AGREEMENT TO MAINTAIN CONFIDENTIALITY OF TAX RECORDS
BETWEEN THE CITY OF MANHATTAN BEACH AND ECONOMIC &
PLANNING SYSTEMS, INC.
THIS AGREEMENT (“Confidentiality Agreement”) is made and entered into as of the February 7, 2024, by and between the City of Manhattan Beach, a municipal corporation (the “City”) and Economic & Planning Systems, Inc. ( “EPS”), a California corporation (“Consultant”). City and Consultant are sometimes referred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. On June 6, 2023, City and Moore Iacofano Goltsman, Inc. (“MIG”) entered into that certain agreement (“Services Agreement”) under which MIG will assist the City in exploring a long-term outdoor dining and business use work plan (“Services”). EPS (“Consul tant”) is a subcontractor through MIG, whose role is specifically to conduct a fiscal impact analysis for the program and provide fiscal recommendations.
B. EPS h as requested to review certain sales tax information in connection with the Services.
C. California Revenue and Taxation Code Section 7056 limits the disclosure of confidential taxpayer information contained in the records of the California Department of Tax and Fee Administration (“CDTFA”) . Section 7056 specifies the conditions under which a City may authorize persons other than City officers and employees to examine State Sales and Use Tax records.
NOW THEREFORE, IN CONSIDERATION OF the mutual covenants, agreement and provisions herein contained, the Parties hereto covenant and agree as follows:
Section 1. Confidential Nature of Tax Records. The following conditions specified in California Revenue and Taxation Code Section 7056(b)(1) are hereby made part of this Agreement:
a. Consultant is authorized by this Agreement to examine sales, use or transactions and use tax records of CDTFA provided to City pursuant to contract under the Bradley-Burns Uniform Sales and Use Tax Law Revenue and Taxation Code section 7200 et. seq.
b. C onsultant is required to disclose information contained in, or derived from, those sales, use or transactions and use tax records only to an officer or employee of the City who is authorized by resolution to examine the information.
DocuSign Envelope ID: 520BD62C-33C2-43AE-9447-0C8B7D82FE3E c. Consultant is prohibited from performing consulting services for a retailer, as defined in California Revenue & Taxation Code Section 6015, during the term of this Agreement.
d. Consultant is prohibited from retaining the information contained in, or derived from those sales, use or transactions and use tax records, after this Agreement has expired. Information obtained by examination of CDTFA records shall be used only for purposes related to collection of local sales and use tax or for other governmental functions of the City as set forth by resolution (“Resolution”) adopted pursuant to Revenue and Taxation Code Section 7056(b) on February 6, 2024.
e. Consultant representatives Managing Principal Jason Moody, Vice President Thomas Gonzales, and Senior Associate Chinmay Damle as the persons authorized to examine sales and use tax records and certifies that the Confidentiality Agreement meets the requirements set forth in Revenue and Taxation Code Section 7056(b)(1).
f. The Consultant hereby acknowledges that the tax records obtained from the City are confidential and that the disclosure of such records by the Consultant to third parties constitutes a violation of state law and this Agreement and grounds for the immediate termination of the Consultant ’s contractual relationship with the City.
Section 2. Access to Tax Records. Except as otherwise expressly provided for in this Agreement, the Consultant shall not duplicate or distribute any of the City's tax records. The Consultant shall not use the City's tax records to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The Consultant further agrees that only those of its employees who must have access to the City's tax records in order to fulfill the Consultant’s obligations under the Service Agreement shall be afforded access to such records. Each such employee shall be informed by the Consultant of the existence of the Consultant’s agreement to maintain the confidentiality of the City’s tax records and shall agree to be bound by and to comply with the provisions of this Agreement regarding the terms and conditions of the receipt of such records.
Each such employee shall further receive a copy of this section of the Agreement and shall execute the Acknowledgement set forth as Exhibit "A" hereto (the “Acknowledgement”). One copy of each such Acknowledgement shall be provided to the City for its records. Furthermore, all tax records supplied to the Consultant pursuant to the Professional Services Agreement will be returned to the City.
Section 3. Disclosure Requests. In the event the Consultant is made a party or threatened to be made a party, or is involved in any action, suit, or proceedings, whether civil, criminal, investigative, or appellate, and in connection therewith is requested or required to disclose (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or DocuSign Envelope ID: 520BD62C-33C2-43AE-9447-0C8B7D82FE3E similar process), or wish to disclose any portion of the tax records supplied to the Consultant by the City under this Agreement, the Consultant agrees to (i) provide the City with prompt notice of the existence, terms, and circumstances surrounding such a request, (ii) consult with the City on the advisability of t aking legally available steps to resist or narrow such request, and (iii) if disclosure of such information is required by others or is sought by the Consultant, exercise best efforts to obtain a protective order or other reliable assurance that confidenti al treatment will be afforded to the City's tax records. The Consultant further agrees that, if in the absence of a protective order or the receipt of a waiver of the Consultant's compliance with the provisions of this section, the Consultant is nonetheless, in the opinion of the Consultant's legal counsel, compelled, notwithstanding this Agreement, to disclose any portion of the City's tax records to anyone or else stand liable for contempt or suffer censure or penalty, the consultant may disclose such information to such tribunal without liability hereunder.
Section 4. Remedies. The Consultant hereby acknowledges that strict compliance with all of the terms and conditions set forth in this Agreement is necessary to preserve the confidentiality of the City's tax records and that a breach by the Consultant, or any of its agents or employees, of any of the terms and conditions set forth in this section may result in damage to the City. In the event of any such breach, the City shall be entitled, in addition to damages and any other rights and remedies which it may have at law or in equity, to have an injunction issued by a court of competent jurisdiction enjoining the Consultant and any other person involved in such breach from the continuation thereof.
Section 5. Indemnification. In addition to the foregoing, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all Liabilities in law or equity, whether actual, alleged or threatened, in connection with the possession and use of the City's tax records, or by reason of any breach of this Confidentiality Agreement, by the Consultant, its agents or employees, including, without limitation, all attorney’ s fees and costs actually incurred, and costs of investigation and defense of the City, its officials, agents, representatives, and employees with respect to any such claims, suits, actions, damages, liability, costs, expenses and losses.
Section 6.. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
Section 7. C
ounterparts. This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument.
DocuSign Envelope ID: 520BD62C-33C2-43AE-9447-0C8B7D82FE3E Section 8. Corporate Authority. Each person executing this Agreement on behalf of his or her Party warrants that he or she is duly authorized to execute this Agreement on behalf of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement.
The Parties, through their duly authorized representatives are signing this Agreement on the date stated in the introductory clause.
City:
City of Manhattan Beach,
a California municipal corporation
By:
Name: Bruce Moe
Title: City Manager
ATTEST:
By:
Name: Liza Tamura
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Quinn M. Barrow
Title: City Attorney
APPROVED AS TO CONTENT:
By:
Name: Talyn Mirzakhanian
Title: Community Development
Director
Consultant:
Economic & Planning Systems, Inc. (EPS),
a California corporation
By:
Name: Jason Moody
Title: Managing Principal
DocuSign Envelope ID: 520BD62C-33C2-43AE-9447-0C8B7D82FE3E 1/29/2024
1/29/2024
1/29/2024
EXHIBIT "A"
ACKNOWLEDGEMENT
I, the undersigned, hereby acknowledge that I have read that certain Confidentiality Agreement, dated February 7, 2023, including Sections 1 and 2, by and between the City of Manhattan Beach and Economic & Planning Systems, Inc . I agree to be bound by and comply with the provisions of the Confidentiality Agreement and to maintain the confidentiality of the City's tax records.
By: ______________________________
Title: _____________________________
Date: _____________________________
DocuSign Envelope ID: 520BD62C-33C2-43AE-9447-0C8B7D82FE3E 1/29/2024
Managing Principal