Loading...
HomeMy WebLinkAbout5 - AGMT - TAX EXEMPT BOND IRS COMPLIANCE°. REQUEST FOR SUCCESSOR AGENCY ACTION` MEETING DATE: OCTOBER 1, 2012 TITLE: AGREEMENT WITH BLX GROUP, LLC FOR TAX EXEMPT BOND IRS COMPLIANCE CLERK OF THE COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Implementing Resolution ? Other CITY MANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council, acting as the Successor Agency, to execute the attached agreement with BLX Group, LLC to provide arbitrage tax allocation bond rebate analyses services for tax allocation bonds in an amount not to exceed $7,000, subject to non- substantive changes approved by the City Manager and City Attorney. DISCUSSION On January 9, 2012, City Council adopted Resolution No. 2012-002 and designated the City of Santa Ana as the Successor Agency for the former Community Redevelopment Agency of the City of Santa Ana (RDA), and the Housing Authority of the City of Santa Ana as the Successor Housing Agency pursuant to California Health and Safety Code Section 34176. On February 1, 2012, the former redevelopment agency was dissolved and the City assumed the role of the Successor Agency. One component of the winding down process of the former redevelopment agency's activities includes ensuring compliance with all bond covenants. There are two outstanding bonds of the former RDA: South Main Street Redevelopment Project Tax Allocation Bonds, Series 2003A and Series 200313; Merged Project Area Tax Allocation Bonds, Series A. The bond indenture documents for both bonds require compliance with section 148(f) of the Tax Code, relating to the rebate of excess investment earnings, if any. BLX Group, LLC has the specialized skill and knowledge to provide the service. BLX Group, LLC has provided this service for the former RDA since the issuance of each bond, and therefore has the historical information and experience with these particular bonds. Staff recommends the City, acting as the Successor Agency, enter into this agreement. 5-1 Agreement with BLX Group, LLC October 1, 2012 Page 2 FISCAL IMPACT Funds were included on the Recognized Obligation Payment Schedule (ROPS) and are available in the 2003 Series A, 2003 Series B, and 2011 Series A Bond Debt Service accounts (65218020- 62300, 65818020-62300, 65418020-62300). APPROVED AS TO FUNDS AND ACCOUNTS: "h a/n ado Nancy T. E ards Francisco Gutierrez Interim Exe tive Director Executive Director Community Development Agency Finance & Management Services Agency NTE/SKG/kg Exhibit 1. Agreement 5-2 CONSULTANT AGREEMENT BETWEEN THE SUCCESSOR AGENCY AND BLX GROUP, LLC THIS AGREEMENT, made and entered into this ls` day of October, 2012 by and between BLX Group, LLC, a limited liability corporation `h(-.,:inafter "Consultant"), and the Successor Agency to the former Community Redevelopm mt Agency of the City of Santa Ana, a public body (hereinafter "Successor Agency"). RECITALS A. The Successor Agency desires to retain a consultant having special skill and knowledge in the field of financial analysis and calculations relating to the arbitrage rebate requirements on Tax Allocation Bonds. B. Consultant represents that Consultant is able and willing to provide such services to the Successor Agency. 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: 1. SCOPE OF SERVICES Consultant shall provide financial analyses and calculations relating to the arbitrage rebate requirement on Tax Allocation Refunding Bonds contained in section 148(f) of the Internal Revenue Code, as set forth in Fxhibit A to this Agreement. Consultant has bl;en performing services for the Successor Agency since July 1, 2012 due to reporting deadlines. 2. COMPENSATION a. Successor Agency agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. Payment to Consultant shall cover services performed for the Successor Agency since July 1, 2012. The total sum to be expended under this Agreement shall not exceed $7,000.00 during the term of this Agreement. b. Payment by Successor Agency shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to Successor Agency accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by Successor Agency. EXHIBIT I 5-3 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2013, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Community Development Agency and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the Successor Agency. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the Successor Agency 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. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Due to the nature of services, no general liability :-_?_:urance is required. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the 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 lim:ts not less than $1,000,000 per accident. c. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. d. 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 Successor Agency upon execution of this Agreement and shall be approved in form by the Successor Agency Counsel. EXHIBIT I 5-4 (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in cw,erage or changed in any other material aspect without thirty (30) days prior written notice to the Successor Agency. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the Successor Agency with required proof that insurance has been procured and is in force and paid for, the Successor Agency shall have the right, at the Successor Agency's election, to forthwith terminate this Agreement. Such termination shall not effect 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 Successor Agency for any work performed prior to approval of insurance by the Successor Agency. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold ha; ::Mess the Successor Agency, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. The Consaltant further agrees to indemnify, hold harmless, and pay all costs for the defense of the Successor Agency, including fees and costs for special counsel to be selected by the Successor Agency, 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. Successor Agency may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the Successor Agency 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 Successor Agency. EXHIBIT l 5-5 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. 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 telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To Successor Agency: Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6549 With courtesy copy to: City Attorney's Office City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: BLX, LLC 777 South Figueroa Street, Suite 3200 Los Angeles, CA 90017 telefacsimile: 213-612-2499 Attn: A. Craig Underwood A party may change its address by giving notice in writing to the other party. Thereafter, 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 telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set Furth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. EXHIBIT I 5-6 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the Successor Agency and Consultant, 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 Successor Agency 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 to,ifis and conditions hereof, shall not bind or obligate Consultant nor the Successor Agency. 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. 11. 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 Successor Agency and any such assignment, transfer, delegation or subcontract without the Successor Agency's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the Successor Agency's ability to have any of the services which are the subject to this Agreement performed by Successor Agency personnel or by other consultants retained by Successor Agency. 12. TERMINATION This Agreement may be terminated by the Successor Agency upon thirty (30) days written notice of termination. In such event, Consultant shall he entitled to receive and the Successor Agency 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 Successor Agency all work product completed as of such date, and in such case such work product shall be the property of the Successor Agency unless prohibited by law, and Consultant consents to the Successor Agency's use thereof for such purposes as the Successor Agency 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. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, 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 EXHIBIT I 5-7 other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. 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. 15. 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 Agency immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify Successor Agency fully, including reasonable costs and attorney's fees, for any injuries or damages to Successor Agency in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. EXHIBIT I 5-8 IN WITNESS WHEREOF, the parties hereto have executco ais Agreement the date and year first above written. ATTEST: SUCCESSOR AGENCY OF THE FORMER COMMUNITY REDEVELOPMENT AGENCY Maria D. Huizar Paul Walters Clerk of the Council City Manager APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Lisa E. Storck Assistant City Attorney EXHIBIT I BLX Group, LLC A. CRAIG UNDERWOOD President TAX ID: 7 5-9 EXHIBIT A SCOPE OF SERVICES Consultant shall provide financial analyses and calculations relating to the arbitrage rebate requirement on Tax Allocation Refunding Bonds contained in Section 148(f) of the Internal Revenue Code. Consultant shall arrange with Orrick, Herrington & Sutcliffe LLP to provide a legal review and accompanying legal opinion for each analysis prepared by Consultant. Consultant shall provide the required analysis, calculation and opinion at the costs set forth below. The calculations are to be performed with respect to the following, however Consultant is not responsible for performing calculations on each bond series each year: 1. $55,090,000 Community Redevelopment Agency of the City of Santa Ana Tax Allocation Bonds, Series 2003A Tax Allocation Refunding Bonds, Series 2003B Compensation - $2,750.00 2. $66,790,000 Community Redevelopment Agency of the City of Santa Ana Tax Allocation Bonds, 2011 Series A Compensation - $3,250.00 EXHIBIT I 5-10 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy relating to the following: 1. The Successor Agency to the former Community Redevelopment Agency of the City of Santa Ana, 20 Civic Center Plaza, Santa Aria, California 92702, and its officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the Successor Agency to the former Community Redevelopment Agency of the City of Santa Ana, 20 Civic Center Plaza (M-25), Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to _, this endorsement form as a part of Named Insured Countersigned by Authorized Representative EXHIBIT 1 9 5-11 5-12