HomeMy WebLinkAbout03106 - MBIA MUNI FINANCIAL BOND ARBITRAGE REBATE Page 1 of 1
Kathie Hart
From: Cindy Cairns
Sent: August 22, 2012 10:19 AM
To: Kathie Hart
Subject: FW. Attached Image
Attachments: 4629_001.pdf; image001.png
Kathie...in reference to the letter attached regarding MuniFinancial...NK says that they merged with Willdan but
are operating under a different agreement, so this can be closed.
isCindy Cairns I Administrative Assistant
City of Palm Springs I Department of Finance&Treasury
3200 E.Tahquitz Canyon Way, Palm Springs,CA 92262
Office: 760.323.8229 ( Fax:760.322.8320 1 Email:Cindy.Cairns@palmspringsco.gov
Please note that City Hall is open 8 am-6 pm Monday through Thursday,and closed on Fridays at this time
From: PALM SPRINGS FINANCE [mailto.Ir3570-fin hall@ci.palm-springs ca.us]
Sent: Wednesday, August 22, 2012 7:30 AM
To: Cindy Cairns
Subject: Attached Image
V
08/22/12
I Muni Financial Services Inc.
• Arbitrage Rebate Calculations
City' s Bond Issues
AGREEMENT #3106
M05005, 5-6-92
CONTRACT SERVICES AGREEMENT FOR
ARBITRAGE REBATE CALCULATIONS
THIS AGREEMENT FOR CONTRACT SERVICES (herein
"Agreement" ) , is made and entered into by and between the
CITY OF PALM SPRINGS, (herein "City" ) , a municipal
corporation and Muni Financial Services, Inc. (MFS) (herein
"Contractor" ) . The parties hereto agree as follows :
e
1.0 SERVICES OF CONTRACTOR
1.1 Scone of Services. In compliance with all
terms and conditions of this Agreement, the Contractor shall
provide those services specified in the "Scope of Services"
attached hereto as Exhibit "A" and incorporated herein by
this reference, which services may be referred to herein as
the "services" or "work" hereunder . Contractor warrants that
all services will be performed in a competent, professional
and satisfactory manner in accordance with the standards
prevalent in the industry, and all materials will be of good
quality, fit for the purpose intended.
1.2 Contractor 's Proposal. The Scope of Services
shall include the Contractor ' s proposal or bid which shall be
incorporated herein by this reference as though fully set
forth herein. In the event of any inconsistency between the
terms of such proposal and this Agreement, the terms of this
Agreement shall govern.
1.3 Complianc!e with Law. All services rendered
hereunder shall be provided in accordance with all
ordinances, resolutions, statutes, rules, and regulations of
the City and any Federal, State or local governmental agency
having jurisdiction in effect at the time service is
rendered. '
1.4 Licenses, Permits. Fees and Assessments.
Contractor shall obtain at its sole cost and expense such
licenses , permits and approvals as may be required by law for
the performance of the services required by this Agreement.
Contractor shall have the sole obligation to pay for any
fees, assessments and taxes, plus applicable penalties and
interest, which may be imposed by law and arise from or are
necessary for the Contractor ' s performance of the services
required by this Agreement, and shall ,,,indemnify, defend and
hold harmless City against any_ such , fees, assessments, taxes
penalties or interest levied, assessed or imposed against
City hereunder.
8/276/014084-0001/904-MAS -1-
CONTRACT SERVICES AGREFYENT
1.5 Familiarity with Work. By executing this
Contract, Contractor warrants that Contractor (a) has
thoroughly investigated and considered the scope of services
to be performed, (b) has carefully considered how the
services should be performed, and (c) fully understands the
facilities, difficulties and restrictions attending
performance of the services under this Agreement. If the
services involve work upon any site, Contractor warrants that
Contractor has or will investigate the site and is or will be
fully acquainted with the conditions there existing, prior to
commencement of services hereunder . Should the Contractor
discover any latent or unknown conditions, which will
materially affect the performance of the services hereunder ,
Contractor shall immediately inform the City of such fact and
shall not proceed except at Contractor ' s risk until written
instructions are received from the Contract Officer.
1.6 Care of Work. The Contractor shall adopt
reasonable methods during the life of the Agreement to
furnish continuous protection to the work, and the equipment,
materials, papers, documents, plans, studies and/or other
components thereof to prevent losses or damages, and shall be
responsible for all such damages, to persons or property,
until acceptance of the work by City, except such losses or
damages as may be caused by City' s own negligence.
1.7 Further Responsibilities of Parties. Both
parties agree to use reasonable care and diligence to perform
their respective obligations under this Agreement. Both
parties agree to act: in good faith to execute all
instruments, prepare all documents and take all actions as
may be reasonably necessary to carry out the purposes of this
Agreement. Unless hereafter specified, neither party shall
be responsible for the :service of the other.`
1.8 Additional Services. City shall have the
right at any time during the performance of the services,
without invalidating this Agreement, to order extra work or
make changes by altering, adding to or deducting from said
work. No such extra work may be undertaken unless a written
order is first given by the Contract Officer to the
Contractor, incorporating therein any adjustment in ( i) the
Contract Sum, and/or (ii'_) the time to perform this Agreement,
which said adjustments are subject to the written approval of
the Contractor . Any increase in compensation of five percent
( 5%) or less of the Contract Sum, or in the time to perform
of one hundred eighty (180) days or less may be approved by
the Contract Officer . Any greater increases, taken e/ °itther
/ 3
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CONTRACT SERVICES AGREEMENT
separately or cumulatively must be approved by the City
Council.
1.9 Special Requirements. Additional terms and
conditions of this Agreement, if any, which are made a part
hereof are set forth in the "Special Requirements" attached
hereto as Exhibit "B" and incorporated herein by this
reference. In the event of a conflict between the provisions
of Exhibit B and any other provisions of this Agreement, the
provisions of Exhibit 3 shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered
pursuant to this Agreement, the Contractor shall be
compensated in accordance with the "Schedule of Compensation"
attached hereto as Exhibit "C" and incorporated herein by
this reference, but not exceeding the maximum contract amount
of Forty Thousand ($ 40,000.00 ) (herein
"Contract Sum" ) , except as provided in Section 1.8. The
method of compensation may include: (i) a lump sum payment
upon completion, (ii ) payment in accordance with the
percentage of completion of the services, ( iii) payment for
time and materials based upon the Contractor ' s rates as
specified in the Schedule of Compensation, but not exceeding
the Contract Sum or ( iv) such other methods as may be
specified in the Schedule of Compensation. Compensation may
include reimbursement I-or actual and necessary expenditures
for reproduction costs, transportation expense, telephone
expense, premiums for bonds and insurance, and similar costs
and expenses when and if specified in the Schedule of
Compensation.
2.2 Method of Payment. Unless some other method
of payment: is specified in the Schedule of Compensation
(Exhibit C) , in any month in which Contractor wishes to
receive payment, no later than the first (1st) working day of
such month, Contractor shall submit to the City in the form
approved by the City' s Director of Finance, an invoice for
services rendered prior to the date of the invoice. Except
as provided in Section 7 . 3, City shall pay Contractor for all
expenses stated thereon which are approved by City pursuant
to this Agreement no letter than the last working day of the
month.
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CONTRACT SERVICES AGREEMENT
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in
the performance of this Agreement .
3.2 Schedule of Performance. Contractor shall
commence the services pursuant to this Agreement upon receipt
of a written notice to proceed and shall perform all services
within the time period(s ) established in the "Schedule of
Performance attached hereto as Exhibit "D" , if any, and
incorporated herein by this reference. When requested by the
Contractor , extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the
Contract Officer but not exceeding one hundred eighty ( 180 )
days cumulatively.
3.3 Force Maieure. The time period(s) specified
in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be
extended because of any delays due to unforeseeable causes
beyond the control and without the fault or negligence of the
Contractor , including, but not restricted to, acts of God or
of the public enemy, unusually severe weather , fires,
earthquakes, floods, epidemics , quarantine restrictions,
riots, strikes, freight embargoes , wars, litigation, and/or
acts of any governmental agency, including the City, if the
Contractor shall within ten (10 ) days of the commencement of
such delay notify the Contracting Officer in writing of the
causes of the delay. The Contracting Officer shall ascertain
the facts and the extent of delay, and extend the time for
performing the services for the period of the enforced delay
when and if in the judgment of the Contracting Officer such
delay is justified. The Contracting Officer ' s determination
shall be final and conclusive upon the `'parties to this
Agreement. In no event shall Contractor be entitled to
recover damages against the City for any delay in the
performance of this Agreement, however caused, Contractor ' s
sole remedy being extension of the Agreement pursuant to this
Section.
3.4 Term. Unless earlier terminated in accordance
with Section 7 .8 of this Agreement, this Agreement shall
continue in full force and effect until completion of the
services but not exceeding one (1) year from the date hereof,
except as otherwise provided in the Schedule of Performance.
1711
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l CONTRACT SERVICES AGREEMENT
4.0 COORDINATION OF WORK
4.1 Representative of Contractor. The following
principals of Contractor are hereby designated as being the
principals and representatives of Contractor authorized to
act in its behalf with respect to the work specified herein
f and make all decisions in connection therewith:
Harry Clark
Managing Director
It is expressly understood that the experience,
knowledge, -capability and reputation of the foregoing
principals were a substantial inducement for City to enter
into this Agreement. Therefore, the foregoing principals
' shall be responsible during the term of this Agreement for
directing all activities of Contractor and devoting
sufficient time to personally supervise the services
hereunder . For purposes of this Agreement, the foregoing
' principals may not be replaced nor may their responsibilities
be substantially reduced by Contractor without the express
written approval of City.
' 4.2 Contract Officer. The Contract Officer shall
be such person as may be designated by the City Manager of
City. It shall be the Contractor ' s responsibility to assure
that the Contract Officer is kept informed of the progress of
the performance of the services and the Contractor shall
refer any decisions which must be made by City to the
Contract Officer. Unless otherwise specified herein, any
approval, of City required hereunder shall mean the approval
of the Contract Officer. The Contract Of shall have
authority to sign all documents on behalf of the City
I required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assign-
ment. The experience, knowledge, capability and reputation
of Contractor, its principals and employees were a
substantial inducement for the City to enter into this
Agreement. Therefore, Contractor shall not contract with any
other entity to perform in whole or in part the services
required hereunder without the express written approval of
the City. In addition, neither this Agreement nor any
interest herein may Ibe transferred, assigned, conveyed,
hypothecated or encumbered voluntarily or by operation of
law, whether for the benefit of- creditors or otherwise,
without the 'prior written approval of City. Transfers
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CONTRACT SERVICES AGREEMENT
restricted hereunder shall include the transfer to any person
or group of persons acting in concert of more than twenty
five percent ( 25%) of the present ownership and/or control of
Contractor , taking all transfers into account on a cumulative
basis. In the event of any such unapproved transfer,
including any bankruptcy, proceeding, this Agreement shall be
void. No approved transfer shall release the Contractor or
any surety of Contractor of any liability hereunder without
the express consent of City.
4.4 Independent Contractor. Neither the City 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 herein. City shall have no voice in the selection,
discharge, supervision or control of Contractor 's employees,
servants, representatives or agents, or in fixing their
number, compensation or hours of service. Contractor shall
perform all services required herein as an independent
contractor of City and shall remain at all times as to City a
wholly independent contractor with 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 City. City shall not
in any way or for any purpose become or be deemed to be a
partner of Contractor in its business or otherwise or a joint
venturer or a member of any joint enterprise with Contractor.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Contractor shall procure
and maintain, at its sole cost and expense, in a form and
content satisfactory to City, 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.
If the Contract Sum is $25,000 .00 or less, the
policy of insurance shall be written 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•t' li.mits of $100,000. 00 per occurrence
�711
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CONTRACT SERVICES AGREEMENT
and $100, 000 . 00 in the aggregate. If the
Contract Sum is greater than $25,000.00 but
less than or equal to $100,000 . 00, the policy
of insurance shall be in an amount not less
than either (i) a combined single limit of
$1,000,000 . 00 for bodily injury, death and
property damage or (ii) bodily injury limits
of $500,000 .00 per person, $1,000,000.00 per
occurrence and $1,000,000. 00 products and
completed operations and property damage
limits of $500,000.00 per occurrence and
$500,000. 00 in the aggregate. If the Contract
Sum is greater than $100 ,000 . 00 , the policy of
insurance shall be in an amount not less than
$5,000,000 .00 combined single limit.
(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 City 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
not less than either ( i)r 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 .
(d) Additional Insurance. Policies of such other
insurance, including professional liability
insurance, as may be required in the Special
Requirements.
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CONTRACT SERVICES AGREEMENT
All of the above policies of insurance shall be primary
insurance and shall name the City, its officers, employees
and agents as additional insureds. The insurer shall waive
all rights of subrogation and contribution it may have
against the City, 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 maf'.l to the City. 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 5 .1 to the
Contract Officer. No work or services under this Agreement
shall commence until the Contractor has provided the City
with Certificates of Insurance or appropriate insurance
binders evidencing the above insurance coverages and said
Certificates of Insurance or binders are approved by the
City.
The Contractor agrees that the provisions of this
Section 5.1 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.
In the event the Contractor subcontracts any portion of
the work in compliance with § 4.3 of this Agreement, the
contract between the Contractor and such subcontractor shall
require the subcontractor to maintain the same policies of
insurance that the Contractor is required to maintain
pursuant to this § 5.1.
5.2 Indemnification. Contractor agrees to
indemnify the City, 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
persons or property, losses, costs, penalties, obligations ,
errors, omissions or liabilities, (herein "claims or
liabilities" ) that may tie asserted or claimed by any person,
firm or entity arising out of or in connection with the
negligent performance of the work, operations or activities
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,
7 7
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CONTRACT SERVICES AGREEMENT
whether or not there is concurrent passive or active
negligence on the part of the City, its officers, agents or
employees but excluding such claims or liabilities arising
from the sole negligence or willful misconduct of the City,
its officers, agents or employees , who are directly
responsible to the City, 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 City, 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, operations or activities
of Contractor hereunder ; and Contractor agrees
to save and hold the City, its officers,
agents, and employees harmless therefrom;
(c) In the event the City, 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:, operation or activities of
Contractor hereunder, Contractor agrees to pay
to the City, its officers, agents or
employees, any and all costs and expenses
incurred by the City, its officers, agents or
employees in such action or proceeding,
including but not limited to, legal costs and
attorneys ' fees.
5.3 Performance Bond. Concurrently with execution
of this Agreement, Contractor shall deliver to City a
performance bond in the sum of the amount of this Agreement,
in the form provided by the City Clerk, which secures the
faithful performance of this Agreement, unless such
requirement is waived by the Contract Officer. The bond
shall contain the original notarized signature of an
authorized officer of the surety and affixed thereto shall be
a certified and current copy of his power of attorney. The
bond shall be unconditional and remain in force during the
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CONTRACT SERVICES AGREEMENT
entire term of the Agreement and shall be null and void only
if the Contractor promptly and faithfully performs all terms
and conditions of this Agreement .
5.4 Sufficiency of Insurer or Surety. Insurance
or bonds 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 City due to unique circumstances. In the
event the Risk Manager of City ( "Risk Manager" ) determines
that the work or services to be performed under this
Agreement creates an increased or decreased risk of loss to
the City, the Contractor agrees that the minimum limits of
the insurance policies and the performance bond required by
this Section 5 may be changed accordingly upon receipt of
written notice from the Risk Manager; provided that the
Contractor shall have the right to appeal a determination of
increased coverage by the Risk Manager to the City Council of
City within 10 days of receipt of notice from the Risk
Manager .
6.0 RECORDS AND REPORTS
6.1 Reports. Contractor shall periodically
prepare and submit to the Contract Officer such reports
concerning the performance of the services required by this
Agreement as the Contract Officer shall require.
6.2 Records. Contractor shall keep, and require
subcontractors to keep, such books and records as shall be
necessary to perform the services required by this Agreement
and enable ,the Contract Officer to evaluate the performance
of such services . The Contract Officer shall have full and
free access to such books and records at all times during
normal business hours of City, including the right to
inspect, copy, audit and make records and transcripts from
such records. Such records shall be maintained for a period
of three (3) years following completion of the services
hereunder, and the City shall have access to such records in
the event any audit is required.
6.3 Ownership, of Documents. All drawings,
specifications, reports, records, documents and other
materials prepared by Contractor, its employees,,
/ Ao/
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CONTRACT SERVICES AGREEMENT
subcontractors and agents in the performance of this
Agreement shall be the property of City and shall be
delivered to City upon request of the Contract Officer or
upon the termination of this Agreement, and Contractor shall
have no claim for further employment or additional
compensation as a result of the exercise by City of its full
rights of ownership of the documents and materials hereunder .
Any use of such completed documents for other projects and/or
use of uncompleted documents without specific written
authorization by the Contractor will be at the City' s sole
risk and without liability to Contractor , and the City shall
indemnify the Contractor for all damages resulting therefrom.
Contractor may retain copies of such documents for its own
use. Contractor shall have an unrestricted right to use the
concepts embodied therein. All subcontractors shall provide
for assignment to City of any documents or materials prepared
by them, and in the event Contractor fails to secure such
assignment, Contractor shall indemnify City for all damages
resulting therefrom.
6.4 Release of Documents. The drawings,
specifications, reports, records, documents and other
materials prepared by Contractor in the performance of
services under this Agreement shall not be released publicly
without the prior written approval of the Contract Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be
construed and interpreted both as to validity and to
performance of the parties in accordance with the laws of the
State of California. Legal actions concerning any dispute,
claim or matter arising out of or in relation to this
Agreement shall be instituted in the Superior Court of the
County of `Riverside, State of California, or any other
appropriate court in such county, and Contractor covenants
and agrees to submit to the personal jurisdiction of such
court in the event of such action.
7.2 Disputes. In the event of any dispute arising
under this Agreement, the injured party shall notify the
injuring party in writing of its contentions by submitting a
claim therefor. The injured party shall continue performing
its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of
service of such notice and completes: the cure of such default
within forty-five (45) hays after service of the notice, or
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CONTRACT SERVICES AGREEMENT
such longer period as may be permitted by the injured party;
provided that if the default is an immediate danger to the
health, safety and general welfare, such immediate action may
be necessary. Compliance with the provisions of this Section
shall be a condition precedent to termination of this
Agreement for cause and to any legal action, and such
compliance shall not be :a waiver of any party' s right to take
legal action in the event that the dispute is not cured,
provided that nothing herein shall limit City' s right to
terminate this Agreement without cause pursuant to Section
7 .8.
7.3 Retention of Funds. Contractor hereby
authorizes City to deduct from any amount payable to
Contractor (whether or not arising out of this Agreement) (i)
any amounts the payment of which may be in dispute hereunder
or which are necessary to compensate City for any losses,
costs, liabilities, or damages suffered by City, and ( ii) all
amounts for which City may be liable to third parties, by
reason of Contractor ' s acts or omissions in performing or
failing to perform Contractor ' s obligation under this
Agreement. In the event that any claim is made by a third
party, the amount or validity of which is disputed by
Contractor, or any indebtedness shall exist which shall
appear to be the basis for a claim of lien, City may withhold
from any payment due, without liability for interest because
of such withholding, an amount sufficient to cover such
claim. The failure of City to exercise such right to deduct
or to withhold shall not:, however, affect the obligations of
the Contractor to insure, indemnify, and protect City as
elsewhere provided herein.
7.4 Waiver. No delay or omission in the exercise
of any right or remedy by a nondefaultirig 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.
7.5 Rights and Remedies are Cumulative. Except
with respect to rights and remedies expressly declared to be
exclusive in this Agreement, the rights and remedies of the
parties are cumulative and the :exercise by either party of
one or more of such rights or remedies shall not preclude the
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CONTRACT SERVICES AGREEMENT J 7/l l
exercise by it, at the Name or different times, of any other
rights or remedies for the same default or any other default
by the other party.
7.6 Legal Action. In addition to any other rights
or remedies, either party may take legal action, in law or in
equity, to cure, correct or remedy any default, to recover
damages for any default, to compel specific performance of
this Agreement, to obtain declaratory or injunctive relief,
or to obtain any other remedy consistent with the purposes of
this Agreement.
7.7 Liciuidated Damages. Since the determination
of actual damages for any delay in performance of this
Agreement would be extremely difficult or impractical to
determine in the event of a breach of this Agreement, the
Contractor and its sureties shall be liable for and shall pay
to the City the sum of (Refer to Exhibit "B")
($ ) as liquidated damages for each working day of
delay in the performance of any service required hereunder ,
as specified in the Schedule of Performance (Exhibit "D" ) .
The City may withhold from any monies payable on account of
services performed by the Contractor any accrued liquidated
damages.
7.8 Termination Prior to Expiration Of Term. This
Section shall govern any termination of this Agreement except
as specifically provided in the following Section for
termination for cause. The City reserves the right to
terminate this Agreement: at any time, with or without cause,
upon thirty ( 30 ) days ' written notice to Contractor, except
that where termination is due to the fault of the Contractor,
the period of notice may be such shorter, time as may be
determined by the Contract Officer. In addition, the
Contractor reserves the right to terminate this Agreement at
any time upon, with or without cause, upon days '
written notice to City, except that where termination is due
to the fault of the City, the period of notice may be such
shorter time as the Contractor may determine. Upon receipt
of any notice of termination, Contractor shall immediately
cease all services hereunder except such 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 for any
services authorized by the Contract Officer thereafter in
accordance with the Schedule of Compensation (Exhibit "C" ) or
such as may be approved by the Contract Officer, except as
provided in Section 7. 3 . In the event of termination without
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CONTRACT SERVICES AGREEMENT
cause pursuant to this Section, the terminating party need
not provide non-terminating party with the opportunity to
cure pursuant to Section 7.2.
7.9 Termination for Default of Contractor. If
termination is due to the failure of the Contractor to
fulfill its obligations under this Agreement, City may, after
compliance with the provisions of Section 7.2, take over the
work and prosecute the same to completion by contract or
otherwise, and the Contractor shall be liable to the extent
that the total cost for completion of the services required
hereunder exceeds the compensation herein stipulated
(provided that the City shall use reasonable efforts to
mitigate such damages) , and City may withhold any payments to
the Contractor for the purpose of setoff or partial payment
of the amounts owed the City as previously stated.
7.10 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 . Attorney 's fees shall include attorney ' s
fees on any appeal, and in addition a party entitled to
attorney' s fees shall be entitled to all other reasonable
costs for investigating such action, taking depositions and
discovery and all other necessary costs the court allows
which are incurred in such litigation. All such fees shall
be deemed to have accrued on commencement of such action and
shall be enforceable whether or not such action is prosecuted
to judgment .
8.0 ` CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable
to the Contractor, or any successor in interest, in the event
of any default or breach by the City 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.
8.2 Conflict of Interest. No officer or employee
of the City 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
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CONTRACT SERVICES AGREEMENT
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
will not pay or give any third party any money or other
consideration for obtaining this Agreement.
8.3 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 insure 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.
9.0 MISCELLANEOUS ]PROVISIONS
9.1 Notice. Any notice, demand, request, docu-
ment, consent, approval, or 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 by prepaid, first-class mail, in the case of the
City, to the City Manager and to the attention of the
Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743 , Palm
Springs, California 92263, and in the case of the Contractor,
to the person at the address designated on the execution page
of this Agreement. Either party may change its address by
notifying the other party of the change!• of address in
writing. Notice shall be deemed communicated at the time
personally delivered or in seventy-two (72) hours from the
time of mailing if mailed as provided in this Section.
9.2 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.
9.3 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,
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CONTRACT SERVICES AGREEMENT
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.
9.4 Severability. In the event that any one or
more of the phrases, sentences, clauses, paragraphs, or
sections contained in 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
phrases, sentences, clauses, paragraphs, or sections 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 either party of the basic benefit of
their bargain or renders this Agreement meaningless.
9.5 Corporates 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 stated below for
execution by the Mayor.
CITY OF SPR GS,
a mun cipal corpo on
Dated: / i/ ,%?�_ By:
Cit anager
ATTEST:
7Z-
Dated: ��i %>i By: `
Clerk
FOR MUNI FINANCIAL SERVICES , INC.
Dated: By :
By :
Manrging Director
-16-
CONTRACT SERVICES AGREEMENT l � /
APPROVED AS TO FORM:
> RUTAN & TUCKER
Dated: a/ ,7,J %Z --7=�'t/d�?��3/�r1L�F
David J. AYe hire
City Attorney
APPROVED AS TO CONTENT:
Dated: 2 • By: I' �e« ��
Director of Finance
and Treasurer
APPROVED BY CITY COUNCIL:
Dated: By: \ ✓
Title: /"N'
Motion No.
CONTRACTOR: MUNI FINANCIAL SERVICES, INC.
- —F
i' . 7�`
--�
P' L ' /
Dated: r�� - By r
Name: Harry Clark
Title: Man 8•in2 Director
By:
Name:
Title:
Address: 42217 Rio Nedo
Second Floor
Temecula, CA 92590
BY F, ,�'„ r f '•i ti:T ,r k .
-17- s'�_3Y � ..
EXHIBIT "A"
SCOPE OF SERVICES
1 . , General Memorandum -- Contractor will prepare a General
Memorandum which summarizes all applicable rebate
requirements , including an analysis of the most recent
U. S. Treasury Department Regulations . This memorandum
will be general in nature and is intended to provide
the City with an overall understanding of the arbitrage
rebate requirements.
2 . Initial Report - Contractor will prepare an Initial
Report summarizing the application of the Internal Revenue
Code of 1986 as amended, all pertinent Treasury Department
Rulings, Regulations ; Announcements or Guidelines , and
all pertinent court cases or tax rulings which may be
applicable to the specific funds or accounts established
pursuant to the Trust Indenture and/or Resolution.
This report will indicate, with respect to each fund
and account , whether it is currently in compliance with
existing arbitrage regulations and whether the City
can reasonably and legally reinvest any available funds
to obtain a higher yield on investments .
. 3,. Semi-Annual Expenditure Test Report. The penalty election
exception does not require rebate on construction funds
if the issuer elects to pay a penalty in lieu of rebate,
in case the two year spend-out schedule for the
construction bonds is not met . For each six month period,
commencing with the date of issuance , Contractor will
provide calculations to determine that the expenditure
test has been met , and what penalties , if any, are due .
Contractor will acquire and prepare all necessary forms
for the City ' s execution. Contractor will be available
to present the findings of the report and to review
its methodology with City staff as needed.
Reserve Fund earnings will be subject to rebate
requirement beginning with the end of the two year
expenditure period (or from the date of issuance, if
the issuer elects to exclude interest earnings on any
reasonably required reserve fund) .
4 . Annual Rebate Report - Each year Contractor will prepare
an Annual Rebate Report identifying any rebate amount
along with the assumptions used in the calculation.
. (Continued on next/ page)
EXHIBIT "A"
TO CONTRACT SERVICES AGREEMENT
EXHIBIT "A" (Continued)
SCOPE OF SERVICES
Contractor will be available to present the findings
of the report and to review its methodology with City
Staff as needed. Contractor will also revise its reports
if any portion of the calculation methodology changes
in future years. Contractor will summarize arbitrage
monitoring practices and the City ' s compliance with
legislative changes.
5. Five Year Aggregate Report - On the fifth year of each
bond issue Contractor will prepare an aggregate report
summarizing the previous five years of rebate
calculations. Contractor will acquire and prepare all
necessary rebate foams for the City ' s execution . The
report will also include information contained in the
Annual Rebate Reports as outlined above.
6 . Opinion of Bond Counsel - Each report will be prepared
in a manner which allows the City ' s bond counsel (or
Samuel Sperry of Sturgis , Ness, Brunsell and Sperry)
to render an opinion that the issuer has not invested
in "prohibited investments. " Contractor will be available
to assist bond counsel in the preparation of this opinion.
7. Regulatory Updates - Contractor will provide timely
updates summarizing all newly issued Regulations, Rulings ,
Court Decisions and U . S . Treasury Department Announcements
regarding rebate rules , calculation of arbitrage and
all related subjects . These updates will detail the
specific application of each change to the bond issue(s)
in question. '
8 . Audit Support - If Contractor ' s services are required
for an audit , a member of its staff will be available
for interpretation of the arbitrage rebate liability
computations. Contractor will provide all documents
and supporting materials which were used to prepare
the report . Contractor ' s fees for this service would
be charged at the then current hourly rate. The current
hourly rates are shown on Exhibit "C" .
EXHIBIT "A"
TO CONTRACT SERVICES AGREEMENT
EXHIBIT "B"
SPECIAL REQUIREMENTS
1 . Professional Errors and Omissions Insurance - A policy
of professional errors and omissions insurance in an
amount not less than $1 ,000 , 000. 00 . Said insurance
shall be maintained in effect for a period of five (5)
years after the completion of the services to be provided
herein; provided that said insurance is available on
commercially reasonable terms .
2. The requirements under Section 5 . 3, Performance Bond
and Section 7.7, Liquidated Damages , are waived. These
issues are adequately covered by the Errors and Omissions
insurance.
EXHIBIT "B"
TO CONTRACT SERVICES AGREEMENT
EXHIBIT "C"
SCHEDULE OF COMPENSATION
Contractor will perform arbitrage rebate services for an
annual fee of:
$1 , 500/bond year 1 - 3 bond issues
$1 , 250/bond year 4 - 8 bond issues
$1 , 000/bond year 9 + bond issues
$ 750/bond year issues invested exclusively
in Fidelity Investments or
the Franklin Group of Funds
A bond year is defined as a twelve month period beginning
on the issue date and ending on the calendar day prior to
the issue date the following year . The City will not be
charged for a full bond year if the original date of an
issue is less than six months from the calculation period.
Contractor' s charges include at least one meeting each year.
The City of Palm Springs shall also reimburse Contractor
for customary out-of-pocket expenses not to exceed $200
annually.
Additional services will be charged at Contractor ' s then
current hourly rates as identified below. These prices
pertain to calculations performed on both current and future
bond issues .
Directors $125 . 00
Senior Associates 85 . 00
Associates 65. 00
Data Entry/Secretarial 35. 00
ABANDONMENT
In the event that this project is abandoned prior to its
completion, the City will pay Muni Financial Services, Inc .
a fee equal to the reasonable value of said services .
Reasonable value shall be determined by using the then current
hourly rates for Contractor ' s services.
The project may be abandoned at any time by the City . Muni
Financial Services , Inc . may cancel its obligation under
this Contract by providing thirty (30) days notice in writing
to the City of Palm Springs .
(Continued on next page)
EXHIBIT "C"
TO CONTRACT SERVICES AGREEMENT
EXHIBIT "C" (Continued)
SCHEDULE OF COMPENSATION
PAYMENT FOR SERVICES
Payment for services rendered pursuant to this Contract
shall be made within thirty (30) days of the submittal of
an invoice by Muni Financial Services , Inc . Invoices for
services will be submitted to the City on a monthly basis.
In the event of abandonment by either party , payment for
services rendered will be due within thirty (30) days of
receipt of the final invoice.
EXHIBIT "C"
TO CONTRACT SERVICES AGREEMENT
/
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
The arbitrage rebate calculations for each bond year will
be completed no later than sixty (60) days following the
anniversary of each bond issue, except for the fifth year
of each bond issue , which will be completed no later than
thirty (30 days) following the anniversary of each bond
issue.
EXHIBIT "0"
TO CONTRACT SERVICES AGREEMENT