HomeMy WebLinkAbout24-City Administrator
CITY OF SAN BERNAh'~~UEST FOR COUNCIL ACTION
Dept: City Administrator's Office
Subject: Resolution authorizing the
execution of an agreement with MBIA
MuniServices Company (formerly MRC) for
services related to Utility Users Tax and
franchise fee revenues
From: Fred Wilson, City Administrator
Date: March 19, 2001
Synopsis of Previous Council Action:
April 1987 - Resolution is adopted authorizing the execution of an agreement with
Municipal Resource Consultants (MRC) relating to sales tax audit services.
March 1996 - Resolution is adopted authorizing execution of an amended agreement with
MRC related to sales tax, utility users tax, franchise fees, business license
fees, and other revenues.
March 21, 2001 - Ways and Means Committee recommends that the revised Agreement with
MBIA MuniServices Company be referred to the full Council after necessary
legal analysis and modifications have been completed by the City Attorney's
Office.
Recommended motion:
Adopt resolution.
fiJ~
Signature
Contact person:
Fred Wilson! Lori Sassoon
Phone: 384-5122
Supporting data attached: Staff report; resolution;
agreement
Ward: All
FUNDING REQUIREMENTS: Amount: Net savings of $11 0, 156 in the first year
Source: (Ace!. No.) 001-092-5505
(Ace!. Description) Non-departmental/contractual
servtces
Finance:
Council Notes:
IJ /1~/oJ
Agenda Item No. :;L 1../
STAFF REPORT
Subiect:
Resolution authorizing a revised agreement with MBIA MuniServices (formerly MRC) for services
related to Utility Users Tax and franchise fee revenues
Backl!:round:
The City has had an agreement with Municipal Resource Consultants (MRC) since 1987 for the
audit of sales and use taxes. In 1996, the Agreement was amended to add revenue enhancement
services which are self-funded by the new revenues realized. Specifically, under this amended
agreement MRC and attorney Don Maynor currently provide audit, legal, and protective services
related to sales/use tax, utility users tax (UUT), franchise fees, and other taxes. Due to the
complexity of these issues, especially with regard to UUT and franchise fees, MRC staff and Don
Maynor have provided valuable expertise, and have worked to collect significant revenues for the
City. MRC was recently acquired by MBIA Muni Services; the firm is now called MMC (which
stands for MBIA MuniServices Company).
This proposed new agreement would adjust the manner in which MMC and Don Maynor are
compensated with regard to Utility User's Tax and cable franchise fee activities. It will not change
the scope or nature of their work, or expand in any way the imposition or collection of the City's
Utility Users Tax.
Recent MMCIDon Mavnor Activities
The services of MMC and Don Maynor for UUT and franchise fee-related services have resulted in
significant additional revenue for the City. The following are some more recent examples:
. In 1998, cities served by Southern California Edison experienced a reduction of approximately
10% in UUT revenues. When Edison asserted that the reduction was due to weather changes
and deregulation, MMC conducted an audit of Edison on behalf of the cities of San Bernardino
and Santa Monica. The audit showed that the reduction was due to an error that occurred due
to Edison's change in billing procedures. Edison admitted the error, and in 1999 the City
received a check equivalent to approximately one month of UUT revenue (approximately
$553,700) that had not been properly paid.
. In early 2000, Edison made plans to change its UUT remittance methodology to one based on
actual UUT collected. This would have resulted in the City collecting no UUT for the month of
June 2000. MMC assisted in negotiations with Edison to have this transition to the new
methodology spread over seven months rather than one month. Additionally, MMC conducted
a review of Edison's proposed "transition amount" and verified that the calculation made by
Edison was reasonable.
. MMC has been evaluating whether or not Edison paid UUT on its telephone service at the
former Edison Call Center. Based on research by Don Maynor, Pacific Bell was able to verify
that Edison had been paying UUT on the call center.
. MMC recently completed audits of TCI and Comcast cable services' UUT and franchise fee
payments. The results of the Comcast audit are under discussion with that company, and are
likely to result in a payment of more than $300,000.
1
· Don Maynor has taken the lead statewide in recent months in negotiating agreements with the
wireless telecommunications companies concerning remittance of UUT on wireless airtime
packages. Once these negotiations are completed, additional UUT revenue will result for the
City.
ProDosed Fixed Fee Al!:reement
In the past, compensation for MMC's work has been based on a contingency fee. According to the
agreement, the City pays MMC 25% of the total additional, new revenue received by the City for a
period of three years following the correction made by MMC, along with 25% of the total
retroactive recovery, if applicable.
It is now recommended that a new agreement be approved with MMC and Don Maynor for UUT
and franchise fee services that will be funded by an annual fixed fee rather than the current
contingency basis. The new agreement would apply only to UUT and franchise fee-related
services. Services related to sales tax, transient occupancy taxes, and other taxes would remain
under the current agreement, with MMC compensated on a contingency basis, as would city-
specific UUT or franchise fee audits. For example, an audit of a local cable company's franchise
fee payments would still be compensated on a contingency basis, but negotiations with wireless
telephone providers on a statewide basis would be covered under the fixed fee. Though the
payment arrangements would change, the services currently provided to the City by MMC and Don
Maynor would remain the same.
By moving to the fixed fee agreement, the City will be participating in a new UUT/Franchise
Compliance and Revenue Protection Program that consolidates various activities and coordinates
them among cities throughout California (see the attached article by Don Maynor from the
November 2000 issue of Western City magazine). The program will include many of the services
currently provided, but at a reduced cost to the City for at least the term of the agreement. In
addition to the cornerstone audit services, the Program will identify utility businesses doing
business in the City that are not collecting the UUT; provide utilities with accurate geocoding
boundaries of the City, which satisfies requirements under proposed federal legislation related to
wireless service; assist the City with updating its UUT ordinance to reflect changes in technology
and regulation; place the City's UUT ordinance on MMC's website for access by tax-collecting
utilities; and assist City staff in addressing complex tax application and exemption issues that arise
from time to time as new products and technologies are introduced. Many of the firm's client cities
that have already adopted the new fixed fee agreement.
In addition to this technical assistance, the proposed fixed fee Agreement has several other benefits
to the City:
· Payments owed to MMC for prior compliance work would be forgiven. Payments owed to
MMC for prior compliance work for reporting periods after January 1,2000, would be forgiven
in exchange for a two-year commitment to the fixed fee program.
· Most auditing work will be included in the fIXed fee. All auditing work would be included in
the fixed fee, with the exception of auditing work that is city-specific (such as cable television
and utility franchise reviews). Since MMC will be addressing a number of major compliance
issues in the coming months that apply to many cities- such as wireless airtime, gas and electric
2
tax application issues, and major wired telecom tax application and exemption issues- it is likely
that some of these activities will produce additional revenues for the City. Under the new
Agreement, this additional revenue would not generate any additional costs to the City. Under
the current performance-based agreement, contingency fees would be owed to MMC.
· Fees would be capped. The new fixed fee approach provides the City with comparable
services for a fixed rates that effectively caps the City's payments for many services. The City's
annual fee to MMC and Don Maynor for these services will equal one-half of one percent
(0.5%) of the City's total UUT revenue for the prior fiscal year, less certain adjustments, or a
minimum of $10,000. While in some years total contingency fees have been lower than the
proposed fixed fee, in 1999 contingency fees significantly exceeded the fixed fee cost.
The proposed agreement has no fixed term, and will continue each year contingent upon
appropriation of funds by the Mayor and Council. The agreement may terminated by either party
upon 30 days written notice. However, should the City terminate the agreement within 24 months
of its execution, MMC would be entitled to receive an additional two years' worth of payments.
Essentially, this means that in order to see the financial benefits of the fixed fee agreement, the new
agreement must be kept in effect for at least 24 months from its execution.
Financial ImDact:
Under the fixed fee agreement, the City's annual fee to MMC and Don Maynor will equal one-half
of one percent (0.5%) of the City's total UUT revenue for the prior fiscal year, less certain
adjustments, or a minimum of $10,000. Of the total percentage fee, 0.375% will be paid to MMC,
and 0.125% will be paid to Don Maynor.
In the first year, the total payments are estimated at $71,271. As the following chart indicates, the
fixed fee agreements will result in an estimated savings of $1l0,155 as compared to the current
agreement:
Fees Due Under Current Fees Due Under Fixed Fee
Agreement for 2000 Agreement for 2000
First year annual payment -0- 71,271
Contingency fees for additional 43,004 -0-
revenues found after 1/1/00
through 12/31/0 I
Contingency fee from SCE 138,422 -0-
"true up" correction (estimate)
Total fees payable for FY 181,426 71,271
2000-0 I
As Attachment A indicates, savings for calendar year 2001 is estimated at $46,380, and for 2002 is
estimated at $20,218. So for at least these first 3 years, the proposed agreement would be self-
funding. Payments for services not covered under the fixed fee, such as City-specific CATV audits,
would also be payable and would amount to 25% of additional revenues recovered for the City.
3
Funds for payment of MMC are budgeted for FY 2000-01 m General Govemment/Non-
departmental contractual services.
Recommendation:
The proposed agreement would continue the City's existing relationship with MMC and Don
Maynor, while resulting in a cost savings to the City. For this reason, it is recommended that the
Mayor and Council adopt the resolution authorizing the execution of the agreement.
4
E
l!
Cl
~
oil.
Z g:
eu..
0::"C
<l: Gl
~~
W 0
00'-
z
<l:
CIl
u..
o
~
()
c::
o
:;::
'ii)
c::
ca
...
I-
...
o
III
oii)
>-
(ij
c::
<l:
o
::Eii
::Eo
.......
'" Gl
Gl Gl
>;-11..
M
Gl
Gl
11..'"
og
::E'"
::E
Gl
Gl
11....
og
::E'"
::E
Gl
Gl
11..0
og
::E'"
::E
'" """
"'N....
0....'"
aeON
"''''....
.. ..
............
'"
'"
"'.
....
'"
....
o '"
o ..
.... '"
N a:i
'" N
....
N....
NO
....0
cO M~
"'....
..
........
'"
'"
.....
..
....
....
<0
'"
.....
..
o
....
....
....
'"
....
o:i
'"
....
'"
..
"t
..
N
..
....
....
N
.....
..
00
..
....
N
00
<0
-.i
N
N
....
<0
....
'"
o:i
....
....
'"
'"
00
-.i
....
....
..
....
"t
..
....
":::n: ::~::::~:~:.::~:~~w::m:::::~: :::::::: .... ::::::::::::::::~::::~::::::::~:~::::8:::8;:::~::;:::.::::~~:W::$~~::;:~:~~ ::::~::::8~:8;::S:.::
....
Gl
ii ::I
C C >-
]io~=
o:EG>O
...."11:0
"......
<l:::J
::J
c
o
:;::
a.
'C
..
..
Gl
C
0"'....
....00..
..<0'"
OM~
<0"''''
...."'N
............
..
"
c
ii:
c1ii
o Cll
~D.
.. ...
~.e
Gl 0 Gl
eo Gl
._ II..
t:a.
.-::J ..
<l:GlU
"::III:
.....::E
Gl...._
fWO
.- 0::E
~1Il::E
~~~
,,"'M
en
c
:;::
..
'N
..
i.;.:
" c
C Gl
::I e
.!! e
.Qen
~'"
'" >-
a...
.. c
Gl Gl
~g'
Ci..
.. c
o 0
.... ..
"
Gl
..
o
a.
e
a.
Gl
.c
..
...
Gl
"
C
::I
..
:is
~c
a.~
.. Gl
!~
" Cll
!J!
e"
.. Q)
.. ><
WI;:
....
U)
....
ui
....
..
...
'"
..
..,
.,;
..,
...
o
'"
M
ui
....
...
...
U)
..
.,;
..
..
...
c
o
:;::
'w
c
l!
..
e
e
..
..
en
c
.;
'"
..
"
Gl
1;
a.
'"
'c
<l:
..
.!l
o
z
..ft.
U)
Gl
.Q
o
..
.c
i
~ c 0
Gl 0 ...
>-.... en
1ii::J"
tU::::).!!
- Gl '"
e.;; .5
eaJ1n
.. C Gl
;;E::e~
~::!!5
1:::: 0 CI,)
o"~
.Q f! 0
CllGl"
;::S!g
,.>..,
e e c
en a.'-
....ll::
"'....
.c.!:!~
,,!!...
c.- ...
Cll ~ ::I
o Gl 0
0.c.Q
0..'"
.., e ...
C 0
._ 0 ~
~.t:~
.... en....
:.5 en
.....Gl
...:;::1
::I .. C
o !! ~
~.. !!
Gl Gl ..
.Qiil~
Gl ._
.:;: > 0
,. !! Gl
......c
Gl",..
::1- Gl
c.2cn
Gl- Cll
> .. !!
!!~..
.... :!.5
::J 0
:: E'i
",:g.l!l
.: ftI c
Gl Gl ::I
...co
-"e
~1ica
c.c,
c" Gl
",Glen
cntaca
" e'"
~.- !:!
.- 1ii o.
oGllL
Gl Gl Gl
~~.;;
~
..
Gl
.c
..
..
::I
Q.
'"
en
en
..
1ii
::I
en
::I
<l:
.5
~
U
Gl
.c
..
>-
.Q
"
Gl
>
.;
..
!!
C
Gl
e
>-
Cll
a.
.
"a.
::J 0
Glen
2:
......
, ...
.. Gl
.c.Q
.. e
o Gl
.. ..
.. a.
Gl Gl
1; III
- c
!! .-
" "
. ..
c >
o .-
.- Gl
.. ..
.. !!
~..
o c
o Gl
Q.~
::J",
Gla.
2 .
.....c
. :=
. '"
Wu..
0"
III 0
Gl 0
.cel
....,
~
..,
o
o
o
..,
...
'"
~
...
'"
"
C
Gl
ii
o
...
.e
Gl
Gl
II..
"
~
ii:
"
~
e
i
W
Gl
.c
..
'0
c
o
i
:;
..
ii
o
~
M
o
o
'"
M
....
<0
on
..
....
....
::J ~
::J..<l:
s=u
o Gl
.....J
frfkdtrMJ'V1- A-
~
o
o
....
ai'
00
"'.
..
~
....
o
o
N
-.i
'"
N
-.i
..
....
....
::J
::J
"
Gl
1ii
::I
'6'
<l:
..
....
N.
..
....
....
;;E:
III
@
Gl
Gl
II..
"
~
ii:
"
~
e
i
W
-::!j;
ca-
0",
NN
- ..
"'....
..
-
'"
o
ci
o
o
..,
...
~
l!!
Cll
~
...
.e
....
::J
::J
Gl
.c
..
.5
...
o
..
..
J!
.c
i
e
en
;;E:
U)
'"
"
~
e
:;::
..
Gl
~
.
"
~
o
.
i
..
.
<
i ~
~ E
~ E
if~
Achieving Local Tax Uniformity: A New Model
Page 1 of4
November 2000
Achieving Local Tax Uniformity:
A New Model
by: Donald H. Maynor
The power to impose local taxes is an essential corollary to a city's obligation to provide necessary
municipal services to Its citizens. Under California law, cities possess broad authority to impose a
variety of local taxes, and have considerable discretion as to how they apply their business license tax,
utility user's tax (UUT), transient occupancy tax (TOT) and an assortment of other excise taxes.
Until the advent of Proposition 218, California cities took full advantage of their broad "home rule" authority,
exercising remarkable creativity in developing new ways of applying and implementing these valuable taxes,
which often reflected the unique commercial and political realities of their communities. Although this diversity
has bred many innovative ideas, the same ingenuity has produced a collection problem of nightmarish
proportions in certain
tax areas, due to the lack of uniformity among California public agencies with similar tax ordinances.
It's a Non-Uniform Jungle Out There
The problem of collecting non-uniform local taxes is especially acute in the area of telecommunications UUTs.
Consider, for example, that there are 600 licensed telephone companies in California and 165 public agencies
with UUT ordinances. Some jurisdictions tax only intrastate telecommunications, while others tax intrastate,
interstate and international telecommunications. Most interpret their ordinances to include cellular telephone
usage, but a few do not. In addition, cities take different approaches to creating exemptions from the local
UUT, including public agencies (federal, state and municipalities), public schools, insurance companies, federal
credit unions, low-income and senior citizens. There are also variations in the collection and remittance
requirements, with different due dates, penalties, interest and audit procedures. Even the sophisticated
computerized billing systems of major utility providers have trouble keeping it all straight. It is no surprise that
some major telecom companies are crying "Uncle!"
Accordingly, some major utility rroviders recentlr, took the offensive by seeking state legislation in other states
that would standardize the loca utility tax with a 'set in stone" definition of a tax that would be state-
administered. Does this sound similar to sales and propertY. taxes? Not surprisingly, most California public
agencies with UUT ordinances would rather fix the non-umformity problem themselves rather than have a
solution imposed on them by federal or state legislation.
The problem of collecting non-uniform local taxes is especially acute for telecommunications UUTs.
http://www.westemcity.com/NOVOOLocalTax.htm
03/19/2001
Achieving Local Tax Uniformity: A New Model
Page 2 of 4
Cities Take a Proactive Stance
Earlier this year, approximately 50 California cities formed an informal workin!) group to meet with wireless
company representatives. The purpose was to address some of the wireless Industry's UUT collection
grievances and also to consider proactive solutions to some of the cities' tax application issues caused by
recent changes in federal law.
Although these meetings were productive, it soon became apparent that even this well-represented working
group was not broad enough, as the wireless representatives bellan citin!) new inconsistencies in the tax
application approaches of several large nonparticipating cities. Since a primary goal of these meetings was to
achieve uniformity, it became all too obvious that just one or two cities could upset that goal. A collaborative,
statewide approach was needed.
In June, a representative of the working group met with League staff and discussed the possibility of having the
League playa role in helping cities achieve UUT uniformity through a nonbinding, consensus-building process.
League staff recognized the importance of the issue, and offered to assist. A few weeks later, the League's
Revenue and Taxation Policy Committee responded favorably to a presentation on the uniformity issue and
adopted an emergency recommendation that the League assume a much-needed leadership rore on UUT
issues calling for uniform approaches.
The League's board of directors formally endorsed the recommendation at the annual conference in early
September.
The next day, the League assisted interested UUT cities and counties by hosting a meeting. The meeting was
well-attended and, in short order, a new broad-based city-county UUT Task Force was established for the
purpose of creating a formal body that would meet with the various utility industries. The goal is to establish,
through collaborative negotiations between affected public agencies and utility industries, uniform approaches
to the application of the UUT to the various (and constantly expanding) utility services and bundled packages.
The League and the California State Association of Counties (CSAC) plan to assist in the support of this
voluntary group, and will also create a separate review panel to further assist in resolving differences and
ensuring consistent results.
The new UUT Task Force is already making plans for its next meeting to begin addressing some of the
important outstanding UUT issues that call for uniformity, including:
. Consistent tax application rules for wireless packages;
. Providing utilities with public agency contacts who can answer customers' questions regarding local
taxes;
. Investigating the possibility of developing a statewide geocoding database (consistent with new federal
standards) to ensure accurate jurisdictional coding of customers;
. Investigating the possibility of coordinated statewide audits; and
. Developing tools for disseminating the Task Force recommendations to all affected public agencies and
industry tax collectors.
The September meeting generated a new enthusiasm and sense of optimism that the problem of local tax
uniformity could, indeed, be solved through the cooperative efforts of public agencies, their statewide
organizations and the various utility industries. Perhaps most importantly, pUblic agencies are working to
accomplish this goal without surrendering control of their local tax revenues.
A Model for Future Efforts
Is this a possible model for other areas of local taxes requiring a measure of uniformity? It would certainly
seem so. The concept is fairly simple, with the following components:
. Form a technical task force whose primary function is to identify areas reqUiring uniform approaches
http://www.westemcity.com/NOVOOLocalTax.htm
03/19/2001
Achieving Local Tax Uniformity: A New Model
Page 3 of 4
and
develop nonbinding recommendations ("best practices" policy) after meeting and conferring with
affected parties, such as industry representatives;
. Distribute the nonbinding recommendations to all affected public agencies for their review and comment;
. Use statewide organizations (the League and CSAC) to serve as the review or dispute resolution body;
. Distribute the final "best practices" policy via the statewide organizations; and
. Assist public agencies and tax collectors in responding to tax application questions from the public, and
develop a clearinghouse mechanism to ensure consistent responses.
The September meeting generated a new enthusiasm and sense of optimism that the problem of local
tax uniformity could, indeed, be solved through the cooperative efforts of public agencies, their
statewide organizations and the various utility industries.
The new economy is here and brings with it the opportunity for California public a\lencies to develop proactive
solutions to complicated new problems regarding local taxation. The recent experience with UUT gives strong
reason to believe that it can be done.
Tips for Collaborative Negotiation
by Charles M. Dennis
"Collaboration is a process through which parties who see different aspects of a problem can constructively
explore their differences and search for solutions that go beyond their own limited vision of what
is possible."
- Collaborating: Finding Common Ground for Multiparty Problems by Barbara Grey, 1989.
To effectively use collaborative negotiation, some key shifts need to take place in how participants think about
a problem and how they organize to solve it. Participants need to:
. See all participants as joint problem-solvers rather than as adversaries;
. Focus on common, rather than unique, interests;
. Seek to clarify facts rather than use facts to support a position;
. Pursue workable, rather than winning, solutions; and
. Behave in ways that promote mutual trust, respect and a favorable ongoing relationship.
Above all, this model requires the humility to admit that "multiple heads are better than one" in solving complex
problems.
Charles M. (Mike) Dennis is director of finance for the City of Santa Monica.
Tangled in Red Tape: An Industry Nightmare
According to the industry-sponsored Committee on State Taxation: 50-State Study and Report on
Telecommunications Taxation, Sept. 7, 1999, a full-service telecommunications provider operating nationwide
must file 55,748 tax returns each year, and hypothetically must maintain different tax matrices for each
of the 310 separate state and local taxes that are applied to 687 different tax bases.
Federal Legislation Seeks Repeal of Telecommunications Excise Tax
http://www.westemcity.com/NOVOOLocalTax.htm
03/19/2001
Achieving Local Tax Uniformity: A New Model
Page 4 of 4
The private sector contention that taxing telecommunications impedes growth of the Internet and the new
digital economy, though highly specious, is very popular in the current political climate. It is also one of the
justifications for eliminating multiple taxation - federal, state and local - of telecommunication services. At the
federal level, the telecom industry's considerable lobbying efforts to repeal the federal excise tax on
telecommunications is likely to
succeed this year. As of this writing, the proposed legislation has already passed in the House of
Representatives, and is awaiting a vote on the Senate floor. The bill has 167 co-sponsors and virtually no
opposition. For updated information, visit the League's website at www.cacities.orQ.
Local Fiscal Health and Administrative Responsibility
by Crystal C. Alexander, CCMT
Whether the subject is determining if a local utility user's tax applies to new telecommunications products or
how to assess sales tax on electronic commerce, the refrain from business and industry is consistent: Why
should business be saddled with the administrative headache and cost of collecting locally based taxes for
myriad jurisdictions and tax ordinances? Why can't there be more consistency across tax applications? Why
can't local government be more responsive to changing conditions?
During the last decade, this refrain has grown in volume and intensity - and has been heard at the federal and
state levels of government. If local finance officials don't step forward to address these issues, business and
industry will seek solutions elsewhere. In California, it's commonly recognized as the "Sacramento solution":
Let the state Legislature get these local tax collectors under control and the problems will be solved. In reality,
while that approach may be effective for business and industry, it will likely be detrimental to local government's
fiscal health.
It's a common problem for local finance officials. Local tax ordinances may not have been significantly revised
in more than a decade. Local elected officials may not understand the complexity of current laws or trust the
fiscal impact estimates of proposed law changes to simplify tax administrallon. Instead, they may rely on their
political Instincts. The implications of such laws as Proposition 218 may give pause to city attorneys when
considering making any major changes in local tax ordinances.
And yet, local finance officials are beginning to realize that the local utility user tax is the last and largest tax
revenue source still under the control of local jurisdictions. It would be, as the saying goes, "penny wise and
pound foolish" not to be proactive.
Collaborative negotiation with industry representatives offers local finance officials an opportunity to address
industry concerns and, by so doing, protect local government's prerogative.
In Culver City, the local utility user's tax comprises almost 19 percent - a si~nificant portion - of the city's
general fund revenues. City finance officials can't afford to delay taking action to protect this vital revenue
source.
Crystal C. Alexander is deputy city treasurer for Culver City.
For more information, contact Brian Cooley, League policy analyst, at (916) 658-8243 or e-mail:
<cooleyb@cacities.org>.
about Western City articles subscribe advertise iob opportunities municipal marketplace search
home
http://www.westemcity.com/NOVOOLocalTax.htm
03/19/2001
I Clients
Berkeley
Burbank
Calabasas
Chula Vista
Compton
Culver City
EI Cerrito
EI Monte
EISegundo
Emeryville
Hermosa Beach
Huntington Beach
La Verne
Modesto
Oroville
Pasadena
Redondo Beach
Redwood City
Richmond
Riverside
Sacramento
San Bernardino
San Leandro
Santa Ana
Santa Barbara
Santa Monica
Tulare
MBIA MuniServices Company
UUT Fixed Fee Client List
As of Mar 16,2001
~
2
1
1- 4
2
1
1
1
3
1
3
1
2
2
1
1
2
1
1
2
1
1 - Already signed Agreements
2 - Approved by City Council, waiting for City Attorney Approval
3 - Agreements being executed
4 - Requires an admendment only
Fixed Fee Client List 03-16-01.xls / Mar 16,2001
04/10/2001/ 8:44 AM
, ~(Q)[PW
1
2
3
..
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT
WITH MBIA MUNISERVICES COMPANY FOR SERVICES RELATED TO UTILITY
USERS TAX AND FRANCHISE FEE REVENUES.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City an Agreement MBIA MuniServices Company, a copy
of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully
as though set forth at length.
III
III
III
1
2
3
4
5
6
7
8
9
10
11
12
13
14
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT
WITH MBIA MUNISERVICES COMPANY FOR SERVICES RELATED TO UTILITY
USERS TAX AND FRANCHISE FEE REVENUES.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof, held on the
_ day of
, 200 I, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
LIEN
MC GINNIS
SCHNETZ
SUAREZ
ANDERSON
15
16 MC CAMMACK
17
18
19
City Clerk
20
21
22
23
The foregoing resolution is hereby approved this
day of
2001.
24
Approved as to
25 Form and legal content:
26
27
28
Judith Valles, Mayor
City of San Bernardino
JAMES F. PENMAN,
City Attorney
By:
AGREEMENT TO PROVIDE
AUDITING, GEOCODING, AND ASSOCIATED CONSULTING SERVICES
FOR
UTILITY USERS TAXlFRANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
FOR THE CITY OF SAN BERNARDINO
November 28, 2000
by
MBIA MuniServices Company
This
AGREEMENT
is made at San
Bernardino,
California, as of
, 2001, by
and between the
City of San
Bernardino, a
municipal
corporation
(hereinafter
referred to as
"CITY") and
MBIA
MuniServices Company/Municipal Resource Consultants (hereinafter referred to as "MMC").
MMC agrees to provide the CITY with certain professional services in furtherance of a
comprehensive utility users tax/franchise compliance and revenue protection program (hereinafter
"PROGRAM"), with broad participation by California public agencies, that is designed to preserve,
protect, and enhance their utility users tax (UUT) and utility franchise revenues.
UTILITY USERS TAXlFRANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
1. PROGRAM OBJECTIVES
MMC's auditing, geocoding, information, and associated services and skills, in conjunction
with the legal and "protective" services of the CITY's special outside counsel for the following
purpose only, Donald H. Maynor, A Professional Law Corporation (LAW FIRM), will be used
to establish and implement a PROGRAM that will allow participating California public
agencies to preserve, protect and enhance their OUT and utility franchise revenues through a
combination of auditing, geocoding, tax application compliance, business detection, ordinance
update, legislative monitoring, technology update, and other essential compliance and
protective services. An effective compliance PROGRAM will assist the CITY, and other
participating public agencies, in identifying and correcting errors/ornissions causing revenue
deficiencies, and thereby produce new or previously unrealized revenue for such participants.
The PROGRAM's tax preservation services will protect the CITY's existing UUT revenues
from erosion due to new legislation, new technologies, outdated ordinance language and
inaccurate information. By offering these essential services through a comprehensive
PROGRAM, with widespread participation, there are the additional benefits of: i) achieving
lower individual costs for such joint activities; and, ii) developing consensus-based decisions
regarding ordinance interpretations and tax implementation that utility industries require of
California public agencies.
2. ROLE OF CLIENT EXECUTIVE COMMITTEE
A Client Executive Committee (CEC) has been formed, and is made up of client public agency
representatives, to review and approve the PROGRAM's proposed work plan, and provide
general PROGRAM oversight. The CEC will also function to develop consensus positions on
tax application issues, and other matters requiring uniformity among California public agencies
with UUT ordinances. MMC will provide quarterly progress reports to the CEC and to the
CITY to establish the PROGRAM's continuing value to the CITY.
3. FIXED FEE SERVICES
A. Compliance Review Services
At any time during the term of this AGREEMENT, with the prior written consent of the
CEC, or with the prior written consent of the City where specifically indicated, MMC
may perform compliance review activity on behalf of the CITY in any of the following
areas:
1. UUT Tax Apolication and Franchise Fee Review: In accordance with a work
plan that has been reviewed and approved by the CEC, MMC will perform
compliance reviews of major utility providers, with a focus on common client
issues, to assure that the UUT is being properly applied to taxable services and
charges, and that the franchise fee formula is being properly applied to the
revenue base (as provided in standard franchise agreements). MMC will use the
legal expertise of LAW FIRM on matters requiring legal analysis or an
interpretation of ordinances, standard utility franchises, laws, and IRS letter
rulings, subject to coordination with the City Attorney.
2. Telecom Special Access Customers: At the option of the CITY, MMC will
assist the CITY in identifying sophisticated telecommunication users that may
be employing new telecommunication technologies that involve taxable
telecommunication services to assure tax compliance.
3. Geocode Information and Review: MMC will develop and maintain a
proprietary address range database to assure accurate address range information
regarding the CITY's boundaries. Such databases will reflect the latest available
Local Agency Formation Commission information regarding CITY boundary
changes due to annexations or other municipal reorganizations. Upon request,
this service will be made available to any utility service provider that serves
customers within the CITY.
4. UUT Exemption Review: MMC will review for accuracy the gas, electric, and
water exemption lists and telecommunication exemption certificates for non-
residential customers, as provided by the CITY, and identify to CITY staff
possible errors. MMC will use the legal expertise of LAW FIRM on matters
requiring legal analysis or an interpretation of ordinances, laws, and IRS letter
rulings, subject to coordination with the City Attorney.
5. OUT Business Detection: MMC will perform periodic compliance reviews of
major utility providers and utilize other detection tools to verify whether such
companies are doing business within the CITY, and then identify such possible
non-complying companies to CITY staff for enforcement actions. MMC will
assist the CITY in developing compliance correspondence and enforcement
procedures.
6. UUT Pavment Calculations and Deviations: If the CITY provides MMC with
regular and accurate UUT payment history (i.e., copies of all OUT remittances),
MMC will identify to CITY staff possible gaps in payments, calculation
mistakes, and other payment errors. MMC will assist the CITY in developing
compliance correspondence and enforcement procedures. On request, MMC
will provide the CITY, on a semi-annual basis, with a spreadsheet reflecting the
CITY's OUT payments (based on remittance data provided by the CITY to
MMe).
B. Revenue Protection Services
MMC will work cooperatively with LAW FIRM in providing the following revenue
protection services designed to protect the CITY's existing and future OUT and utility
franchise revenues:
1. Statutorv Comoliance and Consulting Services
a. Publication of Ordinance Requirements. Maintain an accurate copy
of the CITY's OUT ordinance and its administrative rules and
interpretations on the MMC Website, and otherwise assist the CITY in
complying with Public Utilities Code ~ 495.6.
b. Tax Compliance Forms. Prepare model forms for exemption
applications, UUT remittances, information requests, and other tax
compliance documents.
c. Access to Information. Assist the CITY staff in obtaining SB 278 lists,
tax compliance information, exemption lists of utility service providers,
and in determining the exempt status of utility customers pursuant to the
exemption provisions of the CITY's OUT ordinance or federal excise
tax law relating to telecommunications.
2. Ordinance Uodate and LegislativelRegulatorv Review Services
a. OrdinancelFranchise and Technology Update. Periodically review
and propose updates to the CITY's Utility Users Tax ordinance and
standard utility franchise agreements, by offering recommendations to
address issues that may arise because of deregulation, litigation, changes
in laws or regulations, the unbundling of traditional utility services, or
the introduction of new technologies to provide utility services.
b. State and Federal Legislation. Monitor proposed state and federal
legislation to identify issues affecting the CITY's UUT or utility
franchise revenues, and make appropriate recommendations, with the
prior approval of the CEC, to the CITY, the League of California Cities,
the National League of Cities and other lobbyists of California public
agencies.
c. Regulatory Agencies. Monitor proceedings at the various regulatory
proceedings (e.g., California Public Utilities Commission, California
Energy Commission, Federal Commerce Commission, Federal Energy
Regulatory Commission) that affect the deregulation of the various
utilities that are to be reviewed under this AGREEMENT and make
appropriate recommendations to the CITY and the CEC.
d. Information Services. To accomplish the monitoring and review
services in Section 4(B) above, the PROGRAM will provide the CITY
with periodic newsletters, special communications, and legislative
bulletins. MMC may also provide instruction to CITY staff through
workshops and seminars on such subjects as industry deregulation, new
technologies, complying with new utility-related legislation, and other
timely subjects.
C. MMC Does Not Provide Legal Services.
It is agreed and understood MMC will provide no legal services that may be required
under any of the PROGRAM activities described in this Agreement, but rather LAW
FIRM will provide such legal services to the CITY. It is also acknowledged that in
providing such legal services, LAW FIRM's client will be the CITY, and not MMC.
4. CITY-SPECIFIC AUDITS WITH PERFORMANCE-BASED FEE
A. Scope of CITY-Specific Audits
At any time during the term of this AGREEMENT, with the prior written consent of the
CITY, MMC may perform a CITY-specific audit of a utility franchise or UUT
payments from a specific utility, when the audit intends to focus on CITY-specific
issues. See Section 6(C) below regarding compensation for CITY-specific audits.
B. MMC's Responsibilities for CITY -Specific Activities
1. Work Plan Approval for CITY-Specific Activities. MMC will subrnit to CITY
staff a proposed Work Plan for review and approval that will serve as the basis
for CITY-specific compliance activities (e.g., CATV OUT or franchise review,
gas or electric franchise review, or payment deviation from a specific utility).
2. CITY Approval of Discoverv Actions. For City-specific activities, MMC will
receive prior authorization from CITY staff to obtain and examine utility and
customer records (hard copy and data format) necessary to assure compliance
with the CITY's OUT ordinance through the use of administrative subpoenas,
nondisclosure agreements, and other procedures required by the utility service
provider as a condition of providing access to confidential customer
information.
3. MMC to Comelv with Local Laws. In perfonning the compliance review
services described in this subsection, MMC agrees to abide by the provisions of
the CITY's UUT ordinance, any administrative rules the CITY may adopt
relating to such ordinance, and the confidentiality requirements of state law
(Revenue and Taxation Code Section 7284.6-.7). Throughout the above
process, MMC shall be available to meet with the CITY, utility service
providers, or their customers to review any MMC findings or recommendations
arising out of its compliance review activities for the CITY.
5. CITY's RESPONSIBILITIES
To facilitate and maximize the effectiveness of the above compliance review activities, the
CITY shall diligently assist MMC by perfonning the following:
A. Necessary Information.
The CITY will provide MMC, on a timely basis, with infonnation necessary to conduct
its compliance review activities including but not limited to: monthly UUT payment
histories, exemption lists, and SB 278 gas and electric lists (including names of
customers refusing to pay surcharges), and certified copies of the UUT ordinance and
any subsequent amendments.
B. Letter of Authorization.
The CITY will provide a letter of authorization identifying MMC as an authorized agent
of the CITY to perfonn utility users tax compliance audits, to receive and examine
appropriate utility and customer records (hard copy and data fonnat) necessary to assure
UUT tax compliance, and to execute necessary nondisclosure agreements approved by
the CITY.
C. Legal Interpretations of Ordinance.
Upon request by MMC and concurrence of the City Attorney, the CITY will provide
MMC with appropriate legal and administrative interpretations of its UUT ordinance. It
is agreed and understood that the CITY will retain the exclusive authority and
responsibility to administer, interpret, and enforce its UUT ordinance, recognizing that
the role of MMC and LAW FIRM is limited to employing their unique expertise and
proprietary tools for: i) detecting and identifying errors/omissions by utility service
providers or utility users in the application, calculation, collection, and/or remittal of
UUT; and, ii) providing the CITY with technical assistance, without assuming or being
delegated the authority or responsibility of the CITY to administer, interpret, andaenforce its UUT ordinance and standard utility franchise agreements.
6. COMPENSATIONffERM
A. Annual Fixed Fee
1. Total Annual Fixed Fee. The CITY's total annual fixed fee for participating in
the PROGRAM shall be the greater of: i) one-half percent (0.5%) of the total
UUT revenues received by the CITY (excluding UUT revenues derived from
CATV) based on the prior fiscal year, or ii) ten thousand dollars ($10,000).
2. Allocation of Annual Fixed Fee. It is understood and agreed that certain
protective and legal services under the UUT Compliance and Protective Service
Program, as described herein, will be provided by LAW FIRM to the CITY. In
connection with these services, LAW FIRM will provide such services to the
CITY, and not MMC, as the client. It is understood and agreed that
compensation for all such services are included in the fee to MMC, and MMC
shall pay to LAW FIRM the greater of one-eighth of one percent (0.125%) of
the total UUT revenues or five thousand dollars ($5,000). At any time, LAW
FIRM and MMC may, by mutual agreement, adjust their proportional share of
said total annual fixed fee, provided that such parties shall provide prior written
notice of such adjustment to the CITY.
3. Ouarterlv Payments of Fixed Fee. Said annual fixed fee shall be paid in four
equal quarterly payments with due dates of: March 31, June 30, September 30,
and December 31. These quarterly payments are nonrefundable. The first
quarterly payment shall be due on the next quarterly due date following the
effective date of this Agreement. For purposes of compensation under this
Section 6(A), the effective date of this Agreement shall be deemed to be January
I, 2000.
B. Compensation for Work Performed Prior to December 31,1999
1. Non-CATV Audit Work Performed Prior to December 1L 1999. In addition to
the annual fixed fee described in Section 6(A) above, MMC shall be entitled to
performance-based compensation for "additional revenues" that the CITY
receives for reporting periods prior to and through December 31, 1999 as a
result of the utility users tax program of MMC, or its predecessor Municipal
Resource Consultants (hereinafter referred to as "MRC"). Accordingly, the
CITY shall pay MMC twenty-five percent (25%) of the additional revenues,
including interest and penalties, that MMC is able to reasonably substantiate has
resulted from its CITY-specific compliance review activities. Said 25% applies
to the additional revenues received by the CITY for the first twelve quarters
following the correction of the error/omission. In addition, MMC may seek to
recover all revenue due the CITY from prior periods, if any. In that case, MMC
will also receive 25% of any retroactive recovery.
Any "additional revenues" that the CITY receives for reporting periods after
January 1, 2000, as a result of work performed by MMC/MRC prior to that date
(other than CITY-specific CATV audit work) shall not be subject to the
performance-based compensation of this or any prior agreements. MMC/MRC
hereby specifically waives any right to such compensation for reporting periods
after January I, 2000 as consideration for the CITY entering into this
AGREEMENT for a minimum of twenty-four (24) months.
2. CITY-Soecific CATV Audit Work Performed Prior to December 1L 1999.
MMC shall be entitled to performance-based compensation for "additional
revenues" derived from past CITY-specific CATV audit work performed prior
to December 31, 1999, that the CITY receives at any time. The CITY shall pay
MMC twenty-five percent (25%) of the additional revenues, including interest
and penalties, that MMC is able to reasonably substantiate has resulted from its
CITY-specific compliance review activities. Said 25% applies to the additional
revenues received by the CITY for the first twelve quarters following the
correction of the error/omission. In addition, MMC may seek to recover all
revenue due the CITY from prior periods, if any, upon prior approval of CITY.
In that case, MMC will also receive 25% of any retroactive recovery.
C. Performance-Based Compensation for City-Specific Audit Services
1. With respect to a CITY-specific audit, including a CATV OUT/franchise audit
referred to in Section 4(A) above, MMC shall be entitled to additional
compensation in the event that MMC's compliance review activities result in the
CITY receiving additional revenues from such CITY -specific audit activity.
Accordingly, the CITY shall pay MMC twenty-five percent (25%) of the
additional revenues, including interest and penalties, that MMC is able to
reasonably substantiate has resulted from its CITY -specific compliance review
activities. Said 25% applies to the additional revenue received by the CITY for
the first twelve quarters following the correction of the error/omission. In
addition, MMC may seek to recover all revenue due the CITY from prior
periods, if any. In that case, MMC will also receive 25% of any retroactive
recovery.
2. Notwithstanding subsection (I) above, nothing herein shall prohibit the parties
from entering into a written agreement on compensation for CITY-specific audit
services on a fixed fee or any other separately negotiated basis.
3. In the event that any legal services from LAW FIRM are required in connection
with a CITY -specific requested audit, the cost of such services to the CITY shall
be paid by MMC, and MMC shall disclose to the CITY the financial
arrangement between MMC and LAW FIRM regarding the payment of such
costs.
D. CITY's Obligations
Regarding the CITY-specific compliance review activities of MMC in Sections 4 and
6(C) above, the CITY agrees to:
1. Invoice the responsible party for tax deficiencies (plus interest and penalties if
applicable) identified and confirmed by MMC within thirty (30) days following
receipt and CITY approval ofMMC's detection report or correspondence;
2. Provide MMC with a copy of any settlement agreement with a taxpayer/tax
collector within ten (10) days of entering into such agreement; and,
3. Notify MMC within thirty (30) days following receipt by the CITY of payments
(cash, installment, or other compensation directly benefiting the CITY) of such
tax deficiencies, whether invoiced or not. Upon receipt of such notice, MMC
will promptly invoice the CITY. MMC's compensation is due and payable
within thirty (30) days of the CITY's receipt and the City's acceptance of
MMC's invoice.
E. MMC Expenses
MMC shall absorb all expenses incurred by MMC in providing its services as described
herein. These expenses include items such as employee salaries and benefits, insurance,
airfare, auto rentals, meals, lodging, Federal Express, mail, telephone, copying,
directories, on-line resources, and other overhead and miscellaneous expenses.
7. TERMINATION OF AGREEMENT
A. Either the CITY or MMC may terminate this AGREEMENT, by thirty (30) days prior
written notice as provided in this Section.
B. If the CITY terminates this AGREEMENT at any time within twenty-four (24) months
following the effective date of this AGREEMENT, the CITY shall nevertheless pay
MMC eight (8) quarterly payments from the commencement of the AGREEMENT to
compensate MMC for its waiver of fees for past services rendered and additional
revenues received by the CITY, as described in the second paragraph of Section
6(B)(I). MMC shall also be entitled to additional compensation as described in Section
7(C).
C. Upon termination by either party of the AGREEMENT as provided herein, MMC shall
be entitled to retain any fees it may have received from the CITY pursuant to Sections
6(A) and 7(B) of this AGREEMENT. In addition, MMC shall be entitled to payment
according to the terms of Section 6(B) and (C) for all additional revenues, including
interest and penalties, that MMC is able to reasonably substantiate resulted from its
compliance review activities pursuant to Section 6(B) and (C) during the term of the
AGREEMENT. Within thirty (30) days following termination, MMC shall provide the
CITY with a list of detections of non-compliance resulting from the compliance review
activities of MMC. The CITY shall, in good faith, diligently seek to: i) correct such
detections determined by MMC prior to the date of termination; and, ii) collect the
additional revenues that are due the CITY and MMC for past periods and for the 12
quarters going forward following the correction, even though the date of actual
correction may occur after the termination date. MMC shall assist the CITY in this
correction/collection effort, if so requested by the CITY.
8. OTHER GENERAL PROVISIONS
In addition to the above provisions, the parties also agree to be bound by the general provisions
as set forth in Attachment "A" of this AGREEMENT, which are by this reference incorporated
herein. In the event of disagreement between the specific provisions of this AGREEMENT and
the general provisions, the specific provisions of this AGREEMENT shall prevail.
EXECUTED as of the day and year first above stated.
CITY OF SAN BERNARDINO
By:
Title:
,---- --- - -
Date:
MBIA MuniServices CompanylMunicipal Resource Consultants
By:
Title:
Date:
ATTACHMENT "A"
GENERAL PROVISIONS
1. Independent Contractor. At all times during the term of this Contract, MMC shall be an Independent
Contractor and shall not be an employee of the CITY. The CITY shall not have the right to control the means
by which MMC accomplishes services rendered pursuant to this Agreement.
2. Liabilitv. The CITY shall not be called upon to assume any liability for direct payment of any salaries, wages,
or other compensation to any of MMC's personnel or subcontractors performing services hereunder for the
CITY, or any liability other than provided for in this Agreement. The CITY shall not be liable for
compensation or indemnity to any MMC employee or subcontractor for injury or sickness arising out ofhislher
employment, or for any negligent actions of MMC or its employees. All persons employed in the performance
of such services and functions shall be employees of MMC, and as such shall not, for any purposes, be
considered employees ofthe CITY and therefore shall have no right to any CITY benefits, civil service, or
other CITY employment status.
3. Insurance.
A. Public Liabilitv. During the term of this Agreement, MMC shall maintain in full force and effect a
policy of public liability insurance with minimum coverages as follows: $1,000,000 for injury to one
person in anyone occurrence and $1,000,000 in the aggregate; and $50,000.00 for property damage.
MMC shall cause the CITY, its officials and employees to be named as insureds on all liability policies
described above with respect to: (I) activities performed for the CITY by or on behalf of the named
insured, (2) products and completed operations of the named insured, and (3) premises owned,leased or
used by the named insured. CITY shall be provided with at least thirty (30) days prior notice if there is a
termination or material change to such coverages affecting the CITY.
B. Worker's Compensation. During the term of this Agreement, MMC shall fully comply with the terms
of the law of the CITY concerning worker's compensation. Said compliance shall include, but not be
limited to, maintaining in full force and effect one or more policies of insurance insuring against any
liability MMC may have for worker's compensation.
4. MMC Not Agent. Except as the CITY may specify in writing, MMC shall have no authority, express or
implied, to act on behalf of the CITY in any capacity whatsoever as an agent. MMC shall have no authority,
express or implied, pursuant to this Agreement to bind the CITY to any obligation whatsoever.
5. Assignment Prohibited. No party to this Agreement may assign any right or obligation pursuant to this
Agreement. Any attempt of purported assignment of any right or obligation pursuant to this Agreement shall
be void and of no effect.
6. Nondiscrimination. MMC shall not discriminate, in any way, against any person on the basis of race, sex,
color, religion, sexual orientation, disability, ethnicity, or national origin, in connection with or related to the
performance of this Agreement.
7. Reports. Charts Q! Other Products. All reports, charts and other products produced by MMC and delivered to
the CITY are the property of the CITY.
8. CITY Representative. The Mayor or her designee is the representative of the CITY and will administer this
Agreement for the CITY.
9. Indemnitv and Hold Harmless. MMC shall indemnify and hold harmless the CITY, its officers, employees, and
agents, from and against all actions, damages, claims, or losses, which are in the nature of personal injury,
physical property damage, or intentional torts, and which allegedly arise out of or are caused by MMC's
negligent or intentional conduct in the performance ofMMC's work under this Agreement.
r
10. Waiver of Breach. No waiver of the breach of any of the covenants, agreements, restrictions or conditions of
this Agreement by any party hereto shall be construed to be a waiver of any succeeding breach of the same or
other covenants, agreements, restrictions or conditions of this Agreement. No delay or omission of any party
hereto in exercising any right, power or remedy herein provided in the event of default shall be construed as a
waiver thereof, or acquiescence therein, nor shall the acceptance of any payments made in a manner or at a time
other than as herein provided be construed as a waiver of or variation in any of the terms of this Agreement.
II. Interest. Unless the CITY requests in writing additional information regarding the billing or otherwise
disagrees with the billing, the CITY shall pay MMC within thirty (30) days of receipt ofMMC's billing, or
from the date of agreement on the billing in the event of a written request. Any payment received after such
time period shall accrue monthly interest of three-quarters percent (0/4%).
12. Whole and Entire Agreement. This AGREEMENT, and any attachments hereto, contains the whole and entire
agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the others as
of its date with regard to the provision of utility users tax services described herein. This AGREEMENT, and
any attachments hereto, shall supersede any and all prior agreements entered into by the parties relating to the
provision of utility users tax compliance services by MMC, or its predecessor Municipal Resource Consultants
(MRC).
13. LegalInteroretations. For purposes of this Agreement, the City Attorney's opinion concerning the
interpretation oflocal ordinances and the legal rights, duties, and obligations of the CITY regarding collection
of taxes under State and local law shall be controlling.
14. CITY's Determination Final. Whenever the City Council or a CITY Officer is empowered under State or local
ordinance to make a determination as to whether or not a tax assessed against a taxpayer is due, for purposes of
this Agreement that determination shall be fmal and binding on the parties hereto.
15. Confidentiality. MMC agrees that it shall keep all information it receives concerning CITY taxpayers
confidential and shall use it solely for tax compliance purposes. Services performed by MMC prior to
termination may result in the CITY's receipt of revenue after termination. This receipt of revenue entitles
MMC to payment from the CITY even after expiration of contract or termination. The CITY agrees to provide
to MMC after expiration or termination of this Agreement such confidential payment information as is
necessary to enable MMC to calculate the compensation due to MMC as a result of said receipt of revenue and
MMC shall maintain the confidentiality of this information. Therefore, MMC shall be deemed a contractor
under Revenue and Taxation Code Section 7284.6 - .7 after expiration of contract or receipt of notice of
termination from the CITY for the sole and limited purpose of enabling MMC to have access to said
information to calculate compensation.
16. Notices. Any notice to be given from one party to the other pursuant to this Agreement shall be deposited with
the United States Postal Service postage prepaid and addressed as follows:
To CITY:
CITY ADMINISTRATOR
CITY OF SAN BERNARDINO
300 North D Street
San Bernardino, CA 92418
To MMC:
Grant Brimhall
MBIA MuniServices Company
32107 W. Lindero Canyon Road
Suite 233
Westlake Village, CA 91361
Nothing in this Paragraph shall be construed to prevent the giving of notice by personal service.
CITY CLERK'S OFFICE
RAcHEL G. CLARK, CM.C. - CITY ClERK
s,~
P.O. Box 1318. San Bernardino' CA92402
300 North "D" Street. San Bernardino' CA 92418-0001
909.384.5002' Fax: 909.384.5158
Business Registration Division: 909.384.5302
Passport Acceptance Facility: 909.384.5128
www.cLsan-bernardino.ca.us
April 24, 2001
Grant Brimhall
MBIA MuniServices Company
32107 W. Lindero Canyon Road, Suite 233
Westlake Village, CA 91361
Dear Mr. Brimhall,
At the Mayor and Common Council meeting of April 16, 2001, the City of San Bernardino
adopted Resolution 2001-79 - Resolution authorizing the Mayor to execute an agreement with
MBIA MuniServices Company for services related to utility users tax and franchise fee revenues.
Enclosed is one (I) original agreement. Please sign in the appropriate location and return the
original agreement to the City Clerk's Office, Attn: Michelle Taylor, P.O. Box 1318, San
Bernardino, CA 92402, as soon as possible.
Please retain a copy of the agreement for your files.
If you have any questions, please do not hesitate to contact me at (909)384-5002.
Sincerely,
un 't'.1,[lt \~(}-'-'
,
Michelle Taylor
Senior Secretary
Enclosure
cc: Lori Sassoon, City Administrator's Office
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity' Accountability' Respect for Human Dignity' Honesty
CITY CLERK'S OFFICE
RACHEL G. CLARK, CM.C. - CITY CLERK
'"
P.O. Box 1318' San Bernardino' CA 92402
300 North "D" Street. San Bernardino' CA 92418-0001
909.384.5002' Fax: 909.384.5158
Business Registration Division: 909.384.5302
Passport Acceptance Facility: 909.384.5128
www.cLsan-bernardino.ca.us
June 7, 2001
Grant Brimhall
MBIA MuniServices Company
32107 W. Lindero Canyon Road, Suite 233
Westlake Village, CA 91361
Dear Mr. Brimhall,
At the Mayor and Common Council meeting of April 16, 2001, the City of San Bernardino
adopted Resolution 2001-79 - Resolution authorizing the Mayor to execute an agreement with
MBIA MuniServices Company for services related to utility users tax and franchise fee revenues.
On April 24, 2001, one (I) original agreement requiring signatures was mailed to you. As of the
above date, the City Clerk's Office has not received the signed document. Please sign and retum
the original agreement to the City Clerk's Office, Attn: Michelle Taylor, P.O. Box 1318, San
Bernardino, CA 92402, as soon as possible.
If you have any questions, please do not hesitate to contact me at (909) 384-5002.
Thank you,
I
/)(, e0.ltz ,J.<../~.
,
Michelle Taylor ..
Senior Secretary
CITY OF SAN BERNARDINO
ADOPI'ED SHARED VALUES: Integrity' Accountability' Respect for Human Dignity' Honesty
LAW OFFICES OF RICHARD L. WEILL
RICHARD L. WEILL-
DOROTHY ANNE HAMILL+
INDEPENDENCE SQUARE WEST
SUITE 507
PHILADELPHIA, PENNSYL VANIA 19105-0629
(215) 574-9700
1-800-330-0006
FAJ((215) 923-0739
113 KING STREET
ARMONK, NY 10504
(914) 765-3910
FAJ( (914) 765-3311
NY,NBOnly"
Also NJ B.r+
June 13,2001
Michelle Taylor
City of San Bernardino
P.O. Box 1318
San Bernadino, CA 92402
RE: MBIA MuniServices Fixed Fee Agreement
Utility User Tax
Dear Ms. Taylor:
Enclosed please find a fully executed original contract for Utility Users Tax and
Franchise Fee Revenue.
Should you have any questions, please do not hesitate to contact me at 215.574.9700.
Thanks you for your attention to this matter.
(J:lY, ~~
DOrOthy~e Hamill
Enclosure
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
June 21, 2001
TO:
Lori Sassoon, Assistant to the City Administrator
FROM:
Michelle Taylor, Senior Secretary
RE:
Resolution 2001-79 - MBIA MuniServices Fixed Fee Agreement
CC:
Finance
Attached is a copy of the executed agreement for services related to utility users tax and
franchise fee revenues between the City of San Bernardino and MBIA MuniServices. The
original agreement is on file in the City Clerk's Office.
If you have any questions, please call me at ext. 3206.
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 4~1G:,-o\ Item# '2"
Vote: Ayes I--S, n Nays 0-
Change to motion to amend original documents:
Resolution # '2 tn \ ~ "\ q
Abstain 0- Absent c.,
Reso. # On Attachments: ,/
Contract term:
Note on Resolution of Attachment stored separately: ---=
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY
Date Sent to Mayor: .t\- \ 'in) \
Date of Mayor's Signature: "\, \'1-()\
Date of Clerk/CDC Signature: ~~\'1-o\
NulVVoid After: -
By: -
Reso. Log Updated:
Seal Impressed:
V'"
,/
Date Memo/Letter Sent for Signature: 4- ~L\ -i:) \
60 Day Reminder Letter Sent <\II~: 10 - f) - 0 ,
90 Day Reminder Letter Sent on 45th day:
See Attached: /' Date Returned:
See Attached: /'
See Attached:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
City Attorney 7 Code Compliance Dev. Services
Parks & Rec. Police Public Services Water
Notes:
t;;-,.;l l-() I
Yes / No
Yes No V
-
Yes No ~
Yes No ,/
Yes No 7
EDA Finance V' MIS
Others: kf)"", ~t\1"il-A-m12
BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc,)
Ready to File: (h\
Date: (,,-.,J\ -0\
Revised 01112/01