HomeMy WebLinkAbout2020-110 Agrmt- PFM Financial Advisors LLC PERSONAL SERVICES AGREEMENT
CONSULTANT: PFM FINANCIAL ADVISORS LLC
CITY OF CONTACT: Michael Berwanger,Managing Director
-ASHLAND
20 East Main Street ADDRESS: 650 NE Holladay Street, Suite 1600
Ashland, Oregon 97520 Portland, Oregon 97232
Telephone: 541/488-5300
Fax: 541/552-2059 TELEPHONE: 503-837-8445
FAX NUMBER: 503-837-8446
EMAIL: berwangerm@pfm.com
This Personal Services Agreement (hereinafter"Agreement") is entered into by and between the
City of Ashland, an Oregon municipal corporation (hereinafter "City") and PFM Financial Advisors
LLC, a foreign limited liability company("hereinafter"Consultant"), for Financial Advisory Services.
NOW THEREFORE, in consideration of the mutual covenants contained herein,the City and
Consultant hereby agree as follows:
1. Effective Date and Duration: This Agreement shall become effective on the date of execution
on behalf of the City; as set forth below(the"Effective Date"), and unless sooner terminated as
specifically provided herein, shall continue in full force and effect until April 1,2025.
2. Scope of Work: Consultant will provide Financial Advisory Services as more fully set forth in
the Consultant's Technical Proposal to Provide Financial Advisory Services dated February 25,
2020,which is attached hereto as "Exhibit A"and incorporated herein by this reference.
Consultant's services are collectively referred to in this Agreement as the "Work." The City is
not obligated to procure any specific amount of Work from Consultant pursuant to this
Agreement.
3. Supporting Documents/Conflicting Provisions: This Agreement and any exhibits or other
supporting documents shall be construed to be mutually complementary and supplementary
wherever possible. In the event of a conflict which cannot be so resolved,the provisions of this
Agreement itself shall control over any conflicting provisions in any of the exhibits or supporting
documents.
4. All Costs Borne by Consultant: Consultant shall, at its own risk,perform the Work described
above and,unless otherwise specified in this Agreement;furnish all labor, equipment, and
materials required for the proper performance of such Work.
5. Qualified Work: Consultant has represented, and by entering into this Agreement now
represents,that all personnel assigned to the Work to be performed under this Agreement are
fully qualified to perform the service to which they will be assigned in a skilled and worker-like
manner and, if required to be registered, licensed or bonded by the State of Oregon, are so
registered, licensed and bonded.
6. Compensation: City shall pay Consultant at the hourly rates as set forth in"Exhibit D,"
Consultant's Cost Proposal dated February 25, 2020,which is attached hereto and incorporated
herein as compensation for Consultant's performance of all Work under this Agreement. In no
event shall Consultant's total of all compensation and reimbursement under this Agreement
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exceed the sum of$150,000 (one hundred and fifty thousand dollars) per twelve (12) month
period without the express,written approval from the City official whose signature appears
below, or such-official's successor in office. Payments shall be made within thirty (30) days of
the date of receipt by the City of Consultant's invoice. Should this Agreement be terminated
prior to completion of all Work,payments will be made for any phase of the Work completed
and accepted by the City as of the date of termination.
7. Ownership of Work/Documents: All Work,work product, or other documents produced in
furtherance of this Agreement belong to the City, and any copyright,patent,trademark
proprietary or any other protected intellectual property right shall vest in and is hereby assigned
to the City.
8. Statutory Requirements: The following laws of the State of Oregon are hereby incorporated
by reference into this Agreement: ORS 279B.220, 279B).230 and 279B.235.
9. Living Wage Requirements: If the amount of this Agreement is $21,507.75 or more,
Consultant is required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a
living wage, as defined in that chapter,to all employees performing Work under this Agreement
and to any Subcontractor who performs.50%or more of the_Work under this Agreement.
Consultant is also required to post the notice attached hereto as "Exhibit B"predominantly in
areas where it will be seen by all employees.
10. Indemnification: Consultant hereby agrees to defend, indemnify, save, and hold City, its
-officers, employees, and agents harmless from any and all losses, claims, actions, costs,
expenses,judgments, or other damages resulting from injury to any person (including injury
resulting in death), or damage (including loss or destruction)to property, of whatsoever nature
arising out of or incident to the negligent or intentional acts by Consultant(including but not
limited to, Consultant's employees, agents, and others designated by Consultant to perform Work
or services attendant to this Agreement) in the performance of this Agreement. However,
Consultant shall not be held responsible for any losses, expenses, claims, subrogations, actions,
costs,judgments, or other damages, caused solely by the negligence of City.
11. Termination:
a. Mutual Consent. This Agreement may be terminated at any time by the mutual consent
of both parties.
b. City's Convenience. This Agreement may be terminated by City at any time upon not
less than thirty (30) days' prior written notice delivered by certified mail or in person.
c. For Cause. City may terminate or modify this Agreement, in whole or in part, effective
upon delivery of written notice to Consultant, or at such later date as may be established
by City under any of the following conditions:
i. If City funding from federal, state, county or other sources is not obtained and
continued at levels sufficient to allow for the purchase of the indicated quantity of
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services;
ii. If federal or state regulations or guidelines are modified, changed, or interpreted in
such a way that the services are no longer allowable or appropriate for purchase under
this Agreement or are no longer eligible for the funding proposed for payments
authorized by this Agreement; or
iii. If any license or certificate required by law or regulation to be held by Consultant to
provide the services required by this Agreement is for any reason denied, revoked,
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suspended, or not renewed.
d. For Default or Breach.
i. Either City or Consultant may terminate this Agreement in the event of a breach of
the Agreement by the other. Prior to such termination the party seeking termination
shall give to the other party written notice of the breach and its intent to terminate. If
the party committing the breach has not entirely cured the breach within fifteen (15)
days of the date of the notice, or within such other period as the party giving the
notice may authorize in writing,then the Agreement may be terminated at any time
thereafter by a written notice of termination by the party giving notice.
ii. Time is of the essence for Consultant's performance of each and every obligation and
duty-under this Agreement. City,by written notice to Consultant of,default or breach,
may at any time terminate the whole or any part of this Agreement if Consultant fails
to provide the Work called for by this Agreement within the time specified herein or
within any extension thereof.
iii. The rights and remedies of City provided in this subsection (d) are not exclusive and
are in addition to any other rights and remedies provided by law or under this
Agreement.
e. Obligation/Liability of Parties. Termination or modification of this Agreement pursuant
to subsections a,b, or c above shall be without prejudice to any obligations or liabilities
of either party already accrued prior to such termination or modification. However, upon
receiving a notice of termination(regardless whether such notice is given pursuant to
Subsection a, b, c, or d of this section, Consultant shall immediately cease all activities
under this Agreement,unless expressly directed otherwise by City in the notice of
termination. Further, upon termination, Consultant shall deliver to City all documents,
information,works-in-progress and other property that are or would be deliverables had
the Agreement been completed. City shall pay Consultant for Work performed prior to
the termination date if such Work was performed in accordance with this Agreement.
12. Independent Contractor Status: Consultant is an independent contractor and not an employee
of the City for any purpose. Consultant shall have the complete responsibility for the
performance of this Agreement. Consultant shall provide workers' compensation coverage as
required in ORS Chapter 656 for all persons employed to perform Work pursuant to this
Agreement. Consultant is a subject employer that will comply with ORS 656.017.
13. Assignment: Consultant shall not assign this Agreement or subcontract any portion of the Work
without the written consent of City. Any attempted assignment or subcontract without written
consent of City shall be void. Consultant shall be fully responsible for the acts or omissions of
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any assigns or subcontractors and of all persons employed by them, and the approval by City of
any assignment or subcontract of the Work shall not create any contractual relation between the
assignee or subcontractor and City.
14. Default. The Consultant shall be in default of this Agreement if Consultant: commits any
material breach or default of any covenant,warranty, certification, or obligation under the
Agreement; institutes an action for relief in bankruptcy or has instituted against it an action for
insolvency; makes a general assignment for the benefit of creditors; ceases doing business on a
regular basis of the type identified in its obligations under the Agreement; or attempts to assign
its rights in, or delegate its duties under,this Agreement.
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15. Insurance. Consultant shall, at its own expense, maintain the following insurance:
a. Worker's Compensation insurance in compliance with ORS 656.017,which requires subject
employers to provide Oregon workers' compensation coverage for all their subject workers
b. Professional Liability insurance with a combined single limit, or the equivalent, of not less
than $2,000,000 (two million dollars)per claim. This is to cover any damages caused by any
error, omission or negligent act related to the Work to be provided under this Agreement.
"Tail"coverage will be required at the completion of the Work under this Agreement for the
remaining Term, and for not less than twenty-four(24)months after completion of all Work.
Consultant shall be responsible for furnishing certification of the"tail" coverage as described
herein or continuous "claims made" liability coverage for not less than twenty-four(24)
months following completion of all Work,provided that the continuous "claims"made"
coverage has a retroactive date on or before the Effective Date of this Agreement.
c. General Liability insurance with a combined single limit, or the equivalent, of not less than
$2,000,000 (two million dollars)per occurrence for Bodily Injury,Death, and Property
Damage.
d. Automobile Liability insurance with a combined single limit, or the equivalent, of not less
than $1,000,000 (one million dollars) for each accident for Bodily injury and Property
Damage, including coverage for owned,hired or non-owned vehicles, as applicable.
e. Notice of cancellation or change. There shall be no.cancellation, material change,reduction
of limits or intent riot to renew the insurance coverage(s)without thirty (30) days' prior
written notice from the Consultant or its insurer(s)to the City.
f. Additional Insured/Certificates of Insurance. Consultant shall name the City of Ashland,
Oregon, and its elected officials, officers and employees as Additional Insureds on any
insurance policies, excluding Professional Liability and Workers' Compensation, required
herein,but only with
respect to Consultant's services to be provided under this Agreement. The consultant's
insurance is primary and non-contributory. As evidence of the insurance coverages required
by this Agreement,the Consultant shall furnish acceptable insurance certificates prior to
commencing the Work under this Agreement. The certificate will specify all of the parties
who are Additional Insureds. Insuring companies or entities are subject to the City's
acceptance. If requested, complete copies of insurance policies;trust agreements, etc. shall
be provided to the City. The Consultant shall be financially responsible for all pertinent
deductibles, self-insured retentions, and/or self-insurance.
16. Nondiscrimination: Consultant agrees that no person shall, on the grounds of race, color,
religion, creed, sex,marital status, familial status or domestic partnership, national origin, age,
mental or physical disability, sexual orientation, gender identity or source of income, suffer
discrimination in the performance of any Work under this Agreement when employed by
Consultant. Consultant agrees to comply with all applicable requirements of federal and state
civil rights and rehabilitation statutes,rules and regulations. Further, Consultant agrees not to
discriminate against a disadvantaged.business enterprise, minority-owned business,woman-
owned business, a business that a service-disabled veteran owns or an emerging small business
enterprise certified under ORS 200.055, in awarding subcontracts as required by ORS 279A.110.
17. Consultant's Compliance With Tax Laws:
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17.1 Consultant represents and warrants to the City that:
17.1.1 Consultant shall,throughout the term of this Agreement, including any extensions
hereof, comply with:
(i)All tax laws of the State of Oregon, including but not limited to ORS 305.620 and
ORS Chapters 316, 317, and 3.18;
(ii) Any tax provisions imposed by a political subdivision of the State of Oregon
applicable to Consultant; and
(iii) Any rules, regulations, charter provisions, or ordinances that implement or
enforce any of the_foregoing tax laws or provisions.
17.1.2 Consultant, for a period of no fewer than six(6) calendar years preceding the Effective
Date of this Agreement, has faithfully complied with:
(i) All tax laws of the State of Oregon, including but not limited to ORS 305.620 and
ORS Chapters 316, 317, and 318;
(ii) Any tax provisions imposed by a political subdivision of the State of Oregon
applicable to Consultant; and
(iii) Any rules, regulations, charter provisions, or ordinances that implement or
enforce any of the foregoing tax laws or provisions.
18. Notice. Whenever notice is required or permitted to be given under this Agreement, such notice
shall be given in writing to the other party by personal delivery,by sending via a reputable
commercial overnight courier, by mailing using registered or certified United States mail,return
receipt requested,postage prepaid, or by electronically confirmed at the address or facsimile
number set forth below:
If to the City:
City Department
Attention: Cindy Hanks,Deputy Finance Director
20,E. Main Street
Ashland, Oregon 97520
Cindy.hanks@ashland.or.us
Telephone: (541) 552-2007
With a copy to:
City of Ashland—Legal Department
20 E. Main Street
Ashland, Oregon 97520
Telephone: (541) 488-5350
If to Consultant:
PFM Financial Advisors LLC
Michael Berwanger,Managing Director
650 NE Holladay Street, Suite 1600
Portland, Oregon 97232
Telephone: (503) 837-8445
berwangerm@pfm.com
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19. Governing Law. This Agreement shall be governed by the laws of the State of Oregon without
regard to conflict of laws principles. Exclusive venue for litigation of any action arising under
this Agreement shall be in the Circuit Court of the State of Oregon for Jackson County unless
exclusive jurisdiction is in federal court, in which case exclusive venue shall be in the federal
district court for the district of Oregon. Each party expressly waives any and all rights to
maintain an action under this Agreement in any other venue, and expressly consents that, upon
motion of the other party, any case may be dismissed or its venue transferred, as appropriate, so
as to effectuate this choice of venue.
20. Amendments. This Agreement may be amended only by written instrument executed by both
parties with the same formalities as this Agreement.
21. Nonappropriations Clause. Funds Available and Authorized: City has sufficient funds
currently available and authorized for expenditure to finance the costs of this Agreement within
the City's fiscal year budget. Consultant understands and agrees that City's payment of amounts
under this Agreement attributable to Work performed after the last day of the current fiscal year
is contingent on City appropriations, or other expenditure authority sufficient to allow City in the
exercise of its reasonable administrative discretion,to continue to make payments under this
Agreement. In the event City has insufficient appropriations, limitations or other expenditure
authority, City may terminate this Agreement without penalty or liability to City, effective upon
the delivery of written notice to Consultant, with no further liability to Consultant.
_22. THIS AGREEMENT AND THE ATTACHED EXHIBITS CONSTITUTE THE ENTIRE
UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES. NO WAIVER,
CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS AGREEMENT SHALL
BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH
WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE
ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN.
THERE ARE NO UNDERSTANDINGS,AGREEMENTS, OR REPRESENTATIONS, ORAL
OR WRITTEN,NOT SPECIFIED HEREIN REGARDING THIS AGREEMENT.
CONSULTANT,BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE,HEREBY
ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT,UNDERSTANDS IT,
AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
23. Certification. Consultant shall sign the certification attached hereto as "Exhibit C" and
incorporated herein by this reference.
24. Registered Municipal Advisor; Required Disclosures. Consultant is a registered municipal
advisor with the Securities and Exchange Commission (the "SEC") and the Municipal Securities
Rulemaking Board(the "MSRB"),pursuant to the Securities Exchange Act of 1934 Rule 15Bal-
2. The parties agree that if the City has designated Consultant as its independent registered
municipal advisor("IRMA")'for purposes of SEC Rule 15Bal-1(d)(3)(vi) (the"IRMA
exemption"),the services provided pursuant to such designation shall be the services described
in Exhibit A hereto, subject to any limitations provided therein. Verification of independence (as
is required under the IRMA exemption) shall be the responsibility of such third party seeking to
rely on such IRMA exemption. Consultant shall have the right to review and approve in advance
any representation of Consultant's role as IRMA to the City. MSRB Rules require that
municipal advisors make written disclosures to their clients of all material conflicts of interest,
certain legal or disciplinary events and certain regulatory requirements,which are provided in
Consultant's Disclosure Statement delivered to the City prior to or together with this Agreement.
25. Affiliate Services. Upon written request of the City, Consultant or an affiliate of Consultant
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may agree to additional services to be provided by Consultant-or an affiliate of Consultant, by a
separate writing, including separate scope and compensation,between the City and Consultant or
its respective affiliate. For the sake of clarity, any separate agreement between the City and an
affiliate of Consultant shall not in any way be deemed an amendment or modification of this
Agreement.
26. Information To Be Furnished To Contractor.All information, data, reports, and records in the
possession of the City or any third party necessary for carrying out any services to be performed
under this Agreement("Data") shall be furnished to Consultant. Consultant may rely on the Data
in connection with its provision of the services under this Agreement and the provider thereof
shall remain solely responsible for the adequacy, accuracy or completeness of such Data.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed in their
respective names by their duly authorized representatives as of the dates set forth below.
CITY OF ASHLAND: PFM FINANCIAL ADVISORS LLC:
By: /; By:' O
City Adm strator Signature
V-144,1 k. a d; Michael Berwanger
Printed Name Printed Name
4 1 20z. ' Managing Director
ate Title
April 6, 2020
Purchase Order No. 'Date
W-9 is to be submitted with this signed Agreement
APPROVED AS TO FORM:".../f2e
Assistant City Attorney
. / c� a2 0 o
Date
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