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CITY OF SAN BE~ARbINO - REQUES():OR COUNCIL ACTION
From:
Fred Wilson Subject:
Assistant to City Administrator
Settlement agreement with Edison
for collection of franchise fees
and utility users tax.
Dept:
Dete: April 27, 1992
Synopsis of Previous Council action:
10/16/92 __ Mayor and Council executed agreement with Donald Maynor
to perform an audit relating to verification of accurate
collection of franchise fees and utility users tax.
Recommended motion:
Adopt resolution.
Supporting data attached: yes
Phone: Iii 122
Ward:
Contact person:
Fred Wilson
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.)
(Acct. DescriPtion)
Finance:
Council Notes:
Agenda Item No
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CITY OF SAN BOARDINO - REQUESOFOR COUNCIL ACTION
STAFF REPORT
On October 16, 1989, the Mayor and Common Council executed an
agreement with Mr. Donald Maynor in conjunction with the firm of
Ernst and Young to perform an audit relating to verifying the
accurate collection of franchise fees and service users tax from
the southern California Edison company.
The audit had focused on four distinct areas:
1. The computations of the amounts of utility
users' taxes and franchise fees paid to the
city 1
2. The geographic coding of large customers;
3. The procedures used to implement annexations
approved by the City in terms of franchise
fees and utility users tax; and
4. The reasonableness of the recent payment to
the city of $13,979.84 which represented the
results of a self-initiated audit by Edison
Co.
Attached for your review and approval is the settlement agreement
negotiated between Edison and Mr. Maynor as a result of this audit
in the amount of $50,345.23 which constitutes payment in full. It
is recommended that the attached resolution and agreement be
approved.
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1
RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING A
3 SETTLEMENT AGREEMENT WITH SOUTHERN CALIFORNIA EDISON COMPANY
RELATIVE TO PAYMENT OF OUTSTANDING FRANCHISE FEES AND UTILITY USERS
4 TAX.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
6
7
8
SECTION 1.
The Mayor of the city of San Bernardino is hereby
authorized and directed to execute on behalf of said City a
settlement agreement with the Southern California Edison Company
9 relative to payment of outstanding franchise fees and utility users
10 tax, a copy of which is attached hereto, marked Exhibit "A", and
11 incorporated herein by reference as fully as though set forth at
12
length.
13
SECTION 2. The authorization to execute the above referenced
14 agreement is rescinded if the parties to the agreement fail to
15
16
17
execute
it within
sixty
(60)
days
of
the
of
this
passage
resolution.
I HEREBY CERTIFY that the foregoing resolution was duly
18 adopted by the Mayor and Common council of the City of San
19 Bernardino at a meeting thereof, held on the day
20 of , 1992, by the following vote, to wit:
21
22 / / / / /
23 / / / / /
24 / / / / /
25 / / / / /
26 / / / / /
27 / / / / /
28 / / / / /
RESOLU1C:r AUTHORIZING SETTLEMENT <:)EEMENT WITH EDISON COMPANY
1
2 councilmembers ~ HAIli ABSTAIN ABSENT
3 ESTRADA
4 REILLY
5 HERNANDEZ
6 MAUDSLEY
7 MINOR
8 POPE-LUDLAM
9 MILLER
10
11
12
13
14
15
city Clerk
The foregoing resolution is hereby approved this
, 1992.
day of
W. R. Holcomb, Mayor
City of San Bernardino
16
Approved as to form
17 and legal content:
18
JAMES F. PENMAN
city At orney
19
By:
20
21
22
23
24
25
26
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28
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SETTLF.MENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release
(hereinafter the "Agreement") is made as of May 4, 1992, by
and between the City of San Bernardino ("City") and Southern
California Edison Company, a California corporation,
("Edison") .
RECITALS
WHEREAS, Edison is the public utility franchised
to provide electricity within the City, and for which right
it pays an annual franchise fee to the City;
WHEREAS, Edison bills and collects service user
fees from its San Bernardino customers on behalf of the
City, and remits such amounts to the City;
WHEREAS, Edison internal audits and external
audits commissioned by the City identified errors in
geographic coding which indicated some customers were
located inside City limits when actually they were not, and
which indicated other customers were located outside City
limits when actually they were inside;
,
o
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WHEREAS, the geographic coding errors have
distorted franchise fees that have been paid to the City by
Edison and services user fees that have been billed,
collected and remitted to the City by Edison, the exact
amounts of which remain in dispute along with other related
issues and claims;
WHEREAS, the City and Edison are entering into
this Agreement to settle all claims between the City and
Edison without any admission of liability on the part of any
party;
NOW, THEREFORE, in consideration of the terms and
conditions set forth below, the parties agree as follows:
1. PAYment to the Citv. Concurrent with the
execution of this Agreement, Edison shall pay to the City
the sum of Fifty-Thousand, Three Hundred and Forty-Five
Dollars and TWenty-Three Cents ($50,345.23) (the "Settlement
Payment"). The Settlement Payment shall be made by check
payable to the City of San Bernardino and shall be delivered
to Donald Maynor, Esq., at 3220 Alpine Road, Suite A,
portola Valley, CA 94028 to be held in trust for the City.
The City agrees not to negotiate Edison's check prior to
signing this Agreement.
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2. Mutual Release. Upon Edison's full payment
of the Settlement Payment in accordance with paragraph 1
above, the City hereby releases Edison, and its past and
present directors, officers, attorneys, employees,
successors and assigns, and Edison hereby releases the City,
and its past and present representatives, attorneys,
employees, successors and assigns from any and all claims,
demands, warranties, debts, obligations, liabilities, costs,
expenses, rights of action and causes of action, related in
any way to the determination or remittance of franchise fees
or the billing, collection or remittance of service user
fees, whether known or unknown, suspected or unsuspected,
with respect to any period prior to January 1, 1990.
3. Entire Aareement. This Agreement is the
sole, only, entire, and complete Agreement of the parties
hereto relating in any way to the subject matter hereof. No
other statements, promises, or representations have been
made by any party to another, or are relied upon, and no
consideration has been or is offered, promised, expected, or
held out other than as may be expressly provided herein.
4. Section 1542 Waiver. Each of the parties
hereto hereby expressly waives all rights and remedies under
section 1542 of the Civil Code of the State of California,
which provides as follows:
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"A general release does not extend to
claims which the creditor does not know
or suspect to exist in his favor at the
time of executing the release, which if
known by him must have materially
affected his settlement with the
debtor. "
5. Successors and Assians. This Agreement,
including, without limitation, the releases contained
herein, shall bind and inure to the benefit of the
directors, officers, past and present employees, successors
and assigns of the City and Edison.
6. Counternarts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed
an original, and which together shall constitute one and the
same Agreement.
7. No Admission. The execution of this
Agreement effects the settlement of claims which are
disputed, contested and denied. Each party hereto
understands and agrees that nothing herein is intended or
shall be deemed or construed to be an admission of liability
by any other party in any respect or to any extent
whatsoever, and no party shall make any representation to
the contrary.
8. Warrantv of Authoritv. Each party whose
signature is affixed hereto in a representative capacity
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represents and warrants that he or she is authorized to
execute this Agreement on behalf of and bind the entity on
whose behalf his or her signature is affixed.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed on the date written above by
their duly authorized officers on their behalf.
ATTEST:
CITY OF SAN BERNARDINO,
a municipal corporation
By:
W. R. HOLCOMB, Mayor
RACHEL KRASNEY, City Clerk
Approved as to form
and legal content:
JAMES F. PENMAN
City Attorney
SOUTHERN CALIFORNIA EDISON COMPANY
By:
caJ~,b-,..~
R. H. BRIDENBECKER,
Vice President
LW9210S0020
APPROVED
DAVID N. BARRY, m
Vice "'denl and Gene Counsel.
By f.......L.~Y1I~ - .
Attorney
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