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HomeMy WebLinkAbout2005-388 FINANCIAL ADVISORY AGREEMENT This Financial Advisory Agreement (the "Agreement") is made and entered into by and between Indian River County, a political subdivision of the State of Florida , 1840 25tt' Street , Vero Beach , FL 32960 (" County" ) and First Southwest Company ( " FSC " ) effective as of December 6 , 2005 . BACKGROUND RECITALS A . The County 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 , County desires to retain an independent financial advisor; and B . The County desires to obtain the professional services of FSC to advise the County 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 County ( hereinafter referred to collectively as the " Debt Instruments" ) from time to time during the term of this Agreement; and C . FSC 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 County during the term of this Agreement . NOW , THEREFORE , the County and FSC , in consideration of the mutual covenants and , agreements herein contained and other good and valuable consideration , the receipt and sufficiency of which is hereby acknowledged , and intending to be legally bound , do hereby agree as follows : SECTION 1 . DESCRIPTION OF SERVICES . Pursuant to the terms and conditions set forth herein , and upon the written request of the County , FSC agrees to perform the financial advisory services stated herein ("Services") at the compensation set forth herein . Specifically , FSC agrees : 1 . 1 . To review and evaluate the financial condition , policies , and plans of the County and work with the County' s staff to assist in the development of a long term financial plan in conjunction with the County' s capital improvement plan . 1 . 2 . In connection with any financing herein contemplated , to prepare the necessary financial studies designed to demonstrate the many varying aspects of a particular type of financing and to recommend for County' s approval a plan of financing to cover any proposed bonds . Such plan of financing shall include a maturity schedule and other terms and 1 , conditions as will , in the opinion of FSC , result in the issuance of bonds under terms consistent with obtaining minimum net interest cost . Such studies shall include the compilation and analysis of all necessary statistical data . 1 . 3 . To review and make recommendations regarding reports of accountants , engineers , and other consultants to assure that such reports properly address the technical , economic , and financial risk factors from a financial and credit perspective that may affect the marketability of any proposed financing . 1 . 4 . To assist County with the necessary steps to be taken for the legal issuance of bonds and the final delivery of the bonds , under the direction and legal advice of a firm of recognized bond attorneys to be retained by County. To work with the County Attorney , bond counsel and underwriter(s ) in identifying key bond covenant features that will provide optimum flexibility and minimum net interest cost to the County . 1 . 5 . To advise County of current market conditions , forthcoming bond issues , potential tax considerations and other general information and economic data which might normally be expected to influence interest rate conditions so that the date for the sale or negotiation of terms for a particular funding source can be set at a time which , in the opinion of FSC , will be favorable for the County . 1 . 6 . To assist the County' s financing team in gathering and analyzing necessary data relating to a proposed bond issue for a rating agency presentation and credit enhancement from an insurance company or a letter of credit bank . 1 . 7 . To review County' s efforts to obtain Federal and State financial assistance and make such recommendations as may be necessary. 1 . 8 . Work with the County' s staff, bond counsel , and underwriter in preparation of all the necessary financial statements , legal documents , and certifications which would fully describe the bonds , security, the project , the County and its ability to pay debt service on the bonds . 1 . 9 . To assist and advise County in negotiating with the County' s underwriter(s ) regarding fees , pricing , and terms of the bond issue . 1 . 10 . To arrange for the printing of the bonds and the official statements and arrange for the preparation of other necessary certifications . . 1 . 11 . Subsequent to the sale and delivery of Debt Instruments , review the transaction and transaction documentation with legal counsel for the County, bond counsel , auditors , and other experts and consultants retained by the County and assist in developing appropriate responses to audit procedures , legal or regulatory inquiries , and internal reviews . 1 . 12 . To advise the County through FSC ' s affiliated registered investment advisor on the investment of all proceeds of financing . 2 SECTION 2 , COMPENSATION FOR SERVICES . The fees due to FSC for the Services set forth in section 1 of this Agreement shall be calculated as follows : $ 1 . 20 per $ 1 , 000 for $ 0 — $20 , 000 , 000 of Debt Instruments issued , plus $0 . 75 per $ 1 , 000 thereafter. The parties acknowledge and agree that FSC is due a minimum of $ 15 , 000 per transaction for the Services set forth in section 1 of this Agreement Unless specifically provided otherwise in this Agreement or in a separate written agreement between County and FSC , such fees , together with any other fees as may have been mutually agreed upon , and all expenses for which FSC is entitled to reimbursement , shall become due and payable upon receipt of an invoice therefor submitted by FSC . SECTION 3 , ADDITIONAL SERVICES . In addition to the Services set forth in section 1 of this Agreement , FSC agrees to make available to County the following services ("Additional Services ") , when so requested by the County at the compensation specifically set forth herein for Additional Services , 3 . 1 . INVESTMENT OF FUNDS. From time to time , as an incident to the other services provided hereunder as financial advisor, FSC may purchase such investments as may be directed and authorized by County to be purchased , it being understood that FSC will be compensated in the normal and customary manner for each such transaction . In any instance wherein FSC 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 County , FSC will disclose to County the nature and , to the extent such is known , the amount of any such compensation so that County may consider the information in making its investment decision . It is understood and agreed that FSC is a duly licensed broker/dealer and is affiliated with First Southwest Asset Management , Inc . ( " FSAMI " ) , a duly registered investment advisor. County may, from time to time , utilize the broker/dealer and/or investment advisory services of FSC and/or FSAMI with respect to matters that do not involve or affect the investment of bond proceeds or the financial advisory services referenced in this Agreement . The terms and conditions of the engagement of FSC and/or FSAMI to provide such services shall not be affected by the terms of this Agreement . 3 . 2 . FINANCIAL CONSULTING. Provide advice and assistance to the County as requested for special projects or programs . SECTION 4. COMPENSATION FOR ADDITIONAL SERVICES . The parties acknowledge and agree that the compensation for Additional Services set forth in Section 3 . 2 of this Agreement shall be , as mutually agreed by the parties , either on a mutually agreed lump sum basis , or on a time and expense basis . Additional Services set forth in Section 3 . 2 of this Agreement that are on a time and expense basis shall be at FSC ' s hourly fee schedule , plus actual out-of-pocket expenses as follows : Senior Professionals : $ 175 . 00 ; All other professionals/consultants : $ 120 . 00 ; Administrative Staff: $ 40 . 00 . The parties acknowledge and agree that due to the nature of financial advisory services , FSC bills in half- hour 3 increments . FSC shall include on the invoices any identifiable per diem , meals and lodgings , taxi fares and miscellaneous travel-connected expenses for FSC personnel subject to the limitations of F . S . section 112 . 061 , as may be amended from time to time . The parties acknowledge and agree that the foregoing hourly billing rates will remain in effect for the entire duration of this Agreement . Unless specifically provided otherwise in this Agreement or in a separate written agreement between County and FSC , such fees , together with any other fees as may have been mutually agreed upon and all expenses for which FSC is entitled to reimbursement , shall become due and payable upon receipt of an invoice therefore submitted by FSC . SECTION 5 . PERSONNEL ; INDEMNIFICATION ; INSURANCE . 5 . 1 . PERSONNEL TO BE ASSIGNED . John E . White , Senior Vice President will be assigned to work with County as Financial Advisor. If, for any reason , personnel assigned is changed or replaced , the County has the right immediately to terminate this Agreement . The County has the right to approve , disapprove , or request , for any reason , FSC to replace any personnel assigned by FSC to the account . Should the County make such a request , FSC shall promptly suggest a substitute until a satisfactory substitute is selected . 5 . 2 . INDEMNIFICATION. To the fullest extent permitted bylaw, FSC shall indemnify and hold harmless the County , its officers and employees from liabilities , damages , losses and costs including but not limited to reasonable attorney fees , to the extent caused by the negligence , recklessness , or intentional wrongful conduct of FSC and other persons employed or utilized by FSC in the performance of this contract . 5 . 3 . INSURANCE. FSC shall not commence to perform the Services or Additional Services under this Agreement until it has obtained all the insurance required under this Agreement , and such certificates of insurance have been approved by the County' s Risk Manager. A certificate of insurance shall be provided to the County' s Risk Manager for review and approval ten ( 10 ) days prior to commencement of any work under this Agreement . The insurance company must have a rating by A . M . Best Company of at least A : V . Such certificates of insurance or an endorsement provided by FSC must state that the County will be given thirty (30 ) days ' prior written notice prior to cancellation or material change in coverage . The County shall be named as an additional insured on all policies except workers ' compensation . FSC shall procure and maintain , for the duration of this Agreement , the minimum insurance coverage as set forth herein , and the cost of such insurance shall be included in FSC ' s fee : 5 . 3 . 1 . Workers ' compensation to meet statutory limits in the State of Florida and Employer's Liability with a limit of $ 100 , 000 for each accident , $ 500 , 000 disease ( policy limit ) and $ 100 , 000 disease (each employee ) . 4 5 . 3 . 2 . Commercial General Liability with a minimum combined single limit of $ 500 , 000 per occurrence for bodily injury and property damage . This is to include premises/operations , products/completed operations , contractual liabilityand independent contractors coverage . 5 . 3 . 3 . Business Auto Liability with a minimum combined single limit of $ 500 , 000 per occurrence for bodily injury and property damage . This is to include owned , hired , and non - owned autos . 5 . 3 . 4 . Professional liability with a minimum limit of $ 500 , 000 per occurrence . 5 . 4 . The County is to be an additional insured on the commercial general liability and business liability policies . The County will be given thirty (30 ) days ' notice prior to cancellation or modification of any insurance . Such notification shall be in writing by registered mail , return receipt requested and addressed to the County' s Risk Manager. 5 . 5 , The County , by and through its Risk Manager, reserves the right periodically to review any and all policies of insurance and reasonably to adjust the limits of coverage required hereunder, from time to time throughout the term of this Agreement . In such event , the County shall provide FSC with separate written notice of such adjusted limits and FSC shall comply within thirty (30 ) days of receipt thereof. The failure by FSC to provide such additional coverage shall constitute a default by FSC and shall be grounds for termination of this Agreement by the County. SECTION 6 . TERM OF AGREEMENT . This Agreement shall become effective as of December 6 , 2005 and , unless sooner terminated by either party pursuant to the terms of this Agreement , shall remain in effect thereafter for a period of five (5 ) years from such date . Unless FSC or County shall notify the other party in writing at least forty-five (45 ) days in advance of the applicable anniversary date that this Agreement will not be renewed , this Agreement will be automatically renewed on the fifth 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 , for a maximum term , including all renewals , of ten ( 10 ) years . SECTION 7 . TERMINATION . This Agreement maybe terminated with or without cause by the County or FSC upon the giving of at least forty-five (45 ) 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 FSC for services provided and expenses incurred to the date of termination will be due and payable . No penalty will be assessed for termination of this Agreement . In the event that FSC merges with another company , becomes a subsidiary of, or makes any other substantial change in structure , the County reserves the right to terminate this Agreement in accordance with its terms . All work papers/products developed , as a part of the performance by FSC under this Agreement, shall become the property of the County upon termination of 5 this Agreement or upon completion of any given project . The County reserves the right to audit records of FSC relating to this Agreement for a period of three (3 ) years after termination of this Agreement . SECTION 8 . PERFORMANCE OF SERVICES AND ADDITIONAL SERVICES . In performance of the Services and Additional Services under this Agreement , FSC shall comply with applicable regulatory requirements including federal , state , and local laws , rules , regulations , orders , codes , criteria , and standards . During the term of this Agreement , FSC shall maintain any and all applicable certificates and licenses necessary to allow FSC to perform the Services and Additional Services under this Agreement . SECTION 9 . MISCELLANEOUS , 9 . 1 . COUNTY DESIGNEE The County Administrator is hereby designated as the representative of the County. All work performed by FSC pursuant to this Agreement shall be by direction of the County acting through the County Administrator or his designee . 9. 2. INDEPENDENT CONTRACTOR. It is specifically acknowledged and agreed by the parties hereto that FSC is and shall be , in the performance of all Services and activities under this Agreement , an independent contractor, and not an employee , agent , or servant of the County. All persons engaged in any of the Services performed pursuant to this Agreement shall at all times , and in all places , be subject to FSC 's sole direction , supervision , and control . FSC shall exercise control over the means and manner in which FSC and its employees perform the Services , and in all respects FSC ' s relationship and the relationship of its employees to the County shall be that of an independent contractor performing solely under the terms of the Agreement and not as employees , agents , or servants of the County. 9 . 3 . MERGER; MODIFICATION, This Agreement incorporates and includes all prior and contemporaneous negotiations , correspondence , conversations , agreements or understandings applicable to the matters contained herein and the parties agree that there are no commitments , agreements , or understandings of any nature whatsoever concerning the subject matter hereof that are not contained in this document : Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior or contemporaneous representations or agreements , whether oral or written . No alteration , change , or modification of the terms of this Agreement shall be valid unless made in writing and signed by FSC and the County . 9 . 4 . GOVERNING LAW VENUE. This Agreement , including all attachments hereto , shall be construed according to the laws of the State of Florida . Venue for any lawsuit brought by either party against the other party or otherwise arising out of this Agreement shall be in Indian River County, Florida , or, in the event of federal jurisdiction , in the United States District Court for the Southern District of Florida . 6 9 . 5 . REMEDIES: NO WAIVER. All remedies provided in this Agreement shall be deemed cumulative and additional , and not in lieu or exclusive of each other or of any other remedy available to either party , at law or in equity. Each right , power and remedy of the parties provided in this Agreement shall be cumulative and concurrent and shall be in addition to every other right , power or remedy provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise . The failure of either party to insist upon compliance by the other party with any obligation , or exercise any remedy , does not waive the right to do so in the event of a continuing or subsequent default . A party' s waiver of one or more defaults does not constitute a waver of any other default . If any legal action or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute , breach , default , or misrepresentation in connection with any provisions of this Agreement , each party shall bear its own costs . 9 . 6 . SEVERABILITY. If any term or provision of this Agreement , or the application thereof to any person or circumstance shall , to any extent, be held invalid or unenforceable for the remainder of this Agreement , then the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected , and every other term and provision of this Agreement shall be deemed valid and enforceable to the extent permitted by law. 9 . 7 . AVAILABILITY OF FUNDS. The obligations of the County under this Agreement are subject to the availability of funds lawfully appropriated for its purpose by the Board of County Commissioners of Indian River County . 9 . 8 , NO PLEDGE OF CREDIT. FSC shall not pledge the County's credit or make it a guarantor of payment or surety for any contract , debt , obligation , judgment , lien , or any form of indebtedness . 9 . 9 . PUBLIC RECORDS. FSC shall comply with the provisions of Chapter 119 , Florida Statutes ( Public Records Law) in connection with this Agreement . 9 . 10 . NOTICES. Any notice , request , demand , consent , approval , or other communication required or permitted by this Agreement shall be given or made in writing and shall be served , as elected by the party giving such notice , by any of the following methods : (a ) Hand delivery to the other party ; ( b ) Delivery by commercial overnight courier service ; or ( c ) Mailed by registered or certified mail (postage prepaid ) , return receipt requested at the addresses of the parties shown below: County : Indian River County Attn : Jason Brown , OMB Director 1840 25th Street , Vero Beach , FL 32960-3365 Phone : ( 772 ) 226- 1214 ; Facsimile : (772 ) 770-5331 7 FSC : John White First Southwest Company 20 North Orange Ave . , Suite 1209 Orlando , FL 32801 Phone : (407 ) 426-9611 ; Facsimile : (407 ) 426- 7835 Notices shall be effective when received at the address as specified above . Facsimile transmission is acceptable notice effective when received , provided , however, that facsimile transmissions received ( i . e . , printed ) after 5 : 00 p . m , or on weekends or holidays , will be deemed received on the next day that is not a weekend day or a holiday. The original of the notice sent by facsimile transmission must additionally promptly be hand delivered ; delivered by commercial overnight courier service ; or mailed by registered or certified mail . Either party may change its address , for the purposes of this section , by written notice to the other party given in accordance with the provisions of this section . 9 . 11 . SURVIVAL . Except as otherwise expressly provided herein , each obligation in this Agreement to be performed by FSC shall survive the termination or expiration of this Agreement. 9 . 12 . CONSTRUCTION. The headings of the sections of this Agreement are for the purpose of convenience only , and shall not be deemed to expand , limit , or modify the provisions contained in such Sections . All pronouns and any variations thereof shall be deemed to refer to the masculine , feminine or neuter, singular or plural , as the identity of the party or parties may require . The parties hereby acknowledge and agree that each was properly represented by counsel and this Agreement was negotiated and drafted at arm 's- length so that the judicial rule of construction to the effect that a legal document shall be construed against the draftsperson shall be inapplicable to this Agreement 9 . 13 . COUNTERPARTS. This Agreement may be executed in one or more counterparts , each of which shall be deemed to be an original copy and all of which shall constitute but one and the same instrument . 9 . 14 . GENERAL . The Background Recitals are true and correct and form a material part of this Agreement . ( remainder of the page intentionally left blank) 8 IN WITNESS WHEREOF , the County and FSC have caused this Agreement to be executed in their respective names as of the date first set forth above . FIRST SOUTHWEST COMPANY By: Hill A . Feinberg , Chairman and Chief Executive Officer hn E . White Senior Vice President ; ' . . . 5 INDIAN RIVER COUI 'Y BOARD OF COUNTY ;COMMISSI AS Attest : J . K . Barton , Clerk By. rr. ByCJ `'I` Thomas S . Lowth6r,' irm � • , .. Deput � Approved by BCC : 12 - 6- 05 ' " Approved : BY ` (� Jose A . Baird County Administrator Approve to form an , icien y : By rian F � . Assistant County Attorney 9 IN WITNESS WHEREOF , the County and FSC have caused this Agreement to be executed in their respective names as of the date first set forth above . FIRST SOUTHWEST COMPANY A J By : / Hill A . einberg , Chairman an Chief Executive Officer By : (SJjoE . White Senior Vice President INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS Attest : J . K . Barton , Clerk By : By Thomas S . Lowther , Chairman Deputy Clerk Approved by BCC : Approved : By Joseph A . Baird County Administrator Approved as to form and legal sufficiency : By Marian E . Fell Assistant County Attorney 9