08-0410_VELOCE PARTNERS_Consultant Services AgreementCONSULTANT SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 10th day
of April, 2008, by and between the San Juan Capistrano Community Redevelopment
Agency (hereinafter referred to as the "Agency") and Veloce Partners (hereinafter referred
to as the "Consultant").
RECITALS:
WHEREAS, Agency desires to retain the services of Consultant regarding the
Agency's proposal for financial advisor services to analyze the potential acquisition of
property at Camino Las Ramblas and Via California for affordable housing; and
WHEREAS, Consultant is qualified by virtue of experience, training, education and
expertise to accomplish such services.
NOW, THEREFORE, Agency and Consultant mutually agree as follows:
Section 1. Scone of Work.
The scope of work to be performed by the City shall consist of those tasks as set
forth in Exhibit' A," attached and incorporated herein by reference. To the extent that there
are any conflicts between the provisions described in Exhibit "A" and those provisions
contained within this Agreement, the provisions in this Agreement shall control.
Section 2. Term.
This Agreement shall commence on the effective date and shall terminate, and all
services required hereunder shall be completed, no later than 30 days from the agreement
execution date.
Section 3. Compensation.
3.1 Amount.
Total compensation for the services hereunder shall not exceed $9,500.00 as
set forth in Exhibit "A," attached and incorporated herein by reference.
3.2 Method of Payment.
Subject to Section 3.1, Consultant shall submit invoice upon completion of
work. The Agency will pay the invoice based on approved invoices in accordance with this
Section.
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3.3 Records of Expenses.
Consultant shall keep complete and accurate records of all costs and
expenses incidental to services covered by this Agreement. These records will be made
available at reasonable times to Agency.
Section 4. Independent Contractor.
It is agreed that Consultant shall act and be an independent contractor and not an
agent or employee of Agency, and shall obtain no rights to any benefits which accrue to
Agency's employees.
Section 5. Limitations Upon Subcontractina and Assianment.
The experience, knowledge, capability and reputation of Consultant, its principals
and employees were a substantial inducement for Agency to enter into this Agreement.
Consultant shall not contract with any other entity to perform the services required without
written approval of the Agency. This Agreement may not be assigned, voluntarily or by
operation of law, without the prior written approval of the Agency. If Consultant is permitted
to subcontract any part of this Agreement by Agency, Consultant shall be responsible to
Agency for the acts and omissions of its subcontractor as it is for persons directly
employed. Nothing contained in this Agreement shall create any contractual relationships
between any subcontractor and Agency. All persons engaged in the work will be
considered employees of Consultant. Agency will deal directly with and will make all
payments to Consultant.
Section 6. Chances to Scope of Work.
For extra work not part of this Agreement, a written authorization from Agency is
required prior to Consultant undertaking any extra work. In the event of a change in the
Scope of Work provided for in the contract documents as requested by the Agency, the
Parties hereto shall execute an addendum to this Agreement setting forth with particularity
all terms of the new agreement, including but not limited to any additional Consultant's fees.
Section 7. Familiarity with Work and/or Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated the
work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of
all conditions there; and (3) it understands the facilities, difficulties and restrictions of the
work to be performed under this Agreement. Should Consultant discover any latent or
unknown conditions materially differing from those inherent in the work or as represented
by Agency, it shall immediately inform the Agency of this and shall not proceed with further
work under this Agreement until written instructions are received from the Agency.
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Section B. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government.
Section 10. Conflicts of Interest.
Consultant covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of the services contemplated by this Agreement. No person having such
interest shall be employed by or associated with Consultant.
Section 11. Copies of Work Product.
At the completion of the work, Consultant shall have delivered to Agency at least one
(1) printed copy and an electronic copy of any final reports and/or notes or drawings
containing Consultant's findings, conclusions, and recommendations with any support
documentation. All reports submitted to the Agency shall be in reproducible format, or in
the format otherwise approved by the Agency in writing.
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Consultant in
connection with the performance of its services pursuant to this Agreement are confidential
to the extent permitted by law, and Consultant agrees that they shall not be made available
to any individual or organization without prior written consent of the Agency. All such
reports, information, data, and exhibits shall be the property of the Agency and shall be
delivered to the Agency upon demand without additional costs or expense to the Agency.
The Agency acknowledges such documents are instruments of Consultant's professional
services.
Section 13. Indemnity.
To the fullest extent permitted by law, Consultant agrees to protect, defend, and hold
harmless the Agency and its elective or appointive boards, officers, agents, and employees
from any and all claims, liabilities, expenses, or damages of any nature, including attorneys'
fees, for injury or death of any person, or damages of any nature, including interference
with use of property, arising out of, or in any way connected with the negligence,
recklessness and/or intentional wrongful conduct of Consultant, Consultant's agents,
officers, employees, subcontractors, or independent contractors hired by Consultant in the
performance of the Agreement. The only exception to Consultant's responsibility to protect,
defend, and hold harmless the Agency, is due to the negligence, recklessness and/or
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wrongful conduct of Agency, or any of its elective or appointive boards, officers, agents, or
employees.
This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Consultant.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, and provide proof thereof that is acceptable to the Agency, the insurance
specified below with insurers and under forms of insurance satisfactory in all respects to the
Agency. Consultant shall not allow any subcontractor to commence work on any
subcontract until all insurance required of the Consultant has also been obtained for the
subcontractor. Insurance required herein shall be provided by Admitted Insurers in good
standing with the State of California and having a minimum Best's Guide Rating of A- Class
VII or better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive General Liability coverage in an amount not less than one
million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks
associated with the work contemplated by this agreement. If a Commercial General
Liability Insurance form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
agreement or the general aggregate limit shall be at least twice the required occurrence
limit.
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive Automobile Liability coverage, including owned, hired and non -
owned vehicles in an amount not less than one million dollars per occurrence
($1,000,000.00).
14.3 Worker's Compensation.
If Consultant intends to employ employees to perform services under this
Agreement, Consultant shall obtain and maintain, during the term of this Agreement,
Worker's Compensation Employer's Liability Insurance in the statutory amount as required
by state law.
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14.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning anywork under this Agreement, Consultant shall submit the
insurance certificates, including the deductible or self -retention amount, and an additional
insured endorsement naming Agency, its officers, employees, agents, and volunteers as
additional insureds as respects each of the following: Liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision of
Consultant; products and completed operations of Consultant; premises owned, occupied
or used by Consultant; or automobiles owned, leased, hired, or borrowed by Consultant.
The coverage shall contain no special limitations on the scope of protection afforded
Agency, its officers, employees, agents, or volunteers.
14.5 Notice of Ca ncellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverages reduced, until after thirty (30) days' written notice is given to Agency, except
that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a
premium.
14.6 Terms of Compensation.
Consultant shall not receive any compensation until all insurance provisions
have been satisfied.
14.7 Notice to Proceed.
Consultant shall not proceed with any work under this Agreement until the
Agency has issued a written "Notice to Proceed" verifying that Consultant has complied
with all insurance requirements of this Agreement.
Section 15. Termination.
Agency shall have the right to terminate this Agreement without cause by giving
thirty (30) days' advance written notice of termination to Consultant.
In addition, this Agreement may be terminated by any party for cause by providing
ten (10) days' notice to the other party of a material breach of contract. If the other party
does not cure the breach of contract, then the agreement may be terminated subsequent to
the ten (10) day cure period.
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Section 16. Notice.
All notices shall be personally delivered or mailed to the below listed addresses, or
to such other addresses as may be designated by written notice. These addresses shall be
used for delivery of service of process:
To Agency: San Juan Capistrano Community Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Douglas D. Dumhart
To Consultant: Veloce Partners
31022 Via Limon
San Juan Capistrano, CA 92675
Attn: David C. Nahas
Section 17. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he may be entitled.
Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
U q f
Margaret R .vMbnahan, /fig)pncy
APPROVED AS TO FORM:
(i
Omar Sandoval, Agency Counsel
SAN JUAN CAPISTRANO
COMMUNITY REDEVEOPMENT AGENCY
By:
/ �w a%
Dave Ada s, Executive DirE for
CONSULTANT
By: �'t k/
David C. Nahas, President
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(Z) VELOCE
PARI NERS
31022 Via Limon
San Juan Capistrano, CA 92675
p 949-510-6552
f 949-388-2158
March 29, 2008
Mr. Douglas Dumhart
San Juan Capistrano
Community Redevelopment Agency ("Agency")
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
RE: Financial Advisor Services
Prospective Site Acquisition:
Camino Las Ramblas and Via California (the "Project")
Dear Douglas:
Pursuant to this Letter of Understanding, Veloce Partners Inc. ("Veloce") will act as the Agency's
financial advisor as further described below. We are prepared to work with you, your staff, your legal
counsel, and such other advisors or consultants as you may choose to employ to perform these activities.
Current Proiect Status
Agency desires to evaluate the feasibility of acquiring the Project site for future development with
affordable rental housing in order to implement its low and moderate income housing program. The site
is presently owned by Sun -Cal Development and is part of a master land use plan and agreement with
the Capistrano Unified School District. The site has been declared surplus for school construction
purposes, and the Agency is considering whether the site can be cost effectively purchased, rezoned,
and developed with housing and a community park instead of its currently designated use as a future
school site.
To assist its evaluation of the Project potential, the Agency desires that Veloce provide an analysis of
feasible development financing options utilizing public funding programs and the low income housing
tax credit program. Specific questions to be addressed include:
1. How many units can reasonably be developed on the site and what income affordability
categories can be served?
2. Will an Agency financial contribution be required in excess of the site purchase cost?
3. How will the site score for the 9% low income housing tax credit program?
4. What additional subsidies would be required if 4% tax credits and tax-exempt bond financing
are used as the friancing plan?
5. Identification of other relevant financial or development factors that should be considered by
the Agency.
EXHIBIT A
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March 29, 2008
Mr. Douglas Dumhart
Page 2
Financial Advisor Relafionshin
As your financial advisor, we are prepared to address the preceding questions through performance of
the following functions. Based on information provided by the Agency regarding feasible
development densities, desired land uses, and available local financial resources, we will perform the
following tasks:
(1) Assist the Agency in selecting alternative feasible development plans including uses, number
of units, target populations, and affordability targets;
(2) Identify other public financing programs (non -Agency funds) that may be available to the
Project and the constraints and application process associated with each of these sources;
(3) Prepare a financing model to evaluate a 9% tax credit / conventional financing option;
(4) Prepare a financing model to evaluate a 4% tax credit / tax-exempt bond structuring option;
(5) Prepare a written recommendation to the Agency regarding the feasibility of the Project and
potential need for Agency support.
Performance Timeline & Compensation
Veloce will complete the report and financing models within 3 weeks of acceptance of this proposal
by the Agency.
Fees: To be paid as follows:
Upon delivery of completed report and models $ 9,500
Disclaimer of Guarantees
Nothing in this contract and nothing in Veloce's statements constitutes any promise or guarantee
about the outcome of the Project. Development projects and financial consulting services are by
nature uncertain in outcome. Comments about the outcome of the representation or Project cost
constitute expressions of opinion only.
Representations and Warranties
Each person signing this agreement represents and warrants that the party has full authority and the
right to enter into this agreement, has read the agreement carefully, and understands the contents and
legal effect of each provision of the agreement.
Arbitration
Any and all disputes arising out of this Agreement, at the request of either party and by notice to the
other party, shall be submitted to binding arbitration. Within fifteen days after the notice of
arbitration, the parties shall meet and confer in good faith to select a mutually acceptable arbitrator. If
the parties cannot agree on the selection of an arbitrator within thirty days after the notice of
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March 29, 2008
Mr. Douglas Dumhart
Page 3
arbitration, either party can proceed to have an arbitrator appointed pursuant to the California Code of
Civil Procedure and the parties shall thereafter comply with all procedures established by the
provisions of applicable California law, except that the specific procedures set forth in this paragraph
shall prevail over any inconsistent procedures. As additional damages, the arbitrator shall have the
discretion to award costs and attorneys fees to a prevailing party. The award of the arbitrator shall be
final and may be submitted to any court having jurisdiction for the purpose of confirmation and
enforcement.
Entire Aereement
This agreement embodies our entire understanding, and there are no other or further agreements, oral
or written, in effect between the parties.
Amendment to Agreement
Any changes to the terms of this Agreement, including changes in the Scope of Services to be
performed by Veloce and any increase or decrease in the amount of compensation which is agreed to
by Veloce and Agency, shall require and shall not be effective without a written amendment properly
executed by both parties.
If the foregoing is acceptable to Agency, please execute this letter where designated below and return
the original to us. We look forward to working with you on your project.
Sincerely,
,!.
David C. Nahas
President
Accepted:
Ey: _
Its:
Date:
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493.1053 FAX
www sanjuancap istrano. org
TRANSMITTAL
David C. Nahas
Veloce Partners
31022 Via Limos
San Juan Capistrano, CA 92675
DATE: April 14, 2008
IAOAAIIIAII
WAIOSAII 1961
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FROM: Maria Morris, Deputy City Clerk (949) 443-6309
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
RE: Consultant Services Agreement — Financial Advisor Services
Thank you for providing documentation confirming compliance with the terms of the agreement
related to insurance.
Please keep in mind this documentation must remain current with our office during the term of
this agreement. If you have questions related to insurance requirements, please contact
Maria Morris, Deputy City Clerk at (949) 443-6309.
If you have questions concerning the agreement, please contact Douglas D. Dumhart,
Economic Development Manager at (949) 443-6316.
An original agreement is enclosed for your records.
Cc: Douglas D. Dumhart, Economic Development Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
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