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Res No 087-18-15120RESOLUTION NO: 087-18-15120 A Resolution authorizing the City Manager to execute an addendum to the Financial Advisory Agreement with Hilltop Securities, Inc. for Financial Advisory Services for the City's Public-Private Partnership (P3) projects. WHEREAS, the City requires expert Financial Advisory services for the Public- Private Partnership (P3) project to assist in the evaluation of submittals; and WHEREAS, Hilltop Securities, Inc. (Formerly First Southwest Company, LLC) has provided an addendum to the Financial Advisory agreement between the firm and the City for services related to the City's Public Private Partnership (P3) projects; and WHEREAS, the addendum to the Financial Advisory agreement is necessary due to the specific scope of services related to the City's Public-Private Partnership (P3) projects that was not included in the scope of the Financial Advisory agreement authorized under Resolution No. 13-15-14352 dated January 20,2015; and WHEREAS, the cost for Financial Advisory services will be paid by respondents and their required fees to participate in the City's Public-Private Partnership (P3) projects; and WHEREAS, the Financial Advisory agreement expires January 20, 2020. NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA; Section 1. The City Manager is authorized to execute an addendum to the Financial Advisory Agreement with Hilltop Securities, Inc. for Financial Advisory Services for the City's Public-Private Partnership (P3) project. The cost for Financial Advisory services will be paid by respondents and their required fees to participate in the City's Public-Private Partnership (P3) projects. A copy of the Hilltop Securities, Inc. addendum is attached. Section 2. Severability. If any section, clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the remaining portions of this resolution. Section 3. Effective Date: This resolution shall take effect immediately upon enactment. PASSED AND ADOPTED this 15t@ayof_M_a...:;..Y ___ ,2018. ATTEST: APPROVED: Page 1 of2 Res. ,No. 087-18-15120 COMMISSION VOTE: 4-1 Mayor Stoddard: Yea Vice Mayor Harris: Nay Commissioner Welsh: Yea Commissioner Liebman: Yea Commissioner Gil: Yea Page 20[2 THE CITY OF PLEASANT LIVING To: FROM: DATE: SUBJECT: BACKGROUND: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM The Honorable Mayor & Members of the City Commission Steven Alexander, City Manager May 15, 2018 Agenda Item No.: __ A Resolution authorizing the City Manager to execute an addendum to the Financial Advisory Agreement with Hilltop Securities, Inc. for Financial Advisory Services for the City's Public-Private Partnership (P3) projects. The City requires expert financial advisory services the City's Public-Private Partnership (P3) projects to assist in the evaluation of submittals. Hilltop Securities, Inc. (Formerly First Southwest Company, LLC) has provided an addendum to the Financial Advisory agreement between the firm and the City for services related to the City's Public Private Partnership (P3) projects. The addendum to the Financial Advisory agreement is necessary due to the specific scope of services related to the City's Public-Private Partnership (P3) projects that was not included in the scope of the Financial Advisory agreement authorized under Resolution No. 13-15-14352 dated January 20,2015 A summary of a few key services provided by the consultant is listed below: • Review, evaluate, and provide feedback on proposals submitted to the City with respect to the Project; • Review each proposer's organizational structure and evaluate the financial strength of the proposer to the extent sufficient information is obtainable; • Assess the viability of each proposer's financial plan, including analysis of the debt financing plan, to the extent sufficient information is obtainable; • Participate in meetings with the City and other firms regarding the Project; • Assist the City in estimating the value of the consideration provided by the City and the developer of the Project to each other, based upon assistance and advice of real-estate consultants and other Project parameters established by the City; • Coordinate and assist in the preparation of financial materials as necessary; • Assist in the review and/or development of a financial model to compare the proposed terms and conditions of the various proposals to each other and/or 49 THE CITY OF PLEASANT LIVING VENDORS & PROPOSAL AMOUNT: FUND& ACCOUNT: ATTACHMENTS: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM to a traditional delivery method, based upon assistance, input, and advice of technical consultants; and • Participate in reviewing our analysis and advice with members of the City Staff and Commission as directed by the Administration The cost for the consultant services will be paid by respondents and their required fees to participate in the City's Public-Private Partnership (P3) projects. Refer to the Addendum, Section V, "Compensation & Expense Reimbursement" N/A Resolution Addendum No.1 to the Financial Advisory Agreement Resolution No. 13-15-14352 50 ADDENDUM #1 1'10 FINANCl4'\L ADV][SQRY AGREEMENT RECITALS WHEREAS, the City of South Miami (the "City") and First Southwest Company, LLC ("FirstSouthwest"), previously entered into a certain agreement for the provision of fmancial advisory services on March 31,2015 (the "Financial Advisory Agreement"), which is currently in effect; and WHEREAS, effective January 22, 2016, FirstSouthwest merged with and into its common control affiliate, Hilltop Securities Inc. ("Hilltop Securities") and, as the surviving entity, HilltopSecurities assumed all rights and obligations of FirstSouthwest under the Agreement pursuant to the Agreement and Plan of Merger dated January 22, 2016; and WHEREAS, the Financial Advisory Agreement provides for HilltopSecurities to advise the City regarding the issuance and sale of certain evidences of indebtedness or debt obligations that may be authorized and issued ("Debt Instruments"); and WHEREAS, the City desires to obtain the professional services of HilltopSecurities to undertake various fmancial analysis and advice regarding public-private partnership development projects (the "Project"), which professional services may not involve the issuance of Debt Instruments and are not contemplated in the Financial Advisory Agreement; and WHEREAS, HilltopSecurities is willing to provide these additional services, as set forth below. NQW THEREFQRE, the City and HilltopSecurities, in consideration of the mutual covenants and agreements set forth herein, do mutually agree to this Addendum #1 to Financial Advisory Agreement (the "Addendum") as follows: SECT][ON ][ SCOPE OF THE AGREEMENT HilltopSecurities agrees to perform the financial advisory services outlined in Section II, and for having rendered such services, the City agrees to pay HilltopSecurities compensation as set forth in Section V. If HilltopSecurities is unable or cannot provide the services required under this Agreement, HilltopSecurities will give the City written notice thereof, and this Addendum shall be terminated in accordance with the provisions of Section VIII. SECTIONH CHARACTER AND EXTENT OF SERVICES HilltopSecurities shall provide professional services relating to the Project, as requested by the City, which professional services may include the following: 1. Review, evaluate, and provide feedback on proposals submitted to the City with respect to the Project; 2. Review each proposer's organizational structure and evaluate the fmancial strength of the proposer to the extent sufficient information is obtainable; 3. Assess the viability of each proposer's financial plan, including analysis of the debt fmancing. plan, to the extent sufficient information is obtainable; 4. Participate in meetings with the City and other firms regarding the Project; 5. Provide support for the City in addressing questions from potential private partners; 6. Assist the City in estimating the value of the consideration provided by the City and the developer of the Project to each other, based upon assistance and advice of real-estate consultants and other Project parameters established by the City; 7. Coordinate and assist in the preparation of fmancial materials as necessary; 8. Assist in the review and/or development of a financial model to compare the proposed terms and conditions of the various proposals to each other and/or to a traditional delivery method, based upon assistance, input, and advice of technical consultants; and 9. Participate in reviewing our analysis and advice with members of the City Staff and Commission as directed by the Administration. SECTlfON ]][][ STANDARIDSOFPERFO~CE In providing the services set forth in Section II, HilltopSecurities will perform all obligations hereunder diligently until completed. It is understood and agreed that timely performance by HilltopSecurities is essential and that all services shall be completed within a reasonable time. SECTION IV TERM OF AGlRlEEMEN1' The term of this Addendum shall be conterminous with the term of the existing Financial Advisory Agreement, unless (i) terminated earlier by either party pursuant to Section VIII of this Addendum or (ii) the professional services set forth in Section II have been completed resulting in the successful execution of a development agreement. SECTION V COMPENSATION AND EXPENSE RlE][MBURSEMlENT A. For, and in consideration of the services rendered by HilltopSecurities under this Addendum, HilltopSecurities will be paid on an hourly basis at a blended hourly rate of $350.00. Hourly compensation will be billed on a monthly basis, and will be due within thirty (30) days of receipt of an invoice therefor. B. It is understood that the City shall reimburse HilltopSecurities for reasonable and necessary expenses for document production and distribution, and travel and lodging expenses authorized by the City in advance. The City agrees to reimburse HilltopSecurities for such expenses within thirty (30) days of receipt of a detailed invoice therefor. SECTiON VI TlHImD PARTY CONSULTANTS HilltopSecurities may utilize the services of third party consultants as needed, including real-estate consultants, whether directly contracted with the City or as sub-consultants to HilltopSecurities. Such third party consultants shall be used only for specialized expertise relating to the Project, and if utilized as a sub- consultant must be approved by the City in writing prior to engaging the third party consultant. 2 SEC,][,][ONV][[ CONFlLICTS OF INTEREST HilltopSecurities shall not offer its services or provide services to any other parties (directly or indirectly) if the same would cause any conflict of interest for HilltopSecurities; provided, however, the City acknowledges that HilltopSecurities presently represents and advises counties, cities, school districts and other political subdivisions, which representations shall not be deemed conflicts of interest. In the event a conflict arises, HilltopSecurities shall provide written notification to the City of such conflict and discontinue its services to the other party whose interest is adverse to the City or seek termination of this Addendum. SEC'lI'1I0N VlIH TElRMlINATION It is expressly understood and agreed that any party may terminate, with or without cause, this Agreement at any time by giving the other party at least thirty (30) days advance written notice of its intention to do so, specifying therein the effective date of such termination. Upon receipt of such notice, HilltopSecurities shall discontinue all services in connection with the performance of this Addendum. As soon as practicable after receipt of notice of termination, HilltopSecurities shall submit a detailed statement to the City showing all reimbursable expenses. Within thirty (30) days of the receipt of said statement, the City will review such statement and approve it with such modifications, if any, as may be deemed necessary. Copies of all completed or partially completed documents prepared under this Addendum shall be delivered to the Authority as soon as practicable after receipt of notice of termination. SECTlION 1IX A.JJ11I11R1ES§ ]FOR NOTlICES AND COMMUNICA ']['lION All notices and communications under this Addendum shall be mailed by certified mail, return receipt requested, or delivered to HilltopSecurities at the following address: Hilltop Securities Inc. 1201 Elm Street, Suite 3500 Dallas, Texas 75270 Attn: Brian Wittneben All notices and communications under this Addendum shall be mailed by certified mail, return receipt requested, or delivered to the City at the following address: City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Attn: Steven Alexander, City Manager §EcnONX SUCCESSORS AND ASSIGNS The City and HilltopSecurities bind themselves and their successors, executors, administrators and assigns to the other party of this Addendum. Neither the City nor HilltopSecurities shall assign, sublet or transfer its interest in this Addendum without the prior written consent of the other party. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of any public body that may be a party hereto. 3 §lECnON Xl[ APPLICABLE LAW HilltopSecurities agrees and covenants to perform its obligations hereunder in conformity with all applicable laws, rules and regulations of the State of Florida and the United States of America This Addendum shall be construed and given effect in accordance with the laws of the State of Florida. SlECTIONXD OWNlER§HllP OlF WORK PRODUCT All documentation, including any work product of HilltopSecurities, concerning this Addendum and that is in the possession or control of Hilltop Securities shall become the exclusive property of the City. §ECTIONXllI INDlEMNIFICA nON The City shall, to the extent permitted by law, indemnify HilltopSecurities for, and hold it harmless against, any loss, liability or expense (including reasonable counsel fees and disbursements), incurred without negligence and willful misconduct on HilltopSecurities' part, arising out or in connection with HilltopSecurities' obligations hereunder; provided, however, that in no event shall the City be liable to HilltopSecurities for an amount exceeding the maximum sum set forth in Section V of this Addendum. SECTION XIV MOIDlD1CATIONS This instrument contains the entire Addendum between the parties related to the rights herein granted and obligations herein assumed. Any oral or written representations or modifications concerning this Addendum shall be of no force and effect excepting a subsequent modification in writing signed by all parties hereto. §lEC1rION XV REQIDRlED Jl)lISCV()SURlES HilltopSecurities is providing its Municipal Advisor Disclosure Statement (the "Disclosure Statement"), current as of the date of this Agreement, setting forth disclosures by HilltopSecurities of material conflicts of interest, if any, and of any legal or disciplinary events required to be disclosed pursuant to Municipal Securities Rulemaking Board Rule G-42. The Disclosure Statement also describes how HilltopSecurities addresses or intends to manage or mitigate any disclosed conflicts of interest, as well as the specific type of information regarding, and the date of the last material change, if any, to the legal and disciplinary events required to be disclosed on Forms MA and MA-I filed by HilltopSecurities with the Securities and Exchange Commission. 4 lIN WITNESS WHEREOF, the parties have made and executed this Addendum in multiple copies, each of which shall be an original, on this the 16th day of May, 2018. HILLTOP SECURITIES INC. (Formerly First Southwest Company, LLC) BY:~L /' Name: To a.. \ -r. ",c6. \ Title:_---"-Pl..o.1 :!-I'=e.=c.:::...,:.+o....:.-r ______ _ Date:_=..5+-iJ:..=6;+-/ 2O~/-=-g __ _ I By,···~ ~J; 6-/;~e: 0" b7,/V" fv4)Ld~ 5 Title: C I if"17 Mitt/" 4=' ..vt--- ---Date: "). I Z, I r APPROVED AS TO FORM, LANGUAGE, lLEGAlLITY ANI) EXECT1UTION BY:~~~ CITY A TIORNIEY MUNICIPAL AJl)VXSOR D][SCLOSUlRlE STATEMENT This disclosure statement ("Conflict Disclosures") is provided by Hilltop Securities Inc. ("the Firm") to you (the "Client") in connection with our current municipal advisory agreement, (''the Agreement"). These Conflict Disclosures provide information regarding conflicts of interest and legal or disciplinary events of the Firm that are required to be disclosed to the Client pursuant to MSRB Rule G-42(b) and (c)(ii). PART A -Disclosures of Conflicts of Interest MSRB Rule G-42 requires that municipal advisors provide to their clients disclosures relating to any actual or potential material conflicts of interest, including certain categories of potential conflicts of interest identified in Rule G-42, if applicable. Material Conflicts of Interest -The Firm makes the disclosures set forth below with respect to material conflicts of interest in connection with the Scope of Services under the Agreement with the Firm, together with explanations of how the Firm addresses or intends to manage or mitigate each conflict. General Mitigations -As general mitigations of the Firm's conflicts, with respect to all of the conflicts disclosed below, the Firm mitigates such conflicts through its adherence to its fiduciary duty to Client, which includes a duty of loyalty to Client in performing all municipal advisory activities for Client. This duty of loyalty obligates the Firm to deal honestly and with the utmost good faith with Client and to act in Client's best interests without regard to the Firm's financial or other interests. In addition, because the Firm is a broker-dealer with significant capital due to the nature of its overall business, the success and profitability of the Firm is not dependent on maximizing short-term revenue generated from individualized recommendations to its clients but instead is dependent on long-term profitably built on a foundation of integrity, quality of service and strict adherence to its fiduciary duty. Furthelmore, the Firm's municipal advisory supervisory structure, leveraging our long-standing and comprehensive broker-dealer supervisory processes and practices, provides strong safeguards against individual representatives of the Firm potentially departing from their regulatory duties due to personal interests. The disclosures below describe, as applicable, any additional mitigations that may be relevant with respect to any specific conflict disclosed below. ][. AftUiate Conflict. The Firm, directly and through affiliated companies, provides or may provide services/advice/products to or on behalf of clients that are related to the film'S advisory activities within the Scope of Services outlined in the Agreement. First Southwest Asset Management (FSAM), a SEC- registered affiliate of the Firm, provides post issuance services including arbitrage rebate and treasury management. The film'S arbitrage team verifies rebate and yield restrictions on the investments of bond proceeds on behalf of clients in order to meet IRS restrictions. The treasury management division performs portfolio management/advisor services on behalf of public sector clients. The Firm, through affiliate First Southwest Advisory, provides a mUlti-employer trust tailor-made for public entities which allows them to prefund Other Post-Employment Benefit liabilities. The Firm has a structured products desk that provides advice to help clients mitigate risk though investment management, debt management and commodity price risk management products. These products consist of but are not limited to swaps (interest rate, currency, commodity), options, repos, escrow structuring and other securities. Continuing Disclosure services provided by the Firm work with issuers to assist them in meeting disclosure requirements set forth in SEC rule 15c2-12. Services include but are not limited to ongoing maintenance of issuer compliance, automatic tracking of issuer's annual filings and public notification of material events. The Firm administers two government investment pools for Texas governments; the Short-Term Asset Reserve Fund (TexST AR) and the Local Government Investment Cooperative (LOGIC). These programs offer Texas government entities investment options for their cash management programs based on the entities specific needs. The Firm and the aforementioned affiliate's business with a client could create an incentive for the Film to recommend to a client a course of action designed to increase the level of a client's business activities with the affiliates or to recommend against a course of action that would reduce or eliminate a client's business activities with the affiliates. Furthermore, this potential conflict is mitigated by the fact that the Firm and affiliates are 6 subject to their own comprehensive regulatory regime as a member of multiple self-regulatory organizations in which compliance is verified by not only internal tests but annual external examinations. ][[. Other Municipal Advisor or Underwriting Relationships. The Firm 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 Client. For example, the Firm serves as municipal advisor to other municipal advisory clients and, in such cases, owes a regulatory duty to such other clients just as it does to Client. These other clients may, from time to time and depending on the specific circumstances, have competing interests, such as accessing the new issue market with the most advantageous timing and with limited competition at the time of the offering. In acting in the interests of its various clients, the Firm could potentially face a conflict of interest arising from these competing client interests. In other cases, as a broker-dealer that engages in underwritings of new issuances of municipal securities by other municipal entities, the interests of the Firm to achieve a successful and profitable underwriting for its municipal entity underwriting clients could potentially constitute a conflict of interest if, as in the example above, the municipal entities that the Firm serves as underwriter or municipal advisor have competing interests in seeking to access the new issue market with the most advantageous timing and with limited competition at the time of the offering. None of these other engagements or relationships would impair the Firm's ability to fulfill its regulatory duties to Client. :OU. Secondary Market Transactions in Cnient's Securities. The Firm, in connection with its sales and trading activities, may take a principal position in securities, including securities of Client, and therefore the Firm could have interests in conflict with those of Client with respect to the value of Client's securities while held in inventory and the levels of mark-up or mark-down that may be available in connection with purchases and sales thereof. In particular, the Firm or its affiliates may submit orders for and acquire Client's securities issued in an Issue under the Agreement from members of the underwriting syndicate, either for its own account or for the accounts of its customers. This activity may result in a conflict of interest with Client in that it could create the incentive for the Firm to make recommendations to Client that could result in more advantageous pricing of Client's bond in the marketplace. Any such conflict is mitigated by means of such activities being engaged in on customary terms through units of the Firm that operate independently from the Firm's municipal advisory business, thereby reducing the likelihood that such investment activities would have an impact on the services provided by the Firm to Client under this Agreement. w. Broker-Dealer aDd investment Advisorv Business. The Firm is dually registered as a broker- dealer and an investment advisor that engages in a broad range of securities-related activities to service its clients, in addition to serving as a municipal advisor or underwriter. Such securities-related activities, which may include but are not limited to the buying and selling of new issue and outstanding securities and investment advice in connection with such securities, including securities of Client, may be undertaken on behalf of, or as counterparty to, Client, personnel of Client, and current or potential investors in the securities of Client. These other clients may, from time to time and depending on the specific circumstances, have interests in conflict with those of Client, such as when their buying or selling of Client's securities may have an adverse effect on the market for Client's securities, and the interests of such other clients could create the incentive for the Firm to make recommendations to Client that could result in more advantageous pricing for the other clients. Furthermore, any potential conflict arising from the firm effecting or otherwise assisting such other clients in connection with such transactions is mitigated by means of such activities being engaged in on customary terms through units of the Firm that operate independently from the Firm's municipal advisory business, thereby reducing the likelihood that the interests of such other clients would have an impact on the services provided by the Firm to Client. v. Compensation-Based Conflicts. Fees that are based on the size of the issue are contingent upon the delivery of the Issue. While this form of compensation is customary in the municipal securities market, this may present a conflict because It could create an incentive for the Firm to recommend unnecessary financings or financings that are disadvantageous to Client, or to advise Client to increase the size of the issue. This conflict of interest is mitigated by the general mitigations described above. 7 Fees based on a fixed amount are usually based upon an analysis by Client and the Firm of, among other things, the expected duration and complexity of the transaction and the Scope of Services to be performed by the Firm. This form of compensation presents a potential conflict of interest because, ifthe transaction requires more" work than originally contemplated, the Firm may suffer a loss. Thus, the Firm may recommend less time-consuming alternatives, or fail to do a thorough analysis of alternatives. This conflict of interest is mitigated by the general mitigations described above. Hourly fees are calculated with, the aggregate amount equaling the number of hours worked by Firm personnel times an agreed-upon hourly billing rate. This form of compensation presents a potential conflict of interest if Client and the Firm do not agree on a reasonable maximum amount at the outset of the engagement, because the Firm does not have a financial incentive to recommend alternatives that would result in fewer hours worked. This conflict of interest is mitigated by the general mitigations described above. PART B -DisclosureS of Information Regarding Legal Events and Disciplinary History MSRB Rule G-42 requires that municipal advisors provide to their clients certain disclosures of legal or disciplinary events material to its client's evaluation of the municipal advisor or the integrity of the municipal advisor's management or advisory personnel. Accordingly, the Firm sets out below required disclosures and related information in connection with such disclosures. I. Material Legal or Disciplinary Event. The Firm discloses the following legal or disciplmary events that may be material to Client's evaluation of the Firm or the integrity of the Firm's management or advisory personnel: III For related disciplinary actions please refer to the Firm's BrokerCheck webpage. e The Firm self-reported violations of SEC Rule 15c2-12: Continuing Disclosure. The Firm settled with the SEC on February 2, 2016. The firm agreed to retain independent consultant and adopt the consultant's finding. Firm paid a fme 0[$360,000. " III The Firm settled with the SEC in matters related to violations ofMSRB Rules G-23(c), G-17 and SEC rule 15B(c) (1). The Firm disgorged fees of $120,000 received as financial advisor on the deal, paid prejudgment interest of $22,400.00 and a penalty of $50,000.00. o The Firm entered into a Settlement Agreement with Rhode Island Commerce Corporation. Under the Settlement Agreement, the firm agreed to pay $16.0 million to settle any and all claims in connection with The Rhode Island Economic Development Corporation Job Creation Guaranty Program Taxable Revenue Bond (38 Studios, LLC Project) Series 2010, including the litigation thereto. The case, filed in 2012, arose out of a failed loan by Rhode Island Economic Development Corporation. The fum's predecessor company, First Southwest Company, LLC, was one of 14 defendants. FirstSouthwest's engagement was limited to advising on the structure, terms, and rating of the underlying bonds. Hilltop settled with no admission of liability or wrongdoing. II. How to Access Form MA and Form MA-I Filings. The Firm's most recent Form MA and each most recent Form MA-I filed with the SEC are available on the SEC's EDGAR system at Fonus MA and MA .. -l. The SEC permits certain items of information required on Form MA or MA-I to be provided by reference to such required information alfeady filed by the Firms in its capacity as a broker-dealer on Form BD or Form U4 or as an investment adviser on Form ADV, as applicable. Information provided by the Firm on Form BD or Form U4 is publicly accessible through reports generated by BrokerCheck at http://brokercheck.finra.org/, and the Firm's most recent Form ADV is publicly accessible at the Investment Adviser Public Disclosure website at http://www.adviseIinfo.sec.goY/. For purposes of accessing such BrokerCheck reports or Form ADV, click previous hyperlinks. 8 PART C -Future Supplemental Disclosures As required by MSRB Rule G-42, this Municipal Advisory Disclosure Statement may be supplemented or amended, from time to time as needed, to reflect changed circumstances resulting in new conflicts of interest or changes in the conflicts of interest described above, or to provide updated information with regard to any legal or disciplinary events of the Firm. The Firm will provide Client with any such supplement or amendment as it becomes available throughout the term of the Agreement. 9 RESOLUTION NO: 013 15 14352 A Resolution authorizing the City Manager to negotiate a multi-year agreement for financial advisory services. WHEREAS, City issued a Request for Qualifications for Financial Advisory Services; and WHEREAS, City's received three proposals from qualified, responsive and responsible respondents; and WHEREAS, the proposals were reviewed, scored and ranked by a Selection Committee, comprised of Shari Kamali/Assistant City Manager; Alfredo Riverol/Chief Financial Officer and, Kate Reilly/City resident; and WHEREAS, in accordance with the selection process of the Request for Qualifications, the City Manager may negotiate an agreement with the highest ranked respondent and, If those negotiations are unsuccessful, negotiations will be opened . with the next ranked firm, until the successful completion of negotiations and execution of a contract; and; NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA; Section 1. The City Manager is authorized to negotiate an agreement with the highest ranked respondent to the City's Request for Qualifications for financial advisory services for an initial one (1) year term and with four (4) one (1) year renewal options, for a maximum of five (5) consecutive years. If those negotiations with the highest ranked firm are unsuccessful, negotiations may be opened with the next ranked firm, until the ·successful completion of negotiations and execution of an agreement. Section 2. The C;ity Manager is authorized to enter into an agreement with the highest ranked firm for amounts not to exceed the following schedule of fees: For each debt transaction, the transactional fee (based on $1,000 of par amount) as shown below: Amount of Debt Issued For the first $10,000,000 For the first $10,000,000 For the first $10,000,000 For the first $10,000,000 Page 1 of2 Fee $17,500 $1.00 per $1,000 $.80 per $1,000 $.70 per $1,000 22 Res. No. 013-15-14352 With respect to additional agreed upon services, hourly fees as shown below: Position Senior Vice President & Above Vice President Assistant Vice President Analysis/Associate Clerical/Support Standard Rate (Per Hour) $210 $190 $150 $125 $50 Section 3. Should the City move forward with any future agreed upon services which would exceed a .total amount of $5,000, the City Manager would seek approval for such services. Section 4. Severability. If any section, clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a court of competent jurisdiction, this holding shall not affect the validity of the remaining portions of this resolution. Section 3. Effective Date: This resolution shall take effect immediately upon enactment. PASSED AND ADOPTED this20tJalay of January, 2015. ATTEST: APPROVED: COMMISSION VOTE: Mayor Stoddard: Vice Mayor Harris: Commissioner Liebman: Commissioner Welsh: Commissioner Edmond: Page 2 of2 5-0 Yea Yea Yea Yea Yea 23 THE CITV OF PI.EASANT LIVING To: FROM: DATE: SUBJECT BACKGROUND: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER nITER~FnCEMEMORANDUM The Honorable Mayor & Members of the City Commission Steven Alexander, City Manager Agenda Item NO.:£ January 20, 2015 A Resolution authorizing the City Manager to negotiate a multi-year agreement for financial advisory services. On September 24, 2012 the City Commission approved Ordinance 18-12- 2134 authorizing the issuance of its Capital Improvement Revenue Refunding Note, Series 2012, in the principal amount not to exceed $5,800,000, for the purpose of refinancing certain of the City's outstanding indebtedness. The refinancing was to provide a present value savings of over $640,000 or 12% of the bonds refunded based upon the 2a-year interest rate (3.50%) provided by BB&T. Unfortunately, due to the Metro South lawsuit which was filed a few days prior to the closing of the Series 2012 Note, BB& T decided not to move forward with the loan and the City was unable to refinance. Fortunately, the City has since settled the Metro South lawsuit, at no financial consequence, and interest rates currently appear favorable. It is for this reason that the City is moving forward with pursuing a refinancing of the City's existing debt and seeking approval of the Commission for the required entities to complete the refinance. Furthermore, time-to-time, the City requires the services of a financial advisor on an as needed basis. It is in the best interest of the City to have a financial advisor on contract when the need for financial services arises. Financial services include, but not be limited to, a review the City's current debt covenants and debt ratios, as needed financial advise regarding market conditions and trends, financial products, credit and credit analysis, special facility financing, analysis of evaluations and potential refunding and new money issues, analysis and evaluations of proposed bonds and long-term loans, and, other financial services as requested. To achieve that goal, a Request for Qualifications solicitation was issued for Financial Advisory Services. Three proposals were received and were 24 ·(1) Southt~Miami THF. CITY OF PLEASANT LIVING AMOUNT: ACCOUNT: ATTACHMENTS: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM· reviewed, scored and ranked by a Selection Committee. The Committee was comprised of; Shari Kamali, Assistant City Manager, Alfredo Riverol, Chief Financial Officer, and Kate Reilly, South Miami resident. The Selection Committee recommended First Southwest as the highest ranked respondent for contract negotiations. A summary of the Selection Committee results are below: I"r" .. ,=, '""".'I'-""~'· "p;:rli]!j'''~'' Z;,;~I ~ ~~:; ,ii,' M"r .. r-{ ,<.::T+i:~-'i ' ~-~~ ~*"4~~"':b{:i~ ~~(}~i1 ~ t n~<:"-s,,:~ ~,~ z m" """'';;''' \j~ "~'.'"'~ -" .• " ~G,. .' <'-'~ :, -;"~ ~l\:~~)" ~ ili' ~~/'~f~' ;>."., '" co .;"~-" •••• " ",r, '" ~ c 1: ,}." ~ rv.o-' 1. ~, <:; ~ • -" '~-.'" , • -. \ 7 •• 1 ~r •• K. ,10' (~ " • '~'N • j 'i;-Jrr1"IJ"1;'<fuj) '.~ _ ~ • ~,~ ~ ~ ~~ _ 1 J , ~ .... ,r:< h 1 ;:{ !.} ~ :: :',l~).mllr~ :':;"; ~~r~l ~~~:l~'>l~'~ )~ ._' """'-'_,~ _ .......... ~ ~-,,:j ~~. ~~i::......\~ ~~ Alfredo Riverol 72 99 94 Kate Reilly 75 100 90 Shari Kamali 85 95 95 TOTAL 232 294 279 RANK 3 1 2 The compensation for the services rendered for financial advisors are classified in two categories: debt transaction and additional agreed upon services. For debt transactions, the firms establish a transactional fee based on different debt issuance levels, with a minimum per transaction amount (i.e. $17,500). The transaction fee is only paid if the actual debt is issued. As for agreed upon services, an hourly rate is established based at the different levels of position; from Senior Vice President (i.e. $210 an hour) and above to clerical/support (i.e. $50 per hour). $0 N/A Resolution Bid Opening Report Proposal, First Southwest Evaluation Selection Committee Score Sheets Demand Star Results RFQ Advertisement Request for Qualifications #FN2014-03 25 FINANCIAL ADVISORY AGREEMENT This Financial Advisory Agreement (the "Agreement") is made and entered into by and between the City of South Miami (the "City") and First Southwest Company, LLC ("First Southwest") effective as of the date executed by the City as set forth on the signature page hereof. WITNESSETH: WHEREAS, the City will have under consideration from time to time the authorization and issuance of indebtedness in amounts and forms which cannot presently be determined and, in connection with the authorization, sale, issuance and delivery of such indebtedness, City desires to retain an independent financial advisor; and WHEREAS, the City desires to obtain the professional services of FirstSouthwest to advise the City regarding the issuance and sale of certain evidences of indebtedness or debt obligations that may be authorized and issued or otherwise created or assumed by the City (hereinafter referred to collectively as the "Debt Instruments") from time to time during the period in which this Agreement shall be effective; and WHEREAS, FirstSouthwest is willing to provide its professional services and its facilities as financial advisor in connection with all programs of financing as may be considered and authorized by City during the period in which this Agreement shall be effective. NOW, THEREFORE, the City and FirstSouthwest, in consideration of the mutual promises herein contained and other good and valuable consideration, do hereby agree as follows: SECTION I DESCRIPTION OF SERVICES Upon the request of an authorized representative of the City, FirstSouthwest agrees to perform the financial advisory services stated in the following provisions of this Section I; and for having rendered such services, the City agrees to pay to FirstSoul:hwest the compensation as provided in Section V hereof. A. Financial Planning. At the direction of City, FirstSouthwest shall: 1. Survey and Analysis. Conduct a survey of the financial resources of the City to determine the extent of its capacity to authorize, issue and service any Debt Instruments contemplated. This survey will include an analysis of any existing debt structure as compared with the existing and projected sources of revenues which may be pledged to secure payment of debt service and, where appropriate, will include a study of the trend of the 26 assessed valuation, taxing power and present and future taxing requirements of the City. In the event revenues of existing or projected facilities operated by the City are to be pledged to repayment of the Debt Instruments then under consideration, the survey will take into account any outstanding indebtedness payable from the revenues thereof, additional revenues to be available from any proposed rate increases and additional revenues, as projected by consulting engineers employed by the City, resulting from improvements to be financed by the Debt Instruments under consideration. 2. Future Financings. Consider and analyze future financing needs as projected by the City'S staff and consulting engineers or other experts, if any, employed by the City. 3. Recommendations for Debt Instruments. On the basis of the information developed by the survey described above, and other infonnation and experience available, submit to the City recommendations regarding the Debt Instruments under consideration, including such elements as the date of issue, interest payment dates, schedule of principal maturities, options of prior payment, security provisions, and such other provisions as may be appropriate in order to make the issue attractive to investors while achieving the objectives of the City. All recommendations will be consistent with the goal of designing the Debt Instruments to be sold on terms which are advantageous to the City, including the lowest interest cost consistent with all other considerations. 4. Market Infonnation. Advise the City of First Southwest's interpretation of current bond market conditions, other related forthcoming bond issues and general information, including the relevant economic data, which might normally be expected to influence interest rates or bidding conditions so that the date of sale of the Debt Instruments may be set at a favorable time. 5. Elections. In the event it is necessary to hold an election to authorize the Debt Instruments then under consideration, FirstSouthwest will assist in coordinating the assembly of such data as may be required for the election including the preparation of necessary petitions, orders, resolutions, ordinances, notices and certificates in connection with the election, as well as assistance in the transmission of such data to a firm of municipal bond attorneys ("Bond Counsel") retained by the City. B. Debt Management and Financial Implementation. At the direction of City, FirstSouthwest shall: 1. Method of Sale. Evaluate the particular financing being contemplated, giving consideration to the complexity, market acceptance, rating, size and structure in order to make a recommendation as to an appropriate method of sale, and: Page 2 of17 27 a. If the Debt Instruments are to be sold by an advertised competitive sale, FirstSouthwest will: (1) Supervise the sale of the Debt Instruments; (2) Disseminate information to prospective bidders, organize such informational meetings as may be necessary, and facilitate prospective bidders' efforts in making timely submission of proper bids; (3) Assist the staff of the City in coordinating the receipt of bids, the safekeeping of good faith checks and the tabulation and comparison of submitted bids; and (4) Advise the City regarding the best bid and provide advice regarding acceptance or rejection of the bids. b. If the Debt Instruments are to be sold by negotiated sale, FirstSouthwest will: (1) Recommend for City's fmal approval and acceptance one or more investment banking fInns as managers of an underwriting syndicate for the purpose of negotiating the purchase of the Debt Instruments. (2) Cooperate with and assist any selected managing underwriter and their counsel in connection with their efforts to prepare any Official Statement or Offering Memorandum. FirstSouthwest will cooperate with and assist the underwriters in the preparation of a bond purchase contract, an underwriters agreement and other related documents. The costs incurred in such efforts, including the printing of the documents, will be paid in accordance with the tenus of the City's agreement with the underwriters, but shall not be or become an obligation of FirstSouthwest, except to the extent specifically provided otherwise in this Agreement or assumed in writing by FirstSouthwest. (3) Assist the staff of the City in the safekeeping of any good faith checks, to the extent there are any such, and provide a cost comparison, for both expenses and interest which are suggested by the underwriters, to the then current market. (4) Advise the City as to the fairness of the price offered by the underwriters. 2. Offering Documents. Coordinate the preparation of the notice of sale and bidding ins1r!lctions, official statement, official bid form, and such other documents as may be required, and submit all such documents to the City for examination, approval and certification. After such examination, approval and certification, FirstSouthwest shall Page 3 of 17 28 provide the City with a supply of all such documents sufficient to its needs and distribute by mail or, where appropriate, by electronic delivery, sets of the same to prospective purchasers of the Debt Instruments. Also, FirstSouthwest shall provide copies of the final Official Statement to the purchaser of the Debt Instruments in accordance with the Notice of Sale and Bidding Instructions. 3. Credit Ratings. Make recommendations to the City as to the advisability of obtaining a credit rating, or ratings, for the Debt Instruments and, when directed by the qty, coordinate the preparation of such information as may be appropriate for submission to the rating agency, or agencies. In those cases where the advisability of personal presentation of infonnation to the rating agency, or agencies, may be indicated, FirstSouthwest will arrange for such personal presentations, utilizing such composition of representatives from the City as may be finally approved or directed by the City. 4. Trustee, Paying Agent, Registrar. Upon request, counsel the City in the selection of a Trustee andlor Paying AgentlRegistrar for the Debt Instruments, and assist in the negotiation of agreements pertinent to these services and the fees incident thereto. 5. Financial Publications.· When appropriate, advise financial publications of the forthcoming sale of the Debt Instruments and provide them with all pertinent information. 6. Consultants. After consulting with and receiving directions from the City, arrange for such reports and opinions of recognized independent consultants as may be appropriate for the successful marketing of the Debt Instruments. 7. Auditors. In the event formal verification by an independent auditor of any calculations incident to the Debt Instruments is required, make arrangements for such services. 8. City Meetings. Attend meetings of the governing body of the City, its staff, representatives or committees as requested at all times when FirstSouthwest may be of assistance or service and the subject of financing is to be discussed. 9. Printing. To the extent authorized by the City, coordinate all work incident to printing of the offering documents and the Debt Instruments. 10. Bond Counsel. Maintain liaison with all Bond Counsel involved in the Offering and in the preparation of all legal documents pertaining to the authorization, sale and issuance of the Debt Instruments. Page4of17 29 11. Changes in Laws. Provide the City with copies of proposed or enacted changes in federal and state laws, rules and regulations having, or expected to have, a significant effect on the municipal bond market of which FirstSouthwest becomes aware in the drdinary course of its business, it being understood that FirstSouthwest does not and may not act as an attorney for, or provide legal advice or services to, the City. 12. Delivery of Debt Instruments. As soon as a bid for the Debt Instruments is accepted by the City, coordinate the efforts of all concerned to the end that the Debt Instruments may be delivered and paid for as expeditiously as possible and assist the City in the preparation or verification of final closing figures incident to the delivery of the Debt Instruments. 13. Debt Service Schedule; Authorizing Resolution. After the closing of the sale and delivery of the Debt Instruments, deliver to the City a schedule of annual debt service requirements for the Debt Instruments and, in coordination with Bond Counsel, assure that the paying agent/registrar andlor trustee has been provided with a copy of the authorizing ordinance, order or resolution. SECTION II OTHER AVAILABLE SERVICES In addition to the services set forth and described in Section I herein above, FirstSouthwest agrees to make available to City the following services, when so requested by the City, which services shall be paid for in accordance with the schedule of fees as set forth in Exhibit A to this Agreement. 1. Investment of Funds. From time to time, as an incident to the other services provided hereunder as financial advisor, FirstSouthwest may purchase such investments as may be directed and authorized by City to be purchased, it being understood that FirstSouthwest will be compensated in the normal and customary manner for each such transaction. In any instance wherein FirstSouthwest may become entitled to receive fees or other compensation in any form from a third party with respect to these investment activities on behalf of City, we will disclose to City the nature and, to the extent such is known, the amount of any such compensation so that City may consider the information in making its investment decision, including its decision as to the amount of compensation to be paid to First Southwest. It is understood and agreed that FirstSouthwest is a duly licensed broker/dealer and City may, from time to time, utilize the broker/dealer services of FirstSouthwest with respect to matters which do not involve or affect the financial advisory services referenced in this Agreement. The terms and conditions of the engagement of First Southwest to provide such services shall be determined by mutual agreement with the City at the time such services are requested. If the city decides to engage FirstSouthwest for advisory services in relation to a derivative transaction, the fees shall be as set forth in the attached Exhibit A. If Page 5 of 17 30 the City decides to engage FirstSouthwest as a bidding agent, the fee shall be as set forth under the heading of "Other Transaction Fees" as set forth in the attached Exhibit A. 2. Exercising Calls and Refunding. Provide advice and assistance with regard to exercising any call and/or refunding of any outstanding Debt Instruments. 3. Capital Improvements Programs. Provide advice and assistance in the development of any capital improvements programs of the City. 4. Long-Range Planning. Provide advice and assistance in the development of other long-range financing plans of the City. 5. Post-Sale Services. Subsequent to the sale and delivery of Debt Instruments, review the transaction and transaction documentation with legal counsel for the City, Bond Counsel, auditors and other experts and consultants retained by the City and assist in developing appropriate responses to legal processes, audit procedures, inquiries, internal reviews and similar matters. SECTIONll TERM OF AGREEMENT This Agreement shall become effective as of the date executed by the City as set forth on the signature page hereof and, unless terminated by either party pursuant to Section IV of this Agreement, shall remain in effect thereafter for a period of one (1) year from such date. Unless FirstSouthwest or City shall notify the other party in writing at least thirty (30) days in advance of the applicable anniversary date that this Agreement will not be renewed, this Agreement will be automatically renewed on the first anniversary of the date hereof for an additional one (1) year period and thereafter will be automatically renewed on each anniversary date for successive one (1) year periods, provided however that the initial term plus renewals does not exceed five (5) years. SECTION IV TERMINATION Ibis Agreement may be terminated with or without cause by the City or FirstSouthwest upon the giving of at least thirty (30) days' prior written notice to the other party of its intention to terminate, specifying in such notice the effective date of such termination. In the event of such termination, it is understood and agreed that only the amounts due FirstSouthwest for services provided and expenses incurred to the date of tennination will be due and payable. No penalty will be assessed for termination of this Agreement. Page 6 of17 31 SECTION V COMPENSATION AND EXPENSE REIMBURSEMENT Section I Fees & Expenses: The fees due to FirstSouthwest for the services as set forth and described in Section I of this Agreement, including any related expense, with respect to each issuance of Debt Instrwnents and other services involved in the issuance of a Debt instruments during the term of this Agreement shall be calculated in accordance with Exhibit A, attached hereto and made a part hereof by reference, and shall only become due and payable upon delivery of the Debt Instruments. Section n Fees & Expenses: The fees due to FirstSouthwest for the services set forth and described in Section II of this Agreement with respect to services during the term of this Agreement shall be calculated in accordance with the schedule set forth on the attached Exhibit A which is made a part hereof by reference. Unless specifically provided otherwise on Exhibit A, such fees for the performance of services as may have been mutually agreed upon in writing and all expenses for which FirstSouthwest is entitled to reimbursement pursuant to this Agreement, shall become due and payable within 30 days of receipt by the City of an invoice or such non-debt related services and expenses. SECTION VI MISCELLANEOUS 1. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the City and FirstSouthwest, their respective successors and assigns; provided however, neither party hereto may assign or transfer any of its rights or obligations hereunder without the prior written consent of the other party. 2. Entire Agreement. Modification. and Non-waiver: This Agreement constitutes the entire agreement of the parties and supersedes any prior agreements, written or oral. Ibis Agreement may not be modified or amended except in writing, signed by both parties hereto. This Agreement, in general, and this paragraph, in particular, shall not be modified or amended by any acts or omissions of the parties. No failure to exercise and no delay in exercising any right, power or privilege shall operate as a waiver. No waiver of the Agreement, in whole or part, including the provisions of this paragraph, may be implied by any act or omission. 3. Applicable Law and Venue: Florida law shall apply to the interpretation and enforcement of this Contract. Venue for all proceedings shall be in Miami-Dade County, Florida. 4. Insurance. Indemnification & Bonding: FirstSouthwest shall comply with the insurance, indemnification requirements set forth in the attached Exhibit "B" which is made a part hereof by reference. 5. Jury Trial Waiver: The parties waive their right to jury trial. 6. Public Records: FirstSouthwest and all of its subcontractors are required to comply with the public records law (s.119.0701) while providing goods and/or Services on behalf of the CTIY and the Page 7 ofl7 32 FirstSouthwest, under such conditions, shall incorporate this paragraph in all of its subcontracts for this Project. 7. Drug Free Workplace. The FirstSouthwest shall comply with the Drug Free Workplace policy set forth in the City of South Miami's Personnel Manual which is made a part of this Agreement by reference. 8. Notices. All notices given or required under this contract shall be deemed sufficient if sent by a method that provides written evidence of delivery, including certified and registered mail, e-mail and facsimile transmission and delivered to the parties or their contact person who has been designated in writing. Return. of mail, sent to the address contained herein for the parties or their contact persons, as not deliverable or for failure to claim the mail shall be deemed received on the date that the mail is returned to sender. 9.· Ownership of Documents: All documentation, including any work product of FirstSouthwest, concerning this Agreement and that is in the possession or control of FirstSouthwest shall become the exclusive property of the City. 10.Records and Cost. FirstSouthwest agrees to maintain books, records, documents and other evidence pertaining to all costs and expenses incurred and revenues acquired under this Agreement to the extent and in such detail as required by the City. The books and accounts, files and other records of FirstSouthwest, which are applicable to this Agreement, shall be available for inspection, review and audit by the City and its representatives, at all reasonable time, to determine the proper application and use of all funds paid by, to or for the account or the benefit of the City. IN WITNESS WHEREOF, the parties, with full knowledge of the content and significance of the terms, conditions and provisions of this Agreement and with the intent to be legally bound by such terms, conditions and provisions, have executed this Agreement on the dates set forth below . OKAY FIRST SOUTHWEST COMPANY, LLC Address: 325 AI.5b p...,\ Sb!Z£Itj~WK(,b 1..\t.\\CI:S. Tk' 7t;70 \ By:~~~Z&:.~~~~+- Hill A. Feinberg, Chairman and Chief Executive Officer Date of Execution: $3/2Q/o BY:~L ~ Page 8 of17 Senior Vice President E-mail: .Joel J M/J.J etrs!sw.,~. Date of Execution: 3/Z.'1 'Z4 IS 33 Tills is the second page of the signature portion of the Financial Advisory Agreement (the "Agreement") is made and entered into by and between the City of South Miami (the "City") and First Southwest Company, LLC {"First Southwest") effective as of the date executed by the City as set forth on the signature page hereof. ATTESTED: CITY OF SOUTH MIAMI Page 90£17 exander . yManager· E-mail: Salexander@southmiamifl.gov Date of Execution: a /31/ / 5 ~I 34 EXIllBIT A Hourly Fees The fees due FirstSouthwest for non-debt related services will not exceed those contained in our customary fee schedule as set forth below and will be due and payable 30 day's following receipt of an invoice submitted by FirstSouthwest therefor. Reimbursable non-debt related out-of-pocket expenses are in addition to the related hourly fees. Hourly Position Rate i~l· Je'~~rtlt!1\~]e.Y~11it:E!@~li~)jfi~'i~~jif;~:~iigl: ~~~~;~R~; Vice President $165.00 Associate/Analyst $125.00 Administrative Staff $50:00 Due to the nature of financial advisory services and our business, FirstSouthwest bills in 10TH of an hour increments. Transaction Fees The fees due FirstSouthwest for financial advisory services related to specific issuances of Debt instruments will not exceed those contained in our customary fee schedule as set forth below. These fees are contingent upon the successful closing of the debt transaction. Page 10 of17 35 Debt-Related Expenses The City shall be responsible for the following expenses, if and when applicable, whether they are charged directly to the City as expenses or charged to the City by FirstSouthwest as reimbursable expenses. However, no expenses shall be paid directly by FirstSouthwest for consultants, underwriters, underwriter's counsel, or bond counsel unless agreed in writing by the City Manager. The City shall hire separately, or enter into separate agre~ents with, and shall be billed separately by all consultants, underwriters, underwriter's counsel, or bond counsel, unless the City agrees in writing otherwise. • Bond counsel • Bond ratings • Credit enhancement • Pay agent! registrar/ trustee • Verification fees • Miscellaneous, including copy, delivery, and conference call phone charges • Bond printing • CPA fees • Travel expenses • Underwriter and underwriters counsel • Official statement preparation and printing fee • Other consultant fees The payment of charges for financial advisory services described in Section I of the foregoing Agreement shall be contingent upon the delivery of the Debt Instruments and shall be due at the time that the Debt Instruments are delivered. The payment of reimbursable expenses that First Southwest has assumed on behalf of the City shall NOT be contingent upon the delivery of debt and shall be due at the time that reimbursable goods and/or services are rendered and payable upon receipt of an invoice submitted by FirstSouthwest. The charges for ancillary services, including computer structuring and official statement printing, shall be levied only for those services which are reasonably necessary in completing the transaction and which are reasonable in amount, unless such charges were incurred at the specific direction of the City. Notwithstanding anything contained herein to the contrary, FirstSouthwest, without prior written authorization, shall not incur any non-debt related aggregate expense in any 30 day period that may exceed $1,000 without first providing an itemized list of expenses and obtaining written consent of the City's Chief Financial Officer ("CFO"). If the services are being billed on an hourly basis, upon request, FirstSouthwest shall send a statement of hours expended each month by email to the City's CFO. Page 11 of17 36 ExmBITB Insurance and Indemnification Insurance Requirements Without limiting its liability, the contractor, vendor, pennittee, consultant or consulting finn (hereinafter referred to as "FIRM" with regard to Insurance and Indemnification requirements) shall be required to procure and maintain at its own expense during the life of the Contract, insurance of the types and in the minimum amounts stated below as will protect the FIRM, from claims which may arise out of or result from the contract or the perfonnance of the contract with the City of South Miami, whether such claim is against the FIRM or any subcontractor, or by anyone directly or indirectly employed by any ofthem or by anyone for whose acts any of them may be liable. The FIRM shall purchase insurance from and shall maintain the insurance with a company or companies lawfully authorized to sell insurance in the State of Florida, on forms approved by the State of Florida, as will protect the FIRM, at a minimum, from all claims as set forth below which may arise out of or result from the FIRM's operations under the Contract and for which the FIRM may be legally liable, whether such operations be by the FIRM or by a subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: (a) claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be perfonned; (b) claims for damages because of bodily injury, occupational sickness or disease, or death of the FIRM's employees; (c) claims for damages because of bodily injury, sickness or disease, or death of any person other than the FIRM's employees; (d) claims for damages insured by usual personal injury liability coverage; (e) claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting there from; (f) claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; (g) claims for bodily injury or property damage arising out of completed operations; and (h) claims involving contractual liability insurance applicable to the FIRM's obligations under the Contract. Firm's Insurance Generally. The FIRM shall provide and maintain in force and effect until all the Work to be performed under this Contract has been completed and accepted by CITY (or for such duration as is otherwise specified hereinafter), the insurance coverage written on Florida approved forms and as set forth below: Workers' Compensation: Insurance at the statutory amount as to all employees in compliance with the "Workers' Compensation Law" of the State of Florida including Chapter 440, Florida Statutes, as presently written or hereafter amended, and all applicable federal laws. In addition, the policy (ies) must include: Employers' Liability at the statutory coverage amount. The FIRM shall further insure that all of its subcontractors maintain appropriate levels of Worker's Compensation Insurance. Page 12 of17 37 Commercial Comprehensive General Liability: Insurance with broad form endorsement, as well as automobile liability, completed operations and products liability, contractual liability, severability of interest with cross liability provision, and personal injury and property damage liability with limits of $1 ,000,000 combined single limit per occurrence and $2,000,000 aggregate, including: • Personal Injury: $1,000,000; ;; Medical Insurance: $5,000 per person; • Property Damage: $500,000 each occurrence; . Umbrella Commercial Comprehensive General Liability: Insurance shall be written on a Florida approved form with the same coverage as 'the primary insurance policy but in the amount of S 1,000,000 per claim and $2,000,000 Annual Aggregate other than for FIRMS that are involved in the construction of public buildings or who are providing professional services. FIRMS that are involved in the construction of public buildings or who are providing professional services shall provide a $4,000,000 umbrella per claim for a total combined primary and umbrella coverage of $5,000,000. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: (a) Premises and Operation (b) Independent Contractors ( c) Products and/or Completed Operations Hazard (d) Explosion, Collapse and Underground Hazard Coverage (e) Broad Form Property Damage (f) Broad Form Contractual Coverage applicable to this specific Contract, including any hold harmless and/or indemnification agreement. (g) Personal Injury Coverage with Employee and Contractual Exclusions removed, with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability. Business Automobile: Liability with minimum limits of One Million Dollars ($1,000,000.00) plus an additional One Million Dollar (Sl,OOO,OOO.OO) wnbrella per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Umbrella coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by with the state of Florida, and must include: (a) Owned Vehicles. (b) Hired and No~-Owned Vehicles (c) Employers' Non-Ownership SUBCONTRACTS: The FIRM agrees that if any part of the Work under the Contract is sublet, the subcontract shall contain the same insurance provision as set forth herein, where applicable and substituting the word subcontractor for the word FIRM and substituting the word FIRM for CITY where applicable. Page 13 of17 38 Fire and Extended Coverage Insurance (Builders' Risk), IF APPLICABLE: In the event that this contract involves the construction of a structure, the FIRM shall maintain, with an Insurance Company or Insurance Companies acceptable to the CITY, "Broad" form/All Risk Insurance on buildings and structures, including Vandalism & Malicious Mischief coverage, while in the course of construction, including foundations, additions, attachments and all permanent fixtures belonging to and constituting a part of said buildings or structures. The policy or policies shall also cover machinery, if the cost of machinery is included in the Contract, or if the machinery is located in a building that is being renovated by reason of this contract. The amount of insurance must, at all times, be at least equal to the replacement and actual cash value of the insured property. The policy shall be in the name of the CITY and the FIRM, as their interest may appear, and shall also cover the interests of all subcontractors performing Work. All of the provisions set forth in the miscellaneous section herein below shall apply to this coverage unless it would be clearly not applicable. Miscellaneous : If any notice of cancellation of insurance or change in coverage is issued by the insurance company or should any insurance have an expiration date that will occur during the period of this contract, the FIRM shall be responsible for securing other acceptable insurance prior to such cancellation, change, or expiration so as to provide continuous coverage as specified in this section and so as to maintain coverage during the life of this Contract. All deductibles must be declared by the FIRM and must be approved by the CITY. At the option of the CITY, either"the FIRM shall eliminate or reduce such deductible or the FIRM shall procure a Bond, in a form satisfactory to the CITY covering the same. The policies shall contain waiver of subrogation against CITY where applicable, shall expressly provide that such policy or policies are primary over any other collectible insurance that CITY may have. The CITY reserves the right at any time to request a copy of the required policies for review. All policies shall contain a "severability of interest" or "cross liability" clause without obligation for premium payment of the CITY as well as contractual liability provision covering the FIRM's duty to indemnify the City as provided in this Agreement. Before starting the Work, the FIRM shall deliver to the CITY, if any, certificates of such insurapce, acceptable to the CITY, as well as the insurance binder, if one is issued, the insurance policy, including the declaration page and all applicable endorsements and provide the name, address and telephone number of the insurance agent or broker through whom the policy was obtained. The insurer shall be rated A.VII or better per A.M. Best's Key Rating Guide, latest edition and authorized to issue insurance in the State of Florida. All insurance policies must be written on forms approved by the State of Florida and they must remain in full force and effect for the duration of the contract or permit period with the CITY. The FIRM may be required by the CITY, at its sole discretion, to provide a "certified copy" of the Policy (as defined in Article 1 of this document) which shall include the declaration page and all Page 14 of17 39 required endorsements. In addition, the FIRM shall deliver, at the time of delivery of the insurance policy, the following endorsements if the same provisions are not in the body of the policy: an endorsement with substantially similar provisions as follows: "The City of South Miami is an additional insured. The insurer shall pay all sums that the City of South Miami becomes legally obligated to pay as damages because of 'bodily injury", 'property damage' , or "personal and advertising injury" and it will provide to the City all of the coverage that is typically provided under the standard Florida approved forms for commercial general liability coverage A and coverage B"; an endorsement with substantially similar provisions as follows: "This policy shall not be cancelled (including cancellation for non-payment of premium), terminated or materially modified without first giving the City of South Miami ten (10) days advanced written notice of the intent to materially modify the policy or to cancel or terminate the policy for any reason. The notification shall be delivered to the City by certified mail, with proof of delivery to the City." IF APPLICABLE: Professional Liability Insurance on a Florida <>n~,\Tn·<T .. rI of with a two million retention/deductible for all sums which the FIRM shall become legally obligated to pay as damages for claims arising out of the services or work perfonned by the FIRM its agents, representatives, subcontractors or assigns, or by any person employed or retained by him in connection with this Agreement. FIRM's Responsibility Prior to Receiving a Notice to Proceed Prior to the City issuing a Notice to Proceed, the FIRM shall deliver a copy of the policy, including the declaration page of the policy and all endorsements to the policy applicable to these insurance requirement (either a hard copy or, preferably, electronically transmitted) and provide the City with the name, address, including email address, and phone number of the FIRM's insurance agent. The FIRM's insurance agent must provide the City with evidence that the insurer who is issuing the policy is licensed and authorized to do business in Florida, that the form of the policy being issued has been approved by the State of Florida and that the insurance carrier that is issuing the policy is not issuing the policy as a surplus lines carrier. The agent shall also provide a citation to the page number of the policy, or the fonn number of the endorsement, and highlight the relevant language of the portion of the policy andlor the endorsements that, in his or her estimation, meets the following City insurance requirements. a) the city is an additional insured; b) coverage includes contractual liability; c) the City will be provided at least 10 days advanced notice of any cancellation of the policy, including cancelation for non-payment ofpremiwn, and at least 30 days' advanced Page 15 of17 40 notice of cancellation for any reason other than non-payment; and FirstSouth shall notify the City immediately upon any material change in the policy. d) either a policy provision or an endorsement providing that the policy is primary and non-contributory, such as an endorsement that provides that the vendor's policy is primary over all of the city's applicable insurance and that treats the city's policies as excess coverage. It may be that some of these provisions are combined into one endorsement or contained in the policy itself. If the policy does not have a provision or endorsement that provides the City with advanced notice of cancellation or material" change as required by the City, the FIRM may still comply with the City's insurance requirement if the FIRM provides the City with proof that the policy premium has been paid in full and provided the FIRM makes arrangements with its insurance company to allow the City to confinn, monthly, that the policy is in full force and effect. In addition, the FIRM must eit:her pay the City a monthly monitoring fee, currently set at $25 per month, or have the amount deducted from the FIRM's draws/payments. Indemnification Requirement . A. The FIRM accepts and voluntarily incurs all risks of any injuries, damages, or harm which might arise during the work or event that is occurring on the CITI's property due to the negligence or other fault of the FIRM or anyone acting through or on behalf of the FIRM. B. The FIRM shall indemnify, defend, save and hold CITY, its officers, affiliates, employees, successors and assigns, harmless from any and all damages, claims, liability, losses, claims, demands, suits, fmes, judgments or cost and expenses, including reasonable attorney's fees, paralegal fees and investigative costs incidental there to and incurred prior to, during or following any litigation, mediation, arbitration and at all appellate levels, which may be suffered by, or accrued against, charged to or recoverable from the City of South Miami, its officers, affiliates, employees, successors and assigns, by reason of any causes of actions or claim of any kind or nature, including claims for injury to, or death of any person or persons and for the loss or damage to any property arising out of a negligent error, omission, misconduct, or any gross negligence, intentional act or harmful conduct of the FIRM, its FIRM/subcontractor or any of their officers, directors, agents, representatives, employees, or assigns, or anyone acting through or on behalf of any of them, arising' out of this Agreement, incident to it, or resulting from the performance or non-perfonnance of the FIRM's obligations under this AGREEMENT. C. The FIRM shall pay all claims, losses' and expenses of any kind or nature whatsoever, in connection therewith, including the expense or loss of the CITY andlor its affected officers, affiliates, employees, successors and assigns, including their attorney's fees, in the defense of any action in law or equity brought against them and arising from the negligent error, omission, or act of the FIRM, its subcontractor or any of their agents, representatives, employees, or assigns, andlor arising out of, or incident to, this Agreement, or incident to or resulting from the performance or non-performance of the FIRM's obligations under this AGREEMENT. D. The FIRM agrees and recognizes that neither the CITY nor its officers, affiliates, employees, successors and assigns shall be held liable or responsible for any claims, including Page 16 of17 41 the costs and expenses of defending such claims which may result from or arise out of actions or omissions of the FIRM, its FIRM/subcontractor or any of their agents, representatives, employees, or assigns, or anyone acting through or on behalf of the them, and arising out of or concerning the work or event that is occurring on the CITY's property. In reviewing, approving or rejecting any submissions or acts of the FIRM, CITY in no way assumes or shares responsibility or liability for the acts or omissions of the FIRM, its FIRM/subcontractor or any of their agents, representatives, employees, or assigns, or anyone acting through or on behalf of them. . E. The FIRM has the duty to provide a defense with an attorney or law firm approved by the City of South Miami, which approval will not be unreasonably withheld. F. However, as to Design Professional Contracts, and pursuant to Section 725.08 (1), Florida Statutes, none of the provisions set forth herein above that are in conflict with this subparagraph shall apply and this subparagraph shall set forth the sole responsibility of the design professional concerning indemnification. Thus, the design professional's obligations as to the City and its agencies, as well as to its officers and employees, is to indemnify and hold them harmless from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct oftbe design professional and other persons employed or utilized by the design professional in the performance of the contract. Page 17 of17 42 MIAMI H.ERAL!!.Lli!amiHerald.com CITY OF SOUTH MIAMI COURTESY NOTICE NOTICE IS HEREBY given that the City Commission of the City of South Miami, Florida will conduct Publio Hearing(s) at its regular City Commission meeting scheduled for Thesday. January 10. 2015 beginning at 7:00 p.m., in the City Commission Chambers, 6130 Sunset Drive, to consider the following ilem(s): (A Resolulion authol·izinglhe City Manager 10 negotiate a multi-year agreement\' for financial advisory services. I An Ontinallce nmending Seclion 158-6 orlbe Code of Ordinance.. 10 provide for waiver of fees and COSIS and to modify the rules and requirements for Ihe UAe of City properly, ' ALL inlerested parties are invited 10 attend and will be heard. For further information. please contact Ihe Cily Clerk's Office at: 305-663-6340. Maria M. Menendez, CMC City Clerk ru,. •• n"U fluride SI.lUlc.lR6.0 IOS.lhe City h .. eby ed.i •• , the public'lh" ira per$On doetdClllo app .. IBny d\:cilllun mmfc by this HOllrel Acunlo:)' Dr COmmis.1iun with I'§p'n~1 to any maHer camlidc~ at its mcohng ur hearing. h. or ,he will need. ",cord oflhe proceeding •• and the. for such purpo.e. afhcted pc~on may need to ensure thol a verbal;"t 1'8Cord o( the pro('eedinss is made which record includes lhe testimony end evidence upon which Ihe appe.1 is 10 be based, "-"~ ULTRA =" ~I" ~IIIII\!IIIJIIIA iIllFl •• e ~aEACH =:' •. -I 1 LIFETIME ~ Ij ~."~ ~ttXI:-:~!~!Jf1L ~~C'.(~~t~/Jt ~~~{,.r:';_~'~'~_ -,: '0 C':io@@[ftJ ;n-J' II ' Call No\\' tu Schedule ,\ Pnvate Tom & Enu',liIce Exwn :305-:1:17-1149 . 12975 SW 6th Street, Miami, FL33184 www.conchitaespinosa.com Conchita Espinosa Academy is accredited intemationally. nationally and regionally by IIr.II Accreditation Jnlemallonal(Ai).NationatCouncilforPrivateSchootAccreditation.aIi Nalional Independent Private Schools Association. Middle StaleS AssoCiation, Southern e Associat,on of CoUeges and Schools. Associ8lion of Independent Schools of Florida. a and members ofIndepcndcnt Schools of South Florida. MIAMI DAILY BUSINESS REVIEW PubIIsIIed DaDy tIIICBPl Saturday. Sunday and Legal HDildays Miami. Mlami-Dade County. Florida STATE OF FLORIDA COUNTY OF MIAMI-DADE: Before 1\8 undersigned authority personally appeared M. ZALDIVAR, who on oath says that he or she Is the LEGAL CLERK, Legal Notices of the Miami Dany Business Review flkla Miami RevIew, a dany (except Saturday, Sunday and Legal Holidays) newspaper, published at Miami in Miami-Dade County. Rorida; that the attached copy of advertisement, being a legal Advertisement of Notice in the matter of CIlY OF SOUTH MIAMI" "" PUBUC HEARING -JAN. 20, 2015 in the XXXX Court, was published in said newspaper in the Issues of 01/0912015 Affiant further says that the said Miami Daily Business Review is a newspaper published at Miami In said MiamI-Dade County, Rarida and that the said newspaper has heretofore been continuously published In said Mlaml-Dade County, "Florida, each day (except Saturday, Sunday and Legal Holidays) and has been entered as second class mail matter at the post office in Miami in said Miami-Dade County. RorkJa, for a period of one year next preceding the first publication of the attached copy of advertisement and affiant further says that he Dr she has neither paid nor promised any person, fi~ or COJ)KllBtion any discount. rebate, commission refund for the pwpose of securing this adve bDcatlon In the said newspaper. ct'IIl_~ore me this ~~~'5 'lVfiifIIiM.;~eMC " t;:IlyClitik ." 44