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HomeMy WebLinkAbout00285C - ROD GUNN ASSOCIATES FINANCIAL CONSULTING Rod Gunn Associates, Inc. Financial Consulting Serv. AGREEMENT #285 R801, 7-31-91 CONTRACT SERVICES AGREEMENT FOR FINANCIAL CONSULTING SERVICES THISf CONTRACT SERVICES AGREEMENT ( "Agreement" ) is made this day of 1991, by and between the COMMUNITY REDEVELOPMENT' AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ( "Agency" ) and ROD GUNN ASSOCIATES, INC. , a California corporation ( "Contractor" ) . NOW, THEREFORE, the parties hereto agree as follows : 1 . 0 SERVICES OF CONTRACTOR 1 . 1 Scope of Services . In compliance with all of the terms and conditions of this Agreement, the Contractor shall perform the work or services set forth in the Scope of Services attached hereto as Exhibit "A" and incorporated herein by reference. Contractor warrants that all work and services set forth in the Scope of Services will be performed in a competent, professional and satisfactory manner . 1. 2 Compliance With Law. All work and services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the Agency and any Federal, State or local governmental agency of competent jurisdiction. 2 . 0 COMPENSATION 2 . 1 Contract Sum. For the services rendered pursuant to this Agreement, Contractor shall be compensated as follows ( "Contract Sum" ) : a) TEN THOUSAND DOLLARS ( 10, 000 . 00 ) per $1, 000 ,000 . 00 principal amount of the Bonds up to a principal amount of $2 , 000 , 000 . 00 ; b) SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7 ,500 . 00 ) per $1 , 000 , 000 . 00 principal amount of the Bonds exceeding $2 , 000 , 000 . 00 but less than or equal to $4, 000 , 000 . 00 . c) FIVE THOUSAND DOLLARS ($5, 000 . 00 ) per $1, 000 , 000 . 00 principal amount of the Bonds exceeding $4, 000 , 000 . 00 but less than or equal to $10 , 000 , 000 . 00 . d) TWO THOUSAND FIVE HUNDRED DOLLARS ($2 , 500 . 00 ) per $1, 000, 000 . 00 principal amount of the Bonds 2/383/014084-0006/42 7/23/91 exceeding $10,000 ,000 . 00 but less than or equal to $15, 000,000 . 00 . e) ONE THOUSAND TWO HUNDRED FIFTY DOLLARS ( $1, 250 . 00 ) per $1, 000 , 000. 00 principal amount of the Bonds exceeding $15, 000,000 . 00 . 2 . 2 Method of Payment. Provided that Contractor is not in default under the terms of this Agreement, Contractor shall be paid the Contract Sum within thirty ( 30 ) days of delivery of the bond proceeds to the Agency. If the Bonds are not issued, no fee shall be payable to the Contractor . 2 . 3 Costs Payable by the Agency. All costs associated with the issuance of the Bonds shall be paid by the Agency. The Agency shall reimburse the Contractor for Contractor ' s reasonable out of pocket expenses for Federal Express charges, travel and lodging expenses, and duplication costs (not to exceed 5¢ per page) incurred pursuant to the terms of this Agreement; provided that Contractor provides the Agency with an invoice therefor , in a form satisfactory to the Finance Director of the Agency, and such supporting documentation as may be requested by the Agency. 3 . 0 COORDINATION OF WORK 3 .1 Representative of Contractor . Rodney L. Gunn is hereby designated as being the principal and representative of Contractor authorized to act in its behalf with respect to the work and services specified herein and make all decisions in connection therewith. 3 . 2 Contract Officer . Executive Director of the Agency is hereby designated as being the representative the Agency authorized to act in its behalf with respect to the work and services specified herein and make all decisions in connection therewith ( "Contract Officer" ) . The Executive Director of the Agency shall have the right to designate another Contract Officer by providing written notice to Contractor . 3 . 3 Prohibition Against Subcontracting or Assign- ment . Contractor shall not contract with any entity to perform in whole or in part the work or services required hereunder without the express written approval of the Agency. Neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, -2- without the prior written approval of Agency. Any such prohibited assignment or transfer shall be void. 3 . 4 Independent Contractor . Neither the Agency nor any of its employees shall have any control over the manner, mode or means by which Contractor , its agents or employees, perform the services required herein, except as otherwise set forth. Contractor shall perform all services required herein as an independent contractor of Agency and shall remain under only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Agency. 4. 0 INSURANCE AND INDEMNIFICATION 4 . 1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to Agency, during the entire term of this Agreement including any extension thereof, the following policies of insurance: (a) Comprehensive General Liability Insurance . A policy of comprehensive general liability insurance written on a per occurrence basis . The policy of insurance shall be in an amount not less than either ( i ) a combined single limit of $500 , 000 . 00 , or ( ii ) bodily injury limits of $250 , 000 . 00 per person, $500, 000 . 00 per occurrence and $500 , 000 . 00 products and completed operations and property damage limits of $100,000 . 00 per occurrence and $100, 000 . 00 in the aggregate. (b) Worker ' s Compensation Insurance . A policy of worker ' s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Contractor and the Agency against any loss , claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement. ( c) Automotive Insurance . A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount -3- not less than either ( i ) bodily injury liability limits of $250 , 000 . 00 per person and $500, 000 . 00 per occurrence and property damage liability limits of $100,000 . 00 per occurrence and $250 ,000 . 00 in the aggregate or ( ii ) combined single limit liability of $500, 000 . 00 . Said policy shall include coverage for owned, non-owned, leased and hired cars . All of the above policies of insurance shall be primary insurance and shall name the Agency, its officers , employees and agents as additional insureds . The insurer shall waive all rights of subrogation and contribution it may have against the Agency, its officers , employees and agents and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty ( 30 ) days prior written notice by registered mail to the Agency. In the event any of said policies of insurance are cancelled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4. 1 to the Contract Officer . No work or services under this Agreement shall commence until the Contractor has provided the Agency with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the Agency. The Contractor agrees that the provisions of this Section 4 . 1 shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor ' s activities or the activities of any person or persons for which the Contractor is otherwise responsible. The insurance policies required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the Agency. 4 . 2 Indemnification. Contractor agrees to indemnify the Agency, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits , claims, damages to -4- persons or property, losses, costs, penalties , obligations, errors, omissions or liabilities, (herein "claims or liabilities" ) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work or services of Contractor, its agents, employees , subcontractors, or invitees , provided for herein, or arising from the negligent acts or omissions of Contractor hereunder , or arising from Contractor ' s negligent performance of or failure to perform any term, provision covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the Agency, its officers , agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the Agency, its officers , agents or employees , who are directly responsible to the Agency, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys ' fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against the Agency, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work or services of Contractor hereunder ; and Contractor agrees to save and hold the Agency, its officers, agents, and employees harmless therefrom; (c) In the event the Agency, its officers , agents or employees is made a party to any 'action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work or services of Contractor hereunder , Contractor agrees to pay to the Agency, its officers , agents or employees, any and all costs and expenses incurred by the Agency, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys ' fees. -5- 5 . 0 TERM 5 .1 Term. Unless earlier terminated in accordance with Section 5 . 3 below, this Agreement shall continue in full force and effect until the Bonds are issued, but not exceeding one year after the date of this Agreement . 5 . 2 Termination Prior to Expiration of Term. Either party may terminate this Agreement at any time, with or without cause, upon thirty ( 30 ) days ' written notice to the other party. Upon receipt of the notice of termination, the Contractor shall immediately cease all work or services hereunder except as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and Agency shall be entitled to reimbursement for any expenses which have been paid for but not rendered. 6 . 0 MISCELLANEOUS 6 . 1 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall be no discrimination against or segregation of , any person or group of persons on account of race, color, creed, religion, sex, marital status , national origin, or ancestry in the performance of this Agreement . Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color , creed, religion, sex, marital status, national origin or ancestry. 6 . 2 Non-liability of Agency Officers and Employees. No officer or employee of the Agency shall be personally liable to the Contractor , or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Contractor or to its successor , or for breach of any obligation of the terms of this Agreement . 6 . 3 Conflict of Interest . No officer or employee of the Agency shall have any financial interest, direct or indirect , in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is , directly or indirectly, interested, in violation of any State statute or regulation. The Contractor warrants that it has not paid or given and -6- will not pay or give any third party any money or other consideration for obtaining this Agreement . 6 . 4 Notice. Any notice, demand, request, consent or approval, or other communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent prepaid, first-class mail to the address set forth below: To Agency: Community Redevelopment Agency of The City of Palm Springs 3200 East Tahquitz-Canyon Road Palm Springs, CA 92262 Attn: Executive Director With Copy To: Rutan & Tucker 611 Anton Boulevard P.O. Box 1950 Costa Mesa, CA 92626 Attn: David J. Aleshire, Esq. To Contractor : Rod Gunn Associates, Inc. 3010 Old Ranch Parkway, Suite 330 Seal Beach, California 90740-2750 6 . 5 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 6 . 6 Integration; Amendment . It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations , arrangements , agreements and understandings , if any, between the parties , and none shall be used to interpret this Agreement . This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing . 6 . 7 Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not effect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives -7- either party of the basic benefit of their bargain or renders this Agreement meaningless . 6.8 Waiver . No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver . A party' s consent to or approval of any act by the other party requiring the party ' s consent or approval shall not be deemed to waive or render unnecessary the other party' s consent to or approval of any subsequent act . Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement . 6 . 9 Attorneys ' Fees . If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney ' s fees. 6 . 10 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that ( i) such party is duly organized and existing, ( ii ) they are duly authorized to execute and deliver this Agreement on behalf of said party, ( iii ) by so executing this Agreement , such party is formally bound to the provisions of this Agreement, and ( iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a pub ' c body, r orate and pol ' By: C-� Secretary E utive Director -8- 0 • APPROVED AS TO FORM: RUTAN & TUCKER i David J- eshire Agency Counsel CONTRACTOR: ROD GUNN ASSOCIATES, INC• . a California corporation By: Rodney L. Gunn Title: u f -9- EXHIBIT "A" SCOPE OF SERVICES The Contractor is to provide consulting services with respect to the preparation, sale and issuance of Revenue (Tax Allocation) Bonds for a bond pooling transaction to be issued on or before September 8, 1991 ( "Bonds" ) as more particularly set forth herein. Contractor shall perform the following services : 1. Develop a definition of the financing model for the Bonds for review by the Agency; 2 . Review ( i ) data from the Auditor ' s Office of the County of Riverside, ( ii ) all pass-through agreements relating to the Bonds, ( ii) the status of the Agency ' s Housing Set-Aside Fund and ( iv) the size of the issuance . Based upon this information, prepare tax increment projections upon which the financing will be based. 3 . Assist the Agency in the selection of necessary participants in the issuance, including the trustee for the bonds, and negotiate the fees of said participants; 4 . Review and make recommendations to the Agency regarding all documents prepared by bond counsel; 5. Draft a schedule of activities for review by the Agency and monitor the schedule to assist the Agency in meeting anticipated deadlines; 6 . Prepare the Official Statement to be issued in connection with the offering of the Bonds for review by the Agency; 7 . Mail or cause to be mailed the to prospective bidders and/or underwriter and its offering group the preliminary official statement; 8 . If the Bonds are to be awarded by a bid process , coordinate the bid opening, evaluate the bids, and make recommendations to the Agency with respect to the bids; 9 . If the Bonds are to be issued through a negotiated offering, negotiate the price of the Bonds and the underwriter ' s discount; EXHIBIT "A" TO CONTRACT SERVICES AGREEMENT Page 1 of 2 i 0 10 . Review and make recommendations to the Agency regarding the arrangements for the closing of the bond transaction and delivery of the Bonds; 11. Review and make recommendations to the Agency regarding the planned investment of the proceeds of the Bonds . EXHIBIT "A" TO CONTRACT SERVICES AGREEMENT Page 2 of 2