CONTRACT 2824 Other2824 ,
AGREEMENT TO PROVIDE
AUDITING, GEOCODING, AND ASSOCIATED CONSULTING SERVICES
FOR
UTILITY USERS TAX/FR.ANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
FOR THE CITY OF EL SEGUNDO
September 5, 2000
by
MBIA MuniServices Company
UTILITY USERS TAX/FRANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
This AGREEMENT is made at El Segundo, California, as of September 5, 2000, by and between
the City of El Segundo, a municipal corporation (hereinafter referred to as "CITY ") and MBIA
MuniServices Company /Municipal Resource Consultants (hereinafter referred to as "MMC ").
MMC agrees to provide 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.
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 outside counsel, 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 UUT 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 /omissions 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 WT 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erosion due to new legislation, new technologies, outdated ordinance language and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.
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.
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 Application 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, which will be coordinated with the City Attorney.
2. Telecom Special Access Customers: At the option of CITY, MMC Will assist
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 LAFCO 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, which will be coordinated with the City Attorney.
5. UUT 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 CITY in developing compliance correspondence and
enforcement procedures.
6. WT Payment Calculations and Deviations: If the CITY provides MMC with
regular and accurate UUT payment history (i.e., copies of all UUT
remittances), MMC will identify to CITY staff possible gaps in payments,
calculation mistakes, and other payment errors. MMC will assist 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 UUT payments (based on remittance data
provided by the CITY to MMC).
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 UUT and
utility franchise revenues:
Statutory Compliance and Consulting Services
a. Publication of Ordinance Requirements. Maintain an accurate copy
of CITY's UUT 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 UUT ordinance or
federal excise tax law relating to telecommunications.
2. Ordinance Update and Legislative/Regulatory Review Services
a. Ordinance /Franchise and Technology Update. Periodically review
and update 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 CITY and the CEC.
d. Information Services. To accomplish the monitoring and review
services in Section 4(B) above, the PROGRAM will provide 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 by separate agreement with CITY. It is also
acknowledged that in providing such legal services, LAW FIRM's client will be
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 submit to the
CITY staff a proposed Work Plan for review and approval that will serve as
the basis for CITY - specific compliance activities (e.g., CATV WT or
franchise review, gas or electric franchise review, or payment deviation from
a specific utility).
2. CITY Approval of Discovery Actions. For City - specific activities, MMC will
receive prior authorization from the CITY staff to obtain and examine utility
and customer records (hard copy and data format) necessary to assure
compliance with the CITY's UUT 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 Comply with Local Laws. In performing the compliance review
services described in this subsection, MMC agrees to abide by the provisions
of the CITY's WT 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.
M
CITY's RESPONSIBILITIES
To facilitate and maximize the effectiveness of the above compliance review activities, CITY
shall diligently assist MMC by performing the following:
A. Necessary Information.
CITY will provide MMC, on a timely basis, with information 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.
CITY will provide a letter of authorization identifying MMC as an authorized agent
of the CITY to perform utility users tax compliance audits, to receive and examine
appropriate utility and customer records (hard copy and data format) necessary to
assure UUT tax compliance, and to execute necessary nondisclosure agreements
approved by CITY.
C. Legal Interpretations of Ordinance.
Upon request, CITY will provide MMC with appropriate legal and administrative
interpretations of its UUT ordinance. It is agreed and understood that 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 WT; and, ii) providing CITY
with technical assistance, without assuming or being delegated the authority or
responsibility of CITY to administer, interpret, and enforce its UUT ordinance and
standard utility franchise agreements.
6. COMPENSATION /TERM
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 WT revenues derived from AES,
municipal water, and PSAF) based on the prior fiscal year, or ii) ten thousand
dollars ($10,000).
2. Allocation of Annual Fixed Fee. Said annual fixed fee payment shall be
allocated, and paid separately, to LAW FIRM and MMC as follows: i) to LAW
FIRM, the greater of one - eighth of one percent (0.125 %) of the total WT
revenues or five thousand dollars ($5,000), as reflected in a separate
attorney /client agreement with the CITY, and ii) to MMC, one -half of one percent
(0.5 %) of the total UUT revenues less the amount allocated and paid separately to
LAW FIRM. 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.
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3. Quarterly 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 July 1,
2000.
B. Compensation for Work Performed Prior to December 31, 1999
1. Non -CATV Audit Work Performed Prior to December 31 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, 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 1, 2000 as consideration for the CITY entering into this
AGREEMENT for a minimum of twelve (12) months.
C. Performance -Based Compensation for City - Specific Audit Services
1. With respect to a CITY - specific audit of a utility franchise, including a CATV
UUT /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 (1) 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 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 of MMC'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 forty -five (45) days of the CITY's receipt 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; provided, however, if CITY terminates this
AGREEMENT at any time within twelve (12) months following the effective date of
this AGREEMENT, CITY shall nevertheless pay MMC four (4) 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 CITY, as
described in the second paragraph of 6(B)(1).
B. Upon termination of the AGREEMENT as provided herein, MMC shall be entitled to
retain any fees it may have received from the CITY pursuant to Section 6(A) 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
CITY with a list of detections of non - compliance resulting from the compliance
review activities of MMC. CITY shall, in good faith, diligently seek to: i) correct
such detections of non - compliance made by MMC prior to the date of termination;
and, ii) collect the additional revenues that are due the CITY and MMC for past
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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 EL SEPUND0
By:
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Date: October 5 2000 —
MBI icees�p / unicipal Resource Consultants
Title: �'R�S1 Dtr NT
Date: 9/°t y ao
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ATTEST:
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MBIA Muniservices Company /Municipal Resources Consultants
By:
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Date:
ATTACHMENT "A"
GENERAL PROVISIONS
Independent Contractor. At all times during the term of this Contract, MMC shall be an Independent Contractor and
shall not be an employee of CITY. CITY shall not have the right to control the means by which MMC
accomplishes services rendered pursuant to this Agreement.
Liabiti . 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 CITY, or any
liability other than provided for in this Agreement. CITY shall not be liable for compensation or indemnity to any
MMC employee or subcontractor for injury or sickness arising out of his/her 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 of CITY and therefore shall
have no right to any CITY benefits, civil service, or other CITY employment status.
S. Insurance.
A. Public Liability. 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: (1)
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.
B. Worker's Compensation. During the term of this Agreement, MMC shall fully comply with the terms of the
law of 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 CITY may specify in writing, MMC shall have no authority, express or implied, to act
on behalf of CITY in any capacity whatsoever as an agent. MMC shall have no authority, express or implied,
pursuant to this Agreement to bind 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 or 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 City Manager or his/her designee is the representative of the CITY and will administer
this Agreement for the CITY.
9. Indemnity 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 of MMC's work under this Agreement.
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.
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11. Interest. Unless CITY requests in writing additional information regarding the billing or otherwise disagrees with
the billing, CITY shall pay MMC within thirty (30) days of receipt of MMC'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 C14%).
12. Whole and Entire A egr ement. 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. Legal b=retations. For purposes of this Agreement, the City Attorney's opinion concerning the interpretation of
local 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 frial and binding on the parties hereto.
15. Confidentialitv. 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 CITY's receipt of revenue after termination. This receipt of revenue entitles MMC to payment from CITY
even after expiration of contract or termination. 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: FINANCE DIRECTOR
CITY OF EL SEGUNDO
350 Main Street
El Segundo, CA 90245
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.
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