HomeMy WebLinkAbout89-107 - Sales & Use Tax RecordsRESOLUTION NO. 89 -107
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH DESIGNATING A CIITY CONSULTANT AS THE
AUTHORIZED CITY REPRESENTATIVE TO EXAMINE SALES
AND USE TAX RECORDS.
WHEREAS, pursuant to California Revenue and Taxation Code
Section 7200 et seq., the City of Newport .Beach has adopted a
sales and use tax ordinance which imposes a tax and provides a
measure therefore that can be administered and collected by the
State Board of Equalization along the same and existing statutory
and administrative procedures followed by the State Board of
Equalization in administering and collecting the California State
Sales and Use Taxes.
WHEREAS, pursuant to California Revenue and Taxation Code
Section 7056, the City of Newport Beach, by resolution, may
designate 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.
WHEREAS, the City of Newport Beach has entered into an
agreement for sales tax audit and information services with the
firm of MUNICIPAL RESOURCE CONSULTANTS, a partnership of JOHN T.
AUSTIN, INC. and ALLEN W. CHARKOW, INC. to designate MUNICIPAL
RESOURCE CONSULTANTS as the authorized Consultant to examine such
sales tax records maintained by the Board on behalf of the City of
Newport Beach.
WHEREAS, all legal prerequisites prior to the adoption of
this Resolution have occurred.
NOW THEREFORE, BE IT RESOLVED, by the City Council of the
City of Newport Beach as follows:
Section 1: In all respects as set forth in the Recitals,
Part A, of this Resolution.
Section 2: The City Council of the City of Newport Beach
hereby certifies to the State Board of Equalization that MUNICIPAL
RESOURCE CONSULTANTS is the designated representatives of the City
of Newport Beach to examine all of the sales and use tax records
of the Board pertaining to sales and use taxes collected by the
• Board on behalf of the City of Newport Beach.
Section 3: Pursuant to California Revenue and Taxation
Section 7056(b) , the City Council of the City of Newport Beach
hereby certifies that MUNICIPAL RESOURCE CONSULTANTS, a
partnership of JOHN T. AUSTIN, INC. and ALLEN W. CHARKOW, INC.
(hereinafter referred to as "Consultant ") meets all of the
following conditions:
a. CONSULTANT has an existing contract with the
CITY to examine sales tax records;
b. CONSULTANT is required by that contract to
disclose information contained in, or derived from, those sales
tax records only to an officer or employee of the CITY who is
authorized by resolution to examine the information;
C. CONSULTANT is prohibited by the contract from
performing consulting services 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 tax records after the contract has expired.
Section 4: The City Clerk shall certify to the adoption
of this Resolution.
ADOPTED this 11th day of September , 1989.
ATTE T:
City Clerk
Mayor
CONSULTANT SERVICES AGREEMENT C - -27 75'
THIS AGREEMENT is made at Newport Beach California,
as of /1,5J 1989, by and. between the City of Newport
Beach a municipal corporation (hereafter referred to as
"City ") and Municipal Resource Consultants (hereafter
• referred to as "Consultant" or "MRC"), who agree as follows:
I. Services. Subject to the terms and conditions
set forth in this Agreement, Consultant shall provide to
City the services described in Exhibit "A ". Consultant
shall provide said services at the time, place, and in the -
manner specified in Exhibit "All. The Consultant shall not
be compensated for services outside the scope of Exhibit
"A".
2. Payment. City shall pay Consultant for services
rendered pursuant to this Agreement at the times and in the
manner set forth in Exhibit "A". The payments specified in
Exhibit "A" shall be the only payments to be made to
Consultant for services rendered pursuant to this Agreement,
unless the City approves additional compensation for
additional service. Consultant shall submit all billings
for services rendered pursuant to this Agreement to City in
the manner specified in Exhibit "A ".
3. Facilities and EcruipMent. Consultant shall, at
its sole cost and expense, furnish all facilities and
equipment which may be required for furnishing services
Pursuant to this Agreement.
4. General Provisions. The general provisions set
forth in Exhibit "B" are part of this Agreement. In the
event of any inconsistency between said general provisions
and any other terms or conditions of this Agreement, the
other term or condition shall control insofar as it is
inconsistent with the general provisions.
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5. Exhibits. All Exhibits referred to herein are
attached hereto and are by this reference incorporated
herein.
EXECUTED as of the day and year first above stated.
By:
Title:
Date:
By:
Title:
Date:
ATTEST:
CITY CLERK
ATTEST TO FORM:
CITY OF NEWPORT BEACH
A Municipal Corporation
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MUNICIPAL RESOURCE CONSULTANTS
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EXHIBIT "A"
Additional terms of this Agreement are as follows:
• OBJECTIVES
MRC shall provide a Sales Tax Information, Audit and
Corollary Consulting service designed to achieve the
following objectives:
Sales Tax Information
Computerize the City's sales tax data utilizing MRC's
Sales Tax Analysis & Reporting System (STARS) to
readily facilitate the City's monitoring, analysis and
forecasting of its sales tax revenue.
Sales Tax Audit
Conduct an initial and ongoing sales
to identify and correct point of sale
reporting errors and thereby generate
income for the City. MRC's sales tax
encompass all City businesses and not
firms.
Corollary Consulting
tax audit in order
taxpayer
new sales tax
audit shall
just the major
As an outgrowth of the sales tax information and audit
services, MRC shall identify additional opportunities
for the City and /or MRC to enhance the City's revenue
base in areas such as sales tax, property tax, business
license tax, utility users tax and defined economic
development goals.
SCOPE OF SERVICE
The scope of service includes, but is not limited to, MRC
performing the following tasks:
Sales Tax Information
o Procure a computer tape of sales tax permit
records from the State Board of Equalization.
o Establish master file in STARS from tape data
provided in previous task.
o Input data from sales 'tax distribution reports
provided by State Board of Equalization for most
recent six (6) consecutive quarters.
o Receive and process sales tax distribution reports
quarterly.
• o Reorganize and refine computerized sales tax data
for the City utilizing MRC's Sales Tax Analysis
and Reporting System (STARS)
o Prepare and submit STARS reports on a quarterly
basis principally focusing on the major sales tax
producers. Major sales tax producers are defined
as those businesses meeting or exceeding a
specified quarterly revenue threshold and
comprising in aggregate: ninety percent (90 %) or
more of the sales tax revenue generated from
businesses located in the City.
All major sales tai: producers and business
categories are monitored and analyzed quarterly
based on reports to include the following:
Management Summary & Charts. Based on MRC's
analysis and evaluation of the STARS reports
and other data,, each quarterly report
includes a comprehensive Management Summary.
The Summary features a general analysis
regarding statewide trends that may affect
the City's sales tax plus a specific analysis
of the City's sales tax composition, changes
and performance. Twelve color charts are
included in each report to graphically
illustrate the data and analysis presented in
the Summary. The Management Summary and
Charts do not contain confidential
information and can therefore be distributed
to key City personnel and the City Council.
Major (and Too 100) Sales Tax Producers
Ranks in descending order according to level
of sales tax produced.
2
Business Classification. Groups and ranks
major producers by business classification
according to level of sales tax produced.
Sales Tax Trend Reports. Indicates growth
and decline comparisons by various categories
for forecasting and analysis.
• - Geo- Coding Tracks sales tax performance
within specific areas of the city (e.g., key
shopping centers, redevelopment project
areas, downtown business districts, etc.)
Charts and printed reports are included for
each geo -area. (Note: Each client is
entitled to at least one geo -area at nq
charge. If numerous geo -areas are desired,
there many be a nominal charge. MRC will
advise the City in advance of any such
charge, which would be at MRC's cost).
Status Report MRC cleans up addresses on
all permits and provides a status report on
all changes to the sales tax files, that is
equally useful for business tax enforcement.
The report shows all new permits, address
changes, owner changes and closed permits and
effectively replaces the yellow registration
cards that are cumbersome to use. By
comparing the data which is in a clean
address order with the business tax files,
unlicensed business can be identified and
billed, or business tax records can be
updated for new addresses or owners, or
purged if closed.
The "cleaned up" data from the State Board of
Equalization can be transferred to the City's
computer via floppy diskette or 9 -track tape if
the City desires to have the information for other
Purposes.
3
Sales Tax Audit
o Develop a target list of potential point of sale
reporting errors based on a comprehensive
inventory and evaluation of all businesses in the
City of Newport Beach. These businesses are to be
analyzed based on prop:rietory guidelines
established by MRC, formulated through expert
knowledge of corporate mergers and acquisitions,
sales vs. use tax, business marketing organization
and methods, commercial sales tax reporting
practices, and other conditions contributing to
reporting errors.
o Contact each target business to determine whether
a point of sale reporting error exists.
Note: This shall be accomplished with the highest
regard to discretion and professional conduct.
MRC sales tax audits shall be predicated on a
constructive public relations approach which
emphasizes the importance of each business to the
City and the mutual benefits of correcting
reporting errors.
o Provide to the City and State Board of
Equalization reports addressing each point of sale
reporting error individually, including the
business name, address, telephone number,
California sales tax permit number, individuals
contacted, date(s) of contact, nature of business,
reason(s) for error, recommended corrective
procedure and, if available, estimated sales tax
income which should be forthcoming to the City of
Newport Beach.
o Coordinate with the taxpayer and State Board of
Equalization to make the necessary corrections
plus retroactive adjustments for eligible amounts
improperly distributed in prior quarters.
o On a quarterly basis, monitor and analyze STARS
reports with audit focus on the following:
Those accounts with previously reported point
of sale distribution errors to ensure that
the corrections are made for current quarters
plus retroactive adjustments for eligible
amounts improperly distributed in prior
quarters.
Those major accounts comprising approximately
ninety percent (go %) of the City's total
sales tax revenue to identify any
irregularities (e.g., negative fund
transfers, significant increases, decreases,
etc.) and ensure that the City is not getting
less than it is entitled.
• - Those accounts having a use tax designation
to ascertain why the tax is being classified
as use tax rather than sales tax.
Corollary Consulting
o Make specific recommendations (for City staff
and /or MRC) to further enhance the City's revenue_
base in areas such as sales tax, property tax,
business license tax, 'transient occupancy tax,
utility users tax and defined economic development
goals.
o Provide City employees with post audit sales tax
orientation:
Conduct technical seminar on California's
local sales tax distribution process.
Train staff in the fundamentals of sales tax
auditing should the City desire to assume
responsibility for future maintenance of
local retail accounts internally.
o Analyze list of City's major sales tax producers
in order to advise and assist the City in
developing a public relations program to prevent
the loss of these important businesses.
o Profile for Economic Development /Community
Redevelopment and Chamber of Commerce personnel
the most economically desirable /undesirable types
of developments /business users and the reasons
why.
o Provide a list of businesses located in the City
that are not presently producing sales tax to the
City of Newport Beach but could be through
constructive changes in marketing and /or
purchasing procedures.
o Assist in defining specific geographic areas for
which the City would have an interest in knowing
the sales tax produced (e.g., within Community
Redevelopment Agency boundaries).
5
TIMING
Service under this contract shall commence within ten (10)
days following receipt of the following:
City Council contract approval and resolution
designating MRC as the authorized City contractor
to examine sales and use tax records (see Exhibit
• - ..0 "); and
State Board of Equalization quarterly distribution
reports for most recent six (6) consecutive
quarters.
Sales Tax Information
STARS reports shall be provided to City on a quarterly
basis within thirty (30) working days following receipt
of the quarterly distribution reports.,
Sales Tax Audit
The initial report identifying point of sale reporting
errors shall be provided within sixty (60) to ninety
(90) working days following receipt of the above.
Corollary Consulting
This will occur within a reasonable time after delivery
of the initial STARS reports and /or completion of the
Sales Tax Audit.
3
PERIOD COVERED AND CHARGES
The term of this Agreement shall be for a one (1) year period
commencing September 11 1989 _ In order to make the
proposed services self - funding for the City of Newport Beach,
MRC's compensation for providing the initial and ongoing sales
tax audits and STARS reports is entirely predicated and
contingent upon MRC's ability to produce new sales tax revenue
for the City, further described as follows:
• Sales Tax Audit Service
MRC's compensation for providing the audit service is 25% of
new sales tax revenue realized by the City as a result of MRC
identifying and correcting the related point -of -sale
distribution error. Said 25% applies to each correction for
fund transfers (i.e., retroactive adjustments for eligible
amounts improperly distributed in prior quarters) and the
first six consecutive reporting quarters following completion
of the audit by MRC and confirmation of corrections by the
State Board of Equalization.
Sales tax audit invoices are submitted quarterly after the
City has received the revenue from the correction and
quarterly distribution report confirming it. Each invoice is
to include the business name, permit number, local allocation
amount received by the City and amount due MRC. Invoices are
due and payable upon receipt.
STARS Reports
MRC proposes to provide STARS Reports for $6,000 for the first
year, or $1,500 per quarter, payable only after the City has
received the quarterly STARS report(s) and sufficient funds to
cover the STARS charges from the City's 75% share of new sales
tax revenue produced from MRC's audit service. The following
computation illustrates a hypothetical example:
New sales tax revenue produced
for City from MRC audit service
Less MRC compensation for audit
service @ 25%
City's share of new sales tax
revenue @ 75%
Less STARS charge for full year
@ $1,500 per quarter
Net new sales tax revenue to City
after compensating MRC for audit
service and STARS reports
$100,000
- 25,000
$ 75,000
-$ 6,000
69.000
Should MRC's audit service fail to generate sufficient new
sales tax revenue for the City to cover the STARS charges
out of the City's 75% share, then MRC shall absorb the
shortfall amount.
Expenses
. All expenses incurred by MRC in providing the audit service
and STARS reports are absorbed by MRC. These expenses
include items such as employee salaries and benefits,
insurance, airfare, auto rentals, meals, lodging,
keypunching, computer processing, clerical, communications
(e-g., personal meetings, telephone, mail, etc.)
photocopying, overhead and miscellaneous out -of- pockets for
consumable supplies and research materials such as maps,
directories, etc.
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CERTIFICATION OF CONFIDENTIALITY
Section 7056 of the State of California Revenue and Taxation
Code specifically limits the disclosure of confidential
taxpayer information contained in the records of the'State
Board of Equalization. This section specifies the conditions
under which a City may authorize persons other than City
officers and employees to examine State Sales and Use Tax
records.
A. MRC is authorized by this Agreement to examine sales and
use tax records of the State Board of Equalization
provided to City pursuant to contract under the Bradley -
Burns Uniform Sales and Use Tax Law.
B. MRC is required to disclose information contained in, or
derived from, those sales and use tax records only to an
officer or employee of the City who is authorized by
resolution to examine the information.
C. MRC is prohibited from performing consulting services for
a retailer during the term of -this Agreement.
D. MRC is prohibited from retaining the information
contained in, or derived from, those sales and use tax
records, after this Agreement has expired.
Information obtained by examination of State Board of
Equalization 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
adopted pursuant to Section 7056(b) of the Revenue and
Taxation Code.
The resolution shall designate MRC as a person authorized to
examine sales and use tax records and certify that this
Agreement meets the requirements set: forth above and in
Section 7056(b)(1) of the Revenue and Taxation Code.
MRC hereby certifies that any and all information utilized in
the conduct of work performed is to be utilized only for those
Purposes authorized by the City and by the Bradley -Burns
Uniform Local Sales and Use Tax Law.
E
l
GENERAL PROVISIONS
EXHIBIT "B"
1. Independent Contractor. At all times during the term
of this Contract, Municipal Resource Consultants (Consultant)
shall be an Independent Contractor and shall not be an
• employee of the City of Newport Beach (City). City shall have
the right to control Consultant only insofar as the results of
Consultant's services rendered pursuant to this Agreement;
however, City shall not have the right to control the means by
which Consultant 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 Consultant personnel or
subcontractor 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
Consultant employee or subcontractor for injury or sickness
arising out of his /her employment, or for any negligent
actions of the Consultant or its employees.
All persons employed in the performance of such services and
functions shall be employees of Consultant, and as such shall
not, for any purposes, be considered employees of City and
therefore shall have no right to any City service, civil
service, or other City status.
3. Subcontracts. Any subcontracts entered into by
Consultant for services to be rendered towards the completion
of Consultant's portion of this Agreement shall be for
Consultant's benefit alone, and as such shall be its
responsibility with no liability resting on the City.
Consultant agrees to provide a list of all subcontractors to
be used in connection with services; to be rendered toward the
completion of its portion of this Agreement to the City within
ten (10) working days of execution of this Agreement.
4. Licenses, Permits Etc. Consultant represents and
warrants to City that he has all licenses, permits,
qualifications and approvals of whatsoever nature which are
legally required for Consultant to practice his profession.
Consultant represents and warrants; to City that Consultant
shall, at his sole cost and expense:, keep in effect or obtain
at all times during the term of this Agreement any licenses,
permits, and approvals which are legally required for
Consultant to practice his profession.
GENERAL PROVISIONS'
PAGE 2
5. Time. Consultant shall devote such time to the
Performance of services pursuant 1:0 this Agreement as may be
reasonably necessary for satisfactory performance of
Consultant's obligations pursuant to this Agreement. Neither
Party shall be considered in default of this Agreement to the
extent performance is prevented or delayed by any cause,
present or future, which is beyond the reasonable control of
the party.
6. Insurance.
(a) Public Liability. During the term of this
Agreement, Consultant 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 any one occurrence; $1,000,000
aggregate; and, $50,000.00 for property
damage. Consultant shall cause the City,
its officials and employees to be named on
all liability policies described above as
insured as respects: (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, Consultant shall fully
comply with the terms of the law of
California 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 Consultant may have
for worker's compensation.
7. Consultant Not Agent. Except as City may specify
in writing, Consultant shall have no authority, express or
implied to act on behalf of City of any capacity whatsoever as
an agent. Consultant shall have no authority, express or
implied, pursuant to this Agreement to bind City to any
obligation whatsoever.
a. 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.
GENERAL PROVISIONS
PAGE 3
9. Personnel. Consultant shall assign only
competent personnel to perform services pursuant to this
Agreement. In the event that City, in its sole discretion, at
any time during the term of this Agreement, desires the
removal of any person or persons assigned by Consultant to
perform services pursuant to this Agreement, Consultant shall
• remove any such person immediately upon receiving notice from
City of the desire of City for the removal of such person or
persons.
10. Standard of Performance. Consultant shall
perform all services required pursuant to this Agreement in
the manner and according to the standards observed by a
competent practitioner of the profession in which Consultant
is engaged in the geographical area in which Consultant
practices his profession. All products of whatsoever nature
which Consultant delivers to City pursuant to this Agreement
shall be prepared in a substantial, first class and
workmanlike manner and conform to the standards of quality
normally observed by a person practicing in Consultant's
profession.
11. City Representative. The City Manager or his
designee is the representative of the City and will administer
this Agreement for the City.
12. Termination. This Agreement may terminate on
ten (10) days written notice by either party, or within such
time as both parties may find necessary to conclude the work
currently under way and to summarize Consultant's findings for
City.
13. Indemnity and Hold Harmless. Consultant shall
assume the defense of, and indemnify and save harmless, the
City, its officers, employees, and agents, and each and every
one of them, from and against all actions, damages, claims,
losses or expenses of every type and description to which they
may be subjected or put, by reason of, or resulting from, the
performance of the work, provided that such action, damage,
claims, loss, or expense is attributable to bodily injury,
sickness, disease or death, or to injury to, or destruction of
property, whether upon or off the work, including the loss of
use thereof, and is caused in whole or in part by any
negligent act or omission of the Consultant, and
subcontractor, anyone directly or ,indirectly employed by any
of them or anyone for whose acts any of them may be liable,
whether or not it is caused in part by a party indemnified
hereunder.
GENERAL PROVISIONS/
PAGE 4
14. Eaual Employment Opportunity: During the
performance of this Agreement, Consultant, for itself, its
assignees and successors in interest, agrees as follows:
a. Compliance With Reculations: Consultant shall
• comply with the Executive Order 11246 entitled "Equal
Employment Opportunity,: as labor regulations (41 C.F.R. Part
60), hereinafter referred to as the "Regulations."
b. Nondiscrimination: Consultant, with regard to the
work performed by it after award and prior to completion of
the work pursuant to this Agreement, shall not discriminate on
the ground of race, color, religion,, sex or national origin in
the selection and retention of subcontractors, including -
procurements of materials and leases; of equipment.
C. Solicit-At-in" f..,-
- - -- ••�� �� r.aunrlals ano equipment: in all solicitations
either by competitive bidding or negotiations made by
Consultant for work to be performed under any subcontract,
including procurements of materials or equipment, such
Potential subcontractor or supplier shall be notified by
Consultant of Consultant's obligation under this Agreement and
the Regulations relative to nondiscrimination on the ground of
race, color, religion, sex or national origins.
d. Information and Reports:, Consultant shall provide
all information and reports required by the Regulations, or
orders and instructions issued pursuant thereto, and will
permit access to its books, records, accounts, other sources
of information and its facilities as may be determined by the
City to be pertinent to ascertain compliance with such
Regulations, orders and instructions. Where any information
required of Consultant is in the, exclusive possession of
another who fails or refuses to furnish this information,
Consultant shall so certify to the City and shall set forth
what efforts it has made to obtain the information.
e. Sanctions for Noncompliance: In the event of
noncompliance by Consultant with the nondiscrimination
provisions of this Agreement, the City shall impose such
contract sanctions as it may determine to be appropriate,
including, but not limited to:
(1) Withholding of payments to Consultant under the
contract until Consultant complies;
(2) Cancellation, termination, or suspension of the
Agreement, in whole or in part.
GENERAL PROVISIONS(
PAGE 5
f. Incorooration of Provisions: Consultant shall
include the provisions of paragraphs a through a in every
subcontract, including Regulations, order, or instructions
issued pursuant thereto. Consultant shall take such action
with respect to any Regulations, order or instructions issued
• pursuant thereto. Consultant shall take such action with
respect to any subcontract or procurement as the City may
direct as a means of enforcing such provisions, including
sanctions for noncompliance; provided, however, that in the
event Consultant becomes involved in, or, is threatened with,
litigation with a subcontractor or supplier as a result of
such direction, Consultant may request City to enter such
litigation to protect the interests; of the City.
15. Cost of Litigation: If any legal action is
necessary to enforce any provision hereof or for damages by
reason for an alleged breach of any provisions of this
Agreement, the prevailing party shall be entitled to receive
from the losing party all costs and expenses in such amount as
the court may adjudge to be reasonable attorneys' fees.