HomeMy WebLinkAbout1990-139
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DAVID TAUSSIG AND ASSOCIATES, INC.
2070 BUSINESS CENTER ORIVE. SUITE 110. IRVINE. CA 82715
0141 752-1554 FAX 01 41 752-405B
AGREEMENT FOR CONSULTING SERVICES
.
THIS AGREEMENT is made and entered into this 10th day of April, 1990, by and between
the City of San Bernardino, herein called "Client," and David Taussig and Associates, Inc.,
herein after called "Consultant." The Client and the Consultant in consideration of the
mutual promises and conditions herein contained agree as follows.
ARTICLE I
TERM OF CONTRACf
Section 1.1 This agreement shall become effective on the date stated above and will
continue in effect until the earlier of (i) that day when the services provided for herein have
been performed or (ii) until terminated as provided in Article 6 below.
ARTICLE II
SERVICES TO BE PERFORMED BY CONSULTANT
Section 2.1 Consultant agrees to perform the professional services for the Oient and to
deliver the work products to the Client as described in the Scope of Work statement
attached as Exhibit "A" hereto. Such professional services and work products, as from time
to time modified in accordance with Section 2.3 hereof, are collectively referred to as the
"Consulting Services."
Section 2.2 Consultant will determine the method, details and means of performing the
Consulting Services. Consultant may, at Consultant's own expense, employ such assistance
as it deems necessary to perform the Consulting Services required by Client under this
Agreement. Consultant shall conduct research and arrive at conclusions with respect to its
rendition of information, advice, recommendation or counsel independent of the control and
direction of the Client, other than normal contract monitoring.
Section 2.3 Any proposed changes in the Consulting Services hereunder shall be submitted
to the other party hereto, and any such changes agreed to by the parties shall be reflected
in an amendment to ExhIbit "A" in accordance with Section 7.2 hereto.
Section 2.4 Nothing in this Agreement shall give the Consultant possession of authority with
respect to any Oient decision beyond the rendition of information, advice, recommendation
or counseL
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PUBLIC FINANCE. OEVELOPMENT ECONOMICS ANO PtANNIMc; - J
ARTICLE ill
COMPENSATION
SectiOD 3.1 Client agrees to pay Consultant for its Consulting Services a professional
fee computed according to the Fee Schedule attached as Exhibit ''Bn hereto.
.
SectiOD 3.2 The Client shall pay the Consultant for the purpose of reimbursing the
Consultant's out-of-pocket expenses which shall include all actual expenditures made by
Consultant in the performance of any Consulting Services undertaken pursuant to the
Agreement, including, without limitation, the following expenditures:
(a) Cost of collation, printing, copying, drawings, specification, or reports,
xerography, photography, including photographic reproduction of drawings and
documents.
(b) Transportation costs, including the use of personal automobiles at $.26 per
mile, rental vehicles and regularly scheduled commercial airline ticket costs.
SectiOD 3.3 On or about the first two weeks of each month during which Consulting
Services are rendered hereunder, Consultant shall present to Qient an invoice covering the
current Consulting Services performed and the reimbursable expenses incurred pursuant to
this Agreement and exhibits thereto. Such invoices shall be paid by Client within thirty (30)
days of the date of each invoice. A 1.2% charge may be imposed against accounts which
are not paid within 30 days of the date of each invoice.
SectiOD 3.4 The maximum total fee amount set forth in Exlubit "B" may be increased
as a result of any expansion of the Consulting Services to be rendered hereunder pursuant
to Section 2.3 or as provided in Exhibit "A" hereto.
SectiOD 3.5 Records of the Consultant's costs relating to (i) the Consulting Services
performed under this Agreement and (ii) reimbursable expenses shall be kept and shall be
available to the Client or to Client's authorized representative at reasonable intervals during
normal business hours.
ARTICLE IV
OTHER OBLIGATIONS OF CONSULTANT
SectiOD 4.1 Consultant agrees to perform the Consulting Services in accordance with
Exlubit "An. Should any errors caused by Consultant's negligence be found in such services
or products, Consultant will correct them at no additional charge by revising the work
products called for in Exlubit "A" to eliminate the errors.
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Section 4.2 Consultant will supply all tools and instrumentalities required to perform
the Consulting Services under the Agreement.
Section 4.3 Neither this Agreement nor any duties or obligations under this
Agreement may be assigned by Consultant without the prior written consent of Client.
However, Consultant may subcontract portions of the work to be performed hereunder to
other persons or concerns provided Consultant notifies Client of the name and address of
said proposed subcontractor and Client either consents or fails notification with respect to
the use of any particular proposed subcontractor.
Section 4.4 In the performance of its Consulting Service hereunder, Consultant is,
and shall be deemed to be for all purposes, an independent contractor (and not an agent,
officer, employee or representative of Client) under any and all laws, whether existing or
future. Consultant is not authorized to make any representation, contract or commitment
on behalf of Client.
Section 4.5 Neither this Agreement, any duties or obligations under this Agreement,
nor the intentions or expectations of Oient will cause the Consultant to be a "public official"
as that term is used in Section 87100 of Title 9 of the California Government Code. Client
and Consultant agree that Consultant is not a "public official" or "participating in
governmental decision" as those terms are used in Section 87100. The Client and Consultant
also agree that no actions and opinions necessary for the performance of duties under the
Contract will cause the Consultant to be a "public Official" or "participating in a
goVernmental decision" as those terms are used in Section 87100.
ARTICLE V
OTHER OBLIGATIONS OF CLIENT
Section 5.1 Client agrees to comply with all reasonable requests of Consultant and
provide access to all documents reasonably necessary to the performance of Consultant's
duties under this Agreement with the exception of those documents which Extubit "A" calls
upon the Consultant to prepare.
Section 5.2 Neither this Agreement not any duties or obligations under this
Agreement may be assigned by Client without the prior written consent of Consultant.
Section 5.3 Consultant frequently is retained by developers, landowners, and other
persons and concerns interested in development projects which often eventually lead to the
preparation on a contract basis by Consultant of preliminary tax spread models for
government agencies to determine tax rates and other matters necessary to accomplish
various improvements to realty for financing under a Mello-Roos or. other financing
programs. In light of the foregoing, Client will determine whether or not it is appropriate
to conduct a "significant substantive review" or a "significant intervening substantive review"
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of Consultant's activities conducted pursuant to this Agreement as such terms are defined
in Section 18700(c)h of Title 2 of the California Administrative Code. Should Client elect
to conduct such a substantive review, then Client shall determine whether it has sufficient
expertise on staff to conduct such a review, and, if not, will retain an independent expert
consultant to review Consultant's work. Thereafter, Client shall conduct such review, or
cause such independent review to be conducted, prior to the making of any governmental
decision relating to the matters contained within the Scope of Work descnbed in Exlubit "A".
The parties do not intend and nothing in this Section 5.3 is meant to imply that Consultant
is a "public official." "participating in a governmental decision," or has a "financial interest"
in the services provided as such terms are used in Section 87100 of Title 9 of the California
Governmental Code.
Section 5.4 Client, public agencies, landowners, consultants and other parties dealing
with Client or involved in the subject development project referred to in Exlubit "A" will be
furnishing to Consultant various data, reports, studies, computer printouts and other
information and representations as to the facts involved in the project which Client
understands Consultant will be using and relying upon in preparing the reports, studies,
computer printouts and other work products called for by Exlubit "A." Consultant shall not
be obligated to establish or verify the accuracy of the information furnished by or on behalf
of Client, nor shall Consultant be responsible for the impact or effect on its work products
of the information furnished by or on behalf of Client, in the event that such information is
in error and therefore introduces error into Consultant's work products. Oient will
indemnify and hold Consultant harmless from any Oaims arising from, growing out of, or
in any way resulting from, errors contained in data or information furnished by Client or
Oient's designee to Consultant for use in carrying out the Consulting Services called for by
this agreement.
Section 5.5 In the event that court appearances, testimony or depositions are
required of Consultant by Client in connection with the services rendered hereunder, Client
shall compensate Consultant at a rate of $125 per hour and shall reimburse Consultant for
out-of-pocket expenses on a cost basis.
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.1 Either party may terminate or suspend this Agreement upon thirty (30)
days written notice. Unless terminated as provided herein, this Agreement shall continue
in force until the Consulting Services set forth in Exhibit "A" have been fully and completely
performed and all proper invoices have been rendered and paid.
Section 6.2 Should either party default in the performance of this Agreement or
materially breach any of its provisions, the other party at its option may terminate this
Agreement by giving written notification to the defaulting party. Such termination shall be
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effective upon receipt by the defaulting party, provided that the defaulting party shall be
allowed ten (10) days in which to cure any default following receipt of notice of same.
SectiOD 6.3 The covenants contained in Sections 5.5 and 5.6 shall survive the
termination of this Agreement.
ARTICLE vn
GENERAL PROVISIONS
SectiOD 7.1 Any notices to be given hereunder by either party to the other may be
effected either by personal delivery in writing or by mail. Mailed notices shall be addressed
to the parties at the addresses appearing in the introductory paragraph of this Agreement,
but each party may change the address by written notice in accordance with the first
sentence of this Section 7.1. Notices delivered personally will be deemed communicated as
of actual receipt. Mailed notices will be deemed communicated as of two (2) days after
mailing.
Section 7.2 This Agreement and exhibits hereto supersede any and all agreements,
either oral or written, between the parties hereto with respect to the rendering of service by
Consultant for Oient and contains all of the covenants and agreements between the parties
with respect to the rendering of such services. Each party to this Agreement acknowledges
that no representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not embodied
herein, and that no other agreement, statement, or promise not contained in this Agreement
shall be valid or binding.
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Any modification of this Agreement (including any exhtbit hereto) will be effective if it is in
writing and signed by the party against whom it is sought to be enforced.
Section 7.3 If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless
continue in full force without being impaired or invalidated in any way.
Section 7.4 The prevailing party in any arbitration or legal action brought by one
party against the other and arising out of this Agreement shall be entitled, in addition to any
other rights and remedies it may have, to reimbursement for its expenses, including court
costs and reasonable attorneys' fees. The non-prevailing party shall be liable, to the extent
allowable under law, for all fees and expenses of the arbitrator(s) and all costs of the
arbitration.
Section 7.5 This Agreement will be governed by and construed in accordance with
the laws of the State of California.
IN WITNESS WHEREOF, this Agreement has been executed on the date and year
first above written.
CLIENT: City of San Bernardino
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David Taussig and Associates, Inc.
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APlUO
OTAGRMHr.lllll
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EXHIBIT "A"
SCOPE OF WORK FOR CONSULTING SERVICES ASSOCIATED
WITH ESTABUSHMENT OF MELLO.ROOS PROGRAM(S)
TO CONSTRUCf PUBUC IMPROVEMENTS FOR
YERDEMONT AREA COMMUNl1Y FACILITIES DISTRICf
(Cl1Y OF SAN BERNARDINO)
Consultant shall provide financial consulting services necessary to assist the City of SaD
Bernardino (Oient) in the formation of its VerdemoDt Area Mello-Roos Community
Facilities District (CFD). The purpose of this CFD would be to finance public
improvements which will ultimately be owned and maintained by the City of San Bernardino
or other public agencies. Consultant shall perform the following functions to initiate the
formation of this CFD:
1.
Prepare initial tax spread models to determine tax rates necessary to support public
improvements proposed for financing under a Mello-Roos Program. Consultant shall
present initial tax spreads at a meeting attended by Oient and propose alternative
techniques which might be used to enhance benefits for Oient. Data necessary for
tax spread models shall be provided by Qient and/or Landowner with the assistance
of the Consultant. Client and/or Landowner are responsible for verifying data
descnbing types of projected development, sales prices, development absorption rates
and net taxable acreage. Client and/or Landowner are also responsible for providing
and verifying facilities cost estimates.
2.
Based on input at the first meeting, prepare revisions to tax spread alternatives
selected by Oient and present revised tax spreads to Oient at a second meeting.
3.
Make any further necessary revisions and present to Oient and/or Landowner at up
to eight additional meetings. *
4.
Prepare schedule and timing of steps necessary for formation of CFD.
.
n- ............11IlCCliIIp may """ be _ 10 d_ 0< praeallbe RalelDd Melbod 0( ApporIionmeaI, em Public ReporI,
0< _ i..... (lI'l!pOIed by ColIIuIIlDL They may aIIo be uaed lor Ibe ProICII Harinc 0< _ public .....inp. After 1 lOIIl
0( .... IIlCCliIIp llIeDded by ColIIulllnl haft been compleled 0< """" ""'I _ty-lhe computerized !IX .prada bowl been
prepoI'IlII, Iddilloall _. 0< Idclilloall !IX .prada will raull in rea due ConouJllnl beyond the IIIIllimum ....bIiIbed in
EdJibil B if Ihio fundiq IIDOUOI bIS been completely espended _ 011 bourly ..... quoced _
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5. Assist Mello-Roos Program's Bond Counsel and Underwriter's Counsel with the
preparation of required legal documents. including the Resolution of Intention,
Resolution of Formation, Rate and Method of Apportionment of Special Tax, Official
Statements and related items. Also provide necessary data and advice to Bond
Counsel regarding the implementation of the tax spread, including policies which
address changes in land uses which occur after CFD formation, integration of
reimbursement programs from the State or other public districts or fee programs, and
the formation of an Advisory Board to make decisions on bond issuances or special
tax collection during program implementation.
6. Prepare CFD Public Report containing descriptions of the proposed public
improvements. their costs and construction dates, projections of bond amounts and
dates of issuance, an explanation of the tax spread mechanism, and projections of
special tax amounts which will be needed each year from each land-use category in
the tax spread. Also prepare the tax statement for the Registrar of Voters to comply
with Section 5301 of the State Election Code.
7. Testify on behalf of the Client and the Mello-Roos Program at the "Protest Hearing"
or other public meetings (see item #3 above).
8. Assist Underwriter in structuring of bond issues (1& use of increasing debt service,
capitalized interest and/or sinking funds) to establish an optimal schedule of bond
sales to maximize funding capacity and generate the greatest possible benefit for all
interested parties, as well as to alleviate cash flow constraints.
9. Prepare and execute Special Tax Certification Statement confirming adequacy of
special tax payments to meet debt service requirements for first bond issue.
10. Provide verbal consulting services and advice to Client regarding Mello-Roos
financing during the period in which Steps 1-9 are being completed.
11. For additional fees, complete other tasks related to Mello-Roos Program formation
and implementation as agreed upon by Consultant and Client. Such tasks may
include holding additional meetings with various participants in the CFD formation
process and preparing data for County Tax Collector each year for collection of
Special Taxes.
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EXlDBIT "Bn
PROFESSIONAL SERVICES FEE HOURLY RATES
Principal
Director, Economic and
Financial Analysis
ManagerlSenior Consultant
Senior Associate
Associate
Analyst
Research Assistant
Qerical
$l25lHour
$ 951H0ur
$ 901H0ur
$ 851H0ur
$ 751H0ur
$ 651H0ur
$ 451H0ur
$ 25lHour
Total compensation (excluding expenses) for completion of Steps 1 through 10 should a
Community Facilities District be formed and a first bond issue be sold shall be based on the
size of the bond issue, due to the increased liability risk associated with larger bond issues.
The total fee to be charged shall be based on the following schedule:
First Bond Issue Size
Total Fee
Less than $2,000,000
$ 2,000,000 - $ 5,000,000
$ 5,000,001 - $10,000,000
$10,000,001 and above
$15,000
$15,000 + .00167 of amount over $ 2,000,000
$20,000 + .0010 of amount over $ 5,000,000
$25,000 + .00050 of amount over $10,000,000
Prior to the sale of a first bond issue, Consultant shall be remunerated for services based on
the above hourly rates, with invoices being submitted to Client on a monthly basis. Upon
the sale of a first bond issue, any remaining portion of the total fee shall be paid from the
proceeds of the issue. Should no bonds be sold, Consultant shall only receive remuneration
for hours worked and expenses.
Any additional tasks assigned by Client if total fee has been exceeded shall be charged at
the hourly rates listed above. An excessive number of meetings (more than 10) or tax
spread computer runs (more than 25) may also require additional fees. Consulting services
related to the annual collection of Special Taxes, or the preparation of certifications and tax
spreads for later bond issues or additional CFDs or Improvement Districts, will be covered
under separate Agreements.
In addition to fees for services, Client shall reimburse Consultant for travel, Xerox, Courier
and long-distance phone expenses as noted in Section 3.2 of the Agreement.
NOTI!: II.... _ CoaIullanl'. ........;..uCC .hal tea tor the..mea liI.ed uDder IhiI Salpe ol wort "'" reimbunable lhIoup Ihe
proczedI ollhe finI boad -. Sbould _ DeYel" &0 to _ Ihe lea """Id gcacnIIy DOl be reimbuned.
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