HomeMy WebLinkAboutSpecial District Financing & Administration; 2001-12-14;RATIFICATION OF AMENDMENT NO. 3
TO EXTEND THE AGREEMENT FOR
CONSULTING AND ADMINISTRATION SERVICES
FOR MASTER AGREEMENT
SPECIAL DISTRICT FINANCING & ADMINISTRATION
This Ratification of Amendment No. 3 is entered into
2006, but effective as of the first day of January, 2006, extending t#e underlying initial
agreement between the Parties dated December 14, 2001 (the "Agreement") by and between
the City of Carlsbad, a municipal corporation, ("City"), and Special District Financing &
Administration, ("Contractor") (collectively, the "Parties").
RECITALS
A. On December 22, 2003, the Parties executed Amendment No. 1 to the
Agreement to extend the Master Agreement date to December 31, 2004; and
B. On December 14, 2004, the Parties executed Amendment No. 2 to the
Agreement to extend the Master Agreement date to December 31, 2005; and
C. The Agreement, as amended from time to time expired on December 31, 2005
and Contractor continued to work on the services specified therein without the benefit of an
amendment.
D. The Parties desire to ratify the amendment extending the term of the Agreement,
and any amendments thereto, for a period of one year ending on December 31, 2006.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. Amendment No. 3 to the Agreement is hereby retroactively approved and the
Agreement is hereby extended for a period of one year, ending on December 31, 2006.
2. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
4. The individuals executing this Amendment 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 Amendment.
City Attorney Approved Version #04.11.01
CONTRACTOR
*B
CITY OF CARLSBAD, a municipal
corporation of the State of California
(print name/title)
(e-mail address)
(print name/title)
(e-mairaddress)
ATTEST:
uJ "City Clerk
4'S'Sk__ e. -* " •• '.. '. ' \ _,
If required by City, proper notarial acknowledgment of execution by contractor must be
attached. If a Corporation. Agreement must be signed by one corporate officer from each of the
following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALDR. BALL, CityAtts
City Attorney Approved Version #04.11.01
AMENDMENT NO. 2 TO EXTEND THE AGREEMENT FOR
Master Agreement for Consulting Services
Special District Financing & Administration
This Amendment No. 2 is entered into and effective as of the 6;ck
day of dhC&w& , 2004, extending the agreement dated December 14,
2001 (the "Agreement") by and between the City of Carlsbad, a municipal corporation,
("City"), and Special District Financing 8, Administration, ("Contractor") (collectively, the
"Parties").
RECITALS
A. On December 22, 2003, the Parties executed Amendment No. 1 to the
Agreement to extend the Agreement for a period of one year; and
year; and
contained herein, City and Contractor agree as follows:
B. The Parties desire to extend the Agreement for an additional period of one
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
1. The Agreement, as may have been amended from time to time, is hereby
All other provisions of the Agreement, as may have been amended from
extended for a period of one year ending on December 31,2005.
2.
time to time, shall remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor
pursuant to the Agreement, as may have been amended from time to time, shall include
coverage for this Amendment.
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City Attorney Approved Version #05.22.01
1
4. The individuals executing this Amendment and the instruments referenced
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 hereof of this
Amendment.
CONTRACTOR CITY OF CARLSBAD, a municipal
corporation of the State of California
Barbara Hale-Carter/ PrinciDal
(print name/title)
barbc@sdfa.com ATTEST:
(e-mail address)
**By: $)$
City Clerk
(sign here)
(print namehitle)
Jeff Hamill/ PrinciDal
(e-mail address)
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By:
Deputy City Attorney
2 City Attorney Approved Version #05.22.01
AMENDMENT NO. ONE (I) TO EXTEND AND AMEND AGREEMENT
FOR CONSULTING AND ADMINISTRATION SERVICES FOR
COMMUNITY FACILITIES DISTRICT NO. 3
SPECIAL DISTRICT FINANCING & ADMINISTRATION
This Amendment No. one (1) is entered into and effective as of the
, 2003, extending the agreement dated
December 14, 2001 (the “Agreement”) by and between the City of Carlsbad, a
municipal corporation, (“City”), and Special District Financing and Administration,
(“Contractor“) (collectively, the “Parties”).
,A 22 day of Be~Q-be-
RECITALS
The Parties desire to extend the Agreement for a period of one (1) year; and
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
I. The Agreement, as may have been amended from time to time, is hereby
extended for a period of one (1) year, ending on December 31,2004.
2. All other provisions of the Agreement, as may have been amended from
time to time, shall remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor
pursuant to the Agreement, as may have been amended from time to time, shall include
coverage for this Amendment.
City Attorney Approved Version #04.11.01
1
4. The individuals executing this Amendment and the instruments referenced
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 hereof of this
Amendment.
CONTRACTOR CITY OF CARLSBAD, a municipal
corporation of the State of California
he+ C& Manage;-
Barbara Hale-Carter, Principal ATTEST:
**By: 9% w
(sign here)
City Clerk
Jeff Hamill, Principal
The City requires proper notarial acknowledgment of execution by contractor must be
attached. If a Corporation, Agreement must be signed by one corporate officer from
each of the following two groups.
*Group A.
Chairman,
President, or
Vice-president
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORM:
- Deputy City Attorney
City Attorney Approved Version #04.11.01
2
Attached Document@)
Beat@) Embossment
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California c;;,: !: ; ,: '-
Briana Desiree &O N%pubIic
Date Name and line of Dfficer (e.g., 'Jane Doe, Notary Public")
Atq\LL personally appeared .\re b -
Name@) of Signer@)
0 personally known to me
evidence
to be the person@ whose namew &
subscribed to the within instrument and
acknowledged to me that @&&heyexecuted
the same in &m/the+r authorized
capacity(i%), and that by +-
Fproved to me on the basis of satisfactory
BRIANA DESIREE ALFAFtC)
acted, executed the instrument.
WITNESS my hand and official seal.
Though the infomation below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
0 Corporate Officer - Title@):
Partner - 0 Limited 0 General
0 Attorney-in-Fact
0 1999 National Notary Association * 9350 De Soto he.. P.O. Box 2402 - Chatsworth, CA 9131324G2 * w.natlmaI~ary.org Prod. No 5907 Reorder: Call Toll-Free 1-800-876-6827
Attached Dacument(s)
Bear(s) Embossment
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
personally appeared Name@) of Signer@)
personally known to me
Edi;roved to me on the basis of satisfactory
evidence
to be the personw whose name(* is/=
subscribed to the within instrument and
acknowledged to me that kt&he/thegexecuted
the same in )ris/her/their authorized
capacity(ioef, and that by bie/her/their
signature(eon the instrument the personw, or
the entity upon behalf of which the person(+
acted, executed the instrument.
WITNESS my hand and official seal.
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: hwa'ayI.-l' A+. doe
/ Number of Pages: %L Document Date:
Signer@) Other Than Named Above:
Capacity(ies) Claimed by Signer
3 Individual
*corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
0 Guardian or Conservator
Signer Is Representing:
Q 1999 National Notary Association * 9350 De Soto Ave., P.O. Box 2402 - Chatsworth. CA 91 31 3-2402 - www nationalnotary org Prod. No. 5907 Reorder: Cali Toll-Free 1-800-876-6827
EXHIBIT A
MASTER AGREEMENT FOR CONSULTING SERVICES
SPECIAL DISTRICT FINANCING AND ADMINISTRATION
THIS AGREEMENT is made and entered into as of the ltf 7Lf day of
PEcm0m I 2001, by and between the CITY OF CARLSBAD, a municipal
corporation, hereinafter referred to as “City”, and Special District Financing and
Administration, a limited liability company, hereinafter referred to as “Contractor.”
RECITALS
City requires the services of a Contractor to provide the necessary consulting
services for analysis and assistance on issues pertaining to the formation and
administration of special financing districts on a non-exclusive, project by-project basis;
and Contractor possesses the necessary skills and qualifications to provide the services
required by the City;
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. CONTRACTOR’S OBLIGATIONS
The Contractor’s obligations with respect to any project granted to Contractor
under this agreement shall be as specified in the Task Description for the project (see
paragraph 4 below). While performing any services under this agreement, 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.
-l-
2. CITY OBLIGATIONS
The City’s obligations with respect to any project granted to Contractor under this
agreement shall be as specified in the Task Description for the project (see paragraph 4
below).
3. PROGRESS AND COMPLETION
The work for any project granted to Contractor under this contract will begin
within ten (IO) days after receipt of notification to proceed by the Finance Director or
Assistant Finance Director and be completed within the time specified in the Task
Description for the project (see paragraph 4 below). Extensions of time may be granted
if requested by the Contractor and agreed to in writing by the Finance Director or
Assistant Finance Director. The Finance Director or Assistant Finance Director will give
allowance for documented and substantiated unforeseeable and unavoidable delays
not caused by a lack of foresight on the part of the Contractor or delays caused by City
inaction or other agencies’ lack of timely action.
4. FEES TO BE PAID TO CONTRACTOR
The total fee payable for the services to be performed shall be determined on a
project-by-project basis and shall be based on the Contractor’s Schedule of Rates
attached hereto as Exhibit “1”. Prior to initiation of any project work by the Contractor,
the City shall prepare a Project Task Description and Fee Allotment (the “Task
Description”), which upon signature by the ‘Contractor, and for City, by the City Manager
or an authorized designee, shall be considered a part of this Agreement. The Task
Description shall include a detailed scope of services for the particular project being
considered and a statement of the Contractor’s fee to complete the project in
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accordance with the specified scope of services. The Task Description shall also
include a description of the method of payment and shall be based upon an hourly rate,
percentage of project complete, completion of specific project tasks or a combination
thereof. The cumulative total for all projects allowed pursuant to this Agreement shall
not exceed fifty thousand dollars ($50,000) per fiscal year.
5. DURATION OF CONTRACT -.
This Agreement shall extend from the date first written above to December 31,
2003. The City Manager may amend the Agreement to extend it for three (3) additional
one (1) year periods or parts thereof in an amount not-to-exceed fifty thousand dollars
($50,000) per fiscal year, subject to the appropriation of funds by the City Council.
Extensions shall be based upon a satisfactory review of Contractor’s performance, City
needs and appropriation of funds by the City Council. The parties shall prepare a
written amendment indicating the effective date and length of the extended Agreement.
6. PAYMENT OF FEES
Payment of approved items on the invoice shall be mailed to the Contractor
within 30 days of receipt of the invoice.
7. FINAL SUBMISSIONS
The final submissions for each project performed by the Contractor shall be
specified in the Task Description for the project (see paragraph 4 above).
8. CHANGES IN WORK
If, in the course of a project or the contract, changes seem merited by the
Contractor or the City, and informal consultations with the other party indicate that a
change in the conditions of a project or the contract is warranted, the Contractor or the
City may request a change in the project or the contract. Such changes shall be
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processed by the City in the following manner: a letter outlining the required changes
shall be forwarded to the City by Contractor to inform them of the proposed changes
along with a statement of estimated changes in charges or time schedule. A Standard
Amendment to Agreement shall be prepared by the City and approved by the City
according to the procedures described in Carlsbad Municipal Code Section 3.28.172.
Such Amendment to Agreement shall not render ineffective or invalidate unaffected
portions of the agreement.
9. COVENANTS AGAINST CONTINGENT FEES
The Contractor warrants that their firm has not employed or retained any
company or person, other than a bona fide employee working for the 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,
the City shall 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 such fee, commission, percentage, brokerage fees, gift or contingent fee.
10. ANTI-DISCRIMINATION AND ANTI-HARASSMENT CLAUSE
The Contractor shall comply with all applicable state and federal laws and
regulations prohibiting discrimination and harassment.
11. TERMINATION OF CONTRACT
In the event of the Contractor’s failure to prosecute, deliver or perform the work
as provided for in this contract, the City Manager may terminate this contract for
nonperformance by notifying the Contractor by certified mail of the termination of the
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Contractor. The Contractor, thereupon, has five (5) working days to deliver said
documents owned by the City and all work in progress to the Finance Director or
Assistant Finance Director. The Finance Director shall make a determination of fact
based upon the documents delivered to City of the percentage of work which the
Contractor has performed which is usable and of worth to the City in having the contract
completed. Based upon that finding as reported to the City Manager, the City Manager
shall determine the final payment of the contract.
This agreement may be terminated by either party upon tendering thirty (30)
days written notice to the other party. In the event of such suspension or termination,
upon request of the City, the Contractor shall assemble the work product and put same
in order for proper filing and closing and deliver said product to City. In the event of
termination, the Contractor shall be paid for work performed to the termination date;
however, the total shall not exceed the lump sum fee payable under paragraph 4. The
City Manager shall make the final determination as to the portions of tasks completed
and the compensation to be made.
12. CLAIMS AND LAWSUITS
The Contractor agrees that any contract claim submitted to the City must be
asserted as part of the contract process as set forth in this agreement and not in
anticipation of litigation or in conjunction with litigation. The Contractor acknowledges
that if a false claim is submitted to the City, it may be considered fraud and the
Contractor may be subject to criminal prosecution. The Contractor acknowledges that
California Government Code sections 12650 et seq., the False Claims Act, provides for
civil penalties where a person knowingly submits a false claim to a public entity. These
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8
provisions include false claims made with deliberate ignorance of the false information
or in reckless disregard of the truth or falsity of information. If the City of Carlsbad seeks
to recover penalties pursuant to the False Claims Act, it is entitled to recover its
litigation costs, including attorney’s fees. The Contractor acknowledges that the filing of
a false claim may subject the Contractor to an administrative debarment proceeding
wherein the Contractor may be prevented to act as a Contractor on any public work or
improvement for a period of up to five years. The Contractor acknowledges debarment
by another jurisdiction is grounds for the City of Carlsbad to disqualify the Contractor
from the selection process.witial)
P
_ --(Initial)
The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026,
3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by
reference.mnitial) 9, 9 (Initial)
13. JURISDICTION
The Contractor agrees and hereby stipulates that the proper venue and
jurisdiction for resolution of any disputes between the parties arising out of this
agreement is San Diego County, California.
14. STATUS OF THE CONTRACTOR
The Contractor shall perform the services provided for herein in Contractor’s own
way as an independent Contractor and in pursuit of Contractor’s independent calling,
and not as an employee of the City. Contractor shall be under control of the City only
as to the result to be accomplished, but shall consult with the City as provided for in the
request for proposal. The persons used by the Contractor to provide services under this
agreement shall not be considered employees of the City for any purposes whatsoever.
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9
The Contractor is an independent Contractor of the City. The payment made to
the Contractor pursuant to the contract shall be the full and complete compensation to
which the Contractor is entitled. The City shall not make any federal or state tax
withholdings on behalf of the Contractor or its employees or subcontractors. The City
shall not be required to pay any workers’ compensation insurance or unemployment
contributions on behalf of the Contractor or its employees or subcontractors. The
Contractor agrees to indemnify the City within 30 days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers’
compensation payment which the City may be required to make on behalf of the
Contractor or any employee or subcontractor of the Contractor for work done under this
agreement or such indemnification amount may be deducted by the City from any
balance owing to the Contractor.
The Contractor shall be aware of the requirements of the Immigration Reform
and Control Act of 1986 and shall comply with those requirements, including, but not
limited to, verifying the eligibility for employment of all agents, employees,
subcontractors, and Consultants that are included in this agreement.
15. CONFORMITY TO LEGAL REQUIREMENTS
The Contractor shall cause all work performed under this Agreement to conform
to all applicable requirements of law: federal, state and local. Contractor shall provide
all necessary supporting documents to be filed with any agencies whose approval is
necessary. The City will provide copies of the approved plans to any other agencies.
16. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees and
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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.
17. REPRODUCTION RIGHTS
The Contractor agrees that all copyrights which arise from creation of the work
pursuant to this contract shall be vested in City and hereby agrees to relinquish all
claims to such copyrights in favor of City.
18. HOLD HARMLESS AGREEMENT
Contractor agrees to indemnify and hold harmless the City of Carlsbad 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 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.
19. ASSIGNMENT OF CONTRACT
The Contractor shall not assign this contract or any part thereof or any monies
due thereunder without the prior written consent of the City.
20. SUBCONTRACTING
If the Contractor shall subcontract any of the work to be performed under this
contract by the Contractor, Contractor shall be fully responsible to the City for the acts
and omissions of Contractor’s subcontractor and of the persons either directly or
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indirectly employed by the subcontractor, as Contractor is for the acts and omissions of
persons directly employed by Contractor. Nothing contained in this contract shall
create any contractual relationship between any subcontractor of Contractor and the
City. The Contractor shall bind every subcontractor and every subcontractor of a
subcontractor by the terms of this contract applicable to Contractor’s work unless
specifically noted to the contrary in the subcontract in question approved in writing by
the City.
21. PROHIBITED INTEREST
No official of the City who is authorized in such capacity on behalf of the City to
negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or
approving of this agreement, shall become directly or indirectly interested personally in
this contract or in any part thereof. No officer or employee of the City who is authorized
in such capacity and on behalf of the City to exercise any executive, supervisory, or
similar functions in connection with the performance of this contract shall become
directly or indirectly interested personally in this contract or any part thereof.
22. VERBAL AGREEMENT OR CONVERSATION
No verbal agreement or conversation with any officer, agent, or employee of the
City, either before, during or after the execution of this contract, shall affect or modify
any of the terms or obligations herein contained nor entitle the Contractor to any
additional payment whatsoever under the terms of this contract.
23. SUCCESSORS OR ASSIGNS
Subject to the provisions of Paragraph 18, “Hold Harmless Agreement,” all
terms, conditions and provisions hereof shall inure to and shall bind each of the parties
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hereto, and each of their respective heirs, executors, administrators, successors, and
assigns.
24. EFFECTIVE DATE
This agreement shall be effective on and from the day and year first written
above.
25. CONFLICT OF INTEREST
The City has determined, using the guidelines of the Political Reform Act and the
City’s conflict of interest code, that the Contractor will not be required to file a conflict of
interest statement as a requirement of this agreement. However, Contractor hereby
acknowledges that Contractor has the legal responsibility for complying with the
Political Reform Act and nothing in this agreement releases Contractor from this
responsibility.
26. INSURANCE
The Contractor shall obtain and maintain for the duration of the contract 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 work
hereunder by the Contractor, his agents, representatives, employees or subcontractors.
Said insurance shall 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-V and shall meet the City’s policy for
insurance as stated in Resolution No. 91-403.
-lO- 1/09/o 1
A. Coveraqes and Limits.
Contractor shall maintain the types of coverages and minimum limits
indicated herein, unless a lower amount is approved by the City Attorney or City
Manager:
1. Comprehensive General Liability Insurance. $1 ,OOO,OOO combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits shall apply
separately to the work under this contract or the general aggregate shall be twice the
required per occurrence limit.
2. Automobile Liability (if the use of an automobile is involved for
Contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily
injury and property damage.
3. Workers’ Compensation and Employer’s Liability. Workers’
Compensation limits as required by the Labor Code of the State of California and
Employer’s Liability limits of $1 ,OOO,OOO per accident for bodily injury.
4. Professional Liability. Errors and omissions liability appropriate to
the contractor’s profession with limits of not less than $1 ,OOO,OOO per claim. Coverage
shall be maintained for a period of five years following the date of completion of the
work.
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B. Additional Provisions.
Contractor shall ensure that the policies of insurance required under this
agreement contain, or are endorsed to contain, the following provisions:
1. The City shall be named as an additional insured on all policies
excluding Workers’ Compensation and Professional Liability.
2. The Contractor shall furnish certificates of insurance to the City
before commencement of work.
3. The Contractor shall obtain occurrence coverage, excluding
Professional Liability which shall be written as claims-made coverage.
4. This insurance shall be in force during the life of the agreement and
any extension thereof and shall not be canceled without 30 days prior written notice to
the City sent by certified mail.
5. If the Contractor fails to maintain any of the insurance coverages
required herein, then the City will have the option to declare the Contractor in breach, or
may purchase replacement insurance or pay the premiums that are due on existing
policies in order that the required coverages may be maintained. The Contractor is
responsible for any payments made by the City to obtain or maintain such insurance
and the City may collect the same from the Contractor or deduct the amount paid from
any sums due the Contractor under this agreement.
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27. NOTICES
The name of the persons who are authorized to give written notices or to receive
written notice on behalf of the City and on behalf of the Contractor in connection with
the foregoing are as follows:
For City: Title Finance Director
Name Lisa Hildabrand
Address 1635 Faraday Avenue
Carlsbad, CA 92008
For Contractor: Title
Name
Address
Managing Partner
Barbara Hale-Carter
333 South Juniper, Suite 208
Escondido, CA 92025
28. BUSINESS LICENSE
Contractor shall obtain and maintain a City of Carlsbad Business License for the
duration of the contract.
29. ENTIRE AGREEMENT
This agreement, together with any other written document referred to or
contemplated herein, along with the purchase order for this contract and its provisions,
embody the entire agreement and understanding between the parties relating to the
subject matter hereof. In case of conflict, the terms of the agreement supersede the
purchase order. Neither this agreement nor any provision hereof may be amended,
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modified, waived or discharged except by an instrument in writing executed by the party
against which enforcement of such amendment, waiver or discharge is sought.
Executed by Contractor this ?’ &- day of fl -F-,-&Y-C , 2001.
CONTRACTOR:
5$iz??dwD2ma (name of Contractor) * ~%cw+ m-t
BY:
By:
---
(Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, document must be signed by one from each column:
Column A Column B
Chairman, president or vice-president Secretary, assistant secretary, CFO or Assistant treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.)
CITY OF CARLSBAD, a municipal corporation of the State of California
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By: h /l- u @%h--
Deputy City Attorney
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Master Agreement For Consulting Services Between the City of
Carlsbad and Special District Financing And Administration
Contractor’s Schedule of Rates
Principal $120.00
Programmer $95.00
Associate $75.00
Data Entry/Secretarial $40.00
Note: Hourly Rates are subject to annual increases in the Consumer Price Index. District will
be notified in writing, in advance of work to be performed, of any increase that will be in effect
for the ensuing fiscal year.
-15-
State of
County of skwcix -43
On d OJ b dC1. %\ before me>-A. BCNWW ! rS Date Name and lik? of Officer (e.d.. “Jane Doe. Notary Pub11
personally appeared TE FF Ia w* \ \
Name(s) of Signer(s)
ersonally known to me
to me on the basis of satisfactory evidence
to be the person
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whose name($) is/w subscribed to the
within instrumen and acknowledged to me that he/&&hey
executed the same in hislb&+Mr authorized capacity@@,
and that by his/he signature(s) on the instrument the
person(S), or the entity upon behalf of which the person(S)
acted, executed the instrument.
OPTIONAL
CAilFORNlA ALL-PURPOSE ACKNOWLEDGMENT
Though fhe information below is not required by law, it may prove valuable fo persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: esds O(fr& I+-&EE&w r-
/
Document Date: 1 Number of Pages:
Bfi#!3m Signer(s) Other Than Named Above:
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0 Individual
Cl Corporate Officer
Title(s):
w ar-tner - 0 Limited meneral
b Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
0 Other: Top of thumb here
Signer’s Name:
Cl Individual
q Corporate Officer
Title(s):
0 Partner - Cl Limited El General
0 Attorney-in-Fact
Cl Trustee
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Cl Other: Top of thumb here
Signer Is Representing: Signer Is Representing:
8 1996 National Notary Association * 6236 Remmet Ave.. P.O. @ox 7164 * Canoga Park. CA 91309.7184 Prod. No. 5907 Reorder: Call Toll-Free l-800-876-6827
State of cbrl; 6P0; @
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personally appeared
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Name and Tille of Offi& (kg.. “Jane Doe. Noia&bhc’)
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known to me
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to be the person(p whose name($ is/m subscribed to the
within instrument and acknowledged to me thatke/she/#ey
executed the same in t&/her/U+& authorized capacity@%),
and that bykis/her/Wr signature(b) on the instrument the
person($), or the entity upon behalf of which the perso@)
acted, executed the instrument.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
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’ Document Date: !!4%w Number of Pages: /s-
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Cl Individual
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PE
Title(s):
Partner - G Limited aGeneral
‘0 Attorney-in-Fact r
0 Trustee
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0 Other:
Signer Is Representing:
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0 1996 Ncillonal Notary Association - 6236 Remmet Ave.. P.O. Box 7164 l Canoga Perk. CA 91309-7164 Prod. No. 5907 Reorder: Call Toll-Free 1-600-676-6627
OPERATING AGREEMENT FOR
SPECIAL DISTRICT FINANCING & ADMINISTRATION, LLC-
A LIMITED LIABILITY COMPANY
This Operating Agreement is made effective as of this 1st day
of January, 1997, by and among the parties listed on the signature
pages hereof, with reference to the following facts:
A. The parties have caused to be formed Special District
Financing & Administration, LLC, (the "Company"), a limited
liability company under the laws of the
B. The parties desire to adopt
agreement for the Company.
NOW, THEREFORE, the parties
State of Caiifornia.
and approve an operating
(hereinafter sometimes collectively referred to as the "Members'l or individually as the llMemberl') by this Agreement set forth the operating agreement for
the Company under the laws of the State of California upon the
terms and subject to the conditions of this Agreement.
ARTICLE I DEFINITIONS
When used in this Agreement, the following terms shall have the meanings set forth below. (all terms used in this Agreement that are not defined in this Article I shall have the meanings set forth elsewhere in this Agreement):
1.1 "Act" shall mean the Beverly-Killea Limited Liability
Company Act, codified in the California Corporations Code, Section
17100 et seq., as the same may be amended from time to time.
1.2 "Affiliate" shall mean any individual, partnership,
corporation, trust or other entity or association, directly or
indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the Member.
1.3 wA reement" g shall mean this Operating Agreement, as originally executed and as amended from time to time.
1.4 "ArticlesI shall mean the Articles of Organization for
the Company originally filed with the California Secretary of State
and as amended from time to time.
1.5 llBankruptcy" shall mean: (a) the filing of an application by a Member for, or his or her consent to, the appointment of a
trustee, receiver, or custodian of his or her other assets; (b) the entry of an order for relief with respect to a Member in
proceedings under the United States Bankruptcy Code, as amended or
superseded from time to time; (c) the making by a Member of a general assignment for the benefit of creditors; (d) the entry of
an order, judgment, or decree by any court of competent
jurisdiction appointing a trustee, receiver, or custodian of the assets of a Member unless the proceedings and the person appointed are dismissed within ninety (90) days: or (e) the failure by a
Member generally to pay his or her debts as the debts become due
within-the meaning of Section 303(h)(l) of the United States
Bankruptcy Code, as determined by the Bankruptcy Court, or the
admission in writing of his or her inability to pay his or her debts as they become due.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, the provisions of succeeding law, and to the extent applicable, the Regulations.
1.7 WCompanyW shall mean Special District Financing &
Administration, LLC.
1.8 WCorporations Code" shall mean the California
corporations Code, as amended from time to time, and the provisions
of succeeding law.
1.9 "Dissolution Event" shall mean with respect to one or
more of the following: death, insanity, withdrawal or bankruptcy
unless the Members consent to continue the business of the Company pursuant to Section 8.1.
1.10 "Distributibn" shall refer to any money or other property transferred without consideration to Members with respect to their interests in the Company.
1.11 "Majority Interest" shall mean one or more Percentage
Interests of Members which taken together exceed fifty percent
(50%) of the aggregate of all Percentage Interests.
1.12 "Member" shall mean each Person who (a) is an initial
signatory to this Agreement, has been admitted to the Company as a Member in accordance with the Articles or this Agreement or an assignee who has become a Member in accordance with Article VII and (b) has not resigned, withdrawn, been expelled or, if other than an individual, dissolved.
1.13 "Membership InterestW shall mean a Member's entire
interest in the Comp'any.
1.14 "Percentage InterestW shall mean the percentage of a
Member set forth opposite the name of such Member under the column
"Member's Percentage Interest" in Exhibit A hereto, as such
percentage may be adjusted from time to time pursuant to the terms of this Agreement.
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1.15 "Person" means an individual, partnership, trust, estatte,
corporation or limited liability company.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 Formation. ,Pursuant to the Act, the Members have fonaed
a California limited liability company under the laws of the State
of California by causing the filing the Articles with *he California Secretary of State on January 3, 1997, File Nuder
101997003088. The rights and liabilities of the Members shall be determined pursuant to the Act and this Agreement. To the extent
that the rights or obligations of any Member are different by, reason of any provision of this Agreement then they would be in Ithe absence of such provision, this Agreement shall, to the extent
permitted by the Act, control. Neither the Managers nor any Membber shall take any action inconsistent with the express intent of t&he parties to this Agreement.
2.2 Name. The name of the Company shall be "Special Distrsct Financing & Administration, LLC". The business of the Company rmay
be conducted under that name or, upon compliance with applicable
laws, any other name that the Managers deem appropriate or
advisable. The Managers shall file any fictitious name
certificates and similar filings, and any amendments thereto, that the Managers consider appropriate or advisable.
2.3 Term. The term of this Agreement shall be co-termimus
with the period of duration of the Company provided in Rhe
Articles, unless extended or sooner terminated as hereinafRer
provided.
2.4 Office and Aaent. The Company shall continuouEsly
maintain an office and registered agent in the State of Califormnia as required by the Act. The principal office of the Company shall be as the Managers may determine. The Company also may have such
offices, any where within and without the State of California, as the Manager from time to time may determine, or the business of Uzhe Company may require. The initial agent for service of process on
the Company shall be Jeff Hamill, whose address is 16980 Via Tazon, Suite 190, San Diego, California 92127. The Manager may, from tiime
to time, change the Company's agent for service of process.
2.5 Addresses of the Members and the Managers. mhe respective addresses of the Members and the Managers are set fourth
on Exhibit A.
2.6 Purnoses of Comnanv. The purpose of the Company is to engage in any lawful activity for which a limited liability company
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may be organized under the Act. Notwithstanding the foregoing, the Company shall not engage in any business other-than the following:
(a) The business of providing financing and administrative consulting services to special districts and
municipal agencies with such services directed towards facilitating the financing of certain public improvements and
services.
(b) Such other activities reasonably related to the
foregoing purposes set forth in paragraph (a) above as may be necessary, advisable, or appropriate, in the reasonable opinion of the Manager to further the foregoing purposes.
ARTICLE III
CAPITAL CONTRIBUTIONS
. . . 3.1 Initial Capital Contributions. Each Member shall have contributed all of their right, title and interest in and to the office equipment and furniture ("Personal Property") as described in Exhibit "B" attached hereto and all client accounts and account receivables relating to those clients listed on Exhibit "C" attached
hereto. Notwithstanding anything herein to the contrary, should any or all of the Company's Members withdraw from the Company or upon dissolution of the Company, all assets donated to the Company
by the Members, and any liabilities, payments or taxes associated with such assets, will become the personal property of such Member(s) interest.
. . . 3.2 Additional Canital Contributioa The Members shall contribute additional capital to the Company in such amounts and at such times as the Managers shall determine. The Members shall
contribute such additional capital in proportion to their
respective Percentage Interests, or in any other proportion as agreed upon by all Members.
. . 3.3 Failure to Make Contributions. If a Member does not
timely contribute capital when required, that Member shall be in
default under this Agreement and the non-defaulting Members may
elect to dissolve the Company under Article X.
. 3.4 Enforcement AugiDst Defaultma Member. A defaulting member shall indemnify and hold the Company and other Members harmless for any loss, cost, or expense, including reasonable attorneys' fees caused by the failure to make the additional Capital Contribution.
3.5 Member Loans. If any Member, with the prior written consent of the Managers, makes any loan or loans to the Company or advances money on its behalf, the amount of any such loan shall not
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entitle such lending Member to any increase in his or her share of
the distributions of the Company or subject him or her to any
greater proportion of the losses which the Company may sustain. The amount of any such loan(s) or advance(s) shall be a debt due
from the Company to such lending Member repayable upon such terms and conditions and bearing interest at such rates as shall be mutually agreed upon by the lending Member and the Manager and shall be in writing. If the Managers are the lender, any such loan
shall bear such interest as shall be reasonable under the circumstances; but it is expressly understood that no Member shall
be under any obligation whatsoever to make any such loan or advance
to the Company.
ARTICLE IV MEMBERS
4.1 -ted Liabilitv. Except as required under the Act or as expressly set forth in this Agreement, no Member shall be personally liable for any debt, obligation, or liability of the
Company, whether that liability or obligation arises in contract, tort, or otherwise, except as provided by Paragraph 3.1.
4.2 Nembers Are Not Agents. Pursuant to Section 5.1 and the Articles, the management of the Company is vested in the Manager. No Member, acting solely in the capacity of a Member, is an agent of the Company nor can any Member in such capacity bind nor execute any instrument on behalf of the Company.
. . 4.3 >ers. The Manager, with the written approval of all of the Members, may admit to the Company additional Members. Any additional Members shall obtain Membership
Interests and will participate in the management, taxable income,
taxable losses, and distributions of the Company on such terms as
are determined by the Manager and approved by all the Members.
. 4.4 Transaction s With The Comoanv. Subject to any limitations set forth in this Agreement and with the prior approval of the Manager after full disclosure of the Member's involvement, a Member may lend money to and transact other business with the
Company.
4.5 mtentionallv Deleted.
4.6 Voting Rights. Except as specifically provided herein, Members shall have no voting, approval or consent rights.
. 4.7 Meeting s of Members.
A. . . Date. Time and Place of Meetings of Members. Secretarv. Meetings of Members may be held at such date, time
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and place within or without the State of California as the
Managers may fix from time to time. No annual or regular
meetings of Members or the Managers are required.
B. . Power to Call Meetings, Unless otherwise prescnibed
by the Act or by the Articles, meetings of the Members may be called by the Managers, or upon written demand of any Member
for the purpose of addressing any matters on which the Merrnbers
may vote.
C. . Waiver of Notice or Consent. The actions takeen at
any meeting of Members however called and noticed,- and wherever held, have the same validity as if taken at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if either before or after the meeting, each of the Members entitled to vote, who was not present in person or by proxy, signs a written waiver of notice or consents to the holding of the meetin=g or approves the minutes of the meeting. All such waiwers,
consents or approvals shall be filed with the Company records or made a part of the meeting.
Attendance of a person at a meeting shall constitute a
waiver of notice of that meeting, except when the p-rson objects, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or
convened, and except that attendance at a meeting is mot a waiver of any right to object to the consideration of mattters not included in the notice of the meeting if that objection is expressly made at the meeting. Neither the business to be transacted nor the purpose of any meeting of Members necld be specified in any written waiver of notice.
D. Action Bv Written Con . sent Without a Meeting, Any action that may be taken at a meeting of Members may be Uaken without a meeting if a consent in writing setting forth the action so taken, is signed and delivered to the Company. All such consents shall be filed with the Manager or the
secretary, if any, of the Company and shall be maintained in
the Company records. Any Member giving a written consentt, or
the Member's proxy holders may revoke the consent by a wr5ting
received by the Manager or secretary, if any, of the Company
before written consents of the number of shares required to authorize the proposed action have been filed.
E. Teleoh onjc . . Particination bv Member at Meetnnas .
Members may participate in any Members' meeting through the
use of any means of conference telephones or similar communications equipment as long as all Members participating can hear one another. A Member so participating is deemed to be present in person at the meeting.
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ARTICLE V
MANAGEMENT AND CONTROL OF THE COMPANY
5.1 &Ian gement of the Companv by Manager a .
A. .Exclusive Manaaement bv Manaaer, The business,
property and affairs of the Company shall be managed
exclusively by the Managers. Except for the situation in which the approval of the Members is expressly required by the Articles or this Agreement, the Managers shall have full, complete and exclusive authority, power, and discretion to
manage and control the business, property and affairs of the
Company, to make all decisions regarding those matters and to
perform any and all other acts or activities customary or
incident to the management of the Company's business, property
and affairs. All decisions to be made by the Managers shall
be made with the mutual joint consent of all Managers.
B. The Manager is authorized to endorse checks, drafts,
and other evidence of indebtedness made payable to the order of the Company, but only for the purpose of deposit into the Company's accounts, and may sign all checks, drafts, and other instruments obligating the Company to pay money, and may sign contracts and obligations on behalf of the company.
. 5.2. - e
A. * . . er. Term. and Oualifications. The business of the Company shall be managed by Barbara Hale-Carter and Jeff Hamill (collectively "Manager" or "Managers"). Except as
otherwise provided in this Agreement, all decisions concerning
the management of the Company's business shall be made by the
joint and mutual consent of both of the Managers. Each Manager shall serve until the Manager's resignation, retirement, death, or disability. A new Manager shall be appointed by all of the Members on the occurrence of any of such events.
B. Pesicfnation. Any Manager may resign at any time by giving written notice to the Members without prejudice to the rights, if any, of the Company under any contract to which the Manager is a party.
5.3 Powers of Manaaer.
A. Powers of Manager. Without limiting the generality of Section 5.1 but subject to the Section 5.3B, the Managers
shall have all necessary powers to manage and carry out the
purposes, business, property, and affairs of the Company, including, without limitation, the power to exercise on behalf
and in the name of the Company all of the powers described in
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Corporations Code Section 17003. Without limiting the
generality of the powers described in Corporations Code Section 17003, the Members acknowledge that such powers
include, without limitation, the power to:
(i) Acquire, purchase, renovate, improve, alter,
rebuild, demolish, replace, and own real property and any
other property or assets that both the Managers determine
is necessary or appropriate or in the interest of the business of the Company, and to acquire options for the
purchase of any such property;
(ii) Sell, exchange, lease, or otherwise dispose of personal property and other property and/or real property and assets owned by the Company, or any part thereof or any interest therein;
(iii) Borrow money from any party (including the
Manager and their Affiliates), issue evidences of
indebtedness in connection therewith, refinance, increase
the amount of, modify, amend, or change the terms of or
extend the time for the payment of any indebtedness or
obligation of the Company, and secure such indebtedness
by mortgage, deed of trust, pledge, security interest, or other lien on Company assets, so long as all Managers provide written consent;
(iv) Guarantee the payment of money or the performance of any contract or obligation of any Person so long as both Managers provide written consent;
(v) Sue on, defend, or compromise any and all claims or liabilities in favor of or against the Company; submit any or all such claims or liabilities to arbitration; and confess a judgment against the Company in connection with any litigation in which the Company is involved); and
(vi) Retain legal counsel, auditors, and other professionals in connection with the Company business and to pay therefor such remuneration as the Manager may
determine.
(vii) Employing and terminating third party employees, consultants or property managers in connection with the day-to-day operation of the Company business including the operating entity for the Company.
B. Limitations on Powers of Managers% The Managers shall not have authority hereunder to cause the Company to
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engage in the following transactions without first obtaining
the vote or written consent of all of the Members:
(i) An alteration of the primary purpose of the Company as set forth in Section 2.3.
(ii) Any act which would make it impossible to carry on the ordinary business of the Company.
(iii) The confession of a judgment against the
Company.
(iv) Admission of a new member.
(v) An amendment to the Articles or this Agreement.
(vi) Do any act in contravention of this Agreement.
(vii) Possess Company property or assign Company's
rights in property for other than a Company purpose.
(viii) Any other transaction described specifically in this Agreement as requiring the vote, consent, or approval of all of the Members.
5.4 Members Have No Managerial Authoritv. The Members shall
have no power to participate in the management of the Company
except as expressly authorized by this Agreement or the Articles
and except as expressly required by the Act. Unless expressly and duly authorized in writing to do so by a Manager or Managers, no Member shall have any power or authority to bind or act on behalf of the Company in any way, to pledge its credit, or to render it liable for any purpose.
. . 5.5 Performance of Duties. . . . Jllabllltv of mager. Each Manager shall perform his or her managerial duties in good faith, in a manner he or she reasonably believes to be in the best interests of the Company and its Members, and with such care,
including reasonable inquiry, as an ordinarily prudent person in a
like position would use under similar circumstances.
A Manager who so performs the duties of Manager shall not have
any liability by reason of being or having been a Manager of the
Company. A Manager shall not be liable to the Company or to any Member for any loss or damage sustained by the Company or any
Member, unless the loss or damage shall have been the result of
fraud, deceit, gross negligence, reckless or intentional
misconduct, or a knowing violation of law by the Manager.
. 5.6 Devotion of T ime. The Managers are not obligated to devote all of their time or business efforts to the affairs of the
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Company. The Managers shall devote whatever time, effort and skiill
as each deems appropriate for the operation of the Company.
5.7 Bvments to Manaaer., No Manager or Affiliate of' a Manager is entitled to remuneration for services rendered or good
provided to the Company.
. 5.8 Acts of Manaaer as Conclusive Evidence of Authorrtv. mY note, mortgage, evidence of indebtedness, contract, certificate,
statement, conveyance, or other instrument in writing, and any
assignment or endorsement thereof, executed or entered into between
the Company and any other person, when signed by the Manager is not invalidated as to the Company by any lack of authority of the signing Manager in the absence of actual knowledge on the part of the other person that the signing Manager had no authority to
execute the same.
5.9 Qfficers.
A. Aunointment of Officers. The Manager may apposnt officers at any time. The officers of Company, if deemed necessary by the Manager, may include a chairperson, president, vice president, secretary, and chief financiial officer. The officers shall serve at the pleasure of the Manager, subject to all rights, if any, of an officer und3er any contract of employment. Any individual may hold asny
number of offices. No officer need be a resident of the Staate
of California or citizen of the United States.
B. Removal. Resianation and Fillina of Vacancv Of Officers. Subject to the rights, if any, of an officer under
a contract of employment, any officer may be removed, either with or without cause, by the Manager at any time.
Any officer may resign at any time by giving written
notice to the Manager. Any resignation shall take effect at
the date of the receipt of that notice or at any later tiime
specified in that notice: and, unless otherwise specified in
that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Company under any contract to which the officer is a party.
5.10 Liplited J,i.tilitv. No person who is a Manager or officer or both a Manager and officer of the Company shall be personally liable under any judgment of a court, or in any other manner, Ear
any debt, obligation, or liability of the Company, whether tImat
liability or obligation arises in contract, tort, or otherwise,
solely by reason of being a Manager or officer or both a Manaqller and officer of the Company.
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ARTICLE VI
ALLOCATIONS OF TAXABLE INCOME AND TAXABLE LOSS
AND DISTRIBUTIONS
6.1 &Uocations of Taxable Income and Tmle Loss. Taxab1.e income losses shall be allocated to the Members in the sanue proportion expenses and cash are allocated pursuant to Sections 6. 2 and 6.3 below.
6.2 Qperatina Overhead and m . Notwithstanding anythinlg
herein to the contrary, operating, overhead and office expense:s shall be allocated as follows:
1. The fixed office expense of monthly rent anld
utilities shall be divided equally between Barbara Halet-
Carter and Jeff Hamill.
2. Telephone charges shall be allocated on a us:e basis unless the charge can be billed to a clienti, contract or to an specific member. Facsimile charges mr other published or unpublished telephone lines shall tie billed to the responsible user. The monthly access
charges for all telephone and fax lines shall be allocated equally to each Member. Notwithstanding ttie above, Jeff Hamill shall be responsible for all charges
in connection with the use of the toll-free 800 number.
3. Employees expenses including, but not limited
to hourly wages, salary, taxes, worker's compensation arrd
other expenses, shall be allocated to the Members on the basis of billable work performed (i.e., work product that is billable to either a client or a Member). N-n billable employee expenses will be allocated to Member-s on a prorata basis.
4. Mileage reimbursement to employees shall hoe
allocated to Members based on billable work activities
performed by the employee.
5. Non-billable employee work, mileage, sick pay,
holiday pay, camp time shall be shared equally among the
Members. The allocation of employee costs associat-d with retirement, medical and life insurance and other benefits shall be determined and agreed upon by all af the Members prior to any approving or adopting of such programs. Notwithstanding the above, other mandated benefits shall be allocated equally among all Members,
unless otherwise agreed to by all Members.
6. All other expenses shall be allocated in
accordance with Percentage Interest.
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6.3 Cash from Operations. Cash from all operations of the
Company after making payments for all expenses provided for in
Section 6.2, shall be distributed to the Members at such time as
determined, in the discretion of the Managers, in the following
order of priority:
A. First, to repay any Member loans made pursuant to Section 3.4, in proportion to the outstanding principal balances of such loans;
B. Cash from work performed prior to the date of this
Agreement from 'clients existing. before the date of this
Agreement shall be allocated 100% to either Jeff Hamill or
Barbara Hale-Carter in accordance with the existing client
list attached hereto as Exhibit rlC1r;
C. Cash from new or recurring projects beginning after
the date of this Agreement for clients existinq before the
date of this Agreement may be negotiated between Barbara Hale-
Carter and Jeff Hamill as they may decide in their own
discretion and taking into consideration their respective
workloads, work knowledge or any other factors;
D. Cash from clients obtained after the aate of this
Agreement shall be assigned on a percentage basis to the Company's Members as negotiated between the firm's Managers prior to signing a contract with the new client.
E. The balance, if any, shall be distributed to the Members in proportion to their Percentage Interests.
6.4 Form of Distribution. A Member, regardless of the nature of the Member's Capital Contribution, has no right to demand and receive any distribution from the Company in any fos other than
money. No Member may be compelled to accept from tBe Company a distribution of any asset in kind in lieu of a proportionate distribution of money being made to other Members. Except upon a
dissolution and the winding up of the Company, no Member may be compelled to accept a distribution of any asset in kind.
. . 6.5 Return of Distrlbut ions. Except for distributions made
in violation of the Act or this Agreement, no Member shall be
obligated to return any distribution to the Company or pay the
amount of any distribution for the account of the Company or to any
creditor of the Company.
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ARTICLE VII TRANSFER MD ASSIGNMENl' OF INTERESTS
7.1 Transfer and Assignment of Interests . No Member may sell
or transfer his Percentage Interest or any portion thereof without the written consent of all Members.
7.2 ti ute -0 In addition to other restrictions found in this Agreement, no Member
shall transfer, assign, convey, sell, encumber or in alrny way alienate all or any part of his or her Membership Interest: (i) without registration under applicable federal and state securities
laws, or if requested by the Manager, unless the Member deliwers an opinion of counsel satisfactory to the Manager that registration under such laws is not required; and (ii) if the Membership Interest to be transferred, assigned, sold or exchanged, when added to the total of all other Membership Interests old or exchanged in the preceding twelve (12) consecutive months prior thereto, would cause the termination of the Company under the Code, as determined
by the Manager.
7.3 Pconomic Interest, No transferee of any Percentage Interest shall be entitled to become a Member herein withcDut the prior written consent of all Members. As a further condition to the validity of any sale or transfer of any Percentage Interest to any person who is not already a Member herein, prior to the time of such transfer, such transferee must tender to the Company thie full amount of all surcharges with respect to the interest he is acquiring and subscribe in writing to this Agreement, agreeing thereby to be bound by all of the terms and provisions hereof, an executed copy of which subscription must be delivered -to all Members.
. 7.4 Effective Date of Penmmansfers. Any permitted
transfer of all or any portion of a Membership Interest shoal1 be
effective on the First day of the month following the date upon which the requirements of Sections 7.1, 7.2 and 7.3 have been met.
The Managers shall provide the Members with written notice of such
transfer as promptly as possible after the requirements of Spctions
7.1, 7.2 and 7.3 have been met. Any transferee of a Membership Interest shall take subject to the restrictions on transfer iimposed by this Agreement.
7.5 E.i&-&s of J@gaI Renresentatives. If a Member wh= is an individual dies or is adjudged by a court of competent jurisdfliction to be incompetent to manage the Member's person or propertzy, the
Member's executor, administrator, guardian, conservator, or other
legal representative may exercise all of the Member's rights for the purpose of settling the Member's estate or administering the Members' property, including any power the Member has und.er the
Articles or this Agreement to give an assignee the right to become
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a Member. If a Member is a corporation, trust, or other entity and
is dissolved or terminated, the powers of that Member may- be
exercised by his or her legal representative or successor. Notwithstanding the above, no such legal representative shall have
the right to act as a Manager nor shall it have any voting rights.
. 7.6 rJo Effect to Transfers in Violation of Aareement. Any transfer or a Membership Interest in violation of this Article VII, shall be null and void and any purported transferee shall not be a Member and have no interest in the Company.
ARTICLE VIII
CONSEQUENCES OF DEATH, DISSOLUTION
RETIREMENT OR BANKRUPTCY OF MEMBER
8.1 Dissolution Event. Upon the occurrence of any Dissolution Event, the Company shall dissolve unless the remaining
Members ("Remaining Members") holding a majority of the remaining Membership Interests consent within ninety (90) days of the Dissolution Event to the continuation of the business of the Company.
ARTICLE IX ACCOUNTING, RECORDS, REPORTING BY MEMBERS
9.1 Books and Records. The books and records of the Company
shall be kept, and the financial position and the results of its operations recorded, in accordance with the accounting methods followed for federal income tax purposes. The books and records of the Company shall reflect all the Company transactions and shall be appropriate and adequate for the Company's business.
9.2 Qeliverv to Members and I.nsuection.
A. Upon the request of any Member for purposes reasonably related to the interest of that Person as a Member,
the Manager shall promptly deliver to the requesting Member,
at the expense of the Company, a copy of the information required to be maintained by Section 9.1.
B. Each Member and Manager has the right, upon reasonable request for purposes reasonably related to the interest of the Person as Member or Manager, to:
(i) inspect and copy during normal business hours
any of the company records described in Section 9.1; and
(ii) obtain from the Manager, promptly after their becoming available, a copy of the Company's federal,
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state and local income tax or information returns for
each Fiscal Year.
C. The Manager shall cause an annual report to be sent
to each of the Members not later than 120 days after the close
of the Fiscal Year. That report shall contain a balance sheet as of the end of the Fiscal Year and an income statement and statement of changes in financial position for the Fiscal
Year. Such financial statements shall be accompanied by the report thereon, if any, of the independent accountants engaged
by the Company or, if there is no report, the certificate of a Manager that the financial statements were prepared without audit from the book and records of the Company.
D. The Manager shall cause to be prepared at least
annually, at Company expense, information necessary for the
preparation of the Members' federal and state income tax
returns. The Manager shall send or cause to be sent to each Member within 90 days after the end of each taxable year such information as is necessary to complete federal and sate income tax or information returns, and, if the Company has 35 or fewer Members, a copy of the company's federal, state, and local income tax or information returns for that year.
E. The Manager shall cause to be filed at lest annually
with the California Secretary of State the statement required
under California Corporations Code 317060.
9.3 Tax Matters for the Companv mdled by Manaaer . The Manager shall from time to time cause the Company to make such tax elections as they deem to be in the best interests of the Company
and the Members. The Manager sha-11 be designated as 'ITax Matters
Member" (as defined in Code Section 6231), to represent the Company (at the Company's expense) in connection with all examination of the Company's affairs by tax authorities, to expend the Company funds for professional services and costs associated therewith.
. . 9.4 Accountina Decisions an d Reliance on Others All
decisions as to accounting matters, except as oiherwise
specifically set forth herein, shall be made by the Manager. The
Manager may rely upon the advice of its accountants as to whether
such decisions are in accordance with accounting methods followed for federal income tax purposes.
ARTICLE X
DISSOLUTION AND WINDING UP
10.1 Dissolution. The Company shall be dissolved, its assets shall be disposed of, and its affairs wound up on the first to occur of the following:
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10.2 Certificate of Dissolution. As soon as possible following the occurrence of any of the events specified in Section
10.1, the Manager who have not wrongfully dissolved the Company or,
(a) Upon the happening of Dissolution Event
specified in the Articles;
(b) Upon the entry of a decree of judicial dissolution pursuant to Section 17351 of the Corporations Code;
(c) Upon the vote of all Members;
(d) The sale of all or substantially all of the
assets of Company.
if none, the Members, shall execute a Certificate of Dissolution in such form as shall be prescribed by the California Secretary of State and file the Certificate as required by the Act.
10.3 Vindina UD . Upon the occurrence of any event specified in Section 10.2, the Company shall continue solely for the purpose of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors. The Manager who has not wrongfully dissolved the Company or, if none, the Members, shall be responsible .for overseeing the winding up and
liquidation of Company, shall take full account of the liabilities of Company and assets, shall either cause its assets to be sold or distributed, and if sold shall cause the proceeds therefrom, to the extent sufficient therefor, to be applied and distributed as provided in Section 10.4. The Persons winding up the affairs of the Company shall give written notice of the commencement of winding up by mail to all known creditors and claimants whose
addresses appear on the records of the Company. The Manager or
Members winding up the affairs of the Company shall be entitled to
reasonable compensation for such services.
10.4 Order of Payment of JLabilities Uoon Dissolution.
A. After determining that all the known debts and liabilities of the Company in the process of winding up, including, without limitation, debts and liabilities to Members who are creditors of the Company, have been paid or adequately provided for in accordance with Section 6.2, the remaining assets shall be distributed to the Members in the following order of priority.
(9 All cash and accounts receivables shall be allocated and distributed in accordance with Section 6.3.
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(ii) All assets listed on Exhibit "B" shall be
allocated and distributed to the Member listed in Exhibit
“B" who have contributed such asset.
(iii) All assets acquired by Company after the date of this Agreement shall be distributed in proportion to their value at such time in accordance with their Percentage Interest unless a particular Member has acquired such asset solely for their benefit and in such
event such Member shall receive such asset.
B. The payment of a debt or liability, whether the whereabouts of the creditor is known or unknown, has been adequately provided for if the payment has been provided for by either of the following means:
(i) Payment thereof has been assumed or guaranteed
in good faith by one or more financially responsible persons or by the United States government or any agency thereof, and the provision, including the financial responsibility of the Person, was determined in good faith and with reasonable care by the Members or Manager to be adequate at the time of any distribution of the
assets pursuant to this Section.
(ii) The amount of the debt or liability has been deposited as provided in Section 2008 of the California Corporations Code.
This Section 10.4(B) shall not prescribe the exclusive means of making adequate provision for debts and liabilities.
10.5 Certificate of Cancellation. The Manager or Members who filed the Certificate of ,Dissolution shall cause to be filed in the office of, and on a form prescribed by, the California Secretary of
State, a certificate of cancellation of the Articles upon the
completion of the winding up of the affairs of the Company.
10.6 No Action for Dissolution. Except as expressly permitted in this Agreement, a Member shall not take any voluntary action that directly causes a Dissolution Event. The Members acknowledge that irreparable damage would be done to the good will and reputation of the Company if any Member should bring an action in court to dissolve the Company under circumstances where dissolution
is not required by Section 10.1.
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ARTICLE XI MISCELL?iNEOU~
11.1 Comnlete Aareement . This Agreement and the Articles
constitute the complete and exclusive statement of agreement among the Members and Manager with respect to the subject matter herrein and therein and replace and supersede all prior written and oral agreements or statements by and among the Members and Manager or
any of them. No representation, statement, condition or warranty not contained in this Agreement or the Articles will be binding on the Members or Manager or have any force or effect whatsoever. To the extent that any provision of the Articles conflict with any provision of this Agreement, the Articles shall control.
. 11.2 Successors And Assignee s. This Agreement shall be binding upon and inure to the benefit of the parties hereto and of all
officers, directors, agents, successors, assigns, heiirs, beneficiaries, executors, or administrators of either party.
11.3 Parties in Interest. Except as expressly provided in the
Act, nothing in this Agreement shall confer any rights or remedies
under or by reason of this Agreement on-any Persons other than the Members and Manager and their respective successors and assigns nor shall anything in this Agreement relieve or discharge the obligation or liability of any third person to any party to *his
Agreement, nor shall any provision give any third person any r%ght of subrogation or action over or against any party to tzhis Agreement.
. 11.4 Pronouns, St atutorv References . All pronouns and all variations thereof shall be deemed to refer to the masculiine,
feminine, or neuter, singular or plural, as the context in which
they are used may require. Any reference to the Code, the
Regulations, the Act, Corporations code or other statutes or Laws
will include all amendments! modifications, or replacements of the specific sections and provisions concerned.
11.5 ambiguities. The parties agree that, should any provision of this Agreement be found to be ambiguous in any way, such *
ambiguity shall not be resolved by construing this Agreement. in
favor of or against any party herein but rather by construing the terms of this Agreement fairly and reasonably in accordance with their generally accepted meaning.
11.6 References to this Aareement. Numbered or lettered articles, sections and subsections herein contained refer to articles, sections and subsections of this agreement unl-ess otherwise expressly stated.
11.7 Exhibits. All Exhibits attached to this Agreement are incorporated and shall be treated as if set forth herein.
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. . 11.8 Severabllitv . If any provision of this Agreement or the
application of such provision to any person or circumstance shall be held invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby.
11.9 Additional Documents and Acts. Each Member agrees to
execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate
to effectuate, carry out and perform all of the terms, provisions,
and conditions of this hereby.
Agreement and the transactions-contemplated
11.10 Amendments.
writing and.signed by
All amendments to this Agreement will be in all of the Members.
11.11 ' . * Reliance on Authority of Person Siwa Aareem . If
a Member is not a natural person, neither the Company nor any
Member will (a) be, required to determine the authority of the
individual signing this Agreement to make any commitment or undertaking on behalf of such entity or to determine any fact or circumstance bearing upon the existence of the authority of such
individual or (b) be responsible for the application or distribution of proceeds paid or credited to individuals signing
this Agreement on behalf of such entity.
11.12 Multinle Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
11.13 Attorney Fees . In the event that any dispute between
the Company and the Members or among the Members should result in
litigation, arbitration or an out-of-court settlement, the
prevailing party in such dispute shall be entitled.to recover from
the other party all reasonable fees, costs and expenses of enforcing any right of the prevailing party, including without
limitation, reasonable attorneys' fees and expenses.
11.14 Time is of the Essence . All dates and times in this Agreement are of the essence.
. . 11.15 Pemedles Cumulative The remedies under this Agreement are cumulative and shall not 'exclude any other remedies to which any person may be lawfully entitled.
11.16 Notices. Any notice to be given or other documents to
be delivered by any party to the other or others hereunder may be
delivered in person to an officer of any party, or may be deposited in the United States mail duly certified or registered, return receipt requested, with postage prepaid, or by Federal Express or
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other similar overnight delivery service and addressed to the party for whom intended, to the- address provided in Exhibit "A". Any party hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. Unless otherwise specifically provided for
herein, all notices, payments, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery or (ii) as of the third Business Day after mailing by United States registered
or certified mail, return receipt requested, postage: prepaid, addressed as set forth above, or (iii) the immediately succeeding Business Day after deposit with Federal Express or other equivalent
overnight delivery system.
11.17 Arbitration. Should any action or out-of-court settlement proceedings be instituted between the parties of this Agreement or their representatives concerning any provision of this Agreement on the rights and duties of any person, the party or parties prevailing in such action or proceeding, whether by out-of- court settlement or in whose favor final judgment shall be entered, as the case may be, shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for attorneys' fees in such action or proceeding.
IN WITNESS WHEREOF, all of the Members of Special District Financing & Administration, LLC, a California limited liability company, have executed this Agreement, effective as of the date
written above.
MEMBER
Barb&&Hale-C&rkez
MEMBER
~~,&+i+y
Angela4JjF.&6mili ' MEMBER r/
G:\WP\5013\001\OPERATE.NEW
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EXHIBIT A
Barbara Hale-Carter, Member & Manager 16980 Via Tazon, Suite 190 San Diego, CA 92127
Jeff Hamill, Member & Manager 16980 Via Tazon, Suite 190 San Diego, CA 92127
Angela F. Hamill, Member 16980 Via Tazon, Suite 190 San Diego, CA 92127
PERCENTAGE; INTEREST
50%.
45%
5%