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HomeMy WebLinkAbout2013/07/09 Item 12~.~.~-:«E- ~ CITY COUNCLL ~~ ~•~ ~ ~: ~ AGENDA STATEMENT _~r. -~~~~, ~~ili clrvoF '~` CHt1lAVISTA • NLY 9, 2013, Item ~~ ITEM TITLE: RESOLUTION OF THE CITY. COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH THE INVESTMENT BANKING FIRM 'OF DE LA ROSA & CO., INC. TO PROVIDE BOND UNDERWRITING SERVICES ,' _ FOR REFUNDING OF COMMUNITY FACILITIES DISTRICT BONDED DEBT, IF DEEMED ECONOMICALLY . FEASIBLE ' RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH THE INVESTMENT BANKING FIRM OF STIFEL NICOLAUS & CO., INC. TO PROVIDE BOND UNDERWRITING SERVICES FOR REFUNDING OF COMMUNITY FACILITIES DISTRICT BONDED DEBT,. IF DEEMED ECONOMICALLY + FEASIBLE ~irC~ SUBMITTED BY: DIRECTOR OF FINANCE/TREASURER ~i~ REVIEWED BY: CITY MANAGER -~rS•S , ASSISTANT/DEPUTY CITY MANAGER 4/STHS VOTE: YES ~ NO ~X SUMMARY A Request for Proposal (RFP) was issued on April 25, 2013 for' investment banking and bond underwriting services anticipating the possible restructuring of Community Facilities District bonded debt. The RFP closed on May 3, 2013 with four respondents. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed 'the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that entering into an agreement is not a "Project" as defined under Section 15378 of the - State CEQA Guidelines because .it will• not result in a physical change to the environment; therefore, pursuant to Section15060(c)(3) of the State CEQA Guidelines the actions proposed are not subject to CEQA: RECOMMENDATION ' That Council approves the resolutions. 12-1 JULY 9, 2013, Item ~2 Page 2 of 4 e BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION A bond underwriter is a securities dealer who helps government entities bring bond issues to market. The key role it plays is to buy the bonds from the issuer and then resell them to investors. In doing so it assumes a financial risk and thus expects to make a profit on the transaction. The difference between the purchase price paid by the underwriter to the issuer and the price at which the bonds are resold to investors represents the underwriter's profit or discount. The underwriter's discount depends on factors such as the interest rate and accurate pricing of the bonds. If the market rate of interest moves against the underwriter after the sale, the underwriter's profit will be lower than expected. Conversely, if the market rate of interest moves in favor of the underwriter, the underwriter's profit will be higher. On April 25, 2013, the City issued a Request for Proposal (RFP) for bond underwriting services for 'refunding of Community Facilities District bonded debt. The RFP was posted on the Internet on the Planet Bids vvebsites and sent directly to bond underwriting firms inviting them to participate in the process. In total four proposals were received from-national and regional investment banking and bond underwriting firms. The firms that submitted a proposal were De la Rosa & Company, Piper Jaffray, Southwest Securities, and Stifel, Nicolaus & Company. A selection committee composed of the Director of Finance, Assistant Director of Finance and two members from Fieldman Rolapp, the City's financial advisor for land secured financings evaluated the proposals. The four firms were evaluated based on the criteria listed below: • Firm Experience in land secured financings Sales capability, including retail strengths • Marketing strategy • Credit evaluation • Structuring suggestions/ideas • Fees Based on the above criteria De la Rosa & Company (DLR) and Stifel, Nicolaus & Company (Stifel) were selected. An important factor in DLR and Stifel being chosen over the other firms was their aggressive fee proposal that was the lowest ($3.75) and the second lowest ($3.78) respectively per $1,000 of bonds issued. DLR will be considered the senior manager and Stifel will be a co-manager for any proposed refunding. It was decided that two underwriting firms will be needed in order to facilitate the marketing and sales of the refunding bonds due to the size of the proposed financing (approximately $93 million). 12-2 JULY 9, 2013, Item ~2 Page 3 of 4 Additional information follows detailing some of the specifics about each of the frms selected. De La Rosa & Company DLR is a ftrm of substantial capabilities that can add significant value as senior manager on the.City's financings. DLR focuses solely on the California municipal market and has done so during the more than 20 years they have been in business. Their California focus adds value in two ways: 1) DLR bankers and sales professionals are experts in California- specific credits, such as land-secured bonds, and 2) they trade $1 billion in the secondary market every month, meaning sales and underwriting staff are constantly interacting with California-specific investors. Since January 1, 2010, DLR has served as senior and co-manager on 16 land-secured refunding transactions in California totaling $273 million. They have recent experience structuring and selling pooled land-secured bonds similar to the City's proposed refundings, such as tnancings for the City of Murrieta and San Dieguito UHSD. DLR has a proven track record with the City and worked diligently marketing the City's prior bond sales such as the 2010 Certificates of Participation and the 2006 Bayfront Tax Allocation Bonds. Their Los Angeles-based sales & trading desk is one of the few headquartered in Southern California. DLR's sales force covers over 375 institutional and professional retail accounts. Based on their capital position, DLR can underwrite up to $1.1 billion of bonds (depending on maturity) at any given time. Stifel, Nicolaus & Company Since January 2010, the firm has underwritten as senior or sole manager 109 of the 188 land secured bond issues drat have come to market. By par amount underwritten, the figures are $1.5 billion out of $3 billion. Stifel is the one of the few underwriters with a national retail sales force. Since 2001, Stifel's bankers, underwriters and sales professionals have structured, brought to market and found investors for over $1.4 billion of land secured bond issues in San Diego County: Stone and Youngberg, LLC were purchased by Stifel last year. The City has worked with Stone and Youngberg in past years to issue a majority of the City's land secured bonds. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently, the 500-foot rule found in California Code, of Regulations section P8704.2(a)(1) is not applicable to this decision. Staff is not independently aware, nor has staff been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. 12-3 NLY 9, 2013, Item ~Z Page 4 of 4 CURRENT YEAR FISCAL IMPACT There is no direct fiscal impact to the General Fund as a result of the recommended action. The underwriter's fee is estimated at $375,000 in total. The fee is contingent upon the bonds getting issued. All fees to be incurred will be paid solely from the proceeds of each particular transaction and therefore become part of the cost of the bonds issuance. ONGOING FISCAL IMPACT There is no direct fiscal impact to the General Fund as a result of the recommended action. There are no on-going fiscal impacts. ATTACHMENTS De la Rosa & Company Agreement Stifel, Nicolaus & Company Agreement Prepared by: Phillip Davis, Assistant Director, Finance Department 12-4 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL f Dated: AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DE LA ROSA & CO. TOPROVIDE BOND UNDERWRITING SERVICES 12-5 Agreement between City of Chula Vista and Municipal Financing Authority and De La Rosa & Co. To provide Bond Underwriting Services This agreement (Agreement), effective July 9, 2013, is between the City-related entity whose name and business form is indicated on Exhibit A, Paragraph 2, (City), and the entity whose name, business form, place of business and telephone numbers are indicated on Exhibit A, Paragraphs 4 through 6, (Underwriter), and is made with reference to the following facts: RECITALS WHEREAS, the City of Chula Vista issued a Request for Proposal for Bond Underwriting Services on Apri125, 2013, and; WHEREAS, the City received four proposals to the RFP that were reveiwed and ranked by a subcommittee composed of the Director of Finance, Assistant Director of Finance and the City's Financial Advisor, Fieldman Rolapp and Associates, and; WHEREAS, De La Rosa & Co. was selected as the sucessful proposal, and, WHEREAS, De La Rosa & Co. will be the lead banker to provide bond underwriting services for the anticipated refunding of several Community Facilities Districts, and; WHEREAS, Underwriter warrants and represents that it is experienced and staffed in a manner such that it can deliver the services required of Underwriter to City in accordance with the time frames and the terms and conditions of this Agreement. [End of Recitals. Next Page Starts Obligatory Provisions.] Page 1 Two Party Agreement Between the Qty ojChuia Vista and EJ Dela Rasaand Cam v to Provide Band Uiade 'ti ~ S rvic SaFinancialtPttiHBOnds~Bond Undenvrite[RFF~FJ DeInROSa Agreement 2013 -DLA Reviewed Ageemert.doc OBLIGATORY PROVISIONS PAGES NOW, THEREFORE, for valuable consideration the City and Underwriter do hereby mutually agree as follows: All of the Recitals above are incorporated into this Agreement by this reference. ARTICLE I. CONSULTANT'S OBLIGATIONS A. General . 1. General Duties. Underwriter shall perform all of the services described on Exhibit A, Paragraph 7 (General Duties).- 2. Scope of Work and Schedule. In performing and delivering the General Duties, " . Underwriter shall also perform the services, and deliver to City the "Deliverables" described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according" to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the essence of this agreement. The General Duties and the work and Deliverables required in the Scope of Work and Schedule shall be referred to as the "Defined Services." Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate this Agreement. a. Reductions in Scope of Work. City may independently, or upon request from- Underwriter, from time to time, reduce the Defined Services to be performed by the Underwriter under this Agreement. Upon doing so, City and Underwriter agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction. b. Additional Services. In addition to performing the Defined Services, City may require Underwriter to perform additional underwriting services related to the Defined Services (Additional Services), and upon doing so. in writing, if they are ' within the scope of services offered by Underwriter, Underwriter shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in.. Exhibit A, Paragraph 10(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid`monthly as billed. 3. Standard of Care. The_Underwriter expressly warrants that the work to be performed pursuant to this Agreement, whether Deftned Services or Additional Services, shall be performed in accordance with the standard of care ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. a. No Waiver of Standard of Care. Where approval by City is required, it is understood to be conceptual approval only and does not relieve the Underwriter of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Underwriter or its subcontractors. Page 2 Two Patty Agreement Between the Cify of Chula Vesta and EJ OelaEJ Ros~ fo R~ovide Bond Undenvritlnz Services ~]iFinanc7aN'hi116onds~BOVd Underwntec RFP~7 DelaRosa Agrzment 2073 -DLR Reviewed AgeementAoc _ B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Underwriter must comply with the federal or state law and implementing regulations. No provision of this Agreement requires the Underwriter to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance: If compliance with any provision'of this Agreement violates or would require the Underwriter to violate any law, the Underwriter agrees to notify City immediately in writing. Should this occur, the City and the Underwriter agree that they will make appropriate arrangements to proceed with or, if necessary, amend or terminate this Agreement, or portions of it, expeditiously. 1. Subcontractors. Underwriter agrees to take appropriate measures necessaryto•ensure that all participants utilized by the Underwriter to complete its obligations under this Agreement, such as subcontractors, comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or focal, affecting Project implementation. In addition, if a subcontractor is expected to fulfill any responsibilities of the 'Underwriter under this Agreement, the Underwriter shall ensure that the 'subcontractor carries out the Underwriter's responsibilities as set forth in this Agreement. C: Insurance 1. General. Underwriter must procure and maintain, during the period of performance of this Agreement, and for twelve months after completion, policies of insurance from insurance companies to protect against claims for injuries to persons or damages to' property that may arise from or in connection-with the performance of the work under this Agreement" and the results of that work by the Underwriter,' his agents, representatives, employees or subcontractors, and provide documentation of same prior to commencement of work. 2. Minimum Scone of Insurance. Coverage must be at least as broad as: a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). c. -WC. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Underwriter's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability.' 3. ~ Minimum Limits of Insurance. Underwriter must maintain limits no less than those included in the table below: ,~, , . , . ~r~ Page 3 75vo Party Agreeme,at Between !ke City of C/eu[a (~dsfa and EJ~Spsaend Cpn na !p provide Bond CJndenvritinn S - s I:1FvmaaciaMlultBovdslBond Uudecwnter RFP~r]DelaRosa A~eement 2013 -DLLR Reviewed Ageeme'ot.doc i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, - (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products, and the general aggregate limit must apply separately to this completed Project/location or the general aggregate limit must be twice the operations, as required occurrence limit. a hcable) ii: Automobile, $1,00.0,000 per accident for bodily injury, including death, and' Liability: property damage. iii. Workers' Statutory Compensation $1,000,000 each accident E'mployer's $1,000,000 disease-policy limit Liability: $1,000,000 disease-each employee iv. Professional $1,000,000 each occurrence Liability or Errors & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must ° be decl'azed to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Underwriter will provide a financial guarantee satisfactory to the City guaranteeing ,payment of losses and related investigations,'claim administration, and defense expenses. 5. Other Insurance Provisions. -The general liability, automobile liability, ahd, where appropriate, the worker's compensation policies aze to contain; or be endorsed to contain, ' the following provisions: a.Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned,- leased, hired or borrowed by or on behalf of the Underwriter, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Underwriter, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the Underwriter's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement - _ must not exclude Products/Completed Operations coverage, b. Primary Insurance. The Underwriter"s General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers., Any insurance or self-insurance maiptained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the Page 4 Twa Parry ^lgreemeset Between the City ofChu[a Vista ared EJ De[ sa nd Corn an to P vide B rzd Clndenvritin2 Services . $\Fuiancial\Pliil\Bands\Bond Undervvnter RFP\EI DcIaRosa Agennen[2013 -DLR Reviewed Agreemencdoc Underwriter and in no way relieves the Underwriter from its responsibility to provide insurance. ' c. Cancellation. The insurance policies required by this Agreement shall not be canceled by either party, except after thirty days' prior written notice to the City by certified mail, return receipt requested. The words "will endeavor" and "but failure to mail such notice .shall impose no obligation or liability. of any kind upon the company, its agents; or representatives" shall be deleted from all certificates. d. Active Negligence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Waiver of Subrogation. Underwriter's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: a. Retro Date. The "Retro Date" must be shown, and must be before the. date of the ' Agreement or the beginning of the work required by the Agreement b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the work required by the Agreement. c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of the Agreement, the Underwriter must purchase "extended reporting" coverage for a minimum of five years after completion of the work required by the Agreement. ~ d. Copies. A copy of the claims reporting requirements must be submitted to the City for review. 7. Acceptability of Insurers.. Insurance is to be placed with licensed insurers admitted to transact business in the State of California' with a current A.M. Best's rating of no less ` than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of-Eligible Surplus Lines Insurers (LESLI) witha current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically'rated. 8. Verification of Goveraee. Underwriter shall furnish the City with original certificates and amendatory endorsements effecting coverage required by Section LC. of this Agreement. The endorsements should be on insurance industry forms, provided those Page. 5 Two Party Agreement Between tlae City ajCludaVista and EJ Dela,Ros¢ and Con~parw to Provide Bond Underw 'C Se s - Jirinancial~Phil~eond+9ond Underwriter AF%EJ IJeIaROSa Ageement 2013 -DLR Reviewed Ageemen[doc ' endorsements or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified, copies of all required insurance policies, including endorsements evidencing the coverage required by . these specifications. 9. Subcontractors. Underwriter must include all subconsultants as insureds under its policies or furnish separate certificates and endorsements ,for each subconsultant. All coverage for subconsultants is subject to all of the requirements included in these specificatiors. 10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed-to limit the Underwriter's obligations under this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Underwriter to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Underwriter shall provide to the City a performance bond, in the amount indicated at Exhibit A, Paragraph 18, in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, http://www.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified. copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required. Form-must be satisfactory to the Risk Manager or City. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Underwriter to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then - Underwriter shall provide to the City an irrevocable letter of credit callable by the City at its unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Underwriter is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in'a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit," in Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Underwriter to provide security other than a Performance Bond or a, Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Underwriter shall provide to the City such Page 6 Pvo Petry Agreement Between [lee City ofChnla ~s7a and EJD a as td Conz any [a Provide Bond Undenvrihne Services t\Financial\Phil\Bonds'\Bovd UnderwriYe~ RFP\EJ DeIaAOSa A~eemen[ 2013 - DLA Reviewed Av eemevGdoc other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E.. Business License. Underwriter agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A. Consultation and Cooperation. City shall regularly consult the Underwriter for the purpose of reviewing the progress of the Defined Services and Schedule, and to provide direction and guidance to achieve the objectives of this Agreement. The City shall allow Underwriter access to its office facilities, files and records, as deemed' necessary and appropriate by the City, throughout the term of this Agreement. In addition, City agrees to provide the materials identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of those materials beyond thirty days after authorization to proceed, shall constitute a basis for the justifiable delay in the Underwriter's performance. B. Compensation. Following Receipt of Billing. Upon receipt of a properly prepared bill from Underwriter, submitted to the City as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, oh the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Underwriter for all services rendered by Underwriter according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Underwriter for out of pocket expenses as provided in Exhibit A, Paragraph'11. Supporting Information. Any billing submitted by Underwriter shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Exclusions. In determining the amount of the compensation City will exclude any cost: 1) incurred prior to the effective date of this Agreement; or 2) arising out ofor related to the errors, omissions, negligence or acts of willful misconduct of the Underwriter, its agents, employees, or subcontractors. a. Errors and Omissions. In the event that the City Administrator determines that the Underwriter's negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Underwriter shall reimburse Ciry for any additional expenses incurred by the City. Nothing in this Page 7 Twa Party Agreement Between tke City ofCGula Vista arsd EJDela.Rosa crud Conrna fo Provide Bond Undern~ritin S s 7'\Financial\Phil\Bonds\BOnd Underwriter RFP\E7 DelaROSa Ageement?013 -DLR Reviewed AgreemenLdoc paragraph is intended to limit City's rights under other provisions _ of this Agreement. 4. Payment Not Final Approval. The Underwriter understands and agrees that payment to the Underwriter for any Project cost does. not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and, does not constitute a waiver of any violation of Underwriter of the terms of the Agreement. The Underwriter acknowledges that City will not make a final determination, about the eligibility of any cost until the final payment has been made on the Project or the results of an audit of the Project, requested by the City has been completed, whichever occurs - latest. If City determines that the Underwriter is not entitled to receive any portion of the compensation due orpaid, City will notify the Underwriter in writing, stating its reasons. The. Underwriter agrees that Project closeout will not alter the Underwriter's responsibility to return.any funds due City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout .alter the-right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. a. Underwriter's Obligation to Pay. Upon notification to the Underwriter that specific amounts are owed to City, whether for excess payments or disallowed costs, the Underwriter agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Underwriter 1. Underwriter is Designated as an FPPCFiler. If Underwriter is~designated on Exhibit A, Paragraph 14, as an `'FPPC filer," Underwriter is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, .and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph .14 of Exhibit A, or if none are specified, then as determined by the City Attome'y. 2. No Participation in Decision. Regardless of whether Underwriter is designated as an FPPC Filer, Underwriter shall not make, or participate in making or in any way attempt to use Underwriter's position to influence a governmental decision in which Underwriter knows or has reason to know Underwriter has a financial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. _ Regardless of whether Underwriter is designated as an FPPC Filer, Underwriter warrants and represents that Underwriter has _ diligently conducted a search and inventory of Underwriter's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Underwriter does not, to the,best of Underwriter's knowledge, Page 8 Two PaKy,Ao Bement Between the Ctty of Cha(a Vlsta mtd EJ De os d Com ~anv to P'o -d B ~ d (IndenvriHne Services 7AFinn¢da1~Plul~Bonds~Bond Undervvritu RFP\El DelaRosa Ay2mnev[2013 -DLR Reviewed Agreement doc have an economic interest which would conflict with Underwriter's duties under this Agreement. 4. Promise Not to Acquire Conflicting Interests. Regardless of whether Underwriter is designated as ' an FPPC Filer, Underwriter further warrants and represents that Underwriter will not acquire, obtain, or'assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act: 5. Duty to Advise of Conflictin¢ Interests. Regardless of whether Underwriter is designated as an FPPC Filer, Underwriter further warrants and represents that Underwriter will immediately advise the City Attorney if Underwriter learns of an economic interest of Underwriter's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6. Specific Warranties A¢ainst Economic Interests. Underwriter warrants, represents and agrees that: a. Neither Underwriter, rior Underwriter's immediate family members, nor Underwriter's employees or agents (Underwriter Associates) presently have any interest; directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, (Prohibited Interest), other than as listed in Exhibit A, Pazagraph 14. b. No promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Underwriter or Underwriter Associates in connection with Underwriter's performance of this,Agreement. Underwriter promises to advise City of any such promise that may be made durhig the Term of this Agreement, or for twelve months thereafter. c. Underwriter Associates'shall not acquire any such Prohibited Interest within the Tenn of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. d. Underwriter may not conduct or solicit any business for any party to this Agreement, or for any third party that may be in conflict with Underwriter's responsibilities under this Agreement, except with the written permission of City. IV. LIQUIDATED DAMAGES A; Application of Section.' The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Pazagraph 13. 1. Estimatin Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting Page 9 Two Party Agreement Between t/te City ojC/tula Vista and EJ Dela.Rosa and Comnanv to Provide Bond L'ndenvritino S c J:~Pinancial~Plill~BOnds~Bond Undertvriter RFP~El DelaRoea Agreement 2073 DLRLR Review~doc from delay in perfomlance. The parties have used theirjudgment to arrive at a reasonable amount to compensate for delay. 2. Amount of Penalty.. Failure. to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Underwriter shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 13 (Liquidated Damages Rate). 3. Request for Extension of Time. If the performance of any act required of Underwriter is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, Height embargoes, or other causes beyond the reasonable control of the Underwriter, as determined by the City, Underwriter shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay, In the event Underwriter claims the existence of such a delay, the Underwriter shall notify the City's Contract Administrator, or designee, in writing of that fact within ten calendar days after the beginning of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. ARTICLE V. INDEMNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. General Requirement. Except for liability for Design Professional Services covered under Article V., Section A.2., Underwriter shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Underwriter, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, .damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence, active negligence or willful misconduct of the City, its officers, employees. Also covered is liability aiising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Underwriter, its employees, agents or officers, or any third party. 2. Design Professional Services. If Underwriter provides design professional services, as defined by California Civil Code section 2782.5, as may be amended from time to time, Underwriter shall defend, indemnify and hold the City, its officials, officers, employees, . volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or Page 10 Two PAtry Agreement Between Nxe City nfChula Vista attd EJDe as apd Cumpattv to P vide Bond Undenvritine Sewices J.APlvancix~PlulABondsVBond Underwriter RFP~Fl DelaRosa.46rzeemem 2013 -DLA Reviewed Agreementdoc persons, including wrongful death, in any manner arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Underwriter, its officials, officers, employees, agents, consultants, and contractors arising out of or in connection with the performance of Underwriter's" services. Underwriter's duty : to defend, indemnify, and hold harmless shall not include any claims or liabilities arising from the sole negligence; active negligence or willful misconduct of the City, its agents, officers or employees: This section in no way alters, affects or modifies the Underwriter's obligations and duties under this Agreement. 3. Costs of Defense and Award. Included in the obligations in Sections A.1 and A.2, above, is the Underwriter's obligation to defend, at Underwriter's own cost, expense .and .risk, any and all suits, actions or other legal proceedings, that-may be brought or instituted against the City, its directors; officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections A.1. and A.2. Underwriter~shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers,-employees, agents and/or volunteers, for any and all related legal expenses and costs incurred by each of them, subject to the limitations in Sections A.1. and A.2. 4. Insurance Proceeds. Underwriter's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Underwriter's obligations under Article V shall not be limited by any prior or subsequent declaration by the Underwriter. 6. Enforcement Costs. Underwriter agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Underwriter's obligations under Article V shall survive the termination of this Agreement, ARTICLE VI. TERMINATION OF AGREEMENT A. Termination for Cause. If, through any cause, Underwriter shall fail to fulfill in a timely and proper manner Underwriter's obligations under this Agreement, or if Underwriter shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate Yhis Agreement by giving written notice to Underwriter of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents; data, studies, surveys, drawings, maps, reports and other materials prepared by Underwriter shall, at the option of the City, become the property of the City, and Underwriter shall be entitled to receive just and equitable compensation, in an amount riot to exceed that payable under this Agreement and less any damages caused City by Underwriter's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination. Page 11 Two Parry Agreentend Between 1lte City ojChu[a Vista and EJ De a os d Com anv to Provide Bond Gndenvr'Y e Se J9Financial~Phil~Bonds~Hond Undetwn[er RFP~FS DelaRosa Ageemen[2013 -DLR Reviewed AgreemenCdoc B. Termination of Agreement for Convenience of City. City may terminate this Agreement at airy time and for any reason, by giving specific written. notice to Underwriter of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event; all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Underwriter shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Underwriter hereby ..expressly waives any and all _ claims for damages or compensation arising under this Agreement except as set forth in this section. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Underwriter agrees to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may require. B. Access to Records of Underwriter and Subcontractors. The Underwriter agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C. Project Closeout. The Underwriter agrees that Project closeout does not alter the reporting and record, retention requirements of this Agreement. ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by City, Underwriter agrees to submit a final certification of Project expenses and audit reports, as applicable. B. Audit of Underwriters. Underwriter agrees to perform financial and compliance audits the City may require. The Underwriter also agrees to obtain any other audits required by City. Underwriter agrees that Project closeout will not alter Underwriter's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Underwriter that City has closed the Project, and either forwards the final payment or acknowledges that the Underwriter has remitted the proper refund. The Underwriter agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE IX. MISCELLANEOUS PROVISIONS Page 12 r5vo Party Agreement Between the City of Chula Vista and EJ De os d Com an to Provide Bond Uadenvritino Services J:\Financial\Phil\Bonds\Bond Underwriter RFP\EJ DelaRosa Ayeemen[ 2011 - DLR Reviewed A~eemevtdoc A. Assignability. The services of Underwriter are personal to the City, and Underwriter shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. 1. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subconsultants identified as "Permitted subconsultants." B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, forms, designs,' plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Underwriter in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or propertiesproduced under this Agreement. C. Independent Contractor. City is interested only in the results obtained ahd Underwriter shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Underwriter's work products. Underwriter and any of the Underwriter's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal. income tax, social security tax or any other payroll tax, and Underwriter shall be solely responsible for the payment of same and shall hold the City harmless with regard to them. 1. Actions on Behalf of City. Except as City may specify in writing, Underwriter shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. Underwriter shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, Underwriter agrees and shall require that its agents, employees, subcontractors agree that City shall not be responsible for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that City may have concurred in or approved any solicitation, subagreement, or third party contract at any tier, City shall have no obligation or liability to any person or entity not a party to this Agreement. Page 13 Two Party Agreement Between N:e City ojChu[a Vista and EJD os d Com ~anv fo Provide Bond G'ndenvritin S ce J.~Financial~Plill~Sonds`9ond Undervvnter RFP~EJ DelaROSa Agreemen[2013 -DLR Reoiewed Agreementdoc D. Administrative Claims Requirements and Procedures. No suit or.arbitration shall be brought arising out of this Agreement, against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance, with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth :..herein, and such policies and procedures used by City in the implementation of same. Upori request by City, Underwriter shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. E. Administration of Contract. Each party designates the individuals (Contract Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator who is authorized by the party to represent it in the routine administration of this Agreement. F. Term. This Agreement shall terminate when the parties have complied with all executory provisions hereof. - G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The `'prevailing party'' shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of Costs. In the event that Underwriter prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Underwriter shall include, or cause the inclusion of, in the report or document, a statement of .the numtiers and cost in dollar amounts of all contracts and subcontracts relating to the . preparation of the report or document. I. Underwriter is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Underwriter and/or its principals is/are licensed with the State of California or some other state as a real estate broker or salesperson. Otherwise, Underwriter represents that neither Underwriter, nor its principals are licensed real estate brokers or salespersons._ J. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the designated parties. K. Integration. This Agreement, together with any, other written document referred to or contemplated in it, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision of it may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought Page 14 Two Party Agreement Benueeu t/te Clg+ ofC/zu/a Vista and £ DelnPoa'aaiuL ConxUmav to P v'd Bond CJndenro'rttine Services ]:~Finan~ial~Phil~BondsU3ond Uadexwnrer [2FISEJ DeIaRosa Agreement 2013 -DLA Reviewed AgeemevLdoc I:'. Capacity of Parties. Each signatory and party to this Agreement warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all necessary resolutions or other actions have been taken so as to enable it to enter into this Agreement. M. Governing Law/Venue: This Agreement shall be governed by and construed in accordance -~ with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance under it, shall be the City of Chula Vista. - (End of page. Next page is signature page.) Page 1~ Two Party Agreement Behveen the Ciry ofC/m!a Vista and EJDe1c~Ros~Comnonv to Provide Band Undenvrit ~ e S ~ee J9Finavcial~Phil~BOnds~BOnd Undertvriter AFP`,El DelaROSa Agreement 2013 -DLR Reviewed Agreemert.doc Signature-Page to Agreement behveen , • City of Chula Vista and Municipal Financing Authority and De LaRosa & Co., , - To Provide Bond Underwriting:Services • 1N WITNESS WHEREOF; City and. Underwriter have .executed this Ae Bement, indicating thatthey have read and understood same, and indicateaheu full and complete consent to its terms: City of Chula Vista By: Mayor Attest: Donna Noms, City Clerk, Approved as to farni: ` Glen R. Googins, City Attoiiiey E',J. Die L-a~RosCa & Co., Inc By: ~ ~~-' > ~ ~ Ranl Amezcua Principal, Head of Investment Banking ExhibitList to Ab Bement: Exhibit A Page 16 Twa Parry Agreemenf Benveea[he Ciry nfClur/a-19sffiand FJ De16Rasa mrd CanoarrvioP 'd~R nd UnderrvririneSrrdires C:\USerskamezcua`ArypData\Locah~ticroseR\Mindows\Temporary intemet FilestgContegnt(TttlatkVNBURI~SFJ De75ROSaAOecment?Oli-ULR Reviewed AE-Teemevi.doc'. .... -. 1 L-G~ Exhibit A to Agreement between City of Chula Vista and Municipal Financing Authority and De La Rosa & Co. 1. Effective Date: The Agreement shall take effect upon full execution of the Agreement, as of the effective date stated on page 1 of the Agreement. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California (X) The Chula Vista Municipal Financing Authority, a - OThe Chula Vista Industrial Development Authority, a OOther: (city) 3. Place of Business for City and Municipal Financing Authority: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Underwriter: E. J. De la Rosa and Company 5. Business Form of Underwriter: OSole Proprietorship ( )Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Underwriter: 10866 Wilshire Blvd, Suite 1650 Los Angeles, CA 90024 Phone: (310) 207-1975 FAX: (310) 207-1995 7. General Duties: a [insert business form] Page 17 Two Parry Agreement Between rite City of CGula Vista and EJ DeJ~q d Camnmrv to Provide Bond Undenvritin~ Services 7\Financial~PlvltBOndsiBovd Uodewnter RFP~EI DelaRosa Agreement?013 -DLR ReLviewed Agreementdoc To provide bond underwriting services and related duties for an anticipated. refunding of six Community Facilities Districts in the City of Chula Vista. 8. Scope of Work and Schedule: A. Detailed Scope of Work: De LaRosa & Co. (DLR) shall work with City staff and City's Financial Advisor to develop a the bond structure for refunding bonds of the six Community Facilities Districts that are commonly known as: CFD 06-I Improvement Area A, CFD 2001-2, CFD 08-I, CFD 07-I, CFD 06-I Improvement Area B, and CFD 2001-1 Improvement Area B. 2. DLR shall review and comment on the preliminary and final official statements 3. DLR shall assist the City in preparing materials for review by the credit rating agencies; bond insurance companies and investors as appropriate 4. DLR shall conduct such bond marketing activities as the City and DLR agree are necessary or desirable in marketing for the bond issuance 5. DLR shall assist in the preparation and documentation necessary to timely close each bond issue and shall timely deliver the necessary fund to purchase each bond issue in accordance with the terms of the respective bond purchase agreements 6. DLR shall meet with the City at its request to discuss economic, environmental, or financial or other conditions affecting the successful marketing and closing of the refmding B.~ Date for Commencement of Underwriter Services: (X) Same as Effective Date of Agreement OOther: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. I Deliverable No. 2: Deliverable No. 3: D. Date for completion of all Underwriter services: December 31, 2013. 9. Materials Required.to be Supplied by City to Underwriter: 10. Compensation: Page 18 Twa Party Agreement Between die Cify afChu[a f~ista and EJD os d Com am to P ~d B d U denvritin¢ Services J'financialAPh~lVBovds~Bond^ndervvri~er RF7?~EJ DelaRosa Ap'ee~nev[2013-DLR Reviewed Agreemen[doc A. (X) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Underwriter as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: Not to exceed 1.0 percent of the par amount of the bond issuance, payable upon closing of the bond sale. Milestone or Event or Deliverable Amount or Percent of Fixed Fee () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the,City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Underwriter shall have represented in writing that said percentage of completion of the phase has been performed by the Underwriter. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. OPhased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Underwriter as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Underwriter shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Underwriter as to said Phase. Phase 1. 2. 3. Fee for Said Phase Page 19 7Yvo Parry Agreen¢ent BelWeen Uee City of Chula Vista mrd EJ D ~ g.~osg and CowOanV to Prav(de Bond Unden Yn~ S - es IiFi~unsial~PUil~BondsiBond Underwn[er RFNti7 DelaRosa Agreemen[20li -DLR Reviewed A~eementdoc O 1. Ihterim Monthly Advances. The City shall make interim monthly .advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has-been paid. Any payments made hereunder shall be .considered- as interest free loans that must be .returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit , against the' compensation due for that phase. The retention amount or percentage set forth in Paragraph 18 is to be applied to each interim payment~such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim. advance payment be made unless the Underwriter shall have represented in writing that said percentage of completion of the phase has been performed by the Underwriter. The practice of making interim monthly advances, shall not convert this agreement to a time and materials basis. of payment. C. OHourly Rate Arrangement For performance of the Defined Services by Underwriter as herein required, City shall pay .;Underwriter for the productive hours of time spent by Underwriter in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) ONot-to-Exceed Limitation on Time and Materials Arrangement - Notwithstanding the expenditure by Underwriter of time and materials in excess of . said Maximum Compensation amount, Underwriter agrees that Underwriter will perfoim all of the Defined Services herein required of Underwriter for $ including all Materials, and other "reimbursables" (Maximum Compensation) (2) OLimitation without Further Authorization on Time and Materials Arrangement- At such time as Underwriter shall have incurred time and materials equal to $ (Authorization Limit), Underwriter shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude, Underwriter from providing additional Services at Underwriter's own cost and expense. See Exhibit B for wage rates. ( ):Hourly rates may increase by 6% for services rendered after [month]; 20, if delay in providing services is caused by City. 1.1. Materials'Reimbursement Arrangement .Page 20 Tivo Party A~reenvent Between the City of Chula Vista and EI D~ ~ as d Com am to Provide Bond Ondenvritln¢ Services - I:\Financial\Plul\BondsR3ond Unde~wri[e~RFP\F]DelaRosa Ayreement2°73 -DLR Roviewed A~eemen[doc For the cost of out of pocket expenses incurred by Underwriter in the performance of services herein required, City shall pay Underwriter at the~rates or amounts set forth below: (X) 'None, the compensation includes all costs. O Reports, not t'o exceed $ ( ) ~ Copies,not to exceed $ . , () ~, Travel, not to exceed $ () Printing, not to exceed $ O Postage, not to exceed $ ~O Delivery, not to exceed $ O Outside Services: (.) Other Actual Identifiable Direct Costs: not to exceed $ not to exceed $ 12. Contract Administrators: City: Phillip 'Davis, Assistant Finance Director Underwriter: Raul Amezcua, Principal E. J. De la Rosa and Company 13. Liquidated Damages Rate: () $ per day. (X) Other: None ' Cost or Rate $ ' 14. Statement of Economic' Interests, Underwriter Reporting Categories, per Conflict of Interest Code (Chula Vista Municipal Code chapter 2.02): (X) Not Applicable. Not an FPPC Filer. O FPPC Filer ()Category No. I. Investments, sources of income and business interests. OCategory No. 2. Interests in real property. OCategory No. 3. Investments, business positions, interests in real' property, and sources of income subject to the regulatory, permit or licensing authority of the department administering this Agreement. Page 21 75vo Pnrty Agreement Between the City of Chula Pita and EJ De os d Com anv to Provide Bond Unde 't o Se 'c s I:~Finanoial~Phil~Bovds~Bovd Uvderwdter RFPIEJ DelaRosa Ageemevt 20]3 - DLR Retiewed Agreement.doc O Category No. 4. Investments and business positions in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. OCategory No. 5. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the City of Chula Vista or the City's Redevelopment Agency to provide services, supplies, materials, machinery or equipment. O Category No. 6. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the department administering this Agreement to provide services, supplies, materials, machinery or equipment. {)List Underwriter Associates interests in real property within 2 radial miles of Project Property, if any: 15. OUnderwriter is Real Estate Broker and/or Salesman 16. Permitted Sub-underwriters: None 17. Bill Processing: A. Underwriter's Billing to be submitted for the following period of time: OMonthly OQuarterly (X) Other: Upon closing of bond sale B. Day of the Period for submission of Underwriter's Billing: O First of the Month O 15th Day of each Month OEnd of the Month OOther: Page 22 Two Pnrty dgreen:en[ Between die Cify of Chula Vista and EI De ~ $~ Con~panv to Provide.Dond Ur~de~wrifuxe Services I1FinancialiPhfliBOVdeA6ond Undacwn[er RFPIEJ DelaRosa A~¢eement 2013 - DLA Reviewed Ag'eeme¢Gdoc C. City's Account Number: Various 18. Security for Performance Performance Bond, $ Letter of Credit; $_ )Other Security: Type: _ Amount: Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Underwriter sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: Retention Percentage: Retention Amount: $_ Retention Release Event: ( )Completion of All Underwriter Services ( )Other: OOther: The Retention Amount maybe released on a monthly basis provided that Underwriter has performed said monthly services to the sole satisfaction of the Assistant City Manager/Director of Development Services or his designee. 19. Exceptions. The provisions of Article I, Section C (Insurance) and Article I, Section E shall not apply to this Agreement. Notwithstanding this exception, the Underwriter represents that it carries E&O Insurance in excess of the minimum amount required in Article I, Section C. Page 23 Two P¢rry A~reemem Between tGe City ojClmla ~s1a ¢nd EJ De a os d Cam an to Provide Band G'ndenvritinP S s J:~FinwcSal~PIril~Bovds~Bovd Uvdecwrite~RFP~rI DelaRosa AgeemeM 2013 -DLR ReNewed Ageemevt.dac THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL Dated: AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND STIFEL, NICOLAUS & COMPANY, INC: TO PROVIDE BOND UNDERWRITING SERVICES 12-29 Agreement'between City of Chula Vista and Municipal Financing Authority and Stifel, Nicolaus & Company, Inc. To provide Bond Underwriting Services This agreement (Agreement), effective July 9, 2013, is between the City-related entity whose name and business form is indicated on Exhibit A, Paragraph 2, (City), and the entity whose name, business form, place of business and telephone numbers are indicated on Exhibit A, Paragraphs 4 through 6, (Underwriter), and is made with reference to the following facts: RECITALS WHEREAS, the City of Chula Vista issued a Request for Proposal for Bond Underwriting Services on Apri125, 2013, and; - - WHEREAS, the City received four proposals to the RFP that were reveiwed and ranked by a subcommittee composed of the Director of Finance, Assistant Director of Finance and the City's Financial Advisor, Fieldman Rolapp and Associates, and; WHEREAS, Stifel, Nicolaus & Company, Inc. was selected as one of the sucessful proposals, and, WHEREAS, Stifel, Nicolaus & Company, Inc. will be the Co-Manager to provide bond underwirting services for. the anticipated refunding of several Community Facilities Districts, and; WHEREAS, Underwriter warrants and represents that. it is experienced and staffed in a manner such that it can deliver the services required of Underwriter to City in accordance with the time frames and the terms and conditions of this Agreement. [End of Recitals. Next Page Starts Obligatory Provisions.] Page Two P¢rty A,/eemeut Between t/te Ciry ajChula Vista mrd StiTe~trt{sund Con_D_ _ many I_to Provide Bond Undenvrilin S ices J:~Financial\Plul\Bands\BOnd Underwriter RFP\Stifel Ag'eemen[2013-Final VersiortdoJJc OBLIGATORY PROVISIONS PAGES ,NOW, THEREFORE, for valuable consideration the City and Underwriter do hereby mutually agree as follows: All of the Recitals above are incorporated into this Agreement by this reference. ARTICLE I. UNDERWRITER'S OBLIGATIONS A. General General buties. Underwriter shall perform all of the services described on Exhibit A, Paragraph 7 (General Duties). 2. Scope of Work and Schedule. In performing and delivering the General Duties, Underwriter shall also perform the services, and deliver to City the "Deliverables" described in Exhibit A, Paragraph 8, entitled "Scope of Work and Schedule," according to, and within the time frames set forth in Exhibit A, Paragraph 8, time being of the essence of this agreement. The General Duties and the work and Deliverables required in the Scope of Work and Schedule shall be referred to as the "Defined Services." Failure to complete the Defined Services by the times indicated does not, except at the option of the City, terminate. this Agreement. a. Reductions in Scope of Work City may independently, or upon request from Underwriter, from time to time, reduce the Defined Services to be performed by the Underwriter under this Agreement. Upon doing so, City and Underwriter agree to meet in good faith and, confer for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction. b. Additional Services. In addition to performing the Defined Services, City may require Underwriter to perform additional consulting ser--vices related to the Defined Services (Additional Services), and upon doing so in writing, if they are within the scope of services offered by Underwriter, Underwriter shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 10(C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. - 3. Standard of Care. The Underwriter expressly warrants that the work to be performed pursuant to this- Agreement, whether Defined Services or Additional Services, shall be performed in accordance with the standard of care ordinarily exercised by members of the profession,currently practicing under similar conditions and in similar locations. a. No Waiver of Standard of Care. Where approval by City is required, it is-understood to be conceptual approval only and does not relieve the Underwriter of responsibility for complying with all laws, codes, industry standards; and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Underwriter omits subcontractors. Page 2 Ttao Parry Agreen¢en! Behueea the 6ty of Gyula !'ista and Sti el V"al nd Com anv. bva In P 'd B d Unde»m~-tine Services T\Fiuanoial\Plill\Bonda\Bond Underwater RFP\SfiFel AEyeemen[ 2073 -Final Vetsion.doc B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the Underwriter must comply with the federal or state law and implementing regulations. No provision of this Agreement requires the Underwriter to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of federal, state, territorial, or local law, regulation, or ordinance. If compliance with any provision of this Agreement violates or would require the Underwriter to violate any law, the Underwriter agrees to notify City immediately in writing. Should this occur, the City and the Underwriter agree that they will make appropriate arrangements to proceed with or, if necessary, amend or terminate this Agreement, or portions of it, expeditiously. 1. Subcontractors. Underwriter agrees to take appropriate measures necessary to ensure that all participants utilized by the Underwriter to complete its obligations under this Agreement, such as' subcontractors, comply with all applicable laws, regulations, ordinances; and policies, whether federal, state, or local, affecting Project implementation. In addition, if a subcontractor is' expected to fulfill any responsibilities of the Underwriter under this Agreement, the Underwriter shall ensure •that the subcontractor carries out the Underwriter"s responsibilities as set forth in this Agreement. 4. C. Insurance 1. General. Underwriter must procure and maintain, during the period of performance of this Agreement, and for twelve months after completion, policies of insurance from insurance companies to' protect against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under this Agreement and the results of that work by the Underwriter, his agents, representatives, employees or subcontractors, and provide documentation of same prior to commencement of work. 2. Minimum Scone of Insurance. Coverage must beat least as broad as: a. CGL. Insurance Services Office Commercial General Liability coverage (occurrence Form CG0001). b. Auto. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). c. WC. Workers' Compensation insurance as required by'the State of California and Employer's Liability Insurance. d. E&O. Professional Liability or Errors & Omissions Liability insurance appropriate to the Underwriter's profession. Architects' and Engineers' coverage is to be endorsed to include contractual liability. - 3. Minimum Limits of Insurance. Underwriter must maintain limits no less than those included in the table below: Page 3 77uo Parry,Agreement Between Hie Ciry ojClauta Plsta and Sti eLNico u7rr,¢nd Coto Provide Band (Jnden ~t Se s ]:\Financial\P6i1\Bands\Bond Underwriter 2FirSdfel Ageemen[ 2013 -Final Version.doc i. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, (Including (including death), and property damage. If Commercial General operations, Liability insurance with a general aggregate limit is used, either products and .the general aggregate limit must apply separately to this completed ~ Project/location or the general aggregate limit must be twice the operations, as required occurrence limit. ap]icable) ii. Automobile $1,000,000 per accident for bodily injury, including death, and Liability: property damage. iii. Workers' Statutory ' Compensation $1,000,000 each accident - Employer's $1;000,000 disease-policy limit ' Liability: $1,000,000 disease-each employee iv. Professional $1;000,000 each occurrence " Liability or Errors ~ ~ ' & Omissions Liability: 4. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer will reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Underwriter will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim admiziistration, and defense expenses. 5. Other Insurance Provisions. The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: a, Additional Insureds. City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional`insureds with respect to all policies of insurance, including those with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Underwriter, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Underwriter, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured coverage must be provided in the form of an endorsement to the Underwriter's insurance using ISO CG 2010 (11/85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. b. Primary Insurance. The Underwriter's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self=insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the Page 4 Pwo Party Agreement Between the City of Ckula Vista and St'/el`~gnd CO/RDanV. [ne to Provide Bond Under-wrin'no Services J:\Financial\Plul\Bonds\Bond Underwi'ite~E2FPVStiCel Ageeinent2013-Final Version.doc OO Underwriter and in no way relieves the Underwriter from its responsibility to provide insurance. ` . ; o. Cancellation. The insurance'policies required by this Agreement shall not be canceled by either party, except after thirty days' prior written notice to the City by certified mail, return receipt requested. The words "will endeavor" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents,. or representatives" shall be deleted from all certificates. d. Active Negligence. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insureds in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. e. Waiver of Subrogation. Underwriter's insurer will. provide a Waiver of Subrogation in favor of the City for each required policy providing coverage for the term required by this Agreement. , 6. Claims Forms. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: a. .Retro Date. The "Retro Date" must be shown, and must be before the date of the Agreement or the beginning of the work required by the Agreement. b. Maintenance and Evidence. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the work required by the .Agreement. c. Cancellation. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of the Agreement, the Underwriter must purchase "extended reporting" coverage for a .minimum of five years after completion of the work required by the Agreement. d. Copies. A copy of the claims reporting requirements must be submitted to the City . for review. 7. Accentability of Insurers. Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers (LESLI) with a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. 8. Verification of Coverage. Underwriter shall furnish the City with original certificates and amendatory .endorsements effecting coverage required by Section LC. of this Agreement. The endorsements should be on insurance industry forms, provided those Page 5 Two Party Agreement Be(ween the City ojGtula !/ist¢ and Sti eC~V~ s pnd Com t I rto Provide Bond CJnderwritin~ Services 71FinanciaQPhil~E3onds~Bond Underwri[u RFP\Stif'eI Agreement 2013 - Finel Version.doc r endorsements or policies conform to the requirements of this Agreement. All certificates and endorsements are to be received and approved by the City before work commences: The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 9. Subcohtractors. Underwriter must include all subunderwriters as insureds under its policies or furnish separate certificates and endorsements for each subunderwriter. All coverage for subunderwriters is subject to all of the requirements included in these specifications. 10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not be construed to limit the Underwriter's obligations under this Agreement, including Indemnity. D. Security for Performance 1. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for Underwriter to provide a Performance Bond (indicated by a check mark in the ` parenthetical space ,immediately preceding the subparagraph entitled "Performance Bond"), then Underwriter shall provide to the City a performance bond, in the amount indicated at Exhibit A, Paragraph 18, in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California; listed as approved by the United States Department of Treasury Circular 570, htta://www.fins.treas.QOV/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the Agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise - by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds fox the limits so required. Form must be satisfactory to the Risk Manager or City. 2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for Underwriter to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding ~ the subparagraph entitled "Letter of Credit"), then Underwriter shall provide to the City an irrevocable letter of credit callable by th'e City at its unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Underwriter is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit," in Exhibit A, Paragraph 18. 3. Other Security. In the event that Exhibit A, at Paragraph 18, indicates the need for Underwriter to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately prece`ding~ the subparagraph entitled "Other Security"), then Underwriter shall provide to the City such Page 6 75vo Party Agreement Be[ween tke City nfC/rule Vista aad Sti el. V' of Jnd Cam an -Inc. to Provide Bond Undenvritin~ Services J'\Fivsvcial\Phil\Bovds\BOVd Uvdenvritec ftFP\SNfel A ffeemev[?0 U -Final Versiov.doo other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. E.' Business License. Underwriter agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ARTICLE II. CITY OBLIGATIONS A: Consultation and Cooperation. City shall regularly consult the Underwriter for the purpose of reviewing the progress of the Defined Services and Schedule, and to provide direction and guidance to achieve the objectives of this Agreement.. The City shall allow Underwriter access to its office facilities, files and records, as deemed necessary and appropriate by the City, throughout the term of this'Agreement. In addition, City agrees to provide the materials identified at Exhibit A, Paragraph 9, with the understanding that delay in the provision of those materials beyond thirty days after authorization to proceed, shall constitute a basis for the justifiable delay in the Underwriter's performance. B. Gompensation. 1. Following Receipt of Billine. Upon receipt of a properly prepared bill from Underwriter, submitted to the City as indicated in Exhibit A, Paragraph 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Underwriter for alt services rendered by Underwriter according to the terms and conditions set forth in Exhibit A, Paragraph 10, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in Paragraph 18 of Exhibit A, and shall compensate Underwriter for out of pocket expenses as• provided in Exhibit A;Paragraph 11: 2. Supporting Information. Any billing submitted by Underwriter shall contain sufficient information as to the propriety of the billing, including properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature of the charges to the Project in order to permit the City to evaluate that the amount due and payable is proper, and such billing shall specifically contain the City's account number indicated on Exhibit A, Paragraph 17(C) to be charged upon making such payment. 3. Exclusions. In determining the amount of the compensation City will exclude any cost: 1) incurred prior to the effective date of this Agreement; or 2) azising out of or related to the errors, omissions, negligence or acts of willful. misconduct of the Underwriter, its agents, employees, or subcontractors. a. Errors and Omissions. In the event that the City Administrator determines that the Underwriter's negligence, errors, or omissions in the performance of work - under this Agreement has resulted in expense Yo City greater than would have resulted if there were no such negligence, errors, omissions, Underwriter shall reimburse City for any additional expenses incurred by the City. Nothing in this Page 7 Two Parry Agreement Between the City oJChu/a !/u!a and Sti e1 ~V'i alm nd Com anv. Inc. to Provide Bond Ondenvritin S s 71FuiavciaRPlil]~Bonds~BOnd Unden+~riter RFP~StiFel Ageement 2013 -Final Version doc paragraph is intended to limit City's rights under other provisions of this Agreement. 4: Payment Not Final Approval. The Underwriter understands and agrees that payment to the Underwriter for any Project cost does not constitute a City final decision about whether that cost is allowable and eligible for payment under the Project and does not constitute a waiver of any violation of Underwriter of the terms of the Agreement.. The Underwriter acknowledges that City will not make a final determination atiout the eligibility of any cost until the firial payment has been made on the Project or the results of an audit of the Project requested by the City has been completed, whichever occurs latest. If City determines that the Underwriter is not entitled to receive any portion ~of the compensation due or paid, City will notify the Underwriter in writing, stating its reasons. The Underwriter agrees ,that Project .closeout will not alter the Underwriter's responsibility to return any funds due"City as a result of later refunds, corrections, or other similar transactions; nor will Project closeout alter the-right of City to disallow costs and recover funds provided for the Project on the basis of a later audit or other review. a. Underwriter's Obligation to Pay. Upon notification to the Underwriter thaf specific , amounts are owed to City, whether for excess payments or disallowed costs, the Underwriter agrees to remit to City promptly the amounts owed, including applicable interest. ARTICLE III. ETHICS A. Financial Interests of Underwriter 1. Underwriter is Designated as an FPPC Eiler. If Underwriter is designated on Exhibit A, Paragraph 14, as an "FPPC filer," Underwriter is deemed to be a "Underwriter" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 14 of Exhibit A, or if none are specified, then as determined by the City Attorney. 2. No Participation in Decision. Regazdless of whether Underwriter is designated as an FPPC Filer, Underwriter shall not make, or participate in making or in any way attempt to use Underwriter's position to influence a governmental decision in whigh.Underwriter knows or has reason to know Underwriter has a financial interest other than the compensation promised by this Agreement. 3. Search to Determine Economic Interests. Regardless of whether Underwriter is designated as an FPPC Filer, Underwriter warrants and represents that. Underwriter has diligently conducted a search and inventory of Underwriter's economic interests; as the ferni is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Underwriter does not, to the best of Underwriter's knowledge, Page 8 - - 75va Party Agreemeirt Between the Ciry of Chula ~sfa mrt[ S~ife~cyjs-and Corn nn .Inc- [a P' 'de Bond Undenar-Rne Services l:\Fivancial\P6il\Bonds\Bond Ovdelwntu RFPVStikl Ageemen[2013-Final Version doc have an economic interest which would conflict with Underwriter's duties under this Agreement. 4: Promise Not to Acquire Conflicting Interests. Regazdless of whether Underwriter is designated as an FPPC Filer,, Underwriter further warrants and represents that Underwriter will not acquire, obtain; or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. - 5. Duty'to Advise of Conflictin¢ Interests. Regardless of whether Underwriter is designated as an FPPC Filer, Underwriter further warrants and represents that Underwriter will immediately advise the City Attorney if Underwriter learns of an economic interest of Underwriter's that may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6. Specific Warranties Against Economic Interests. Underwriter wanants, represents and agrees that: a. Neither Underwriter, nor.Underwriter's immediate family members,mor Underwriter's employees or agents (Underwriter Associates) presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, (Prohibited Interest), other than as listed in Exhibit A, Paragraph 14. b. No promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Underwriter or Underwriter Associates in connection with Underwriter's performance of this Agreement. Underwriter promises to advise .City of any such promise that may be made during the Term of this Agreement, of for twelve months thereafter. a Underwriter Associates shall not acquire any such Prohibited Interest within the Tenn of this Agreement, or for twelve months after the expiration of this Agreement, except with the written permission of City. d. Underwriter may not conductor solicit any business for any party to this Agreement, or for any third party that may be in conflict with Underwriter's responsibilities under this Agreement, except with the written permission of City. IV. LIQUIDATED DAMAGES A: Application of Section. The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 1. Estimatine Damages. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting Page 9 Two Parry Agreement between the City oJC7eu[a f~ista and Sti eL N' ola nd Corn an :Inc. do Provide Bond Unde Tn~ S 2es J:iFinancial~PlilQBunds~Bond Undervmter RFP\Stifel A~eement 2013 -Final Version.dw from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. 2. Amount of Penalty. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the Underwriter shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph. l3 (Liquidated Damages Rate). 3. Request for Extension of Time. If the performance of any act required of Underwriter is directly prevented or delayed by reason of strikes, lockouts, labor disputes, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Underwriter, as determined by the City-, Underwriter shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event Underwriter claims the existence of such a delay, the Underwriter shall notify the City's Contract Administrator, or designee, in writing of that fact within ten calendar days after the beginning'of any such claimed delay. Extensions of time will not be granted for delays to minor portions of work unless it cv7 be shown that such delays did or will delay the progress of the work. ARTICLE V. INDEMNIFICATION A. Defense, Indemnity, and Hold Harmless. 1. Gerieral Requirement. Except for liability for Design Professional Services covered under Article V., Section A.2., Underwriter shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers, agents and employees, from and against any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions; negligence, or willful misconduct of Underwriter, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Defined Services or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence, active negligence or willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by fhe active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Underwriter, its employees, agents or officers, or any third party. 2. Design Professional Services.. If Underwriter provides design professional services, as defined by California Civil Code section 2782.5, as may be amended from time to time, Underwriter shall defend, indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or Page 10 Two Parry Agreennent 8enveen Use 6ry ofGtula Vista and Sti e[ Ni ola nd Compd. /ne to Provide Bond Undenvht(ne Servires 1.`rinazioial~Phil~Bonds~Bovd Undecwn[e~RFP~Sti[el Ageemen[2073-Final Ve~iov_doe persons, including wrongful death, in any manner arising' out of; pertaining to, or relating to the negligence, recklessness, or willful misconduct of Underwriter, its 'officials, officers, employees, agents, underwriters, and contractors arising out of or in connection with the performance of Underwriter's services. Underwriter's .duty to defend, indemnify, and hold harmless shall not include any claims or liabilities azising from the sole negligence, active negligence or willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Underwriter's obligations and duties under this Agreement. 3. Costs of Defense and Award. Included in the obligations in Sections A.1 and A.2, above, is the Underwriter's obligation to 'defend, at Underwriter's own cost, expense and risk, any and all suits, actions or other legal proceedings, that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers, subject to the limitations in Sections A.1. and A.2. Underwriter shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all related legal expenses and costs incurred by each of them, subject to the limitations in Sections A.1. and A.2. 4. Insurance Proceeds. Underwriter's obligation to indemnify ~ shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. 5. Declarations. Underwriter's obligations under Article V shall not be limited by any prior or subsequent declaration by the Underwriter. 6. Eriforcement Costs. Underwriter agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Article V. 7. Survival. Underwriter's obligations under Article V shall survive the termination of this Agreement. ARTICLE VI. TERMINATION OF AGREEMENT A. Termination for Cause. If, through any cause, Underwriter shall fail to fulfill in a timely and proper manner Underwriter's obligations under this Agreement, or if Underwriter shall violate 'any.of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving writteh notice to Underwriter of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. Iii that event, all finished or unfinished documents; data, studies, surveys, drawings, maps, reports and other materials prepazed by Underwriter shall, at the option of the City, become the property of the City, and Underwriter shall be entitled to receive just and equitable compensation; in an amount not to exceed that payable under this Agreement and less any damages caused City by Underwriter's breach, for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination. Page 11 Two Party dgreement Between the Ciry ojChu[a Pista anJ Stife~~cgr.y.and Co~/ to Provide Bond Undenvritin~Services 7:\Fi~~anoial\Plvi\Bovds\Boud Undervvriter RFF\Stifel Ag~eemeu[ 2013 -Final Version.d44oc B. Termination of Agreement for Convenience of City. City may terminate this Agreement at any time and for any reason, by giving specific written notice to Underwriter of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. Iri that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Underwriter shall be entitled to receive just and equitable compensation, in an amount not to exceed that payable under this Agreement, for any satisfactory work completed on such documents and other materials to the effective date of such termination. Underwriter hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth in this section. ARTICLE VII. RECORD RETENTION AND ACCESS A. Record Retention. During the course of the Project and for three (3) years following completion, the Underwriter agrees to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the Project as City may require. B. Access to Records of Underwriter and Subcontractors. The Underwriter agrees to permit, and require its subcontractors to permit City or its authorized representatives, upon request, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Contractor and its subcontractors pertaining to the Project. C.' Project Closeout. The Underwriter agrees that Project closeout does not alter the reporting and record retention requirements of this Agreement. ARTICLE VIII. PROJECT COMPLETION, AUDIT, AND CLOSEOUT A. Project Completion. Within ninety (90) calendar days following Project completion or termination by City, Underwriter agrees to submit a final certification of Project expenses and audit reports, as applicable. B. Audit of Underwriters. Underwriter agrees to perform financial and compliance audits the City may require. The Underwriter also agrees to obtain any other audits required.by City. Underwriter agrees that Project closeout will not after Underwriter's audit responsibilities. Audit costs are allowable Project costs. C. Project Closeout. Project closeout occurs when City notifies the Underwriter that City has closed the Project, and either forwards the final-payment or acknowledges that the Underwriter has remitted the proper refund. The Underwriter agrees that Project closeout by City does not invalidate any continuing requirements imposed by the Agreement or any unmet requirements set forth in a written notification from City ARTICLE IX. MISCELLANEOUS PROVISIONS Page 12 Two Parry Agreeneent Between the L<ry of Chun Vufa and S[i ei. 'i lax nd Com mxv, b+c. to Provide Bond Undenvrf[tno Services J1Finavdal~l'tnTBonds\Bond IDiderwbter RFP~SGfet A6+reement20i3-Final Versioadoc A. Assignability. The services of Underwriter are personal to the City, and Underwriter shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City.' 1. Limited Consent. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 16 to the subunderwriters identified as "Permitted Subunderwriters." B. Ownership, Publication, Reproduction and Use of Material. All reports, studies, information, data, statistics, fotrrFS, designs, plans, procedures, systems and any .other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Underwriter in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of. the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. C: 'Independent Contractor. City is interested only in the results obtained and Underwriter shall perform as an independent contractor with sole control of the manner and means of performing the 'services required under this Agreement. City maintains the right only to reject or accept Underwriter's work products. Underwriter and any of the Underwriter's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal.income tax, social security tax or any other payroll tax, and Underwriter shall be solely responsible for the payment of same and shall hold the City harmless with regard to them. 1. Actions on Behalf of City. Except as City may specify in writing, Underwriter shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever, as an agent or otherwise. Underwriter shall have no authority, express or implied, to bind City or its members, agents, or employees, to any obligation whatsoever, unless expressly provided in this Agreement. 2. No Obligations to Third Parties. In connection with the Project, Underwriter agrees and shall require that its agents, employees, subcontractors agree that City shall not be responsible" for any obligations or liabilities to any third party, including its agents, employees, subcontractors, or other person or entity that is not a party to this Agreement. Notwithstanding that City may have concurred in or approved any solicitation, subagreement, or third parry contract at any tier, Ciry shall have no obligation or liability to any person or entity not a party to this Agreement. Page 13 Two Parry Agreemead Be[weetr the Ciry ojChala r asta mid Sri e/ Nicolas nQd Compa [ to Provide Bond C/ndenvrlr~ S ~c s J:\FinanciaDPlul\Bonds\BOnd Underwn[er RFP\Stifel Agreement 2013 -Final Version doc L D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement, against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by City in the implementation of same, Upon request by City, Underwritershall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement: E: Administration of Contract. Each party designates the individuals (Contract Administrators) indicated on Exhibit A, Paragraph 12, as that party's contract administrator who is authorized by the party to represent it in the routine administration of this Agreement. `_ P. Term. This Agreement shall terminate when the parties have complied with all executory ' provisions hereof. G. Attorney's Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. H. Statement of .Costs. In the event that Underwriter prepares a report or document, or . , participates in the preparation of a report or document in performing the Defined Services, Underwriter shall include, or cause the inclusion of, in the report or document, a statement of the ,numbers and cost in dollar `amounts of all contracts and, subcontracts relating to the preparation of the report or document. L Underwriter is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15 is marked, the Underwriter and/or its principals is/are licensed with the State of California ` or some other state as a real estate broker or salesperson. Otherwise, Underwriter represents ' that neither Underwriter, nor its principals are licensed real estate brokers or salespersons. 7. Notices. All notices; demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited iri the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the designated parties. K. Integration. This Agreement, together with any, other written- document referred to or ' contemplated in it, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision of it may be amended, modified, waived or discharged except by an instrument u1 writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. Page 14 Two P¢rty dgreentent Between the City of Chula !/ista and Sti eL N~ ol¢, s nd Cora an .Inc- to Po- vide Bond Undenmrihne Services J:\FfnaticialWlul\Bonds\Bovd Undeiwrite~ RFPVStifrl Agreement 2013 -Final Version doe L.' Capacity of Parties. Each signatory and party to this Agreement warrants and 'reprasenfs to the' other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all necessary resolutions or other actions have bee7rtaken so as to enable it to enterinto this Agreement. M. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance under it, shall be the City of Chula Vista. ,, (End of page. Next page is signature page.) ' Page 15 75vo Purty Agreemend Between tke City of Ckula Vdsta and Snfel Nicalaur ¢iad Cor ! to Provide Bond Undenvr'h Se s' 7:\financial\Plul\Bonds\Bond Unde[wri[ec F.FP\Snfel Agcemant 2013-Final Versioadoc- Signature Page to Agreement between City of Chula Vista and Municipal Financing Authority and Stifel, Nicolaus & Company,Inc., To Provide Bond Underwriting Services EV WITNESS WHEREOF, City and Underwriter have executed this Agreement, indicating that they have read and understood same, and indicate their full and complete consent to its terms: City of Chula Vista By: Mayor Attest: Donna Norris, City Clerk Approved as to form: Glen R. Googins, City Attorney Stifel, Nicolaus & Company, Inc. By: D cl Sars berlies Brown Managing Director ' . Exhibit List to Agreement: Exhibit A Page ]6 'Two Party Agreement Between the City of Chu[o t rsla and Sti el .\'icofaas and C~ n /nc to Prov de Dond Undenvr/tine Services Q\USersWberliessWppData\I,otalVvlicrosofl\Windows\Tcmppfaey intemet Files\ConFotfOynllpl"~VIWOISE\Stlkl Agreement 2013-Fitml Venion (2J doc - I L 'T J - Exhibit A to Agreement between City of Chula Vista and Municipal Financing Authority and Stifel,lSicolaus & Company, Inc. 1. Effective Date: The Agreement shall take effect upon full execution of the Agreement, as of the effective date stated on page 1 of the Agreement. 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California (X) The Chula Vista Municipal Financing Authority, a OThe Chula Vista Industrial Development Authority, a ()Other: (City) 3. Place of Business for City and Municipal Financing Authority: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 4. Underwriter:. Stifel, Nicolaus & Company, Inc. 5. Business Form of Underwriter: OSole Proprietorship ( )Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Underwriter: One Ferry Building, Suite 275 San Francisco, CA 94111 Phone: (213) 443-5004 FAX: (415) 445-2395 7. General Duties: a [insert business form] Page 17 Twa Parry Agreemend Between 1/te Cny of Chula Vuta and Sti 7 a!a s nd Companv Inc io Po~ovlde Bond Undenvrifltte Service 79Pinancial~Plul~BOnds~BOnd Uvdeiw~iterRFP~Sfifel Ageement 2013-Final Veasiov,doc To provide bond underwriting services and related duties for an anticipated refunding of six Community Facilities Districts in the City of Chula Vista. 8. Scope of Work and Schedule: A. Detailed Scope of Work: 1. Stifel, Nicolaus & Company (Stifel) shall work with City staff and City's Financial Advisor to develop a refunding plan for the six Community Facilities Districts that are corrunonly known as: CFD 06-I Improvement Area A, CFD 2001-2, CFD 08-I, CFD 07- I, CFD 06-I Improvement Area B, and CFD 2001-1 Improvement Area B. 2. Stifel shall review and comment on the preliminary and final official statements 3. Stifel shall assist the City in preparing materials for review by the credit rating agencies, bond insurance companies and investors as appropriate 4. Stifel shall conduct such bond marketing activities as the City and Stifel agree are necessary or desirable in marketing for the bond issuance 5. Stifel shall assist in the preparation and documentation necessary to timely close each bond issue and shall tirhely deliver the necessary fund to purchase each bond issue in accordance with the temps of the respective bond purchase agreements 6. Stifel shall meet with the City at its request fo discuss economic, environmental, or financial or other conditions affecting the successful completion of the refunding B: Date for Commencement of Underwriter Services: (X) Same as Effective Date of Agreement OOther: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Deliverable No. 2: Deliverable No. 3: D. Date for completion of altUnderwriter services: -December 31, 2013. 9. Materials Required to be Supplied by City to Underwriter: 10. Compensation: A. (X) Single Fixed Fee Arrangement. Page 18 Two Party Agreement Between the City ofC&u[a (/ista and Sfi e[. V' ola . nd Com mrv Inc. to P o -d Bo d Undenvrftin2 Services J:\Finnncial\Phl\Bonds\Bo¢d Underwei[er RFP\Stifel Agiecme¢[2013-Final Versio¢.doc - For performance of all of the Defined Services by Underwtiter as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: Not to~exceed 1.0 percent of the par amount of the bond issuance, payable upon closing of the bond sale. Milestone or Event or Deliverable Amount or Percent'of Fixed Fee O 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily , completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due.for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Underwriter shall have represented in writing that said percentage of completion of the phase has been performed by the Underwriter. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ()Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Underwriter as are separately identified below, City shall pay the fixed'fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Underwriter shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Underwriter as to said Phase. Phase 1. 2. 3. Fee for Said Phase Page 19 Two Parry Agreement Between Use City ojChula Pista a¢¢d Sti el. Nkolausand Comadnv ! to Provide Bond Undenvrlt Se s ' T\Furavcial\Phil\Bonds\Bond Underwriter RFP\Stifel Agrennent 2013-Final Versioa.doc ' O 1. Interim Monthly Advances. The City shall make interim monthly .advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid..Any payments made hereunder shall be considered as interest free loans that must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 18 is to be applied to each interim payment such that; at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Underwriter shall have represented in writing that said percentage of completion of the phase has -been performed by the . Underwriter. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. OHourly Rate Arrangement Far performance of the Defined Services by Underwriter as herein required, City shall pay Underwriter for the productive hours of time spent by Underwriter in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) O Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Underwriter of time and materials in excess of said Maximum Compensation amount, Underwriter agrees that Underwriter will perform all of the Deftned Services herein required of Underwriter for $ ~ including all Materials, and other. "reimbursables" (Maximum Compensation). (2) OLimitation without Further Authorization on Time and Materials Arrangement At such time as Underwriter shall have incurred time and materials equal to $ (Authorization Limit), Underwriter shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Underwriter from providing additional Services at Underwriter's own cost and expense. ,See Exhibit B for wage rates. OHourly rates may increase by 6% for services rendered after [month], 20~, if delay in providing services is caused by City. ll'. Materials Reimbursement Arrangement Page 20 Two Party Agreement Between Use Ciry ofC/tu@ Vista mzd Str el. ~ r la¢ d Com an . lac. to Provide Bwrd Undern~rifJno ServYces 7~FinancialU'hil~Bonds~Sond Underwater RFP~S[ifel Agreemen[2013-Final Version doc ~ _' For the cost of out of pocket expenses incurred by Underwriter in the performance of services herein required, City shall pay Underwriter at the rates or amounts set forth below: (X) None, the compensation includes all' costs. ' ~. O Reports, not to exceed $ ' ~O Copies, not to exceed $ O Travel, not to exceed $ () Printing, not to exceed $ (') Postage, not to exceed $ O Delivery, not to exceed $' () Outside Services: ( ), Other Actual Identifiable Direct Costs: .not to exceed $ not to exceed $ 12. Contract Administrators: City: Phillip Davis, Assistant Finance Director Cost or Rate $ . Underwriter: Sara Oberlies Brown, Managing Director, Stifel, Nicolaus & Company, Inc. 13. Liquidated Damages Rate: () $ per day. (X) Other: None 14. Statement of Economic Interests, Underwriter Reporting Categories, per Conflict of Interest Code (Chula Vista Municipal Code chapter 2.02): (X) Not Applicable. Not an FPPC Filer. O FPPC,Filer OCategory No. 1. Investments, sources of income and business interests. ()Category No. 2. Interests in real property. OCategory No. 3. Investments, business positions, interests in real property, and sources of income subject to the regulatory, permit or licensing authority of the department administering this Agreement. Page 21 Two Purry Agreement Between the City aJChula Puta and SBfef~i~gr gnd Com ¢nv !nc to Provide Bond Undenvrilin~ Services J9Financial\Phil\Bonds\Bond Underwater RFP\Stifel Ageemev[2013-Final Version.doOOc O Category No. 4. Investments and business positions in business entities and sources of income that engage in land development, construction or the acquisition or sale of real property. OCategory No. 5. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the City of Chula Vista or the City's Redevelopment Agency to provide services, supplies, materials, machinery or equipment. ()Category No. 6. Investments and business positions in business entities and sources of income that, within the past two years, have contracted with the department administering this Agreement to provide services, supplies, materials, machinery or equipment. OList Underwriter Associates interests in real property within ~ radial miles of Project Property, if any: 15. OUnderwriter is Real Estate Broker and/or Salesman 16. Permitted Subunderwriters: None 17. Bill Processing: A. Underwriter's Billing to be submitted for the following period of time: ()Monthly ( )Quarterly (X) Other: Upon closing of bond sale. B. Day of the Period for submission of Underwriter's Billing: () First of the Month O 15th Day of each Month OEnd of the Month OOther: Page 22 Two Party Agreemaat Between (/te 6ty ofChuZa ~sfa and ti el. NI (a nd Cone anv fnc. to Provide Bond Ur+denvrifin~ Services 1dFumncisl~Phil~Bonds\Bond Underwntcr RFP`.Stiiel Ay~reement 2013 -Final Version doc C. City's Account Number: Various 18. Security for Performance OPerformance Bond, $ O Letter of Credit, $ OOther Security: Type: Amount: $ ORetention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Underwriter sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: Retention Percentage: Retention Amount: $_ Retention Release Event: ( )Completion of All Underwriter Services ( )Other: ()Other: The Retention Amount may be released on a monthly basis provided that Underwriter has performed said monthly services to the sole satisfaction of the Assistant City Manager/Director of Development Services or his designee. Page 23 Two Puny Agreement Be4veen the Ciry ajChu[u ! <s1u anQ Sii e1.~VU~~sdn~ ompdnv / to Provide Band Underwritine ervices JdFinancial\Phil\Bovds\BOnd Unde`wnter RFP\StiEel AgreemenL0I3 -Final Versiortdoc RESOLUTION NO. 2013- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT' WITH THE INVESTMENT BANKING FIRM OF DE LA ROSA & CO., INC. TO PROVIDE UNDERWRITING SERVICES FOR RESTRUCTURING OP CITY BONDED DEBT, IF DEEMED ECONOMICALLY FEASIBLE WHEREAS, a Request for Proposal (RFP) was issued on Apri125, 2013 for bond underwriting services anticipating the possible refunding of Community Facility District bonded debt: and WHEREAS, the RFP was posted on the Internet on the Planet Bids website and sent directly to bond underwriting firms inviting them to participate in the process; and WHEREAS, a total of four proposals were received from national and regional bond underwriting firms, and WHEREAS, a Selection Committee consisting of the City's Director of Finance; Assistant Director of Finance, and two members from Fieldmari Rolapp and Associates, the City's Financial Advisor for land secured tnancings was created for the selection process; and WHEREAS, the Committee's selection criteria is based on the firm's experience in land secured financings, sales capability, marketing strategy, credit evaluation, structuring suggestions and fees, and WHEREAS, based on this criteria DLR was selected as the senior manager for any proposed refunding; and WHEREAS, DLR offered the lowest fee structure aC 53.75 per $1,000 issued; and WHEREAS, the Committee felt that DLR was more focused on the City's needs based on their business philosophy of dealing only in California public finance; and WHEREAS, DLR is very familiar with the City of Chula Vista having worked on previous bond issuances for the City as well as the County and City of San Diego, the San Diego Association of Governments, the San Diego Unified School District and the San Diego Community College District; and WHEREAS; DLR is a California-based investment banking services firm with full- service offices in Los Angeles and San Francisco; and WHEREAS, the firm is a top ranking land-secured bond underwriter in California; and WHEREAS, DLR is the only major firm serving California municipal issuers that focuses exclusively on the California municipal bond market; and 1:\Attomey\FINAL RESOS AND ORDINANCES\20I3\07 03 L~".'t{D:30-FNANCE-RESO A-De La Rosa Agreement 07092013.doc Resolution No. 2013- Page 2 WHEREAS, served the City as bond underwriter on its 2010 Certificates of Participation and 2006 Tax Allocation Bond; and WHEREAS, the City Council has found that DLR was selected in accordance with the requirements of Chula Vista Municipal Code section 2.56.110. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that'it approves the Agreement between the City of Chula Vista and Municipal Financing Authority and De La Rosa & Co to provide bond underwriting, in the form presented, as may have been modified by the Council prior to its approval and with such minor modifications as may be required or approved by the City Attorney, a copy of which shall be kept on file in the Office of the City Clerk. - - Presented by Approved as to fgrm by Maria Kachadoorian Director of Finance/Treasurer J:\Attorney\FINAL RESOS AND ORDINANCES\2013\07 O1 t,3\RE$0-FNANCE-RESO A-De La Rosa Agreement 07092013.doc L b4 7/3/2013 9:II AM RESOLUTION NO. 2013- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH THE INVESTMENT BANKING FIRM OF STIFEL, NICOLAUS & CO., INC. TO PROVIDE UNDERWRITING SERVICES FOR RESTRUCTURING OF CITY BONDED .DEBT; IF DEEMED ECONOMICALLY FEASIBLE WHEREAS, a Request for Proposal (RFP) was issued on April 25, 2013 for bond underwriting services anticipating the possible refunding of Community Facility District bonded debt; and WHEREAS, the RFP was posted on the Internet on the Planet Bids website and sent directly to bond underwriting firms inviting them to participate in the process; and WHEREAS, a total of four proposals were received from national and regional bond underwriting firms, and WHEREAS, a Selection Committee consisting of the Citys Director of Finance, Assistant Director of Finance, and. two members from Fieldman Rolapp and Associates, the City's Financial Advisor for land secured financings was created for the selection process; and WHEREAS, the Committee's selection criteria is based on the firm's experience in land secured financings, sales capability, marketing strategy, credit evaluation, structuring suggestions and fees, and WHEREAS, based on this criteria Stifel, Nicolaus & Company was selected as the co- manager for any proposed refunding; and WHEREAS, Stifel, Nicolaus & Company offered the second lowest fee structure at $3.78 per $1,000 issued; and WHEREAS, Since January 2010, the firm has underwritten as senior or sole manager 109 of the 188 land secured bond issues that have come to market; and WHEREAS, Stifel is the one of the few underwriters with a national retail sales force; and WHEREAS, Stifel's bankers, underwriters and sales professionals have structured, brought to market and found Cnvestors for over $1.4 billion of land secured bond issues in San Diego County; and WHEREAS, the City Council has found that Stifel, Nicolaus & Company was selected in accordance with the requirements of Chula Vista Municipal Code section 2.56.110. 12-55 1:AAttornevAPMAL RESOS AND ORDINANCES\2013V07 09 13\Reso-FNANCE-RESO R-Stifel Aereement 07092013.doc Resolution No. 2013- Page 2 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it approves the Agreement between the City of Chula Vista and Municipal Financing Authority and Stifel, Nicolaus & Company, Inc. to provide bond underwriting, in the form presented, as may have been modified by the Council prior to its approval and with such minor modifications as may be required or approved by the City Attorney, a copy of which shall be kept on file in the Office of the City Clerk. Presented by Approved as to form Maria Kachadoorian t ' .~sfelc~~T Director of Finance/Treasurer i v /A1'tornev - - J:\Attorney\FINAL RESOS AND ORDNANCES\2013\07 0~ ~S1R~~-FINANCE-RESO B-Stifel Agreement 07092013.doc 7/3/2013 9:20 AM