HomeMy WebLinkAbout25B - AGMT - FINANCING FIRMSREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
APRIL 1, 2014
TITLE:
APPROVAL OF FINANCING FIRMS
AND AGREEMENTS
T / r
(\ yCITY MANA R
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
❑ As Recommended
❑ As Amended
❑ Ordinance on 151 Reading
❑ Ordinance on 2n' Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
1) Award contract to Quint & Thimmig LLP as Bond Counsel in the amount of $55,000 and
receive and file contract with Fieldman, Rolapp, & Associates for financial advisory services
for the refunding or consideration of other cash savings of the 1994A and 2004A Police
Administration Lease Revenue Bonds; subject to non - substantive changes approved by the
City Manager.
2) Approve proposal with Best, Best, and Krieger LLP, for Bond Counsel Services; Letter of
Agreement with De La Rosa & Company /Stifel and receive and file contract with Urban
Futures, Inc., for underwriting services for refunding opportunities of the 2004 Water
Revenue Bonds; subject to non - substantive changes approved by the City Manager.
DISCUSSION
On January 21, 2014 the City Council approved a list of financial advisors that staff could use to
review the City's existing debt portfolio of $162 million for potential refunding opportunities. Based
on the financial advisor proposals submitted, Finance identified two opportunities for refunding: the
1994A & 2004A Police Lease Revenue Bonds and the 2004 Water Revenue Bonds. As such, staff
engaged Fieldman, Rolapp, & Associates to review the Police Revenue Bonds and Urban Futures,
Inc. to review the Water Revenue Bonds. Both firms have identified potential cash savings
opportunities of over $1 million each.
In order to continue the development and implementation of cash saving strategies, the financial
advisory firms were asked to develop and initiate a Request for Proposal (RFP) for bond counsel
services based on the bond issuance assigned. Bond proposals were received by three bond
counsel firms: Best, Best and Krieger; Quint & Thimmig LLP; and Orrick, Herrington & Sutcliffe
LLP. Each firm was evaluated on responsiveness, experience as to the type of issuance, approach
and recommended bond counsel team. Based on the proposals submitted, Fieldman, Rolapp, &
Associates recommend Quint & Thimmig LLP as Bond Counsel for the Police Lease Revenue
Bonds. Urban Futures, Inc. recommends Best, Best & Krieger for the Water revenue Bonds. Staff
has reviewed the proposals and supports the recommendations.
2513-1
Agreement — Approval of Financing Firms and Agreements
April 1, 2014
Page 2
In addition, Urban Futures, Inc. also released an RFP for underwriting services. Four proposals
were received: De La Rosa & Company /Stifel; Piper Jaffray; Southwest Securities; and Jefferies
Group, LLC. Each was evaluated based on team experience, financing approach and
management fees. After review, Urban Futures, Inc. recommends De La Rosa & Company /Stifel.
Staff has reviewed the proposals and supports the recommendation.
Upon City Council approval, each financing team will then be directed to evaluate and recommend
the appropriate cash savings strategy. Staff will then bring back for approval a resolution of the
City Council authorizing the preparation of financing documents in order to finalize and initiate
completion of the transaction.
FISCAL IMPACT
Financing fees will be reimbursed to the City through the savings associated with each issuance.
Francisco Gutierrez
Executive Director
Finance and Management Services Agency
Exhibits: 1. Quint & Thimming LLP agreement
2. BB &K Fee Proposal
3. Del La Rosa /Stifel agreement
4. Council approved agreements,
25B -2
Agreement for Legal Services
CITY OF SANTA ANA
2014 Direct Placement Lease Financing
Refunding of the
Santa Ana Financing Authority
Police Administration and Holding Facility
Lease Revenue Bonds, Series 1994A
and /or
Refunding of the
City of Santa Ana
Certificates of Participation
(1998 City Hall Expansion Project)
THIS AGREEMENT FOR LEGAL SERVICES is made and entered into this day of
2014, by and between the CITY OF SANTA ANA (the "City "), and QUINT &
THIMMIG LLP, Larkspur, California ( "Attorneys ").
WITNESSETH:
WHEREAS, the City has determined that at this time, due to prevailing interest rates in the
municipal bond market and for other reasons, to provide for the refunding of the outstanding Santa Ana
Financing Authority, Police Administration and Holding Facility, Lease Revenue Bonds, Series 1994A
(the "1994 Bonds "), and /or the outstanding City of Santa Ana Certificates of Participation (1998 City
Hall Expansion Project) (the "1998 COPS ") by entering into a lease financing to accomplish such funding;
WHEREAS, the refinancing transaction will be structured as a direct placement lease with one or
more institutional investors (the "2014 Lease Financing ");
WHEREAS, the City requires the services of bond counsel in connection with the 2014 Lease
Financing;
WHEREAS, the City has determined that Attorneys are specially trained and experienced to
provide services for accomplishing such financing and Attorneys are willing to provide such services; and
WHEREAS, the public interest, economy and general welfare will be served by this Agreement
for Legal Services.
NOW, THEREFORE, IT IS HEREBY AGREED, as follows:
Exhibit 1
25B -3
Section 1. Duties of Attorneys. Attorneys shall provide legal services, as bond counsel, in
connection with the authorization, issuance and consummation of the financing proceedings relating to
the 2014 Lease Financing. Such services shall include the following:
(a) Confer and consult with the officers and administrative staff of the City as to matters relating
to the financing proceedings;
(b) Attend all meetings of the City and any administrative meetings at which any proceedings are
to be discussed, deemed necessary by Attorneys for the proper planning of the financing proceedings or
when specifically requested to attend;
(c) Prepare any required resolutions, resolutions, notices and legal documents necessary for the
proper conduct of the financing proceedings relating to the 2014 Lease Financing;
(d) Review all financial documents for legal sufficiency,
(e) Prepare and provide signature and no- litigation certificates, arbitrage certificates and any and
all other closing documents required to accompany the 2014 Lease Financing;
(f) Prepare and provide complete transcripts of the conduct of the proceedings necessary to
accompany the 2014 Lease Financing;
(g) Subject to the completion of proceedings to the satisfaction of Attorneys, provide the legal
opinions of Attorneys that the interest with respect to the 2014 Lease Financing is exempt from California
personal income taxation;
(h) Subject to the completion of proceedings to the satisfaction of Attorneys, provide the legal
opinions of Attorneys approving the legality of the proceedings relating to the 2014 Lease Financing; and
(i) Confer and consult with City officials and agents with regard to problems which may arise
during the servicing and payment of the 2014 Lease Financing.
Section 2. Compensation.
(a) If it is determined that the 2014 Lease Financing will include only the refunding of the 1994
Bonds, for the services set forth under Section 1 above, Attorneys shall be paid a flat fee of $50,000,
inclusive of all out -of- pocket expenses.
(b) If it is determined that the 2014 Lease Financing will include only the refunding of the 1998
COPs, for the services set forth under Section 1 above, Attorneys shall be paid a flat fee of $25,000,
inclusive of all out -of- pocket expenses.
(c) If it is determined that the 2014 Lease Financing will include both the refunding of the 1994
Bonds and the refunding of the 1998 COPs, for the services set forth under Section 1 above, Attorneys
shall be paid a flat fee of $55,000, inclusive of all out -of- pocket expenses.
-2-
25B-4
Payment of said fees and expenses shall be entirely contingent, shall be due and payable upon the
completion of the 2014 Lease Financing and shall be payable solely from the proceeds of the 2014 Lease
Financing and from no other funds of the City.
Section 3. Responsibilities of the City. The City shall cooperate with Attorneys and shall furnish
Attorneys with certified copies of all proceedings taken by the City, or other deemed necessary by
Attorneys to render an opinion upon the validity of such proceedings. All costs and expenses incurred
incidental to the 2014 Lease Financing, including the cost and expense of preparing certified copies of
proceedings required by Attorneys in connection with the 2014 Lease Financing and any other expenses
incurred in connection with the 2014 Lease Financing, shall be paid from the proceeds of the 2014 Lease
Financing.
Section 4. Exceptions. Any services rendered in any litigation involving the City or the
proceedings relating to the 2014 Lease Financing are excepted from the services to be rendered for the
above compensation. For such services which Attorneys are directed to render for and on behalf of the
City, compensation shall be on the basis of reasonable fees to be agreed upon by the City and Attorneys.
Section 4. Termination of Agreement. This Agreement for Legal Services may be terminated at
any time by the City, with or without cause, upon written notice to Attorneys. In the event of such
termination, all finished and unfinished documents shall, at the option of the City, become its property
and shall be delivered by Attorneys to the City.
IN WITNESS WHEREOF, the City and Attorneys have executed this Agreement for Legal
Services as of the date first above written.
CITY OF SANTA ANA
By
e dose Sandoval
'"tle Chief Assistant Citv Attornev
QUINT & THIMMIG LLP
By
Brian D. Quit artner
-3-
25B-5
r
FEE PROPOSAL
As a leading public law firm in California, BB &K has a longstanding commitment to
efficient and cost - effective delivery of legal services. We believe that the depth and quality of
our expertise and personnel experience in public law is second to none. We are able to address
complex legal issues with creativity, speed, efficiency and accuracy at a fair and reasonable cost.
For bond counsel and disclosure counsel services in connection with the Series 2004
Water Revenue Bond Refunding, BB &K will be compensated from proceeds of the bonds upon
their issuance as discussed below.
Bond Counsel
We assume that the sales price of the bonds will be approximately $12 million for the
refunding. We propose a fee of $35,000, assuming that the issue closes by the end of April or
May 2014. If the transaction continues for a longer period of time or requires additional work,
we would discuss any adjustment to our fee with the City and with Urban Futures.
For investment agreements, derivative transactions or interest rate swaps relating to of
any bond issue, a separate fee may be charged depending on the type of derivative.
Disclosure Counsel
Assuming that the sales price of the bonds to be issued will be approximately $12
million, we propose a fee of $20,000.
If we are selected to act as bond counsel and disclosure counsel, our total fees would be
$45,000 depending upon the sales price of the bonds.
Reimbursement
Our firm makes no separate charge for secretarial or other administrative charges. Our
fees include all routine word processing, secretarial and office costs associated with the provision
of legal services, including facsimile transmittals and voicemails.
Reimbursement of costs advanced by us on behalf of the client, as well as other expenses,
will be billed in addition to the amount billed for fees. These currently include, but are not
limited to, automobile mileage at the IRS rate, actual expenses away from our office on your
business, long distance telephone calls at actual cost, extraordinary photocopy charges at
$0.25 /page, any costs of printing the preliminary and final official statements, producing or
reproducing photographs, documents, and other items necessary for legal representation
including computer research. Additionally, costs advanced include the preparation of transcript
books and CD ROMs for each transaction. We would be happy to submit a budget for costs and
we would agree to not -to- exceed caps as approved by the City on individual expense matters.
Generally, the total expense is approximately $2,500, not including travel for any presentations
to investors, rating agencies or bond insurance companies.
ROV ORM Exhibit
Jose Sando l .
09845.00500 \8607796.1 25B -7 Zs nior Assistant City Attorney
r -oo
STIFELOne Montgomery Street, 37`h Floor, San Francisco, CA 94104
March 18, 2014
Francisco Gutierrez, Executive Director /City Treasurer
City of Santa Ana
Finance & Management Services Agency
P.O. Box 1988
Santa Ana, CA 92702
Re: Underwriter Engagement Relating to Potential Municipal Securities Transaction —
City of Santa Ana, 2014 Water Revenue Refunding Bonds
Dear Mr. Gutierrez:
The City of Santa Ana (the "Issuer ") and Stifel, Nicolaus & Company, Incorporated ( "Stifel ")
are entering into this memorandum to confirm that discussions related to potential issue of a
particular issuance (of series of issuances) of municipal securities related to the refunding of the
Series 2004 Water Revenue Bonds by the proposed 2014 Water Revenue Refunding Bonds (the
"Issue" or the "Bonds ") and that the Issuer and Stifel are hereby entering into this engagement
letter to formalize Stifel's role as underwriter or placement agent with respect to the Issue as
defined in MSRB Rule G -23. Issuer and Stifel acknowledge that, in all discussions that they will
have concerning the potential municipal securities transaction, Stifel will not be serving the role
of municipal advisor as defined in the SEC's Municipal Advisor Rule with current effective date
of implementation of July 1, 2014. To that end, the Issuer agrees to provide specific project
related information to Stifel and Stifel agrees to provide input to the Issuer relating to options
concerning structure, timing, terms, and other similar matters related to the expected transaction
referenced above.
Limitation of Engagement
This Memorandum establishes an engagement which does not obligate either parry to execute a
municipal securities transaction or to enter into a bond purchase agreement or any other legally
binding transaction. The engagement is preliminary in nature, and Issuer acknowledges that it
intends or reasonably expects to engage Stifel as the underwriter for the identified issuance of
municipal securities. This engagement may be subject to conditions such as formal approval of
the selection of Stifel as underwriter or placement agent by the applicable governing body and
the formalization of the structure and terms for the sale or placement of the issue. Additionally,
this Memorandum does not restrict the Issuer from entering into engagement letters with more
than one underwriter, provided that the issuer reasonably expects to engage each such
underwriter. This engagement is nonbinding and may be terminated immediately at any time for
any reason by either party upon written notice.
Exhibit ,3
25B -9
City of Santa Ana
March 18, 2014
Paae 2
Role Disclosure
The Issuer hereby confirms and acknowledges each of the following concerning the role that
Stifel would have as an underwriter:
(1) Municipal Securities Rulemaking Board Rule G -17 requires an underwriter to
deal fairly at all times with both municipal issuers and investors;
(2) the underwriter's primary role is to purchase securities with a view to distribution
in an arm's - length commercial transaction with the issuer and it has financial and
other interests that differ from those of the issuer;
(3) unlike a municipal advisor, the underwriter does not have a fiduciary duty to the
issuer under the federal securities laws and is, therefore, not required by federal
law to act in the best interests of the issuer without regard to its own financial or
other interests;
(4) the underwriter has a duty to purchase securities from the issuer at a fair and
reasonable price, but must balance that duty with its duty to sell municipal
securities to investors at prices that are fair and reasonable; and
(5) the underwriter will review the official statement for the issuer's securities, and
complete requisite due diligence, in accordance with, and as part of, its
responsibilities to investors under the federal securities laws, as applied to the
facts and circumstances of the transaction.
Disclosures Concerning the Underwriter Compensation
The underwriter will be compensated by an underwriting discount will be set forth in the bond
purchase agreement to be negotiated and entered into in connection with the issuance of the
Bonds. As a placement agent, compensation would be derived in the form of a fee negotiated in
connection with the issuance of the Bonds. Payment or receipt of the underwriting discount or
placement agent fee will be contingent on the closing of the transaction and the amount of the fee
or discount may be based, in whole or in part, on a percentage of the principal amount of the
Bonds. While this form of compensation is customary in the municipal securities market, it
presents a conflict of interest since the underwriter may have an incentive to recommend to the
Issuer a transaction that is unnecessary or to recommend that the size of the transaction be larger
than is necessary.
Conflicts of Interest Disclosures
Stifel has not identified any additional potential or actual material conflicts that require
disclosure.
25B -10
City of Santa Ana
March 5, 2014
Page 3
Disclosures Relating to Complex Municipal Securities Financing
Since Stifel Nicolaus has not recommended a "complex municipal securities financing" to the
Issuer, additional disclosures regarding the financing structure for the issuance of the Bonds are
not required under MSRB Rule G -17.
However, if Stifel Nicolaus recommends, or if the Issue is ultimately structured in a manner
considered a "complex municipal securities financing" to the Issuer, this letter will be
supplemented to provide disclosure of the material financial characteristics of that financing
structure as well as the material financial risks of the financing that are known to us and are
reasonably foreseeable at that time.
Sincerely,
Managing Director
The Issuer acknowledges the foregoing.
Accepted and Executed
Francisco Gutierrez, Executive Director /City Treasurer
(Title) Date:
APPROV A FORM
1P
od e Sandoval SeniAss Attorney
—
25B -11
25B -12
INSURANCE ON FILE
WORK MAY PROCEED N- 2014 -013
UNTIE. INSURANCE EXPIRES
Al."), - /s/
CLERK OF DOUNCIL
DATE: FEB 1 1 ZU14
PROFESSIONAL SERVICES AGREEMENT
FOR FINANCIAL ADVISOR
This agreement has been entered into this � day of February, 2014 by and between the City
of Santa Ana, a charter city and municipal corporation (the "City ") and Fieldman, Rolapp &
Associates, Inc. (herein, the "Consultant ").
WHEREAS, the City desires independent financial advisory services to be performed in
connection with refunding of outstanding debt, namely the 1994A and 2004A Lease Revenue
Bonds (herein, the "Project "); and
WHEREAS, the City desires to retain the professional and technical services of the Consultant
for the purpose of debt issuance, (herein, the "Services ");
WHEREAS, the Consultant is well qualified to provide professional financial advice to entities
such as the City;
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants and
conditions hereinafter set forth, it is agreed as follows:
Section 1 Financial Advisory Services
As directed by the City, Consultant will provide financial advisory services with
regard to the 1994A and 2004A Lease Revenue Bonds (Police Administration
and Holding Facility) (the 'Project ") as fully described in Exhibit A attached to
this Agreement. Consultant is engaged in an expert financial advisory capacity
to the City only. It is expressly understood that the Services rendered hereunder
are rendered solely to the City of Santa Ana. Consultant does not undertake any
responsibility to review disclosure documents on behalf of owners or beneficial
owners of bonds or debt which may arise from the Consultant's work hereunder.
Section 2 Additional Requested Services.
The City may request that Consultant provide additional services beyond the
scope of those referenced in Section 1 above and specifically listed in Exhibit A
to this Agreement, Services performed for the City by Consultant that are not
otherwise specifically identified in Exhibit A to this Agreement shall be
Additional Services. Additional Services include, but are not limited to, the
following:
2.01 Assisting the City in obtaining enabling legislation or conducting referendum
elections.
2.02 Extraordinary services and extensive computer - malysis in the structuring or
planning of any debt issue or financing program.
2.03 The repeat of any element of a service described in Exhibit A to this Agreement
which is made necessary through no fault of Consultant..
CITY OF SANTA ANA/FIELDMAN, ROLAPP & ASSOCIATES Page I
FRA Project No. 14123 Exhibit 4 00087124
25B -13
2.01• Financial management services, including development of financial policies,
capital improvement plans, economic development planning, credit analysis or
review and such other services that are not ordinarily considered within the scope
of services described in Exhibit A to this Agreement.
2.05 Services rendered in connection with any undertaking of the City relating to a
continuing disclosure agreement entered into in order to comply with Securities
and Exchange Commission Rule 15c2 -12 or other similar rules.
2,06 Services rendered to the City in connection with calculations or determination of
any arbitrage rebate liability to the United States of America arising from
investment activities associated with debt issued to fund the Project.
Section 3 Contingent Compensation
3.01 For Consultant's performance of Services as described in this Agreement,
including Additional Services requested by the City, the Consultant's
compensation will be as provided in of Exhibit B attached to this Agreement,
3.02 Payment of Consultant's expenses is contingent upon the successful closing of
the financing and approval by the City Council.
3.03 Unless otherwise specified, payment of Consultant's compensation and expenses
is due thirty (30) days after submission of Consultant's invoice for services after
City Council approval.
3.04 In the event the Services of the Consultant are abandoned prior to completion of
Consultant's work, Consultant shall be compensated for Services performed to
the point of abandonment as if such Services were an additional service pursuant
to Section 2 of this Agreement, subject to a maximum fee of 0, An act of
abandonment shall be deemed to have occurred when no action has been taken
by the City relative to the services of the Consultant for a period of three (3)
months from the date of the initial performance of a service, and there has been a
written notification to the Consultant of an abandonment of the Project by the
City.
3.06 The schedule of Consultant fees set forth in this Agreement and Exhibits is
guaranteed by Consultant for a period of twelve (12) months from the date of this
Agreement.
Section 4 Personnel.
Consultant has, or will secure, all personnel required to perform the services
under this Agreement. Consultant shall make available other qualified personnel
of the firm as may be required to complete Consultant's services. The City has
the right to approve or disapprove any proposed changes in Consultant's staff
providing service to the City. The City and Consultant agree that such personnel
are employees only of Consultant and shall not be considered to be employees of
the City in any way whatsoever.
CITY OF SANTA ANAIFIELDMAN, ROLAPP ec ASSOCIATES Page 2
FRA Project No. 14123
00087124
25B -14
Section 5 Term of Agreement.
This Agreement shall continue in full force and effect for a period of twenty -four
(24) months from the date hereof unless terminated by either party by not less
than thirty (30) days written notice to the other party except that the Agreement
shall continue in full force and effect until completion of Consultant's services at
until an abandonment shall have occurred as described in Section 3.04 hereof.
This Agreement may be extended by one year option as agreed by the City and
the Consultant.
Section 6 Modification.
This Agreement contains the entire agreement of the parties, It may be amended
in whole or in part from time to time by mutual consent of the parties, This shall
not prohibit the City and Consultant from entering into separate agreements for
other services,
Section 7 Work Products.
All work products or any form of property developed by the Consultant in
providing the Services shall be provided to the City on request. Work products
developed by the Consultant shall be the property of the City, provided that
Consultant may use such work products developed for the City raid may employ
those work products to develop refinements or additional work products in the
course of its business.
Section S Assignment.
The rights and obligations of the City under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the City. This
agreement may not be assigned by the Consultant without the consent of the City
except for compensation due Consultant.
Section 9 Disclosure.
Consultant does not assume the responsibilities of the City, nor the
responsibilities of the other professionals and vendors representing the City, in
the provision of services and the preparation of the financing documents,
including initial and secondary market disclosure, for financings undertaken by
the City. Information obtained by Consultant and included in any disclosure
documents is, by reason of experience, believed to be accurate; however, such
information is not guaranteed by Consultant,
Section 10 Confidentiality.
The Consultant agrees that all financial, statistical, personal, technical and other
data and information designated by the City as confidential shall be protected by
the Consultant frorn unauthorized use or disclosure. The City acknowledges that
the Consultant is required to comply with applicable laws governing disclosure
of public information.
CITY OF SANTA ANA/FIELDMAN, ROLAPP & ASSOCIATES Page 3
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25B -15
Section 11 Indemnification,
The City and Consultant shall each indemnify and hold harmless the other from
and against any and all losses, claims, damages, expenses, including legal fees
for defense, or liabilities, collectively, damages, to which either may be subjected
by reason of the other's acts, errors or omissions, except however, neither will
indemnify the other from or against damages by reason of changed events and
conditions beyond the control of either or errors of judgment reasonably made,
Section 12 Insurance.
12,01 Consultant shall maintain workers' compensation and employer's liability
insurance during the term of this Agreement.
12.02 Consultant, at its own expense, shall obtain and maintain insurance at all times
during the prosecution of this contract, Such insurance must be written with a
Best Guide "A" -rated or higher insurance carrier admitted to write insurance in
the state where the work is located.
12.03 Insurance coverages shall not be less than the following;
A. Workers' Cornpensation
1. State workers compensation statutory benefits
2. Employer's Liability -policy limits of not less than $1,000,000.
B, Comprehensive General Liability coverage with policy limits of not less than
$1,000,000 combined single limit for bodily injury and property damage and
including coverage for the following:
1. Premises operations
2. Contractual liability
3. Products
4. Completed operation
C. Errors and omissions with policy limits of $2,000,000.
12.04 Certificates of insurance naming the City as an additional insured with primary
coverage shall be submitted to the City evidencing the required coverages, limits
and locations of operations to which the insurance applies, and the policies of
insurance shall contain a 30 day notice of cancellation or non - renewal.
Section 13 Permits/Licenses.
The Consultant shall obtain any permits or licenses, as may be required for it to
complete the services required under this Agreement.
CITY OF SANTA ANA/PIELDMAN, ROLAPP & ASSOCIATES Page 4
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25B -16
Section 14 Binding Effect.
14.01 A waiver or indulgence by the City of a breach of any provision of this
Agreement by the Consultant shall not operate or be construed as a waiver of any
subsequent breach by the Consultant.
14.02 All agreements contained herein are severable and in the event any of them shall
be held to be invalid by any competent court, this Agreement shall be interpreted
as if such invalid agreements or covenants were not contained herein, and the
remaining provisions of this Agreement shall not be affected by such
determination and shall remain in full force and effect. This Agreement shall not
fail because any part or any clause hereof shall be held indefinite or invalid.
14.03 Each party hereto represents and warrants that this Agreement has been duly
authorized and executed by it and constitutes its valid and binding agreement,
and that any governmental approvals necessary for the performance of this
Agreement bave been obtained.
Section 15 Arbitration.
15.01 Any controversy, claim or dispute arising out of or relating to this Agreement
may be settled by non - binding arbitration in Irvine, California.
15.02 Such arbitration shall be conducted in accordance with the then prevailing
commercial arbitration rules of JAMS/Endispute ( "JAMS "), with the following
exceptions if in conflict: (a) one arbitrator shall be chosen by ,TAMS; (b) each
party to the arbitration will pay its pro rata share of the expenses and fees of the
arbitrator, together with other expenses of the arbitration incurred or approved by
the arbitrator; and (c) arbitration may proceed in the absence of any party if
written notice (pursuant to the JAMS rules and regulations) of the proceedings
has been given to such party.
15.03 Each party shall bear its own attorneys fees and expenses.
15.04• All such controversies, claims or disputes may be settled in this manner in lieu of
any action at law or equity; provided, however, that nothing in this Section shall
be construed as precluding the bringing of an action for injunctive or other
equitable relief.
15.05 The arbitrator shall not have the right to award punitive damages or speculative
damages to either party and shall not have the power to amend this Agreement.
The arbitrator shall be required to follow applicable law.
1.5.06 EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER MATTER
INVOLVING THE PARTIES HERETO.
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25B -17
IN WTINESS Whereof, the parties have duly executed this Agreement as of the day and year
first above set forth.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By �x c'.z�Zrst_
Lisa Storck
Assistant City Attorney
CITY OF SANTA ANA
DAVE. CAVAZOS
City Manager
CONSULTANT
Fieldman, Rol p & Asso �% Iuc.
By:
Anna V. Sarabiau
Vice President
Address: 19900 MacArthur Blvd.
Suite 1100
Irvine, CA 92612
CITY OF SANTA ANA/FIF.,LDMAN, ROLAPP & ASSOCIATES Page
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25B -18
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR
BY AND BETWEEN
THE CITY OF SANTA ANA
AND
FIELDMAN, ROLAPP & ASSOCIATES
Scope of Services
A. General Services.
The Consultant shall perform all the duties and services described in Section 1 of this Agreement
and shall provide such other services as it deems necessary or advisable to accomplish the
Project, 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 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 compensation described in
Exhibit B to this Agreement.
B. Transaction Services,
The Consultant shall amume primary responsibility for assisting the City in coordinating the .
planning and execution of each debt issue relating to the Project. Insofar as the Consultant is
providing Services which are rendered only to the City, the overall coordination of the financing
shall be such as to minimize the costs of the transaction coincident with maximizing the City's
financing flexibility and capital market access. The Consultant's proposed debt issuance Services
may include, but shall not be limited to, the following;
• Establish the Financing Objectives
• Develop the Financing Schedule
• Monitor the Transaction Process
• Review the Official Statement, both preliminary and final
• Procure and Coordinate Additional Service Providers
• Provide Financial Advice to the City Related to Financing Documents
• Compute Sizing and Design Structure of the Debt Issue
+ Plan mud 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 SANTA ANA /PIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 1
FRA Project No. 14123
00087124
25B -19
Specifically, Consultant will:
1. Establish the Financing Objeotives,
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. Upon direction of the City, the Consultant sball review 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.
b. The Consultant shall post the official statement on its website at
www,fieldman,com,
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 Citv Relating to Financing Documents.
Simultaneous with the review 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
CITY OF SANTA ANA/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 2
FRA Project No. 14123
00087124
25B -20
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 dte
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.
10. Conduct Market Anahm' and Evaluate Timing of Market Entry.
The Consultant shall provide regular summaries of current municipal market conditions,
trends in die market and how these may favorably or unfavorably affect the City's
proposed financing.
a. Competitive Sales.
For all types of competitive sale of debt, the Consultant shall undertake such
activities as are generally required for stile of securities by competitive bid
including, but not limited to the following:
• Review and cormnent on terms or Notice of Sale Inviting Bids
• Provide advice on debt sale scheduling
• Provide advice on the use of electronic bidding systems
• Coordinate bid opening with the City officials
• Verify bids received and make recommendations for acceptance
• Provide confirmation of issue sizing, based upon actual bids received,
where appropriate
• Coordinate closing arrangements with the successful bidder(s)
b. Negotiated Sales,
CITY OF SANTA ANAlFMLDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 3
FRA Project No, 14123
00097124
25B -21
In the case of a negotiated sale of debt, the Consultant shall perform a thorough
evaluation of market conditions preceding the negotiation of the terms of the sale
of debt and will assist the City with the negotiation of final issue structure,
interest rates, interest cost, reoffering terms and gross underwriting spread and
provide a recommendation on acceptance or rejection of the offer to purchase the
debt, This assistance and evaluation will focus on the following areas as
determinants of interest cost:
• Size of financing
• Sources and uses of funds
• Terms and maturities of the debt issue
• Review of the rating in pricing of the debt issue
• Investment of debt issue proceeds
• Distribution tnix among institutional and retail purchasers
• Interest rate, reoffering terms and underwriting discount with comparable
issues
• Redemption provisions
11, Recommend Award of Debt Issuance.
Based upon activities outlined in Task 10(a) and 10(b) above, the Consultant will
recommend 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 SANTA ANAUELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 4
PRA Prqject No, 14123
00087124
25B -22
EXHIBIT B
TO
PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR
BY AND BETWEEN
THE CITY OF SANTA ANA
AND
FIELDMAN, ROLAPP & ASSOCIATES
Compensation and Expenses
Transaction Based Compensation
For Services referenced in Section 1 of this Agreement, the Consultant will be compensated as
described in the table below:
TYk'OFFINACING PARAMOUNT'; �CONTINGENTFEE...
New Money and /ot Refunding: $1 to $15,000,000 $40,000
Lease Revenue Bonds, $15,000,001 to $30,000 000 $50000
Certificates of Participation, $30,000,001 to $60,000"000 $60,000
Enterprise (Revenue Bonds) and
I ,» , $60,000,001 and above $70,000
Payment of compensation 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,
Hourly Compensation
For Services and Additional Services referenced in this Agreement, the Consultant will be
compensated 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
Hxecutive Officers .............................
............................... $300.00
Principals ..........................................
............................... $290.00
Senior Vice President .......................
............................... $275.00
Vice Presidents ..................................
.............. *................ $225.00
Assistant Vice President ...................................................
$1.95.00
Senior Associate ................................
............................... $150.00
Associate............................................
............................... $125.00
Analyst.................................................
............................... $85.00
Administrative Assistants
.................... ............................... $65.00
Clerical.................................................
............................... $35.00
Hourly Compensation will be billed on a monthly basis,
CITY OF SANTA ANAlFIFLDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 1
PRA Project No, 1.4123
00087124
25B -23
Expenses
Expenses will be billed for separately and will cover, among other things, travel, lodging,
subsistence, overnight courier, conference calls, 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
compensation amount is added to verifiable out -of- pocket costs for recovery of costs such as
telephone, postage, document reproduction and the like.
Limiting Terms and Conditions
The above compensation 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, the Consultant will be compensated for professional services and
reimbursed for expenses incurred through the time of receive notification of such termination at
the standard hourly rates shown above, subject to a minimum charge of $0,
CITY OF SANTA ANA /FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 2
FRA Project No, 14123
00087124
25B -24
N -2014 -017
INSURANCE L01 ON FILE
WORK MAY NJ PROCEED
CLERK OF COUNCIL
DATE: PROFESSIONAL SERVICES AGREEMENT WITH
FEB 1 2 2014 URBAN FUTURES, INC. FOR
FINANCIAL ADVISORY SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement ") is made and entered
into this day of January, 2014, by and between the CITY OF SANTA ANA, a charter city and
municipal Corporation organized and existing under the Constitution and laws of the State of
California (herein "City ") and Urban Futures, Incorporated (herein "Consultant"),
NOW, THEREFORE, the parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all of the terms and conditions of this
Agreement, the Consultant shalt perform the work or services set forth in the "Scope of Services"
attached hereto as Exhibit "A" and incorporated herein by reference. Consultant warrants that all
work and services set forth in the Scope of Services will be performed in a competent, professional
and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City
of Santa Ana and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses. Permits. Fees and Assessments. Consultant shall obtain at its sole
cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement including, but not limited to, registration as
a financial advisor with the Securities and Exchange Commission (SEC) and Municipal Securities
Rulemaking Board (MSRB).
2.0 CONTINGENT COMPENSATION
2.1 Contract Sinn. Payment to Consultant is contingent upon final bond team
and package approval by City Council with regard to the 2004 Water Revenue Bonds issuance,
For the services rendered pursuant to this Agreement, the Consultant shall be compensated in
accordance with the "Schedule of Compensation" attached hereto as Exhibit "B" and incorporated
herein by this reference.
2.2 Invoicing. Consultant shall maintain a detailed invoice, in the form
approved by City's Finance Director, describing the tasks performed and amount charged for each
such task. The City shall review the invoice and pay Consultant the approved, charges no later than
thirty (3 0) days following the City Council action referenced above.
3.0 COORDINATION OF WORD
3.1 Representative of Consultant. Michael Busch is hereby designated as being
the principal and representative of the Consultant authorized to act in its behalf with respect to the
work and services specified herein and make all decisions in connection therewith,
25B -25
3.2 Contract Officer, The City Manager of the City of Santa Ana, is hereby
designated as being the representative of the City authorized to act in its behalf with respect to the
work and services specified herein and make all decisions in connection therewith ( "Contract
Officer "), The City Manager shall have the right to designate another Contract Officer by providing
written notice to the Consultant.
3.3 Prohibition Against Subcontracting or Assignment. Consultant shall not
contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the City. Neither this Agreement nor any interest herein
may be assigned or transferred, voluntarily or by operation of law, without the prior written
approval of the City. Any such prohibited assignment or transfer shall be void.
3.4 Independent Contractor. Neither the City nor any of its employees shall
have any control over the mariner, mode or means by which the Consultant, its agents or
employees, perform the services required herein, except as otherwise set forth. Consultant shall
perform all services required herein as an independent the contractor of the City and shall remain
under only such obligations as are consistent with that role. Consultant shall not at any time or in
any manner represent that it or any of its agents or employees are agents or employees of the City,
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance. The Consultant shall procure and maintain, at its sole cost
and expense, in a form and content satisfactory to the City, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance. Consultant shall maintain
commercial general liability insurance which shall include, but not be limited to protection against claims
arising from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Consultant's operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. The arnounts of insurance shall be not
less than the following: single limit coverage applying to bodily and personal injury, including death
resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, slid in the
aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and
representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or
self- insurance programs maintained by the City; and (c) contain standard separation of insureds provisions.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fiilly comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for both the
Consultant and the City against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by or any persons retained by the
Consultant in the course of carrying out the work or services contemplated in this
Agreement.
(c) Automotive Insurance. , Business automobile liability insurance,
or equivalent form, with a combined single limit of not less than $1,000,000 per
occurrence. Said policy shall include coverage for owned, non - owned, leased and hired
cars.
25B -26
(d) Professional Liability or Error and Omissions Insurance. A policy of
insurance in an amount not less than $1,000,000.00 per claim or as is customary for the
work to performed trader this contract with respect to loss arising from the actions of
Consultant performing professional services hereunder on behalf of the City,
All of the above policies of insurance shall be primary insurance and shall name the City, its
officers, employees and agents as additional insureds. The insurer shall waive all rights of
subrogation and contribution it may have against the City, its officers, employees and agents and
their respective insurers, All of said policies of insurance shall provide that said insurance may not
be amended or canceled without providing thirty (30) days prior written notice by registered mail to
the City. In the event any of said policies of insurance are canceled, the Consultant shall, prior to
the cancellation date, submit new evidence of insurance in conformance with this Section 4.1 to the
Contract Officer. No work or services under this Agreement shall commence until the Consultant
has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the
above insurance coverages and said Certificates of Insurance or binders are approved by the City.
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL
THIRTY (30) -DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
The Consultant agrees that the provisions of this Section 4,1 shall not be construed as
limiting in any way the extent to which the Consultant may be held responsible for the payment of
damages to any persons or property resulting from the Consultant's activities or the activities of any
person or persons for which the Consultant is otherwise responsible.
The insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A" or better in the most recent edition of Best Rating
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category
Class VII or better, imless such requirements are waived by the City Attorney due to unique
circumstances,
42 Indemnification. Consultant agrees to indemnify the City, its officers, agents
and employees against, and will hold and save them and each of them harmless from, any and all
actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors,
omissions or liabilities, including paying any legal costs, attorneys fees, or paying any judgment
(herein "claims or liabilities ") that may be asserted or claimed by any person, fn'm or entity arising
out of or in connection with the performance of the work or services of the Consultant, its agents,
employees, subcontractors, or invitees, provided for herein, or arising from the negligent acts or
omissions of the Consultant hereunder, or arising from the Consultant's negligent performance of or
failure to perform any term, provision covenant or condition of this Agreement, but excluding such
claims or liabilities to the extent caused by the sole negligence or willful misconduct of the City.
25B -27
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this
Agreement shall begin on the Effective Date and continue in full force and effect until December
31, 2015. There is a one -year option to extend this Agreement subject to approval of both parties.
5.2 Termination Prior to Expiration of Term. Either party may terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other
party. Upon receipt of the notice of termination, the Consultant shall immediately cease all work or
services hereunder except as may be specifically approved by the Contract Officer, In the event of
termination by the City, the Consultant shall be entitled to compensation for all services rendered
prior to the effectiveness of the notice of termination and for such additional services specifically
authorized by the Contract Officer and the City shall be entitled to reimbursement for any
compensation paid in excess of the services rendered.
6.0 MISCELLANEOUS
6.1 Covenant Against Discrimination. Consultant covenants that, by and for
itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to ensure that applicants are employed and that
employees are treated during employment without regard to their race, color, creed, religion, sex,
marital status, national origin or ancestry.
6.2 Non - liability of City Off cers and Em llooyees. No officer or employee of the
City shall be personally liable to the Consultant, or any successor in interest, in the event of any
default or breach by the City or for any amount which may become due to the Consultant or to its
successor, or for breach of any obligation of the terms of this Agreement.
6.3 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which affects his financial interest or the
financial interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. The Consultant warrants that it has not
paid or given and will not pay or give any third party any money or other consideration for
obtaining this Agreement.
6.4 Notice, Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid, first -class mail, in the case of the City,
to the City Manager and to the attention of the Contract Officer, Cleric of the Council, City of Santa
Ana, 20 Civic Center Plaza (M -30), P.O. Box 1988, Santa Ana, California 92702 -1988, and in the
case of the Consultant, to the person at the address designated on the execution page of this
Agreement.
6.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of this Agreement or any other rule of construction which might
25B -28
otherwise apply.
6.6 Integration, Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any
and all previous negotiations, arrangements, agreements and understandings, if any, between the
parties, and none shall be used to interpret this Agreement. This Agreement may be amended at
any time by the mutual consent of the parties by an instrument in writing.
6.7 Severabilitv, In the event that part of this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which
are hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder unless the invalid provision is so material that its invalidity deprives either party of the
basic benefit of their bargain or renders this Agreement meaningless.
6.8 Waiver. No delay or omission in the exercise of any right or remedy by a
non - defaulting party on any default shall impair such right or remedy or be construed as a waiver.
A party's consent to or approval of any act by the other party requiring the party's consent or
approval shall not be deemed to waive or render unnecessary the other party's consent to or
approval of any subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other provision of this
Agreement.
6.9 Attome s' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter
proceeds to judgment.
6.10 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized
to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said party is bound,
25B -29
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
ATTEST:
MARIA D. TVJIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
Y
Ey: ) t C c9a -2 C
Lisa Storek
Assistant City Attorney
CITY OF SANTA ANA
DAVID CAVAZOS
City Manager
Chief Executive Officer
Address: 3111 N. Tustin, Suite 230
Orange, Ca 92965
25B -30
EXI3IBIT "A"
SCOPE OF SERVICES
The specific tasks to be performed and completed by Consultant in performing the financial
advisory services are as provided below in this Exhibit "A ". Consultant shall complete all
services under this Agreement within the Term, as described in Section 5, 1,
I. Assist in the selection of appropriate team members, such as underwriter, bond counsel,
and other members of the financing team (depending on method of sale).
2. Prepare fee comparables necessary to negotiate professional service fees.
3. Identify which bond programs may be appropriate, such as Revenue Bonds and
Certificates of Participation (COPS), to name a few.
4. Coordinate review and approval of financing documents with outside State agencies.
5. Evaluate the financing structure, to include debt service schedules; call features; bond
security; flow of funds; sources and uses of finds including costs of issuance;
underwriters discount and original issue discount; investment of bond proceeds; and
estimated positive and negative cash flow to the Client.
6. Assist client staff, underwriters and other financing team members in working with credit
rating agencies and financial institutions, and prepare any presentation materials and
documentation for rating and credit reviews.
7. Preparation of the necessary financial tables for inclusion in the Official Statement.
8. Work with client staff, bond counsel, disclosure counsel, underwriters and other
participants, to review, prepare and advise on information contained in the preliminary
and final official statements, Indenture of Trust, fiscal agent agreement, investment
agreements, and other legal and disclosure documents and materials required to facilitate
the sale of the bonds.
9. Prepare a pre - pricing book and comparable rates and scales to ensure the client is
receiving the best yield in the market.
10. Assist in the final closing of the financing and monitor market conditions including
interest rate "spreads" between various tax - exempt and taxable securities, up until the
actual marketing and pricing of the bonds.
25B -31
EXHIBIT "B"
SCHEDULE OF COMPENSATION
Proposed F.A. Fee Structure
$ 9,000,0013 -
$
5,000,000 =
$22,500
.1'aul0'000
- $
1'000'400 =
$25,000
$ 5.10DUOID
$
10.000;000
$ 26f,00
5,000'000 -
S
10,000,000
$31,5-00
110.000,000
1
115,000'000 =
$ 9'1,500
$ IOM0,000
S
15,000,000 =
S Sum
15,0013,000
$
.211,000.1000
S 3B,500
$15,000,1000
$
210,0100,000 =
543;500
20,0130,0130
$55,50
30,000,000 =
$40,000
$ 20,0100=0
$
30,000,000
49,500
S310100,000
$2'7€
40,00l
$50.500
530,0130,001)
$
410,000,000
555,0010
S 40,000.0ve
s
50,000,000 =
$ 55,6100
$40,000,000
t
50,000,000
$ 310,000
S SO'Doo'noo
$
60,000,000 =
S60,00
$ 50,000,000
$
60,1300000
$ 64.250
$ 60,000,0010
$
70,000,000 in
$ $4,00
$ 3010001004
$
7101000'.000
$1519,10,00
$ 7G,0010,0GO
3
80,000,000 =
$67,500
$ 70.000,000
$
80,000,000
$ 71fi,00
$ MIC100,000,
$
'90.000,000 =
$72,000
S 80,131
$
00,0MIDOO
$75,500
$ 90,000,11300
$100,000,000 =
$ 75,000
$ 90,000,000
$
1100,00,000
$80,000
`Tie RionaGnazu(Moft Rell 19 mUndludad in 0%.
obove ddb
sli An addi
T'I OX00 VAII be : dded 10 the fte lb CoMptina
L14F FbMB4 conwasift RAPDA
mummingiffim
S '1,000,000
S
6,000,000
= $22.500
15,0010,000
S 3G,DM
$ 5,0=1300
$
110,000,000 =
$26,5010
$ 5,000'000
10,000,000 =
$35,00.(2
$ "10,000,000
$
'I i =
$ 3'l'J
$'J
15,1000,1000 =
$40,626
$15,000.,000
$
20.1000,000
= $ 3851100
5'15,000,000
$
20,1300,1300
$45,500
23,1100.0V0
S
'50,000,1001)
$46000
$ 20,000,,000
$
30,000,000 =
$51,250
$ 313,000,000
S
40,00MG0
= $50,500
$ 30,000,000
$
40,0130,000 =
556,000
Si 40,000,00
S
50,0010,0013
$56,500
$40,10OUDID
$
50,000.000
$ 6'1,600
KOMODO
S
60.000,000
SGO'Goo
$ 50,000,000
$
64X0,000
$67,000
30,0013,0130
$
70,000,0130
S 64,001)
$ 00,000,000
$
70,000,000
$72,000
70,000,000
$
60,000,000
$ 151,500
S 70,000,000
811,060,000-
$78,000
80,000,000
90,000,000
$ 712,000
S 80,0013,000
90,000,000
M'i'575
90,000'000
104i,000,000
5 75,000
$ 90,000,000
$
100 000,04,7
= $90,000
$ 11,00,1100
5
5,000,000 =
S27,250
Enterprise Revenue
$'ll
$ 5,000,1300
S
10,000,000 =
$11,500
GOICONI-ease Rel
$12,5010i
$ 10,000,000
$
115,000,000 =
$39,5110
Special Tax
$ 15,000,000
S
20,000,000
$44,50,0
$ 20,000,000
$
X0.000,044
$50,500
i Ill I illM I ,
$30,0013,0013
S
40,000,1300 =
$55,50
$ 40.UDU,OUD
$
160,0130,000
5611,060
CEOIPresidant
$2'7€
S 50,000,000
S
60,000,000 =
S65,00€7
ManagIng Principal
$290
$ 60,000,000
$
70,000,444
$69,500
Prini
$200
$ 70J,0012,000,
$
810,G00,000
F474,000
AsjociaW
$'125
580,000;000
1
90,0100,000 =
$76,000
Anall
1100
$ a0 004:004
5.100,000,000
$ 032,504
Administrative Assistant
SSG
25B-32
PROFESSIONAL SERVICES AGREEMENT WITH
STIFEL FOR UNDERWRITER/PLACEMENT AGENT SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement") is made and entered
into this ___day of April, 2014, by and between the CITY OF SANTA ANA, a charter city and
municipal Corporation organized and existing under the Constitution and laws of the State of
California (herein "City") and Stifel, Nicolaus & Company, Incorporated (herein "Investment
Banker").
NOW, THEREFORE, the parties hereto agree as follows:
1.0 SERVICES OF INVESTMENT BANKER
1.1 Scope of Services. In compliance with all of the terms and conditions of this
Agreement, and subject to the execution of a bond purchase agreement between the City and
Formatted: Font: Times New Roman
Investment Banker containing customary representations, warranties and indemnities, the
Investment Banker shall perform underwriting er or placement agent services in connection with the
2014 Water Revenue Refunding Bonds project (“BondsProject”) Investment Banker warrants
represents that all work and services set forth in the Scope of Services will be performed in a
competent, professional and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City of
Santa Ana and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Investment Banker shall obtain at
its sole cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, the
Investment Banker shall be compensated in accordance with the "Schedule of Compensation"
attached hereto as Exhibit "A" and incorporated herein by this reference.
2.2 InvoicingPayment.As underwriter, the Investment Banker will be
compensated by an underwriting discount which will be set forth in the bond purchase agreement
to be negotiated and entered into in connection with the issuance of the Bonds. As a placement
agent, compensation would be derived in the form of a fee negotiated in connection with the
issuance of the Bonds. Payment or receipt of the underwriting discount or placement agent fee
will be contingent on the closing of the transaction and the amount of the fee or discount may be
based, in whole or in part, on a percentage of the principal amount of the Bonds. Consultant shall
maintain a detailed invoice, in the form approved by City’s Finance Director, describing the tasks
performed and amount charged for each such task. The City shall review the invoice and pay
Consultant the approved charges no later than thirty (30) days following the City Council action
referenced above.
3.0 COORDINATION OF WORK
3.1 Representatives of Investment Banker. James Cervantes and Raul Amezcua
are hereby designated as being the representatives of the Investment Banker authorized to act in its
behalf with respect to the work and services specified herein and make all decisions in connection
therewith.
3.2 Contract Officer. The City Manager of the City of Santa Ana, is hereby
designated as being the representative of the City authorized to act in its behalf with respect to the
work and services specified herein and make all decisions in connection therewith ("Contract
Officer"). The City Manager shall have the right to designate another Contract Officer by providing
written notice to the Investment Banker.
3.3 Prohibition Against Subcontracting or Assignment. Investment Banker shall
not contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the City. Neither this Agreement nor any interest herein may
be assigned or transferred, voluntarily or by operation of law, without the prior written approval of
the City. Any such prohibited assignment or transfer shall be void.
3.4 Independent Contractor/Role Disclosure. Neither the City nor any of its
employees shall have any control over the manner, mode or means by which the Investment Banker,
its agents or employees, perform the services required herein, except as otherwise set forth.
Investment Banker shall perform all services required herein as an independent contractor of the
City and shall remain under only such obligations as are consistent with that role. Investment
Banker shall not at any time or in any manner represent that it or any of its agents or employees are
agents or employees of the City. The Investment Banker is serving as an underwriter or placement
agent and is not a “municipal advisor” or financial advisor as such term is defined by the Securities
Exchange Commission.
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance. The Investment Banker shall procure and maintain, at its sole
cost and expense, in a form and content satisfactory to the City, during the entire term of this
Agreement including any extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance.
Investment Banker shall
maintain commercial general liability insurance which shall include, but not be limited to protection against
claims arising from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Investment Banker’s operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less
than the following: single limit coverage applying to bodily and personal injury, including death resulting
therefrom, and property damage, in the total amount of $1,000,000 per occurrence, and in the aggregate. Such
insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional
insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs
maintained by the City; and (c) contain standard separation of insureds provisions.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for both the
Investment Banker and the City against any loss, claim or damage arising from any injuries
or occupational diseases occurring to any worker employed by or any persons retained by
the Investment Banker in the course of carrying out the work or services contemplated in this
Agreement.
(c) Automotive Insurance. Business automobile liability insurance, or
equivalent form, with a combined single limit of not less than $1,000,000 per occurrence.
Said policy shall include coverage for owned, non-owned, leased and hired cars.
(d) Professional Liability or Error and Omissions Insurance. A policy of
insurance in an amount not less than $1,000,000.00 per claim or as is customary for the work
to performed under this contract with respect to loss arising from the actions of Investment
Banker performing professional services hereunder on behalf of the City.
All of the above policies of insurance shall be primary insurance and shall name the City, its
officers, employees and agents as additional insureds. The insurer shall waive all rights of
subrogation and contribution it may have against the City, its officers, employees and agents and
their respective insurers. All of said policies of insurance shall provide that said insurance may not
be amended or canceled without providing thirty (30) days prior written notice by registered mail to
the City. In the event any of said policies of insurance are canceled, the Investment Banker shall,
prior to the cancellation date, submit new evidence of insurance in conformance with this Section
4.1 to the Contract Officer. No work or services under this Agreement shall commence until the
Investment Banker has provided the City with Certificates of Insurance or appropriate insurance
binders evidencing the above insurance coverages and said Certificates of Insurance or binders are
approved by the City.
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL
THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
The Investment Banker agrees that the provisions of this Section 4.1 shall not be construed
as limiting in any way the extent to which the Investment Banker may be held responsible for the
payment of damages to any persons or property resulting from the Investment Banker's activities or
the activities of any person or persons for which the Investment Banker is otherwise responsible.
The insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A" or better in the most recent edition of Best Rating
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category
Class VII or better, unless such requirements are waived by the City Attorney due to unique
circumstances.
4.2 Indemnification. \[Note: our counsel suggests the following text in lieu of this
Section 4.2:
“Any bond purchase agreement that may be entered into by the City and the Investment Banker
Formatted: Font: Times New Roman
in connection with the Bonds will contain customary indemnification provisions between the
parties as for similar agreements and transactions.”\]
Consultant agrees to indemnify the City, its officers, agents and employees against, and will hold
and save them and each of them harmless from, any and all actions, suits, claims, damages to
persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, including
paying any legal costs, attorneys fees, or paying any judgment (herein "claims or liabilities") that
may be asserted or claimed by any person, firm or entity arising out of or in connection with the
performance of the work or services of the Consultant, its agents, employees, subcontractors, or
invitees, provided for herein, or arising from the negligent acts or omissions of the Consultant
hereunder, or arising from the Consultant's negligent performance of or failure to perform any term,
provision covenant or condition of this Agreement, but excluding such claims or liabilities to the
extent caused by the sole negligence or willful misconduct of the City.
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this
Agreement shall begin on the Effective Date and continue in full force and effect until December 31,
2015. There is a one-year option to extend this Agreement subject to approval of both parties. City
approval to extend may be granted in writing by the City Manager.
5.2 Termination Prior to Expiration of Term. Either party may terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other
party. Upon receipt of the notice of termination, the Investment Banker shall immediately cease all
work or services hereunder except as may be specifically approved by the Contract Officer. In the
event of termination by the City, the Investment Banker shall be entitled to reimbursement for
expenses incurred or compensation for all services rendered prior to the effectiveness of the notice of
termination and for such additional services specifically authorized by the Contract Officer and the
City shall be entitled to reimbursement for any compensation paid in excess of the services rendered.
6.0 MISCELLANEOUS
6.1 Covenant Against Discrimination. Investment Banker covenants that, by and
for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement. Investment Banker shall take affirmative action to ensure that applicants are employed
and that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
6.2 Non-liability of City Officers and Employees. Except for their gross
negligence or willful misconduct, nNo officer or employee of the City shall be personally liable to
the Investment Banker, or any successor in interest, in the event of any default or breach by the City
or for any amount which may become due to the Investment Banker or to its successor, or for breach
of any obligation of the terms of this Agreement.
6.3 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which affects his financial interest or the
financial interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. The Investment Banker represents that it
has not paid or given and will not pay or give any third party any money or other consideration for
obtaining this Agreement.
6.4 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid,certified first-class mail, return receipt
requested, in the case of the City, to the City Manager and to the attention of the Contract Officer,
Clerk of the Council, City of Santa Ana, 20 Civic Center Plaza (M-30), P.O. Box 1988, Santa Ana,
California 92702-1988, and in the case of the Investment Banker, to the person at the address
designated on the execution page of this Agreement.
6.5 Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either party by
reason of the authorship of this Agreement or any other rule of construction which might otherwise
apply.
6.6 Integration; Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any
and all previous negotiations, arrangements, agreements and understandings, if any, between the
parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any
time by the mutual consent of the parties by an instrument in writing.
6.7 Severability. In the event that part of this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which
are hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder unless the invalid provision is so material that its invalidity deprives either party of the
basic benefit of their bargain or renders this Agreement meaningless.
6.8 Waiver. No delay or omission in the exercise of any right or remedy by a
non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A
party's consent to or approval of any act by the other party requiring the party's consent or approval
shall not be deemed to waive or render unnecessary the other party's consent to or approval of any
subsequent act. Any waiver by either party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this Agreement.
6.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter
proceeds to judgment.
6.10 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized
to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said party is bound.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
CITY OF SANTA ANA
ATTEST:
________________________ _________________________
MARIA D. HUIZAR DAVID CAVAZOS
Clerk of the Council City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
INVESTMENT BANKER
By:________________________ Stifel, Nicolaus & Company, Incorporated
By:_________________________
JAMES R. CERVANTES
Managing Director
Address:
th
One Montgomery Street, 35 Floor
San Francisco, CA 94104
EXHIBIT "A"
COMPENSATION
ATTACH FEE PROPOSAL
PROFESSIONAL SERVICES AGREEMENT WITH
STIFEL FOR UNDERWRITER/PLACEMENT AGENT SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement") is made and entered
CITY OF SANTA ANA
into this ___day of April, 2014, by and between the , a charter city and
municipal Corporation organized and existing under the Constitution and laws of the State of
CityInvestment
California (herein "") and Stifel, Nicolaus & Company, Incorporated (herein "
Banker
").
NOW, THEREFORE, the parties hereto agree as follows:
1.0 SERVICES OF INVESTMENT BANKER
1.1 Scope of Services. In compliance with all of the terms and conditions of this
Agreement, and subject to the execution of a bond purchase agreement between the City and
Investment Banker containing customary representations, warranties and indemnities, the
Investment Banker shall perform underwriting or placement agent services in connection with the
2014 Water Revenue Refunding Bonds project (“Bonds”) Investment Banker represents that all
work and services set forth in the Scope of Services will be performed in a competent, professional
and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City of
Santa Ana and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Investment Banker shall obtain at
its sole cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, the
Investment Banker shall be compensated in accordance with the "Schedule of Compensation"
attached hereto as Exhibit "A" and incorporated herein by this reference.
2.2 Payment. As underwriter, the Investment Banker will be compensated by
an underwriting discount which will be set forth in the bond purchase agreement to be negotiated
and entered into in connection with the issuance of the Bonds. As a placement agent,
compensation would be derived in the form of a fee negotiated in connection with the issuance
of the Bonds. Payment or receipt of the underwriting discount or placement agent fee will be
contingent on the closing of the transaction and the amount of the fee or discount may be based,
in whole or in part, on a percentage of the principal amount of the Bonds.
3.0 COORDINATION OF WORK
3.1 Representatives of Investment Banker. James Cervantes and Raul Amezcua
are hereby designated as being the representatives of the Investment Banker authorized to act in its
behalf with respect to the work and services specified herein and make all decisions in connection
therewith.
3.2 Contract Officer. The City Manager of the City of Santa Ana, is hereby
designated as being the representative of the City authorized to act in its behalf with respect to the
work and services specified herein and make all decisions in connection therewith ("Contract
Officer"). The City Manager shall have the right to designate another Contract Officer by providing
written notice to the Investment Banker.
3.3 Prohibition Against Subcontracting or Assignment. Investment Banker shall
not contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the City. Neither this Agreement nor any interest herein may
be assigned or transferred, voluntarily or by operation of law, without the prior written approval of
the City. Any such prohibited assignment or transfer shall be void.
3.4 Independent Contractor/Role Disclosure. Neither the City nor any of its
employees shall have any control over the manner, mode or means by which the Investment Banker,
its agents or employees, perform the services required herein, except as otherwise set forth.
Investment Banker shall perform all services required herein as an independent contractor of the
City and shall remain under only such obligations as are consistent with that role. Investment
Banker shall not at any time or in any manner represent that it or any of its agents or employees are
agents or employees of the City. The Investment Banker is serving as an underwriter or placement
agent and is not a “municipal advisor” or financial advisor as such term is defined by the Securities
Exchange Commission.
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance. The Investment Banker shall procure and maintain, at its sole
cost and expense, in a form and content satisfactory to the City, during the entire term of this
Agreement including any extension thereof, the following policies of insurance:
.
(a)Comprehensive General Liability Insurance
Investment Banker shall
maintain commercial general liability insurance which shall include, but not be limited to protection against
claims arising from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Investment Banker’s operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less
than the following: single limit coverage applying to bodily and personal injury, including death resulting
therefrom, and property damage, in the total amount of $1,000,000 per occurrence, and in the aggregate. Such
insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional
insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs
maintained by the City; and (c) contain standard separation of insureds provisions.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for both the
Investment Banker and the City against any loss, claim or damage arising from any injuries
or occupational diseases occurring to any worker employed by or any persons retained by
the Investment Banker in the course of carrying out the work or services contemplated in this
Agreement.
(c) Automotive Insurance. Business automobile liability insurance, or
equivalent form, with a combined single limit of not less than $1,000,000 per occurrence.
Said policy shall include coverage for owned, non-owned, leased and hired cars.
(d) Professional Liability or Error and Omissions Insurance. A policy of
insurance in an amount not less than $1,000,000.00 per claim or as is customary for the work
to performed under this contract with respect to loss arising from the actions of Investment
Banker performing professional services hereunder on behalf of the City.
All of the above policies of insurance shall be primary insurance and shall name the City, its
officers, employees and agents as additional insureds. The insurer shall waive all rights of
subrogation and contribution it may have against the City, its officers, employees and agents and
their respective insurers. All of said policies of insurance shall provide that said insurance may not
be amended or canceled without providing thirty (30) days prior written notice by registered mail to
the City. In the event any of said policies of insurance are canceled, the Investment Banker shall,
prior to the cancellation date, submit new evidence of insurance in conformance with this Section
4.1 to the Contract Officer. No work or services under this Agreement shall commence until the
Investment Banker has provided the City with Certificates of Insurance or appropriate insurance
binders evidencing the above insurance coverages and said Certificates of Insurance or binders are
approved by the City.
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL
THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
The Investment Banker agrees that the provisions of this Section 4.1 shall not be construed
as limiting in any way the extent to which the Investment Banker may be held responsible for the
payment of damages to any persons or property resulting from the Investment Banker's activities or
the activities of any person or persons for which the Investment Banker is otherwise responsible.
The insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A" or better in the most recent edition of Best Rating
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category
Class VII or better, unless such requirements are waived by the City Attorney due to unique
circumstances.
4.2 Indemnification. Any bond purchase agreement that may be entered into
by the City and the Investment Banker in connection with the Bonds will contain customary
indemnification provisions between the parties as for similar agreements and transactions.
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this
Agreement shall begin on the Effective Date and continue in full force and effect until December 31,
2015. There is a one-year option to extend this Agreement subject to approval of both parties. City
approval to extend may be granted in writing by the City Manager.
5.2 Termination Prior to Expiration of Term. Either party may terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other
party. Upon receipt of the notice of termination, the Investment Banker shall immediately cease all
work or services hereunder except as may be specifically approved by the Contract Officer. In the
event of termination by the City, the Investment Banker shall be entitled to reimbursement for
expenses incurred or compensation for all services rendered prior to the effectiveness of the notice of
termination and for such additional services specifically authorized by the Contract Officer and the
City shall be entitled to reimbursement for any compensation paid in excess of the services rendered.
6.0 MISCELLANEOUS
6.1 Covenant Against Discrimination. Investment Banker covenants that, by and
for itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement. Investment Banker shall take affirmative action to ensure that applicants are employed
and that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin or ancestry.
6.2 Non-liability of City Officers and Employees. Except for their gross
negligence or willful misconduct, no officer or employee of the City shall be personally liable to the
Investment Banker, or any successor in interest, in the event of any default or breach by the City or
for any amount which may become due to the Investment Banker or to its successor, or for breach of
any obligation of the terms of this Agreement.
6.3 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which affects his financial interest or the
financial interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. The Investment Banker represents that it
has not paid or given and will not pay or give any third party any money or other consideration for
obtaining this Agreement.
6.4 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid certified mail, return receipt requested,
in the case of the City, to the City Manager and to the attention of the Contract Officer, Clerk of the
Council, City of Santa Ana, 20 Civic Center Plaza (M-30), P.O. Box 1988, Santa Ana, California
92702-1988, and in the case of the Investment Banker, to the person at the address designated on the
execution page of this Agreement.
6.5 Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either party by
reason of the authorship of this Agreement or any other rule of construction which might otherwise
apply.
6.6 Integration; Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any
and all previous negotiations, arrangements, agreements and understandings, if any, between the
parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any
time by the mutual consent of the parties by an instrument in writing.
6.7 Severability. In the event that part of this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which
are hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder unless the invalid provision is so material that its invalidity deprives either party of the
basic benefit of their bargain or renders this Agreement meaningless.
6.8 Waiver. No delay or omission in the exercise of any right or remedy by a
non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. A
party's consent to or approval of any act by the other party requiring the party's consent or approval
shall not be deemed to waive or render unnecessary the other party's consent to or approval of any
subsequent act. Any waiver by either party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this Agreement.
6.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter
proceeds to judgment.
6.10 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized
to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said party is bound.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
CITY OF SANTA ANA
ATTEST:
________________________ _________________________
MARIA D. HUIZAR DAVID CAVAZOS
Clerk of the Council City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
INVESTMENT BANKER
By:________________________ Stifel, Nicolaus & Company, Incorporated
By:_________________________
JAMES R. CERVANTES
Managing Director
Address:
th
One Montgomery Street, 35 Floor
San Francisco, CA 94104
EXHIBIT "A"
COMPENSATION
ATTACH FEE PROPOSAL