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HomeMy WebLinkAboutAgr 2016-06-13 (Wulff Hansen)AMENDMENT Town of Tiburon - Wulff Hansen & Co 2016 Refinancing of existing Undergrounding Assessment Districts Underwriting Agreement dated October 20, 2015 The Town and WH (the "Parties") entered into the above referenced Agreement on October 20, 2015. On June 1, 2016, the Town formed the Tiburon Public Financing Authority that will issue the Financing Authority refunding revenue bonds (the "Bonds") that are intended to refinance the original assessment districts referenced in the Agreement and set forth below: • 1999 Main Street District • 2001 Stewart Drive Undergrounding District • 2005 Del Mar Valley Utility Undergrounding District • 2010 Del Mar Supplemental Undergrounding District • 2005 Lyford Cove Undergrounding District 1&2 • 2006 Lyford Cove Supplemental Undergrounding District Since the Town will not be the issuer of the Bonds, it is necessary for the above referenced Agreement to be amended to include the Tiburon Public Financing Authority as the contracting entity for the Town and as the issuer of the Bonds. All other terms of the Agreement remain the same. This Amendm below. accepted and agreed to by the undersigned on the date set forth Greg Chanis Tibur Public Financing Authority Approved: Ben Stock Town Attorney Chris Charles Wulff Hansen & Co. 3 t -/--c Date TOWN OF TIBURON — WULFF HANSEN & CO. 2016 Refinancing of existing Undergrounding Assessment Districts UNDERWRITING AGREEMENT October 20, 2015 Peggy Curran Town Manager Town of Tiburon 1505 Tiburon Blvd Tiburon, CA 94920 Dear Ms. Curran: The undersigned, Wulff, Hansen & Co., ("WH") acting on its own behalf and not as a fiduciary or agent of any other party, offers to enter into the following agreement (this "Agreement") with respect to the above referenced 2016 Refinancing of existing Assessment Districts (the "Financings") with the Town of Tiburon (the "Town"), which, upon acceptance by the Town, will be binding upon the Town and WH. The Town has reviewed WH's previous experience and expertise, and desires to retain WH to render services as described in this agreement. Upon the terms and conditions and upon the basis of the representations, warranties and agreements set forth herein, WH and the Town hereby agree as follows: 1. Underwriting (i) WH will serve as the exclusive Underwriter for the Town in connection with the underwriting, distribution and sale of bonds to fund its 2016 Refinancing of existing Assessment Districts. Specifics of the Underwriting of each Financing will be provided as they become available. The 2016 Refinancing of existing Assessment Districts Financing may be made up of several different existing assessment districts in the Town, each of which would be a separate Component. The Town may decide to include all or only some of the existing assessment districts as Components, in the 2016 Refinancing of existing Assessment Districts Financing. The specific title of any Financing as well as Components that will be included in the 2016 Refinancing of existing Assessment District Financing are yet to be determined by the Town As compensation for its services hereunder, WH shall receive a fee of one and ninety-five hundreths percent (1.95%) of the par amount of bonds sold per separate Financing transaction. All of said compensation shall be contingent on successful completion of the financing(s) to which such compensation relates. In the event Components of the 2016 Refinancing of existing Assessment Districts Financing are not funded, all fees related to the unfunded Components of the transaction will be waived. The above fee does not include any services WH may render in the future to the Town with respect to any offering or placement of municipal securities other than the 2016 Refinancing of existing Assessment Districts Financing. Town of Tiburon 2016 Udgd Reassess Refinancing UW Agmt 't (11) The Town understands that WH will be acting as Underwriter for the Town in the distribution and sale of the 2016 Refinancing of existing Assessment Districts bonds and agrees that, in connection therewith, WH will commit to purchase the 2016 Refinancing of existing Assessment Districts bonds, and the Town retains WH as the exclusive underwriter of the Town to purchase offered bonds on an all -or -none basis. (iii) The Town acknowledges and agrees that as an Underwriter in connection with the 2016 Refinancing of existing Assessment Districts bonds WH will be acting on its own behalf in a commercial, arm's-length transaction and not as a municipal financial advisor or fiduciary to the Town regardless of whether WH has acted or is currently acting as such on a separate transaction. Town acknowledges that WH has no other obligation to Town except as described in this Agreement and that Town has and will continue to consult with its legal and other professional advisors, including municipal advisors if it so desires, to the extent it deems appropriate in connection with underwriting the Financings. The Town agrees that it will not claim that WH has rendered municipal advisory services of any nature or respect, or owes a fiduciary or similar duty to the Town in connection with the Financings or the process leading thereto. WH is not acting as a municipal advisor as defined in Section 15B of the Securities Exchange Act of 1934, as amended, in connection with the matters contemplated by this Agreement. Town understands that as Underwriter, WH can only offer factual data and limited advice related only to structuring of a specific transaction undertaken by the Town. Wulff, Hansen has not and cannot offer advice to Town as to whether the Financings should occur at all or, if Town chooses to proceed with one or more of the Financings, which Components should or should not be included in the 2016 Refinancing of existing Assessment Districts bonds Financing transaction. 2. Covenants, Representations and Warranties of the Town. The Town represents, warrants and agrees as follows: (i) the Town is a duly organized, validly existing and operating Town pursuant to the laws of the State of California (the "State") with full power and authority to observe and perform the covenants and agreements set forth in this Agreement; (ii) the Town (a) has granted authority to the Town Manager allowing the Town Manager to enter into the execution and delivery of this Agreement, and the performance of its obligations contained herein, and (b) such authority is in full force and effect and has not been amended or supplemented as of the date hereof; (iii) any certificate signed by an authorized officer of the Town and delivered to WH shall be deemed a representation and warranty by the Town in connection with this Agreement to WH as to the statements made therein for the purposes for which such statements are made; and (iv) The Town agrees promptly from time to time to take such action as WH may reasonably request to qualify, if such qualification is necessary, the 2016 Refinancing of existing Assessment Districts bonds for offering and placement as an Underwriting under the securities laws of such States as WH may reasonably request, and the Town further agrees to comply with such laws so as to permit such underwriting, distribution and sale of the bonds. Any applicable filings will be prepared by the Town's counsel, whose fees and disbursements in connection therewith shall be for the account of, and paid by, the Town. Town of Tiburon 2016 Udgd Reassess Refinancing UW Agmt 3. Reliance. The Town recognizes that, in providing services under this Agreement, WH will rely upon and assume the accuracy and completeness of the financial, accounting, tax and other information discussed with or reviewed by WH for such purpose, and WH does not assume responsibility for the accuracy and completeness thereof. WH will have no obligation to conduct any independent evaluation or appraisal of the assets or the liabilities of the Town or any other party or to advise or opine on related solvency issues. Nothing in this Agreement is intended to confer upon any other person (including creditors, employees or other constituencies of the Town) any rights or remedies hereunder or by reason hereof. 4. Termination. Unless extended by both parties, this Agreement shall terminate on the earlier of December 31, 2017 or the completed underwriting and funding of the 2016 Refinancing of existing Assessment Districts Financing, whichever first occurs. 5. Notices. Any notice or other communication to be given to any of the parties to this Agreement may be given by delivering the same in writing as follows: to the Town at the address set forth above; and to WH at Wulff, Hansen & Co., 351 California Street, Suite 1000, San Francisco, CA 94104, Attn: Public Finance Dept.. 6. Survival of Representations, Warranties and Agreements. This Agreement is made solely for the benefit of the Town and WH, and no other person shall acquire or have any right hereunder or by virtue hereof. All of the representations, warranties and agreements of the Town contained in this Agreement shall remain operative and in full force and effect regardless of delivery of any payment for the 2016 Refinancing of existing Assessment Districts Financing. 7. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 8. Effectiveness. This Agreement shall become effective upon approval of the signature of a duly authorized signatory of the Town on the signature page hereof, and shall be valid and enforceable as of the date of the Agreement. This Agreement may be executed by facsimile transmission and in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. 9. Governing Law. This Agreement shall be ,governed by and construed in accordance with the laws of the State of California. Town of Tiburon 2016 Udgd Reassess Refinancing UW Agmt 10. Supersedence. This Agreement supersedes and replaces all prior negotiations, agreements and understandings between the parties hereto in relation to the underwriting of the 2016 Refinancing of existing Assessment Districts bonds. Very truly yours, WULFF HANSEN & CO. By: -_•' Autki5ri ez d Representative The foregoing is hereby agreed to and accepted: TOWN OF TIBURON By: Title: vn Manager APPROVE® AS TO FORM TOWN ATTORNEY TOWN OF TIBURON Town of Tiburon 2016 Udgd Reassess. Refinancing UW Amt