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HomeMy WebLinkAboutC-2239\� ©0 -1 b AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into this 14th day of Dully 2006 by and between MuniFinaneial, a corporation, and the City of Arcadia, hereinafter referred to as "Client." WHEREAS, Client desires to employ MuniFinaneial to furnish ongoing professional services in connection with Arbitrage Rebate Services hereinafter referred to as the "Project." NOW, THEREFORE, in consideration of the mutual premises, covenants and conditions herein contained, the parties agree as follows: SECTION I — BASIC SERVICES MuniFinaneial shall provide to the Client the basic services described in detail in "Exhibit A," Scope of Services, attached hereto and incorporated herein by this reference. SECTION II — ADDITIONAL SERVICES If authorized, MuniFinaneial shall furnish additional services, which are in addition to the basic services. To the extent that the additional services have been identified in this Agreement, they are itemized in "Exhibit A" and will be paid for by Client as indicated in Section III hereof As further additional services are requested by Client, this Agreement may be modified and subject to mutual consent by execution of an addendum by authorized representatives of both parties, setting forth the additional scope of services to be performed, the performance time schedule and the compensation for such services. SECTION III — COMPENSATION MuniFinaneial shall be compensated for basic services rendered under Section I, as in accordance with the terms and conditions indicated in "Exhibit B," Fees for Services; and MuniFinaneial will be compensated for any additional services rendered under Section II as more particularly described in a fully approved and executed addendum to this Agreement. If no addendum is executed, then MuniFinaneial shall be compensated at its then- prevailing hourly rates for such additional services. MuniFinaneial may submit monthly statements for basic and additional services rendered. It is intended that Client will make payments to MuniFinaneial within thirty (30) days of invoice. All invoices not paid within thirty (30) days shall bear interest at the rate of 1 -1 /2 percent per month or the then legal rate allowed. MuniFinaneial Page i City of Arcadia 0 9 SECTION IV — INDEMNITY; INSURANCE REQUIRED A. Indemnity. MuniFinancial shall indemnify and hold harmless Client, its officers, officials, directors, employees, designated agents, and appointed volunteers from and against all claims, damages, losses and expenses, including attorney fees, arising out of the performance of the services described herein, caused in whole or in part by the negligent acts, errors or omissions of MuniFinancial, any subconsultant, anyone directly or indirectly employed by any of them or anyone for whose acts any of them map be liable, except where caused by the active negligence or willful misconduct of Client or Client's officers, agents or employees. B. Insurance. Without in any way limiting MuniFinancial's liability pursuant to the indemnification described above, MuniFinancial shall maintain, during the term of this contract, the following insurance: Coverage General Liability Comprehensive General Liability, including: Premises and Operations Contractual Liability Personal- Injury Liability Independent Contractors Liability (if applicable) Automobile Liability Comprehensive Automobile Liability, (including owned, non -owned and hired autos) Minimum Limits $1,000,000 Combined Single Limit, per occurrence and general aggregate $1,000,000 Combined Single Limit, per occurrence Workers' Compensation and Employer's Statutory, $1,000,000 Liability Workers' Compensation Insurance Employer's Liability Professional Liability Professional Liabilitv Insurance $1,000,000 per claim and annual aggregate MuniFinancial Page 2 City of Arcadia 0 0 SECTION V — INDEPENDENT CONTRACTOR STATUS MuniFinancial shall be an independent contractor and shall have responsibility for and control over the details and means of providing the services under this Agreement. SECTION VI — OWNERSHIP AND MAINTENANCE OF DOCUMENTS MuniFinancial may rely upon the accuracy of any documents provided to MuniFinancial by Client. All documents, including without limitation, reports, plans, specifications, field data, field notes, laboratory test data, calculations, estimates, schedules, spreadsheets, or other documents furnished by bluniFinancial pursuant to this Agreement, regardless of media (e.g., paper, electronic, magnetic, optical, Mylar, etc), are instruments of MuniFinancial's services in respect to this Project and not products. All such documents shall remain the property of MuniFinancial provided, however, that a copy of the final documents shall be made available to Client upon request. These documents are not intended, nor represented to be suitable for reuse by Client or any others on extensions of this Project or on any other project. These documents shall not be changed or reused without the prior written consent of MuniFinancial. Any modification or reuse without specific written verification and adoption by MuniFinancial for the specific purposes intended will be at user's sole risk. Client agrees to save, keep and hold harmless MuniFinancial from all damages, costs or expenses in law and equity including costs of suit and attorneys' fees resulting from such unauthorized reuse. Client further agrees to compensate MuniFinancial for any time spent or expenses incurred by MuniFinancial in defense of any such claim, in accordance with MuniFinancial's prevailing fee schedule. Client acknowledges that its right to utilize the services and instruments of services of MuniFinancial will continue only so long as Client is not in default of the terms and conditions of this agreement and Client has performed all obligations under this agreement. Client further acknowledges that MuniFinancial has the unrestricted right to use the services provided pursuant to this agreement as well as all instruments of service provided pursuant to this agreement. Client agrees not to use or permit any other person to use any instruments of service prepared by MuniFinancial, which are not final and which Ni luniFinancial does not sign. Client agrees MuniFinancial Page 3 City of Arcadia 0 0 to be liable for any such use of non -final instruments of service not signed, stamped or sealed by MuniFinancial and waives liability against MuniFinancial for their use. MuniFinancial's records, documents, calculations, test information and all other instruments of service shall be kept on file in legible form for a period of not less than two (2) years after completion of the services covered in this Agreement. SECTION VII — SUSPENSION OF SERVICES Client may, at any time, by thirty (30) days' written notice, suspend further performance by MuniFinancial. All suspensions shall extend the time schedule for performance in a mutually satisfactory manner and MuniFinancial shall be paid for all services performed and reimbursable expenses incurred prior to the suspensions date. SECTION VIII — TERMINATION Either party may terminate this Agreement at any time by giving thirty (30) days' written notice to the other party of such termination. If this Agreement is terminated as provided herein, MuniFinancial will be paid an amount which bears the same ratio to the total compensation as the services actually performed bears to the total services of MuniFinancial covered by this Agreement, less payments of compensation previously made. SECTION IX — COMPLIANCE WITH LAW Each party hereto will use reasonable care to comply with applicable laws in effect at the time the services are performed hereunder, which to the best of their knowledge, information and belief apply to their respective obligations under this Agreement. SECTION X — SUCCESSORS AND ASSIGNS This Agreement shall be binding on the successors and assigns of the parties, but either party, without written consent of the other party, shall not assign it. SECTION XI — ATTORNEYS FEES In the event that any judgment is entered in any action upon this Agreement, the party hereto against whom such judgment is rendered agrees to pay the amount equal to the reasonable attorneys fees of the prevailing party in such action and that such amount may be added to and made a part of such judgment. MuniFinancial Page 4 City of Arcadia 0 0 SECTION XII — ALTERNATIVE DISPUTE RESOLUTION If a dispute arises between the parties relating to this Agreement, the parties agree to use the following procedure prior to either party, pursuing other available remedies: A. A meeting shall be held promptly between the parties, attended by individuals with decision - making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. B. If, within thirty (30) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will jointly appoint a mutually acceptable neutral person not affiliated with either of the parties (the "neutral'), seeking assistance in such regard if they have been unable to agree upon such appointment within forty (40) days from the initial meeting. The parties shall share the fees of the neutral equally. C. In consultation with the neutral, the parties will select or devise an alternative dispute resolution procedure ( "ADR ") by which they will attempt to resolve the dispute, and a time and place for the ADR to be held, with the neutral making the decision as to the procedure, and /or place and time (but unless circumstances require otherwise, not later than sixty (60) days after selection of the neutral) if the parties have been unable to agree on any of such matters within twenty, (20) days after initial consultation with the neutral. D. The parties agree to participate in good faith in the ADR to its conclusion as designated by the neutral. If the parties are not successful in resolving the dispute through the ADR, then the parties may agree to submit the matter to binding arbitration or a private adjudicator, or either party may seek an adjudicated resolution through the appropriate court. SECTION XIII - RECORDS Records of MuniFinancial's direct labor costs, payroll costs and reimbursable expenses pertaining to the Project covered by this Agreement will be kept on a generally recognized accounting basis and made available during normal business hours upon reasonable notice. MuniFinancial's records will be available for examination and audit if and as required. MuniFinancial Page 5 City of Arcadia 0 SECTION XIV - MISCELLANEOUS PROVISIONS This Agreement is subject to the following special provisions: A. The titles used in this Agreement are for general reference only and are not a part of the Agreement. B. This Agreement shall be interpreted as though prepared by both parties. C. Any provision of this Agreement held to violate any law shall be deemed void, and all remaining provisions shall continue in full force and effect. D. This Agreement shall be interpreted under the laws of the State of California. E. This Agreement comprises a final and complete repository of the understandings between the parties and supersedes all prior or contemporary communications, representations or agreements, whether oral or written, relating to the subject matter of this Agreement. F. Any notices given pursuant to this agreement shall be effective on the third business day after posting by first class mail, postage prepaid, to the address appearing immediately after the signatures below. G. MuniFinancial shall not be liable for damages resulting from the actions or inactions of governmental agencies including, but not limited to, permit processing, environmental impact reports, dedications, general plans and amendments thereto, zoning matters, annexations or consolidations, use or conditional use permits, project or plan approvals, and building permits. H. Either party's waiver of any term, condition, or covenant, or breach of any term, condition, or covenant, shall not constitute the waiver by the other party of any subsequent breach of any other term, condition or covenant. I. Client acknowledges that MuniFinancial is not responsible for the performance of services by third parties, provided that said MuniFinancial has not retained third parties. MuniFinancial Page 6 City of Arcadia 0 IN WITNESS WHEREOF, the parties hereto have accepted, made and executed this Agreement upon the terms, conditions and provisions above stated, the day and year first above written. MUNIFINANCIAL By Anne Pelej Title: Vice President and Division Manager Address: 27368 Via Industria, Suite 110 Temecula, California 92590 -3661 Approved as to form: Stephen P. Deitsch City Attorney City of Arcadia William R. Kelley Title: Ciry Manager Address: PO Box 60021 Arcadia, California 91066 Concur: Tracey House Administrative Services Director MuniFinanciai Page 7 City of Arcadia 41 Exhibit A SCOPE OF SERVICES 0 4 An analyst will be assigned by MuniFinancial to manage the arbitrage rebate consulting activities. 4 The analyst will review those tax - exempt financings subject to the federal compliance regulations and discuss the work plan. 4 The analyst will review pertinent documents relating to the debt to confirm that the financing is subject to the arbitrage rebate requirements and identify relevant exceptions, elections, and yield restrictions. The subject bond issues will be loaded into MuniFinancial's proprietary tracking system with their respective target calculation dates. Bond documents and cash flow information required for the reports will be collected. Phase • — Report Preparation The analyst shall perform the following activities to determine the cumulative arbitrage liability pursuant to Section 148(f) of the Internal Revenue Code: 4 Calculate the bond yield and identify all gross proceeds and transferred proceeds (advance refunding issues) allocated to the issue. 4 Compare allowable arbitrage earnings to actual earnings to determine cumulative arbitrage liability. 4 Review and consider application of alternative regulatory provisions that may improve the arbitrage liability. 4 Verify that two senior analysts review the calculation and summary findings. t Upon request, and at additional cost, MuniFinancial will engage the services of tax counsel and an independent legal opinion shall be rendered. 4 A comprehensive rebate report will be produced and include the following: ,'Computation Summary, • Summary Analysis of all relevant dates and assumptions, • Sources and uses of funds, • Arbitrage yield and yield restriction requirements MuniFinancial Page 8 City of Arcadia Exhibit A ✓ Rebate liability by fund and aggregate liability for the issue, ✓ Arbitrage /Investment Yield Comparison Graph, ✓ Rebate Calculations by fund, • Outstanding Investments Summary, and • Preparation of IRS Form 80384 and filing instructions MuniFinancial's support does not end with report production. MurtiFinancial analysts shall be available throughout the agreement period for the following activities: a Review current policies and procedures for tracking expenditure and investment earnings allocations. If these systems do not provide sufficient detail to adequately calculate and monitor rebate liability, NlumFinancial will make recommendations to assist in complying with all applicable Federal Regulations. 4 MuniFinancial will keep abreast of enforcement actions and Code /Regulation changes that may affect arbitrage compliance requirements. Retroactive changes requiring recalculation of a previously submitted arbitrage report shall be performed at our hourly rates. b Assist staff in the event of a rebate calculation audit. a Upon request, MuniFinancial will consult with respect to structuring of new bond issues and other matters that will affect any eventual arbitrage liability. Client Responsibilities The analyst will need the following documents and financial information: # Official Statement, Tax Certificate (Arbitrage Certificate, Non - Arbitrage Certificate), # IRS Form 8038 -G (governmental) or Form 8038 (private activity), 6 Escrow Verification (refunding issues only), + Cash /Asset and Investment Activity Statements (or internal records of expenditure and earnings activity), and @ Current balances on funds held by the City of Arcadia. Proposed Schedule Since inception, MuniFinancial has never missed a reporting deadline. Once all of the supporting documentation and necessary data has been obtained, our staff can provide an arbitrage rebate report for any given financing within 30 days. MuniFinancial Page 9 City of Arcadia • Exhibit B FEES FOR SERVICES 0 Series 2001A City of Arcadia General Obligation Bond $8,000,000 5/16/2001 $2,500' Series 2001 * Our fees are tied to the service actually provided. Ifgross proceeds are fully expended prior to the end of the five -year period, our fees will always be discounted based on the number of years transactional data is analyzed. Online Access to Compliance Management System No Charge Preparation of IRS Form 8038T (Payment) No Charge Request for Refund of Overpayment No Charge MuniFinancial Page to City of Arcadia