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HomeMy WebLinkAboutAGENDA REPORT 1985 1021 CC REG ITEM 10H - mod AGR EEMENrip THIS AGREEMENT, made and entered into this 21st day of October, 1985 between the CITY OF MOORPARK, a municipal corporation, and the INDUSTRIAL DEVELOPMENT AUTHORITY OF THE CITY OF MOORPARK, hereinafter collectively referred to as "CITY", and FIELDMAN, ROLAPP & ASSOCIATES, an independent contractor, hereinafter referred to as "CONTRACTOR" -- - WITNESSETH - THE PARTIES HERETO AGREE AS FOLLOWS: ARTICLE 1. TERM OF CONTRACT Section 1.01. This agreement shall become effective on October 21, 1985 and shall continue until stipulated services have been completed, unless sooner terminated. ARTICLE 2. SERVICES TO BE PERFORMED BY CONTRACTOR Specific Services Section 2.01. Contractor agrees to perform the services specified for Financial Consulting Services for the proposed issuance of Industrial Development Bond financing. Said services are as described in attached EXHIBIT "A". Method of Performing Services Section 2.02. Contractor will determine the method, details and means of performing the above-described services. Responsible Employee in Charge Section 2.03. As an express condition of the City entering into the agreement, William L. Fieldman shall be directly responsible for the performance of all work required pursuant to this agreement. If, at any time, the services of William L. Fieldman are not available to supervise the services to be performed under the terms of this agreement, the agreement shall be immediately cancellable at the option of the City, and the City will no longer be bound to make compen- sation to Contractor for any purpose whatsoever after the date William L. Fieldman is no longer available to provide such supervision. ARTICLE 3. COMPENSATION Amount of Compensation Section 3.01. As sole and complete consideration for the services to be performed by Contractor, City agrees to pay Contractor on a time and materials basis in accordance with EXHIBIT "B". All costs are estimates not to be exceed without written approval of the City Manager. -1- Contractor's invoices to City shall include an itemization of expenditures as required by City. The City shall not pay any fee or reimburse any expense deemed by the City Manager, at his sole discretion,--to be unnecessary to the completion of the services in a competent manner and in accordance with accepted financial consultant practice on such matters. Payment of Compensation Section 3.02. Contractor shall submit to City a written statement of services rendered prior to payment. Payment will be made from the proceeds of the issuance of Bonds. In the event that Bonds are not issued for any reason, Contractor shall receive payment for services rendered, but in no event shall said payment, including out of pocket expenses, exceed $5,000.00. ARTICLE 4. OBLIGATIONS OF CONTRACTOR Assignment Section 4.01. Neither this agreement nor any duties or obligations under this agreement may be assigned by Contractor without the prior written consent of City. ARTICLE 5. OBLIGATIONS OF CITY Cooperation of City Section 5.01. City agrees to comply with all reasonable requests of Contractor relative to, and to provide access to all documents reasonably necessary for, the performance of Contractor's duties under this agreement. Place of Work Section 5.02. City agrees to furnish space on the premises of City Hall for use by Contractor while performing any of the above-described services required to be performed on City's premises. ARTICLE 6. TERMINATION OF AGREEMENT Termination Upon Notice Section 6.01. The City may terminate this agreement. upon giving a twenty-four (24) hour written notice, and the Contractor may terminate this agreement upon giving seven (7) days' written notice. In the event of such termination, Contractor shall be entitled to reimbursement for all fees and expenses incurred prior to the effective date of such notice. Termination Upon Assignment Section 6.02. Notwithstanding any other provision of this agreement, the agreement shall terminate automatically without prior notice upon the assignment of the agreement by the Contractor without the prior written consent of City. -2- ARTICLE 7. GENERAL PROVISIONS Independent Contractor Section 7.01. Contractor is and at all times shall remain as to City a wholly independent contractor. Contractor shall not, at any time or in any manner, represent that he is an officer, employee or agent of the City. Contractor shall comply with all applicable provisions of the Workers' Compensation Insurance and Safety Acts and Labor Code of the State of California. Ownership of Documents Section 7.02. Upon completion of any writing required to be provided by Contractor in the course of performing any of the above-described services, or upon sooner termination of this agreement, all original documents prepared by Contractor shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of Contractor. Hold Harmless Section 7.03. Contractor agrees to indemnify, save, keep and hold harmless City and all of its officers and employees from all claims, actions, suits, damages, costs or expenses in law or equity, including costs of suit and expenses for legal services, that may at any time arise or be set up because of damage to property or injury or death to persons received or suffered by reason of, or arising out of, any act on the part of Contractor in regard to any function or activity carried out by Contractor on behalf of City pursuant to the terms of this agreement. Notices Section 7.04. Any notice to be given hereunder by either party to the other shall be effected either by personal delivery in writing, or by certified mail, postage prepaid, return receipt requested. Mailed notices shall be addressed to the City in care of the City Manager, 799 Moorpark Avenue, Moorpark, California 93021, and to Contractor, Fieldman, Rolapp & Associates, at 2061 Business Center Drive, Suite 203, Irvine, California 92715; however, each party may change the address by written notice in accordance with this section. Notices delivered personally will be deemed served as of the second (2nd) day after mailing. Entire Agreement of the Parties Section 7.05. This agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services by Contractor to City, and contains all of the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any party or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this agreement shall be valid or binding. Any modification of this agreement will be effective only if it is in writing signed by the party to be charged. -3- Governing Law Section 7.06. This Agreement shall be governed by and constructed in accordance with_-the_laws_of-the_State of_California Attorney's Fees Section 7.07. Should either party hereto institute any action or proceeding of any nature whatsoever in a court of oawl, equity, or otherwise, to enforce any provision of this agremene,t or for a declaration of such party's rights or obligations hereunder, or for any other remedy, the prevailing party shall be entitled to receive from the losing party its costs, including such amount as the Court or arbitration panel may adjudge to be reasonable attorney's fees for the services rendered the party finally prevailing in any such action or proceeding. Unless judgment goes by default, the attorney fee award shall not be computed in accordance with any court schedule, but shall be such as to fully reimburse the prevailing party for all its/ their attorney's fees actually incurred in good faith, regardless of the amount of such judgment, it being the intention of the parties to fully compensate the prevailing party for all attorney's fees paid or incurred in good faith. Venue Section 7.08. This agreement is made, entered into, execute and is to be performed 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. City's Agent Section 7.09. The Moorpark City Manager shall have the right to review, coordinate and approve all work to be performed by Contractor pursuant to the terms of this agreement and shall be the City's agent with respect to review, coordination and approval of the services to be performed by the Contractor. Interpretation of Agreement Section 7.10. Should interpretation of this agreement, or any portion thereof, be necessary, it is deemed that this agreement was pre pared by each of the parties hereto jointly and equally, and shall not be interpreted against any party on the ground that the party prepared the agreement or caused it to be prepared. Time Section 7.11. Time is of the essence. EXECUTED in duplicate at Moorpark, California, on the date and year first hereinabove written. CITY OF MOORPARK, CALIFORNIA, FIELDMAN, ROLAPP & ASSOCIATES a municipal corporation By By Title Mayor ATTEST: And By Title City Clerk (SEAL) CONTRACTOR CITY _4_ (Notarial certificate attachecl) EXHIBIT "A" FINANCIAL CONSULTING SERVICES 1. Meet with City staff and applicant, Bond Counsel, and applicant's representatives, to discuss the merits and feasibility of the proposed project. 2. Analyze all financial data submitted by the applicant in connection with its request for assistance. 3. Render an opinion to City as to the feasibility and viability of the project. 4. In the event the City and Industrial Development Authority deem it appropriate to proceed with the issuance of "Indus- trial Revenue Bonds", review the financial aspects of all documents drafted in connection with such financing, meet with the applicant, applicant's lenders, legal counsel and credit enhancement providers, and assist City and .Authority in preparation of any project agreements. 5. Services related to 1, 2, 3 and 4 above, as requested by City and/or Authority. 6. If requested to do so by City or Authority, "sign off" on any Official Statement or other disclosure document and/or render a written opinion to the City and/or Authority as to the adequacy of the financing, interest rates, discounts or other related matters. EXHIBIT " B " AMOUNT OF COMPENSATION For services pursuant to Items 1, 2, 3, 4 and 5 of Exhibit "A" of this Agreement, compensation at the rate of NINETY-FIVE DOLLARS ($95.00) per hour, not to exceed FOUR THOUSAND, FIVE HUNDRED DOLLARS ($4,500.00) without the written approval of the City Manager, plus usual and customary out-of-pocket expenses. If authorized by the City, compensation in the amount of SEVEN THOUSAND, FIVE HUNDRED DOLLARS ($7,500.00) for services pursuant to Item 6 of Exhibit "A" of this Agreement, including any and all out-of-pocket expenses related to said services.