MBIA MuniServices - 2003 AgreementAGREEMENT TO PROVIDE
AUDITING, GEOCODING, AND ASSOCIATED CONSULTING SERVICES
FOR
UTILITY USERS TAX/FRANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
FOR THE CITY OF GILROY
May 27, 2003
by
MBIA MuniServices Company
UTILITY USERS TAXfflANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
This AGREEMENT is made at Gilroy, California, as of - -- , 2003, by and between the City of
Gilroy, 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 its 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 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erosion due to new legislation, new technologies, outdated ordinance language and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. FIXED FEE SERVICES
A. Compliance Review Services
At any time during the term of this AGREEMENT, with the prior 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: 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
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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 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 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 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 the CITY's staff for enforcement
actions. MMC will assist the CITY in developing compliance correspondence
and enforcement procedures.
5. UUT Payment Calculations and Deviations: If the CITY provides MMC with
regular and accurate UUT payment history (i.e., copies of all LUT
remittances), MMC will identify to the CITY's 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 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:
1. Ordinance Update and Legislative/Regulatory Review Services
a. Ordinance/Franchise and Technology Update. Provide a
comprehensive review and update of the CITY's existing UUT
ordinance. Thereafter, provide periodic reviews and recommended
updates to the LTUT ordinance, administrative rulings and standard
utility franchise agreements, to address new 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. Such recommendations will
clarify or add procedural protections to the existing ordinance, and
should not require a Proposition 218 election approval.
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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 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 and make appropriate recommendations to the CITY.
d. Information Services. Provide the CITY with periodic newsletters,
special communications, and legislative bulletins. LAW FIRM may
also provide instruction to the CITY's staff through workshops and
seminars on such subjects as industry deregulation, new technologies,
complying with new utility- related legislation, and other timely
subjects.
2. Statutory Compliance and Consulting Services
a. Publication of Ordinance Requirements. Prepare and maintain an
accurate copy of the CITY's UUT ordinance and its administrative
rules and interpretations on the uutinfo.org website, and otherwise
assist the CITY in complying with Public Utilities Code § 495.6.
b. Web -Based Data Links. Prepare and maintain on the uutinfo.org
website (and provide a link to the CITY's web page, if desired) the
CITY's UUT ordinance and administrative rules and rulings,
frequently asked questions, e -mail inquiry feature, and model forms
for exemption applications, UUT remittances, information requests,
and other tax compliance documents.
c. Access to Client -Only Webpage. Provide the CITY's staff (with
UUT responsibilities) access to the client -only features of the
uutlaw.com webpage and periodic newsletters, including legislative
tracking, legal memos, breaking news, special utility issue features
(e.g., new technologies), and practice hints.
d. Access to Information. Assist the CITY's 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.
e. Revenue Forecasts. Provide staff with revenue forecasts based on
industry trends, historical trends, and other relevant factors.
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3. Assistance to CITY's Internal UUT Staff
a. Representation on the Utility Users Tax Technical Task Force.
Provide representation on and assistance in connection with the
activities of the Utility Users Tax Technical Task Force (UUT TTF).
Assist the CITY with analysis of UUT TTF issues and recommend
.appropriate responses. Bring important UUT issues to the attention of
the UUT TTF, and recommend appropriate action consistent with the
CITY's interests.
b. Timely Response to Tax Application Inquiries. Provide legal and
technical assistance to existing CITY staff and the City Attorney's
office, and provide timely analysis and draft responses to tax
application inquiries from taxpayers or tax- collecting entities (e.g.,
utility providers, hotels, businesses) using Web -based interactive
technology.
c. Enforcement Assistance. Provide the CITY's staff and the City
Attorney's office with: i) legal advice on specific issues that arise in
the enforcement of the tax ordinance (e.g., nexus issues and questions
from taxpayers or tax collectors); and, ii) compliance correspondence
and legal notices as required by ordinance and due process.
d. Audit Assistance. Assist the CITY's staff and the City Attorney's
office in, i) gaining access to audit - related information under existing
legal authorities; ii) addressing legal issues that arise in the course of
an audit; iii) providing exemption analysis; and, iv) reviewing and
developing legal measures to improve existing or proposed tax
compliance programs, including tax amnesty programs.
e. UUT Exemption Review. Review for accuracy the gas and electric
exemption lists and telecommunication exemption certificates for non-
residential customers, as provided by the CITY, and identify possible
errors to the CITY's staff.
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 the CITY. It
is also acknowledged that in providing such legal services, LAW FIRM's client will
be the CITY, and not MMC.
3. 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 mutual consent of
the CITY and MMC, 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 5(C) below regarding compensation for CITY - specific
audits.
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B. MMC's Responsibilities for CITY - Specific Activities
1. Work Plan Approval for CITY - Specific Activities. MMC will submit to the
CITY's staff a proposed Work Plan for review and approval that will serve as
the basis for CITY - specific compliance activities (e.g., CATV UUT 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's 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 Co my with Local Laws. In performing 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.
4. CITY's RESPONSIBILITIES
To facilitate and maximize the effectiveness of the above compliance review activities, the
CITY shall diligently assist MMC by performing the following:
A. Necessary Information.
The 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.
The 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 the CITY.
C. Legal Interpretations of Ordinance.
Upon request, 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 WT; and, ii) providing the
CITY with technical assistance, without assuming or being delegated the authority or
responsibility of the CITY to administer, interpret, and enforce its UUT ordinance
and standard utility franchise agreements.
5. 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 UUT revenues derived from
cable television) 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
UUT revenues or five thousand dollars ($5,000), as reflected in a separate
attorney /client agreement with the CITY, and ii) to MMC, the greater of one-
half of one percent (0.5 %) of the total UUT revenues less the amount
allocated and paid separately to LAW FIRM, 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 receive prior approval of such adjustment from the CITY.
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.
B. Compensation for Work Performed Prior to Execution Date of This Agreement
Any "additional revenues that the CITY receives as a result of work performed
by MMC, or its predecessor Municipal Resource Consultants (hereinafter referred
to as "MRC "), shall be compensated at a set fee of Twenty -Seven Thousand
Dollars ($27,000), which shall be due immediately upon execution of this
AGREEMENT. MMC/MRC hereby specifically waives any right to UUT- and
franchise fee - related compensation earned under any prior agreement beyond that
stated in this paragraph as consideration for the CITY committing to a minimum
payment term of thirty -six (36) months from the execution date of the
AGREEMENT first written above.
C. Performance -Based Compensation for City - Specific Audit Services
1. With respect to a CITY - specific audit, including a CATV UUT /franchise
audit referred to in Section 3(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
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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. As used in this subsection, the term "additional
revenues" includes the value of any other services, credits, property of every
kind or nature, or other consideration received by the CITY in lieu of
monetary payment.
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 3 and
5(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 ten (10) 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 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.
6. 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.
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B. If the CITY terminates this AGREEMENT at any time within thirty-six (36) months
following the execution date of this AGREEMENT first written above, the CITY
shall nevertheless pay MMC twelve (12) quarterly payments from the execution date
of the AGREEMENT first written above 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 5(B)(1). MMC shall also be entitled to additional
compensation as described in Section 6(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 5(A) and 6(B) of this AGREEMENT. In addition, MMC shall be entitled to
payment according to the terms of Section 5(B) and (C) for all additional revenues,
including interest and penalties, that MMC is able to reasonably substantiate resulted
from its compliance review activities. 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 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 periods and for the twelve 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.
7. 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 GILROY
Title: �i �'YC �fv r M - S e r y� C r5
Date: 6 " 1-7-05
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MBIA MuniServices Company/Municipal Resource Consultants
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By: By:
T' e: �-��� �s , ������ t� y ��e Title: 1�f'6s�s�c✓-T
Date: bf b� Date: 6 /? ;�/3
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ATTACB ENT "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. Liability. 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 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 the
CITY and therefore shall have no right to any CITY benefits, civil service, or other CITY employment status.
3. 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 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 CTI'Y to arry 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. Notwithstanding the foregoing, the parties hereto may assign all or part of this Agreement immediately,
without the prior written consent of the non - assigning party (a) to any successor in interest to the assigning
party who expressly assumes responsibility for the assigning party's obligations hereunder, or (b) if necessary
to satisfy the rules, regulations and/or orders of any federal or state governmental agency or body. .
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 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 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 C /< %).
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. 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 final and binding on the parties hereto. However, a CITY Officer's
determination to waive a tax assessment shall not relieve the CITY of its obligation to pay MMC therefore.
14. 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.
15. 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 GILROY
7351 Rosanna Street
Gilroy, CA 95020
To MMC: MBIA MuniServices Company
3433 West Shaw Avenue
Fresno, CA 93711
Attn: Corporate Counsel
Nothing in this Paragraph shall be construed to prevent the giving of notice by personal service.
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