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|CITY COUNCIL AGENDA ITEM NO. 5
Meeting Date: April 22, 2008
Subject/Title: Adopt a Resolution approving and authorizing the City Manager to execute a Professional Services Agreement with Francisco & Associates, Inc., in the amount of $200,000, plus 10% contingency of $20,000 for a total amount of $220,000, for assessment engineering services in connection with the 2008/09 administration services for the bonded assessment districts.
Prepared by: Brian Kelleher, Accountant II
Submitted by: Pamela Ehler, Director of Finance and Information Systems
Adopt a Resolution approving and authorizing the City Manager to execute a Professional Services Agreement with Francisco & Associates, Inc., in the amount of $200,000, plus 10% contingency of $20,000 for a total amount of $220,000, for the assessment engineering services in connection with the 2008/09 administration services for the bonded assessment districts.
On March 27, 2007, the City Council approved Resolution No. 2007-52 executing an agreement with Francisco & Associates for the assessment engineering services in connection with the 2007/08 administration services for the bonded assessment districts.
The City of Brentwood formed Assessment Districts pursuant to the Municipal Improvement Act of 1913, issued bonds pursuant to the Improvement Bond Act of 1915 and levied special assessments on property within these Assessment Districts as described in a Resolution of Intention. These Assessment Districts were formed to finance a portion of the costs for the acquisition, construction and the installation of certain capital improvements throughout the City. The City of Brentwood has the responsibility to levy and collect special assessments each year in order to meet debt service payments and to appoint a Trustee for the bondholders to ensure that all covenants and conditions are being observed.
The growth of the City has resulted in 13 assessment districts and the need for a consulting firm who can devote all of their resources to the City of Brentwood. Francisco and Associates is intricately associated with the City and currently provides assessment reapportionment for the bonded assessment districts. In addition, for the last nine years Francisco and Associates has been the designated engineer of work on the Landscaping and Lighting Districts, Citywide Maintenance Districts and Community Facilities Districts. Francisco and Associates will provide complete administrative services, including delinquency management in addition to any other assessment and tax services as requested by the City in association with the bonded assessment districts.
For each of the last six years, the City has added an assessment district bond which will increase the number of parcels that have an assessment within the City. Although the City issues delinquency letters twice a year, the number of delinquent parcels in our assessment districts has increased over the last few years. As a result, the City will obtain additional delinquency reports from the County and continue to monitor the delinquencies. If necessary, the City will issue a third delinquency letter in July for the parcels that remain delinquent for the 2007/08 assessments. The letter(s) help reduce the delinquency rate in some of our districts and alleviate the City from going through the foreclosure process. In addition to prompting some people to pay, the letter also constitutes a record of the City’s efforts to avoid foreclosure.
The Professional Services Agreement with Francisco and Associates, Inc., is in an amount not to exceed $220,000 for assessment engineering services. To ensure the 1915 Act Assessment Districts are self-supporting, each existing district has an administrative cost factored into the assessment rate. As a result, there will be no fiscal impact to the City. All fees for administration, debt service, continuing disclosure, arbitrage and delinquency management will be recovered through the annual levy process for each assessment district. These amounts are included in the adopted Operating Budgets for fiscal year 2007/08 and 2008/09.
Francisco and Associates Professional Services Agreement
A RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH FRANCISCO & ASSOCIATES, INC., IN THE AMOUNT OF $200,000, PLUS 10% CONTINGENCY OF $20,000 FOR A TOTAL AMOUNT OF $220,000 FOR THE ASSESSMENT ENGINEERING SERVICES IN CONNECTION WITH THE 2008/09 ADMINISTRATION SERVICES FOR THE BONDED ASSESSMENT DISTRICTS
WHEREAS, On March 27, 2007, the City Council approved Resolution No. 2007-52 executing an agreement with Francisco & Associates for the assessment engineering services in connection with the 2007/08 administration services for the bonded assessment districts.
WHEREAS, the City of Brentwood formed Assessment Districts pursuant to the Municipal Improvement Act of 1913, issued bonds pursuant to the Improvement Bond Act of 1915 and levied special assessment on property within these Assessment Districts as described in a Resolution of Intention; and
WHEREAS, the City of Brentwood has the responsibility to levy and collect special assessments each year in order to meet debt service payments and to appoint a Trustee for the bondholders to ensure that all covenants and conditions are being observed; and
WHEREAS, the growth of the City has resulted in 14 assessment districts and the need for a consulting firm who can devote all of their resources to the City of Brentwood; and
WHEREAS, The Professional Services Agreement with Francisco and Associates, Inc., is in an amount not to exceed $220,000 for assessment engineering services; however, there will be no fiscal impact to the City. All fees for administration, debt service, continuing disclosure, arbitrage and delinquency management will be recovered through the annual levy process for each assessment district.
NOW, THEREFORE BE IT RESOLVED that City Council of the City of Brentwood approves and authorizes the City Manager to execute, a Professional Services Agreement with Francisco & Associates, Inc., in the amount of $200,000, plus 10% contingency of $20,000 for a total amount of $220,000 for the assessment engineering services in connection with the 2008/09 administration services for the bonded assessment districts.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 22nd day of April 2008 by the following vote:
AGREEMENT FOR ASSESSMENT ENGINEERING SERVICES
Francisco & Associates, Inc.
THIS AGREEMENT is made and entered into as of the _____ day of __________________, 2008, by and between the City of Brentwood, a municipal corporation of the State of California ("City"), and Francisco & Associates, Inc., a California corporation ("Consultant") (each a “Party” and collectively, the “Parties”).
A. City requires the professional services of a consultant that is experienced in assessment engineering services in connection with annual administration services for the bonded assessment districts and any other assessment and tax services requested by the City.
B. Consultant has the necessary professional skills and experience necessary to perform the services described in this Agreement.
C. City desires to engage Consultant to provide these services by reason of its qualifications and experience in performing such services
D. Consultant has submitted a proposal to City and has affirmed its willingness and ability to perform such work on the terms and manner set forth in this Agreement.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, the Parties agree as follows:
1. Scope of Work.
1.1 City retains Consultant to perform, and Consultant agrees to render, those services (the "Services") that are described in the attached Exhibit "A," which is incorporated by this reference, pursuant to this Agreement’s terms and conditions.
1.2 Consultant will be responsible for the professional quality, technical accuracy and coordination of the Services. Consultant will, without additional compensation, correct or revise any errors or deficiencies in the Services.
1.3. Consultant will keep City informed on a regular basis that the Services are being performed in accordance with the requirement and intentions of this Agreement.
1.4 If applicable, Consultant has designated those persons listed in Exhibit “A” to provide the Services to the City. Consultant will not change or reassign those persons described in Exhibit “A” without prior written notice to City, and will not replace those individuals with individuals to whom City has a reasonable objection.
2. Standard of Performance. Consultant acknowledges that in entering into this Agreement the City is relying on Consultant's special skills and experience to do and perform the Services in accordance with best standards of professional practice. While performing the Services, Consultant will exercise the reasonable professional care and skill customarily exercised by reputable members of Consultant's profession practicing in the Northern California area. The acceptance of the Services by City does not release Consultant from these obligations.
Consultant will be responsible for employing or engaging all persons necessary to perform the Services. All of Consultant's staff will be qualified by training and experience to perform their assigned tasks. Consultant will give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees and subcontractors, if any, and will keep the Services under its control. On demand of City, if any employee or subcontractor of Consultant fails or refuses to carry out the provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper manner, he or she will be discharged immediately from the Services.
3. Term. Unless earlier terminated, the term of this Agreement will commence upon the date first above written and will expire upon completion of the Services by Consultant.
4. Schedule. Consultant will generally adhere to the schedule set forth in Exhibit “A” provided, that City will grant reasonable extensions of time for the performance of the Services occasioned by unusually lengthy governmental reviews of Consultant’s work product or other unavoidable delays occasioned by unforeseen circumstances; provided, further, that such unavoidable delay will not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, Consultant’s officers or employees.
Consultant acknowledges the importance to City of City’s project schedule and agrees to put forth its best professional efforts to perform the Services in a manner consistent with that schedule. City understands, however, that Consultant’s performance must be governed by sound practices. Consultant will work such overtime or engage such personnel and equipment as necessary to maintain the schedule, without additional compensation.
5.1 The total fee payable for the Services to be performed during the term of this Agreement will be a not to exceed amount of Two Hundred Thousand dollars ($200,000) as may be further specified in the attached Exhibit “A.” No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the Services.
5.2 Payment will occur only after receipt by City of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City.
5.3 Within thirty (30) days after receipt of any applicable progress payment request, City will verify the accuracy of the request, correct the charges where appropriate, and make payment to Consultant in an amount equal to the amount of such application, as verified or corrected by City. No payment made prior to completion and acceptance of the Services will constitute acceptance of any part of the Services. City reserves the right to withhold payment from Consultant on account of Services not performed satisfactorily, delays in Consultant's performance of Services, or other defaults hereunder.
6. Status of Consultant. Consultant will perform the Services in Consultant's own way and pursuant to this Agreement as an independent contractor and in pursuit of Consultant's independent calling, and not as an employee of City. The persons used by Consultant to provide the Services under this Agreement will not be considered employees of City for any purposes.
The payment made to Consultant pursuant to the Agreement will be the full and complete compensation to which Consultant is entitled. City will not make any federal or state tax withholdings on behalf of Consultant or its agents, employees or subcontractors. City will not pay any workers' compensation insurance, retirement contributions or unemployment contributions on behalf of Consultant or its employees or subcontractors. Consultant agrees to indemnify and pay City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Consultant or any agent, employee, or contractor of Consultant for work done under this Agreement. At the City’s election, City may deduct the amounts paid pursuant to this Section, from any balance owing to Consultant.
7. Subcontracting. Consultant's services are unique and personal. Except as may be specified in Exhibit “A”, Consultant will not subcontract any portion of the Services without prior written approval of City Manager or his/her designee. If Consultant subcontracts any of the Services, Consultant will be fully responsible to City for the acts, errors and omissions of Consultant's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Consultant is for the acts and omissions of persons directly employed by Consultant. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Consultant and City. Consultant will be responsible for payment of subcontractors. Consultant will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Consultant's work unless specifically noted to the contrary in the subcontract and approved in writing by City.
8. Other Consultants. The City reserves the right to employ other consultants in connection with the Services.
9. Indemnification. Consultant will hold harmless, defend and indemnify City, its officers, agents, volunteers and employees from and against any and all claims, demands, costs or liability including attorney fees arising out of or in any way connected with the performance of this Agreement, caused in whole or in part by any act or omission of the Consultant, any of its subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except to the extent caused by the active negligence, sole negligence, or willful misconduct of City.
10. Insurance. Consultant will obtain and maintain, at its cost and expense, for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the Services by Consultant or Consultant’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-VII."
10.1 Coverages and Limits. Consultant will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager, in consultation with the City Attorney approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Consultant's indemnification obligations under this Agreement. City, its officers, agents, volunteers and employees make no representation that the limits of the insurance specified to be carried by Consultant pursuant to this Agreement are adequate to protect Consultant. The coverage will contain no special limitations on the scope of its protection to the above-designated insureds except for Workers Compensation and errors and omissions insurance. Consultant will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. If Consultant believes that any required insurance coverage is inadequate, Consultant will obtain such additional insurance coverage, as Consultant deems adequate, at Consultant's sole expense.
10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liability. $1,000,000 combined single-limit per accident for bodily injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Consultant has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to Consultant’s profession with limits of not less than $1,000,000 per claim.
10.2 Endorsements. For Commercial General Liability Insurance and Automobile Liability Insurance, Consultant will ensure that the policies are endorsed to name the City, its officers, agents, volunteers and employees as additional insureds. Prior to City's execution of this Agreement, Consultant will furnish certificates of insurance and endorsements to City.
10.3 Cancellation. Insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent pursuant to the notice provisions of this Agreement.
10.4 Failure to Maintain Coverage. If Consultant fails to maintain any of these insurance coverages, then City will have the option to declare Consultant in breach of this Agreement, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Consultant is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Consultant or deduct the amount paid from any sums due Consultant under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements.
10.6 Primary Coverage. For any claims related to the Services and this Agreement, the Consultant’s insurance coverage will be primary insurance with respect to City, its officers, agents, volunteers and employees. Any insurance or self-insurance maintained by City for itself, its officers, agents, volunteers and employees, will be in excess of Consultant’s insurance and not contributory with it.
10.7 Reduction in Coverage/Material Changes. Consultant will notify City in writing pursuant to the notice provisions of this Agreement thirty (30) days prior to any reduction in any of the insurance coverage required pursuant to this Agreement or any material changes to the respective insurance policies.
10.8 Waiver of Subrogation. The policies shall contain a waiver of subrogation for the benefit of City.
11. Business License. Consultant will obtain and maintain a City of Brentwood Business License for the term of the Agreement, as it may be amended from time-to-time.
12. Maintenance of Records. Consultant will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Consultant will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Consultant will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
13. Ownership of Documents.
13.1 All product produced by Consultant or its agents, employees, and subcontractors pursuant to this Agreement (the “Work Product”) is the property of City. In the event this Agreement is terminated, all Work Product produced by Consultant or its agents, employees and subcontractors pursuant to this Agreement will be delivered to City pursuant to the termination clause of this Agreement. Consultant will have the right to make one (1) copy of the Work Product for Consultant’s records.
13.2 The Work Product may be used by City and its agents, employees, representatives, and assigns, in whole or in part, or in modified form, for all purposes City may deem advisable, without further employment of or payment of any compensation to Consultant; provided, however, that if this Agreement is terminated for any reason prior to completion of the Project and if under such circumstances City uses, or engages the services of and directs another consultant to use, the Work Product, City agrees to hold Consultant harmless from any and all liability, costs, and expenses relative to claims arising out of matters and/or events which occur subsequent to the termination of this Agreement as a result of causes other than the fault or negligence of Consultant, or anyone for whose acts it is responsible, in preparation of the Work Product. Consultant will not be responsible for deficiencies solely attributable to modifications of the Work Product performed by others, or that arise from use of the Documents in connection with a project or site other than that shown in the Work Product.
14. Copyrights. Consultant agrees that all copyrights that arise from the Services will be vested in City and Consultant relinquishes all claims to the copyrights in favor of City.
15. Confidentiality. All documents, reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of the Services pursuant are confidential until released by the City to the public, and the Consultant will not make any of these documents or information available to any individual or organization not employed by the Consultant or the City without the written consent of the City before any such release.
16. Notices. Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given and served for all purposes when delivered personally, by facsimile or by generally recognized overnight courier service, or five (5) days after deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, addressed as follows:
City of Brentwood
150 City Park Way
Brentwood, CA 94513
Phone No. (925) 516-5109
Facsimile No. (925) 516-5401
Attn: Pamela Ehler For Consultant:
Name: Joseph A. Francisco, P.E.
Address: 130 Market Place, Suite 160
San Ramon, CA 94583
Phone No.: (925) 867-3400
Facsimile No.: (925) 867-3415
Attn: Joseph A. Francisco, P.E
Either Party may change its address for purposes of this section by giving the other Party written notice of the new address in the manner set forth above.
17. Conflicts of Interest.
17.1 City will evaluate Consultant’s duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City’s Conflict of Interest Code is required of Consultant or any of Consultant’s employees, agents, or subcontractors. Should it be determined that disclosure is required, Consultant or Consultant’s affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700.
17.2 Consultant understands that its professional responsibility is solely to City. Consultant warrants that it presently has no interest, present or contemplated, and will not acquire any direct or indirect interest, that would conflict with its performance of this Agreement. Consultant further warrants that neither Consultant, nor Consultant’s agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Consultant will file with the City an affidavit disclosing this interest. Consultant will not knowingly, and will take reasonable steps to ensure that it does not, employ a person having such an interest in the performance of this Agreement. If after employment of a person, Consultant discovers that it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant will promptly disclose the relationship to the City and take such action as the City may direct to remedy the conflict.
18. General Compliance with Laws. Consultant will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Consultant, or in any way affect the performance of the Services by Consultant. Consultant will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of the Services with all applicable laws, ordinances and regulations.
19. Discrimination and Harassment Prohibited. Consultant will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment.
20. Termination. In the event of the Consultant's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Consultant in writing pursuant to the notice provisions of this Agreement. Consultant has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Consultant has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. In the event City elects to terminate, City will have the right to immediate possession of all Work Product and work in progress prepared by Consultant, whether located at the project site, at Consultant's place of business, or at the offices of a subconsultant.
Either Party, upon tendering thirty (30) calendar days written notice to the other Party, may terminate this Agreement for convenience. In this event and upon request of City, Consultant will assemble the work product without charge and put it in order for proper filing and closing and deliver it to City. Consultant will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made.
21. Covenants Against Contingent Fees. Consultant warrants that Consultant has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, and that Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to terminate this Agreement for nonperformance, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. Claims And Lawsuits. By signing this Agreement, Consultant agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Consultant acknowledges that if a false claim is submitted to City by Consultant, it may be considered fraud and Consultant may be subject to criminal prosecution. Consultant acknowledges that California Government Code sections 12650 et seq., the False Claims Act, applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Consultant acknowledges that the filing of a false claim may subject Consultant to an administrative debarment proceeding as the result of which Consultant may be prevented to act as a Consultant on any public work or improvement for a period of up to five (5) years. Consultant acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement.
23. Dispute Resolution. Should any dispute arise out of this Agreement, either Party may request that it be submitted to mediation. The Parties will meet in mediation within thirty (30) days of a request. The cost of mediation will be borne equally by the Parties. Neither Party will be deemed the prevailing party. No Party will be permitted to file a legal action without first requesting mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator will last until agreement is reached by the Parties but not more than sixty (60) days, unless the maximum time is extended by the parties.
24. Jurisdiction, Venue and Governing Law. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of Contra Costa, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county. This agreement will be governed by the laws of the State of California.
25. Testimony. Consultant will testify at City's request if litigation is brought against City in connection with Consultant's services under this agreement. Unless the action is brought by Consultant, or is based upon Consultant's actual or alleged negligence or other wrongdoing, City, upon prior written agreement with Consultant will compensate Consultant for time spent in preparation for testimony, testimony, and travel at Consultant's standard hourly rates at the time of actual testimony.
26. Successors and Assigns. It is mutually understood and agreed that this Agreement will be binding upon the Parties and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Consultant without the prior written consent of City, which will not be unreasonably withheld.
27. Section Headings. Section headings as used in this Agreement are for convenience only and will not be deemed to be a part of such sections and will not be construed to change the meaning of the section.
28. Waivers. The waiver by either Party of any breach or violation of any term, covenant, or condition of this Agreement or of any applicable law will not be deemed to be a waiver of such term, covenant, condition or law or of any subsequent breach or violation of same or of any other term, covenant, condition or law. The acceptance by either Party of any fee or other payment which may become due under this Agreement will not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, covenant, or condition of this Agreement or any applicable law.
29. Entire Agreement. This Agreement, together with any other written document referred to or contemplated by it embody the entire Agreement and understanding between the parties relating to the subject matter of it. The City Manager is authorized, in consultation with the City Attorney, to agree to non-material amendments to this Agreement. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties.
30. Authority. The individuals executing this Agreement and the instruments referenced in it on behalf of Consultant each represent and warrant that they have the legal power, right and actual authority to bind Consultant to the terms and conditions of this Agreement.
31. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
Donna Landeros, City Manager
Margaret Wimberly, City Clerk
APPROVED AS TO FORM:
Damien Brower, City Attorney
If required by City, proper notarial acknowledgment of execution by Consultant must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups.
*Group A. **Group B.
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.
SCOPE OF SERVICES
Consultant shall perform the following tasks related to Assessment Engineering Services.
PHASE I – ASSESSMENT DISTRICT ADMINISTRATION
Task No. 1 Develop the ensuing year’s assessment database for each assessment district. The assessment databases will include a listing of each parcel’s original assessment amount, remaining principal amount, and the current year’s principal, interest and administrative charges.
Task No. 2 Coordinate with the City on a periodic basis to analyze the cash flow in each assessment district fund. This will include recommending credits to the ensuing year’s levy due to interest earnings. When warranted assist with the bond call spreads and coordinate the early redemption of outstanding bonds.
Task No. 3 Coordinate with the County Assessor’s office in July of each fiscal year to determine which parcels within the City’s assessment districts have segregated. For each parcel that has segregated determine the new parcels corresponding to each segregated parcel and reallocate their assessment lien.
Task No. 4 Based upon the parcel changes described in Task No. 3 update the assessment database for each assessment district.
Task No. 5 After receiving City approval, submit the assessment levies to the County in their required electronic format. If there are any additional parcel kick-outs research the parcels and resubmit them to the County so that they are included on the ensuing year’s property tax roll.
Task No. 6 Prepare an electronic listing of the assessment levies for each assessment district and forward to the City.
Task No. 7 Provide a toll free number to field property owner inquiries throughout the fiscal year.
Task No. 8 Prepare an annual report, which will include findings and recommendations, as well as a summary of significant events. The report will contain a series of schedules, including district summary information; what was applied to the tax roll for each parcel, broken down by principal, interest and adjustments; fund analysis; delinquency summary information; value to lien ratios; current debt services and amortization schedules; cash flow analysis; and bond call summaries.
Task No. 9 Prepare and submit the required CDIAC reports each year for each applicable assessment district.
Task No. 10 Prepare the annual report required pursuant to Revenue and Taxation Code, Section 163 to the County Assessor. The Report will contain:
• The lien amount on each subject parcel at the time the lien was created.
• In the case in which a lien has been completely satisfied, the date and amount of the payment in satisfaction of the lien, and the identity of the party that made that payment.
• The amount of the principal balance of the lien on each subject parcel.
PHASE II – ASSESSMENT PREPAYMENT CALCULATIONS
Task No. 1 Provide assessment prepayment calculations to interested parties throughout the fiscal year. The prepayment calculations will take into account, remaining principal, interest to the next bond call date, prepayment penalties, city administrative fees, etc.
Task No. 2 Mail, fax or e-mail the prepayment calculation to the interested property owner within 24 hours of the request.
Task No. 3 Coordinate the Release of Lien with the County when a property owner has paid their assessment off in full.
PHASE III – DELINQUENCY ADMINISTRATION
Task No. 1 Coordinate with the County each year and obtain a listing of delinquent parcels for each bonded assessment district which have not paid their assessments by December 10. This report is available approximately one (1) month after the December 10 payment due date.
Task No. 2 Prepare a Delinquency Report identifying all parcels which have not paid their December installment. The report will be prepared in January of each year and include the assessor parcel number, property owner name, mailing address, situs address, delinquent installment amount and corresponding payment due date.
Task No. 3 Prepare Delinquency Reminder Letters, approved by the City and mail them to each property owner in January giving them 30 days to cure their delinquency.
Task No. 4 Coordinate with the County each year and obtain a listing of delinquent parcels for each bonded assessment district which have not paid their assessments by April 10. This report is available approximately one (1) month after the April 10 payment due date.
Task No. 5 Prepare an updated Delinquency Report identifying all parcels which have not paid their December and/or April installment. The report will be prepared in May of each year and include the assessor parcel number, property owner name, mailing address, situs address, delinquent installment amounts and corresponding payment due dates.
Task No. 6 Prepare Delinquency Reminder Letters, approved by the City and mail them to each property owner in May giving them 30 days to cure their delinquency.
Task No. 7 Coordinate with the County each year and obtain a listing of delinquent parcels for each bonded assessment district which have not paid their assessments by July 1. This report will be requested in July of each year.
Task No. 8 Prepare Delinquency Demand Letters, approved by the City and mail them to each property owner in July giving them 30 days to cure their delinquency.
Task No. 9 Prepare a Final Delinquency Report identifying all parcels remaining delinquent and their corresponding delinquent installment amounts. The report will be prepared in August of each year and include the assessor parcel number, property owner name, mailing address, situs address, delinquent installment amounts and corresponding payment due dates.
Task No. 10 If required, coordinate with Legal Counsel and strip the delinquent assessments from the County’s Secured Property Tax Roll. Assist Legal Counsel with the foreclosure process as necessary.
PHASE IV - CONTINUING DISCLOSURE
Prepare and disseminate Disclosure Reports to the Nationally-Recognized Municipal Securities Information Repositories (NRMSIR), the Municipal Securities Rulemaking Board (MSRB) and the appropriate State Information Depository (SID).
Task No. 1 Prepare the Annual Continuing Disclosure Report and respond to secondary information requirements set forth in SEC Section 15c2-12, as amended and SEC Section 10b-5.
Task No. 2 Prepare Notice of Material/Significant Events if any of the following events occur.
• Principal and interest payment delinquencies.
• Non-payment related defaults.
• Modifications to rights of bond holders
• Optional, contingent or unscheduled bond calls.
• Rating changes.
• Adverse tax opinions or events affecting the tax exempt status of bonds.
• Unscheduled draws on the debt reserves reflecting financial difficulties.
• Unscheduled draws on the credit enhancements reflecting financial difficulties.
• Substitution of the credit or liquidity providers or their failure to perform.
• Release, substitution or sale of property securing repayment of bonds.
The following is our estimated fee schedule for the annual administration of the Bonded Assessment Districts. The final Invoice will reflect the true number of parcels that were administered.
Assessment District Administrative Services
Prepayment Calculations No Charge to Requestor
Delinquency Reminder Letter $10/letter plus postage
Delinquency Demand letter $10/letter plus postage
Effect Removal from Tax Roll $50/parcel plus postage
Forclosure Services Hourly
Continuing Disclosures $2,600/assessment district
Reimbursable expenses such as mileage ($0.445/mile), overnight mail, County Fees, County Assessor maps, Secured Property Tax Roll, bluelines, mylars, etc. will be billed in addition to the lump sum fees shown above at cost plus 15%.
Francisco & Associates will invoice the City on May 1, July 1, October 1 and January 1 for the assessment district services associated with the 2008/09 administration. The City will be invoiced separately for the delinquency services as rendered.
If additional Services are requested by the City they could be performed for an agreed lump sum or billed at the following hourly rates.
Principal Engineer $150/hr.
Project Manager $130/hr.
Project Engineer $100/hr.
Senior Financial Analyst $90/hr.
Financial Analyst $80/hr.
Word Processing $45/hr.
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441