2014/06/10 City Council Resolution 2014-057RESOLUTION NO. 2014 -057
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING THE CONSULTANT SERVICES AGREEMENT
WITH GOODWIN CONSULTING GROUP FOR TAX ADVISEMENT SERVICES
WHEREAS, the City currently requires tax advisement services in the connection with
the formation of a Community Facilities District and disposition of financial instruments and
disposition of financial instruments; and
WHEREAS, the City of Rohnert Park Municipal Code Title 3 Chapter 3.04 provides that
the City's purchasing functions shall be governed by the City's purchasing policy; and
WHEREAS, consistent with City of Rohnert Park Purchasing Policy Section 7.2,
Consultant meets the requirements for Sole Source purchasing as they perform a "complex and
unique function" because they provide specialized tax advisement services; and
WHEREAS, staff recommends Goodwin Consulting Group to perform these services based
on their professional skills and qualifications, and accepting the scope of work and compensation as
presented to the City Council on June 10, 2014.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert
Park that it does hereby authorize and approve an agreement by and between Goodwin
Consulting Group and the City of Rohnert Park for Tax Advisement Services in substantially
similar form to Exhibit A which is attached hereto and incorporated by this reference (the
"Agreement ") subject to minor modification by the City Manager or City Attorney.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and
directed to execute documents pertaining to same for and on behalf of the City of Rohnert Park,
including the Agreement.
DULY AND REGULARLY ADOPTED this 10th day of June, 2014.
CITY OF ROHNE T PARK
J altinari Mayor
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EXHIBIT A
CONSULTANT SERVICES AGREEMENT
FOR TAX ADVISEMENT SERVICES
THIS CONSULTANT SERVICES AGREEMENT FOR TAX ADVISEMENT
SERVICES ( "Agreement ") is entered into as of the 10 "' day of June, 2014, by and between the
CITY OF ROHNERT PARK ( "City "), a California municipal corporation, and Goodwin
Consulting Group ( "Consultant ") a Corporation.
Recitals
WHEREAS, City desires to obtain tax advisement services in connection with formation
of a Community Facilities District ( "CFD ") in the City of Rohnert Park; and
WHEREAS, Consultant hereby warrants to the City that Consultant is skilled and able to
provide such services described in Section 3 of this Agreement; and
WHEREAS, City desires to retain Consultant pursuant to this Agreement to provide the
services described in Section 3 of this Agreement.
Agreement
NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as
follows:
1. Incorporation of Recitals. The recitals set forth above, and all defined terms set forth in
such recitals and in the introductory paragraph preceding the recitals, are hereby
incorporated into this Agreement as if set forth herein in full.
2. Project Coordination.
A. City. The City Manager or his /her designee, shall represent City for all purposes
under this Agreement. The Interim Director of Development Services is hereby
designated as the Project Manager. The Project Manager shall supervise the
progress and execution of this Agreement.
B. Consultant. The Consultant shall assign Susan Goodwin to have overall
responsibility for the progress and execution of this Agreement for Consultant.
3. Scope and Performance of Services
A. Scope of Services. Subject to such policy direction and approvals as the City
through its staff may determine from time to time, Consultant shall perform the
services set out in the "Scope of Work" attached hereto as Exhibit A and
incorporated herein by reference.
B. Time of Performance. The services of Consultant are to commence upon receipt
of a written notice to proceed from City, but in no event prior to receiving a fully
executed agreement from City and obtaining and delivering the required insurance
coverage, and satisfactory evidence thereof, to City. Consultant shall perform its
services in accordance with the schedule attached hereto as Exhibit A, and
incorporated herein by reference. Any changes to these dates in either this
Section 3 or Exhibit A must be approved in writing by the Project Manager.
C. Standard of Quality. City relies upon the professional ability of Consultant as a
material inducement to entering into this Agreement. All work performed by
Consultant under this Agreement shall be in accordance with all applicable legal
requirements and shall meet the standard of quality ordinarily to be expected of
competent professionals in Consultant's field of expertise.
4. Compensation and Method of Payment.
A. Compensation. The compensation to be paid to Consultant, including both
payment for professional services and reimbursable expenses, shall be at the
rate and schedules attached hereto as Exhibit B, and incorporated herein by
reference. Payment by City under this Agreement shall not be deemed a waiver
of unsatisfactory work, even if such defects were known to the City at the time of
payment.
B. Timina of Payment
Consultant shall submit itemized monthly statements for work performed. City shall
make payment, in full, within thirty (30) days after approval of the invoice by the
Project Manager.
C. Changes in Compensation. Consultant will not undertake any work that will incur
costs in excess of the amount set forth in Paragraph 4(A) without prior written
amendment to this Agreement.
D. Taxes. Consultant shall pay all taxes, assessments and premiums under the federal
Social Security Act, any applicable unemployment insurance contributions, Workers
Compensation insurance premiums, sales taxes, use taxes, personal property taxes, or
other taxes or assessments now or hereafter in effect and payable by reason of or in
connection with the services to be performed by Consultant.
E. No Overtime or Premium Pay. Consultant shall receive no premium or enhanced pay
for work normally understood as overtime, i.e., hours that exceed forty (40) hours per
work week, or work performed during non - standard business hours, such as in the
evenings or on weekends. Consultant shall not receive a premium or enhanced pay
for work performed on a recognized holiday. Consultant shall not receive paid time
off for days not worked, whether it be in the form of sick leave, administrative leave,
or for any other form of absence.
F. Litigation Support. Consultant agrees to testify at City's request if litigation is
brought against City in connection with Consultant's work product. Unless the action
is brought by Consultant or is based upon Consultant's negligence, City will
compensate Consultant for the preparation and the testimony at Consultant's standard
hourly rates, if requested by City and not part of the litigation brought by City against
Consultant.
5. Amendment to Scope of Work. City shall have the right to amend the Scope of Work
within the Agreement by written notification to the Consultant. In such event, the
compensation and time of performance shall be subject to renegotiation upon written
demand of either party to the Agreement. Consultant shall not commence any work
exceeding the Scope of Work without prior written authorization from the City. Failure
of the Consultant to secure City's written authorization for extra or changed work shall
constitute a waiver of any and all right to adjustment in the contract price or time due,
whether by way of compensation, restitution, quanta n meruit, etc. for work done without
the appropriate City authorization.
6. Term. This Agreement shall commence upon its execution by both parties and shall
continue in full force and effect until completed, amended pursuant to Section 21, or
otherwise terminated as provided herein.
7. Inspection. Consultant shall furnish City with every reasonable opportunity for City to
ascertain that the services of Consultant are being performed in accordance with the
requirements and intentions of this Agreement. All work done and all materials
furnished, if any, shall be subject to the Project Manager's inspection and approval. The
inspection of such work shall not relieve Consultant of any of its obligations to fulfill the
Agreement as prescribed.
8. Ownership of Documents. Title to all plans, specifications, maps, estimates, reports,
manuscripts, drawings, descriptions and other final work products compiled by the
Consultant under the Agreement shall be vested in City, none of which shall be used in any
manner whatsoever, by any person, firm, corporation, or agency without the expressed
written consent of the City. Basic survey notes and sketches, charts, computations, and
other data prepared or obtained under the Agreement shall be made available, upon request,
to City without restriction or limitations on their use. Consultant may retain copies of the
above - described information but agrees not to disclose or discuss any information gathered,
discussed or generated in any way through this Agreement without the written permission of
City during the term of this Agreement, unless required by law.
9. Employment of Other Consultants, Specialists or Experts. Consultant will not employ or
otherwise incur an obligation to pay other consultants, specialists or experts for services
in connection with this Agreement without the prior written approval of the City.
10. Conflict of Interest.
A. Consultant covenants and represents that neither it, nor any officer or principal of its
firm, has, or shall acquire any investment, income, business entity, interest in real
property, or other interest, directly or indirectly, which would conflict in any manner
with the interests of City, hinder Consultant's performance of services under this
Agreement, or be affected in any manner or degree by performance of Consultant's
services hereunder. Consultant further covenants that in the performance of the
Agreement, no person having any such interest shall be employed by it as an officer,
employee, agent, or subcontractor without the express written consent of the City.
Consultant agrees to at all times avoid conflicts of interest, or the appearance of any
conflicts of interest, with the interests of the City in the performance of the
Agreement.
B. Consultant is not a designated employee within the meaning of the Political Reform
Act because Consultant:
1) will 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 City or of any City official, other than normal
contract monitoring; and
2) possesses no authority with respect to any City decision beyond the
rendition of information, advice, recommendation, or counsel. (2 Cal.
Code Regs. § 18700(a)(2).)
11. Liability of Members and Employees of City. No member of the City and no other
officer, elected official, employee or agent of the City shall be personally liable to
Consultant or otherwise in the event of any default or breach of the City, or for any
amount which may become due to Consultant or any successor in interest, or for any
obligations directly or indirectly incurred under the terms of this Agreement.
12. Indemnity. To the fullest extent permitted by law, Consultant hereby agrees to defend
(by counsel reasonably satisfactory to the City), indemnify, and hold harmless the City,
its officers, elected officials, employees, agents, and volunteers from and against any and
all claims, demands, damages, costs, liabilities, or obligations brought on account of or
arising out of any acts, errors, or omissions of Consultant, its officers, employees, agents,
and subcontractors undertaken pursuant to this Agreement excepting liabilities due to the
sole negligence or willful misconduct of City. The City has no liability or responsibility
for any accident, loss, or damage to any work performed under this Agreement whether
prior to its completion and acceptance or otherwise. Consultant's duty to indemnify and
hold harmless, as set forth herein, shall include the duty to defend as set forth in
California Civil Code § 2778. This indemnification obligation is not limited in any way
by any limitation on the amount or type of damages or compensation payable by or for
Consultant under Worker's Compensation, disability or other employee benefit acts or the
terms, applicability or limitations of any insurance held or provided by Consultant and
shall continue to bind the parties after termination /completion of this agreement. This
indemnification shall be regardless of and not in any way limited by the insurance
requirements of this contract. This indemnification is for the full period of time allowed
by law and shall survive the termination of this agreement.
13. Consultant Not an Agent of City. Consultant, its officers, employees and agents shall not
have any power to bind or commit the City to any decision.
14. Independent Contractor. It is expressly agreed that Consultant, in the performance of the
work and services agreed to be performed by Consultant, shall act as and be an
independent contractor and not an agent or employee of City; and as an independent
contractor, Consultant shall obtain no rights to retirement benefits or other benefits which
accrue to City's employees, and Consultant hereby expressly waives any claim it may
have to any such rights.
15. Compliance with Laws.
A. General. Consultant shall use the standard of care in its profession to comply with all
applicable federal, state, and local laws, codes, ordinances, and regulations.
Consultant represents and warrants to City that it has and shall, at its sole cost and
expense, keep in effect or obtain at all times during the term of this Agreement any
licenses, permits, insurance and approvals which are legally required for Consultant
to practice its profession. Except as otherwise allowed by City in its sole discretion,
Consultant and all subconsultants shall have acquired, at their expense, a business
license from City in accordance with Chapter 5.04 of the Rohnert Park Municipal
Code prior to City's issuance of an authorization to proceed with the Services. Such
license(s) must be kept valid throughout the term of this Agreement. The City is not
responsible or liable for Consultant's failure to comply with any or all of the
requirements contained in this paragraph.
B. Workers' Compensation. Consultant certifies that it is aware of the provisions of the
California Labor Code which require every employee to be insured against liability
for workers' compensation or to undertake self - insurance in accordance with the
provisions of that Code, and Consultant certifies that it will comply with such
provisions before commencing performance of the Agreement and at all times in the
performance of the Agreement.
C. Prevailing Wage. Consultant and Consultant's sub - consultants (if any) shall, to the
extent required by the California Labor Code, pay not less than the latest prevailing
wage rates to workers and professionals as determined by the Director of Industrial
Relations of the State of California pursuant to California Labor Code, Part 7,
Chapter 1, Article 2. Copies of the applicable wage determination are on file at the
City's office of the City Clerk.
D. Injury and Illness Prevention Program. Consultant certifies that it is aware of and has
complied with the provisions of California Labor Code § 6401.7, which requires
every employer to adopt a written injury and illness prevention program.
E. City Not Responsible. City is not responsible or liable for Consultant's failure to
comply with any and all of its requirements under this section and Agreement.
F. Waiver of Subrogation. Consultant and Consultant's insurance company agree to
waive all rights of subrogation against City, its officers, elected officials, employees,
agents and volunteers for losses paid under Consultant's workers' compensation
insurance policy which arise from the work performed by Consultant for the City.
16. Confidential Information. All data, documents, discussions or other information
developed or received by or for Consultant in performance of this Agreement are
confidential and not to be disclosed to any person except as authorized by the City, or as
required by law.
17. Assignment; Subcontractors; Employees
A. Assignment. Consultant shall not assign, delegate, transfer, or convey its duties,
responsibilities, or interests in this Agreement or any right, title, obligation, or
interest in or to the same or any part thereof without the City's prior written
consent. Any assignment without such approval shall be void and, at the City's
option, shall immediately cause this Agreement to terminate.
B. Subcontractors; Employees. Consultant shall be responsible for employing or
engaging persons necessary to perform the services of Consultant hereunder. No
subcontractor of Consultant shall be recognized by the City as such; rather,
subcontractors are deemed to be employees of the Consultant, and Consultant
agrees to be responsible for their performance. Consultant shall give its personal
attention to the fulfillment of the provisions of this Agreement by all of its
employees and subcontractors, if any, and shall keep the work under its control.
If any employee or subcontractor of Consultant fails or refuses to carry out the
provisions of this Agreement or appears to be incompetent or to act in a disorderly
or improper manner, it shall be discharged immediately from the work under this
Agreement on demand of the Project Manager.
18. Insurance. Without limiting consultant's indemnification provided herein, Consultant
shall comply with the requirements set forth in Exhibit C to this Agreement.
19. Termination of Agreement; Default.
A. This Agreement and all obligations hereunder may be terminated at any time, with
or without cause, by the City upon 5 -days' written notice to Consultant.
B. If Consultant fails to perform any of its obligations under this Agreement within
the time and in the manner herein provided or otherwise violate any of the terms of
this Agreement, in addition to all other remedies provided by law, City may
terminate this Agreement immediately upon written notice. In such event,
Consultant shall be entitled to receive as full payment for all services satisfactorily
rendered and expenses incurred hereunder, an amount which bears the same ratio
to the total fees specified in the Agreement as the services satisfactorily rendered
hereunder by Consultant bear to the total services otherwise required to be
performed for such total fee; provided, however, that the City shall deduct from
such amount the amount of damages, if any, sustained by City by virtue of the
breach of the Agreement by consultant.
C. In the event this Agreement is terminated by City without cause, Consultant shall
be entitled to any compensation owing to it hereunder up to the time of such
termination, it being understood that any payments are full compensation for
services rendered prior to the time of payment.
D. Upon termination of this Agreement with or without cause, Consultant shall turn
over to the City Manager immediately any and all copies of studies, sketches,
drawings, computations, and other data, whether or not completed, prepared by
Consultant or its subcontractors, if any, or given to Consultant or its
subcontractors, if any, in connection with this Agreement. Such materials shall
become the permanent property of the City. Consultant, however, shall not be
liable for the City's use of incomplete materials nor for the City's use of complete
documents if used for other than the project contemplated by this Agreement.
20. Suspension. The City shall have the authority to suspend this Agreement and the
services contemplated herein, wholly or in part, for such period as it deems necessary
due to unfavorable conditions or to the failure on the part of the Consultant to perform
any provision of this Agreement. Consultant will be paid for satisfactory Services
performed through the date of temporary suspension.
21. Merger; Amendment. This Agreement constitutes the complete and exclusive
statement of the agreement between the City and Consultant and shall supersede all
prior negotiations, representations, or agreements, either written or oral. This document
may be amended only by written instrument, signed by both the City and Consultant.
All provisions of this Agreement are expressly made conditions.
22. Interpretation. This Agreement shall be interpreted as though it was a product of a joint
drafting effort and no provisions shall be interpreted against a party on the ground that
said party was solely or primarily responsible for drafting the language to be interpreted.
23. Litigation Costs. If either party becomes involved in litigation arising out of this
Agreement or the performance thereof, the court in such litigation shall award
reasonable costs and expenses, including attorneys' fees, to the prevailing party. In
awarding attorneys' fees, the court will not be bound by any court fee schedule, but
shall, if it is in the interest of justice to do so, award the full amount of costs, expenses,
and attorneys' fees paid or incurred in good faith.
24. Time of the Essence. Time is of the essence of this Agreement.
25. Written Notification. Any notice, demand, request, consent, approval or
communication that either party desires or is required to give to the other party shall be
in writing and either served personally or sent by prepaid, first class mail. Any such
notice, demand, etc. shall be addressed to the other party at the address set forth below.
Either party may change its address by notifying the other party of the change of
address. Notice shall be deemed communicated within 72 hours from the time of
mailing if mailed as provided in this section.
If to City: City Manager
City of Rohnert Park - City Hall
130 Avram Avenue
Rohnert Park, CA 94928
If to Consultant: Susan Goodwin
Goodwin Consulting Group
555 University Avenue, Suite 280
Sacramento, CA 95825
26. Consultant's Books and Records.
A. Consultant shall maintain any and all ledgers, books of account, invoices,
vouchers, canceled checks, and other records or documents evidencing or
relating to charges for services, or expenditures and disbursements charged to
the City and all documents and records which demonstrate performance under
this Agreement for a minimum period of three (3) years, or for any longer
period required by law, from the date of termination or completion of this
Agreement.
B. Any records or documents required to be maintained pursuant to this Agreement
shall be made available for inspection or audit, at any time during regular
business hours, upon written request by the City Attorney, City Auditor, City
Manager, or a designated representative of any of these officers. Copies of such
documents shall be provided to the City for inspection when it is practical to do
so. Otherwise, unless an alternative is mutually agreed upon, the records shall
be available at Consultant's address indicated for receipt of notices in this
Agreement.
C. The City may, by written request by any of the above -named officers, require
that custody of the records be given to the City and that the records and
documents be maintained in the City Manager's office.
27. Agreement Binding. The terms, covenants, and conditions of this Agreement shall
apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and
subcontractors of both parties.
28. Equal Employment Opportunity. Consultant is an equal opportunity employer and
agrees to comply with all applicable state and federal regulations governing equal
employment opportunity. Consultant will not discriminate against any employee or
applicant for employment because of race, age, sex, creed, color, sexual orientation,
marital status or national origin. Consultant will take affirmative action to ensure that
applicants are treated during such employment without regard to race, age, sex, creed,
color, sexual orientation, marital status, or national origin. Such action shall include,
but shall not be limited to, the following: employment, upgrading, demotion, or
transfer; recruitment or recruitment advertising; lay -offs or termination; rates of pay or
other forms of compensation; and selection for training, including apprenticeship.
Consultant further agrees to post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provisions of this
nondiscrimination clause.
29. City Not Obligated to Third Parties. The City shall not be obligated or liable for
payment hereunder to any party other than the Consultant.
30. Waiver. No failure on the part of either party to exercise any right or remedy hereunder
shall operate as a waiver of any other right or remedy that party may have hereunder.
31. Severability. If any one or more of the provisions contained herein shall for any reason
be held to be invalid, illegal or unenforceable in any respect, then such provision or
provisions shall be deemed severable from the remaining provisions hereof, and such
invalidity, illegality, or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal, or unenforceable provision
had not been contained herein.
32. Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by this reference:
Exhibit A: Scope of Work and Schedule of Performance
Exhibit I3: Compensation
Exhibit C: Insurance Requirements
33. Execution. This Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument and shall become binding upon the parties when
at least one copy hereof shall have been signed by both parties hereto. In approving this
Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
34. News Releases /Interviews. All Consultant and sub - consultant news releases, media
interviews, testimony at hearings and public comment shall be prohibited unless
expressly authorized by the City
35. Applicable Law; Venue. This Agreement shall be construed and interpreted according to
California law. In the event that suit shall be brought by either party hereunder, the
parties agree that trial of such action shall be held exclusively in a state court in the
County of Sonoma, California.
36. Authority. Each individual executing this Agreement on behalf of one of the parties
represents that he or she is duly authorized to sign and deliver the Agreement on behalf of
such party and that this Agreement is binding on such party in accordance with its terms.
37. STATEMENT OF ECONOMIC INTEREST. If City determines Consultant comes
within the definition of Consultant under the Political Reform Act (Government Code
§87100), Consultant shall complete and file and shall require any other person doing
work under this Agreement to complete and file a "Statement of Economic Interest" with
the Clerk of the City of Rohnert Park disclosing Consultant and /or such other person's
financial interests.
IN WITNESS WHEREOF, the City and Consultant have executed this Agreement as of the date
first above written.
CITY OF ROHNERT PARK
By:
City Manager
Date:
Per Resolution No. 2014- adopted by the Rohnert Park
City Council at its meeting of June 10, 2014.
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
By:
City Clerk
CONSULTANT
By: _
Title:
Date:
CONSULTANT
By:
Title:
Date:
EXHIBIT A
Scope of Work and Schedule of Performance
Consultant will serve as special tax consultant to assist in the formation of a Mello -Roos
Community Facilities District (CFD) that will fund public improvements required for
development of the Southeast Specific Plan (Project). Consultant will provide services as part of
a CFD Formation team that will be led by a Financial Advisor contracting with the City of
Rohnert Park. All of Consultant's Work shall be conducted in accordance with direction
provided to the team by the Financial Advisor.
Specifically, Consultant will provide the following services to the City:
Task 1. Kick -Off Meeting and Collection of Data
Consultant will meet with City staff, property owners and developers, the City's financial
advisor, bond counsel and other members of the financing team to compile data and to discuss
the structure and components of the Mello -Roos cash flow analysis. This task will include (i)
identifying proposed land uses, public facilities to be financed, anticipated absorption rates, and
timing and number of bond issues, (ii) discussing assumptions to be used for the initial allocation
of special taxes to land uses within the CFD and reviewing the advantages and disadvantages
associated with various allocation methods, (iii) coordinating with the financial advisor regarding
the anticipated bond structure, including special tax /debt service escalator, bond interest rate,
short-term reinvestment rate, capitalized interest, reserve fund, and other features that may affect
the size of bond issues and the corresponding annual debt service.
Task 2. Mello -Roos Cash Flow Analysis
Consultant will use information compiled in Task 1 to prepare an analysis of the annual cash
flow of the CFD. The analysis will identify the maximum special tax that will be needed to
maintain required debt service coverage on bonded indebtedness issued on behalf of the CFD. In
addition, the cash flow will (i) estimate the special tax burden on undeveloped property based on
a given absorption scenario, (ii) determine the size of the initial and subsequent bond sales taking
into consideration minimun value -to -lien requirements set forth in state law and City policy, and
(iii) evaluate the increased bonding capacity that is created from an escalating special tax and
debt service or other unique bond structure. Consultant will circulate the analysis to the working
group for review prior to the second meeting. Subsequent iterations of the analysis will be
prepared based on feedback from City staff, affected property owners, the financial advisor, bond
counsel and other members of the working group. Ultimately, through review and discussion of
each alternative, the team will select a special tax structure which Consultant will incorporate in
the Rate and Method of Apportionment of Special Tax developed in Task 3 below.
Task 3. Rate and Method of Apportionment of Special Tax
Based on the special tax structure selected pursuant to Task 2 above, Consultant will prepare the
Rate and Method of Apportionment of Special Tax (RMA), which will serve as the official
special tax formula for the CFD. The RMA will provide detail and direction as to how the special
tax should be levied in future years to ensure adequate revenues are available for timely
repayment of debt service on bonded indebtedness issued by the CFD. The RMA will be
included as an exhibit to the Resolution of Intention to Form the CFD, which will be adopted by
the City Council as part of the first set of actions taken towards forming the CFD. In addition to
providing guidance relative to the annual levy of special taxes in the CFD, the
RMA will provide some or all of the following items:
• Identification of the maximum special tax for each special tax category, including each
category of developed and undeveloped property
• Provision for a back -up special tax or alternate mechanism to be used to maintain
maximum special tax revenues in the event that land uses change in future years
• A detailed prepayment formula that will provide flexibility for a property owner to
prepay all or a portion of the special tax obligation after some or all bonds have been
issued for the CFD
• If additional property is expected to annex into the CFD, a description of the "catch -up
tax" that will apply to annexing parcels to equalize the cumulative special tax burdens
Task 4. Preparation of CFD Boundary Map (optional)
If requested by the City, Consultant will prepare the official boundary map for the CFD in a
format acceptable to the County Recorder's Office. The map will include the initial CFD
boundaries, as well as identifying the boundaries of the future annexation area.
Task S. Review of, and Contributions to, CFD Formation and Bond Issuance Documents
In coordination with the working group, Consultant will review, prepare and contribute to other
documents required in the CFD formation proceedings that relate specifically to the special tax
formula. Specifically, Consultant will:
• Prepare the CFD Report required pursuant to Section 53321.5 of the Government Code
• Review the Bond Purchase Agreement, Fiscal Agent Agreement and /or Bond Indenture
to assure that the flow of special tax revenues and interest earnings as set forth in these
documents are consistent with assumptions used in the Mello -Roos cash flow analysis
• Review the Official Statement and, at the request of the financial advisor or underwriter,
prepare tables demonstrating special tax coverage, diversification of special tax burdens
among major landowners and /or general CFD cash flows
• Execute a "Special Tax Certification Statement" which confirms the adequacy of special
tax payments to meet CFD obligations
Task 6. Meeting Attendance
Consultant will attend meetings with City staff and other members of the working group to
acquire information, present cash flow alternatives, and review formation documents. In
addition, Consultant will attend City Council meetings to present the special tax formula and
answer questions from the Council and affected property owners. A total of five (5) meetings is
included in the budget presented in Exhibit B.
EXHIBIT B
Compensation
Consultant's fee for services and expenses associated with CFD formation and issuance of the
first series of bonds is $40,000, which amount shall be billed as follows:
Prior to Bond Issuance: Prior to issuance of the first series of bonds for the CFD, Consultant will
bill on a time and materials basis, not to exceed total billings of $25,000.
Upon Closing of First Series of Bonds: Consultant shall be paid a fee of $40,000 less any amount
paid prior to bond issuance.
Additional consulting services beyond those included in the scope of work may be provided
within the budget if total hourly billings are less than the budget. Alternatively, if the scope of
work can be completed for less than the budget, only the hours actually expended will be billed.
Services shall be billed based on the following hourly fee schedule *:
— Managing Principal $250 /Hour
— Principal $240 /Hour
— Vice President $210 /Hour
— Senior Associate $185 /Hour
— Associate $165 /Hour
— Analyst $140 /Hour
— Research Assistant $85 /Hour
* These rates are effective through December 31, 2014 and may be adjusted for inflation thereafter.
The following services are not included in the scope of work provided in Exhibit A and will be
billed on a time and materials basis or pursuant to a separate contract if needed:
• Attendance at more than five meetings
• Services associated with annual administration of the CFD
• Issuance of additional series of bonds after the first issue
EXHIBIT C
INSURANCE REQUIREMENTS for Consultant Services Agreement
Re:
Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in
conformance with the requirements set forth below. Consultant will use existing coverage to comply with
these requirements. ff that existing coverage does not meet the requirements set forth here, Consultant
agrees to amend, supplement or endorse the existing coverage to do so. Consultant acknowledges that the
insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage
required Any insurance proceeds available to City in excess of the limits and coverage required in this
agreement and which is applicable to a given loss, will be available to City.
Consultant shall provide the following types and amounts of insurance
General Liability Insurance using Insurance Services Office "Commercial General Liability" policy form
CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross
liability exclusion for claims or suits by one insured against another. Limits are subject to review but in
no event less than $2,000,000 (Two Million Dollars) per occurrence.
Business Auto Coverage on ISO Business Auto Coverage form CA 0001 including symbol 1 (Any Auto)
or the exact equivalent. Limits are subject to review, but in no event to be less than $2,000,000 (Two
Million Dollars) per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non -
owned auto endorsement to the general liability policy described above. If Consultant or Consultant's
employees will use personal autos in any way on this project, Consultant shall provide evidence of
personal auto liability coverage for each such person.
Workers Compensation on a state - approved policy form providing statutory benefits as required by law
with employer's liability limits no less than $1,000,000 (One Million Dollars) per accident or disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide
coverage at least as broad as specified for the underlying coverages. Any such coverage provided under
an umbrella liability policy shall include a drop down provision providing primary coverage above a
maximum $25,000 self - insured retention for liability not covered by primary but covered by the umbrella.
Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy
limits. Policy shall contain a provision obligating insurer at the time insured's liability is determined, not
requiring actual payment by the insured first. There shall be no cross liability exclusion precluding
coverage for claims or suits by one insured against another. Coverage shall be applicable to City for
injury to employees of Consultant, subconsultants or others involved in the Work. The scope of coverage
provided is subject to approval of City following receipt of proof of insurance as required herein. Limits
are subject to review but in no event less than $2,000,000 (Two Million Dollars) per occurrence.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form
coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered
Professional Services" as designated in the policy must specifically include work performed under this
agreement. The policy limit shall be no less than $2,000,000 (Two Million Dollars) per claim and in the
aggregate. The policy must "pay on behalf of the insured and must include a provision establishing the
insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Insurance procuredpursuant to these requirements shall be written by insurers that are admitted carriers
in the state of California and with an A.M. Bests rating of A- or better and a minimum financial size VII
General conditions pertaining to provision of insurance coverage by Consultant. Consultant and City
agree to the following with respect to insurance provided by Consultant.
1. Consultant agrees to have its insurer endorse the third party general liability coverage required
herein to include as additional insureds the City, its officers, elected officials, employees, agents,
and volunteers using standard ISO endorsement No. CG 20 10 or an approved equivalent. If
completed operations coverage is excluded, the policy must be endorsed to include such coverage.
Consultant also agrees to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant,
or Consultant's employees, or agents, from waiving the right of subrogation prior to a loss.
Consultant agrees to waive subrogation rights against City regardless of the applicability of any
insurance proceeds, and to require all contractors and subcontractors to do likewise.
3. The worker's compensation policy is to be endorsed with a waiver of subrogation. The insurance
company, in its endorsement, agrees to waive all rights of subrogation against the City, its officers,
elected officials, employees, agents, and volunteers for losses paid under the terms of this policy
which arise from the work performed by the named insured for the City.
4. All insurance coverage and limits provided by Contractor and available or applicable to this
agreement are intended to apply to the full extent of the policies. Nothing contained in this
Agreement or any other agreement relating to the City or its operations limits the application of
such insurance coverage.
5. None of the coverages required herein will be in compliance with these requirements if they include
any limiting endorsement of any kind that has not been first submitted to City and approved of in
writing.
6. No liability policy shall contain any provision or definition that would serve to eliminate so- called
"third party action over" claims, including any exclusion for bodily injury to an employee of the
insured or of any contractor or subcontractor.
7. All coverage types and limits required are subject to approval, modification and additional
requirements by the City, as the need arises. Consultant shall not make any reductions in scope of
coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect
City's protection without City's prior written consent.
8. Proof of compliance with these insurance requirements, consisting of certificates of insurance
evidencing all of the coverages required and an additional insured endorsement to Consultant's
general liability policy, shall be delivered to City at or prior to the execution of this Agreement. In
the event such proof of any insurance is not delivered as required, or in the event such insurance is
canceled at any time and no replacement coverage is provided, City has the right, but not the duty,
to obtain any insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by
Consultant or deducted from sums due Consultant, at City option.
9. Certificate(s) are to reflect that the insurer will provide 30 days notice to City of any cancellation of
coverage. Consultant agrees to require its insurer to modify such certificates to delete any
exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes
no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the
requirements of the certificate.
10. It is acknowledged by the parties of this agreement that all insurance coverage required to be
provided by Consultant or any subcontractor, is intended to apply first and on a primary, non-
contributing basis in relation to any other insurance or self insurance available to City.
11. Consultant agrees to ensure that subcontractors, and any other party involved with the project who
is brought onto or involved in the project by Consultant, provide the same minimum insurance
coverage required of Consultant. Consultant agrees to monitor and review all such coverage and
assumes all responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Consultant agrees that upon request, all agreements with
subcontractors and others engaged in the project will be submitted to City for review.
12. Consultant agrees not to self - insure or to use any self - insured retentions or deductibles on any
portion of the insurance required herein and further agrees that it will not allow any contractor,
subcontractor, Architect, Engineer or other entity or person in any way involved in the performance
of work on the project contemplated by this agreement to self - insure its obligations to City. If
Consultant's existing coverage includes a deductible or self - insured retention, the deductible or self -
insured retention must be declared to the City. At that time the City shall review options with the
Consultant, which may include reduction or elimination of the deductible or self - insured retention,
substitution of other coverage, or other solutions.
13. The City reserves the right at any time during the term of the contract to change the amounts and
types of insurance required by giving the Consultant ninety (90) days advance written notice of
such change. If such change results in substantial additional cost to the Consultant, the City will
negotiate additional compensation proportional to the increased benefit to City.
14. For purposes of applying insurance coverage only, this Agreement will be deemed to have been
executed immediately upon any party hereto taking any steps that can be deemed to be in
furtherance of or towards performance of this Agreement.
15. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform
Consultant of non - compliance with any insurance requirement in no way imposes any additional
obligations on City nor does it waive any rights hereunder in this or any other regard.
16. Consultant will renew the required coverage annually as long as City, or its employees or agents
face an exposure from operations of any type pursuant to this agreement. This obligation applies
whether or not the agreement is canceled or terminated for any reason. Termination of this
obligation is not effective until City executes a written statement to that effect.
17. Consultant shall provide proof that policies of insurance required herein expiring during the term of
this Agreement have been renewed or replaced with other policies providing at least the same
coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A
coverage binder or letter from Consultant's insurance agent to this effect is acceptable. A certificate
of insurance and /or additional insured endorsement as required in these specifications applicable to
the renewing or new coverage must be provided to City within five days of the expiration of the
coverages.
18. The provisions of any workers' compensation or similar act will not limit the obligations of
Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity
defenses under such laws with respect to City, its officers, elected officials, employees, agents, and
volunteers.
19. Requirements of specific coverage features or limits contained in this section are not intended as
limitations on coverage, limits or other requirements nor as a waiver of any coverage normally
provided by any given policy. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue, and is not intended by any party or insured to be
limiting or all- inclusive.
20. These insurance requirements are intended to be separate and distinct from any other provision in
this agreement and are intended by the parties here to be interpreted as such.
21. The requirements in this Section supersede all other sections and provisions of this Agreement to
the extent that any other section or provision conflicts with or impairs the provisions of this Section.
22. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any
way with the project reserves the right to charge City or Consultant for the cost of additional
insurance coverage required by this agreement. Any such provisions are to be deleted with
reference to City. It is not the intent of City to reimburse any third party for the cost of complying
with these requirements. There shall be no recourse against City for payment of premiums or other
amounts with respect thereto.
23. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant
arising out of the work performed under this agreement. City assumes no obligation or liability by
such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims
if they are likely to involve City.
CFRTIFICATF OF CONSULTANT
I HEREBY CERTIFY that I am the and a duly
authorized representative of the firm of
whose address is and that
neither I nor the above firm I here represent has:
a) Employed or retained for a commission, percentage, brokerage, contingent
fee, or other consideration, any firm or person (other than a bona fide
employee working solely for me or the above consultant) to solicit to secure
this Agreement.
b) Agreed, as an express or implied condition for obtaining this contract, to
employ or retain the services of any firm or person in connection with
carrying out the Agreement; or
C) Paid, or agreed to pay, to any firm, organization or person (other than a bona
fide employee working solely for me or the above consultant) any fee,
contribution, donation, or consideration of any kind for, or in connection
with, procuring or carrying out the Agreement;
Except as here expressly stated (if any);
I acknowledge that this certificate is subject to applicable State and Federal laws, both
criminal and civil.
Date
Signature