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HomeMy WebLinkAboutWILLDAN FINANCIAL SERVICES; 2011-11-17;AGREEMENT FOR ARBITRAGE REBATE SERVICES WILLDAN FINANCIAL SERVICES THIS AGREEMENT is made and entered into as of the I "7 day of A/oi/embg>\r , 2011, by and between the CARLSBAD PUBLIC FINANCING AUTHORITY, a Public Entity and Joint Powers Authority (the "Authority"), and Willdan Financial Services, a California Corporation, ("Contractor"). RECITALS The Authority 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 Authority and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, Authority and Contractor agree as follows: 1. Scope of Work. Authority retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in Exhibit "A" (for bond issue Carlsbad Public Financing Authority Revenue Bonds, 2006 Series A (Carlsbad Municipal Golf Course Project)), attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. In the event of a conflict between this Agreement and any exhibit attached, the following order of precedence will apply: (1) Agreement, (2) Exhibit A; and (3) Attachment 1 to Exhibit A. 2. Term. This Agreement will be effective for a period of 6 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 two hundred dollars ($2,200) as further stated in Exhibit "A". No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The Authority reserves the right to withhold ten percent (10%) retention until the Authority has accepted the work and/or the Services specified in Exhibit "A." Payment for services will be due upon completion of arbitrage services for Carlsbad Public Financing Authority Revenue Bonds, 2006 Series 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 the Authority. Contractor will be under the control of the Authority only as to the results to be accomplished. 5. Indemnification. Contractor agrees to indemnify and hold harmless the Authority 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 the Authority incurs or makes to or on behalf of an injured employee under the Authority's self-administered City Attorney Approved Version 2.18.11 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 rating in the Best's Key Rating guide of at least A-:VII OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X", in an amount of not less than one million dollars ($1,000,000) each, unless otherwise authorized and approved by the City Attorney or the Executive Director. 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 Authority by certified mail. The Authority will be named as an additional insured on General liability. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to The Authority prior to the Authority's execution of this Agreement. 7. Conflict of Interest. The Contractor shall file a Conflict of Interest Statement with the City Clerk/Secretary in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 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. Authority or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. The Authority 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 Authority 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 the Authority. 13. Amendments. This Agreement may be amended by mutual consent of the Authority 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 2.18.11 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 CARLSBAD PUBLIC FINANCING AUTHORITY, a Public entity and Joint Powers Authority (sign trere) ^—'Anne C. Pelej, Vice President (print name/title) Executive Director ATTEST: (sign here) Roy Gill, Secretary LORRAINE M. WOOD Secretary (print name/title) = . If required by Authority, proper notarial acknowledgment of execution by contractor 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 iel "A~sy^!tavnt General Counsel City Attorney Approved Version 2.18.11 EXHIBIT "A" Contractor will perform and the deliverables Contractor will provide as part of Contractor's Arbitrage Rebate Services: 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 - Division Manager Steve Bearce - Senior Project Manager David Davies - Project Manager 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 Carlsbad Public Financing Authority Revenue Bonds $2,200 TOTAL:$2,200 Additional Services Price Online Compliance Management System Preparation of IRS Form 8038T Yield Restriction Computation Commingled Funds Analysis Transferred Proceeds Analysis Request for Refund of Overpayment IRS Audit Assistance * Amendment to Agreement required. No Charge No Charge $500 per Fund* $250 per Fund* $500 per Fund* Hourly Rates* Hourly Rates* City Attorney Approved Version 2.18.11 ATTACHMENT 1 SCOPE OF SERVICES Phase I Task Document Collection Document Review File Set Up Work Plan Discussion Coordinate with the Bond Trustee 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 Quality Control Deliverable 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. Employ a triple-tiered review of the calculation and summary findings. For bond issues not subject to the arbitrage rebate or yield restriction requirements, Willdan Financial Services will prepare a certification of the exception that has been met. For bond issues subject to the arbitrage rebate requirements, Willdan Financial Services will prepare a comprehensive rebate report that includes: Summary of methodology, assumptions, conclusions and recommendations Statement of relevant dates 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 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. Provide work papers upon request. Phase III Task Procedural Support Regulatory Changes Audit Support Document Retention Review current policies and procedures for tracking expenditure and investment earnings allocations and recommendations to improve funds and records management. make Keep abreast of enforcement actions and Code/Regulation changes that may affect arbitrage compliance requirements. Retroactive changes requiring recalculation of a previously submitted arbitrage report shall be performed at our hourly rates. Assist staff in the event of a rebate calculation audit. Provide assistance with record retention and documentation relating to arbitrage rebate. Willdan Financial Services City of Carlsbad