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1991-206-Authorizing The Town Manager To Sign An Agreement With Miller And Schroeder Financial, Incorporated For Finacial Advisory ServicesRESOLUTION 1991 -206 RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO SIGN AN AGREEMENT WITH MILLER & SCHROEDER FINANCIAL, INCORPORATED FOR FINANCIAL ADVISORY SERVICES RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that the Town of Los Gatos enter into an agreement (attached) with Miller & Schroeder Financial, Incorporated for financial advisory services, and that the Town Manager is authorized, and is hereby directed, to execute said agreement in the name and in behalf of the Town of Los Gatos. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 16th day of September, 1991 by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Joanne Benjamin, Steven Blanton Mayor Brent N. Ventura NAYS: None ABSENT: Eric D. Carlson ABSTAIN: None SIGNED: ! MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: r CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA. THIS AGREEMENT is entered into this day of 119 by and between the Town of Los Gatos, State of California, herein called the "Towel', and Miller & Schroeder Financial, Incorporated, engaged in providing financial advisor consultant services herein called the "Consultant'. RECITALS A. The Town is considering undertaking activities to issue special assessment district bonds. B. The Town desires to engage a financial advisor to provide consulting services in conjunction with structuring and issuing the special assessment district bonds. AGREEMENTS NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: 1. ape of Services The consultant shall provide services as shown on Attachment 1. The consultant shall carry out this project under the direction of the Assistant Town Manager. 2. Time of Performance. The services of the Consultant are to commence upon the execution of this Agreement with completion following conclusion of bond sale. 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant represents and warrants to Town that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 15 of the Code of the Town of Los Gatos. 4. Confidential Information. All data, documents, discussion or other information developed or received by or for the Consultant in performance of this Agreement are confidential and will not be disclosed to any person except as authorized by the Town Manager, or Assistant Town Manager, or their designee or as required by law. Page 1 of 4 5. Town Proo,M. All materials and compilations of information produced by the Consultant specifically to'perlorm <this Agreement are and remain property of the Town regardless of whether such materials and compilations are required to be, or are, actually delivered to the Town. 6. Compensation. The compensation to be paid to the financial advisor consultant including both payment for professional services administrative overhead and any reimbursable expenses (as detailed in Consultant's "A Proposal to the Town of Los Gatos, California for Financial Advisory Services, "' Financial Advisor's Compensation and Fee Schedule' (attached hereto as Exhibit 2 and incorporated by reference herein) shall not exceed $19,500. Payment shall be made at the Towns next issue of warrants following completion and receipt of billing. If the consultant determines that additional services may be required to complete the assignment, the Consultant shall submit a written request to perform additional services with a concise breakdown of additional costs. The Assistant Town Manager will review the request and will either provide approval for the additional services and costs or advise the Consultant to continue without the additional work. In no case will the compensation amounts be more than those indicated without prior written notification and the subsequent approval by ae Town. 7. Inde=pendent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he /she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. S. Conflict of Interest. The Consultant has no holdings or interests within the Town of Los Gatos. Consultant has no business holdings or Agreements with any member of the staff or management of the Town or its representatives. 9. Insurance. A. Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, a General Liability insurance policy insuring him /her and his /her firm to an amount not less than: five hundred thousand dollars ($500,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. Page 2 of 4 Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Certificates of such insurance shall be filed with the Town on or before commencement of performance of this agreement and a copy of insurance policy shall be attached as Exhibit 3. B. General Liability: i. The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. ii. The Consultanf s insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self - insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultanf s insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers. iv. The Consultanf s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. C. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has be given to the Town. current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 10. Indemnification. The Consultant shall save, keep and hold harmless indemnify and defend the Town its officers, agent, employees and volunteers from all damages, costs or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultanf s employees, or any subconsultant. The Town -will not be held liable for any accident, loss or damage to the work prior to its completion and acceptance. 11. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder. 12. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Page 3 of 4 13. Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen (15) days written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, the Consultant shall be paid for all satisfactory work, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 14. Entire Agrreemgnt. This Agreement constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. 15. Disputes. In any dispute over any aspect of this agreement the prevailing party shall be entitled to reasonable attorney s fees, as well as all reasonable costs (not limited to those allowed by statute). 16. Execution. This Agreement may be executed in several counterparts each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy, here of shall have been signed by both parties hereto. In proving this agreement, it shall not be necessary to produce or account for more than one such counterpart. IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of the date indicated on page one (1). Town of Los Gatos David W. Knapp, Town Manager Town of Los Gatos ATTEST: Clerk of the Town of Los Gatos, Los Gatos, California Marian V. Cosgrove, Town Clerk MGR039 AACNCLRPTS \9- 16 -2AGR Miller & Schroeder Financial, Incorporated: Emily Wagner, Vice - President Approved as to Form: Katherine Anderton, Town Attorney Page 4 of 4 I SCOPE OF SERVICES AS FINANCIAL ADVISOR The scope of services to be provided by :Miller & Schroeder as financial advisor for the financing(s) will be as follows: ■ Develop and prepare a comprehensive financing plan for the project that provides for the timing and structuring of the financing. ■ Prepare a timetable and schedule of work for the financing plan which will indicate dates of all major financing activities and parties responsible for completing tasks. ■ Make a recommendation to staff regarding the necessary levels for the reserve fund. ■ Prepare and submit for approval, the maturity schedules that present the different options available for the payment of principal and interest (to determine the term of the bonds). ■ Assist the Town ( "issuer ") in controlling all issuance costs. ■ Prepare request for proposals for paying agent/ registrar- agent, financial printer; assist issuer in selecting a paying agent /registrar agent for the bonds, financial printer for the printing of the bonds and official statement; and coordinate the communications with these contractors. ■ If it is determined that the Bonds are to be rated and /or credit enhanced, prepare all documents for the bond insurance companies' and other credit enhancement providers' review, and act as liaison between the Town and rating agencies to properly present the positive attributes of the Town, its financial position and its credit worthiness. ■ Prepare a comprehensive and attractive bond prospectus (official statement) that fully discloses to bond buyers information about the securities, the project, the security and sources of repayment limitations and the nature of any credit supports, the sources and uses of funds, a summary of legal documents, the original purchase price of the securities, and a summary of the legal opinions regarding tax exemption. ■ Perform financial analysis and offer marketing advice regardin& the underwriting of the bonds. Advise staff on the timing of the bond sale in relation to the market conditions and financing needs. ■ Review the underwriter's proposal to purchase the bonds if sold on a negotiated bid basis. Review available bond market data to identify issues comparable to the Town's bond sale. Make a recommendation to staff regarding the interest rate levels. ■ Oversee the bond closing on behalf of the Town. e ■ Upon completion of the sate, prepare a letter listing the issue par value, date of sale, interest cost, and any other information on bond sales that are comparable to and upon which the advice was based regarding the Town's bond sale. ■ Work cohesively with Bond Counsel, underwriter, Town staff, and the property owners to insure the completion of a successful bond financing. ■ Assist the Town in arranging for the investment of bond proceeds in compliance with California law Section 53601 of the Government Code. ■ Throughout contract period make presentations to the Town Council, subcommittees of the Council, property owner's, and /or staff as needed. ■ If bonds are sold on a competitive bid basis, financial advisory services would also include the following: • Develop the mailing list of prospective underwriters and institutional investors /bidders. • Direct the advertisement and calling for bids for the sale of the Bonds. • Conduct the bid opening and verify the lowest bidder (i.e., lowest N.I.C.). FINANCIAL ADVISOR'S COMPENSATION AND FEE SCHEDULE Based on the information provided in this proposal and more specifically the section herein entitled "Scope of Services as Financial Advisor ", Miller & Schroeder Financial, Inc.'s total proposed fee to serve as Financial Advisor for each individual Bond issue contracted for and by the Town of Los Gatos would be as follows: Fee to be billed on a "time and materials basis" as follows, however, in no event shall such payment exceed $19,500 (including labor and direct reimbursements) per financing: .. Vice President Analyst Associate Word Processor Direct Reimbursements ■ Computer Time and Expenses ■ Personal Auto Mileage ■ Air Fare, Auto Rental Motel /Hotel, Meals Telecommunications, Postage, etc. $200 /hour 100 /hour 85 /hour 30 /hour at cost plus labor (at Analyst rate) .30 /mile at cost All normal costs of issuance including Bond Counsel fees, underwriter's discount, the cost of printing the bonds and official statement, paying agent /registrar fees, etc. are not included in the above stated expenses of the Financial Advisor. All fees are to be paid out of bond proceeds and are only due and payable upon the successful completion of a bond issue. Submitted by: rte/ Emily E. agner, Vice-President Miller & Schroeder Financial, Inc. August 22, 1991