Loading...
HomeMy WebLinkAboutContracts & Agreements_63-2021AGREEMENT TO PERFORM PROFESSIONAL SERVICES This agreement for the provision of municipal advisory services ("Agreement") is made and entered in this 20th day of April, 2021 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and KNN Public Finance, a Limited Liability Company. ("Consultant"). City and Consultant are sometimes individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the mutual promises contained herein, City and Consultant agree as follows: ARTICLE 1 — ENGAGEMENT OF CONSULTANT 1.1 City hereby engages Consultant to provide municipal finance consulting services for City (the "Services"). 1.2 The Services shall be performed by Consultant in a professional manner, and Consultant represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other practicing professional consultants in the industry providing like and similar types of Services. ARTICLE 2 — SERVICES OF CONSULTANT 2.1 The Services that Consultant shall perform are more particularly described in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by reference. 2.2 Consultant shall comply with applicable federal, state and local laws and regulations in the performance of this Agreement including, but not limited to, any applicable State prevailing wage laws. ARTICLE 3 — RESPONSIBILITIES OF CITY 3.1 City designates Danielle Garcia, Management Services and Finance Director, as City's representative with respect to performance of the Services, and such person shall have the authority to transmit instructions, receive information, interpret and define City's policies and decisions with respect to performance of the Services. ARTICLE 4 — PERFORMANCE OF SERVICES 4.1 Consultant shall perform and complete the Services in a prompt and diligent manner. The initial term of this Agreement shall be for a period of three (3) years from the Effective Date of this Agreement (the "Initial Term"). The City shall have the option to extend the Initial Term of this Agreement by two (2), additional, one-year terms (each, an "Extended Term"), on the same terms and conditions hereof, by providing written notice to Consultant at least thirty (30) days prior to the expiration of the Initial Term or any Extended Term. The Initial Term and any Extended Terms are collectively defined to herein as the "Term" of this Agreement. 1 L:\ca\djin\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn 4.2 If Consultant's Services include deliverable electronic visual presentation materials, such materials shall be delivered in a form, and made available to the City, consistent with City Council adopted policy for the same. It shall be the obligation of Consultant to obtain a copy of such policy from City staff. ARTICLE 5 — PAYMENTS TO CONSULTANT 5.1 The total compensation for Consultant's performance of the Services shall not exceed two hundred and fifty thousand ($250,000) during the Term of this Agreement. City shall pay Consultant on a time and materials basis, up to the not to exceed amount, in accordance with Exhibit "B," titled "Fee Schedule Title," which is attached hereto and incorporated herein by this reference. 5.2 Consultant shall submit monthly invoices to City describing the Services performed during the preceding month. Consultant's invoices shall include a brief description of the Services performed, the dates the Services were performed, the number of hours spent and by whom, and a description of reimbursable expenses related to the Services. City shall pay Consultant no later than thirty (30) days after receipt and approval by City of Consultant's invoice. 5.3 Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date of delivery in person; (ii) five (5) days after deposit in first class registered mail, with return receipt requested; (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile, if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail; in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section: CITY: City Clerk City of Redlands 35 Cajon Street P.O. Box 3005 (mailing) Redlands, CA 92373 jdonaldson@cityofredlands.org Phone: (909) 798-7531 CONSULTANT: Mark T. Young, Managing Director KNN Public Finance, LLC 5901 W. Century Blvd., Suite 750 Los Angeles, CA 90045 myoung@knninc. coni Phone: 310-348-2901 ARTICLE 6 — INSURANCE AND INDEMNIFICATION 6.1 The following insurance coverage required by this Agreement shall be maintained by Consultant for the duration of its performance of the Services. Consultant shall not perform any Services unless and until the required insurance listed below is obtained by Consultant. Consultant shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services. Insurance policies 2 LAca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days prior written notice to City. A. Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Consultant is self -insured or exempt from the workers' compensation laws of the State of California. Consultant shall execute and provide City with Exhibit "C," titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, prior to performance of the Services. B. Comprehensive General Liability insurance with carriers acceptable to City in the minimum amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate, for public liability, property damage and personal injury is required. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. C. Business Auto Liability coverage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit bodily injury liability and property damage liability. This coverage shall include all Consultant owned vehicles used in connection with Consultant's provision of the Services, hired and non -owned vehicles, and employee non -ownership vehicles. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City. D. Consultant is expressly prohibited from assigning or subcontracting any of the Services without the prior written consent of City. In the event of mutual agreement by the Parties to assign or subcontract a portion of the Services, Consultant shall add such assignee or subcontractor as an additional insured to the insurance policies required hereby and provide City with the insurance endorsements prior to any Services being performed by the assignee or subcontractor. 6.2 Consultant shall defend, indemnify and hold harmless City and its elected officials, employees and agents from and against any and all claims, losses or liability, including attorneys' fees, arising from injury or death to persons or damage to property occasioned by any negligent act or omission by, or the willful misconduct of, Consultant, or its officers, employees and agents in performing the Services. ARTICLE 7 — CONFLICTS OF INTEREST 7.1 Consultant covenants and represents that it does not have any investment or interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property or investment that would be affected in any manner or degree by the performance of Consultant's Services. Consultant further covenants and represents that in the performance of its duties hereunder, no person having any such interest shall perform any Services under this Agreement. 3 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.docJn 7.2 Consultant agrees it is not a designated employee within the meaning of the Political Reform Act because Consultant: A. Does not make a governmental decision whether to: (i) approve a rate, rule or regulation, or adopt or enforce a City law; (ii) issue, deny, suspend or revoke any City permit, license, application, certification, approval, order or similar authorization or entitlement; (iii) authorize City to enter into, modify or renew a contract; (iv) grant City approval to a contract that requires City approval and to which City is a party, or to the specifications for such a contract; (v) grant City approval to a plan, design, report, study or similar item; (vi) adopt, or grant City approval of, policies, standards or guidelines for City or for any subdivision thereof. B. Does not serve in a staff capacity with City and in that capacity, participate in making a governmental decision or otherwise perform the same or substantially the same duties for City that would otherwise be performed by an individual holding a position specified in City's Conflict of Interest Code under Government Code section 87302. 7.3 In the event City determines that Consultant must disclose its financial interests, Consultant shall complete and file a Fair Political Practices Commission Form 700, Statement of Economic Interests, with the City Clerk's office pursuant to the written instructions provided by the City Clerk. 7.4 Consultant's regulatory disclosures are provided as an Exhibit "D." ARTICLE 8 — GENERAL CONSIDERATIONS 8.1 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the use of in-house counsel by a Party. 8.2 Consultant shall not assign any of the Services, except with the prior written approval of City and in strict compliance with the terms and conditions of this Agreement. Any assignment or attempted assignment without such prior written consent may, in the sole discretion of City, result in City's immediate termination of this Agreement. 8.3 Consultant is for all purposes under this Agreement an independent contractor and shall perform the Services as an independent contractor. Neither City nor any its agents shall have control over the conduct of Consultant or Consultant's employees, except as herein set forth. Consultant shall supply all necessary tools and instrumentalities required to perform the Services. Assigned personnel employed by Consultant are for its account 4 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn only, and in no event shall Consultant or personnel retained by it be deemed to have been employed by City or engaged by City for the account of, or on behalf of City. Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind City to any obligation. 8.4 This Agreement may be terminated by City, in its sole discretion, by providing not less than five (5) days prior written notice to Consultant of City's intent to terminate. If this Agreement is terminated by City, an adjustment to Consultant's compensation shall be made, but (1) no amount shall be allowed for anticipated profit or unperformed Services, and (2) any payment due Consultant at the time of termination may be adjusted to the extent of any additional costs to City occasioned by any default by Consultant. Upon receipt of a termination notice, Consultant shall immediately discontinue its provision of the Services and, within five (5) days of the date of the termination notice, deliver or otherwise make available to City, copies (in both hard copy and electronic form, where applicable) of project related data, design calculations, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by Consultant in performing the Services. Consultant shall be compensated on a pro-rata basis for Services completed up to the date of termination. 8.5 Consultant shall maintain books, ledgers, invoices, accounts and other records and documents evidencing costs and expenses related to the Services for a period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant pursuant to this Agreement. Such books shall be available at reasonable times for examination by City at the office of Consultant. 8.6 This Agreement, including the Exhibits incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement. Except as otherwise provided for herein, any amendment to this Agreement shall be in writing, approved by City and signed by City and Consultant. 8.7 This Agreement shall be governed by and construed in accordance with the laws of the State of California. 8.8 If one or more of the sentences, clauses, paragraphs or sections contained in this Agreement is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would deprive a Party of a material benefit of its bargain under this Agreement. 5 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have signed in confirmation of this Agreement. CITY OF REDLAN9 S KNN PUBLIC FINANCE, LLC By: e By: Paul T. Barich, Mayor Mark T. Y ung, anagin Director ATTEST: aAO'56'd� e ne Donaldson, City Clerk 6 L:1csldjmWgnxments\KNN Public Finance Agreement FY20-0099.doc jn EXHIBIT "A" SCOPE OF SERVICES Overview Consultant will act as an independent Municipal Advisor and economic market expert, and provide financial advice and analysis, and assist on debt issuance, structuring, timing of issuance, call provision options, rating matters, and on existing and proposed financial arrangements on an as -needed basis. The Municipal Advisor may also be called upon to provide municipal advisory services during the course of the fiscal year for other financings that the City may undertake as well as any other 'on call' advisory services including but not limited to strategic planning, capital project analysis, and financial alternatives. Specifically, the municipal advisor may, on an as -needed basis, perform the following services: General Financial Assistance • Work with City staff to review and provide advice on operational budgets and funding plans. • Assist in appropriate continuing disclosure process for some or all of the City's outstanding obligations requiring annual filings and event notices. • Review and assist staff in responding to general questions related to public finance. • Assist staff with reports or information items relating to financing strategies or opportunities. • Respond to general inquiries from staff. Planning • In coordination with City staff, prepare a Five -Year Financial Plan to identify known and/or anticipated factors that may have a significant effect on the City's General Fund spending. • Develop and recommend financing structure options, including the preparation of financing plans and analyses. • Perform special projects, including assisting debt structuring & debt affordability analysis. • Provide information, judgements, and forecasts regarding economic, capital market and money market conditions as applicable to the City's ability to borrow money. • Provide continuing updates and advice on the impact of current or proposed state or federal legislation and market conditions that could affect the City's financial plans. • Prepare analytical data and/or projections related to internal evaluations of capital projects and City liabilities including outstanding indebtedness. • Assist in developing capital financing plans for equipment and other assets. • Develop financial analyses and special reports as requested. • Work with City to determine budget and tax impact of bonding scenarios, debt capacity analysis, and credit benchmarks. • Work with City to update its debt policy to reflect new debt, plans, and market changes. 7 LAca\djin\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn Debt Strategy • Develop and recommend financing structure options, including the preparation of financing plans and analyses. • Develop rating agency strategy, prepare rating agency presentation material, schedule meetings with rating agencies, organize and coordinate Council and staff rehearsals and presentations, coordinate itinerary for rating agency visits as required. • Review and evaluate the City's existing capital financing plans and work closely with the Director to review any borrowing strategies included therein. • Assist with new revenue/refunding bond issuances, evaluate financing structure, pricing, rating and reserve requirements, formulate relevant forecasts and quantitative models. • Serve as the City's bond market expert, including tax-exempt and taxable markets, fixed rate and variable markets, and provide ongoing analysis of current and upcoming trends and events in these and related areas. • Periodically monitor outstanding debt issues for refunding opportunities, update staff and executive management on findings and advise when and when not to issue refunding bonds based on savings analysis and market trends. • Advise on methods of debt sales (where appropriate). • Provide advice on approaches to ratings and assist with rating presentations and the preparation of the presentation. • Assist in preparing and reviewing documents, including preliminary and final official statements. • Conduct pre -marketing of issues (competitive sale). • Evaluate bids, including accuracy of TIC calculation, and recommend award (competitive sale). • Review pricing, underwriter roles, and allocation of bonds (negotiated sale). • Coordinate closing arrangements with the City, bond counsel and underwriter. • Assist the Director in coordinating receipt and disbursement of funds on the settlement date. • Provide advice on investment of bond proceeds and compliance with arbitrage regulations, and guidance on post -issuance compliance. • Prepare and update a debt amortization schedule for new and existing debt at the request of the Director. • Assist the City in securing, or providing, Paying Agent services for bonds and notes. • Assist the City in preparing and managing the procurement of other debt -related services as needed. • Should circumstances require municipal bond insurance, assist the City in coverage qualification and, if necessary, making presentations to municipal bond insurance companies. Analyze premium costs and the impact on the financing rate. Policy Development • Assist staff by evaluating program proposals or changes in policy. • Review of practices and policies and recommended steps that can be taken to improve city's fiscal health and programs. 8 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn • Assist with benchmarking against other municipalities. • Coordinate relationship with rating agencies. Bond Sales • Coordinate the tasks, responsibilities, and dates for completing activities leading up to a bond sale with the City's financing team; • Assist the City in preparing and managing the procurement of other financing members as needed. • Attend in person or by phone all organizational, document review, and special meetings related to a bond financing; • Evaluate, advise, and consult with the City and bond counsel regarding financial and non- financial bond covenants of the bond issue; • Assist in furnishing materials / data to rating agencies, bond insurers, and letter of credit providers; • Assist in structuring bond transactions; • Assist in team discussions in conjunction with bond counsel on form, content, and sufficiency of information in the preliminary and final official statements; • Assist in preparing preliminary and final official statements in conjunction with bond counsel; • Coordinate paying agent, escrow, advertising, and any other services necessary for the bond sale; • Provide advice on approaches to ratings and facilitate the presentations to ratings agencies; and • Evaluate the use and obtain bids for credit enhancements, when appropriate. Competitive Sales • Coordination of pre -sale publicity, call for bids, evaluation of bids, recommendations regarding sufficiency of bids and awarding of bonds. Negotiated Sales • Coordinate pricing meetings and offerings of negotiated issues; • Recommend structure of underwriting teams; i.e., co -managers, selling group, syndicate, etc.; • Recommend timing of bond pricing; and • Review, monitor and advise the City regarding proposed negotiated interest rates, spreads and underwriter compensation. Bond Closing • Prepare closing memorandum with bond counsel to confirm activities at the closing and role of each party; • Assist in evaluating the investment of bond proceeds (where applicable) for construction fund, debt service, fund, escrow, etc.; and 9 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn • Assist with the allocation of debt service principal and interest from a bond sale to the underlying borrowings at high level. Public Meetings • Prepare and deliver presentations designed to facilitate an understanding of public sector financing and its implications to public officials and residents. Post -Issuance Assistance • Review the City's CAFR for adequacy of meeting continuing disclosure requirements; • Assist in appropriate continuing disclosure process for some or all of the City's outstanding obligations requiring annual filings and event notices; • Provide advice related to compliance with arbitrage regulations. 10 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn EXHIBIT "B" FEE SCHEDULE Consultant's fees for such Services will be based upon the following hourly rates schedule: Title Hourly Fee* Managing Director $345 Director $325 Vice President $295 Assistant Vice President $275 Associate $245 Analyst $205 *Subject to annual increases not -to -exceed 3% a year with written approval from the City. The following fixed transactions fees for debt offerings are separate from the hourly compensation capped annually at $50,000 and will be billed in the event the City requires these services. Fixed transaction fees, including reimbursement of out-of-pocket expenses, are payable from bond proceeds and contingent on the closing of a transaction. Transaction Type Fee Range General Obligation Bonds $35,000 - $60,000 Lease Revenue Bonds or COPS $35,000 - $60,000 Enterprise Revenue Bonds WOO - $605000 Refunding Tax Allocation Bonds $405000 - $655000 Special Assessment Bonds WOO - $7000 Mello -Roos Bonds WOO - $7000 Pension Obligation Bonds WOO - $80,000 Reimbursement for a limited number of out-of-pocket expenses, such as conference call services, color copying and statistical data obtained from outside sources, as well as air travel and hotels if necessary, will be capped at $2,500. 11 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn EXHIBIT ffcft WORKERS' COMPENSATION INSURANCE CERTIFICATION Every employer, except the State, shall secure the payment of compensation in one or more of the following ways: (a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State. (b) By securing 'from the Director of Industrial Relations, a certificate of consent to self -insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his or her employees. CHECK ONE am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the perfoti-nance of the work and activities required or permitted Linder this Agreement. (Labor Code § 1861). I affirm that at all times, in performing the work and activities required or permitted Linder this Agreement, I shall not em.ploy any person in any mariner such that I become subject to the workers' compensation laws of California. However. at any time, if I employ any person Such W that I become subject to the workers" compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, or a, certification of workers' compensation insurance. I certify under penalty of perjury under the laws of the State of California that the information and representations made in this certificate are true and correct. KNN PUBLIC FINANCE LLC By: Mark T. Young,. V-kh"naarnv Director 12 LAca\dJm'Aarecn1ents\KNN Public Finance Agreement-FY20-0099.docJn Date: /z i - ------------------ J EXHIBIT "D" Disclosures Pursuant to MSRB Rules G-42 and G-10 Pursuant to Municipal Securities Rulemaking Board ("MSRB") Rule G-42, on Duties on Non - Solicitor Municipal Advisors, Municipal Advisors are required to make certain written disclosures to clients which include, amongst other things, Conflicts of Interest and any Legal or Disciplinary Events of KNN Public Finance, LLC ("KNN Public Finance") and its associated persons. Conflicts of Interest Other Municipal Advisor Relationships. KNN serves a wide variety of other clients that may from time to time have interests that could have a direct or indirect impact on the interests of another KNN client. For example, KNN serves as municipal advisor to other municipal advisory clients and, in such cases, owes a regulatory duty to such other clients just as it will to your entity, if hired. These other clients may, from time to time and depending on the specific circumstances, have competing interests. In acting in the interests of its various clients, KNN could potentially face a conflict of interest arising from these competing client interests. KNN fulfills its regulatory duty and mitigates such conflicts through dealing honestly and with the utmost good faith with its clients. Compensation. KNN Public Finance represents that in connection with the issuance of municipal securities, KNN Public Finance may receive compensation from an Issuer or Obligated Person for services rendered, which compensation is contingent upon the successful closing of a transaction and/or is based on the size of a transaction. Consistent with the requirements of MSRB Rule G-42, KNN Public Finance hereby discloses that such contingent and/or transactional compensation may present a potential conflict of interest regarding KNN Public Finance's ability to provide unbiased advice to enter into such transaction. This conflict of interest will not impair KNN Public Finance's ability to render unbiased and competent advice or to fulfill its fiduciary duty to the Issuer. If KNN Public Finance becomes aware of any additional potential or actual conflict of interest after this disclosure, KNN Public Finance will disclose the detailed information in writing to the Issuer in a timely manner. Legal or Disciplinary Events KNN Public Finance, LLC, has never been subject to any legal, disciplinary or regulatory actions nor was it ever subject to any legal, disciplinary or regulatory actions previously, when it was a division of Zions First National Bank or Zions Public Finance, Inc. A regulatory action disclosure has been made on Form MA -I for one of KNN's municipal advisory personnel relating to a 1998 U.S. Securities and Exchange Commission ("SEC") order that was filed while the municipal advisor was employed with a prior firm, (not KNN Public Finance). The details of which are available in Item 9; C(1), C(2), C(4), C(5) and the corresponding regulatory action DRP section on Form MA and Item 6C; (1), (2), (4), (5) and the corresponding regulatory action DRP section on Form MA -I. Issuers may electronically access 13 L:\ca\djin\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn KNN Public Finance's most recent Form MA and each most recent Form MA -I filed with the Commission at the following website: www.sec.aov/ed(yar/searclied ar/coin San searcli.11tnit. The SEC permits certain items of information required on Form MA and Form MA -I to be provided by reference to such required information already filed on a regulatory system (e.g., FINRA CRD). The above noted regulatory action has been referenced on both Form MA and MA -I due to the information already filed on FINRA's CRD system and is publicly accessible through BrokerCheck at htt ://brokercli.eck..li.nra.or y. For purposes of accessing such BrokerCheck information, the Municipal Advisor's CRD number is 4457537. There has been no change to any legal or disciplinary event that has been disclosed on KNN Public Finance's original SEC registration Form MA filed on February 8, 2016 or Form MA-I's filed on January 22, 2016. Additional Disclosures - MSRB Rule G-10 Pursuant to Municipal Securities Rulemaking Board Rule G-10, on Investor and Municipal Advisory Client Education and Protection, Municipal Advisors are required to provide certain written information to their municipal entity and obligated person clients which include the following: a) KNN Public Finance, LLC is currently registered as a Municipal Advisor with the U.S. Securities and Exchange Commission and the Municipal Securities Rulemaking Board. b) Within the Municipal Securities Rulemaking Board ("MSRB") website at www.nisrb.org, City of Redlands may obtain the Municipal Advisory client brochure that is posted on the MSRB website. The brochure describes the protections that may be provided by the MSRB Rules along with how to file a complaint with financial regulatory authorities. 14 L:\ca\djm\Agreements\KNN Public Finance Agreement.FY20-0099.doc.jn