HomeMy WebLinkAboutWilldan Financial Services / MuniFinancial; 2007-05-10; (2)ASSIGNMENT AND ASSUMPTION AGREEMENT
BETWEEN CITY OF CARLSBAD AND WILLDAN FINANCIAL SERVICES
FOR ARBITRAGE REBATE SERVICES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made, entered into
and effective this fJfl^ day of JjQgi£jni^008, by and between the CITY OF CARLSBAD, a
municipal corporation ("City"), 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, City and Assignor entered into that certain Professional Services
Agreement for Arbitrage Rebate Services (the "Agreement").
B. On February 7, 2008, City and Assignor entered into Amendment No. 1 to that
Agreement extending the Agreement to February 10, 2009.
C. Paragraph 12 of the Agreement allows Assignor to assign rights and obligations under
the Agreement upon written approval of City.
D. Assignor desires to assign its interest in the Agreement, as may have been amended
from time to time, to Assignee. Further, Assignee desires to accept assignment of Assignor's interest in
the Agreement and City 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. City Consent. City 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 City 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 City, Assignor and Assignee and their respective successors. Neither
this Assignment, the Agreement nor any parts thereof nor any monies due or to become due hereunder
may be assigned by Assignee without the prior consent of City.
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 or the Agreement shall 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 or the Agreement shall be sufficient if sent by one party to the other by United
States mail, postage prepaid and addressed as follows:
City: Finance Director
City of Carlsbad, Finance Department
1635 Faraday Avenue
Carlsbad, CA 92008
Assignor: MuniFinancial
27368 Via Industrie, 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 and the Agreement, the parties
shall comply with the state and federal laws regarding non-discrimination.
4.8 Authority. The parties executing this Assignment on behalf of City, Assignor and
Assignee each represent and warrant that they have the legal power, right and actual authority to bind
City, Assignor and Assignee, respectively, to the terms and conditions hereof.
(Remainder of Page Intentionally Left Blank)
rev. 1/28/00
4.9 Severabilitv. Each provision, term, condition, covenant, and/or restriction, in whole and in
part, in this Assignment or the Agreement shall be considered severable. In the event any provision, term,
condition, covenant, and/or restriction, in whole and in part, in this Assignment or the Agreement is
declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed
from this Assignment or the Agreement and shall not affect any other provision, term, condition, covenant,
and/or restriction, of this Assignment or the Agreement and the remainder of this Assignment or the
Agreement shall continue in full force and effect.
ASSIGNOR:
MUNIFIN
*By:
Anne Pelej, Vice President
(print name/title)
ration
(print name/title/
ATTEST:
ASSIGNEE:
WILLDAKTRNANjClAL SEF
LORRAINE M. WOOD
City Clerk
(sign here)
Anne Pelej, Vice President
(print name/title)
^tylY O/fr''/,,
// XM""^
t—(stgffriere)
|*»
\ 5w$v*>ay*o^V
m.«=
/ O C
(print name/title)
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.
(Remainder of Page Intentionally Left Blank)
rev. 1/28/00
*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, city Attorney
Deputy City Attorney
City Attorney Approved Version #04.01.02
AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR ARBITRAGE REBATE SERVICES
MUNIFINANCIAL
This Amendment No. 1 is entered into and effective as of the / day of
•HULA . 200J<L_, extending the agreement dated May 10th, 2007 (the
"Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and
MuniFinancial, a Corporation, ("Contractor") (collectively, the "Parties").
RECITALS
A. On May 10th, 2007 the Parties executed the Agreement to provide Arbitrage Rebate
Services; and
B. The Parties desire to extend the Agreement for a period of one year; and
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. The Agreement, as may have been amended from time to time, is hereby
extended for a period of one year ending on February 10th, 2009.
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 #05.22.01
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.
CONTR
*By:
CITY
corpon
CARLSBAD, a municipal
State orCaltfprnia
(print name/title)
(e-mail address)
'(sfgn here)
L.
(print name/title)
(e-mail address)
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:
RONALD R.
By:
Deputy City Attorney
City Attorney Approved Version #05.22.01
AGREEMENT FOR ARBITRAGE REBATE SERVICES
MUNIFINANCIAL
THIS AGREEMENT is made and entered into as of the //j day of
'/Vas-f , 20n~i by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and MuniFinancial, a Corporation, ("Contractor").
RECITALS
City 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 City and has affirmed its willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. Scope of Work. City retains Contractor to perform, and Contractor agrees to render,
those services (the "Services") that are defined in Exhibit "A" (for Bond issues AD 95-1, AD 96-1,
AD 97-1, and TAB 1993), 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 seven thousand dollars ($7,000). No other compensation for the Services will be allowed
except for items covered by subsequent amendments to this Agreement. City reserves the right
to withhold a ten percent (10%) retention until City 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 City. Contractor
will be under the control of City only as to the results to be accomplished.
5. Indemnification. Contractor agrees to indemnify and hold harmless the City and its
officers, officials, employees and volunteers from and against all claims, damages, losses and
expenses including attorneys fees arising out of the performance of the work described herein
caused 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 City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that
this section will survive the expiration or early termination of this Agreement.
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
authorized to transact the business of insurance in the State of California which has a current
City Attorney Approved Version #11.28.06
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 City
Attorney or the City Manager. 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 City by certified mail. City 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 City prior to City's execution of this Agreement.
7. Conflict of Interest. City will evaluate Contractor's duties pursuant to this Agreement to
determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code
is required of Contractor or any of Contractor's employees, agents or subcontractors. Should it
be determined that disclosure is required, Contractor or Contractor's employees, agents, or
subcontractors will complete and file with the City Clerk those schedules specified by City and
contained in the Statement of Economic Interests Form 700.
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. City or Contractor may terminate this Agreement at any time after a
discussion, and written notice to the other party. City 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 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 City.
13. Amendments This Agreement may be amended by mutual consent of City 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 CITY OF CARLSBAD, a municipal
corporation of the State of California
By:*•»-,
City Manager or Mayor
City Clerk
A V^L
U Afe
(sign here)
L . &/L.t
(print name/title)
(e-mail address)
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:
RONALI
Deputy 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
AD 95-1 (Carlsbad Ranch)
AD 96-1 (Rancho Carrillo)
AD 97-1 (Alga Road & College Blvd)
TAB 1993
$1,500
$1,500
$2,000
$2,000
TOTAL:$7,000
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 #11.28.06
Attachment 1
PHASE SETUP*
i
* 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