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96-22229 RESO RESOLUTION NO. 96-22229 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH E. T. HAND & ASSOCIATES FOR RESORT TAX AUDITS. WHEREAS, the Finance Committee has recommended that the number of audits of bl sinesses subject to the Resort Tax be increased; and WHEREAS, such an increase in the number of audits can be accomplished most efficiently b) h,,:lVing independent contractors perform these audits for a fee per audit performed plus a pE rcnntage of any assessment collected; and WHEREAS, the Administration recommends that the Mayor and City Clerk execute the at ached Professional Services Agreement with E. T. Hand & Associates for Resort Tax Audits. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF TilE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are authorized to execute th ~ attached Professional Services Agreement with E. T. Hand & Associates for the performance of Resort Tax audits for the City. PASSED AND ADOPTED THIS 18th DAY OF -- Ai :est: r) J\v~P~ City Clerk j un i'.. 1:-, I {,\--' ..' LEGAL DEPT. E:: ~ iti%(;_ ./tlr/?J6.. C:lTY OF M1AI'v11 BEACH :I1Y HALL t700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 OFFICE 0'= THE CITY MANAGER TELEPHONE: (305) 673-7010 FAX: (305) 673-7782 COMMISSION MEMORANDUM NO. 1 D l-q~ TC: Mayor Seymour Gelber and Members of the City Commission November 20, 1996 FF or~: Jose Garcia-Pedrosa W City Manager 'If SL BJ ECT: PROFESSIONAL SERVICES AGREEMENT FOR AUDITING RESORT TAX Ad llinistrative Recommendation Th ~ Pdministration recommends that the City Commission approve the Resolution and authorize the Mayor and City Clerk to execute professional services agreements with T. Hand & Associates for aLdits of businesses authorized to collect Resort Tax. Ba ;kqround Th ~ City of Miami Beach has issued licenses to over 2,000 businesses to authorize them to collect the Rnsort Tax. Of these 2,000 businesses, 800 are collecting and remitting Resort Tax to the City on a rlonthly basis. The balance, 1,200, are apartments who only rent on an annual basis and are rec uired to report on an annual basis to the City. The City currently employs four auditors to review the re:ords of these businesses to insure that they are reporting correctly. The Finance Committee dis ;U!.sed this issue and recommended that the City contract with private sector firms to increase thi~ audit effort. An lli 5is Thl! Finance Department contacted a number of bookkeeping type firms in the area to see of they wo Jld be interested in assisting the City in this audit effort. Unfortunately, certified public ac( oLntants cannot provide the service contemplated because they cannot accept any enlla~ement, except for income tax work, on a contingent fee basis. As the concept was to allow the auditor to participate in the collection of any assessment, a contingent fee was established. Me 5t firms contacted were not interested because they did not have the staff resources to un( :er:ake such an engagement on a long term basis. The Finance Department was not interested in f er;ons on a seasonal basis due to training requirements. 20 Date Item_ c..J..A- I '& ' I B -'1 " Agenda Th3 Finance Department has established a goal of auditing the 800 active accounts every three yem; and a review of the records of the annual accounts every six years. This schedule would recluil'e each auditor to perform over two audits per week. Due to the condition of the records at sone of these businesses, these audits can take as long as three weeks and average a week. To mEet the departmental goal additional resources must be directed to this area. Rather than en ploying additional staff and incurring salary and benefits costs, the function can be accomplished thr:)u;lh contingency agreements with the private sector for this function. The agreements will provide a minimum fee per audit of $750 performed and a contingent fee of 10% of any as;e~;sment collected as a result of their audit effort. It is anticipated that such arrangements will inc rease the revenues from Resort Tax by over $100,000 annually in excess of the cost of co lection. Firn E. T. Hand & Associates performs compliance audits relating to resort tax obligations of business' loe atE!d within the City of Miami Beach. The scope of the work consists of examining the taxpayer ac ;OI.mting records, such as general ledgers, cash receipts journals, sales journals, and other recods as may be maintained by the taxpayer; comparison of reported taxable sales with other reI. 'ors such as Florida sales tax reports, and the preparation of schedules and analyses of work to ietermine compliance with the City Code relating to the collection and payment of Resort Taxes. Th ~y will examine all types of taxpayers who may be subject to the Resort Tax code. The selection an i assignment of audits is controlled by the Resort Tax Department of the City of Miami Beach. . Cc ncusion Th ~ contracting for professional services with the private sector is the most efficient means of ine reasing the coverage on Resort Tax and will produce an incremental benefit to the City. ,,/ JG PII~N/CP F:\FI IAISIlIRIWPWlN6O\ORD&RESOIRESTXPRO.SVC 21 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND E. T. HAND AND ASSOCIATES FOR PROFESSIONAL SERVICES IN THE REVIEW OF ENTITIES REQUIRED TO COLLECT AND REMIT RESORT TAXES THI5', AGREEMENT made this 18th day of December , 1 996 by and between the CITY 0: MIAMI BEACH, FLORIDA (City), which term shall include its officials, successors, legal re JrE!sentatives, and assigns, and E. T. HAND AND ASSOCIATES (Consultant). SECTION 1 DEFINITIONS A: :reement: This written Agreement between the City and the Consultant. C ty Manager: "City Manager" means the Chief Administrative officer of the City. CI m!,ultant: For the purposes of this Agreement, Consultant shall be deemed to be an independent contractor, and not an agent or employee of the City. Fi lal Acceptance: "Final Acceptance" means notice from the City to the Consultant that the Consultant's Services are complete as provided in Section 2 of this Agreement. FE e: Amount paid to the Consultant to allow for its costs and margin of profit. PI Ojl~Ct C )QII"d i nator: An individual designated by the City to coordinate, direct and review on behalf of the City all technical matters involved in the Scope of Work and Services. R sk Manager: The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139. Sl'rv Ices: All services, work and actions by the Consultant performed pursuant to or undertaken under this Agreement described in Section 2. TI ~rnlination: Termination of Consultant Services as provided in Section 4.9 of this Agreement. T,lsk: A discrete portion of the Scope of Services to be accomplished by the Consultant, as described in Section 2 below, if directed and authorized. 2.1 SECTION 2 SCOPE OF WORK AND SERVICES REQUIRED SCOPE OF SERVICE E.1. Hand & Associates shall perform compliance audits relating to resort tax obligations of bllsi lesses located within the City. The work shall consist of examining the taxpayer a( counting records, such as general ledgers, cash receipts journals, and other records as may bl ~ maintained by the taxpayer; comparison of reported taxable sales with other reports such a~ Florida sales tax reports, and the preparation of schedules and analyses of work to dde'mine compliance with the City Code relating to the collection and payment of Resort Ti XES. The selection and assignment of audits shall be controlled by the Resort Tax D ~p,Htment of the City of Miami Beach. SECTION 3 COMPENSATION 3.1 FEE Consultant shall be compensated for providing the Services as set forth in Section 2.1 a~ fc Ilows: $750 per review completed will be paid to Consultant. In addition to the fee, C >n!,ultant will receive ten percent (10%) of any collection of an assessment arising as a result 01 it~ review of an entity required to collect and remit Resort Tax. 4.1 SECTION 4 GENERAL PROVISIONS RESPONSIBILITY OF THE CONSULTANT With respect to the performance of the Services, the Consultant shall exercise that d. gr~e of skill, care, efficiency and diligence normally exercised by recognized professionals w th respect to the performance of comparable Services. In its performance of the Services, th ~ Consultant shall comply with all applicable laws and ordinances, including but not limited tc applicable regulations of the City, County, State, Federal Government, ADA, EEO RI!gulations and Guidelines. 4.2 PUBLIC ENTITY CRIMES State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida St ItLte on Public Entity Crimes as available with the office of the City Clerk, shall be filed by C miultant. 4.3 PROIECT MANAGEMENT The Consultant shall appoint a qualified individual acceptable to the City to serve as PI oject Manager for the Services who shall be fully responsible for the day-to-day activities ulldE!r this Agreement and who shall serve as the primary contact for the City1s Project C )OI"dinator. 4.~ DURATION AND EXTENT OF AGREEMENT The term of this Agreement shall be for a period of one year from the date of its a< o~ltion by Resolution of the Mayor and City Commission. The City may, at its sole option ar d discretion renew the Agreement on a yearly basis, subject to the same terms and c( nclitions set forth herein. 4.~; TIME OF COMPLETION The Services to be rendered by the Consultant shall be commenced upon receipt of a WI ittl!n Notice to Proceed from the City subsequent to the execution of this Agreement. 4.111 NOTICE TO PROCEED Unless otherwise directed by the City, the Consultant shall proceed with the work only u~ on issuance of a Notice to Proceed by the City. 4.' OWNERSHIP OF DOCUMENTS AND EQUIPMENT All documents prepared by the Consultant pursuant to this Agreement are related ex ::llIsively to the Services described herein, and are intended or represented for ownership b) the City. Any reuse shall be approved by the City. 4.1 INDEMNIFICATION Subject to the limitation set forth in the proceeding section, Consultant agrees to in Jemnify and hold harmless, the City of Miami Beach and its officers, employees and agents, fn m and against any and all actions, claims, liabilities, losses, and expenses, including, but n< t I mited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, which may arise or be alleged to have arisen fre 1m the negligent acts, errors, omissions or other wrongful conduct of the Consultant, its er,p oyees, agents, sub-consultants, or any other person or entity acting under Consultant's c< nt '01, in connection with the Consultant's performance of the Services pursuant to this Ai :reement; and to that extent, the Consultant shall pay all such claims and losses and shall pc y illl such costs and judgements which may issue from any lawsuit arising from such claims ar d losses, and shall pay all costs and attorneys fees expended by the City in the defense of SL ch claims and losses, including appeals. The parties agree that one percent (1 %) of the total C >mpensation to the Consultant for performance of this Agreement is the specific c< nsideration from the City to the Consultant for the Consultant's Indemnity Agreement. The Consultant's obligation under this article shall not include the obligation to in ::iennify the City of Miami Beach and its officers, employees and agents, from and against ar y actions or claims which arise or are alleged to have arisen from negligent acts or 01 ni~sions or other wrongful conduct of the City and its officers, employees and agents. The pi .rti es each agree to give the other party prompt notice of any claim coming to its knowledge th at in any way directly or indirectly affects the other party. 4. J INSURANCE REQUIREMENTS The Consultant shall not commence any work pursuant to this Agreement until all in ;wance required under this Section has been obtained and such insurance has been ar prJved by the City's Risk Manager. The Consultant shall maintain and carry in full force dl ring the term of this Agreement and throughout the duration of this project the following In ;U1 ance: 1. Consultant General Liability in the amount of $500,000.00. A certified copy of the Consultant's (and any sub-consultants') Insurance Policy must be filed and approved by the Risk Manager prior to commencement. 2. Workers Compensation & Employers Liability as required pursuant to Florida statute. 3. Thirty (30) days written notice of cancellation or substantial modification in the insurance coverage must be given to the City's Risk Manager by the Consultant and his Insurance company. 4. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. S. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. 6. The Consultant is responsible for obtaining and submitting all insurance certificates for their consultants. All insurance policies must be issued by companies authorized to do business under t~ e laws of the State of Florida. The companies must be rated no less than "B +" as to rranagement and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. Compliance with the foregoing requirements shall n >t'elieve the Consultant of the liabilities and obligations under this Section or under any o her portion of this Agreement, and the City shall have the right to obtain from the Consultant sl'ec imen copies of the insurance policies in the event that submitted certificates of insurance al e inadequate to ascertain compliance with required overage. 49.1 Endorsements All of Consultant's certificates, above, shall contain endorsements providing that V\ ritten notice shall be given to the City at least thirty (30) days prior to termination, cancellation or reduction in coverage in the policy. 4 9.:.~ Certificates Unless directed by the City otherwise, the Consultant shall not commence any services p HSuant to this Agreement until the City has received and approved, in writing, certificates o insurance showing that the requirements of this Section (in its entirety) have been met and p ovided for. 4 1 (I FI NAl ACCEPTANCE When the Consultant's Services have been completed, the Consultant shall so advise t~ e :ity in writing. Final Acceptance shall not constitute a waiver or abandonment of any ri ~hs to remedies available to the City under any other Section of this Agreement. 411 TERMINATION. SUSPENSION AND SANCTIONS 4 11.1 Term ination for Cause If through any cause within the reasonable control of the Consultant, the Consultant sllal fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, 0' slipulations material to this Agreement, the City shall thereupon have the right to terminate d e,ervices then remaining to be performed. Prior to exercising its option to terminate for C lU!e, the City shall notify the Consultant of its violation of the particular terms of this A ~n~ement and shall grant Consultant five (5) days to cure such default. If such default n mlins uncured after five (5) days, the City, upon three (3) days' notice to Consultant, may tE rrrinate this Agreement. In that event, all finished and unfinished documents, data, studies, surveys, drawings, IT aps, models, photographs, reports and other work products prepared by the Consultant and it; subcontractors shall be properly delivered to the City and the City shall compensate the C )n)ultant in accordance with Section 3 for all Services performed by the Consultant prior to T~rr1ination. Notwithstanding the above, the Consultant shall not be relieved of liability to the City fc r camages sustained by the City by virtue of any breach of the Agreement by the Consultant ar d :he City may reasonably withhold payments to the Consultant for the purposes of set off U1ltil such time as the exact amount of damages due the City from the Consultant is ddermined. 4..11.2 Termination for Convenience of City The City may, for its convenience and without cause, terminate the Agreement at any til ne by giving written notice to Consultant of such termination, which shall become effective thee (3) days following receipt by Consultant of the written termination notice. In that event, all finished or unfinished documents and other materials as described in Section 2 shall be ploperly delivered to the City. If the Agreement is terminated by the City as provided in this S. :ct on, the City shall compensate the Consultant for all Services actually performed by the C m;ultant and reasonable direct costs of Consultant for assembling and delivering to City all d )Cllments. Such payments shall be the total extent of the City's liability to the Consultant upon a Termination as provided for in this Section. 4.11.3 Termination for Insolvency The City also reserves the right to terminate the Agreement in the event the Consultant is pLKed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit o ceditors. In such event, the right and obligations for the parties shall be the same as p 0" ided for in Section 4.10.2. 4.11.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Consultant's noncompliance with the nondiscrimination provisions o this Agreement, the City shall impose such Sanctions as the City or the State of Florida may d ~termine to be appropriate, including but not limited to withholding of payments to the C )n;ultant under the Agreement until the Consultant complies and/or cancellation, tE rmination or suspension of the Services, in whole or in part. In the event the City cancels or tE rminates the Services pursuant to this Section the rights and obligations of the parties shall h ~ the same as provided in Section 4.11.2. 4. 11.5 Changes and Additions Each such change shall be directed by a written Notice signed by the duly authorized rE pn~sentatives of the Consultant. Said Notices shall provide an equitable adjustment in the til ne of performance, a reallocation of the task budget and, if applicable, any provision of this A~ rel~ment which is affected by said Notice. The City shall not reimburse the Consultant for th~ cost of preparing Agreement change documents, written Notices to Proceed, or other de cumentation in this regard. 4. !12 ASSIGNMENT. TRANSFER OR SUBCONTRACTING The Consultant shall not subcontract, assign, or transfer any work under this Agreement w thiJut the prior written consent of the City. 4.14 EQUAL EMPLOYMENT OPPORTUNITY/ADA NON-DISCRIMINATION POLICY In connection with the performance of this Agreement, the Consultant shall not di ;CI iminate against any employee or applicant for employment because of race, color, re ig on, ancestry, sex, age, national origin, place of birth, marital status, or physical handicap. TI!e ::::onsultant shall take affirmative action to ensure that applicants are employed and that er lp oyees are treated during their employment without regard to their race, color, religion, ar cEstry, sex, age, national origin, place of birth, marital status, disability, or sexual 01 ielltation. Such action shall include, but not be limited to the following: employment, ul,grading, demotion, or termination; recruitment or recruitment advertising; layoff or te 'mination; rates of pay, or other forms of compensation; and selection for training, including al,prenticeship. Consultant agrees to adhere to and be governed by all applicable requirements of the lavVs listed below including, but not limited to, those provisions pertaining to employment, pI' ovision of programs and services, transportation, communications, access to facilities, rEnovations, and new construction. The Americans with Disabilities Act of 1990 (ADA): Pub. L. 101- 336, 104 Stat 327, 42 V.S.C. 12101-12213 and 547 V.S.C. Sections 225 and 611 including Title I, Employment; Title II, Public Services; Title III, Public Accommodations and Services Operated by Private Entities; Title IV, Telecommunications; and Title V, Miscellaneous Provisions. The Rehabilitation Act of 1973: 29 U.S.C. Section 794. The Federal Transit Act, as amended: 49 V.S.C. Section 1612. The Fair Housing Act as amended: 42 V.S.C. Section 3601-3631. Consultant must complete and submit the City's Disability Non-Discrimination Affidavit (P' ffidavit). In the event Consultant fails to execute the City's Affidavit, or is found to be in non- e< 1m pliance with the provisions of the Affidavit" the City may impose such sanctions as it may ddermine to be appropriate, including but not limited to, withholding of payments to C m;ultant under the Agreement until compliance and/or cancellation, termination or Sl. spension of the Agreement in whole or in part. In the event, the City cancels or terminates tre I\greement pursuant to this Section, Consultant shall not be relieved of liability to the City fc r camages sustained by the City by virtue of Consultant's breach of the Agreement. 4.15 CONFLICT OF INTEREST The Consultant agrees to adhere to and be governed by the Metropolitan Dade County C)n flict of Interest Ordinance (No. 72-82), as amended; and by the City of Miami Beach C later and Code, which are incorporated by reference herein as if fully set forth herein, in o lnllection with the contract conditions hereunder. The Consultant covenants that it presently has no interest and shall not acquire any ir terest, direct or indirectly which should conflict in any manner or degree with the p ?rfl)rmance of the Services. The Consultant further covenants that in the performance of this A ~rE~ement, no person having any such interest shall knowingly be employed by the C)n ;ultant. No member of or delegate to the Congress of the United States shall be admitted tc allY share or part of this Agreement or to any benefits arising therefrom. 4 16 PATENT RIGHTS: COPYRIGHTS: CONFIDENTIAL FINDINGS Any patentable result arising out of this Agreement, as well as all information, design sl'ec ifications, processes, data and findings, shall be made available to the City for public use. No reports, other documents, articles or devices produced in whole or in part under t~ is Agreement shall be the subject of any application for copyright or patent by or on behalf o the Consultant or its employees or subcontractors. 4 1 j' NOTICES All communications relating to the day-to-day activities shall be exchanged between t~ e Project Manager appointed by Consultant and the Project Coordinator designated by the C ty The Consultant's Project Manager and the City's Project Coordinator shall be designated p mnptly upon commencement of the Services. All other notices and communications in writing required or permitted hereunder may hi~ delivered personally to the representatives of the Consultant and the City listed below or rray be mailed by registered mail, postage prepaid (or airmailed if addressed to an address o Jtside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be alldlessed as follows: T) CONSULTANT: E. T. HAND & ASSOCIATES Accounting and Financial Services Attn: Elizabeth T. Hand ~.r ~ j.~)1.:. 9500 S. Dildeland 8obllo'/ard, Suite 70.5- 7./ yo.Jw 1 / Miami, r10rida ))156-- /11~ ':;L. ..33/13 ~-'2'116 (3o.J"/ t. t.t. _If.rro T) (]TY: Office of The City Manager Attn: Jose Garcia-Pedrosa, City Manager 1 700 Convention Center Drive Miami Beach, FL 33139 (305) 673-7010 WITH COPIES TO: Office of the City Attorney Attn: Murray H. Dubbin, City Attorney City of Miami Beach 1 700 Convention Center Drive Miami Beach, FL 33139 (305) 673-7470 t\ otices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4111: LITIGATION IURISDICTION Any litigation between the parties, arising of, or in connection with this Agreement, sl al be initiated in the court system of the State of Florida. 4.1~1 ENTIRETY OF AGREEMENT This writing and the Scope of Services embody the entire Agreement and understanding h !tween the parties hereto, and there are no other agreements and understandings, oral or V\ ritlen with reference to the subject matter hereof that are not merged herein and superseded h !reby. The Scope of Services are hereby incorporated by reference into this Agreement to t~ e extent that the terms and conditions contained in the Scope of Services are consistent with t~ e Agreement. To the extent that any term in the Scope of Services is inconsistent with this A ~rE~ement, this Agreement shall prevail. No alteration, change, or modification of the terms of this Agreement shall be valid u llESS amended in writing, signed by both parties hereto, and approved by the City C )mmission of the City of Miami Beach. This Agreement, shall be governed by and construed according to the laws of the State o Florida. 42(1 LIMITATION OF CITY'S LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a Ii ni: on the City's liability for any cause of action for money damages due to an alleged b 'ecch by the City of this Agreement, so that its liability for any such breach never exceeds t~ e sum of $5,000.00. Consultant hereby expresses its willingness to enter into this A ~n~ement with Consultant's recovery from the City for any damage action for breach of o mlract to be limited to a maximum amount of $5,000.00. Accordingly, and notwithstanding any other term or condition of this Agreement, C )n;ultant hereby agrees that the City shall not be liable to the Consultant for damages in an al nount in excess of $5,000.00, for any action or claim for breach of contract arising out of the p~rformance or non-performance of any obligations imposed upon the City by this Agreement. t\ othing contained in this paragraph or elsewhere in this Agreement is in any way intended tc h~ a waiver of the limitation placed upon City's liability as set forth in Section 768.28, F orda Statutes. 421 This Agreement shall be enforceable in Dade County, Florida, and if legal action is n ~CE!Ssary by either party with respect to the enforcement of any terms and conditions herein, e:c1usive venue for the enforcement of same shall lie in Dade County, Florida. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed bv their appropriate officials, as of the date first entered above. FOR. CITY: CITY OF MIAMI BEACH, FLORIDA A nEST: B, ~o~r e~ By: EQ.E: CONSULTANT: E. T. HAN D AN D ASSOCIATES A nEST: ~t~ Secretary BY:~~ resident Corporate Seal: rUHiVI A?PRuV;:.u By :w~ r,c; .l1/Iy (fb-on F:\IINA\ SDIR\WPWIN60\CITYCOMM\AGRMNT.RTX