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HomeMy WebLinkAboutFieldman, Rolapp & Associates; 2007-01-26;AMENDMENT NO. 1 TO AGREEMENT FOR FINANCIAL ADVISORY SERVICES FIELDMAN, ROLAPP & ASSOCIATES This Amendment No. 1 is entered into and effective as of the iin _ day of x 2007, amending the agreement dated January 26, 2007 (the nent") by and between the City of Carlsbad, a municipal corporation, ("City"), and Fieldman, Rolapp & Associates, ("Contractor") (collectively, the "Parties") for independent financial advisory services to be performed in connection with Reassessment District No. 2007-1 (Rancho Carrillo) Limited Obligation Refunding Bonds. RECITALS A. The Parties desire to alter the Agreement's scope of work to include independent financial advisory services to be performed in connection with Reassessment District No. 2007-1 (Rancho Carrillo) Limited Obligation Refunding Bonds; and B. The Parties have negotiated and agreed to an additional scope of work and fee schedule, which is attached to and incorporated by this reference as Attachment "A", Scope of Services and Fees. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, as may have been amended from time to time, Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit "B" on a time and materials basis not-to-exceed thirty two thousand and zero dollars ($32,000). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by January 26, 2008. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. City Attorney Approved Version #05.22.011 CONTRACTOR IBS (sign here) Lawrence G. Re-Lapp, Chairman/CED (print name/title) Lrolapp@fieldnBn.com (e-mail address) (sign here) (print name/title) 7tcieffiaE9@fieldman.can CITY OF CARLSBAD, a municipal corporation of theState of Califc Manager-er Mayor* ATTEST: LORRAINE M. WOOD City Clerk (e-mail address) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President "Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD^. BALL, City Attorney Deputy City Attorney City Attorney Approved Version # 05.22.01 ATTACHMENT "A" SCOPE OF SERVICES AND FEES EXHIBIT "A" SCOPE OF SERVICES Scope of Services A, General Services. The Consultant shall perform all the duties and services specifically set forth herein and shall provide such other services as it deems necessary or advisable, or are reasonable and necessary to accomplish the intent of this Agreement in a manner consistent with the standards and practice of professional financial advisors prevailing at the time such services are rendered to the City. The City may, with the concurrence of Consultant, expand this Agreement to include any additional services not specifically identified within the terms of this Agreement. Any additional services may be described in an addendum to this Exhibit A and are subject to fees described in Exhibit B to this Agreement, B, Debt Issuance Services. The Consultant shall assume primary responsibility for assisting the City in coordinating the planning and execution of each debt issue relating to the Project, insofar as the Consultant is providing Services which are rendered only to the City, the overall coordination of the financing shall be such as to minimize the costs of the transaction coincident with maximizing the City's financing flexibility and capital market access. The Consultant's proposed debt issuance Services may include, but shall not be limited to, the following: • Establish the Financing Objectives • Develop the Financing Schedule • Monitor the Transaction Process • Review the Official Statement, both preliminary and final » Procure and Coordinate Additional Service Providers • Provide Financial Advice to the City Relating to Financing Documents • Compute Sizing and Design Structure of the Debt Issue « Plan and Schedule Rating Agency Presentation and Investor Briefings • Conduct Credit Enhancement Procurement and Evaluation • Conduct Market Analysis and Evaluate Timing of Market Entry • Recommend Award of Debt Issuance • Provide Pre-Closing and Closing Assistance City Attorney Approved Version # 05.22.01 Specifically, Consultant will: I- Establish the Financing Objectives. 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 trie 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 m a timely, efficient and cost-effective manner and will coordinate and monitor the activities of all parties engaged in the financing transaction. 4. Review the Official Statement a. Generally, SEC, MSRB, and GFOA guidelines encourage full disclosure so that potential investors have sufficient data to analyze each proposed financing. Upon direction of the City, the Consultant shall take the lead in review of the official statement for each debt issue relating to the Project to insure that the City's official statement is compiled in a manner consistent with industry standards, typically including the following matters: » Legal Authority for the Financing * Security for the Financing » Restrictions on Additional Financings * Purpose and Funds for which the Financing is Being Issued * Governmental System « Financial Management System » Revenue Sources: Historic, Current and Projected * Outstanding Financings * Planned Future Financings « Labor Relations and Retirement Systems * Economic Base * Annual Financial Statements * Legal Opinions Regarding Tax Exemption * Such Other Matters as the Context May Require, uuy Mnorney approvea version w uo.i^.ui 10- Conduct Market Analysis and Evaluate Timing of Market Entry., The Consultant shall provide regular summaries of current municipal market conditions, trends in the market and how these may favorably or unfavorably affect the City's proposed financing. In the case of a negotiated sale of debt, the Consultant shall peiforrn 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 mix 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 IQ(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-Closina 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 Attorney Approved Version # 05.22.01 EXHIBIT "B" FEES Fees and Expenses Part 1: Fee for Services Financial Advisory Services performed pursuant to Section 1 of this Agreement, and as more fully described in the Scope of Services set forth in Exhibit A, will be billed for at the amounts set forth below: Transaction Size Fees $1 To $20,000,000 $32,000 520,000,001 and above to be negotiated Payment of fees earned by Consultant pursuant to this Part 1 shall be billed monthly at the hourly rates listed below up to a cap of $32,000 assuming bonds are issued by December 31,2007. Part 2: Other Services Unless agreed to otherwise, financial advisory services performed pursuant to Section 2 of this Agreement will be billed at the then current hourly rates. The table below reflects the rates in effect as of the date of execution of this Agreement. Personnel Hourly Kate Executive Officers..... . , , $300,00 Principals ,., , ,..$290.00 Senior Vice President $275.00 Vice Presidents.,.,...,.. $225.00 Assistant Vice President $195.00 Senior Associate , , $150.00 Associate , $125.00 Analyst $85.00 Administrative Assistants .,.$65.00 Clerical J35.00 Expenses Expenses will be billed for separately and will cover, among other things, travel, lodging, subsistence, overnight courier, computer, and fax transmission charges, Advances made on behalf of the City for costs of preparing, electronic posting, printing or distributing disclosure materials or related matter whether by postal services or electronic means, may also be billed through to the City upon prior authorization. Additionally, a surcharge of 6% of the net fee amount is added to verifiable out-of-pocket costs for recovery of costs such as telephone, postage, document reproduction and the like subject to a cap of $2.300. City Attorney Approved Version # 05.22.01 Limiting Terms and Conditions The above fee is based on completion of work orders within six months of the City's authorization to proceed, and assumes that the City will provide all necessary information in a timely manner. The Fee shown above in Part I presumes attendance at up to 8 meetings in the City's offices or such other location within a 25-mile radius of the City place of business as the City may designate. Preparation for, and attendance at City Council meetings on any basis other than "by appointment" may be charged at our normal hourly rates as shown in Part 2, above. Abandonment If, once commenced, the services of the Consultant are terminated prior to completion of our final report for any reason, we are to be reimbursed for professional services and direct expenses incurred up to the time we receive notification of such termination at the standard hourly rates shown in Part 2, subject to a minimum charge of time and expenses incurred to date. City Attorney Approved Version # 05.22.01 AGREEMENT FOR FINANCIAL ADVISORY SERVICES FIELDMAN, ROLAPP & ASSOCIATES THIS AGREEMENT is made and entered into as of the <=j _ day of _ JTi liQfxU . 20£>t7, by and between the CITY OF CARLSBAD, a municipal nation i ( City jfjnd Fielclman, Rolapp & Associates, a Corporation ("Contractor"). RECITALS A. City requires independent financial advisory services to be performed in connection with Assessment District No. 2003-01 (College/Cannon) herein, the "Project." B. Contractor has the necessary experience in providing financial advisory services for assessment district related bond issuances. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A," which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one year from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional one-year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. City Attorney Approved Version #04.01.02 5. COMPENSATION The total not to exceed fee payable for the Services to be performed during the initial Agreement term will be Thirty-Seven Thousand Dollars ($37,000) for each financing up to $20 million transaction size, plus usual and customary out-of-pocket expenses as described in Exhibit "B" and shall not exceed $100,000 for all financing services pursuant to this Agreement. This Agreement shall be amended in writing for any financing project that exceeds $20 million or when multiple financing projects under $20 million will result in fees that exceed $100,000 in the aggregate. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A." Incremental payments, if applicable, should be made as outlined in attached Exhibit "B." 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. City Attorney Approved Version #04.01.02 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability City Attorney Approved Version #04.01.02 limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days' prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, City Attorney Approved Version #04.01.02 and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Lisa Irvine James V. Fabian, CIPFA Finance Director Principal City of Carlsbad Fieldman, Rolapp & Associates 1635 Faraday Avenue 19900 MacArthur Blvd., Ste. 1100 Carlsbad, CA 92008-7314 Irvine, CA 92612 (760) 602-2430 (949) 660-7300 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. City Attorney Approved Version #04.01.02 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days' written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the City Attorney Approved Version #04.01.02 6 total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.. the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. City Attorney Approved Version #04.01.02 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California (print name/title) i'g^ rrn^ ' City Manager ATTEST: LORRAINE M. W City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by con must be attached. If a Corporation. Agreement must be signed by one officer from each of the following two groups. 'Group A. Chairman, President, or Vice-President "Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer 8 City Attorney Approved Version #04.01.02 Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALQ^S^ALL, City Attorney Deputy City Attorney City Attorney Approved Version #04.01.02 EXHIBIT A TO PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR BY AND BETWEEN THE CITY OF CARLSBAD AND FIELDMAN, ROLAPP & ASSOCIATES Scope of Services A. General Services. The Consultant shall perform all the duties and services specifically set forth herein and shall provide such other services as it deems necessary or advisable, or are reasonable and necessary to accomplish the intent of this Agreement in a manner consistent with the standards and practice of professional financial advisors prevailing at the time such services are rendered to the City. The City may, with the concurrence of Consultant, expand this Agreement to include any additional services not specifically identified within the terms of this Agreement. Any additional services may be described in an addendum to this Exhibit A and are subject to fees described in Exhibit B to this Agreement. B. Debt Issuance Services. The Consultant shall assume primary responsibility for assisting the City in coordinating the planning and execution of each debt issue relating to the Project. Insofar as the Consultant is providing Services which are rendered only to the City, the overall coordination of the financing shall be such as to minimize the costs of the transaction coincident with maximizing the City's financing flexibility and capital market access. The Consultant's proposed debt issuance Services may include, but shall not be limited to, the following: • Establish the Financing Objectives • Develop the Financing Schedule • Monitor the Transaction Process • Review the Official Statement, both preliminary and final • Procure and Coordinate Additional Service Providers • Provide Financial Advice to the City Relating to Financing Documents • Compute Sizing and Design Structure of the Debt Issue • Plan and Schedule Rating Agency Presentation and Investor Briefings • Conduct Credit Enhancement Procurement and Evaluation • Conduct Market Analysis and Evaluate Timing of Market Entry • Recommend Award of Debt Issuance • Provide Pre-Closing and Closing Assistance CITY OF CARLSBAD/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 1 Specifically, Consultant will: 1. Establish the Financing Objectives. At the onset of the financing transaction process for the Project, the Consultant shall review the City's financing needs and in conjunction with the City's management, outline the objectives of the financing transaction to be undertaken and its proposed form. Unless previously determined, Consultant shall recommend the method of sale of debt and outline the steps required to achieve efficient market access. 2. Develop the Financing Timetable. The Consultant shall take the lead role in preparing a schedule and detailed description of the interconnected responsibilities of each team member and update this schedule, with refinements, as necessary, as the work progresses. 3. Monitor the Transaction Process. The Consultant shall have primary responsibility for the successful implementation of the financing strategy and timetable that is adopted for each debt issue relating to the Project. The Consultant shall coordinate (and assist, where appropriate) in the preparation of the legal and disclosure documents and shall monitor the progress of all activities leading to the sale of debt. The Consultant shall prepare the timetables and work schedules necessary to achieve this end in a timely, efficient and cost-effective manner and will coordinate and monitor the activities of all parties engaged in the financing transaction. 4. Review the Official Statement a. Generally, SEC, MSRB, and GFOA guidelines encourage full disclosure so that potential investors have sufficient data to analyze each proposed financing. Upon direction of the City, the Consultant shall take the lead in review of the official statement for each debt issue relating to the Project to insure that the City's official statement is compiled in a manner consistent with industry standards, typically including the following matters: • Legal Authority for the Financing • Security for the Financing • Restrictions on Additional Financings • Purpose and Funds for which the Financing is Being Issued • Governmental System • Financial Management System • Revenue Sources: Historic, Current and Projected • Outstanding Financings • Planned Future Financings • Labor Relations and Retirement Systems • Economic Base • Annual Financial Statements • Legal Opinions Regarding Tax Exemption • Such Other Matters as the Context May Require. CITY OF CARLSBAD/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 2 b. The Consultant shall maintain and update the official statement on its word processing system until such time as it is near final and suitable for transfer to the financial printer, in order to minimize the costs of revisions made by the printer. 5. Procure and Coordinate Additional Service Providers. Should the City desire, the Consultant may act as City's representative in procuring the services of financial printers for the official statement and related documents, and for the printing of any securities. In addition, the Consultant may act as the City's representative in procuring the services of trustees, paying agents, fiscal agents, feasibility consultants, redevelopment consultants, or escrow verification agents or other professionals, if the City directs. 6. Provide Financial Advice to the City Relating to Financing Documents. Simultaneous with assisting in the preparation of official statements for each debt issue relating to the Project, the Consultant shall assist the managing underwriters, bond counsel and/or other legal advisors in the drafting of the respective financing resolutions, notices and other legal documents. In this regard, the Consultant shall monitor document preparation for a consistent and accurate presentation of the recommended business terms and financing structure of each debt issue relating to the Project, it being specifically understood however that the Consultant's services shall in no manner be construed as the Consultant engaging in the practice of law. 7. Compute Sizing and Design Structure of Debt Issue. The Consultant shall work with the City's staff to design a financing structure for each debt issue relating to the Project that is consistent with the City's objectives, that coordinates each transaction with outstanding issues and that reflects current conditions in the capital markets. 8. Plan and Schedule Rating Agency Presentation and Investor Briefings. The Consultant shall develop a plan for presenting the financing program to the rating agencies and the investor community. The Consultant shall schedule rating agency visits, if appropriate, to assure the appropriate and most knowledgeable rating agency personnel are available for the presentation and will develop presentation materials and assist the City officials in preparing for the presentations. 9. Conduct Credit Enhancement Evaluation and Procurement. Upon the City's direction, the Consultant will initiate discussions with bond insurers, letter of credit providers and vendors of other forms of credit enhancements to determine the availability of and cost benefit of securing financing credit support. CITY OF CARLSBAD/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 3 10. Conduct Market Analysis and Evaluate Timing of Market Entry. The Consultant shall provide regular summaries of current municipal market conditions, trends in the market and how these may favorably or unfavorably affect the City's proposed financing. 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 mix 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-H)(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 CARLSBAD/FIELDMAN, ROLAPP & ASSOCIATES Exhibit A, Page 4 EXHIBIT B TO FINANCIAL ADVISORY SERVICES AGREEMENT BY AND BETWEEN CITY OF CARLSBAD AND FIELDMAN, ROLAPP & ASSOCIATES Fees and Expenses Parti: Fee for Services Financial Advisory Services performed pursuant to Section 1 of this Agreement, and as more fully described in the Scope of Services set forth in Exhibit A, will be billed for at the amounts set forth below: Transaction Size Fees $1 to $20,000,000 $37,000 $20,000,001 and above to be negotiated Payment of fees earned by Consultant pursuant to this Part 1 shall be billed monthly at the hourly rates listed below up to a cap of $37,000 assuming bonds are issued by December 31, 2007. Part 2: Rates The table below reflects the rates in effect as of the date of execution of this Agreement. Personnel Hourly Rate Executive Officers $300.00 Principals $290.00 Senior Vice President $275.00 Vice Presidents $225.00 Assistant Vice President $195.00 Senior Associate $150.00 Associate $125.00 Analyst $85.00 Administrative Assistants $65.00 Clerical $35.00 Expenses Expenses will be billed for separately and will cover, among other things, travel, lodging, subsistence, overnight courier, computer, and fax transmission charges. Advances made on behalf of the City of costs of preparing, electronic posting, printing or distributing disclosure materials or related matter whether by postal services or electronic means, may also be billed through to the City upon prior authorization. Additionally, a surcharge of 6% of the net fee CITY OF CARLSBAD/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 1 amount is added to verifiable out-of-pocket costs for recovery of costs such as telephone, postage, document reproduction and the like subject to a cap of $2,750. Limiting Terms and Conditions The above fee is based on completion of work orders within six months of the City's authorization to proceed, and assumes that the City will provide all necessary information in a timely manner. The fee shown above in Part 1 presumes attendance at up to 8 meetings in the City's offices or such other location within a 25-mile radius of the City place of business as the City may designate. Preparation for, and attendance at City Council meetings on any basis other than "by appointment" may be charged at our normal hourly rates as shown in Part 2, above. CITY OF CARLSBAD/FIELDMAN, ROLAPP & ASSOCIATES Exhibit B, Page 2