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07-1025_FIELDMAN, ROLAPP & ASSOCIATES_Personal Services Agreementi PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into thi92 d y of Q-206tor , 2007, by and between the City of San Juan Capistrano (hereinafter referred to s the "City") and Fieldman, Rolapp & Associates (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, City desires to retain the services of Consultant to provide independent financial advisor services in conjunction with the proposed Community Facilities District No. 2007-1 Ventanas Business Center: and WHEREAS, Consultant is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City 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 June 30, 2008. Section 3. Compensation. 3.1 Amount. Total compensation for the scope of services for this Project shall not exceed $25,000 plus expenses, as set forth in Exhibit "B," attached and incorporated herein by reference. 3.2 Fee Schedule. The services shall be billed to the City at the base monthly rate set forth in Exhibit "B," subject to Section 3.1, 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 City representatives and incidental costs to perform the stipulated services, except as otherwise provided in Exhibit B. Submittals shall be in accordance with Consultant's proposal. 3.3 Method of Payment. Consultant shall submit monthly invoices based on the monthly base rate, including the administrative expenses fee, plus expenses. The City will pay monthly progress payments based on approved invoices in accordance with this Section. For extra work not part of this Agreement, a written authorization from City 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 City. Section 4. Independent Contractor. It is agreed that Consultant shall act and be an independent contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City'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 City to enter into this Agreement. Consultant shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City 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 City. All persons engaged in the work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. Section 6. Chanues 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 City, 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 Construction Site. By executing this Agreement, Consultant warrants that: (1) it has investigated the work to be performed; and (2) it understands the facilities, 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 City, it shall immediately inform City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. 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. Copies of Work Product. At the completion of the contract period, Consultant shall have delivered to City at least one (1) copy of any final reports and architectural drawings containing Consultant's findings, conclusions, and recommendations with any support documentation. All reports submitted to the City shall be in reproducible format. All services to be rendered hereunder shall be subject to the direction and approval of the City. 0 0 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 City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. Consultant agrees to protect, defend and hold harmless City, 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 14. 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. 14.1 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. 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 the following minimum amounts: 0 0 $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 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. 14.4 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 City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 14.5 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 Clerk of the Board's office for certification that the insurance requirements of this Agreement have been satisfied. 14.6 Notice of Cancellation/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 City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 0 0 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to the consultant. 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 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 City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Director of Administrative Services To Consultant: Fieldman, Rolapp & Associates Attention: James V. Fabian, Principal 19900 MacArthur Boulevard Irvine, CA 92612 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO CONSULTANT By: A EST. e R. Mona n, Ci Cle APPROVED AS TO FORM: John R. h ity Attorney 0 0 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 Phase I Financial Analysis and Financial Feasibility. 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. 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. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 1 Project No. FRA Phase I contract - Ex. A and B.doc 0 0 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 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. b. The Consultant shall maintain and update the official statement on its word processing system until such time as it is near final and suitable for transfer to the financial printer, in order to minimize the costs of revisions made by the printer. 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. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 2 Project No. FRA Phase I contract - Ex. A and B.doc EXHIBIT B TO FINANCIAL ADVISORY SERVICES AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND FIELDMAN, ROLAPP & ASSOCIATES Compensation Fees for Phase I services rendered hereunder will be billed at our hourly rates per the table provided below plus expenses provided, however, that the maximum fee to be paid under this paragraph shall not exceed $25,000. Phase I services will conclude with the adoption of the Resolution of Issuance to sale bonds. Personnel Hourlv Rate Managing Principals and Executive Officers of the Firm. $295.00 Principals.......................................................................... $275.00 Senior Vice President........................................................ $250.00 Vice Presidents................................................................. $225.00 Assistant Vice President ................................................... $195.00 Senior Associate............................................................... $145.00 Associate........................................................................... $120.00 Analyst................................................................................ $80.00 Administrative Assistants ................................................... $65.00 Clerical (Other)...................................................$35.00 Expenses Expenses will be billed for separately and will cover, among other things, travel, lodging, subsistence, overnight courier, internet posting, 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. 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 8 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. Preparation for, and attendance at City Council meetings on any basis other than "by appointment" may be charged at our normal hourly rates as shown in Part 2, above. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 1 Project No. FRA Phase I contract - Ex. A and B.doc n �J Abandonment n U 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. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 2 Project No. FRA Phase I contract - Ex. A and B.doc 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493.1053 PAx www.sanjuancapistrano.org TRANSMITTAL TO: James V. Fabian Fieldman, Rolapp & Associates 19900 MacArthur Blvd. Irvine, CA 92612 DATE: October 25, 2007 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: Personal Services Agreement — Financial Advisor Services (Ventana Business Center) 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 call me at (949) 443-6309. If you have questions concerning the agreement, please contact Cynthia L. Russell, Assistant City Manager. An original agreement is enclosed for your records. Cc: Cynthia L. Russell, Assistant City Manager San Juan Capistrano: Preserving the Past to Enhance the Future CoI Printed on 100%reeycled paper • 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 493-1053 FAx www.sanjuancapisirano.org October 23, 2007 Sao le�roe�e 1776 u1776 I 1961 " Fieldman, Rolapp & Associates Attention: James V. Fabian, Principal 19900 MacArthur Blvd Irvine, CA 92612 Dear Mr. Fabian: MEMBERS OF THE CITY COUNCIL SAMALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONORES USO A Personal Services Agreement related to providing independent financial advisor services related to the proposed Community Facilities District No. 2007-1 Ventanas Business Center is in the process of being executed. It will be issued upon receipt of required documentation related to contract terms under Section 14. Insurance. Insurance evidence may be faxed to (949) 493-1053 — ATTENTION CITY CLERK — followed by original signed documents. I have enclosed a copy of the agreement terms for your reference in supplying this documentation. If you have questions specific to the contact, please contact the project manager, Cynthia L. Russell, Assistant City Manager (949) 443-6301. Please call Maria Morris, Deputy City Clerk (949) 443-6309 if you have questions regarding the forms of insurance needed. Thank you, MMC L. Russell, Assistant City Manager San Juan Capistrano: Preserving the Past to Enhance the Future qrl$ PriMetl on 100% recycled paper 0 0 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 City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consuttanfs professional services. Section 13. Indemnity. Consultant agrees to protect, defend and hold harmless City, 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 14. 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. 14.1 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. 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 the following minimum amounts: 9 0 $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 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. 14.4 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 City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 14.5 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 Clerk of the Board's office for certification that the insurance requirements of this Agreement have been satisfied. 14.6 Notice of Cancellation/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 City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 14.7 Terms of Compensation. Consultant shall not receive any compensation until all insurance provisions have been satisfied. 0 0 14.8 Notice to Proceed. Consultant shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Consultant has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to the consultant. 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 parry does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (10) day cure period. 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 City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Director of Administrative Services To Consultant: Fieldman, Rolapp & Associates Attention: James V. Fabian, Principal 19900 MacArthur Boulevard Irvine, CA 92612 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").