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HomeMy WebLinkAbout10-15-2013 c5 rfp bond counsel & financial advisor FROM: Wayne Padilla, Finance Director SUBJECT: REQUEST FOR PROPOSAL DOCUMENTS FOR BOND COUNSEL AND FINANCIAL ADVISOR SERVICES RECOMMENDATION Approve the RFP documents for bond counsel and financial advisor services and authorize their release. DISCUSSION Background Following an extensive request for proposals (RFP) process in 2006, contracts were awarded on December 6, 2006 to Fieldman Rolapp for financial advisor services and Jones Hall for bond counsel and disclosure counsel services. As set forth in the agreement, the terms were for three years, with an option to renew for another three years. Based on their prior performance on behalf of the city, the City Manager approved a three-year contract extension for both contracts on May 26, 2010. Both contracts expired in December 2012. However, due to staffing transitions and workload priorities in the Finance Department, an RFP process for new contracts was not issued before that time and Council approved a one-year extension until December 6, 2013 at the January 22, 2013 Council Meeting. Staff has prepared the attached Request for Proposal documents with plans to issue it upon the City Council’s approval. Copies of these documents will be made available to the Chamber of Commerce to ensure that any local firm with an interest in submitting a proposal is given additional notice about this opportunity. Scope of Services The scope of services required is provided on a case-by-case basis for project financings. These require specific technical skills that cannot reasonably be provided by staff. Bond counsel drafts the legal documents necessary to issue and secure the bonds or other form of financing and advises the City regarding state law and federal tax issues. Bond Counsel also provides any required legal opinions that are needed in conjunction with the financing. Disclosure Counsel drafts the disclosure document (known as the “Official Statement”) used to market the bonds to investors as well as the City’s continuing disclosure agreement under which it provides annual disclosures to the secondary market regarding its outstanding bonds. The firm also advises the City on securities law issues as they arise. Meeting Date Item Number 10-15-13 C5 - 1 The Financial Advisor monitors the city’s financing goals and provides advice and assists City in formulating and executing its financing plans and helps to structure the City’s debt financing transactions with the assistance of Bond Counsel. Additionally, these firms provide on-going advice and assistance on the best approach in the meeting the City’s capital financing needs, including the refinancing of existing debt. This assistance is particularly beneficial to the City in preparing early assessments of financing options. There are several large, proposed debt financing projects that will require the services of these advisors: 1. Los Osos Valley Road Interchange. The 2013-15 Financial Plan projects $8.05 million in debt financing during late 2014 or early 2015. This will be supported by General Fund revenues. 2. Water Reclamation Facility Upgrade. The current project funding plan projects $50.55 million in debt financing for these improvements in 2016-17. This will be supported by Sewer Fund revenues. 3. Palm-Nipomo parking structure. The 2013-15 Financial Plan projects $18 million in debt financing for construction of a parking structure in 2017-18. This will be supported by Parking Enterprise Fund revenues. FISCAL IMPACT There is no direct fiscal impact generated by these agreements since the firms’ compensation is typically funded from the proceeds of the debt issued. Fees are commensurate with the size and complexity of the financing transaction. ALTERNATIVES Do not approve the release of the RFP and approve further contract extensions with these firms. This option is not recommended since it is prudent to periodically solicit new proposals for professional services from outside firms before the existing term of a professional services agreement has lapsed and the city is not directly engaged in an on-going transaction that would be hindered by a potential change in the city’s consultants. The city is not currently processing a debt issuance transaction at this time. t:\council agenda reports\2013\2013-01-22\bond counsel contract extension (padilla-mcclure)\bond counsel and financial advisor contract extension car.docx C5 - 2 990 Palm Street  San Luis Obispo, CA 93401 Notice Requesting Proposals for BOND COUNSEL SERVICES Specification No. 91270 The City of San Luis Obispo is requesting proposals for bond counsel services pursuant to Specification No. 91270. All proposals must be received by the City Clerk no later than 3:00 pm on Friday, November 15, 2013 at the above address. Proposals received after said time will not be considered. An optional pre-proposal teleconference will be held at 11:00 am on Monday, November 11, 2013 to answer any questions that the prospective bidders may have regarding the City's request for proposals. Proposers interested in participating in the pre-proposal teleconference should contact Wayne Padilla, Director of Finance and Information Technology at wpadilla@slocity.org or (805) 781-7125 to receive a conference line phone number and password. Finalist interviews have been scheduled for Friday, December 6, 2013. Additional information may be obtained by contacting Wayne Padilla, Director of Finance & Information Technology at (805) 781-7125 C5 - 3 A. Description of Work 1 Overview Upcoming Financings About the City City Finances Bond Counsel Services B. General Terms and Conditions 4 Proposal Requirements Contract Award and Execution Contract Performance C. Special Terms and Conditions 8 References Proposal Content Proposal Length and Copies Proposal Evaluation and Selection Proposal Review and Award Schedule Pre-proposal Conference Contract Term Release of Reports and Information Copies of Reports and Information Non-Exclusive Contract D. Sample Form of Agreement 11 E. Insurance Requirements 13 F. Proposal Submittal Forms 15 Proposal Submittal Summary References C5 - 4 Overview The City is requesting proposals for bond counsel services for a five-year term, with an option to renew for subsequent, one-year terms. It is the City’s policy to establish a long-term, ongoing relationship with its bond counsel, under which advice is available at all times as needed. However, at the end of contract terms, it is the city’s policy to seek formal proposals to ensure that it continues to receive quality professional services at the best competitive price. The city’s current bond counsel is Jones Hall who will be invited to submit a proposal. Proposed, Future Financings As noted above, this RFP is due to our policy of formally requesting proposals on a periodic basis, and the desire to establish an ongoing relationship: it is not driven by the need for financial advisor services for an impending project. However, debt financings that are likely during the next four years include: 1. Water Reclamation Facility Upgrade. The current project funding plan projects $50.55 million in debt financing for these improvements in 2016-17. This will be supported by Sewer system revenues. 2. Palm-Nipomo parking structure. The 2013-15 Financial Plan projects $18 million in debt financing for construction of a parking structure in 2017-18. This will be supported by Parking Enterprise Fund revenues. 3. Los Osos Valley Road Interchange. The 2013-15 Financial Plan projects $8.05 million in debt financing during late 2014 or early 2015. This will be supported by General Fund revenues and may use impact fees as a backstop revenue source. These are likely to be revenue or lease-backed issues (like virtually all of our other bond issues over the last several years). However, the selected financial advisor should be capable of meeting a wide range of financing needs, including assessment and special tax districts (land-based financing) since the city is exploring these financing options for future use. About the City Detailed information about the City and its organization is available on our web site at www.slocity.org. City Finances Detailed information about the City’s finances, past debt financings and key fiscal policies are also available on our web site. The 2013-2015 Financial Plan is the key source document for this information, and it is available on the City’s web site at: www.slocity.org/finance/budget.asp. Of particular interest in this document in terms of the scope of the work are: 1. Budget Message and Highlights (page A-1 to A-21). Section F, Capital Improvement Plan Debt Service Requirements (Section G), which includes a summary of outstanding bond issues 2. Section H especially: capital improvement management (pages H-16 to H-17); capital financing and debt management (pages H18-H23) C5 - 5 Bond Counsel Services The bond counsel services requested should include but not be limited to the following: 1. Providing ongoing legal advice to the City regarding our capital financing needs. 2. Examining the applicable law relating to the financing to be accomplished from the proceeds of the financing. 3. Advise the City in advance, of the legal proceedings required of the proposed financing and the documents related to those proceedings and the timing of their development. Then develop the documentation required of said financing plan, including but not limited to: a. Any necessary site lease, lease agreement, trust agreement and assignment agreement (collectively, the "Financing Agreements"). b. All resolutions adopting and authorizing the execution of the Financing Agreements and the execution, sale and delivery of the Bonds. c. Necessary notices of the sale of the Bonds required in connection with any competitive sale thereof. d. All necessary California Debt Advisory Commission filings and other reports and documents required to be filed by the City in connection with the financing of the project. e. All documentation initially required to organize any authority required to be formed in connection with the financing. f. All certification, deeds, requisitions, receipts and other documents required in connection with the delivery of the Bonds to the original purchaser thereof. g. Documents required to provide the means for the city or other eligible entity to receive reimbursement from debt proceeds for previously expended and eligible costs. h. Ensuring that all required documentation necessary to secure a fixed set of terms from a lender, assignee and/or assignor are provided in advance of the City accepting said terms. 4. Attending all meetings requested by City staff to discuss the financing or at which official action will be taken by the Council on the debt financing. 5. Applying to the Internal Revenue Service for any rulings required by the financing to assure tax-exempt status of the interest represented by the Bonds, when applicable. 6. Advising the City as to the need to register the Bonds under applicable federal securities laws or to obtain a permit to deliver the Bonds under applicable State of California securities laws, or to obtain no- action letters or similar determinations from the Securities Exchange Commission or California Corporations Commission. 7. Providing a legal opinion approving the validity of the Financing Agreements and the execution and delivery of the Bonds, and stating that interest represented by the Bonds is exempt from federal and C5 - 6 State of California personal income taxation. Such opinion will be addressed to the City but will inure to the benefit of the owners of the Bonds, and bond counsel may execute letters to other interested parties entitling such parties to rely upon such opinion. In addition, subject to the completion of proceedings, bond counsel they shall provide such additional legal opinions to the City, the original purchaser of the Bonds and other interested parties as shall be requested of and deemed appropriate by bond counsel. Any opinion delivered by bond counsel in connection with the financing of the project may be subject to such qualifications as may be customary or required by applicable federal or State of California law. 8. Advising the City concerning the Financing Agreements, the Bonds and any resolutions, certificates, agreements and other documents relating to the authorization and delivery of the Bonds at any time following original delivery of the Bonds. 9. Providing such other services as are customarily performed by special legal counsel on similar tax- exempt and taxable financings. 10. Bond counsel has no responsibility to advise the City with respect to legal requirements applicable to the construction of any project, including but not limited to compliance with public bidding requirements, payment of prevailing wages and other matters incident to the contract for such construction, which matters shall be exclusively the responsibility of the City Attorney or other counsel to the City. C5 - 7 PROPOSAL REQUIREMENTS 1. Requirement to Meet All Provisions. Each individual or firm submitting a proposal shall meet all of the terms, and conditions of the Request for Proposals (RFP) specifications package. By virtue of its proposal submittal, the bidder acknowledges agreement with and acceptance of all provisions of the RFP specifications. 2. Proposal Submittal. Each proposal must be submitted in the format described in the RFP specifications and accompanied by any other required submittals or supplemental materials. Proposal documents shall be received by the City Clerk no later than 3:00 p.m. on November 13, 2013. The submittal package shall include 6 (six) hardcopy versions and a thumb drive containing electronic versions of the documents provided in hardcopy form. Each electronic document provided on the thumb drive shall be properly labeled with regard to the order in which it appears in print. No FAX submittals will be accepted. It is the responsibility of each firm submitting a proposal to ensure that the electronic document(s) submitted are protected to ensure that no changes can be made to the submittal once it is in the possession of the city. Attention to the details required by the submittal process will be part of the overall evaluation and scoring. 3. Insurance Certificate. Each proposal must include a certificate of insurance showing: a. The insurance carrier and its A.M. Best rating. b. Scope of coverage and limits. c. Deductibles and self-insured retention. The purpose of this submittal is to generally assess the adequacy of the bidder’s insurance coverage during proposal evaluation; as discussed under paragraph 12 below, endorsements are not required until contract award. The City’s insurance requirements are detailed in Section E. 4. Proposal Quotes and Unit Price Extensions. The prices quoted by the proposer must be entered in figures in the spaces provided on the Proposal Submittal Form. 5. Proposal Withdrawal and Opening. A proposer may withdraw its proposal, without prejudice prior to the time specified for the proposal opening, by submitting a written request to the Director of Finance & IT for its withdrawal, in which event the proposal will be returned to the proposer unopened. No proposal received after the time specified or at any place other than that stated in the "Notice Requesting Proposals" will be considered. All proposals will be opened and declared publicly. 6. Submittal of One Proposal Only. No individual or business entity of any kind shall be allowed to make or file, or to be interested in more than one proposal, except an alternative proposal when specifically requested; however, an individual or business entity that has submitted a sub-proposal to a proposer submitting a proposal, or who has quoted prices on materials to such proposer, is not thereby disqualified from submitting a sub-proposal or from quoting prices to other proposers submitting proposals. 7. Cooperative Purchasing. During the term of the contract, the successful proposer will extend all terms and conditions to any other local governmental agencies upon their request. These agencies will issue their own purchase orders, will directly receive goods or services at their place of business and will be directly billed by the successful proposer. C5 - 8 8. Communications. All timely requests for information submitted in writing will receive a written response from the City. Telephone communications with City staff are not encouraged, but will be permitted. However, any such oral communication shall not be binding on the City. C5 - 9 CONTRACT AWARD AND EXECUTION 9. Proposal Retention and Award. The City reserves the right to retain all proposals for a period of 90 days for examination and comparison. The City also reserves the right to waive non-substantial irregularities in any proposal, to reject any or all proposals, to reject or delete one part of a proposal and accept the other, except to the extent that proposals are qualified by specific limitations. See the "special terms and conditions" in Section C of these specifications for proposal evaluation and contract award criteria. 10. Competency and Responsibility of Bidder. The City reserves full discretion to determine the competence and responsibility, professionally and/or financially, of proposers. Proposers will provide, in a timely manner, all information that the City deems necessary to make such a decision. 11. Contract Requirement. The proposer to whom award is made (Contractor) shall execute a written contract with the City within ten (10) calendar days after notice of the award has been sent by mail to it at the address given in its proposal. The contract shall be made in the form adopted by the City and incorporated in these specifications. 12. Insurance Requirements. The Contractor shall provide proof of insurance in the form, coverages and amounts specified in Section E of these specifications within 10 (ten) calendar days after notice of contract award as a precondition to contract execution. 13. Business Tax. The Contractor must have a valid City of San Luis Obispo business tax certificate before execution of the contract. Additional information regarding the City's business tax program may be obtained by calling (805) 781-7134. CONTRACT PERFORMANCE 14. Ability to Perform. The Contractor warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations. 15. Laws to be Observed. The Contractor shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances, regulations and adopted codes during its performance of the work. 16. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Contractor is required to pay. 17. Permits and Licenses. The Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary. 18. Safety Provisions. The Contractor shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 19. Public and Employee Safety. Whenever the Contractor's operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such C5 - 10 other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 20. Preservation of City Property. The Contractor shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged resulting from the Contractor's operations, it shall be replaced or restored at the Contractor's expense. The facilities shall be replaced or restored to a condition as good as when the Contractor began work. 21. Immigration Act of 1986. The Contractor warrants on behalf of itself and all subcontractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder. 22. Contractor Non-Discrimination. In the performance of this work, the Contractor agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. 23. Work Delays. Should the Contractor be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at the City's sole option, be extended for such periods as may be agreed upon by the City and the Contractor. In the event that there is insufficient time to grant such extensions prior to the completion date of the contract, the City may, at the time of acceptance of the work, waive liquidated damages that may have accrued for failure to complete on time, due to any of the above, after hearing evidence as to the reasons for such delay, and making a finding as to the causes of same. 24. Payment Terms. The City's payment terms are 30 days from the receipt of an original invoice and acceptance by the City of the materials, supplies, equipment or services provided by the Contractor (Net 30). Payment may be made from proceeds of the debt issuance if this is customary for the type of financing, but only upon the acceptance and approval by the city of an original invoice identifying the basis for the fees charged. 25. Inspection. The Contractor shall furnish City with every reasonable opportunity for City to ascertain that the services of the Contractor are being performed in accordance with the requirements and intentions of this contract. All work done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of such work shall not relieve Contractor of any of its obligations to fulfill its contract requirements. 26. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its invoices to City as a condition precedent to any payment to Contractor. 27. Interests of Contractor. The Contractor covenants that it presently has no interest, and shall not acquire any interest—direct, indirect or otherwise—that would conflict in any manner or degree with C5 - 11 the performance of the work hereunder. The Contractor further covenants that, in the performance of this work, no subcontractor or person having such an interest shall be employed. The Contractor certifies that no one who has or will have any financial interest in performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, the Contractor shall at all times be deemed an independent contractor and not an agent or employee of the City. 28. Hold Harmless and Indemnification. The Contractor agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to the Contractor's employees, agents or officers that arise from or are connected with or are caused or claimed to be caused by the acts or omissions of the Contractor, and its agents, officers or employees, in performing the work or services herein, and all expenses of investigating and defending against same; provided, however, that the Contractor's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 29. Contract Assignment. The Contractor shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City. 30. Termination. If, during the term of the contract, the City determines that the Contractor is not faithfully abiding by any term or condition contained herein, the City may notify the Contractor in writing of such defect or failure to perform. This notice must give the Contractor a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. (The City may also terminate the contract for convenience or financial necessity upon giving Contractor 30 days advance written notice of such action.) If the Contractor has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to the Contractor to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under the contract except, however, any and all obligations of the Contractor's surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the termination thereof. In said event, the Contractor shall be entitled to the reasonable value of its services performed from the beginning date in which the breach occurs up to the day it received the City's Notice of Termination, minus any offset from such payment representing the City's damages from such breach. "Reasonable value" includes fees or charges for goods or services as of the last milestone or task satisfactorily delivered or completed by the Contractor as may be set forth in the Agreement payment schedule; compensation for any other work, services or goods performed or provided by the Contractor shall be based solely on the City's assessment of the value of the work-in-progress in completing the overall workscope. The City reserves the right to delay any such payment until completion or confirmed abandonment of the project, as may be determined in the City's sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall the Contractor be entitled to receive in excess of the compensation quoted in its proposal. C5 - 12 1. Contract Term. The term of the contract shall be for a period of five (5) years at which time the performance of the firm will be evaluated. Upon mutual agreement at that time, the contract may be extended by the City Administrative Officer for subsequent one year terms. 2. Proposal Content. Your proposal must include the following information: Submittal Forms a. Proposal submittal cover letter. (item 1 in submittal) b. Certificate of insurance. (item 5 in submittal) c. References from at least three California municipalities for whom you have provided similar services during the past 2 years. (item 4 in submittal) Note: For ease of proposal preparation, proposers are asked to prepare their own proposal submittal forms as long as they contain the information requested below, in the same order that each item is listed here. Qualifications (item 2 in submittal) d. General qualifications of your firm to serve as bond counsel in California. e. Experience as bond counsel to cities where services are provided on an ongoing basis. f. Experience in providing similar services required by the City to comparable California cities. g. Description of particular and interesting issues, problems or complications that arose in previous bond counsel experiences, and how these were resolved or disposed of. h. Resumes and responsibilities of the individuals who would be assigned to work with the City, and if possible, identification of who would be the City’s lead contact. i. Any other information that would assist us in making this contract award decision. Compensation (item 6 in submittal) j. The City expects that compensation will be funded solely from, and solely contingent upon, the proceeds from specific bond issues; and that fees will be related to the size of the issue. However, you may propose an alternative compensation structure. Statement of Litigation, Investigations, Conflicts of Interest and Disqualifications (item 3 in submittal) k. Statement and explanation of any instances where your firm has been removed from a project or disqualified from proposing on a project. l. Any instances within the past 24 months where your firm (and/or any of its principals) was the subject of any investigation relating to the municipal securities industry by the SEC, NASD, C5 - 13 NYSE or any other state or federal organization that oversees, regulates, licenses or is otherwise responsible for the municipal securities industry. m. Any instances within the past 24 months where your firm (and/or any of its principals) was involved in any litigation, arbitration, disciplinary or other actions arising from the firm’s role in issuing municipal securities. n. Any relationship between your firm and any other non-affiliated firm(s) or individuals involving any compensation arrangement that may be associated with your possible engagement to assist the City with bond counsel services. o. One small bag of peanut M&Ms for each member of the proposal review team. 3. Proposal Length and Format. Proposals should meet the following length and format guidelines. a. Proposals should not exceed 15 pages, including attachments and supplemental materials. The proposal should be prepared simply and economically, providing a straightforward, concise presentation of the information requested. b. The required font size is 12 point, with minimum left and right margins of one-inch, and top and bottom margins of 0.7 inches. c. Only one electronic copy of the proposal is required, submitted via email by the closing date, to wpadilla@slocity.org. Proposals must be submitted as either a PDF (preferred) or Word document. 4. Proposal Evaluation and Selection. Proposals will be evaluated by a review committee based on the following criteria: a. Understanding of the work required by the City b. Quality, clarity and responsiveness of the proposal c. Demonstrated competence and professional qualifications necessary for satisfactory performance of the work required by the City d. Recent experience in successfully performing similar services for comparable cities e. Proposed approach in completing the work f. References g. Background and related experience of the specific individuals to be assigned to this work h. Proposed compensation As reflected above, contract award will not be based solely on price, but on a combination of factors as determined to be in the best interest of the City. After evaluating the proposals and discussing them further with the finalists or the tentatively selected bond counsel, the City reserves the right to further negotiate the proposed work and/or method and amount of compensation. City Review Committee Members Wayne Padilla, Director of Finance & Information Technology C5 - 14 Christine Dietrick, City Attorney Michael Codron, Assistant City Administrator C5 - 15 5. Proposal Review and Award Schedule. The following is an outline of the anticipated schedule for proposal review and contract award: 6. Proposal Review and Award Schedule. The following is an outline of the anticipated schedule for proposal review and contract award: a. Issue RFP 10/16/13 b. Conduct pre-proposal teleconference 11/11/13 c. Receive proposals 11/15/13 d. Complete proposal evaluation 11/29/13 e. Conduct finalist interviews 12/6/13 f. Finalize award recommendation 12/20/13 g. Execute contract 12/31/13 7. Pre-Proposal Teleconference. An optional pre-proposal teleconference will be held as follow to answer any questions that prospective proposers may have regarding this RFP: Monday, November 11 10:00 AM While not mandatory, proposers are strongly encouraged to participate in this teleconference. Proposers interested in participating in the pre-proposal teleconference should contact Wayne Padilla, Director of Finance and IT at (805) 781-7125 or wpadilla@slocity.org to receive a phone number and password. 8. Release of Reports and Information. Any reports, information, data, or other material given to, prepared by or assembled by the firm as part of the work or services under these specifications shall be the property of City and shall not be made available to any individual or organization by the firm without the prior written approval of the City. 9. Copies of Reports and Information. If the City requests additional copies of reports, drawings, specifications, or any other material in addition to what the firm is required to furnish in limited quantities as part of the work or services under these specifications, the firm shall provide such additional copies as are requested, and City shall compensate the firm for the costs of duplicating of such copies at the firm's direct expense. 10. Non-Exclusive Contract. The City reserves the right to contract with other bond counsel firms during the contract term. 11. Attendance at Meetings and Hearings. As part of the workscope and included in the contract price is attendance at as many public meetings as needed to present and discuss your findings and recommendations; and attendance at as many “working” meetings with staff as necessary in performing workscope tasks. C5 - 16 THIS AGREEMENT is made and entered into in the City of San Luis Obispo on _________________________, 2013, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and [ ], hereinafter referred to as Bond Counsel. W I T N E S S E T H: WHEREAS, on October 16, 2013, City requested proposals for bond counsel services per Specification No. 91270. WHEREAS, pursuant to said request, bond counsel submitted a proposal, which was accepted by City for said services. NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: 1. TERM. The term of this Agreement shall be from the date of this Agreement is made and entered, as first written above, until acceptance or completion of said services. 2. INCORPORATION BY REFERENCE. City Specification No. 91270 and bond counsel’s proposal dated _________________, are hereby incorporated in and made a part of this Agreement. 3. CITY'S OBLIGATIONS. For providing services as specified in this Agreement, City will pay and bond counsel shall receive therefore compensation as set forth in Exhibit A of this Agreement. 4. BOND COUNSEL'S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, bond counsel agrees with City to do everything required by this Agreement. 5. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the City Manager of the City. C5 - 17 6. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. 7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Bond Counsel [ ] [ ] [ ] [ ] 8. AUTHORITY TO EXECUTE AGREEMENT. Both City and bond counsel do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. ATTEST: CITY OF SAN LUIS OBISPO, A Municipal Corporation By: City Clerk City Manager APPROVED AS TO FORM: Bond Counsel By: City Attorney C5 - 18 The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to the consultant's profession. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. 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 shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. C5 - 19 4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. C5 - 20 Bond Counsel Services The authorized representative identified below declares that she or he: 1. Has carefully examined Specification No. 91270, which is hereby made a part of this proposal. 2. Is thoroughly familiar with its contents. 3. Is authorized to represent the proposing firm. 4. Agrees to perform the work as set forth in this proposal. Certificate of insurance attached; insurance company’s A.M. Best rating: __________________. Firm Name and Address Contact Phone Authorized Representative Date C5 - 21 Number of years engaged in providing the services included within the scope of the specifications under the present business name: . Describe fully the work completed for 3 (three) California clients within the last 2 years that demonstrate your ability to provide the services required by the scope of the specifications. Attach additional pages if required. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Below, please provide current contact information for each of these three clients. Reference No. 1 Customer Name Contact Individual Telephone & FAX number Street Address City, State, Zip Code Description of services provided including contract amount, when provided and project outcome Reference No. 2 Customer Name Contact Individual Telephone & FAX number Street Address City, State, Zip Code Description of services provided including contract amount, when provided and project outcome Reference No. 3 Customer Name Contact Individual Telephone & FAX number Street Address City, State, Zip Code Description of services provided including contract amount, when provided and project outcome C5 - 22 C5 - 23 990 Palm Street  San Luis Obispo, CA 93401 Notice Requesting Proposals for FINANCIAL ADVISOR SERVICES Specification No. 91269 The City of San Luis Obispo is requesting proposals for financial advisor services pursuant to Specification No. 91269. All proposals must be received by the City Clerk no later than 3:00 pm on Friday, November 15, 2013 at the address shown above. Proposals received after said time will not be considered. An optional pre-proposal teleconference will be held at 11:00 am on Monday, November 11, 2013 to answer any questions that the prospective bidders may have regarding the City's request for proposals. Proposers interested in participating in the pre-proposal teleconference should contact Wayne Padilla, Director of Finance and Information Technology at wpadilla@slocity.org or (805) 781-7125 to receive a conference line phone number and password. Finalist interviews have been scheduled for Friday, December 6, 2013. Additional information may be obtained by contacting Wayne Padilla, Director of Finance & Information Technology at (805) 781-7125 C5 - 24 A. Description of Work 1 Overview Upcoming Financings About the City City Finances Financial Advisor Services B. General Terms and Conditions 5 Proposal Requirements Contract Award and Execution Contract Performance C. Special Terms and Conditions 9 References Proposal Content Proposal Length and Copies Proposal Evaluation and Selection Proposal Review and Award Schedule Pre-proposal Conference Contract Term Release of Reports and Information Copies of Reports and Information Non-Exclusive Contract D. Sample Form of Agreement 12 E. Insurance Requirements 14 F. Proposal Submittal Forms 16 Proposal Submittal Summary References C5 - 25 Overview The City is requesting proposals for financial advisor services for a five-year term, with an option to renew for another three years. It is the City’s policy to establish a long-term, ongoing relationship with our financial advisor, under which advice is available at all times as needed. On the other hand, long-term does not mean forever. Accordingly, at the end of contract terms, it our policy to seek formal proposals in ensuring that we continue to receive quality professional services at the best competitive price. Our current financial advisor is Fieldman, Rolapp, who has been invited to submit a proposal. Proposed, Future Financings As noted above, this RFP is due to our policy of formally requesting proposals on a periodic basis, and the desire to establish an ongoing relationship: it is not driven by the need for financial advisor services for an impending project. However, debt financings that are likely during the next four years include: 1. Water Reclamation Facility Upgrade. The current project funding plan projects $50.55 million in debt financing for these improvements in 2016-17. This will be supported by Sewer system revenues. 2. Palm-Nipomo parking structure. The 2013-15 Financial Plan projects $18 million in debt financing for construction of a parking structure in 2017-18. This will be supported by Parking Enterprise Fund revenues. 3. Los Osos Valley Road Interchange. The 2013-15 Financial Plan projects $8.05 million in debt financing during late 2014 or early 2015. This will be supported by General Fund revenues and may use impact fees as a backstop revenue source. These are likely to be revenue or lease-backed issues (like virtually all of our other bond issues over the last several years). However, the selected financial advisor should be capable of meeting a wide range of financing needs, including assessment and special tax districts (land-based financing) since the city is exploring these financing options for future use. About the City Detailed information about the City and its organization is available on our web site at www.slocity.org. City Finances Detailed information about the City’s finances, past debt financings and key fiscal policies are also available on our web site. The 2013-2015 Financial Plan is the key source document for this information, and it is available on the City’s web site at: www.slocity.org/finance/budget.asp. Of particular interest in this document in terms of the scope of the work are: 1. Budget Message and Highlights (page A-1 to A-21). 2. Section F, Capital Improvement Plan. C5 - 26 3. Debt Service Requirements (Section G), which includes a summary of outstanding bond issues 4. Section H especially: capital improvement management (pages H-16 to H-17); capital financing and debt management (pages H18-H23) C5 - 27 Financial Advisor Services The financial advisor services requested include but are not limited to the following: 1. Planning and advisor services, including but not limited to the following: a. Providing advice to the City on an ongoing basis regarding our capital financing needs. b. Providing research and advice on aspects of tax exemption and arbitrage in cooperation with the City's Legal Counsel and Bond Counsel as well as assistance in obtaining Internal Revenue Service rulings as deemed necessary. c. Preparing financing plans and assisting in the preparation and review of preliminary feasibility studies in cooperation with City officials and administrative staff, bond attorneys, accountants, architects and engineers as requested by the City. These studies outline the project costs, funding alternatives and sources, existing debt, future financing, and cash flow considerations. d. Analyzing financing alternatives to determine methods of strengthening marketability and to recommend the best method of marketing consistent with current economic and market conditions and increasingly stringent rating agency criteria. e. Reviewing City plans for all financings during the calendar year to determine whether the financing will be bank eligible under the $10 million small issue exemption and whether the City will be exempt from arbitrage rebate requirements under the $5 million annual volume exemption. f. Performing a comprehensive analysis to determine the best possible plan of finance, including a test to determine its marketability as well as assistance in determining competitive vs. negotiated sale of bonds or notes. g. Consulting with established rating agencies regarding the proposed financing; assisting the City in obtaining the most favorable rating possible; and providing assistance and recommendations regarding the selection of registrar/paying agent agencies. h. Acting as liaison with Bond Counsel and coordinating with other individuals providing information in connection with the proposed financing. i. Preparing a timetable of events for all concerned leading to the sale and delivery of an offering. j. Providing general assistance and advice to the City on plans and methods of financing its capital improvement plans and cash flow needs. k. Attending all meetings requested by City staff to discuss the financing of the project or at which official action will be taken by the Council on the debt financing. 2. Marketing services for competitive issues, including but not limited to the following: a. Providing advice on the appropriate terms and conditions of the sale, such as maturity scheduling and other requirements (such as discount, par, premium, net interest cost and true interest costs). In conjunction with the above, consulting with the City and advising Bond Counsel concerning C5 - 28 necessary covenants, and advising on advantageous features such as parity provisions, reserve requirements, sinking fund payments and redemption provisions. b. Recommending the timing of the bond sale, taking into consideration such factors as changing economic conditions, current and projected market trends and convenience to the City. c. Coordinating with Bond Counsel regarding the preparation of amendments and distribution of the necessary contracts, authorizing resolutions and other documents involved in the sale of bonds or other methods of financing. d. Assist with the publicity required in advance of the debt issue with an Official Statement, Notice of Sale, Bid Forms and such other means necessary and advisable to develop nationwide public and institutional interest. e. Assisting the City in meeting full disclosure requirements and conforming to suggested guidelines when preparing the Official Statement. f. Distributing the Official Statement to potential purchasers of the City's securities across the nation; directly contacting those lead underwriters most likely to be syndicate managers; and maximizing efforts to market the City's debt issuance most effectively. g. Explaining the issue to potential investors by developing a comprehensive list of potential purchasers of the bonds, ensuring that each potential purchaser receives copies of all relevant financial documents, and providing information about the issue. h. Advertising the bond sale in nationally prominent financial publications in addition to coordinating local publication requirements. i. Overseeing the bid/pricing sessions in order to assist with the evaluation of bids/pricing, and recommending the most favorable terms for award. 3. Advisory services for negotiated sales, including but not limited to the following: a. Advising on the appropriate terms and conditions of the sale, such as maturity scheduling and other requirements (discount, par, premium, net interest cost and true interest costs. In conjunction with the above, consulting with the City and advising Bond Counsel concerning necessary covenants, and advising on advantageous features such as parity provisions, reserve requirements, sinking fund payments and redemption provisions. b. Advising on the timing of the bond sale, taking into consideration such factors as changing economic conditions, current and projected market trends and convenience to the City. c. Coordinating with Bond Counsel regarding the preparation of amendments and distribution of the necessary contracts, authorizing resolutions and other documents involved in the sale of bonds or other methods of financing. d. Assisting in publicizing the issue in advance with an Official Statement, Notice of Sale, Bid Forms and such other means necessary and advisable to develop nationwide public and institutional interest. C5 - 29 e. Assisting the City in meeting full disclosure requirements and conforming to suggested guidelines when preparing the Official Statement. f. Advising the City as to the appropriateness of the pricing being proposed by the negotiating underwriter, including interest rate(s), underwriting spread, level of discount, distribution of orders allocation of spread and similar pricing issues. g. Assisting in selection of co-managers, and syndicated members and establishments of order priorities according to MSRB Rule G-11 or other guidance in effective at the time of the financing. 4. Bond closing services including but not limited to: a. Directing, coordinating and supervising bond closing details including proofing bond printing, registration, and delivery in the shortest possible time. b. Furnishing a prompt, complete reinvestment analysis so that top earnings will result from investing bond proceeds in addition to assisting City staff and the architect/engineer in the draw-down of any funds held in escrow accounts. c. Directing, coordinating and supervising the organization of the transcript and provision of bond and interest records to the City showing required semi-annual payments and other useful information. d. Soliciting bids on investment of idle funds, if necessary. 5. Final work products relating to each financing, including but not limited to the following: a. Sale analysis. b. Offering statement. c. Two bound volumes of bond issue proceedings and closing documents (if not furnished by bond counsel). d. Other analyses, including but not limited to an analysis of funding alternatives, cash flow projections, and materials necessary for financial planning and bond sale purposes. The financial advisor has no responsibility to advise the City with respect to legal requirements applicable to the construction of any project, including but not limited to compliance with public bidding requirements, payment of prevailing wages and other matters incident to the contract for such construction, which matters shall be exclusively the responsibility of the City Attorney or other counsel to the City. 6. In all respects, the City expects the Financial Advisor to be mindful of all legal requirements involved in finalizing a debt issuance, including securing in writing, all commitments from lenders, assignors and assignees in advance of seeking approval from the City on any terms or conditions offered. C5 - 30 PROPOSAL REQUIREMENTS 1. Requirement to Meet All Provisions. Each individual or firm submitting a proposal shall meet all of the terms, and conditions of the Request for Proposals (RFP) specifications package. By virtue of its proposal submittal, the bidder acknowledges agreement with and acceptance of all provisions of the RFP specifications. 2. Proposal Submittal. Each proposal must be submitted in the format described in the RFP specifications and accompanied by any other required submittals or supplemental materials. Proposal documents shall be received by the City Clerk no later than 3:00 p.m. on November 13, 2013. The submittal package shall include 6 (six) hardcopy versions and a thumb drive containing electronic versions of the documents provided in hardcopy form. Each electronic document provided on the thumb drive shall be properly labeled with regard to the order in which it appears in print. No FAX submittals will be accepted. It is the responsibility of each firm submitting a proposal to ensure that the electronic document(s) submitted are protected to ensure that no changes can be made to the submittal once it is in the possession of the city. Attention to the details required by the submittal process will be part of the overall evaluation and scoring. 3. Insurance Certificate. Each proposal must include a certificate of insurance showing: a. The insurance carrier and its A.M. Best rating. b. Scope of coverage and limits. c. Deductibles and self-insured retention. The purpose of this submittal is to generally assess the adequacy of the bidder’s insurance coverage during proposal evaluation; as discussed under paragraph 12 below, endorsements are not required until contract award. The City’s insurance requirements are detailed in Section E. 4. Proposal Quotes and Unit Price Extensions. The prices quoted by the proposer must be entered in figures in the spaces provided on the Proposal Submittal Form. 5. Proposal Withdrawal and Opening. A proposer may withdraw its proposal, without prejudice prior to the time specified for the proposal opening, by submitting a written request to the Director of Finance & IT for its withdrawal, in which event the proposal will be returned to the proposer unopened. No proposal received after the time specified or at any place other than that stated in the "Notice Requesting Proposals" will be considered. All proposals will be opened and declared publicly. 6. Submittal of One Proposal Only. No individual or business entity of any kind shall be allowed to make or file, or to be interested in more than one proposal, except as part of an alternative proposal when specifically requested; however, an individual or business entity that has submitted a sub- proposal to a proposer submitting a proposal, or who has quoted prices on materials to such proposer, is not thereby disqualified from submitting a sub-proposal or from quoting prices to other proposers submitting proposals. 7. Cooperative Purchasing. During the term of the contract, the successful proposer will extend all terms and conditions to any other local governmental agencies upon their request. These agencies will issue their own purchase orders, will directly receive goods or services at their place of business and will be directly billed by the successful proposer. C5 - 31 Communications. All timely requests for information submitted in writing will receive a written response from the City. Telephone communications with City staff are not encouraged, but will be permitted, if directed to the Director of Finance and Information Technology, Wayne Padilla. However, any such oral communication shall not be binding on the City. CONTRACT AWARD AND EXECUTION 8. Proposal Retention and Award. The City reserves the right to retain all proposals for a period of 90 days for examination and comparison. The City also reserves the right to waive non-substantial irregularities in any proposal, to reject any or all proposals, to reject or delete one part of a proposal and accept the other, except to the extent that proposals are qualified by specific limitations. See the "special terms and conditions" in Section C of these specifications for proposal evaluation and contract award criteria. 9. Competency and Responsibility of Bidder. The City reserves full discretion to determine the competence and responsibility, professionally and/or financially, of proposers. Proposers will provide, in a timely manner, all information that the City deems necessary to make such a decision. 10. Contract Requirement. The proposer to whom award is made (Contractor) shall execute a written contract with the City within ten (10) calendar days after notice of the award has been sent by mail to it at the address given in its proposal. The contract shall be made in the form adopted by the City and incorporated in these specifications. 11. Insurance Requirements. The Contractor shall provide proof of insurance in the form, coverages and amounts specified in Section E of these specifications within 10 (ten) calendar days after notice of contract award as a precondition to contract execution. 12. Business Tax. The Contractor must have a valid City of San Luis Obispo business tax certificate before execution of the contract. Additional information regarding the City's business tax program may be obtained by calling (805) 781-7134. CONTRACT PERFORMANCE 13. Ability to Perform. The Contractor warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations. 14. Laws to be Observed. The Contractor shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances, regulations and adopted codes during its performance of the work. 15. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Contractor is required to pay. 16. Permits and Licenses. The Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary. C5 - 32 17. Safety Provisions. The Contractor shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 18. Public and Employee Safety. Whenever the Contractor's operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 19. Preservation of City Property. The Contractor shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged resulting from the Contractor's operations, it shall be replaced or restored at the Contractor's expense. The facilities shall be replaced or restored to a condition as good as when the Contractor began work. 20. Immigration Act of 1986. The Contractor warrants on behalf of itself and all subcontractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder. 21. Contractor Non-Discrimination. In the performance of this work, the Contractor agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. 22. Work Delays. Should the Contractor be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at the City's sole option, be extended for such periods as may be agreed upon by the City and the Contractor. In the event that there is insufficient time to grant such extensions prior to the completion date of the contract, the City may, at the time of acceptance of the work, waive liquidated damages that may have accrued for failure to complete on time, due to any of the above, after hearing evidence as to the reasons for such delay, and making a finding as to the causes of same. 23. Payment Terms. The City's payment terms are 30 days from the receipt of an original invoice and acceptance by the City of the materials, supplies, equipment or services provided by the Contractor (Net 30). Payment may be made from proceeds of the debt issuance if this is customary for the type of financing, but only upon the acceptance and approval by the city of an original invoice identifying the basis for the fees charged. 24. Inspection. The Contractor shall furnish City with every reasonable opportunity for City to ascertain that the services of the Contractor are being performed in accordance with the requirements and intentions of this contract. All work done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of such work shall not relieve Contractor of any of its obligations to fulfill its contract requirements. C5 - 33 25. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its invoices to City as a condition precedent to any payment to Contractor. 26. Interests of Contractor. The Contractor covenants that it presently has no interest, and shall not acquire any interest—direct, indirect or otherwise—that would conflict in any manner or degree with the performance of the work hereunder. The Contractor further covenants that, in the performance of this work, no subcontractor or person having such an interest shall be employed. The Contractor certifies that no one who has or will have any financial interest in performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, the Contractor shall at all times be deemed an independent contractor and not an agent or employee of the City. 27. Hold Harmless and Indemnification. The Contractor agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to the Contractor's employees, agents or officers that arise from or are connected with or are caused or claimed to be caused by the acts or omissions of the Contractor, and its agents, officers or employees, in performing the work or services herein, and all expenses of investigating and defending against same; provided, however, that the Contractor's duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees. 28. Contract Assignment. The Contractor shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City. 29. Termination. If, during the term of the contract, the City determines that the Contractor is not faithfully abiding by any term or condition contained herein, the City may notify the Contractor in writing of such defect or failure to perform. This notice must give the Contractor a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. (The City may also terminate the contract for convenience or financial necessity upon giving Contractor 30 days written notice of such action.) If the Contractor has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to the Contractor to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under the contract except, however, any and all obligations of the Contractor's surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the termination thereof. In said event, the Contractor shall be entitled to the reasonable value of its services performed from the beginning date in which the breach occurs up to the day it received the City's Notice of Termination, minus any offset from such payment representing the City's damages from such breach. "Reasonable value" includes fees or charges for goods or services as of the last milestone or task satisfactorily delivered or completed by the Contractor as may be set forth in the Agreement payment schedule; compensation for any other work, services or goods performed or provided by the Contractor shall be based solely on the City's assessment of the value of the work-in-progress in completing the overall workscope. C5 - 34 The City reserves the right to delay any such payment until completion or confirmed abandonment of the project, as may be determined in the City's sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall the Contractor be entitled to receive in excess of the compensation quoted in its proposal. C5 - 35 1. Contract Term. The term of the contract shall be for a period of 5 (five) years at which time the performance of the firm will be evaluated. Upon mutual agreement at that time, the contract may be extended by the City Administrative Officer for a period of up to three years. 2. Proposal Content. Your proposal must include the following information: Submittal Forms a. Proposal submittal cover letter. (item 1 in submittal) b. Certificate of insurance. (item 5 in submittal) c. References from at least three California municipalities for whom you have provided similar services within the past 2 (two) years. (item 4 in submittal) Note: For ease of proposal preparation, proposers are asked to prepare their own proposal submittal forms as long as they contain the information requested below, in the same order that each item is listed here. . Qualifications (item 2 in submittal) d. General qualifications of your firm to serve as financial advisor in California. e. Experience as financial advisor to cities where services are provided on an ongoing basis. f. Experience in providing similar services required by the City to comparable California cities. g. Description of particular and interesting issues, problems or complications that arose in previous financial advisor experiences, and how these were resolved or disposed of. h. Resumes and responsibilities of the individuals who would be assigned to work with the City, there home office location, and if possible, identification of who would be the City’s lead contact. i. Any other information that would assist us in making this contract award decision. Compensation (item 6 in submittal) j. The City expects that compensation will be funded solely from, and solely contingent upon, the proceeds from specific bond issues; and that fees will be related to the size of the issue. However, you may propose an alternate compensation structure provided that it is fully explained in lay terms. Statement of Litigation, Investigations, Conflicts of Interest and Disqualifications (item 3 in submittal) k. Statement and explanation of any instances where your firm has been removed from a project or disqualified from proposing on a project. C5 - 36 l. Any instances within the past 24 months when your firm (and/or any of its principals) was the subject of any investigation relating to the municipal securities industry by the SEC, NASD, NYSE or any other state or federal organization that oversees, regulates, licenses or is otherwise responsible for the municipal securities industry. m. Any instances within the past 24 months when your firm (and/or any of its principals) was involved in any litigation, arbitration, disciplinary or other actions arising from the firm’s role in issuing municipal securities. n. Any relationship between your firm and any other non-affiliated firm(s) or individuals involving any compensation arrangement that may be associated with your possible engagement to assist the City with financial advisor services. o. One small bag of regular M&Ms for each proposal reviewer. 3. Proposal Length and Format. Proposals should meet the following length and format guidelines. a. Proposals should not exceed 15 pages, including attachments and supplemental materials. The proposal should be prepared simply and economically, providing a straightforward, concise presentation of the information requested. Please keep marketing material to a minimum and emphasize factual material. b. The required font size is 12 point, with minimum left and right margins of one-inch, and top and bottom margins of 0.7 inches. 4. Proposal Evaluation and Selection. Proposals will be evaluated by a review committee based on the following criteria: a. Understanding of the work required by the City b. Quality, clarity and responsiveness of the proposal, including attention to form submittal requirement details c. Demonstrated competence and professional qualifications necessary for satisfactory performance of the work required by the City d. Recent experience in successfully performing similar services for comparable cities e. Proposed approach in completing the work f. References g. Background and related experience of the specific individuals to be assigned to this work h. Proposed compensation As reflected above, contract award will not be based solely on price, but on a combination of factors as determined to be in the best interest of the City. After evaluating the proposals and discussing them further with the finalists or the tentatively selected financial advisor, the City reserves the right to further negotiate the proposed work and/or method and amount of compensation. City Review Committee Members Wayne Padilla, Director of Finance & Information Technology C5 - 37 Christine Dietrick, City Attorney Carrie Mattingly, Utilities Director Daryl Grigsby, Public Works Director Derek Johnson, Community Development Director C5 - 38 5. Proposal Review and Award Schedule. The following is an outline of the anticipated schedule for proposal review and contract award: a. Issue RFP 10/16/13 b. Conduct pre-proposal teleconference 11/11/13 c. Receive proposals 11/15/13 d. Complete proposal evaluation 11/29/13 e. Conduct finalist interviews 12/6/13 f. Finalize award recommendation 12/20/13 g. Execute contract 12/31/13 6. Pre-Proposal Teleconference. An optional pre-proposal teleconference will be held as follow to answer any questions that prospective proposers may have regarding this RFP: Friday, November 11, 2013 11:00 AM While not mandatory, proposers are strongly encouraged to participate in this teleconference. Proposers interested in participating in the pre-proposal teleconference should contact Wayne Padilla, Finance Manager at (805) 781-7125 or wpadilla@slocity.org to receive a phone number and password. 7. Release of Reports and Information. Any reports, information, data, or other material given to, prepared by or assembled by the firm as part of the work or services under these specifications shall be the property of City and shall not be made available to any individual or organization by the firm without the prior written approval of the City. 8. Copies of Reports and Information. If the City requests additional copies of reports, drawings, specifications, or any other material in addition to what the firm is required to furnish in limited quantities as part of the work or services under these specifications, the firm shall provide such additional copies as are requested, and City shall compensate the firm for the costs of duplicating of such copies at the firm's direct expense. 9. Non-Exclusive Contract. The City reserves the right to contract with other financial advisor firms during the contract term. 10. Attendance at Meetings and Hearings. As part of the workscope and included in the contract price is attendance at as many public meetings as needed to present and discuss your findings and recommendations; and attendance at as many “working” meetings with staff as necessary in performing workscope tasks. C5 - 39 THIS AGREEMENT is made and entered into in the City of San Luis Obispo on _________________________, 2013, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and [ ], hereinafter referred to as Financial Advisor. W I T N E S S E T H: WHEREAS, on October 16, 2013, City requested proposals for financial advisor services per Specification No. 90666. WHEREAS, pursuant to said request, Financial Advisor submitted a proposal, which was accepted by City for said services. NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: 1. TERM. The term of this Agreement shall be for a period of 5 years, from the date this Agreement is made and entered, as first written above. This agreement may be extended by mutual written concurrence of both parties for an additional period of up to three (3) years. 2. INCORPORATION BY REFERENCE. City Request for Proposal Document for Specification No. 90667 and Financial Advisor’s proposal dated _________________, are hereby incorporated in and made a part of this Agreement. 3. CITY'S OBLIGATIONS. For providing services as specified in this Agreement, City will pay and Financial Advisor shall receive therefore compensation as set forth in Exhibit A of this Agreement. 4. FINANCIAL ADVISOR'S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, financial advisor agrees with City to do everything required by this Agreement. 5. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the Director of Finance & Information Technology of the City. C5 - 40 6. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. 7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Financial Advisor [ ] [ ] [ ] [ ] 8. AUTHORITY TO EXECUTE AGREEMENT. Both City and Financial Advisor do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. ATTEST: CITY OF SAN LUIS OBISPO, A Municipal Corporation By: City Clerk City Administrative Officer APPROVED AS TO FORM: Financial Advisor By: City Attorney C5 - 41 The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to the consultant's profession. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. 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 shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. C5 - 42 4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. C5 - 43 Financial Advisor Services The authorized representative identified below declares that she or he: 1. Has carefully examined Specification No. 90666, which is hereby made a part of this proposal. 2. Is thoroughly familiar with its contents. 3. Is authorized to represent the proposing firm. 4. Agrees to perform the work as set forth in this proposal. Certificate of insurance attached; insurance company’s A.M. Best rating: __________________. Firm Name and Address Contact Phone Authorized Representative Date C5 - 44 Number of years engaged in providing the services included within the scope of the specifications under the present business name: . Describe fully the work completed for 3 (three) California clients within the last 2 years that demonstrate your ability to provide the services required by the scope of the specifications. Attach additional pages if required. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Below, please provide current contact information for each of these three clients. Reference No. 1 Customer Name Contact Individual Telephone & FAX number Street Address City, State, Zip Code Description of services provided including contract amount, when provided and project outcome Reference No. 2 Customer Name Contact Individual Telephone & FAX number Street Address City, State, Zip Code Description of services provided including contract amount, when provided and project outcome Reference No. 3 Customer Name Contact Individual Telephone & FAX number Street Address City, State, Zip Code Description of services provided including contract amount, when provided and project outcome C5 - 45 C5 - 46