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HomeMy WebLinkAbout12-City Administrator -,---'!""':-':' CITY OF SAN BE~ARbINO - REQUES():OR COUNCIL ACTION From: Fred Wilson Subject: Assistant to City Administrator Settlement agreement with Edison for collection of franchise fees and utility users tax. Dept: Dete: April 27, 1992 Synopsis of Previous Council action: 10/16/92 __ Mayor and Council executed agreement with Donald Maynor to perform an audit relating to verification of accurate collection of franchise fees and utility users tax. Recommended motion: Adopt resolution. Supporting data attached: yes Phone: Iii 122 Ward: Contact person: Fred Wilson FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct. DescriPtion) Finance: Council Notes: Agenda Item No I~ CITY OF SAN BOARDINO - REQUESOFOR COUNCIL ACTION STAFF REPORT On October 16, 1989, the Mayor and Common Council executed an agreement with Mr. Donald Maynor in conjunction with the firm of Ernst and Young to perform an audit relating to verifying the accurate collection of franchise fees and service users tax from the southern California Edison company. The audit had focused on four distinct areas: 1. The computations of the amounts of utility users' taxes and franchise fees paid to the city 1 2. The geographic coding of large customers; 3. The procedures used to implement annexations approved by the City in terms of franchise fees and utility users tax; and 4. The reasonableness of the recent payment to the city of $13,979.84 which represented the results of a self-initiated audit by Edison Co. Attached for your review and approval is the settlement agreement negotiated between Edison and Mr. Maynor as a result of this audit in the amount of $50,345.23 which constitutes payment in full. It is recommended that the attached resolution and agreement be approved. ",.,u .J!1.. o o 1 RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING A 3 SETTLEMENT AGREEMENT WITH SOUTHERN CALIFORNIA EDISON COMPANY RELATIVE TO PAYMENT OF OUTSTANDING FRANCHISE FEES AND UTILITY USERS 4 TAX. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 7 8 SECTION 1. The Mayor of the city of San Bernardino is hereby authorized and directed to execute on behalf of said City a settlement agreement with the Southern California Edison Company 9 relative to payment of outstanding franchise fees and utility users 10 tax, a copy of which is attached hereto, marked Exhibit "A", and 11 incorporated herein by reference as fully as though set forth at 12 length. 13 SECTION 2. The authorization to execute the above referenced 14 agreement is rescinded if the parties to the agreement fail to 15 16 17 execute it within sixty (60) days of the of this passage resolution. I HEREBY CERTIFY that the foregoing resolution was duly 18 adopted by the Mayor and Common council of the City of San 19 Bernardino at a meeting thereof, held on the day 20 of , 1992, by the following vote, to wit: 21 22 / / / / / 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / / RESOLU1C:r AUTHORIZING SETTLEMENT <:)EEMENT WITH EDISON COMPANY 1 2 councilmembers ~ HAIli ABSTAIN ABSENT 3 ESTRADA 4 REILLY 5 HERNANDEZ 6 MAUDSLEY 7 MINOR 8 POPE-LUDLAM 9 MILLER 10 11 12 13 14 15 city Clerk The foregoing resolution is hereby approved this , 1992. day of W. R. Holcomb, Mayor City of San Bernardino 16 Approved as to form 17 and legal content: 18 JAMES F. PENMAN city At orney 19 By: 20 21 22 23 24 25 26 27 -2- 28 -~~ o o SETTLF.MENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (hereinafter the "Agreement") is made as of May 4, 1992, by and between the City of San Bernardino ("City") and Southern California Edison Company, a California corporation, ("Edison") . RECITALS WHEREAS, Edison is the public utility franchised to provide electricity within the City, and for which right it pays an annual franchise fee to the City; WHEREAS, Edison bills and collects service user fees from its San Bernardino customers on behalf of the City, and remits such amounts to the City; WHEREAS, Edison internal audits and external audits commissioned by the City identified errors in geographic coding which indicated some customers were located inside City limits when actually they were not, and which indicated other customers were located outside City limits when actually they were inside; , o o WHEREAS, the geographic coding errors have distorted franchise fees that have been paid to the City by Edison and services user fees that have been billed, collected and remitted to the City by Edison, the exact amounts of which remain in dispute along with other related issues and claims; WHEREAS, the City and Edison are entering into this Agreement to settle all claims between the City and Edison without any admission of liability on the part of any party; NOW, THEREFORE, in consideration of the terms and conditions set forth below, the parties agree as follows: 1. PAYment to the Citv. Concurrent with the execution of this Agreement, Edison shall pay to the City the sum of Fifty-Thousand, Three Hundred and Forty-Five Dollars and TWenty-Three Cents ($50,345.23) (the "Settlement Payment"). The Settlement Payment shall be made by check payable to the City of San Bernardino and shall be delivered to Donald Maynor, Esq., at 3220 Alpine Road, Suite A, portola Valley, CA 94028 to be held in trust for the City. The City agrees not to negotiate Edison's check prior to signing this Agreement. -2- --- o o 2. Mutual Release. Upon Edison's full payment of the Settlement Payment in accordance with paragraph 1 above, the City hereby releases Edison, and its past and present directors, officers, attorneys, employees, successors and assigns, and Edison hereby releases the City, and its past and present representatives, attorneys, employees, successors and assigns from any and all claims, demands, warranties, debts, obligations, liabilities, costs, expenses, rights of action and causes of action, related in any way to the determination or remittance of franchise fees or the billing, collection or remittance of service user fees, whether known or unknown, suspected or unsuspected, with respect to any period prior to January 1, 1990. 3. Entire Aareement. This Agreement is the sole, only, entire, and complete Agreement of the parties hereto relating in any way to the subject matter hereof. No other statements, promises, or representations have been made by any party to another, or are relied upon, and no consideration has been or is offered, promised, expected, or held out other than as may be expressly provided herein. 4. Section 1542 Waiver. Each of the parties hereto hereby expressly waives all rights and remedies under section 1542 of the Civil Code of the State of California, which provides as follows: -3- c" .' o o "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. " 5. Successors and Assians. This Agreement, including, without limitation, the releases contained herein, shall bind and inure to the benefit of the directors, officers, past and present employees, successors and assigns of the City and Edison. 6. Counternarts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and which together shall constitute one and the same Agreement. 7. No Admission. The execution of this Agreement effects the settlement of claims which are disputed, contested and denied. Each party hereto understands and agrees that nothing herein is intended or shall be deemed or construed to be an admission of liability by any other party in any respect or to any extent whatsoever, and no party shall make any representation to the contrary. 8. Warrantv of Authoritv. Each party whose signature is affixed hereto in a representative capacity -4- I o o represents and warrants that he or she is authorized to execute this Agreement on behalf of and bind the entity on whose behalf his or her signature is affixed. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date written above by their duly authorized officers on their behalf. ATTEST: CITY OF SAN BERNARDINO, a municipal corporation By: W. R. HOLCOMB, Mayor RACHEL KRASNEY, City Clerk Approved as to form and legal content: JAMES F. PENMAN City Attorney SOUTHERN CALIFORNIA EDISON COMPANY By: caJ~,b-,..~ R. H. BRIDENBECKER, Vice President LW9210S0020 APPROVED DAVID N. BARRY, m Vice "'denl and Gene Counsel. By f.......L.~Y1I~ - . Attorney 4;z? q.']- ,19 _ -5-