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HomeMy WebLinkAboutHarrell & Co. A5548 Amendment No.3AMENDMENT NO.3 TO CONSULTING SERVICES AGREEMENT Harrell & Company Advisors, LLC This Amendment No. 3 to the Consulting Services Agreement ("Amendment") is made and entered into this 171h day of October, 2018, by and between the City of Palm Springs, California, a California Charter City ("City"), and in its capacity as Successor Agency to the City of Palm Springs Community Redevelopment Agency, and Harrell & Company Advisors, LLC, ("Consultant"). RECITALS A. City and Consultant have entered into a Consulting Services Agreement, as amended, for the services of a financial advisor and Dissemination Agent ("Agreement"). B. City and Consultant are agreeable to modifying certain terms and conditions to the Agreement pursuant to the terms of this Amendment. AGREEMENT In consideration of the promises and covenants contained in this Amendment and other good and valuable consideration, the City and the Consultant agree: SECTION 1. Section 4 of the Agreement (titled "Term"), including all subsequent subsections, is amended to read: 4. TERM 4.1 Term. Unless earlier terminated in accordance with Section 9.5 of this Agreement, this Agreement shall continue in full force and effect for a period of five (5) years ending on October 31, 2023, unless extended by mutual written agreement of the parties. SECTION 2. Exhibit A-1 (titled Scope of Services and Compensation) is terminated and is no longer in effect. All references in the Agreement to Exhibit A-1 are amended to read Exhibit A-2 (titled Scope of Services and Compensation) as attached which defines the amended Scope of Services and Compensation to be performed by the Consultant compensation to be paid to the Consultant and is made part of this Agreement. A new Exhibit B-1 (titled Municipal Advisor Disclosure) is hereby attached and becomes part of this Agreement and both are attached hereto and incorporated herein. SECTION 3. Section 1.5 of the Agreement is hereby amended to read: 1.5 Fiduciary Duty. In connection with the services described herein, certain disclosures are required by the Securities and Exchange Commission and the Municipal Securities Rulemaking Board regarding the Advisor's fiduciary duty to their Consulting Services Agmt. Amend. No. 3 ORIGINAL BID Harrell & Company Advisors, LLC Page 1 of 2 ANDIOR AGREEMENT municipal clients. These disclosures are attached as Exhibit B-1 (titled Municipal Advisor Disclosure). SECTION 4. Section 10.2 of the Agreement is hereby amended to read: 10.2 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any - prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. SECTION 5. City and Consultant agree that the terms of the Agreement, as amended, shall remain unchanged and in full force and effect, except as specifically provided in this Amendment. In witness whereof, City and Consultant have executed and entered into this Amendment as of the date first written above. CITY OF PALM SPRINGS, CONSULTANT A California Charter City Harrell & Company Advisors, LLC David H. Ready, City M nager ATTEST: nrr Consulting Services Agmt. Amend. No, 3 Harrell & Company Advisors, LLC Page 2 of 2 Suza a Harrell, Managing Director APPROVED AS TO FORM: Edward Kotkin, City Atto 0% iA OIIED By CITY COUNCIL . to 17 f5�f� EXHIBIT A-2 SCOPE OF SERVICES AND COMPENSATION Service: Review and analysis of financial documents, financial statements and development proposals Harrell & Company will review and analyze financial documents, financial statements and development proposals. This service will also include attendance at periodic finance committee meetings, review of City monthly financial reports and other financial duties as requested by the City Manager, Assistant City Manager or Finance Director. Harrell & Company will provide such assistance on an as-needed/as-requested basis at a rate of $140 per hour for time spent working on authorized projects. Harrell & Company does not bill for any time spent relating to questions concerning outstanding bonds that arise after issuance or for travel time to the City. Typically, we spend about 10 or more hours a year on bond related questions. Fees will be payable upon receipt of periodic invoices. Service: Preparation of RODS and related Successor Agency financial issues Harrell & Company will prepare annual ROPS and Prior Period Adjustment schedules, and provide any data or follow up materials as requested by the Department of Finance or staff. Harrell & Company will draft required resolutions for review by staff and City Attorney and submit approved documents to the County and Department of Finance as required. Harrell & Company will also review and analyze any Successor Agency financial transactions. Harrell & Company will provide such assistance on an as -needed basis at a rate of $140 per hour. Fees will be payable upon receipt of periodic invoices. Page A-2-1 Service: Preparation and Filing of Annual Continuing Disclosure Reports for outstanding bond issues The Securities and Exchange Commission and the Municipal Securities Rulemaking Board require that the City and its related entities (such as the Successor Agency, and special districts like assessment districts) annually provide ongoing financial disclosure to the bond market. These reports are generally due within 180 to 270 days after the City's fiscal year end. Further, during any year, if a material event should occur (such as a rating change or a bond defeasance), the City must also post notice of such event in a timely manner. Harrell & Company will prepare and file all annual reports and any material event notices so that the City continues to stay in compliance with all the requirements for continuing disclosure for all series of outstanding debt. Harrell & Company will also prepare other reports required by State Law or bond indentures. Harrell & Company proposes the following fees for these services as follows: Preparation and Filing of Annual Report: Tax Allocation $1,200 $200 General Fund Lease $750 Revenue (Enterprise Fund) $1,500 750 Special Tax/Assessment $1,500 first issue for a project area each subsequent issue for project area each issue first issue each subsequent issue for enterprise each issue Preparation and Filing of Material Event Notices: Report of Independent Financial Consultant (Required for PFC Bonds) Report Required by California Debt and Investment Advisory Commission (POB) Annual Debt Transparency Report Required by California Debt and Investment Advisory Commission (for issues after January 1, 2017) Out -of -Pocket expenses (Taxpayer Data for Tax Allocation Bonds) Fees will be payable upon receipt of periodic invoices. Page A-2-2 $25 per notice $750 $500 $750 At cost Service: Financial advisory services in connection with bond issuance Financial Assessment/Financing Plan. Harrell & Company works with staff to develop a plan for each financing. The bond structure is consistent with the City's objectives for any financing, The financing structure developed for the City financing ensures that the credit rating is appropriate for the issue, while raising the required funds; • takes into account financing limitations (such as the 25 year sunset on the Measure J tax and former RDA plan limits); and We analyze the various financing conditions as they arise and advise the City on the advantages and disadvantages to each, if applicable. In connection with lease financing, this includes the selection of City assets to be leased which meet both financial and siesmic qualifications of the rating agency. Revenue Projections. Harrell & Company prepares revenue projections for inclusion in the Official Statement when required (for example, former Redevelopment Agency tax increment). Financing Schedule. Harrell & Company develops and monitors the schedule of activities during the financing to assist the City in meeting agenda deadlines and public notice requirements. Bond Sizing. Harrell & Company prepares all numerical analysis associated with the issuance of the bonds, including preparation of sources and uses and debt service cashflows and refunding analysis. Harrell & Company has the expertise to prepare all numerical analysis in-house. Review Legal Documents. Harrell & Company reviews all legal documents prepared by bond counsel in connection with the issuance of the bonds. Ms. Harrell also prepares staff reports for the bond approval for inclusion in the City's agenda and coordinates with the City Clerk on documentation required to be on file. Terms and Conditions of Sale. The bond issue is structured using terms and conditions which most advantageously meet current market conditions and the objectives of the City. Generally, the financing structure addresses sizing considerations for the proposed debt, the leased assets and, in consultation with the City's bond counsel, any tax law implications. Official Statement. Ms. Harrell prepares the official statement and works closely with staff and the City's disclosure counsel to make sure all relevant financial information is included in the official statement, and will provide for distribution to the underwriter, both in printed and electronic formats. Harrell & Company routinely prepares official statements in-house while many financial advisors do not. This provides the firm with the foundation to prepare the best presentation of financial information that is relevant to investors. This generally goes beyond just the cookie -cutter approach to drafting this document. We believe it is the City's chance to shine, and this includes not only making sure that the legal structure and risks are well documented, but that special and important features of the City's financial operations are highlighted. Page A-2-3 Rating Agency Presentations. Working with staff, Harrell & Company will also determine strategies for submitting the financing to the rating agencies. Ms. Harrell emphasizes the City's operations and management in a comprehensive presentation. A comprehensive presentation that markets both the issuer and the financing by laying out the City's objectives and the security for the bonds, disclosing all positive and negative credit factors, and plans to mitigate any negative factor, is critical to obtaining the highest credit rating. Bond Sale. Ms. Harrell works with the staff to select the time frame for marketing the City's bonds. In the case of a negotiated sale, we: advise the City on the propriety of the underwriter's proposed pricing and compensation relative to the current market conditions; ■ negotiate to provide the lowest available rates and costs to the City; • provide the City with a pricing analysis and comparison of its transaction with other recent sales of comparable credit quality or review and analyze such comparison if provided by the City's underwriter; and • provide quantitative schedules showing the results of the final pricing. In the case of a competitive sale of bonds, Harrell & Company: conducts the public sale, using an internet platform such as IPREOO; • arranges for advertising of the bond sale in nationally prominent financial publications ■ coordinates local publication requirements; and ■ evaluates the bids and recommend the most favorable bid for award. Market Access. Ms. Harrell uses a variety of sources to obtain current market information. This information is critical in timing of the bond sale as well as in negotiating market rates in a negotiated sale. The primary tool used by Ms. Harrell to access current market information is the Thomson Municipal Market Monitor ("TM3" ). TM3 provides real-time data for: Municipal Market Data Index (MMD) Results of Competitive and Negotiated Bond Sales in the Primary Market Municipal Market News Trade Data in the Secondary Market Upcoming Bond Sale Calendar In the pricing phase of a bond issue, we access TM3 for all the recent bond pricings of similar security or credit quality and the MMD Index for the date of the sales. In a negotiated sale, unless otherwise prepared by the underwriter, we will compile all the relevant information and provide a comparison of the proposed rates on the City's financing with all other comparable financings. If such information is prepared by the underwiter, we will analyze for accuracy and make suggestions if appropriate. Because the market changes over time, we focus Page A-2-4 primarily on the spread to MMD proposed for the City's financings compared to the actual spreads on other financings. This ensures that the City is getting a competitive market interest rate for its bonds. TM3 also provides data on upcoming competitive and negotiated bond sales, which are reviewed when scheduling the City's bond sale. Typically, the City's bond sale would be scheduled around any large upcoming sales. Other factors taken into account in scheduling the upcoming bond sale is the April 17ffi deadline for income taxes, since buyers usually are redeeming their investments around that date instead of making new investments. TM3 has a market news and commentary feature as well. This feature provides real-time information on market conditions, federal reserve board actions and calendars, latest economic news releases and other helpful information used in monitoring the market for planning purposes and for up-to-date pricing trends as the bond sale date approaches. Bond Closing. Following the pricing of the bonds, we prepare final cashflows, complete the official statement with the final pricing information, and begin the process of documentation for closing the transaction. This includes reviewing all the closing documents prepared by bond counsel and making sure that any necessary representations are made by parties to the financing. We will also review the arrangement for closing and transfer of funds. Post Issuance Services. Harrell & Company works with the City to fulfill its continuing disclosure responsibilities under the Securities and Exchange Commission Rule 15c2-12 and the use of the MSRB's Electronic Municipal Market Access ("EMMA") system. In addition, periodically the rating agencies review each bond issue for changes in the underlying credit factors. Ms. Harrell assists the City staff in maintaining these rating agency relationships, preparing required updated information as well as getting ready for dialogue with the analysts as the reviews occur. Meetings. Ms. Harrell attends any meetings as requested or required and prepares any presentations necessary for the City Council. Page A-2-5 Harrell & Company proposes the following fees for these services as follows: • A fixed fee of $10,000 for preparation of the preliminary/final official statements for each separately sold and marketed bond issue. • A fixed fee for all other financial advisory services in connection with each series of bond issue separately marketed and sold as follows — Issue Size Fixed Greater Than or Equal To Less Than Fee $0 $5 Million $25,000 $5 Million $10 Million 40,000 $10 Million $15 Million 50,000 $15 Million $25 Million 60,000 $25 Million N/A 75,000 These fees are contingent on the successful sale of bonds and payable from bond proceeds. • Out-of-pocket expenses billed at cost. These fees are also billed at closing. These fees are generally applicable to any type of financing. The total fee including preparation of the official statement will be limited to not more than a total of $70,000 for such issue regardless of the size of the borrowing. Page A-2-6 EXHIBIT B-1 Municipal Advisor Disclosures Harrell & Company Advisors, LLC (Harrell & Co.) is registered as a "municipal advisor" pursuant to Section 15B of the Securities Exchange Act (Act) and rules and regulations adopted by the United States Securities and Exchange Commission (SEC) and the Municipal Securities Rulemaking Board (MSRB). The SEC has approved MSRB Rule G-42 which, among other matters, requires Harrell & Co. to provide the City with information regarding any conflicts of interest that Harrell & Co. may have and with information about where to find Harrell & Co.'s SEC filings on the SEC website. As a Municipal Advisor in connection with services provided under this agreement or any bonds that are issued pursuant to this agreement, Harrell & Co. will owe a fiduciary duty to the City (and its related entities) and will carry out its duties in accordance with such duty. Simply put, this means that Harrell & Co. owes the City both a duty of loyalty and a duty of care and that in performing services that Harrell & Co. may undertake in connection with any bond issue, Harrell & Co. will put the needs of the City ahead of its own. This standard of care is higher than that required of other financial services providers such as underwriters. The fees to be paid by the City to Harrell & Co. for the issuance of bonds are based on the relative size of the transaction and contingent on the successful closing of the financing. Although this form of compensation may be customary, it presents a conflict because Harrell & Co. may have an incentive to recommend unnecessary financings or financings that are disadvantageous to the City. In addition, if facts or circumstances arise that could cause the financing to be delayed or fail to close, Harrell & Co. may have an incentive to discourage a full consideration of such facts and circumstances, or to discourage consideration of alternatives that may result in the cancellation of the financing. Harrell & Co. manages and mitigates this conflict primarily by adherence to the fiduciary duty which Harrell & Co. owes to municipal entities such as the City which require Harrell & Co. to put the interests of the City ahead of its own. Harrell & Co. has determined, after exercising reasonable diligence, that other than described above, that it has no known material conflicts of interest that would impair its ability to provide advice to the City in accordance with its fiduciary duty to municipal entity clients such as the City. To the extent any such material conflicts of interest arise after the date of our engagement Harrell & Co. will inform the City of such conflicts. The City may terminate Harrell & Co.'s services at any time upon written notice. Harrell & Co. may withdraw from its representation as Municipal Advisor upon written notice to the City subject to the fiduciary duty described above which may require it to continue to represent the City until an appropriate replacement is identified which will depend on the status of the transaction. B-1-1 Harrell & Co. is required to disclose to the SEC information regarding criminal actions, regulatory actions, investigations, terminations, judgments, liens, civil judicial actions, customer complaints, arbitrations and civil litigation involving us. Pursuant to MSRB Rule G-42, Harrell & Co. is required to disclose any legal or disciplinary event that is material to the City's evaluation of Harrell & Co. or the integrity of its management or advisory personnel. As reflected in Harrell & Co.'s filings with the SEC, Harrell & Co. has determined that no such event exists. Copies of our filings with the United States Securities and Exchange Commission can currently be found by accessing the SEC's EDGAR system Company Search Page which is currently available at https_//www.sec.gov/edgar/searchedgar/companysearch.html and searching for either "Harrell & Co Advisors" or for our CIK number which is 0001610917. The City's current disclosure counsel (Norton Rose Fulbright LLP) acts as compliance counsel to Harrell & Co. in connection with their general regulatory obligations as a municipal advisor; however, such representation does not include representation with respect to the services to be provided under this agreement or any evaluation or opinion as to whether Harrell & Co. is satisfying or has satisfied any fiduciary duty, fair dealing obligation or suitability analysis with respect to individual transactions or clients. The Act prohibits underwriters from switching from a financial advisory role in developing a financing to an underwriting role. Harrell & Co. is not engaged in underwriting. The MSRB has made available on its website (www.msrb.org) a municipal advisory client brochure that describes the protections that may be provided by MSRB rules and how to file a complaint with the appropriate regulatory authority. B-1-2