consulting Services
City may request that MuniServices provide additional consulting services at any time during term
of the Agreement. If MuniServices and the City agree on the scope of the 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 $200 per hour.
Depending on the personnel assigned to perform the work, MuniServices' standard hourly rates wil l
apply. The following are sample hourly rates based on the job classification:
• Principal: $200 per hour
• Project Manager: $175 per hour
• Client Services: $150 per hour
• Information Technology (IT) support: $175 per hour
• Operational Support:
o Director or Manager: $175 per hour
o Senior Analyst: $125 per hour
o Analyst: $100 per hour
Administrative: $75 per hour
These additional consulting services will be invoiced at least monthly based on actual time and
expenses incurred.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
1
PROFESSIONAL SERVICES AGREEMENT
By and Between
MuniServices, LLC
And
City of Azusa
Dated as of _________
Attachment 3
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
2
PROFESSIONAL SERVICES AGREEMENT
UTILITY USERS TAX (UUT) COMPLIANCE AUDIT
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into
this ______day of January, 2021 (the “Effective Date”), by and between the City of Azusa, a
California municipal corporation (the “City”) and MuniServices, LLC, (the “Consultant”). The City
and the Consultant are herein referred to, individually, as a “Party”, and, collectively, as the “Parties”.
City and Consultant agree as follows:
1.0 Services. Consultant, as an independent contractor, agrees to perform during the term of this
Agreement, each and every service described in the “Scope of Services” set forth on Exhibit A
to this Agreement (the “Scope of Services”). The initiation of service by the Consultant should
not commence until all of the following conditions have been satisfied:
(a) Consultant has furnished all of the insurance documents required by
Section 10.0 below; and
(b) Consultant has to furnish the W9 form to the City prior to the execution of the
agreement.
(c) To the extent that the Scope of Services involves more than one service,
Consultant shall perform the services only to the extent of the authorization
provided by the City Representative. The services of the Consultant shall
include the making of all investigations, studies, and analysis required by the
conditions involved in each request of the City Representative. The Scope of
Services shall not be modified without an amendment executed by the
authorized representatives of each Party.
1.1 Additional Services
Unless City and Consultant have agreed in writing before the performance of additional services
that are beyond the Scope of Services, City shall have no liability for such additional services and
Consultant shall have no right to claim compensation for such additional services or expenses.
The applicable hourly rates for authorized extra services shall be at the hourly rates set forth in the
Schedule of Compensation (Exhibit A) unless otherwise agreed to by the parties in writing.
2.0 Term of Agreement; Termination.
2.1 Term. The term of this Agreement is from the Effective Date until
_______________, unless earlier terminated herein; provided, however, that the
term of this Agreement may be renewed and extended annually by written
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
3
amendment executed by authorized representatives of each of the Parties or may
be earlier terminated as provided in Section 2.2 below (the “Term”).
2.2 Termination by City. The City may terminate any or all of the services agreed to
be performed under this Agreement (a) without cause, at any time during the
Term by giving the Consultant thirty (30) days’ notice in writing. Either party
may terminate this Agreement with cause, immediately upon giving the other
party written notice of such default or breach of this Agreement that is the basis
for the termination.
2.3 Effect of Termination. In the event of termination, Consultant shall have the right
and obligation to immediately assemble work in progress for the purpose of
closing out the job. All compensation for actual work performed and charges
outstanding based upon an hourly rate to-date of such work at $150 per hour at
the time of termination and shall be payable by City to Consultant within thirty
(30) days following submission and approval of a final invoice by Consultant
unless termination is for cause. In the event that such termination was for cause,
Consultant shall be compensated only to the extent required by law.
3.0 Compensation and Schedule of Compensation. The total compensation (including, but not
limited to all fees, expenses, reimbursements or other costs) payable by the City to the
Consultant under this Agreement shall not exceed the sum of _$25,000__annually (the “Cost
of Services”). Contingency fees paid to Consultant pursuant to City-specific audits shall not
be included in the Cost of Services. The Cost of Services shall not be increased without a
written amendment executed by the authorized representatives of each Party. Consultant shall
earn the compensation set forth in the Cost of Services in accordance with the “Schedule of
Compensation” as attached to this Agreement as Exhibit A. No payment for expenses, labor
or any other cost shall be paid to Consultant unless it is within the Scope of Services.
4.0 Personnel.
4.1 The staff person designated by Consultant to be the primary point of contact (the
“Representative”) for day-to-day performance of this Agreement shall be:
Laura Burnett
Client Services Manager
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
Phone: 805.990.2348
Email: Laura.Burnett@avenuinsights.com
Representative shall be a key member of Consultant’s firm, and shall be directly
involved in performing, supervising or assisting in the performance of the Scope of
Services under this Agreement. The Representative shall be the key person to
communicate with, and periodically report to, City on the progress of the work. The
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
4
Consultant may, from time to time, remove or replace the Representative designated
in this Agreement only with prior written consent by the City’s Designated Official.
4.2 The services to be performed by Consultant shall be accomplished under the
general direction of, and coordination with, the staff person designated by the
City serving as the representative (the “City Representative”). The City
Representative designated by the City for day-to-day administration of this
Agreement shall be:
Name: Richard Lam
Title: Budget Administrator
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
Phone: 626-812-5200, Ext 5481
The City may, from time to time, remove or replace the City Representative
designated in this Agreement by written notice to Consultant. The City
Representative has no authority to execute any amendments, consents or waivers on
behalf of the City.
4.3 With respect to matters that extend beyond the day-to-day administration of this
Agreement, the City designates Talika M. Johnson, The Administrative Services
Director, Administrative Services Department (the “Designated Official”) to
handle such matters.
Phone: (626) 812-5202
Email: TJohnson@azusaca.gov
5.0 Invoicing and Payment. Consultant shall provide City with written verification of the actual
compensation earned, which written verification shall be in a form reasonably satisfactory to
the City Representative. Invoices shall be made no more frequently than on a monthly basis
and no less frequently than every 60 days, and shall described in reasonable detail the work
performed (including a list of hours worked by personnel classification) together with any
receipts, invoices or other documentable expenses that are reimbursable under the Schedule
of Compensation. All payments shall be made within thirty (30) days after the issuance of
such invoice.
6.0 Standard of Skill. Consultant, and Consultant's officers, employees and agents, if any, are
skilled in the professional calling necessary to perform the work agreed to be done pursuant
to this Agreement. The work performed by Consultant shall be with the degree of skill and
diligence normally practiced in the industry for which Consultant is being retained by the
City. To the extent that Consultant’s industry is subject to guidelines, rules or other standards,
Consultant shall ensure that it complies with such guidelines, rules or other standards. The
acceptance of Consultant's work by the City shall not operate as a release of the Consultant
from such standard of care and workmanship.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
5
7.0 Independent Contractor. Consultant is retained and engaged by the City only to the extent
set forth in this Agreement, and the Consultant's relationship to the City is that of an
independent contractor. Consultant shall be free to dispose of all portions of Consultant's time
and activities which Consultant is not obligated to devote to the City in such a manner and to
such persons, firms, or corporations as the Consultant sees fit except as expressly provided in
this Agreement. Consultant shall not be considered to have the status of an employee under
this Agreement or be entitled to participate in any insurance, medical care, vacation, sick
leave, or other benefits provided for City's officers or employees. Consultant shall be solely
responsible for any workers compensation insurance, withholding taxes, unemployment
insurance, and any other employer obligations associated with the performance by the
Consultant (including any of its officers, employees or other agents) of its obligations under
this Agreement. Consultant has no authority to bind City in any manner or to incur any
obligation, debt or liability of any kind on behalf of or against City, whether by contract or
otherwise, unless such authority is expressly conferred under this Agreement or is otherwise
expressly conferred in writing by the City.
8.0 Hold Harmless and Indemnity. Consultant shall fully and promptly undertake its
obligations as set forth below:
8.1 Hold Harmless. To the fullest extent provided by law, Consultant holds City,
its elected officials, officers, agents, and employees, harmless from all of
Consultant's claims, demands, lawsuits, judgments, damages, losses, injuries
or liability to Consultant, to Consultant's employees, to Consultant’s
contractors or subcontractors, or to the owners of Consultant's firm, which
damages, losses, injuries or liability occur during the work required under this
Agreement, or occur while Consultant is on City property, or which are
connected, directly or indirectly, with Consultant's performance of any activity
or work required under this Agreement.
8.2 Defense and Indemnity. Consultant shall investigate, defend, and indemnify
City, its elected officials, officers, agents, and employees, from any claims,
lawsuits, demands, judgments, and all liability including, but not limited to,
monetary or property damage, lost profit, personal injury, wrongful death,
general liability, automobile, infringement of any intellectual property rights
(including, copyright, patent and trademark), or professional errors and
omissions arising out of, directly or indirectly, any error, negligence,
recklessness, or omission of Consultant or any of Consultant’s officers, agents,
employees, representatives, sub-consultants, or subcontractors, or the willful
misconduct of Consultant or any of Consultant’s officers, agents, employees,
representatives, sub-consultants, or subcontractors, in performing the services
described in, or normally associated with, the work required under this
Agreement, or breach by Consultant of this Agreement. The duty to defend
shall include any suits or actions concerning any activity, product or work
required under this Agreement, and also include the payment of all court costs,
attorney fees, expert witness costs, investigation costs, claims adjusting costs
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
6
and any other costs required for and related thereto.
8.3 No Waiver. City does not waive, nor shall be deemed to have waived, any
indemnity, defense or hold harmless rights under this section because of the
acceptance by City, or the deposit with City, of any insurance certificates or
policies described in Section 10.0 below.
9.0 Correction or Re-Performance of Work. If City believes that any of the work performed
under this Agreement does not comply with the terms of this Agreement, City may deliver
notice to Consultant. Such City’s notice shall describe how the work performed, including
any deliverables resulting from such work, does not meet the requirements of this
Agreement, including failure to meet the applicable standard of care set forth in Section 6.0
and, upon City’s sole discretion, may also make a request for Consultant to re-perform the
services. If City requests Consultant to re-perform services, Consultant shall promptly re-
perform the services at no additional cost to City in a reasonably timely manner. Should
Consultant fail to make such correction or re-performance, the cost thereof shall be
withheld from any funds due to Consultant hereunder or charged to Consultant with such
amounts to be paid by Consultant within thirty (30) days of receipt of such invoice.
10.0 Insurance.
10.1 Insurance Coverage. Consultant shall maintain, throughout the Term, the
insurance coverage set forth in the “Insurance Requirements” as attached to this
Agreement as Exhibit B.
10.2 Delivery of Certificates of Insurance and Endorsements. Prior to the
commencement of any work by Consultant under this Agreement, Consultant
shall provide the City with copies of certificates (on an Accord form as modified
per City direction) for all policies together with the appropriate endorsements
required in Exhibit B. At the request of the City, Consultant shall deliver a copy
of its insurance policies.
10.3 Failure to Maintain Insurance. If Consultant receives a cancellation notice of any
insurance required by this Agreement, Consultant shall, within one day of receipt,
forward said notice to City Representative. If Consultant at any time during the
Term of this Agreement, should fail to secure or maintain any insurance required
under this Agreement, the City shall be permitted to obtain such insurance in the
Consultant's name or as an agent of the Consultant and shall be compensated by
the Consultant for the cost of the insurance premiums at the maximum rate
permitted by law computed from the date written notice is received that the
premiums have been paid. Such costs can be assessed by deducting such costs
from any amounts due and payable to the Consultant as compensation under the
terms of this Agreement.
11.0 Work Product.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
7
11.1 Deliverables. Consultant shall deliver to the City the studies, plans,
specifications, drawings, photographs, maps, videos, records, designs, data,
reports, documents or other work products as are identified in the Scope of
Services (“Work Product”). The City may also request, and Consultant shall
provide to City, copies of all other information developed in the course of the
Consultant’s performance of this Agreement. Consultant shall, in such time and
in such form as the City may require, furnish reports concerning the status of
services required under this Agreement. Consultant shall, upon request by City
and upon completion or termination of this Agreement, deliver to the City all
Work Product produced by the Consultant. Consultant represents and warrants
that upon delivery of the Work Product, such Work Product shall be free of all
liens, security interests or any other encumbrances.
11.2 Ownership. Each and every item that constitutes Work Product produced,
prepared, or caused to be prepared by the Consultant pursuant to or in connection
with this Agreement shall be the exclusive property of the City.
12.0 Confidentiality.
12.1 Non-Disclosure Exemptions. Consultant may be granted access to information
that is exempt from disclosure to the public and may contain “trade secrets” when
it is necessary for Consultant to perform its obligations pursuant to this
Agreement. If Consultant is granted such access to confidential information,
Consultant shall not be considered to be a member of the public as that term is
used in the California Public Records Act.
12.2 Confidentiality Obligation. Consultant shall not disclose, publish, or authorize
others to disclose or publish, design data, drawings, specifications, reports, or
other information pertaining to the projects assigned to Consultant by the City
or other information to which the Consultant has had access during the Term
of this Agreement without the prior written consent of the Designated Official
during the Term of this Agreement and this obligation shall survive for a period
of two (2) years after the termination of this Agreement. Notwithstanding the
foregoing, the confidentiality obligations imposed by this Agreement shall
survive as to any of the following information (a) a trade secret under
applicable law for so long as such information constitutes a trade secret
thereunder, (b) each utility customer’s “data” under applicable law unless
Consultant has secured such customer’s express, written consent to release of
such customer’s information, (c) any information classified by City as “critical
infrastructure information” or “protected critical infrastructure information” or
“protected system,” or (d) any other documentation that has been identified as
confidential by City until City has advised Consultant in writing that such
information may be released.
13.0 Acceptance of Final Payment by Consultant. The acceptance by Consultant of the final
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
8
payment made under this Agreement shall release City from all claims and liabilities for
compensation to or for the benefit of Consultant for anything done, furnished, or relating
to Consultant's work or services. Acceptance of payment shall be any negotiation of City's
check or the failure to make a written extra compensation claim within 10 calendar days of
the receipt of that check; provided, however, approval or payment by City shall not
constitute, nor be deemed, a release of the responsibility and liability of Consultant, its
employees, agents, subcontractors and subconsultants for the satisfactory performance,
accuracy and/or competency of the information provided and/or work performed by
Consultant; nor shall such approval or payment be deemed to be an assumption of such
responsibility or liability by City for any defect or error in the work prepared by Consultant,
its employees, agents, subcontractors and subconsultants.
14.0 Records. Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts, and other such information required by the City, the Designated Official
or the City Representative. Consultant shall maintain adequate records on services provided
in sufficient detail to permit an evaluation of services. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Consultant shall provide access to the Designated Official or designees
at all proper times to such books and records, and gives the Designated Official or designees
the right to examine and audit such books and records and to make transcripts as necessary,
and to allow inspection of all work, data, documents, proceedings, and activities related to this
Agreement. Consultant shall maintain such records for at least four years after the termination
or final payment under this Agreement, whichever is later.
15.0 Conflict of Interest. Consultant agrees to be familiar with and comply with all applicable
federal, state and local conflict of interest laws. Consultant represents and warrants that it is
unaware of any City employee or official that has a financial interest in Consultant's
business. During the Term of this Agreement and/or as a result of being awarded this
Agreement, Consultant shall not offer or accept any financial interest in Consultant's
business by any City employee or official.
16.0 Payee Registration Form. City shall provide a W-9 Form to Consultant and Consultant shall
deliver a completed W-9 form to the City. Consultant acknowledges that this form is
necessary for the City to process any payment for services hereunder.
17.0 Non-Appropriation of Funds. Payments due and payable to Consultant for current
services are within the current annual budget and within an available, unexhausted and
unencumbered appropriation of City funds. In the event City has not appropriated
sufficient funds for payment of Consultant services beyond the current fiscal year, this
Agreement shall cover only those costs incurred up to the conclusion of the current fiscal
year.
18.0 Compliance with Laws. Consultant agrees to perform all of its obligations under this
Agreement in accordance with all applicable federal, state and local laws, rules and
regulations. This obligation shall include, but is not limited to, the following requirements set
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
9
forth below:
18.1 Permits and Licenses. Consultant, at its sole expense, shall obtain and maintain
during the Term of this Agreement, all appropriate permits, licenses, and
certificates that may be required in connection with the performance of services
under this Agreement.
18.2 Anti-Terrorism Laws; Sanctions. The Consultant represents and warrants that:
(1) it is not a person described or designated in the Specially Designated Nationals and
Blocked Persons List of the Office of Foreign Assets Control, United States
Department of the Treasury or in Section 1 of Executive Order No. 13,224, 66 Fed.
Reg. 49,079 (2001), issued by the President of the United States of America
(Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism);
(2) it does not engage in any dealings or transactions with any such persons described
above; and
(3) is not otherwise blocked, subject to sanctions under or engaged in any activity in
violation of other United States economic sanctions, including but not limited to,
Trading with the Enemy Act, the International Emergency Economic Powers Act,
Accountability and Divestment Act or any other similar law or regulation with respect
to any country, the Sudan Accountability and Divestment Act, any OFAC Sanctions
Program, or any economic sanctions regulations administered and enforced by the
United States or any enabling legislation or executive order relating to any of the
foregoing.
19.0 Meet and Confer. The Parties agree to meet and confer concerning all claims, disputes
or other matters in question between the Parties arising out of or relating to this Agreement or
breach thereof prior to the institution of any litigation.
20.0 Waiver; Remedies Cumulative. Failure by a Party to insist upon the strict performance of
any of the provisions of this Agreement by the other Party, irrespective of the length of
time for which such failure continues, shall not constitute a waiver of such Party's right to
demand strict performance by such other Party in the future. No waiver by a Party of a
default or breach of the other Party shall be effective or binding upon such Party unless
made in writing by such Party, and no such waiver shall be implied from any omissions by
a Party to take any action with respect to such default or breach. No express written waiver
of a specified default or breach shall affect any other default or breach, or cover any other
period of time, other than any default or breach and/or period of time specified. All of the
remedies permitted or available to a Party under this Agreement, or at law or in equity,
shall be cumulative and alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or available
right or remedy.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
10
21.0 Integrated Agreement; Construction. This Agreement, including any exhibit, schedule
or addendum attached hereto, supersedes any other agreements, either oral or in writing,
between the parties hereto with respect to the rendering of services hereunder, and contains
all of the covenants and agreements between the Parties with respect to said services. The
provisions of this Agreement shall be construed as a whole according to its common
meaning of purposes of providing a public benefit and not strictly for or against any Party.
No verbal agreement or implied covenant shall be held to vary the provisions of this
Agreement. In the event an inconsistency arises between any attachments (including any
exhibit, schedule or addendum) and any term of this Agreement, the terms of this Agreement
shall prevail. This Agreement shall bind and inure to the benefit of the Parties to this
Agreement and any subsequent permitted successors and assigns.
22.0 Amendment; Modification. This Agreement may only be amended or otherwise modified
upon written mutual agreement of each of the authorized representatives of the Parties.
23.0 Assignment. This Agreement is personal to the Consultant and may not be assigned without
the prior written approval of the Designated Official. Notwithstanding the foregoing, any
assignment in violation of this Section by the Consultant is voidable in the City’s sole
discretion.
24.0 Use of the Term “City.” Reference to “City” in this Agreement in cludes City Manager
or any authorized representative acting on behalf of City.
25.0 Severability. If any part, term, or provision of this Agreement shall be held illegal,
unenforceable, or in conflict with any law of a federal, state, or local governmental entity
having jurisdiction over this Agreement, the validity of the remaining portions or provisions
shall not be affected by such holding.
26.0 Execution Counterparts. This Agreement may be executed in any number of counterparts
and each such duplicate counterpart shall constitute an original, any one of which may be
introduced in evidence or used for any other purpose without the production of its duplicate
counterpart. Moreover, notwithstanding that any of the Parties did not execute the same
counterpart, each counterpart shall be deemed for all purposes to be an original, and all such
counterparts shall constitute one and the same instrument, binding on all of the Parties hereto.
Facsimile transmission and/or validated electronic transmission to one Party of a true copy of
a counterpart duly executed by the other Party shall constitute valid delivery of such
counterpart.
27.0 Governing Law. The terms of this Agreement shall be interpreted according to the laws of
the State of California. The Parties agree and consent to the jurisdiction of the state and federal
courts of competent jurisdiction exclusively in the County of Los Angeles, California.
28.0 Survival. The provisions of Sections 8, 9, 10 and 12.0, shall survive for a period of four years
following the termination or expiration of this Agreement, whichever is later.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
11
29.0 Notices. Any written notice required by this Agreement shall be given by depositing such
notice in the United States mail, postage prepaid or by personal delivery, and addressed as
follows:
TO CITY:
The City of Azusa
Administrative Services Department
Attention: Richard Lam
Address: 213 E, Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
With a copy to:
The City of Azusa
Administrative Services Department
Attention: Talika M. Johnson
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: tjohnson@azusaca.gov
TO CONSULTANT:
MuniServices, LLC
Attention: Laura Burnett
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
With a copy to:
MuniServices, LLC
5860 Trinity Parkway, Suite 120
Centreville VA 20120
Attention: Contracts Dept.
Email: contracts@avenuinsights.com
All notices shall be effective upon deposit in the mail, as specified above, or personal delivery.
Either Party may change the specified person or address at which it is to receive notices by so
advising the other Party in writing.
30.0 Safety Requirement. To the extent that Consultant performs any work on premises owned
or leased by the City, the Consultant agrees that it shall comply with this Section. All work
under this Agreement shall be performed in such a manner as to provide safety to the public
and to meet or exceed the safety standards outlined by CAL-OSHA. The City reserves the
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
12
right to issue restraint or cease and desist orders to the Consultant when unsafe or harmful
acts are observed or reported relative to the performance of the work under this Agreement.
The Consultant shall maintain the work sites free of hazards to persons and property resulting
from its operations. Any hazardous condition noted by the Consultant, which is not the result
of his operations, should immediately be reported to the City Representative.
31.0 Copyright. In the event Consultant creates an original work product as part of the Scope
of Services (“work product”), Consultant agrees that work product is a work made for hire.
Consultant acknowledges that he/she received consideration for this work product and has
no copyright interest in any of the work product, or in any copyright related to the work
product. For example work product may involve: illustrations and graphic design services,
digital and print branding services, photographs, Meta Tags, text, photographs whether
edited or not, and other graphic images, appearing on the web sites or other applicable
medium, domain names, log-in credentials for social media and other on-line electronic
platforms. Further, if this Agreement is found by any court or other jurisdiction to not be
a work-for–hire as defined in 17 U.S.C. § 101, then Consultant hereby transfers any and
all interest of the copyright(s) in the work product to City. This transfer and assignment are
irrevocable and in perpetuity.
Further, Consultant represents and warrants: 1) that all work product shall be original and
not subject to any other ownership claims by third parties, and 2) if applicable, that consent
by individuals depicted in any work product have been obtained and written releases will
be delivered to City prior to the completion of the Scope of Services. Consultant
indemnifies and defends City as to any damages arising out of or relating to a breach of
this warranty and representation.
If applicable, Consultant agrees to provide all log-in credentials for social media and other on-line
electronic platforms to City within ten (10) days of establishing same, which shall allow City at
any time with the ability to access, utilize and maintain the social media account or electronic
on-line platform, should City choose to do so. In any event, upon the conclusion of Consultant’s
services, Consultant shall no longer utilize any log-in credentials or electronic on-line platforms.
32.0 Prevailing Wages. To the extent that the Consultant performs any work described in
California Labor Code Section 1720(a)(1), including, but not limited to, inspection and land
surveying work, Consultant agrees that it shall comply with this Section. The Consultant, and
any subcontractor or subconsultant working on behalf of the Consultant with respect to this
Agreement, is required to pay not less than the established prevailing rates of wages to all
workers employed in the execution of this Agreement, and Consultant shall comply with all
other requirements applicable to Public Works Construction as specified in the California
Labor Code and/or Davis Bacon Act, if federal money is funding any part of this Agreement.
Furthermore, Consultant must register as a public works contractor with the California
Department of Industrial Relations, if the compensation under this Agreement is greater than
$25,000.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
13
[SIGNATURE PAGE FOLLOWS]
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
14
In recognition of the obligations stated in this Agreement, the Parties have executed this
Agreement on the date indicated above.
"CONSULTANT"
MUNISERVICES, LLC.
____________________________
Signature
_________________________
Name (Please Print)
__________________________
Title
__________________________
Date
"CITY"
[CUSTOMER NAME]
_____________________________
Signature
______________________________
Name (Please Print)
_______________________________
Title
__________________________
Date
1/13/2021
CFO
Mike Melka
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
15
EXHIBIT A
SCOPE OF SERVICES
Consultant shall perform the following services for the benefit of the City:
Utility Users’ Tax Compliance Auditing
MuniServices (“Consultant”) agrees to provide the City with certain professional services in
furtherance of a comprehensive Utility Users’ Tax (“UUT”) audit compliance services.
Article 1-Objectives
Consultant’s UUT Program, as described below, will provide a broad range of compliance,
administrative and protective services (including the legal expertise of Consultant’s staff) that
will allow the City to preserve, protect and enhance their UUT revenues focusing on these areas:
• Compliance
• Administrative
• Revenue Protection and Enhancement
City-Specific UUT Compliance Auditing Reviews
In the course of performing the various preliminary UUT compliance activities, Consultant
may discover discrepancies or other evidence indicative of non-compliance. Consultant may
thereupon advise the City that it may be prudent to conduct a city-specific compliance review
of a particular service provider or taxpayer, or specific issue relating to such service provider
or taxpayer. The City may authorize such city-specific compliance audit actions as provided
for within this Agreement for UUT purposes:
Scope of Work
At any time during the term of this Agreement, with the prior mutual consent of the City and
Consultant, Consultant may perform a city-specific audit of a particular service utility provider
related to UUT payments. The focus of the city-specific audit is the compliance of said utility
provider with the City’s UUT agreement or the providers’ state certificate for any utility
franchise(s). The City and Consultant shall discuss the parameters of the proposed city-specific
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
16
audit(s) and shall agree upon which of the following shall be included in the city-specific audit:
1. Documentation
a. Submit Audit Notification Letter along with a Letter of Authorization (LOA)
from the City.
b. If necessary, attempt to obtain a waiver on the Statute of Limitations for the
audit.
c. Submit a Request for Information (RFI) outlining the information needed to
complete the audit to the Provider(s). If necessary, the City may issue a
subpoena to the Provider(s) to obtain the needed information to complete
the audit.
2. Review and Analysis
a. Review the work papers and supporting documentation used in the
computation of the UUT payments.
b. Compare the utility provider’s payments, exclusions and other computations
as related to the UUTs. Compare the actual payments made to the City for
timeliness and accuracy.
c. Review and analyze the provider’s general ledger and financial statements.
Compare and analyze the data for reasonableness, completeness, and
accuracy as related to the UUT.
d. Review and analyze the Provider’s major revenue accounts in detail to:
i. Determine revenues that are to be included or excluded from the UUT
computations.
ii. Review the revenues excluded from the computations, if any.
iii. Determine whether exclusions are permitted by the City’s ordinance or
any applicable franchise(s).
e. Analyze the number of customers reported in the City by rate classification
and obtain and review the utility provider’s procedures to code new
customers to the proper jurisdictions and the procedures used to address
annexations.
3. Exemption Review
a. Obtain and review the list of any exempted customers, if any, from the UUT
computations.
b. The schedules should include a composition of the number of subscribers, by
month, for each of the calendar years included in the review period.
4. Geo-Code Review
a. Sample test the geo-coding system by selecting customer accounts within the
City boundaries and in the immediate vicinity to review if those accounts are
properly coded as assessed. Consultant will request that the utility provider
provide the customer account information in an electronic format for all
customers located in the City and surrounding areas.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
17
b. Consultant will concentrate the sampling in problematic geographical areas,
such as those that might overlap with a neighboring city or where multiple
zip codes exist.
c. Consultant will also sample test heavily in the area of annexations to ensure
that proper procedures are in place to identify and properly code these areas
within the Franchisee’s system.
5. Exit Interview
a. Conduct an Exit Interview with the utility provider to review findings and
obtain the provider’s position on the issues identified during the review.
b. Seek to obtain an agreement and/or payment of any amounts due to the City
(to be sent directly to the City).
6. Reports
a. Prepare a written report with findings that describe and explain the
following:
i. Results of Consultant’ review
ii. Potential additional monies due to the City
iii. Provider’s position of the issues
iv. Any applicable penalties and interest
b. Provide any and all necessary schedules and supporting documents to assist
the City in collecting any underpaid UUTs.
Article 2-Compensation
A. Compensation for City-Specific Compliance Audit Review Services
1. With the exception noted in subsection (2) below, with respect to a City-specific UUT audit
compliance reviews, Consultant shall be entitled to contingent fee compensation where
Consultant’ compliance audit review activities result in the City receiving additional
revenues from such City-specific compliance review activity. Accordingly, the City shall
pay Consultant twenty-five (25%) percent of the additional revenues, including interest,
and penalties that result from its City-specific compliance audit review activities.
Consultant will seek to recover or assist the City in recovering all revenue due the City
from prior periods, but if additional services are required for collections then the City and
Consultant agree to negotiate in good faith on additional compensation therefore
Consultant. Consultant shall still be due its full contingency fee based upon the final audit
report approved by the City, including if the City elects to waive or settle any amounts due
which were approved pursuant to the audit, and which were deemed lawfully due.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
18
2. Notwithstanding subsection1 above, nothing herein shall prohibit the parties from entering
into a written agreement on compensation for City-specific compliance audit review
services on a fixed-fee or any other separately negotiated basis.
3. Consultant compensation is due and payable within thirty (30) days of the City’s receipt
and approval of Consultant’s final audit report.
B. Additional Consulting
The City may request that Consultant provide additional consulting services at any time during the
term of the Agreement. If Consultant and the City agree on the scope of the additional consulting
services requested, then Consultant shall provide the additional consulting on a Time and Materials
basis. Depending on the personnel assigned to perform the work, Consultant’ standard hourly rates
range from $75 per hour to $200 per hour.
Depending on the personnel assigned to perform the work, Consultant hourly rates shall apply
based on the job classification as follows:
• Principal: $200 per hour
• Project Manager: $175 per hour
• Client Services: $150 per hour
• Information Technology (IT) support: $175 per hour
• Operational Support:
o Audit Director or Managing Consultant: $175 per hour
o Senior Auditor: $125 per hour
o Analyst: $100 per hour
o Administrative: $75 per hour
These additional consulting services will be invoiced at least monthly based on actual time and
expenses incurred. All reimbursable expenses shall receive prior approval from the City and shall
be reimbursed at cost to Consultant.
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
19
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant shall procure and maintain, for the Term of this Agreement, insurance against claims
for injuries to persons or damages to property which may arise from or in connection with the
performance of the work hereunder and the results of that work by the Consultant, its agents,
representatives, employees or subcontractors.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Commercial General Liability : Insurance Services Office Form CG 00 01 covering
commercial general liability insurance (“CGL”) on an “occurrence” basis, including
products and completed operations, property damage, bodily injury and personal &
advertising injury with limits no less than $1,000,000 per occurrence. If a general
aggregate limit applies, either the gen eral aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be at least $2,000,000.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
Consultant has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit
no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with statutory limits,
and employer’s liability insurance with limit of no less than $1,000,000 per accident for
bodily injury or disease.
4. Professional Liability or Errors and Omissions: Errors and Omissions insurance
appropriate to the Consultant’s profession (“E&O Insurance”), with limit no less than
$1,000,000 per occurrence or claim, $2,000,000 aggregate.
If Consultant maintains higher limits than the minimums shown above, the City requires and shall
be entitled to coverage for the higher limits maintained by Consultant.
B. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its officers, officials, employees, agents, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of work or operations performed
by or on behalf of the Consultant including materials, parts or equipment furnished in connection
with such work or operations. General liability coverage can be provided in the form of an
endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
20
both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary
insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any
insuranor self-insurance maintained by the City, its officers, of ficials, employees, agents, or
volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide an endorsement that they are not subject to
cancellation without thirty (30) days’ prior written notice to the City or ten (10) days’ prior written
notice for non-payment of premium.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said
Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be neces sary to affect this waiver of
subrogation, but this provision applies regardless of whether or not the City has received a
waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City
may require the Consultant to purchase coverage with a lower deductible or retention or provide
proof of ability to pay losses and related investigations, claim administration, and defense
expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII,
unless otherwise acceptable to the City. Such insurers shall be licensed to provide insurance under
California state law.
Claims Made Policies. For the E&O Insurance Policy and any other insurance providing
claims-made coverage (e.g., pollution liability insurance, if applicable):
1. The “Retroactive Date” must be shown and must be before the Effective Date.
2. Insurance must be maintained, and evidence of insurance must be provided for at
least three (3) years after completion of the work required under the Agreement.
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a Retroactive Date prior to the Agreement Effective Date,
City of Azusa UUT Compliance Audit and Discovery Services PSA/2021
21
the Consultant must purchase “extended reporting” coverage for a minimum of
three (3) years after completion of work.
Verification of Coverage
Consultant shall furnish the City with original certificates and amendatory endorsements or
copies of the applicable policy language effecting coverage required by this Agreement. All
certificates and endorsements are to be received and approved by the City before work
commences. However, failure to obtain the required documents prior to the work beginning
shall not waive the Consultant’s obligation to provide them. The City reserves the right to
require complete, certified copies of all required insurance policies, including endorsements
required by these specifications, at any time.
Cyber Liability Insurance
If Consultant will have access to the City’s databases or otherwise have access to electronic data
of the City that constitute personally identifiable information or data of any employee, customer,
citizen, voter or ratepayer, or pursuant to the Agreement shall receive such information directly
from customers, voters, or rate payers, Consultant shall maintain cyber liability insurance with
limits of not less than $1,000,000 for each occurrence and an annual aggregate of $2,000,000
covering claims involving privacy violations, information theft, damage to or destruction of
electronic information, intentional and/or unintentional release of private information, alteration
of electronic information, extortion and network security. Such coverage is required for any
professional services for which Consultant is engaged if the Consultant provides to the City any
products and/or services which involves or requires access to information technology (including
hardware and/or software) or other electronic data and for such length of time as necessary to cover
any and all claims. City shall inform Consultant if such insurance is required.
Contractors Pollution Liability and/or Asbestos Pollution Liability
If Consultant’s Scope of Services includes the handling or transportation of hazardous materials,
Consultant shall maintain pollution liability and/or asbestos pollution liability applicable to the
work being performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000
aggregate per policy period of one year. City shall inform Consultant if such insurance is required.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
1
PROFESSIONAL SERVICES AGREEMENT
By and Between
MuniServices, LLC
And
City of Azusa
Dated as of _________
Attachment 4
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
2
PROFESSIONAL SERVICES AGREEMENT
FOR STATE VIDEO FRANCHISE FEE AND PEG SUPPORT FEE AUDITS
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into
this ______day of January, 2021 (the “Effective Date”), by and between the City of Azusa, a
California municipal corporation (the “City”) and MuniServices, LLC, (the “Consultant”). The City
and the Consultant are herein referred to, individually, as a “Party”, and, collectively, as the
“Parties”.
City and Consultant agree as follows:
1.0 Services. Consultant, as an independent contractor, agrees to perform during the term of this
Agreement, each and every service described in the “Scope of Services” set forth on Exhibit A
to this Agreement (the “Scope of Services”). The initiation of service by the Consultant should
not commence until all of the following conditions have been satisfied:
(a) Consultant has furnished all of the insurance documents required by
Section 10.0 below; and
(b) Consultant has to furnish the W9 form to the City prior to the execution of the
agreement.
(c) To the extent that the Scope of Services involves more than one service,
Consultant shall perform the services only to the extent of the authorization
provided by the City Designated Representative. The services of the
Consultant shall include the making of all investigations, studies, and analysis
required by the conditions involved in each request of the City Representative.
The Scope of Services shall not be modified without an amendment executed
by the authorized representatives of each Party.
1.1 Additional Services
Unless City and Consultant have agreed in writing before the performance of additional services
that are beyond the Scope of Services, City shall have no liability for such additional services and
Consultant shall have no right to claim compensation for such additional services or expenses.
The applicable hourly rates for authorized extra services shall be at the hourly rates set forth in the
Schedule of Compensation (Exhibit A) unless otherwise agreed to by the parties in writing.
2.0 Term of Agreement; Termination.
2.1 Term. The term of this Agreement is from the Effective Date until
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
3
_______________, unless earlier terminated herein; provided, however, that the
term of this Agreement may be renewed and extended annually by written
amendment executed by authorized representatives of each of the Parties or may
be earlier terminated as provided in Section 2.2 below (the “Term”).
2.2 Termination by City. The City may terminate any or all of the services agreed to
be performed under this Agreement (a) without cause, at any time during the
Term by giving the Consultant thirty (30) days’ notice in writing. Either party
may terminate this Agreement with cause, immediately upon giving the other
party written notice of such default or breach of this Agreement that is the basis
for the termination.
2.3 Effect of Termination. In the event of termination, Consultant shall have the right
and obligation to immediately assemble work in progress for the purpose of
closing out the job. All compensation for actual work performed and charges
outstanding based upon an hourly rate to-date of such work at $150 per hour at
the time of termination and shall be payable by City to Consultant within thirty
(30) days following submission and approval of a final invoice by Consultant
unless termination is for cause. In the event that such termination was for cause,
Consultant shall be compensated only to the extent required by law.
3.0 Compensation and Schedule of Compensation. The total compensation (including, but not
limited to all fees, expenses, reimbursements or other costs) payable by the City to the
Consultant under this Agreement shall not exceed the sum of ___$25,000__ annually (the
“Cost of Services”). Contingency fees paid to Consultant pursuant to City-specific audits shall
not be included in the Cost of Services. The Cost of Services shall not be increased without a
written amendment executed by the authorized representatives of each Party. Consultant shall
earn the compensation set forth in the Cost of Services in accordance with the “Schedule of
Compensation” as attached to this Agreement as Exhibit A. No payment for expenses, labor
or any other cost shall be paid to Consultant unless it is within the Scope of Services.
4.0 Personnel.
4.1 The staff person designated by Consultant to be the primary point of contact (the
“Representative”) for day-to-day performance of this Agreement shall be:
Laura Burnett
Client Services Manager
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
Phone: 805.990.2348
Email: Laura.Burnett@avenuinsights.com
Representative shall be a key member of Consultant’s firm, and shall be directly
involved in performing, supervising or assisting in the performance of the Scope of
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
4
Services under this Agreement. The Representative shall be the key person to
communicate with, and periodically report to, City on the progress of the work. The
Consultant may, from time to time, remove or replace the Representative designated
in this Agreement only with prior written consent by the City’s Designated Official.
4.2 The services to be performed by Consultant shall be accomplished under the
general direction of, and coordination with, the staff person designated by the
City serving as the representative (the “City Representative”). The City
Representative designated by the City for day-to-day administration of this
Agreement shall be:
Name: Richard Lam
Title: Budget Administrator
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
Phone: 626-812-5200 Ext 5481
The City may, from time to time, remove or replace the City Representative
designated in this Agreement by written notice to Consultant. The City
Representative has no authority to execute any amendments, consents or waivers on
behalf of the City.
4.3 With respect to matters that extend beyond the day-to-day administration of this
Agreement, the City designates Talika M. Johnson_, The Administrative
Services Director, Administrative Services Department (the “Designated
Official”) to handle such matters.
Phone: (626) 812-5202
Email: TJohnson@azusaca.gov
5.0 Invoicing and Payment. Consultant shall provide City with written verification of the actual
compensation earned, which written verification shall be in a form reasonably satisfactory to
the City Representative. Invoices shall be made no more frequently than on a monthly basis
and no less frequently than every 60 days, and shall described in reasonable detail the work
performed (including a list of hours worked by personnel classification) together with any
receipts, invoices or other documentable expenses that are reimbursable under the Schedule
of Compensation. All payments shall be made within thirty (30) days after the issuance of
such invoice.
6.0 Standard of Skill. Consultant, and Consultant's officers, employees and agents, if any, are
skilled in the professional calling necessary to perform the work agreed to be done pursuant
to this Agreement. The work performed by Consultant shall be with the degree of skill and
diligence normally practiced in the industry for which Consultant is being retained by the
City. To the extent that Consultant’s industry is subject to guidelines, rules or other standards,
Consultant shall ensure that it complies with such guidelines, rules or other standards. The
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
5
acceptance of Consultant's work by the City shall not operate as a release of the Consultant
from such standard of care and workmanship.
7.0 Independent Contractor. Consultant is retained and engaged by the City only to the extent
set forth in this Agreement, and the Consultant's relationship to the City is that of an
independent contractor. Consultant shall be free to dispose of all portions of Consultant's time
and activities which Consultant is not obligated to devote to the City in such a manner and to
such persons, firms, or corporations as the Consultant sees fit except as expressly provided in
this Agreement. Consultant shall not be considered to have the status of an employee under
this Agreement or be entitled to participate in any insurance, medical care, vacation, sick
leave, or other benefits provided for City's officers or employees. Consultant shall be solely
responsible for any workers compensation insurance, withholding taxes, unemployment
insurance, and any other employer obligations associated with the performance by the
Consultant (including any of its officers, employees or other agents) of its obligations under
this Agreement. Consultant has no authority to bind City in any manner or to incur any
obligation, debt or liability of any kind on behalf of or against City, whether by contract or
otherwise, unless such authority is expressly conferred under this Agreement or is otherwise
expressly conferred in writing by the City.
8.0 Hold Harmless and Indemnity. Consultant shall fully and promptly undertake its
obligations as set forth below:
8.1 Hold Harmless. To the fullest extent provided by law, Consultant holds City,
its elected officials, officers, agents, and employees, harmless from all of
Consultant's claims, demands, lawsuits, judgments, damages, losses, injuries
or liability to Consultant, to Consultant's employees, to Consultant’s
contractors or subcontractors, or to the owners of Consultant's firm, which
damages, losses, injuries or liability occur during the work required under this
Agreement, or occur while Consultant is on City property, or which are
connected, directly or indirectly, with Consultant's performance of any activity
or work required under this Agreement.
8.2 Defense and Indemnity. Consultant shall investigate, defend, and indemnify
City, its elected officials, officers, agents, and employees, from any claims,
lawsuits, demands, judgments, and all liability including, but not limited to,
monetary or property damage, lost profit, personal injury, wrongful death,
general liability, automobile, infringement of any intellectual property rights
(including, copyright, patent and trademark), or professional errors and
omissions arising out of, directly or indirectly, any error, negligence,
recklessness, or omission of Consultant or any of Consultant’s officers, agents,
employees, representatives, sub-consultants, or subcontractors, or the willful
misconduct of Consultant or any of Consultant’s officers, agents, employees,
representatives, sub-consultants, or subcontractors, in performing the services
described in, or normally associated with, the work required under this
Agreement, or breach by Consultant of this Agreement. The duty to defend
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
6
shall include any suits or actions concerning any activity, product or work
required under this Agreement, and also include the payment of all court costs,
attorney fees, expert witness costs, investigation costs, claims adjusting costs
and any other costs required for and related thereto.
8.3 No Waiver. City does not waive, nor shall be deemed to have waived, any
indemnity, defense or hold harmless rights under this section because of the
acceptance by City, or the deposit with City, of any insurance certificates or
policies described in Section 10.0 below.
9.0 Correction or Re-Performance of Work. If City believes that any of the work performed
under this Agreement does not comply with the terms of this Agreement, City may deliver
notice to Consultant. Such City’s notice shall describe how the work performed, including
any deliverables resulting from such work, does not meet the requirements of this
Agreement, including failure to meet the applicable standard of care set forth in Section 6.0
and, upon City’s sole discretion, may also make a request for Consultant to re-perform the
services. If City requests Consultant to re-perform services, Consultant shall promptly re-
perform the services at no additional cost to City in a reasonably timely manner. Should
Consultant fail to make such correction or re-performance, the cost thereof shall be
withheld from any funds due to Consultant hereunder or charged to Consultant with such
amounts to be paid by Consultant within thirty (30) days of receipt of such invoice.
10.0 Insurance.
10.1 Insurance Coverage. Consultant shall maintain, throughout the Term, the
insurance coverage set forth in the “Insurance Requirements” as attached to this
Agreement as Exhibit B.
10.2 Delivery of Certificates of Insurance and Endorsements. Prior to the
commencement of any work by Consultant under this Agreement, Consultant
shall provide the City with copies of certificates (on an Accord form as modified
per City direction) for all policies together with the appropriate endorsements
required in Exhibit B. At the request of the City, Consultant shall deliver a copy
of its insurance policies.
10.3 Failure to Maintain Insurance. If Consultant receives a cancellation notice of any
insurance required by this Agreement, Consultant shall, within one day of receipt,
forward said notice to City Representative. If Consultant at any time during the
Term of this Agreement, should fail to secure or maintain any insurance required
under this Agreement, the City shall be permitted to obtain such insurance in the
Consultant's name or as an agent of the Consultant and shall be compensated by
the Consultant for the cost of the insurance premiums at the maximum rate
permitted by law computed from the date written notice is received that the
premiums have been paid. Such costs can be assessed by deducting such costs
from any amounts due and payable to the Consultant as compensation under the
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
7
terms of this Agreement.
11.0 Work Product.
11.1 Deliverables. Consultant shall deliver to the City the studies, plans,
specifications, drawings, photographs, maps, videos, records, designs, data,
reports, documents or other work products as are identified in the Scope of
Services (“Work Product”). The City may also request, and Consultant shall
provide to City, copies of all other information developed in the course of the
Consultant’s performance of this Agreement. Consultant shall, in such time and
in such form as the City may require, furnish reports concerning the status of
services required under this Agreement. Consultant shall, upon request by City
and upon completion or termination of this Agreement, deliver to the City all
Work Product produced by the Consultant. Consultant represents and warrants
that upon delivery of the Work Product, such Work Product shall be free of all
liens, security interests or any other encumbrances.
11.2 Ownership. Each and every item that constitutes Work Product produced,
prepared, or caused to be prepared by the Consultant pursuant to or in connection
with this Agreement shall be the exclusive property of the City.
12.0 Confidentiality.
12.1 Non-Disclosure Exemptions. Consultant may be granted access to information
that is exempt from disclosure to the public and may contain “trade secrets” when
it is necessary for Consultant to perform its obligations pursuant to this
Agreement. If Consultant is granted such access to confidential information,
Consultant shall not be considered to be a member of the public as that term is
used in the California Public Records Act.
12.2 Confidentiality Obligation. Consultant shall not disclose, publish, or authorize
others to disclose or publish, design data, drawings, specifications, reports, or
other information pertaining to the projects assigned to Consultant by the City
or other information to which the Consultant has had access during the Term
of this Agreement without the prior written consent of the Designated Official
during the Term of this Agreement and this obligation shall survive for a period
of two (2) years after the termination of this Agreement. Notwithstanding the
foregoing, the confidentiality obligations imposed by this Agreement shall
survive as to any of the following information (a) a trade secret under
applicable law for so long as such information constitutes a trade secret
thereunder, (b) each utility customer’s “data” under applicable law unless
Consultant has secured such customer’s express, written consent to release of
such customer’s information, (c) any information classified by City as “critical
infrastructure information” or “protected critical infrastructure information” or
“protected system,” or (d) any other documentation that has been identified as
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
8
confidential by City until City has advised Consultant in writing that such
information may be released.
13.0 Acceptance of Final Payment by Consultant. The acceptance by Consultant of the final
payment made under this Agreement shall release City from all claims and liabilities for
compensation to or for the benefit of Consultant for anything done, furnished, or relating
to Consultant's work or services. Acceptance of payment shall be any negotiation of City's
check or the failure to make a written extra compensation claim within 10 calendar days of
the receipt of that check; provided, however, approval or payment by City shall not
constitute, nor be deemed, a release of the responsibility and liability of Consultant, its
employees, agents, subcontractors and subconsultants for the satisfactory performance,
accuracy and/or competency of the information provided and/or work performed by
Consultant; nor shall such approval or payment be deemed to be an assumption of such
responsibility or liability by City for any defect or error in the work prepared by Consultant,
its employees, agents, subcontractors and subconsultants.
14.0 Records. Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts, and other such information required by the City, the Designated Official
or the City Representative. Consultant shall maintain adequate records on services provided
in sufficient detail to permit an evaluation of services. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Consultant shall provide access to the Designated Official or designees
at all proper times to such books and records, and gives the Designated Official or designees
the right to examine and audit such books and records and to make transcripts as necessary,
and to allow inspection of all work, data, documents, proceedings, and activities related to this
Agreement. Consultant shall maintain such records for at least four years after the termination
or final payment under this Agreement, whichever is later.
15.0 Conflict of Interest. Consultant agrees to be familiar with and comply with all applicable
federal, state and local conflict of interest laws. Consultant represents and warrants that it is
unaware of any City employee or official that has a financial interest in Consultant's
business. During the Term of this Agreement and/or as a result of being awarded this
Agreement, Consultant shall not offer or accept any financial interest in Consultant's
business by any City employee or official.
16.0 Payee Registration Form. City shall provide a W-9 form to Consultant and Consultant shall
deliver a completed W-9 form to the City. Consultant acknowledges that this form is
necessary for the City to process any payment for services hereunder.
17.0 Non-Appropriation of Funds. Payments due and payable to Consultant for current
services are within the current annual budget and within an available, unexhausted and
unencumbered appropriation of City funds. In the event City has not appropriated
sufficient funds for payment of Consultant services beyond the current fiscal year, this
Agreement shall cover only those costs incurred up to the conclusion of the current fiscal
year.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
9
18.0 Compliance with Laws. Consultant agrees to perform all of its obligations under this
Agreement in accordance with all applicable federal, state and local laws, rules and
regulations. This obligation shall include, but is not limited to, the following requirements set
forth below:
18.1 Permits and Licenses. Consultant, at its sole expense, shall obtain and maintain
during the Term of this Agreement, all appropriate permits, licenses, and
certificates that may be required in connection with the performance of services
under this Agreement.
18.2 Anti-Terrorism Laws; Sanctions. The Consultant represents and warrants that:
(1) it is not a person described or designated in the Specially Designated Nationals and
Blocked Persons List of the Office of Foreign Assets Control, United States
Department of the Treasury or in Section 1 of Executive Order No. 13,224, 66 Fed.
Reg. 49,079 (2001), issued by the President of the United States of America
(Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism);
(2) it does not engage in any dealings or transactions with any such persons described
above; and
(3) is not otherwise blocked, subject to sanctions under or engaged in any activity in
violation of other United States economic sanctions, including but not limited to,
Trading with the Enemy Act, the International Emergency Economic Powers Act,
Accountability and Divestment Act or any other similar law or regulation with respect
to any country, the Sudan Accountability and Divestment Act, any OFAC Sanctions
Program, or any economic sanctions regulations administered and enforced by the
United States or any enabling legislation or executive order relating to any of the
foregoing.
19.0 Meet and Confer. The Parties agree to meet and confer concerning all claims, disputes
or other matters in question between the Parties arising out of or relating to this Agreement or
breach thereof prior to the institution of any litigation.
20.0 Waiver; Remedies Cumulative. Failure by a Party to insist upon the strict performance of
any of the provisions of this Agreement by the other Party, irrespective of the length of
time for which such failure continues, shall not constitute a waiver of such Party's right to
demand strict performance by such other Party in the future. No waiver by a Party of a
default or breach of the other Party shall be effective or binding upon such Party unless
made in writing by such Party, and no such waiver shall be implied from any omissions by
a Party to take any action with respect to such default or breach. No express written waiver
of a specified default or breach shall affect any other default or breach, or cover any other
period of time, other than any default or breach and/or period of time specified. All of the
remedies permitted or available to a Party under this Agreement, or at law or in equity,
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
10
shall be cumulative and alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or available
right or remedy.
21.0 Integrated Agreement; Construction. This Agreement, including any exhibit, schedule
or addendum attached hereto, supersedes any other agreements, either oral or in writing,
between the parties hereto with respect to the rendering of services hereunder, and contains
all of the covenants and agreements between the Parties with respect to said services. The
provisions of this Agreement shall be construed as a whole according to its common
meaning of purposes of providing a public benefit and not strictly for or against any Party.
No verbal agreement or implied covenant shall be held to vary the provisions of this
Agreement. In the event an inconsistency arises between any attachments (including any
exhibit, schedule or addendum) and any term of this Agreement, the terms of this Agreement
shall prevail. This Agreement shall bind and inure to the benefit of the Parties to this
Agreement and any subsequent permitted successors and assigns.
22.0 Amendment; Modification. This Agreement may only be amended or otherwise modified
upon written mutual agreement of each of the authorized representatives of the Parties.
23.0 Assignment. This Agreement is personal to the Consultant and may not be assigned without
the prior written approval of the Designated Official. Notwithstanding the foregoing, any
assignment in violation of this Section by the Consultant is voidable in the City’s sole
discretion.
24.0 Use of the Term “City.” Reference to “City” in this Agreement includes City Manager
or any authorized representative acting on behalf of City.
25.0 Severability. If any part, term, or provision of this Agreement shall be held illegal,
unenforceable, or in conflict with any law of a federal, state, or local governmental entity
having jurisdiction over this Agreement, the validity of the remaining portions or provisions
shall not be affected by such holding.
26.0 Execution Counterparts. This Agreement may be executed in any number of counterparts
and each such duplicate counterpart shall constitute an original, any one of which may be
introduced in evidence or used for any other purpose without the production of its duplicate
counterpart. Moreover, notwithstanding that any of the Parties did not execute the same
counterpart, each counterpart shall be deemed for all purposes to be an original, and all such
counterparts shall constitute one and the same instrument, binding on all of the Parties hereto.
Facsimile transmission and/or validated electronic transmission to one Party of a true copy of
a counterpart duly executed by the other Party shall constitute valid delivery of such
counterpart.
27.0 Governing Law. The terms of this Agreement shall be interpreted according to the laws of
the State of California. The Parties agree and consent to the jurisdiction of the state and federal
courts of competent jurisdiction exclusively in the County of Los Angeles, California.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
11
28.0 Survival. The provisions of Sections 8, 9, 10 and 12.0, shall survive for a period of four years
following the termination or expiration of this Agreement, whichever is later.
29.0 Notices. Any written notice required by this Agreement shall be given by depositing such
notice in the United States mail, postage prepaid or by personal delivery, and addressed as
follows:
TO CITY:
The City of _Azusa_________________
Administrative Services Department
Attention: Richard Lam
Address: 213 E, Foothill Blvd., Azusa CA 91702
Email: rlam@azusaca.gov
With a copy to:
The City of _Azusa____________________
Administrative Services Department
Attention: Talika M. Johnson
Address: 213 E. Foothill Blvd., Azusa CA 91702
Email: tjohnson@azusaca.gov
TO CONSULTANT:
MuniServices, LLC
Attention: Laura Burnett
5716 Corsa Avenue, Suite 203
Westlake Village, CA 91362
With a copy to:
MuniServices, LLC
5860 Trinity Parkway, Suite 120
Centreville VA 20120
Attention: Contracts Dept.
Email: contracts@avenuinsights.com
All notices shall be effective upon deposit in the mail, as specified above, or personal delivery.
Either Party may change the specified person or address at which it is to receive notices by so
advising the other Party in writing.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
12
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
13
30.0 Safety Requirement. To the extent that Consultant performs any work on premises owned
or leased by the City, the Consultant agrees that it shall comply with this Section. All work
under this Agreement shall be performed in such a manner as to provide safety to the public
and to meet or exceed the safety standards outlined by CAL-OSHA. The City reserves the
right to issue restraint or cease and desist orders to the Consultant when unsafe or harmful
acts are observed or reported relative to the performance of the work under this Agreement.
The Consultant shall maintain the work sites free of hazards to persons and property resulting
from its operations. Any hazardous condition noted by the Consultant, which is not the result
of his operations, should immediately be reported to the City Representative.
31.0 Copyright. In the event Consultant creates an original work product as part of the Scope
of Services (“work product”), Consultant agrees that work product is a work made for hire.
Consultant acknowledges that he/she received consideration for this work product and has
no copyright interest in any of the work product, or in any copyright related to the work
product. For example work product may involve: illustrations and graphic design services,
digital and print branding services, photographs, Meta Tags, text, photographs whether
edited or not, and other graphic images, appearing on the web sites or other applicable
medium, domain names, log-in credentials for social media and other on-line electronic
platforms. Further, if this Agreement is found by any court or other jurisdiction to not be
a work-for–hire as defined in 17 U.S.C. § 101, then Consultant hereby transfers any and
all interest of the copyright(s) in the work product to City. This transfer and assignment are
irrevocable and in perpetuity.
Further, Consultant represents and warrants: 1) that all work product shall be original and
not subject to any other ownership claims by third parties, and 2) if applicable, that consent
by individuals depicted in any work product have been obtained and written releases will
be delivered to City prior to the completion of the Scope of Services. Consultant
indemnifies and defends City as to any damages arising out of or relating to a breach of
this warranty and representation.
If applicable, Consultant agrees to provide all log-in credentials for social media and other on-line
electronic platforms to City within ten (10) days of establishing same, which shall allow City at
any time with the ability to access, utilize and maintain the social media account or electronic
on-line platform, should City choose to do so. In any event, upon the conclusion of Consultant’s
services, Consultant shall no longer utilize any log-in credentials or electronic on-line platforms.
32.0 Prevailing Wages. To the extent that the Consultant performs any work described in
California Labor Code Section 1720(a)(1), including, but not limited to, inspection and land
surveying work, Consultant agrees that it shall comply with this Section. The Consultant, and
any subcontractor or subconsultant working on behalf of the Consultant with respect to this
Agreement, is required to pay not less than the established prevailing rates of wages to all
workers employed in the execution of this Agreement, and Consultant shall comply with all
other requirements applicable to Public Works Construction as specified in the California
Labor Code and/or Davis Bacon Act, if federal money is funding any part of this Agreement.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
14
Furthermore, Consultant must register as a public works contractor with the California
Department of Industrial Relations, if the compensation under this Agreement is greater than
$25,000.
[SIGNATURE PAGE FOLLOWS]
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
15
In recognition of the obligations stated in this Agreement, the Parties have executed this
Agreement on the date indicated above.
"CONSULTANT"
MUNISERVICES, LLC.
____________________________
Signature
_________________________
Name (Please Print)
__________________________
Title
__________________________
Date
"CITY"
CITY OF AZUSA
_____________________________
Signature
______________________________
Name (Please Print)
_______________________________
Title
__________________________
Date
1/13/2021
Mike Melka
CFO
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
16
EXHIBIT A
SCOPE OF SERVICES
Consultant shall perform the following services for the benefit of the City:
State Video Franchise Fee and PEG Support Fees Audits
MuniServices (“Consultant”) agrees to provide the City with certain professional services in
furtherance of a comprehensive State Video Franchise fee/PEG (“FF”) audit compliance.
Article 1-Objectives
Consultant’s FF Program, as described below, will provide a broad range of compliance,
administrative and protective services (including the legal expertise of Consultant’s staff) that
will allow the City to preserve, protect and enhance their FF revenues focusing on these areas:
• Compliance
• Administrative
• Revenue Protection and Enhancement
City-Specific FF Compliance Auditing Reviews
In the course of performing the various preliminary FF compliance activities, Consultant may
discover discrepancies or other evidence indicative of non-compliance. Consultant may
thereupon advise the City that it may be prudent to conduct a city-specific compliance review
of a particular service provider or taxpayer, or specific issue relating to such service provider
or taxpayer. The City may authorize such city-specific compliance audit actions as provided
for within this Agreement for FF purposes:
Scope of Work
At any time during the term of this Agreement, with the prior mutual consent of the City and
Consultant, Consultant may perform a city-specific audit of a particular service utility provider
related to FF payments. The focus of the city-specific audit is the compliance of said utility
provider with the City’s FF agreement or the providers’ state certificate for any utility
franchise(s) to include State Video Franchise Fee and PEG support fees. The City and
Consultant shall discuss the parameters of the proposed city-specific audit(s) and shall agree
upon which of the following shall be included in the city-specific audit:
1. Documentation
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
17
a. Submit Audit Notification Letter along with a Letter of Authorization (LOA)
from the City.
b. If necessary, attempt to obtain a waiver on the Statute of Limitations for the
audit.
Submit a Request for Information (RFI) outlining the information needed to complete
the audit to the Provider(s). If necessary, the City may issue a subpoena to the
Provider(s) to obtain the needed information to complete the audit.
2. Review and Analysis
a. Review the work papers and supporting documentation used in the
computation of the FF payments.
b. Compare the utility provider’s payments, exclusions and other computations
as related to the FFs. Compare the actual payments made to the City for
timeliness and accuracy.
c. Review and analyze the provider’s general ledger and financial statements.
Compare and analyze the data for reasonableness, completeness, and
accuracy as related to the FF.
d. Review and analyze the Provider’s major revenue accounts in detail to:
i. Determine revenues that are to be included or excluded from the FF
computations.
ii. Review the revenues excluded from the computations, if any.
iii. Determine whether exclusions are permitted by the City’s ordinance or
any applicable franchise(s).
e. Analyze the number of customers reported in the City by rate classification
and obtain and review the utility provider’s procedures to code new
customers to the proper jurisdictions and the procedures used to address
annexations.
3. Exemption Review
a. Obtain and review the list of any exempted customers, if any, from the FF
computations.
b. The schedules should include a composition of the number of subscribers, by
month, for each of the calendar years included in the review period.
4. Geo-Code Review
a. Sample test the geo-coding system by selecting customer accounts within the
City boundaries and in the immediate vicinity to review if those accounts are
properly coded as assessed. Consultant will request that the utility provider
provide the customer account information in an electronic format for all
customers located in the City and surrounding areas.
b. Consultant will concentrate the sampling in problematic geographical areas,
such as those that might overlap with a neighboring city or where multiple
zip codes exist.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
18
c. Consultant will also sample test heavily in the area of annexations to ensure
that proper procedures are in place to identify and properly code these areas
within the Franchisee’s system.
5. Exit Interview
a. Conduct an Exit Interview with the utility provider to review findings and
obtain the provider’s position on the issues identified during the review.
b. Seek to obtain an agreement and/or payment of any amounts due to the City
(to be sent directly to the City).
6. Reports
a. Prepare a written report with findings that describe and explain the
following:
i. Results of Consultant’ review
ii. Potential additional monies due to the City
iii. Provider’s position of the issues
iv. Any applicable penalties and interest
b. Provide any and all necessary schedules and supporting documents to assist
the City in collecting any underpaid FFs.
Article 2-Compensation
A. Compensation for City-Specific Compliance Audit Review Services
1. With the exception noted in subsection (2) below, with respect to a City-specific FF audit
compliance reviews, Consultant shall be entitled to contingent fee compensation where
Consultant’ compliance audit review activities result in the City receiving additional
revenues from such City-specific compliance review activity. Accordingly, the City shall
pay Consultant twenty-five (25%) percent of the additional revenues, including interest,
and penalties that result from its City-specific compliance audit review activities.
Consultant will seek to recover or assist the City in recovering all revenue due the City
from prior periods, but if additional services are required for collections then the City and
Consultant agree to negotiate in good faith on additional compensation therefore
Consultant. Consultant shall still be due its full contingency fee based upon the final audit
report approved by the City, including if the City elects to waive or settle any amounts due
which were approved pursuant to the audit, and which were deemed lawfully due.
2. Notwithstanding subsection1 above, nothing herein shall prohibit the parties from entering
into a written agreement on compensation for City-specific compliance audit review
services on a fixed-fee or any other separately negotiated basis.
3. Consultant compensation is due and payable within thirty (30) days of the City’s receipt
and approval of Consultant’s final audit report.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
19
B. Additional Consulting
The City may request that Consultant provide additional consulting services at any time during the
term of the Agreement. If Consultant and the City agree on the scope of the additional consulting
services requested, then Consultant shall provide the additional consulting on a Time and Materials
basis. Depending on the personnel assigned to perform the work, Consultant’ standard hourly rates
range from $75 per hour to $200 per hour.
Depending on the personnel assigned to perform the work, Consultant hourly rates shall apply
based on the job classification as follows:
• Principal: $200 per hour
• Project Manager: $175 per hour
• Client Services: $150 per hour
• Information Technology (IT) support: $175 per hour
• Operational Support:
o Audit Director or Managing Consultant: $175 per hour
o Senior Auditor: $125 per hour
o Analyst: $100 per hour
o Administrative: $75 per hour
These additional consulting services will be invoiced at least monthly based on actual time and
expenses incurred. All reimbursable expenses shall receive prior approval from the City and shall
be reimbursed at cost to Consultant.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
20
EXHIBIT B
INSURANCE REQUIREMENTS
Consultant shall procure and maintain, for the Term of this Agreement, insurance against claims
for injuries to persons or damages to property which may arise from or in connection with the
performance of the work hereunder and the results of that work by the Consultant, its agents,
representatives, employees or subcontractors.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Commercial General Liability : Insurance Services Office Form CG 00 01 covering
commercial general liability insurance (“CGL”) on an “occurrence” basis, including
products and completed operations, property damage, bodily injury and personal &
advertising injury with limits no less than $1,000,000 per occurrence. If a general
aggregate limit applies, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be at least $2,000,000.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
Consultant has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit
no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with statutory l imits,
and employer’s liability insurance with limit of no less than $1,000,000 per accident for
bodily injury or disease.
4. Professional Liability or Errors and Omissions : Errors and Omissions insurance
appropriate to the Consultant’s profession (“E&O Insurance”), with limit no less than
$1,000,000 per occurrence or claim, $2,000,000 aggregate.
If Consultant maintains higher limits than the minimums shown above, the City requires and shall
be entitled to coverage for the higher limits maintained by Consultant.
B. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its officers, officials, employees, agents, and volunteers are to be covered as additional
insureds on the CGL policy with respect to liability arising out of work or operations performed
by or on behalf of the Consultant including materials, parts or equipment furnished in connection
with such work or operations. General liability coverage can be provided in the form of an
endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or
both CG 20 10 and CG 20 37 forms if later revisions used).
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
21
Primary Coverage
For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary
insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any
insurance or self-insurance maintained by the City, its officers, officials, employees, agents, or
volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide an endorsement that they are not subject to
cancellation without thirty (30) days’ prior written notice to the City or ten (10) days’ prior written
notice for non-payment of premium.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said
Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of
subrogation, but this provision applies regardless of whether or n ot the City has received a
waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City
may require the Consultant to purchase coverage with a lower deductible or retention or provide
proof of ability to pay losses and related investigations, claim administration, and defense
expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII,
unless otherwise acceptable to the City. Such insurers shall be licensed to provide insurance under
California state law.
Claims Made Policies. For the E&O Insurance Policy and any other insurance providing
claims-made coverage (e.g., pollution liability insurance, if applicable):
1. The “Retroactive Date” must be shown and must be before the Effective Date.
2. Insurance must be maintained, and evidence of insurance must be provided for at
least three (3) years after completion of the work required under the Agreement.
3. If coverage is canceled or non -renewed, and not replaced with another claims -
made policy form with a Retroactive Date prior to the Agreement Effective Date,
the Consultant must purchase “extended reporting” coverage for a minimum of
three (3 ) years after completion of work.
City of Azusa State Video Franchise/PEG Fee Compliance Audit and Discovery Services PSA/2021
22
Verification of Coverage
Consultant shall furnish the City with original certificates and amendatory endorsements or
copies of the applicable policy language effecting coverage required by this Agreement. All
certificates and endorsements are to be received and approved by the City before work
commences. However, failure to obtain the required documents prior to the work beginning
shall not waive the Consultant’s obligation to provide them. The City reserves t he right to
require complete, certified copies of all required insurance policies, including endorsements
required by these specifications, at any time.
Cyber Liability Insurance
If Consultant will have access to the City’s databases or otherwise have access to electronic data
of the City that constitute personally identifiable information or data of any employee, customer,
citizen, voter or ratepayer, or pursuant to the Agreement shall receive such information directly
from customers, voters, or rate payers, Consultant shall maintain cyber liability insurance with
limits of not less than $1,000,000 for each occurrence and an annual aggregate of $2,000,000
covering claims involving privacy violations, information theft, damage to or destruction of
electronic information, intentional and/or unintentional release of private information, alteration
of electronic information, extortion and network security. Such coverage is required for any
professional services for which Consultant is engaged if the Consultant provides to the City any
products and/or services which involves or requires access to information technology (including
hardware and/or software) or other electronic data and for such length of time as necessary to cover
any and all claims. City shall inform Consultant if such insurance is required.
Contractors Pollution Liability and/or Asbestos Pollution Liability
If Consultant’s Scope of Services includes the handling or transportation of hazardous materials,
Consultant shall maintain pollution liability and/or asbestos pollution liability applicable to the
work being performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000
aggregate per policy period of one year. City shall inform Consultant if such insurance is required.