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01-0210_FIELDMAN, ROLAPP & ASSOCIATES_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 2nd day of October, 2001, by and between the Capistrano Valley Water District (hereinafter referred to as the "District") and Fieldman, Rolapp & Associates (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, District desires to retain the services of Consultant regarding the District's proposal to provide bond counsel services and disclosure counsel services in connection with the issuance of new debt obligations for certain water projects; and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, District and Consultant mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Consultant shall consist of those tasks as set forth in Exhibit 'A" attached and incorporated herein by reference. Consultant warrants that all of its services shall be performed in a competent, professional and satisfactory manner and in accordance with the prevalent standards of its profession. Section 2. Term. This Agreement shall commence on the effective date of this Agreement and services required hereunder shall be completed by no later than March 31, 2002. Section 3. Compensation. 3.1 Amount. Total compensation for the scope of services for this Project shall not exceed fees as set forth in Exhibit "B," attached and incorporated herein by reference. -1- CAMyFilesTINANCEWater Revenue BondsOWMP Bonds, Series 2002\ContractsXFR Contract.wpd 828101 3.2 Rate Schedule. The services shall be billed to the District at the hourly rate set forth in Exhibit "B," attached and incorporated herein by reference. Included within the compensation are all the Consultant's ordinary office and overhead expenses incurred by it, its agents and employees, including meetings with the District representatives and incidental costs to perform the stipulated services. Submittals shall be in accordance with Consultant's proposal. 3.3 Method of Payment. Payment of fees earned by shall be paid in accordance with Exhibit "B". For extra work not partof this Agreement, a written authorization from District is required prior to Consultant undertaking any extra work. 3.4 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 District. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of District, and shall obtain no rights to any benefits which accrue to District's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for District to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the District. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the District. If Consultant is permitted to subcontract any part of this Agreement by District, Consultant shall be responsible to District 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 District. All persons engaged in the work will be considered employees of Consultant. District will deal directly with and will make all payments to Consultant. -2- C:WIyFiles\PINANCE\Water Revenue Bonds\DWMP Bonds, Series 2002\Contracts\FR Contract.wpd 8/28/01 Section 6. Changes to Scope of Work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the District, 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 By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; and (2) it understands the difficulties and restrictions of the work under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by District, it shall immediately inform District of this and shall not proceed with further work under this Agreement until written instructions are received from the District. Section 8. 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. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuantto 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 District. All such reports, information, data, and exhibits shall be the property of the District and shall be delivered to the District upon demand without additional costs or expense to the District. The District acknowledges such documents are instruments of Consultant's professional services. -3- C:VAyFiles\FINANCE\Water Revenue BondsOWMP Bonds, Series 2002\Contracts\FR Contract.wpd &28/01 Section 12. Indemnity. Consultant agrees to protect, defend and hold harmless District, its elected and appointed officials 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 damage to property or interference with use of property and for errors and omissions committed by Consultant arising out of or in connection with the work, operation or activities of Consultant, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Section 13. Insurance. 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. 13.1 Comprehensive General Liability. Throughout the term of this Agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period. 13.2 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 the following minimum amounts: $500,000 property damage; $500,000 injury to one person/any one occurrence/not limited to contractual period; $1,000,000 injury to more than one person/any one occurrence/not limited to contractual period -4- CAMyFiles\FINANCE\Water Revenue Bonds\DWMP Bonds, Series 2002\Contracts\FR Contract.wpd 8128101 13.3 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. 13.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Consultant shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement to the Consultant's general liability and umbrella liability policies to the District's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 13.5 Errors and Omissions Coverage Throughout the term of this Agreement, Consultant shall maintain Errors and Omissions Coverage (professional liability coverage) in an amount of not less than One Million Dollars ($1,000,000). Prior to beginning any work under this Agreement, Consultant shall submit an insurance certificate to the District's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 13.6 Notice of Cancellation/TermMation 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 District, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 13.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 13.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the District has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. -5- C:W1yFiles\FINANCE\Water Revenue Bonds\DWMP Bonds, Series 2002\Contracts\FR Contract.wpd 8/28101 Section 14. Termination. District and Consultant shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to the other party In addition, this Agreement may be terminated 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. Section 15. 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 District: Capistrano Valley Water District c/o City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Cindy Russell, Director of Administrative Services To Consultant: Fieldman, Rolapp & Associates 2100 Main Street, Suite #210 Irvine, California 92614-6238 Attn: Tom Johnsen Section 16. 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 17. 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"). -6- CAMyFiles\FINANCE\Water Revenue Bonds\DWMP Bonds, Series 2002\Contracts\FR Contractmpd 8/28101 Section 18. 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: ar aret R. Monahan, clerk of the APPROVED AS TO FORM: S9 - John R. haw, City Attorney Board -7- C1MyFiles\FINANCE\Water Revenue Bonds\DWMP Bonds, Series 2002\Contracts\FR Contract.wpd 8/28/01 EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND FIELDMAN, ROLAPP & ASSOCIATES Scope of Services A. General Services. The Consultant shall perform all the duties and services specifically set forth herein and shall provide such other services as it deems necessary or advisable, or are reasonable and necessary to accomplish the intent of this Agreement in a manner consistent with the standards and practice of professional financial advisors prevailing at the time such services are rendered to the City. The City may, with the concurrence of Consultant, expand this Agreement to include any additional services not specifically identified within the terms of this Agreement. Any additional services may be described in an addendum to this Exhibit A and are subject to fees described in Exhibit B to this Agreement. B. Debt Issuance Services. The Consultant shall assume primary responsibility for assisting the City in coordinating the planning and execution of each debt issue relating to the Project. Insofar as the Consultant is providing Services which are rendered only to the City, the overall coordination of the financing shall be such as to minimize the costs of the transaction coincident with maximizing the City's financing flexibility and capital market access. The Consultant's proposed debt issuance Services 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 the City Relating to Financing Documents • Compute Sizing and Design Structure of the Debt Issue • Plan and Schedule Rating Agency Presentation and Investor Briefings • 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 CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page I Specifically, Consultant will: 1. Establish the Financing Obiectives At the onset of the financing transaction process for the Project, the Consultant shall review the City's financing needs and in conjunction with the 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. 2. Develop the Financing Timetable. The 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. The Consultant shall have primary responsibility for the successful implementation of the financing strategy and timetable that is adopted for each debt issue relating to the Project. The 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. The 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 a. Generally, SEC, MSRB, and GFOA guidelines encourage full disclosure so that potential investors have sufficient data to analyze each proposed financing. Upon direction of the City, the Consultant shall take the lead in the review of the official statement for each debt issue relating to the Project to insure that the City's official statement is compiled in a manner consistent with industry standards, typically including the following matters: • Legal Authority for the Financing • Security for the Financing • Restrictions on Additional Financings • Purpose and Funds for which the Financing is Being Issued • Governmental System • Financial Management System • Revenue Sources: Historic, Current and Projected • Outstanding Financings • Planned Future Financings • Labor Relations and Retirement Systems • Economic Base • Annual Financial Statements • Legal Opinions Regarding Tax Exemption • Such Other Matters as the Context May Require. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 2 5. Procure and Coordinate Additional Service Providers Should the City desire, the 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, the Consultant may act as the 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 the City directs. 6. Provide Financial Advice to the City Relating to Financing Documents. Simultaneous with assisting in the preparation of official statements for each debt issue relating to the Project, the 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, the Consultant shall monitor document preparation for a consistent and accurate presentation of the recommended business terms and financing structure of each debt issue relating to the Project, it being specifically understood however that the Consultant's services shall in no manner be construed as the Consultant engaging in the practice of law. 7. Compute Sizing and Design Structure of Debt Issue. The Consultant shall work with the City's staff to design a financing structure for each debt issue relating to the Project that is consistent with the City's objectives, that coordinates each transaction with outstanding issues and that reflects current conditions in the capital markets. 8. Plan and Schedule Rating Agency Presentation and Investor Briefings. The Consultant shall develop a plan for presenting the financing program to the rating agencies and the investor community. The 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 the City officials in preparing for the presentations. 9. Conduct Credit Enhancement Evaluation and Procurement. Upon the City's direction, the 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 of securing financing credit support. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 3 10. Conduct Market Analysis and Evaluate Timing of Market Entry. The Consultant shall provide regular summaries of current municipal market conditions, trends in the market and how these may favorably or unfavorably affect the City's proposed financing. a. Competitive Sales. For all types of competitive sale of debt, the 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 the City officials • Verify bids received and make recommendations for acceptance • Provide confirmation of issue sizing, based upon actual bids received, where appropriate • Coordinate closing arrangements with the successful bidder(s) b. Negotiated Sales. In the case of a negotiated sale of debt, the Consultant shall perform a thorough evaluation of market conditions preceding the negotiation of the terms of the sale of debt and will assist the 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, the Consultant will recommend to accept or reject offers to purchase the debt issue. If the City elects to award the debt issue, the Consultant will instruct all parties and help facilitate the actions required to formally consummate the award. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 4 12. Provide Pre -Closing and Closing Activities. The Consultant shall assist in arranging for the closing of each financing. The 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. CITY OF SAN JUAN CAPISTRANOIFIELDMAN, ROLAPP & ASSOCIA'IES Lxmnn A, rage D EXHIBIT B TO FINANCIAL ADVISORY SERVICES AGREEMENT BY AND BETWEEN CITY OF SAN JUAN CAPISTRANO AND HELDMAN, ROLAPP & ASSOCIATES Fees and Expenses Part l: Fee for Services Financial Advisory Services performed pursuant to Section 1 of this Agreement, and as more fully described in the Scope of Services set forth in Exhibit A, will be billed for at the amounts set forth below: Negotiated Sale Competitive Sale $ 27,500 $ 32,500 Payment of fees earned by Consultant pursuant to this Part 1, shall be contingent on, and payable at the closing of the debt issue(s) undertaken to finance the Project. Part 2: Other Services Unless agreed to otherwise, financial advisory services performed pursuant to Section 2 of this Agreement will be billed at the then current hourly rates. The table below reflects the rates in effect as of the date of execution of this Agreement. Personnel Hourly Rate Managing Principal $275.00 Principals....................................................................... $225.00 Vice Presidents............................................................... $175.00 Assistant Vice Presidents ................................................ $160.00 Associates of the Firm .................................................... $130.00 Administrative Assistants ................................................. $75.00 Clerical (Other)................................................................ $35.00 Expenses Expenses will be billed for separately and will cover, among other things, travel, lodging, subsistence, overnight courier, computer, and fax transmission charges. Advances made on behalf of the City for costs of preparing, printing or distributing disclosure materials or related matter whether by postal services or electronic means, may also be billed through to the City upon prior authorization. Additionally, a surcharge of 6% of the net fee amount is added to verifiable out-of-pocket costs for recovery of costs such as telephone, postage, document reproduction and the like. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 1 Limiting Terms and Conditions The above fee is based on completion of work orders within six months of the City's authorization to proceed, and assumes that the City will provide all necessary information in a timely manner. The fee shown above in Part 1 presumes attendance at up to five meetings in the City's offices or such other location within a 25 -mile radius of the City place of business as the City may designate. Abandonment If, once commenced, the services of the Consultant are terminated prior to completion of our final report for any reason, we are to be reimbursed for professional services and direct expenses incurred up to the time we receive notification of such termination at the standard hourly rates shown in Part 2, subject to a minimum charge of $0. CITY OF SAN JUAN CAPISTRANOIFIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 2