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HomeMy WebLinkAboutContract - 04/24/2002 - 1053 PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CATHEDRAL CITY REDEVELOPMENT AGENCY AND HDL COREN AND CONE AGREEMENT FOR FISCAL CONSULTANT SERVICES THIS AGREEMENT, is made and entered into this day of , 2002, by and between the Cathedral City Redevelopment Agency, a public body organized and existing under the laws of the State of California (hereinafter referred to as the "Agency") and HdL Coren and Cone, a California corporation, hereinafter referred to as "Consultant". RECITALS: WHEREAS, the Redevelopment Agency is considering the issuance of tax increment financed bonds; and WHEREAS, The Agency requires the services of a firm with the ability to provide certain fiscal analyses; and WHEREAS, Consultant has the knowledge and ability to undertake the services required by the Agency. Now therefore, in consideration of the covenants, conditions and promises contained herein, the parties agree as follows: Section 1. SCOPE OF SERVICES Consultant shall provide to the Agency those services as set forth in the"Scope of Services", attached hereto as Exhibit "A", and incorporated herein by this reference as though set forth at length. Section 2. COMPENSATION The Agency shall pay for the services rendered by Consultant pursuant to this Agreement in an amount not to exceed the total amount set forth in the "Payment Program", attached hereto as Exhibit "B", and incorporated herein by this reference as though set forth at length. Section 3. PAYMENT SCHEDULE The Agency shall pay Consultant according to the "Payment Schedule", attached hereto as Exhibit "B", and incorporated herein by this reference as though set forth at length. Section 4. PERFORMANCE SCHEDULE Consultant shall perform those services set forth in the Scope of Services pursuant to the"Performance Schedule"attached hereto as Exhibit"C", and incorporated herein by this reference as though set forth at length. Section 5. INDEPENDENT CONTRACTOR'S STATUS Consultant shall at all times during the term of this Agreement perform the services described in this Agreement as an independent contractor. Section 6. REPRESENTATIONS AND ACKNOWLEDGMENTS REGARDING INDEPENDENT CONTRACTOR'S STATUS OF CONSULTANT a. Consultant represents and acknowledges the following: (1) The Agency is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement. (2) Performance of the services described in this Agreement do not have to be integrated into the daily business operations of the Agency. (3) The services described in this Agreement can be performed without the use of Agency equipment, materials, tools or facilities. (4) Nothing in this Agreement shall be interpreted to imply that the Agency must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement. (5) The Agency will not be requested or demanded to assume any liability for the direct payment of any salary, wage or other such compensation to any person employed by Consultant to perform the services described in this Agreement. (6) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are "employees" of the Agency. b. The Agency represents and acknowledges the following: HdL Coren&Cone Professional Services Agreement Page 2 (1) Consultant is not required to comply with daily instructions from Agency staff with respect to when,where or how Consultant must perform the services set forth in this Agreement. (2) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement. (3) The Agency will not hire, supervise or pay any assistants working for Consultant pursuant to this Agreement. (4) Nothing in this Agreement shall be interpreted to imply that the Consultant must maintain any contractual relationship with the Agency on a continuing basis after termination of this Agreement. (5) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement. (6) Consultant is not required to devote full time to the business operations of the Agency in order to perform the services set forth in this Agreement. (7) Unless deemed necessary under certain circumstances, Consultant is not required to perform the services set forth in this Agreement at Agency Hall or on Agency-owned property. (8) Other than attendance at required public meetings and public hearings and complying with procedural requirements set forth by law, Consultant is not required to perform the services set forth in the Agreement in any particular order or sequence. (9) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest. Section 7. NOT AGENT OF THE AGENCY a. Nothing contained in this Agreement shall be deemed, construed or represented by the Agency or Consultant or by any third person to create the relationship of principal and agent. b. Consultant shall have no authority, expressed or implied, to act on behalf of the Agency in any capacity whatsoever as an agent, nor shall Consultant have any authority, expressed or implied, to bind the Agency to any obligation whatsoever. Section 8. QUALIFICATIONS Consultant represents that it has obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for performing the services described in this Agreement. HdL Coren&Cone Professional Services Agreement Page 3 Section 9. WARRANTY Consultant warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services. Section 10. FAMILIARITY WITH WORK a. By executing this Agreement, Consultant warrants that (1) it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this agreement. b. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the Agency, it shall immediately inform the Agency of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Executive director or appropriate Agency representative. Section 11. CONFLICTS OF INTEREST Consultant covenants that neither it nor any officer of the corporation has any interest, nor shall it acquire an interest, directly or indirectly, which would conflict in any manner with the performance of Consultant's services under this Agreement. Section 12. COMPLIANCE WITH LAWS Consultant shall comply with all local, state and federal laws and regulations applicable to the services required hereunder. Section 13. NONDISCRIMINATION a. Consultant shall comply with the Agency's employment related nondiscrimination policies as set forth in the City of Cathedral City Municipal Code, as it may be amended from time to time. b. Consultant acknowledges that the Agency's employment related nondiscrimination policies prohibit discrimination on the basis of an individual's sex, marital status, race, color, religion, ancestry, national origin, physical handicap,sexual orientation, and domestic partnership status. HdL Coren&Cone Professional Services Agreement Page 4 Section 14. COMPREHENSIVE GENERAL AND AUTOMOBILE LIABILITY INSURANCE Consultant shall procure and maintain at its own expense, during the term of this Agreement, comprehensive general liability insurance of not less than One Million Dollars ($1,000,000.00) combined single limit per occurrence for bodily injury, personal injury and property damage. Section 15. WORKERS' COMPENSATION INSURANCE a. Consultant shall procure and maintain at its own expense, during the term of this Agreement, workers' compensation insurance, providing coverage as required by the California State Workers' Compensation Law. b. If any class of employees employed by the Consultant pursuant to this Agreement is not protected by the California State Workers' Compensation Law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the Agency. Section 16. [RESERVED] Section 17. ADDITIONAL NAMED INSURED Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the protection offered by all policies, except for Workers' Compensation, Errors and Omissions and Professional Liability coverage (if any), shall bear an endorsement whereby it is provided that, the Agency and its officers, employees, servants, volunteers and agents and independent contractors, of the City of Cathedral City("City") including without limitation, the Executive Director, Redevelopment Director, Administrative Services Director, Special Projects Director, Community Development Director, Special Projects Manager, Police Chief, Fire Chief, Agency Engineer, Public Information Officer, and City Attorney, are named as additional insureds. Section 18. WAVIER OF SUBROGATION RIGHTS Consultant shall require the carriers of all required insurance policies to waive all rights of subrogation against the Agency and its officers, volunteers, employees, contractors and subcontractors. Section 19. PROOF OF INSURANCE COVERAGE a. Consultant shall secure from a good and responsible company or companies authorized to do insurance business in the State of California the policies of insurance required by this Agreement and furnish to the Agency Secretary certificates of said insurance on or before the commencement of the term of this Agreement. HdL Coren&Cone Professional Services Agreement Page 5 b. The certificates of insurance shall bear an endorsement whereby it is provided that, in the event of cancellation or amendment of any required insurance policy for any reason whatsoever,the Agency shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. c. The certificates of insurance shall bear an endorsement whereby it is provided that the respective insurance policy shall not be terminated or expire without first providing thirty (30) days' written notice to the Agency of such termination or expiration. d. The certificates of insurance shall indicate that the respective insurance policy will be maintained throughout the term of this Agreement. e. Within thirty (30) days of the execution of this Agreement, Consultant shall furnish certified copies of all required insurance policies and endorsements. Section 20. TERMINATION OR SUSPENSION a. This Agreement may be terminated or suspended without cause by the Agency at any time provided that the Agency provides Consultant at least (10) business days' written notice of such termination or suspension. b. This Agreement may be terminated or suspended with cause by the Agency at any time provided that the Agency provides at least (3) business days'written notice of such termination or suspension. c. This Agreement may be terminated by Consultant with cause at any time provided that Consultant provides the Agency at least(30)business days'written notice of such termination. Section 21. TIME OF THE ESSENCE Time is of the essence in the performance of this Agreement. Section 22. INDEMNIFICATION a. Consultant shall defend, indemnify and hold harmless the City and the Agency, its officers, employees, representatives and agents, from and against those actions, suits, proceedings, claims, demands, losses, costs and expenses, including legal costs and attorneys' fees, for any personal injuries, deaths, property damage (including property owned by the City or Agency) and for errors and omissions committed by Consultant, its officers, employees, independent contractors and agents, which may arise out of Consultant's negligent performance of the services described in this Agreement, unless such losses or damages are proven to be caused by the City's or Agency's own negligence or that of its officers or employees. HdL Goren&Cone Professional Services Agreement Page 6 b. The Agency does not, and shall not,waive any rights that it may have against Consultant under this Section, because of the acceptance by the Agency, or the deposit with the Agency, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described herein. Section 23. REPORTS Consultant shall periodically prepare and submit to the Executive Director such reports concerning Consultant's performance of the services required by this Agreement as the Executive Director may require. Section 24. RECORDS a. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable the Executive Director to evaluate the cost and the performance of such services. b. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles. c. The Executive Director or designee shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. Section 25. OWNERSHIP OF DOCUMENTS a. Upon completion of any document or report required to be provided by Consultant in the course of performing any of the services described in this Agreement, or upon earlier termination of this Agreement, all completed original documents and/or reports and any designs, drawings,calculations, diskettes, computer files, notes, and other related materials prepared or produced in connection with such documents or reports shall become the sole property of the Agency and may be used and/or reused on any other project by the Agency without the permission of Consultant. This does not include Consultant's own proprietary software. b. All computer files produced in connection with the services described in this Agreement shall be provided to the Agency in a form and format that is compatible with the Agency's existing computer equipment and software. This does not include Consultant's own proprietary software. Section 26. CONFIDENTIALITY a. Any and all documents and information obtained from the Agency or prepared by Consultant for the Agency shall be kept strictly confidential. HdL Coren&Cone Professional Services Agreement Page 7 b. The drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Executive Director or as required by law. c. Consultant shall not disclose to any other entity or person any information regarding the activities of the Agency, except as required by law or as authorized by the Agency. Section 27. PRINCIPAL REPRESENTATIVES a. Martin C. Coren is designated as the principal representative of Consultant for purposes of communicating with the Agency on any matter associated with the performance of the services set forth in this Agreement. b. The Executive Director or his/her designee shall be the principal representative of the Agency for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement. c. Either party may designate another individual as its principal representative by giving notice of such designation to the other party. d. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. Section 28. MODIFICATIONS AND AMENDMENTS This Agreement may be modified or amended only by a written instrument signed by both parties Section 29. ENTIRE AGREEMENT a. This Agreement supersedes any and all other agreements, either oral or written, between the Agency and Consultant with respect to the subject matter of this Agreement. b. This Agreement contains all of the covenants and agreements between the parties with respect to the subject matter of this Agreement, and each party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those covenants and agreements embodied in this Agreement. c. No agreement, statement, or promise not contained in this Agreement shall be valid or binding. HdL Coren&Cone Professional Services Agreement Page 8 Section 30. NOTICES a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested,with postage prepaid, and addressed to the parties as follows: To the Agency: Redevelopment Agency Director Cathedral City Redevelopment Agency 68-700 Avenida Lalo Guerrero Cathedral Agency, California 92234 To Consultant: Martin C. Coren HdL Coren & Cone 1340 Valley Vista Drive Suite 200 Diamond Bar, CA 91765 b. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd)day after deposit in the United States mail. Section 31. NON-LIABILITY OF CITY OR AGENCY OFFICERS AND EMPLOYEES No officer or employee of the City or Agency shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by the City or Agency or for any amount which may become due to Consultant or to its successor, or for any breach of any obligation of the terms of this Agreement. Section 32. INTERPRETATION This Agreement shall not be interpreted against either party on the grounds that one of the parties was solely responsible for preparing it or caused it to be prepared as both parties were involved in drafting it. Section 33. WAIVER a. No waiver shall be binding, unless executed in writing by the party making the waiver. b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision,whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. c. Failure of either party to enforce any provision of this Agreement shall not HdL Coren&Cone Professional Services Agreement Page 9 constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement. Section 34. ASSIGNMENT a. The experience, knowledge, capability and reputation of Consultant, its principles and employees were a substantial inducement for the Agency to enter into this Agreement. b. This Agreement shall not be assigned by either party without prior written consent of the other party. Section 35. CARE OF WORK a. Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Consultant, and the equipment, materials, papers and 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 the Agency, except such losses or damages as may be caused by the Agency's own negligence. b. The performance of services by Consultant shall not relieve Consultant from any obligation to correct any incomplete, inaccurate or defective work at no further cost to the Agency, when such inaccuracies are due to the negligence of Consultant. Section 36. CAPTIONS AND HEADINGS The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading. Section 37. SEVERABILITY If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining sentences,clauses, paragraphs or sections contained herein. Section 38. GOVERNING LAW The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law. HdL Caren&Cone Professional Services Agreement Page 10 Section 39. RIGHTS AND REMEDIES EDIES 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 exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Section 40. VENUE All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County, California. Section 41. ATTORNEY'S FEES In the event any action, suitor proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. Section 42. AUTHORITY The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties. [THIS SECTION INTENTIONALLY LEFT BLANK] HdL Coren&Cone Professional Services Agreement Page 11 1 IT ESS HEREOF,the parties hereto have caused this Agreement to be executed as of the dates written above. Cathedral Ci Redevelopment Agency: HdL Coren ; Cone :y:. Y onald E. radley, 1f artin C. Coren Executive Director LI ft"( Ile° Dudley eines, Risk anager ATTEST: I , gency eerm„ secretary APPROVED AS TO FOR : APPROVED eS TO CO TE T By: Le eLe ,e0 Green, deBortnowsky & susan °eller, Redevelopment Quintanilla, Agency Counsel Director EldL Coren&Cone Professional Services Agreement Page 0 EXHIBIT "A" SCOPE OF SERVICES The Consultant shall provide: 1. A historical review of the Project Areas' assessed values and tax rates. 2. An investigation and verification, if required, of any anomalies or discrepancies revealed by the historical review of Project Areas' assessed values. 3. A ten-year projection of tax increment revenues for the Project Areas based upon 2001-2002 assessed values to determine the tax increment revenues available to pledge to debt service. The projections include anticipated growth due to committed new development; an analysis of tax sharing agreements entered into with other Project Areas taxing entities, developer disposition and owner participation agreements. 4. A review of the redevelopment plans and plan limits. 5. A list of the top ten taxpayers in the Project Areas and a determination of their tax payment status (i.e. delinquencies). 6. A review of the tax allocation and disbursement procedures of Riverside County. 7. A review of outstanding appeals of property taxes for the top ten tax payers in the Project Areas. 8. A review of pending legislation that may impact the Agency's receipt of tax increment revenues. 9. Preparation of the Fiscal Consultant's Report describing assumptions and presenting projections of Project Areas' revenues for inclusion with the offering documents of the proposed bond issuance. 10.Attendance at two meetings authorized by the Agency 11.Review of the bond issuance offering documents as they relate to the tax increment revenues and issues discussed in the Fiscal Consultant's Report. 12.Additional Services are services not described above that are authorized in writing by the Agency. Additional Services include, but are not limited to, additional meetings and presentations to rating agencies and insurance companies. Additional Services are provided on a time and materials bvasis. EXHIBIT "B" PAYMENT PROGRAM Section 1. Invoices Invoices shall only be submitted to the Agency by Consultant following completion of the tasks set forth in the Scope of Services, attached hereto as Exhibit "A" Section 2. Scope of Services Each invoice shall include a copy of the Scope of Services Section 3. Payment The Agency shall pay Consultant upon closing of the bonds. Should the bonds not be sold, or one year after the date of this contract, whichever is sooner,Agency shall pay Consultant in full for services under this contract. Section 4. Contested Invoices a. Payment to Consultant shall not be made by the Agency within thirty (30) days for any invoice which is contested or questioned and returned by the Agency with a written explanation within thirty (30) days of receipt of invoice. b. Consultant shall provide to Agency a written response to any invoice contested or questioned, and upon request of the Agency, Consultant shall provide the Agency with any and all documents related to any invoice. Section 5. Early Termination or Suspension a. In the event of early termination or suspension,the Agency shall compensate Consultant for all services rendered pursuant to this Agreement up to the time of the effective date of the early termination or suspension. b. Compensation for services rendered in connection with a task that has not been completed at the time of the effective date of the early termination or suspension shall be provided to Consultant on a prorated basis to reflect the percentage of the specific task that has been completed at the aforementioned time. Section 6. Fee Schedule a. The services as outlined in the Scope of Services (Exhibit A) shall be for a fixed fee of$22,500 plus 110% of actual and approved out of pocket expenses. The total payments under this subsection shall not exceed $23,000.00. b. Additional Services shall be billed at a rate no greater than: Partner $175.00 per hour Principal $150.00 per hour Associate $125.00 per hour Senior analyst $ 90.00 per hour Analyst $ 50.00 per hour Administrative $ 35.00 per hour Actual and approved out of pocket expenses shall be billed at 110% of actual cost. Si "" Consultant shall prepare a draft Fiscal Consultant's Report within thi (30) days of this contract, and all services shall be completed upon closing of the bond issue. Attachment 3 DIXOREN18CCO CONSULTANT:_Economic&Financial Analysis/Studies, Geographic-- Information Systems(GIS),Property Tax Audits. Tdx Increment Analysis, Tax Increment/Fiscal Consultant 1340 Valley Vista Dr.,Ste.200 Diamond Bar,CA 91765 (909)861-4335/FAX(909)861-7726 hdtcomps@eanhlink.com Contact: Martin C.Coren,Principal Paula-J.Cone,-Principal- Along with Hinderliter, de Llamas & Associates ._HdLSoftw-are, pro-vides- sophisticated yet inexpensive system for maximizing sales tax and property tax revenues,property transfer taxes,and business license revenues. Identifies and recovers revenues lost because of errors in reporting, distribution, or coding of taxpayer or parcel information. Reconciles and confirms state and county payments:- Assists planning-and economic-development-efforts by providing_general and project-specific analyses of sales tax and property tax revenues, property and business turnover and general trends. Supports agency negotiations by providing revenue projections and highest value tenant mixes. Serves as resource staff on sales and property tax questions. Represents client agencies on issues before the State Board of Equalization. Redevelopment financial services including tax increment verification, tax increment projections, tax-sharing_agreement interpretation,__fiscaLp • ing_ and finance plans and fiscal services in support of tax_allocation_bond_i - Software products include a Windows program for the complete management of business license taxes,a windows program for the complete management of permits,and Hdl.Maps which visually integrates property,sales and business license data with assessor's parcels. Under contract to more than 90 cities, redevelopment agencies and special districts throughout California.