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HomeMy WebLinkAboutReso - CC - 018-2008RESOLUTION NO. 18-2008 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME DESIGNATING MUNICIPAL AUDITING SERVICES AS AN AUTHORIZED CITY REPRESENTATIVE TO EXAMINE SALES AND USE RECORDS RESOLVED by the CITY COUNCIL of the CITY of BURLINGAME that: WHEREAS, the City Council has adopted a business license tax on persons doing business in the City of Burlingame; and WHEREAS, pursuant to California law, the City of Burlingame has adopted a sales and use tax ordinance that imposes a tax and provides that it can be administered and collected by the State Board of Equalization using the same and existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting California State Sales and Use Taxes; and WHEREAS, pursuant to Revenue & Taxation Code § 7056(b), the City of Burlingame may designate by resolution any officer, employee, or any other person to examine all of the sales and use tax records of the Board pertaining to sales and use taxes collected for the City; and WHEREAS, the City of Burlingame has entered into anon -exclusive agreement for revenue audits and information services with the firm of MUNICIPAL AUDITING SERVICES L.L.C. as an authorized consultant to examine such sales tax allocation records maintained by the Board on behalf of the city of Burlingame; and WHEREAS, all legal prerequisites prior to the adoption of this Resolution have occurred, NOW, THEREFORE, IT IS HEREBY RESOLVED: 1. The City Council of the City of Burlingame hereby certifies to the State Board of Equalization that MUNICIPAL AUDITING SERVICES L.L.C. is a designated representative of the City of Burlingame for purposes of examining all of the sales and use tax records collected by the Board on behalf of the City of Burlingame in order to audit and review the business license tax returns and compliance for the City of Burlingame. 2. Pursuant to California Revenue & Taxation Code § 7056(b), the Council hereby certifies that MUNICIPAL AUDITING SERVICES L.L.C. (hereinafter "Consultant') meets all of the following conditions: (a) Consultant has an existing contract with the City to examine sales and use tax records of sales and use taxes collected for the City; and (b) Consultant is required by that contract to only disclose information contained in, or derived from, those sales and use tax records to an officer or employee of the City who is authorized by resolution to examine the information; and (c) Consultant is prohibited by the contract with the City from performing consulting service for a retailer during the term of the contract; and (d) Consultant is prohibited by the contract from retaining the information contained in, or derived from, those sales and use tax allocation records after the contract has expired. Q r Mayor I, DORIS MORTENSEN, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 19th day of February 2008, and adopted thereafter by the following vote: AYES: COUNCILMEMBER: DEAL, HEIGHRAN, NAGEL, O'NAHONY NOES: COUNCILMEMBER: HAYLOCK ABSENT: COUNCILMEMBER: NONE City Clerk ATTACHMENT I. CITY OF BURLINGAME MUNICIPAL AUDITING SERVICES CONSULTANT AGREEMENT APPROVAL DATE: THIS AGREEMENT is entered into in the State of California by and between the City of Burlingame, hereinafter called "City" and Municipal Auditing Services, hereinafter called "Consultant". It is hereby agreed as follows: WITNESSETH WHEREAS, the City desires to contract for auditing / accounting services, hereinafter referred to as "Services or Work Product"; and, WHEREAS, CONSULTANT has the professional ability, means and technical skills to accomplish the services and provide the work product required by this agreement; and, WHEREAS, CONSULTANT desired to provide the services to accomplish the terms of this agreement; and, WHEREAS, THE CITY AND CONSULTANT desire to set forth in writing the obligations and responsibilities of each party relating to providing the services. NOW, THEREFORE, in consideration of the promises and mutual benefits which will accrue to the parties hereto in carrying out the terms of this Agreement, and for other good and valuable consideration on the receipt and sufficiency of which is hereby acknowledged, it is mutually understood and agreed as follows: Retention of Consultant: City hereby retains Consultant in accordance with the terms of this Agreement to do and perform field auditing, accounting, support and consulting services as may be required by the City. 2. Personnel: All of the services will be performed by Consultant or under its supervision, and all personal engaged in the work shall be fully qualified, and shall be authorized and permitted under State and local laws to perform such services, and shall be acceptable to City. 3. Performance Specification and Products: Consultant shall perform the tasks and deliver the products and services as may be required by City, and Consultant shall also provide such additional accounting and financial services as are from time to time requested by the City. 4. Compensation and Payment: Consultant agrees to provide the work product and services at a rate of 50% of discovery/deficiency/collection identification (tax, penalty, interest, and costs (if allowed by law) for all applicable years. In no event will Consultant be entitled to "forward" year billing of accounts. In the event that the City waives or forgives tax or penalties, the Consultant is entitled to compensation based upon the original amount. Method of Pam Consultant shall invoice City either monthly or semi-monthly. Payment shall be for the work described on the invoice and satisfactorily completed. Invoices shall include case identification and amount of correction and Consultant payment amount. City shall pay invoices within thirty (30) days from the date of invoice. 6. City Management: Jesus Nava, Finance Director/Treasurer, or her designee or successor, shall represent the City in all matter pertaining to the administration of this Agreement, including without limitation, Coordination of all necessary meetings, conferences, determination of the amount and level of work to be performed, and review and approval of all work product submitted by the Consultant. 7. No benefit to arise to local employees: No member, officer, or employee of the City, or its designees or agents, and no public official who exercises authority over responsibilities with respect to the project during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub -agreement, or the proceeds thereof, for work to be performed in connection with the project performed under this agreement. 8. The Consultant as an independent contractor: Consultant is, and at all times, hereafter shall be, an independent contractor of City during the term of this agreement. Consultant specifically recognizes and acknowledges its status as an independent contractor and not as an employee of the City. Consultant's personnel shall be employees of Consultant and not employees of the City. Consultant shall pay all salaries and wages, Workers Compensation insurance, employer's social security taxes when applicable, and unemployment insurance and similar taxes relating to employees and shall be responsible for all withholding taxes. Consultant shall comply with all Federal and State regulations relating to the employer/employee relationship including but not limited to minimum wage, non-discrimination, equal opportunity, Workers Compensation, hazardous/unsanitary or dangerous surroundings, the Fair Labor Standards Act, 29 U.S.C. 201 et seq. And the Immigration Reform and Control Act of 1986 8 U.S.C. 245(a). 9. Ownership of Materials and Documents: All work product and material prepared by Consultant for City shall be the property of City once payment has been made, and Consultant shall deliver such materials to City according to the terms of this agreement. However, Consultant shall have the right to make duplicate copies of such materials and documents for its files or other purposes as may be authorized by the City. Consultant shall be held free and clear of any liability resulting from City's use of materials and documents for work unrelated to this agreement. 10. Release of Information / Conflict of Interest: All information gained by Consultant in performance of this agreement shall be considered confidential and shall not be released by the Consultant without the City's prior written authorization excepting that information which is public record and subject to disclosure pursuant to the California Public Records Act, Government Code Section 6250 et seq. Consultant, its officers, employees, agents, or sub contractors, shall not voluntarily provide declarations, letter of support, testimony at dispositions, response to interrogatories, or other information concerning the work performed under this agreement, or cooperate in any way with a party who may be adverse to the City or whom Consultant reasonably should know may be adverse to the City in any subsequent litigation. Response to a court order shall not be considered "voluntary" provided Consultant gives City notice of such court order. Consultant shall incur no liability under this agreement for materials submitted by it, which are later released by City, its officers, employees, or agents. Consultant shall also incur no liability for statements made by it at any public meeting conducted by City, or for any document released by it for which prior written City authorization was obtained. If Consultant or any of its officers, employees, consultants, or sub contractors does voluntarily provide information in violation of this agreement, City has the right to reimbursement and indemnity from Consultant for any damages caused by Consultant's conduct, including Attorney's fees. Consultant will promptly notify City should Consultant, its officers, employees, agents or sub contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request or court order from any party regarding this agreement and the work performed thereunder. City retains the right, but not the obligation, to represent Consultant and/or to be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. City warrants that Consultant will have fully met the requirements of this provision by obtaining City's written approval prior to providing documents, testimony, or declarations; consulting with City before responding to subpoena or court order; in the case of depositions upon providing notice to City of same; or providing City the opportunity to review discovery response prior to submission. For purposes of this section, a written authorization from City shall include a "faxed" letter. Consultant covenants that neither they nor any officer or principal of their firm have any interest in, or shall they acquire any interest, directly or indirectly which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this agreement, no person having such interest shall be employed by them as an officer, employee, agent, or sub contractor. Consultant further covenants that Consultant has not contracted with nor is performing any services directly or indirectly with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City and further covenants and agrees that Consultant and/or its subcontractors shall provide no service or enter into any agreement or agreements with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City prior to the completion of the work under this agreement. 11. Indemnification: Consultant agrees to indemnify, protect, and hold harmless the City and its officers, employees, and volunteers, against any and all claims or actions arising from Consultant's acts, errors, or omissions in performing services pursuant to this agreement and for any costs or expenses incurred by City on account of any claim therefore, including Attorney's fees. 12. Insurance: Consultant shall secure and maintain throughout the term of this agreement the following types of insurance issued by companies which are admitted and authorized to do business in California as insurance carriers, with limits as shown: Workers Compensation: A program of Workers' Compensation insurance or state approved Self -Insurance program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability covering all persons providing services on behalf of the Consultant and all risks to such persons under this agreement. Comprehensive General and Automobile Liability Insurance: This coverage shall include contractual coverage and automobile liability coverage for owned hired and non -owned vehicles. The policy shall have per occurrence limits for bodily injury and property damage of not less than one million (1,000,000). If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work or services performed under this agreement or the general aggregate limit shall be twice the required occurrence limit. Said insurance coverage shall be at least a broad as Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 0001) and Insurance Services Office Form Number CA 0001 (Ed. 1/87) covering Automobile Liability Code 1 (any auto). 13. Policies Primary and Non-contributory:, All insurance policies required above are to be primary and non-contributory with any insurance of self-insurance programs carried or administered by City. 14. Notification: All notices and written communications sent to City under the agreement shall be sent to the following address, unless authorized to be sent elsewhere by City: Mr. Jesus Nava Finance Director/Treasurer 501 Primrose Rd Burlingame CA 94010-3997 650-558-7222 All such being sent to Consultant shall be sent to: Mr. Kevin L. Weigant Municipal Auditing Services P.O. Box 3465 Pinedale CA 93650-3465 559-291-5990 15. Effective Date: This agreement shall become effective on the date of signature. The contract period shall start upon the Consultants first generated letters. In the event that the Consultants operations are interrupted (for any reason), the period of interruption shall be added to the end of the contract period. 16. Entire Agreement: This agreement is the complete, final, entire agreement, and exclusive expression of the agreement between the parties hereto and supersedes any and all other agreements, either oral or in writing, between the parties with respect to the subj ect matter herein. Each party to this agreement acknowledges that no representations by any party which are not embodied herein and that no other agreement, statement, or promise not contained in this agreement shall be valid and binding. 17. Assignment or Substitution: City has an interest in the qualifications of and capability of the persons and entities who will fulfill the duties and obligations imposed upon Consultant by this agreement. In recognition of that interest, neither any complete or partial assignment of this agreement may be made by Consultant nor changed, substituted for, deleted, or added to without the prior written consent of City. Any attempted assignment or substitution shall be ineffective, null and void. 18. Modification of Agreement: The terms are subject to modification by mutual agreement between City and Consultant which such changes shall be incorporated by written amendments to this agreement. The parties agree that the requirements for prior written changes, amendments, or modifications to this agreement may not be waived and any attempted waiver shall be void. 19. Savings Clause: If any provision of this agreement is found to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. 20. Term of Agreement: Termination: The terms of this agreement shall be three (3) years with two (2) two year automatic extensions. The contract may be terminated by either party on 30 days written notice to the other. In the event of an early termination, the Consultant is entitled to compensation based upon all work in process. 21. Authority to Execute: The person or persons executing this agreement on behalf of Consultant warrants and represents that he has the authority to execute this agreement on behalf of his business entity and warrants and represents that he has the authority to bind Consultant to the performance of its obligations hereunder. This Agreement is executed by the parties in Burlingame, California. City of Burlingame: Jesus Nava Date Finance Director/Treasurer Consultant: Municipal Auditing Services Kevin L. Weigant Date Chief Operating Officer