HomeMy WebLinkAbout2010-061 Alverez & Marsal Financial Advisor Resolution R-2010-061
A RESOLUTION AUTHORIZING AND APPROVING AN AGREEMENT BY AND BETWEEN THE
CITY OF RIVERSIDE, MISSOURI AND ALVAREZ & MARSAL FOR FINANCIAL ADVISOR
SERVICES
WHEREAS, the City of Riverside, Missouri (the "City") has negotiated with Alvarez &
Marsal (the "Advisor") for the provision of services by the Advisor to the City; and
WHEREAS, the City and the Advisor have reached an agreement concerning the provision
of services as an independent contractor; and
WHEREAS, the Board of Aldermen have determined it is in the best interest of the City to
enter into an agreement with Advisor in substantially the same form as attached hereto as Exhibit A;
NOW, THEREFORE, BE IT RESOLVED, by the Board of Aldermen of the City of Riverside,
Missouri, as follows:
THAT the Agreement between the City and Alvarez & Marsal in substantially the same
form attached hereto as Exhibit "A", is hereby authorized and approved;
FURTHER THAT the execution and delivery of the Agreement by the Mayor is approved,
and the City Administrator and city staff are authorized to take such other actions reasonably
necessary to carry out the intent of the Agreement on behalf of the City, the execution of the
Agreement being conclusive evidence of such approval.
PASSED AND ADOPTED by the Board of Aldermen and APPROVED by the Mayor of the
City of Riverside, Missouri, the 21 of September, 2010.
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or Kathleen L. Rose
ATTEST:
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Robin Littrell, City Clerk
Approve s to Form:
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a ho on, City Attorney
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PROFESSiONAL SF,RVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT is entered into as of the 23 day I �
of September, 2010, by and between the City of Riverside, Missouri ("City") and Alvarez & '
Marsal Dispute Analysis & Forensics LLC ("Consultant"), a Limited Liability Corporation ,
� having its principal place of business in Kansas City, Missouri.
WHEREAS, City desires to engage Consultant as an independent contractor to perform ,
the services outlined in the scope of work described in Exhibit A; and �
WHEREAS, Consultant is willing to provide such services to City on the terms and '
conditions hereinafter set forih:
NOW, THEI2EFORE, in consideration of the foregoing and of the mutual covenants
and agreements hereinafter set forth, the parties agree as follows:
I. ENGAGEM�NT
City hereby engages Consultant as an independent contractor to perform the services
hereinafter set forth, and Consultant hereby accepts such engagement.
II. 5ERVICES
2.1. Scope of Services
Consultant shall perform those services specifically described in Exhibit A, attached
hereto and incorporated by reference herein (the "Contract Services"). The parties may agree, in
writing, at any time to expand or modify tlie Scope of the Contract Services.
2.2. Subcontract Services
Except as set forth in Exhibit A, Consultant may not subcontract any of the Contract
Services without the w7itten consent of the Citv.
2.3 Time of Performance
Upon execution of this agreement, Consultant shall commence performance of the
Contract Services in accordance with the time periods set forth in Exhibit A. The Timeline for
completion shall commence as of September 23, 2010 and shall expire upon the City s
acceptance of the Contract Services. Consultant shall comply with the timetine set forth in
F.xhibit A. The provisions regarding indcinnity and insurance shall survive expiration or
termination of this Agreement.
Consultant shall make all reasonable efforts to perform the Contract Services within the
Timeline subjcct, however, to delays beyond Consultant reasonable control. The term of this
Agreement may be extended by mutual agreement of the parties beyond the Timeline outlined in
Exhibit A for the purpose of Consultant providing any additional services, as may be requested
by City and agreed to by Consultant. Consultant shall make City aware of any actual or potential
delays in performance of the Contract Services within 48 hours of the cause of such deiay.
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2.4. Assistance From City
To assist Consultant in performing the Contract Services, City shal( furnish to Consultant,
without charge, copies of all available background reports, memoranda, correspondence,
ordinances, legislation, rules and re�ulations, technical data and other information reasonably
requested by Consultant that is relevant to the Contract Services to be provided by Consultant.
III. COMPENSATION ANll EXPENSES
31. Compensation
City shall pay Consultant for the hours spent by Consultant's professional personnel
performing Contract Services, subject to paragraph ;.3 contained herein. City shall also ,
reimburse Consultant for all Subcontract Services authorized by the City pursuant to Section
2.2., hereof. It is understood that tbe amounts payable to Consultant pursuant to the terms of this I
Agreement are not dependent upon thc nature of the conclusions reached or the reports or advice ��
given by Consultant in the course of performing the Contract Services or upon the success or
lack of success of the City's project.
3.2. Expense Reimbursement
Subject to paragraph 3.3, below and in addition to City's payment of the consideration
provided under Section 3.1 hereof City shall rcimburse Consultant for all out-of-pocket
expenses incurred by Consultant in connection with its performance of the Contract Services,
including, but not limited to, long-distance telcphone calls, postage, messengers, travel outside
the Kansas City Metropolitan Area and other communications expenses.
3.3. Maximum Compensation and Reimbursement
Unless otherwise agreed, in w�iting, by the parties, the maximum total amount payable to
Consultant (1) as charges for Contract Services and Subcontract Services pursuant to Section 3.1
hereof; and (2) as reimbursement for out-of-pocket expenses pursuant to Section 3.2 hereof (in
the aggregate, the "Maximum Amount"), shall not exceed Ninety-One Thousand Dollars
($91,000.00).
3.4. Payment Terms
Consultant shall send invoices to City no more frequently than once per month, rcflecting
compensation due for services rendered by Consultant and reimbursement due for expenses
incuned by Consultant. All expenses claimed shall be listed individually and shall be
accompanied by receipts or other applicable documentation. All invoices are payable upon
receipt by City. If payment for an invoice is not received within sixty (60) days of the invoiee
date, Consultant reserves the right to suspend performance of all Contract Services until
Consultant receives all payments due.
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IV. TERMINATION OF AGREEMENT
The City may terminate this Agreement at any time for convenience or cause upon ten
(10) days notice to Consultant. In the event the City terminates for its convenience, City shall
pay Consultant for Contract Services satisfactorily provided by Consultant prior to such
termination, and for all expenses incurred by Consultant prior to such termination in connection
with the performance of the Contract Services (including reimbursement for the actual cost of
any Subcontract Services performed pursuant to Article II, Section 2.2). Under no circumstances
will the Consultant be entitled to anticipated profits, consequential damages or payment for
services not rendcred.
V. MISCELLANEOUS !
5.1 Con�dentiality
Consultant acknowledges that in connection with the performance of its duties hereunder,
Consultant may become aware of internal files, records, reports, memoranda and other data of a
confidential or proprietary nature. Consultant shall not directly or indirectly disclose such
confidential or proprietary information without tbe express written consent of City.
Consultant shall not release to any person, except City's representatives and others
autharized by City, any reports or related matcrials prepared for City pursuant to Consultant's
performance of the Contract Services. All reports and documents prepared, assemblcd or
compiled by Consultant pursuant to the terms of this Agreement are to be considered confidential
and Consultant agrees that it will not, without prior written approval by the City, submit or make
the same available to any individual, agency, public body or organization other than the City.
5.2. Conflict of Interest & Ex Parte Contacts
Consultant states it is currently unaware of any conflict of interest with any party affected
by this Agreement. Consultant agrees that if any conflict of interest or potential conflict of
interest should arise in the future, Consultant shall immediately inform the City.
Consultant states it has not had any prior Ex Parte Contact rcgarding this Agreement with
any Developer who will be the subject of review under the Contract Services, except as
specifically disclosed in writing by Consultant prior to execution of this Agreement. Consultant
will keep City informed of any and all contacts with such Ueveloper(s) during performance of
the Contract Services.
5.3. Assignment
Consultant may not assign this Agrcemcnt, in whole or in part; without prior written
consent of the City, which consent shall be in the sole discretion of Ciry.
5.4. Governing Law
This Agreement, the rights and obligations of the parties and any claims or disputes
relating tl�ereto shall be governed and construed in accordance with the laws of the State of
Missouri.
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.5.5. Compliance with Other Laws, Regulations and Rules
a. Equal Opportunity - Consultant shall not discriminate against any person in the
perfarmance of work under the present Agreement because of race, religion, color,
sex, disability, national origin, ancestry or age.
b. Immigration Law - Consultant acknowledges that Section 285.530, RSMo, prohibits
any business entity or employer from knowingly employing, hiring for employment,
or continuing to employ an unauthorized alien to perform work within the state of
Missouri. Consultant therefore covenants that it is not knowingly in violation of
subsection 1 of Section 285.530, RSMo, and that it will not knowingly empioy, hire
for employment, or continue to employ any unauthorized aliens to perform work
associated with the Contract Services, and that its employees are lawfully eligible to
work in the United States. The Consultant shall, by sworn affidavit and provision of
documentation, affirm its enrollment and participation in a federal work authorization
program with respect to the employees working in connection to the Contract
Services. Consultant shall also sign an affidavit affirming that it does not knowingly
empioy any person who is an unauthorized alien in conncction to the Contract
Services.
5.6. Reports and Documents '�
a. Property and Possession - t�ll reports, studies, analysis, memoranda and related data
and material as may be devcloped during the performance of this Agreement shall be
submitted to and be the exclusive property of the City, which shall have the right to
use the same for any purpose without any further compensation to Consultant.
b. Status of Documents Upon Termination - If this Agreement is terminated far cause
or for any other reason, all tinished or unfinished documents or materials prepared
pursuant to this Agreement shall be immediately transmitted to the Ciry by
Cvnsultant.
5.7.Insurance
General - Consultant shall secure and maintain, throughout the duration of this contract,
insurance (on an occurrence basis unless otherwise agreed to) of such types and in at least such
aniounts as required herein. Consultant shall provide certificates of insurance and renewals
thereof on forms approved by the City. The City shall be notified by receipt of written notice
from the insurer at least thirty (30) days prior to material modification or cancellation of any
policy listed on the Certificate.
Notiee of Claim Reduetion of Policy Limits - Consultant, upon receipt of notice of any claim
in connection with the contract, shall promptly notify the City, providing full details thereof,
including an estimate of the amount of loss or liability.
Consultant shall monitor and promptly notify the City of any reduction in limits of protection
afforded under any policy listed in the Certificate (or otherwise required by the contract) if the
Consultant's limits of protection shall have been impaired or reduced to such extent that the
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limits fall below the minimum amounts required herein. Consultant shall promptly reinstate the
original limits of liability required hereunder and shall furnish evidence thereof to the City. �
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a. General Liability: I
General Aggregate: $500,000 �I
Each Occurrence: $500,000 ��
Policy must include the following:
i) Broad Form Contractual/Contractually Assumed Liability
ii) Independent Contractors
iii) Name City of Riverside as "Additional Insured".
b. Automobile Liability: Policy shall protect the Consultant against claims for bodily
injury and/or property damage arising from the ownership ar use of all owned, hired
and/ar non-owned vehicles and must include protection for either: (i) any auto; OR
(ii) all owned autos (if any), hired autos, and non-owned autos.
Limits:
Each Accident, Combined Single Limits
Bodily Injury and Property Damage: $500,000.00
Name City of Riversidc as "Additional Ins�lred".
c. Workers' Compensation and Employer's Liability: This insurance shall protect the
Consultant against all claims under applicable state workers' compensation laws. The
Consultant sha11 also be protected against claims for injury, disease or death of
employees which, for any reason may not fall within the provisions of a workers'
compensation law. The policy limits shall not be less than the following:
Workers Compensation: Statutory Employer's Liability:
Bodily Injury by Accident $100,000 each accident
Bodily Injury by Disease $500,000 policy limit
Sodily Injury by Disease $100,000 each employee
If Consultani has no employees, a waiver form provided by the City must be
executed.
d. Professional Liability: The Consultant shall maintain throughout the duration of this
Agreement Professional Liability [nsurance in an amount not lcss than One Million
Dollars ($1,000,000), and shall provide the City with certification thereof.
e. Industry Ratings: The City will only accept coverage from an insurance carrier who
offers proof that it:
i) Is licensed to do business in the State of Missouri;
ii) Carries a Best's policyholder rating of A- or better; AND
iii) Carries at least a Class VIII financial rating OR is a company mutually
agreed upon by the City and Consultant.
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Certification of insurance coverage shall be on the City's standard Certificate of Insurance
form or on forms acceptable to the City.
5.8. Quality Assurance
Consultant warrants that all work and service performed pursuant to this �lgreement shall
conform to ar exceed the recognized professional standards prevalent in the field of professional
market and financial feasibility studies. Further, the Consultant warrants that all work and
service performed pursuant to lhis ngreement shall be performed with the professional expertise, '�
skills and kno�vledge of state of thc art procedures and techniques in all relevant subject matters.
The Consultant accordingly shall be capable of performing the necessary consulting and other �
services required herein and possess the ready comprehension of the required subject matter and
the expertise to provide a reliable market and financiat feasibility study for the Contract Services.
5.9. Entire Agreement
This Agreement, including the Exhibits and other documents referred to herein,
constitutes the entire Agreement among the parties with respect to the transactions contemplated
by this Agreement, and it supersedes all prior oral or written agreements, commitments ar
understandin6s with respect to the matters provided for in this Agreement. No amendment,
modification or discharge of this Agreement shall be valid or binding unless set forth in writing
and duly executed by the party against whom enforcement of the amendment, modification or
discharge is sought.
5.10. Notices
All notices, demand, requests or other communications which may be or are required to
be given by any party to any other party pursuant to this Agreement shall be in wmiting and shall
be hand delivered, mailed by first class, registered or certified mail, return receipt requested,
postage prepaid, sent by overnight express mail, postage prepaid, return receipt requested or
transmitted by telegram or facsimile, assessed as follows:
(i) If to Consultant:
Alvarez & Marsal
Charles E. Finch, Managing Director
1100 Walnut Street - Suite 2970
Kansas City, MO 64106
(ii) If to City:
City of Riverside
David Blackburn, City Administrator
2950 NW Vivion Road
Riverside, MO 64150
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Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or sent. Notice shall be
deemed given far all purposes at such time as it is delivered to addressee (with the return receipt,
the delivery receipt, or with respect to a facsimile the answerback being deemed conclusive
evidence of such delivery) or at such time as delivery is refused by the address upon
presentation.
5.11. Future Work
From time-to-time, within the performance period stipulated by this Contract, the City
and Consultant may agree to further work and Consultant and the City may secure the services of
Consultant for additional work. Additional work shall be identified in writing as additional
schedules to and shall become part of this Contract.
5.12 Limitation on Liability
In no event shall Consultant, its affiliates, and their partners, principals. and personnel be
liable to the City, whether a claim be in tort, contract or otherwise, for any amount in excess of
thc total professional fees paid pursuant to this agreement uniess the damages were caused
primarily and directly from the fraud, willful misconduct or gross negligence of Consultant
relating to such services. ln no event shall Consultant or its personnel be liable for any
consequential, special, indirect, incidental, punitive, or exemplary loss, damage, or expense
relating to this Contract (including, without limitation, loss of profit, data, business, goodwill, or
similar damages) unless such damages were caused primarily and directly from the fraud, willful
misconduct or gross negligence of Consultant relating to such services. ln no event shall
Consultant be responsible for damage to computers or electronic media of any type, including
tapes, CDs, DVDs, or hard drives, etc.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
on their behalf, as of the day and year first written above.
ALVAREZ & MARSAL
DISPU'I'E ANALYSIS & FORENSICS LLC CITY OP RNF,RSIDE
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B Mayor Kathleen L. Rose
Title: ManaQing Director Attest:
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City Clerk
Approved as to Form:
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