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HomeMy WebLinkAboutThe Weist Law Firm 2019-08-21COU No.1920-120 AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES This Agreement, made and entered into this 21st day of August, 2019 ("Effective Date"), by and between SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "Successor Agency" and The Weist Law Firm, a law firm, organized and in good standing under the laws of the state of California, hereinafter referred to as "Consultant". RECITALS This Agreement is predicated on the following facts: a. Successor Agency requires consulting services related to Bond and Disclosure Counsel Services for Successor Agency to the Ukiah Redevelopment Agency in connection with the Series 2019A Tax Allocation Refunding Bonds (Ukiah Redevelopment Project) and/or the Successor Agency to the Ukiah Redevelopment Agency, Series 2019B Tax Allocation Refunding Bonds (Ukiah Redevelopment Project) (the Refunding Bonds"), the proceeds of which will be used to prepay and legally defease all outstanding Ukiah Redevelopment Agency (Ukiah Redevelopment Project), Tax Allocation Refunding Bonds, Series 2007, issued in the aggregate principal amount of $5,595,000 (the "Series 2007 Bonds"); the Ukiah Redevelopment Agency, Ukiah Redevelopment Project, Tax Allocation Bonds, 2011 Series A, issued in the aggregate principal amount of $5,180,000 (the "Series 2011A Bonds"); and, the Ukiah Redevelopment Agency, Ukiah Redevelopment Project, Taxable Tax Allocation Housing Bonds, 2011 Series B, issued in the aggregate principal amount of $3,250,000 (the "Series 2011B Bonds" and, together with the Series 2011A Bonds and the Series 2007 Bonds, the "Prior Bonds"). b. Consultant represents that it has the qualifications, skills, experience and properly licensed to provide these services, and is willing to provide them according to the terms of this Agreement. c. Successor Agency and Consultant agree upon the Scope -of -Work and Work Schedule attached hereto as Attachment "A", describing contract provisions for the project and setting forth the completion dates for the various services to be provided pursuant to this Agreement. TERMS OF AGREEMENT 1.0 DESCRIPTION OF PROJECT 1.1 The Project is described in detail in the attached Scope -of -Work (Attachment "A"). 2.0 SCOPE OF SERVICES 2.1 As set forth in Attachment "A". 2.2. Additional Services. Additional services, if any, shall only proceed upon written agreement between Successor Agency and Consultant. The written Agreement shall be in the form of an Amendment to this Agreement. PAGE 1 OF 8 COU No.1920-120 3.0 CONDUCT OF WORK 3.1 Time of Completion. Consultant shall commence performance of services as required by the Scope -of -Work upon receipt of a Notice to Proceed from City and shall complete such services to the City's reasonable satisfaction, even if contract disputes arise or Consultant contends it is entitled to further compensation. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. For the performance of the professional services of this Agreement, Consultant shall be compensated on a time and expense basis not to exceed a guaranteed maximum dollar amount of $97,000, which is expected to be paid from proceeds of the transaction, but should the transaction not close for any reason, then shall be paid as provided in the Indenture and authorized by §34177.5(a)(1) of the California Health and Safety Code. Charges shall be based on Attachment "A", which shall include all indirect costs and expenses of every kind or nature. Consultant shall complete the Scope of Work for the not -to -exceed guaranteed maximum, even if actual time and expenses exceed that amount. 4.2 Changes. Should changes in compensation be required because of changes to the Scope -of -Work of this Agreement, the parties shall agree in writing to any changes in compensation. "Changes to the Scope -of -Work" means different activities than those described in Attachment "A" and not additional time to complete those activities than the parties anticipated on the date they entered this Agreement. 4.3 Sub -contractor Payment. The use of sub -consultants or other services to perform a portion of the work of this Agreement shall be approved by Successor Agency prior to commencement of work. The cost of sub -consultants shall be included within guaranteed not -to -exceed amount set forth in Section 4.1. 4.4 Terms of Payment. Payment to Consultant for services rendered in accordance with this contract shall be based upon submission of monthly invoices for the work satisfactorily performed prior to the date of the invoice less any amount already paid to Consultant, which amounts shall be due and payable thirty (30) days after receipt by Successor Agency. The invoices shall provide a description of each item of work performed, the time expended to perform each task, the fees charged for that task, and the direct expenses incurred and billed for. Invoices shall be accompanied by documentation sufficient to enable Successor Agency to determine progress made and to support the expenses claimed. 5.0 ASSURANCES OF CONSULTANT 5.1 Independent Contractor. Consultant is an independent contractor and is solely responsible for its acts or omissions. Consultant (including its agents, servants, and employees) is not the Successor Agency's agent, employee, or representative for any purpose. It is the express intention of the parties hereto that Consultant is an independent contractor and not an employee, joint venturer, or partner of Successor Agency for any purpose whatsoever. Successor Agency shall have no right to, and shall not control the manner or prescribe the method of accomplishing those services contracted to and performed by Consultant under this Agreement, and the general public and all governmental agencies regulating such activity shall be so informed. PAGE 2 OF 8 COU No.1920-120 Those provisions of this Agreement that reserve ultimate authority in Successor Agency have been inserted solely to achieve compliance with federal and state laws, rules, regulations, and interpretations thereof. No such provisions and no other provisions of this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Consultant and Successor Agency. Consultant shall pay all estimated and actual federal and state income and self- employment taxes that are due the state and federal government and shall furnish and pay worker's compensation insurance, unemployment insurance and any other benefits required by law for himself and his employees, if any. Consultant agrees to indemnify and hold Successor Agency and its officers, agents and employees harmless from and against any claims or demands by federal, state or local government agencies for any such taxes or benefits due but not paid by Consultant, including the legal costs associated with defending against any audit, claim, demand or law suit. Consultant warrants and represents that it is a properly licensed professional or professional organization with a substantial investment in its business and that it maintains its own offices and staff which it will use in performing under this Agreement. 5.2 Conflict of Interest. Consultant understands that its professional responsibility is solely to Successor Agency. Consultant has no interest and will not acquire any direct or indirect interest that would conflict with its performance of the Agreement. Consultant shall not in the performance of this Agreement employ a person having such an interest. If the Successor Agency Chairperson determines that the Consultant has a disclosure obligation under the Successor Agency's local conflict of interest code, the Consultant shall file the required disclosure form with the Secretary within 10 days of being notified of the Successor Agency Chairperson's determination. 6.0 INDEMNIFICATION 6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2 Consultant shall not begin work under this Agreement until it procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage — Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. PAGE 3 OF 8 COU No.1920-120 4. Errors and Omissions liability insurance appropriate to the consultant's profession. Architects' and engineers' coverage is to be endorsed to include contractual liability. B. Minimum Limits of Insurance Consultant shall maintain limits no less than: 1. General Liability: $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $2,000,000 combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Worker's compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. 4. Errors and Omissions liability: $2,000,000 per occurrence. C. Deductibles and Self -Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the Successor Agency. At the option of the Successor Agency, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the Successor Agency, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages a. The Successor Agency, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the Consultant, products and completed operations of the Consultant, premises owned, occupied or used by the Consultant, or automobiles owned, hired or borrowed by the Consultant for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope -of -protection afforded to the Successor Agency, its officers, officials, employees or volunteers. b. The Consultants insurance coverage shall be primary insurance as respects to the Successor Agency, its officers, officials, PAGE 4 OF 8 COU No.1920-120 employees and volunteers. Any insurance or self-insurance maintained by the Successor Agency, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Successor Agency, its officers, officials, employees or volunteers. d. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the Successor Agency, its officers, officials, employees and volunteers for losses arising from Consultant's performance of the work, pursuant to this Agreement. 3. Professional Liability Coverage If written on a claims -made basis, the retroactivity date shall be the effective date of this Agreement. The policy period shall extend one year from date of final invoice. 4. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Successor Agency. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A- for financial strength, AA for long-term credit rating and AMB -1 for short-term credit rating. F. Verification of Coverage Consultant shall furnish the Successor Agency with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the Successor Agency. Where by statute, the Successor Agency's Workers' Compensation - related forms cannot be used, equivalent forms approved by the Insurance Commissioner are to be substituted. All Certificates and Endorsements are to be received and approved by the Successor Agency before Consultant begins the work of this Agreement. The Successor Agency reserves the right to require PAGE 5 OF 8 COU No.1920-120 complete, certified copies of all required insurance policies, at any time. If Consultant fails to provide the coverages required herein, the Successor Agency shall have the right, but not the obligation, to purchase any or all of them. In that event, the cost of insurance becomes part of the compensation due the contractor after notice to Consultant that Successor Agency has paid the premium. G. Subcontractors Consultant shall include all subcontractors or sub -consultants as insured under its policies or shall furnish separate certificates and endorsements for each sub- contractor or sub -consultant. All coverage for sub -contractors or sub -consultants shall be subject to all insurance requirements set forth in this Paragraph 6.1. 6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, Consultant agrees, for the full period of time allowed by law, surviving the termination of this Agreement, to indemnify the Successor Agency for any claim, cost or liability that arises out of, or pertains to, or relates to any negligent act or omission or the willful misconduct of Consultant in the performance of services under this contract by Consultant, but this indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by the Successor Agency, or arising from the active negligence of the Successor Agency. "Indemnify," as used herein includes the expenses of defending against a claim and the payment of any settlement or judgment arising out of the claim. Defense costs include all costs associated with defending the claim, including, but not limited to, the fees of attorneys, investigators, consultants, experts and expert witnesses, and litigation expenses. References in this paragraph to Successor Agency or Consultant, include their officers, employees, agents, and subcontractors. 7.0 CONTRACT PROVISIONS 7.1 Ownership of Work. All documents furnished to Consultant by Successor Agency and all documents or reports and supportive data prepared by Consultant under this Agreement are owned and become the property of the Successor Agency upon their creation and shall be given to Successor Agency immediately upon demand and at the completion of Consultant's services at no additional cost to Successor Agency. Deliverables are identified in the Scope -of -Work, Attachment "A". All documents produced by Consultant shall be furnished to Successor Agency in digital format and hardcopy. Consultant shall produce the digital format, using software and media approved by Successor Agency. 7.2 Governing Law. Consultant shall comply with the laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. The interpretation and enforcement of this Agreement shall be governed by California law and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 7.3 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments set forth the entire understanding between the parties. PAGE 6 OF 8 COU No.1920-120 7.4 Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 7.5 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 7.6 Assignment. Consultant's services are considered unique and personal. Consultant shall not assign, transfer, or sub -contract its interest or obligation under all or any portion of this Agreement without Successor Agency 's prior written consent. 7.7 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. 7.8 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because funds are no longer available to pay Consultant for services provided under this Agreement; or 3) Successor Agency has abandoned and does not wish to complete the project for which Consultant was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the breaching party fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to Consultant. Successor Agency shall pay the Consultant only for services performed and expenses incurred as of the effective termination date. In such event, as a condition to payment, Consultant shall provide to Successor Agency all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Consultant under this Agreement. Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder, subject to off -set for any direct or consequential damages Successor Agency may incur as a result of Consultant's breach of contract. 7.9 Execution of Agreement. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. Alternatively, this Agreement may be executed and delivered by facsimile or other electronic transmission, and in more than one counterpart, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. When executed using either alternative, the executed agreement shall be deemed an original admissible as evidence in any administrative or judicial proceeding to prove the terms and content of this Agreement. 8.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally delivered or deposited in the mail (certified or registered) addressed to the parties as follows: SUCCESOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF UKIAH 300 SEMINARY AVENUE UKIAH, CALIFORNIA 95482-5400 PAGE 7 OF 8 THE WEIST LAW FIRM MR. CAMERON A WEIST, ESQ. 20 S. SANTA CRUZ AVE., SUITE 300 LOS GATOS, CALIFORNIA 95030 COU No.1920-120 9.0 SIGNATURES IN WITNESS WHEREOF, the parties have executed this Agreement the Effective Date: CONS T 41 BY: fif/1/l11'r�i r PRIN AME: (V Parti E 2 i U t S 1 A-565- qc- 3055 IRS IDN Number Date SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF UKIAH BY: OVL AUREEN MULHEREN Date CHAIRPERSON ATTEST k6 w 1 S CRETARY Date l' GI. H OI ATTACHMENT "A" SCOPE OF SERVICES & FEE STRUCTURE BOND AND DISCLOSURE COUNSEL SERVICES FOR SUCCESSOR AGENCY TO THE UKIAH REDEVELOPMENT AGENCY In connection with the issuance of Successor Agency to the Ukiah Redevelopment Agency, Series 2019A Tax Allocation Refunding Bonds (Ukiah Redevelopment Project) and/or the Successor Agency to the Ukiah Redevelopment Agency, Series 2019B Tax Allocation Refunding Bonds (Ukiah Redevelopment Project) (the "Refunding Bonds"), the proceeds of which will be used to prepay and legally defease all outstanding (i) Ukiah Redevelopment Agency (Ukiah Redevelopment Project), Tax Allocation Refunding Bonds, Series 2007, issued in the aggregate principal amount of $5,595,000 (the "Series 2007 Bonds"), (ii) the Ukiah Redevelopment Agency, Ukiah Redevelopment Project, Tax Allocation Bonds, 2011 Series A, issued in the aggregate principal amount of $5,180,000 (the "Series 2011A Bonds"), and (iii) the Ukiah Redevelopment Agency, Ukiah Redevelopment Project, Taxable Tax Allocation Housing Bonds, 2011 Series B, issued in the aggregate principal amount of $3,250,000 (the "Series 2011B Bonds" and, together with the Series 2011A Bonds and the Series 2007 Bonds, the "Prior Bonds"), Weist Law agrees to provide the following services: Pre -Refunding Considerations. Weist Law agrees to counsel the Successor Agency as to certain legal pre -refunding considerations as the Successor Agency prepares for the issuance of Refunding Bonds. Some of these considerations include: (i) checking to ensure that that the Prior Bonds can be refunded in compliance with all laws of the federal government and of the State of California; (ii) making sure that all parity debt that is not being restructured is fully considered and that all associated respective covenants are examined for compliance; (iii) attending such workshops, meetings or hearings of the Successor Agency Board (the "Board"), and working group meetings or conference calls as the Successor Agency may request, and as Bond Counsel deems prudent and necessary; (iv) proceeding on a multifaceted, dual -track basis of both a private placement and public offering, with the goal being that the Successor Agency achieves the lowest cost financing possible; (v) working with the escrow agent(s) to ensure that all required redemption notices are timely and properly delivered to existing bond owners of the debt being refinanced; (vi) making sure that the escrow agreements properly and legally defeases all outstanding Prior Bonds, and that the escrow investments meet the requirements of the requisite underlying Prior Bonds indentures; and (vii) answering questions as to the legal reserve levels, and/or surety reserve requirements and levels, as the case may be. AGREEMENT FOR BOND COUNSEL SERVICES 1 Bond Counsel Services: Bond Counsel shall provide the following legal services in connection with the preparation of the resolutions, documents and certifications necessary for the execution and delivery of the Refunding Bonds. Such services shall include the following: 1. Consulting with representatives of the Successor Agency, including all staff members, the Califomia Department of Finance, the municipal advisor, the placement agent, the underwriter or bank (as the case may be), the fiscal consultant, and all others, with respect to the timing, terms, legal structure and closing conditions, as deemed necessary by Bond Counsel in connection with the issuance of the Refunding Bonds. 2. Preparing all resolutions, ordinances, notices, affidavits, escrow agreements, Depository Trust Company agreements, indentures, or loan agreements, and other legal documents customarily prepared by Bond Counsel, as required for the issuance of Refunding Bonds (the "Principle Documents"). 3. Reviewing documents prepared by Successor Agency staff, advisors, and/or consultants, including audit reports and budgets, project descriptions, fiscal consultant reports, the purchase contract(s) to be derived therefrom, that might have a bearing on the Refunding Transaction. 4. Preparing documentation with respect to any bond provisions, parity debt provisions and reserve fund policy provided or required in connection with the Refunding Bonds, if any. 5. Attending such meetings or hearings of the Board, and working group meetings or conference calls as the Successor Agency may request, and as Bond Counsel deems prudent and necessary. 6. Advising as to the prudence of seeking a rating and/or bond insurance, if applicable. 7. Preparing all final closing papers required to effectuate delivery of the Refunding Bonds, and coordinating the closings thereof. 8. Preparing the required reports to the California Debt and Investment Advisory Commission (pursuant to section 8855 et seq. of the Government Code), and Form 8038-G to the Internal Revenue Service (pursuant to Section 149 of the Internal Revenue Code of 1986). 9. Preparing a complete transcript of the proceedings, containing originally signed copies of all resolutions, ordinances, legal agreements, disclosure statements, certificates and notices. Two copies shall be provided to the Successor Agency. Disclosure Counsel Services: If, and only in the event that a private placement of the Refunding Bonds is not feasible (and therefore an official statement is not legally required), The Weist Law Firm will serve as the Successor Agency's Disclosure Counsel to provide the following legal services in connection with the preparation of the Official Statement for the Refunding Bonds, and related sales documents to be used in connection with such financing. Such services shall include the following: 1. Conferring and consulting with Successor Agency staff and officers in order to perform the due diligence required to produce the Official Statement (both preliminary and final). Attachment A - Contract # 1920120 Page 2 of 3 2. Conferring and consulting with underwriters, attorneys, municipal advisors, engineers, trustees or fiscal or paying agents, feasibility consultants and all other professionals or participants in the issuance of the Refunding Bonds, in order to perform the due diligence required to produce the Official Statement(s) (both preliminary and final). 3. Reviewing all agreements, certificates, resolutions, orders, notices, and affidavits produced in said proceedings and such other reports, documents and correspondence of legal nature as may be necessary in order to perform the due diligence required to produce the Official Statement(s) (both preliminary and final). 4. Preparing or assisting in the preparation of the bond purchase contract relating thereto. 5. Preparing or assisting in the preparation of a continuing disclosure certificate to assist the underwriter with compliance with the provisions of Securities and Exchange Commission Rule 15c2-12. 6. Providing an opinion indicating compliance with (i) Section 17(a) of the Securities Act of 1933, (ii) Section 10b-5 of the Securities Exchange Act of 1934, and (iii) Rule 15c2-12 of the Securities Exchange Act of 1934. Fee Structure: Fees for legal services for the Refunding and issuance of the Refunding Bonds as described will be in accordance with the table below: Out-of-pocket expenses include such things as out -of -office fee (charged at $650 for each day of required travel) printing, mailing, travel and transcript preparation (charged at $450 for each transcript). Attachment A - Contract #1920120 Page 3 of 3 Bond Counsel Disclosure Counsel Combined Bond and Disclosure Counsel Fee $55,500 $37,500 93,000 Expense $2,500 $1,500 $4,000 Out-of-pocket expenses include such things as out -of -office fee (charged at $650 for each day of required travel) printing, mailing, travel and transcript preparation (charged at $450 for each transcript). Attachment A - Contract #1920120 Page 3 of 3