Loading...
HomeMy WebLinkAboutAGENDA REPORT 2004 0915 CC REG ITEM 09AMOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council ITEM q • A • CITY OF MOORPARK, CALIFORNIA City Council Meeting ACTION- __a /' • �/_ D,��lf FROM: Hugh R. Riley, Assistant City Mana er DATE: September 3, 2004 (City Council Meeting of Sept. 15, 2004) SUBJECT: Agreements for Professional Services Relating to the Formation, Financing and Annual Administration of Moorpark Highlands (Morrison /Pardee) and Moorpark Vista (SunCal) Community Facilities Assessment Districts BACKGROUND The City of Moorpark has approved development agreements for the Moorpark Highlands and Moorpark Vista Residential Subdivision projects. Morrison/ Pardee Homes and SunCal Homes, the owners and developers of the projects, have submitted Petitions to the City in accordance with Sections 53311 and following of the California Government Code requesting the City to form Community Facilities Districts for their respective developments. Moorpark Highlands Development (Pardee) Moorpark Vista Development Project (SunCal) ( "the CFDs "). Two separate CFDs are planned since the projects may proceed and require funding on different schedules. The CFDs will encompass approximately 670 planned residential units. The planning for these subdivisions has been under discussion with the City for several years and pre- formation planning for the CFDs has been undertaken by the City during the last few months. The purpose of the CFDs is to fund the acquisition of a public school site, the construction of certain major street improvements and the payment of certain fees associated with the development projects. The total cost of the fees to be paid and estimated cost of the land and infrastructure that will be acquired by the CFDs is approximately $45 million. The acquisition of an approximately 22 -acre public school site Moorpark Highlands project has been included in the financing plan at the request of the Moorpark Unified School District. Approximately a year ago, the City Council Ad Hoc Committee (Mayor Hunter and Councilmember Harper) and staff met with representatives 000018 Honorable City Council September 3, 2004 Page 2 of the Moorpark Unified School District and Pardee to discuss the School District's desire to receive school impact fees as well as the reserved school site in Specific Plan No. 2. The School District and Pardee could not reach agreement on this proposal. Pardee was willing to negotiate on the price of the land and grading improvements but insisted on the use of a Community Facilities District (CFD) to finance the acquisition of the site for the District if it was to also pay the full amount of legally required school fees. The School District did not want to sponsor the CFD. Since Pardee wanted to include the cost of certain other infrastructure costs and fees in a CFD the Ad Hoc Committee concurred to recommend use of a CFD for both purposes. The City also worked with the District and Pardee to arrive at a fair value for the school site. The infrastructure is to be constructed by the private developer and to be acquired by the City following completion. The construction process is expected to take approximately 5 years. The tax exempt bonds to be issued by the City to finance the project improvements will be secured by the property and will be obligations of the property owners and not the City. The Districts will also include a Police Services Assessment of approximately $350 per home per year to help offset the costs for additional law enforcement services created by the projects. The Police Services Fee will increase by approximately 20 each year for the life of the project The CFDs will be similar to other CFD programs in the Southern California Region in both structure and cost to homeowners and represents what is typical in areas of significant new residential development. The property owners have requested that the CFDs be formed and have successfully used this financing tool in the development and marketing of their homes elsewhere. DISCUSSION In connection with the proposed the Districts, the City of Moorpark has obtained proposals for professional services from qualified firms to perform various tasks and provide services relating to the formation, financing and annual administration of the Districts. The consultant's proposals are attached as part of each agreement for services. In the event of any conflict between the proposals and language in the agreements, the agreement will prevail. 000019 Honorable City Council September 3, 2004 Page 3 The costs for these services are fully paid from the proceeds of the bond issue. If the Districts are not ultimately formed and there is no financing, all City Staff costs and costs incurred by the Special Tax Consultant and the Appraiser would be paid by the developers from an initial deposit of $100,000 per project. The other consultants could be reimbursed for documented expenses from the remainder of the deposits. The professional consultants recommended for these services are as follows: Bond Counsel & Disclosure Counsel - Jones Hall- prepares all City legal documents, reviews all documents, certifies that the debt is legal, binding and tax exempt. Prepares the preliminary and final official statement and the continuing disclosure guidelines. Financial Advisor - Urban Futures - Oversees the financing costs and assists City in negotiating the final bond pricing. Coordinates the process and can prepare staff reports and other processing support analysis. Will help draft and manage the schedule for the financing. Bond Underwriter - Piper Jaffray & Co. - Sells the bonds and delivers the funds to the city. Can also assist the financial advisor on all points listed above. Establishes the market for the bonds. Special Tax Consultant - General Government Management Services - Establishes the Special Tax formula for the collection of the CFD payments. Allocates the costs amongst the parcels. Prepares the map for the CFD. Appraiser - Abergel & Associates - Evaluates the property based on the bond financed improvements. The attached professional service agreements with the various consultants provide a detailed scope of work as well as cost estimates for each service. STAFF RECOMDMNDATION Approve agreements for professional services subject to final language approval by the City Manager and the City Attorney. 000020 Honorable City Council September 3, 2004 Page 4 Attachments: Agreements for Professional Services: 1. Jones Hall- Bond /Disclosure Counsel 2. Urban Futures- Financial Advisor 3. Piper Jaffray & Co.- Underwriter 4. General Government Management Services - Special Tax Consultant 5. Abergel & Associates - Appraiser ,)UO021 AGREEMENT FOR BOND /DISCLOSURE COUNSEL SERVICES BY AND BETWEEN THE CITY OF MOORPARK AND JONES HALL, PLC, FOR BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES IN CONNECTION WITH MELLO -ROOS BOND PROCEEDINGS THIS AGREEMENT is entered into this day of July, 2004, by and between the CITY OF MOORPARK, CALIFORNIA (the "City ") and JONES HALL, A PROFESSIONAL LAW CORPORATION, San Francisco, California ( "Attorneys ") Tf1=S`SETH : WHEREAS, The City is considering the issuance of one or more series of bonds (the "Bonds ") under the Mello -Roos Community Facilities Act of 1982, as amended; and WHEREAS, in connection with such financing the City requires the advice and assistance of bond counsel. NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto do hereby agree as follows: Section 1. Duties of Attorneys. Attorneys shall do, carry out and perform all of the following services as are necessary for the issuance of the Bonds: As Bond Counsel: (a) Consultation and cooperation with the City, the City Manager, the Finance Director, the City Attorney and all other officers and employees of the City, with the underwriter, the financial advisor, and other professional firms engaged by the City with respect to the issuance of the Bonds and assisting such persons in the formulation of a coordinated financial and legal financing from the proceeds of the Bonds. (b) Preparation of all legal proceedings deemed necessary or advisable by Attorneys for the authorization, issuance and delivery of the Bonds including preparation of (i) documentation required for the issuance of the Bonds by the City, including a fiscal agent agreement authorizing the issuance of the Bonds, resolution authorizing and directing the sale of the Bonds, all documentation required to be executed by the City in connection with the delivery of the Bonds to the purchaser thereof, and all ATTACHMENT 1 !;,022 agreements providing collateral security for the Bonds except as may be within the scope of responsibility of any attorneys representing other parties to the transaction, {ii} necessary California Debt Advisory Commission filings and other reports and documents required to be filed by the City in connection with the issuance of Bonds, {iii} certificates, deeds, requisitions, receipts, and other documents required in connection with the delivery of the Bonds to the original purchaser thereof, and (iv) other proceedings of the City incidental to or in connection with the issuance, sale and delivery of the Bonds. (c) Application for any Internal Revenue Service or other rulings deemed necessary by Attorneys (but only following consultation with and approval by the City) to ensure the exemption of interest on the bonds from federal or, if applicable, State of California personal income taxation. (d) Advising the City as to the need to register the Bonds under applicable federal securities laws or to obtain a permit to issue the bonds under applicable State of California securities laws, or to obtain no- action letters or similar determinations from the Securities Exchange Commission or California Corporations Commission. (e) Subject to the completion of proceedings to the satisfaction of Attorneys, providing a legal opinion (i) approving the legality of the proceedings of the City for the authorization, issuance and delivery of the bonds, and (ii) stating that interest on the Bonds is excluded from gross income for federal income tax purposes and is exempt from State of California personal income taxation. (f) Legal consultation requested by the City concerning the Bonds and any resolutions, certificates, agreements and other documents relating to the authorization, issuance and delivery of the Bonds at any time following issuance of the Bonds. As Disclosure Counsel: (a) Prepare the Official Statement (both preliminary and final) or other disclosure documents in connection with the offering of bonds; (b) Confer and consult with the officers and administrative staff of the City as to matters relating to the Official Statement; 2 000023 (c) Attend all meetings of the City and any administrative meetings at which the Official Statement is to be discussed, as deemed necessary by the City or the Attorneys for the proper exercise of their due diligence with respect to matters contained in the Official Statement, or when specifically requested by the issuer to attend; (d) On behalf of the City, prepare the bond purchase contract pursuant to which bonds will be sold to the underwriter and a continuing disclosure certificate of the issuer to assist the underwriter with complying with the provisions of SEC Rule 15c2 -12; (e) Assist the City in preparation of the form of the first continuing disclosure certificate to be filed in connection with the bonds; and (f) Provide a legal opinion commonly known as a "10b -5 Opinion" to the effect that nothing has come to their attention to lead them to believe that the Official Statement (except for certain commonly excepted items) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. This opinion will also cover other securities law matters, with wording to the effect that bonds are exempt from the registration requirements of the Securities Act of 1933 and bonds therefore do not require registration, and that the resolution or other document pursuant to which bonds are issued is exempt from qualification under the Trust Indenture Act of 1939. (g) Attorneys shall perform such other and further services as are customarily performed by bond counsel and disclosure counsel on similar financings. Attorneys shall not be responsible for the preparation or content of any official statement or other offering document prepared by or on behalf of an underwriter or financial consultant other than to examine any such official statement or other offering document as to the description of the Bonds and related financial agreements drafted by Attorneys and as to matters within Attorneys' knowledge (without undertaking any independent investigation thereof) 3 '00024 Attorneys shall not be responsible for (i) compliance by the City with arbitrage rebate requirements under federal tax law, other than to render advice as to the legal interpretation of such requirements as set forth in the documents relating to the Bonds, (ii) the representation of the City in connection with any litigation involving the Bonds, or (iii) representation in connection with the continuing disclosure requirements of the Securities and Exchange Commission. Without limiting the generality of the foregoing, Attorneys shall not be responsible for preparing any calculations or documentation to establish compliance with such rebate requirements or otherwise for computing the amounts required to be rebated, or for providing any litigation or continuing disclosure services related to the Bonds, without a separate agreement between the City and Attorneys. Section 2. Compensation. For the services listed in Section 1, as Bond Counsel, Attorneys shall be paid a percentage fee, applied to the aggregate principal amount of the bonds issued equal to the sum of: a) two percent (2 %) of the first $1 million principal amount of the Bonds, plus, b) one percent (1 %) of the next $4 million principal amount of the Bonds, plus c) one -half of one percent (1/2 of 1 %) of the next $10 million principal amount of the Bonds, plus d) one -eight of one percent (1/8 of 1 %) of the remaining principal amount of the Bonds; provided that said percentage compensation shall not exceed an aggregate of $70,000. For the services listed in Section 1, as Disclosure Counsel, Attorneys shall be paid a fee depending on the security for the bonds as well as the complexity of the financing size and structure. This fee typically ranges between $25,000 and $50,000 and is set by mutual agreement of the City and the Attorneys. The fee for serving as disclosure counsel is also contingent upon a successful closing. In addition, the City shall reimburse Attorneys for all out -of pocket costs and expenses incurred by Attorneys in connection with their services hereunder for messenger and delivery services, photocopying, legal publication, out -of -state travel, and the cost of preparing transcripts of the proceedings for closing; provided that said reimbursement shall not exceed an aggregate of $5,000. Payment of said compensation shall be entirely contingent upon the successful issuance of the Bonds, 4 000025 and shall be payable solely from the proceeds of the Bonds and from no other funds of the City. Section 3. Responsibilities of City. The City shall cooperate with Attorneys and shall furnish Attorneys with certified copies of all proceedings taken by the City and deemed necessary by Attorneys to render an opinion on the validity of the Bonds. All costs expenses incurred incidental to the actual issuance and delivery of the Bonds, including the cost and expense of preparing certified copies of proceedings required by Attorneys in connection with the issuance of the Bonds, the cost of all printing and publication costs:, fees and expenses of parties other than Attorneys, costs and expenses of legal advertising and all other expenses incurred in connection with the issuance of the Bonds, shall be paid by the City from the proceeds of the Bonds and shall not be the responsibility of Attorneys. Section 4. Termination of Agreement. This agreement may be terminated by City with or without cause at any time with no less than 10 days written notice of such termination. In the event of such termination, Attorneys shall be compensated for such services up to the date of termination. Such compensation for work in progress shall be prorated as to the percentage of progress completed at the date of termination. This agreement may be terminated by Attorneys only in the event of breach by the City and by providing City with written notice no less than 30 days in advance of such termination. Section 5. General Conditions. A. City shall not be called upon to assume any liability for the direct payment of any salary, wage or other compensation to any person employed by Attorneys performing services hereunder for City. B. Attorneys are and shall at all times remain as to the City a wholly independent contractor. Neither the City nor any of its officers, employees, servants or agents shall control over the conduct: of Attorneys or any of Attorneys' officers, employees or agents, except as herein set forth. C. At the time of 1) termination of this agreement or 2) conclusion of all work; all original documents, designs, drawings, reports, calculations, diskettes, computer files, notes, and other related materials whether prepared by Attorneys or their subcontractor(s) or obtained in the 5 _100026 course of providing the services to be performed pursuant to this agreement shall become the sole property of the City and delivered to City on demand. 1. Attorneys will furnish City reproducible plans and copies of documents, reports, diskettes and other items mentioned above upon request of City, during the evolution of work under this contract. 2. The Attorneys agree that any document, drawing, report, calculations, diskette, computer file, note, and other instrument prepared by Attorneys shall not be subject to unauthorized reuse by the City. D. Attorneys shall hold harmless, indemnify and defend the City and its officers, employees, servants, from any claim, demand, damage, liabilil:y, loss, cost or expense, for any damage whatsoever, including but not limited to death or injury to any person and injury to any property, resulting from misconduct, negligent acts, or for want care or skill on the part of Attorneys or any of its officers, employees or agents in the performance of this agreement, except such damage as is caused by the sole negligence of the City or any of its officers, employees, servants or agents. 1. The City does not waive any rights that it may have against Attorneys by reason of Paragraph E hereof, because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this agreement. This hold harmless and indemnification provision shall apply regardless of whether or not said insurance policy is determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described in Paragraph E hereof. E. Attorneys shall secure from a good and responsible company or companies doing insurance business in the State of California, pay for, and maintain in full force and effect for one (1) year after the duration of this agreement those policies of insurance required by Sections S. F., G. and H. below, and shall, upon written request, furnish to the City Clerk of the City certificates of said insurance. s 900027 F. Consistent with the provisions of Paragraph E, Attorneys shall provide general public liability including automobile liability, errors and omissions, and property insurance in an amount not less than One Million ($1,000,000) per occurrence and annual aggregate. G. Consistent with the provisions of Paragraph E, Attorneys shall provide errors and omissions liability insurance in an amount not less than One Million ($1,000,000) per occurrence and annual aggregate. H. Consistent with the provisions of Paragraph E, Attorneys shall provide Workers' Compensation Insurance as required by the California Labor Code. If any class of employees engaged by Attorneys in work under this agreement is not protected by the workers' compensation law, Attorneys shall provide adequate insurance for the protection of such employees to the satisfaction of the City. I. Attorneys shall not assign this agreement or any of the rights, duties or obligations hereunder. It is understood and acknowledged by the parties that Attorneys is uniquely qualified to perform the services provided for in this agreement. J. City is relying on Attorneys' expertise in the execution of all work under this contract. Time is of the essence. K. Any notice to be given pursuant to this agreement shall be in writing and all such notices and any other documents to be delivered 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 party for whom intended as follows: To: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To: Jones Hall, PLC 650 California Street, 18th Floor San Francisco, CA 94108 Attn: David T. Fama, Esq 7 000028 Either party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or upon deposit in the United States mail. L. Nothing contained in this agreement shall be deemed, construed or represented by the City or Attorneys or by any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between the City and Attorneys. M. This agreement constitutes the subject matter hereof and all prior agreements or understandings, oral or written are hereby superseded. This agreement shall not be amended in any way except by a writing expressly purporting to be such an amendment, signed and acknowledged by both of the parties hereto. N. Should interpretation of this agreement, or any portion thereof, be necessary, it is deemed that this agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the agreement or caused it to be prepared. 0. 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. No waiver shall be binding, unless executed in writing by the party making the waiver. P. In the event any action, suit or 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 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. 000029 8 Q. Cases involving a dispute between the City and Attorneys may be decided by an arbitrator if both sides agree in writing, with costs proportional to the judgment of the arbitrator. R. This agreement is made, entered into, executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to herein shall be filed in the applicable court in Ventura County, California. S. The captions and headings of the various Articles and Paragraphs of this agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Articles and Paragraphs hereof. Section 6. Responsible Individual. The individual directly responsible for Attorneys overall performance of the contract provisions herein above set forth and to serve as principal liaison between City and Attorneys shall be David T. Fama. Upon mutual agreement of: the parties, other individuals may be in the above capacity. Section 7. Implementation. The City shall provide Attorneys with written notice in advance of the date at which these services are to be implemented if different than the date of the agreement. Section 8. Conflict of Discrepancy. In consideration of the award of this contract, Attorneys agrees that if there is a conflict or discrepancy within or between any of the contract documents, the City shall be the sole person to decide which document or provision shall govern. IN WITNESS WHEREOF, the City and Attorneys have executed this Agreement as of the date first above written. JONES HALL, PLC By: David T. Fama, Esquire 9 960030 CITY OF MOORPARK Steven Kueny, City Manager 10 900031 AGREEMENT FOR PROFESSIONAL SERVICES THE CITY OF MOORPARK AND URBAN AND FUTURES, INC. FOR FINANCIAL ADVISORY CONSULTING SERVICES RELATED TO FORMATION AND FINANCING OF THE MOORPARK HIGHLANDS AND MOORPARK VISTA COMMUNITY FACILITIES ASSESSMENT DISTRICTS. This Agreement is made and entered into in the City of P­,Toorpark on this day of June, 0.004, by and between the City of Moorpark ( "CITY "'), a public body, corporate and politic, and Urban Futures, Inc., a California corporation providing consulting services (CONSULTANT). WITNESSETH WHEREAS, CITY has determined that it requires professional consulting services related 'Co the formation and financing of the Moorpark Highlands and t400rpark vista Community Facilities Districts; and WHEREAS, CONSULTANT is experienced in providing such services and has the proper experience, knowledge and skills to carry out the duties involved; and WHEREAS, CITY performance of said s: NOW, THEREFORE, benefits and promises _ c l . 3ws : wishes ?rvices; in con, herein Scope of Services to retain �OVSULTANT for e ;ideration Oi the ra tual cod %e ant stated, the parties hereto agree c.S AGENCY does hereby retain CONSULTANT in a conr_ractus capacity to provide financial advisory consulting services :=.s described in the CONSULTANT'S Proposal dated June 4, 2004 which is attached to this agreement as Exhibit "A. ", and made .art hereof. _.. t: event that additional service =s rega re _ ­CNSULTAN`?', beyond the Scope of Services for this tigreen.e~ -)- ITT ANT �aj be authorized t0 undertake ari� ? �yPt� _ _ _ s'_ _ - additional work only if such authorization is provide -,-j it writing, identifying the exact nature of the additional ser:;ic c r se Vice: required =;mil a ". ':c+ Jc paid Professional Services Agreement between Page 1 of g City of Moorpark and Urban Futures: Inc. ATTACHMENT 2 fy, 00 032 for said additional work, or at a negotiated lump sum amount approved by CITY. II. Compensation The compensation to CONSULTANT shall be as indicated in the Proposed Fees /Compensation Section of Exhibit "A ". Payment to CONSULTANT shall be made by the designated Bond Trustee as authorized by the CITY within thirty (30) days of receipt of invoice, if the invoice is not contested or questioned by CITY. If AGENCY identifies a discrepancy between the invoice amount and the services or products completed, CITY shall within fifteen (15) workdays of receipt of the invoice specify in writing the discrepancy. CONSULTANT shall then either 1) provide support materials to satisfy CITY'S stated concern, or 2) revise the invoice to reflect an adjustment to the stated discrepancy. CITY shall then pay the revised or documented invoice within thirty (30) days of such revision or documentation. III. Incorporation by Reference Exhibit "A ", as previously identified and the Attachments thereto, is hereby incorporated into and made a part of this Agreement. In the event of a conflict between the provisions of the Scope of Services found in Exhibit "A" and this Agreement, the language contained in this Agreement shall take precedence. IV. Termination or Suspension This Agreement may be terminated or suspended with or without cause by CITY at any time with no less than five (5) working days written notice of such termination or suspension. CONSULTANT may terminate this Agreement only by providing CITY with written notice no less than thirty 130) days in advance of such termination. In the event of such termination or suspension, CONSULTANT shall be compensated for such services up to the date of termination or suspension. Such compensation for work in progress shall be prorated as to the percentage of progress completed at the date of termination or suspension. V. Complete Agreement This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete Professional Services Agreement between Page 2 of 9 City of Moorpark and Urban Futures, Inc. Agreement between the parties hereto. No oral Agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral Agreement, understanding, or representation be binding on the parties hereto. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. 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 provisions. No waiver shall be binding, unless executed in writing by the party making the waiver. VI. Assignment /Successors CONSULTANT shall not assign this Agreement or any of the rights, duties or obligations hereunder. It is understood and acknowledged by the parties that CONSULTANT is uniquely qualified to perform the services provided for in this Agreement. VII. Term The Term of this Agreement shall be for a period beginning With the date first herein written and continuing through June 30, 2005, unless sooner terminated or extended, as herein provided. CONSULTANT shall perform the professional services identified in this Agreement in a timely manner, consistent with sound professional practices. VIII. Anti- Discrimination In the performance of the terms of this Agreement, CONSULTANT agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of the age, race, color, creed, sex, sexual orientation, national origin, ancestry, religion, physical disability, medical disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in the Labor Code of the State of California Section 1735. Professional Services Agreement between Page 3 of 9 City of Moorpark and Urban Futures, Inc. f�00034 IX. Insurance and Indemnification CONSULTANT shall 'hold harmless, indemnify and defend City and its officers, employees, servants and agents and independent contractors who serve in the role of City Manager, Assistant City Manager, City Clerk, Director of Community Development, City Engineer, or City Attorney from any claim, demand, damage, liability, loss, cost or expense, for any damage whatsoever, including but not limited to death or injury to any person and injury to any property, resulting from, or in any way connected with the performance of this Agreement by CONSULTANT or CITY, except such damage as is caused by the sole negligence of CITY CONSULTANT shall secure from a good and responsible company or companies doing insurance business in the State of California, pay for, and maintain in full force and effect for the duration of this Agreement the policies of insurance required by this section and shall furnish to the City Clerk of the City certificates of said insurance on or before the commencement of the term of this Agreement. Notwithstanding any inconsistent statement in any of said policies or any subsequent endorsement attached thereto, the protection offered by the policies shall; 1. Provide general public liability insurance including automobile liability and property damage insurance in an amount not less than one million dollars ($1,000,000) per occurrence and annual aggregate. 2. Name AGENCY and its officers, employees, servants and agents and independent contractors serving in the role of City Manager, Assistant City Manager, City Clerk, Director of Community Development, City Engineer, or City Attorney, as additional insured with CONSULTANT'. Confirmation of this coverage shall be provided on an Insurance Services Office (ISO) Form CG 20 10 11 85 Endorsement, or other form stipulated in writing by City Clerk. 3. Bear an endorsement or have attached a rider whereby it is provided that, in the event of cancellation or amendment of such policy for any reason whatsoever, AGENCY shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or Professional Services Agreement between City of Moorpark and Urban Futures, Inc. Page 4 of 9 000035 amendment is effective. CONSULTANT shall give AGENCY thirty (30) days written notice prior to the expiration of such policy. 4. Be written on an occurrence basis. CONSULTANT also shall maintain professional liability (errors and omissions) coverage in an amount not less than one million dollars ($1,000,000) per claim. Consistent with this section, CONSULTANT shall provide workers' compensation insurance as required by the California Labor Code. If any class of employees engaged by CONSULTANT in work under this Agreement is not protected by the workers' compensation law, CONSULTANT shall provide adequate insurance for the protection of such employees to the satisfaction of CITY. At such point in time that CONSULTANT obtains and provides any of the above insurance with coverage limits in excess of the amounts specified above to another of CONSULTANT'S clients, CONSULTANT shall immediately provide these same coverage limits to CITY. CITY does not, and shall not, waive any rights that it may have against CONSULTANT by reason of this section, because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision 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 in this section. X. Notices Any notice to be given pursuant to this Agreement shall be in writing, and all such notices and any other document to be delivered 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 party for whom intended as follows: Professional Services Agreement between Page 5 of 9 City of Moorpark and Urban Futures, Inc. 00036 To: City Manager City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 To: Marshall Linn, President Urban Futures, Inc. 3111 North Tustin Avenue, Suite 230 Orange, California 92865 -1753 Either party may, from time to time, by written notice to the other, designate a different address or contact person, which shall be substituted for the one above specified. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2 rd) day after deposit in the United States mail. XI. General Conditions A. CONSULTANT agrees not to work for any private firm located within the CITY limits or its Area of Interest, or for any public agency where its jurisdiction includes all or part of the CITY without the prior written consent of the CITY, during the term of this Agreement. Furthermore, CONSULTANT agrees to limit its actions related to economic interest and potential or real conflicts of interest as such as defined by applicable State law to the same standards and requirements for designated CITY employees. 3. CITY shall not be called upon to assume any liability for the direct payment of any salary, wage or other compensation to any person employed by CONSULTANT performing services hereunder for CITY. C. CONSULTANT is, and shall at all times, remain as to CITY a wholly independent contractor. Neither the CITY, nor any of its officers, employees, servants or agents, shall have control over the conduct of CONSULTANT or of CONSULTANT'S officers, employees or agents, except as herein set forth. CONSULTANT shall not at an time or in any manner represent that it or any of its officers, employees, or agents are in any manner_ employees of CITY. Professional Services Agreement between Page 6 of 9 City of Moorpark and Urban Futures, Inc. 000037 D. At the time of 1) termination of this Agreement or 2) conclusion of all work, all original reports, documents, calculations, diskettes, computer files, notes, and other related materials whether prepared by CONSULTANT or its subcontractor(s) or obtained in the course of providing the services to be performed. pursuant to this Agreement shall become the sole property of CITY. Any word processing computer files provided to CITY shall use Microsoft Word for Windows software. E. Nothing contained in this Agreement shall be deemed, construed or represented by CITY or CONSULTANT or by any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between CITY and CONSULTANT. F. In the event any action, suit or 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 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. v. Cases involving a dispute between CITY and CONSULTANT may be decided by an arbitrator if both sides agree in writing on the arbitration and on the arbitrator selected, with costs proportional to the judgment of the arbitrator. H. This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to here--,,- shall be filed in the applicable court in Ventura County, California. I. The captions and headings of the various Sections and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Sections and Exhibits hereof. J. This Agreement constitutes the entire Agreement of the parties concerning the subject matter hereof and all prior Agreements or understandings, oral or written, is hereby merged herein. This Agreement shall not be amended in any way except by Professional Services Agreement between Page 7 of 9 City of Moorpark and Urban Futures, Inc. 000038 a written amendment expressly purported to be such an amendment, signed and acknowledged by both parties hereto. K. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that a party prepared the Agreement or caused it to be prepared. L. No waiver of any provision of this Agreement shall be deemed, or shall constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by the party making the waiver. M. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will never - the -less continue in full force without being impaired or invalidated in any way. N. No officer, employee, director or agent of the CITY shall participate in any decision relating to this Agreement which affects his personal interest or the interest of any corporation, partnership, or association in which he is directly or indirectly interested, or shall any such person have any interest, direct r indirect, in this Agreement or the provisions thereof. XII. Responsible Individual The individual directly responsible for CONSULTANT's overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between CITY and CONSULTANT shall be Marshall Linn, and no other individual may be substituted. The CITY'S contact person in charge of administration of this Agreement and to serve as principal liaison between CONSULTANT and CITY shall be the City Manager or his designee. Professional Services Agreement between Page 8 of 9 City of Moorpark and Urban Futures, Inc. 000039 XIII. Effective Date This Agreement shall be effective on June__, 2004. CITY OF MOORPARK: Steven Kueny City Manager ATTEST: Deborah Traffenstedt, City Clerk CONSULTANT: Marshall Linn, President Urban Futures, Inc. Exhibit "A ": Proposal for Professional Services Professional Services Agreement between City of Moorpark and Urban Futures, Inc. Page 9 of 9 000040 SCOPE OF SERVICES FINANCIAL ADVISOR It has been and will continue to be UFI's approach as financial advisor to be independent from real or perceived conflicts of interest and to preserve absolute impartiality in providing financing advice. The relationship should be one of mutual confidence and trust, and the client should feel comfortable that the financial advisor will represent and protect its interests throughout the term of the engagement. This is more a statement of philosophy, but it is one we believe in and adhere to in the conduct of our business. UFI is fully capable of assisting the City of Moorpark in all of the areas listed in the Scope of Services. The services stated below are for land based types of financings. 1. Prepare for the client a financing structure to accomplish the financing objective. This analysis will include setting goals and objectives relative to the issuance of both taxable and tax exempt debt. 2. Organize the financing team and represent the City at all developer and staff meetings. 3. Assist in the selection of appropriate team members, such as appraiser, underwriter, trustee, etc. 4. Assist in the development of special tax formulas. 5. Evaluate the feasibility of the project/financing to include project costs, cash flows, built and finished land values. 6. Evaluate the financing structure, to include debt service schedules; call features; bond security-, flow of funds; sources and uses of funds including costs of issuance; underwriters discount and original issue discount; investment of bond proceeds; and estimated positive and negative cash flow to the A-ency. 000041 EXHIBIT A 7. Work with client staff, bond counsel, disclosure counsel, underwriters and other participants, to review, prepare and advise on information contained in the preliminary and final official statements, Indenture of Trust, investment agreements, and other legal and disclosure documents and materials required to facilitate the sale of the bonds. 8. Continue to update and monitor market conditions including interest rate "spreads" between various tax - exempt and taxable securities, financing schedules and reinvestment opportunities up until the actual marketing and pricing of the bonds. 9. After reviewing all bond documents including the Official Statement, Indenture of Trust, and investment agreements, UFI will provide the client with a "Fairness Opinion" relative to the proposed sale of bonds including the pricing structure, interest rate levels, interest rate "spreads ", reinvestment structures, costs of issuance, underwriting and other investment banking fees. 10. Assist the client in the final closing of the financing and investment of proceeds. 11. Assist in the formation of the District. 12. Attend all City Council meetings on items related to the formation of the District. 13, Post -Bond Sale follow -up: A. Working with the City /Agency's underwriter, prepare and furnish the City with a table of debt service which will include semi annual and annual payments of principal and interest., table of sources and uses of funds from the proceeds of the financing, and a complete cash flow analysis of the financing which will "track" the flow of funds, investment earnings, pledged revenues, and debt service payments. 000042 B. Reinvestment Assistance. UFI has established a network of advisors and sources to assist clients in their investment and reinvestment decisions related to their financing plans. We will actively assist the City in its ongoing investment decisions, as well as its investment decisions for the proceeds from the financing if so desired by the City. 14. Conduct investor meetings on behalf of the City/Agency if necessary. 000043 PROPOSED FEES /COMPENSATION FINANCIAL ADVISOR FEES The cost for the services requested by the City for Financial Advisor shall be based on the following fee schedule and other considerations: Fee Bond Amt. 1) $22,500 up to and including $ 1,000,000 2) $26,500 up to and including $ 2,000,000 3) $29,500 up to and including $ 3,000,000 4) $32,500 up to and including $ 4,000,000 5) $35,500 up to and including $ 5,000,000 6) $37,500 up to and including $ 6,000,000 7) $39,500 up to and including $ 7,000,000 8) $41,500 up to and including $ 8,000,000 9) $43,500 up to and including $ 9,000,000 10) $45,500 up to and including $10,000,000 11) $47,500 up to and including $11,000,000 12) $49,500 up to and including $12,000,000 13) $51,500 up to and including $13,000,000 14) $53,500 up to and including $14,000,000 15) $55,500 up to and including $15,000,000 16) $57,500 up to and including $16,000,000 17) $59,500 up to and including $17,000,000 18) $61,500 up to and including $18,000,000 19) $63,500 up to and including $19,000,000 20) $65,500 up to and including $20,000,000 21) $67,500 up to and including $21,000,000 22) $69,500 up to and including $22,000,000 23) $71,500 up to and including $23,000,000 24) $73,500 up to and including $24,000,000 25) $75,500 up to and including $25,000,000 For any single issue in excess of $25,000,000, the financial advisor fee will be $1,500 per million over and above $25,000,000. Such fee shall become payable only upon delivery by the City (or the legal entity or entities issuing such bonds, or obligations) of such bonds. FORMATION FEE Urban Futures, Inc. will be compensated at $175 per hour for work associated with the formation of the District. All fees shall be the responsibility of the developer, who shall deposit money with the City prior to the initiation of the financing. Agreement Employing Piper Jaffray & Co. as Municipal Bond Underwriter This Agreement made this day of , 2004, by and between the City of Moorpark, a public body corporate and politic, created and existing under and by virtue of the laws of the State of California, hereinafter referred to as "Issuer" and Piper Jaffray & Co., hereinafter referred to as "Piper Jaffray ". Recitals Whereas, Issuer may issue Community Facilities District or Assessment District Bonds to assist with the financing and refinancing of public infrastructure for the Moorpark Highlands Area (Pardee Homes and Suncal Homes projects) (the "Project ") in one or more series of municipal bond sales (hereinafter "Bonds "). Whereas, Piper Jaffray has expended a substantial amount of time and effort on behalf of the proposed Project financings in the areas of research, analysis, structuring and presentation of the financing options; and Whereas, it is in the best interest of the Issuer to employ an investment banker to advise and assist in the planning, structuring, and sale of Bonds; and Whereas, Piper Jaffray has such licenses, capital and experience as to qualify to serve as the investment banker for the Project and is prepared to purchase the Bonds that will finance the Project. Now, therefore, for and in consideration of the matters hereinbefore referred to and the mutual covenants herein set forth, the parties agree as follows: Section T Scope of Services Piper Jaffray shall serve as the investment banker responsible to underwrite the Bonds for the Project of the Issuer. A. Underwriting Services Pertaining to the issuance of Bonds, Piper Jaffray will develop a financing plan for each sale of Bonds with the purpose of assisting the Issuer in achieving its financial objectives. The services requested may include, but are not limited to the following: 1. Organize and coordinate the financing team; ATTACHMENT 3 000045 3. Review and evaluation of various financing structures available to Issuer for funding each facet of the Project, including the refunding of said original bond issues; 4. Preparation and implementation of a comprehensive financing plan and marketing strategy for the issuance of Bonds; 5. Assess benefits of rated Bonds, and if found cost effective or prudent, facilitate such rating; 6. Assess benefits of credit enhancements (letter of credit, bond insurance, etc.) and if found cost effective or prudent, facilitate such enhancement; 7. Assist with the preparation of an Official Statement (OS), including, among other things, providing a detailed description of each financing undertaken as part of the Project, the debt to be offered, the financing plan for each individual financing, and such statistical and other matters as desired for informing investors and other concerned parties; 8. Coordination of the printing and distribution of each OS; 9. Preparation of cash flow statements, debt amortization schedules, and other appropriate financial information as requested by Issuer; 10. Submit a Bond Purchase Contract at such time and place as mutually agreed upon by the Issuer and Piper Jaffray for the purchase of the Bonds; 11. Purchase the Bonds; and 12. Coordination of closing and delivery activities of the Bonds and proceeds. For the term of this Agreement, Issuer designates Piper Jaffray as the underwriter of the municipal debt offerings utilized to fund the Project. Section 2 Expenses Piper Jaffray will pay its own costs incurred in the performance of this Agreement, including cost of travel within California, cost of its legal counsel, if any, communication, assistance with preparation (excluding printing and mailing) of Official Statements, and overhead expenses, except as provided in the following paragraph. Issuer, from bond proceeds or other lawfully available funds, will pay with each issuance of Bonds: bond counsel, disclosure counsel, rating agency, and credit enhancement fees (if any), the cost of appraisal, fiscal consultant, financial advisor, statistical, computer and graphics services (if any), cost of printing and distribution of 000046 the Preliminary and final Official Statement, and the costs of fiscal agent or bond trustee and registrar. Travel expenses outside California by Piper Jaffray shall only be paid by the Issuer if approved in writing prior to the incurrence of said expense. Section 3 Compensation Piper Jaffray will be compensated for its work as well as any expenses through the underwriting discount paid for the purchase of the Bonds, with payment contingent upon the successful sale and delivery of the Bonds. The actual underwriting discount will be as established via negotiation with the Issuer based on the credit strength of the Bonds, the market conditions at the time of Bond pricing, and work undertaken by Piper Jaffray. If the Issuer, acting in good faith, determines that it cannot agree on an underwriting discount or bond pricing with Piper Jaffray, the Issuer may sell the bonds to persons or firms other than Piper Jaffray at public or private sale, with no remuneration to Piper Jaffray. A not to exceed underwriting discount of 1.815% of the par amount of bonds issued for the Project is hereby established. Payment of said compensation shall be entirely contingent upon the successful issuance of the Bonds, and shall be payable solely from the proceeds of the Bonds and from no other funds of the City. Section 4 Term of Agreement The term of this Agreement is until such time as the Project is fully financed or the City formally abandons the Project. The term of the agreement may be amended by mutual agreement of the Issuer and Piper Jaffray. Piper Jaffray personnel shall be available to the City for advice and consultation for the full term of the financing. Section 5 Agreement Termination and Amendments This agreement may be amended or terminated by mutual written agreement of the Issuer and Piper Jaffray. Issuer may terminate the agreement per the following: Termination without cause: Piper Jaffray will be reimbursed for all services provided and expenses incurred. 2. Termination due to City cancellation of the Project: Piper Jaffray will receive no reimbursement for services and expenses incurred. 3. Issuer determination that Piper Jaffray is not providing adequate services or, if the Issuer per Section 3 is unable to agree with Piper Jaffray on a Bond pricing, Issuer shall notify Piper Jaffray, in writing, of the deficiency in service. If Piper Jaffray is unable to cure the deficiency, to the satisfaction of the Issuer in Issuer's sole discretion, within a period of ten working days, Issuer may terminate the Agreement with no compensation due to Piper Jaffray. 000047 Section 6 Project Staffing Piper Jaffray commits to provide qualified and expert personnel to work with the Issuer on all projects authorized under this Agreement. The Piper Jaffray team will be directed by Mark Curran, Managing Director of the Piper Jaffray Public Finance Group. Mark Curran will personally supervise and direct all efforts of Piper Jaffray in fulfilling the terms of this Agreement. Issuer has the exclusive right to approve Piper Jaffray staff assigned by Piper Jaffray to work with the Issuer. Section 7 Governing Law This Agreement and the rights and obligations of the parties hereto shall be construed, interpreted and enforced pursuant to the laws of the State of California. To avoid costly litigation, the parties of this Agreement agree to first submit any disagreements to arbitration. Section 8 Miscellaneous Nothing contained herein shall preclude Piper Jaffray from carrying on its customary and usual business activities. Piper Jaffray specifically reserves the right to bid for and maintain secondary markets on any of Issuer's outstanding bonds. Services provided by the Underwriter in connection with this Agreement shall not limit the underwriter from providing services for Issuer in conjunction with other services requested by Issuer. In performing negotiated underwriting services, Piper Jaffray is acting on its own behalf as an underwriter and not as a consultant acting in an advisory capacity to the Issuer within the meaning of Section 53591 of the Government Code of the State of California. In connection with services agreed to herein, it is understood that Piper Jaffray will render professional services within the extent of its training and experience. In rendering such professional services, Piper Jaffray is acting as an independent contractor. Neither Piper Jaffray nor any of its agents or employees shall be deemed an employee of Issuer for any purpose. Piper Jaffray will at all times during the course of this Agreement, comply with the laws, regulations and rules concerning investment banking services promulgated by the Municipal Securities Rulemaking Board, and all applicable federal, state and local laws, statutes, ordinances and regulations. This agreement is made, entered into, executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to herein shall be filed in the applicable court in Ventura County, California. 0��48 Piper Jaffray shall not assign or otherwise transfer any interest in this Agreement without the prior written consent of Issuer. Section 9 Establishment of Joint Financing Authority If appropriate to facilitate the issuance of Bonds, Issuer may offer the Bonds through a Joint Financing Authority (JFA), pursuant to the provisions of Chapter 5 of Division 7 of Title 1 of the Government Code. At such time as the issuer sells bonds to the JFA, the JFA shall sell the Bonds to Piper Jaffray. It is understood by both the Issuer and Piper Jaffray that the sole security for the Bonds issued by the JFA will be the revenues pledged by the Issuer. Section 10 Severability of Provisions If any provision of this Agreement is held invalid, the remainder of the Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF MOORPARK am Name: Steven Kueny Title: City Manager UNDERWRITER an Mark Curran Managing Director Piper Jaffray & Co. 000049 AGREEMENT FOR PROFESSIONAL SERVICES THE CITY OF MOORPARK AND GENERAL GOVERNMENT MANAGEMENT SERVICES FOR SPECIAL TAX CONSULTING SERVICES RELATED TO FORMATION, FINANCING AND ADMINISTRATION OF THE MOORPARK HIGHLANDS AND MOORPARK VISTA COMMUNITY FACILITIES ASSESSMENT DISTRICTS. This Agreement is made and entered into in the City of Moorpark on this day of June, 2004, by and between the City of Moorpark ( "CITY "), a public body, corporate and politic, General Government Services, a Proprietorship providing consulting services (CONSULTANT). WITNESSETH WHEREAS, CITY has determined that it requires professional consulting services related to the formation, financing and Administration of the Moorpark Highlands and Moorpark Vista Community Facilities Assessment Districts (the "PROJECT "); and WHEREAS, CONSULTANT is experienced in providing such services and has the proper experience, knowledge and skills to carry out the duties involved; and WHEREAS, CITY wishes to retain CONSULTANT for the performance of said services; NOW, THEREFORE, in consideration of the mutual covenants, benefits and promises herein stated, the parties hereto agree as follows: I. Scope of Services AGENCY does hereby retain CONSULTANT in a contractual capacity to provide financial advisory consulting services as described in the CONSULTANT'S Proposal dated March 24, 2004 which is attached to this agreement as Exhibit "A ", and made a part hereof. In the event that additional service is required c CONSULTANT, beyond the Scope of Services for this Agreement, CONSULTANT may be authorized to undertake and complete such additional work only if such authorization is provided in writing, identifying the exact nature of the additional service Professional Services Agreement between City of Moorpark and GGMS Page 1 of 9 ATTACHMENT 4 ",0r:) 5 ® or services required and a "not -to- exceed" fee to be paid by CITY for said additional work, or at a negotiated lump sum amount approved by CITY. II. Compensation A. Formation Services- Compensation to CONSULTANT for Formation Services shall be based on the Cost Estimates for Formation Services provided in Exhibit A. B. Annual Administration - on an annual basis for the Administrative Services for the based on the description of Fees Exhibit A. The Consultant shall be retained purpose of providing Annual PROJECT and shall be compensated for Annual Services included in Payment to CONSULTANT shall be made by the CITY or the designated Bond Trustee as authorized by the CITY within thirty (30) days of receipt of invoice, if the invoice is not contested or questioned by CITY. If CITY identifies a discrepancy between the invoice amount and the services or products completed, CITY shall within fifteen (15) workdays of receipt of the invoice specify in writing the discrepancy. CONSULTANT shall then either 1) provide support materials to satisfy CITY'S stated concern, or 2) revise the invoice to reflect an adjustment to the stated discrepancy. CITY shall then pay the revised or documented invoice within thirty (30) days of such revision or documentation. III. Incorporation by Reference Exhibit "A ", as previously identified and the Attachments thereto, is hereby incorporated into and made a part of this Agreement. In the event of a conflict between the provisions of the Scope of Services found in Exhibit "A" and this Agreement, the language contained in this Agreement shall take precedence. IV. Termination or Suspension This Agreement may be terminated or suspended with or without cause by CITY at any time with no less than five (5) working days written notice of such termination or suspension. CONSULTANT may terminate this Agreement only by providing CITY with written notice no less than thirty (30) days in advance of such termination. In the event of such termination or suspension, CONSULTANT shall be compensated for such services up Professional Services Agreement between Page 2 of 9 City of Moorpark and GGMS to the date of termination or suspension. Such compensation for work in progress shall be prorated as to the percentage of progress completed at the date of termination or suspension. V. Complete Agreement This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete Agreement between the parties hereto. No oral Agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral Agreement, understanding, or representation be binding on the parties hereto. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. 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 provisions. No waiver shall be binding, unless executed in writing by the party making the waiver. VI. Assignment /Successors CONSULTANT shall not assign this Agreement or any of the rights, duties or obligations hereunder. It is understood and acknowledged by the parties that CONSULTANT is uniquely qualified to perform the services provided for in this Agreement. VII. Term The Term of this Agreement shall be for a period beginning with the date first herein written and shall continue until terminated as herein provided under Section IV. CONSULTANT shall perform the professional services identified in this Agreement in a timely manner, consistent with sound professional practices. VIII. Anti- Discrimination In the performance of the terms of this Agreement, CONSULTANT agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of the age, race, color, creed, Professional Services Agreement between Page 3 of 9 City of Moorpark and GGMS 000052 sex, sexual orientation, national origin, ancestry, religion, physical disability, medical disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in the Labor Code of the State of California Section 1735. IX. Insurance and Indemnification CONSULTANT shall hold harmless, indemnify and defend City and its officers, employees, servants and agents and independent contractors who serve in the role of City Manager, Assistant City Manager, City Clerk, Director of Community Development, City Engineer, or City Attorney from any claim, demand, damage, liability, loss, cost or expense, for any damage whatsoever, including but not limited to death or injury to any person and injury to any property, resulting from, or in any way connected with the performance of this Agreement by CONSULTANT or CITY, except such damage as is caused by the sole negligence of CITY CONSULTANT shall secure from a or companies doing insurance business pay for, and maintain in full force of this Agreement the policies of section and shall furnish to the certificates of said insurance on or the term of this Agreement. ood and responsible company in the State of California, and effect for the duration insurance required by this City Clerk of the City before the commencement of Notwithstanding any inconsistent statement in any of said policies or any subsequent endorsement attached thereto, the protection offered by the policies shall: 1. Provide general public liability insurance including automobile liability and property damage insurance in an amount not less than one million dollars ($1,000,000) per occurrence and annual aggregate. 2. Name CITY and its officers, employees, servants and agents and independent contractors serving in the role of City Manager, Assistant City Manager, City Clerk, Director of Community Development, City Engineer, or City Attorney, as additional insured with CONSULTANT. Confirmation of this coverage shall be provided on an Insurance Services Office (ISO) Form CG 20 10 11 85 Endorsement, or other form stipulated in writing by City Clerk. Professional Services Agreement between Page 4 of 9 City of Moorpark and GGMS ±,60053 3. Bear an endorsement or have attached a rider whereby it is provided that, in the event of cancellation or amendment of such policy for any reason whatsoever, CITY shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. CONSULTANT shall give CITY thirty (30) days written notice prior to the expiration of such policy. 4. Be written on an occurrence basis. CONSULTANT also shall maintain professional liability (errors and omissions) coverage in an amount not less than one million dollars ($1,000,000) per claim. Consistent with this section, CONSULTANT. shall provide workers' compensation insurance as required by the California Labor Code. If any class of employees engaged by CONSULTANT in work under this Agreement is not protected by the workers' compensation law, CONSULTANT shall provide adequate insurance for the protection of such employees to the satisfaction of CITY. At such point in time that CONSULTANT obtains and provides any of the above insurance with coverage limits in excess of the amounts specified above to another of CONSULTANT'S clients, CONSULTANT shall immediately provide these same coverage limits to CITY. CITY does not, and shall not, waive any rights that it may have against CONSULTANT by reason of this section, because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision 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 in this section. X. Notices Any notice to be given pursuant to this Agreement shall be in writing, and all such notices and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt Professional Services Agreement between Page 5 of 9 City of Moorpark and GGMS 00005'4 requested, with postage prepaid, and addressed to the party for whom intended as follows: To: City Manager City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 To: General Government Management Services 54 San Fernando Rancho Mirage, California 92270 -1960 (760) 202 -1060 Attn: Alan C. Kapanicas, Principal Either party may, from time to time, the other, designate a different address o shall be substituted for the one above payments and other documents shall be receipt by personal service or as of the deposit in the United States mail. XI. General Conditions by written notice to r contact person, which specified. Notices, deemed delivered upon second (2nd) day after A. CONSULTANT agrees not to work for any private firm located within the CITY limits or its Area of Interest, or for any public agency where its jurisdiction includes all or part of the CITY without the prior written consent of the CITY, during the term of this Agreement. Furthermore, CONSULTANT agrees to limit its actions related to economic interest and potential or real conflicts of interest as such as defined by applicable State law to the same standards and requirements for designated CITY employees. B. CITY shall not be called upon to assume any liability for the direct payment of any salary, wage or other compensation to any person employed by CONSULTANT performing services hereunder for CITY. C. CONSULTANT is, and shall at all times, remain as to CITY a wholly independent contractor. Neither the CITY, nor any of its officers, employees, servants or agents, shall have control over the conduct of CONSULTANT or of CONSULTANT'S officers, employees or agents, except as herein set forth. Professional Services Agreement between Page 6 of 9 City of Moorpark and GGMS +r() () "135.5 CONSULTANT shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner employees of CITY. D. At the time of 1) termination of this Agreement or 2) conclusion of all work, all original reports, documents, calculations, diskettes, computer files, notes, and other related materials whether prepared by CONSULTANT or its subcontractor (s) or obtained in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of CITY. Any word processing computer files provided to CITY shall use Microsoft Word for Windows software. E. Nothing contained in this Agreement shall be deemed, construed or represented by CITY or CONSULTANT or by any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between CITY and CONSULTANT. F. In the event any action, suit or 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 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. G. Cases involving a dispute between CITY and CONSULTANT may be decided by an arbitrator if both sides agree in writing on the arbitration and on the arbitrator selected, with costs proportional to the judgment of the arbitrator. H. This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to herein shall be filed in the applicable court in Ventura County, California. I. The captions and headings of the various Sections and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Sections and Exhibits hereof. Professional Services Agreement between Page 7 of 9 City of Moorpark and GGMS 0600SC) J. This Agreement constitutes the entire Agreement of the parties concerning the subject matter hereof and all prior Agreements or understandings, oral or written, is hereby merged herein. This Agreement shall not be amended in any way except by a written amendment expressly purported to be such an amendment, signed and acknowledged by both parties hereto. K. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that a party prepared the Agreement or caused it to be prepared. L. No waiver of any provision of this Agreement shall be deemed, or shall constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by the party making the waiver. M. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will never - the -less continue in full force without being impaired or invalidated in any way. N. No officer, employee, director or agent of the CITY shall participate in any decision relating to this Agreement which affects his personal interest or the interest of any corporation, partnership, or association in which he is directly or indirectly interested, or shall any such person have any interest, direct r indirect, in this Agreement or the provisions thereof. XII. Responsible Individual The individual directly responsible for CONSULTANT's overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between CITY and CONSULTANT shall be Alan C. Kapanicas, and no other individual may be substituted. The CITY'S contact person in charge of administration of this Agreement and to serve as principal liaison between CONSULTANT and CITY shall be the City Manager or his designee. Professional Services Agreement between City of Moorpark and GGMS Page 8 of 9 000057 XIII. Effective Date This Agreement shall be effective on June , 2004. CITY OF MOORPARK: Steven Kueny City Manager ATTEST: Deborah Traffenstedt, City Clerk GGMS: Alan C. Kapanicas Principal /CEO Exhibit "A ": Proposal for Professional Services Professional Services Agreement between City of Moorpark and GGMS Page 9 of 9 000058 General Government Management Services 54 San Fernando Rancho Mirage, CA 92270-1960 Telephone: 7/60-202.1060 Telecopier: 760.202.1070 Email: GGMSt7a EarthLink.net March 24, 2004 Mr. Hugh Riley Assistant City Manager City of Moorpark C/O Marshall F. Urban Futures, Inc. 3111 N. Tustin, Ste. 230 Orange, CA 92865 Subject: Proposal for Community Facilities District Special Tax Consultant Dear Mr. Riley: Please accept this proposal for Special Tax Consulting and Advisory Services for your upcoming Community Faculties District. With our extensive experience in special financing and our past work with your financial team and City, we feel that we can well supply your City 'xith the necessary assistance in the formation and administration of this CFD. As such, "ve have enclosed a proposal for the formation and administration of your upcoming CFD. General Government Management Services (GGMS) proposes to deliver to the City a CFD Report, the special tax formula, the rate and method of apportionment, filing of a boundary map and notice of special tax lien, support during the bond funding, and attendance at meetings for the district. Following formation, we will deliver administration services to assist the City in the annual levy and reporting of special taxes. Additional services are available upon request, including the veizfrcation of acquisition costs. Immediately following this letter proposal is a detailed Scope of Services (Exhibit A), a listing of extended services that can be offered at the City's request (Exhibit B), the recommended responsibilities of the City (Exhibit C), a listing of GGMS capabilities, and my resume. Recommended Scope of Services and Compensation: We have prepared a list of the various tasks required, with corresponding cost estimates for each task. Each task includes preparation, meetings, transportation, and reports. To allow EXHIBIT A ij00059 City of Moorpark: Proposal for Community Facilities District Special Tax Consultant Page 2 your City the flexibility, individual tasks can be accepted as the need arises. As you identify additional work tasks, we would be pleased to amend and resubmit this proposal. Annual Administration: 1) Annual Levy, County Submittal for Annual Tax Roll $2,500 Plus $2.00 per parcel 2) City Levy Report, Semi - Annual Paid, Unpaid And Delinquency Reports $1,500 3) Continuing Disclosure Report, CEDIAC Report to State $1,500 4) Annual Arbitrage Calculation and Report Year 5 Report (if done annually): 51,500 (if done in each fifth year): $6,500 The above includes attendance as needed at City Council meetings, financial team meetings and City approved meetings with the developers, and up to five (5) versions of the rate and method of apportioninent. In preparing for the services above and for additional services that you may require, including acquisition review, prepayment calculation, additional rates and methods of apportionments, and any other service where we could be of assistance, we would propose the "time and materials" hourly rates as follows: Summary Description of Items for each CFD Cost Estimates Formation Services: $110 1) Preliminaly Analysis and Data Collection $5,000 2) Preparation of a taxing formula $2,500 3) Preparation of the Rate and Method of Apportionment $3,500 4) Preparation and filing of a Boundary Map (per map) $2,500 5) Attendance at the City Council for Resolution of Intention No charge 6) Preparation of the CFD Report $4,500 7) Attendance at the City Council for the Public Hearing No charge 8) Assistance with Bond Issuance (per bond issue) $4,500 9) Issuance of a Special Tax Certification (per bond issue) $5,500 Annual Administration: 1) Annual Levy, County Submittal for Annual Tax Roll $2,500 Plus $2.00 per parcel 2) City Levy Report, Semi - Annual Paid, Unpaid And Delinquency Reports $1,500 3) Continuing Disclosure Report, CEDIAC Report to State $1,500 4) Annual Arbitrage Calculation and Report Year 5 Report (if done annually): 51,500 (if done in each fifth year): $6,500 The above includes attendance as needed at City Council meetings, financial team meetings and City approved meetings with the developers, and up to five (5) versions of the rate and method of apportioninent. In preparing for the services above and for additional services that you may require, including acquisition review, prepayment calculation, additional rates and methods of apportionments, and any other service where we could be of assistance, we would propose the "time and materials" hourly rates as follows: As additional services become required or requested in the fixture, we would be pleased to prepare a proposal for you and your City. This method for determining compensation is being suggested due to the many variables involved. It gives better control as needs change, It allows flexibility and predictability necessary for maintaining and planning for costs. This also allows for a responsible, multiple year proposal. As such, the rates above would be indexed in future years by up to the Consumer Price Index for our area. 000060 Classification Hourly Rate 1) Principal Consultants $110 2) Financial Analysts S100 3) Support Staff $ 55 4) Clerical $ 25 As additional services become required or requested in the fixture, we would be pleased to prepare a proposal for you and your City. This method for determining compensation is being suggested due to the many variables involved. It gives better control as needs change, It allows flexibility and predictability necessary for maintaining and planning for costs. This also allows for a responsible, multiple year proposal. As such, the rates above would be indexed in future years by up to the Consumer Price Index for our area. 000060 City of vtoorpark: Proposal for Community Facilities District Special Tai Consultant Page 3 Recommended Staffina: GEMS is a firm specializing in the formation and administration of special districts. Our concept is to include only those partners in this proposal that will directly be working with your City. As such, GGMS proposes that Alan Kapanicas be assigned as the Special Tax Consultant for all aspects of the project, including the development of the special tax formula, preparing the C.FD Report and assisting with the financing. We appreciate the opportunity to provide these services. We are available to discuss and present this proposal at your convenience. We are looking forward to our continued good working arrangements with your City and the other members of your financing team. If there are any questions or if you need additional information, please call. Sincerely, General Govenunent Management Services -S- Alan C. Kapanicas Principal and CEO 0100061- City of Moorpark: Proposal for Community Facilities District Special Tax Consultant Page 4 EXHIBIT A SCOPE OF SERVICES Initial Services through Resolution of Intention, CFD Proceedings A. Gather support data, cost estimates for entire project, current appraisal report, absorption schedule for building development based on building permit issuance, and an annualized schedule for public works of construction. B. Review legal description for each parcel within the boundaries of the proposed Community Facilities District. C. Provide a description of improvements to be constructed through public financing under the proposed District. D. Review estimates of direct and indirect costs. Determine the maximum amount of bonds to be authorized. E. Determine the special tax allocation methodology and formulae to be applied in accordance with the applicable act. F. Apportion the costs of facilities in the form of special tax to be levied upon the parcels of land within the District using the special tax methodology determined above. G. Attend City Council meeting (Resolution of Intention to form a Community Facilities District). Boundary Map Preparation A. Prepare Boundary Map, with proper certification for a Community Facilities District, and confirm delivery of specified quantities of mylars and bluelines of the boundary map. B. Record the Boundary Map with the responsible local official. C. Confirm and document the recording of the Boundary Map by the City with the County Recorder as provided under the Act. Preparation of the CFD Report A. Prepare CFD Report to reflect final public works of constriction costs, incidental expenses and projected formation and financing costs. Furnish specified quantities of the final CFD Report as ordered by the City. B. Attend public hearing for Resolution of Formation and election. C. Assist in filing and recording of the public officer's report as required under the applicable act. D. Attend City Council meeting for public hearing to fonn a Community Facilities District. E. Prepare the Notice of Special Tax Lien and file with the County Recorder as provided under the Act. Financing Support Services: A. Review financial documents to confirm the proper application of special taxes. B. Issue Special Tax Consultant Certificate for each bond issuance. 000062 City of Moorpark: Proposal for Community Facilities District Special Tax Consultant Page 5 Annual Administration Services: A, Amivally prepare the levy and submit to the County for inclusion of the County Annual Tax Roll. B. Prepare a report to the City, outlining the results of the annual levy and collection of special tax fonds, following each semi- annual tax collection payment. C. Annually prepare and submit the Continuing Disclosure Report to the City for distribution to the Trustee. D. Prepare the CF,DIAC Report and submit to State each October E. Prepare an arbitrage calculation at the approved interval and submit the report to the City. Acquisition Cost Review (Optional): A. Collect copies of contracts, agreements, change orders, invoices, and canceled checks from developer bound per vendor. B. Review developer provided data for reimbursement eligibility and confirmed cost amounts. C. Submit a summary report in ledger format identifying reimbursement eligibility and confirmed cost amounts to the City. D. Prepare policies and procedures as documentation for acquisition audit methodology. 000063 City of Moorpark: Proposal for Community Facilities District Special Tax Consultant Page 6 EXHIBIT B EXTENDED SERVICES (N 'ith prior City approval) A. Attendance at extended number of additional City approved, Developer or City initiated meetings as requested. B. Preparation of displays and /or audio - visual materials, as requested by the City or Developers. C. Preparing additional mailings of notices to property owners and to property owners not listed on last equalized roll of the County Assessor. D. Analysis of an inordinate number of tax formula iterations of the basic form Lila due to developer "fine tuning ". E. Providing additional copies of reports, formulas, maps or diagrams. F. Any other services desired and authorized by the City. EXHIBIT C RESPONSIBILITIES OF THE CITY A. Designate a responsible official to manage and coordinate the project. B. Make available all data, information, reports, maps, plans, specifications, and other reasonable information for the proper performance of services. C. Prepare and post all notices pertaining to the public hearings. D. Cause to be published all notices of public hearings or other meetings (i.e., newspapers and posting). E. Prepare all resolutions required by City Council. F. All environmental documentation is to be provided by others. G Retain a qualified legal counsel to provide legal advice during the District process. H. Retain a qualified financial consultant to provide financing and bonding costs during the District process. L Retain a qualified real estate appraiser to provide appraised values of property during the District process. J. Distribute the CFD Report to property owners, project team, City Council and other interested parties. K. Provide records of assessments obligating and encumbering the proposed District. L. Schedule and agendize meetings and hearings as required under the Act. 000064 City of Moorpark. Proposal for Community Facilities District Special Tax Consultant Page 7 General Government Management Services CAPABILITIES Special District Formation Assessments Districts Community Facilities Districts Special Districts Consulting Community Facilities District Administration Assessment District Administration Public Facilities Acquisition Auditing Arbitrage Calculation Public Administration City Management Finance Administrative Services Accounting Services Risk Management Grant Management Management Audits Management Consulting LIST OF LOCAL PRESENT AND PAST AGENCY CLIENTS City of Adelanto City of Beaumont City of Blythe City of Brea City of Calimesa City of Imperial City of Lancaster City of Lincoln City of Maricopa City of Moorpark City of Mum eta City of Norco City of Palmdale City of Temecula City of Thousand Oaks City of Upland Chino Valley Fire District Joshua Basin Water District 000065 City of Moorpark: Proposal for Community Facilities District Special Tax Consultant Page R General. Government Management Services ALAN C. K 2XPANICAS PRINCIPAL / CEO EXPERIENCE Mr. Kapanicas has extensive expertise in public administration, special taxes, special assessments, and acquisition auditing. The formation and administration of special financing and taxing districts include Community Facilities Districts and Assessment Districts. He has assisted in the formation of Special Districts for the California Cities of Adelanto, Beaumont, Brea, Desert Hot Springs, Hemet, Hesperia, Indian Wells, Lancaster, Lincoln, Lake Elsinore, Moorpark, Murrieta, Norco, Temecula, Thousand Oaks, Vista, Upland; County of Orange California; Half Moon Bay Fire Protection District; and Morgan Hill Unified, and Lakeside School Districts. To date, he has been involved with the authorization of over $900 million dollars of funding for necessary public infrastructure. He has administered most of the Districts formed, plus additional Districts in the cities of Beaumont, and Yorba Linda; Tustin Unified and Perris High School Districts; and the County of San Diego. For each agency, he has prepared and submitted the annual tax rolls to their respective counties, prepared annual revenue and expenditure reports and handled citizen inquiries. Public administration has included assignments as City Manager, City Administrator, Administrative Services Director, Finance Officer, and Project Manager. Mr. Kapanicas is currently contract City Manager and Administrative Services Director for the City of Beaumont, and past contract City Manager for the City of Calimesa, and City Administrator for the City of Maricopa. He has previously served as contract Finance Officer for the Chino Valley Fire District, and Senior Financial Analyst and Senior Organization Development Specialist for the City of Scottsdale. In the area of construction and acquisition auditing, Mr. Kapanicas has been retained to verify and approve expenditures of local agency and bond funds. He has assisted in the approval of construction draws and acquisition reimbursements for major public works projects. Through a multi -step process, he ensures that public facilities meet all legal, district, and agency requirements, allowing an expedited payment of all approved disbursements. EDUCATION MBA, Management & Finance, Western International University. BS, Business, Arizona State University Accounting Certificate, University of California, San Diego. CPA (CA Candidate). ICMA Certified City Manager Certificate. 000066 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into this — day of July, 2004, between CITY OF MOORPARK, a California public body, hereinafter referred to as "CITY" and ABERGAL & ASSOCIATES, a corporation, hereinafter referred to as "CONTRACTOR." WITNESSTH Recitals: A. This Agreement is entered into under the authority of Section 53060 of the California Government Code that permits a public CITY to contract with and employ any person or firm for the furnishing of special services if such person or firm is specially trained and experienced and competent to perform the special services required. B. CONTRACTOR represents that it is experienced in providing services requested by the CITY to provide these services. I. CONTRACTOR'S OBLIGATIONS A. CONTRACTOR agrees to provide a final appraisal report for each of two residential subdivisions: Moorpark Highlands and Moorpark Vistas, hereinafter referred to as "REPORTS" as more particularly described in the Contractor's proposal dated June 29, 2004 which is attached hereto and made a part of this AGREEMENT as Exhibit A. The PROJECTS will be appraised on the basis of a Fee Simple Estate and the reports will be prepared in conformity with, and subject to, FIRREA, the Code of Professional Ethics and Standards as set forth by the Appraisal Institute. The reports shall be complete, self - contained appraisals in a narrative format including an executive summary of analysis and conclusions and, in general prepared in accordance with the appraisal requirements of the CITY. B. CONTRACTOR agrees to complete the APPRAISAL at a total cost of $23,000. If needed and at the discretion of CITY, CONTRACTOR, upon written authorization by CITY, shall be available for post - appraisal meetings, pre - deposition and pre -trial preparation (including travel time) at an hourly rate of $300.. C. CONTRACTOR shall provide CITY with three (3) original bound copies and one (1) original unbound copy of the reports. Additional copies of the reports will be provided for an administrative charge of $250.00 per copy. D. CONTRACTOR agrees that it shall remain a wholly independent contractor. CONTRACTOR shall not, at any time or in any manner, represent that it is an officer, employee or agent of CITY. CONTRACTOR shall comply with all applicable provisions of the Worker" Compensation Insurance and Safety Acts and Labor Code of the State of California. ATTACHMENT 5 f)00067 II. CITY'S OBLIGATIONS A. CITY shall make available all materials needed to complete the assignment including but not limited to files, site plans, reports, cost proforma, access to the sites and other data pertinent to the valuation assignment. B. CITY shall promptly pay CONTRACTOR as provided for under Section IV. C. CITY shall periodically monitor the progress of work performed under this Agreement documenting the level of CONTRACTOR'S performance. Said monitoring shall be the responsibility of the Executive Director or his designee. III. TIME OF PERFORMANCE A. CONTRACTOR shall complete services and provide the executive summary of the final values and conclusions no later than August 23, 2004. The final narrative reports will be delivered within twenty -eight (28) calendar days after the delivery of the executive summary. IV. METHOD OF PAYMENT A. CITY shall compensate CONTRACTOR for performance of this Agreement upon receipt of an invoice. CITY shall pay said invoice within thirty (30) days after receipt thereof, provided that the CONTRACTOR is in compliance with the terms and conditions of this Agreement. V. TERMINATION A. If, through any cause, CONTRACTOR shall fail to fulfill, in a timely and proper manner, his obligations under this Agreement, or if CONTRACTOR shall violate any of the covenants, agreements or stipulations of this Agreement, the CITY shall provide written notice to CONTRACTOR of such default and by specifying the effective date thereof, at least ten (10) days before the effective ate of proposed termination. In the event CONTRACTOR fails to cure its default by rendering a satisfactory performance within such period of time, CITY shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. In such event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by CONTRACTOR under this Agreement shall, at the option of the CITY, become its property and CONTRACTOR shall be entitled to receive actual cost for any work satisfactorily completed hereunder. Notwithstanding the above, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Agreement by CONTRACTOR, and CITY may withhold any payments to CONTRACTOR {y() 0 1368 for the purpose of off -set until such time as the exact amount of damages due CITY from CONTRACTOR is determined. B. CITY may terminate this Agreement at any time by giving at least ten (10) days notice in writing to CONTRACTOR. If the Agreement is terminated by CITY as provided herein, CONTRACTOR will be paid for the actual expenses incurred up to the termination date. If this Agreement is terminated due to the fault of CONTRACTOR, then Section V, Subpart A, hereto relative to termination shall apply. C. CONTRACTOR may terminate this Agreement only in the event of an alleged breach by CITY, after providing CITY an opportunity to cure alleged breach, with written notice no less than ten (10) days in advance of such termination. VI. NOTICES A. Notices to the parties shall, unless otherwise requested in writing, be sent by U.S. Mail, postage prepaid, and addressed as follows: CITY: Steven Kueny, City Manager City of Moorpark 799 Moorpark Avenue Moorpark CA 93021 CONTRACTOR: Michael Abergel, MAI Abergel & Assoociates 24009 W. Ventura Blvd., Suite 200 Calabasas, CA 91302 VII. AUTHORIZED CONTACTS A. The contact for CITY authorized to execute actions and to respond to inquiries on behalf of CITY, or to obligate CITY to any action, or to interpret any portion of this Agreement shall be the City Manager or his designee. VIII. ASSIGNABILITY A. CONTRACTOR shall not in any way assign or transfer any interest in this Agreement without the prior written consent of CITY; provided, however, that claims for money due or to become due to CONTRACTOR for CITY under this Agreement may be assigned to a bank, trust company or other financial institution or to a trustee in bankruptcy, without such approval. Notice of any such assignment or transfer shall be promptly furnished to CITY. IX. HOLD HARMLESS A. CONTRACTOR shall indemnify and hold harmless CITY, its officers and employees from and against any and all damages to property or injuries to or 3 ' A069 death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and hold harmless CITY, its officers, employees, servants and agents from and against any and all claims, demands, suites, actions or proceedings therefore, resulting from or arising out of the intentional misconduct, malicious acts, negligent acts, errors or omissions of CONTRACTOR or any of its officers, employees or against in the performance of this agreement, except such damage caused by the sole negligence of CITY or any of its officers, employees, servants or agents. X. INSURANCE A. CONTRACTOR shall secure from a good and reasonable company or companies doing insurance business in the State of California, pay for and maintain in full force and effect for the duration of this Agreement a policy of general liability insurance, and shall furnish to CITY a Certificate of Liability Insurance before execution of this Agreement. The protection offered by this policy shall: 1. Include CITY as an additional insured covering services to be rendered under this Agreement, whether liability is attributable to CONTRACTOR or CITY. 2. Insure CITY and its officers, employees, servants and agents while acting within the scope of duties under this Agreement against all claims arising out of, or in connection with, this Agreement. 3. Provide the following minimum limits: General Liability $1,000,000 Professional Liability $1,000,000 4. CONTRACTOR shall possess automobile insurance of $100,000 per vehicle. XI. WORKER'S COMPENSATION INSUANCE A. Before execution of this Agreement by CITY, CONTRACTOR shall file with CITY the following certification: "I am aware of, and will comply with Section 3700 of the Labor Code, requiring every employer to be insured against liability of Workers' Compensation or to undertake self - insurance before commencing any of the work." CONTRACTOR shall also comply with Section 3800 of the Labor Code by securing, paying for, and maintaining in full force and effect for the duration of this Agreement, complete Worker's Compensation Insurance, and shall furnish a Certificate of Insurance to CITY before execution of this Agreement by CITY. The CITY and its officers, employees, servants, or agents, shall not be responsible 4 4,)00070 for any claims in law or equity occasioned by failure of the CONTRACTOR to comply with this section. Every workers' compensation insurance policy shall bear an endorsement that shall have attached a rider whereby it is provided that, in the event of expiration or proposed cancellation of such policy for any reason whatsoever, CITY shall be notified by registered mail, postage prepaid, return receipt requested, not less than (30) days before expiration or cancellation is effective. XII. EQUAL OPPORTUNITY COMPLIANCE A. Before execution of this Agreement by CITY, CONTRACTOR shall file with CITY the "Equal Opportunity Compliance Program/Equal Service Certification" herein enclosed as Exhibit B. As Community Development Block Grant funds will pay for the services herein requested by CITY, CONTRACTOR is required to certify that it follows fair employment practices. XIII. INTEREST OF OTHER LOCAL PUBLIC OFFICIALS A. No member of the governing body of the locality and no other public official of such locality who exercises any functions or responsibilities in connection with the planning and carrying out of this Agreement shall have any personal financial interest, direct or indirect, in this Agreement; and CONTRACTOR shall take appropriate steps to assure compliance. XIV. FINDINGS CONFIDENTIAL A. All of the reports, information, data, etc., prepared or assembled by CONTRACTOR under this Agreement are confidential and CONTRACTOR agrees that they shall not be made available to any individual or organization without the prior written approval of CITY. XV. OWNERSHIP AND COPYRIGHT A. Upon completion of any work performed by CONTRACTOR pursuant to this Agreement, or upon sooner termination of Agreement, all original materials prepared by CONTRACTOR shall become the sole property of CITY and may be used, reused or otherwise disposed of by CITY without permission or CONTRACTOR. CONTRACTOR agrees that any material prepared by CONTRACTOR in performance of this Agreement shall not be subject to use by anyone other than CITY without written permission of CITY. No reports, maps or other documents produced in whole or in part under this Agreement shall be the subject of an application for copyright by or on behalf of CONTRACTOR. 5 000071- XVI. COMPLIANCE WITH LOCAL LAWS A. CONTRACTOR shall comply with all applicable laws, ordinances and codes of the state and local governments. XVII. INTEREST OF CONTRACTOR AND EMPLOYEES A. CONTRACTOR covenants that he presently has no interest and shall not acquire interest, direct or indirect, in any study area r any parcels therein or any other interest that would conflict in any manner or degree with the performance of his services hereunder. CONTRACTOR further covenants that, in the performance of this Agreement, no person having any such interest shall be employed. XVIII. LAWS GOVERNING THIS AGREEMENT A. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable Federal statutes and regulations as amended. XIX. ATTORNEY'S FEES A. If any action at law or equity, including an action for declaratory relief, is brought to enforce of interpret any provision of this Agreement, the prevailing part shall be entitled to reasonable attorney's fees, court costs, and necessary disbursements, in addition to any other relief to which it may be entitled. XX. VALIDITY A. The invalidity, in whole or in part, of any provision of this Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal statues and regulations as amended. XXII. INTERPRETATION OF AGREEMENT A. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the grounds that the party prepared the Agreement or caused it to be prepared. XXIII. VENUE A. This Agreement is made, entered into, and executed in Moorpark, Ventura County, California and any action filed in any court or for arbitration for the interpretation, enforcement and/or otherwise of the terms, covenants and conditions referred to herein shall be filed in the applicable court in Ventura County, California. 6 1)()0072 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF MOORPARK a California public body, corporate and politic STEVEN KUENY CITY MANAGER ATTEST: Deborah S. Traffenstedt, City Clerk MCNAMARA & ASSOCIATES a Corporation MIKE ABERGEL, MAI PRINCIPAL OABERGEL & ASSOCIATES O June 29, 2004 Mr. High Riley City of Moorpark 799 Moorpark Avenue Moorpark, CA c/o Mr. Marshall Linn Urban Futures Re: Appraisal report of two proposed residential subdivisions within the City of Moorpark, CA The two properties are know The Highlands and the Vistas, and are described further as follows; Highlands: A proposed 460 unit single family residential development along with a site slated for the development of 100 multi - family apartment units. The site is slated for development by Pardee Homes. The Vista's: A proposed 110 unit single family residential development. The site is slated for development by Suncal Development. Dear Mr. Linn, In accordance with your request, we wish to submit to you our proposal to prepare an appraisal of the above referenced properties. The purpose of the reports will be to estimate the As Is Market Value of each site, as of a current date. The appraisal will be utilized by Urban Futures and the City of Moorpark in their efforts to analyze a proposed Mello Roos Community Facilities District to encumber the properties. The property will be appraised on the basis of a Fee Simple Estate. As always, our appraisal report will be prepared in conformity with, and subject to, FIRREA, the Code of Professional Ethics and Standards as set forth by the Appraisal Institute. It is our understanding that a complete self - contained appraisal in a narrative format will be required. In addition, prior to the completion of the narrative appraisal, an executive summary presenting a summary of analysis and conclusions will be made available to the client. The reports will be prepared in accordance with the appraisal requirements of the client. 24009 W. Ventura Blvd., Suite 200, Calabasas, CA 91302 (818) 225 -6131 Fax (818) 225 -6134 Based on the above, the all inclusive fee to prepare the appraisal report will be $23,000 ($15,000 for the Highlands and $8,000 for the Vistas), payable upon completion of the appraisal. Upon completion, three final copies of the report will be forwarded with additional copies available for an administrative charge of $250 per copy. This fee is all inclusive for the preparation of the completed appraisals. The fee does not include any court testimony, depositions, or any other court proceedings that may be required as a result of the appraisal. All additional time required in regards to the report will be billed at an hourly rate of $300 per hour, to be paid in advance of services rendered. The executive summary of final values and conclusions will be completed no later than August 23, 2004. The final narrative reports will be delivered approximately 15 to 20 days thereafter, or as mutually agreed upon. Our delivery date is highly contingent upon receiving all necessary items to complete the assignment. This would include access to the site, necessary cost and proforina information, a detailed site plan and any other data pertinent to the valuation assignment. Payment of the appraisal fee is not contingent upon the following: (a) the final value conclusion, (b) obtaining financing, (c ) if financing is involved, waiting until the property has closed and has been funded and (d) if the property is sold, waiting until after the property has closed to new ownership and funds have either been received or placed in escrow, and (e) completion of bankruptcy court proceedings. This proposal is void if not accepted within 5 days. If the terms and conditions of this proposal are acceptable to you, please sign and return it to this office. We wish to thank you for utilizing the services of our firm, and for the confidence you have demonstrated in our ability to perform this assignment. Respectfully submitted, ABERGEL & ASSOCIATES Michael Abergel, MAI Principal Accepted by: Mr. Marshall Linn URBAN FUTURES Date 24009 W. Ventura Blvd., Suite 200, Calabasas, CA 91302 (818) 225 -6131 Fax (818) 225 -6134 0100075 EXHIBIT B EQUAL OPPORTUNITY COMPLIANCE PROGRAM EQUAL SERVICE CERTIFICATION ABERGEL & ASSOCIATES (Contractor), by its Principal or his /her duly authorized representative's signature affixed hereto, certified and agrees to comply with the following provisions: a. Executive Order 11246 requires that during the performance of this Agreement, the Contractor agrees not to discriminate against any employee or applicant for employment because of race, religion, sex, color or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color or national origin. Such action shall include, but not limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Contractor setting forth the provisions of this non - discrimination clause. b. Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 et seq., requires that to the greatest extent feasible, opportunities for training and employment be given to lower income residents of the project area and contracts for work in connection with the project be awarded to business concerns that are located in, or owned in substantial part by persons residing in the area of the project. Title VI of the Civil Rights Act of 1964 provides that no person shall, on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or subjected to discrimination under any program or activity receiving Federal financial assistance. d. Section 109, Title I of the Housing and Community Development Act of 1974 provides that no person shall, on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or subjected to discrimination under any program or activity funded in whole or in part with funds made available under this Title. e. Prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975, or with respect to an otherwise qualified handicapped individual, as provided in Section 504 of the Rehabilitation Act of 1973, shall also apply to any such program or activity. Date Principal Title 0000'76