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HomeMy WebLinkAbout33- City Administrator CITY OF SAN BERdARDINO — REQUEST rOR COUNCIL ACTION From: Fred Wilson Subject: Authorization to execute subpoenas Assistant City Administrator for production of business records 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. 4e .. Signature Contact person: Frpd W; 1 Gin Phone: 5122 Supporting data attached: yP-q Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct. Description) Finance: Council Notes: 75-0262 Agenda Item No. 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. ,,OURC�CO G R m MUNILIPAL RESOURCE CONSULTANT' 32107 W.Lindero Canyon Road c Suite 233 A partnership of John T. Austin, Inc. &Allen W Charkow, Inc. Westlake Village,CA 91361 (818)991-5220 1-800-247-4406 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 .f D, T G , . �-1 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 subpoena; 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: Mayor, 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-intra 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 -2- a:\Pacbsub 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- aAGTEsub 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: Mayor, CITY OF SAN BERNARDINO ATTEST: City Clerk -2- aAEdsub 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, CASOOLS, Thousand Oaks, CA 91362-391 1, the City of ("City'), with an address for the purposes of this Agreemant of , 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 of 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 or other tangible or intangt-b1e 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 party, 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 disclose 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; 1. The obligations with respect to Confidential Information shall extend for a period of not less than five (5) years following the date of initial disclosure of specifio 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 derived therefrom; and k. Neither the Confidential Information nor the act of disclosure shall constitute a grant of any license under NONDISCLOSURE AND PROTECTIVE 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 disclose or divulge such Information to any other person. With the prior approval of GTEC, Recipient(*)may disclose Confidential Information to an expert, agent, consultant or employee of Recipient(s) as necessary to assist Recipient(s) 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) give GTEC'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 wNch is attached hereto agreeing to abide by the terms of this Agreement; and (c) cause to be delivered to GTEC's counsel a copy of such agreement. All persons receiving access to Confidential Information shall treat ft 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 shall be made of any Confidential Information or any part thereof without the prior written consent of GTEC. 5. 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 parson(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 determine the appropriate protections to be imposed in order to ensurs 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. a. It 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 PROTECTIVE AGREEMENT PAGE 3 12. This Agreement is the entire agreement between the parties with respect to nondisclosure 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 RECIPIENT "CITY" BV BY Name_ •John F. Rosa Name Title Attomey Title Data Dots FOR RECIPIENT"MRC" By Name Title Date G�W P90�Fwu0�TIC TB W�w APPMVIX A AGREEMENT FOR ACCESS TO GTE CALIFORNIA'S PROPRIETARY AND CONFIDENTIAL INFQBMATION I, (Name) ,(Tide) hereby acknowledge that I have received and road 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 I nor any firm with which I am affiliated will use any Confidential information to which I 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 Information exclusively for the purpose of the MRC Audit. DATED: , 1993 Signature Company/Firm Business Address Business Telephone