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HomeMy WebLinkAboutR-2020-086 Execute Tolling Agreements RESOLUTION NO. R-2020-086 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE TOLLING AGREEMENTS AND GRANTING FURTHER AUTHORITY. WHEREAS, the City of Riverside (the "City") has initiated audits to determine the existence or extent of possible underpayment of the gross receipts license tax in Chapter 630 of the Municipal Code of the City of Riverside, Missouri by persons or entities subject to such tax operating in the City ("Audits"); and WHEREAS, the City and Southwestern Bell Telephone Company and New Cingular Wireless PCS, LLC, a/k/a AT&T Mobility, ( "AT&T" and together with the City, the "Parties"), along with their affiliates. desire to enter into tolling agreements, as more fully described in Exhibit 1&2 attached hereto (`Southwestern Bell Telephone Company Tolling Agreement" and "New Cingular Wireless PCS, LLC. a/k/a AT&T Mobility" ), and the Board finds it in the best interest of the City to enter into such tolling agreements; and WHEREAS, while conducting Audits, the City may require additional tolling agreements with other persons or entities subject to the City's gross receipts license tax and the Board finds it in the best interest of the City to enter into such tolling agreements substantially the same as Exhibit 1&2, and WHEREAS, while conducting the Audits, the City may be required, as authorized by law, to compel by subpoena the production of books, papers, and other evidence for the purpose of investigating the existence or extent of possible underpayment of the gross receipts license tax. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: THAT the Board of Aldermen hereby authorizes the Mayor to execute on behalf of the City the Southwestern Bell Telephone Company and New Cingular Wireless PCS, LLC, a/k/a AT&T Mobility, ( "AT&T" and together with the City, the "Parties") Tolling Agreements, substantially in the form attached hereto as "Exhibit 1&2," and the Board hereby further authorizes the Mayor to execute on behalf of the City tolling agreements substantially in the form of Exhibit 1&2 with other persons or entities subject to the City's gross receipts license tax as required during the Audits. FURTHER THAT Pursuant to Chapter 630 of the Municipal Code of the City of Riverside.. Missouri, among other authorities, the Board hereby authorizes the Mayor and the City Clerk as City License Officer as necessary during the Audits to issue and compel by subpoena the production of such person's or entity's books, papers, and other evidence for the purpose of investigating the existence or extent of possible underpayment of the gross receipts license tax. FURTHER THAT the Board hereby authorizes the Mayor and Special Legal Counsel to take all such further action as may be necessary to carry out the intent of this Resolution and the Audits. FURTHER THAT the recitals contained above are incorporated in this Resolution as if fully set forth herein. FURTHER THAT this Resolution is adopted and shall be in full force and effect on and after its passage and approval. -( PASSED AND ADOPTED by the Board of Aldermen of the City of Riverside, Missouri, the day of 2020. Ka leen L. Rose, Mayor ATT Robin Kincaid, C ty Clerk EXHIBIT 1 TOLLING AGREEMENT THIS TOLLING AGREEMENT ("Agreement") is made by and between the City of Riverside, Missouri (the "City") and Southwestern Bell Telephone Company, ("AT&T," and together with the City, the "Parties"). Recitals WHEREAS, the City has a license tax as set forth in Section 630.010 of the Municipal Code of the City of Riverside, Missouri ("License Tax"); WHEREAS, the City believes there is a possible underpayment of the License Tax by AT&T that the City believes would give rise to certain enforcement actions or claims against AT&T; WHEREAS, the Parties wish to postpone or avoid the inconvenience, expense, and distraction of possible litigation by the City against AT&T, while fully preserving any rights of the City as to the Tolled Claims that may exist prior to the Tolling Period (all as defined below in this Agreement) to commence legal action against AT&T, which, but for this Agreement, might otherwise be time-barred or limited in any way by any applicable statute of limitations,laches, and other possible time-bars and defenses based in whole or in part on the time which may elapse during the Tolling Period established herein (all of which time-bars and defenses, including, the statute of limitations and laches,are referred to as"'Time Defenses"); WHEREAS, neither AT&T nor the City, by entering into this Agreement, make any statement as to the merit or extent of merit of any claims,damages or defenses(including the Time Defenses) and the City and AT&T agree that both have the power and authority to enter into this Agreement and no other parties are necessary to join herein in order to toll the statute of limitations and other Time Defenses and make this Agreement enforceable; and, NOW,THEREFORE, in consideration of the mutual commitments herein and other good and valuable mutual consideration,the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Terms and Conditions 1. With respect to any and all claims, causes of action or remedies of the City, known or unknown, relating to, arising out of, or in connection with the City's License Tax, including but not limited to claims for delinquent taxes, interest, penalties, and attorney fees, declaratory judgment and injunctive relief, violation of statute, ordinance, or any other claims, offsets, or causes of action whatsoever (collectively, the "Tolled Claims"), the Parties hereby stipulate that any applicable statute of limitations or other Time Defenses applicable to the Tolled Claims shall be deemed tolled from the period of March 4, 2020 until the earlier of: (a) the termination of this Agreement by either the City or AT&T in accordance with the terms and conditions of this Agreement; or(b)May 31, 2021, unless extended in writing by the Parties, hereinafter such period to be known as the"Tolling Period." For purposes of clarity,the tolling of the statute of limitations and other Time Defenses during; the "Dolling Period shall survive the Tolling Period and any termination hereof, such that any Tolled Claim which would have been barred or limited in any way by or as a result of any statute of limitations or other Time Defense may be brought by the Page I of 3 City without regard to any expiration of time that occurs during the Tolling Period and AT&T may not hereinafter assert in any action between the Parties or otherwise the expiration of the statute of limitation or other Time Defense occurring during or as to the passage of time within the Tolling Period as a defense to any such `Polled Claim brought by the City. For further clarification, this Agreement is not meant to revive any claim barred or limited by any Time Defenses having run prior to the Tolling Period. 2. The City or AT&T may terminate the Tolling Period by giving the other Party thirty (30)days' prior written notice by e-mail and physical delivery such as overnight delivery of the termination of the "Polling Period. Any applicable statute of limitations or other Time Defenses which apply to the Tolled Claims shall begin to run again from the effective date of termination of the Tolling Period. Prior to expiration or termination of this Agreement, which shall occur upon expiration or termination of the Tolling Period, the City and AT&T agree not to file any cause of action against the other relating to the Tolled Claims. 3. Nothing in this Agreement shall be construed as an admission of any fault, liability or wrongdoing by or relating to any person and nothing herein shall be deemed to limit any obligation or liability of either Party, or any defense other than Time Defense tolled during this Agreement, including during the Tolling Period,that may exist. 4. This Agreement may be signed in counterparts, each of which shall be deemed an original, and all such counterparts constituting one Agreement. The exchange of copies of this Agreement and of signature pages electronically or by physical delivery of hard copy shall constitute effective execution and delivery of this Agreement. 5. Any and all notices under this Agreement shall be in writing,and shall be addressed and provided to the Parties by email and physical delivery to the following: To the City: Daniel G. Vogel Margaret C. Eveker Cunningham Vogel & Rost, P.C. 333. S. Kirkwood Rd., Suite 300 St. Louis, MO 63122 dan@municipalfirm.com maggie@municipalfirm.com Special Legal Counsel City of Riverside, Missouri To AT&T: Seth Kaufman Assistant Vice President - Senior Legal Counsel AT&T 208 S. Akard St., Room 3153 Dallas,Texas 75202 sk201 c@att.com 6.The rights and obligations of the Parties created by this Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to conflicts of law. Page 2 of 3 1 This Agreement may not be amended,modified,orsupplemented,except inwriting duly executed and delivered by both Parties toIhis Agreement 8 This Agreement constitutes the full and complete agreement ofthe parties concerning the subject matter ofthe Agreement,and there are no covenants,conditions,or terms other than those expressly set forth inthis Agreement 9 This Agreement shall be effective on the date ofthe last signature below. IN WITNESS WHEREOF,the Partes have hereunto set their hands and seals as ofthe date below written. AT&T By: / l Name;Gary lohnso Title;Vice President- Tax Date:_5/6/202Q CITYOF IVERSIDE, MISSOUR BY: Name: If Title: Date: ~ � 10 Page 3 of3 AMENDED AND ' STATED TOLLING AG' EMENT THIS AMENDED AND RESTATED TOLLING AGREEMENT ("Agreement") is made by and between New Cingular Wireless PCS, LLC, a/k/a AT&T Mobility and Southwestern Bell Telephone Company (collectively "AT&T"), parties of the first part, and each of the Missouri cities identified in Table l below that have executed this Agreement (collectively "Cities"), parties of the second part. AT&T and the Cities are collectively referred to herein as the "Parties." Recitals WHEREAS, each of the Cities has a form of gross receipts or license tax pursuant to various ordinances ("License Tax"); and WHEREAS, the Cities believe there is a possible underpayment of the License Tax by AT&T that could give rise to certain enforcement actions or claims against AT&T; and WHEREAS, the Parties wish to postpone or avoid the inconvenience, expense, and distraction of possible litigation by the Cities against AT&T, while fully preserving any rights of the Cities as to the Tolled Claims that may exist prior to the Tolling Period (all as defined below in this Agreement) to commence legal action against AT&T, which, but for this Agreement, might otherwise be time -barred or limited in any way by any applicable statute of limitations, laches, and other possible time -bars and defenses based in whole or in part on the time which may elapse during the Tolling Period established herein (all of which time -bars and defenses, including, the statute of limitations and laches, are referred to as "Time Defenses"); and WHEREAS, neither AT&T nor the Cities, by entering into this Agreement, make any statement as to the merit or extent of merit of any claims, damages, or defenses (including the Time Defenses) and the Cities and AT&T agree that each individual entity has the power and authority to enter into this Agreement and no other parties are necessary to join herein in order to toll the statute of limitations and other Time Defenses and make this Agreement enforceable; and WHEREAS, the Parties have previously entered into separate tolling agreements regarding these matters and now desire to amend and restate such agreements; NOW, THEREFORE, in consideration of the mutual commitments herein and other good and valuable mutual consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Terms and Conditions 1. With respect to any and all claims, causes of action or remedies of each of the Cities, known or unknown, relating to, arising out of, or in connection with each city's License Tax, including but not limited to claims for delinquent taxes, interest, penalties, and attorney fees, declaratory judgment and injunctive relief, accounting, violation of statute, or any other claims, offsets, or causes of action whatsoever (collectively, the "Tolled Claims"), the Parties hereby stipulate that any applicable statute of limitations or other Time Defenses applicable to the Tolled Claims shall be deemed tolled for the period from the tolling inception date stated in Table 1 below with respect to each city and AT&T company until the earlier of: (a) the termination of this Agreement by either one or more of the Cities or one or more of the AT&T companies in Page 1 accordance with the terms and conditions of this Agreement; or (b) May 31, 2023, unless extended in writing by the Parties, hereinafter such period to be known as the "Tolling Period." For purposes of clarity, the tolling of the statute of limitations and other Time Defenses during the Tolling Period shall survive the Tolling Period and any termination hereof, such that any Tolled Claim which would have been barred or limited in any way as a result of any statute of limitations or other Time Defense may be brought by one or more of the Cities without regard to any expiration of time that occurs during the Tolling Period, and AT&T may not hereinafter assert in any action between the Parties or otherwise the expiration of the statute of limitation or other Time Defense occurring during or as to the passage of time within the Tolling Period as a defense to any such Tolled Claim. City Aurora Butler Cameron Columbia Grandview Green Park Jefferson City Joplin Kirkwood Ladue Lee's Summit Liberty Malden Manchester Maryville Moberly Monett Neosho Overland Platte City Raytown Riverside Springfield St. Joseph Warson Woods Webster Groves Wentzville Woodson Terrace Table 1: Tolling Inception Dat New Cingular Wireless PCS, LLC 3/4/2020 5/3/2018 8/15/2017 5/25/2018 5/25/2018 3/4/2020 5/25/2018 9/21/2017 7/11/2018 6/8/2017 6/23/2017 6/8/2017 3/4/2020 3/4/2020 3/4/2020 9/18/2017 7/3/2019 3/4/2020 5/2/2017 3/4/2020 3/4/2020 3/4/2020 3/27/2018 4/7/2017 12/8/2017 5/3/2018 3/4/2020 3/4/2020 Page 2 es for: Southwestern Bell Telephone Company 3/4/2020 5/3/2018 3/4/2020 5/25/2018 5/25/2018 3/4/2020 5/25/2018 9/21/2017 7/11/2018 3/4/2020 6/23/2017 3/4/2020 3/4/2020 3/4/2020 3/4/2020 9/18/2017 7/3/2019 3/4/2020 5/2/2017 3/4/2020 3/4/2020 3/4/2020 3/27/2018 3/4/2020 12/8/2017 5/3/2018 3/4/2020 3/4/2020 2. Any one or more of the Cities may terminate the Tolling Period with respect to either or both of the AT&T companies by giving the affected company or companies at least thirty (30) days prior written notice by e-mail and physical delivery such as overnight delivery of the termination of the Tolling Period, and such action shall not affect the Tolling Period for the remainder of the Cities. Either or both of the AT&T companies may terminate the Tolling Period with respect to such company and one or more of the Cities by giving each affected city at least thirty (30) days prior written notice by e-mail and physical delivery such as overnight delivery of the termination of the Tolling Period. Any applicable statute of limitations or other Time Defenses which apply to the Tolled Claims shall begin to run again from the effective date of termination of the Tolling Period. Prior to expiration or termination of this Agreement, which shall occur upon expiration or termination of the Tolling Period, the Cities and AT&T agree not to file any cause of action against the other relating to the Tolled Claims. 3. Nothing in this Agreement shall be construed as an admission of any fault, liability, or wrongdoing by or relating to any person and nothing herein shall be deemed to limit any obligation or liability of any of the Parties, or any defense other than Time Defense tolled during this Agreement, including during the Tolling Period, that may exist. 4. This Agreement may be signed in counterparts, each of which shall be deemed an original, and all such counterparts constituting one Agreement. The exchange of copies of this Agreement and of signature pages electronically or by physical delivery of hard copy shall constitute effective execution and delivery of this Agreement. 5. Any and all notices under this Agreement shall be in writing, and shall be addressed and provided to the Parties by email and physical delivery to the following: To the Greg H. Dohrman Cities: Margaret C. Eveker Cunningham Vogel & Rost, P.C. 333. S. Kirkwood Rd., Suite 300 St. Louis, MO 63122 greg@municipalfirm.com maggie@municipalfirm.com Special Legal Counsel for Cities Page 3 To Scott Adams AT&T: AVP — Tax 208 S. Akard St, Room 1842 Dallas, TX 75202 Jeffrey M. Slade AVP-Senior Legal Counsel 208 S. Akard St, Room 2904 Dallas, TX 75202 Robert J. Wagner Thompson Coburn LLP One U.S. Bank Plaza St. Louis, Missouri 63101 rwagner@thompsoncoburn.com thompsoncoburn.com Counsel for AT&T 6. The rights and obligations of the Parties created by this Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to conflicts of law. 7. This Agreement may not be amended, modified, or supplemented to affect all Parties to this Agreement, except in writing duly executed and delivered by the Parties. Any one or more of the Cities and either or both of the AT&T companies may amend, modify, or supplement this Agreement in writing duly executed and delivered by all parties to be bound by such writing, but such action shall not be binding upon the remaining, non -executing Parties. 8. This Agreement constitutes the full and complete agreement of the Parties concerning the subject matter of the Agreement, and there are no covenants, conditions, or terms other than those expressly set forth in this Agreement. 9. This Agreement shall be effective between an individual city and each of the AT&T companies on the date of the last signature of such party, regardless of whether all Parties have executed this Agreement. [Remainder of page left blank. Signature pages to follow.] Page 4 IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals as of the date below written. NEW CINGULAR WI' LESS PCS, LLC, A AT&T MOBILITY By: Name: Title: Date: SOUTHWESTE ' BELL TELEPHONE COMPANY By: Name: Title: Date: Page 5 CITY OF RIVERSIDE By: Name: e: Title: Dater , Page 27