ORIGINAL
AGREEMENT TO PROVIDE
AUDITING, GEOCODING, AND ASSOCIATED CONSULTING SERVICES FOR
UTILITY USERS TAx/FRANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
FOR THE CITY OF EMERYVILLE
August 24, 2000
by
.' "RIA MlJ'1'~flrvices r-'mpany
UTILITY USERS TAX/FRANCHISE
COMPLIANCE AND REVENUE PROTECTION PROGRAM
This AGREEMENT is made at Emeryville, California, as of , 2000-,-by and between the City of Emeryville, 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 (DDT) 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 ofthe 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 DDT 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services will protect the CITY's existing DDT revenues from erosion due to new legislation, new technologies, outdated ordinance language and inaccurate information.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 DDT 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 ofthis 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 <, I· 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 nonresidential customers, asprovided 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. UUT 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:
1. 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 ofthe CITY's UUT ordinance or federal excise tax law relating to telecommunications.
2. Ordinance Update and Legislative/Regulatory Review Services a. OrdinancelFranchise 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 ofnew 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 c-:
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 DDT 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 DDT 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 DDT 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 I services described in this subsection, MMC agrees to abide by the provisions J of the CITY's DDT 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 ofits compliance review activities for the CITY.
5. CITY's RESPONSIBILITIES
To facilitate and maximize the effectiveness ofthe 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 ofthe 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 UUT; 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. COMPENSATIONITERM
A. Annual Fixed Fee \
1. Total Annual Fixed Fee. The CITY's total annual fixed fee for participating in the PROGRAM, which includes the services provided by MMC and Law Firm, shall be the greater of: i) one-half percent (0.5%) of the total DUT revenues received by the CITY based on the prior fiscal year, or ii) ten thousand dollars ($10,000). Compensation under this agreement shall not exceed $50,000 for a 5 year term.
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, 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.
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 January 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 ofthis 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 oftwenty-four (24) months.
2. CITY-Specific CATV Audit Work Performed Prior to December 31, 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. CITY shall pay MMC twenty-five percent (25%) ofthe 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 ofthe 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.
C. Performance-Based Compensation for City-Specific Audit Services
1. With respect to a CITY-specific audit of a utility franchise, including a CATV DDT/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 CITYspecific audit activity. Accordingly, the CITY shall pay MMC twenty-five percent (25%) ofthe 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 ofMMC 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 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 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 ofthe CITY's receipt ofMMC'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 twenty-four (24) months following the effective date of this AGREEMENT, CITY shall nevertheless pay MMC eight (8) quarterly j payments from the commencement ofthe 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 ofthe 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 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, ifso 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" ofthis 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 ofthe day and year first above stated.
CITY OF EMERYVI
By:__-----fQ...~~~:::::e~:....__ _
Title:__--+-+-=--..:.---+-~..L.:....!~~ _
Date: -----.!'-=..----!!:::......!...---=.l....- 10 -z,'i-g _ Title: President and CEO
Date:05~7
BY:{--
Title: ~C~F~O~ _
Date: 05-21-01
ATTACHMENT "A"
GENERAL PROVISIONS
1. Independent Contractor. At all times during the term ofthis Contract, MMC shall be an Independent Contractor and shall not be an employee ofCITY. CITY shall not have the right to control the means by which MMC accomplishes services rendered pursuant to this Agreement.
2. Liability. CITY shall not be called upon to assume any liability for direct payment of any salaries, wages, or other compensation to any ofMMC'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 ofhis/her employment, or for any negligent actions ofMMC or its employees. All persons employed in the performance ofsuch services and functions shall be employees ofMMC, and as such shall not, for any purposes, be considered employees ofCITY 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 ofthis 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 behalfofthe named insured, (2) products and completed operations ofthe named insured, and (3) premises owned, leased or used by the named insured.
B. Worker's Compensation. During the term ofthis Agreement, MMC shall fully comply with the tenns of the law ofCITY 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.
C. Specific Insurance Requirements
1. Requirements: The Consultant shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by the Consultant, its agents, representatives, employees or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager.
2. Minimum Limits of Insurance: Consultant shall maintain limits no less than:
a. Comprehensive General Liability of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. b. Comprehensive Automobile Liability (owned, non-owned, hired) of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom.
c. Professional Liability of $1,000,000 limit for claims arising out of professional services caused by the Consultant's errors, commissions, or negligent acts.
d. Workers' Compensation limits as required by the Labor Code ofthe State of California and Employers Liability limits of $1,000,000 per accident.
3. Deductibles and Self-Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City.
4. Other Insurance Provisions: The policy is to contain, or be endorsed to contain, the following provisions:
a. General Liability and Automobile Liability Coverage.
The City, its officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, leased, or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees, or volunteers.
ii. The Consultant's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the City, its officials, employees or volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officials, employees or volunteers.
iv. Coverage shall state that the Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. v. Coverage shall be provided on a "pay on behalf" basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion.
vi. The insurer agrees to waive all rights of subrogation against the City, its officials, employees and volunteer for losses arising from work performed by the Consultant for the City.
vii. All endorsements to policies shall be executed by an authorized representative of the insurer.
b. Workers' Compensation Coverage
The insurer will agree to waive all rights of subrogation against the City, its officials, employees, and volunteers for losses arising from work performed by the Consultant for the City.
c. All Coverages
i, Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.
ii Policies shall have concurrent starting and ending dates.
5. Acceptability of Insurers: Insurance is to be placed with insurers with an A.M.
Bests' rating of no less than A:VII.
6. Verification of Coverage: Consultant shall furnish the City with certificates of insurance evidencing coverage required by this clause prior to the start of work.
The certificates of insurance for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificate of Insurance shall be on a form utilized by Consultant's insurer in its normal course of business and shall be received and approved by the City prior to execution of this Agreement by the City. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. The Consultant shall provide proof that any expiring coverage has been renewed or replaced at least two (2) weeks prior to the expiration of the coverage.
7. Subcontractors: Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming the parties as additional insureds.
4. MMC Not Agent. Except as CITY may specify in writing, MMC shall have no authority, express or implied, to act on behalf ofCITY 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 ofpurported assignment ofany right or obligation pursuant to this Agreement shall be void and ofno effect.
6. Nondiscrimination. MMC shall not discriminate, in any way, against any person on the basis ofrace, sex, color, religion, sexual orientation, disability, ethnicity, or national origin, in connection with or related to the performance ofthis Agreement.
7. Reports, Charts or Other Products.
1. All reports, charts and other products produced by MMC and delivered to the CITY are the property ofthe CITY.
2. Records
a. Records shall be established and maintained by the Consultant in accordance with requirements prescribed by the City with respect to all matters covered by this Agreement. Except as otherwise authorized, such records shall be maintained for a period of three years from the date that final payment is made under this Agreement. Furthermore, records that are the subject of audit findings shall be retained for three years or until such audit findings have been resolved, whichever is later. b. All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible.
3. Reports and Information: Upon request, the Consultant shall furnish to the City any and all statements, records, reports, data and information related to matters covered by this Agreement in the form requested by the City.
4. Audits and Inspections: At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all records with respect to all matters covered by this Agreement. The Consultant will permit the City to audit, examine, and make excerpts or transcripts from such records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Agreement.)
8. CITY Representative. The City Manager or hislher designee is the representative ofthe CITY and will administer this Agreement for the CITY.
2. Indemnity and Hold Harmless.
The Consultant covenants and agrees to take and assume all responsibility for the services rendered in connection with this Agreement. The Consultant shall bear all losses and damages directly or indirectly resulting to it or the City on account of the performance or character of the services rendered pursuant to this Agreement. The Consultant shall assume the defense and indemnify and save harmless the City and its members, officers, agents, employees and volunteers from all claims, loss, damage, injury, proceedings and liability of every kind, nature and description, directly or indirectly, whether actual, alleged or threatened, arising from the performance of this Agreement, save and except the sole negligence or willful misconduct of the City and from any and all claims, loss, damage, injury, and liability, howsoever the same may be caused, resulting directly or indirectly from the nature of the services covered by the Agreement, save and except the sole negligence or willful misconduct of the City. This obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination of this Agreement.
10. Waiver ofBreach. No waiver ofthe breach of any ofthe covenants, agreements, restrictions or conditions ofthis Agreement by any party hereto shall be construed to be a waiver of any succeeding breach ofthe same or other covenants, agreements, restrictions or conditions ofthis Agreement. No delay or omission of any party hereto in exercising any right, power or remedy herein provided in the event ofdefault 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 ofor variation in any ofthe terms ofthis Agreement.
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 ofreceipt 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 ofthree-quarters percent (%%).
12. Whole and Entire Agreement. This AGREEMENT, and any attachments hereto, contains the whole and entire agreement ofthe parties hereto and correctly sets forth the rights, duties and obligations of each to the others as ofits 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 Interpretations. For purposes of this Agreement, the City Attorney's opinion concerning the interpretation of local ordinances and the legal rights, duties, and obligations ofthe CITY regarding collection oftaxes under State and local law shall be controlling.
14. CITY's Determination Final. Whenever the City Councilor 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 ofthis Agreement that determination shall be final 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 CITY's receipt ofrevenue after termination. This receipt ofrevenue entitles MMC to payment from CITY 13 even after expiration of contract or termination. CITY agrees to provide to MMC after expiration or termination ofthis Agreement such confidential payment information as is necessary to enable MMC to calculate the compensation due to MMC as a result ofsaid receipt ofrevenue and MMC shall maintain the confidentiality ofthis 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 oftermination 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:
To MMC:
FINANCE DIRECTOR
CITY OF EMERYVILLE
2200 Powell St., 12th Floor
Emeryville, CA 94608
After December 1, 2000
1333 Park Avenue
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. 14