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HomeMy WebLinkAbout2018-474-E Tax - OC TMA NC audit servicesDocuSign Envelope ID: 62A1013D- 4F2B- 44EF- ADF9- D546F5907E88 Tax Management Associates, Inc. Business Personal Property Audit and Consulting Services Contract This Contract Addendum is made and entered into this 21 day of August, 2018 by and between ORANGE COUNTY, a political subdivision of the State of North Carolina, hereinafter referred to as "County" and TAX MANAGEMENT ASSOCIATES, INC., a corporation authorized to conduct business in North Carolina, hereinafter referred to as "TMA ". WITNESSETH: WHEREAS, the County desires to obtain audit services on the County business personal property taxpayers as authorized by the North Carolina General Statutes; and WHEREAS, the North Carolina General Assembly 2011 has passed House Bill 462 and subsequently amended General Statute §105-299 to prohibit the use of contingency based payments for the services found in the original agreement; and NOW, THEREFORE, for in consideration of the mutual covenants and agreements made herein, the parties agree as follows and in Attachment 1: AGREEMENT A. AUDIT SERVICES: 1. In accordance with the charges, terms and condition contained in the Agreement, TMA agrees to furnish business personal property audit services to verify the accuracy of taxpayers' tax listings files with the Orange County Tax Administrator. 2. The services provided by TMA will be performed in accordance with the terms and conditions provided by this Agreement and in compliance with all applicable North Carolina Property Tax Statutes. TMA agrees to perform audits in accordance with professionally accepted auditing and accounting standards 3. In accordance with the charges, terms and conditions contained in this agreement, TMA agrees to furnish Business Personal Property Audit Services to verify the accuracy of business taxpayers' business personal property tax listings filed with the Orange County Tax Administrator. Approximately one hundred and four (104) audit locations will be performed over the course of the term of the Agreement. Audits to be performed by TMA to verify the accuracy in Taxpayers' listings shall be selected and assigned by the County as may hereafter be deemed appropriate. 1 Revised 7/2018 DocuSign Envelope ID: 62A1013D- 4F2B- 44EF- ADF9- D546F5907E88 Class Personal Property Assessed Value Range A $50,000 - $399,999 B $400,000 - $999,999 C $1,000,000 - $4,999,999 D $5,000,000 - $19,999,999 D3 $20,000,000 and greater Breakdown Size FY2018 -19 (Over $100,000) 83 11 C 9 1 3 0 Per Year Count 104 Per Year Cost $76,440 4. All correspondence in connection with audits sent to the Taxpayer will be signed by the County Tax Administrator or by his authorized designee. 5. In order to assist in the scheduling of taxpayers' listings selected by the County for audit, the County agrees to make available to TMA copies of the personal property listings for the years for which audits are to be performed. 6. TMA agrees to audit all listings assigned for audit for the most current year and applicable prior years up to five (5) years as provided by North Carolina General Statute § 105 -3 12 which provides for Discovery Procedures and Limitations. 7. It is expressly understood by TMA that under the provisions of North Carolina General Statute §105 -299, it and its employees are subject to the State Confidentiality Statutes (General Statute §105-289(1) and General Statute §105-259) and the penalties contained therein. TMA agrees to abide by the North Carolina Statutes concerning confidentiality of taxpayer records and shall hold the County harmless from any liability which may result from an action involving TMA or its employees or agents regarding confidentiality of taxpayer records. 8. TMA agrees to provide training to designated employees of the County as to all aspects of the audit services provided pursuant to this Agreement. Any appropriate designee of the County may accompany TMA on any audit, provided the County shall be responsible for the travel related expenses of such County employee. 9. TMA agrees that no employee of the company will consult with or answer questions regarding any aspect of an audit being performed, except with authorized County officials 2 Revised 7/2018 DocuSign Envelope ID: 62A1013D- 4F2B- 44EF- ADF9- D546F5907E88 and the taxpayer being audited, unless otherwise directed to do so by the County Tax Administrator. 10. If through any cause, TMA or the County fails to fulfill its obligations as provided by this Agreement, or materially violates any of the covenants or stipulations within this Agreement, or becomes unsatisfied with services rendered, and such failure or violation continues for thirty (30) days after written notice thereof by a party, either party shall thereupon have the right to terminate this Agreement immediately upon giving thirty (30) prior written notice to the other party. Said notice shall be mailed to the party by certified mail to the mailing address as specified herein. In the event of termination, all audits assigned and completed by TMA and all fees for completed audits shall be payable in accordance with the terms as provided by this Agreement, less any costs or expenses incurred or anticipated to be incurred by the County due to any errors or omissions of TMA. Should this Agreement be terminated, TMA shall deliver to the County within seven (7) days, at no additional cost, all deliverables including any electronic or files relating to the audit. 11. It is expressly understood and agreed to by TMA and the County that the audit services performed under this Agreement represent an examination of data and materials, as might be contained in a taxpayer's accounting records or other documents, for the purpose of verifying the accuracy of listings, reports, or statements filed with the County in connection with a taxpayer's listing of property. This service is not an appraisal service except that information obtained in an audit performed by TMA may be used by the County Tax Administrator to form an opinion or estimate of value as in an appraisal. TMA is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work related to the audits. B. COST AND PAYMENT FOR AUDIT SERVICES: 1. The County shall pay to TMA for services furnished under this Agreement the sum of seven hundred thirty-five dollars ($735.00) per taxpayer location assigned for audit by the County. TMA agrees to bill the County on a monthly basis; however, no billing shall include charges for services rendered on an audit unless and until the audit has been completed and the taxpayer's appeal rights exhausted or time barred by applicable statutes of limitations, unless otherwise agreed by the County Tax Administrator. 2. Invoicing - The County agrees to pay TMA for all properly completed and invoiced services. If the event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated in an invoice until the parties resolve the dispute. Should TMA fail to perform its duties under the terms of this Agreement, County may, without fault or penalty, withhold any payments associated with the work to be performed until such time as said work is completed. 3. Not Contingency Fee — It is expressly understood by the County and TMA that the invoicing provisions of this contract and/or contract addendum(s) are not subject to or contingent on the results of any or all audit(s) assigned by County to TMA and performed by TMA. Fees for said audits, regardless of the outcome or results of said audits, will be invoiced by TMA to the County after said audits have been completed 3 Revised 7/2018 DocuSign Envelope ID: 62A1013D- 4F2B- 44EF- ADF9- D546F5907E88 and the taxpayer's appeal rights exhausted or time barred by applicable statutes of limitations, unless otherwise agreed by the County Tax Administrator. 4. Any irregularity, other than those resulting in a discovery under NCGS § 105 -312, found during the course of an audit engaged by TMA, which results in the jurisdiction's ability to bill to and collect from the taxpayer additional taxes, penalties, and interest, not billed for prior to the audit, falls within the fee and payment provisions of this contract. By way of example, an irregularity may include, but is not limited to, the billing and collection of additional taxes, penalties, and interest due to an immaterial irregularity described NCGS § 105 -394. 5. All expenses incurred by TMA in performing audits under this Agreement including, but not limited to, travel, food, lodging, mileage, salaries, etc. shall be the responsibility of TMA. The County will be responsible for the cost of postage for handling audit correspondence and the cost of providing TMA copies of County tax records associated with an individual audit. 6. All legal costs involving tax appeals resulting from an audit under this Agreement shall be the responsibility of the County. TMA shall be responsible for defending its audit findings throughout any tax appeals process without additional cost to the County. Defense of audit findings shall include personal appearances at meetings with taxpayers or their representatives, and providing testimony and evidence at all hearings before the County Tax Administrator, Board of Equalization and Review, Board of County Commissioners, and at any other appeal level concerning information identified in an audit. C. GENERAL PROVISIONS 1. AUTHORITY TO CONTRACT: The County authority to contract for the service herein is authorized by North Carolina General Statute § 105 -299. 2. AUDIT: All invoices shall be submitted by TMA to the County Tax Administrator with sufficient detail for a proper pre -audit or post- audit. 3. CANCELLATION: This Agreement shall become effective from the date entered above and shall remain in effect for an initial term of this Agreement and shall continue in effect thereafter until cancelled or terminated. This Agreement may be terminated by either party without cause following the initial term upon thirty (30) days written notice. 4. COLLATERAL ASSIGNMENT: The County acknowledges and agrees that payment due TAX MANAGEMENT ASSOCIATES, INC. under this Agreement and all other agreements with the government authority (the "Agreement ") have been collaterally assigned to Branch Banking and Trust Company (a North Carolina banking corporation, whose address is 6869 Fairview Road, Charlotte, North Carolina 28210- 3384). All payments due TAX MANAGEMENT ASSOCIATES, INC. under this the Agreement will be sent, UPON REQUEST by Branch Banking and Trust, to the Bank at that address pursuant to a financing and cash management arrangement. Payments made by the County pursuant to such request shall constitute accord and 4 Revised 7/2018 DocuSign Envelope ID: 62A1013D- 4F2B- 44EF- ADF9- D546F5907E88 satisfaction the sums due to TMA. The Bank is authorized to receive information relating to this Agreement and payments due under the Agreement and all amendments or modifications to the Agreement from ORANGE COUNTY (the government authority). The Bank is authorized to rely upon the terms of the Agreement. The government authority agrees to give notice to the Bank thirty (30) days prior to termination of this Agreement by action of the governing body. 5. INDEMNIFICATION: To the fullest extent permitted by North Carolina laws and regulations, TMA shall indemnify and hold harmless the County and its officials, agents, and employees from and against all claims, damages, losses and expenses, direct, indirect or consequential (including, but not limited to, fees and charges to attorneys and other professionals and costs related to court action or arbitration) arising out of or resulting from the performance of this contract or the actions of TMA or its officials, employees, or contractors under this Contract or under the Contracts entered into by TMA in connection with this contract. This indemnification shall survive the termination of this Agreement. 6. NON - DISCRIMINATION: Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal non - discrimination laws, policies, rules, and regulations and the Orange County Non - Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated herein by reference and may be viewed at http: / /www. orangecountync. gov/ departments / purchasing _division /contracts.php.) Any violation of the Orange County Non - Discrimination Policy is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. 7. LAW CONTROLLING: This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. By executing this Agreement TMA affirms that they and any subcontractors of TMA are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement TMA certifies that they has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. §147-86.58. By executing this Agreement TMA certifies that TMA has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. § 147- 86.81. 8. NON - ASSIGNMENT: This Agreement is not assignable by either party, by operation of law or otherwise. 9. MODIFICATION: This contract may be modified only by a written agreement executed by both parties hereto. 10. ENTIRE AGREEMENT: This contract constitutes the entire agreement of the parties and no other agreement or modification to this contract, expressed or implied, shall be binding on either party unless same shall be in writing and signed by both parties. This 5 Revised 7/2018 DocuSign Envelope ID: 62A1013D- 4F2B- 44EF- ADF9- D546F5907E88 Agreement may not be orally modified. Any modifications must be in writing, expressly titled a modification or addendum to this contract, attached to this contract, and signed by both parties. 11. SEVERABILITY: Should any provision, portion, or application thereof of this Agreement be determined by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any applicable law or constitutional provision, the Parties shall negotiate an equitable adjustment in the affected provisions of this Agreement with a view toward effecting the purpose of this Agreement, and the validity and enforceability of the remaining provisions, portions, or applications thereof, shall not be impaired. 12. TERM: The term of the Agreement shall be for one year period, beginning November 1, 2018 and ending October 31, 2019 and may be renewed for additional four one year periods under the same terms unless amended by mutual agreement of the parties or terminated sooner in accordance with this Agreement. 13. NON - APPROPRIATION. TMA acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to TMA of the unavailability and non - appropriation of public funds. It is expressly agreed that County shall not activate this non - appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and /or mandated functions, by state and/or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to TMA of such limitation or change in County's legal authority. 14. INSURANCE REQUIREMENTS. TMA shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may be required by County's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http: / /www.orangecountync.gov/ departments / purchasing _division /contracts.php). If County's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of (if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 15. DISPUTE RESOLUTION. Any and all suits or actions to enforce, interpret or seek 6 Revised 7/2018 DocuSign Envelope ID: 62A1013D- 4F2B- 44EF- ADF9- D546F5907E88 damages with respect to any provision of, or the performance or non - performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. 16. SIGNATURES. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the consent of the Parties to utilize electronic signatures and the intent of the Parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. 17. NOTICES. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Orange County Attention:Dwane Brinson P.O. Box 8181 Hillsborough, NC 27278 TMA's Name Richard Cooke, Jr. 5121 Parkway Plaza Blvd. Charlotte, NC 28217 In WITNESS WHEREOF, the parties have duly executed this Contract as of the date first above written. Tax Management Associates, Inc. OacuSigned dy: IV' 8/22/2018 EBA11A5CC9BA40A... Jr ., CEO Date 1 \1V11U1U 11. �VV11V, Orange County oocusigned by: �6lnJlR1l. �ir KAr Y� Lfl6379946755E477... .......� , „ounty Manager 7 Revised 7/2018