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09-0707_STRADLING, YOCCA, CARLSON & RAUTH_Personal Services Agreement9 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this V�, day of2009, by and between the City of San Juan Capistrano (hereinafter referred as th "City") and Stradling, Yocca, Carlson and Rauth (SYCR) (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain professional consulting services for legal matters in connection with the execution and delivery from time to time of general obligation bonds to fund the acquisition and construction of certain open space improvements described as follows: General Obligation Bonds, 2009 Election (Open Space) (for convenience of reference the "Bonds"); and WHEREAS, City desires to retain Consultant to do the necessary legal work hereinafter outlined, upon the terms and conditions hereinafter set forth, for financing the acquisition and construction of said facilities; 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 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. The services provided under this Agreement shall begin upon execution of this Agreement by all parties. The services provided under this Agreement shall be completed on or before the Bonds are closed or the project is abandoned, whichever occurs first. Section 3.1 Compensation. 3.1 Amount. Consultant contract billings for any hourly work hereunder may be submitted on the consultant's forms and, at a minimum, should contain the following: DOCSOC/ 1350831 v2/022658-0000 0 Title of project(s) Purchase order number Total approved purchase order amount Amount paid to date Amount requested Amount remaining on purchase order Breakdown of amounts by project type or account number Three copies of itemized bills, clearly indicating the monthly period for which the billing is made, shall be submitted to: The City of San Juan Capistrano, Attention: Finance Officer, 23400 Paseo Adelanto, San Juan Capistrano, California 92675. Payment shall be made pursuant to Exhibit A attached hereto. A, Section 3. 3.2 Method of Payment. Subject to Section 3.1, Consultant shall be compensated pursuant to Exhibit 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 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. DOCSOC/ 1350831 v2/022658-0000 0 0 Section 6. Chanties to Scope of Work. For extra work not part of this Agreement, a written authorization from City 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 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/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 City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section S. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law: E -Verify. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 9.2. E -Verify. If Consultant is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Consultant shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or access the registration page at https://www.vis-dhs.com/employerregistration, Consultant shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 10. Conflicts of Interest. DOCSOC/ 1350831 v2/022658-0000 0 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 City at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City 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 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 maintains as of the date hereof, and shall continue to maintain throughout the term of this Agreement, a policy of professional liability insurance which insures Consultant against claims which it is legally obligated to pay, in a maximum policy amount of no less than $25,000,000. No indemnity against third party claims is provided by Consultant to City, but rather Consultant agrees to maintain the foregoing insurance throughout the term of Consultant's engagement with respect to the project described herein. 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 City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. 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. 4 DOCSOC/1350831 v2/022658-0000 0 0 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. 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 naming City, 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 City, its officers, employees, agents, or volunteers. 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 Twenty - Five Million Dollars ($25,000,000). Prior to beginning any work under this Agreement, Consultant shall submit an insurance certificate to the City's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 14.6 Notice of Cancellation/Termination of Insurance. DOCSOC/1350831 v2/022658-0000 0 0 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. 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 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. 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: Cindy Russell, Assistant City Manager To Consultant: Stradling, Yocca, Carlson and Rauth 660 Newport Center Drive Suite 1600 Newport Beach, CA 92660 Attn: Kurt Yeager 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. DOCSOC/ 1350831 v2/022658-0000 0 0 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 By: ooe'it ,Interim City Manager CONSULTANT APPROVED AS TO FORM: bvv& City Attorney DOCSOC/ 1350831 v2/022658-0000 Stradlin6, Yocca. Ca/fson(and Rauth Ll EXHIBIT A SCOPE OF WORK SERVICES 0 The City retains Consultant to provide, and Consultant agrees to provide, legal services in connection with the execution and delivery of general obligation bonds (hereinafter referred to as the 'Bonds") to finance certain open space projects. Such services will be divided into two phases: (a) development of a financing plan; and (b) implementation of the financing plan. In the first phase -- the planning stage -- we would expect: (i) to research applicable laws including federal and state tax laws, securities laws and other laws that may be applicable to the financing structure currently proposed; (ii) to attend conferences and consult with the City/City staff (including the City Finance Director and counsel) regarding such laws, to participate with any financial advisors, underwriters, developers, lenders and other experts retained by the City in structuring the financing; and (iii) to consult with other firms active in the bond practice when necessary to ensure that any novel approaches being considered would be generally accepted in the bond community. In the second phase -- the implementation stage -- we would expect: (i) to supervise and prepare documentation of all steps to be taken through the execution and delivery of the Bonds including: a. drafting all resolutions of the City and all other basic documents relating to the security of the Bonds, in consultation with the City, its counsel and financial advisors, underwriters and other experts; b. preparing the record of proceedings for the authorization, sale and delivery of the Bonds; C. preparing documents relating to the financing, including the indenture and related resolutions; preparing the official statement or placement memorandum for the Bonds; DOCSOC/ 1350831 v21022658-0000 0 e. reviewing the Bond purchase contracts or the bidding documents and participating in the related negotiations; f. attending information meetings and other conferences scheduled by the City, the financial advisors or the underwriters; g. consulting with counsel to the City concerning any legislation or litigation during the course of the financing; h. consulting with the trustee and counsel to the trustee; preparing the form of the Bonds, and supervising their production or printing, signing, authentication and delivery; and rendering any necessary collateral legal opinions as to the inapplicability of the registration requirements of federal securities laws and other matters related to the execution and delivery of the Bonds and City authority with respect to the financing generally. (ii) to render a final legal opinion pertaining to the Bonds to the effect that: a. the Bonds have been properly authorized and issued and are valid and binding obligations; b. the essential sources of security for the Bonds have been legally provided; and C. all interest with respect to the Bonds is excludable from gross income for federal income tax purposes and exempt from California personal income taxation, as applicable. 2. INDIVIDUAL RESPONSIBLE FOR PROVIDING SERVICES The City agrees to accept and Consultant agrees to provide the aforementioned services through Denise E. Hering (as available only), E. Kurt Yeager, Brian Forbath and Carol L. Lew. Should the above attorneys be unable to provide such services due to death, disability, or similar event, Consultant reserves the right to substitute, with City's consent, another of its attorneys to provide such services, and such substitution shall not alter or affect in any way Consultant's other obligations under this agreement. 3. BOND FEE Basic Bond Counsel Fee: The fee for the services described in this Agreement 9 DOCSOC/1350831 v2/022658-0000 0 9 shall be based upon the total principal amount of Bonds for each series of bonds authorized and sold and will be computed in accordance with the following schedule: Principal Amount of Bonds $1,000,000 or less $1,000,001 to $5,000,000 $5,000,001 to $15,000,000 $15,000,001 or more Fee $25,000 $25,000 plus 1/4 of 1% of the excess over $1,000,000 $38,000 plus 1/10 of 1% of the excess over $5,000,000 $48,000 Additionally, for the service of preparing the Official Statement for the Bonds, the City agrees to pay Bond Counsel for each issue of Bonds a fee of $35,000. Except as provided in Section 4 below, Consultant fees are to be billed upon the execution and delivery of the Bonds and will be payable from Bond proceeds. Out -of -Pocket Expenses: In addition to the Basic Fee, Bond Counsel shall be reimbursed for out-of-pocket expenses incurred pursuant to this Agreement and hourly fees incurred pursuant to Section 4 of the Agreement. Payment of the Basic Bond Counsel Fee and Out -of -Pocket Expenses is entirely contingent upon the successful sale of the Bonds, and payment thereof is to be made from the proceeds of the Bonds; and in light of the fixed fee, no itemized bill shall be required therefor. 4. FOLLOW-UP SERVICES Bond counsel agrees to provide without additional cost normal follow-up consultation and related services following the sale of the Bonds. Should the City require Consultant to provide extraordinary services after the sale of the Bonds, such services shall be provided at an additional fee to be agreed upon at a later date. 10 DOCSOC/1350831 v2/022658-0000 RESOLUTION NO. 09-07-07-01 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO REGARDING ITS INTENTION TO ISSUE TAX-EXEMPT OBLIGATIONS AND TO REIMBURSE THE CITY FROM PROCEEDS OF SUCH OBLIGATIONS FOR COSTS INCURRED PRIOR TO ISSUANCE (OPEN SPACE ACQUISITION AND/OR IMPROVEMENTS) WHEREAS, the City Council of the City of San Juan Capistrano (the "Issuer") desires to finance the costs of acquiring certain public facilities and improvements, as provided in Exhibit A attached hereto and incorporated herein (the "Project'); WHEREAS, the Issuer intends to finance the acquisition of the Project or portions of the Project with the proceeds of the sale of obligations the interest upon which is excluded from gross income for federal income tax purposes (the "Obligations'); and WHEREAS, prior to the issuance of the Obligations the Issuer desires to incur certain expenditures with respect to the Project from available monies of the Issuer which expenditures are desired to be reimbursed by the Issuer from a portion of the proceeds of the sale of the Obligations; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Juan Capistrano does hereby, order and determine as follows: SECTION 1. The Issuer hereby states its intention and reasonably expects to reimburse Project costs incurred prior to the issuance of the Obligations with proceeds of the Obligations. Exhibit A describes either the general character, type, purpose, and function of the Project, or the fund or account from which Project costs are to be paid and the general functional purpose of the fund or account. SECTION 2. The reasonably expected maximum principal amount of the Obligations is $30,000,000, with respect to the Open Space Acquisition and/or Improvements described at Exhibit A. SECTION 3. This resolution is being adopted on or prior to the date (the "Expenditures Date or Dates") that the Issuer will expend monies for the portion of the Project costs to be reimbursed from proceeds of the Obligations. SECTION 4. Except as described below, the expected date of issue of the Obligations will be within eighteen months of the later of the Expenditure Date or Dates and the date the Project is placed in service; provided, the reimbursement may not be made more than three years after the original expenditure is paid. For Obligations subject to the small issuer exception of Section 148(f)(4)(D) of the Internal Revenue Code, the "eighteen -month limit" of the previous sentence is changed to "three 07-07-2009 years" and the limitation of the previous sentence beginning with '; provided, ...... is not applicable. SECTION 5. Proceeds of the Obligations to be used to reimburse for Project costs are not expected to be used, within one year of reimbursement, directly or indirectly to pay debt service with respect to any obligation (other than to pay current debt service coming due within the next succeeding one year period on any tax-exempt obligation of the Issuer (other than the Obligations)) or to be held as a reasonably required reserve or replacement fund with respect to an obligation of the Issuer or any entity related in any manner to the Issuer, or to reimburse any expenditure that was originally paid with the proceeds of any obligation, or to replace funds that are or will be used in such manner. SECTION 6. This resolution is consistent with the budgetary and financial circumstances of the Issuer, as of the date hereof. No monies from sources other than the Obligation issue are, or are reasonably expected to be reserved, allocated on a long-term basis, or otherwise set aside by the Issuer (or any related party) pursuant to their budget or financial policies with respect to the Project costs. To the best of our knowledge, this City Council is not aware of the previous adoption of official intents by the Issuer that have been made as a matter of course for the purpose of reimbursing expenditures and for which tax-exempt obligations have not been issued. SECTION 7. The limitations described in Section 3 and Section 4 do not apply to (a) costs of issuance of the Obligations, (b) an amount not in excess of the lesser of $100,000 or five percent (5%) of the proceeds of the Obligations, or (c) any preliminary expenditures, such as architectural, engineering, surveying, soil testing, and similar costs other than land acquisition, site preparation, and similar costs incident to commencement of construction, not in excess of twenty percent (20%) of the aggregate issue price of the Obligations that finances the Project for which the preliminary expenditures were incurred. SECTION 8. This resolution is adopted as official action of the Issuer in order to comply with Treasury Regulation § 1.150-2 and any other regulations of the Internal Revenue Service relating to the qualification for reimbursement of Issuer expenditures incurred prior to the date of issue of the Obligations, is part of the Issuer's official proceedings, and will be available for inspection by the general public at the main administrative office of the Issuer. SECTION 9. All the recitals in this Resolution are true and correct and this City Council so finds, determines and represents. 07-07-2009 0 PASSED, APPROVED, AND ADOPTED this 7`h day of July, 2009. STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) ELSEN, MAYOR I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 09-07-07-01 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 7th day of July 2009, by the following vote: AYES: COUNCIL MEMBERS: Allevato, Freese, Hribar, Uso and Mayor Nielsen NOES: COUNCIL MEMBER: None ABSENT: COUNCIL MEMBER: None 07-07-2009 EXHIBIT A DESCRIPTION OF PROJECT Acquisition of Land for Open Space purposes Improvements and/or Enhancements to Open Space areas such as: Parks, and related improvements and amenities Sports Fields and related improvements and amenities Walking, Running and Biking Trails Equestrian Trails and Facilities Bike Paths Habitat Restoration And other similar open space acquisitions, improvements and/or enhancements 07-07-2009 • • 7/7/2009 AGENDA REPORT D18 TO: Joe Tait, Interim City ManagerCjp- FROM: Cindy Russell, Assistant City Manager SUBJECT: Consideration of Agreements for Bond Counsel and Financial Advisor Services for Issuance of General Obligation Bond, Series 2009 Debt Related to the Open Space Measure Y and Reimbursement Resolution for Costs (Stradling, Yocca, Carlson and Rauth and Fieldman, Rolapp and Associates) RECOMMENDATION: By Motion, Approve the Agreement with Stradling, Yocca, Carlson and Rauth for bond counsel for the proposed Open Space Obligation Bonds — Series 2009; and, 2. Approve the Agreement with Field man, Rolapp and Associates for financial advisor services for the proposed Open Space General Obligation Bonds - Series 2009; and, 3. Upon approval as to form by the City Attorney, authorize the City Manager to execute these agreements. 4. Approve the reimbursement resolution authorizing eligible costs related to Open Space Measure Y activities incurred prior to the issuance of the bonds to be reimbursed from future bond proceeds. SITUATION: Summary and Recommendation: In November 2008, the residents of the City of San Juan Capistrano voted in favor of Measure Y to approve up to $30 million of general obligation bonds to be issued for the preservation and enhancement of open space. Measure Y ballot language supported by the voters is as follows: To acquire and improve land to protect and preserve open space, natural areas, creeks and streams, historic areas, undeveloped hillsides and natural ridges from potential residential and commercial development and to provide additional recreational amenities such as bike and walking Agenda Report Paqe 2 July 7, 2009 trails, equestrian facilities, parks and sports fields, shall the City of San Juan Capistrano issue 30 million dollars in bonds, at legal rates, with guaranteed annual independent audits, public expenditures review and no money for City administrators'salaries? To date, the City Council has approved the Phase I park improvements on the City's existing northwest open space (NWOS) area to be funded from bond proceeds. The Phase I park generally includes a picnic area, community garden, orchard area, parking area, access from Camino Capistrano and related amenities. Additionally, the City Council has approved an option agreement for the potential acquisition of open space related to the Crystal Cathedral Ministries property in the NWOS area and is currently considering an offer to acquire property at the easterly City limit currently part of the Rancho Mission Viejo holdings. The City has also been working on habitat restoration plans for the NWOS area in order to enhance natural areas, etc. and be competitive for grant funding that is available for related acquisition and restoration. In order to fund these activities, the City needs to begin issuing general obligation bonds under Measure Y authorization. In order to facilitate the issuance of debt, the City needs to retain legal or bond counsel and financial advisor services. The City and Agency have worked closely with Stradling, Yocca, Carlson and Rauth (SYCR) and Fieldman, Rolapp and Associates in the area of debt financing for almost twenty-five years and have been very impressed with their services and expertise. They are very familiar with the City and would provide the most conducive working relationship with staff to move this process forward. Additionally, these firms have been available at any time for information relating to these issues and other financing issues as they arise to provide support to City and Agency staff. Their debt financing projects have included: 1986 $ 6,250,000 Tax Allocation Notes (CRA) (SYCR only) 1990 $ 4,955,000 General Obligation Bond Issuance (CITY) 1991 $ 9,050,000 General Obligation Bond Issuance (CITY) 1991 $ 6,250,000 Tax Allocation Refunding Bonds (CRA) (SYCR only) 1992 $ 6,995,000 General Obligation Bond Issuance (CITY) 1997 $ 1,800,000 Subordinated Taxable Allocation Bonds (Housing) (CRA) 1998 $ 6,315,000 Tax Allocation Refunding Bonds (CRA) 1998 $18,155,000 General Obligation Refunding Bonds (CITY) 2002 $ 8,525,000 Certificates of Participation — Series 2002 (Water) (CITY/CVWD) 2002 $31,555,000 Revenue Bonds — GRWP (SJBA in conjunction with CITY/CVWD) 2004 $23,000,000 Certificates of Participation — Series 2004 (Water) (CITY) 2009 $11,100,000 Certificates of Participation — Series 2009 (Water) (City) Most recently, Kurt Yeager and Carol Lew of SYCR have provided their expertise as legal counsel; and, Jim Fabian of Fieldman, Rolapp and Associates have participated in these issues. 0 Agenda Report Paoe 3 July 7, 2009 The costs of these contract services do not vary greatly from firm to firm, therefore adherence to a Request for Proposal (RFP) process would not necessarily produce the most economically feasible result. These costs are also at or below the costs for 2009 water facility debt financing as a percentage of the total debt issued. Additionally, the City would save the cost of staff time associated with a formal RFP process, and staff would be able to move this process along as rapidly as possible. Therefore, staff is recommending the two firms that have worked with the City on a number of debt issues including our Community Redevelopment Agency bonds, Housing bonds, Certificates of participation for water facilities and our previous Open Space bonds. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: None FINANCIAL CONSIDERATIONS: The cost for legal counsel services ranges from $25,000 to $48,000 depending on the size of the bond issue. Additionally, the cost for bond counsel to prepare the official statement for each issue is $35,000 per issue. If we issue all $30 million in one series, then the total cost for bond counsel is $83,000. The cost of the independent financial advisor services is $52,500 including expenses for a competitive sale of up to $30 million in bonds. The cost of each additional series would be discounted by $35,000. If the City issues the $30 million in multiple series, the cost of the first series would be $52,500 and $35,000 for each series thereafter. The size of the initial bond issue has not been determined at this time. However, based on the current needs, an initial series would not be less than $5 million. The cost for legal counsel, official statement and independent financial advisor for a $5 million initial issue would be $122,500 or 2.45% of the bond issue. The cost of these same services for a $30 million issue would be $135,500 or 0.45% of the bond issue. The total cost of issuance for a maximum issue of $30 million is estimated at approximately $550,000 including the cost above. This equates to approximately 1.75% of the bond issue. In contrast, a smaller issue of $5,000,000 would have costs of issuance of approximately 4.75% of the bond issue. Based on the needs identified by City Council for acquisition, and/or improvements in the near future, staff will appropriately size the issue just prior to bringing the documents forward to City Council for authorization to sell bonds. Payment for all services rendered and expenses incurred in conjunction with the Agreements would be paid along with other costs of issuance from debt proceeds at time of issuance. In the event of abandonment of the project, the City would be required to pay a fee equal to the reasonable value of services rendered from the date of the agreement to the date of abandonment. 9 Agenda Report Paae 4 NOTIFICATION: Stradling, Yocca, Carlson and Rauth* Fieldman. Rolapp and Associates* By Motion, 40 July 7, 2009 1. Approve the Agreement with Stradling, Yocca, Carlson and Rauth for bond counsel for the proposed Open Space Obligation Bonds — Series 2009; and, Approve the Agreement with Fieldman, Rolapp and Associates for financial advisor services for the proposed Open Space General Obligation Bonds - Series 2009; and, 3. Upon approval as to form by the City Attorney, authorize the City Manager to execute these agreements. 4. Approve the reimbursement resolution authorizing eligible costs related to Open Space Measure Y activities incurred prior to the issuance of the bonds to be reimbursed from future bond proceeds. Respectfully Submi ed, Cindy Russell Administrative Services Director Attachments: 1. Agreement for Bond Counsel Services with Stradling, Yocca, Carlson & Rauth. 2. Agreement for Financial Advisory Services with Fieldman, Rolapp & Associates. 3. Reimbursement Resolution PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this day of , 2009, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Stradling, Yocca, Carlson and Rauth (SYCR) (hereinafter referred to as the "Consultant"). RECITALS: WHEREAS, City desires to retain professional consulting services for legal matters in connection with the execution and delivery from time to time of general obligation bonds to fund the acquisition and construction of certain open space improvements described as follows: General Obligation Bonds, 2009 Election (Open Space) (for convenience of reference the "Bonds"); and WHEREAS, City desires to retain Consultant to do the necessary legal work hereinafter outlined, upon the terms and conditions hereinafter set forth, for financing the acquisition and construction of said facilities; 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 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. The services provided under this Agreement shall begin upon execution of this Agreement by all parties. The services provided under this Agreement shall be completed on or before the Bonds are closed or the project is abandoned, whichever occurs first. Section 3. Compensation. 3.1 Amount. Consultant contract billings for any hourly work hereunder may be submitted on the consultant's forms and, at a minimum, should contain the following: DOCSOC/1350831 v2/022658-0000 ATTACHMENTI Ll 0 Title of project(s) Purchase order number Total approved purchase order amount Amount paid to date Amount requested Amount remaining on purchase order Breakdown of amounts by project type or account number Three copies of itemized bills, clearly indicating the monthly period for which the billing is made, shall be submitted to: The City of San Juan Capistrano, Attention: Finance Officer, 23400 Paseo Adelanto, San Juan Capistrano, California 92675. Payment shall be made pursuant to Exhibit A attached hereto. A, Section 3. 3.2 Method of Payment. Subject to Section 3. 1, Consultant shall be compensated pursuant to Exhibit 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 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. DOCSOC/ 1350831 v2/022658-0000 9 0 Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City 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 City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but riot 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 City, it shall immediately inform the 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; E -Verify. 9.1. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 9.2. E -Verify. If Consultant is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Consultant shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Consultant shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or access the registration page at https://www.vis-dhs.com/employerregistration. Consultant shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 10. Conflicts of Interest. DOCSOM 3 50831 v2/022658-0000 0 9 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 City at least one (1) copy of any final reports and/or notes or drawings containing Consultant's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City 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 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 maintains as of the date hereof, and shall continue to maintain throughout the term of this Agreement, a policy of professional liability insurance which insures Consultant against claims which it is legally obligated to pay, in a maximum policy amount of no less than $25,000,000. No indemnity against third party claims is provided by Consultant to City, but rather Consultant agrees to maintain the foregoing insurance throughout the term of Consultant's engagement with respect to the project described herein. 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 City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. 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. 4 DOCSOC/ 1350831 v2/022658-0000 0 0 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. 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 naming City, 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 City, its officers, employees, agents, or volunteers. 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 Twenty - Five Million Dollars ($25,000,000). Prior to beginning any work under this Agreement, Consultant shall submit an insurance certificate to the City's General Counsel for certification that the insurance requirements of this Agreement have been satisfied. 14.6 Notice of Cancellation/Termination of Insurance. DOCSOC/ 1350831 v2/022658-0000 • 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. 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 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. 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: Cindy Russell, Assistant City Manager To Consultant: Stradling, Yocca, Carlson and Rauth 660 Newport Center Drive Suite 1600 Newport Beach, CA 92660 Attn: Kurt Yeager 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. DOCSOC/1 35083 1 v2/022658-0000 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 M CONSULTANT A Stradling, Yocca, Carlson, and Rauth ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 7 DOCSOC/135083 I v2/022658-0000 L *3:11-31rr1 SCOPE OF WORK SERVICES 0 The City retains Consultant to provide, and Consultant agrees to provide, legal services in connection with the execution and delivery of general obligation bonds (hereinafter referred to as the 'Bonds") to finance certain open space projects. Such services will be divided into two phases: (a) development of a financing plan; and (b) implementation of the financing plan. In the first phase -- the planning stage -- we would expect: (i) to research applicable laws including federal and state tax laws, securities laws and other laws that may be applicable to the financing structure currently proposed; (ii) to attend conferences and consult with the City/City staff (including the City Finance Director and counsel) regarding such laws, to participate with any financial advisors, underwriters, developers, lenders and other experts retained by the City in structuring the financing; and (iii) to consult with other firms active in the bond practice when necessary to ensure that any novel approaches being considered would be generally accepted in the bond community. In the second phase -- the implementation stage -- we would expect: (i) to supervise and prepare documentation of all steps to be taken through the execution and delivery of the Bonds including: a. drafting all resolutions of the City and all other basic documents relating to the security of the Bonds, in consultation with the City, its counsel and financial advisors, underwriters and other experts; b. preparing the record of proceedings for the authorization, sale and delivery of the Bonds; preparing documents relating to the financing, including the indenture and related resolutions; preparing the official statement or placement memorandum for the Bonds; DOCS00 1350831 v2/022658-0000 0 e. reviewing the Bond purchase contracts or the bidding documents and participating in the related negotiations; f. attending information meetings and other conferences scheduled by the City, the financial advisors or the underwriters; g. consulting with counsel to the City concerning any legislation or litigation during the course of the financing; h. consulting with the trustee and counsel to the trustee; i. preparing the form of the Bonds, and supervising their production or printing, signing, authentication and delivery; and j. rendering any necessary collateral legal opinions as to the inapplicability of the registration requirements of federal securities laws and other matters related to the execution and delivery of the Bonds and City authority with respect to the financing generally. (ii) to render a final legal opinion pertaining to the Bonds to the effect that: a. the Bonds have been properly authorized and issued and are valid and binding obligations; b. the essential sources of security for the Bonds have been legally provided; and C. all interest with respect to the Bonds is excludable from gross income for federal income tax purposes and exempt from California personal income taxation, as applicable. 2. INDIVIDUAL RESPONSIBLE FOR PROVIDING SERVICES The City agrees to accept and Consultant agrees to provide the aforementioned services through Denise E. Hering (as available only), E. Kurt Yeager, Brian Forbath and Carol L. Lew. Should the above attorneys be unable to provide such services due to death, disability, or similar event, Consultant reserves the right to substitute, with City's consent, another of its attorneys to provide such services, and such substitution shall not alter or affect in any way Consultant's other obligations under this agreement. 3. BOND FEE Basic Bond Counsel Fee: The fee for the services described in this Agreement 9 DOC SOC/1350831 v2/022658-0000 0 shall be based upon the total principal amount of Bonds for each series of bonds authorized and sold and will be computed in accordance with the following schedule: Principal Amount of Bonds $1,000,000 or less $1,000,001 to $5,000,000 $5,000,001 to $15,000,000 $15,000,001 or more Fee $25,000 $25,000 plus 1/4 of 1% of the excess over $1,000,000 $38,000 plus 1/10 of 1% of the excess over $5,000,000 $48,000 Additionally, for the service of preparing the Official Statement for the Bonds, the City agrees to pay Bond Counsel for each issue of Bonds a fee of $35,000. Except as provided in Section 4 below, Consultant fees are to be billed upon the execution and delivery of the Bonds and will be payable from Bond proceeds. Out -of -Pocket Expenses: In addition to the Basic Fee, Bond Counsel shall be reimbursed for out-of-pocket expenses incurred pursuant to this Agreement and hourly fees incurred pursuant to Section 4 of the Agreement. Payment of the Basic Bond Counsel Fee and Out -of -Pocket Expenses is entirely contingent upon the successful sale of the Bonds, and payment thereof is to be made from the proceeds of the Bonds; and in light of the fixed fee, no itemized bill shall be required therefor. 4. FOLLOW-UP SERVICES Bond counsel agrees to provide without additional cost normal follow-up consultation and related services following the sale of the Bonds. Should the City require Consultant to provide extraordinary services after the sale of the Bonds, such services shall be provided at an additional fee to be agreed upon at a later date. 10 DOCSOC/1350831 v2/022658-0000 L PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR This agreement has been entered into this day of , by and between the City of San Juan Capistrano, California (the "City") and Fieldman, Rolapp & Associates, (herein, the "Consultant"). WHEREAS, the City desires independent financial advisory services to be performed in connection with funding of open -space acquisition (herein, the "Project"); and WHEREAS, the City desires to retain the professional and technical services of the Consultant for the purpose of debt issuance, (herein, the "Services"). WHEREAS, the Consultant is well qualified to provide professional financial advice to public entities such as the City; NOW, THEREFORE, in consideration of the above recitals and the mutual covenants and conditions hereinafter set forth, it is agreed as follows: Section 1 Financial Advisory Services. As directed by the City, Consultant will provide services in connection with the funding of open -space acquisition as such Services are fully described in Exhibit A attached to this Agreement. Consultant is engaged in an expert financial advisory capacity to the City only. It is expressly understood that the Services rendered hereunder are rendered solely to the City of San Juan Capistrano. Consultant does not undertake any responsibility to review disclosure documents on behalf of owners or beneficial owners of bonds or debt which may arise from the Consultant's work hereunder. Section 2 Additional Services. Services performed for the City by Consultant that are not otherwise specifically identified in Exhibit A to this Agreement, shall be additional services. Additional services include, but are not limited to, the following: 2.01 Assisting the City in obtaining enabling legislation or conducting referendum elections. 2.02 Extraordinary services and extensive computer analysis in the structuring or planning of any debt issue or financing program. 2.03 The repeat of any element of a service described in Exhibit A to this Agreement which is made necessary through no fault of Consultant. 2.04 Financial management services, including development of financial 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. CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Page 1 Project No. 08194 Attachment 2 0 0 2.05 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. 2.06 Services rendered to the City in connection with calculations or determination of any arbitrage rebate liability to the United States of America arising from investment activities associated with debt issued to fund the Project. Section 3 Compensation. 3.01 For Consultant's performance of Services as described in Section 1 of this Agreement the Consultant's compensation will he as provided in Part 1 of Exhibit B attached to this Agreement, plus Consultant's expenses incurred in rendering such Services. Consultant's expenses may include, but are not limited to travel, telephone/conference calls, postage, courier, database access services, and printing. 3.02 For Consultant's performance of additional services as described in Section 2 of this Agreement, the Consultant's compensation will be as provided in Part 2 of Exhibit B attached to this agreement, plus Consultant's expenses incurred in rendering such services. Consultant's expenses may include, but are not limited to travel, telephone/conference calls, postage, courier, database access services and.printing. 3.03 Payment for Consultant's Services rendered pursuant to Section 1 of this Agreement shall be as provided for in Exhibit B to this Agreement, unless specified to the contrary elsewhere in this Agreement. The Consultant may submit monthly invoices for payment for services provided pursuant to Section 2 of this Agreement unless an alternate date or dates have been specifically agreed to in writing. Unless otherwise specified, payment of Consultant's compensation and expenses is due thirty (30) days after submission of Consultant's invoice for services. 3.04 In the event the Services of the Consultant are abandoned prior to completion of Consultant's work, Consultant shall be compensated for Services performed to the point of abandonment as if such Services were an additional service pursuant to Section 2 of this Agreement, subject to a maximum fee of 0. An act of abandonment shall be deemed to have occurred when no action has been taken by the City relative to the services of the Consultant for a period of three (3) months from the date of the initial performance of a service, or there has been a written notification to the Consultant of an abandonment of the Project by the City. 3.05 Consultant fees set forth in this Agreement and Exhibits are guaranteed by Consultant for a period of twelve (12) months from the date of this Agreement. Section 4 Personnel. 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. The City has CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Page 2 Project No. 08194 0 0 the right to approve or disapprove any proposed changes in Consultant's staff providing service to the City. The City and Consultant agree that such personnel are employees only of Consultant and shall not be considered to be employees of the City in any way whatsoever. Section 5 Term of Agreement. This Agreement shall continue in full force and effect for a period of thirty-six (36) months from the date hereof or until all Series of Bonds are sold to allocate the General Obligation Bond Authorization unless terminated by either party by not less than thirty (30) days written notice to the other party except that the Agreement shall continue in full force and effect until completion of Consultant's services or until an abandonment shall have occurred as described in Section 3.04 hereof. This Agreement may be extended from time to time as agreed by the City and the Consultant. Section 6 Modification. This Agreement contains the entire agreement of the parties. It may be amended in whole or in part from time to time by mutual consent of the parties. This shall not prohibit the City and Consultant from entering into separate agreements for other services. Section 7 Assignment. The rights and obligations of the City under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the City. This agreement may not be assigned by the Consultant without the consent of the City except for compensation due Consultant. Section 8 Disclosure. Consultant does not assume the responsibilities of the City, nor the responsibilities of the other professionals and vendors representing the City, in the provision of services and the preparation of the financing documents, including initial and secondary market disclosure, for financings undertaken by the City. Information obtained by Consultant and included in any disclosure documents is, by reason of experience, believed to be accurate; however, such information is not guaranteed by Consultant. Section 9 Confidentiality. The Consultant agrees that all financial, statistical, personal, technical and other data and information designated by the City as confidential shall be protected by the Consultant from unauthorized use or disclosure. Section 10 Indemnification. The City and Consultant shall each indemnify and hold harmless the other from and against any and all losses, claims, damages, expenses, including legal fees for defense, or liabilities, collectively, damages, to which either may be subjected CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Page 3 Project No. 08194 by reason of the other's acts, errors or omissions, except however, neither will indemnify the other from or against damages by reason of changed events and conditions beyond the control of either or errors of judgment reasonably made. Section 11 Insurance. 11.01 Consultant shall maintain workers' compensation and employer's liability insurance during the term of this Agreement. 11.02 Consultant, at its own expense, shall obtain and maintain insurance at all times during the prosecution of this contract. Such insurance must be written with a Best Guide "A" -rated or higher insurance carrier admitted to write insurance in the state where the work is located. 11.03 Certificates of insurance naming the City as an additional insured shall be submitted to the City evidencing the required coverages, limits and locations of operations to which the insurance applies, and the policies of insurance shall contain a 30 day notice of cancellation or non -renewal. 11.04 Insurance coverages shall not be less than the following: A. Workers' Compensation 1. State worker's compensation statutory benefits 2. Employer's Liability - policy limits of not less than $1,000,000. B. Comprehensive General Liability coverage with policy limits of not less than $1,000,000 combined single limit for bodily injury and property damage and including coverage for the following: 1. Premises operations 2. Contractual liability 3. Products 4. Completed operation C. Errors and omissions with policy limits of $2,000,000. Section 12 Permits/Licenses. The Consultant shall obtain any permits or licenses, as may be required for it to complete the services required under this Agreement. Section 13 Binding Effect. 13.01 A waiver or indulgence by the City of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver of any subsequent breach by the Consultant. 13.02 All agreements and covenants contained herein are severable and in the event any of them shall be held to be invalid by any competent court, this Agreement shall CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Page 4 Project No. 08194 be interpreted as if such invalid agreements or covenants were not contained herein, and the remaining provisions of this Agreement shall not be affected by such determination and shall remain in full force and effect. This Agreement shall not fail because any part or any clause hereof shall be held indefinite or invalid. 13.03 Each party hereto represents and warrants that this Agreement has been duly authorized and executed by it and constitutes its valid and binding agreement, and that any governmental approvals necessary for the performance of this Agreement have been obtained. 13.04 The validity, interpretation and construction of this Agreement and of each part hereof shall be governed by the laws of the State of California. Venue for any lawsuit concerning this agreement is Orange County, California. IN WITNESS Whereof, the parties have duly executed this Agreement as of the day and year first above set forth. CITY OF SAN JUAN CAPISTRANO Date: Fieldman, Rolapp & Associates 19900 MacArthur Boulevard, Suite 1100 Irvina 92612 � I t JPeN. 5-y 2C�0 Approved as to form: Omar Sandoval, City Attorney Title: Title: /// J� r p k L CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Page 5 Project No. 09194 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 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 • 0 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 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 • 0 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. 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 0 0 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. 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) 11. Recommend Award of Debt Issuance. Based upon activities outlined in task above, the Consultant will recommend accepting or rejecting 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. 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 CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 4 0 0 EXHIBIT B TO FINANCIAL ADVISORY SERVICES AGREEMENT BY AND BETWEEN CITY OF SAN JUAN CAPISTRANO AND FIELDMAN, ROLAPP & ASSOCIATES Fees and Expenses Part 1: 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: Transaction Size Fees $1 to $30,000,000 $52,500 $30,000,001 and above to be negotiated 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. If the General Obligation Bonds are sold in more than one Series a discount of $17,500 shall be applied to the fees above for each subsequent Series of Bonds. 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 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 Expenses Expenses will be billed for separately and will cover, among other things, travel, lodging, subsistence, overnight courier, posting of POS on internet, 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 CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 1 0 0 amount is added to verifiable out-of-pocket costs for recovery of costs such as telephone, postage, document reproduction and the like. Total expenses shall not exceed a cap of $4,500. 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. 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 CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 2 9 RESOLUTION NO. 0 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO REGARDING ITS INTENTION TO ISSUE TAX-EXEMPT OBLIGATIONS AND TO REIMBURSE THE CITY FROM PROCEEDS OF SUCH OBLIGATIONS FOR COSTS INCURRED PRIOR TO ISSUANCE (OPEN SPACE ACQUISITION AND/OR IMPROVEMENTS) WHEREAS, the City Council of the City of San Juan Capistrano (the "Issuer") desires to finance the costs of acquiring certain public facilities and improvements, as provided in Exhibit A attached hereto and incorporated herein (the "Project'); WHEREAS, the Issuer intends to finance the acquisition of the Project or portions of the Project with the proceeds of the sale of obligations the interest upon which is excluded from gross income for federal income tax purposes (the "Obligations"); and WHEREAS, prior to the issuance of the Obligations the Issuer desires to incur certain expenditures with respect to the Project from available monies of the Issuer which expenditures are desired to be reimbursed by the Issuer from a portion of the proceeds of the sale of the Obligations; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Juan Capistrano does hereby, order and determine as follows: SECTION 1. The Issuer hereby states its intention and reasonably expects to reimburse Project costs incurred prior to the issuance of the Obligations with proceeds of the Obligations. Exhibit A describes either the general character, type, purpose, and function of the Project, or the fund or account from which Project costs are to be paid and the general functional purpose of the fund or account. SECTION 2. The reasonably expected maximum principal amount of the Obligations is $30,000,000, with respect to the Open Space Acquisition and/or Improvements described at Exhibit A. SECTION 3. This resolution is being adopted on or prior to the date (the "Expenditures Date or Dates") that the Issuer will expend monies for the portion of the Project costs to be reimbursed from proceeds of the Obligations. SECTION 4. Except as described below, the expected date of issue of the Obligations will be within eighteen months of the later of the Expenditure Date or Dates and the date the Project is placed in service; provided, the reimbursement may not be made more than three years after the original expenditure is paid. For Obligations subject to the small issuer exception of Section 148(f)(4)(D) of the Internal Revenue Code, the "eighteen -month limit" of the previous sentence is changed to "three ATTACHMENT 0 0 years" and the limitation of the previous sentence beginning with "; provided, ...." is not applicable. SECTION 5. Proceeds of the Obligations to be used to reimburse for Project costs are not expected to be used, within one year of reimbursement, directly or indirectly to pay debt service with respect to any obligation (other than to pay current debt service coming due within the next succeeding one year period on any tax-exempt obligation of the Issuer (other than the Obligations)) or to be held as a reasonably required reserve or replacement fund with respect to an obligation of the Issuer or any entity related in any manner to the Issuer, or to reimburse any expenditure that was originally paid with the proceeds of any obligation, or to replace funds that are or will be used in such manner. SECTION 6. This resolution is consistent with the budgetary and financial circumstances of the Issuer, as of the date hereof. No monies from sources other than the Obligation issue are, or are reasonably expected to be reserved, allocated on a long-term basis, or otherwise set aside by the Issuer (or any related party) pursuant to their budget or financial policies with respect to the Project costs. To the best of our knowledge, this City Council is not aware of the previous adoption of official intents by the Issuer that have been made as a matter of course for the purpose of reimbursing expenditures and for which tax-exempt obligations have not been issued. SECTION 7. The limitations described in Section 3 and Section 4 do not apply to (a) costs of issuance of the Obligations, (b) an amount not in excess of the lesser of $100,000 or five percent (5%) of the proceeds of the Obligations, or (c) any preliminary expenditures, such as architectural, engineering, surveying, soil testing, and similar costs other than land acquisition, site preparation, and similar costs incident to commencement of construction, not in excess of twenty percent (20%) of the aggregate issue price of the Obligations that finances the Project for which the preliminary expenditures were incurred. SECTION 8. This resolution is adopted as official action of the Issuer in order to comply with Treasury Regulation § 1.150-2 and any other regulations of the Internal Revenue Service relating to the qualification for reimbursement of Issuer expenditures incurred prior to the date of issue of the Obligations, is part of the Issuer's official proceedings, and will be available for inspection by the general public at the main administrative office of the Issuer. SECTION 9. All the recitals in this Resolution are true and correct and this City Council so finds, determines and represents. L 0 PASSED, APPROVED, AND ADOPTED this 7th day of July, 2009. MARK NIELSEN, MAYOR ATTEST: MARGARET R. MONAHAN, CITY CLERK EXHIBIT A DESCRIPTION OF PROJECT Acquisition of Land for Open Space purposes Improvements and/or Enhancements to Open Space areas such as: Parks, and related improvements and amenities Sports Fields and related improvements and amenities Walking, Running and Biking Trails Equestrian Trails and Facilities Bike Paths Habitat Restoration And other similar open space acquisitions, improvements and/or enhancements 32409 PASEO AOELANTO SAN JUAN CAPIBTRANO, CA 92575 {949} 490� 9171 (949) 493-1053 FAX N�5tit4.SLI1iJH[CRcap"frano.On' 0 0 MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAMAU"ATO LAURAFREESE THOMAS W HRIBAR MARK NELSEN DR LONORES USO The City Council of San Juan Capistrano will meet at 6:30 p.m. on Tuesday, July 7, 2009 in the City Council Chamber in City Hall, to consider: "Consideration of Agreements for Bond Counsel and Financial Advisor Services for Issuance of General Obligation Bond, Series 2009 Debt Related to the Open Space Measure Y and Reimbursement Resolution for Costs (Stradling, Yocca, Carlson and Rauth and Fieldman, Rolapp and Associates) " — Item No. D18. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, July 6, 2009 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Cindy Russell, Administrative Services Director. You may contact that staff member at (949) 443-6301 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancaoistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: citvclerkasanivancaoistrano.oro. Meg Monahan, MMC City Clerk cc: Stradling, Yocca, Carlson and Rauth; Fieldman, Rolapp and Associates San .htan Capistrano., Preserving the Past to Enhance the Future • Today's Date 3/20/08 C] CONTRACT TRANSMITTAL CIP No. (if any): Transmittal Routing (Check All That Apply) ® City Attorney ® City Manager ® City Clerk Project Manager's Last Name: Cindy Russell Phone Extension: -6301 Council or CRA Meeting Date (if applicable): APPROVING AUTHORITY: (Check One) X Mayor ❑ CRA Chair City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded — only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement — unless the mailing address is included within the body of the agreement: Names Street city St Zi OTHER INSTRUCTIONS: Stradling, Yocca, Carlson and Rauth Please return Cathy Form Date: 01-2004 D-7 32400 PASEO APELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 4931171 (949) 493.1053 FAX www sanjuancapzstrano. org TRANSMITTAL TO: Jowe • �,�, mcoerouno ' num � 1961 1776 Stradling, Yocca, Carlson and Rauth Attn: Kurt Yeager 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660 DATE: July 8, 2009 MEMBERS OF THE CITY COUNCIL FROM: Christy Jakl, Administrative Specialist, City Clerk's Office (949) 443-6310 SAM ALLEVATO LAURA FREESE THOMAS W. HRIBAR MARK NIELSEN DR. LONDRES USO RE: Personal Services Agreement — General Obligation Bonds, 2009 Election (Open Space) Thank you for maintaining documentation confirming compliance with the terms of the agreement related to insurance. Keep in mind this documentation must remain current with our office during the term of this agreement. Please be aware, our office still needs to receive an E -verify certificate as outlined in your contract under Section 9. If you have questions related to insurance and E -verify requirements, please call me at (949) 443-6310. If you have questions concerning the agreement, please contact Cathy Salcedo, Executive Assistant at (949) 443-6317. An original agreement is enclosed for your records. Cc: Cathy Salcedo, Executive Assistant San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100°o recycled payor