2016/02/17 Meridian Capital Group, LLC Financial Consulting AgreementCITY OF MENIFEE
FINANCIAL SERVICES CONSULTINC AGREEMENT
THIS FINANCIAL SERVICES CONSULTING AGREEMENT ("Agreement") is made
and etlective this February 17,2016 ("Effective Date") by and between the CITY OF MENIFEE,
a Califomia municipal corporation, (*City") and MERIDIAN CAPITAL LLC, a Califbrnia limited
liability company ("Consultant"). City and Consultant may sometimes herein be referred to
individually as a "Pa(y" and collectively as the "Parties."
RECITALS
a. City desires to construct one or more public road improvements with the city limits
of City. Said improvements include the Scott Road Interchange, the Holland Road Overpass, and
road projects estimated to cost between $50 and $86 miltion, including hard and soft costs (the
"Road Improvements").
b. City represents that it has County of Riverside approved plans for the Scott Road
Interchange and the Holland Road Overpass, as such terms are used in the City's Circulation Plan.
c. Consultant is experienced in underwriting loans and the arranging of institutional
financing.
d. City desires to retain Consultant as a financial services consultant to: (i) advise the
City on preparing loan applications for both construction and permanent financing of the Road
Improvements; (ii) underwrite the loan for appropriate financial institutions qualified and capable
of financing the Road Improvements; (iii) facilitate value engineering review ol the Road
Improvements; and (iv) use its best efforts to obtain a loan commitment acceptable to City, in
City's sole discretion.
e. City acknowledges that Consultant shall not provide any legal, engineering, survey,
title assurance, securities brokerage, municipal bonds services, or real estate brokerage services.
Consultant is not a lender nor an employee of any lender. City acknowledges that City and
Consultant's mutual objective ofthis Agreement is to obtain financing if the City qualifies and the
terms are acceptable and approved by City, in City's sole discretion and in compliance with state
law goveming the City. Consultant does not represent that City will qualify for financing, as that
will be dependent upon the City's credit rating, ability to pay, audited financial condition, and
market conditions.
f. City acknowledges that Consultant will eam a fee upon the City's acceptance ofa
binding loan commitment on any financing arranged by Consultant, and the amount of said fee
shall be included in the cost ofissuance and be separate from the compensation set fbrlh in Section
2. Consultant will use its best efforts to obtain a loan commitment that reimburses City tbr the
cost ofthe compensation paid or payable under Section 2 and other costs incurred by the City.
g. City shall be under no obligation to accept any financing arranged by Consultant;
however, Consultant shall have the exclusive right to arrange financing for the City fbr the
construction ofthe Road Improvements for a period ofone (l) year following thqtermination or
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expiration of this Agreement, and il the City does not accept a loan commitment for financing
ananged by Consultant, City shall not enter into a financing agreement with said lender lbr period
of 36 months following the date of the loan commitment.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope ofServices, attached hereto as Exhibit A and incorporated
herein by this reference (the "services"). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event of a conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
ervices. The term of this amended A greement shall begin on February
17, 2016 and shall end on April 30,2016, unless the term ofthis Agreement is otherwise terminated
or extended as provided for in Section 8. The time provided to Consultant to complete the Services
required by this Agreement shall not affect City's righl to terminate this Agreement, as provided
for in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is
experienced in the consulting contemplated herein. Assisnment of Personnel. Consultant shall
assign Thomas P. D'Amico to perform the Services pursuant to Agreement.
I .3 Time. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessury to satisfo Consultant's obligations
hereunder.
1 .4 Authorization to Perform Services. Consultant is not authorized to perform any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
SECTION 2. COMPENSATION.
City hereby agrees to pay Consultant a sum of Fitieen Thousand Dollars ($15,000.00) per
month for the Services to be performed and reimbursable costs incurred under this Agreement, not
to exceed Forty Five Thousand Dollars ($45,000.00). In the event of a conflict between this
Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail.
City shall pay Consultant for the Services rendered pursuant to this Agreement at the time and in
the manner set forth herein. The payments specified below shall be the only payments from City
to Consultant for the Services rendered pursuant to this Agreement. Consultant shall submit all
invoices to City in the manner specified herein. Except as specifically authorized in advance by
City, Consultant shatl not bill City for duplicate services performed by more than one person.
2.1 Invoices. Consultant shall submit invoices monthly during the term of this
Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the following information:
l.l Term o
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SECTION I. SERVICES.
a.
invoice, etc.;
Serial identifications of progress bills; i.e., Progress Bill No. I for the first
b. The beginning and ending dates of the billing period. The billing period
shall begin on the 'l 6th day of each calendar month and end on the 1 5th day of the following
calendar month;
c. A "Task Summary" containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agreement, and the
percentage of completion;
Receipts for expenses to be reimbursed;
The Consultant Representative's signature.
Invoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
29714 Haun Road
Menifee. CA 92586
2.2 Monthlv Pavment. City shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have ten (10) days from the receipt ofan invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Payment City shall pay the remainder of the total amount due pursuant to
this Agreement within ten (10) days after completion of the Services and submittal to City of a
final invoice. if alI ofthe Services required have been satisfactorily performed.
2.4 Total Payment. Ci ty shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the entirety of the
Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission of such an invoice.
These limitations on total payment shall not limit any fee provided to Consultant
pursuant to a loan commitment accepted by the City.
2.5 PaymentofTaxes. Consultant is solel y responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.6 Payment upon Termix4liet. ln the event that Ci ty or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
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d.
e.
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
expenses as of the date of written notice of termination.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physicat facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary lor Consultant's use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of fumishing those facilities shall be in the sole discretion of City. In no event shall City be
required to fumish any facility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles, and
reproduction facilities.
SECTION 4. INSURANCE REQUIREMENTS. N/A
SECTION 5. INDEMNIFICATION. N/A
SECTION 6. STATUS OF CONSULTANT.
6.1 Inderrendent Contractor. At all times durin g the term of this Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreement on behalf of Consultant shall at alI times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except lor the fees paid to Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for perfbrming the Services
hereunder for City. City shall not be liable lor compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, [aw, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment by
City, inctuding but not limited to eligibility to enroll in the California Public Employees
Retirement System ("PERS") as an employee ol City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SECTION 7. LEGAL REQUIREMENTS.
7 .l Governin Law The laws of the State of Calitbrnia shall govem this Agreement.
7 .2 Comnliance with A nolicable Laws. Consultant and an y subcontractor shall comply
with all applicable local, state, and f'ederat laws and regulations applicable to the perfbrmance of
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the work hereunder. Consultant is aware of the requirements of Califomia Labor Code
Sections 1720, et seq., and 1770, et seq., as well as Califomia Code of Regulations, Title 8,
Sections 1600, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage
rates and the performance of other requirements on "Public works" and "Maintenance" projects.
Il the Services are being performed as part of an applicable "Public works" or "Maintenance"
project, as defined by the Prevailing Wage Laws, and if the total compensation is ONE
THOUSAND DOLLARS ($ I ,000) or more, Consultant agrees to fulty comply with such
Prevailing Wage Laws including, but not limited to, requirements related to the maintenance of
payroll records and the employment of apprentices. Consultant will maintain and will require all
subcontractor to maintain valid and current California Department ollndustrial Relations C'DIR)
Public Works Contractor registration during the term of this Agreement. Consultant shall notify
the City in writing immediately. and in no case more than twenty-four (24) hours, after receiving
any information that Consultant's or any of its subcontractor's DIR registration status has been
suspended, revoked, expired, or otherwise changed. It is understood that it is the responsibility of
Contractor to determine the correct salary scale. Any and all work subject to prevailing wages, as
determined by the Director of Industrial Relations of the State of California, will be the minimum
paid to all laborers, including Consultant's employee and subcontractors. 11 is understood that it
is the responsibility ofConsultant to determine the correct scale. The State Prevailing Wage Rates
may be obtained lrom the California Department of lndustrial Relations (*DIR) pursuant to
Califomia Public Utilities Code, Sections 465, 466, and 467 by calling415-703-477 4. Appropriate
records demonstrating compliance with such requirement shall be maintained in a safe and secure
location at all times, and readily available at City's request. Consultant shall indemnify, defend,
and hold City and its elected and appointed boards, members. officials, officers, agents,
representatives, employees. and volunteers harmless from and against any liability, loss, damage,
cost or expenses (including but not limited to reasonable attorneys' fees, expert witness f'ees, court
costs, and costs incurred related to any inquiries or proceedings) arising from or related to (i) the
noncompliance by Consultant or any party performing the Services of any applicable local, state,
and/or federal law, including, without limitation, any applicable federal and/or state labor laws
(including, without limitation, the requirement to pay state prevailing wages and hire apprentices);
(ii) the implementation of Section 1781 of the Labor Code, as the same may be amended from
time to time, or any other similar law; andior (iii) failure by Consultant or any party performing
the Services to provide any required disclosure or identification as required by Labor Code Section
I 781 , as the same may be amended from time to time, or any other similar law. It is agreed by the
Pa(ies that, in connection with performance ofthe Services, including, without limitation, any and
all public works (as defined by applicable [aw), Consultant shall bear all risks ofpayment or non-
payment of prevailing wages under California law and/or the implementation of Labor Code
Section'1781, as the same may be amended from time to time, and/or any other similar law.
Consultant acknowledges and agrees that it shall be independently responsible for reviewing the
applicable laws and regulations and effectuating compliance with such laws. Consultant shall
require the same ofall subcontractors. Consultant shall not hire or employ any person to perform
work within City or allow any person to perform the Services required under this Agreement unless
such person is properly documented and legally entitled to be employed within the United States.
7 .3 I-icenses and Permits. Consultant represents and warrants to City that Consultant
and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and
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subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain
and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. This Agreement shall terminate on the earlier of May I 5, 2016, or
the acceptance of a loan commitment by the City.
8.2 Termination Consultant. Consultantma y cancel this Agreement upon 30 days'
written notice to City.
8.3 Consequences af TgltlaIian. In the event of termination by Consultant.
Consultant shall be entitled to compensation for the Services performed up to the date of termination
In the event of termination by City, Consultant shall be entitled to compensation through May 15,
2016.
8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided for in Subsection I .1. Any such extension shall require a written
amendment to this Agreement, as provided for herein.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by
all the Parties.
ent and Subcontractin . City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination of
Consultant's unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence olConsultant. Consultant may not assign this Agreement or
any interest therein without the prior written approval of the Contract Administrator. Consultant shall
not subcontract any po(ion of the performance contemplated and provided for herein, other than to
the subcontractors noted in Consultant's proposal, without prior uritten approval of the Contract
Administrator. In the event that key personnel leave Consultant's employ, Consultant shall notify City
immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions ofthis Agreement allocating liability between City and Consultant shall
survive the expiration or termination of this Agreement.
8.8 Ontions unon B h bv Consultant. If Consultant materiall y breaches any of the
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the lbllowing:
a. Immediately terminate this Agreement; and/or
b. Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this Agreement.
8.6 As
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SECTION 9. KEEPING AND STATUS OF RECOR-DS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans. studies, specifications, records,
files, or any other documents or materials, in electronic or any other form that Consultant prepares
or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property of City. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement, except that Consultant shall not provide the identity of, or
communication with, any lender, unless that lender has previously been disclosed to the City. It
is understood and agreed that the documents and other materials, including but not limited to those
described above, prepared pursuant to this Agreement are prepared specifically fbr City and are
not necessarily suitable for any future or other use. Any use ofsuch documents lbr other projects
by City shall be without liability to Consultant. City and Consultant agree that, until final approval
by City, all data, plans, specifications, reports, and other documents are confidential and will not
be released to third parties without prior written consent ofboth Parties unless required by law.
9.2 Licensing of Intellectual Property. N/A
9.3 Consultant's Books and Records. N/A
9.4 Inspection and Audit of Records. N/A
SE,CTION 10.MISCELLANEOUS PROVISIONS.
l0.l Attomeys' Fees. If either Party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision ofthis Agreement, the prevailing
Party shall be entitled to reasonable attomeys' fees and expenses including costs, in addition to
any other relief to which that Party may be entitled; provided, however, that the attomeys'fees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Pa(y in the conduct of the
litigation. The court may set such I'ees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Law: Venue. The intemal laws of the State of Califomia shall govem
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
10.3 Severability. If an y provision of this Agreement is held invalid. the remainder of
this Agreement shall not be aflected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.4 Section Headings and Subheadinqs. The section headin gs and subheadings
contained in this Agreement are included for convenience only and shall not limit or otherwise
affect the terms of this Agreement.
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10.5 No Implied Waiver of Breach. The waiver of any breach of a specific provision ol
this Agreement does not constitute a waiver of any other breach of that term or any other term of
this Agreement.
I 0.6 Successors and Assisns. The provisions ofthis Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns of the Parties.
10.7 Consultant Represgnlalilq. All matters under this Agreement shall be handled for
Consultant by Thomas P. D'Amico ("Consultant's Representative"). The Consultant's
Representative shall have full authority to represent and act on behalfofConsultant for all purposes
under this Agreement. The Consultant's Representative shall supervise and direct the Services,
using his best skill and attention, and shall be responsible for all means, methods, techniques,
sequences, and procedures and for the satisfactory coordination of all portions of the Services
under this Agreement.
10.8 City Contract Administration This Agreement shall be administered by a City
employee, Rob Johnson, City Manager ("Contract Administrator"). All correspondence shall be
directed to or through the Contract Administrator or his designee. The Contract Administrator
shall have the power to act on behatf of City for all purposes under this Agreement. Unless
otherwise provided in this Agreement, Consultant shall not accept direction or orders from any
person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall be sent to:
Thomas P. D'Amico
MERIDIAN CAPITAL LLC
41668 Monterey Place
Temecula. CA 92591
Any written notice to City shall be sent to the Contract Administrator at:
with a copy to:
City Clerk
City of Menifee
29714 I{aun Road
Menifee. CA 92586
10. l0 fuehts and Remedies. Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies ofthe Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or dilferent times, ofany other rights or remedies for the same default
or any other default by the other Party.
-8
City of Menifee
29714 Haun Road
Menifee. CA 92586
Attn: Rob Johnson
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l0.l I Integration. This A greement, including the scope of services attached hereto and
incorporated herein as Exhibil A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either Party by reason ofthe authorship of
this Agreement or any other rule of construction which might otherwise apply.
10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
10.13 Execution ofContract. The persons executing this Agreement on behalfofeach ol
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
10. '14 Nondiscrimination. Consuhanl covenants that, b y and for itsell, its heirs. executors,
assigns, and all persons claiming under or through them, that in the pertbrmance ofthis Agreement
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10. I 5 No Third Part Benetlciaries.With the exception of the specific provisions set
forth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
10.16 Nonliability of City Officers and Employees. No officer , official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event ofany default or breach by City or lbr any amount which may become due to
Consultant or to its successor, or fbr breach ofany obligation ofthe terms of this Agreement.
I 0. I 7 No I Jndue Influence. Consultant declares and warrants that no undue influence or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation of this Agreement, including any method of coercion, confidential
financial arrangement. or financial inducement. No officer or employee ol City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee, or agent of
Consultant, in connection with the award ofthis Agreement or any work to be conducted as a result
of this Agreement.
10. I 8 No Benefit to Arise to Ci Em lo No member. officer, or employee of City.tv n S
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during hisiher tenure or for one (1) year thereafter,
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
10. I 9 Incomoration of Recitals. The Recitals are
Agreement.
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hereby incorporated into this
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as of the Effective Date.
CITYOFMENIFEE CONSULTANT
MERIDIAN CAPITAL, LLC, a
California limited ti v
lru
Scott A. Mann. Mayor
Altest:
Thomas P. D'Manager
rah A. Manwaring.Crty Clerk
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/
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Approved as to l]orm:
Jclfrcy T. Melching. City n ttorney
EXHIBIT A
SCOPE OF SERVICES
Consultant to advise the City on:
l. Financing to construct the Road Improvements;
2. Land acquisition;
3. Construction budgets;
4. Constructionphasing;
5. Value engineering; and
B. City shall promptly provide to Consultant all information reasonably requested by
Consultant as is commonly requested for financing ofthe type sought by City, including but not
limited to:
I . Financial information:
2. Construction plans, drawings, specifications, estimates, and staff reports; and
3. Communications with Cal Trans, County of Riverside, and City's consultants
pertaining to the Road Improvements.
EXHIBIT A
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