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HomeMy WebLinkAboutWILLDAN FINANCIAL SERVICESINSURANCE NOT ON FILE WORK MAY NQT PPROCEED CLERK OF COUNCIL DATE: AGREEMENT TO PROVIDE ASSESSMENT DISTRICT ADMINISTRATION SERVICES N-2020-116 THIS AGREEMENT is made and entered into this 15th day of June, 2020 by and between Willdan o Financial Services ("Consultant"), and the City of Santa Ana, a charter city and municipal ocorporation organized and existing under the Constitution and laws of the State of California Eo ("City"). r RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of assessment district administration services. B. Consultant represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Consultant shall perform during the term of this Agreement the services that are described in the Scope of Work, which is attached as Exhibit A and incorporated in full. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit A. The total sum to be expended under the term of this Agreement, including any extension periods, shall not exceed $36,092. This sum is comprised of (1) the base amount of $30,077 and a contingency in the amount of $6,015 for additional services at the City' sole discretion. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. Page 1 of 8 3. TERM This Agreement shall commence on the date first written above and terminate on June 14, 2024, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for rip to a 1-year period upon a writing executed by the City Manager and City Attorney. 4. PREVAILING WAGES Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. Page 2 of 8 INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subconsultants, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the California Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. Page 3 of 8 (iv) Consultant shall supply City with a fully executed additional insured endorsement. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 8. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant or its subconsultants, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed Page 4 of 8 under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 Page 5 of 8 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 To Consultant: Willdan Financial Services 27368 Via Industria, Suite 200 Temecula, CA 92590 Attn: Gladys Medina A party may change its address by giving notice in writing to the other parry. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these timeframes, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or Page 6 of 8 granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, relation, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities or in connection with any activities under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 19. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 20. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. Page 7 of 8 21. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By: JAn M. Funk Assistant City Attorney RECOMMENDED FOR APPROVAL 44 Iq Li 6\1 Nabil Saba Executive Director Public Works Agency CITY OF SANTA ANA 6� STINE RIDGE City Manager CONSULTANT Willdan Financial Services Chris Fisher Vice President — Group Manager Page 8 of 8 1:11:3N Milk February 27, 2020 Mr. Kenny Nguyen Public Works Department City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Re: Renewal Letter Proposal to Provide District Administration Services for FY 2020121 Dear Mr. Nguyen: Willdan Financial Services ("Willdan") is pleased to submit our renewal letter containing scope of services and fee schedule for District Administration Services for Fiscal Year 2020/21. Scope of Services District Administration and Levy Services The following is our scope of services for district administration. All costs associated with annual administration are fully recoverable either through the Assessment levy or through payment by requestor for special services. As such, Willdan proposes to perform the following services, which will meet the needs of the City's annual administration for its Assessment Districts. Annual Administration and Delinquency Management Coordinate timely enrollment of assessments and assure quality by consistently applying the method of apportionment. The tasks include but not limited to the following: • Apportion Parcels - Willdan will receive from the City staff assigned to administer the District, information necessary to create the annual Special Assessment. City staff will approve the requirement for the current fiscal year and Willdan will apportion the Special Assessment to each parcel consistent with the method of apportionment. • Coordinate with Fiscal Agent - Willdan will help the City coordinate with the Fiscal Agent to review current debt service schedules and determine the amount needed to pay principal and interest on the outstanding bonds or calculate any capitalized interest for the bond year in question, where applicable. • Determine Administrative Fees - Willdan will help the City determine the amount needed to meet the anticipated administrative expenses for the current fiscal year. • Submit to Auditor - Willdan will prepare the annual levy in a format and media acceptable for direct submission to the County Auditor's office prior to the statutory deadline and will perform adjustments and corrections to rejected parcels by resubmitting the levies, as necessary. • Direct Billing - Willdan will coordinate the direct billing of certain parcels, as requested by the City, if the parcel is non-taxable pursuant to Orange County Taxability Code and is subject to the levy. • Apportionments - Willdan will facilitate the preparation of assessment apportionment applications, if necessary. Willdan will, in a timely manner and pursuant to the applicable statutory provisions, prepare assessment apportionments, which shall include: a) preparation of amended assessment diagrams; b) apportioning the assessment to divided parcels; c) preparation and delivery of the required notice to the original bond purchaser(s); d) recordation of required notice and amended assessment diagrams, e) preparation (if necessary) of required disclosure documents, as required by the Department of Real Estate (RE624 Forms). Services related to reapportion ments shall be at the expense of the requesting party or placed on the tax bill. T 951.587.3500 • 800.755.6864 1 F 951.587.3510 • 888.326.6864 127368 Via Industria, Suite 200, Temecula, CA 92590 1 www.willdan.com Mr. Kenny Nguyen City of Santa Ana Renewal Letter Proposal to Provide D/strictAdministration Services February27, 2020 Page 11 • Special Assessment. A toll -free telephone number of the Consultant's designation will appear on the regular property tax billing next to the Special Assessment to facilitate contact with the public. Willdan will provide qualified and competent staff members to answer taxpayer questions regarding the purpose of the Special Assessment, the facilities constructed and/or maintained by the District, the use of bond proceeds and the method of apportionment of the Special Assessment. • Prepayment Calculations - At the request of the landowners, Willdan will calculate the prepayment amount for a parcel(s) and provide any additional information as requested related thereto. Services related to requests for payoff information from parties other than the City or property owner will be at the expense of the requesting party. If a prepayment is received, Willdan will comply with Revenue Taxation Code 163 by preparing the Release of Lien. Willdan will coordinate with City staff to have a City representative sign the Release. Willdan will record the Release within 5 days of receiving the signed Release and provide a copy to the City. The fee for this service is $50 per calculation, to be paid by the requestor. Delinquency Management — Determine delinquency status and coordinate the City's foreclosure requirements. • Delinquency Policy - Willdan will review and make recommendations to the City to ensure that any policies established related to the collection of delinquent Special Assessments are consistent with the foreclosure covenant and/or with the requirements of the District formation documents. • Delinquency History - Willdan will maintain a database that includes a delinquency history of the parcels, as derived from the County property tax system. Delinquency history will include delinquent amounts for each parcel including reference to those parcels that have been referred to Foreclosure Counsel, and prior year delinquencies that have been paid. Delinquency Tracking and Reporting - Willdan will research the records of the County Tax Collector for payment information to determine which parcels are delinquent after the December 10 and April 10 property tax installment due dates, after June 30 and prior to the date in which the City is obligated to initiate foreclosure proceedings under the foreclosure covenant. Delinquency reports Bond Calls — Willdan will perform required bond call spreads and coordinate the early redemption of outstanding bonds. Additional efforts needed to complete bond calls; such as, cash flow certificates, special analyses and/or atypical spread calculations, shall be charged hourly using our then -current hourly rates (see "Additional Services' section). However, Willdan will not begin any additional work without prior approval from City staff. Continuing Disclosure Services The following outlines the steps required to provide annual disclosure services. • Review pertinent documents and data related to debt issuance. • Collect requisite information from Orange County agency, as applicable. • Create a parcel database which includes; assessor parcel numbers, land and structure values, land use, owner name, charge amount, original assessment amount, principal amount due, and outstanding principal, as applicable for each fiscal year. • Create a detail and summary report of delinquent parcels, as applicable. • Provide the City and Urban Futures with the parcel database and delinquency reports to assist Urban Futures in preparing an Annual Continuing Disclosure Report. Client Responsibilities Willdan will rely on assistance from the City of Santa Ana in obtaining the following information: Although Willdan will annually research information regarding land subdivision, as required by the City of Santa Ana, it may be necessary for the City to assist Willdan in obtaining this information, including information regarding collections, assessments, funds, and payments and/or prepayments received by the City. • The annual administrative cost information to be incorporated into the annual levy each year. • Parcel information for those properties that paid off during the year. COMPREHENSIVE. INNOVATIVE. TRUSTED. 19 Mr. Kenny Nguyen City of Santa Ana Renewal Letter Proposal to Provide DistrictAdministration Services February 27,, 2020 Page iil Fee Schedule Willdan will administer the District, as described by our work plan, for $5,665 for fiscal year 2020/21, plus 3% cumulatively each fiscal year after. This fee includes all information gathering, preparation and presentation to furnish all materials, equipment, tools, facilities, as well as all management, superintendence, labor, services, taxes, licenses, and permits required during the course of work. As the work progresses, fees are payable monthly, on a percentage completion basis, unless another billing format is mutually agreed upon between the City of Santa Ana and Willdan. Reimbursable Expenses Willdan will be reimbursed for out of pocket expenses. Examples of reimbursable expenses include, but are not limited to: postage, travel expenses, mileage (current federal prevailing rate), maps, electronic data furnished from the County and/or other applicable resources, construction cost periodicals, and copying (currently 6¢ per copy). Any additional expense for reports or from outside services will be billed to the City. Charges for meeting and consulting with counsel, the City, or other parties regarding services not listed in the scope of work will be at our then -current hourly rates (see "Hourly Rates" below). There is no charge for telephone costs. In the event that a third party requests any documents, Willdan may, in accordance with Willdan's applicable rate schedule, charge such third party for providing these documents. Hourly Rates The following presents Willdan's current hourly rates for out -of -scope work approved by the city. Position Hourly Rate Position Hourly Rate Group Manager $210 Principal Consultant $200 Senior Project Manager $165 Project Manager $145 Senior Project Analyst $130 Senior Analyst $120 Analyst $100 Assistant Analyst $75 Willdan's commitment is to provide the highest degree of value to the City. We look forward to discussing our qualifications with you. Should you have any questions, or need additional information, please contact Ms. Susana Hernandez, at (800) 755-6864 or via email at SHernandez(c_)willdan.com. Thank you again for this opportunity to submit our qualifications for these important services. Sincerely, WILLDAN FINANCIAL SERVICES Gladys Medina Vice President — Group Manager District Administration Services COMPREHENSIVE. INNOVATIVE. TRUSTED.