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HomeMy WebLinkAboutGEORGE K BAUM - CONTRACT - RFP - P936 FINANCIAL ADVISORY INVESTMENT BANKINGSERVICES AGREEMENT WORK ORDER TYPE THIS AGREEMENT made and entered into the day and year set forth below, by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and George K. Baum & Company, hereinafter referred to as "Service Provider". WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Services to be Performed. a. This Agreement shall constitute the basic agreement between the parties for Investment Banking Services. The conditions set forth herein shall apply to all services performed by the Service Provider on behalf of the City and particularly described in Work Orders agreed upon in writing by the parties from time to time. Such Work Orders, a sample of which is attached hereto as Exhibit "A", consisting of one (1) page, and incorporated herein by this reference, shall include a description of the services to be performed, the location and time for performance, the amount of payment, any materials to be supplied by the City and any other special circumstances relating to the performance of services. The only services authorized under this agreement are those which are performed after receipt of such Work Order, except in emergency circumstances where oral work requests may be issued. Oral requests for emergency actions will be confirmed by issuance of a written Work Order within two (2) working days. b. The City may, at any time during the term of a particular Work Order and without invalidating the Agreement, make changes within the general scope of the particular services assigned and the Service Provider agrees to perform such changed services. 2. Changes in the Work. The City reserves the right to independently bid any services rather than issuing work to the Service Provider pursuant to this Agreement. Nothing within this WOSA 10/97 EXHIBIT "B" Proposed Fees & Expenses George K. Baum & Company is a full service investment banking firm which utilizes the talent and expertise of its many experienced team members on any assignment, financial advisory or underwriting, that it undertakes for a client. In our opinion, all of the fees proposed below are reasonable and competitive except where competing firms are unable to provide the same level of resources and expertise as George K. Baum & Company. We are however open to negotiation with the City on any aspect of the fees proposed based on the City's final requirements. Negotiated Sales George K. Baum & Company proposes that the City retain its services as an investment banker to underwrite the City's proposed COP's, which are resistant to effective public sale especially its open space COP's. For the difficult task of structuring, obtaining ratings and credit enhancement and underwriting the open space COP's we would seek compensation of $7.00/$1000 of par amount. For underwriting the police services building COP's a fee of $5.00/ $1 000 is proposed as it is for the transportation and library COPs. For redevelopment TIF bonds, we would underwrite at a fee of $9.00/$1000 for insured bonds and $12.50 for non-insured and or non -rated bonds. Additional Fees for Other Services George K. Baum & Company will pay all its normal and customary out -of -pocket expenses from the above fees. Out-of-pocket expenses for out of state travel for rating and insurance presentations would be charged at our cost and only with the prior approval of the City. On any issue we will commit that such direct expenses would not exceed $1,500 without the City's consent. We do not anticipate that George K. Baum & Company will incur reimbursable expenses for other of our services that will occur in the course of completing individual issues for the City. Normal cost of issuance such as bond and disclosure counsel, insurance, rating fees, title insurance, P05/OS printing and distribution, including electronic posting, paying agent, fees of the City's auditor, CUSIP, DTC, etc., will vary with each issue's size and complexity and are considered the City's normal expenses to be paid from issue proceeds. Fees for such services as opinion surveys and special studies and research provided by George K. Baum & Company would be determined at the time such services were requested and at a level mutually agreed. WOSA 10/97 EXHIBIT "C" INSURANCE REQUIREMENTS 1. The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins." In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Service Provider's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement: Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. WOSA 10/97 Agreement shall obligate the City to have any particular service performed by the Service Provider. 3. Time of Commencement and Completion of Services The services to be performed pursuant to this Agreement shall be initiated as specified by each written Work Order or oral emergency service request. Oral emergency service requests will be acted upon without waiting for a written Work Order. Time is of the essence. 4. Contract Period. This Agreement shall commence June 1, 2004, and shall continue in full force and effect until May 31, 2005, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. Pricing changes shall be negotiated by and agreed to by both parties and may not exceed the Denver - Boulder CPI-U as published by the Colorado State Planning and Budget Office. Written notice of renewal shall be provided to the Service Provider and mailed no later than 90 days prior to contract end. 5. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without is fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within fifteen (15) days from the onset of such condition. 6. Early Termination by City/Notices. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Service Provider. Such notice shall be mailed at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following address: WOSA 10/97 Professional: City: With Copy to: George K. Baum & Co. City of Fort Collins, Finance City of Fort Collins, 717 17th St. Ste. 2500 Attn: Alan Krcmarik Purchasing Denver, CO 80202 PO Box 580 PO Box 580 Fort Collins, CO 80522 Fort Collins, CO 80538 In the event of early termination by the City, the Service Provider shall be paid for services rendered to the termination date, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Such payment shall be the Service Provider's sole right and remedy for such termination. 7. Contract Sum. This is an open-end indefinite quantity Agreement with no fixed price. The actual amount of work to be performed will be stated on the individual Work Orders. The City makes no guarantee as to the number of Work Orders that may be issued or the actual amount of services which will in fact be requested. 8. Payments. a. The City agrees to pay and the Service Provider agrees to accept as full payment for all work done and all materials furnished and for all costs and expenses incurred in performance of the work the sums set forth for the hourly labor rate and material costs, with markups, stated within the Bid Schedule Proposal Form, attached hereto as Exhibit "B", consisting of one (1) page, and incorporated herein by this reference. b. Payment shall be made by the City only upon acceptance of the work by the City and upon the Service Provider furnishing satisfactory evidence of payment of all wages, taxes, supplies and materials, and other costs incurred in connection with the performance of such work. 9. City Representative. The City's representative will be shown on the specific Work Order and shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the work requested. All requests concerning this Agreement shall be directed to the City Representative. WOSA 10/97 10. Independent Contractor. It is agreed that in the performance of any services hereunder, the Service Provider is an independent contractor responsible to the City only as to the results to be obtained in the particular work assignment and to the extend that the work shall be done in accordance with the terms, plans and specifications furnished by the City. 11. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the city. 12. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights under the Agreement or of any cause of action arising out of the performance of this Agreement. 13. Warranty. (a) Service Provider warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. (b) Unless otherwise provided in the Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of the most suitable grade of their respective kinds for their intended use, and all workmanship shall be acceptable to City. (c) Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City -furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period beginning with the start of the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired or replaced by Service Provider in a manner and at a time acceptable to City. 14. Default. Each and every term and condition hereof shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the WOSA 10/97 terms of this agreement, such party may be declared in default thereof. 15. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non - defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred because of the default. 16. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representative, successors and assigns of said parties. 17. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever, brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit "C", consisting of one (1) page, attached hereto and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk WOSA 10/97 Management, 215 N. Mason, PO Box 580, Fort Collins, Colorado 80522 one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the city. 18. Entire Agreement. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. 19. Law/Severability. This Agreement shall be governed in all respect by the laws of the State of Colorado. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction such holding shall not invalidate or render unenforceable any other provision of this Agreement. 20. Special Provisions. [Optional] Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit N/A, consisting of N/A ( ) page[s], attached hereto and incorporated herein by this reference. WOSA 10/97 CITY OF FORT COLLINS, COLORADO a munici al corporation Jam s . O'Neill II, CPPO Dire of Purchasing and Risk Management l-)D u l K L. 11n s PRI T NAME 0-y L) i CI' PVt S r d Q w1— Title: CORPORATE PRESIDENT OR VICE PRESIDENT Date: 1l�la Lo ATTEST: (Corporate Sea]) CORPORATE SECRETARY WOSA 10/97 EXHIBIT "A" WORK ORDER FORM PURSUANT TO AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND DATED: Work Order Number: Purchase Order Number: Project Title: Commencement Date: Completion Date: Maximum Fee: (time and reimbursable direct costs): Project Description: Scope of Services: Service Provider agrees to perform the services identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Services Agreement between the parties. In the event of a conflict between or ambiguity in the terms of the Services Agreement and this work order (including the attached forms) the Services Agreement shall control. Service Provider WOSA 10/97 Acceptance _ User The attached forms consisting of (_) pages are hereby accepted and incorporated herein by this reference, and Notice to Proceed is hereby given. City of Fort Collins By: Date: EXHIBIT "A" Attachment "A" SCOPE 1. Prepare Initial Financing Plan, Reports, Etc. 2. Draft RFP for Underwriting Services, Assist in Selecting underwriting Team 3. Develop the Bond Structure and Sizing 4. Develop all financial Models 5. Assist in Preparation and Review of all Legal Documents 6. Break Even Analysis RE: viability of Insurance and DSRF Surety Policies 7. Rating Agency and Insurance Preparatio nNisit 8. Assist in the Selection of the Printer of the POS/OS 9. Track and Advise the City Regarding the Costs of Issuance 10. Marketing and Pricing of Bonds a. Trading Desk Will be available for Pricing to Advise the City of the Marketing b. Monitor the Market for Comparable Financings c. Develop a Marketing Plan d. Prepare a Post -Pricing Analysis 11. Dialogue with Bond Counsel on Tax Issues 12. Serve as Structuring and Bidding Agent for all Bond Proceed Reinvestment and Derivative 13. Transactions 14. Coordinate Trustee Activities 15. Draft/Review Closing Memo 16. Coordinate/Participate in Bond Closing WOSA 10/97