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HomeMy WebLinkAboutAgr 2017-05-03 (Stradling Bond Counsel Virginia Undergrounding) Stradfing 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 RECEIVED SANTA MONICA COLORADO DENVER JUN 0 5 2017 NEVADA RENO TONNA MANAGERS OFFICE WASHINGTON TOWN OF TIBURON SEATTLE May 31, 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 Virginia Drive Assessment District reflecting the correct Town Clerk's name, which I have signed. I have kept one original for our files. Please let me know if you have any questions. Very truly yours, STRADLING YOCCA CARLSON &RAUTH Robert J. Whalen RJW:pm Enclosures DOCSOC/1815766v l/200690-0002 BOND COUNSEL AGREEMENT TOWN OF TIBURON (Virginia Assessment District) THIS AGREEMENT, made as of this 3rd day of May, 2017, 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 along a portion of Virginia Drive located within the Town boundaries; 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/1807898v 1/200690-0002 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 fon-nation 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/1807898v 1/200690-0002 g. Consulting with counsel to the Town 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 for a fee of$25,000 per issue. 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 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 LB above, Bond Counsel will be paid the fee set f6rth 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. 3 DOCSOC/1807898v 1/200690-0002 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 LC 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 The 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 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. 4 DOCSOC/1807898v 1/200690-0002 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. 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 5 DOC SOC/1807898v 1/200690-0002 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/1807898v 1/200690-0002 This Agreement is executed on this day of April, 2017, at Tiburon, California, and effective as of the day of April, 2017. TOWN OF TIBURON: Greg C an , Town Manager ATTEST: ea Ste ani "Alulahj., OF T1 0 °� '� STRADLING YOCCA CARLSON&RAUTH a By: ®�®® ° Robert J. Wh Title: Shareholder/ e President APPROVED AS TO FORM: Ben Stock, Town Attorney 7 EXHIBIT A Shareholders $475/Hour Associates $280/Hour Paralegals $13 5/Hour D OC S OC/1807898v 1/200690-0002