HomeMy WebLinkAboutWilldan Financial Services / Munifinancial; 2007-05-10;RATIFICATION OF AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT
FOR ARBITRAGE REBATE SERVICES WITH WILLDAN FINANCIAL SERVICES, A
CALIFORNIA CORPORATION
[FORMERLY KNOWN AS MUNIFINANCIAL]
This Ratification of Amendment No. 1 is entered into as of /relay ofof /rel
2008, but effective as of 10th day of February, 2008, extending and amending the agreement
dated May 10, 2007 (the "Agreement") by and between the City of Carlsbad Public Improvement
Corporation, a non-profit public benefit corporation ("PIC"), and Willdan Financial Services, a
California Corporation, formerly known as MuniFinancial ("Contractor") (collectively, the
"Parties") for Arbitrage Rebate Services.
RECITALS
A. The Agreement was originally entered into with MuniFinancial with its primary
address as 27368 Via Industria, Suite 110, Temecula, CA 92590; and
B. Willdan Financial Services acquired and merged with MuniFinancial with its
primary address as 27368 Via Industria, Suite 110, Temecula, CA 92590; and
C. Concurrent with this First Amendment, MuniFinancial and Contractor is executing
an Assignment and Assumption Agreement whereby MuniFinancial assigns the rights and
obligations under the Agreement to Willdan Financial Services; and
D. Willdan Financial Services concurrently agreed to the assignment and enters into
this First Amendment to the Agreement to perform the terms and conditions of the Agreement
and this First Amendment in place of MuniFinancial; and
E. The Parties desire to alter the Agreement's scope of work to provide a Final
Arbitrage Rebate Calculation for PIC; and
F. The Parties desire to extend the Agreement for a period of 10 months, effective
February 10, 2008 to December 10, 2008 to allow for Willdan Financial Services to complete the
terms of the Agreement and this First Amendment; and
G. The Parties have negotiated and agreed to a supplemental scope of work and
fee schedule, which is attached to and incorporated in by this reference as Exhibit "A", Scope of
Services and Fee.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. In addition to those services contained in the Agreement, as may have been
amended from time to time, Contractor will provide those services described in Exhibit "A"
attached hereto and incorporated herein by this reference. With this Amendment, the total
annual Agreement amount shall not exceed three thousand two hundred and fifty dollars
($3,250).
City Attorney Approved Version #05.22.01
2. PIC will pay Contractor for all work associated with those services described in
Exhibit "A" on a time and materials basis not-to-exceed one thousand two hundred and fifty
dollars ($1,250). Contractor will provide PIC, on a monthly basis, copies of invoices sufficiently
detailed to include hours performed, hourly rates, and related activities and costs for approval
by PIC.
3. Contractor will complete all work described in Exhibit "A" by December 10, 2008.
4. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
5. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
City Attorney Approved Version #05.22.01
6. The individuals executing this Amendment and the instruments referenced in it
on behalf of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Amendment.
CONTRACTOR
(sign here)
Anne Pelej, Vice President
(print name/title)
apelej@willdan.com
(e-mail address)
*By:
£——(sigfThere)
L.
(print name/title)
(e-mail address)
CITY
IMP
no
ATTEST:
TOR'RA'INE M. WOOD
City Clerk
//?iP®'$&-<?/* niwc tf \ "ItJUNE
1
1988<J : '""" .• o •
•K-9uraf^</S
"'&"*"$•*
If required by PIC, 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:
RONALD F^BALL, City Attorney
Deputy City Attorney
City Attorney Approved Version #05.22.01
EXHIBIT "A"
SCOPE OF SERVICES
The following scope of services details the tasks Contractor will perform and the deliverables
Contractor will provide as part of Contractor's Arbitrage Rebate Services (Final Arbitrage
Rebate Calculation for PIC):
TEAM:
The Federal Compliance Division of Willdan Financial Services is staffed with experts in tax
rules, municipal credit analysis, securities law and electronic reporting, who understand the
importance of meeting federal compliance requirements on time and in full.
The following Contractor team members will be assigned to the project:
Anne Pelej - Group Manager
Steve Bearce - Senior Project Manager
Randal Webb - Principal Consultant
Dave Davies - Analyst II
SCOPE OF SERVICES:
The following is an itemized list of services that Contractor will perform pursuant to the terms
and conditions of this Agreement:
Phase 1 Task
Document Collection
Document Review
File Set Up
Work Plan Discussion
Coordinate the collection of bond documents and cash flow information required for the arbitrage rebate
computation.
Review pertinent documents relating to the debt to confirm that the financing is subject to the arbitrage
rebate requirements and identify relevant exceptions, elections, and yield restrictions.
Load subject bond issues into Willdan Financial Services' proprietary tracking system.
Review tax-exempt financings subject to the federal compliance regulations and discuss the work plan.
Phase II Task
Computation
Computation
Computation
Computation
Quality Control
Quality Control
Calculate the bond yield and identify gross proceeds and replacement proceeds allocated to the issue.
Compare allowable arbitrage earnings to actual earnings by fund.
Review and consider application of alternative regulatory provisions.
Determine the cumulative arbitrage liability pursuant to Section 148(f) of the Internal
Revenue Code.
Verify that two senior analysts review the calculation and summary findings.
Engage the services of outside tax counsel, if requested. Fees for legal support are not included under
City Attorney Approved Version #05.22.01
Deliverable
Deliverable
Deliverable
this contract.
Prepare a comprehensive rebate report, including:
• Executive Summary
• Summary Analysis of all relevant dates and assumptions
• Sources and uses of funds
• Arbitrage yield and yield restriction requirements
• Rebate liability by fund and aggregate liability for the issue
• Arbitrage/Investment Yield Comparison Graph
• Rebate Calculations by fund
• Outstanding Investments Summary
Prepare the necessary IRS Forms and provide filing instructions.
Provide copies of completed rebate reports in electronic or hardcopy format, as directed.
Phase III Task
Procedural Support
Regulatory Changes
Audit Support
Document Retention
Review current policies and procedures for tracking expenditure and investment earnings allocations
and make recommendations to improve funds and records management.
Keep abreast of enforcement actions and Code/Regulation changes that may affect
compliance requirements. Retroactive changes requiring recalculation of a previously
arbitrage report shall be performed at our hourly rates.
arbitrage
submitted
Assist staff in the event of a rebate calculation audit.
Provide assistance with record retention and documentation relating to arbitrage rebate.
PRICE:
The following is a list of the Bond Issues and prices associated with this contract:
Bond Issue Price
Refunding C.O.P. (Hosp Grove)$1,250
TOTAL:$1,250
Additional Services Price
Online Compliance Management System
Preparation of IRS Form 8038T
Request for Refund of Overpayment
IRS Audit Assistance
No Charge
No Charge
No Charge
Hourly Rates
City Attorney Approved Version #05.22.01
ASSIGNMENT AND ASSUMPTION AGREEMENT
BETWEEN CITY OF CARLSBAD PUBLIC IMPROVEMENT
CORPORATION AND WILLDAN FINANCIAL SERVICES
FOR ARBITRAGE REBATE SERVICES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and
entered into this P^K day of Qg-\.frljft c\2008. by and between the CITY OF CARLSBAD PUBLIC
IMPROVEMENT CORPORATION, a non-profit public benefit corporation ("PIC"), MuniFinancial, a
California Corporation, ("Assignor") and Willdan Financial Services, a California Corporation,
("Assignee"), and is made with reference to the following facts:
RECITALS
A. On May 10, 2007, PIC and Assignor entered into that certain Professional Services
Agreement concerning Arbitrage Rebate Services (the "Agreement").
B. Paragraph 12 of the Agreement allows Assignor to assign rights and obligations under
the Agreement upon written approval of PIC.
C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee
desires to accept assignment of Assignor's interest in the Agreement and PIC consents to the assignment
of the interest in the Agreement from Assignor to Assignee.
NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and
obligations set forth herein, the parties hereto agree as follows:
1. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and obligations
as set forth in the Agreement.
2. Assumption. Assignee hereby assumes all of Assignor's rights and obligations as set
forth in the Agreement.
3. PIC Consent. PIC hereby agrees and consents to the assignment of all of Assignor's
rights and obligations as set forth in the Agreement to Assignee.
4. General Terms and Conditions. The following general terms and conditions shall apply to
this Assignment Agreement.
4.1 Hold Harmless. In addition to the hold harmless provisions contained within the
Agreement, Assignee agrees to indemnify and hold harmless PIC and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorneys fees
arising out of this Assignment Agreement caused by the willful misconduct, or negligent act, or omission
of the Assignee.
4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute one and the same
instrument.
4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment
Agreement shall be binding upon PIC, Assignor and Assignee and their respective successors. Neither
this Assignment Agreement nor any part hereof nor any monies due or to become due hereunder may be
assigned by Assignee without the prior consent of PIC.
rev. 1/28/00
4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under,
and construed and enforced in accordance with, the laws of the State of California.
4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the
purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court
of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all
provisions of law providing for a change of venue in such proceedings to any other county.
4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted
under this Assignment Agreement shall be sufficient if sent by one party to the other by United States
mail, postage prepaid and addressed as follows:
PIC: Finance Director
City of Carlsbad, Administrative Service
1635 Faraday Avenue
Carlsbad, CA 92008
Assignor: MuniFinancial
27368 Via Industria, Suite 110
Temecula, CA 92590
Assignee: Willdan Financial Services
27368 Via Industria, Suite 110
Temecula, CA 92590
4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall
comply with the state and federal laws regarding non-discrimination.
4.8 Authority. The parties executing this Assignment Agreement on behalf of PIC, Assignor
and Assignee each represent and warrant that they have the legal power, right and actual authority to
bind PIC, Assignor and Assignee, respectively, to the terms and conditions hereof.
4.9 Severabilitv. Each provision, term, condition, covenant, and/or restriction, in whole and in
part, in this Assignment Agreement shall be considered severable. In the event any provision, term,
condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared
invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this
Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or
restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue
in full force and effect.
rev. 1/28/00
4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first
above written.
ASSIGNOR:
MUNIFINANCI
*By:
(sign here)
Anne Pelej, Vice President
(print name/title)
:/RLS//fo PUBLICIMPROVEMENT
non-profit/public benefit
(print name/title)ATTEST:
(sign here)
Anne Pelej , Vice President
(print name/title)
— (Sign Tiiere)
- uJ
LORRAINE M. WOOD
City Clerk
1988
(print name/title)
If required by PIC, 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:
, General Counsel
Deputy General Counsel
rev. 1/28/00
AGREEMENT FOR ARBITRAGE REBATE SERVICES
MUNIFINANCIAL
3 AGREEMENT is made and entered into as of the IQ day of
^± , 20.&2- by and between the CITY OF CARLSBAD PUBLIC
IMPROVEMENT CORPORATION, a corporation, ("PIC"), and MuniFinancial, a Corporation,
("Contractor").
RECITALS
PIC requires the professional services of a firm that is experienced in Arbitrage Rebate
Services. Contractor has the necessary experience in providing these professional services, has
submitted a proposal to PIC and has affirmed its willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, PIC and Contractor agree as follows:
1. Scope of Work. PIC retains Contractor to perform, and Contractor agrees to render,
those services (the "Services") that are defined in Exhibit "A" (for Bond issue Refunding COP -
Hosp Grove), attached and incorporated by this reference in accordance with the terms and
conditions set forth in this Agreement.
2. Term. This Agreement will be effective for a period of nine months from the date first
above written.
3. Compensation. The total not to exceed fee payable for the Services to be performed will
be two thousand dollars ($2,000). No other compensation for the Services will be allowed except
for items covered by subsequent amendments to this Agreement. PIC reserves the right to
withhold a ten percent (10%) retention until PIC has accepted the work and/or the Services
specified in Exhibit "A."
4. Status of Contractor. Contractor will perform the Services as an independent contractor
and in pursuit of Contractor's independent calling, and not as an employee of PIC. Contractor
will be under the control of PIC only as to the results to be accomplished.
5. Indemnification. Contractor agrees to indemnify and hold harmless PIC 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 negligence, recklessness, or willful misconduct 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 PIC incurs or
makes to or on behalf of an injured employee under the PIC'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.
6. Insurance. Contractor will obtain and maintain policies of commercial general liability
insurance, automobile liability insurance, a combined policy of workers' compensation,
employers liability insurance, and professional liability insurance from an insurance company
City Attorney Approved Version #11.28.06
authorized to transact the business of insurance in the State of California which has a current
rating in the Best's Key Rating guide of at least A-:V in an amount of not less than five hundred
thousand dollars ($500,000) each, unless otherwise authorized and approved by the PIC Chief
Executive Office of Chief Financial Officer. Contractor will obtain occurrence coverage,
excluding Professional Liability, which will be written as claims-made coverage. The insurance
will be in force during the life of this Agreement and will not be canceled without thirty (30) days
prior written notice to the PIC by certified mail. PIC will be named as an additional insured on
General and Automobile liability. Contractor will furnish certificates of insurance to the Contract
Department, with endorsements to PIC prior to PIC's execution of this Agreement.
7. Conflict of Interest. PIC will evaluate Contractor's duties pursuant to this Agreement to
determine whether disclosure under the Political Reform Act and City of Carlsbad's Conflict of
Interest Code is required of Contractor or any of Contractor's employees, agents or
subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's
employees, agents, or subcontractors will complete and file with the City of Carlsbad's City Clerk
those schedules specified by PIC and contained in the Statement of Economic Interests Form
700.
8. Compliance With Laws. Contractor will comply with all applicable local, state and federal
laws and regulations prohibiting discrimination and harassment and will obtain and maintain a
City of Carlsbad Business License for the term of this Agreement.
9. Termination. PIC or Contractor may terminate this Agreement at any time after a
discussion, and written notice to the other party. PIC will pay Contractor's costs for services
delivered up to the time of termination, if the services have been delivered in accordance with
the Agreement.
10. Claims and Lawsuits. By signing this Agreement, Contractor agrees it may be subject to
civil penalties for the filing of false claims as set forth in the California False Claims Act,
Government Code sections 12650, et seq.. and Carlsbad Municipal Code Sections 3.32.025, et
seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the
City of Carlsbad Public Improvement Corporation to terminate this Agreement.
11. Venue and Jurisdiction. Contractor agrees and stipulates that the proper venue and
jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the
State Superior Court, San Diego County, California.
12. Assignment. Contractor may assign neither this Agreement nor any part of it, nor any
monies due or to become due under it, without the prior written consent of PIC.
13. Amendments This Agreement may be amended by mutual consent of PIC and
Contractor. Any amendment will be in writing, signed by both parties, with a statement of
estimated changes in charges or time schedule.
City Attorney Approved Version #11.28.06
14. 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
(print name/title)
CITY OF CARLSBAD PUBLIC
IMPROVEMENT CORPORATION, a
corporation of the State of California
Chief Executive Officer
or Chief Financial Officer
ORRAIWE.M,WOOD) 'Citv ™^^*r- 'MP0" '- ^^^
JUNE . «., -
- ^ - ' : g r-0\ 1988 :5r
(e-mail address)
If required by PIC, 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:
RONALD R. B
City Attorney
City Attorney Approved Version #11.28.06
EXHIBIT "A"
SCOPE OF SERVICES
The following scope of services details the tasks Contractor will perform and the deliverables
Contractor will provide as part of Contractor's Arbitrage Rebate Services:
TEAM:
The Federal Compliance Division of MuniFinancial is staffed with experts in tax rules, municipal
credit analysis, securities law and electronic reporting, who understand the importance of
meeting federal compliance requirements on time and in full.
The following Contractor team members will be assigned to the project:
Anne Pelej - Division Manager
Steve Bearce - Senior Project Manager
Micki Hicks - Senior Project Analyst
Gregg Tobler - Senior Analyst
SCOPE OF SERVICES:
Please see Attachment 1, attached hereto and incorporated herein, providing an itemized list of
services that Contractor will perform pursuant to the terms and conditions of this Agreement.
PRICE:
The following is a list of the Bond Issues and prices associated with this contract:
Bond Issue Price
Refunding COP (Hosp Grove) $1,500
TOTAL: $1,500
Additional Services Price
Online Compliance Management System No Charge
Preparation of IRS Form 8038T No Charge
Request for Refund of Overpayment No Charge
IRS Audit Assistance Hourly Rates
City Attorney Approved Version #11.28.06
Attachment 1
I:
PHASE ONE — SETUP
* An analyst will review those tax-exempt financings subject to the federal compliance
regulations and discuss the work plan.
» The analyst will review pertinent documents relating to the debt to confirm that the
financing is subject to the arbitrage rebate requirements and identify relevant
exceptions, elections, and yield restrictions.
* The subject bond issues will be loaded into MuniFinancial's proprietary tracking system
with their respective target calculation dates.
* Bond documents and cash flow information required for the reports will be collected.
PHASE Two — REPORT PREPARATION
The analyst shall perform the following activities to determine the cumulative arbitrage liability
pursuant to Section 148(f) of the Internal Revenue Code:
* Calculate the bond yield and identify all gross proceeds and transferred proceeds
(advance refunding issues) allocated to the issue.
* Compare allowable arbitrage earnings to actual earnings to determine cumulative
arbitrage liability.
* Review and consider application of alternative regulatory provisions that may improve
the arbitrage liability.
» Verify that two senior analysts review the calculation and summary findings.
* Upon request, and at additional cost, MuniFinancial will engage the services of tax
counsel and an independent legal opinion shall be rendered.
* A comprehensive rebate report will be produced and include the following:
Computation Summary
Summary Analysis of all relevant
dates and assumptions
Sources and uses of funds
Arbitrage yield and yield
restriction requirements
Rebate liability by fund and
aggregate liability for the issue
Arbitrage/Investment Yield
Comparison Graph
Rebate Calculations by fund
Outstanding Investments
Summary
Preparation of IRS Form
8038-T and filing instructions
MuniFinancial Page 3