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HomeMy WebLinkAboutC-2920(B) - Agreement (for Special Tax Consulting Service for CIOSA)6 0 AGREEMENT BETWEEN CLIENT AND WILLDAN ASSOCIATES THIS AGREEMENT IS MADE AND ENTERED INTO this 3o +' day of ` ?u., e , 19-2 . by and between WILLDAN ASSOCIATES, hereinafter referred as CONSULTANT, whose address is: 888 S. West Street, Suite 300, Anaheim, CA 92802 and City of Newport Beach, hereinafter referred to as CLIENT, whose address is: 3300 Newport Boulevard, Newport Beach, CA 92659. CLIENT AND CONSULTANT AGREE AS FOLLOWS: CLIENT intends to provide Special Tax Consulting services for the City of Newport Beach Improvement District No. 95 -1 ( CIOSA). CONSULTANT agrees to perform the following Special Tax Consulting Services: The City of Newport Beach, in forming this special improvement district, needs to verify that the special tax revenue projected for the District will exceed the debt service requirement for each year the bonds are outstanding. The following services will be provided by CONSULTANT to assist the City in meeting this requirements for Special Improvement District No. 95 -1. 1. CONSULTANT will review and gain an understanding of the Rate and Method of Apportionment of Special Tax that is proposed for the CIOSA District. 2. CONSULTANT will determine the projected special tax revenues by applying the Rate and Method of Apportionment to the development expectations as provided by the Developer or as shown in an absorption study. 3. CONSULTANT will determine the projected maximum annual debt service requirement as supplied through a debt service schedule from the underwriter. 4. CONSULTANT will compare the special tax revenues to the debt service requirement to verify that the Special Tax Coverage exceeds 110 percent as fully defined in the Resolution Authorizing the Issuance of Bonds for the CIOSA District. CONSULTANT will also examine the effects of varying development scenarios. 5. CONSULTANT will distribute Special Tax Coverage computations to the project team for review and comment. CONSULTANT will attend meetings as needed during this process. 6. Upon evidence that the Special Tax Coverage computations show that coverage exceeds 110 percent, CONSULTANT will provide a Special Tax Consultant Certificate confirming adequacy of special tax coverage to meet debt service requirements. CLIENT agrees to compensate CONSULTANT for such services at a fixed fee of $7,500, billed monthly on a percent complete basis. PROVISIONS OF AGREEMENT CLIENT and CONSULTANT agree that the following provisions shall be part of their Agreement: 1. This Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of CLIENT and CONSULTANT. 2. This Agreement shall not be assigned by either CLIENT or CONSULTANT without the prior written consent of the other. 3. This Agreement contains the entire Agreement between CLIENT and CONSULTANT relating to the project and the provision of services to the project. Any prior Agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. Subsequent modifications to this Agreement shall be in writing and signed by both CLIENT and CONSULTANT. , 4. CONSULTANT's waiver of any term, condition or covenant, or breach of any term, condition or covenant, shall not constitute the waiver of any other term, condition or covenant or the breach of any other term, condition or covenant. 5. If any term, condition or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be valid and binding on CLIENT and CONSULTANT. 6. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 7. All original papers, documents, drawings, and other instruments of service of CONSULTANT and copies thereof, produced by CONSULTANT pursuant to this Agreement, except documents which are required to be filed with public agencies, shall remain the property of CONSULTANT and may be used by CONSULTANT without the consent of CLIENT. 8. CLIENT acknowledges that its right to utilize the services and instrument of services provided pursuant in this Agreement will continue only so long as CLIENT is not in default pursuant to the terms and conditions of this Agreement and CLIENT has performed all obligations under this Agreement. CLIENT further acknowledges that CONSULTANT has the unrestricted right to use the services provided to this Agreement. 9. CLIENT and CONSULTANT agree to cooperate with each other in every way on the project. 0 0 10. Upon written request, CLIENT shall execute and deliver, or cause to be executed and delivered, such additional instruments, document, governmental fees, and charges which are necessary to perform the terms of this Agreement. 11. CLIENT agrees not to use or permit any other person to use instruments of service prepared by CONSULTANT, which instruments of service are not final and which are not signed, stamped, or sealed by CONSULTANT. CLIENT agrees to be liable and responsible for any such use of nonfinal instruments of service not signed, stamped, or sealed by CONSULTANT and waives liability against CONSULTANT for their use. CLIENT further agrees that final instruments of service are for the exclusive use of CLIENT and may be used by CLIENT only for the project described on the face hereof. Such final plans, drawings, or work product may not be changed nor used on a different project without the written authorization or approval by CONSULTANT. Any such unauthorized reuse shall be at CLIENTS's sole risk and CLIENT shall defend, indemnify and hold harmless CONSULTANT from any and all claims, suits, judgments, liabilities, and costs of defense, including attorneys fees, resulting therefrom. 12. CONSULTANT has a right to complete all services agreed to be rendered pursuant to this Agreement. In the event this Agreement is terminated before the completion of all services, unless CONSULTANT is responsible for such early termination, CLIENT agrees to release CONSULTANT from all liability for work performed. 13. CONSULTANT shall be entitled to immediately and without notice, suspend the performance of any and all of its obligations pursuant to this Agreement if CLIENT files a voluntary petition seeking relief under the United States Bankruptcy Code or if there is an Involuntary Bankruptcy Petition filed against CLIENT in the United States Bankruptcy Court, and that petition is not dismissed within fifteen (15) days of its filing. Any suspension of services made pursuant to the provisions of this paragraph shall continue until such time as this Agreement has been fully and properly assumed in accordance with the applicable provisions of the United States Bankruptcy Code and in compliance with the final order or judgment issued by the Bankruptcy Court. 14. All fees and other charges will be billed monthly and shall be due at the time of billing unless otherwise specified in this Agreement. CLIENT agrees to make a good faith effort to pay CONSULTANT within 30 days after invoices are rendered. CLIENT agrees that the CONSULTANT shall have the right to charge interest in the amount of one percent (1 %) each month applied to all invoiced amounts outstanding for more than 60 days. 15. CLIENT agrees that if CLIENT requests in writing, services not specified pursuant to the scope of services description within this Agreement, CLIENT agrees to pay for all such additional services as extra work. 16. In the event all or any portion of the work prepared or partially prepared by CONSULTANT be suspended, abandoned, or terminated, CLIENT shall pay CONSULTANT for all fees, charges, and services provided for the project, to the date of termination, not to exceed any contract limit specified herein. CLIENT acknowledges if the project work is suspended and restarts, there will be additional charges due to suspension of the work which shall be paid for by CLIENT as extra work. 17. CONSULTANT is not responsible for delay caused by activities or factors beyond CONSULTANT's reasonable control, including but not limited to, delays by reason of strikes, lockouts, work slowdowns, or stoppages, accidents, acts of God, failure of CLIENT to furnish timely information, or approve or disapprove CONSULTANT's work promptly, faulty performance by CLIENT or other contractors or governmental agencies. When such delays beyond CONSULTANT's reasonable control occur, CLIENT agrees CONSULTANT is not responsible in damages nor shall CONSULTANT be deemed to be in default of this Agreement. 18. In the event that either party institutes a suit against the other, either by complaint or by way of cross-complaint, including a cross-complaint for indemnity, for alleged negligence, error, omission, or other failure to perform, the losing party will pay the prevailing party all costs and expenses of defense. 19. CLIENT agrees that in the event either party institutes litigation to enforce or interpret the provisions of this Agreement, such litigation is to be brought and adjudicated in the appropriate court in the County in which CONSULTANT's principal place of business is located, presently in Orange County, California, and CLIENT waives the right to bring, try, or remove such litigation to any other county or judicial district. Work shall be deemed to have been performed in such office. 20. CLIENT acknowledges that CONSULTANT is not responsible for the performance of work by third parties including, but not limited to, the construction contractor and its subcontractors. IN WITNESS WHEREOF, the parties hereby execute this Agreement upon the terms and conditions stated above and on the date and year indicated above. Executed this day of , 19_ in the City of Newport Beach, State of California. WILLDAN ASSOCIATES BY Gary P. Dysart TITLE President, CEO AGR5\6 CITY OF NEWPORT BEACH BY Dennis Danner TITLE Director of Finance