HomeMy WebLinkAboutAgr 2017-05-08 (Hawthorne Undergrounding Bond Counsel) btradling
Attorneys at Law
STRADLING YOCCA CARLSON&RAUTH,P.C. CALIFORNIA
660 NEWPORT CENTER DRIVE,SUITE 1600 NEWPORT BEACH
NEWPORT BEACH,CA 92660-6422 SACRAMENTO
SYCR.COM SAN DIEGO
ROBERT J.WHALEN SAN FRANCISCO
949.725.4166 SANTA BARBARA
RWHALEN@SYCR.COM _ SANTA MONICA
IVP COLORADO
DENVER
MAY 15 2017 NEVADA
RENO
WASHINGTON
TOWN MANAGERS OF FiCE, SEATTLE
TOWN OF TIBURON
May 8, 2017
Mr. Greg Chanis
Town Manager
Town of Tiburon
1505 Tiburon Boulevard
Tiburon, California 94920
Re: Bond Counsel Agreements
Dear Greg:
Enclosed is a copy of our Bond Counsel Agreement related to the Hawthorne
Undergrounding Assessment District, which I have signed. I have retained one copy for our files. I
look forward to working with you on this matter. Please let me know if you have any questions.
Very truly yours,
STRADLING YOCCA CARLSON &RAUTH
Robert J. Whalen
RJ W:pm
Enclosures
DOCSOC/1810824v 1/200690-0001
BOND COUNSEL AGREEMENT
TOWN OF TIBURON
(Hawthorne Undergrounding Assessment District)
THIS AGREEMENT, made as of this 12th day of December, 2016, by and between the
TOWN OF TIBURON, a municipal corporation organized and existing under the laws of the State of
California (herein "Town") and STRADLING YOCCA CARLSON & RAUTH, a Professional
Corporation (herein"Bond Counsel"):
RECITALS:
A. The Town desires to consider the formation of an assessment district ("Assessment
District"), in order to finance the undergrounding of utilities in a portion of the Town including
Hawthorne Drive and surrounding areas; and
B. The Town desires to retain Bond Counsel to do the necessary legal work hereinafter
outlined, upon the terms and conditions hereinafter set forth, to form the Assessment District and
assist in the issuance of bonds for the Assessment District; and
C. Bond Counsel represents that it is ready, willing and able to perform said legal work;
D. At the request of the Town Manager, Bond Counsel has performed certain work prior
to the date hereof with respect to the proposed Assessment District and will undertake future work
related to the proposed Assessment District all of which will be billed to the Town in accordance
with the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises, and the mutual covenants, terms and
conditions herein contained, the parties agree as follows:
1. SCOPE OF SERVICES
A. BOND COUNSEL SERVICES
The Town retains Bond Counsel to provide, and Bond Counsel agrees to
provide, legal services in connection with the formation of the Assessment District and the issuance
by the Assessment District of bonds to be issued by the Assessment District (the "Assessment
District Bonds"). Such services shall include the rendering of legal opinions (hereinafter called the
"opinions")pertaining to the issuance of Assessment District Bonds to the effect that:
1. The Assessment District Bonds have been properly authorized and
issued and are valid and binding obligations; and
2. The essential sources of security for Assessment District Bonds have
been legally provided; and
DOCSOC/1722665v3/200690-0001
3. Interest on Assessment District Bonds is exempt from California
personal income taxation and is excluded from gross income for
purposes of federal income taxes.
Bond Counsel's services will also include:
i. Researching applicable laws and ordinances relating to the proposed
formation of the Assessment District and the issuance of the
Assessment District Bonds;
ii. Attending conferences and consulting with Town staff and the Town
Attorney regarding such laws, and the need for amendments thereto,
or additional legislation;
iii. Participating in meetings, conferences or discussions with any
financial advisors, underwriters, the assessment engineer or other
experts retained by the Town with respect to the formation of the
Assessment District and the issuance of Assessment District Bonds;
iv. Supervising and preparing documentation of the steps to be taken
with respect to the formation of the Assessment District and the
issuance of Assessment District Bonds, including:
a. Drafting all petitions, resolutions, notices, rules and
regulations and other legal documents required for the
formation of the Assessment District and the issuance of
Assessment District Bonds, and all other documents relating
to the security of Assessment District Bonds, in consultation
with the Town, the Town Attorney, the Town's financial
advisor, underwriter, assessment engineer and other experts;
b. Preparing the record of proceedings for the authorization, sale
and issuance of Assessment District Bonds;
C. Assisting in the preparation of the portions of any official
statement or placement memorandum prepared for the public
sale of Assessment District Bonds which relate to the terms of
the Assessment District Bonds and the firm's legal opinion
delivered with respect to the Bonds;
d. Reviewing the purchase contracts or the bidding documents
relating to the sale of Assessment District Bonds and
participating in the related negotiations;
e. Participating in meetings and other conferences scheduled by
the Town,the Town's financial advisor or the underwriter;
f. Consulting with prospective purchasers, their legal counsel
and rating agencies;
2
DOCSOC/1722665v3/200690-0001
g. Consulting with the Town Attorney concerning any
legislation or litigation which may affect Assessment District
Bonds, the security for Assessment District Bonds, or any
other matter related to the issuance of Assessment District
Bonds;
h. Consulting with any trustee or fiscal agent for Assessment
District Bonds and their counsel;
i. Preparing the form of Assessment District Bonds, and
supervising their production or printing, signing,
authentication and delivery;
j. Rendering the final approving opinion as to the validity of
Assessment District Bonds for use and distribution upon their
issuance; and
k. Rendering a legal opinion to the underwriter or purchaser of
Assessment District Bonds as to the applicability of the
registration requirements of federal securities laws and the
fair and accurate nature of those portions of any Official
Statement prepared in accordance with (c) above.
B. DISCLOSURE COUNSEL SERVICES
In addition to the services set forth in Section A above, Bond Counsel agrees
to prepare the Official Statement for each issue of Assessment District Bonds to be sold to the public
for a fee of$25,000 per issue and to deliver a letter to the underwriter or purchaser to the effect that
Bond Counsel is not aware of any misstatement or omission of a material fact therein.
C. SPECIAL SERVICES
"Special Services" are defined for purposes of this Agreement as services in
addition to the services outlined in Sections A and B above. Special Services will include, but not be
limited to, any litigation regarding the Assessment District or the Assessment District Bonds, work
after a bond closing related to the amendment of bond documents or agreements and special studies
or analyses. Special Services must be authorized in writing by the Town Manager, or his designee.
2. COMPENSATION
The Town agrees to pay Bond Counsel, but only from the sources of funds specified
below, the following amounts as compensation for services rendered by Bond Counsel under this
Agreement:
A. For the services to be rendered under this Agreement relating to the formation
of the Assessment District, it is agreed that Bond Counsel will be paid fees, up to a maximum of
$15,000, based on hours expended prior to the formation of the Assessment District, calculated at the
hourly rates set forth in Exhibit A, which fees shall be paid from amounts paid to the Town by the
property owners within the proposed Assessment District. Such fees will be billed monthly and shall
be payable from amounts advanced by the property owners to the Town within thirty (30) days
3
DOCSOC/1722665v3/200690-0001
following the receipt of each invoice. For the services rendered under Section LA above, Bond
Counsel will be paid a fee of $30,000 for each issue of Assessment District Bonds, which will be
payable only from Assessment District Bond proceeds. For the services to be rendered under
Section 1.13 above, Bond Counsel will be paid the fee set forth therein for each issue of Assessment
District Bonds for which an Official Statement is prepared, which will be payable only from
Assessment District Bond proceeds.
The fees referenced in this Section 2.A assume that Assessment District
Bonds will be issued in calendar year 2017. In the event Assessment District Bonds are not issued
within that time, Bond Counsel reserves the right to make such modifications to the foregoing fees as
the Town and Bond Counsel agree, as justified by reason of increased cost to Bond Counsel and the
then prevailing fees for disclosure counsel and bond counsel services for bonds such as the
Assessment District Bonds.
B. In the event Bond Counsel is requested to perform Special Services as set
forth in Section 1.0 above, Bond Counsel will be paid fees at the hourly rates set forth in Exhibit A,
or in such other manner as is mutually acceptable to the Town and Bond Counsel. Such fees will be
billed monthly and shall be payable exclusively from funds of the Assessment District within thirty
(30) days following the receipt of each invoice.
C. In addition to the fees set forth in paragraphs A and B above, Bond Counsel
shall be reimbursed for the actual cost of any out-of-pocket expenses reasonably incurred by Bond
Counsel in the course of its employment, such as document reproduction, telecommunications
charges, printing costs, filing fees, long-distance telephone calls, messenger services, overnight
delivery services, travel and similar items of expense. Expenses related to the services described in
Section LA incurred prior to the formation of the Assessment District and those related to the
services described in Section 1.0 above will be billed monthly. All expenses incurred in connection
with services rendered under Sections LA and 1.13 above incurred after the formation of the
Assessment District will be billed upon the issuance of the series of Assessment District Bonds to
which they relate.
3. PERSONNEL AND CONTRACT ADMINISTRATION
Town agrees to accept and Bond Counsel agrees to provide the aforementioned
services primarily through Robert J. Whalen, Carlos Villafuerte and Carol L. Lew. If any one of the
above attorneys is unable to provide such services due to death, disability or similar event, Bond
Counsel reserves the right to substitute another of its attorneys, upon approval by the Town Manager,
or his designee, to provide such services; and such substitution shall not alter or affect in any way
Bond Counsel's or the Town's other obligations under this Agreement.
This Agreement will be administered by the Town Manager, or his designee.
4. CONFLICTS OF INTEREST
Bond Counsel represents many of the underwriting firms active in the issuance of
bonds for assessment districts and other municipal financings. The Town hereby provides its
4
D OC S OC/1722665v3/200690-0001
informed written consent to Bond Counsel's representation of such underwriting firms on matters
unrelated to the Assessment District.
5. TERMINATION
A. This Agreement may be terminated without cause by the Town or Bond
Counsel upon thirty(30) days' advance written notice to the other party. Such notification shall state
the effective date of the termination of this Agreement.
B. Bond Counsel reserves the absolute right to withdraw from representing the
Town if, among other things, the Town fails to honor the terms of this Agreement, the Town fails to
cooperate fully or follow Bond Counsel's advice on a material matter, or any fact or circumstance
occurs that would, in Bond Counsel's view, render its continuing representation unlawful or
unethical. If Bond Counsel elects to withdraw, the Town will take all steps necessary to free Bond
Counsel of any obligation to perform further services, including the execution of any documents
necessary to complete such withdrawal, and Bond Counsel will be entitled to be paid at the time of
withdrawal for all services rendered and costs and expenses paid or incurred on the Town's behalf in
accordance with the payment terms set forth in Section 2 above. If necessary in connection with
litigation, Bond Counsel would request leave of court to withdraw.
C. Bond Counsel's representation of the Town will be considered terminated at
the earlier of(i)the Town's termination of its representation, (ii) Bond Counsel's withdrawal from its
representation of the Town, or (iii)the substantial completion by Bond Counsel of its substantive
work for the Town. Unless Bond Counsel has been specifically engaged to perform Special Services
related to the Bonds after their execution and delivery, Bond Counsel's representation of Town with
respect to the Assessment District shall terminate on the date of execution and delivery of the last
series of Assessment District Bonds.
6. ARBITRATION
IN THE EVENT OF A DISPUTE REGARDING FEES, COSTS, OR ANY OTHER
MATTER ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER TO BOND
COUNSEL'S RELATIONSHIP WITH THE TOWN, OR BOND COUNSEL'S OR THE TOWN'S
PERFORMANCE OF THIS AGREEMENT, INCLUDING THE QUALITY OF THE SERVICES
WHICH BOND COUNSEL RENDERS, THE DISPUTE SHALL BE DETERMINED, SETTLED
AND RESOLVED BY CONFIDENTIAL ARBITRATION IN THE TOWN AND COUNTY OF
SAN FRANCISCO, CALIFORNIA. ANY AWARD SHALL BE FINAL, BINDING AND
CONCLUSIVE UPON THE PARTIES, AND A JUDGMENT RENDERED THEREON MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. SHOULD YOU ELECT TO
HAVE ANY FEE DISPUTE ARBITRATED PURSUANT TO NONBINDING ARBITRATION
UNDER STATUTORY OR CASE LAW, THEN SUCH NONBINDING ARBITRATION SHALL
DETERMINE ONLY THE ISSUE OF THE AMOUNT OF FEES PROPERLY CHARGEABLE TO
YOU. ANY OTHER CLAIMS OR DISPUTES BETWEEN US, INCLUDING CLAIMS FOR
PROFESSIONAL NEGLIGENCE, SHALL REMAIN SUBJECT TO BINDING ARBITRATION
PURSUANT TO THIS AGREEMENT.
Arbitration may be demanded by the sending of written notice to the other party. If
arbitration is demanded, within 20 days of the demand the Town shall present a list of five qualified
individuals who would be willing to serve that the Town would find acceptable to act as arbitrator.
5
DOCSOC/1722665v3/200690-0001
To serve as arbitrator, the individual must be a retired judge having served on any federal court or the
California Superior Court or higher court in the State of California. Within 20 days of receiving the
Town's list,Bond Counsel may at its sole discretion (i) select any individual from that list and that
individual shall serve as the arbitrator, or (ii)propose its own list of five individuals for arbitrator. If
Bond Counsel chooses to present a separate list, the Town may within 20 days select any individual
from that list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end
of this process, the Town and Bond Counsel each shall select one individual from its own list and
those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to
the procedures set forth in the California Code of Civil Procedure §§ 1280 et seq., and in that
connection you and we agree that § 1283.05 thereof is applicable to any such arbitration. Nothing
herein shall limit the right of the parties to stipulate and agree to conduct the arbitration pursuant to
the then-current rules of the American Arbitration Association, the Judicial Arbitration & Mediation
Services, or any other agreed-upon arbitration services provider.
Notwithstanding any of the foregoing, the Town shall be entitled to opt out of the
arbitration provisions contained in this Section.
7. MISCELLANEOUS
A. Bond Counsel and the employees of Bond Counsel, in performance of the
Agreement, shall act in an independent capacity and not as officers or agents of the Town.
B. Without the written consent of the Town, this Agreement is not assignable by
Bond Counsel in whole or in part.
C. No alteration or variation of the terms of this Agreement shall be valid unless
in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated
herein shall be binding on any of the parties hereto.
D. In accordance with the requirements of California Business and Professions
Code § 6148, Bond Counsel advises you that the firm maintains professional errors and omissions
insurance coverage applicable to the services to be rendered to the Town.
6
DOCSOC/1722665v3/200690-0001
This Agreement is executed on this 26th day of April, 2017, at Tiburon, California, and
effective as of the 12th day of December, 2016.
TOWN OF TIBURO :
Greg anis, Town Manager
ATTEST:
WMAdmul
ea Stefani, town Clerk
(seal `��Ntt
F, STRADLING YOCCA CARLSON & RAUTH
_ _ _ By:
r�C► Robert J. W a en
����®�.•• a.C)`��� Title: Shareholde ice President
/VIA
APPROVED AS TO FORM:
Ben Stock,Town Attorney
7
EXHIBIT A
Shareholders $475/Hour
Associates $280/Hour
Paralegals $13 5/Hour
DOCSOC/1722665v3/200690-0001