HomeMy WebLinkAboutSpecial District Financing & Administration (SDF&A); 2004-02-05;AGREEMENT FOR CONSULTING AND ADMINISTRATION SERVICES FOR
COMMUNITY FACILITIES DISTRICT NO. 1
Special District Financing & Administration
THIS AGREEMENT is made and entered into as of the s+h day of
by and between the CITY OF CARLSBAD, a municipal
Special District Financing & Administration (SDF&A), a limited
liability company, ("Contractor").
RECITALS
A. City requires the professional services of a municipal financial consulting
and administration contractor that is experienced in the annual administration of the
City's Community Facilities District No. 1 (CFD No. I).
B. Contractor has the necessary experience in providing professional
services and advice related to municipal financing of assessment districts.
C. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
D. Contractor has submitted a proposal to City and has affirmed its
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
I. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this
reference in accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of three (3) annual billing
periods from the date first above written ending on December 31 of each year. The City
Manager may amend the Agreement to extend it for two (2) additional one (1) year
periods or parts thereof. Extensions will be based upon a satisfactory review of
Contractor's performance, City needs, and appropriation of funds by the City Council.
The parties will prepare a written amendment indicating the effective date and length of
the extended Agreement.
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4.
Time is of the essence for each and every provision of this Agreement.
TIME IS OF THE ESSENCE
5. COMPENSATION
The total fee payable for the Services to be performed shall not exceed $65,000.00 per
billing period'foi each of the three (3) annual periods. Hourly Rates are subject to
increases in the Consumer Price Index; however, the not-to-exceed amount will remain
at $65,000.00 per billing period for each of the three (3) annual periods. For years in
which an undeveloped tax is contemplated and/or levied, all activities identified within
Exhibit A, Scope of Services except for arbitrage calculations, will be performed on an
hourly basis not to exceed a total annual billing of $85,000. Hourly rates are specified
in Exhibit "A. No other compensation for the Services will be allowed except for items
covered by subsequent amendments to this Agreement. The City reserves the right to
withhold a ten percent (10%) retention until City has accepted the work and/or Services
specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A.
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers'
compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any
balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor's subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractors.
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Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the work described herein
caused in whole or in part by any willful misconduct or negligent act or omission of the
Contractor, any subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's self-
administered workers' compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of this Agreement.
IO. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key Rating
of not less than "A-:VI'.
10.1 Coveraqes and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liability Insurance. $1,000,000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
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10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
10.1.3 Workers' Compensation and Employer's Liabilitv. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 The City will be named as an additional insured on General
Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providinq Certificates of Insurance and Endorsements. Prior to City's execution
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
City.
10.4 Failure to Maintain Coveraqe. If Contractor fails to maintain any of these
insurance coverages, then City will have the option to declare Contractor in breach, or
may purchase replacement insurance or pay the premiums that are due on existing
policies in order to maintain the required coverages. Contractor is responsible for any
payments made by City to obtain or maintain insurance and City may collect these
payments from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
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11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor
will have the right to make one (1) copy of the work product for Contractor‘s records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For Citv:
Lisa Hildabrand
Finance Director
Finance
City of Carlsbad
1635 Faraday Avenue
Carlsbad CA 92008
Email: Ihild@ci.carlsbad.ca.us
(760)-602-2430
For Contractor:
Barbara Hale-Carter
Principal
SDF & A
333 South Juniper Street
Escondido CA 92025
Email: barbc@sdfa.com
(760)233-2630
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor’s duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City’s Conflict of Interest Code is required
of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be
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determined that disclosure is required, Contractor or Contractor's affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor's agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (I 0) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
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20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City wit1 determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et sea, the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
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acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CITY OF CARLSBAD, a municipal
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EXHIBIT “A”
SCOPE OF SERVICES
ANNUAL TAX ROLL SUBMITTAL
SDFA will cause the annual special tax to be levied on the secured roll of
the County of San Diego. The procedures to accomplish this will include
the following activities:
Determine Annual Tax Roll Billing Requirements. Prepare a worksheet for
CFD No. 1 reflecting pending debt service or loan requirements (if
applicable), future capital facilities requirements, Administrative expenses
and fund balances. This information will be obtained from City staff.
Update Data Files with New Parcel Information. Using building permit
information and San Diego County Assessor Data, identify all new
assessor parcel numbers and building permits issued for the current year
(March 2 to March I), and integrate this information with all prior year’s
data.
Maintain Information on Undeveloped Property. Update and maintain
relevant information on all additional property within the Community
Facilities District boundaries that currently may not be subject to a tax, but
which may/will be in the future.
Produce Draft Cash Flows for Staff review. Create and run programs to
allow for the projection of current and future tax rates. Meet with Staff and
update.
Prepare Agenda Bill to Establish Current Year Tax Rates. Prepare in the
required format a draft agenda bill for staff review, which sets forth the
current year’s required special tax rates. Attend the City Council meetings
at which this action is taken, if requested by staff.
Generate Special Tax Spread and Final Tax Roll Listing. Create and run
programs to produce a spread listing that reflects the current taxable
parcels, pertinent parcel information for determining taxing category and
rate, and per the Rate and Method of Apportionment, the current year’s
special tax. This listing will be included in the Annual Special Tax Levy
Report prepared for staff reference.
Transmit Information to County for Application to the Secured Roll.
Produce a tape of the current year’s charges in the required format and
deliver to the auditor‘s office with a copy of the current year’s resolution
and a letter of authorization identifying the number and amount of the
charges.
Process All Unapplied Charges. If necessary, identify unapplied charges
and research corrected parcel numbers. Resubmit under corrected
assessor‘s parcel numbers prior to auditor‘s resubmitted deadline.
Respond to Inquiries All requests made by staff, property owners or
developers will be addressed by telephone, fax or letter to acknowledge
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their request within one business day of receipt of their request. The
requesting party will be provided with either immediate information or an
estimate of when the information will be forthcoming. An annual
information packet, to be signed by both staff and SDFA, will be prepared
and sent to all requesting parties.
B. ANNEXATIONS
Once notified by staff of property to be annexed, SDFA will coordinate the
annexation process. The annexation process includes:
1 ) Requesting property information from the Planning Department.
2) Coordinating the preparation of the annexation map with the Engineering
3) Preparing a draft agenda bill for staff review.
4) Reviewing title reports for ownership accuracy.
5) Verifying the receipt of the annexation fee and signatures on the
6) Attending Council meeting, if requested by staff.
7) Recording the boundary map and Notice of Special Tax Lien within 15
8) Providing staff with a complete set of documents for their files.
Department.
annexation documents.
days of Council action.
C. APPEALS ACTIONS
SDFA will be responsible for the following, at the request of staff:
1) Prepare a draft analysis of the appeal issue to discuss with staff.
2) Attend the Appeals Board meeting and present the appeal.
3) Take direction from the Appeals Board on further actions.
4) Summarize the decision of the Appeals Board action in a draft agenda bill
5) Attend Council meeting, if requested by staff.
for staff review and prepare a draft response to the appealing party.
D. DELINQUENCIES
There is currently no debt outstanding or existing bond covenants
regarding the City’s responsibility in pursuing payment of delinquent taxes
that may warrant certain administrative procedures be pursued. SDFA is
prepared to assist the City should such requirements become necessary.
E. ARBITRAGE CALCULATIONS
SDFA will provide arbitrage rebate calculations with respect to any Bond
or Certificate issue at the request of the City. Schedules to be prepared
include:
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1) Determination of yield on bond issues utilizing the present value of debt
service payments.
2) Computation of investment earnings subject to arbitrage rebate for each
applicable fund utilizing the future value of non-purpose investments.
3) Table of assumptions and computational information.
4) Summary letter indicating the results of our findings with respect to any
required arbitrage rebate liability.
F. ANNUAL REPORTING REQUIREMENT
Pursuant to SB 1464, SDFA will, at the City’s request, prepare an Annual
Report for CFD No. 1, when applicable, to be submitted to the California
Debt and Investment Advisory Commission (applicable for bonds issued
after January 1, 1993 only). The report will contain current information with
respect to fund balances, delinquency activity and subsequent foreclosure
actions, and the withdrawal of any reserve funds to make necessary debt
service payments.
G ANNUAL DISCLOSURE REQUIREMENT
When applicable and at the request of the City, SDFA will assist the City in
complying with SEC Continuing Disclosure Regulations and the
Continuing Disclosure Agreement (applicable for bonds issued after July
3, 1995). SDFA will compile numeric data for review and comment by staff
and bond council. Input is mandatory for matters of opinion. Not later than
fifteen (15) days prior to each filing, the annual report will be provided to
the Dissemination Agent (if any) or directly to each National Repository.
SDFA will assist the City in reporting Significant Events as defined by the
Disclosure Agreement but in no way takes the responsibility for monitoring
the occurrence of such events.
H. ABILITY TO SUBCONTRACT
Special District Financing & Administration does not currently anticipate
requiring the services of any outside subcontractor to perform the tasks
requested. To the extent that the City of Carlsbad requests additional
services as are generally provided for in our agreement, SDFA reserves
the right to employ subcontractors(s) acceptable to the City of Carlsbad.
1. ADDITIONAL SERVICES
At the request of staff and as detailed by letter agreement, additional
services will be performed.
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SCHEDULE OF FEES
A. AD M IN I STRAT IVE S E RVI C E S
All activities identified within Scope of Services, except for arbitrage
calculations, will be performed on an hourly basis not to exceed a total
annual billing of $65,000. For years in which a undeveloped tax is
contemplated and/or levied, all activities identified within Scope of
Services, except for arbitrage calculations, will be performed on an hourly
basis not to exceed a total annual billing of $85,000. Hourly rates will be
billed as follows:
Principal $1 20.00
Programmer $95.00
Associate $75.00
Data Entry/Secretarial $40.00
Note: Hourly Rates are subject to annual increases in the Consumer Price
Index. District will be notified in writing, in advance of work to be
performed, of any increase fhaf will be in effect for the ensuing fiscal year.
B. ARBITRAGE CALCULATIONS
The rate charged for arbitrage calculations will vary based on the type of
debt and structure of the issue. Calculations for a non-variable rate special
tax bond issue, for example, will be performed for a fee of $1,250 per
year. Please contact SDFA for a quote.
C. EXPENSES
Without prior authorization from the City, additional expenses are limited
to County of San Diego fee and charges for recordation, assessor data via
magnetic tape, assessor parcel maps, copying and postage limited to the
releasing of special tax liens, and copying for distribution of the Annual
Special Tax Levy Report.
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