HomeMy WebLinkAbout20- Professional Services Agreement - Stifel, Nicolaus, & Company - Underwriting the Refunding of Tax Increment Downtown Urban Renewal District PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 27th day of January, 2020, by and
between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as "City," and, Stifel, Nicolaus & Company, hereinafter referred to as
"Contractor."
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged,the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Attachment "A" and by this
reference made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution
and will terminate after bond issuance.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise,the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City, .
and will become an additional charge over and above the amount listed in the Scope of Services.
The City must agree in writing upon any additional charges.
5. Contractor's Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this
Agreement,the Scope of Services, and with all local conditions and federal,state and local
laws, ordinances, rules, and regulations that in any manner may affect cost, progress or
performance of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and
ability to perform the services required by this Agreement;that it will perform said services
in a professional,competent and timely manner and with diligence and skill;that it has the
power to enter into and perform this Agreement and grant the rights granted in it; and that
its performance of this Agreement shall not infringe upon or violate the rights of any third
party,whether rights of copyright,trademark,privacy,publicity, libel,slander or any other
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rights of any nature whatsoever, or violate any federal, state and municipal laws. The City
will not determine or exercise control as to general procedures or formats necessary to have
these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City for any purpose. Contractor is not subject to the terms and provisions of
the City's personnel policies handbook and may not be considered a City employee for workers'
compensation or any other purpose. Contractor is not authorized to represent the City or otherwise
bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers' Compensation
Act, Title 39, Chapter 71,MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Contractor shall maintain workers' compensation coverage for all members and
employees of Contractor's business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1)a binder for
workers' compensation coverage by an insurer licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (2) proof of exemption from workers'
compensation granted by law for independent contractors.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: The Contractor will defend, indemnify,
and hold harmless the Issuer, each of its members, directors, officers and employees, and each
person who controls the Issuer within the meaning of Section 15 of the Securities Act of 1933 or
Section 20 of the Securities Exchange Act of 1934, against any and all losses, claims, damages,
liabilities, and expenses to which the Issuer may become subject, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof), arise out of or are based upon: (i)
any statement or information in the Preliminary Official Statement or in the Official Statement
under the caption "Underwriting" that is or is alleged to be untrue or incorrect in any material
respect, or any omission or alleged omission of any statement or information in the Preliminary
Official Statement or the Official Statement under the caption"Underwriting"which is necessary
in order to make the statements therein not misleading; or(ii) Contractor's or any of Contractor's
employees' gross negligence or willful misconduct in the performance of the services that are the
subject of this contract;provided, however, that such indemnification shall not cover any losses,
claims, damages, liabilities, or expenses that are attributable to the gross negligence or willful
misconduct of the Issuer or its employees.
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Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this
Section must not be construed to negate, abridge,or reduce any common-law or statutory rights of
the indemnitee(s)which would otherwise exist as to such indemnitee(s).
Contractor's indemnity under this Section shall be without regard to and without any right
to contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the
Contractor to assert its right to defense or indemnification under this Agreement or under the
Contractor's applicable insurance policies required below the indemnitee shall be entitled to
recover reasonable costs and attorney fees incurred in asserting its right to indemnification or
defense but only if a court of competent jurisdiction determines the Contractor was obligated to
defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s)
thereof.
In the event of an action filed against City resulting from the City's performance under this
Agreement,the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except"responsibility for his own fraud,for willful injury to the person or property of
another, or for violation of law, whether willful or negligent"as per 28-2-702,MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor's expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Contractor in subsection(a)of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City and Contractor
shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers' Compensation—statutory;
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• Employers' Liability- $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate; and
• Professional Liability -$1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include no less
than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance
coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City
within two(2)business days of Contractor's receipt of notice that any required insurance coverage
will be terminated or Contractor's decision to terminate any required insurance coverage for any
reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor's Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any
terms or conditions of this Agreement, the City may, by written notice, terminate this
Agreement and the Contractor's right to proceed with all or any part of the work
("Termination Notice Due to Contractor's Fault"). The City may then take over the work
and complete it, either with its own resources or by re-letting the contract to any other third
party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
C. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances,be entitled to claim or recover consequential,special,punitive,lost business
opportunity,lost productivity,field office overhead,general conditions costs,or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
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9. Termination for City's Convenience:
a. Should conditions arise which,in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may
terminate this Agreement by written notice to Contractor ("Notice of Termination for
City's Convenience"). The termination shall be effective in the manner specified in the
Notice of Termination for City's Convenience and shall be without prejudice to any claims
that the City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice,the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work,
incurring additional expenses or costs under this Agreement and shall immediately cancel
all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only
such work as may be necessary to preserve,protect, and maintain work already completed
or immediately in progress.
C. In the event of a termination pursuant to this Section 9,Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of
the Notice of Termination for City's Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no
circumstances,be entitled to claim or recover consequential,special,punitive,lost business
opportunity,lost productivity,field office overhead,general conditions costs,or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity,lost productivity,field office overhead,general conditions costs,or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to
the claim. In the event Contractor fails to provide such notice, Contractor shall waive all
rights to assert such claim.
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11. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be the Finance Director or such other individual as City shall designate in
writing. Whenever approval or authorization from or communication or submission to City
is required by this Agreement, such communication or submission shall be directed to
Kristin Donald as the City's Representative and approvals or authorizations shall be issued
only by such Representative;provided,however,that in exigent circumstances when City's
Representative is not available, Contractor may direct its communication or submission to
other designated City personnel or agents as listed above and may receive approvals or
authorization from such persons.
b. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be Scott Pasternak or such other individual as Contractor
shall designate in writing. Whenever direction to or communication with Contractor is
required by this Agreement, such direction or communication shall be directed to
Contractor's Representative; provided, however, that in exigent circumstances when
Contractor's Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers'
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes,and provisions of the Montana Safety Act in Title 50,Chapter 71,MCA,all applicable City,
County, and State building and electrical codes,the Americans with Disabilities Act, and all non-
discrimination, and utilization of minority and small business statutes and regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will
have a policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts,with the exception of laws pertaining
to affirmative action. The Contractor will not refuse employment to a person, bar a person from
employment,or discriminate against a person in compensation or in a term,condition,or privilege
of employment because of race, color, religion, creed, political ideas, sex, age, marital status,
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national origin, actual or perceived sexual orientation, gender identity, physical or mental
disability, except when the reasonable demands of the position require an age,physical or mental
disability, marital status or sex distinction. The Contractor shall be subject to and comply with
Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all
regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms
of its sub-Contractors providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol
or illegal drugs, by any employee or agent engaged in services to the City under this Agreement
while on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the
U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work.performed. The Contractor is responsible for
instructing his employees and agents in safe work.practices.
16. Modification and Assignability: This Agreement may not be enlarged,modified
or altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor's rights, including the right to compensation or duties arising
hereunder,without the prior written consent of City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information:Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor's compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that
the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements,releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party's right to enforce such
term or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
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19. Attorney's Fees and Costs: That in the event it becomes necessary for either Party
of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement
or to give any notice required herein, then the prevailing Party or the Parry giving notice shall be
entitled to reasonable attorney's fees and costs,including fees,salary,and costs of in-house counsel
to include City Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from
the date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
22. Survival: Contractor's indemnification shall survive the termination or expiration
of this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
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28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications,either verbal or written,made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part
of this Agreement by reference.
30. Extensions: this Agreement may, upon mutual agreement, be extended for a
period of one year by written agreement of the Parties. In no case, however, may this Agreement
run longer than six months.
[END OF AGREEMENT EXCEPT SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN,MONTANA Stifel, Nicolaus & Company
By B
Dennis Taylor,Interim ity Manager Pr' ame: Bryan Stelmack
Title: Director
APPROVED AS TO FORM
By
Greg Sullivan,Bozeman City Attorney
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Attachment A- Scope of Services
Provide underwriting services for the refinancing of Downtown Urban Renewal Tax Increment
Financing District series 2007 bonds.
STIFEL
December 17,2019
City of Bozeman,Montana
Attn:Robin Crough,City Clerk
PO Box 1230
121 North Rouse Ave,Suite 200
Bozeman,MT 59771
Re: Request for Proposals-For Underwriting the Refunding of Tax Increment Urban Renewal Revenue Bonds,(Downtown Urban
Renewal District),Series 2007
Dear Robin Crough:
On behalf of Stifel, Nicolaus &Company, Incorporated ("Stifel"), we are pleased to submit the enclosed response to the City of
Bozeman(the"City"),regarding the Request for Proposal for the proposed Tax Increment Urban Renewal Revenue Refunding Bonds,
Series 2020(the"Series 2020 Bonds")for the purpose of refunding the Tax Increment Urban Renewal Revenue Bonds(Downtown
Urban Renewal District),Series 2007(the"Series 2007 Bonds"). With details further described herein,we would like to highlight the
following key aspects of our response,as well as emphasize our readiness to collaborate with the City on another financing:
#1 Underwriter Nationally and ttl Underwriter of Tax Increment Revenue Bonds: For each of the past four years and through the
first three quarters of 2019,Stifel was the#1 ranked underwriter in the nation by number of issuances.Furthermore,Stifel is the#1
ranked underwriter of Tax Increment Revenue Bonds by both number of issuances and par amount. This volume of market
participation means Stifel's sales force is in the market daily,resulting in established investor relationships and a strong knowledge
and understanding of investor patterns and preferences(Source:SDC).
Served as Sole Manager on the CiNs Most Recent Financing: Stifel is proud of its past service to the City,having served as sole
managing underwriter to the City on its General Obligation Bonds, Series 2019,which received a rating upgrade to 'Aal'. Stifel
proposes the same tearn to serve the City,providing continuity to the financing team and familiarity with the City's financing process,
which provides an advantage for the entire Stifel team.Additionally,Stifel has provided the City with multiple analyses of the Series
2007 Bonds refunding opportunity and has already secured a rate lock from a local bank,as detailed herein.
Stifel's Commitment to Montana: Stifel currently employs 23 brokers managing over 16,000 individual accounts in our offices located
in Bozeman.Billings,Great Falls,and Kalispell,with over$1.95 billion of Montana retail assets under management.Stifel believes that
our retail customers offer issuers an opportunity to have the community invest in their capital projects,while also creating leverage
against institutional buyers.On the City's General Obligation Bonds,Series 2019,in partnership with the retail offices,Stifel advertised
the City's bond sale in 16 newspapers across Montana,which resulted in 134 retail orders on the transaction.
Stifel's Customized Plan of Finance:The Stifel team has been fortunate to serve the City,gaining valuable insight into the City's
financing goals and preferences.As further described in our response and summarized below,we believe our plan of finance offers
the following benefits for the proposed financing:
Efficient Use of Prior Funds:By contributing the debt service reserve fund from the Series 2007 Bonds towards the escrow,the City
can downsize the refunding,which increases the estimated net present value savings.
■ Look to Obtain Rating Upgrade:If the City obtains a rating on the proposed transaction,or any future transactions for the Downtown
Urban Renewal District,Stifel believes the City will likely be upgraded into the'A'category due to the strong growth that has
occurred in the area and the additional expected growth,as stated in the Downtown Bozeman Improvement Plan from May 2019.
Bank Placement:Due to the size of the transaction and the 12-year amortization,the refunding transaction is a good candidate for
a bank placement.The advantages of a bank placement are the lower cost of issuance and a less time intensive process for the City's
staff.Stifel has obtained a competitive rate proposal from BB&T Bank,which is locked through 1/21/2020 and 3/6/2021.
We appreciate this opportunity to present our qualifications to the City and believe the enclosed response reflects our desire to assist
the City's team in structuring and marketing its financing at the lowest possible interest cost. As signatories below,we are legally
authorized to commit the firm to all terms and conditions described herein.
Sincerely,
I
• I
Bryan Stelmack Amy Canfield
Director Vice President
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