HomeMy WebLinkAbout41-Public Works
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File No. 14.40-80
CITY OF SAN BERN.
lDINO -
R COUNCIL ACTION
From:
ROGER G. HARDGRAVE. Director
:::::c2:~~~neering
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~; ; . Authorization to Execute Agmt.
~. ! ') for Special Tax Consultant
oj' '.. Verdemont Area Mello-Roos.e'
Community Facilities Distr.
Assessment District No. 995
InAVTD TAIISST(; E. Assor HJr
Dept:
Date:
Synopsis of Previous Council action:
02-19-90
Urgency Ordinance MC-707 adopted requiring an Infrastructure Fee for
the Verdemont Area.
Authorization granted to proceed with Mello-Roos; District.
District No. 995.
Resolution No. 90-103 adopted accepting petition and designating
Bond Counsel, Underwriter and Special Tax Consultant.
03-19-90
03-19-90
Recommended motion:
Adopt Resolution.
cr: ':arshall Julian, City Administrator
Andrew Gr'een, E" inance Dir'pctor
Jim Penman, City AttOrlll-.:y
,-lim Richacoson,a.sst. City' Adm. D(:'v.
V~rIle \d(iPrtll
'J H it -"j CLif,
Contact person:
Phone:
Supporting data attached:
Staff R.'por't.
;',:::,r','(C';lIt'f,t
,y k'~'S() lilt i
Ward:
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FUNDING REQUIREMENTS:
Amount:
Source: IAcct. No.)
"~~) L -6 -; .,- C1 j'-j~3
(Acct. DescriPtion)
\'eni!-'!TIont Al'ea CunllTIlmi t~" t, "!e if i ~ :
Distcict.
Finance:
Council Notes:
75-0262
Agenda Item NO.----#1-
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CITY OF SAN BERN!,'qDINO - REQUEST Frq COUNCIL ACTION
STAFF REPORT
On 12 -04-8 9 ,'itn Urgency Ordinance No. MC -690 was adopted 1 evyi ng an
Infrastructure '!if for the Verdemont Area and Resolution No. 89-486 was adopted
establ ishing the"Mount of the fee.
On 01-08-90, the hearing on the ordinance was closed and added Section 15.73 to
the Municipal Code requiring the levy of the Infrastructure Fee for a specific
period and on 02-19-90 Urgency Ordinance No. MC-706 was adopted extending the
effective date and final reading was given to MC-707 requiring the fee.
Subsequently, some of the major property owners/developers in the Verdemont Area
have submitted a proposed Mello-Roosl Community Facilities District for
collection of the fees. On 03-19-90, Resolution No. 90-103 was adopted accepting
the petition and designating Orrick, Herrington & Sutcliffe as Bond Counsel,
David Taussig and Assoc. Inc. as Special fax Consultant and Prudential-Bache as
Underwriter for the proposed District.
The attached Resolution authorizes execution of the Agreement with DAVID
TAUSSIG AND ASSOCIATES, INC. as Special Tax Consultant for the District.
The proposed Agreement for Special Tax Consulting Ser"vices provides, in general,
that David Taussig & Associates, lnc. wi 11 provide normal special tax services
for this assessment district inc luding preparation of initial tax spreads and
determine necessary tax rates and annual data for the County Tax Collector. Their
fee will be approximately $15,000 plus .00167 of amount over $2,000,000. They
wi 11 receive only costs f or hours worked and expenses in the event that the
district is not formed and honds sold.
The District will collect the Infr"Cistructure Fee of '-,350 per dwelling unit plus
approximately 53,500 per unit for School fees. As i' stands today, the average
tax per dwelling unit will be approximately $1,50(i per year. There are some
1 egal quest ions which st ill need to be rpso 1 ved r~-'gd.nl i ng the Schoo 1 Fees anti if
they are detennined not to he a pad of the Distrid, the annual tax per dwei ling
unit will go d()wn.
Since t.he ::;ervices of a Specir'll
distr-1J:t tu }Jcr)(:eed, we recol1lnlPnd
Spr"vic:es bp ~Pvr9vpd.
{"c-t\. Cons\~i tdnr \ice
t-11<:1 t th .\i:~~i't'IIIf-'n1
. ;"C'ded fnr this
I!- Spe\.:lill To.\
dsc;pssment
Consultant
0')-28-90
75-0264
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RESOLUTION NO,
UTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION
WITH DAVID TAUSSIG AND ASSOCIATES. INC. FOR SPECIAL TAX
VICES FOR THE VERDEMONT AREA COMMUNITY FACILITIES DISTRICT NO.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor is hereby authorized and directed to execute
on behalf of said City an Agreement for Special Tax Consultant Services wit
David Taussig and Associates. Inc. for the Verde.ont Area Community
Facilities District, Assessment District No. 995, a copy of which is attached
hereto marked Exhibit "A," and in corporated herein by reference.. fully as
though set forth at length.
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SECTION 2,
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This resolution is rescinded if the parties; to the
14 Agreement for Special Tax Consultant Services fail to execute it within sixty
15 (60) days of the passage of this resolution,
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I HEREBY CERTIFY that the forego;" ~ resolution was duly adopted by
17 the Mayor' and Common Council of the ( i ty of San Bernardino at a
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mee,,1 ng
day of
thereof,
~w ld
on the
1l)9(). b:;. t.he foi l(JWl!l~ \ot":', t,J wit:
AlES: CO\lllLi t "':pmhr-'r's
NAYS:
<lSSE'iT :
City Clerc
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RESO: AUTHORIZISG EXECUTION OF AG~~ENT WITH DAVID TAUSSIG & ASSOC
FOR SPECIAL TAX r"NSULTlNG SERVICES FOR ASSESSI'lEIfl' 'llSTRICT NO. ~5
The foregoing
d.
resolution is hereby approved this
. 1990
day
W. R. "Bob" Holcomb, Mayor
City of San Bernardino
13 Approved as to form
and legal content:
14 James F. Penman
City Attorney
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DAVID TAUSSIG AND ASSOCIATES, INC.
2070 BUSINESS CENTER ORIVE. SUITE 110. IRVINE. CA S271 5
17141 752.15!54 FAX 17141 752-40!5B
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,I, AGRF.F.MENT 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 "Oient," and David Taussig and Associates, Inc.,
herein after called "Consultant." The Oient and the Consultant in consideration of the
mutual promises and conditions herein contained agree as follows.
ARTICLE I
TERM OF CONTRACf
Sectioa 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 n
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 Client decision beyond the rendition of information, advice, recommendation
or counsel.
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PUBLIC FINANCE. DEVELOPMENT ECONOMICS AND PLANNING - ;
ARTICLE ill
"" COMPENSATION
~c::nt agrees to pay Consultant for its Consulting Services a professional
fee comp . g to the Fee Schedule attached as Exhibit "B" hereto.
Section 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.
Sec:tion 3.3 On or about the fust two weeks of each month during which Consulting
Services are rendered hereunder, Consultant shall present to Client an invoice covering the
current Consulting Services performed and the reimbursable expenses incurred pursuanfto
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.
Section 3.4 The maximum total fee amount set forth in Exhibit "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.
Section 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
Section 4.1 Consultant agrees to perform the Consulting Services in accordance with
Exhibit "A". 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 Exhibit "A" to eliminate the errors.
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Sec:tioIa 4.2 Consultant will supply all tools and instrumentalities required to pedorm
the Co . under the Agreement.
Neither this Agreement nor any duties or obligations under this
Agreement assigned by Consultant without the prior written consent of Client.
However, Consultant may subcontract portions of the work to be pedormed hereunder to
other persons or concerns provided Consultant notifies Client of the name and address of
said proposed subcontractor and Oient either consents or fails notification with respect to
the use of any particular proposed subcontractor.
Secdoa 4.4 In the pedormance 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 Client 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. C1i~nt
and Consultant agree that Consultant is not a "public official" or "participatingcin
governmental decision" as those terms are used in Section 87100. The Client and Consultant
also agree that no actions and opinions necessary for the pedormance 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 pedormance of Consultant's
duties under this Agreement with the exception of those documents which Exhibit "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 l~, )k of Title 2 of the California Administrative Code. Should Client elect
to conduct s .'.sv......ntive review, then Client shall determine whether it has sufficient
expertise aD to conduct such a review, and, if not, will retain an independent expert
consultant to 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 described 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.
Sec:tkm 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 produtts
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. Client 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 Oient 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 (lO}daya in which to cure any default following receipt of notice of same.
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~ 'The covenants contained in Sections 5.5 and 5.6 shall survive the
te~~ Agreement.
ARTICLE VII
GENERAL PROVISIONS
Section 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 Client 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 exhIbit hereto) will be effective if it is in
writing and ?-d by the party against whom it is sought to be enforced.
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~. If any provision in this Agreement is held by a court of competent
jurisdiction to' 'invaHd, 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
David Taussig and Associates, IDe.
By:
By:
David Taussig, President
APR!lO
DTAGRMNT.OO1
Approved as to form
and legal content:
James F. Penman,
City Attorney
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By: \
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EXHIBIT "A"
~'.' '::-.<.. . OF WORK FOR CONSULTING SERVICES ASSOCIATED
ESTABUSHMENT OF MELLO-ROOS PROGRAM(S)
;'TO CONSTRUcr PUBUC IMPROVEMENTS FOR
VERDEMONT AREA COMMUNI'IY FAClUTlES DISTRIcr
(Cl'IY OF SAN BERNARDINO)
Consultant shall provide financial consulting services necessary to assist the City or San
Bel'lUU'dino (Client) in the formation of its Verdemont 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 Client and propose alternative
techniques which might be used to enhance benefits for Client. Data necessary ilr
tax spread models shall be provided by Oient and/or Landowner with the assistariCe
of the Consultant. Client and/or Landowner are responsible for verifying data
describing 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 Client and present revised tax spreads to Oient at a second meeting.
3.
Make any further necessary revisions and present to Client and/or Landowner at up
to eight additional meetings..
4.
Prepare schedule and timing of steps necessary for formation of CFD.
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These additional meetings may also be used to discuss or present the Rate and Method of Apportionment, eFD Public Report,
or other items prepared by Consultant. They may also be used [or the Protest Hearing or other public meetings. After a total
of ten meetings attended by Consultant have been completed or more that twenty-fwe romputerized tax spreads have been
prepared, additional meetings or additional tax spreads will result in fees due Consultant beyond the maximum established in
Exhibit B i!: this funding amount has been completely expended based on hourly rates quoted herein.
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5. Assist Mello-Roos Program's Bond Counsel and Underwriter's Counsel with the
;lof~"::'-=~'=:::l~=';~~::=
Sta .. and related items. Also provide necessary data and advice to Bond
Co ... garding 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).
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8. Assist Underwriter in structuring of bond issues (1& use of increasing debt servfte,
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 hplding 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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EXHIBIT "Bn
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~:PROFESSIONAL SERVICES FEE HOURLY RATES
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Principat'
Director, Economic and
Financial Analysis
Manager/Senior Consultant
Senior Associate
Associate
Analyst
Research Assistant
Oerical
$ 125lHour
$ 95IHour
$ 9OIHour
$ 85IHour
$ 75/Hour
$ 65/Hour
$ 45/Hour
$ 25/Hour
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:
Fint Bond Issue Size
Total Fee
Less than $2,000,000
$ 2,000,000 - $ 5,000,000
$ 5,000,00 1 - $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.
N01'E:: It haa been Consultant's experience that fees for the services listed under this Scope of Work are reimbursable through the
proccedI of the fnt bond issue. Should bonds never go to issue, the fees would generally not be reimbursed.
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sblverdmnt2aJr
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