HomeMy WebLinkAboutHarrell & Co. Agreement No. A5548MR -
CONSULTING SERVICES AGREEMENT
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THIS AGREEMENT FOR CONSULTING SERVICES (the "Agreement") is made
and entered into this S' day of 1", 2007, by and between the City of Palm
Springs, a public body, corporate and politic (the "City"), the Community
Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic
("Agency"), and Harrell & Company Advisors, LLC, a financial advisory firm
("Consultant").
RECITALS
A. City and Agency require the services of a financial advisor in the
development of sound and practical financing plans to implement financings that each
undertake from time to time ("Bond Issuance").
B. City and Agency also require the services of a financial advisor to prepare
and disseminate periodic reports required under Securities and Exchange Commission
Rule 15c2-12 and under various trust indentures for previously issued debt ("Annual
Reports").
C. Based on its experience, education, training, and reputation, Consultant is
qualified to provide the necessary services to the City and the Agency and desires to
provide such services.
D. City and Agency desire to retain the services of Consultant.
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained herein, City and Agency agree to retain and do hereby retain Consultant and
Consultant agrees to provide services to the City and Agency as follows:
AGREEMENT
CONSULTANT SERVICES
1.1 Scope of Services. In compliance with all terns and conditions of this
Agreement, Consultant shall perform the work or services set forth in the Scope of
Services attached to this Agreement as Exhibit "A" and incorporated herein by reference
(the "services" or "work"), which includes the agreed upon schedule of fees. Consultant
warrants that all services and work shall be performed in a competent, professional, and
satisfactory manner in accordance with all standards prevalent in the industry. In the
event of any inconsistency between the terms contained in the Scope of Services and
the terms set forth in the main body of this Agreement, the terms set forth in the main
body of this Agreement shall govern.
1.2 Com liance with Law_ All services rendered under this Agreement shall
be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and
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regulations of Agency and any federal, state, or local governmental agency of
competent jurisdiction.
1.3 Licenses and Permits. 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.
1.4 Familiarity with Work. By executing this Agreement, Consultant
warrants that it has carefully considered how the work should be performed and fully
understands the facilities, difficulties, and restrictions attending performance of the work
under this Agreement.
2. TIME FOR COMPLETION.
Consultant shall not be accountable for delays in the progress of its work caused
by any condition beyond its control and without the fault or negligence of Consultant.
Delays shall not entitle Consultant to any additional compensation regardless of the
party responsible for the delay.
3. COMPENSATION OF CONSULTANT
3.1 Compensation of Consultant. For the services rendered pursuant to
this Agreement, Consultant shall be compensated and reimbursed, in accordance with
the schedule of fees set forth in Exhibit T."
3.2 Method of Payment. Consultant submit to Agency in the form approved
by City's Finance Director and Treasurer an invoice for services rendered prior to the
date of the invoice. Payments shall be based on the fees as set forth in Exhibit "B" for
authorized services performed. City and/or Agency shall pay Consultant for all
expenses stated thereon, which are approved by City and/or Agency consistent with this
Agreement, within thirty (30) days of receipt of Consultant's invoice. With respect to
Bond Issuance, payment for fees and expenses as described in Exhibit "B" shall only be
payable from proceeds of any bonds issued, and are contingent on the issuance of such
bonds.
3.3 Changes. In the event any change or changes in the Scope of
Services/Work is requested by City or Agency, the parties hereto shall execute a written
amendment to this Agreement, setting forth with particularity all terms of such
amendment, including, but not limited to, any additional fees. An amendment may be
entered into:
A. To provide for revisions or modifications to documents or other
work product or work when documents or other work product or work is required by the
enactment or revision of law subsequent to the preparation of any documents, other
work product, or work;
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B. To provide for additional services not included in this Agreement or
not customarily furnished in accordance with generally accepted practice in Consultant's
profession.
4. TERM
4.1 Term. The term of this Agreement is a 3 year period commencing
from the date first written above.
5. COORDINATION OF WORK
5.1 Representative of Consultant The following principal of Consultant is
hereby designated as being the principal and representative of Consultant authorized to
act in its behalf with respect to the services and work specified herein and make all
decisions in connection therewith: Suzanne Harrell, Managing Director. It is expressly
understood that the experience, knowledge, education, capability, and reputation of the
foregoing principal is a substantial inducement for City and Agency to enter into this
Agreement. Therefore, the foregoing principal shall be responsible during the term of
this Agreement for directing all activities of Consultant and devoting sufficient time to
personally supervise the services hereunder. The foregoing principal may not be
changed by Consultant without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager and
Agency Executive Director, or his/her designee. It shall be the Consultant's
responsibility to keep the Contract Officer, or his/her designee, fully informed of the
progress of the performance of the services and Consultant shall refer any decisions
that must be made by City or Agency to the Contract Officer. Unless otherwise
specified herein, any approval of City or Agency required hereunder shall mean the
approval of the Contract Officer_
5.3 Prohibition Against Subcontracting or Assignment The experience,
knowledge, education, capability, and reputation of Consultant, its principals and
employees, were a substantial inducement for Agency to enter into this Agreement.
Therefore, Consultant shall not contract with any other individual or entity to perform in
whole or in part the services required hereunder without the express written approval of
City or Agency. In addition, neither this Agreement nor any interest herein may be
assigned or transferred, voluntarily or by operation of law, without the prior written
approval of City or Agency.
5.4 Independent Contractor. Neither City nor Agency nor any of its
employees shall have any control over the manner, mode, or means by which
Consultant, its agents or employees, perform the services required herein, except as
otherwise set forth herein_ Consultant shall perform all services required herein as an
independent contractor of City and Agency and shall not be an employee of City and
Agency and shall remain at all times as to City and Agency a wholly independent
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contractor with only such obligations as are consistent with that role; however, City and
Agency shall have the right to review Consultant's work product, result, and advice.
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 City or Agency.
5.5 Personnel. Consultant shall not alter the assignment of its personnel
without the prior written approval of the Contract Officer. Acting through the City
Manager and Agency Executive director, the City and Agency shall have the
unrestricted right to order the removal of any personnel assigned by Consultant by
providing written notice to Consultant_
B. INSURANCE
Consultant shall procure and maintain, at its sole cost and expense, policies of
insurance as set forth in Exhibit "C", which is attached hereto and is incorporated herein
by reference.
7. INDEMNIFICATION.
To the fullest extent permitted by law, Consultant shall defend (at Consultant's
sole cost and expense), indemnify, protect, and hold harmless City and Agency, its
elected officials, officers, employees, agents, and volunteers (collectively the
"Indemnified Parties"), from and against any and all liabilities, actions, suits, claims,
demands, losses, costs, judgments, arbitration awards, settlements, damages,
demands, orders, penalties, and expenses including legal costs and attorney fees
(collectively "Claims"), including but not limited to Claims arising from injuries to or death
of persons (Consultant's employees included), for damage to property, including
property owned by City or Agency, from any violation of any federal, state, or local law
or ordinance, and from errors and omissions committed by Consultant, its officers,
employees, representatives, and agents, which Claims arise out of or are related to
Consultant's performance under this Agreement, but excluding such Claims arising from
the negligence or willful misconduct of the City or Agency, its elected officials, officers,
employees, agents, and volunteers. Under no circumstances shall the insurance
requirements and limits set forth in this Agreement be construed to limit Consultant's
indemnification obligation or other liability hereunder.
S. RECORDS AND REPORTS
8.1 Reports_ Consultant shall periodically prepare and submit to the Contract
Officer such reports concerning the performance of the services required by this
Agreement as the Contract Officer shall require.
8.2 Records. Consultant shall keep such books and records as shall be
necessary to properly perform the services required by this Agreement and enable the
Contract Officer to evaluate the performance of such services. The Contract Officer
shall have full and free access to such books and records at all reasonable times,
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including the right to inspect, copy, audit, and make records and transcripts from such
records.
8.3 Ownership of Documents. All drawings, specifications, reports, records,
documents, and other materials prepared by Consultant in the performance of this
Agreement shall be the property of Agency and shall be delivered to Agency upon
request of the Contract Officer or upon the termination of this Agreement, and
Consultant shall have no claim for further employment or additional compensation as a
result of the exercise by City or Agency of its full rights or ownership of the documents
and materials hereunder. Consultant may retain copies of such documents for its own
use. Consultant shall have an unrestricted right to use the concepts embodied therein.
8.4 _Release of Documents. All drawings, specifications, reports, records,
documents, and other materials prepared by Consultant in the performance of services
under this Agreement shall not be released publicly without the prior written approval of
the Contract Officer.
8.5 Cost Records. Consultant shall maintain all books, documents, papers,
employee time sheets, accounting records, and other evidence pertaining to costs
incurred while performing under this Agreement and shall make such materials
available at its offices at all reasonable times during the term of this Agreement and for
three (3) years from the date of final payment for inspection by City or Agency and
copies thereof shall be promptly famished to Agency upon request.
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be construed and interpreted both
as to validity and to performance of the parties in accordance with the laws of the State
of California. Legal actions concerning any dispute, claim, or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of
Riverside, State of California, or any other appropriate court in such county, and
Consultant covenants and agrees to submit to the personal jurisdiction of such court in
the event of such action.
9.2 Waiver. No delay or omission in the exercise of any right or remedy of a
non -defaulting party on any default shall impair such right or remedy or be construed as
a waiver. No consent or approval of City or Agency shall be deemed to waive or render
unnecessary City or Agency's consent to or approval of any subsequent act of
Consultant. 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.
9.3 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies
of the parties are cumulative and the exercise by either party of one or more of such
rights or remedies shall not preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other default by the other party.
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9.4 Legal Action. In addition to any other rights or remedies, either party
may take legal action, in law or in equity, to cure, correct, or remedy any default, to
recover damages for any default, to compel speck performance of this Agreement, to
obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the
purposes of this Agreement.
9.5 Termination Prior to Expiration of Term. City and Agency reserve the
right to terminate this Agreement at any time, with or without cause, upon thirty (30)
days written notice to Consultant, except that where termination is due to the fault of
Consultant and constitutes an immediate danger to health, safety, and general welfare,
the period of notice shall be such shorter time as may be determined by the Agency.
Upon receipt of the notice of termination, Consultant shall immediately cease all
services hereunder except such as may be specifically approved by the Contract
Officer. Consultant shall be entitled to compensation for all services rendered prior to
receipt of the notice of termination and for any services authorized by the Contract
Officer thereafter_ Consultant may terminate this Agreement, with or without cause,
upon thirty (30) days written notice to Agency_
10. CITY AND AGENCY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non -Liability of City or Agency Officers and Employees. No officer or
employee of City or Agency shall be personally liable to the Consultant, or any
successor -in -interest, in the event of any default or breach by City or Agency or for any
amount which may become due to the Consultant or its successor, or for breach of any
obligation of the terms of this Agreement.
10.2 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 or segregation in the performance of or in
connection with this Agreement regarding any person or group of persons on account of
race, color, creed, religion, sex, marital status, disability, sexual orientation, national
origin, or ancestry.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, 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 pre -paid, first-class
mail to the address set forth below. Either party may change its address by notifying
the other party of the change of address in writing_ Notice shall be deemed
communicated seventy-two (72) hours from the time of mailing if mailed as provided in
this Section.
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To City: City of Palm Springs
Attention: City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Agency_ Community Redevelopment Agency of
the City of Palm Springs
Attention: Executive Director
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Consultant: Suzanne Harrell, Managing Director
Harrell & Company Advisors, LLC
333 City Boulevard West, Suite 1430
Orange, CA 92868
11.2 Integrated Agreement. This Agreement contains all of the agreements of
the parties and cannot be amended or modified except by written agreement.
11.3 Amendment;. This Agreement may be amended at any time by the
mutual consent of the parties by an instrument in writing.
11.4 Severability. In the event that any one or more of the phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be
declared invalid or unenforceable by valid judgment or decree of a court of competent
jurisdiction, such invalidity or unenforceability shall not affect any of the remaining
phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be
interpreted to cant' out the intent of the parties hereunder.
11.5 Authod . The persons executing this Agreement on behalf of the parties
hereto warrant that they are duly authorized to execute this Agreement on behalf of said
parties and that by so executing this Agreement the parties hereto are formally bound to
the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates stated below.
"CITY"
City of Palm Springs
Date: By:
David H. Ready, J. D.
City Manager
APPROVED BY cay COUNCIL "AGENCY"
a•�• P' Community Redevelopment Agency of the
City of Palm Springs
/ c
Date: 46
David H. Ready, J .D.
Executive Director
ATTEST
B
mes Thompson, j Z j/Zg
City Clerk F
"CONSULTANT"
Harrell & Company Advisors, LLC
Date:. By 5u �an Q. Harrel
Managing Director
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EXHIBIT "A"
CONSULTANT'S
SCOPE OF SERVICES/WORK
■ Bond issuance
1. Financial Assessment. Develop alternative structures for the Bond Issuance for
review and approval by the City or Agency. Size the bond issue, structure those
terms and conditions which most advantageously meet demands or current market
conditions and the City's or Agency's objectives.
2. Prepare Revenue Projections (if required) for inclusion in the Official Statement.
3. Financing Schedule. Develop and monitor the schedule of activities during the
financing to assist the City in meeting agenda deadlines and public notice
requirements.
4. Document Review. Review and comment on all legal documents prepared by the
City's bond counsel to ensure conformance with the proposed financing structure.
5. Disclosure Issues. Provide technical support in defining disclosure issues
necessary to meet GFOA guidelines.
6. Official Statement. Prepare the Preliminary and Final Official Statement to be
used in connection with the offering of the bonds, and in a competitive offering,
prepare the official notice of sale and notice of intention to sell bonds. Arrange for
printing and mailing of the Preliminary Official Statement. Revise the Preliminary
Official Statement for final interest rates and tables related thereto. Arrange for
printing and distribution of Final Official Statement within seven business days
from the sale date.
7. Rating and Insurance Agencies. Submit documentation, conduct negotiations
and attend meetings with rating agencies and bond insurance companies as may
be required.
8. Timing of Sale. Advise the City or Agency of market movements, trends and
developments and make recommendations as to the timing of the sale of the
bonds in relation to market conditions.
9. Pricing (Negotiated Offering). Review the Purchase Contract prepared by the
Underwriter and advise on the proposed pricing by the Underwriter.
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10. Pricing (Competitive Offering). Coordinate the plans of the bid opening, evaluate
the bids submitted, check for mathematical accuracy, advise the City or Agency of
the bids and make a recommendation as to award. Revise cash flows for final
pricing information and order securities for bond defeasance escrow, if required.
11. Bond Closing. Review the proposed arrangements for closing and delivery of the
bonds including certificates and representations of other parties to ensure
certification of information relied upon in the financing.
12. Bond Administration. Advise the City and Agency in administration of the
financing after bond closing.
13.Attendance at Meetings. Attend all meetings of the working group and the City
Council or Agency Board as required.
k Annual Reports
o Continuing Disclosure
1. On an annual basis, prepare the Annual Report required by each
Continuing Disclosure Agreement/Certificate and submit the Annual Report to
the Dissemination Agent, if applicable, or directly to the Repositories.
o Other Reports
2. Prepare the Report of Independent Financial Consultant, if any, required
by the indentures.
3. Prepare any additional reports as requested.
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EXHIBIT B
SCHEDULE OF COMPENSATION
■ Bond Issuance
Fixed fee of $20,000 for a principal amount of Bonds issued up to $2,000,000 principal
amount; an additional $7,500 for each $1,000,000 principal amount of Bonds issued in
excess of $2,000,000 up to $4,000,000; an additional $5,000 for each $1,000,000
principal amount of Bonds issued in excess of $4,000,000 up to $10,000,000; an
additional $2,500 for each $1,000,000 principal amount of Bonds in excess of
$10,000,000 up to $15,000,000; and an additional $1,250 for each $1,000,000 principal
amount of Bonds in excess of $15,000,000, plus all out-of-pocket expenses, payable
upon delivery of the Bonds.
Annual Reports
o Continuing Disclosure
For each Annual Continuing Disclosure Report:
Type of Financing Fee
Tax Allocation $1,200 first issue for a project area
$200 each subsequent issue for project area
General Fund Lease $750 first issue, no charge for each
subsequent issue
Revenue (Enterprise Fund) $1,500 each issue
Special Tax/Assessment $1,500 each issue
Payable upon completion of Annual Report
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■ Reports
Report of Independent Financial Consultant re PFC $1,000.00
Bond Redemption -1998 PFC Bonds
Report of Independent Financial Consultant re PFC $1,000,00
Bond Redemption -2006 PFC Bonds
Preparation of the Payment Schedules —1998 AD 155 No Charge
Bonds
Additional Reports of Independent Financial $500.00-
Consultant $1,000.00
Payable upon completion of Annual Report
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EXHIBIT "C"
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self -Insured Retentions, and
Severability of Interests (Separation of Insureds)
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Insurance
Consultant shall procure and maintain, at its sole cost and expense, and submit
concurrently with its execution of this Agreement, in a form and content satisfactory to
City and Agency, public liability and property damage insurance against all claims for
injuries against persons or damages to property resulting from Consultant's
performance under this Agreement. Consultant shall also carry workers' compensation
insurance in accordance with California workers' compensation laws. Such insurance
shall be kept in full force and effect during the term of this Agreement, including any
extension thereof, and shall not be cancelable without thirty (30) days written notice to
City and Agency of any proposed cancellation. Certificates of insurance evidencing the
foregoing and designating the City and Agency, its elected officials, officers, employees,
agents, and volunteers as additional named insureds by original endorsement shall be
delivered to and approved by City and Agency prior to commencement of services. The
procuring of such insurance and the delivery of policies, certificates, and endorsements
evidencing the same shall not be construed as a limitation of Consultant's obligation to
indemnify City and Agency, its elected officials, officers, agents, employees, and
volunteers.
A. Minimum Scope of Insurance. The minimum amount of insurance
required hereunder shall be as follows:
1. Comprehensive general liability and personal injury with limits of at
least one million dollars ($1,000,000.00) combined single limit coverage per occurrence;
2. Professional liability (errors and omissions) insurance with limits of
at least three million dollars ($3,000,000.00) per occurrence; and,
3. Workers' Compensation insurance in the statutory amount as
required by the State of California and Employer's Liability Insurance with limits of at
least one million dollars $1 million per occurrence.
For any claims related to this Agreement, Consultant's insurance coverage shall
be primary insurance as respects City or Agency and its respective elected officials,
officers, employees, agents, and volunteers. Any insurance or self-insurance
maintained by City or Agency and its respective elected officials, officers, employees,
agents, and volunteers shall be in excess of Consultant's insurance and shall not
contribute with it. For Workers' Compensation and Employer's Liability insurance only,
the insurer shall waive all rights of subrogation and contribution it may have against City
or Agency, its elected officials, officers, employees, agents, and volunteers.
B, Errors and Omissions Coverage_ if Consultant provides claims made
professional liability insurance, Consultant shall also agree in writing either (1) to
purchase tail insurance in the amount required by this Agreement to cover claims made
within three years of the completion of Consultant's services under this Agreement, or
(2) to maintain professional liability insurance coverage with the same carrier, or
equivalent coverage with another company, in the amount required by this Agreement
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for at least three years after completion of Consultant's services under this Agreement.
Consultant shall also be required to provide evidence to City and Agency of the
purchase of the required tail insurance or continuation of the professional liability policy.
C. Sufficiency of Insurers. Insurance required herein shall be provided by
authorized insurers in good standing with the State of California. Coverage shall be
provided by insurers admitted in the State of California with an A.M. Best's Key Rating
of A-, Class VII, or better, unless otherwise acceptable to the City and Agency.
D. Verification of Coverage. Consultant shall furnish City and Agency with
both certificates of insurance and endorsements, including additional insured
endorsements, effecting all of the coverages required by this Agreement. The
certificates and endorsements are to be signed by a person authorized by that insurer to
bind coverage on its behalf. All proof of insurance is to be received and approved by
the City and Agency before work commences. City and Agency reserve the right to
require Consultant's insurers to provide complete, certified copies of all required
insurance policies at any time. Additional insured endorsements are not required for
Errors and Omissions and Workers' Compensation policies.
E. Deductibles and Self -Insured Retentions. Any deductibles or self -
insured retentions must be declared to and approved by the City and Agency. At the
option of the City and Agency, either the insurer shall reduce or eliminate such
deductibles or self -insured retentions as respects the City andAgency, its elected
officials, officers, employees, agents, and volunteers; or, Consultant shall procure a
bond guaranteeing payment of losses and related investigations, claim administration,
and defense expenses.
F. Severability of Interests (Separation of Insureds). This insurance
applies separately to each insured against whom claim is made or suit is brought except
with respect to the limits of the insurer's liability.
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