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HomeMy WebLinkAbout2005 CON MBIA Muniservices - District Tax ConsultingCONSULTANT SERVICES AGREEMENT This Consultant Services Agreement (hereinafter "Agreement") is made as of �,,,,„� a i 9-oo5 , by and between MBIA MuniServices Company, a wholly owned subsidiary of MBIA Inc. with an office at 7335 N. Palm Bluffs Drive, Fresno, CA 93711 (hereinafter "MMC"), and the City of National City, a municipal corporation of the State of California (hereinafter "CITY"). 1. SERVICES Subject to the terms and conditions set forth herein, MMC shall provide to CITY those services set forth in Addenda attached hereto in exchange for the fees set forth in the Addenda. Upon mutual agreement, MMC and CITY may add services to be performed by MMC for CITY under this Agreement by executing additional Addenda. Such additional Addenda shall contain, at a minimum, a description of the services to be performed, the anticipated compensation for such services, and any additional terms required to give effect to the request for services (collectively "Services"). Such additional Addenda shall be signed by representatives of CITY and MMC having authority to so bind the parties. MMC shall provide the Services in the manner specified in each applicable Addendum. MMC shall not be required to perform, nor CITY be required to pay for, services not contained in an applicable Addendum. 2. INDEPENDENT CONTRACTOR STATUS MMC is an independent contractor, and not an employee of CITY, who will be engaged in providing consulting services for CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and MMC or between CITY and any employee or agent of MMC. Both parties acknowledge that MMC is not an employee for state or federal tax purposes. MMC shall retain the right to perform services for others during the term of this Agreement. Nothing in this Agreement shall be construed as creating a partnership, joint venture, or designating MMC as an agent of CITY. MMC shall have no authority to bind, contract, or obligate CITY, financially or otherwise. CITY shall not have any right to control the means by which MMC performs the Services including the facilities used, the employees, contractors, or agents assigned by MMC. MMC shall be responsible for any subcontracts entered into in the course of performance of the Services for CITY and MMC shall be solely responsible for payment to the subcontractors. 3. COMPENSATION 3.1 In consideration for the Services to be performed by MMC, CITY agrees to pay MMC the rates set forth in each applicable Addendum. 3.2 MMC shall submit timely invoices for all services rendered in accordance with each applicable Addendum. Payment will be made to MMC within thirty (30) days of receipt of MMC's invoice therefore. Any amounts which remain unpaid after thirty (30) days shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum amount permitted by law. 3.3 MMC shall be responsible for all costs and expenses incident to the performance of Services for CITY, including but not limited to, all costs of equipment provided by MMC, all fees, fines, licenses, bonds or taxes required of or imposed against MMC and all other of MMC's costs of doing business. CITY shall not be responsible for expenses incurred by MMC in performing Services for CITY, except as noted in an applicable Addendum, or such expenses that receive prior written approval from CITY. 4. CONFIDENTIALITY 4.1 During the term of this Agreement, each party may have access to certain confidential information of the other including such party's products, services, technical data, trade secrets, inventions, processes, and constituent information. All such information shall be deemed "Confidential Information" whether or not identified as such. Each party shall use the Confidential Information of the other solely for performance of this Agreement, and all Confidential Information shall remain the sole property of the respective parties. With regard to Confidential Information, each party shall use the same care as it uses to maintain the confidentiality of its own confidential information, which shall be no less than reasonable care, and shall not make disclosure of the Confidential Information to any third party without the written consent of the Disclosing Party, except to employees, consultants or agents to whom disclosure is necessary to the performance of this Agreement and who are bound by a duty of confidentiality. Information shall not be deemed confidential if it (i) is rightfully known to the receiving party prior to receipt from the disclosing party as reasonably evidenced by such party; (ii) becomes known to the receiving party from a source other than one who is under an obligation of confidentiality to the disclosing party; or (iii) becomes publicly known or otherwise ceases to be confidential other than by an unauthorized act. At all times, in accordance with Graham -Leach Bliley and other applicable State and Federal regulations, taxpayer information containing Personally Identifiable Information, as defined in applicable regulations, shall be held in the strictest confidence by MMC. 4.2 If a subpoena or other legal process in any way concerning Confidential Information is served upon a party to which Confidential Information has been disclosed ("Recipient"), the Recipient shall promptly notify the Disclosing Party and shall cooperate with the Disclosing Party, at the latter's expense, in any lawful effort to contest the validity of such subpoena or other legal process. 4.3 The parties agree that a breach of the terms of Section 4.1 or 4.2 would result in irreparable injury to the non -breaching party for which a remedy in damages would be inadequate. The parties agree that in the event of such breach or threatened breach, the non -breaching party shall be entitled to, in addition to any other remedies available at law or in equity, seek an injunction to prevent the breach or threatened breach. 4.4 The obligation of confidentiality as set forth in Section 4.1 shall continue for a period of three (3) years from the date of disclosure of the information, provided, however, that for any information which constitutes a Trade Secret (as defined by applicable law), the obligation of confidentiality shall continue during the entire term of this Agreement and shall survive the termination of this Agreement indefmitely. This obligation of confidentiality shall not extend to any information required to be disclosed pursuant to the California Public Records Act, the United State Freedom Of Information Act, or other public disclosure acts of the United States or a state or territory thereof. 5. TERM AND TERMINATION 5.1 Term. This Agreement shall be effective as of the date of the last signature hereto and shall continue in full force and effect for a period of three (3) years. Thereafter, this Agreement shall automatically renew for successive three (3) year periods. In the event that either party desires to terminate this Agreement upon the expiration of any term, it shall provide notice to the other party of its intent not to renew no less than sixty (60) days prior to the renewal date. 5.2 Termination of Addendum. At any time and for any reason or no reason, CITY may terminate this Agreement effective on no less than sixty (60) days notice. Termination of this Agreement shall be governed by the provisions of Section 5.4 below. 5.3 Event of Default. Any of the following shall constitute an event of default ("Event of Default") under this Agreement or any applicable Addendum: (a) CITY fails to pay any amount when due hereunder (after ten (10) days prior written notice of such failure to pay), or (b) a material breach by either party of this Agreement. If an Event of Default occurs, the non -breaching party shall notify the breaching party of the Event of Default and provide the breaching party thirty (30) days to cure (except in the case of non- payment for which the cure period shall be ten (10) days) or such amount of time as is reasonable given the circumstances. If the breaching party fails to effect cure within the time allowed, then the non -breaching party may, at its option, terminate this Agreement effective immediately upon notice. 5.4 Effect of Termination. Notwithstanding non -renewal or termination of this Agreement pursuant to Sections 5.1, 5.2 or 5.3 above, CITY shall be obligated to pay MMC for services performed through the effective date of termination for which MMC has not been previously paid. In addition, because the services performed by MMC prior to termination may result in CITY's receipt of revenue after termination which are subject to MMC's fee in accordance with each applicable Addendum, CITY shall remain obligated after termination to provide to MMC such information as is necessary for MMC to calculate the compensation due as a result of this receipt of revenue by CITY and CITY shall remain obligated to pay MMC's invoices therefore in accordance with the terms of this Agreement. 6. EQUAL EMPLOYMENT OPPORTUNITY During performance of this Agreement, MMC, for itself, its assignees and successors in interest, agrees as follows: 6.1 Compliance With Regulations: MMC shall comply with Executive Order 11246, "Equal Employment Opportunity" and labor regulations (41 C.F.R. Part 60), hereinafter referred to as the "Regulations." 6.2 Nondiscrimination: MMC, with regard to any work performed pursuant to this Agreement, shall not discriminate on the ground of race, color, religion, sex, national origin, or veteran status in the selection and retention of employees, subcontractors, the procurements of materials or leases of equipment. 6.3 Solicitation for Subcontractor, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by MMC for work to be performed under any subcontract, including procurements of materials or equipment, such potential subcontractor or supplier shall be notified by MMC of MMC's obligation under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex, national origin, or veteran status. 6.4 Information and Reports: MMC shall provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by CITY to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of MMC is in the exclusive possession of another who fails or refuses to furnish this information, MMC shall so certify to CITY and shall set forth what efforts it has made to obtain the information. 6.5 Incorporation of Provisions: MMC shall include the provisions of paragraphs 6.1 through 6.4 in every subcontract issued pursuant to this Agreement. MMC shall take such action with respect to any Regulations, order or instructions issued pursuant thereto. MMC shall take such action with respect to any subcontract or procurement as CITY may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event MMC becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, MMC may request CITY to enter such litigation to protect the interests of CITY. 7. WARRANTIES, REPRESENTATIONS AND INDEMNIFICATION 7.1 By MMC. MMC represents that all Services shall be performed by persons with the skills and abilities necessary and consistent with the standards of professionalism prevalent in the industry. The Services and deliverables shall be provided free and clear of the proprietary claims of third parties. All Services shall be provided in accordance with applicable state and federal regulations, including, without limitation, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and applicable state regulations. THIS REPRESENTS THE FULL AND COMPLETE WARRANTY STATEMENT OF MMC HEREUNDER. 7.2 By CITY. CITY represents that the information provided to MMC in the performance of Services by MMC hereunder shall be provided free and clear of the claims of third parties. CITY represents that CITY has the right to provide said information to MMC and that said information shall not be obscene, defamatory, or otherwise expose MMC to liability to third parties. CITY represents that it shall use reasonable and diligent efforts in the collection of moneys identified by MMC. CITY represents that in the event CITY elects not to proceed with diligent efforts in collection, that CITY shall remain liable to MMC in accordance with applicable Addendum as if CITY had proceeded with diligent efforts in collection. 7.3 Indemnification. The parties hereto agree to defend, indemnify, and hold harmless the other, its directors, officers, employees and affiliates, from any and all claims, suits, demands, losses, damages, liabilities, costs and expenses, including reasonable attorney's fees (collectively "Losses") arising from or related to a claim of injury to person or property or death arising from or caused by the acts or omissions of employees, agents, or representatives of the indemnifying party. CITY shall defend, indemnify, and hold MMC harmless from any Losses arising from or related to a claim that information provided by CITY to MMC contains any false, misleading, or defamatory information regarding a third party. MMC shall defend, indemnify, and hold CITY harmless from any claim that MMC negligently or intentionally falsified any information provided to CITY pursuant to this Agreement. 7.4 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MMC, ITS EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATED TO THE SERVICES WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY) WHETHER OR NOT MMC HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. MMC'S LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CITY FOR THE AFFECTED SERVICE TO WHICH THE CLAIM PERTAINS. The foregoing sets forth CITY's exclusive remedy for claims arising from or out of this Agreement. The provisions of this section allocate the risks between MMC and CITY and MMC's pricing reflects the allocation of risk and limitation of liability specified herein. 8. GENERAL PROVISIONS 8.1 Personnel. At any time, CITY may request removal or replacement of personnel assigned by MMC and MMC shall promptly replace such personnel. The time for any deliverables required or any increase in costs shall be adjusted to reflect any adverse impact resulting from the change in personnel. 8.2 Gratuities, Gifts, Conflict of Interest. MMC shall, at all times, comply with any CITY policies regarding gifts, gratuities, or conflicts of interest. At no time shall MMC, an employee, agent, director, or contractor offer or accept any gift or gratuity from a third party who may be subject to findings resulting from Services, to or from any CITY official, employee, contractor, or agent, or from any other party where such gift or gratuity could be construed as a conflict of interest. MMC, its officers, directors, employees, agents, and contractors shall avoid all conflicts of interest, financial or otherwise, or the appearance thereof, in the performance of this Agreement or the applicable Services. 8.3 Dispute Resolution. Any dispute relating to this Agreement shall be submitted for binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association and judgment on any award entered therein may be entered in any court of competent jurisdiction. The arbitrator's decision shall be final and binding on the parties. Such arbitration shall be held in the State of California. In all cases, the prevailing party to such dispute shall be entitled to recover costs and expenses, including reasonable attorney's fees, as the arbitrator deems appropriate. 8.4 Ownership of Work Product. MMC shall retain all right, title, and interest in and to the processes, procedures, models, inventions, software, ideas, know-how, and any and all other patentable or copyrightable material used, developed, or reduced to practice in the performance of this Agreement. Upon payment therefore, CITY shall be granted all right, title, and interest in and to the reports, charts, graphs, and other deliverables produced by MMC in the performance of this Agreement. 8.5 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any assignment without such prior written consent shall be void. Notwithstanding the foregoing, the Parties hereto may assign all or part of this Agreement immediately, without the prior written consent of the non -assigning Party (a) to any successor in interest to the assigning Party who expressly assumes responsibility for the assigning Party's obligations hereunder; or (b) if necessary to satisfy the rules, regulations and/or orders of any federal or state governmental agency or body. Any violation of the provisions of this Section shall render this Agreement voidable at the option of the non -assigning Party. 8.6 Insurance. a. Public Liability. During the term of this Agreement, MMC shall maintain in full force and effect a policy of public liability insurance with minimum coverage's in accordance with the requirements provided by CITY to MMC. MMC shall cause CITY, its officials and employees to be named on all liability policies described above as insured as respects activities undertaken pursuant to the parties' respective obligations pursuant to this Agreement. b. Worker's Compensation. During the term of this Agreement, MMC shall fully comply with the terms of the law of California concerning worker's compensation. Said compliance shall include, but not be limited to, maintaining in full force and effect one or more policies of insurance insuring against any liability MMC may have for worker's compensation. 8.7 Severability. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed as nearly as possible to reflect the original intent of the parties and the remainder of the provisions shall remain in full force and effect. 8.8 Waiver. Either Party's failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of that or any other of its rights hereunder at any later date or time. 8.9 Force Majeure. Neither party shall be liable for failing to perform its obligations hereunder (other than payment obligations) where delayed or hindered by war, riots, embargoes, strikes or acts of its vendors or suppliers, accidents, acts of God, or any other event beyond its reasonable control. 8.10Notices. All notices, including notices of address changes, provided hereunder shall be deemed received on the third day after mailing if sent by mail, or immediately if sent by facsimile. Notices shall be sent to the following: If to MMC: MBIA MuniServices Company 7335 N. Palm Bluffs Drive Fresno, CA 93711 Attn: Finance Director If to CITY: City of National City 1243 National City Blvd National City, CA 91950 Attn: Lin Wurbs 8.11 Copies. This Agreement may be executed in separate counterparts including facsimile copies, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument and legally binding upon the parties. 8.12Entire Agreement. This Agreement, including the Addenda attached hereto and made part hereof, constitutes the entire agreement between MMC and CITY with respect to the Services provided. This Agreement supercedes and replaces any and all prior agreements, of whatever kind or nature, with respect to the Services provided hereunder and with respect to any Addendum to be added hereto at a later date. Any prior agreements, discussions, or representations not expressly set forth herein are of no force or effect. 8.13No Oral Modification. No modification of this Agreement shall be effective unless set forth in writing and executed with the same formality as this Agreement. No waiver of the requirements of this Section shall be effective unless in writing and signed by the CEO for MMC. 8.14Construction. This Agreement shall be construed in accordance with the laws of the State of California without regard to its conflict of laws principals. 8.15Headings. The section headings herein are for convenience and reference purposes only and shall not serve as a basis for construction or interpretation. 8.16Order of Precedence. In the event of any conflict between the terms of this Agreement and the terms of any Addenda, the terms of this Agreement shall prevail. No additional terms, PO Terms and Conditions, or oral or written representations of any kind shall be of any force and effect unless in writing and executed with the same formality as this Agreement. 8.17Partial Payment. No receipt by MMC of an amount less than CITY's full amount due will be deemed to be other than payment "on account", nor will any endorsement or statement on any check or any accompanying letter effect or evidence an accord and satisfaction. MMC may accept such check or partial payment without prejudice to MMC's right to recover the balance or pursue any right of MMC. EXECUTED as of the day and year first above stated. MBIA MuniServices Company/MMC CITY OF National City A Municipal Corporation By: 42— arc Herman Title: President Date: B /n/ evin Cerutti Title: Chief Financial Officer Date: APPROVED AS TO FORM: �7t CITY ATTORNEY DISTRICT TAX CONSULTING SERVICES ADDENDUM MBIA MuniServices Company (MMC) shall provide to the City of National City (CITY), District Tax Consulting Services Scope of Services MMC's initial Scope of Services will include but not be limited to the following: Stakeholder Meetings: MMC will attend meetings with CITY staff with selected citizen and business groups within CITY. MMC will provide a comprehensive overview of district tax, how it works, implementation, and answer questions. Fore casting MMC will provide a forecast of revenues that the District Tax may generate. The forecast will be updated and refined based on feedback from the stakeholder meetings. As the tax is destination based for certain businesses, MMC will gain a better understanding of these businesses' customer base for the purpose of refining the forecast. Presentation' MMC will provide expert technical support to CITY with presentations to City Council. These meetings are solely for the education and introduction on the specifics of the district tax. Compensation MMC's compensation for these services is provided on an hourly basis of $150/hr. Additionally, MMC shall be entitled to reimbursement of reasonable travel and other out- of-pocket expenses associated with the conduct of these services. MMC will bill CITY no Tess frequently than monthly based on actual time and expenses incurred.