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HomeMy WebLinkAboutAgr 2010-04-26 (Sam Sperry/Meyers, Nave)m e y e r s I n a v e riback silver & wilson professional law corporation Samuel A. Sperry Attorney at Law 510.808.2000 AGREEMENT FOR LEGAL SERVICES Town of Tiburon Del Mar Utility Undergrounding Assessment District This agreement for legal services (this "Agreement") is by and between the Town of Tiburon (the "Town") and Meyers, Nave, Riback, Silver & Wilson, a Professional Law Corporation ("Meyers Nave'), Attorneys at Law, Oakland, California. The Town retains Meyers Nave to provide special counsel and bond counsel legal services to the Town in connection with the existing Del Mar Utility Undergrounding Assessment District (the "Original Assessment District") and the existing Del Mar Utility Undergrounding Supplemental Assessment District (the "Supplemental Assessment District," and collectively with the Original Assessment District, the "Existing Assessment Districts"), a proposed new Del Mar Utility Undergrounding Supplemental Assessment District (the "New Supplemental Assessment District") and the related issuance, sale and delivery of limited obligation improvement bonds (the "Bonds") upon the security of unpaid new supplemental assessments of the New Supplement Assessment District (if successfully established) to finance a portion of the cost of a project (the "Project") of undergrounding existing overhead utility facilities and related appurtenant work and improvements within or immediately adjacent to the Assessment District. This Agreement sets forth the terms and conditions of the engagement of Meyers Nave concerning the legal services Meyers Nave will provide and the compensation arrangements for those services. 1. Scope of Engagement. Meyers Nave will provide the legal services outlined in Attachment 1, which also describes (a) items which are expressly excluded and (b) items to be provided by the Town, whether directly or through others retained by the Town for such purposes. Meyers Nave's work is limited to the services described, unless a separate written agreement between Meyers Nave and the Town is established respecting any of the excluded services. A letter confirming such additional work shall bring such work within the scope of this Agreement. The services of Meyers Nave under this Agreement will be provided primarily by Samuel A. Sperry, Attorney of Counsel, with assistance from time to time by Stephanie Downs. Associate Attorney, providing services under the supervision of Mr. Sperry. In addition, Meyers Nave may utilize the services of Perry Israel respecting federal income tax considerations pertaining to the Bonds, as further described in paragraph 9 below. 2. Compensation. As compensation for Meyers Nave's services, the Town shall compensate Meyers Nave as follows: (a) Legal Fees and Expense Reimbursement for Phase 1. For all work performed under this Agreement and described in Attachment 1 as the "Phase 1 Work," Meyers Nave shall be paid legal fees at the hourly rates assigned to the attorneys performing the work, up to a cap of $5,000, and shall be 55512th Street, Suite 1500 I Oakland, California 94607 1 tel 510.8011 1 fax 510.444.1106 1 www.meyersnave.com LOS ANGELES • OAKLAND • SACRAMENTO • SAN FRANCISCO • SANTA ROSA reimbursed customary out-of-pocket expenses (pertaining primarily to car travel, bridge tolls and parking, photocopies and express delivery charges). For 2010, the hourly rate assigned to Mr. Sperry is $300 and to Ms. Downs is $250. It is expressly agreed that, in the event that attorneys performing this work are requested to attend meetings away from Meyers Nave's offices in Oakland, whether in Tiburon or other destination outside of Oakland, Meyers Nave shall be entitled to bill for two hours of round trip travel time for each such trip. In the event that the $5,000 cap is reached prior to completion of the Phase 1 Work, the parties hereto shall negotiate in good faith for a mutually-acceptable increase in the cap, and in the event that the parties are unable to reach agreement in an increase, either party shall be entitled to terminate this Agreement in accordance with paragraph 4 below. Meyers Nave shall be entitled to render invoices for accrued legal fees and expenses on a monthly basis, and absent any question respecting an invoice, each such invoice shall be paid within 45 days of receipt by the Town. (b) Legal Fees and Reimbursement of Expenses for Phase 2. For all work performed under this Agreement and described in Attachment 1 as the "Phase 2 Work," Meyers Nave shall be paid legal fees and reimbursed its expenses as follows: (i) For all work performed in furtherance of the establishment of the New Supplemental Assessment District, the compensation provisions of subparagraph (a) immediately above pertaining to the Phase 1 Work shall apply, but with a separate initial cap of $10,000 for the monthly billable portion of this Phase 2 Work. The monthly billable portion of Phase 2 shall be deemed concluded when, upon the conclusion of the public hearing for the establishment of the proposed New Supplemental Assessment District, the Town Council acts to either (A) approve the engineer's report and levy the new supplemental assessments or (B) abandon the proceedings. (ii) In the event that the New Supplemental Assessment District is established and the Town Council determines to proceed with issuance of bonds upon the security of the unpaid new supplemental assessments (the "Bonds"), for all work performed in furtherance of authorization, issuance, sale and delivery of the Bonds, Meyers Nave shall be paid legal fees in an amount equal to two percent of the first $1.0 million principal amount of Bonds, plus one percent of the next $4.0 million principal amount of Bonds, plus one-half of one percent of the principal amount of Bonds, if any, exceeding $5.0 million; provided that the minimum amount of legal fees for this bond issuance portion of Phase 2 shall be $25,000. Payment of legal fees and expenses under this subparagraph (b)(ii) shall be entirely contingent upon receipt by the Town of either (a) sufficient proceeds of sale of the Bonds or (b) sufficient cash payments of assessments from property owners, and said amount shall be payable forthwith following such receipt upon presentation of an invoice by Meyers Nave. 3. Conflict of Interest. Meyers Nave certifies that it has no interest, either direct or contingent, in any property or contract arising from or affected by either the Existing Assessment Districts or the New Supplemental Assessment District or the Bonds, except as special legal counsel or bond counsel to the Town under this Agreement; nor to the best knowledge of Meyers Nave does Meyers Nave represent any owner of property within any of the Assessment Districts (whether existing or proposed new), and Meyers Nave has not received a fee or other form of compensation from any source for services connected with the Project. Meyers Nave has provided legal services to other local governmental agencies that include counties, cities, redevelopment agencies, special districts and other political subdivisions, as well as departments and agencies of the foregoing. Meyers Nave is now providing services for these clients and expects to continue to do so in the future. The Town is aware of Meyers Nave's ongoing relationships with such entities. No conflict is currently perceived to exist from such representations. To the extent that any actual conflict is perceived to arise from such relationships, Meyers Nave will apprise the Town of such conflict and, after reasonable review and consideration, the Town will inform Meyers Nave whether it will waive such conflict. 4. Termination of Services. Either party may terminate the services of Meyers Nave at any time by written notice. After receiving such notice (if Town termination) or after giving such notice (if Meyers Nave termination), Meyers Nave will cease providing services. In the event of such termination, whether with or without cause, Meyers Nave shall be entitled to compensation consisting of (a) legal fees for all time expended prior to receipt of the Town's notice of termination on hourly-compensable services at the hourly rates assigned to the personnel who have provided services under this Agreement and (b) reimbursement of out-of-pocket expenses as outlined in paragraph 2 above; provided that the amount of legal fees payable pursuant to this paragraph 4 shall not exceed the combined initial caps for the hourly-compensable work, namely $15,000 (meaning the $5,000 for Phase 1 and the $10,000 for the monthly billable portion of Phase 2). Payment of compensation following termination pursuant to this paragraph 4 shall be due and payable to Meyers Nave within 45 days of submission to the Town of an invoice respecting same. 5. Insurance. During the term of this engagement, Meyers Nave shall take out and maintain general liability and property damage insurance in amounts of not less than $1,000,000; professional errors and omissions insurance, in amounts not less than $2,000,000 per occurrence and $4,000,000 aggregate, which insurance may not be canceled or reduced in required limits of liability unless at least ten days advance written notice be given to the Town. 6. No Guarantee of Outcome. Any comments made by Meyers Nave about the potential outcome of this matter are expressions of opinion only and are not guarantees or promises about any outcome or results, including but not limited to successful formation of the New Supplemental Assessment District and/or successful issuance, sale and delivery of the Bonds. Without limiting the generality of the foregoing, the parties are aware that alternative legal structures, including but not limited to a community facilities district pursuant to the Mello-Roos Community Facilities Act of 1982, are available to provide the financing sought to be provided by the New Supplemental Assessment District and the Bonds, and the Town has selected the New Supplemental Assessment District structure after consideration of the pros and cons of the alternative structures. 7. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Alameda County, California or in the Federal District Court for the Northern District of California. 8. Entire Agreement; Full Understanding; Modifications in Writing. This Agreement contains the entire agreement about this engagement. Any modifications or additions to this Agreement must be made in writing. 9. Joint Representation. To assure the availability of federal tax law expertise on public finance matters when needed for our clients, our firm maintains a consulting arrangement with Perry Israel of the Law Office of Perry Israel, Sacramento, California, respecting federal income tax considerations pertaining to the Bonds, with primary emphasis on the tax-exempt status of interest payments made by our public agency clients to their bondholders. Based on our understanding that (a) the Town will contract for all components of the Project, which will be located within public streets, rights-of-way or easements of the Town, and (b) any individual service connection work to be performed on the private property of utility system users or customers in the New Supplemental Assessment District will be contracted for and paid for by the owner or owners of such private property, with no use of Bond proceeds to finance any portion of such private service connection work, we do not anticipate the need to consult with Mr. Israel with respect to any aspect of the Bonds. In the event of any change of circumstance with respect the understanding set forth in the foregoing sentence of this paragraph 9 which presents possible issues or concerns with respect to the tax-exempt status of the Bonds under federal income tax law, we will consult Mr. Israel as necessary to secure guidance with respect to such issues or concerns, with notice to you that we are seeking such guidance, and Mr. Israel's fees for such consultation will be paid by Meyers Nave and then added to the next invoice submitted by Meyers Nave to the Town and payable on the same terms as hourly-compensable work performed by Meyers Nave pursuant to paragraph 2 above. Mr. Israel's hourly rate for 2010 is $500 per hour. Because Mr. Israel is deemed an independent contractor under the applicable provisions of the tax laws and not an employee of our firm, we want your consent to any consultation with Mr. Israel that we deem necessary. You are consenting by signing this Agreement. TOWN OF TIBURON By ~~lure ~~tcA_ 77Lr, Approved as to Form: By Ann R. Danforth Town Attorney MEYERS, NAVE, RIBACK, SILVER & WILSON, By 1408527.1 Samuel A. Sperry ~ 2 ~ ZlJld ATTACHMENT1 Scope of Legal Services Exclusions (a) Phase 1 Work. The focus of the Phase 1 Work, as described in more detail in this subparagraph (a), will be the implementation of a court-approved settlement agreement of litigation pertaining to the Town's original Del Mar Valley Utility Undergrounding Assessment District (the "Original Assessment District") and the Town's Del Mar Valley Utility Undergrounding Supplemental Assessment District (the "Existing Supplemental Assessment District"), consisting of modification of the Original Assessment District to exclude certain prescribed parcels therefrom and abandonment of the Supplemental Assessment District. The services for the Phase 1 Work will include: (i) preparation of a resolution ordering a change of proceedings for the Original Assessment District, without notice or hearing (the "Change Proceedings'), pursuant to Sections 10351 and 10352(b) of the Municipal Improvement Act of 1913 (Sections 10000 and following, California Streets and Highways Code; hereafter the 1913 Act"), to reduce to zero the assessments levied on certain prescribed parcels (the "Parcels to be Deleted") generally located within the Original Assessment District on West Hawthorne Drive and on Hacienda Drive, to reduce the scope of the utility undergrounding project to exclude those portions pertaining to the Parcels to be Deleted, and to revise the boundary of the Original Assessment District to exclude the Parcels to be Deleted; (ii) preparation of a resolution abandoning the Existing Supplemental Assessment District, without notice or hearing (the "Abandonment Proceedings"), pursuant to Sections 10351 and 10352(b) of the 1913 Act; (iii) upon request of the Town with reasonable notice, consultation with the Town Attorney, participation in one or information meetings with the owners of property within the Original Assessment District and the Existing Supplemental Assessment District and other interested persons, and attendance at one or meetings of the Town Council at which the proposed Change Proceedings and/or Abandonment Proceedings will be discussed or considered; and (iv) preparation of appropriate instruments for recordation in the official records of the Marin County Recorder to discharge both the original assessment lien from the Parcels to be Deleted from the Original Assessment District and the supplemental assessment lien from all of the parcels within the Existing Supplemental Assessment District. (b) Phase 2 Work. The focus of the Phase 2 Work, as described in more detail in this subparagraph (b), will be proceedings for establishment of a proposed new assessment district (the "New Supplemental Assessment District"), coterminous with the reduced Original Assessment District, to be established pursuant to the 1913 Act, with the intention to issue limited obligation improvement bonds (the "Bonds") pursuant to the Improvement Bond Act of 1915 (the "1915 Act," Sections 8500 and following of the California Streets and Highways Code) upon the security of the unpaid new supplemental assessments to provide additional funds to finance completion of the Project of the reduced Original Assessment District and the related incidental expenses of the proceedings and costs of issuance of the Bonds. The services of the Phase 2 Work will include: (i) Establishment of New Supplemental Assessment District. (A) preparation of the resolutions, notices, certificates and other documents required by the 1913 Act, Section 4 of Article XIIID of the California Constitution and Section 53753 of the California Government Code for the establishment of the proposed New Supplement Assessment District, to and including the resolution determining supplemental assessments remaining unpaid; and (B) upon request of the Town with reasonable notice, consultation with the Town Attorney and attendance at meetings or hearings of the Town Council, information meetings for the affected property owners and working group meetings or conference calls. (C) Expressly excluded from Meyers Nave's Services Under This Subparagraph (b)(i). The parties expressly acknowledge that Meyers Nave's services with respect to the establishment of the proposed New Supplemental Assessment District shall not include preparation of the boundary map, the written engineer's report (including the assessment diagram), the individual assessment ballots to be mailed along with the notice of hearing to the affected property owners (including the mailing list and the actual mailing of the ballots and notice of hearing), the list of paid and unpaid supplemental assessments following the expiration of the cash payment period pertaining to the same, and the recording with the Marin County Recorder of the boundary map, the assessment diagram and the notice of assessment, all of which shall be the responsibility of the Town or others retained by the Town to prepare such items. (ii) Issuance, Sale and Delivery of the Bonds. (A) assuming that the Town succeeds in the establishment of the New Supplemental Assessment District, preparation of a resolution authorizing issuance of the Bonds and approving the sale of the Bonds, and following a successful sale of the Bonds, whether by public offering through the services of an underwriter or by private placement through the services of a placement agent, preparation of the Bonds and customary closing documents to be executed by or on behalf of the Town and required to effect delivery of the Bonds (including the Tax Certificate) and coordination of the closing; (B) rendition of Meyers Nave's customary final legal opinion on the validity of the Bonds and the tax-exempt status of interest thereon; and (C) preparation of a loose-leaf closing transcript for the Town and such other participants as designated by the Town. (D) Expressly excluded from Meyers Nave's Services Under This Subparagraph (b)(ii). The parties expressly acknowledge that Meyers Nave's services with respect to the issuance, sale and delivery of the Bonds shall not include preparation of the bond purchase contract or notice of sale of the Bonds, as the case may be, the Preliminary Official Statement and the Official Statement to be derived therefrom (or, in the alternative, the Private Placement Memorandum if the Bonds are sold via a private placement), and the continuing disclosure certificate or agreement of the Town, all of which shall be the responsibility of the Town or others retained by the Town to prepare such items. Meyers Nave's services are limited to those specifically set forth above. Meyers Nave's services do not include representation of the Town or any other party to the transaction in any litigation or other legal or administrative proceedings involving any of the New Supplemental Assessment District, the Bonds or any related matter. Additionally, Meyers Nave services also do not include any responsibility for any aspect of the utility undergrounding project (the "Project") or the implementation of the Project, including but not limited to title to or perfection of security interests in real or personal property which may be required for the Project, satisfaction of the California Environmental Quality Act with respect to the Project, the plans, specifications and contract documents for the Project, for solicitation of sealed bids for the Project or matters pertaining to the administration of the contract or contracts for construction and installation of the Project. Meyers Nave services do not include any financial advice or analysis. Also, Meyers Nave's services will not extend past the date of issuance of the Bonds and will not, for example, include services related to investment of bond sale proceeds, rebate compliance, continuing disclosure or administration of the unpaid supplemental assessments and the annual installments payable on account of such unpaid supplemental assessments (although Meyers Nave may be available for separate engagement to provide such services pursuant to separate agreement). 2. Services to be Provided by Others. To enable Meyers Nave to perform the services enumerated in paragraph t above, the Town will provide, either directly or through others retained for the purpose, the following: a) Preparation of the boundary map, the written engineer's report (including the assessment diagram), the individual assessment ballots, and the form of the assessment roll suitable for attachment to the notice of assessment to be recorded following Town Council action to levy supplemental assessments, in each case conforming to the requirements of the Streets and Highways Code and to the requirements of Section 53753 of the Government Code. b) Preparation and mailing of (i) the notice of hearing and individual assessment ballots and (ii) the individual notices of recording of assessment following Town Council action to levy assessments. C) The receipt and safekeeping of assessment ballots prior to the close of the public hearing and, following the close of the public hearing, the opening and tally of assessment ballots received so as to enable the Town Council to determine whether a majority protest has been established as provided by Article XIIID of the California Constitution; d) A verbal description of the reduced utility undergrounding improvement project and the name and telephone number of an appropriate Town staff member or consultant to respond to questions, for insertion in the resolution of intention for the proceedings pertaining to the proposed New Supplemental Assessment District; e) The list of cash payments and unpaid supplemental assessments following expiration of the cash payment period; f) Services to record the boundary map, assessment diagram, and Notice of Assessment with the Marin County Recorder; and g) A certified copy of each resolution, a conformed and file-stamped copy of each recorded document and map, certificates of mailing respecting the notice of hearing and assessment ballots and the notice of recording of assessments, an affidavit of publication of the notice of assessment, and an executed copy of the approved written engineer's report;