HomeMy WebLinkAbout24- City Administrator CITY OF SAN BERm ARDINO - REQUEST . OR COUNCIL ACTIO1
From: Fred Wilson Subject: Authorization to execute subpoena.
Assistant City Administrator for production of business record:
Dept: relative to an audit of utility
users taxes.
Date: March 9 , 1995
Synopsis of Previous Council action:
Recommended motion:
That the Mayor be authorized to execute the attached subpoenas for
the production of business records of the following utility
companies: Southern California Gas; Southern California Edison;
Pacific Bell and General Telephone for the purpose of conducting
an audit of utility users taxes.
' Signature
Contact person: Fred Wilson Phone: 5122
Supporting data attached: yPC Ward:
FUNDING REQUIREMENTS: Amount:
Source: (Acct. No.)
(Acct. Description)
/t q 33 3 �70 Finance:
Council Notes:
C �n
75-02e2 A n a tem No.-�_9S
STAFF REPORT
The mid-year budget report discussed the shortfall in utility users
tax collections from GTE apparently as a result of their
implementation of a new billing system. The City's utility user
tax consultant, Municipal Resource Consultants (MRC) , is working
with GTE and the other telecommunications providers in an effort to
resolve the issue. MRC has notified these companies that an audit
of their billing records is a necessary step to that end. In order
to audit their records, the Public Utilities Commission (PUC) ,
requires that a subpoena be issued ordering the production of
business records. Access to this information by MRC will permit
them to audit phone company records to determine the amount of
utility users tax due the City.
The subpoenas for Southern California Edison and Southern
California Gas companies are also included at this time since MRC
also performs routine audits of these companies as part of the
City's efforts to maximize utility users tax revenue collections.
It is therefore requested that the Mayor be authorized to execute
the attached subpoenas.
3
�pUR�E
M z MUNICIPAL RESOURCE CONSULTANTS 32107 W.Lindero Canyon Road
R c Suite 233
of C y A partnership of John T. Austin, Inc. &Allen W. Charkow, Inc. Westlake Village,CA 91361
?� Sy� 18800 247 4406
March 2, 1995
Mr. Frederick Wilson
Assistant City Administrator
City of San Bernardino
300 North D Street
San Bernardino,CA 92418
Re: Utility User Tax Audit Subpoena's
Dear Mr. Wilson:
The attached subpoena's are provided for approval and signature. Please return the
originals as soon as possible.
If there are any questions or additional information required, please contact me at your
earliest convenience.
Sincerely,
James N. Thompson
Attachments
cc: Donald H. Maynor
7 2
G1
In re: Audit of Electric,Gas ) SUBPOENA
and Telephone Utility Users Taxes) For Production of
Fees. ) Business Records
(Govt. Code §37104 et seq.)
TO: CUSTODIAN OF RECORDS OF SOUTHERN CALIFORNIA GAS
COMPANY
FROM: CITY OF SAN BERNARDINO
1. YOU ARE ORDERED TO PRODUCE BUSINESS RECORDS
described in Item 3 as follows:
a. By delivery of a true, legible, and durable electronic copy of the
business records described in item 3 to: MUNICIPAL RESOURCE
CONSULTANTS, c/o Mr. James Thompson, 32107 W. Lindero Canyon
Road,Suite 233,Westlake Village,CA 91361.
2. The records are to be produced by no later than 20 days after the
issuance of the subpoena, or 15 days after service, whichever is later.
Reasonable costs of copying and postage are recoverable from the City.
The records shall be accompanied by an affidavit of the custodian or other
qualified witness stating in substance each of the following:
a. the affiant is the duly authorized custodian of records or other
qualified witness and has authority to certify the records;
b. the copy is a true copy of all the records described in the
fsubpoena; and,
c. if SoCalGas has none of the records described, or only part
thereof, the custodian or other qualified witness shall so state in the
affidavit, and deliver the affidavit and such records as are available.
3. The records to be produced are as follows:
a. The names and addresses of all nonresidential
customers within the City that are deemed exempt from
the City's utility users tax.
-1-
b. The names, addresses and account numbers of all
current SoCalGas customers, by revenue class, within the
City. The gross revenue amount billed to each of those
accounts and the amount of City utility users tax collected
for each account during the audit period.
C. The addresses and account numbers of all accounts
in adjacent or shared postal zip codes contiguous to the
City's boundaries.
d. The names, service and billing addresses, account
numbers, and gas quantities delivered for all current
SoCalGas customers (including transportation only
customers) for which SoCalGas transports, but does not
supply, all or part of the customer's gas supplies
(including CIGs and AIGs).
e. The names, service and billing addresses, and
account numbers of all current SoCalGas customers
(including transportation only customers) for which
SoCalGas supplies and/or transports gas that is used in
the cogeneration of electricity.
Dated Issued:
ayor,
CITY OF SAN BERNARDINO
ATTEST:
City Clerk
-2-
a:\SCGsub
In re: Audit of Electric,Gas ) SUBPOENA
and Telephone Utility User Taxes) For Production of
and Franchise Fees. ) Business Records
(Govt. Code §37104 et seq.)
TO: CUSTODIAN OF RECORDS OF PACIFIC BELL
FROM: CITY OF SAN BERNARDINO
1. YOU ARE ORDERED TO PRODUCE BUSINESS RECORDS
described in Item 3 as follows:
a. By delivery of a true, legible, and durable electronic copy of the
business records described in item 3 to: MUNICIPAL RESOURCE
CONSULTANTS, c/o Mr. James Thompson, 32107 W. Lindero Canyon
Road,Suite 233,Westlake Village, CA 91361.
2. The records are to be produced by no later than 20 days after the
issuance of the subpoena, or 15 days after service, whichever is later.
Reasonable costs of copying and postage are recoverable from the City.
The records shall be accompanied by an affidavit of the custodian or other
qualified witness stating in substance each of the following:
a. the affiant is the duly authorized custodian of records or other
qualified witness and has authority to certify the records;
b. the copy is a true copy of all the records described in the
subpoena; and,
c. if Pacific Bell has none of the records described, or only part
thereof, the custodian or other qualified witness shall so state in the
affidavit, and deliver the affidavit and such records as are available.
3. The records to be produced are as follows:
a. The names and addresses of all nonresidential
customers within the City that are deemed exempt from
the City's utility users tax.
-1-
b. The names, addresses and account numbers of all
current Pacific Bell customers, for telecommunication
services,by revenue class within the City.
C. The gross amount of revenues billed to each
account for intrastate-infra lata toll services, network
access charges, all ancillary services (e.g. custom calling),
intrastate-inter lata charges, billed by Pacific Bell, and the
amount of the City utility users tax collected from each
such account.
d. The addresses and account numbers of all accounts
in adjacent or shared postal zip codes contiguous to the
City's boundaries.
Dated Issued:
Mayor,
CITY OF SAN BERNARDINO
ATTEST:
City Clerk
I
-2-
a.APacbsub
In re: Audit of Electric,Gas ) SUBPOENA
and Telephone Utility Users Taxes) For Production of
and Franchise Fees. ) Business Records
(Govt. Code §37104 et seq.)
TO: CUSTODIAN OF RECORDS OF GTE
FROM: CITY OF SAN BERNARDINO
1. YOU ARE ORDERED TO PRODUCE BUSINESS RECORDS
described in Item 3 as follows:
a. By delivery of a true, legible, and durable electronic copy of the
business records described in item 3 to: MUNICIPAL RESOURCE
CONSULTANTS, c/o Mr. James Thompson, 32107 W. Lindero Canyon
Road, Suite 233,Westlake Village, CA 91361.
2. The records are to be produced by no later than 20 days after the
issuance of the subpoena, or 15 days after service, whichever is later.
Reasonable costs of copying and postage are recoverable from the City.
The records shall be accompanied by an affidavit of the custodian or other
qualified witness stating in substance each of the following:
a. the affiant is the duly authorized custodian of records or other
qualified witness and has authority to certify the records;
b. the copy is a true copy of all the records described in the
subpoena; and,
c. if GTE has none of the records described, or only part thereof,
the custodian or other qualified witness shall so state in the affidavit, and
deliver the affidavit and such records as are available.
3. The records to be produced are as follows:
a. The names and addresses of all nonresidential
customers within the City that are deemed exempt from
the City's utility users tax.
-1-
b. The names, addresses and account numbers of all current
GTE customers, for telecommunication services, by revenue class
within the City.
C. The gross amount of revenues billed to each account for
intrastate-infra lata toll services, network access charges, all ancillary
services (e.g. custom calling), intrastate-inter lata charges, billed by
GTE, and the amount of the City utility users tax collected from each
such account.
d. The addresses and account numbers of all accounts in
adjacent or shared postal zip codes contiguous to the City's boundaries.
Dated Issued:
Mayor,
CITY OF SAN BERNARDINO
ATTEST:
City Clerk
-2-
a:\GTEsub
In re: Audit of Electric,Gas ) SUBPOENA
and Telephone Utility Users Taxes) For Production of
and Franchise Fees. ) Business Records
(Govt. Code §37104 et seq.)
TO: CUSTODIAN OF RECORDS OF SOUTHERN CALIFORNIA EDISON
COMPANY
FROM: CITY OF SAN BERNARDINO
1. YOU ARE ORDERED TO PRODUCE BUSINESS RECORDS
described in Item 3 as follows:
a. By delivery of a true, legible, and durable electronic copy of the
business records described in item 3 to: MUNICIPAL RESOURCE
CONSULTANTS, c/o Mr. James Thompson, 32107 W. Lindero Canyon
Road,Suite 233,Westlake Village, CA 91361.
2. The records are to be produced by no later than 20 days after the
issuance of the subpoena, or 15 days after service, whichever is later.
Reasonable costs of copying and postage are recoverable from the City.
The records shall be accompanied by an affidavit of the custodian or other
qualified witness stating in substance each of the following:
a. the affiant is the duly authorized custodian of records or other
qualified witness and has authority to certify the records;
b. the copy is a true copy of all the records described in the
subpoena; and,
c. if Edison has none of the records described, or only part thereof,
the custodian or other qualified witness shall so state in the affidavit, and
deliver the affidavit and such records as are available.
3. The records to be produced are as follows:
a. The names and addresses of all nonresidential
customers within the City that are deemed exempt from
the City's utility users tax.
-1-
b. The names, addresses and account numbers of all
current Edison customers, by revenue class, within the
City. The gross revenue amount billed to each of those
accounts and the amount of City utility users tax collected
for each account during the audit period.
C. The addresses and account numbers of all accounts
in adjacent or shared postal zip codes contiguous to the
City's boundaries.
Dated Issued: 'JZ'( �2
Mayor,
CITY OF SAN BERNARDINO
ATTEST:
City Clerk
-2-
a:\Edsub
NONDISCLOSURE AND PROTECTIVE AGREEMENT
THIS NONDISCLOSURE AND PROTECTIVE AGREEMENT("Agreement"), effective when executed by the parties, is
made by and among GTE California Incorporated ("GTEC"), with address for purposes of this Agreement of One GTE Place,
CASOOLB, Thousand Oaks, CA 913a2-3811, the City of ("City'), with an address for the purposes of this
Agreement of I , CA and Municipal Resource Consultants ("MRC"), a
partnership, with an address for the purposes of this Agreement of 32107 West Undero Canyon Road, Suite 233, Westlake
Village. CA 91361 (collectively, "Recipients") to protect the confidential or proprietary nature of information to be disclosed
by GTEC to Recipients, or either of them, pursuant to that certain SUBPENA For Production of Business Records (Govt. Code
1 37104 or seq.)issued by the City to GTEC on _, 1993 ("Subpena").
ACCORDINGLY, the parties hereto and their counsel agree that the following terms and conditions shall govern the
use of Confidential Information provided to Recipients, or either of them, in accordance with the Subpena:
1. "Confidential Information" as used herein means any information in written. oral of other tangible or intangible form
which may include but is not limited to, ideas, concepts, know-how,models,diagrams, flowcharts, data, computer
programs, marketing plans, business plans, customer names, customer account numbers, customer billing
information, customer demographic information and other technical, financial, customer or business Information,
which is designated as "confidential' or"proprietary" by GTEC in the belief that it contains a trade secret or other
confidential research, development, customer, commercial or financial information. Documents containing
Confidential Information and all copies thereof shall remain the property of GTEC, and all copies thereof shall be
returned to counsel for GTEC as set forth hereinbelow.
2 This Agreement governs all Confidential Information whether produced, revealed or disclosed to Recipients by
GTEC, or any other GTE-affiliated entity, including, but not limited to, GTE Corporation, GTE Service Corporation
and any affiliated entity of GTE Telephone Operations.
3. Recipients, and each of them, acknowledge, covenant and agree:
a. All Confidential Information shall be and shall remain the exclusive property of the source;
b. Confidential Information shall not be revealed or disclosed without the express advance consent of GTEC
and except as provided for in this Agreement;
C. To receive in confidence any Confidential Information; to limit access to such Confidential Information to
authorized agents and/or employees who have a need to know the Confidential Information; and not-to
disclose such Confidential Information to others or authorize anyone else to disclose such Confidential
information to others without the prior written approval of GTEC;
d. To Inform the receiving parry, in advance of any disclosure of Confidential Information, In non-confidential
and non-proprietary terms, of the nature of the proposed disclosure, and to afford the receiving party the
option of declining to receive the Confidential Information,
e. To identify in writing as confidential or proprietary, or to mark as confidential or proprietary, all
Confidential Information;
f. All persons receiving access to Confidential Information shall treat it as confidential and shall not disciosa
it nor afford access to it to any other person not authorized by GTEC and this Agreement to obtain said
Confidential Information;
g. No copies shall be made of any Confidential Information, whether by photostatic, electronic. mechanical.
database or other means, without the prior consent of GTEC;
h. To return promptly to GTEC, or, at GTEC's option, to destroy any and all copies of Confidential
Information in written, graphic or other tangible form;
i. The obligations with respect to Confidential information shall extend for a period of not less than five (S)
years following the date of Initial disclosure of specific portion of Confidential Information, and such
obligations shall extend beyond completion of the term of this Agreement;
J. Neither disclosure of Confidential Information nor this Agreement shall be construed as a license to make,
use or sell the Confidential Information or any products darived therefrom; and
k. Neither the Confidential Information nor the act of disclosure shall constitute a grant of any license under
N0N0ISCLOSURE AND PROTEt-TIVE AGREEMENT
PAGE 2
any trademark, patent or copyright for the same, not shall they constitute any representation, warranty,
assurance or guarantee by GTEC with respect to the infringement of any trademark, patent, copyright or
any right of privacy, or of any third persons.
4. Except as provided in this paragraph 4, persons receiving Confidential Information shall not disdose at divulge such
Information to any other person. With the prior approval of GTEC, Recipient(sl may disclose Confidential
Information to an expert, agent. consultant or employee of Racipient(s) as necessary to assist Recipients) with
regard to the existing MRC audit. Prior to the disclosure of such Confidential Information to any such expert,
agent, consultant or employee, Recipient(s) shall: (a) Hive GTE-C's counsel prior notice of the identity and affiliation
of any such person; (b) require any such person to read and sign an agreement In the form of Appendix A which is
attached hereto agreeing to abide by the terms of this Agreement; and (e) cause to be delivered to GTEC's counsel
a copy of such agreement. All persons receiving access to Confidential Information shall treat h as confidential and
shag not disclose it nor afford access to it to any other person not authorized by this Agreement to obtain said
information nor shall such information be used in any other manner as for any other purpose than provided in this
Agreement. No copies shad be made of any Confidential Information or arty part thereof without the prior written
consent of GTEC.
S. These obligations do not apply to Confidential Information which is, as shown by clear and convincing tangible
proof:
a_ Was in Recipient's possession prior to receipt thereof from GTEC; or
b. Was received by Recipient in good faith from a third party not subject to a confidential obligation to
GTEC; or
C. Now is or later becomes publicly known through no breach of confidential obligation by Recipients, or
either of them, or their agents or employees, or any third party; or
d. Was developed by Recipient(s) without the developing person(s) having access to Confidential
Information received from GTEC or is developed independently by Recipient's) without any portion of the
development having been based on the Confidential Information.
6. If Recipients, or either of them, wish to divulge or disclose any such Confidential Information in testimony,
examination, exhibits or briefs in any legal or administrative proceeding, Recipients shall contact counsel for GTEC
at least three (3) business days prior to such use to detormino the appropriate protections to be imposed in order to
ensure the confidential and proprietary nature of the information against disclosure to any persons not bound by
this Agreement.
7. This Agreement does not preclude GTEC from opposing the production of any Confidential Information or
documents for lack of relevance or from objecting on any grounds to the use of such Confidential Information in
any legal or administrative proceeding.
S. n is agreed that a violation of any of the provisions of this Agreement by Recipients, or either of them, will cause
irreparable harm and injury to GTEC and that GTEC shall be entitled, in addition to any other rights it may have at
law or in equity, to an injunction enjoining and restraining the violating party from doing or continuing to do any
such act and any other violations or threatened violation of this Agreement.
9. Recipients, and each of them, agree to indemnify and hold harmless GTEC from and against any and all claims,
losses, actions, damages, fines, expenses, attorneys' fee and all other liabilities and costs arising out of or resulting
from the negligent performance, failure to perform, or willful misconduct of Recipients, or either of them, of any
provision of this Agreement and for the negligent acts or omissions or wrongful or willful misconduct of their
agents, servants, officers or employees.
10. Neither this Agreement nor provision of Confidential Information pursuant to it shall be construed as an agreement,
commitment, promise or representation by GTEC to do business with Recipients, or either of them, or to do
anything except as set out specifically in this Agreement.
11. This Agreement shall be construed in accordance with the laws of the State of California.
NONDISCLOSURE AND PROTECTIvd AGREEMENT
PAGE 3
12. This Agreement is the entire agreement between the parties with respect to nondiscioeure of Confidential
Information and supersedes all prior agreements and understandings with respect to this subject. This Agreement
may be amended only by written agreement executed by the parties- This Agreement shall not be assigned or
transferred by Recipients, or either of them, without the prior written consent of GTEC. This Agreement shall be
binding on agents, successors and permitted assigns of the parties.
FOR "GTEC` FOR RECIPi�
BV BY
Name •John F. Raoosa Name Tom Minor
Title Attomev Title Mayor
Date Dap March 21, 1995
FOR RECIPIENT"MRC"
ey
Name
Title
Date
a�vrPeo�cH�.o�nc r,eFnH,.
,
"PENVIX A
AGREEMENT FOR ACCESS TO GTE CAUFORNIA'S
PROPRIETARY AND CONFIDENTIAL INFORMATION
I.
(Name) (Title)
hereby acknowledge that I have received and read a copy of the Nondisclosure and Protective Agreement by and among
GTE California Incorporated ('GTEC'), the City of and Municipal Resource Consultants ('Agreement')
regarding the production of Confidential Information as defined therein. I understand and agree to be bound by all the terms
of said Agreement. I further state that neither 1 nor any firm with which I am affiliated will use any Confidential Information
to which 1 obtain access pursuant to said Agreement in connection with the development of any marketing strategies or
plans of any firm,person or entity and that I will use said Confidential infomtation exclusively for the purpose of the MRC
Audit.
DATED: ' 1933
Signature
Company/Firm
Business Address
Business Telephone