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HomeMy WebLinkAboutURBAN FUTURES, INC. (2)INSURAN"E.ONr WORK KIAY UNTIL INSURANCE EKPIP,- ' p-,/II/to7o CLERK OF COL1N ; !. DATE �•,�`\�rosiP �ro2 a> AGREEMENT FOR PROVISION OF BOND CONTINUING DISCLOSURE SERVICES THIS AGREEMENT is made and entered into on this 90 day of December, 2019 by and between Urban Futures, Inc., a California corporation ("Consultant"), and the City of Santa Ana, a charter -n city and municipal corporation organized and existing under the Constitution and laws of the State �cc of California ("City"). T RECITALS C U. >> A. The City desires to retain a consultant having special skill and knowledge in the field of municipal financial services relating to bond continuing disclosure requirements. J B. Consultant represents that it is able and willing to provide such services to the City and has provided said services with the City under Agreement #N-2017-206 which expired on September 16, 2019, C. The parties seek to continue services from Agreement #N-2017-206 to complete additional services required under the prior Agreement and provide additional services. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform municipal financial services relating to bond continuing disclosure requirements as set forth in the Scope of Work, attached hereto as Exhibit A, and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The annual sum to be expended under this Agreement shall not exceed $4,375. b. City agrees to pay Consultant for any services performed from September 16, 2019 to the effective date of the Agreement as detailed in Section 3, below. c. Payment by City shall be made within 45 days (forty-five) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. Page I of 8 #20008v1 N-2019-288 3. TERM This Agreement shall commence on the date first written above and continue through June 30, 2020, unless terminated earlier in accordance with Section 14, below, The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City ,s sole risk. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below, a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City , its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to Page 2 of S 420008vt bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City ; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance, In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability fbr worker's compensation or to undertake self- insurance, Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: i. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. Ill. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City . iv. Consultant shall supply City with a fully executed additional insured endorsement. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City is election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of tenrination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City . INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the Page 3 of 8 u20008vi negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City , including fees and costs for special counsel to be selected by the City , regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 9. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is.reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City . Page 4 of 8 420008vd 10. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 11. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the rectuibnent, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 12, EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms ofthis Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City, Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City 'a ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 14, TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prim to receipt of such notice of termination, subject to the following conditions: Page S of 8 ff20008v1 a, As a condition of such payment, the Executive Director may require Consultant to 'deliver to the City all work products) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 15. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies, 16. JURISDICTION - VENUE This Agreement has beenexecuted and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California, Both parties further agree that Orange County, California, shall be the venue'for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement, 17. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the Utdted States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions, Said inability shall be cause for termination of this Agreement. 18. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if folly set forth in the body of this Agreement. Page 6 of 8 #20008vl 19, NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be In writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax; 714- 647-6956 With courtesy copies to: Executive Director Finance and Management Services Agency City of Santa Ana 20 Civic Center Plaza (Ivl-17) P.O. Box 1988 Santa Ana, California 92702 Fax:714-647-5414 To Consultant: Urban Futures, Inc. Michael P. Busch, CEO 3111 North Tustin, Suite 230 Orange, CA 92865 Fax:714-283-5464 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on'the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. N200080 Page 7 of 8 EXHIBIT "A" SCOPE OF WORK CONTINUING DISCLOSURE ANNUAL REPORTING The CONSULTANT will be expected to provide full annual continuing disclosure reporting for the CITY'S outstanding bond transactions as required by the Securities Exchange Commission's Rule 15c2-12 and in accordance with the specific disclosure reporting requirements detailed in each respective bond transcript. Specifically, CONSULTANT will: 1. Collect the necessary financial and statistical information necessary from CITY staff,,auditors or any other source as required. 2. Transmit the annual report for each bond transaction listed below to the Municipal Securities Rulemaking Board's (MSRB) nationally recognized data repository known as EMMA. The CONSULTANT will provide Services as described in this agreement for the following bond transaction(s): $15,690,000 SANTA ANA FINANCING AUTHORITY SANTA ANA FINANCING AUTHORITY CITY OF SANTA ANA CITY OF SANTA ANA ASSESSMENT DISTRICT NO.2015-01 (Warner Industrial Community) CITY OF SANTA ANA CITY OF SANTA ANA CITY OF SANTA ANA Gas Tax Revenue Refunding Bands, Series 2019 Services for future bond transactions may be added to this project with the mutual agreement of the CITY and the CONSULTANT. ANNUAL DEBT TRANSPARENCY REPORTING The CONSULTANT will be expected to provide full annual debt transparency reporting to the California Debt and Investment Advisory Commission (CDIAC) for the CITY'S outstanding bond transactions as required by Government Code section 8855(k). Specifically, CONSULTANT will: 1. Collect the necessary information relating to Bond Proceeds for each bond transaction listed below from CITY staff or the assigned Trustee. 2. File the annual debt transparency report with CDIAC through their online reporting system, The CONSULTANT will provide Services as described in this agreement for the following bond transaction(s): $ParTSD CITY OF SANTA ANA Gas Tax Revenue Refundin Bonds Series 2029 2 EXHIBIT " B" COMPENSATION RATES AND CHARGES CONTINUING DISCLOSURE ANNUAL REPORTING One Time Set up Fee (database set-up)..................................:...................waived Dissemination of Reports ..... ....— ..........................................included in annual fee Online Publication of Reports .................................................Included in annual fee Significant Event Monitoring and Notice Preparation ...................Included in annual fee Preparation of Continuing Disclosure Annual Report as stated below (annual fee per issue to satisfy all requirements): 9-M Bond Ism es $15,690,000 SANTA ANA FINANCING AUTHORITY SANTA ANA FINANCING AUTHORITY CITY OF SANTA ANA CITY OF SANTA ANA ASSESSMENT DISTRICT NO.2015.01 ( Warner industrial Community) CITY OF SANTA ANA CITY OF SANTA ANA Jkn„ ngal Feq CITY OF SANTA ANA Gas Tau Revenue RefundingBonds, Series 2019 $G00 Total Annual Fee $4,375 3 IT?QIt�'TFi .'Ilt,Ri}7!ii Supplemental Reports information/tables are to be supplied by UFI: $12S per hour. Not to exceed amount can be provided when No additlanal cost ifame ndmant information/tables are supplled by the City, If amendment Reports Information/tables are to be supplied by UFI: $125 per hour, Not to exceed amount can be provided when Urban Futures, Inc. provides real-time monitoring of all bond ratings. This service is included In each bond's annual fee. Notiilcation to the City of all ratings changes is guaranteed to be made prior to the MSRB's 1110 Business Day" rule. UFI will draft and post to EMMA on the City's behalf any two material event notices per Of Material Ever bond Issue free of charge each year, A charge of $125 per material event for drafting and posting is Incurred thereafter. If One material event affects more then one bond issue, the fee will only be $125 total, regardless of number of notices drafted/posted. In the case of a draw on Debt service Reserves, UFI will * Hourly Fees proposed as Below: CEO/President $245 Managing Principal $225 Principal $195 Associate $175 Analyst $125 Assistant/Clerical $so ANNUAL_ DEBT TRANSPARENCY REPORTING Preparation of Annual Debt Transparency Reports as stated below (annual fee per issue to satisfy all requirements): First Year AnnualYffle Ci Bon W.q� Annual Fee fit F1F s Year Par TOO CITY OF SANTA ANA Gas Tax Revenue Refundin Bonds Serles 2819 — $600 $175 Total Annual Fee $6Qp $175 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Daisy Gomez �. Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: Kathryn Do s, CPA Executive Director Finance and Management Services Agency #20008vi CITY Manager 02-16 URBAN FUTURES, Mi6ael P. Busch Chief Executive Officer Page 8 of 8 CERTIFICATE OF LIABILITY INSURANCE Eau I$ WAIVED, So Oat to tho tOrms and Michael GOOV6Ineuraneo Agenoy 32302 Coast Hwy Ste 200 Laguna Reach, CA 92081 UR19AN FUTURES, INC, dba I$OM ADVISORS 178219,17TH ST. STE 246.266 (TEND OR ALTAR Tfie CgVEF A CONTRACT D6TwgEN THE may raqulre an endorsement. A statement on I7 Y1 E WM50RaNCE I __.�.::�..,.^.�::.............. eR yr F- rnn.r O COMMaR61J1L8ENgRAf LIABILITY ..9212712tl20 LIMITS A ,,,.,,•,,,,,� OLAIMS.MAOE N) OCCUR Y Y CP03104222 g212l1'&01g. CH, CCU ENce w 1.Q ifQ. _•���• � 6E' . c 1,0,0,000 m EXP GDP ara"00 $ 60010 ' _ � PERSONALbA0V7NJURY CENERALAGOREGATe- $ 1W= DDO, ._.. 0 'LAOgRE��G"_"��A�_�T"pI, LpIMITAP LIE9,fleR; M PDUOY L..�.I pfa, LOC A„Mqu'u00 R. 'P 'U aP IO.,, PAO Not'.Coverod " 'AU;TCMODI4A'MA016TY $ .a AAnNYNN.9UTO .Ir, MEI 001 L .L 9 AW09 CrNLY S�I OESpULEO X A �0 OWNED DS •-' 606900g24 Gg111'/ROAB 031111;2(i 60DILYiNJURY(Pat 001a0n) 00 114Y NJU(iYA jpereoWtl9nl) $ t . 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