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HomeMy WebLinkAboutMunifinancial; 2008-08-11; PWENG618( AMENDMENT NO. 2 TO EXTEND THE AGREEMENT FOR ASSESSMENT ENGINEERING SERVICES FOR ASSESSMENT DISTRICT 2002-01 -POINSETTIA LANE EAST (MUNIFINANCIAL) PWENG618 This Amendment No. 2 is entered into and effective as of the 1 day of ~,l Qt , 2008, extending the agreement dated August 7, 2007 (the "Agreement") by an between the CITY OF CARLSBAD, a municipal corporation, ("City"), and MUNIFINANCIAL, a California corporation, ("Contractor") (collectively, the "Parties"). RECITALS A. On November 30, 2007, the Parties executed Amendment No. 1 to the Agreement to amend the scope of work to include additional payment request audits and assessment apportionments; and B. 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: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on August 7, 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. CONTRACTOR Cal'fornia *By: Mark J. Risco, Vice President (print name/title) mrisco@willdan.com (e-mail address) Roy Gill, Coporate secretry (print name/title) rgill@willdan.com (e-mail address) By: ATTEST: LORRAINE M. WOOD 1111,, . ,11 ,,, City Clerk ,,,,'~~~~-~R/t,.,., :o-~• :u./ . -·._-1'':, -o· . .o_ = ~ :':G: ':">°\ :;;e-: ~~···· .. · ..... •···.I;:-~ .,v ········ ,, ,,,, .... * ',,,' ,,,,,, .. ,,,, cipal 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. BALL, City Attorney By:)~ -~DeputyClAttmey City Attorney Approved Version #05.22.01 2 ( / l AMENDMENT NO. 1 TO AGREEMENT FOR ASSESSMENT ENGINEERING SERVICES FOR ASSESSMENT DISTRICT 2002-01 -POINSETTIA LANE EAST (MUNI FINANCIAL) is entered into and effective as of the � day of _3,,,4-...µ,.,�..:....,,..L.L.�...:,,,,,;�• 2007, amending the agreement dated August 7, 2007 (the "� :eemenr) by an between the City of Carlsbad, a municipal corporation, ("City"), and MUNIFINANCIAL a California corporation, ("Contractor'') (collectively, the "Parties") for Assessment Engineering services. RECITALS A The Parties desire to alter the Agreement's scope of work to include additional payment request audits and assessment apportionments; and B.The Parties have negotiated and agreed to a supplemental scope of work and feeschedule, which is attached to and incorporated 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 havebeen amended from time to time, Contractor will provide those services described in Exhibit "A". 2.City will pay Contractor for all work associated with those servicesdescribed in Exhibit "A" on a time and materials basis not-to-exceed fifty thousand dollars ($50,000). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3.Contractor will complete all work described in Exhibit "A" byAugust 7, 2008. 4.All other provisions of the Agreement, as may have been amended fromtime to time, will remain in full force and effect. 5.All requisite insurance policies to be maintained by Contractor pursuant tothe Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill Ill City Attorney Approved Version #05.22.01 n This Amendment No. 1 • ~ ~ C--.V' () ,p ~ 91 d , ./ 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 Mark Risco, Vice President (print name/title) markr@rnuni.com (e-mail address) **By: ~ :?. sign here) Roy Gill, Corporate Secretary (print name/title) rgill@willdan.can (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 !!!!!!! 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. BALL, City Attorney City Attorney Approved Version #05.22.01 2 ( ■ MuniFinancial November 7, 2007 Mr. Marshall Plantz, P.E. Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 ( Re: Increase in Not-To-Exceed Fee for Contracted Services to Provide Assessment District Engineering Services to the City of Carlsbad (Assessment District No. 2002-01, Poinsettia Lane East) Dear Marshall: Pursuant to our discussion, it appears that the extent of work necessary to complete the auditing of acquisition costs and the apportionment of assessments for Assessment District No. 2002-01 (Poinsettia Lane East) will require an increase in our not-to-exceed fee that was initially approved in our Assessment Engineering Services agreement dated August 7, 2007. This increase is based on current billing for auditing services, the anticipation of a minimum of three (3) additional acquisition audit reports, and seven (7) additional apportionments. Therefore, in order to complete the project, we propose that the not-to-exceed amount presented in the aforementioned 2007 agreement be increased as follows: "' . Not-To-Exceed : Not-To l·:xceed l .:il'I"\ ICL' . ' , Pnor Amount , Increased Amount 1 I Auditing of Acquisition Costs $25,000 $75,000 All other terms and conditions of the agreement dated August 7, 2007, shall remain in full force and effect. We thank you for being one of our valued clients and appreciate our continued association with you and your staff at the City of Carlsbad. If you have any questions, please contact me at either at (800) 755-MUNI (6864), or via email at bobq@muni.com. Sincerely, MuniFinancial Robert Quaid, Senior Project Manager District Administration Services EMAILED 27368 Via lndustria, Suite 110 Temecula, California 92590 www.muni.com Tel: (800) 755-MUNI (6864) Fax: (951) 587-3510 ASSIGNMENT AND ASSUMPTION AGREEMENT FOR ASSESSMENT DISTRICT 2002-01 -POINSETTIA LANE EAST PWENG618 THIS ASSIG~ENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and entered into this // day of ~ 2008, by and between the CITY OF CARLSBAD, a political subdivision of the State ofalifomia ("City"}, MUNIFINANCIAL, ("Assignor'') and WILLDAN GROUP, INC., ("Assignee"), and is made with reference to the following facts: RECITALS A. On August 7, 2007, the City and Assignor entered into that certain Professional Services Agreement concerning assessment engineering, segregations and construction cost auditing, (the "Agreement"). B. Paragraph 24 of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the City. 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 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 shalt apply to this Assignment Agreement. . 4.1 Hold Harmless. In addition to the hold harmless prov1s1ons contained within the Agreement, Assignee 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 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 Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. rev. I /28/00 fl ( ( AGREEMENT FOR ASSESSMENT ENGINEERING SERVICES FOR ASSESSMENT DISTRICT 2002-01 -POINSETTIA LANE EAST (MUNIFINANCIAL) . THIS AGREEMENT is made and entered into as of the 1T!:-day of ~~u..u-, 2007, by and between the CITY OF CARLSBAD, a municipal corporat1 n, ("City"), and MUNIFINANCIAL, a California corporation, ("Contractor"). RECITALS A. City requires the professional services of an Assessment Engineer that is experienced in assessment segregations and construction cost auditing. B. Contractor has the necessary experience in providing professional services and advice related to assessment engineering, assessment segregations and construction cost auditing. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one year from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional one (1) year period or part thereof in an amount not-to-exceed twenty five thousand dollars ($25,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. City Attorney Approved Version #11.28.06 1 ---··-···········•····--·---· -...... ~--~ ( ( 5. COMPENSATION The total fee payable for the Services to be performed shall be on a time and materials basis and during the initial Agreement term shall not exceed twenty five thousand dollars ($25,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. City Attorney Approved Version #11.28.06 2 .. •·~·..-·--•••--~,~.-... -~ .. ---·~•,·A--~.,..--,.;..,-,,,. .... -.-~- ( ( 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused 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. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contracto~ or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation . that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1 .2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. City Attorney Approved Version #11.28.06 3 .. . .... -~ ------· ~---•--,_ ............ ' ( ( 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 Liability. The City will be named as an additional insured on General 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. City Attorney Approved Version #11.28.06 4 -------__ ,. .. ___ ., ........ . • ,--· /4 ----~·----~--.. ---.· ·--••• " ( 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant . to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records .. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: Name Marshall Plantz Title Sr. Civil Engineer Department Engineering City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 Phone No. (760) 602-2766 For Contractor: Name Robert Quaid Title Senior Project Manger Address 27368 Via lndustria Suite110 Temecula, CA 92590 Phone No. (951) 587-3500 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or . income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. City Attorney Approved Version #11.28.06 5 __________ ., ___ ..... . 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and Will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. City Attorney Approved Version #11.28.06 6 -··-• ........ ,-.-. -•-.--.. .,-~ .. ...,..~-----~-------·-·•··-·---·····-..... ___ .... ..,,... .. , ... ··•····~---____ .,.. -,-.,,--•.-..-:--~--·---·-... ·-·······-•·· . 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the tiling of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document · referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version #11 .28.06 7 . ·•. ··-~~·-··•--------~ . .....-....,..,._" .. -................. , .. ,·--~···• ... --~--............ . -----·-······• 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. Mark Risco, Vice President (print name/title) markr@muni.com (e-mail address) **B~. ~~ L--(sfg~e) Roy Gill, Corporate Secretary (print name/title) rgill@willdan.com (e-mail address) ATTEST: 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. BALL, City Attorney By:AtV ~· eputy CiiyA mey City Attorney Approved Version #11.28.06 8 ----.......... --.~-.:--, ............. -...-. -~-......... . • ~,-.,-_._,.., _ _, •• .,. •• ....,.,.~,...,_w~u-,-~•••,.......,-,,., ___ _ EXHIBIT "A" SCOPE OF SERVICES Itemized List of what Contractor will do for City and at what price. City Attorney Approved Version #04.01 .02 9 July 2, 2007 Mr. Marshall Plantz, P.E. Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 A Sub s idiar y of Willdan Gr o up , In c . Re: Renewal Proposal to Provide Assessment District Engineering Services to the City of Carlsbad {Assessment District No. 2002-01, Poinsettia Lane East) Dear Mr. Plantz: As a means to assist you in the renewal process for the City of Carlsbad's Assessment District No. 2002-01, of which Dick Jacobs Associates has been managing since 2004, the team of both MuniFinancial and Dick Jacobs presents our renewal proposal for the following service support: Audit of Acquisition Costs Assessment Segregation As public sector consultants who perform such diverse functions as the administration of Special Taxes, assessment, standby charges, and utility rates; Arbitrage Rebate calculations; Municipal Disclosure report preparation and dissemination; economic and financial studies, as well as district formation and assessment engineering services, MuniFinancial's staff of over 80 professionals will assist in a smooth transfer of these engineering and administrative functions to apply its public agency knowledge and understanding in working together with Mr. Jacobs to serve as the City of Carlsbad's consultants for the above-listed projects. I will be overseeing this assignment assisted by Project Manager Gladys Medina. Likewise, for this commitment, Dick Jacobs will continue to serve the City in a technical advisory capacity to MuniFinancial as assessment engineer. Collectively, our team will carry on the level of experience and expertise required for your projects. We appreciate this opportunity for our continued association and look forward to working with you and your staff at the City of Carlsbad. If you have any questions, please contact me at either at (800) 755-MUNI (6864), or via email at bobq@muni.com. s· Robert Quaid, C Senior Project Manager Enclosure 27368 Via lndustria, Suite 110 • Temecula, CA 92590 • 800.755.MUNI (6864) • 951.587.3500 • fax 951.587.3510 • www.muni.com SCOPE OF SERVICES As a part of the dis_trict engineering and administration for the City of Carlsbad, MuniFinancial proposes to perform the following services, which will meet the needs of the City: AUDITING OF AC[yUISITION COSTS The Acquisition/Financing Agreement specifies the procedures to be followed by the developers for the design and construction of the improvements. Specified procedures include the bidding and award of contracts, the inspection and acceptance of improvements, the amount of purchase price, construction and incidental costs eligible for acquisition, and procedures for the submittal and approval of payment requests. The agreement refers to a City document entitled, "Ciry of Carlsbad Engineering Department Administrative Procedures for Reimbursable Public Works Projects." This document provides further detail on the procedures to be followed in bidding, awarding, and construction of reimbursable projects. It also indicates the need for an "Audit Report," which will make recommendations regarding the eligibility for reimbursement of each of the requested work items. The scope of work for the audit services will include preparing an Audit Report for each Base Increment submittal received from each of the two (2) developers. This Audit Report will include recommendations on the reimbursement of all construction and incidental costs, as defined in S cction 7 (A)(1) thru Section 7 (A)(6) of the Acquisition/Financing Agreement. Preparation of the Audit Reports will include the following tasks: 1. Review of the Acquisition/Financing Agreement, as well as of the procedures included in the City of Carlsbad Engineering Department Administrative Procedures for Reimbursable Public Works Projects. 2. Conduct a preliminary review of the completeness of the submittal upon receipt of a Payment Request. 3. Review copies of bid documents and Improvement Contract for construction costs, together with all approved change orders. 4. Review the original proposal, scope of work, and purchase order for incidental costs; plus any approved Extra Work. 5. Review each payment request for each contractor, subcontractor, or vendor providing services, including progress payment spreadsheets for each item of work, invoices, vouchers, cancelled checks (front and back), and any other evidence of payment. Review lien release. 6. Prepare an Audit Report for each Base Increment request received from each developer. Audit Report to include a detailed spreadsheet (by invoice) for each contractor, subcontractor, or vendor; a description of services provided by each contractor, subcontractor, or vendor; and a summary spreadsheet showing the recommended reimbursement amount for each contractor, subcontractor, or vendor; plus the total amount recommended for the Base Increment request, including allowed developer management and insurance expenses. 7. Attend meetings with City and developers, as required. -·--__ ,._, ___ . __ . -------------------·-.. ,. ·-----·-----·-----.. -----·--------- IIMuniFinancial Page 1 ( ASSESSMENT SEGREGATIONS As the two (2) master plan area maps within the district are filed, it will be necessary to perform the segregations. The scope of work will include, but not necessarily be limited to, the following: 1. Conduct a review of the final map or parcel map, and .the Engineer's Report methodology on which the original segregations were made. 2. Apportion to each separate part of the original lot or parcel of land the proportionate part of the amount remaining unpaid on the assessment that would have been levied thereon had the lot or parcel of land been so divided at the time the original assessment was formulated. 3. As required, prepare and submit Apportionment report. 4. Prepare Notice to Bondholder. 5. Prepare Amended Assessment Roll for recording with the superintendent of streets. 6. Prepare Notice of Amended Assessment, Amended Assessment Roll, and Amended Assessment Diagram for recording with the County Recorder's Office. INSURANCE COVE RAGE MuniFinancial maintains standard insurance coverage by top-rated companies. Insurance certificates can be provided to the City of Carlsbad. Professional Liability Insurance Per Claim Aggregate General Liability Insurance IIMuniFinancial $1,000,000 $1,000,000 $1,000,000 Page 2 l COST PROPOSAL · AUDITING OF AC4'UISITION COSTS The proposed fee for providing the remaining Audit Services, estimated at five additional requests, is a not-to-exceed fee of $25,000. Based on the standard hourly rate of $85 per hour, the fee will be billed on a monthly basis. ASSESSMENT S EGREGATIONS The fee for Segregations will be submitted by separate letter as each application is received. The fee will be estimated at that time as a minimum of $2,000 per application. REIMBURSABLE EXPENSES MuniFinancial will be reimbursed for out-of-pocket expenses. Examples of reimbursable expenses include, but are not limited to: postage, travel expenses, mileage (48.5¢ per mile), maps, electronic data furnished from the County and/ or other applicable resources, construction cost periodicals, and copying (currently 6¢ per copy). Any additional expense for reports or from outside services will be billed to the City. Charges for meeting and consulting with counsel, the City, or other parties regarding services not listed in the scope of work above will be at our then-current hourly rates. -In the event that a third party requests any documents, MuniFinancial may, in accordance with MuniFinaocial's applicable rate schedule, charge such third party for providing said documents. IIMuniFinancial Page] ··-··-·-··~·---·····-··· , ····-···--· -~------------- Yours truly, Dick Jacobs Associates . 17/J Richard K. Jacobs President Attachments Copy: David Hauser, w/o Attachments Lisa Irvine, w/o Attachments Lisa Hildabrand, w/o Attachments 2 ( ( ASSIGNMENT AND ASSUMPTION AGREEMENT FOR ASSESSMENT ENGINEERING SERVICES FOR ASSESSMENT DISTRICT 2002-01 (POINSETTIA LANE EAsn THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and entered into this IP 'f-l day of ~U/1 o ,. 2007, by and between the CITY OF CARLSBAD, a political subdivision of the Statof California ("City"), Dick Jacobs Associates, Inc., a California corporation, ("Assignor'') and MUNIFINANCIAL, a California corporation, ("Assignee"), and is made with reference to the following facts: RECITALS A. On July 30, 2004, the City and Assignor entered into thcit certain Professional Services Agreement concerning Assessment Engineering Services for Assessment District 2002-01 -Poinsettia Lane East, (the "Agreement"). B. Paragraph 24 of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the City. 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 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 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 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. rev. 1/2 8/00 ( 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 Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 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 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 Agreement shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: City: Assignor: Assignee: Public Works Director City of Carlsbad, Public Works-Administration 1635 Faraday Avenue Carlsbad, CA 92008 Dick Jacobs Associates 128 North Helix Avenue Solana Beach, CA 92075-1140 MUNI FINANCIAL 27368 Via lndustria, 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 City, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severability. 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. Ill Ill 2 rev. 1/28/00 ( ( 4.1 O Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. ASSIGNOR: . ASSIGNEE: MUNIFINANCIAL, a California corporation ·~~~ f rno1 G.,rl &.f,', Pres,den+ ~ C £.0 (print name/title) **By: ~eiif • ~ B,y L. G1u.. .I'J;CJ'U'nPIIY (print name/title) 7 ATTEST: 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. BALL, City Attorney By: ~p&~ 3 rev. 1/28/00 ( ( State of California ) ) County of San Diego ) On, May 17, 2007, before me, Belinda R. Guzman, Notary Public, personally appeared Richard K. Jacobs, personally known me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal (This area for official notary seal) ( CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } County of --------<-/4_1--'--'t/{1/>'------_/ ;/◄_' _L.,,__ ss. fftt' /4 (I. ;Jo On HJ4Af I f.iJ ~tJ7 before me, r / e:::.~u.d~~~~Zbic·, f>dv,~c personally appeared FYUI k G-, · Ml JIJ-e. /J ,· --------. 'Nanfe(s) of Sigoer(s) 18.'.'.personally known to me □ proved to me on the basis of satisfactory evidence to be the person{et-whose name(* is/a,e-.. subscribed to the within· instrument and acknowledged to me that he/sl=lefthey executed the same in his/hetfthetr authorized capacity~ and that by his/~fll,ei, signaturefey-on the instrument the person(s), or the entity upon behalf of which the personW acted, executed the instrument. ------------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. Description of Attached Document · TIiie or Type of Doc"ment /b;71~Mf-a-,,J!_ /bYttwp&,,ri.., ti-,;~ DocumentDate: Ha<j t;~a ---Number of Pages:-rh~e..(~) Signer(s) Other Than Named Above: VJ/ 9,i f 6 $e-(}~j l),eJ:__'Ja,. tUJ~ A>"~PU Capacity(ies) Claimed by Signer ,,-,:-r . Signer's Name: 'fa Y1 k G:z' I Y--J p!-f I ~dividual -;:) , At ,., . ,.,,+-;. . ,I ,1'J r /"\ □ Corporate Officer -Title(s): ~fV-✓-~U_l_v(_-t:,.,V __ I 1_ ()~----~----- □ Partner -□ Limited □ General □ Attorney-in-Fact □ Trustee D Guardian or Conservator :J Other: -------~~~/11---------r------ Signer Is Representing:_-----,~........,_0_'11~/_'n~r_h_ia_M_t!t_'~------- <!) 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnolary.org Prod. No. 59Q~ Reorder. Cal ToH•Free 1 ·800-876-6827 ( CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 0~ ~- On~ \ S 1 ~ o 1 before me, _:::,J,~~~~-=5~~~~l,m~~~ <S Dale Name and Trtle o1 personally appeared ~ 2£.. ~lQ IS Name(s) ol Slgner(s) Erpersonally known to me D proved to me on the basis of satisfactory evidence to be the person(s) whose nameM is/are-- subscribed to the within instrument and acknowledged to me that he/she/tl:l&y-executed the same in his/herftheir authorized capacity(les), and that by his/hel:Jtheir signature(~ on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. ------------OPTIONAL------------ Though the information below is not required by law, ff 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 © 1999 National Nolary Association~ 9350 De S010 Ave .. P.O. Box 2402 • Chatswor1h, CA 91313-2402 • www.nat1onafl01ary.o,g Prod. No. 5907 Reorder: Cal Toi-Free 1-800-876-6827 ( ,/.~TAANSfERAaur?;:?;\'?T;,·}t>,~f:tt:g:wv·~6l:a~:~rgtli~:~;.ti@:~:J5:fC•rr:r-¥af;~ii5&hl;'i\t~~, . BUS. NUMBER BUSINESS REGISTRATION CERTIFICATE • 1214010 Tno l;,:,,,5011, t,rrn "J' ::o•ro<,r:"lic-n r.11r:>•I l>C!t.•.-. 1s -J'""t.:--1 !h1i l•J.SW'l».S :;•,'J'l:t,l.3!~ ;,.rsav-• ·.l lne ~'IC.>'1.J.:,no; ,",;! !!'l:? r:.iy PusiiK-:;S l·U-"'\5e Onl•flafl:Ci ,, •'.:nJ,l!)e .'I,,. DATE ISSUED 3/22/2007 SIC CODE 8999 OWNER FIRM OR CORPORATION NAME BUSINESS NAME MAILING ADDRESS CITY AND STATE C.lrf\" -::n or :-.(.,.,.k..---:1 :h· 1a;;i!'lc-::s. :;,,.,r,_ ;-,llw'J. prolo,51Qn eict,ih,t,c,n "" ,:,,t.CUJ•i'l'.on -le-t-r.~lb(.'!.f t•GIOtt ISjt.Mr:.-:~ ·~I lhC! :9r-,hu lo l5 001 art cnJorsQn'lo,11. n.-r ~e,rt,h~."'ITivn t,I ... ,.,.,11••1,,_1~·-t· wilh ~:h-~ (''•-~r.•u1ces .,, ~w:,; !hs >l::ensa '3 ~1•..ol '°"1l~Hil vc.nl<,llir.,, tl·~t r>--r, \.;:.y,;,x, •'-1.vt•1-,c.: t!> or<ntf!t'\PI 'min li(;cns.10,J!J'/ the Sla!ila::l f'.,lof:.w,1,, SIC DESCRIPTION Services, Not Elsewhere Classified MUNI FINANCIAL MUNI FINANCIAL 27368 VIA INDUSTRIA STE 11 0 . TEMECULA, CA 92590-4856 BUSINESS LOCATION . 27368 VIA INDUSTRIA STE 110 EXPIRATION DATE 5/31/2007 i ' . . . ~)1Jf:;'tNJ6-t'JtS:;?J~.::t'::t.rz:::t~:;;>rtrYr£:i·~::~:::1r1:;~;2;t2)1~111.~~ttEii111W~J1:rv.(;1lii~fil~~m~filtt:1w.ttfID.1I.€t::J DrcK JAcoss Assoc1ATES PUBLIC FACILITY FINANCING • PROJECT MANAGEMENT May 1, 2007 Mr. Marshall Plantz, P.E. Senior Civil Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008 Re: Assignment of Contracts Dear Mr. Plantz, After working as a sole proprietor for the past twelve years, I have agreed to join my firm, Dick Jacobs Associates, with MuniFinancial, one of the leading providers of municipal financial services in California and the west. With this action completed, I will continue to strive to provide a service which hopefully meets or exceeds client expectations but now enhanced by the staff of over 85 professionals at MuniFinancial. The firm Dick Jacobs Associates, Inc. will be dissolved. It is respectfully requested, therefore, that consent be granted for assignment to MuniFinancial of the below listed agreements between Dick Jacobs Associates and the City of Carlsbad: 1. "Assessment Engineering Services for Assessment District 2003-01 (College Boulevard and Cannon Road East)", and 2. "Assessment Engineering Services for Assessment District 2002-01 (Poinsettia Lane East)". If the City is agreeable to this request, please sign and return the attached "Consent to Assignment of Contract" forms to the address below. Please note that it is the mutual goal of both Muni and DJA to complete our transaction effective at the close of business on May 31, 2007. I appreciate the opportunity of providing these services and I look forward to a continued relationship with your City under this new arrangement. 128 NORTH HELIX AVENUE• SOLANA BEACH, CALIFORNIA 92075-1140 (858) 720-0442 • FAX (858) 720-0443 email: dickjacobsassociates@worldnet.att.net ( Yours truly, Dick Jacobs Associates . Pf~ Richard K. Jacobs President Attachments Copy: David Hauser, w/o Attachments Lisa Irvine, w/o Attachments Lisa Hildabrand, w/o Attachments 2