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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: 9 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. 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. 2 9 0 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. 3 0 0 Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. Consultant 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 0 0 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 0 0 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. 0 0 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: M11114.11MILl 7 th 0 EXHIBIT A SCOPE OF WORK SERVICES r� u 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 R 0 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. 10 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. 0 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 0 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" 0 0 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 0 0 Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Consultant agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Consultant's professional services. Section 13. Indemnity. 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 9 0 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 0 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 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. M 0 0 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. 10 0 0 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 0 0 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 M 0 0 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. '61 0 0 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 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 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 0 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 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