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HomeMy WebLinkAboutAGMT - Albert A. Webb Associates (Special Tax Consultant Services) SPECIAL TAX CONSULTANT SERVICES AGREEMENT between DE SEAL �i`�RVORgj�,FgCy o a �CFBFR 21 TY, City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Albert A. Webb Associates 3788 McCray Street Riverside, California 92506 10000-0243\1825519v2.doc This Special Tax Consultant Services Agreement ("the Agreement") is made as of the 26th day of May, 2015 (the "Effective Date"), by and between Albert A. Webb Associates ("Consultant"), a California corporation and the City of Seal Beach ("City"), a California charter city, (collectively, "the Parties"). RECITALS A. City has formed the City of Seal Beach Community Facilities District No. 2002-01 (Heron Pointe) (the "CFD") under the Mello-Roos Community Facilities Act of 1982, as amended (the "Act") B. City is considering the issuance of bonds for the District (the "Bonds") for the purpose of refunding and defeasing the outstanding City of Seal Beach Community Facilities District No. 2002-01 (Heron Pointe) Special Tax Bonds, Series 2005 (the "Prior Bonds"). C. In connection with the issuance of the Bonds, City desires to engage Consultant to provide services described herein, including but not limited to the compilation of certain information and preparation of tables for the Official Statement for the Bonds. D. Consultant represented that it is qualified and able to provide City with such services. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows: AGREEMENT 1.0 Scope of Services 1.1. Consultant shall provide the services ("Services") set forth in the attached Exhibit A, which is hereby incorporated by this reference. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control. 1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law. 2.0 Term This term of this Agreement shall commence as of the Effective Date and shall continue for a term of one year unless previously terminated as provided by this Agreement. Page 1 10000-0243\1 825519v2.doc 3.0 Consultant's Compensation; Method of Payment For the Services provided. under this Agreement, the City shall pay Consultant a flat fee of$8,500, payable from proceeds of the Bonds upon the issuance of the Bonds.. 4.0 Termination 4.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 4.2. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 5.0 Ownership of Consulting Products. As between City and Consultant, all products of consulting (including without limitation, all briefing memoranda, business analyses and other work products created) under this Agreement, with the exception of computer models developed solely by Consultant (i.e., without contribution by City or any member of the financing team for the Bonds), shall become the property of City and shall be promptly delivered to City upon request. Computer models remain the exclusive property of Consultant. Contractual obligations, do not include access to or ownership transfer of any electronic data processing files, programs or models completed directly for or as by-products of any research effort, unless explicitly so agreed as part of this Agreement. 6.0 Confidentiality Consultant may receive confidential information from City during the course of Consultant's performance under this Agreement. To the extent that City provides Consultant any confidential information, Consultant shall maintain such confidentiality, shall not disclose or make available the information to third parties except, under -the following circumstances: (i) Consultant has obtained City's prior written approval for the disclosure, or (ii) Consultant is required by law to make the disclosure (in which case, such disclosure shall be limited to the extent required by law and Consultant shall notify City as soon as possible upon learning its obligation to disclose). 7.0 Party Representatives 7.1. The City Manager is the City's representative for purposes of this Agreement. 7.2. Heidi Schoeppe is the Consultant's primary representative for purposes of this Agreement. Page 2 10000-0243\1825519v2.doc 8.0 Notices 8.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the applicable address below: To City: City of Seal Beach 211-8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Albert A. Webb Associates 3788 McCray Street Riverside, CA 92506 Attn: Shane T. G. Spicer 8.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 9.0 Independent Contractor 9.1. Consultant is an independent contractor and not an employee of the City, All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services underthis Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 9.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. 10.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. Page 3 10000-0243\182551 M.doc 11.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any- purported assignment without such consent shall be void and without effect. 12.0 Insurance 12.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 12.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with -the performance of this Agreement.: Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: : Insurance Services Office Commercial General Liability coverage (occurrence form :CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate lirnit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and . property damage; and (3) Professional Liability: $1,000,000 per claim/aggregate. 12.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage and that any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's Page 4 10000-0243\1 825519v2.d oc insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered a's additional insureds with respect to the services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible. 12.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 12.5. Any deductibles or self-insured retentions shall be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1)the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses'. 13.0 Indemnification, Hold Harmless, and Duty to Defend Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnities") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, to the extent arising out of or incident to any negligent or wrongful acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all attorneys' fees and other related costs and expenses, except for such loss or damage arising from the negligence or willful misconduct of the City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred. by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement. Page 5 10000-0243\1825519v2.d oc 14.0 Equal Opportunity . Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 15.0 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 16.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties. 17.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 18.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 19.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against 'either party as a result of this Agreement. 20.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. Page 6 10000-0243\1825519v2.doc 21.0 Prohibited Interests; Conflict of Interest 20.1., Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 20.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. -Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 20.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection. 22.0 Attorneys' Fees If either party commences any legal, administrative, or other action against the other party arising out of or in connection with this Agreement, the prevailing party in such action shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith. 23.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. Page 7 10000-0243\182551 W,doc 24.0 Corporate Authority The person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and -that by his or her execution,the Consultant is formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH CONSULTANT By: By: / Ellery A. 16eaton, Mayor Name: SAA E. SO&S4 Attest: Its: By: Tina Knapp, City Clerk By: Approved as t o Name: Its: By: ERd'g A.'Steele, Interim City Attorney Page 8 10000-0243\1 825519v2.doc EXHIBIT A SCOPE OF SERVICES Consultant will provide services as Special Tax Consultant in connection with the issuance of the Bonds, including the following: 1. Preparation and provisions of tables and information customarily provided by a special tax consultant for Mello-Roos special tax bond issues similar to the proposed Bonds, and as may be reasonably requested by the City or the City's Bond Counsel and Disclosure Counsel, including but not limited to the following: o Value-to-lien computations, o Overlapping debt table,, o Maximum special tax coverage, o Effective tax rate schedules. 2. Preparation of a location map and an area map, if requested by the City. 3. Review of relevant sections of the drafts of the Preliminary Official Statement and Official Statement relating to the Bonds (provided that such drafts are furnished to the Consultant) and provide comments to the City and 'the City's Disclosure Counsel, so the information contained in such Preliminary Official Statement and Official Statement, after the incorporation of the Consultant's comments, would be fair and accurate based on the best of the Consultant's knowledge. 4. Execution of such closing certificates as requested by the financing team to: (i) certify as to the fairness and accuracy of the description contained in the Preliminary Official Statement and Official Statement with respect to information furnished by Consultant and (ii) make such other certifications as may be reasonably requested by the financing team; 5. Participate in meetings and conference calls with City staff and other members of the financing team, at the City's discretion and request; 6. Perform such other services not described above but are customarily performed by Special Tax Consultants for financings similar to the one described in the recitals of this Agreement, at the City's discretion and request. 10000-0243\1 825519v2.doc