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HomeMy WebLinkAbout000287 Original ContractCity of Port Angeles Record #000287 TAX AND CONSULTING MASTER SERVICES AGREEMENT OF This Master Services Agreement (the "MSA" or "Agreement represents the terms and conditions relating to services to be provided to the City of Port Angeles "you," "your," "Company," and "Client by Moss Adams LLP "Moss Adams," "we," "us," and "our Moss Adams and the Client may be individually referred to as a "Party" and collectively as the "Parties." Agreement Scope The terms and conditions of this Agreement shall remain in effect until terminated as provided herein and shall apply to each instance (an "Engagement in which we provide tax and /or consulting related services to you. The nature and scope of our services in each Engagement should be set forth in an Addendum signed by Moss Adams and you or otherwise confirmed in writing by Moss Adams. However, all tax and /or consulting related services we provide you, whether or not set forth in writing in a separate Addendum, shall be subject to the terms of this Agreement. Tax Preparation Services As part of the Agreement, we may prepare the tax returns as specified in a signed Addendum (collectively "returns We will assume no responsibility for preparing returns which are not set forth in a signed Addendum. We will not audit or otherwise verify the data you submit to prepare these returns, although we may ask you to clarify it or furnish us with additional data. The information contained in tax returns prepared by Moss Adams is based solely on your representations and are ultimately your responsibility. Further, it is your responsibility to maintain the documentation necessary to support the data used in preparing your tax returns, including but not limited to auto, travel, entertainment, and related expenses and the required documents to support charitable contributions. If you have any questions as to the type of records required, please ask us for advice in that regard. It is also your responsibility to carefully examine and approve your completed tax returns before signing and mailing them to the tax authorities. We are not responsible for disallowed deductions or inadequate supporting documentation. Tax Advice As part of the Agreement, we may provide you with tax advice, including but not limited to the tax ramifications of planned or actual transactions. Tax advice may involve (i) developing the relevant facts, (ii) determining the applicable law, (iii) preparing an analysis applying the law to the facts, and (iv) deriving a conclusion. Our tax advice will specify the facts on which they are based. The facts and assumptions used by Moss Adams relating to any advice provided to you are based solely on your representations. Moss Adams is not responsible to verify facts or for advice that is based upon incomplete information. If these facts are incorrect, incomplete or omitted our tax advice may not be relied on. To protect you from IRS and other taxing authorities' penalty assessments, the conclusion(s) must meet the applicable taxing authority's requirements. Under federal tax regulations, a taxpayer cannot rely on professional advice to avoid federal tax penalties unless that advice is reflected in a comprehensive tax opinion which provides a conclusion at a confidence level of "more likely than not" (greater than 50% likelihood) that the federal tax issues would be resolved in the taxpayer's favor. Unless otherwise provided in an Addendum covering a tax advice Engagement, conclusions derived in our tax advice under this MSA will IDA meet applicable requirements and thus will not provide protection from potential penalty assessments. In the event changes to federal tax regulations or other applicable taxing authorities' or tax professional standards occur after the date of this Agreement, the terms of this Agreement will apply those regulations or standards in existence as of the date such tax advice is provided. Any advice provided pursuant to this MSA is based upon published law, rulings or other authority as of the date the advice is provided and is based upon the facts provided to Moss Adams. You agree that Moss Adams is not responsible to update its advice if the law changes or if court cases or other rulings are issued that otherwise impact the advice provided. 072130004 v. 11/4/2011 Tax and Consulting Master Services Agreement Page 2 of 6 Whenever we believe applicable tax law is unclear or there are conflicting interpretations of the law by authorities (e.g., tax agencies and courts), we will advise you as to the possible positions that may be taken. It is your responsibility to decide which position(s) will be taken on your applicable tax return. If the IRS or other taxing authority should later contest the position taken, there may be an assessment of additional tax plus interest and penalties. You agree we have no liability for any such additional penalties or assessments. Fraud and Internal Controls Our services cannot be relied on to detect errors, fraud, irregularities or illegal acts that may exist. In addition, we have no responsibility to identify or communicate significant deficiencies or material weaknesses in your internal controls. You are responsible for developing and evaluating internal controls, including, without limitation, internal controls over financial reporting and disclosure controls and procedures. Our services are not intended to assist you in developing or evaluating your internal controls and should not be relied on for this purpose. Paid Preparer Matters Federal tax law may treat Moss Adams as a "paid preparer" in certain situations where we provide significant tax advice that is used in preparing a Federal income tax return. Similar rules can apply at the state level. Where significant tax advice is provided resulting in Moss Adams becoming a paid preparer, you agree to cooperate with Moss Adams in complying with the requirements of the paid preparer rules and law. This may require Moss Adams to review and sign the return as paid preparer. If this is necessary, we will issue an Addendum to cover such services. Confidentiality and Privileged Communication Certain communications involving tax advice between you and Moss Adams may be privileged and not subject to disclosure to the IRS. By disclosing the contents of those communications to anyone or by turning over information about those communications to the government, you may be waiving this privilege. To protect your right to privileged communication between you and Moss Adams, you should consult with us or your attorney prior to disclosing any information about our tax advice. Fees and Expenses Our services will be billed at our standard rate(s) in effect for the individual(s) providing the services, absent an Addendum specifying a different fee. Billings are due upon presentation and become delinquent if not paid within 30 days of the invoice date. Any past due fee under this Agreement shall bear interest at the lower of twelve percent per annum or the highest rate allowed by law on any unpaid balance. If we elect to suspend a specific Addendum to the MSA for nonpayment, we may not resume our work until your account is paid in full. If we elect to terminate our services for nonpayment, or as otherwise provided in this Agreement, all Addendums will be deemed to have been completed upon written notification of termination, even if we have not completed our work. You will be obligated to compensate us for fees earned for services rendered and to reimburse us for all out -of- pocket expenditures made through the date of termination. Direct expenses are passed through to you without markup. Indirect costs incurred specifically for your work, such as computer processing and copying, are passed through at our estimated clerical and equipment cost of providing the particular service or material. You agree to accept the responsibilities set forth below regarding tax and /or consulting services provided under this Agreement: Make all management decisions and perform all management functions. Tax and Consulting Master Services Agreement Page 3 of 6 Designate a person who possesses suitable skill, knowledge and /or experience, preferably within senior management, to oversee the services. Evaluate the adequacy and results of the services performed. Accept responsibility for the results of the services. We will not make management decisions or perform management functions on your behalf. If any issues or concerns in this area arise during the course of our Engagement, we will discuss them with you prior to continuing with the Engagement. Limitation on Liability YOU AGREE THAT MOSS ADAMS' TOTAL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY AND ALL DAMAGES WHATSOEVER ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE, INCLUDING BUT NOT LIMITED TO CONTRACT LIABILITY OR MOSS ADAMS' NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES PAID TO MOSS ADAMS DURING THE THEN CURRENT TERM OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO PENALTIES ASSESSED BY THE IRS ARISING FROM MOSS ADAMS' NEGLIGENCE OR INTENTIONAL MISCONDUCT IN PROVIDING SERVICES UNDER THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR OTHERWISE ARISING OUT OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Intellectual Property Rights We may use intellectual property in performing our services, including without limitation, data, software, designs, utilities, tools, models, systems, ideas, methods and techniques "Materials We retain all intellectual property rights in the Materials (including any developments, improvements, and knowledge generated during the performance of our services), and in any working papers compiled in connection with the services. In the course of performing our services, we may provide you spread sheets, models, or other software tools. Such items are provided solely for your convenience in "as is" condition without warranty or any kind. We assume no responsibility for results obtained by anyone other than Moss Adams from the use of such items. Internal Use and Third Parties You acknowledge that Moss Adams has not placed any limitations on your disclosure of the tax treatment or tax structure associated with the tax services under this Agreement "Tax Information and nothing in this Agreement shall be construed as limiting or restricting disclosure of Tax Information. You acknowledge that none of your other advisors have imposed or will impose any conditions of confidentiality with respect to Tax Information. With the exception of tax authorities, you shall inform those to whom you disclose Tax Information that they may not rely on it for any purpose. All services shall be solely for your informational purposes and internal use, and no Engagement creates privity between Moss Adams and any person or party other than you "third party"). Unless we agree otherwise in a signed Addendum, none of our services are intended for the express or implied benefit of any third party, and no third party is entitled to rely on the services we provide you, including without limitation, any advice, opinions, or reports. In the event of any unauthorized reliance, you agree to indemnify and hold harmless Moss Adams and its personnel from all third -party claims, liabilities, costs, and expenses. Tax and Consulting Master Services Agreement Page 4 of 6 Document Retention Policy At the conclusion of each Engagement, we will return original records you supplied to us. Your records comprise the backup and support for your tax returns. Our records and files, including our working papers, whether kept on paper or electronic media, are the property of Moss Adams and are not a substitute for your own records. If you have any questions as to the type of records required, please ask us for advice in that regard. We are not responsible for damages resulting from documentation inadequately supported by your records. Except as set forth above, you agree that Moss Adams may destroy documents, including, without limitation, correspondence, agreements, and representation letters, and retain only electronic images thereof. Subpoena of Documents As a result of our services to you, we may be required or requested to provide information or documents to you or a third -party in connection with governmental regulations or activities, or a legal, arbitration or administrative proceeding (including a grand jury investigation), in which we are not a party. We will notify you of any such request and you may, within the time permitted for us to respond to any request, initiate such legal action as you deem appropriate to protect information from discovery. If you take no action within the time permitted for us to respond or if your action does not result in a judicial order protecting us from supplying requested information, we will construe your inaction or failure as consent to comply with the request. Our efforts in complying with such requests or demands will be deemed a part of this Agreement and we shall be entitled to additional compensation for our time and reimbursement for our out -of- pocket expenditures (including legal fees) in complying with such request or demand. Use of Electronic Communication In the interest of facilitating our services to you, we may communicate by facsimile transmission or send electronic mail over the Internet. Such communications may include information that is confidential. We employ measures in the use of facsimile machines and computer technology designed to provide reasonable assurance that data security is maintained. While we will use our best efforts to keep such communications secure in accordance with our obligations under applicable laws and professional standards, you recognize and accept we have no control over the unauthorized interception of these communications once they have been sent. Unless you issue specific instructions to do otherwise, we will assume you consent to our use of facsimile transmissions to your representatives and other use of these electronic devices during the term of this MSA as we deem appropriate. Use of a Party's Name Neither party may use the other party's name, its trademarks, service marks or logos in connection with the services contemplated by this Agreement or otherwise without the prior written consent of such party, which consent may be withheld for any reason and may be subject to certain conditions. Use of Non licensed Personnel Certain Engagement personnel, who are not licensed as Certified Public Accountants, may provide services as part of this Agreement Tax and Consulting Master Services Agreement Page 5 of 6 Force Majeure Neither party shall be liable for breach of this Agreement (other than payment obligations) caused by circumstances beyond such party's reasonable control. Dispute Resolution Procedure, Venue and Limitation Period This Agreement shall be governed by the laws of the state of Washington, without giving effect to any conflicts of laws principles. If a dispute arises out of or relates to the MSA, including, without limitation, any tax and /or consulting services we provide to you subject to this MSA, and if the dispute cannot be settled through negotiations, the Parties agree first to try in good faith to settle the dispute by mediation using an agreed upon mediator. If the Parties are unable to agree on a mediator, the Parties shall petition the state court that would have jurisdiction over this matter if litigation were to ensue and request the appointment of a mediator, and such appointment shall be binding on the Parties. Each Party shall be responsible for its own mediation expenses, and shall share equally in the mediator's fees and expenses. If the claim or dispute cannot be settled through mediation, each Party hereby irrevocably (a) consents to the exclusive jurisdiction and venue of the appropriate state or federal court located in King County, state of Washington, in connection with any dispute hereunder or the enforcement of any right or obligation hereunder, and (b) WAIVES ITS RIGHT TO A JURY TRIAL. EACH PARTY FURTHER AGREES THAT ANY SUIT ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE FILED IN A COURT OF PROPER JURISDICTION WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. Term The initial term of this Agreement shall begin on the later of the date signed by Client or Moss Adams and continue for one (1) year. This Agreement will renew annually for successive one (1) year terms unless either Party terminates as provided in this Agreement. Termination This Agreement may be terminated by either Party, with or without cause, upon ten (10) days written notice. In such event, we will stop providing services hereunder except on work, mutually agreed upon in writing, necessary to carry out such termination. In the event of termination, (a) you shall pay us for services provided and expenses incurred through the effective date of termination, (b) we will provide you with all finished reports that we have prepared pursuant to this Agreement, and (c) neither Party shall be liable to the other for any damages that occur as a result of our ceasing to render services. Entire Agreement This Master Services Agreement, including any applicable Addendum /Addenda, constitutes the entire Agreement and understanding between Moss Adams and the Client regarding our tax and related consulting services. You agree that in entering into this Agreement you have not relied upon any oral or other representations, promises or statements made by anyone which is not set forth herein. Enforceability In the event any portion of this Agreement is deemed invalid or otherwise unenforceable, the other provisions shall remain in full force and effect. Tax and Consulting Master Services Agreement Page 6 of 6 Execution of this Agreement This Agreement may have been forwarded to you by email or facsimile transmission. Your acceptance of this Agreement, returned by the same or similar means is legally binding upon Moss Adams and you. The party executing this Agreement represents that he /she has the authority to make this Agreement with Moss Adams and to bind to its terms you and any of your affiliates or others for whom services are performed. AGREED: THE CITY OF PORT ANGELES Signature: Print Name: Kent MY 4 Title: City Manager_ City of Port Angel es Date: fl?/12/12 MOSS ADAMS LLP Signature: Print Name: Marke C. Greene. CPA Title: Partner Date: March 6. 2012 Client SALT 622902