HomeMy WebLinkAbout2009-39 - Bradley-Burns Local Sales and Use TaxRESOLUTION NO. 2009-39
A RESOLUTION OF CITY COUNCIL OF THE CITY OF
NEWPORT BEACH AUTHORIZING THE CITY TO ENTER INTO A
CONTRACT WITH HOLLAND & KNIGHT, LLP FOR ADVICE
AND REPRESENTATION PERTAINING TO BRADLEY -BURNS
LOCAL SALES AND USE TAX LAW
WHEREAS, the City has retained the law firm of Holland & Knight LLP ( "H &K ")
to represent it in a dispute with the California State Board of Equalization
( "SBOE ") regarding the allocation and payment of certain sales tax revenues
owing to the City pursuant to the Bradley -Burns Uniform Local Sales and Use
Tax Law (Cal. Rev. & Tax Code §§ 7200, et seq.) (the "Act "); and
WHEREAS, pursuant to that representation, litigation has been commenced by
the City against the SBOE for violation of the Act and is presently pending in the
Superior Court of California for the City and County of San Francisco as Case
No. CPF -09- 509234 ( "the Lawsuit "); and
WHEREAS, section 7056(b) of the California Revenue and Taxation Code
( "RTC ") provides that access to certain tax records and documents for purposes
of pursuing the City's claims in the Lawsuit may be had provided that the City's
legislative body pass a resolution requesting and authorizing such access; and
WHEREAS, RTC section 7056(b)(1) further provides that the City shall, in
connection with such a resolution, certify that it has an existing contract, binding
on the persons to whom access to the tax records is to be provided, that contains
certain undertakings described in section 7056(b)(1)(A) through 7056(b)(1)(D);
and
WHEREAS, the City wishes to enter into a contract meeting the lawful
requirements of RTC section 7056(b) so that it can then entertain and adopt a
resolution meeting the requirements of RTC section 7056(b) to facilitate access
to tax records and documents for the purposes of pursuing the Lawsuit and any
related proceedings:
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: That the City Attorney for the City of Newport Beach is hereby
authorized to enter into the Contract attached to this Resolution as Exhibit "A ".
Section 2: This Resolution shall take effect immediately upon its adoption by
the City Council and the City Clerk shall certify the vote adopting the resolution.
Adopted this 23rd day of the month of Ju
ATTEST:
Leilani Brown, City C rk
EXHIBIT "A"
Pursuant to Council authorization, the City of Newport Beach ( "City ") has
retained the law firm of Holland & Knight, LLP ("H &K ") to provide it with advice
and representation in connection with the City's claims against the California
State Board of Equalization ( "SBOE "), which are presently pending before the
Superior Court of the State of California for the City and County of San Francisco
in its Case No. CPF -09- 509234 (the "Lawsuit ").
In order to provide effective advice and representation to the City in the Lawsuit,
it is necessary for H &K, acting through certain of H &K's lawyers, staff and
consultants, to have access to all confidential information and data gathered by
the City's sales tax consultant, MuniServices, on the City's behalf, as well as all
information in the possession, custody or control of the SBOE or others
pertaining to the ascertainment of the sales and use taxes that are the subject of
the Lawsuit. These data relate to the City's claims in the Lawsuit, which derive
from retail sales transactions conducted by various retailers in the City.
Section 7056(b) of the California Revenue and Taxation Code ( "RTC ") provides
that access to such confidential data by any person other than an employee or
officer of a city is conditioned upon there being an existing Resolution by the city
designating the person to examine the records, data and other information and
certifying that the individual meets the conditions specified in RTC Section
7056(b)(1), including the requirement of RTC Section 7056(b)(1)(A),that there be
an existing contract with the city to examine the sales and use tax records that
meets all requirements of RTC Section 7056(b)(1), subdivisions (A) through (D).
The City and H &K wish to enter into a Contract complying with the legal
requirements described in RTC section 7056.
Therefore, H &K and the City do hereby further agree as follows:. -
1. In connection with its representation of the City, the law firm of Holland &
Knight LLP ( "H &K ") (acting through certain of its partners, associates, employees
and consultants whose identities shall be set out in a list maintained by the City
Attorney) is hereby authorized to examine all confidential records and data of the
State Board of Equalization, including but not limited to records and data
available through Muni Services, pertaining to the ascertainment of the sales
taxes and use taxes collected or to be collected by the State Board of
Equalization that relate to the claims that are the subject of the Lawsuit.
2. H &K and its partners, associates, employees and consultants will disclose
any information contained in, or derived from, those sales and use tax records
only to: (i) officers, employees or other duly authorized representatives of the
City; or (ii) parties in the Lawsuit and the Court in the Lawsuit, but only to the
extent reasonably necessary in order to pursue the Lawsuit on behalf of the City
and only to the extent authorized by the Court in the Lawsuit.
3. H &K will ensure that each of its partners, associates, employees and
consultants who will have access to confidential sales and use tax records has
done each of the following prior to, and as a condition of, access to such records:
(a) Read this Contract; (b) Signed the list of H &K personnel who will be provided
with access to confidential sales and use tax records and information pursuant to
this contract; (c) Acknowledged through such signature on the City Attorney's list
that he or she is bound by this Contract and by the legal requirements of RTC
section 7056 with respect to the confidentiality of sales and use tax records; and
(d) Agreed though such signature, to the extent that such agreement is not
prohibited by Rule 1 -500 of the California Rules of Professional Conduct, not to
provide California state sales and use tax consulting services to any retailer
during the term of this Contract.
4. H &K will return or (at the City's request) ensure the destruction of all sales
and use tax documents disclosed pursuant to this Contract, as well as all other
documents containing information derived from those sales and use tax
documents, prior to the termination of this Contract.
5. This Contract shall terminate ninety (90) days after H &K ceases to advise
or represent the City in connection with the Lawsuit or any subsequent appellate
or administrative proceedings concerning the City's claims that are the subject of
the Lawsuit, unless the parties otherwise agree in writing. H &K and its personnel
who have been provided with confidential sales and use tax records and
information pursuant to this contract shall not retain in their files or in any other
document the confidential state sales and use tax information to which they have
received access after this contract has terminated.
6. This contract may be amended only in writing signed by the parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
In witness whereof, Holland & Knight LLP and the City have executed this
Agreement as of this day of , 2009.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Aaron C. Harp,
Assistant City Attorney
ATTEST:
By:
Leilani Brown,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
David Hunt, City Attorney
HOLLAND & KNIGHT, LLP
Print Name:
Print Name:
[END SIGNATURES]
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby
certify that the whole number of members of the City Council is seven; that the foregoing resolution,
being Resolution No. 2009 -39 was duly and regularly introduced before and adopted by the City
Council of said City at a regular meeting of said Council, duly and regularly held on the 23rd day of
June, 2009, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Henn, Rosansky, Curry, Webb, Gardner, Daigle, Mayor Selich
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 24th day of June, 2009.
City Clerk
Newport Beach, California
(Seal)