HomeMy WebLinkAboutAGMT - Fieldman, Rolapp & Associates (Financial Advisor Services) FINANCIAL. ADVISOR SERVICES AGREEMENT
between
O� SEAL 8
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'&STY Ca
City of Seal Beach
211 8th Street
Seal Beach, CA 99749
Fieldman, Ralapp & Associates, Inc.
19999 MacArthur Boulevard, Suite 1199
Irvine, CA 92612
(949) 669-7399
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This Financial Advisor Services Agreement ("the Agreement") is made as of the
26th day of May, 2015 (the "Effective Date"), by and between Fieldman, Rolapp &
Associates, Inc. ("Consultant"), a corporation duly organized and validly existing under
the laws of the State of California and City of Seal Beach ("City"), a California charter
city, (collectively, "the Parties").
RECITALS
A. City has formed the City of Seal Beach Community Facilities District No.
2002-01 (Heron Pointe) (the "CFD") under the Mello-Roos Community Facilities Act of
1982, as amended (the "Act") .
B. City is considering the issuance of bonds for the -District (the "Bonds") for
the purpose of refunding and defeasing the outstanding City of Seal Beach Community
Facilities District No. 2002-01 (Heron Pointe) Special Tax Bonds, Series 2005 (the
"Prior Bonds").
C. City desires to retain independent financial advisory services in connection
with the issuance of the Bonds.
B. Consultant represented that it is qualified and able to provide City with
such services.
NOW THEREFORE, in consideration of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as follows:
AGREEMENT
1.0 Legal Qualifications; Scope of Services
1.1. Consultant represents and warrants that Consultant is a registered
municipal advisor with the United States Securities and Exchange Commission and the
Municipal Securities Rulemaking Board (the WSRB"). Throughout the term of this
Agreement, Consultant shall maintain all licenses, permits, certificates and other legal
qualifications (if any) necessary for the provision of services under this Agreement.
1.2. Consultant shall provide those services ("Services") set forth in the
attached Exhibit A, which is hereby incorporated by this reference. To the extent that
there is any conflict between Exhibit A and this Agreement, this Agreement shall control.
1.3. Consultant shall perform all Services under this Agreement in accordance
with the standard of care applicable to municipal advisors and in a manner reasonably
satisfactory to City.
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1.4. In performing Services under this Agreement, Consultant shall comply
with all applicable provisions-of federal, state, and local law.
1.5. Consultant will not be compensated for any work. performed not specified
in the Scope of Services unless City authorizes such work in advance and in writing.
City Manager may authorize payment for such work up to a cumulative maximum of
$10,000. Payment for additional work in excess of $10,000 requires prior City Council
authorization.
2.0 Term
This term of this Agreement shall commence as of the Effective Date and shall
continue for a term of one year unless previously terminated as provided by this
Agreement.
3.0 Consultant's Compensation
City will pay Consultant in accordance with the provisions set forth in Exhibit B for
Services but in no event will City pay more than [$50,000] (inclusive of reimbursement
of expenses in accordance with Exhibit B), unless prior authorization has been obtained
pursuant to Section 1.5. Any additional work authorized by City pursuant to Section 1.5
will be compensated in accordance with the provisions set forth in Exhibit B.
4.0 Method of Payment
4.1. City shall pay Consultant based on invoices submitted in the manner
described in Exhibit B.
4.2. It is acknowledged that City will not withhold any applicable federal or
state payroll and other required taxes, or other authorized deductions from payments
made to Consultant.
4.3. In connection with any ho'urly compensation and expense reimbursement
to Consultant, Consultant shall allow City or City's agents or representatives, upon 24-
hour notice, to inspect at Consultant's offices during reasonable business hours all
records, invoices, time cards, cost control sheets and other records maintained by
Consultant in connection with this Agreement. City's rights under this Section 4.3 shall
survive for two years following the termination of this Agreement.
5.0 Termination
5.1., This Agreement may be terminated by City, with or without cause upon
giving written notice to Consultant not less than 10 days prior to the date of termination.
5.2. This Agreement may be terminated by Consultant based on reasonable
cause, upon giving City written notice thereof not less than 30 days prior to the date of
termination.
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5.3. Without limiting the foregoing, this Agreement may be terminated by City
upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of
renewal or replacement of comprehensive general liability insurance as required by this
Agreement at least 20 days before the expiration date of the previous policy.
6.0 Party Representatives; Consultant Staffing
6.1. City Manager is City's representative for purposes of this Agreement.
6.2. Anna Sarabian is Consultant's primary representative for purposes of this
Agreement.
6.3. Consultant has, or will secure, all personnel required to perform the
services under this Agreement. Consultant shall make available other qualified
personnel of the firm as may be required to complete Consultant's services. City has
the right to approve or disapprove any proposed changes in Consultant's staff providing
service to City. City and Consultant agree that such personnel are employees only of
Consultant and shall not be considered to be employees of City in any way whatsoever.
7.0 Notices
7.1. All notices permitted or required under this Agreement shall be deemed
made when personally delivered or when mailed 48 hours after deposit in the United
States Mail, first class postage prepaid and addressed to the party at the following
addresses:
To City: City of Seal Beach
211-8th Street
Seal Beach, California 90740
Attn: City Manager
To Consultant: Fieldman, Rolapp & Associates, Inc.
19900 MacArthur Boulevard, Suite 1100
Irvine, CA 92612
Attn: Anna Sarabian
7.2. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
8.0 Independent Contractor
8.1. Consultant is an independent contractor and not an employee of City. All
services provided pursuant to this Agreement shall be performed by Consultant or
under its supervision. Consultant will determine the means, methods, and details of
performing the services. Any additional personnel performing services under this
Agreement on behalf of Consultant shall also not be employees of City and shall at all
times be under Consultant's exclusive direction and control. Consultant shall pay all
wages, salaries, and other amounts due such personnel in connection with their
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performance of services under this Agreement and as required by law. Consultant shall
be responsible for all reports and obligations respecting such additional, personnel,
including, but not limited to: social security taxes, income tax withholding,
unemployment insurance, disability insurance, and workers' compensation insurance.
8.2. Consultant shall indemnify and hold harmless City and its elected officials,
officers, employees, servants and agents serving as independent contractors in the role
of City officials, from any and all liability, damages, claims, costs and expenses of.any
nature to the extent arising from Consultant's personnel practices. City shall have the
right to offset against the amount of any fees due to Consultant under this Agreement
any amount due to City from Consultant as a result of Consultant's failure to promptly
pay to City any reimbursement or indemnification arising under this Section.
9.0 Subcontractors
No portion of this Agreement shall be subcontracted without the prior written
approval of City. Consultant is fully responsible to City for the performance of any and
all subcontractors.
10.0 Assignment
'Consultant shall not assign or transfer any interest in this Agreement!whether by
assignment or novation, without the prior written consent of City. Any purported
assignment without such consent shall be void and without effect.
. I
11.0 Insurance
11.1. Consultant shall not commence work under this Agreement until
Consultant has secured all insurance required under this Section. Consultant shall
furnish City with original certificates of insurance and endorsements effecting coverage
required by this Agreement on forms satisfactory to City. The certificates and
endorsements for each insurance policy shall be signed by a person authorized by that
insurer to bind coverage on its behalf, and shall be on forms provided, by City if
requested. All certificates and endorsements shall be received and approved by City no
later than the Effective Date. City reserves the right to require complete, certified copies
of all required insurance policies, at any time.
11.2. Consultant shall, at its expense, procure and maintain for the duration of
the Agreement, insurance against claims for injuries to persons or damages to property
that may arise from or in connection with the performance of this Agreement. Insurance
is to be placed with insurers with a current A.M. Best's rating no less than A:VIII,
licensed to do business in California, and satisfactory to City. Coverage ,shall be at
least as broad as the latest version of the following: (1) General Liability: ' Insurance_
Services Office Commercial General Liability coverage (occurrence form CG 0001);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage form
number CA 0001, code 1 (any auto); and, if required by City, (3) Professional Liability.
Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per
occurrence'for bodily injury, personal injury and property damage and if Commercial
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General Liability Insurance or other form with a general aggregate limit is used, either
the general aggregate limit shall apply separately to this Agreement/location or the
general aggregate limit shall be twice the required occurrence limit; (2) Automobile
Liability: $1,000,000 per accident for bodily injury and property damage; and
(3) Professional Liability: $1,000,000 per claim/aggregate.
11.3. The insurance policies shall contain the following provisions', or Consultant
shall provide endorsements on forms supplied or approved by City to state:
(1) coverage shall not be suspended, voided, reduced or canceled except after 30 days
prior written notice by certified mail, return receipt requested, has been given to City;
(2) any failure to comply with reporting or other provisions of the policies, including
breaches of warranties, shall not affect coverage provided to City, its directors, officials,
officers, (3) coverage shall be primary insurance as respects City, its directors, officials,
officers, employees and agents, or if excess, shall stand in -an unbroken chain of-
coverage excess of Consultant's scheduled underlying coverage and that any insurance
or self-insurance maintained by City, its directors, officials, officers, employees and
agents shall be excess of Consultant's insurance and shall not be called upon to
contribute with it; (4) for general liability insurance, that City, its directors, officials,
officers, employees and agents shall be covered as additional insureds with respect to
the services or operations performed by or on behalf of Consultant, including materials,
parts or equipment furnished in connection with such work; and (5) for automobile
liability, that City, its directors, officials, officers, employees and agents shall be covered
as additional insureds with respect to the ownership, operation, maintenance, use,
loading or unloading of any auto owned, leased, hired or borrowed by Consultant or for
which Consultant is responsible.
11.4. All insurance required by this Section shall contain standard separation of
insureds provisions and shall not contain any special limitations on the scope of
protection afforded to City, its directors, officials, officers, employees and agents.
11.5. -Consultant represents to City that, as of the Effective Date, the retention
amount with respect to the Consultant's excess liability policy is $0.00 and the retention
amount with respect to its professional liability policy is $250,000. Consultant shall
provide prior written notice to City in the event of any change to such amounts.
12.0 Indemnification, Hold Harmless, and Duty to Defend
Consultant shall defend, indemnify, and hold City, its officials, officers,
employees and agents serving as independent contractors in the role of city officials
(collectively "Indemnities") free and harmless from any and all claims, demands, causes
of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property
or persons, including wrongful death, in any manner arising out of or incident to any acts
or omissions of Consultant, its employees, or its agents in connection with the
performance of this Agreement, including without limitation the payment of all
consequential damages and attorneys' fees and other related costs and expenses,
except for such loss or damage arising from the sole negligence or willful misconduct of
City. With respect to any and all such aforesaid suits, actions, or other legal
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proceedings of every kind that may be brought or instituted against Indemnitees,
Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and
shall pay and satisfy any judgment, award, or decree that may be rendered against
Indemnitees. Consultant shall reimburse City and its directors, officials, officers,
employees and/or agents, for any and all legal expenses and costs incurred by each of
them in connection therewith or in enforcing the indemnity herein provided.
Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by Consultant, City, its directors, officials, officers, employees or agents. All
duties of Consultant under this Section shall survive termination of this Agreement.
13.0 Equal Opportunity
Consultant affirmatively represents that it is an equal opportunity employer.
Consultant shall not discriminate against any subcontractor, employee, or applicant for
employment because of race, religion, color, national origin, handicap, ancestry, sex,
sexual orientation, or age. Such non-discrimination includes, but is not limited to, all
activities related to initial employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, or termination.
14.0 Labor Certification
By its signature hereunder, Consultant certifies that it is aware of the provisions
of Section 3700 of the California Labor Code that require every employer to, be insured
against liability for Workers' Compensation or to undertake self-insurance in accordance
with the provisions of that Code, and agrees to comply with such provisions before
commencing the performance of the Services.
15.0 Confidentiality
Consultant may receive confidential information of City during the of
Consultant's performance under this Agreement. To the extent that City provides
Consultant any financial, statistical, personal, technical and other data and information
designated by City as confidential, Consultant shall maintain such confidentiality, shall
not disclose or make available the information to third parties except under the following
circumstances: (i) Consultant has obtained City's prior written approval for the
disclosure, or (ii) Consultant is required by law to make the disclosure (in which case,
such disclosure shall be limited to the extent required by law and Consultant shall notify
City as soon as possible upon learning its obligation to disclose).
16.0 Work Products
All work products or any form of property developed by Consultant in providing
services under this Agreement shall be provided to City on request. Work products
developed by Consultant shall be the property of City, provided that Consultant may use
such work products developed for City and may employ those work products to develop
refinements or additional work products in -the course of its business, so long as
employment does not cause otherwise cause a violation under Section 15.0 (pertaining
to confidentiality) and Section conflict of interest provisions of this Agreement. City may.
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use all or any portion of work submitted by the Financial Advisor as City deems
appropriate.
17.0 Bond Disclosure Documents
17.1. Consultant shall review official statement(s) and other financing
documents as described in the Scope of Services set forth in Exhibit A; however, in
doing so, it is acknowledged that Consultant's shall not assume 'the responsibilities of
City, nor the responsibilities of the other professionals and vendors representing.City in
the provision of services and the preparation of the financing documents, or the initial
and secondary market disclosure, for financings undertaken by City.
17.2. To the extent information or data obtained or prepared by Consultant is
included in any bond disclosure documents, Consultant shall review such bond
disclosure documents insofar as to ensure that such information or data, as known to
Consultant, is accurately and fairly presented. Such information obtained by Consultant
shall be from sources that Consultant believes are reliable based on its -experience and
expertise, with the acknowledgment that Consultant does not guarantee the accuracy or
completeness of the information from such sources.
18.0 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the
subject matter hereof, .and Supersedes all prior negotiations, understandings, or
agreements. This Agreement may only be modified by a writing signed by both parties.
19.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not
void or affect the validity of the other provisio I ns of this Agreement.
20.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
21.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either party
as a result of this Agreement.
22.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach,
whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a party shall give the other party any
contractual rights by custom, estoppel, or otherwise.
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23.0 Prohibited Interests; Conflict of Interest
20.1. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the Services, or which
would conflict in any manner with the performance of the Services or fulfillment of its
Fiduciary duty to City as a financial advisor. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest, which
would conflict in any manner with the performance of the Services. Consultant shall not
accept any employment or representation during the term of this Agreement,which is or
may likely make Consultant "financially interested" (as provided in California
Government Code §§1090 and 87100) in any decision made by City,on any matter in
connection with which Consultant has been retained.
20.2. Consultant further warrants and maintains that it has not employed or
retained any person or entity, other than a bona fide employee working exclusively for
Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to
pay any person or entity, other than a bona fide employee working exclusively for
Consultant, any fee, commission, gift, percentage, or any other consideration contingent
upon the execution of this Agreement. Upon any breach or violation of this warranty,
City shall have the right, at its sole and absolute discretion, to terminate this'Agreement
without further liability, or to deduct from any sums payable to Consultant hereunder the
full amount or value of any such fee, commission, percentage or gift.
20.3. Consultant warrants and maintains that it has no knowledge that any
officer or employee of City has any interest, whether contractual, noncontractual,
financial, proprietary, or otherwise, in this transaction or in the business of Consultant,
and that if any such interest comes to the knowledge of Consultanf at any time during
-the term of this Agreement, Consultant shall immediately make a complete, written
disclosure of such interest to City, even if such interest would not be deemed a
prohibited "conflict of interest" under applicable laws as described in this subsection.
20.4 Consultant represents that it has not made any payments either directly or
indirectly to obtain or retain business with City.
20.5. There is no additional compensation Consultant will receive in ,connection
with this Agreement other than what is stipulated within this Agreement. Consultant has
not and will not receive any payments From third parties in connection with this
engagement.
20.6 Consultant has not and will not enter into any fee-splitting arrangements
with any provider of investments or services to City.
20.7 Consultant is not aware of any pending or threatened legal or disciplinary
event that is material to City's evaluation of Consultant or the integrity of its
management or advisory personnel in connection with City's engagement of Consultant
to serve as a financial advisor to City.
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24.0 Attorneys' Fees
If either party commences any legal, administrative, or other action against the
other party arising out of or in connection with this Agreement, the prevailing party in
such action shall be entitled to have and recover from the losing party all of its
attorneys' fees and other costs incurred in connection therewith.
25.0 Exhibits
All exhibits referenced in this Agreement are hereby incorporated into the
Agreement as if set forth in full herein. In the event of any material discrepancy
between the terms of any exhibit so incorporated and the terms of this Agreement, the
terms of this Agreement shall control.
26.0 Corporate Authority
The person executing this Agreement on behalf of Consultant warrants that he or
she is duly authorized to execute this Agreement on behalf of said Party and that by his
or her execution, Consultant is formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above
written.
CITY OF SEAL BEACH CONSULTANT
By: By:
Eller/A. Deaton, Mayor Name: WIVIV/9
Attest:
Its: '_gwlot /X0a736V;
Tina Knapp, Acting City dle'rk By:
Approved to F Name: AL &Yey
By: Its:
Vrig A. Steele, Interim City
Attorney
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EXHIBIT A
SCOPE OF SERVICES
A. Services for Bond Refunding.
Consultant shall provide financial advisory services to City to accomplish the
successful refunding of the Prior Bonds and the issuance of the Bonds (as such terms
are defined in the Recitals of this Agreement), and shall be compensated for such
services as provided in Section A of Exhibit B.
Consultant shall assume primary responsibility for assisting City in coordinating
the planning and execution of the successful refunding of the Prior Bonds and the
issuance of the Bonds. Insofar as Consultant is providing such services which are
rendered only to City (and not to any other party, including but not limited to registered
owners or beneficial owners of bonds), the overall coordination of the financing shall be
such as to minimize the costs of the transaction coincident with maximizing City's
financing flexibility and capital market access. Consultant's financial advisory services
for the debt financing may include, but shall not be limited to, the following:
• Establish the financing objectives
• Develop the financing schedule
• Monitor the transaction process
• Review the official statement, both preliminary and final
• Procure and coordinate additional service providers
• Provide financial advice to City related to financing documents
• Compute sizing and design structure of the debt issue
• Plan and schedule rating agency presentation and investor
briefings I
• Conduct credit enhancement procurement and evaluation
• Conduct market analysis and evaluate timing of market entry
• Recommend award of debt issuance
• Provide pre-closing and closing assistance
Specifically, Consultant will:
1. Establish the Financing Objectives.
At the onset of the financing transaction process, Consultant shall review
City's financing needs and in conjunction with City's management, outline
the objectives of the financing transaction to be undertaken and its
proposed form.
Unless previously determined, Consultant shall recommend the method of
sale of debt and outline the steps required to achieve efficient market
access.
Exhibit A-1
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2. Develop the Financing Timetable.
Consultant shall take the lead role in preparing a schedule and detailed
description of the interconnected responsibilities of each team member
and update this schedule, with refinements, as necessary, as the work
progresses.
3. Monitor the Transaction Process.
Consultant shall have primary responsibility for the successful
implementation of the financing strategy and timetable that is adopted for
the refunding and the issuance of the Bonds. Consultant shall coordinate
(and assist, where appropriate) in the preparation of the legal and
disclosure documents and shall monitor the progress of all activities
leading to the sale of debt. Consultant shall prepare the timetables and
work schedules necessary to achieve this end in a timely, efficient and
cost-effective manner and will coordinate and monitor the activities of all
parties engaged in the financing transaction.
4. Review the Official Statement.
Upon direction of City, Consultant shall review the official statement for the
Bonds to insure that City's official statement is compiled in a manner
consistent with industry standards.
5. Procure and Coordinate Additional Service Providers.
Should City desire, Consultant may act as City's representative in
procuring the services of financial printers for the official statement and
related documents, and for the printing of any securities. In addition,
Consultant may act as City's representative in procuring the services of
trustees, paying agents, fiscal agents, feasibility consultants,
redevelopment consultants, or escrow verification agents or other
professionals, if City directs; provided, that Consultant shall not have the
authority to execute any contract on behalf of the City with any such
parties.
6. Provide Financial Advice to City Relating to Financing Documents.
Simultaneous with the review of official statement(s) for the Bonds,
Consultant shall assist the managing underwriters, bond counsel and/or
other legal advisors in the drafting of the respective financing resolutions,
notices and other legal documents. In this regard, Consultant shall
monitor document preparation for a consistent and accurate presentation
of the recommended business terms and financing structure of the Bonds,
Exhibit A-2
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b r r
it being specifically understood however that Consultant's services shall in
no manner be construed as Consultant engaging in the practice of law.
7. Compute Sizing and Design Structure of Debt Issue.
Consultant shall work with City's staff to design a financing structure for
the Bonds that is consistent with City's objectives, that coordinates with
outstanding issues and that reflects current conditions in ,the capital
markets. -
8. Plan and Schedule Rating Agency Presentation and Investor Briefings.
If applicable, Consultant shall develop a plan for presenting the financing
program to the rating agencies and the investor community. Consultant
shall schedule rating agency visits, if appropriate, to assure the .
appropriate and most knowledgeable rating agency personnel are
available for the presentation and will develop presentation materials and
assist City officials in preparing for the presentations.
9. Conduct Credit Enhancement Evaluation and Procurement.
Upon City's direction, Consultant will initiate discussions with bond
insurers, letter of credit providers and vendors of other forms of credit
enhancements to determine the availability of and cost benefit Hof securing
financing credit support.
i
10. Conduct Market Analysis and Evaluate Timing of Market,Entry.,
Consultant shall provide regular summaries of current municipal market
conditions, trends in the market and how these may favorably or
unfavorably affect City's proposed financing.
a. Competitive Sales.
For all types of competitive sale of debt, Consultant shall undertake
such activities as are generally required for sale of securities by
competitive bid including, but not limited to the following:,
• Review and comment on terms of Notice of Sale Inviting
Bids
• Provide advice on debt sale scheduling
• Provide advice on the use of electronic bidding systems
• Coordinate bid opening with City officials
• Verify bids received and make recommendations for
acceptance
• Provide confirmation of issue sizing, based upon'actual bids
received, where appropriate
Exhibit A-3
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• Coordinate closing arrangements with the successful
bidder(s)
b. Negotiated Sales.
In the case of a negotiated sale of debt, Consultant shall perform a
thorough evaluation of market conditions preceding the negotiation
of the terms of. the sale of debt and will assist City with the
negotiation of final issue structure, interest rates, interest cost,
reoffering terms and gross underwriting spread and provide a
recommendation on acceptance or rejection of the offer to
purchase the debt. This assistance and evaluation will focus on the
following areas as determinants of interest cost:
• Size of financing
• Sources and uses of funds
• Terms and maturities of the debt issue
• Review of the rating in pricing of the debt issue
• Investment of debt issue proceeds
• Distribution mix among institutional and retail purchasers
• Interest rate, reoffering terms and underwriting discount with
comparable issues
• Redemption provisions
11. Recommend Award of Debt Issuance.
Based upon activities outlined in Task 10(a) and 10(b) above, Consultant
will recommend accepting or rejecting offers to purchase the debt issue. If
City elects to award the debt issue, Consultant will instruct all parties and
help facilitate the actions required to formally consummate the award.
12. Provide Pre-Closing and Closing,Activities.
Consultant shall assist in arranging for the closing of each financing.
Consultant shall assist counsel in assuming responsibility for such
arrangements as they are required, including arranging for or monitoring
the progress of bond printing, qualification of issues for book-entry status,
signing and final delivery of the securities and settlement of the costs of
issuance
B. Additional Services Upon City's Request.
At the City's discretion, the City may request that Consultant provide services in
connection with the refunding of the Prior Bonds and the issuance of Refunding Bonds
that are not ordinarily within the scope of the financial advisory services for a bond
transaction of similar nature in the State of California (the "Additional Services").
Consultant shall be compensated for the performance of Additional Services in
accordance with the provisions of Section B of Exhibit B, so long as Consultant
Exhibit A-4
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specifies to the City in writing that such services are considered Additional Services
under this Agreement before the commencement of the work for the related Additional
Services. The Additional Services may include, but are not limited to, the following:
0 Assisting the City in obtaining enabling legislation or conducting
referendum elections.
0 Extraordinary services and extensive computer analysis in the structuring
or planning of any debt issue or financing program.
0 Financial management services, including development of finah cial
policies, capital improvement plans, economic development planning,
credit analysis or review and such other services that are not ordinarily
considered within the scope of services described in Exhibit A to this
Agreement
0 Services rendered in connection with any undertaking of the City relating
to a continuing disclosure agreement entered into in order to comply with
Securities and Exchange Commission Rule 15c2-12 or other similar rules.
0 Services rendered to the City in connection with calculations or
determination of any arbitrage rebate liability to the United State:s of
America arising from investment activities associated with debt issued to
fund the Project
Exhibit A-5
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EXHIBIT B
COMPENSATION AND EXPENSES
A. Compensation for Financial Advisory Services.
For financial advisory services within the scope described in Section A of
Exhibit A, Consultant's compensation shall be in accordance with the following
schedule:
Transaction Size Fees
$1 to $2,999,999 $20,500
$3,000,000 to $11,999,999 $31,500
$12,000,000 to $19,999,999 $35,000
$20,000,000 to $29,999,999 $40,000.
$30,000,000 to $39,999,999 $43,000
$40,000,000 to $49,999,999 $45,000
$50,000,000 to $59,999,999 $48,000
$60,000,00 and above to be negotiated
Consultant's fee shall be contingent upon the successful issuance of the Bonds,
and shall be payable from the proceeds of the Bonds.
B. Compensation for Additional Services.
Subject to the provisions of Section 2 of Exhibit A, Consultant shall be
compensated for Additional Services, based on the following hourly rates:
Personnel Hourly Rate
Executive Officers...........................................$300.00
Principals ........................................................$290.00
Senior Vice President........................-............$275.00
Vice Presidents...............................................$225.00
Assistant Vice President .................................$195.00
Senior Associate.............................................$150.00
Associate ........................................................$125.00
Analyst....................... ................. ....................$85.00
Administrative Assistants ..................................$65.00
Clerical....................... .......... ...........................$35.00
If authorized by the City Manager and Bond Counsel in advance, the
compensation may be paid from proceeds of the Bonds upon closing of the refunding
transaction. Otherwise, Consultant shall submit to City monthly invoices for Additional
Services within 15 days of the end of the month during which such Additional Services
were'performed. Each invoice shall describe in detail the services rendered during the
period, the days worked, number of hours worked, the hourly rates charged, the
Exhibit B -1
57296-000111818926v3.doc
services performed and the person who performed such services for each day within
the period covered by the invoice. To the extent that the charges listed in'the invoice
are consistent with this Agreement, City shall pay Consultant within 30 days of receiving
such invoice.
C. Expenses.
In addition to the compensation described in Section A and Section B above,
City will reimburse Consultant for actual expenses incurred in connection with
Consultant's performance of services under this Agreement (including expenses for
travel, lodging, subsistence, overnight courier, long distance calls, charges for fax
transmission, telephone, postage, document reproduction), provided that such
expenses to be reimbursed, in the aggregate, shall not exceed $2,500.
All expenses incurred in connection with provision of services under Section A
of Exhibit A (together with the fee for such services) shall be included, with reasonably
clear description thereof, in the invoice to be submitted at the closing of the Bond
transaction; provided, that if the Bonds are not successfully issued within the term of
this Agreement, Consultant shall submit an invoice to City listing such expenses prior to
the termination of this Agreement. To the extent that the expenses listed in such
invoice are consistent with this Agreement, City shall reimburse Consultant for the
expenses within 30 days of receiving such invoice.
Expenses incurred in connection with provision of Additional Services under
i
Section B of Exhibit A shall be listed on the invoice(s) to be submitted in accordance
with Section B above.
In addition, with the City's prior written authorization, Consultant _may make
advances on behalf of the City for costs of preparing, printing or distributing disclosure
materials or related matter whether by postal services or electronic means. In such
event, Consultant shall keep accurate records of all such advances (including all related
invoices). The City shall reimburse Consultant for each such advance upon: (i) the
successful issuance and delivery of the Bonds from proceeds of the Bonds, or (ii) such
other time as agreed by the City and Consultant at the time of authorization of such
advance.
Exhibit B -2
57296-0001\1 818926v3.doc