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HomeMy WebLinkAboutAGMT - Quint & Thimmig LLP (Bond Counsel and Disclosure Counsel Services Agreement) BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES AGREEMENT between the SEA( it., 59,.E \PSIVTY City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Quint & Thimmig LLP 900 Larkspur Landing Circle, Suite 270 Larkspur, CA 94939-1726 Tel: (415) 925-4200 S7296-OQO11 818054v4.doc This Bond Counsel and Disclosure Counsel Services Agreement ("the Agreement") is made as of the 26th day of May, 2015 (the "Effective Date"), by and between Quint &Thimmig LLP ("Attorneys"), a California limited liability partnership, and the City of Seal Beach ("City"), a California charter city ("the Parties"). RECITALS A. The City has formed the City of Seal Beach Community Facilities District No. 2002-01 (Heron Pointe) (the "CFD") under the Mello-Roos Community Facilities Act of 1982, as amended (the "Act") B. The City is considering the issuance of bonds for the CFD (the "Bonds") for the purpose of refunding and defeasing the outstanding City of Seal Beach Community Facilities District No. 2002-01 (Heron Pointe) Special Tax Bonds, Series 2005 (the "Prior Bonds"). C. In connection with the issuance of the Bonds, the City requires the advice and assistance of bond counsel and disclosure counsel. D. Attorneys have represented that they are qualified and able to provide City with such services. E. Attorneys have advised the City that they have assisted numerous public agencies in the State of California as bond counsel and as disclosure counsel with the issuance of refunding bonds for community facilities districts, and the City desires to retain the services of Attorneys to assist in the issuance of the Bonds, subject to the provisions of this Agreement. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows: AGREEMENT 1.0 Scope of Services 1.1. Attorneys shall provide those services ("Services") set forth in the attached Exhibit A, which is hereby incorporated by this reference. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control. 1.2. Attorneys shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.3. In performing this Agreement, Attorneys shall comply with all applicable provisions of federal, state, and local law. 1.4. The City shall cooperate with Attorneys and shall furnish Attorneys with certified copies of all proceedings taken by the City and deemed necessary by 1 of 8 57296-0001\1818054v4.doc Attorneys to render an opinion on the validity of the Bonds and the defeasance of the Prior Bonds. All costs and expenses incurred incidental to the actual issuance and delivery of the Bonds and the defeasance and refunding of the Prior Bonds, including the cost and expense of preparing certified copies of proceedings required by Attorneys in connection with the issuance of the Bonds and the defeasance and refunding of the Prior Bonds, the cost of all printing and publication of official notices and offering documents, fees and expenses of parties other than Attorneys, costs and expenses of legal advertising and all other expenses incurred in connection with the issuance of the Bonds and the defeasance and refunding of the Prior Bonds, shall be paid by the City from the proceeds of the Bonds and shall not be the responsibility of, Attorneys; provided, that the City's payment or reimbursement of costs and expenses incurred by Attorneys in connection with their services hereunder shall be subject to the provision of Section 3.0. 1.5. In performing the Services pursuant to this Agreement, it is understood and acknowledged by the City that Attorneys will not be providing financial advisory, placement agent, investment banking or other similar services. It is expected that the City will engage other consultants to provide any such services with respect to the Bonds. 2.0 Term Unless previously terminated as provided by this Agreement, this term of this Agreement shall commence as of the Effective Date and shall end on the earlier of: (i) the successful issuance of the Bonds and delivery of the Bonds to the initial purchaser thereof, or (ii) one year from the Effective Date. 3.0 Attorneys' Compensation For the services as Bond Counsel and Disclosure Counsel under this Agreement, Attorneys shall be paid a fee of $40,000, inclusive of all out-of-pocket;costs and expenses incurred by Attorneys in connection with such services. • 4.0 Payment Contingent on Bond Issuance Payment of Attorneys' compensation under this Agreement shall be entirely contingent upon the successful issuance of the Bonds, and shall be payable solely from the proceeds of the Bonds and no other funds of the City. 5.0 Termination 5.1. This Agreement may be terminated at any time by the City with or without cause upon written notice to Attorneys. 5.2. This Agreement may be terminated by Attorneys based on reasonable cause;upon giving the City written notice thereof not less than 30 days prior to the date of termination. 2 of 8 S7296-000111818054v4.doc 5.3. In the event of a termination of this Agreement, all finished and unfinished documents prepared by Attorneys in connection with their Services hereunder shall at the option of the City become its property and; upon written request by the City to Attorneys, shall be delivered to the City by Attorneys. 6.0 Party Representatives • 6.1. The City Manager is the City's representative for purposes of this Agreement. 6.2. Paul J. Thimmig is the Attorneys' primary representative for purposes of this Agreement. 7.0 Notices 7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United . States Mail, first class postage prepaid and addressed to the respective party at the applicable address below: To City: City of Seal Beach 211-8th Street Seal Beach, California 90740 Attn: City Manager To Attorneys: Quint& Thimmig LLP 900 Larkspur Landing Circle, Suite 270 Larkspur, CA 94939-1726 Attn: Paul J. Thimmig 7.2. Actual notice shall be deemed adequate notice on the date actual notice was received by the party to whom the notice is addressed, regardless of the method of service. 8.0 Independent Contractor 8.1. Attorneys are independent contractors and not employees of the City. All Services provided pursuant to this Agreement shall be performed by Attorneys or under their supervision. Attorneys will determine the means, methods, and details of performing the Services. Any additional personnel performing Services under this Agreement on behalf of Attorneys shall also not be employees of City and shall at all times be under Attorneys' exclusive direction and control. Attorneys shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Attorneys shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3 of 8 S7295-000111818054v4.doc 8.2. Attorneys shall indemnify and hold harmless City and its elected officials, officers, employees, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Attorneys' personnel practices. City shall have the right to offset against the amount of any fees due to Attorneys under this Agreement any amount due to City as a result of Attorneys' failure to promptly pay to City any reimbursement or indemnification arising under this Section. 9.0 Subcontractors No portion of this Agreement shall be subcontracted by Attorneys without the prior written approval of the City. Attorneys are fully responsible to City for the performance of any and all subcontractors engaged by Attorneys. 10.0 Assignment Attorneys shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 1'1.0 Insurance 11.1. Attorneys shall not receive compensation for work under this Agreement until it has provided evidence satisfactory to the City that Attorneys have secured all insurance required under this Section. Attorneys shall furnish City with original certificates of insurance effecting coverage required by this Agreement on'customary forms reasonably satisfactory to the City. The certificates for each insurance policy shall be signed by a person authorized by that insurer or its agent to bind coverage on its behalf. All certificates shall be received and approved by the City before compensation for work done by Attorneys is paid. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.2. Attorneys shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement., Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and reasonably satisfactory to the City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto: Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Attorneys shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile 4of8 S7296-0001\1818054v4.doc Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim/aggregate. 11.3. The insurance policies shall contain the following provisions, or Attorneys shall provide endorsements on forms reasonably approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its elected officials, officers and employees, (3) coverage shall be primary insurance as respects the City, its elected officials, officers and employees, or if excess, shall stand in an unbroken chain of coverage excess of the Attorneys' scheduled underlying coverage and that any insurance or self-insurance maintained by the City, its elected officials, officers and employees shall be excess of the Attorneys' insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its elected officials, officers and employees shall be covered as additional insureds with respect to the Services performed by or on behalf of the Attorneys, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its elected officials, officers and employees shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Attorneys or for which Attorneys are responsible. 11.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its elected officials, officers and employees. 11.5. Any deductibles or self-insured retentions shall be declared to and approved by the City. Attorneys guarantees that, at the option of the City, if any deductible or self-insured retention is in excess of $75,000 per occurrence: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its elected officials, officers and employees; or (2) the Attorneys shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses in the amount of-the deductible or self-insured retention or possible other security therefor reasonably satisfactory to City. 12.0 Indemnification, Hold Harmless, and Duty to Defend Attorneys shall defend, indemnify, and hold the City, its elected officials; officers, employees, volunteers and agents serving as independent contractors in the role of City officials (collectively "Indemnities") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, proximately caused by any acts or omissions of Attorneys, its employees, or its agents in connection with Attorneys' performance of this Agreement, including without limitation the payment of all consequential damages and reasonable attorneys' fees and other related costs and expenses, except for such claims, demands, causes of action, costs, expenses, liability, loss, damage or injury attributable to the negligence or willful misconduct of the City, its 5 of 8 S7296-0001\1818054v4.doc elected officials, employees and agents. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees that are subject to the foregoing. Attorneys shall defend Indemnitees, at Attorneys' own cost, expense, and risk, and shall pay and isatisfy any judgment, award, or decree that may be rendered against Indemnitees. Attorneys shall reimburse City and its elected officials, officers and employees, for any and all reasonable legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Attorneys' obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Attorneys, the 'City, its elected officials, officers or employees. Wherever any claim, demand, cause of action, costs, expenses, liability, loss, damage or injury is the result, in part, of the;negligence or willful misconduct of the City or its elected officials, officers, employees or agents, the indemnity obligation of Attorneys under this Section 12.0 shall be limited to the position attributable to the comparable fault of Attorneys, and shall not apply to the portion attributable to the comparative fault of the City, its elected officials, officers, employees and agents. All duties of Attorneys under this Section shall survive termination of this Agreement. 13.0 Equal Opportunity Attorneys affirmatively represent that they are an equal opportunity; employer. Attorneys shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 14.0 Labor Certification By its signature hereunder, Attorneys certify that they are aware of the provisions of Section 3700 of the California Labor Code that require every employer to.be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and Attorneys agree to comply with such provisions in the performance of the Services. 15.0 Entire Agreement This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both Parties. 16.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 6of8 S7296-000111818054v4.doc 17.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 18.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 19.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 20.0 Prohibited Interests; Conflict of Interest 20.1. Attorneys covenant that they presently have no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Attorneys further covenant that, in performance of.this Agreement, no person having any such interest shall be employed by it. Furthermore, Attorneys shall avoid the appearance of having any interest which would conflict in any manner with their performance of the Services. Attorneys shall not accept any employment or representation during the term of this Agreement which is or may likely make Attorneys "financially interested" (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Attorneys has been retained. 20.2. Attorneys further warrant and maintain that they have not employed or retained any person or entity, other than a bona fide employee working exclusively for Attorneys, to solicit or obtain this Agreement. Nor have Attorneys paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Attorneys, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Attorneys hereunder the full amount or value of any such fee, commission, percentage or gift. 20.3. Attorneys warrant and maintain that they have no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Attorneys, and that if any such interest comes to the knowledge of Attorneys at any time during the term of this Agreement, Attorneys shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection. 7 of 8 57298-0001\1818054v4.doc 21.0 Attorneys' Fees If either party commences any legal, administrative, or other action against the other party arising out of or in connection with this Agreement, the prevailing party in such action shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith. 22.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 23.0 Corporate Authority The person executing this Agreement on behalf of Attorneys warrants that he is duly authorized to execute this Agreement on behalf of Attorneys and that by his execution, Attorneys are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH QUINT &THIMIVIIG, LLP By: By: -14� ElleVA. Deaton, Mayor imrn ig Partner Attest: By. Tina Knapp, Acting City Clerk Approved as to rm By: 7,4 CrWA' Steele, Interim City Attorney 8of8 S7296-0001\1 818054v4.doc EXHIBIT A SCOPE OF SERVICES Bond Counsel Services. Attorneys, in their role as Bond Counsel, shall do, carry out and perform all of the following services as are necessary for the issuance of the Bonds: (i) Consultation and cooperation with City Staff and the City Attorney, and with the underwriter, financial advisor, special tax consultant and other professional firms engaged by the City with respect to the issuance of the Bonds, and assisting such persons in the formulation of a coordinated financial and legal financing with the proceeds of the Bonds. (ii) Preparation of all legal proceedings deemed necessary or advisable by Attorneys for the authorization, issuance and delivery of the Bonds; including preparation of(A) documentation required for the issuance of the Bonds by the City and the refunding of the Prior Bonds, including a fiscal agent agreement, a resolution authorizing the issuance of the Bonds, an escrow agreement for the defeasance of the Prior Bonds, and all documentation required to be executed by the City in connection with the delivery of the Bonds to the purchaser thereof and the defeasance and redemption of the Prior Bonds, (B) necessary California Debt and Investment Advisory Commission filings and other reports and documents required to be filed by the City in connection with the issuance of the Bonds, and (C) certificates, requisitions, receipts and other documents required in connection with the delivery of the Bonds to the original purchaser thereof. • (iii) Application for any Internal Revenue Service or other rulings deemed necessary by Attorneys (but only following consultation with and approval by the City) to ensure the exemption of interest on the Bonds from federal or, if applicable, State of California personal income taxation. (iv) Subject to the completion of proceedings to the satisfaction of Attorneys, providing a legal opinion for the Bonds: (i) approving the legality of the proceedings of the City for the authorization, issuance and delivery of the Bonds, and (ii) stating that interest on the Bonds is excluded from gross income for federal income tax purposes and is exempt from State of California personal income taxation. (v) Subject to the completion of proceedings to the satisfaction of Attorneys, providing a defeasance opinion for the Prior Bonds. (vi) Attorneys shall perform such other and further services as are customarily performed by bond counsel on similar financings. Exhibit A-1 87296-0001\1818054v4.doc II. Disclosure Counsel Services. Attorneys, in their role as Disclosure Counsel, shall provide legal services in connection with the preparation of the official statement to be used in connection with the offering and sale of the Bonds and a related continuing disclosure agreement. Such services shall include the following: (i) Prepare the official statement (both preliminary and final) in connection with the offering of the Bonds. (ii) Confer and consult with the officers and administrative staff of the City as to matters relating to the official statement. (iii) Attend all meetings of the City Council and any administrative meetings at which the official statement is to be discussed, deemed necessary by Attorneys for the proper exercise of their due diligence with respect to the official statement, or when specifically requested by the officers of the City to attend. (iv) Prepare the continuing disclosure agreement for the Bonds. (v) Subject to the completion of proceedings to the satisfaction of Attorneys, provide a letter addressed to the City and to the underwriter of the Bonds to the effect that, although Attorneys have not undertaken to determine independently or assume any responsibility for the accuracy, completeness or fairness of the :statements contained in the official statement for the Bonds, in the course of Attorney's participation in the preparation of the official statement, Attorneys have been in contact with representatives of the City and others concerning the contents of the official statement and related matters, and based upon the foregoing, nothing has come to Attorneys attention to lead Attorneys to believe that the official statement (except for any financial or statistical data or forecasts, numbers, charts, estimates, projections, assdmptions or expressions of opinion included therein, and information relating to The 'Depository Trust Company and its book-entry system, as to which Attorneys need express no view) as of the date of the official statement or the date of the closing contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which' they were made, not misleading. (ii) Such other and further services as are normally performed by disclosure counsel on similar financings. Exhibit A-2 S7296-000111818054v4.doc • III. Service Not Provided. Attorneys shall not be responsible to the City under this Agreement for. (i) any continuing disclosure requirements under federal securities laws that may apply to the Bonds or the Prior Bonds after the issuance of the Bonds (except for the preparation of the continuing disclosure agreement for the Bonds and the preparation of the disclosure to be included in the official statement of the Bonds relating to continuing disclosure), (ii) on-going advice and preparation of necessary documentation regarding compliance with Section 148 of the Internal Revenue Code of 1986, relating to arbitrage limitations and rebate provisions applicable to the Bonds after issuance of the Bonds, or (iii) the representation of the City in connection with any litigation involving the Bonds or the Prior Bonds. Without limiting the generality of the foregoing, Attorneys shall not be responsible for preparing any documentation related to, or for providing any, ongoing continuing disclosure, arbitrage and rebate computation services or litigation services in - respect of the Bonds (except for the preparation of the continuing disclosure agreement for the Bonds and the tax certificate or arbitrage certificate required for the closing of the Bond issue), without a separate agreement between the Authority and Attorneys. In addition, unless specifically retained to do so by a separate agreement between Attorneys and the City, Attorneys shall not be responsible for auditing or otherwise assuring compliance by the City with any past or existing continuing disclosure obligations of the City related to any debt obligations: Exhibit A-3 57296-000111818054v4.doc