Texas City Services-CN 2020-06-16STATE OF TEXAS §
§ FIRM SERVICES AGREEMENT
COUNTY OF DALLAS §
This Agreement is entered into by and among TexasCityServices LLC, a Texas limited
liability company (the "Firm"), the City of Coppell, Texas (the "City"), Coppell Crime Control
District (the "CCCD") and the Coppell Recreation Development Corporation (the "CRDC")
(collectively the City, CCCD and the CRDC the "Client") (the Firm and Client collectively
referred to as the "Parties" or individually as a 'Party"), acting by and through their authorized
representatives.
Recitals:
WHEREAS, the Client desires to engage the services of the Firm as an independent
contractor and not as an employee in accordance with the terms and conditions set forth in
.this Agreement; and
WHEREAS, the Firm desires to render Firm services for the Client in accordance
with the terms and conditions set forth in this Agreement;
NOW THEREFORE, in exchange for the mutual covenants set forth herein and
other valuable consideration, the sufficiency and receipt of which are hereby acknowledged,
the Parties agree as follows:
Article I
Term
1.1 The term of this Agreement shall begin on the last date of execution hereof
(the Effective Date") and continue until the earlier of: (i) completion of Firm's services
provided herein; and (ii) two (2) years after the Effective Date, unless terminated sooner, as
provided herein.
1.2 Either Party may terminate this Agreement by giving thirty (30) days prior
written notice to the other Party. In the event of such termination the Firm shall deliver to the
Client all finished and unfinished documents, data, studies, models or other items prepared by
the Firm in connection with this Agreement. In the event of termination, the Firm shall be
entitled to the fees set forth herein for those increased remittances received by Client as a
result of Firm actions prior to its termination.
Article II
Definitions
For purposes of this Agreement, each of the following terms shall have the meaning
set forth herein unless the context clearly indicates otherwise:
"City Manager" shall mean the City Manager of the City of Coppell, Texas, or
designee.
"Effective Date" shall mean the last date of execution hereof.
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"Notice to Proceed" shall mean a written notice from the City Manager, on
behalf of the Clients to Firm to proceed with the recovery and collection of the
Recoveries for the time periods, the taxpayers, the accounts, and the locations
identified in the notice.
'Recoveries" or "Increases in Tax Remittances" shall mean refund of Sales
and Use Tax, the credit of Sales and Use Tax to the Client's account or offset against
current, past or future Client Sales and Use Tax liabilities, including any penalties and
interest due the Client thereon for unpaid, underpaid or improperly allocated Sales
and Use Tax that is due the Client by the State of Texas as a result of the direct efforts
of the Firm for the time periods, the taxpayers, accounts and locations identified in a
Notice to Proceed. Recoveries are limited to the period of time, the taxpayer, the
accounts and the locations identified in allotice to Proceed. The identified period of
time in a Notice to Proceed includes the previous forty-eight (48) months or all
periods open under the Texas sales and use tax statute of limitations and revenues
received for the first twenty-four (24) consecutive reporting months following the
Date of Correction. As used herein, the date of correction is the first sales/use tax
return filed in which the taxpayer has correctly applied Client's local sales/use tax law.
"Recovery Plan" shall mean a written plan provided by Firm to the Client that
identifies a taxpayer, accounts, the location, and the time period for possible
Recoveries; and the data, information, the process and procedure necessary to secure
recovery ofthe identified Recoveries.
"Sales and Use Tax" shall mean the: Texas (i) one percent (1%) sales and
use tax imposed by the City pursuant to Chapter 321 of the Texas Tax Code, as
amended, on the sale of Taxable Items; (ii) the one-half percent (.5%) sales tax imposed
by the City on behalf of the CRDC pursuant to 4B of the Development Corporation
Act; (iii) the one-quarter percent (.25%) Crime Prevention District sales tax imposed
by the City; and (iv) the one-quarter percent (.25%) street maintenance sales tax
imposed by the City, assigned Local Sales and Use Tax Authority Codes Nos. 205752
and 5057501 by the State of Texas.
"State of Texas" or 'Texas Comptroller" shall mean the office of the Texas
Comptroller, its successor, or other applicable agency ofthe State of Texas.
Article III
Scope of Services
3.1 (a) General. The Firm shall, to the best of its ability and skill, perform a
review of businesses operating within the Client's boundaries to confirm proper Client's
sales/use tax collecting/reporting/remittances to the Texas Comptroller. Businesses found to
be non-compliant ("Suspect Businesses") will be (i) encouraged by the Firm to voluntary
correct past and prospective reporting with the Texas Comptroller; and/or (ii) the Firm will
prepare for Client filing a request with the Texas Comptroller to correct the Suspect
Businesses' past and/or prospective reporting. Services offered by the Firm to induce
voluntary compliance by Suspect Businesses include: research/consultation concerning
businesses' facts and Texas tax law; preparation for Client and/or Suspect Businesses
submission of private letter rulings of the Comptroller seeking proper tax law application;
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and/or preparation for Suspect Businesses' submission amended/corrected past/prospective
sales/use tax returns.
3.2
(b) Business Incentives. Firm is authorized under the terms and conditions
described in this Section to offer limited incentives to Suspect Businesses to gain
past/prospective compliance with the prior written approval of the City Manager. Any
incentives discussed with Suspect Businesses by the Firm will only be with the Client's full
understanding and prior written consent, and with the Firm's recommendation that an incentive
be considered by the Client.
(c) Period of Review. The period of time subject to review by the Firm for
purposes of Recovery Plans pursuant to this Agreement shall include the period of forty-eight
calendar months prior to the Effective Date through and including the Expiration Date,
including any additional periods that may be open under the State of Texas sales and use tax
statute of limitations.
(d) Recovery Plan. The Firm will, from time to time during the term of this
Agreement, deliver a Recovery Plan that identifies possible Recoveries, the data, information,
the process and procedure necessary to secure recovery of the identified Recoveries. A
Recovery Plan shall be provided by the Firm for each taxpayer for which Recoveries have
been identified. The Firm shall, within thirty (30) days after receipt of a Notice to Proceed,
prepare the appropriate claim to be filed by the Client, or cause the claim to be filed with the
State of Texas or taxpayers when directed by the Client, necessary to recover the identified
Recoveries. The Firm is not authorized to file any claim, contact any person, business, the
State of Texas, or any third parties as a representative of the Client without the prior written
approval of the Client.
(e) Firm Opinions. This review does not result in any opinion, attestation, or other
form of assurance with respect to the Client's transactional tax reporting or any other financial
reporting functions of the Client. The procedures employed by this review do not constitute
an examination or a review per General Accepted Auditing Standards. Neither does this
review constitute a review of internal controls over any Client's financial reporting function.
The review is not limited nor directed towards the discovery of fraud, illegal acts, or material
exceptions. The Firm is not a public accounting firm.
3.3 The Client agrees that any/all business local sales/use tax "incremental
liabilities" that may result as the businesses become compliant with Texas tax law may be
waived upon recommendation of the Firm. If the liabilities cannot be waived, then the Client
may be requested to agree to reimburse the businesses for the incremental liabilities.
Additionally, the Client may consider alternative or additional business incentives if the
incentive is deemed cost effective and in the best interest of the Clients. For purposes of this
Agreement, "incremental liabilities" are only those tax liabilities representing the difference
of Client aggregate local combined sales and use tax rate (2%) and the actual amount of local
sales and use tax collected and remitted by the Suspect Businesses, an amount less than 2%
aggregate local combined sales and use tax rate. The Firm will provide any information,
documentation and support to Client necessary to allow the Client to quantify the cost versus
the benefit of providing the business incentive necessary to gain Texas tax law compliance.
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3.4 Firm services will be performed based upon the information provided by the
Client. In addition, services will be performed in consideration of applicable tax laws,
regulations and associated interpretations relative to the appropriate jurisdiction as of the date
the services are provided. Tax laws and regulations are subject to change at any time, and
such changes may be retroactive in effect and may be applicable to advice given or other
services rendered before their effective dates. The Firm does not assume responsibility for
such changes occurring after the date services have been completed. With regards to the
services provided under the terms of this Agreement, the Firm will discuss with the Client
any positions that the Firm believes may subject the Client to additional liabilities. The Firm is
not held responsible for determining these liabilities, nor is the Firm responsible for any
liabilities assessed against the Client as the result of the Client's failure to provide all relevant
information relative to the issue under consultation. Any such liabilities are disregarded for
determining fees.
Article IV
Compensation
Fee. (a) Fees will be based on the dollar amount of the Client's increases in tax
remittances resulting from Firm's efforts. Any/all Firm out-of-pocket expenses, travel, postage,
business consultations, legal representation and any other costs incurred by Firm on Clients'
behalf will be born solely by the Firm and will not be in addition to the Firm fees.
(b) The increases in tax remittances are quantified deposits by the Texas
Comptroller into the appropriate Local Sales/Use Tax Authority Codes. Firm fees will only
be due if Firm efforts successfully secured additional increase remittances from Suspect
Businesses as defined in the Scope section of this Agreement and will either be: (i) twenty-
four percent (24%) of any increase remittance representing past reporting of a Suspect
Business; or (ii) if the Client elects to seek only prospective sales/use tax monies, for whatever
reason from Suspect Businesses, then Firm Fees will be thirty three percent (33%) of the
increased sales and use tax remittance by the Suspect Businesses for the two (2) years
immediately following the implementation of proper compliance by the Suspect Businesses.
If the Client elect solely increased remittances prospectively (Section 4.1 (b) (ii) above), the
Firm and the Client will reach a mutual agreement on how the value of the increased
remittance will be determined.
(c) In the event the Client elects to pursue Firm identified past/prospective tax
reallocations or increased remittances without further Firm services, the Client agrees that
fees as stated herein will be due and payable under these same terms and conditions.
(d) In any instance where the Client must involuntary, as a result of State of Texas
determination, refund or reallocate to another taxing jurisdiction an amount of reallocation or
sales and use tax upon which Firm fees have been paid, the Firm will refund the Fees related
to the amount of sales and use tax refunded or reallocated to another taxing jurisdiction.
(e) If the Client requests consultations beyond the above described services, such
requested services will be provided by the Firm on an hourly basis at its standard hourly rate
of Two Hundred Fifty Dollars ($250.00), plus out-of-pocket expenses.
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Article V
Devotion of Time; Personnel; and Equipment
5.1 The Firm shall devote such time as reasonably necessary for the satisfactory
performance ofthe work under this Agreement. Should the Client require additional services
not included under this Agreement, the Firm shall make reasonable effort to provide such
additional services at mutually agreed charges or rates, and within the time schedule
prescribed by the Client; and without decreasing the effectiveness of the performance of
services required under this Agreement.
5.2 To the extent reasonably necessary for the Firm to perform the services under
this Agreement, the Firm shall be authorized to engage the services of any agents, assistants,
persons, or corporations that the Firm may deem proper to aid or assist in the performance of
the services under this Agreement with the prior written approval of the City. The cost of
such personnel and assistance shall be borne exclusively by the Firm.
5.3 The Firm shall furnish the facilities, equipment, telephones, facsimile
machines, email facilities, and personnel necessary to perform the services required under
this Agreement unless otherwise provided herein.
5.4 The Firm shall submit quarterly progress reports and attend such progress
meetings as may be reasonably required by the Client from time to time. Each progress
report shall detail the work accomplished and special problems or delays experienced, any
Notice to Proceed during the previous report period, and the planned work activities and
special problems or delays anticipated for the next report period.
Article VI
Miscellaneous
6.1 Entire Aareement. This Agreement constitutes the sole and only agreement
between the Parties and supersedes any prior understandings written or oral agreements
between the Parties with respect to this subject matter.
6.2 Assi nment. The Firm may not assign this Agreement in whole or in part
without the prior written consent of Client. In the event of an assignment by the Firm to
which the Client has consented, the assignee shall agree in writing with the Client to
personally assume, perform, and be bound by all the covenants, and obligations contained in
this Agreement.
6.3 Successors and Assigns. Subject to the provisions regarding assignment, this
Agreement shall be binding on and inure to the benefit of the Parties to it and their respective
heirs, executors, administrators, legal representatives, successors and assigns.
6.4 GoverningLaw. The laws of the State of Texas shall govern this Agreement;
and venue for any action concerning this Agreement shall be in the State District Court of
Dallas County, Texas, The Parties agree to submit to the personal and subject matter
jurisdiction of said court.
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6.5 Amendments. This Agreement may be amended by the mutual written
agreement of the Parties.
6.6 Severability. In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions, and the
Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never
been contained in it.
6.7 Administration of the Agreement. The City Manager is authorized to administer
this Agreement on behalf of the City, CRDC and the CCCD, and to execute any amendments
to the Agreement or instruments related thereto, or other action necessary for such Parties.
6.8 Non -Disclosure Requirements. In the performance of this Agreement, Client, to
the extent allowed by law, and the Firm may not disclose technical, financial, or other
information, material or data either via oral, written, or any other form, either electronic or
otherwise, which is considered confidential and proprietary (Confidential Information). Such
Confidential Information does not include any information known to the receiving Party prior
to the Agreement, is available to the public under Texas' Open Public Information Act or
published and available to the general public regardless of source. Unless otherwise agreed,
the receiving Party agrees not to disclose Confidential Information; will use the same degree
of care and diligence to protect and secure Confidential Information as it uses for its own
information; and will not copy or reproduce the Confidential Information except in the
performance of the services described in this Agreement. The receiving Party may disclose
such Confidential Information to its associates, affiliates, consultants, and agents necessary to
perform the Agreement's services.
6.9 Other Clients. The Firm is not restricted by anything in this agreement from
providing services for other clients providing Confidential Information is not disclosed or
shared with such other clients. In the event the Firm violates the terms of this section it shall
immediately forfeit any right to any Recoveries.
6.10 Warranties. The Firm makes no other representation or warranty regarding
either the services to be provided, in particular, and without limitation of the foregoing, any
express or implied warranties of fitness for a particular purpose, merchantability, warranties
arising by custom or usage in the profession, and warranties arising by operation of law are
expressly disclaimed.
6.11 Independent Contractor. It is understood and agreed by and between the Parties
that the Firm in satisfying the conditions of this Agreement, is acting independently, and that
the Client assumes no responsibility or liabilities to any third party in connection with these
actions. All services to be performed by The Firm pursuant to this Agreement shall be in the
capacity of an independent contractor, and not as an agent or employee of the Client. The Firm
shall supervise the performance of its services and shall be entitled to control the manner
and means by which its services are to be performed, subject to the terms of this Agreement.
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6.12 Notice. Any notice required or permitted to be delivered hereunder may be
sent by first class mail, overnight courier or by confirmed telefax or facsimile to the address
specified below, or to such other Party or address as either Party may designate in writing,
and shall be deemed received three (3) days after delivery set forth herein:
If intended for Client:
Attn: City Manager
City of Coppell, Texas
255 Parkway Boulevard
P.O. Box 9478
Coppell, Texas 75019-9478
If intended for the Firm:
Attn: Kyle B. Kasner
Manager
TexasCityServices LLC
PO Box 110998
Carrollton, Texas 75011
With a Copy to:
Robert Hager
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Ross Tower
500 North Akard
Dallas, Texas 75201
6.13 Counterparts. This Agreement may be executed by the Parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument; Each counterpart may consist
of any number of copies hereof each signed by less than all, but together signed by all of the
Parties hereto.
6.14 Indemnification. CLIENT SHALL NOT BE LIABLE FOR ANY LOSS,
DAMAGE, OR INJURY OF ANY KIND OR CHARACTER TO ANY PERSON OR
PROPERTY ARISING FROM THE SERVICES OF THE FIRM PURSUANT TO THIS
AGREEMENT. FIRM HEREBY WAIVES ALL CLAIMS AGAINST CLIENT, ITS
OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY REFERRED TO IN THIS
SECTION AS "CLIENT") FOR DAMAGE TO ANY PROPERTY OR INJURY TO, OR
DEATH OF, ANY PERSON ARISING AT ANY TIME AND FROM ANY CAUSE OTHER
THAN THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CLIENT OR BREACH OF
CLIENT'S OBLIGATIONS HEREUNDER. FIRM AGREES TO INDEMNIFY AND SAVE
HARMLESS CLIENT FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES,
CLAIMS, SUITS, COSTS (INCLUDING COURT COSTS, ATTORNEYS' FEES AND
COSTS OF INVESTIGATION) AND ACTIONS OF ANY KIND BY REASON OF INJURY
TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY TO THE
EXTENT CAUSED BY THE FIRM'S NEGLIGENT PERFORMANCE OF SERVICES
UNDER THIS AGREEMENT OR BY REASON OF ANY NEGLIGENT ACT OR
OMISSION ON THE PART OF FIRM, ITS OFFICERS, DIRECTORS, SERVANTS,
EMPLOYEES, REPRESENTATIVES, CONSULTANTS, LICENSEES, SUCCESSORS OR
PERMITTED ASSIGNS (EXCEPT WHEN SUCH LIABILITY, CLAIMS, SUITS, COSTS,
INJURIES, DEATHS OR DAMAGES ARISE FROM OR ARE ATTRIBUTED TO
NEGLIGENCE OF THE CLIENT, IN WHOLE OR IN PART, IN WHICH CASE FIRM
SHALL INDEMNIFY CLIENT ONLY TO THE EXTENT OR PROPORTION OF
NEGLIGENCE ATTRIBUTED TO FIRM AS DETERMINED BY A COURT OR OTHER
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FORUM OF COMPETENT JURISDICTION). THE FIRM'S OBLIGATIONS UNDER THIS
SECTION SHALL NOT BE LIMITED TO THE LIMITS OF COVERAGE OF INSURANCE
MAINTAINED OR REQUIRED TO BE MAINTAINED BY FIRM UNDER THIS
AGREEMENT. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
6.15 Insurance.
(a) Firm shall during the term hereof maintain in full force and effect the following
insurance: (i) a comprehensive general liability policy of insurance for bodily injury, death
and property damage insuring against all claims, demands or actions relating to the Firm's
performance of services pursuant to this Agreement with a minimum combined single limit
of not less than $1,000,000.00 per occurrence for injury to persons (including death), and
for property damage; (ii) policy of automobile liability insurance covering any vehicles
owned and/or operated by Firm, its officers, agents, and employees, and used in the
performance of this Agreement with policy limits of not less than $500,000.00 combined
single limit and aggregate for bodily injury and property damage; and (iii) statutory Worker's
Compensation Insurance atthe statutory limits and Employers Liability covering all of Firm's
employees involved in the provision of services under this Agreement with a policy limit of
not lessthan $500,000.00.
(b) All policies of insurance shall be endorsed and contain the following
provisions: (1) name the Client, its officers, and employees as additional insureds as to all
applicable coverage with the exception of Workers Compensation Insurance; (2) provide for
at least thirty (3 0) days prior written notice to the Client for cancellation ofthe insurance; and
(3) provide for a waiver of subrogation against the Client for injuries, including death,
property damage, or any other loss to the extent the same is covered by the proceeds of
insurance, except for Firm Liability Insurance. The Firm shall provide written notice to the
Client ofanymaterial change oforto the insurance required herein.
(c) All insurance companies providing the required insurance shall be authorized
to transact business in Texas and rated at least "A" by AM Best or other equivalent rating
service.
(d) A certificate of insurance and copies of the policy endorsements evidencing
the required insurance shall be submitted prior to commencement of services and upon
request by the Client.
6.16 Audits and Records. The Firm agrees that during the term hereof the Client
and its representatives may, during normal business hours and as often as deemed necessary,
inspect, audit, examine and reproduce any and all of the Firm's records relating to the
services provided pursuant to this Agreement for a period of one year following the date of
completion of services as determined bythe Client or date oftermination if sooner.
6.17 Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a
period oftime following the termination ofthis Agreement shall survive termination.
6.18 Mutual Termination of the Ori ig n�greement. (a) The Firm and City do, by
execution
LSignature Page to Follow)
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Coppell, CCCD, CRDC and TexasCityServices LLC (04-2020)
EXECUTED This a q4k chty o�
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Printed Nrunc Title
EXECUTED This Z(� day of ____,Nm • 1 2020
COPPELL CRIME CONTROL DISTRICT
Signature--
Printed Name/Title
EXECUTED This 16 day of June 2020
COPPELL RECREATION DEVELOPMENT CORPORATION
By:— f (Am)o^. _"_ _ _ --
Signature
Mahbuba Khan
Printed Name/Title
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EXECUTED This
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TEXAS CITY SERVICES LLC
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Iarh ed Name/Title
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--ia—ge9 Firm Seivices Agreement
Coppell, CCCD, CRDC and TexasCityServices LLC (04-2020)