09-0120_STRADLING, YOCCA, CARLSON & RAUTH_AgreementPERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 20"' day
of January, 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 of certificates of participation to fund the
acquisition and construction of certain public water improvements described as follows:
2009 Water Revenue Certificates of Participation (for convenience of reference the
"Certificates"); 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 certificates are closed or the project is abandoned, whichever occurs first.
Section 3. Compensation.
3.1 Amount.
Consultant contract billings may be submitted on the consultant's
forms and, at a minimum, should contain the following:
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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.
3.2 Method of Payment.
Subject to Section 3.1, Consultant shall be compensated pursuant to Exhibit
A, Section 3.
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 Assianment.
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.
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Section 6. Chances 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 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 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.
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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 forthe 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.
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
Ig
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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.
The above policylpolicies 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
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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.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
By: � Com_
Dave Adams, City Manager
raTelki9IIrr110r0
APPROVED AS TO FORM:
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EXHIBIT A
SCOPE OF WORK
SERVICES
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The City retains Consultant to provide, and Consultant agrees to provide,
legal services in connection with the execution and delivery of certificates (hereinafter
referred to as the "Certificates") to finance certain water and sewer 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 Certificates including:
a. drafting all resolutions of the City and all other basic
documents relating to the security of the Certificates, 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 Certificates;
C. preparing documents relating to the financing, including the
indenture and related resolutions;
d. preparing the official statement or placement memorandum
for the Certificates;
i
e. reviewing the Bond purchase contracts or the bidding
documents and participating in the related negotiations;
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 Certificates, 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 Certificates and City authority with
respect to the financing generally.
(ii) to render a final legal opinion pertaining to the Certificates to the
effect that:
a. the Certificates have been properly authorized and issued
and are valid and binding obligations;
b. the essential sources of security for the Certificates have
been legally provided; and
C. all interest with respect to the Certificates 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
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Basic Bond Counsel Fee: The fee for the services described in this Agreement
shall be based upon the total principal amount of Certificates authorized and sold
and will be computed in accordance with the following schedule:
Principal Amount of Certificates Fee
$1,000,000 or less $25,000
$1,000,001 to $5,000,000 $25,000 plus 1/4 of 1% of the excess over
$1,000,000
$5,000,001 to $15,000,000 $38,000 plus 1/10 of 1% of the excess over
$5,000,000
$15,000,001 or more $48,000
Additionally, for the service of preparing the Official Statement for the
Certificates, the City agrees to pay Bond Counsel for each issue of Certificates 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 Certificates 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 Certificates, and payment thereof is to be
made from the proceeds of the Certificates.
4. FOLLOW-UP SERVICES
Bond counsel agrees to provide without additional cost normal follow-up
consultation and related services following the sale of the Certificates. Should the City
require Consultant to provide extraordinary services after the sale of the Certificates,
such services shall be provided at an additional fee to be agreed upon at a later date.
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32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 4931171
(949) 493-1053 FAx
www.sanj uancapistranO.Org
TRANSMITTAL
TO:
Stradling, Yocca, Carlson and Rauth
Attn: Kurt Yeager
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
DATE: June 3, 2009
Jwr,
NI9611El
IS111lIS1I1
1776
MEMBERS OF THE CIT' COUNCIL
FROM: Christy Jakl, Administrative Specialist, City Clerk's Office (949) 443-6310
SAM ALLEVATO
LAURAFREESE
THOMAS W. HRIBAR
MARK NIELSEN
DR. LONDRES USO
RE: Personal Services Agreement — 2009 Water Revenue Certificates of Participation
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) 443-6310.
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
Q* Pnntetl on 100%recyGed paper
1/20/2009
AGENDA REPORT D13
TO: Dave Adams, City Manager
FROM: Cindy Russell, Assistant City Manager
SUBJECT: Consideration of Agreements for Bond Counsel and Financial Advisor
Services for Issuance of Certificates of Participation, Series 2009 Debt
Related to the Domestic Water Master Plan (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
services in substantially th '^rm presented for the proposed Domestic Water
Master Plan Debt Financin, -n. end,
Approve the Agreement w
services for the proposer
2009; and,
Upon approval as to fr
execute these agreements.
SITUATION:
Summary and Recommendation:
,sociates for financial advisor
'Ian Debt Financing - Series
authorize the City Manager to
The 1999 Domestic Water Master Plan (DWMP) and its subsequent updates include
developer fees and debt financing as the source of financing for the projects. The DWMP
identified property taxes and user rates as the source of repayment for the debt. The
updated DWMP identified the need to issue debt early in FY 2004/05 and again in
2009/2010 to net approximately $30 million in bond proceeds. The first $20 million
necessary to fund two reservoir replacements and construct one new reservoir. These
improvements have been constructed and the funds expended. The series 2009 financing
would be used to fund projects such as the two easterly production wells for the
Groundwater Recovery Plant (GWRP), upgrades to the City's GWRP, the High West
Pipeline, the City's share of the Chiquita Regional Reservoir, and Pipelines E13 and E14.
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Agenda Report
Paae 2
0
January 20, 2009
This debt financing was anticipated as part of the City's water rate schedule effective in
January 2008. The rates adopted are sufficient to cover the debt service for this debt
financing.
The Utilities department is currently underway on the two easterly production wells and the
High West Side pipeline project. The City's financial contribution to the Chiquita Regional
Reservoir will be required during 2009. In order to fund these projects, this debt financing
would need to move forward at this time.
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 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)
Specifically, Denise Herring and Carol Lew of SYCR have provided their expertise as legal
counsel; and, Jim Fabian and Tom Johnsen of Fieldman, Rolapp and Associates have
participated in these issues.
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 2002
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 two
firms that have worked with the City on a number of debt issues including our Open Space
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Agenda Report
January 20, 2009
bonds, Community Redevelopment Agency bonds, Housing bonds and our previous
Certificates of Deposit for the DWMP.
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS:
None
FINANCIAL CONSIDERATIONS:
The cost for legal counsel services, $79,100 and the cost of the independent financial
advisor services, not to exceed $44,000 including expenses for a competitive sale have
been included in the cost of issuance calculations for determining the sizing of the debt.
The size of the bond is estimated at approximately $11 million including the bond reserves.
The cost of issuance for this debt is estimated at approximately $311,000 including the
cost above. 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.
NOTIFICATION:
Stradling, Yocca, Carlson and Rauth`
Fieldman. Rolapp and Associates"
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Agenda Report January 20, 2009
Paqe 4
RECOMMENDATION:
By Motion,
4. Approve the Agreement with Stradling, Yocca, Carlson and Rauth for bond counsel
services in substantially the form presented for the proposed Domestic Water
Master Plan Debt Financing - Series 2009; and,
5. Approve the Agreement with Fieldman, Rolapp and Associates for financial advisor
services for the proposed Domestic Water Master Plan Debt Financing - Series
2009; and,
6. Upon approval as to form by the City Attorney, authorize the City Manager to
execute these agreements.
Respectfully S bmitted,
Cindy Ru sell
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.
PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 20th day
of January, 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 of certificates of participation to fund the
acquisition and construction of certain public water improvements described as follows:
2009 Water Revenue Certificates of Participation (for convenience of reference the
"Certificates"); 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 certificates are closed or the project is abandoned, whichever occurs first.
Section 3. Compensation.
3.1 Amount.
Consultant contract billings may be submitted on the consultant's
forms and, at a minimum, should contain the following:
DOCSOC/ 13 20860v 1/02265 8-0028 ATTACHMENT 1
•
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/1320860v 1/022658-0028
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 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 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 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.
DOCSOC/I320860 1/022658-0028
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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.
To the fullest extent permitted by law, Consultant agrees to protect, defend, and
hold harmless the City and its elective and appointive boards, officers, agents, and
employees from any and all claims, liabilities, expenses, or damages of any nature,
including attorneys' fees, for injury or death of any person, or damages of any nature,
including interference with use of property, arising out of, or in any way connected with the
negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's
agents, officers, employees, subcontractors, or independent contractors hired by
Consultant in the performance of the Agreement. The only exception to Consultant's
responsibility to protect, defend, and hold harmless the City, is due to the negligence,
recklessness and/or wrongful conduct of the City, or any of its elective or appointive
boards, officers, agents, or employees.
This hold harmless agreement shall -apply -to a" liability -regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Consultant.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, and provide proof thereof that is acceptable to the 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.
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
4
DOCSOM 320860v 1/022658-0028
0
Liability Insurance form or other for
general aggregate limit shall apply
agreement or the general aggregate
limit.
0
m with a general aggregate limit is used, either the
separately to the work to be performed under this
limit shall be at least twice the required occurrence
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 One
Million Dollars ($1,000,000). 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.
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.
DOC SOC/ 13 208 60v 1/022658-0028
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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/1320860v 1/022658-0028
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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:
Dave Adams, City Manager
CONSULTANT
in
ATTEST:
City Clerk
APPROVED AS TO FORM:
[- , NOW :r
RIM -31 2�
DOCSOC/1320860v 1/022658-0028
Stradling, Yocca, Carlson, and Rauth
0
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 certificates (hereinafter
referred to as the "Certificates") to finance certain water and sewer 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 Certificates including:
a. drafting all resolutions of the City and all other basic
documents relating to the security of the Certificates, 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 Certificates;
C. preparing documents relating to the financing, including the
indenture and related resolutions;
DOCSOC/1320860v 1/022658-0028
0
•
d. preparing the official statement or placement memorandum
for the Certificates;
e. reviewing the Bond purchase contracts or the bidding
documents and participating in the related negotiations;
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 Certificates, 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 Certificates and City authority with
respect to the financing generally.
to render a final legal opinion pertaining to the Certificates to the
effect that:
a. the Certificates have been properly authorized and issued
and are valid and binding obligations;
b. the essential sources of security for the Certificates have
been legally provided; and
C. all interest with respect to the Certificates is excludable from
gross income for federal income tax purposes and exempt
from California personal income taxation, as applicable.
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.
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3. BOND FEE
Basic Bond Counsel Fee: The fee for the services described in this Agreement
shall be based upon the total principal amount of Certificates authorized and sold
and will be computed in accordance with the following schedule:
Principal Amount of Certificates Fee
$1,000,000 or less $25,000
$1,000,001 to $5,000,000 $25,000 plus 1/4 of 1% of the excess over
$1,000,000
$5,000,001 to $15,000,000 $38,000 plus 1/10 of 1% of the excess over
$5,000,000
$15,000,001 or more $48,000
Additionally, for the service of preparing the Official Statement for the
Certificates, the City agrees to pay Bond Counsel for each issue of Certificates 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 Certificates 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 Certificates, and payment thereof is to be
made from the proceeds of the Certificates.
4. FOLLOW-UP SERVICES
Bond counsel agrees to provide without additional cost normal follow-up
consultation and related services following the sale of the Certificates. Should the City
require Consultant to provide extraordinary services after the sale of the Certificates,
such services shall be provided at an additional fee to be agreed upon at a later date.
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PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 20th day
of January, 2009, by and between the City of San Juan Capistrano (hereinafter referred to
as the "City") and Fieldman, Rolapp and Associates (hereinafter referred to as the
"Consultant").
RECITALS:
WHEREAS, City desires to retain independent financial advisory service in
connection with the execution and delivery of certificates of participation to fund the
acquisition and construction of certain public water improvements described as follows:
2009 Water Revenue Certificates of Participation (for convenience of reference the
"Certificates"); and
WHEREAS, City desires to retain professional and technical services of the
Consultant for the purposes of debt issuance related to the 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 certificates are closed or the project is abandoned, whichever occurs first.
Section 3. Compensation.
3.1 Amount.
Consultant contract billings may be submitted on the consultant's
forms and, at a minimum, should contain the following:
Attachment 2
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Title of project(s)
Total approved contract amount
Amount paid to date
Amount requested
Amount remaining on contract
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.
Total compensation for the services hereunder shall not exceed $40,500 plus a not
to exceed cap of $3,500 for expenses as set forth in Exhibit B.
31.2 Method of Payment.
Subject to Section 3.1, Consultant shall be compensated pursuant to Exhibit
A, Section 3 and Exhibit B and Consultant's fee shall be contingent and payable at the
closing of the debt issue.
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 Subcontractina 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.
K
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 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 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 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.
To the fullest extent permitted by law, Consultant agrees to protect, defend, and
hold harmless the City and its elective and appointive boards, officers, agents, and
employees from any and all claims, liabilities, expenses, or damages of any nature,
including attorneys' fees, for injury or death of any person, or damages of any nature,
including interference with use of property, arising out of, or in any way connected with the
negligence, recklessness and/or intentional wrongful conduct of Consultant, Consultant's
agents, officers, employees, subcontractors, or independent contractors hired by
Consultant in the performance of the Agreement. The only exception to Consultant's
responsibility to protect, defend, and hold harmless the City, is due to the negligence,
recklessness and/or wrongful conduct of the City, or any of its elective or appointive
boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Consultant.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, and provide proof thereof that is acceptable to the 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.
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
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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 Two
Million Dollars ($2,000,000). 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.
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.
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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: Fieldman, Rolapp and Associates
19900 MacArhtur Blvd., Suite 1100
Irvine, CA 92612
Attn: James Fabian
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.
9
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 Aareement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
ATTEST:
City Clerk
APPROVED AS TO FORM:
-
CITY OF SAN JUAN CAPISTRANO
By: C CK4 rte`
Dave Adams, City Manager
CONSULTANT
By:
Fieldman, Rolapp and Associates
VA
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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
platining 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 1
Specifically, Consultant will:
1. Establish the Financine 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
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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
10. Conduct Market Analysis and Evaluate Timing of Market Entrv.
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 terns 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
E
ERFHBIT 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
$1 to $20,000,000
$20,000,001
and above
Fees
$40,500
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.
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
Txecutive 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 intemet, computer, and fax transmission
charges. Advances made on behalf of the City for costs of preparing, printing or distributing
disclosure materials or related matter whether by postal services or electronic means, may also be
billed through to the City upon prior authorization. Additionally, a surcharge of 6% of the net fee
amount is added to verifiable out-of-pocket costs for recovery of costs such as telephone, postage,
document reproduction and the like.
CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 1
Limiting Terms and Conditions
The above fee is based on completion of work orders within six months of the City's
authorization to proceed, and assumes that the City will provide all necessary information in a
timely manner.
The fee shown above in Part 1 presumes attendance at up to 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
—�a 1p to the time we receive notification of such termination at the standard hourly rates
Part 2, subject to a minimum charge of 0.
CITY OF SAN JUAN CAPISTRANO/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 2