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HomeMy WebLinkAboutC-6261 - Agreement for Consulting ServicesDAVID TAUSSIG Public Finance and Urban Economics 1301 Dove Street, Suite 600 Tel (949) 955 -1500 Newport Beach, CA 92660 Fax (949) 955 -1590 AGREEMENT FOR CONSULTING SERVICES THIS AGREEMENT is made and entered into this day of June 2003, by and between City of Newport Beach at 330 Newport Blvd., Newport Beach, CA 92658 -8915 herein called "Client," and David Taussig and Associates, Inc. at 1301 Dove Street, Suite 600, Newport Beach, CA 92660, herein after called "Consultant." The Client and the Consultant in consideration of the mutual promises and conditions herein contained agree as follows. ARTICLE I TERM OF CONTRACT Section 1.1 This agreement shall become effective on the date stated above and will continue in effect until the earlier of (i) June 30, 2004 or (ii) until terminated as provided in Article 6 below. ARTICLE II SERVICES TO BE PERFORMED BY CONSULTANT Section 2.1 Consultant agrees to perform the professional services for the Client and to deliver the work products to the Client as described in the Scope of Work statement attached as Exhibit "A" hereto. Such professional services and work products, as from time to time modified in accordance with Section 2.3 hereof, are collectively referred to as the "Consulting Services. " Section 2.2 Consultant will determine the method, details and means of performing the Consulting Services. Consultants may, at Consultants' own expense, employ such assistance as it deems necessary to perform the Consulting Services required by Client under this Agreement. Consultants shall conduct research and arrive at conclusions with respect to their rendition of information, advice, recommendation or counsel independent of the control and direction of the Client, other than normal contract monitoring. All computer software (including without limitation financial models, compilations of formulas and spreadsheet models), inventions, designs, programs, improvements, processes and methods (collectively, the "Proprietary Models ") used or developed by DTA in performing its work is proprietary and shall remain property owned solely by, or licensed by a third party to DTA. Client acknowledges and agrees that the consideration paid by Client herein only entitles Client to a license to use the hard copy or electronically transmitted reports generated pursuant to the Consulting Services and that any Proprietary Model that Consultant uses to generate such reports is owned by, or is duly licensed from a third party to Consultant and is not being provided to Client hereunder. Client acknowledges that DTA may have used reports and analyses that DTA authored for other clients as base works or templates for the reports and analyses prepared for Client pursuant to this Newport Beach • Riverside . San Ramon Agreement, and Client acknowledges and agrees that DTA has the right to use the reports and analyses that it authors pursuant to this Agreement as base works or templates for reports and analyses that DTA authors for DTA's other clients, provided, however that DTA shall not use any confidential information provided by Client in such future reports and analyses. Client acknowledges and agrees that DTA has spend substantial time and effort in collection and compiling data and information (the "Data Compilations ") in connection with the Consulting Services and that such Data Compilations may be used by DTA for its own purposes, including, without limitation, sale or distribution to third parties; provided, however, that DTA will not sell or distribute any of Client's confidential information that may be contained in such Data Compilations, unless such confidential information is used only on an aggregated and anonymous basis. Section 2.3 Any proposed changes in the Consulting Services hereunder shall be submitted to the other party hereto, and any such changes agreed to by the parties shall be reflected in an amendment to Exhibit "A" in accordance with Section 7.2 hereto. Section 2.4 Nothing in this Agreement shall give the Consultant possession of authority with respect to any Client decision beyond the rendition of information, advice, recommendation or counsel. ARTICLE III COMPENSATION Section 3.1 Client agrees to pay Consultant for its Consulting Services a professional fee computed according to the Fee Schedule attached as Exhibit "B" hereto. Client acknowledges and agrees that portions of Consultant's professional fees and expenses were incurred by Consultant prior to the execution of this Agreement (the "Pre- Agreement Fees ") and Client agrees to pay such Pre - Agreement Fees in accordance with this Agreement. Section 3.2 The Client shall reimburse the Consultant for Consultant's out -of- pocket expenses plus a 15 % administrative charge. Expenses shall include all actual expenditures made by Consultant in the performance of any Consulting Services undertaken pursuant to the Agreement, including, without limitation, the following expenditures: (a) Cost of clerical assistance @ $35.00 per hour, including typing, collation, printing and copying, plus copier and photography costs, including photographic reproduction of drawings and documents. (b) Transportation costs, including mileage for the use of personal automobiles at the prevailing IRS standard rate, rental vehicles, lodging and regularly scheduled commercial airline ticket costs. (c) Courier services, facsimile, and telephone expenses. Section 3.3 On or about the first two weeks of each month during which Consulting Services are rendered hereunder, Consultant shall present to Client an invoice covering the current City of Newport Beach Page 2 Assessment Rebate Consulting Services June 25, 2003 Consulting Services performed and the reimbursable expenses incurred pursuant to this Agreement and exhibits thereto. Such invoices shall be paid by Client within thirty (30) days of the date of each invoice. A 1.2 % charge may be imposed against accounts which are not paid within 30 days of the date of each invoice. Section 3.4 The maximum total fee amount set forth in Exhibit "B" may be increased as a result of any expansion of the Consulting Services to be rendered hereunder pursuant to Section 2.3 or as provided in Exhibit "A" hereto. Section 3.5 Records of the Consultant's costs relating to (i) Consulting Services performed under this Agreement and (ii) reimbursable expenses shall be kept and be available to the Client or to Client's authorized representative at reasonable intervals during normal business hours. ARTICLE IV OTHER OBLIGATIONS OF CONSULTANT Section 4.1 Consultant agrees to perform the Consulting Services in accordance with Exhibit "A". Should any errors caused by Consultant's negligence be found in such services or products, Consultant will correct them at no additional charge by revising the work products called for in Exhibit "A" to eliminate the errors. Section 4.2 Consultant will supply all tools and instrumentalities required to perform the Consulting Services under the Agreement. Section 4.3 Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Consultant without the prior written consent of Client. However, Consultant may subcontract portions of the work to be performed hereunder to other persons or concerns provided Consultant notifies Client of the name and address of said proposed subcontractor and Client either consents or fails to respond to notification with respect to the use of any particular proposed subcontractor. Section 4.4 In the performance of its Consulting Service hereunder, Consultant is, and shall be deemed to be for all purposes, an independent contractor (and not an agent, officer, employee or representative of Client) under any and all laws, whether existing or future. Consultant is not authorized to make any representation, contract or commitment on behalf of Client. ARTICLE V OTHER OBLIGATIONS OF CLIENT Section 5.1 Client agrees to comply with all reasonable requests of Consultant and provide access to all documents reasonably necessary to the performance of Consultant's duties under this Agreement with the exception of those documents which Exhibit "A" calls upon the Consultant to prepare. City of Newport Beach Page 3 Assessment Rebate Consulting Services June 25, 2003 Section 5.2 Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Client without the prior written consent of Consultant. Section 5.3 Consultant frequently is retained by developers, landowners, and other persons and concerns interested in development projects which often eventually lead to the preparation on a contract basis by Consultant of preliminary tax spread models for government agencies to determine tax rates and other matters necessary to accomplish various improvements to realty for financing under a Mello -Roos or other financing programs. In light of the foregoing, Client will determine whether or not it is appropriate to conduct a "significant substantive review" or a "significant intervening substantive review" of Consultant's activities conducted pursuant to this Agreement as such terms are defined in Section 18700(c)h of Title 2 of the California Administrative Code. Should Client elect to conduct such a substantive review, then Client shall determine whether it has sufficient expertise on staff to conduct such a review, and, if not, will retain an independent expert consultant to review Consultant's work. Thereafter, Client shall conduct such review, or cause such independent review to be conducted, prior to the making of any governmental decision relating to the matters contained within the Scope of Work described in Exhibit "A". The parties do not intend and nothing in this Section 5.3 is meant to imply that Consultant is a "public official, " "participating in a governmental decision, " or has a "financial interest" in the services provided as such terms are used in Section 87100 of Title 9 of the California Governmental Code. Section 5.4 Client, public agencies, landowners, consultants and other parties dealing with Client or involved in the subject development project referred to in Exhibit "A" will be furnishing to Consultant various data, reports, studies, computer printouts and other information and representations as to the facts involved in the project which Client understands Consultant will be using and relying upon in preparing the reports, studies, computer printouts and other work products called for by Exhibit "A. " Consultant shall not be obligated to establish or verify the accuracy of the information furnished by or on behalf of Client, nor shall Consultant be responsible for the impact or effect on its work products of the information furnished by or on behalf of Client, in the event that such information is in error and therefore introduces error into Consultant's work products. Section 5.5 Client agrees to defend, indemnify and hold Consultant harmless from and against all obligations, losses, liabilities, damages, claims, attachments, executions, demands, actions and /or proceedings (collectively, "Claims ") and all costs and expenses in connection therewith, including reasonable attorneys' fees, arising out of or connected with the performance of Consultant's Consulting Services under this Agreement, except as may arise from Consultant's willful misconduct or gross negligence. In that regard, Client will indemnify and hold Consultant harmless from any Claims arising from, growing out of, or in any way resulting from, errors contained in data or information furnished by Client or Client's designee to Consultant for use in carrying out the Consulting Services called for by this agreement. If for any reason the indemnification under this Section 5.5 is unavailable to Consultant or insufficient to hold it harmless, then the Client shall contribute to the amount paid or payable by Consultant as a result of such loss, liability, damage, claim, demand, action or proceeding in such proportion as is appropriate to reflect not only the relative benefits received by the Client on the one hand and City of Newport Beach Page 4 Assessment Rebate Consulting Services June 25, 2003 Consultant on the other hand but also the relative fault of the Client and Consultant as well as any relevant equitable considerations; provided that Consultant's contribution obligations hereunder shall in no event exceed the amounts received by Consultant under this Agreement. Section 5.6 In the event that court appearances, testimony or depositions are required of Consultant by Client in connection with the services rendered hereunder, Client shall compensate Consultant at a rate of $250 per hour and shall reimburse Consultant for out -of- pocket expenses on a cost basis. ARTICLE VI TERMINATION OF AGREEMENT Section 6.1 Either party may terminate or suspend this Agreement upon thirty (30) days written notice. Unless terminated as provided herein, this Agreement shall continue in force until the Consulting Services set forth in Exhibit "A" have been fully and completely performed and all proper invoices have been rendered and paid. Section 6.2 Should either party default in the performance of this Agreement or materially breach any of its provisions, the other party at its option may terminate this Agreement by giving written notification to the defaulting party. Such termination shall be effective upon receipt by the defaulting party, provided that the defaulting party shall be allowed ten (10) days in which to cure any default following receipt of notice of same. Section 6.3 The covenants contained in Sections 5.5 and 5.6 shall survive the termination of this Agreement. ARTICLE VII GENERAL PROVISIONS Section 7.1 Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement, but each party may change the address by written notice in accordance with the first sentence of this Section 7.1. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two (2) days after mailing. Section 7.2 This Agreement and exhibits hereto supersede any and all agreements, either oral or written, between the parties hereto with respect to the rendering of service by Consultant for Client and contains all of the covenants and agreements between the parties with respect to the rendering of such services. 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 are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification, including an extension of the term, of this Agreement (including any exhibit hereto) will be effective if it is in writing and signed by the party against whom it is sought to be enforced. City of Newport Beach Page 5 Assessment Rebate Consulting Services June 25, 2003 Section 7.3 If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Section 7.4 The prevailing party in any arbitration or legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys' fees. The non - prevailing party shall be liable, to the extent allowable under law, for all fees and expenses of the arbitrator(s) and all costs of the arbitration. Section 7.5 This Agreement will be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, this Agreement has been executed on the date and year first above written. CONSULTANT: David Taussig & Associates, Inc. Date: CLIENT: City of Newport Beach By: Date: •� �' _ J: \PROPOSAL\ADMIN\CALIF \NEWPORT BEACH\REVISED REBATE AGREEMENT MM- JUNE2003.DOC City of Newport Beach Page 6 Assessment Rebate Consulting Services June 25, 2003 EXHIBIT A SCOPE OF WORK ASSESSMENT REBATE FOR ASSESSMENT DISTRICTS NO. 88 -1 AND 92 -1 CITY OF NEWPORT BEACH David Taussig & Associates, Inc. ( "Consultant ") shall provide consulting services necessary to assist the Client of Newport Beach (the "Client ") in the implementation of an assessment rebate program for fiscal year 2003 -2004 for Assessment Districts No. 88 -1 and 92 -1 (the "ADs "). The services to be provided are described by task below. Task 1. Determine Bona Fide Homeowners Consultant believes that all homes in AD No. 92 -1 have been built and sold. With respect to AD No. 88 -1, Consultant believes that there is no conversion for which all production homes have been sold and all custom homes have been completed. This is based on our research conducted pursuant to the continuing disclosure requirements for bonds issued by the ADs. There are custom lot programs within the each conversion area of AD No. 88 -1. It is our understanding that the prospective homeowner has six years from the point of purchase to construct a home. Consultant proposes to identify Bona Fide Homeowners based on: Ownership and improvement values, as shown on the County's Assessment Roll for the fiscal year in which the rebate is being applied, by an individual, and • Issuance of a certificate of occupancy by the County of Orange for homes located in custom lot subdivisions. Task 2. Allocation of Rebate Moneys After the completion of Task 2, Consultant will allocate the available rebate moneys among the eligible parcels in accordance with the methodology ultimately approved by the Client and Citizen's Advisory Committee (the "Committee "). It is Consultant's understanding that the Client and Committee are currently favoring a two step allocation methodology in which the first step is to allocate available rebate moneys between AD Nos. 88 -1 and 92 -1 and the second step to allocate the moneys associated with each assessment district to the parcels within such district based on the original assessment lien. Task 3. Submit of Rebate Amounts and Meet with Committee Consultant will submit the rebate amounts applicable to each eligible parcel to the Committee and attend one meeting with the Committee to present the proposed rebate applied to each parcel. City of Newport Beach Page A.1 Assessment Rebate Consulting Services June 25, 2003 Task 4. Revise rebate Allocation based on Committee Review Consultant will, after completion of the review in Task 3, make revisions to the rebate allocation requested by the Committee. Task 5. Submittal of Rebate Amounts to County Auditor- Controller Consultant will submit the rebate amounts applicable to each eligible parcel to the County Auditor - Controller as a negative amount in conjunction with the enrollment of the annual assessment installment payments. Task 6. Rebate Report Following enrollment of the assessments and submittal of the rebate amounts to the Auditor - Controller, Consultant will provide the Client with a report listing the Assessor's parcel number, owner, gross assessment, rebate amount, and net assessment. Task 7. Taxpayer Inquiries Consultant staff will answer homeowner questions regarding the rebate program and the rebate amount applicable to their home. City of Newport Beach Page A.2 Assessment Rebate Consulting Services June 25, 2003 EXHIBIT B FEE SCHEDULE ASSESSMENT REBATE FOR ASSESSMENT DISTRICTS NO. 88 -1 AND 92 -1 CITY OF NEWPORT BEACH Compensation for Consulting Services (Tasks 1 through 7) for fiscal year 2003 -2004 shall be a time and materials fee, with services billed at the hourly rates shown in Table 1 below, not to exceed $6,860. TABLE 1 HOURLY RATEs Title Rate President $175 Vice President $165 Director $155 Manager $145 Senior Associate $130 Associate $110 Analyst $95 Research Assistant $70 Clerical $35 In addition to fees for services, Client shall reimburse Consultant pursuant to Section 3.2 of the Agreement, in an amount not to exceed $500. Limitations and Additional Work Any additional tasks assigned by Client shall be treated as "Additional Work" and be covered under a separate agreement or an amendment of the Scope of Work and Fee Schedule. Additional Work shall include, but be limited to the following: • Attendance at more than two meetings. • Expansion of the criteria of a bona fide homeowner to include homes purchased after the County Assessor's lien date • Revisions to the rebate allocation as a result of the review by the Citizen's Advisory Committee (Task 4) • Allocation of the rebate moneys other than in proportion to the original assessment liens. • Allocation of rebate moneys to property not within AD Nos. 88 -1, 92 -1 or 01 -1 of the County of Orange. City of Newport Beach Page B.I Assessment Rebate Consulting Services June 25, 2003 P -1,1ic Finance and Urban Economics 1:)u1 Dove Street, Suite 600 Tel (949) 955 -1500 Newport Beach, CA 92660 Fax (949) 955 -1590 July 10, 2002 Mr. Dick Kurth City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 RE: Revised Consulting Services Agreement Dear Dick: Please find enclosed for your review two originals of a consulting services agreement revised pursuant to your comments. If the agreement meets with your approval, please execute both originals and return one to me. If you have any questions, please do not hesitate to call. Sincerely yours, Mitch Mosesman Vice President Enclosures h\PR0P0SAL\ADMIN \CAL1F\Newport Beach\Revised Newport Coast Rebate Cover Letter.doc Newport Beach • Riverside • San Ramon Public Finance and Urban Economics 1ivi Dove Street, Suite 600 Tel (949) 955 -1500 Newport Beach, CA 92660 Fax (949) 955 -1590 AGREEMENT FOR CONSULTING SERVICES THIS AGREEMENT is made and entered into this day of July 2002, by and between City of Newport Beach at 330 Newport Blvd., Newport Beach, CA 92658 -8915 herein called "Client," and David Taussig and Associates, Inc. at 1301 Dove Street, Suite 600, Newport Beach, CA 92660, herein after called "Consultant." The Client and the Consultant in consideration of the mutual promises and conditions herein contained agree as follows. ARTICLE I TERM OF CONTRACT Section 1.1 This agreement shall become effective on the date stated above and will continue in effect until the earlier of (i) June 30, 2003 or (ii) until terminated as provided in Article 6 below. ARTICLE II SERVICES TO BE PERFORMED BY CONSULTANT Section 2.1 Consultant agrees to perform the professional services for the Client and to deliver the work products to the Client as described in the Scope of Work statement attached as Exhibit "A" hereto. Such professional services and work products, as from time to time modified in accordance with Section 2.3 hereof, are collectively referred to as the "Consulting Services. " Section 2.2 Consultant will determine the method, details and means of performing the Consulting Services. Consultants may, at Consultants' own expense, employ such assistance as it deems necessary to perform the Consulting Services required by Client under this Agreement. Consultants shall conduct research and arrive at conclusions with respect to their rendition of information, advice, recommendation or counsel independent of the control and direction of the Client, other than normal contract monitoring. All computer software (including without limitation financial models, compilations of formulas and spreadsheet models), inventions, designs, programs, improvements, processes and methods (collectively, the "Proprietary Models ") used or developed by DTA in performing its work is proprietary and shall remain property owned solely by, or licensed by a third party to DTA. Client acknowledges and agrees that the consideration paid by Client herein only entitles Client to a license to use the hard copy or electronically transmitted reports generated pursuant to the Consulting Services and that any Proprietary Model that Consultant uses to generate such reports is owned by, or is duly licensed from a third party to Consultant and is not being provided to Client hereunder. Client acknowledges that DTA may have used reports and analyses that DTA authored for other clients as base works or templates for the reports and analyses prepared for Client pursuant to this Newport Beach • Riverside . San Ramon Agreement, and Client acknowledges and agrees that DTA has the right to use the reports and analyses that it authors pursuant to this Agreement as base works or templates for reports and analyses that DTA authors for DTA's other clients, provided, however that DTA shall not use any confidential information provided by Client in such future reports and analyses. Client acknowledges and agrees that DTA has spend substantial time and effort in collection and compiling data and information (the "Data Compilations") in connection with the Consulting Services and that such Data Compilations may be used by DTA for its own purposes, including, without limitation, sale or distribution to third parties; provided, however, that DTA will not sell or distribute any of Client's confidential information that may be contained in such Data Compilations, unless such confidential information is used only on an aggregated and anonymous basis. Section 2.3 Any proposed changes in the Consulting Services hereunder shall be submitted to the other party hereto, and any such changes agreed to by the parties shall be reflected in an amendment to Exhibit "A" in accordance with Section 7.2 hereto. Section 2.4 Nothing in this Agreement shall give the Consultant possession of authority with respect to any Client decision beyond the rendition of information, advice, recommendation or counsel. ARTICLE III COMPENSATION Section 3.1 Client agrees to pay Consultant for its Consulting Services a professional fee computed according to the Fee Schedule attached as Exhibit "B" hereto. Client acknowledges and agrees that portions of Consultant's professional fees and expenses were incurred by Consultant prior to the execution of this Agreement (the "Pre- Agreement Fees") and Client agrees to pay such Pre - Agreement Fees in accordance with this Agreement. Section 3.2 The Client shall reimburse the Consultant for Consultant's out -of- pocket expenses plus a 15 % administrative charge. Expenses shall include all actual expenditures made by Consultant in the performance of any Consulting Services undertaken pursuant to the Agreement, including, without limitation, the following expenditures: (a) Cost of clerical assistance @a $35.00 per hour, including typing, collation, printing and copying, plus copier and photography costs, including photographic reproduction of drawings and documents. (b) Transportation costs, including mileage for the use of personal automobiles at the prevailing IRS standard rate, rental vehicles, lodging and regularly scheduled commercial airline ticket costs. (c) Courier services, facsimile, and telephone expenses. Section 3.3 On or about the first two weeks of each month during which Consulting Services are rendered hereunder, Consultant shall present to Client an invoice covering the current City of Newport Beach Page 2 Assessment Rebate Consulting Services July 18, 2002 Consulting Services performed and the reimbursable expenses incurred pursuant to this Agreement and exhibits thereto. Such invoices shall be paid by Client within thirty (30) days of the date of each invoice. A 1.2 % charge may be imposed against accounts which are not paid within 30 days of the date of each invoice. Section 3.4 The maximum total fee amount set forth in Exhibit "B" may be increased as a result of any expansion of the Consulting Services to be rendered hereunder pursuant to Section 2.3 or as provided in Exhibit "A" hereto. Section 3.5 Records of the Consultant's costs relating to (i) Consulting Services performed under this Agreement and (ii) reimbursable expenses shall be kept and be available to the Client or to Client's authorized representative at reasonable intervals during normal business hours. ARTICLE IV OTHER OBLIGATIONS OF CONSULTANT Section 4.1 Consultant agrees to perform the Consulting Services in accordance with Exhibit "A ". Should any errors caused by Consultant's negligence be found in such services or products, Consultant will correct them at no additional charge by revising the work products called for in Exhibit "A" to eliminate the errors. Section 4.2 Consultant will supply all tools and instrumentalities required to perform the Consulting Services under the Agreement. Section 4.3 Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Consultant without the prior written consent of Client. However, Consultant may subcontract portions of the work to be performed hereunder to other persons or concerns provided Consultant notifies Client of the name and address of said proposed subcontractor and Client either consents or fails to respond to notification with respect to the use of any particular proposed subcontractor. Section 4.4 In the performance of its Consulting Service hereunder, Consultant is, and shall be deemed to be for all purposes, an independent contractor (and not an agent, officer, employee or representative of Client) under any and all laws, whether existing or future. Consultant is not authorized to make any representation, contract or commitment on behalf of Client. ARTICLE V OTHER OBLIGATIONS OF CLIENT Section 5.1 Client agrees to comply with all reasonable requests of Consultant and provide access to all documents reasonably necessary to the performance of Consultant's duties under this Agreement with the exception of those documents which Exhibit "A" calls upon the Consultant to prepare. City of Newport Beach Page 3 Assessment Rebate Consulting Services July 18, 2002 Section 5.2 Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Client without the prior written consent of Consultant. Section 5.3 Consultant frequently is retained by developers, landowners, and other persons and concerns interested in development projects which often eventually lead to the preparation on a contract basis by Consultant of preliminary tax spread models for government agencies to determine tax rates and other matters necessary to accomplish various improvements to realty for financing under a Mello -Roos or other financing programs. In light of the foregoing, Client will determine whether or not it is appropriate to conduct a "significant substantive review" or a "significant intervening substantive review" of Consultant's activities conducted pursuant to this Agreement as such terms are defined in Section 18700(c)h of Title 2 of the California Administrative Code. Should Client elect to conduct such a substantive review, then Client shall determine whether it has sufficient expertise on staff to conduct such a review, and, if not, will retain an independent expert consultant to review Consultant's work. Thereafter, Client shall conduct such review, or cause such independent review to be conducted, prior to the making of any governmental decision relating to the matters contained within the Scope of Work described in Exhibit "A". The parties do not intend and nothing in this Section 5.3 is meant to imply that Consultant is a "public official," "participating in a governmental decision," or has a "financial interest" in the services provided as such terms are used in Section 87100 of Title 9 of the California Governmental Code. Section 5.4 Client, public agencies, landowners, consultants and other parties dealing with Client or involved in the subject development project referred to in Exhibit "A" will be furnishing to Consultant various data, reports, studies, computer printouts and other information and representations as to the facts involved in the project which Client understands Consultant will be using and relying upon in preparing the reports, studies, computer printouts and other work products called for by Exhibit "A." Consultant shall not be obligated to establish or verify the accuracy of the information furnished by or on behalf of Client, nor shall Consultant be responsible for the impact or effect on its work products of the information furnished by or on behalf of Client, in the event that such information is in error and therefore introduces error into Consultant's work products. Section 5.5 Client agrees to defend, indemnify and hold Consultant harmless from and against all obligations, losses, liabilities, damages, claims, attachments, executions, demands, actions and /or proceedings (collectively, "Claims ") and all costs and expenses in connection therewith, including reasonable attorneys' fees, arising out of or connected with the performance of Consultant's Consulting Services under this Agreement, except as may arise from Consultant's willful misconduct or gross negligence. In that regard, Client will indemnify and hold Consultant harmless from any Claims arising from, growing out of, or in any way resulting from, errors contained in data or information furnished by Client or Client's designee to Consultant for use in carrying out the Consulting Services called for by this agreement. If for any reason the indemnification under this Section 5.5 is unavailable to Consultant or insufficient to hold it harmless, then the Client shall contribute to the amount paid or payable by Consultant as a result of such loss, liability, damage, claim, demand, action or proceeding in such proportion as is appropriate to reflect not only the relative benefits received by the Client on the one hand and City of Newport Beach Page 4 Assessment Rebate Consulting Services July 18, 2002 Consultant on the other hand but also the relative fault of the Client and Consultant as well as any relevant equitable considerations; provided that Consultant's contribution obligations hereunder shall in no event exceed the amounts received by Consultant under this Agreement. Section 5.6 In the event that court appearances, testimony or depositions are required of Consultant by Client in connection with the services rendered hereunder, Client shall compensate Consultant at a rate of $250 per hour and shall reimburse Consultant for out -of- pocket expenses on a cost basis. ARTICLE VI TERMINATION OF AGREEMENT Section 6.1 Either party may terminate or suspend this Agreement upon thirty (30) days written notice. Unless terminated as provided herein, this Agreement shall continue in force until the Consulting Services set forth in Exhibit "A" have been fully and completely performed and all proper invoices have been rendered and paid. Section 6.2 Should either party default in the performance of this Agreement or materially breach any of its provisions, the other party at its option may terminate this Agreement by giving written notification to the defaulting party. Such termination shall be effective upon receipt by the defaulting party, provided that the defaulting party shall be allowed ten (10) days in which to cure any default following receipt of notice of same. Section 6.3 The covenants contained in Sections 5.5 and 5.6 shall survive the termination of this Agreement. ARTICLE VII GENERAL PROVISIONS Section 7.1 Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement, but each party may change the address by written notice in accordance with the first sentence of this Section 7.1. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two (2) days after mailing. Section 7.2 This Agreement and exhibits hereto supersede any and all agreements, either oral or written, between the parties hereto with respect to the rendering of service by Consultant for Client and contains all of the covenants and agreements between the parties with respect to the rendering of such services. 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 are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification, including an extension of the term, of this Agreement (including any exhibit hereto) will be effective if it is in writing and signed by the party against whom it is sought to be enforced. City of Newport Beach Page 5 Assessment Rebate Consulting Services July 18, 2002 Section 7.3 If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Section 7.4 The prevailing party in any arbitration or legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys' fees. The non - prevailing party shall be liable, to the extent allowable under law, for all fees and expenses of the arbitrator(s) and all costs of the arbitration. Section 7.5 This Agreement will be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, this Agreement has been executed on the date and year first above written. CONSULTANT: David Taussig & Associates, Inc. CLIENT: City of Newport Beach By: By avid Taussig, �Pre'&� ��;i7 Date: 2z2 &Z).4 Date 7��dZ J: \PROPOSAL \ADMIN \CALIF \NEWPORT BEACH \REVISED REBATE AGREEMENT MM.DOC City of Newport Beach Page 6 Assessment Rebate Consulting Services July 18, 2002 EXHIBIT A SCOPE OF WORK ASSESSMENT REBATE FOR ASSESSMENT DISTRICTS NO. 88 -1 AND 92 -1 CITY OF NEWPORT BEACH David Taussig & Associates, Inc. ( "Consultant ") shall provide consulting services necessary to assist the Client of Newport Beach (the "Client ") in the implementation of an assessment rebate program for fiscal year 2002 -2003 for Assessment Districts No. 88 -1 and 92 -1 (the "ADs "). The services to be provided are described by task below. Task 1. Setup and Coordination with County Consultant understands that there have been discussions among the County Auditor - Controller, County Executive Office, County Counsel's Office, the Client, and the Client's financial advisor regarding implementation of the rebate program. Based on a similar experience with one of the County's community facilities districts, Consultant anticipates that additional time will be incurred documenting the rebate program procedures and meeting with the County to review the procedures and obtain official approval from appropriate departments /staff. Task 2. Determine Bona Fide Homeowners Consultant believes that all homes in AD No. 92 -1 have been built and sold. With respect to AD No. 88 -1, Consultant believes that there is no conversion for which all production homes have been sold and all custom homes have been completed. This is based on our research conducted pursuant to the continuing disclosure requirements for bonds issued by the ADs. There are custom lot programs within the each conversion area of AD No. 88 -1. It is our understanding that the prospective homeowner has six years from the point of purchase to construct a home. Based on the low number of property owners that had filed for a homeowner exemption per the fiscal year 2001 -2002 County Assessment Roll, Consultant proposes to identify Bona Fide Homeowners based on: Ownership and improvement values, as shown on the County's Assessment Roll for the fiscal year in which the rebate is being applied, by an individual, and • Issuance of a certificate of occupancy by the County of Orange for homes located in custom lot subdivisions. This task includes a one -time modification of Consultant's existing assessment software and database structure to programmatically search the County's building records for the presence of a City of Newport Beach Page A.1 Assessment Rebate Consulting Services July 18, 2002 certificate of occupancy, search the County's assessment roll for property ownership and record rebate eligibility. Task 3. Allocation of Rebate Moneys After the completion of Task 2, Consultant will allocate the available rebate moneys among the eligible parcels in accordance with the methodology ultimately approved by the Client and Citizen's Advisory Committee (the "Committee "). It is Consultant's understanding that the Client and Committee are currently favoring a two step allocation methodology in which the first step is to allocate available rebate moneys between AD Nos. 88 -1 and 92 -1 and the second step to allocate the moneys associated with each assessment district to the parcels within such district based on the original assessment lien. This task includes a one -time modification of Consultant's existing assessment software and database structure to programmatically compute and record the rebate amount for each parcel. Task 4. Submit of Rebate Amounts and Meet with Committee Consultant will submit the rebate amounts applicable to each eligible parcel to the Committee and attend one meeting with the Committee to present the proposed rebate applied to each parcel. Task 5. Revise rebate Allocation based on Committee Review Consultant will, after completion of the review in Task 4, make revisions to the rebate allocation requested by the Committee. Task 6. Submittal of Rebate Amounts to County Auditor - Controller Consultant will submit the rebate amounts applicable to each eligible parcel to the County Auditor - Controller as a negative amount in conjunction with the enrollment of the annual assessment installment payments. Task 7. Rebate Report Following enrollment of the assessments and submittal of the rebate amounts to the Auditor - Controller, Consultant will provide the Client with a report listing the Assessor's parcel number, owner, gross assessment, rebate amount, and net assessment. Task 8. Taxpayer Inquiries Consultant staff will answer homeowner questions regarding the rebate program and the rebate amount applicable to their home. City of Newport Beach Page A.2 Assessment Rebate Consulting Services July 18, 2002 EXHIBIT B FEESCHEDULE ASSESSMENT REBATE FOR ASSESSMENT DISTRICTS NO. 88 -1 AND 92 -1 CITY OF NEWPORT BEACH Compensation for Consulting Services (Tasks 1 through 8) for fiscal year 2002 -2003 shall be a time and materials fee, with services billed at the hourly rates shown in Table 1 below, not to exceed $6,860. This amount includes a budget of $2,560 for one time setup costs. TABLE 1 HouRLY RATEs Title Rate President $175 Vice President $165 Director $155 Manager $145 Senior Associate $130 Associate $110 Analyst $95 Research Assistant $70 Clerical $35 In addition to fees for services, Client shall reimburse Consultant pursuant to Section 3.2 of the Agreement, in an amount not to exceed $500. Limitations and Additional Work Any additional tasks assigned by Client shall be treated as "Additional Work" and be covered under a separate agreement or an amendment of the Scope of Work and Fee Schedule. Additional Work shall include, but be limited to the following: • Attendance at more than two meetings. • Expansion of the criteria of a bona fide homeowner to include homes purchased after the County Assessor's lien date • Revisions to the rebate allocation as a result of the review by the Citizen's Advisory Committee (Task 5) • Allocation of the rebate moneys other than in proportion to the original assessment liens. • Allocation of rebate moneys to property not within AD Nos. 88 -1, 92 -1 or 01 -1 of the County of Orange. City of Newport Beach Page B.1 Assessment Rebate Consulting Services July 18, 2002