HomeMy WebLinkAboutRS01-Redevelopment Agency
- -
"
o
o
..
o
Redevelopment Agency · City of San Bernardino
300 Ncr1h "D" SIIee~ Fourth F100r . San Bernardino, Cllifomia 92A18
(714) 384-5081 FAX (714) 888-9413
PrIde .f
\;?-
Steven H. DuJcett
Eucutive Director
JUNE 16, 1989
PROPOSED AGREEMENT FOR INVESTMENT BANKING SERVICES
MILLER & SCHROEDER FINANCIAL, INC.
Synopsis of Previous Commission/Council/Committee Action:
6/10/89 Council and Commission reviewed the concept in principle and
.requested that a contract be submitted for consideration on June 19,
1989.
Recommended Motion:
a)
(MAYOR AND COMMON COUNCIL)
Move to adopt RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING
THE EXECUTION OF AN AGREEMENT FOR INVESTMENT BANKING SERVICES
BETWEEN THE CITY OF SAN BERNARDINO, THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO ON BEHALF OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND MILLER AND
SCHROEDER FINANCIAL, INC.
(COMMUNITY DEVELOPMENT COMMISSION)
o
b) Move to authorize execution of the attached Agreement for investment
banking services between the City of San Bernardino, the Community
Development Commission of the City of San Bernardino on behalf of
the Redevelopment Agency of the City of San Bernardino and Miller
and Schroeder Financial, Inc.
Supporting data attached: YES
FUNDING REQUIREMENTS: N/A
Ward: All
Project: All
Commission Notes:
o
l776R/SHD/mv
Agenda of: JUNE 19, 1989
Item No._R S -1
L
o
o
o
-
'.
o
o
STAPP REPORT
This is to recommend that the Council and Commission enter into an agreement
with Miller and Schroeder Pinancia1, Inc., for investment banking services.
BACKGROUND
On June 10, 1989 the Council and Commission considered opportunities for
refunding any outstanding obligations where substantial savings can result by
selling for residual interest. Further, the Commission also considered the
opportunities for issuance of new tax exempt bonds and the refunding of
existing bonds. During the discussion on these matters, the Commission and
Council received an oral presentation from Mr. James Iverson of Miller and
Schroeder Pinancia1, Inc. Subsequently, staff and counsel were asked to
prepare, for Council and Commission consideration, an agreement with Miller
and Schroeder Pinancia1, Inc., for investment banking services. In addition,
staff conducted a survey of each of the firms that had previously indicated an
interest in providing investment banking services. The results of this survey
have confirmed Miller and Schroeder's high level of experience and capability.
In response to the Council's and Commission's request, the attached draft
agreement was prepared. The draft agreement is currently under review by
Miller and Schroeder and ia anticipated to be finalized by close of business
June 16, 1989. It is, therefore, recommended that the Council and Commission
approve an agreement with Miller and Schroeder Pinancia1, Inc., for investment
banking services subject to the final agreement being approved as to form and
legal content by the City Attorney and Agency Counsel and signed by Miller and
Schroeder Pinancia1, Inc.
1776R/SHD/mv
'.
o
o
o
'.
o
o
1
2
RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT FOR INVESTMENT BANKING SERVICES
BETWEEN THE CITY OF SAN BERNARDINO, THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO ON BEHALF OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND MILLER AND
SCHROEDER FINANCIAL, INC.
3
4
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7
SECTION 1. The Mayor of the City of San Bernardino is
8 hereby authorized and directed to execute an Agreement for
9 Investment Banking Services between the City of San Bernardino,
10 the Community Development Commission of the City of San
11 Bernardino on behalf of the Redevelopment Agency of the City of
12 San Bernardino and Miller and Schroeder Financial, Inc., in the
13 form of a copy of said agreement attached hereto as Exhibit "A".
14
15
SECTION 2. Said Agreement shall not take effect until
fully signed and executed by all parties. The City shall not be
16 obligated hereunder unless and until the Agreement is fully
17 executed and no oral agreement relating thereto shall be implied
18 or authorized.
19
SECTION 3. This resolution is rescinded if the parties to
20 the agreement fail to execute it within sixty (60) days of the
21 passage of this resolution.
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27
28
/ / /
1
DAB:br
June 15, 1989
o
o
o
10
11
12
13
14
15
16
17
-
..!
o
o
1
RESO. OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF
INVESTMENT BANKING SERVICES AGREEMENT BETWEEN CITY OF SAN
BERNARDINO, THE COMMUNITY.DEVEL.COMMISSION OF THE CITY OF SAN
BERNARDINO ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND MILLER AND SCHROEDER FINANCIAL, INC.
2
3
4 I HEREBY CERTIFY that the foregoing resolution was duly
5 adopted by the Mayor and Common Council of the City of San
6
7
Bernardino at a
meeting thereof, held on the
day of
, 1989, by the following vote,
8 to wit:
9 AYES:
NAYS:
ABSENT:
City Clerk
The foregoing resolution is hereby approved this~
day of
, 1989.
W.R. Holcomb, Mayor
18 City of San Bernardino
Approved as to form
19 and Legal Content:
20 JAMES F. PENMAN
City Attorney
21
22
23
24
25
26
27
28
B)~J
2
DAB: br
June 15, 1989
'.
o
o
o
-
-
o
o
DRAfT
AGREEMENT lOB. IXVESTIIBNT BANKING SIB.VICES
Agreement No.
rBIS AGIEEHENT I18de and entered into this day of ,
1989, by and between THE CITY OF SAN BERNARDINO, A KUNICIPAL CORPORATION,
duly organized under the laws of the State of California ("City"), the
COMKUlfITY DEVELOPMENT COMMISSION 01 THE CITY 01 SAN BERNARDINO, on
behalf of the UDEVELOPMENT AGENCY 01 THE CITY OF SAN BERNARDINO, a
public agency, ("Agency"), and Miller and Schroeder Financial, Inc.
("Consultant") :
WITNESSETH:
WRF.RRA~, City and Agency propose to initiate Proceedings for:
a) a restructuring of City and Agency's Single Family Residential
Mortgage Revenue Bonds, 1980 and 1979 Series Bonds with
Collateralized Mortgage Obligations;
b) a refunding of five of Agency's outstanding bond issues;
c) the issuance of additional taI increment bonds in the
approximate amount of $20,000,000; and
WHlaU&AS, City and Agency require assistance in the development of a
sound, equitable and practical financing plan to implement the project by
taking into consideration sources of capital funds, financial
feasibility, annual costs, the allocation of those costs, statutory
requirements and restrictions, and alternate methods of financing, if
applicable; and
WHIB.EAS, City and Agency require the services of a municipal
investment banker experienced in financial consulting for and
underwriting of such Collateralized Mortgage Obligation Refunding Bonds
and taI increment bonds to assist in such financial planning and to
purchase City's and Agency's obligations at negotiated sale, where
permitted by law, and to coordinate the sale and distribution of
obligations required to be sold at publiC sale; and
WHEREAS, Consultant asserts and affirms that it is qualified by
training and experience to perform said services;
NOW, THEREFORE, it is mutually agreed as follows:
TIB.KS AND CONDITIONS
1.
Mission
City and Agency hereby retsin Consultant in the capacity as
Investment Banker for provision of services described in Attachment
I. Consultant hereby accepts such responsibility as described
herein.
o
o
o
5.
I..
o
o
2. TerJllll
This Agreement shall commence as of the day and year first above
shown and shall remain in full force and effect for a period of one
year unless sooner terminated as provided herein.
4. Consultant B.esponsibilities
Consultant shall complete the work program described in Attachment
I. Consultant commits the principal personnel listed below to the
project for its duration:
Consultant:
James Iverson
4.
Replacement of Named Personnel
It has been determined that the individual(s) named in this
Agreement are necessary for the successful performance of this
Agreement. No diversion or replacement of these individual(s) shall
be made by Consultant without written consent of City and Agency,
provided that City and Agency may ratify, in writing, within ten
(10) days of diversion or replacement and such ratification shall
constitute the consent of City and Agency required by this clause.
If City and Agency fail to respond to Consultant within ten (10)
days of notification by Consultant, said personnel diversion or
replacement shall be deemed approved.
Release of News Information
No news release, including photographa, public announcements or
confirmation of same, of any part of the subject matter of this
Agreement or any phase of any program hereunder shall be made
without prior written approval of City and Agency.
6. Confidentia~ty of Reports
l347S
Consultant shall keep confidential all reports, information and data
received, prepared or assembled pursuant to performance hereunder
and that City and Agency designate as confidential. Such
information shall not be made available to any person, firm,
corporation or entity without the prior written consent of City and
Agency.
-2-
o
o
o
o
o
7.
Sale of BODds, COIIPensation
Unless the private sale of the obligationa is prohibited by law,
City or Agency and Consultant shall enter into a bond purchase
agreement for the sale of the obligations to Consultant bearing
interest at rates and at such discount as may be mutually agreeable
to City, Agency and Consultant. The purchase of such obligations
shall be subject to the standard and customary conditions of such
obligations of a similar nature including the unqualified legal
opinion of nationally recognized bond counsel with respect to the
validity and tax-exempt status of such obligations.
For issues of the obligations which are sold to Consultant at
private.sale, the bond discount shall represent Consultant's
compensation and City or Agency ahall not be liable to Consultant
for any additional fees whatsoever. If no issues of City's or
Agency's obligations are sold to Consultant at private sale,
Consultant shall not be entitled to any fees whatsoever. It is
understood that Consultant's compensation may be greater than the
discount to the extent that market conditions allow the obligations
to be resold at a price in excess of their par value. The
reasonable expectation of such premium, if any, may be taken into
account in determining the interest rate or rates and discount on
the obligations.
Consultant shall from the bond discount on obligations sold at
private sale, bear all out-of-pocket costs and expenses, including
without limitation, travel, telephone, telegraph, stenographic work,
and the like, incurred by Consultant in performing Consultant's
duties and obligations, unless the incurring of such costs and
expenses is specifically authorized in writing by City or Agency.
Consultant is not responsible for and shall not be held liable for
any other expense or expenditure in connection with the financing
program.
City and Agency shall bear all costs of issuance of bonds, note or
other obligations including the costs of printing the official
statement, private placement memorandum, the securities or other
legal documents, fees of bond counsel, costs of any required
publications, and costs of mailing and distributing the official
statement.
8.
Right to Audit
City and Agency or any of their duly authorized representatives
shall have access to any books, documents, papers and records of
Consultant and/or its subcontractors which are pertinent to the
specific program hereunder for the purpose of making an audit, an
examination, excerpts and transcriptions. All books, records and
supporting detail shall be retained for a period of five (5) years
after the expiration of the term of this Agreement, or any extension
thereof, or for any longer period of time as required by law.
13478
-3-
o
o
o
-
-
o
o
9. Audit bcepti0D8
Consultant agrees that in the event the program established
hereunder is subjected to audit exceptions by appropriate audit
agencies, it shall be responsible for complying with such exceptions
and paying City and Agency the full amount of liability resulting
from such audit exceptions.
10. Agency Support
City and Agency shall provide Consultant with any plans,
publications, reports, statistics, records or other data or
information pertinent to the services to be provided hereunder which
are reasonably available to City and Agency.
11. Independent Contractor
Consultant shall perform the services as contained herein as an
independent contractor and shall not be considered an employee of
City and Agency or under City and Agency supervision or control.
This Agreement is by and between Consultant and City and Agency, and
is not intended, and shall not be construed, to create the
relationship of agent, servant, employee, partnership, joint
venture, or association, between City and Agency and Consultant.
12. Conflict of Interest
Consultant represents, warrants and agrees that it does not
presently have, nor will it acquire during the term of this
Agreement, any interest direct or indirect, by contract, employment
or otherwise, or as a partner, joint venturer or shareholder (other
than as a shareholder holding a one percent (1%) or less interest in
publicly traded companies) or affiliate with any business or
business entity that has entered into any contract, subcontract or
arrangement with City and Agency. Upon execution of this Agreement
and during its term, as appropriate, Consultant shall upon written
request, disclose in writing to City and Agency any other
contractual or employment arrangement from which it receives
compensation. Consultant agrees not to accept any employment during
the term of this Agreement by any other person, business or
corporation which employment will or may likely develop a conflict
of interest between City's and Agency's interests and the interests
of third parties. Consultant further agrees that it will avoid all
other applicable statutory conflicts of interest including, but not
limited to, those specified in California Government Code Section
1090, et seq., California Government Code Section 87100 to 87103;
California Government Code Section 1126, California Health and
Safety Code Section 33130 and the common law doctrine of conflicts
of interest.
l347S
-4-
o
o
o
16.
1347S
-
JItI 1
1
o
o
13. Successor and uSigmumt
The services as contained herein are to be rendered by Consultant
whose name is as appears first 'above written and said Consultant
shall not assign nor transfer any interest in this Agreement without
the prior written consent of City and Agency.
14. IndnmUication
Consultant agrees to indemnify, defend (upon request by City and
Agency) and save harmless City and Agency, their agents, officers
and employees from and against any and all liability, expense,
including defense costs and legal fees, and claims for damages of
any nature whatsoever, including, but not limited to, bodily injury,
death, personal injury or property damage arising from or connected
with Consultant's operations, or its services hereunder, including
any workers' compensation suit, liability or expense, arising from
or connected with the services performed by or on behalf of
Consultant by any person pursuant to this Agreement.
15.
Insurance
Without limiting Consultant's indemnification of City and Agency,
Consultant shall provide and maintain at its own expense during the
term of this Agreement the following program( s) of insurance
covering its operation hereunder. Such insurance shall be provided
by insurer(s) satisfactory to City and Agency and evidence of such
programs satisfactory to City and Agency shall be delivered to the
City Administrator and the Executive Director of Agency or their
designees within ten (10) days of the effective date of this
Agreement.
General Liability: A program including, but not limited to,
comprehensive general liability including automobile coverage
with a combined single limit of not less than $300,000.00 per
occurrence. Such insurance shall be primary to and not
contributing with any other insurance maintained by City and
Agency, and shall name City and Agency as an additional insured.
Workers' Compensation: A program including workers'
compensation insurance, where necessary, with statutory limits.
Failure on the part of Consultant to procure or maintain required
insurance shall constitute a material breach of this Agreement upon
which City and Agency may immediately terminate this Agreement.
C~l1ance with Laws
The parties agree to be bound by applicable federal, state and local
laws, regulations and directives as they pertain to the performance
of this Agreement.
-5-
o
o
o
..Il
j
lL _
o
o
17. lfon-Discr1lll1uation
In the fu1fillment of the program established under this Agreement,
either as to employment, upgrading, demotion, transfer, recruitment
or recruitment advertising, layoff or termiuation, rates of payor
other terms of compensation, selection for training, including
apprenticeship or participation in the program or the receiving of
any benefits under the program, Consultant agrees not to
discriaiuate nor to allow any subcontractor to discrim1uate on the
basis of race, color, creed, religion, uatural origin, ancestry,
sex, marital status or physical handicap.
18. Severabll.1ty
In the event that any provision herein contained is held to be
invalid, void or illegal by any court of competent jurisdiction, the
same shall be deemed severable from the remainder of this Agreement
and shall in no way affect, impair or invalidate any other provision
contained herein. If any such provision shall be deemed invalid due
to its scope or breadth, such provision shall be deemed valid to the
extent of the scope or breadth permitted by law.
19.
Interpretation
No provision of this Agreement is to be interpreted for or against
either party because that party or that party's legal representative
drafted such provision, but this Agreement is to be construed as if
it were drafted by both parties hereto. This Agreement shall be
construed according to the laws of the State of California.
20.
Entire Agrenent
This Agreement supersedes any and all other agreements, either oral
or in writing, between the parties hereto with respect to the
retention of Consultant by City and Agency and containa all the
covenants and agreements between the parties with respect to such
retention.
21. Waiver
No breach of any provision hereof can be waived unless in writing.
Waiver of anyone breach of any provision shall not be deemed to be
a waiver of any other breach of the same or any other provision
hereof.
22. Contract Evaluation and Review
The ongoing assessment and monitoring of this Agreement is the
responsibility of the City Administrator and the Agency's Executive
Director or their designees.
l347S
-6-
o
o
o
-
II
- - - ~
o
o
23. Te1'll1nation
This Agreement may be terminated by either party by giving written
notice at least five (5) days prior to the effective termination
date in the written notice.
24. Notice
Notices, herein shall be presented in person or by certified or
registered U. S. mail, as follows:
To Consultant:
Miller & Schroeder Municipals, Inc.
505 Lomas Santa Fe Drive
Solana Beach, California 92075
To Agency:
Executive Director
Redevelopment City and Agency of the City of
San Bernardino
300 North "D" Street, Fourth Floor
San Bernardino, California 92418
To City:
City Administrator
City of San Bernardino
300 North "D" Street, Sixth Floor
San Bernardino, California 92418
Nothing in this paragraph shall be construed to prevent the giving
of notice by personal service.
IN WITNESS WBEBEOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above shown.
Approved as to fon and
legal content:
CITY OF SAN l\EIUWU)INO
By:
By:
City Attorney
Mayor
Attest:
COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY or SAIl l\EIUWU)INO. on behalf
of the REDEVELOPMENT AGENCY or THE
CITY or SAN l\EIUWU)INO
By:
City Clerk
Approved as to form
and legal content:
By:
Executive Director
CONSULTANT
By:
Agency Counsel
By:
1 ";lJ.'7~
Title:
_7_
o
o
o
III
..J
-
o
o
Attachment I
WORK PROGRAM
Services to be Performed by Consultant:
Consultant shall perform in a diligent manner the following services:
1. Assemble, review and analyze available financial and economic
data and information which may have a general bearing on a program for
financing of the proposed transactions.
2. Assemble and review a description of the proposed transactions
and outline the possible methods of financing such projects, the
advantages and disadvantages of each method as applied to a given
transaction, "the general legal and practical requirements or restrictions
applicable to each method and their attendant costs.
3. When City and Agency have approved the plan for implementation,
the estimated costs and method of financing of which have been
sufficiently well established to permit the preparation of a final
financing plan, Consultant shall prepare such plan containing, in
addition to other information, the following:
A.
A description of the transaction, including the purpose,
benefits, estimated costs and other pertinent information.
B.
Details relating to the proposed method of financing,
including tentative bond amortization schedules, call
features, sources and amounts of funds to be used in
amortizing the costs and other related data.
C. Recommendations as to further procedures.
4. Assist Bond Counselor Special Counsel with the preparation of
necessary resolutions and other legal documents and make recommendations
as to the exact terms and conditions under which bonds are to be issued
and sold or privately placed, including timing and method of sale, final
amortization or repayment schedules, call and redemption features,
provisions governing the issuance of additional bonds, covenants and
other provisions in order to secure the best possible rating on the bonds.
5. Prepare the text and other material for an official statement
desribing the transactions, the bonds, their security, and the economic
and financial information on the participating entity.
6. If it is appropriate or desirable for any other public entity or
Authority to participate in accomplishing the financing for any
transaction or transactions, Consultant, in order to achieve maximum
coordination of the proposed financing, shall also serve as the
Investment Banker for such public entity or authority under the terms and
conditions hereof.
-1-
o
o
o
--
~ 4.,U.-
-,.
o
o
Attachment I
7. Consultant shall be available at reasonable times by telephone
or at the offices of City or Agency to discuss on a continuing basis the
results of studies and analyses and generate such additional information
as desired or requested and consult with City or Agency as to the
financial aspects of any specific transaction then being considered.
l348S
-2-
w
o
o
.
AGUIIIBIlT FOI. INVESTMENT BANKING SBB.VICBS
Agreement No.
THIS AGB.IIlMENT made and entered into this day of ,
1989, by and between THE CITY OF SAN BERNARDINO, A MUNICIPAL COB.PORATION,
duly organized under the laws of the State of California ("City"), the
COMMUNITY DBVELOPMIN'l COMMISSION OF THE CITY OF SAN BBB.IWUlINO, on
behalf of the UDBVELOPMBNT AGENCY OF THE CITY OF "SAN BBB.IWUlINO, a
public agency, ("Agency"), and Miller and Schroeder Financial, Inc.
("Investment Banker"):
WITNESSETH:
WHEREAS, City and Agency propose to initiate proceedings for the
following "Proposed Transaction":
a) a restructuring of City and Agency's Single Family Residential
Mortgage Revenue Bonds, 1980 and 1979 Series Bonds with
Collateralized Mortgage Obligations;
b) a refunding of five of Agency's outstanding bond issues;
c) . the issuance of additional tax increment bonds in the
approximate amount of $20,000,000; and
WHEREAS, City and Agency require assistance in the development of a
sound, equitable and practical financing plan to implement the project by
taking into consideration sources of capital funds, financial
feasibility, annual costs, the allocation of those costs, statutory
requirements and restrictions, and alternate methods of financing, if
applicable; and
WHEREAS, City and Agency require the services of a municipal
investment banker experienced in financial consulting for and
underwriting of such Collateralized Mortgage Obligation Refunding Bonds
and tax increment bonds to assist in such financial planning and to
purchase City's and Agency's obligations at negotiated sale, where
permitted by law, and to coordinate the sale and distribution of
obligations required to be sold at public sale; and
WHEB.EAS, Investment Banker asserts and affirms that it is qualified
by training and experience to perform said services;
NOW, THEREFORE, it is mutually agreed as follows:
/":'-1
-
1L
o
o
TERMS AND CONDITIONS
1.' Mission
City and Agency hereby retain Investment Banker in the capacity as
Investment Banker for provision of services described in Attachment
I. Investment Banker hereby accepts such responsibility as
described herein.
2. Teras
This Agreement shall commence as of the day and year first above
shown and shall remain in full force and effect for a period of one
year unless sooner terminated as provided herein.
4. Invest~t Banker Responsibilities
Investment Banker shall complete the work program described in
Attachment I. Investment Banker commits the principal personnel
listed below to the project for its duration:
Principal Personnel:
James Iverson
Robin Thomas
Rhonda Connolly
5. Replac~nt of Naaed PersODDel
It has been determined that the individual(s) named in this
Agreement are necessary for the successful performance of this
Agreement. No diversion or replacement of these individual(s) shall
be made by Investment Banker without written consent of City and
Agency, provided that City and Agency may ratify, in writing, within
ten (10) days of diversion or replacement and such ratification
shall constitute the consent of City and Agency required by this
clause. If City and Agency fail to respond to Investment Banker
within ten (10) days of notification by Investment Banker, said
personnel diversion or replacement shall be deemed approved.
6. Release of News Inforaation
No news release, including photographs, public announcements or
confirmation of same, of any psrt of the subject matter of this
Agreement o~ any phase of any program hereunder shall be made
without prior joint written approval of City, Agency and Investment
Banker.
l347S
-2-
-~
11
o
o
7. Confidentiality of aeports
Investment Banker shall keep confidential all reports, information
and data received, prepared or assembled pursuant to performance
hereunder and that City and Agency designate in writing as
confidential. Such information shall not be made available to any
person, firm, corporation or entity without the prior written
consent of City and Agency.
8. Sale of Bonds, Coapensation
Unless the negotiated sale of the obligations is prohibited by law,
City or Agency and Investment Banker shall enter into a bond
purchase agreement for the sale of the obligations to Investment
Banker bearing interest at rates and at such discount as may be
mutually agreeable to City, Agency and Investment Banker. The
purchase of such obligations shall be subject to the standard and
customary conditions of such obligations of a similar nature
including the unqualified legal opinion of nationally~ recognized
bond counsel with respect to the validity and tax-exempt status of
such obligations.
For issues of the obligations which are sold to Investment Banker at
negotiated sale, the bond discount shall represent Investment
Banker's compensation and City or Agency shall not be liable to
Investment Banker for any additional fees whatsoever. If no issues
of City's or Agency's obligations are sold to Investment Banker at
negotiated sale, Investment Banker shall not be entitled to any fees
whatsoever. It is understood that Investment Banker's compensation
may be greater than the discount to the extent that market
conditions allow the obligations to be resold at a price in excess
of their par value. The reasonable expectation of such premium, if
any, may be taken into account in determining the interest rate or
rates and discount on the obligations.
Investment Banker shall from the bond discount on obligations sold
at negotiated sale, bear all out-of-pocket costs and expenses,
including without limitation, travel, telephone, telegraph,
stenographic work, and the like, incurred by Investment Banker in
performing Investment Banker's duties and obligations, unless the
incurring of such costs and expenses is specifically authorized in
writing by City or Agency. Investment Banker is not responsible for
and shall not be held liable for any other expense or expenditure in
connection with the financing program.
13475
-3-
J
o
o
.
City and Agency shall bear all costs of issuance of bonds, note or
other obligations including the costs of printing the official
statement, negotiated placement memorandum, the securities or other
legal documents, fees of bond counsel, costs of any required
publications, and costs of mailing and distributing the official
statement. Investment Banker shall bear all fees of underwriter's
counsel.
9. Right to Audit
City and Agency or any of their duly authorized representatives
shall have access to any books, documents, papers and records of
Investment Banker and/or its subcontractors which are pertinent to
the specifiC Proposed Transaction hereunder for the purpose of
making an audit, an examination, excerpts and transcriptions. All
books, records and supporting detail shall be retained for a period
of five (5) years after the expiration of the term of this
Agreement, or any extension thereof, or for any longer period of
time as required by law.
10. Agency Support
City and Agency shall provide Investment Banker with any plans,
publications, reports, statistics, records or other data or
information pertinent to the services to be provided hereunder which
are reasonably available to City and Agency.
11. Independent Contractor
Investment Banker shall perform the services as contained herein as
an independent contractor and shall not be considered an employee of
City and Agency or under City and Agency supervision or control.
This Agreement is by and between Investment Banker and City and
Agency, and is not intended, and shall not be construed, to create
the relationship of agent, servant, employee, partnership, joint
venture, or association, between City and Agency and Investment
Banker.
12. Conflict of Interest
Investment Banker represents, warrants and agrees that it does not
presently have, nor will it acquire during the term of this
Agreement, any interest direct or indirect, by contract, employment
or otherwise, or as a partner, joint venturer or shareholder (other
than as a shareholder holding a one percent (1%) or less interest in
publicly traded companies) or affiliate with any business or
business entity that has entered into any contract, subcontract or
arrangement with City and Agency. After execution of this Agreement
and during its term, as appropriate, upon written request by City or
Agency with regard to specifiC individuals or entities, Investment
13478
-4-
-
o
o
,
Banker shall disclose in writing to City and Agency any contractual
or employment arrangement relstive to such individuals or entities
from which it receives compensation. Investment Banker agrees not
to knowingly accept any employment during the term of this Agreement
by any other person, business or corporation which employment will
or may reasonably develop a conflict of interest between City's and
Agency's interests and the interests of third parties. Investment
Banker further agrees that it will avoid all other applicable
statutory conflicts of interest including, but not limited to, those
specified in California Government Code Section 1090, et seq.,
California Government Code Section 87100 to 87103; California
Government Code Section 1126, California Health and Safety Code
Section 33130 and the common law doctrine of conflicts of interest.
13. Successor and Assigmaent
The services as contained herein are to be rendered by Investment
Banker whose name is as appears first above written and said
Investment Banker shall not assign nor transfer any interest in
this Agreement without the prior written consent of City and Agency.
14. Indemnification
Investment Banker agrees to indemnify, defend (upon request by City
and Agency) and save harmless City and Agency, their agents,
officers and employees from and against any and all liability,
expense, including defense costs and legal fees, and claims for
damages of any nature whatsoever, including, but not limited to,
bodily injury, death, personal injury or property damage arising
from or connected with Investment Banker's operations, or its
services hereunder, including any workers' compensation suit,
liability or expense, arising from or connected with the services
performed by or on behalf of Investment Banker by any person
pursuant to this Agreement.
15. Insurance
Without limiting Investment Banker's indemnification of City and
Agency, Investment Banker shall provide and maintain at its own
expense during the term of this Agreement the following program(s)
of insurance covering its operation hereunder. Such insurance shall
be provided by insurer(s) satisfactory to City and Agency and
evidence of such programs satisfactory to City and Agency shall be
delivered to the City Administrator and the Executive Director of
Agency or their designees within ten (10) days of the effective date
of this Agreement.
l347S
-5-
o
o
GeDeral Liability: A program including, but not limited to,
comprehensive general liability including automobile coverage
with a combined single limit of not less than $300,000.00 per
occurrence. Such insurance shall be primary to and not
contributing with any other insurance maintained by City and
Agency, and shall name City and Agency as an additional insured.
Workers' COIRpensation: A program including workers'
compensation insurance, where necessary, with statutory limits.
Failure on the part of Investment Banker to procure or maintain
required insurance shall constitute a material breach of this
Agreement upon which City and Agency may immediately terminate this
Agreement.
16. Compliance with Laws
The parties agree to be bound by applicable federal, state and local
laws, regulations and directives as they pertain to the performance
of this Agreement.
17. Hoo-Discria1nation
In the fulfillment of the program established under this Agreement,
either as to employment, upgrading, demotion, transfer, recruitment
or recruitment advertising, layoff or termination, rates of payor
other terms of compensation, selection for training, including
apprenticeship or participation in the program or the receiving of
any benefits under the program, Investment Banker agrees not to
discriminate nor to allow any subcontractor to discriminate on the
basis of race, color, creed, religion, natural origin, ancestry,
sex, marital status or physical handicap.
18. Severability
In the event that any provision herein contained is held to be
invalid, void or illegal by any court of competent jurisdiction, the
same shall be deemed severable from the remainder of this Agreement
and shall in no way affect, impair or invalidate any other provision
contained herein. If any such provision shall be deemed invalid due
to its scope or breadth, such provision shall be deemed valid to the
extent of the scope or breadth permitted by law.
19. Interpretation
No provision of this Agreement is to be interpreted for or 'against
either party because that party or that party's legal representative
drafted such provision, but this Agreement is to be construed as if
it were drafted by both parties hereto. This Agreement shall be
construed according to the laws of the State of California.
l347S
-6-
o
o
,
20. Bntire Aareaent
This Agreement supersedes any and all other agreements, either oral
or in writing, between the patties hereto with respect to the
retention of Investment Banker by City and Agency. and contains all
the covenants and agreements between the parties with respect to
such retention.
21. Waiver
No breach of any provision hereof can be waived unless in writing.
Waiver of anyone breach of any provision shall not be deemed to be
a waiver of any other breach of the same or any other provision
hereof.
22. Contract Evaluation aJUl R.eview
The ongoing assessment and monitoring of this Agreement is the
responsibility of the City Administrator and the Agency's Executive
Director or their designees.
23. Terllination
This Agreement may be terminated by either party by giving written
notice at least five (5) days prior to the effective termination
date in the written notice.
24. Notice
Notices, herein shall be presented in person or by certified or
registered.U. S. mail, as follows:
To Investment Banker:
Miller & Schroeder Financial, Inc.
505 Lomas Santa Fe Drive
Solana Beach, California 92075
To Agency:
Executive Director
Redevelopment Agency of the
City of San Bernardino
300 North "D" Street, Fourth Floor
San Bernardino, California 92418
To City:
City Administrator
Ci ty of San Bernardino
300 North "D" Street, Sixth Floor
San Bernardino, California 92418
Nothing in this paragraph shall be construed to prevent the giving
of notice by personal service.
l347S
-7-
.
o
o
.
III WlTDSS WIIllREOI', the parties hereto have caused this Agreement
to be executed as of the day and year first above shown.
Approved as to fora and
legal content:
CITY OF SAN BElUWl.DIlIO
By:
By:
Mayor
City Attorney
By:
COHKUNITY DEVELOPMBNT COllMISSION OF
THE CITY OF SAN BElUWl.DIlIO, on behalf
of the B.BDBVBLOPMBNT AGINCY OF THE
CITY OF SAN BElUWl.DINO
Attest:
City Clerk
Approved as to fora
and legal content:
By:
Executive Director
MILLER & SCBll.OEDEIl. I'DWlCIAL, INC.
By:
Agency Counsel
By:
Title:
13475
-8-
.
o
o
Attachment I
WORK PROGRAM
Services to be Performed by Investment Banker:
Investment Banker shall perform in a diligent manner the following
services:
1. Assemble, review and analyze available financial and economic
data and information which may have a general bearing on a program for
financing of the Proposed Transactions.
2. Assemble and review a description of the Proposed Transactions
and outline the possible methods of financing such projects, the
advantages and disadvantages of each method as applied to a given
transaction, the general legal and practical requirements or restrictions
applicable to each method and their attendant costs.
3. When City and Agency have approved the plan for implementation,
the estimated costs and method of financing of which have been
sufficiently well established to permit the preparation of a final
financing plan, Investment Banker shall prepare such plan containing, in
addition to other information, the following:
A. A description of the transaction, including the purpose,
benefits, estimated costs and other pertinent information.
B. Details relating to the proposed method of finanCing,
including tentative bond amortization schedules, call
features, sources and amounts of funds to be used in
amortizing the costs and other related data.
C. Recommendations as to further procedures.
4. Assist Bond Counselor Special Counsel with the preparation of
necessary resolutions and other legal documents and make recommendations
as to the exact terms and conditions under which bonds are to be issued
and sold or privately placed, including timing and method of sale, final
amortization or repayment schedules, call and redemption features,
provisions governing the issuance of additional bonds, covenants and
other provisions in order to secure the best pOSSible rating on the bonds.
5. Prepare the text and other material for an official statement
de sri bing the transactions, the bonds, their security, and the economic
and financial information on the participating entity.
6. If it is appropriate or desirable for any other public entity or
Authority to participate in accomplishing the financing for any
transaction or transactions, Investment Banker, in order to achieve
maximum coordination of the proposed financing, shall also serve as the
Investment Banker for such public entity or authority under the terms and
conditions hereof.
-1-
.
o
o
Attachment 1
7. Inve8tment Banker 8hall be available at rea80nable time8 by
telephone or at the office8 of City or Agency to di8cu88 on a continuing
blf8i8 the re8ults of 8tudie8 and analY8e8 and generate 8uch additional
information a8 de8ired or reque8ted and con8ult with City or Agency a8 to
the financial a8pect8 of any 8pecific tran8action then being con8idered.
13488
-2-