HomeMy WebLinkAbout2020-04-27 CVBFFA Agenda PacketChula Vista Bayfront Facilities Financing Authority
San Diego Unified Port District
Meeting Agenda
3165 Pacific Hwy.
San Diego, CA 92101
3:00 PMMonday, April 27, 2020
****Pursuant to Governor Newsom’s Executive Order N-29-20 pertaining to the
convening of public meetings in response to the COVID-19 pandemic, the CHULA
VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) hereby provides
notice that it will hold a regular meeting of the BOARD OF DIRECTORS OF THE
AUTHORITY (BOARD). The BOARD will attend the meeting and participate remotely to
the same extent as if they were present.
Due to Governor Newsom's Executive Order, the Board Chambers will remain closed to
the public.
MEMBERS OF THE PUBLIC MAY VIEW THIS MEETING VIA LIVESTREAM at:
https://portofsandiego.legistar.com/Calendar.aspx
REMOTE PUBLIC COMMENT IS AVAILABLE FOR THIS MEETING DOING ONE OF THE
FOLLOWING
NO LATER THAN 2:00 PM on MONDAY, April 27, 2020:
1. Call 619-736-2155 and leave a brief voicemail message (no longer than 2 minutes) that
will be played during the meeting.
2. Email a request to provide live comment to PublicRecords@portofsandiego.org to
receive a link to participate in the meeting to provide live comments. *
3. Submit written comments to PublicRecords@portofsandiego.org which will be
forwarded to the Board and included in the agenda-related materials record for the
meeting.
* Neither the Port of San Diego nor the Authority are responsible for the member of the
public’s internet connections or technical ability to participate in the meeting. It is highly
recommended that you use voicemail rather than provide live comment.
Board of Directors
Honorable City of Chula Vista Mayor Mary Casillas Salas
City of Chula Vista Councilman Stephen Padilla
Port Commissioner Ann Moore
Port Commissioner Rafael Castellanos
Port Commissioner Dan Malcolm
Page 1 San Diego Unified Port District Printed on 4/24/2020
April 27, 2020Chula Vista Bayfront Facilities
Financing Authority
Meeting Agenda
A. Call to Order
B. Roll Call
C. Non-Agenda Public Comment
Each individual speaker is limited to two (2) minutes
D. Consent Agenda
ADOPT A RESOLUTION OF THE CHULA VISTA BAYFRONT
FACILITIES FINANCING AUTHORITY (AUTHORITY) APPROVING AN
ASSIGNMENT AND ASSUMPTION OF INVESTMENT BANKING AND
BOND UNDERWRITING SERVICES AGREEMENT BETWEEN THE CITY
OF CHULA VISTA (CITY) AND THE AUTHORITY AND APPROVING A
BAYFRONT PROJECT UNDERWRITER LETTER OF INTENT BETWEEN
THE AUTHORITY AND J.P. MORGAN SECURITIES LLC
2020-0187D.1.
E. Action Items
No Action Items.
F. Staff Comments
In accordance with the Authority Policy for Procurement of Professional and Legal
Services, the Co-Counsels of the Authority entered into an agreement for legal services
by and among Colantuono, Highsmith & Whatley, P.C. (Outside Counsel), the San Diego
Unified Port District (District), and the City, effective April 1, 2020, for a validation action
related to the Chula Vista Bayfront Resort Hotel and Convention Center Project (Legal
Agreement). The Legal Agreement includes a waiver regarding potential conflicts of
interest resulting from the joint representation from Outside Counsel to the City, the
Authority, and the District. The Co-Counsels of the Authority have reviewed the waiver
regarding potential conflicts of interests, determined that it is in the best interest of the
Authority to approve the waiver, and have approved the waiver.
G. Board Comments
H. Adjournment
Page 2 San Diego Unified Port District Printed on 4/24/2020
DATE: April 27, 2020
SUBJECT:
..Title
RESOLUTION OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING
AUTHORITY (AUTHORITY) APPROVING AN ASSIGNMENT AND ASSUMPTION OF
INVESTMENT BANKING AND BOND UNDERWRITING SERVICES AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND THE AUTHORITY AND APPROVING A
BAYFRONT PROJECT UNDERWRITER LETTER OF INTENT BETWEEN THE
AUTHORITY AND J.P. MORGAN SECURITIES LLC
..Body
EXECUTIVE SUMMARY:
The City of Chula Vista (the “City”) and the San Diego Unified Port District (the “District”)
are participating in a joint planning effort to develop the Chula Vista Bayfront (the
“Bayfront”). In support of this process, the Chula Vista City Council (the “City Council”)
approved entering into an Agreement to Provide Investment Banking and Bond
Underwriting Services for the Bayfront Project between the City and J.P. Morgan
Securities LLC (“J.P. Morgan”) in June 2015 (the “Agreement”). A copy of the Agreement
is attached as Attachment A. The Agreement requires that J.P. Morgan provide
investment banking and bond underwriting services and perform related duties for the
resort hotel and convention center project on the Bayfront (“Project”). Under the
Agreement, J.P. Morgan would be compensated pursuant to a bond purchase agreement
and would be contingent on the closing of the public financing. The term of the Agreement
expires on May 31, 2021, but the City has the right to terminate the Agreement for cause
or without cause before that time.
To move forward with J.P. Morgan as the underwriter for the public financing component
of the Project, the City must assign the Agreement to the Chula Vista Bayfront Facilities
Financing Authority (the “Authority”) and the Authority must assume the obligations under
the Agreement pursuant to the Assignment and Assumption of Investment Banking and
Bond Underwriting Services Agreement attached as Attachment B (“Assignment and
Assumption”). The Assignment and Assumption would be effective as of the date the
Authority Board approves the Assignment and Assumption. In the Assignment and
Assumption, the City and J.P. Morgan represent and warrant, among other things, that
as of the effective date of the Assignment and Assumption (i) the Agreement is currently
in full force and effect; (ii) there are no outstanding payment obligations; and (iii) there is
no material breach by either party. In addition to the Assignment and Assumption, J.P.
Morgan is requesting the Authority enter into a Bayfront Project Underwriter Letter of
Intent (the “LOI”) to further memorialize the relationship between the Authority and J.P.
Morgan. The LOI designates J.P. Morgan to serve as underwriter for the public financing
subject to satisfying applicable procurement laws or policies, formal approval by the
Authority, finalizing the structure of the public financing, and executing a bond purchase
agreement. The LOI is preliminary, non-binding and may be terminated at any time by
the Authority, without penalty, cause or liability for any costs incurred by the underwriter,
J.P. Morgan, or any affiliate thereof. Approving the LOI with J.P. Morgan is also
recommended.
RECOMMENDATION:
..Recommendation
Adopt a Resolution of the Authority approving the Assignment and Assumption and
approving the LOI.
..Body
FISCAL IMPACT:
There is no fiscal impact as a result of the assignment to and assumption of the
Agreement by the Authority or entering into the LOI. All fees to be paid to J.P. Morgan
are contingent upon the Authority and J.P. Morgan entering into a bond purchase
agreement, which would be presented to the Board of Directors of the Authority
(“Authority Board”) for consideration and approval. It is also intended that any fees that
would be paid to J.P. Morgan would be paid through proceeds of the bonds from the
public financing. Finally, the Authority would have the right to terminate the LOI and
Agreement at any time.
DISCUSSION:
On May 8, 2012, the City and District entered into a Financing Agreement for the Chula
Vista Bayfront Master Plan (“CVBMP”), which identified the role of each agency with
respect to the financing, development, and construction of the CVBMP public
improvements, infrastructure, and a convention center, and which is recorded in the Office
of the District Clerk as Document No. 59001 (the “Financing Agreement”). The Financing
Agreement anticipated that the City and the District would form a joint powers authority
as a vehicle to finance the CVBMP public improvements and convention center. The City
and District entered into a Joint Exercise of Powers Agreement dated May 1, 2014 (the
“Authority Agreement”) establishing the Authority. The Authority Agreement is filed in the
office of the District Clerk as Document No. 61905. The City and District subsequently
entered into an Amended and Restated Authority Agreement in July 2019, which is filed
in the Office of the District Clerk as Document No. 70245 (the “Amended and Restated
JEPA Agreement”).
In coordination and consultation with District staff, the City issued a request for proposals
in February of 2015 seeking firms qualified to serve as senior managing and/or co-
managing underwriter for a variety of potential financings relating to the development of
the Bayfront. Proposals were received from J.P. Morgan; Morgan Stanley; Stifel,
Nicolaus & Company; Estrada Hinojosa; and Rockfleet. Based upon the scoring criteria,
the selection committee recommended awarding the contract to J.P. Morgan. On August
11, 2015, the City Council adopted Resolution 2015-195 approving the Agreement
(Attachment A) and authorizing the City Manager to exercise five one-year options to
extend the Agreement. The Agreement requires that J.P. Morgan provide investment
banking and bond underwriting services and perform related duties for the Project. Under
the Agreement, J,P. Morgan would be compensated pursuant to a bond purchase
agreement and would be contingent on the closing of the public financing. The term of
the Agreement expires on May 31, 2021, but the City has the right to terminate the
Agreement for cause or without cause before that time.
The Authority was formed for the purpose of financing and/or refinancing portions of the
Bayfront and will be the entity responsible for issuing Bayfront related public debt for the
Project. As such, it is now appropriate for the City to assign the Agreement to the
Authority. The Assignment and Assumption would be effective as of the date the Authority
Board approves the Assignment and Assumption. In the Assignment and Assumption,
the City and J.P. Morgan represent and warrant, among other things, that as of the
effective date of the Assignment and Assumption (i) the Agreement is currently in full
force and effect; (ii) there are no outstanding payment obligations; and (iii) there is no
material breach by either party. J.P. Morgan has reviewed and consented to the
Assignment and Assumption in the form presented in Attachment B. On April 21, 2020,
the City Council adopted Resolution 2020-082 approving the Assignment and directing
the City Manager to execute the same upon approval of the Authority.
In addition to the Assignment and Assumption, J.P. Morgan has requested that the
Authority enter into the LOI in the form presented in Attachment C. The LOI proposed is
a standard practice in J.P. Morgan’s underwriting business. The LOI is preliminary,
nonbinding, and may be terminated at any time by the Authority without any penalties or
liability. Furthermore, the LOI does not restrict the Authority from ultimately entering into
a municipal securities transaction for the project with any other underwriter or underwriting
syndicate.
Staff recommends the Authority approve the LOI and Assignment and Assumption and
direct the Executive Director to execute the same.
General Counsel’s Comments:
Both of the Authority Co-Counsel have reviewed this agenda sheet, the Assignment and
Assumption in the form of Attachment B, and the LOI in the form of Attachment C, as
presented to them and approve each as to form and legality.
Environmental Review:
The proposed action by the Authority Board, approving the Assignment and Assumption
and the LOI, is not a separate “project” for CEQA purposes but is a subsequent
discretionary approval related to a previously approved project (CEQA Guidelines §
15378(c); Van de Kamps Coalition v. Board of Trustees of Los Angeles Comm. College
Dist. (2012) 206 Cal. App. 4th 1036). Accordingly, the proposed Authority Board action is
merely a step in furtherance of the original project for which environmental review was
performed and no supplemental or subsequent CEQA has been triggered, and no further
environmental review is required.
In addition, the proposed Authority Board action would not conflict with the Port Act or
Public Trust Doctrine.
Finally, the proposed Authority Board action does not allow for “development,” as defined
in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section
1.a. of the District’s Coastal Development Permit Regulations. Therefore, issuance of a
Coastal Development Permit or exclusion is not required.
Equal Opportunity Program:
Not applicable.
PREPARED BY:
Tiffany Allen
Assistant Director of Development Services, City of Chula Vista
Attachment(s):
Attachment A: Investment Banking and Bond Underwriting Services Agreement
Attachment B: Assignment and Assumption of Investment Banking and Bond
Underwriting Services Agreement
Attachment C: Bayfront Project Underwriter Letter of Intent
ACN: 15009
Agreement between
City of Chula Vista
and
J.P. Morgan Securities LLC,
To Provide Investment Banking & Bond Underwriting Services for the Bayfront Project
This agreement (Agreement), effective June I, 2015, 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, (Consultant), and is made with reference to the following facts:
RECITALS
WHEREAS, the City and the San Diego Unified Port District (Port) have been
participating in a joint planning effort to develop the Chula Vista Bayfront (the "Bayfront"); and
WHEREAS, when completed, the Bayfront will create thousands of new local and
regional jobs, create new public parks, protect natural coastal resources, and provide conference
and visitor-serving amenities; and
WHEREAS, over the next several years, the City anticipates new development projects in
the Bayfront will require financing for infrastructure and other project costs; and
WHEREAS, the City intends to contract for investment banking and bond underwriting
services to be performed in connection with the Bayfront project (the "Project"); and
WHEREAS, the Finance Department issued a Request for Proposals (RFP P09-l 4/l 5) to
provide Investment Banking and Underwriting Services for the Bayfront project; and
WHEREAS, the City completed an evaluation of the proposals for Investment Banking &
Underwriting Services and selected J.P. Morgan Securities LLC; and
WHEREAS, Consultant warrants and represents that it is experienced and staffed in a
manner such that it can deliver the services required of Consultant to City in accordance with the
time frames and the terms and conditions of this Agreement.
[End of Recitals. Next Page Starts Obligatory Provisions.]
Two P"rty Agreenient Behveen the Ciry of Chula Vista und J.P. Morgan Securities LLC to Provitle lnvestnient Banking & Bond
Underwriting Services for the Bayfront Project
.I :\Attomey\MichaclS h\Bayfront\Firrnnce-20 15\Bond Issuance\Agreeincnts \ T woParty-JPMorgan-8.6.15-RevFIN ALdocx
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Attachment A
ACN: 15009
OBLIGATORY PROVISIONS PAGES
NOW, THEREFORE, for valuable consideration the City and Consultant 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. Consultant 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,
Consultant 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
Consultant, from time to time, reduce the Defined Services to be performed by the
Consultant under this Agreement. Upon doing so, City and Consultant 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 Consultant to perform additional consulting services related to the Defined
Services (Additional Services), and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform same on a time and
materials basis at the rates set forth in the "Rate Schedule" in Exhibit A,
Paragraph 1 O(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 Consultant 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 Consultant of responsibility
for complying with all laws, codes, industry standards, and liability for damages
Two Party Agreement Between the City ofC/utla Vista and J.P. Morgan Securities LLC to Provide lnvestnient Banking & Bond
Underwriting Services/or the BaJfront Project
J:\Attomcy\.\llichaclSh\Bayfront\Finance-2015\Bond lssuance\Ab>reementslfwoPrnty-JPMorgan-8.6.15-RevFINAL.docx
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ACN: 15009
caused by negligent acts, errors, omissions, noncompliance with industry standards,
or the willful misconduct of the Consultant or its subcontractors.
B. Application of Laws. Should a federal or state law pre-empt a local law, or regulation, the
Consultant must comply with the federal or state law and implementing regulations. No
provision of this Agreement requires the Consultant 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 Consultant to violate any law, the Consultant agrees
to notify City immediately in writing. Should this occur, the City and the Consultant 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. Consultant agrees to take appropriate measures necessary to ensure that
all participants utilized by the Consultant 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 Consultant under this Agreement, the Consultant shall ensure that the subcontractor
carries out the Consultant's responsibilities as set forth in this Agreement.
C. Insurance
I. General. Consultant must procure and maintain, during the period of performance of this
Agreement, and for twelve months after completion, pertaining claims-made forms,
policies of insurance from insurance companies to protect against claims for wrongful
acts that may arise from or in connection with the performance of the professional
services under this Agreement and the results of that professional services by the
Consultant, his agents, representatives, employees or subcontractors, and provide
documentation of same prior to commencement of professional services.
2. Minimum Scope of Insurance. Coverage must be at least as broad as:
a. E&O . Professional Liability or Errors & Omissions Liability insurance appropriate
to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed
to include contractual liability.
3. Minimum Limits of Insurance. Consultant must maintain limits no less than those
included in the table below:
Professional $5,000,000 each wrongful act
Liability or Errors &
Omissions Liability:
4. Deductibles and Self-Insured Retentions. Consultant shall be solely responsible for all
deductibles or self-insured retentions to which such policies are subject.
Two Party Agree1nent Between the City of Chula Vista anti J.P. Morgan Securities LLC to Provide I11vest1nent Banking & Bond
Underwriting Service.~ JOr the Bayfront Pro}ect
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ACN: 15009
5. Claims Forms. If Professional Liability or Errors & Omissions coverage are written on a
claims-made form:
a. Maintenance and Evidence. Insurance must be maintained for one year after
completion of the professional services and, upon request, evidence of insurance must
be provided for at least one (I) year after completion of the professional services
required by the Agreement.
b. Non-Renewal. If coverage is canceled or non-renewed, and not replaced with another
claims-made policy form, the Consultant must purchase "extended reporting"
coverage for a minimum of one (I) year after completion of the work required by the
Agreement.
6. 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, or is a captive insurer that meets the statutory requirements of its domiciled
state. Exception may be made for the State Compensation Fund when not specifically
rated.
7. Verification of Coverage. Consultant shall furnish the City with standard ACORD
certificates and endorsements effecting coverage required by Section I.C. of this
Agreement. All certificates and endorsements are to be received and approved, in City's
reasonable discretion, by the City before professional services commence.
8. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not
be construed to limit the Consultant's obligations under this Agreement.
D. Security for Performance
I. Performance Bond. In the event that Exhibit A, at Paragraph 18, indicates the need for
Consultant to provide a Performance Bond (indicated by a check mark in the
parenthetical space immediately preceding the subparagraph entitled "Performance
Bond"), then Consultant 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.
Two Party Agreement Between the City of Clucla Vista and J.P. Morgun Securities LLC to Provide Investment Banking & Bond
Underwriting Services for the Btryfront Project
J:\Attomey\MichaelShlBayfrontlFinance-2015\Bond lssuancc\Agreements\T\voParty-JPMorgan-8.6.15-RevFINAL.docx
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ACN: 15009
2. Letter of Credit. In the event that Exhibit A, at Paragraph 18, indicates the need for
Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical
space immediately preceding the subparagraph entitled "Letter of Credit"), then
Consultant 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 Consultant 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
Consultant 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 Consultant shall provide to the City such
other security therein listed in a form and amount satisfactory to the Risk Manager or
City Attorney.
E. Business License. Consultant 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 Consultant 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 Consultant 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 Consultant's performance.
B. Compensation.
1. Following Receipt of Billing. The Consultant shall be compensated pursuant to the terms
of a Bond Purchase Agreement or similar Agreement approved by the City Council.
Such payment will be contingent on the successful closing of the financing program.
2. Supporting Information. Any billing submitted by Consultant 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 l 7(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 of or related to
Two Party Agreen1e11t Between the City of Chula Vista mul J.P. Morgan Securities LLC to Provide Investment Bttnki11g & Bond
Underwriting Services for the B1ryfront Project
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ACN: 15009
the errors, om1ss1ons, negligence or acts of willful misconduct of the Consultant, its
agents, employees, or subcontractors.
a. Errors and Omissions. In the event that the City Administrator determines that the
Consultant'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, Consultant shall reimburse City for any
additional expenses incurred by the City. Nothing in this paragraph is intended to
limit City's rights under other provisions of this Agreement.
4. Payment Not Final Approval. The Consultant understands and agrees that payment to the
Consultant 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 Consultant of the terms of the Agreement. The Consultant
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 Consultant is not entitled to receive any portion of the compensation
due or paid, City will notify the Consultant in writing, stating its reasons. The Consultant
agrees that Project closeout will not alter the Consultant'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. Consultant's Obligation to Pay. Upon notification to the Consultant that specific
amounts are owed to City, whether for excess payments or disallowed costs, the
Consultant agrees to remit to City promptly the amounts owed, including applicable
interest.
ARTICLE III. ETHICS
A. Financial Interests of Consultant
I. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A,
Paragraph 14, as an "FPPC filer," Consultant 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 Attorney.
2. No Participation in Decision. Regardless of whether Consultant is designated as an FPPC
Filer, Consultant's personnel performing the General Duties (the "Underwriting Team")
shall not make, or participate in making or in any way attempt to use Consultant's
position to influence a governmental decision in which the Underwriting Team knows or
has reason to know Consultant has a financial interest other than the compensation
promised by this Agreement.
Two Party Agreetnent Between the City o/Cltula Vista ttntl J.P. Morgan Securities LLC to Provide Invest111ent Banking & Bond
Underwriting Services for the Bayfront Project
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ACN: 15009
3. Search to Determine Economic Interests. Regardless of whether Consultant is designated
as an FPPC Filer, Consultant warrants and represents that the Underwriting Team has
diligently conducted a search and inventory of the Underwriting Team's economic
interests, as the term is used in the regulations promulgated by the Fair Political Practices
Commission, and has determined that the Underwriting Team does not, to the best of the
Underwriting Team's knowledge, have an economic interest which would conflict with
Consultant's duties under this Agreement.
4. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is
designated as an FPPC Filer, Consultant further warrants and represents that the
Underwriting Team 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 Conflicting Interests. Regardless of whether Consultant is designated
as an FPPC Filer, Consultant further warrants and represents that the Underwriting Team
will immediately advise the City Attorney if the Underwriting Team learns of an
economic interest of Consultant'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. Consultant warrants, represents and
agrees that:
a. Neither the Underwriting Team, nor the Underwriting Team's immediate family
members, nor Underwriting Team's employees or agents (Consultant 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 Consultant or Consultant Associates in connection
with Consultant's performance of this Agreement. Consultant promises to advise City
of any such promise that may be made during the Term of this Agreement, or for
twelve months thereafter.
c. Consultant Associates shall not acquire any such Prohibited Interest within the Term
of this Agreement, or for twelve months after the expiration of this Agreement,
except with the written permission of City.
d. The Underwriting Team may not conduct or solicit any business for any party to this
Agreement, or for any third party that may be in conflict with Consultant's
responsibilities under this Agreement, except with the written permission of City.
Two Party Agreement Between the City of Chula Vista and J.P. Morgan Securities LLC to Provide lnvest1ne11t Banking & Bond
Undenvriting Services for the Btl}front Project
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IV. LIQUlDA TED DAMAGES
A. Application of Section. The provisions of this section apply if a Liquidated Damages Rate
is provided in Exhibit A, Paragraph 13.
1. Estimating 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
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 Consultant 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 Consultant 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 Consultant, as determined by the City,
Consultant 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 Consultant claims the existence of
such a delay, the Consultant 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. Notwithstanding any other indemnification prov1s1on in the
Request for Proposal (RFP P09-l 4/l 5), to the maximum extent allowed by law,
Consultant shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers, agents and employees (collectively, "City-Related Parties"), from and
against any and all third party claims, demands, causes of action, costs, expenses,
(including reasonable attorney's fees and actual costs), liability or loss, in law or equity,
for physical damage or injury to property or persons, including wrongful death
(collectively, "Liability"), arising out of or incident to the gross negligence or willful
misconduct of Consultant, its officials, officers, employees, agents, and contractors
(collectively, "Consultant or Related Party Conduct"), arising out of or in connection
with the perfonnance of the Defined Services, the results of such performance, or this
Agreement. Consultant shall have an affinnative duty to defend and protect City from
any and all Liability as provided hereunder, including a duty to pay any and all related
attorneys' fees and court costs. Notwithstanding the foregoing, Consultant's ultimate
Two Party Agreement Between the City ofC/ulia Vista anti J.P. /If organ Securities LLC to Provide Investn1e11t Banking & Bond
Underwriting Services for the Bayji·ont Project
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indemnity obligations hereunder with respect to Liability (a) shall not be triggered until a
mutually agreed upon settlement or adjudication thereof; and (b) shall not extend to (i)
any Liability adjudicated to be arising from the sole negligence or sole willful
misconduct of the City-Related Parties; or (ii) City-Related Parties Liability adjudicated
to be greater than fifty percent (50%) of the overall Liability at issue. For the avoidance
of doubt, this provision supersedes any other indemnification provisions included in the
Request for Proposal (RFP P09-l 4/15), including Section Vlll of the Request for
Proposal and Section 27 of "Attachment A -General Provisions" to the Request for
Proposal.
2. Desi!m Professional Services. Notwithstanding the forgoing, if the services provided
under this Agreement are design professional services, as defined by California Civil
Code section 2782.5, as may be amended from time to time, the defense and indemnity
obligation under Section I, above, shall be limited to the extent required by California
Civil Code section 2782.8.
3. Costs of Defense and Award. Included in the obligations in Sections A.I and A.2, above,
is the Consultant's obligation to defend, at Consultant'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. I. and A.2. Subject to the limitations in Sections A. I. and
A.2., Consultant 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.
4. Insurance Proceeds. Consultant'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. Consultant's obligations under Article V shall not be limited by any prior
or subsequent declaration by the Consultant.
6. Enforcement Costs. Consultant agrees to pay any and all costs City incurs enforcing the
indemnity and defense provisions set forth in Article V.
7. Survival. Consultant's obligations under Article V shall survive the termination of this
Agreement.
8. No Alteration of Other Obligations. This Article V, shall in no way alter, affect or
modify any of the Consultant's other obligations and duties under this Agreement.
ARTICLE VI. TERMINATION OF AGREEMENT
A. Termination for Cause. If, through any cause, Consultant shall fail to fulfill in a timely and
proper manner Consultant's obligations under this Agreement, or if Consultant shall violate
any of the covenants, agreements or stipulations of this Agreement, City shall have the right
Two Party Agreenient Between the Ci(V of Chula Vistll and J.P. Morgan Securities LLC to Provide Investment Banking & Bond
Undenvriting Services for the Bt1Jfront Project
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to terminate this Agreement by giving written notice to Consultant 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 Consultant shall, at the option of the
City, become the property of the City, and Consultant 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 Consultant's breach, for any work satisfactorily completed
on such documents and other materials up to the effective date of Notice of Termination.
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 Consultant 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,
Consultant 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. Consultant 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 Consultant agrees to maintain, intact and readily accessible, all data,
documents, reports, records, contracts, and supporting materials relating to the Project as City
may reqmre.
B. Access to Records of Consultant and Subcontractors. The Consultant 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 Consultant 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. Not applicable.
B. Audit of Consultants. Consultant agrees to perform financial and compliance audits the
City may require. The Consultant also agrees to obtain any other audits required by City.
Consultant agrees that Project closeout will not alter Consultant's audit responsibilities. Audit
costs are allowable Project costs.
Two P(lrlj' Ag1'ee1nent Between the City of Chula Vista and J.P. Morgan Securities LLC to Provide In11est1nent Banking & Bond
Undenvriti11g Services for the Bayfront Project
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C. Project Closeout. Project closeout occurs when City notifies the Consultant that City has
closed the Project, and either forwards the final payment or acknowledges that the Consultant
has remitted the proper refund. The Consultant 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
A. Assignability. The services of Consultant are personal to the City, and Consultant 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.
I. 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 Consultant 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 Consultant 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 Consultant's work products. Consultant and any of the Consultant'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 Consultant shall be solely responsible for the payment of same and
shall hold the City harmless with regard to them.
I. Actions on Behalf of City. Except as City may specify in writing, Consultant shall have
no authority, express or implied, to act on behalf of City in any capacity whatsoever, as
an agent or otherwise. Consultant 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.
Two Party Agreenient Between tlte City of Chula Vista and J.P. Morgan Securities LLC to Provide Investment Banking & Bond
Undenvriti11g Services for the Bnyfront Project
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2. No Obligations to Third Parties. In connection with the Project, Consultant 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.
D. Administrative Claims Requirements and Procedures. No suit or arbitration shall be
brought arising out oftbis Agreement, against City unless a claim bas 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 oftbe 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, Consultant 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. Statement of Costs. In the event that Consultant prepares a report or document, or
participates in the preparation of a report or document in performing the Defined Services,
Consultant 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.
H. Consultant is Real Estate Broker and/or Salesman. If the box on Exhibit A, Paragraph 15
is marked, the Consultant and/or its principals is/are licensed with the State of California or
some other state as a real estate broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor its principals are licensed real estate brokers or salespersons.
I. 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.
J. 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
Two Party Agreement Between the City of Ciulla Vista and J.P. Morgt111 Securities LLC to Provide Investttient Banking & Bond
Underwriting Sen•ices for the Bayfront Project
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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.
K. 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.
L. Governing LawNenue. 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.
M. Municipal Advisor Rules. The City acknowledges that Consultant may not be able to
perform some of the services the City may request of Consultant from time to time in
connection with Consultant's engagement as lead underwriter to the extent that such services
would cause Consultant to be considered a "municipal advisor" under SEC Rel. No. 34-
70462 (Sept. 20, 2013) (such final rules and to the extent referenced therein, Section 975, the
"Municipal Advisor Rules") implementing Section 975 ("Section 975") of the Dodd-Frank
Wall Street Reform and Consumer Protection Act.
(End of page. Next page is signature page.)
Two Party Agreement Between the City of C/111/a Vista and J.P. Morgan Securities LLC to Provide l11vestn1ent Banking & Bond
Undeniiriting Sen1icesfor the Bayj'i'ont Project
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Signature Page
to
Agreement between
City of Chula Vista and
J.P. Morgan Securities LLC,
To Provide Investment Banking & Bond Underwriting Services for the Bayfront Project
IN WITNESS WHEREOF, City and Consultant 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
Attest:
Approved as to form:
J.P. Morgan Securities LLC
/····"~~/
/, ..... /
By:~.. .~··-·-
/""' ct!' ---=-c~;!,<?M Houlberg, Executive Director*
* Consultant to provide signature
authority for signatory.
Exhibit List to Agreement: Exhibit A
Exhibit B: RFP P09-14/15
Exhibit C
Two Party Agreement Between the City ofChult1 Vista and J.P. Morgan Securities LLC to Provide lnvestn1e11t Banking & Bond
Underwriting Services for the Bayfront Project
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Exhibit A
to
Agreement between
City of Chula Vista
and
J.P. Morgan Securities LLC
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
( ) The Chula Vista Public Financing Authority, a
( ) The Chula Vista Industrial Development Authority, a
( ) Other: ___________________ , a [insert business form]
3. Place of Business for City:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
4. Consultant:
J.P. Morgan Securities LLC
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
560 Mission Street, Floor 3
San Francisco, CA 94105
Phone: ( 415) 315-5958
Fax: ( 415) 240-4088
Two Party Agreenient Between the City of Chula Vista and J.P. Morgan Securities LLC to Provide 111vest1nent Banking & Bond
Underwriting Services .for the Ba)front Project
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7. General Duties:
Consultant shall provide investment banking and bond underwriting services and preform
related duties for the Chula Vista Bayfront project.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
1) Consultant shall work collaboratively with City staff, San Diego Port District staff,
City's Financial Advisor, and other stakeholders to develop a comprehensive
financing plan for the Chula Vista Bayfront project that minimizes debt service costs.
2) Consultant shall participate throughout the planning process, including attending
meetings related to financing, performing necessary research and quantitative
analysis, and providing input regarding pricing implications of various debt
structuring options.
3) Consultant shall assist in final structuring of project debt issue, including
recommendations on the timing of the debt sale, maturity schedule, call provisions,
lien structure and security, restrictions and covenants to be included in the financing
documents, bond ratings, cash flow modeling of revenues, and debt service
requirements.
4) Consultant shall participate m the preparation and review of bond and legal
documents.
5) Consultant shall assist the City in preparing materials for review by, and presentations
to, the City council, credit rating agencies, bond insurance companies, and investors,
as appropriate.
6) Consultant shall develop a sale strategy and marketing plan, and conduct such bond
marketing activities as the City and Consultant agree are necessary or desirable m
marketing project bonds.
7) Consultant shall assist in the preparation and documentation necessary to timely close
each bond issue and shall timely deliver the necessary funds to purchase each bond
issue in accordance with the terms of the respective bond purchase agreements.
8) Consultant shall manage the Underwriting Team prior to and during the debt
financing process.
9) Consultant shall prepare and present timely and comprehensive summary analysis of
project debt issue and other financing mechanisms.
B. Date for Commencement of Consultant Services:
Two Party Agreement Between the City of Ciulla Vista and J.P. Morgan Securities LLC to Provide l11vest1nent Banking & Bontl
Underwriting Services for the Bayfront Project
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(X) Same as Effective Date of Agreement
( ) Other: _________ _
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1:
-----------~
Deliverable No. 2:
-----------~
Deliverable No. 3:
-----------~
D. Date for completion of all Consultant services: This agreement shall be effective upon
execution for a period of one year, with five one-year options. The City may exercise
each one-year option at its sole discretion, upon written notification by the City Manager,
or designee, to the Consultant.
9. Materials Required to be Supplied by City to Consultant:
10. Compensation: The Consultant shall be compensated pursuant to the terms of a Bond
Purchase Agreement or similar Agreement approved by the City Council. Such payment will
be contingent on the successful closing of the financing program.
A. ( ) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant 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: , payable as follows: -------
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
I. ( ) 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 Consultant shall have represented in writing that
Two Party Agreen1e11t Between the City of Chula Vista a11d J.P. Morgan Securities LLC to Provide l11vestment Banking & Bond
Underwriting Services for the BaJ!.front Project
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said percentage of completion of the phase has been performed by the Consultant.
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 Consultant 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.
Consultant 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 Consultant
as to said Phase.
Phase Fee for Said Phase
1. $
2. $
3. $
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 Consultant shall have represented in writing that
said percentage of completion of the phase has been perfmmed by the Consultant.
The practice of making interim monthly advances shall not convert this agreement to
a time and materials basis of payment.
C. ( ) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as herein required, City shall pay
Consultant for the productive hours of time spent by Consultant 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. ( ) Not-to-Exceed Limitation on Time and Materials Arrangement
Two Party Agreement Between tile City of Chula Vista anti J.P. Morgan Securities LLC to Provide Investment Btlnkittg & Bond
Underwriting Services for the Bayfront Project
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Notwithstanding the expenditure by Consultant of time and materials in excess of said
Maximum Compensation amount, Consultant agrees that Consultant will perform all
of the Defined Services herein required of Consultant for
$ , including all Materials, and other "reimbursables"
(Maximum Compensation).
2. ( ) Limitation without Further Authorization on Time and Materials Arrangement
At such time as Consultant shall have incurred time and materials equal to
$ (Authorization Limit), Consultant shall not be entitled
to any additional compensation without further authorization issued in writing and
approved by the City. Nothing herein shall preclude Consultant from providing
additional Services at Consultant'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.
D. (X)Other
See Exhibit C.
11. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Consultant in the performance of services
herein required, City shall pay Consultant at the rates or amounts set forth below:
(X)None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to exceed $ -----$ -----
( ) Copies, not to exceed $ -----$ ___ _
( ) Travel, not to exceed $ ____ _ $ ___ _
( ) Printing, not to exceed $ ____ _ $ ___ _
( ) Postage, not to exceed $ ____ _ $ ___ _
( ) Delivery, not to exceed$ -----$ ___ _
( ) Outside Services: $ ___ _
( ) Other Actual Identifiable Direct Costs: $ ___ _
, not to exceed $ -----------------
$ ___ _
, not to exceed $ -----------------
$ ___ _
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Two Pt1rty Agreeme11t Between the City of Chula Vista and J.P. Morgan Securities LLC to Provide Investment Ban/ting & Bond
Underwriting Services for the Bayfront Project
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12. Contract Administrators:
City:
Tiffany Allen
Treasury & Business Manager
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910-2631
(619) 691-5179
Consultant:
John Houlberg
Executive Director
J.P. Morgan
560 Mission Street, Floor 3
San Francisco, CA 94105
(415) 315-5958
13. Liquidated Damages Rate:
( ) $ ____ per day.
( ) Other: _________ _
(X)None
14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest
Code (Chula Vista Municipal Code chapter 2.02):
(X) Not Applicable. Not an FPPC Filer.
( ) FPPC Filer
( ) Category No. 1. Investments, sources of income and business interests.
( ) Category No. 2. Interests in real property.
( ) Category No. 3. Investments, business pos1ttons, interests in real property, and
sources of income subject to the regulatory, permit or licensing authority of the
department administering this Agreement.
( ) 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.
Two Ptirty Agreement Between tfie City ofClluln Vista anti J.P. Morgan Securities LLC to Provide Investment Btu1king & Bond
Vnde1writing ServicesjOr the Bayfro11t Project
J :\Attorney\lv[ichae!Sh\Bayfront\Finance-2015\Bond lssuance\Agrcc1ncnts\Tw0Party-JPMorg~ n-8.6. 15-RevFJNALdocx
Page 20
ACN: 15009
( ) Category 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.
( ) List Consultant Associates interests in real property within 2 radial miles of Project
Property, if any:
15. ( ) Consultant is Real Estate Broker and/or Salesman
16. Permitted Subconsultants: None.
17. Bill Processing:
A. Consultant's Billing to be submitted for the following period of time:
( ) Monthly
( ) Quarterly
( ) Other:
~~~~~~~~~~~~-
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other: _________ _
C. City's Account Number: 09100-6301
18. Security for Performance
(X)None
Two Party Agreement Between the City of Chula Vista and J.P. Morgan Securities LLC to Provicle Invesf/nent B"nking & Bond
U11denvriting Services for the Ba;.front Project
J :\Attomcy\MichaelSh\Bayfront\F inancc-20 l 5\Bond Issuance \Agreements\T woPmty-JPMorgan-8.6.15-RevFINALdocx
Page 21
ACN: 15009
( ) 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 Consultant 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 Consultant Services
( ) Other: _________ _
( ) Other: The Retention Amount may be released on a monthly basis provided that
Consultant has performed said monthly services to the sole satisfaction of the Assistant
City Manager/Director of Development Services or his designee.
Two Party Agreement Between the City of Chula Vista und J.P. Morgan Securities LLC to Provide lnvestnient Banking & Bond
Undenvriting Services jOr the Bayfront Project
J :\Attomeyllvlichae!Sh\Bayfront\Finance-20 l 5\Bond lssuancc\Agreements \Two Party-JPMurgan-8.6.15-RevFINAL.docx
Page 22
RFP P09-l 4/15
CllY OF
CHULA VISTA
REQUEST FOR PROPOSAL
TO PROVIDE
Exhibit B
INVESTMENT BANKING AND UNDERWRITING SERVICES
RFP P09-14/15
RFP Issue Date: February 19, 2015
Proposal Due Date and Time: March 18, 2015 4:00 pm
City of Chula Vista
Finance Department
I. CLIENT INTRODUCTION
QlYOf
CHUlAVISfA
ExhibitB
Page3
Chula Vista is located at the center of one of the richest cultural, economic and
environmentally diverse zones in the United States. lt is the second-largest City in San Diego
County with a population of nearly 250,000. Chula Vista boasts more than 50 square miles of
coastal landscape, canyons, rolling hills, mountains, and a variety of natural resources and
quality infrastructure. Established neighborhoods, contemporary communities, start-up firms,
corporations, nationally recognized entertainment venues, the nation's only warm-weather
Olympic Training Center, an award winning nature center and a historic downtown all
contribute to Chula Vista's attraction for both families and businesses.
Chula Vista means "beautiful view". It has great year-round weather; miles of trails,
coastline, mountains and open space beckon runners, hikers, cyclists, birders, and outdoors
enthusiasts from the bay to lakes.
II BAYFRONTPROJECT AT A GLANCE
The Chula Vista Bayfront is a prime area for
development. A joint plarming effort· between the City of
Chula Vista ("City") and the San Diego Unified Port
District ("Port") created the Chula Vista Bayfront Master
Plan (CVBMP) which envisions developing a world-class
waterfront using sound planning and economics. The
CVBMP project area encompasses a total of
approximately 550 acres that includes approximately 490
acres ofland area and 60 acres of water area.
http://www.chulavistaca.gov/City Services/Development Services/Planning Building/Imag
es/CYB DRAFT conceptua!Rendering v2B.jpgThe Chula Vista Bayfront Master Plan
(CVBMP) transforms Chula Vista's underused industrial bayfront landscape into a thriving
residential and world-class waterfront resort destination. The Plan establishes thousands of
new jobs, creates new public parks, protects natural coastal resources, provides conference
and visitor-serving amenities and builds an important asset for the San Diego region, the
South Bay, Chula Vista residents and coastal visitors. The CVBMP is the result of a decade-
long joint planning effort by a broad coalition of stakeholders, the Port of San Diego, the City
of Chula Vista and Pacifica Companies. The CVBMP was approved by the California
Coastal Commission on August 9, 2012.
http://v1vvw.chulavistaca.gov/City Services/Development Services/Planning Building/Imag
es/CYB DRAFT HSt conceptualRendering v2B.jpg
The Bayfront project was collaboratively planned through more than 100 community
meetings to ensure broad community stakeholder support.
OlYOf
CHULA VISfA
ExhibitB
Pages
Citizens Advisory Committee. The resulting draft land use plans were shaped through an
extensive public participation program, including a comprehensive environmental study,
which was certified in 201 0.
The master plan will be implemented jointly by the Port of San Diego and the City of Chula
Vista in four major phases over a 24-year period. Phase one of implementation includes the
development of the resort conference center, the creation of public parks and open space, the
restoration of habitat areas, and the construction of a new fire station and mixed-use
residential development.
Over the next several years, the City anticipates the CVBMP's new development projects
will require financing between $180 million to $510 million in capital and infrastructure
projects. The City and Port expect a need to finance approximately $180 million in
infrastructure costs before the convention center and hotel can open for business. A further
amount is likely to be required to finance a portion of the cost of the convention center.
To this end, the City of Chula Vista is seeking proposals from firms qualified to serve as
senior managing and/or co-managing underwriter for a variety of potential financings that
include Certificates of Participation (COPs) and Community Facilities Districts (CFDs) and
other financing mechanisms relating to the development of the Chula Vista Bayfront.
Chula Vista Bayfront Master Plan Financing Agreement
On May 8, 2012, the City of Chula Vista and the San Diego Unified Port District approved
the Bayfront Master Plan Finance Agreement. The purpose for the agreement was to identify
the rights and obligations of each agency with respect to the financing, development and
construction of public improvements, infrastructure and conference center for the
implementation of the Bayfront Master Plan in accordance with the certified Final
Environmental Impact Report approved by the City and the Port District on May 16, 2010.
RIDA Corporation
On October 14, 2014, the Board of Port Commissioners selected RIDA Development
Corporation to enter negotiations to develop a destination resort and convention center on the
Chula Vista Bayfront (CYB). RIDA has developed and owns several other large-scale hotels
including the 720-room Omni Orlando Resort at Champions Gate and the 1,400-room Hilton
Orlando. RIDA broke ground in April 2014 on the 1,000-room Marriott Marquis Houston
which will be attached to the 1.2 million square foot convention center.
On February 10, 2015, the Board of Port Commissioners approved an Exclusive Negotiating
Agreement (ENA) with RIDA. The ENA establishes a timeline of deliverables during the
term of the agreement, including progrannning the type and size of hotel and convention
= 01YOF
CHUlA VlsrA
Exhibit B
Page7
Title, Name of Firm, Address, City, State, Zip, Telephone number, Fax number, and
E-mail address should be included. Also the Cover Letter should include a summary
of why the Respondent believes they should be selected to provide investment
banking and underwriting services to the City.
B. Questions
Proposers shall submit proposals in the following format, with a table of contents and
include all elements listed below.
1. Firm Experience
Provide an overall descriptive summary of your firm and its scope of business,
specifically as it relates to preparing financial strategies and experience in large
infrastructure projects. This description should also include a case study that
illustrates your experience in this area where the proposed financing team
members have served as lead consultants.
Describe your firm's bond distribution capabilities including the experience of the
individual primarily responsible for underwriting the proposed bonds. The firm's
ability to access both retail and institutional investors should be described.
2. Technical
a. Describe the firms understanding of the issuer's financial situation,
including ideas on how the issuer should approach the financing issues
such as bond structures, credit rating strategies and investor marketing
strategies.
b. Describe the recommendations and financing techniques that your firm
proposes to structure the City of Chula Vista's Bayfront financing plan.
Include your recommendation for either a competitive, negotiated or a
private placement and why.
c. Describe how your firm would work with bond counsel to ensure
acceptance of the financing structure and work through any legal issues
that may arise.
d. From a timing perspective, provide a pro-forma timeline on when the City
could anticipate coming to market.
3. Personnel
OlYOf
CHULA VJsrA
Exhibit B
Page9
sealed envelope bearing the Respondent's name and address, and clearly marked with
the RFP name, number, date, and time due to:
City of Chula Vista
Attn: Finance Department/Purchasing Division
276 Fourth Avenue Building "A"
Chula Vista, CA 9191 0
The City will conduct a preliminary review of the proposals to determine if the above
items and copies are included as required in the RFP. If a proposal does not include all
items fully completed, the proposal shall be considered as not responsive.
C. Rights of City
This RFP does not commit the City to enter into an Agreement, nor does it obligate the
City to pay for any costs incurred in preparation and submission of proposals or in
anticipation of an Agreement. The City may investigate the qualifications of any
Respondent under consideration, require confinnation of information furnished by the
Respondent, and require additional evidence·or qualifications to perform the Services
described in this RFP.
The City reserves the right to:
1. Reject any or all proposals.
2. Issue subsequent Requests for Proposal.
3. Postpone opening for its own convenience.
4. Remedy technical errors in the Request for Proposal process.
5. Negotiate with any, all, or none of the Respondents.
6. Solicit best and final offers from all or some of the Respondents.
7. Select one or more Respondents.
8. Accept other than the lowest proposed fees.
9. Waive infom1alities and irregularities in proposals.
D. Collusion
By submitting a proposal, each Respondent represents and warrants that its proposal is
genuine and not false or collusive or made in the interest of, or on behalf of any person
not named therein; that the Respondent has not directly or indirectly induced or solicited
any other person to submit a false proposal, or any other person to refrain from
submitting a proposal; and that the Respondent has not, in any manner, sought collusion
to secure any improper advantage over any other person submitting a proposal.
OlYOF
CHU!A VISfA
ExhibitB
Page 11
3. Minimum Limits of Insurance. Consultant must maintain limits no less than those
included in the table below:
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.
anolicable)
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
Liabilitv: $1,000,000 disease-each employee
iv. Professional '·• $1,000;ooo each occurrence
Liability or Errors
& Omissions
Liability:
lf the Consultant maintains higher limits than the minimums shown above, the City requires
and shall be entitled to coverage for the higher limits maintained by the Consultant.
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 Consultant 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, 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 Consultant, where applicable, and,
B.
aw Of
CHU!A VISrA
Exhibit B
Page 13
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 AV. lf 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 AX. Exception may be made for the State Compensation
Fund when not specifically rated.
8. Verification of Coverage. Consultant 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 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. Consultant 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 specifications.
10. Not a Limitation of Other Obligations. Insurance provisions under this Article shall not
be construed to limit the Consultant's obligations under this Agreement, including
Indemnity.
11. Additional Coverage. To the extent that Insurance coverage exceeds the minimums
identified in section 3, recovery shall not be limited to the insurance minimums, but shall
instead extend to the actual policy limits.
VIII. INDEMNIFICATION
Respondent shall be required to indemnify the City pursuant to the following language:
A. Indemnification and Hold Harmless Agreement
To the fullest extent provided by law with respect to all liability except liability for
Professional Services, covered under Section B, the Service Provider agrees to defend,
OTYOf
CHULA VISfA
Exhibit B
Page 15
Respondent 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 for this project.
X. PUBLIC DISCLOSURE
All proposals submitted in response to this RFP become the property of the City and are
public records, and as such may be subject to public review. Under the California Public
Records Act (California Govermnent Code Section 6250 et seq.) records in the custody of
a public entity generally have to be disclosed unless the information being sought falls
into one or more of the exemptions to disclosure set out in Government Code Sections
6254 through 6255. The cover letter of the proposal should contain a paragraph that states
whether or not Respondent believes that its proposal does or does not contain information
that falls into one of the exemptions of Government Code Sections 6254 through 625 5
and whether or not Respondent considers such information to be confidential.
City may be obligated to disclose proposal to any party that requests it. Regardless of ··
assertions of confidentiality, proposal contents may still be disclosed if City, or a court
with jurisdiction, determines that such proposal is a public record requiring disclosure.
XI. RA TING AND SELECTION PROCESS AND TIMELINE
A. Evaluation Criteria
The proposals will be ranked by a selection panel using the following criteria:
• Experience and capabilities of the firm in similar transactions
• Experience of the assigned individuals
• Quality and suitability of the proposed financing plan
• Price/cost
B. Evaluation Procedure
A Selection Review Panel, generally made up of City staff, will review the proposals and
establish a list of finalists based on evaluation criteria/matrix. The City will interview the
finalists and rank the finalists. The names of the Review Panel members are not revealed
prior to the interviews. The composite rating and evaluation forms prepared by Panel
members will not be revealed.
Approximately 1 hour will be allowed for the oral interview and a question and answer session.
Proposal & Offer to Contract
C!1Y Of
CHULA VISTA
Yes No --------
Exhibit B
Page 17
This Proposal and Offer to Contract, subject to the specifications, terms and conditions,
and General Provisions (Attachment A) herein, when duly accepted by the City shall
constitute the contract between the parties.
In consideration of the payments to be provided by the City, and in accordance with the
conditions expressed in the proposal forms and specifications attached and by this
reference incorporated herein, contractor agrees to provide investment banking and
underwriting services to the City of Chula Vista.
Company Name -----------------------------
Address --------------------------------
City _____________ _ State ___ _ Zip ______ _
Telephone ____________ _ Fax ______________ _
Email address
Print Name ___________ _ Title ______________ _
Signature ____________ _ Date ______________ _
Information that must be completed and returned with proposal:
Public Agency Participation Option
Proposal & Offer to Contract
Disclosure Statement (Attachment C)
If addendum(s) is issued it must be signed and retnrned with proposal.
OlYOF
CHUlA VISii\
Exhibit B
Page 19
Section 1011 of the Charter, in the event two or more bids are received which are for the same
total amount or unit price and in all other respects are equal, the contract shall be awarded to a
local bidder. In the event, however, that such tie bids are all from vendors either wholly inside
or all outside of the city, then the contract shall be awarded by drawing lots in public. In
evaluating bids for award, the City of Chula Vista considers the I% sales tax allocated back to
the City from vendors located in Chula Vista.
City's Best Interests
The City of Chula Vista reserves the right to accept or reject any or all proposals received as a
result of this Request for Proposal. The City further reserves the right to negotiate with qualified
contractors, to amend, or to cancel, in part or in whole, this Request for Proposal if it is in tbe
City's best interest to do so.
Public Disclosure
All proposals submitted in response to this RFP become the property of the City and are public
records, and as such may be subject to public review. Under the California Public Records Act
(California Government Code Section 6250 et seq.) records in the custody of a public entity
generally have to be discl()s~d unlessthe information being sought falls i!lt() one or more of the
exemptions to disclosure set out in tfovern~ent Code Sections 6254 through 6255. The cover
letter of the proposal should contain a paragraph that states whether or not Respondent believes
that its proposal does or does not contain information that falls into one of the exemptions of
Government Code Sections 6254 through 625 5 and whether or not Respondent considers such
information to be confidential.
City may be obligated to disclose proposal to any party that requests it. Regardless of assertions
of confidentiality, proposal contents may still be disclosed if City, or a court with jurisdiction,
determines that such proposal is a public record requiring disclosure.
ATTACHMENTS:
Attachment A -General Provisions
Attachment B -Chula Vista Bayfront Master Plan Financing Agreement
Attachment C -Disclosure Statement
Attaclunent D -Sample Two-Party Agreement
Exhibit C
to
Agreement between
City of Chula Vista
and
J.P. Morgan Securities LLC
1}·'~,;~~~J~*!'l~11>1t~~f ;i;~~~(~,o~~~iiAc~T~~~~~~:~H~:~1~~~:1~~~~s'~
Per Bond $5.00 -To be Negotiated To be Negotiated To be
Takedown $7.50 per bond Negotiated
Remarketing NIA 8 bps 10 bps Daily: 10 bps
Agent Fees Weekly: 8 bps
Credit Facility NIA To be Negotiated To be Negotiated To be
Fee Negotiated
Fees related to other forms of financing subject to future negotiation and separate financing
agreements.
-1-
EXHIBIT “F”-ASSIGNMENT OF CONTRACTS AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION
OF INVESTMENT BANKING AND BOND UNDERWRITING SERVICES
AGREEMENT
This ASSIGNMENT AND ASSUMPTION OF INVESTMENT BANKING AND
BOND UNDERWRITING SERVICES AGREEMENT (“Assignment”) is made and entered
into as of April __ 2020 (“Assignment Date”), by and between the CITY OF CHULA VISTA,
a chartered municipal corporation (“City”), and the CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of
the State of California (“JEPA”), with reference to the following facts:
R E C I T A L S
A.City selected J.P. Morgan Securities LLC, a Delaware limited liability company
(“J.P. Morgan”) to serve as underwriter for the municipal bond financing for the Chula Vista
Bayfront Project (“Bayfront Project Bonds”) pursuant to a response to City’s Request For Proposal:
P09-14/15.
B. To implement this selection, City and J.P. Morgan entered into that certain
Agreement between City of Chula Vista and J.P. Morgan Securities LLC, To Provide Investment
Banking & Bond Underwriting Services for the Bayfront Project dated June 1, 2015 (“Agreement”).
C. For purposes of issuing the Bayfront Project Bonds, City and the San Diego Unified
Port District, a public corporation (“District”) formed the JEPA.
D. City and JEPA, with the consent of J.P. Morgan, now desire to transfer City’s rights
under the Agreement to the JEPA, on the terms set forth in this Assignment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the parties hereto agree as follows :
1.Assignment and Assumption. Effective as of the Assignment Date, City ꞏ
hereby grants, transfers, conveys, assigns and delegates to JEPA all of its rights and interests of
City in, to and under the Agreement, which is attached hereto and made a part hereof. JEPA
hereby accepts such assignment and delegation by City and agrees to fully perform and assume
all of the obligations of City under the Agreement first arising from and after the Assignment
Date. For purposes of administering the Agreement, the Executive Director of the JEPA will assume
the responsibilities of the City Manager, the JEPA Board of Directors will replace the City Council,
and the JEPA Account will replace the City Account.
2.City Representations and Warranties. City represents and warrants to the
JEPA that as of the Assignment Date: (a) the Agreement is currently in full force and
effect, has not been amended, and has been extended until May 31, 2021; (b) City and
J.P. Morgan are currently in good standing under the Agreement; (c) there are no
payments currently due or owing to J.P. Morgan under the Agreement; and (d) to the best
of City’s knowledge, neither City nor J.P. Morgan have taken any action, or failed to act,
in any way so as to have caused, or make imminent, a material breach of their respective
responsibilities under the Agreement.
Attachment B
-2-
EXHIBIT “F”-ASSIGNMENT OF CONTRACTS AND ASSUMPTION AGREEMENT
3.Acknowledgement and Consent by J.P. Morgan. By signing below J.P. Morgan
(a) acknowledges and accepts the terms of the Assignment; (b) warrants and represents to City
and the JEPA that, as of the Assignment Date, to the best of its knowledge: (i) the
Agreement is currently in full force and effect, has not been amended, and has been
extended until May 31, 2021, (ii) City is currently in good standing under the Agreement,
(iii) there are currently no payments due or owing to J.P. Morgan thereunder, (iv) neither
City nor J.P. Morgan have taken any action, or failed to act, in any way so as to have
caused, or make imminent, a material breach of their respective responsibilities under the
Agreement; and (c) recognizes the JEPA, on effectiveness of this Assignment, as the party
contracting for its services and to whom it owes the duty of performance under each and every term
under the Agreement, subject to the terms thereof. J.P. Morgan shall use commercially reasonable
efforts to provide the JEPA with an insurance certificate in compliance with the Agreement within
ten (10) business days of the Assignment Date.
4.Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, and all of which shall, taken together, be deemed one document.
5.Survival. This Assignment and the provisions hereof shall inure to the benefit of
and be binding upon the parties to this Assignment and their respective successors, heirs and permitted
assigns.
6.No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, City
and JEPA do not intend, and this Assignment shall not be construed, to create a third-party beneficiary
status or interest in, nor give any third-party beneficiary rights or remedies to, any other person or
entity not a party to this Assignment.
7.Governing Law. This Assignment shall be governed by, interpreted under, and
construed and enforceable in accordance with, the laws of the State of California.
[NEXT PAGE IS SIGNATURE PAGE]
-3-
EXHIBIT “F”-ASSIGNMENT OF CONTRACTS AND ASSUMPTION AGREEMENT
[SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION
OF BOND UNDERWRITER SERVICES AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the
Assignment Date.
CITY OF CHULA VISTA,
a chartered municipal corporation
By:
Name:
Title:
Approved as to Form:
_______________________
City Attorney
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY,
a joint powers authority organized and existing under the laws of the State of
California
By:
Name:
Title:
Approved as to Form:
_______________________ ________________________
Co-General Counsel Co-General Counsel
ACKOWLEDGED AND AGREED:
J.P. MORGAN SECURITIES, LLC,
a Delaware limited liability company
By:
Name:
Title:
Chula Vista Bayfront
Facilities Financing Authority
3165 Pacific Highway
San Diego, CA 92101
(619) 686-6200
April 1, 2020
J.P. Morgan Securities LLC
560 Mission Street, Floor 3
San Francisco, CA 94105
Attn: John Houlberg
Re: Bayfront Project Underwriter Letter of Intent
Dear John Houlberg:
The Chula Vista Bayfront Facilities Financing Authority (the “Authority”), a joint powers authority created
pursuant to the Joint Exercise of Powers Agreement between the City of Chula Vista (the “City”) and the
San Diego Unified Port District (the “District”), as such agreement was amended and restated effective
July 25, 2019 and filed as District Clerk No. 70245, is aware of the “Municipal Advisor Rule” of the
Securities and Exchange Commission (effective July 1, 2014) and the underwriter exclusion from the
definition of “municipal advisor” for a firm serving as an underwriter for a particular issuance of municipal
securities.
Whereas, the City selected J.P. Morgan Securities LLC (“J.P. Morgan”) to serve as underwriter for the
municipal bond financing for the Chula Vista Bayfront Project (the “Bonds”) pursuant to a response to the
City’s Request For Proposal: P09-14/15. The Authority hereby designates J.P. Morgan as underwriter for
the Bonds that the Authority currently anticipates issuing. The Authority expects that J.P. Morgan will
provide advice to the Authority, and its consultants, on the structure, timing, terms, and other matters
concerning the Bonds.
It is the Authority’s intent that J.P. Morgan serve as an underwriter for the Bonds, subject to satisfying
applicable procurement laws or policies, formal approval by the Authority, finalizing the structure of the
Bonds and executing a bond purchase agreement. While the Authority presently engages J.P. Morgan
as the underwriter for the Bonds, this engagement letter is preliminary, nonbinding and may be
terminated at any time by the Authority, without penalty, cause or liability for any costs incurred by the
underwriter, J.P. Morgan, or any affiliate thereof.
Furthermore, this engagement letter does not restrict the Authority from entering into the proposed
municipal securities transaction with any other underwriters or selecting an underwriting syndicate that
does not include J.P. Morgan as an underwriter for the proposed municipal securities transaction.
Chula Vista Bayfront
Facilities Financing Authority
Acknowledged and Accepted:
J.P. Morgan Securities LLC
__________________________ __________________________
Randa Coniglio
Executive Director
John Houlberg
Executive Director
Date:
_______________________
Date:
_______________________
Attachment C
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RESOLUTION 20xx-xxx
RESOLUTION OF THE CHULA VISTA BAYFRONT
FACILITIES FINANCING AUTHORITY (AUTHORITY)
APPROVING AN ASSIGNMENT AND ASSUMPTION
OF INVESTMENT BANKING AND BOND
UNDERWRITING SERVICES AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND THE
AUTHORITY AND APPROVING A BAYFRONT
PROJECT UNDERWRITER LETTER OF INTENT
BETWEEN THE AUTHORITY AND J.P. MORGAN
SECURITIES LLC
WHEREAS, the City of Chula Vista (“City”) and the San Diego Unified
Port District (“District”) are participating in a joint planning effort to develop the
Chula Vista Bayfront (“Bayfront”); and
WHEREAS, in support of this process, the Chula Vista City Council (“City
Council”) approved entering into an Agreement to Provide Investment Banking
and Bond Underwriting Services for the Bayfront Project between the City and
J.P. Morgan Securities LLC (“J.P. Morgan”) in June 2015 (“Agreement”); and
WHEREAS, the Agreement requires that J.P. Morgan provide investment
banking and bond underwriting services and perform related duties for the resort
hotel and convention center project on the Bayfront (“Project”); and
WHEREAS, under the Agreement, J.P. Morgan would be compensated
pursuant to a bond purchase agreement and would be contingent on the closing
of the public financing; and
WHEREAS, the term of the Agreement expires on May 31, 2021, but the
City has the right to terminate the Agreement for cause or without cause before
that time; and
WHEREAS, to move forward with J.P. Morgan as the underwriter for the
public financing component of the Project, the City must assign the Agreement to
the Chula Vista Bayfront Facilities Financing Authority (“Authority”); and
WHEREAS, the Authority was formed for the purpose of financing and/or
refinancing portions of the Bayfront and will be the entity responsible for issuing
Bayfront related public debt for the Project; and
WHEREAS, it is now appropriate for the City to assign the Agreement to
the Authority and the Authority to assume the obligations under the Agreement
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pursuant to the Assignment and Assumption of Investment Banking and Bond
Underwriting Services Agreement attached as Attachment A (“Assignment and
Assumption”); and
WHEREAS, the Assignment and Assumption would be effective as of the
date the Board of Directors of the Authority (“Authority Board”) approves the
Assignment and Assumption; and
WHEREAS, in the Assignment and Assumption, the City and J.P. Morgan
represent and warrant, among other things, that as of the effective date of the
Assignment and Assumption (i) the Agreement is currently in full force and effect;
(ii) there are no outstanding payment obligations; and (iii) there is no material
breach by either party; and
WHEREAS, J.P. Morgan has reviewed and consented to the Assignment
and Assumption in the form presented in Attachment A; and
WHEREAS, on April 21, 2020, the City Council adopted Resolution 2020-
082 approving the Assignment and directing the City Manager to execute the same
upon approval of the Authority; and
WHEREAS, in addition to the Assignment and Assumption, J.P. Morgan is
requesting the Authority enter into a Bayfront Project Underwriter Letter of Intent
(“LOI”) in the form presented in Attachment B to further memorialize the
relationship between the Authority and J.P. Morgan; and
WHEREAS, the LOI designates J.P. Morgan to serve as underwriter for the
public financing subject to satisfying applicable procurement laws or policies,
formal approval by the Authority, finalizing the structure of the public financing, and
executing a bond purchase agreement; and
WHEREAS, the LOI is preliminary, non-binding and may be terminated at
any time by the Authority, without penalty, cause or liability for any costs incurred
by the underwriter, J.P. Morgan, or any affiliate thereof; and
WHEREAS, the LOI does not restrict the Authority from ultimately entering
into a municipal securities transaction for the project with any other underwriter or
underwriting syndicate; and
WHEREAS, staff recommends the Authority approve the Assignment and
Assumption in the form attached as Attachment A and the LOI in the form
attached as Attachment B and direct the Executive Director to execute the
Assignment and Assumption and LOI.
NOW, THEREFORE, BE IT RESOLVED that the Chula Vista Bayfront
Facilities Financing Authority (“Authority”), hereby authorizes its Executive Director
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to enter into the Assignment and Assumption of Investment Banking and Bond
Underwriting Services Agreement between the City of Chula Vista and the
Authority, in substantially the form presented to it and attached hereto as
Attachment A.
BE IT FURTHER RESOLVED that the Authority authorizes its Executive
Director to execute the Bayfront Project Underwriter Letter of Intent between the
Authority and J.P. Morgan Securities LLC, in substantially the form presented to it
and attached hereto as Attachment B.
APPROVED AS TO FORM AND LEGALITY:
_____________________
Co-Counsel
_____________________
Co-Counsel
PASSED AND ADOPTED by the Board of Directors of the
Chula Vista Bayfront Facilities Financing Authority, this 27th day of April 2020, by
the following vote:
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Attachment A
Assignment and Assumption of Investment Banking and Bond
Underwriting Services Agreement
(See attached.)
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Attachment B
Bayfront Project Underwriter Letter of Intent
(See attached.)