HomeMy WebLinkAboutAgr 2001-01-09 (Wulff, Hansen)
INVESTMENT BANKING AGREEMENT
TOWN OF TIBURON - WULFF, HANSEN & CO.
This is an agreement between the Town of Tiburon, a municipal corporation of the State of
California, referred to as "Town", and Wulff, Hansen & Co. ("WH"), an investment banking firm
registered as a broker/dealer with the Securities and Exchange Commission and the State of
California and a member of the National Association of Securities Dealers, Inc., with its main
office in San Francisco, California, referred to as "Investment Banker", for performing investment
banking services and underwriting bonds to be issued by the Town of Tiburon that are sold
through negotiated sales, and consists of the following terms and conditions (the "Agreement").
This Agreement relates to the proposed Upper Stewart Drive Undergrounding Assessment
District (the "District").
1.0 Services of Investment Banker
1.1 Investment Banker agrees to perform the following investment banking services in
connection with underwriting each negotiated sale (whether in one or more phases) of bonds
including notes or other evidence of indebtedness (the "Bonds") to provide financing for the
District by the Town of Tiburon, Marin County, California.
(a) Attendance at all public meetings of Town at which matters relating to the District and/or
the Bonds are considered, except routine matters;
(b) Attendance at,Town staff meetings, or meeting with property owners relating to the
District, upon the request of the Town after reasonable notice;
(c) Work with affected property owners, Town staff, and Town Council members to conceive
the structure, timing, terms, and other similar matters relating to the Bonds; and coordinate a
financing program acceptable to the property owners, Town, Investment Banker, and investors;
(d) Telephone consultation with staff members and property owners to answer questions
about the Bonds and related matters;
Town of Tiburon
Investment Banking Agreement
Page 2 of 5
(e) Conduct the Investment Banker's due diligence investigation relative to the Bond offering
and Disclosure Documents (i.e., Official Statement, Offering Statement or memorandum, or
similar document, hereinafter collectively referred to as "Disclosure Documents") and prepare
Disclosure Documents in conjunction with disclosure counsel, if appropriate, for the Bond issue
for Town review and approval;
(f) Assist the Town in its selection of professional advisors (e.g., bond counsel, special tax
rate consultant, engineer of work) relative to the Bonds, if necessary;
(g) Assist the Town's bond counsel and any special consultants in structuring of the
financing and recommending specific terms and conditions affecting the Bonds;
(h) Evaluation of possibilities of and need to obtain credit enhancements and/or rating of the
Bonds;
( i) At least one day prior to the submission of a formal offer to Town for purchase of the
Bonds, Investment Banker will indicate to Town the interest rate or rates, the purchase price to be
paid to the Town, and the public offering price of the Bonds which Investment Banker then
estimates will be included in an offer. Said terms will be accompanied by recent comparative
sales of similar issues, if any, known to Investment Banker and provided such information is
available to Investment Banker, to clarify market levels of the Bond sale.
(j) Arrangements for underwriting of the Bonds, at negotiated sale pursuant to paragraphs 3
and 4 below.
1.2 The service of Investment Banker under this Agreement shall not include the following:
(a), Legal services of any kind;
(b) Engineering services of any kind;
(c) Financial advisory or financial consulting services.
2.0 Agreement of Town
In consideration of the Agreement of Investment Banker to provide the underwriting services set
forth in paragraph 1, the Town agrees as follows:
2.1 Town will work with Investment Banker exclusively during the term of this Agreement with
respect to the Bonds unless other arrangements are mutually agreed to in writing by both parties.
Town of Tiburon
Investment Banking Agreement
Page 3 of 5
2.2 Town will cooperate with Investment Banker in all respects relating to the services being
rendered by Investment Banker in connection with the proposed Bonds, and will assist
Investment Banker in obtaining information regarding the District and will provide said information
to the extent practicable.
2.3 Town will permit Investment Banker to participate in or erect signage at the site which is
subject to the District project.
3.0 Purchase and Sale of Bonds
3.1 At the time designated by the Town for sale of a Bond issue during the term of this
Agreement, Investment Banker, unless it believes in good faith that the Bonds are not marketable
because of market conditions or other conditions beyond Investment Banker's control, will submit
an offer to Town to purchase the Bonds, subject to pertinent resolutions, the Official Statement,
and all other necessary documents, approvals, and proceedings governing or relating to such
Bonds having been determined by bond counsel, the Town and the Investment Banker to be
satisfactory in all respects for financing purposes. The Investment Banker may, at its option, form
a group of investment banking firms ("Underwriting Group") for the purpose of making the offer
and underwriting and selling the Bonds, and references to Investment Banker herein will include
such Underwriting Group as the context requires.
3.2 Provided the purchase price, interest rate, and public offering price are determined in
good faith to be satisfactory to Town and to Investment Banker, Town will agree to sell to
Investment Banker and Investment Banker will agree to purchase the Bonds on a mutually
agreeable closing date at such price and interest rate for sale to the public at such public offering
price, or at such otheC public offering price or prices as Investment Banker determines in good
faith to be appropriate in view of market conditions and other factors affecting price at the time of
the public offering; provided that Investment Banker will not be obligated to purchase the Bonds
on the closing date if it determines in good faith that the Bonds are not marketable as a result of
market conditions or because of conditions beyond the control of Investment Banker. If
Investment Banker decides not to purchase the Bonds, Town shall be entitled to work with
another underwriter of its choice in marketing the particular Bonds at issue.
3.3 For each separate Bond issue, the purchase price to be paid to the Town by the
Investment Banker will be set so that the difference (i.e., underwriting discount) between the
purchase price and the total principal amount of the Bonds being issued will be at one and three
quarters percent (1.75%) of that portion of the Bonds being sold.
Town of Tiburon
Investment Banking Agreement
Page 4 of 5
4.0 Investment Banking Compensation and Expenses
4.1 Town shall be billed for and pay directly, whether or not Bonds are sold or delivered
(unless payment of such fees and expenses is contingent on the Bonds being sold and
delivered), the fees and expenses of its legal counsel, bond counsel, special tax rate consultants,
engineers, and any other experts retained by the Town or retained by Investment Banker on
behalf of the Town (e.g., bond paying agent, arbitrage calculations, opinion, etc.) unless the Town
has otherwise directly agreed with such providers of services. The Town also shall pay, whether
or not the Bonds are sold or delivered, all costs customarily paid in connection with issuance of
bonds including printing the Bonds and other documents, including preparation and printing of the
Disclosure Documents.
4.2 Contingent on the Bonds being sold to and purchased by Investment Banker, Town will
reimburse Investment Banker from the Bond proceeds for Investment Banker's direct out-of-
pocket costs and expenses incurred in rendering the services described in this Agreement in
connection with each Bond issue including but not limited to those set forth below. Said costs
and expenses are estimated not to exceed $2,500 per Bond issue depending on Bond issue size
(subject to normal inflationary increases during the term of this Agreement):
1. Transportation, meals, and lodging;
2. Long distance telephone calls;
3. Photocopying;
4. Facsimile transmission;
5. Photographic work;
6. Regulatory Agency Fees; and
7. Preparation and printing of Bond Disclosure Documents.
4.3 Reimbursem~nt for costs is payable on Investment Banker's payment for the Bonds,
subject to Investment Banker's submission of an itemized invoice.
4.4 It is understood and agreed that Town shall not be required to pay a fee or other
compensation to Investment Banker for services provided by Investment Banker to Town under
this Agreement. It is understood that Investment Banker's compensation or profit is to come from
the difference between the price paid to the Town for each issue of Bonds and the public offering
price thereof and that Investment Banker will receive no fee or other compensation from the
Town. It also is understood and agreed that Town will only reimburse Investment Banker's direct
out-of-pocket costs for a bond issue if the sale of the Bonds is completed.
Town of Tiburon
Investment Banking Agreement
Page 5 of 5
5.0 Certification - No Conflict
5.1 Investment Banker certifies that it has no interest, either direct or contingent, in any
property or contract arising from or affected by the Bonds with the Town of Tiburon, except as
Investment Banker under this Agreement.
6.0 Termination of Agreement
6.1 The Town may terminate this Agreement with Investment Banker should Investment
Banker fail to maintain its registration in good standing with the Securities and Exchange
Commission, the State of California and its clear record of membership with the National
Association of Securities Dealers, Inc.
7.0 Classification of Relationship
9.1 It is expressly understood and agreed and Town hereby recognizes that in performing its
activities, Investment Banker is acting solely on its own behalf and not on behalf of the Town and
that any proposal for financing will be to purchase Bonds from the Town for its own account for
resale. Nothing herein shall be construed to make the Investment Banker an employee or
financing, fiscal, or other advisor of or consultant to the Town, or to establish any financing
advisory or fiduciary relationship between the Town and the Investment Banker.
WHEREFORE, the Parties have executed this Agreement as of the q Tlt day of January, 2001.
WULFF, HANSEN & CO.
, Mark Pressman
BY:
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