01-086 E. Wagner & Associates
FINANCIAL CONSUL'CING AGREEMENT
THIS FINANCIAL CONSULTING AGRI?EMENT is made and entered into this 1st day
of October 2001, between the CITY OF CUPER'TINO, a municipal corporation of the State of
California, ("City") and E. WAGNER & ASSOCIATES, INC., a California Corporation,
(Taxpayer Identification No. 94-3259728) ("Consultant").
RECITALS
WHEREAS, the City is considering the financing of the acquisition and construction of a
multifamily rental housing development located in the County of Santa Clara (the "Project"), by
means of the issuance of Bonds of the City (the "Bonds") to a local financial institution, and the
lending of the proceeds of Bonds to a nonprofit public benefit corporation that will acquire and
develop the Project; and
WHEREAS, in connection with such financing the City requires the advice and
assistance of a financial advisor;
NOW, THEREFORE, in consideration ~~f their mutual covenants and conditions, the
parties hereto agree as follows:
A. DUTIES OF THE CONSULTANT
1. Develop a plan of finance
^ Review and analyze all available data and information.
^ Recommend bond structure.
^ Determine bonding capacity based on identifiable revenue stream, direct
and overlapping indebtedness, etc.
2. Prepare and submit a detailed schedule and timetable for the implementation
of all aspects of the financing.
3. Advise staff on existing and pote~itial laws and regulations that may affect the
financing.
4. Assist the City in obtaining a truste;e and any additional consultants as needed
to complete the bond financing.
5. Perform financial analysis and offer marketing advice regarding the financing.
6. Review all bond documents on behalf of the City and prepare a staff report
transmitting the final documents to Council for their approval.
7. Oversee the negotiating of the bond pricing for the privately placed Bonds on
behalf of the City.
8. Oversee the bond closing on behalf of the City.
9. Work cohesively with Bond Counsel, City Staff, and other consultants to
insure the completion of a successful Bond financing.
10. Throughout contract period make presentations as needed.
11. Be available to City Staff after th~~ Bond closing and for the duration of the
Bond issue to answer questions regarding the Bond issue.
B. DUTIES OF THE CITY
1. The City shall make payment to thf; Consultant as provided for in this Agreement.
2. The City shall make available to the Consultant any document, studies or other
information in its possession reasonably required in support of the provision of
the subject financial consulting services.
3. The City Staff shall be responsible for obtaining needed disclosure information
from the City.
4. The City Staff will present to the City Council those reports, items and
authorizations needing such Council's action.
C. TERM AND TERMINATION OF AGREEMENT
This Agreement will commence upon its a;xecution by the parties, and will continue until
the Consultant has fully rendered the services and the City has made payment, unless sooner
terminated. The City may for any reason terminate or suspend this Agreement at any time by
2
giving written notice to the Consultant of such termination or suspension and specifying the
effective date thereof, at least fifteen (15) days before the effective date of such termination or
suspension. Notice of termination shall be delivered by certified mail return receipt requested.
The Consultant shall be given an opportunity for ~~onsultation with the City prior to the effective
date of such termination. In the event of termination, all finished and unfinished documents and
other materials prepared pursuant to this Agreement shall, at the option of the City, become its
property. Upon such termination, the Consultant shall meet with the City's staff and provide it
all information developed by the Consultant pursuant to this Agreement. The Consultant shall be
entitled to receive its actual cost for satisfactory work performed as more fully set forth in
Section F herein.
D. CONFIDENTIAL INFORMATION
Any report, information, or other data, prepared or assembled by the Consultant under
this Agreement is confidential and shall not be made available to any individual or organization
by the Consultant without the prior written approval of the City.
E. PUBLIC, REPRODUCTION AND USE OF INFORMATION
REPORTS AND OTHER MATERIAL
The City shall have the unrestricted authority to pu'olish, disclose, distribute and
otherwise use, in whole or in part, any reports., data, or other material prepared under this
Agreement.
F. PAYMENT
The City shall pay the Consultant a fee of $25,000 for the performance of services
identified herein in Section A. Such payment shall become due and payable upon the receipt by
the City of the proceeds from the sale of the Bond issue. The City agrees to pay for any services
solicited by the Consultant directly to the persons providing such services, provided,. however,
the City Manager shall first approve of such fees, in writing, before such services are rendered.
G. TIME OF COMPLETION
Time is of the essence in carrying out the tE;rms of this Agreement.
3
H. STANDARD OF CARE
Consultant agrees to perform all services hereunder in a manner commensurate with the
prevailing standards of like professionals in they San Francisco Bay Area and agrees that all
services shall be performed by qualified and experienced personnel who are not employed by the
City nor have any contractual relationship with th~~ City.
I. INDEPENDENT PARTIES
City and Consultant intend that the relationship between them created by this Agreement
is that of employer-independent contractor. The manner and means of conducting the work are
under the control of Consultant, except to the extent they are limited by statute, rule or regulation
and the express terms of this Agreement. No civil service status or other right of employment
will be acquired by virtue of Consultant's service;. None of the benefits provided by City to its
employees, including but not limited to, unemplo}~rnent insurance, workers' compensation plans,
vacation and sick leave are available from City to consultant, its employees or agents.
Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or
other purposes normally associated with an empl~~yer-employee relationship from any fees due
Consultant. Payments of the above items, if required, are the responsibility of Consultant.
J. NON-DISCRIMINATION
Consistent with City's policy that hara;~sment and discrimination are unacceptable
employer/employee conduct, Consultant agrees that harassment or discrimination directed
toward a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or
subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap,
disability, marital status, pregnancy, sex, age, ~or sexual orientation will not be tolerated.
Consultant agrees that any and all violations of this provision shall constitute a material breach
of this Agreement.
4
K. HOLD HARMLESS AND INSURANCE
The Consultant will indemnify the City ~igainst and hold it harmless from all and any
liability, causes of action, claims, costs, expenses (including reasonable attorney's fees) or
damages on account of injury to persons or damage to property resulting from or arising out of or
in any way connected with the negligence or willful misconduct of the Consultant or its officers,
employees, agents, or independent contractors wrio are directly responsible for the performance
of any part of this Agreement. The Consultant shall reimburse the City for all costs, expenses
and losses incurred by it as a result of any claims., demands or causes of action brought against
the City by any person arising out of the neglige~ice or willful misconduct of the Consultant in
the performance of this Agreement.
The Consultant will maintain insurance dtu-ing the contract period as required by the City
and specified in Exhibit A to this Agreement.
L. REMEDIES
In the event either party brings action against the other to enforce any of the terms of this
Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and
costs whether such action is prosecuted to a conclusion or not. The remedies given to the parties
in this paragraph shall be in addition and supplem~;ntal to all rights or remedies either may have
under the laws then in force.
M. PROJECT MANAGER
The Consultant designates Emily Wagner a:s its project manager. The City designates the
Director of Administrative Services as its contact for this contract.
5
N. NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, to the
following addresses:
To City: City of Cupertino
10300 Torre Avenue
Cupertino, C'A 95014
Attn: Director of Administrative Services
To Consultant: E. Wagner &~ Associates, Inc.
5990 Stoneridge Drive, Suite 103
Pleasanton, l~A 94588
Attn: Emily E. Wagner
IN WITNESS WHEREOF, the parties have executed this Contract on the date first above stated
in Cupertino, California.
CITY OF CUPERTINO
By:
Director of Administrative Services
Approved as to Form
C_m. , ...,..,~._.- ---_ _
B
By:
Name: Emily .Wagner
Title: President
Taxpayer I.D. No. 94-3259728
6
E. WAGNER & ASSOCIATES, INC.
)~+ XHIEtIT A
• INSURANCE
Consultant, at Consultant's sole cost anti expense, shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to persons or damages to
property which may arise from, or in connection with, the performance of the services hereunder
by Consultant, its agents, representatives, employees or subcontractors.
A. MII~IIMUM LIMITS OF INSURANCE
Consultant shall maintain limits no less than:
1. Commercial General. Liability: $1,000,(100 combined single limit per occurrence for
bodily injury, personal injury and property damage; and
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury
and property damage; and
3. Workers' Compensation and Employers Liability: Workers' Compensation limits as
required by the California Labor Code and Employers Liability limits of $100,000 per
accident.
B. DEDUCTIBLES AND SELF-INSURED F:ETENTIONS
Any deductibles or self-insured retentions must be declared to, and approved by City's
Risk Manager. At the option of City, either: the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its officers, employees, agents and
contractors; or Consultant shall procure a bond guaranteeing payment of losses and related
investigations, claim administration and defense ~;xpenses in an amount specified by the City's
Risk Manager.
C. OTHER INSURANCE PROVISIONS
The policies to contain, or be endorsed to contain, the following provisions:
1. Commercial General Liability and ~~utomobile Liability Coverages
A-1
a. The City of Cupertino, its officers, empl~~yees, agents and contractors are to be covered
as additional insureds as respects: Liability arising out of activities performed by or on
behalf of, Consultant; products and comp:ieted operations of Consultant; premises owned,
leased or used by Consultant; and automobiles owned, leased, hired or borrowed by
Consultant. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, employees, agents and contractors.
b. Consultant's insurance coverage shall be primary insurance as respects City, its officers,
employees, agents and contractors. Any .insurance or self-insurance maintained by City,
its officers, employees, agents or contractors shall be excess of Consultant's insurance
and shall not contribute with it.
c. Any failure to comply with reporting previsions of the policies by Consultant shall not
affect coverage provided City, its officers, employees, agents, or contractors.
d. Coverage shall state that Consultant's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
2. All Coverages
Each insurance policy required by this Agreement shall be endorsed to state that
coverage shall not be suspended, voided, cancelled, or reduced in limits except
after thirty (30) days' prior written notice has been given to City.
D. ACCEPTABILITY OF INSURERS
Insurance is to be placed with insurers aca~ptable to City's Risk Manager.
E. VERIFICATION OF COVERAGE
Consultant shall furnish City with certificates of insurance and with original
endorsements affecting coverage required by this Agreement. The certificates and endorsements
for each insurance policy are to be signed by a person authorized by that insurer to bind coverage
on its behalf.
A-2
Proof of insurance shall be mailed to the :Following address or any subsequent address as
may be directed in writing by the Risk Manager:
City of Cup~;rtino
10300 Torre Avenue
Cupertino, (:A 95014
Attn: Sand}~ Abe, Risk Manager
F. SUBCONTRACTORS
Consultant shall include all subcontractors as insured under its policies or shall obtain
separate certificates and endorsements for each subcontractor.
A-3