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HomeMy WebLinkAboutC-4039 - Agreement for Legal Services for Bond Counsel for Underground Assessment District No. 101AGREEMENT FOR LEGAL SERVICES FOR BOND COUNSEL FOR UNDERGROUND ASSESSMENT DISTRICT NO. 101 THIS AGREEMENT, dated for purposes of identification only this first day of April, 2008, is made and entered into by and between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "CITY," and ROBERT E. HESSELL, an individual hereinafter referred to as "ATTORNEY" WITNESSETH: WHEREAS, the CITY from time to time requires the advice and assistance of bond counsel in connection with the proceedings relating to the formation of an underground utilities assessment district designated assessment district No.101 (area generally bounded by Edgewater Avenue, Adams Street, Balboa Boulevard, and Lindo Avenue), to the establishment of an underground utilities district, and to any related bond or other debt issuance by, or for the benefit of the assessment district.; and WHEREAS, the CITY has determined that ATTORNEY is qualified by training and experience to perform the services of bond counsel in conjunction with City financings, and ATTORNEY is willing to provide such services to CITY; and WHEREAS, the CITY and the ATTORNEY desire to enter into this Agreement upon the terms hereinafter set forth. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: DUTIES OF ATTORNEY ATTORNEY shall (a) when engaged as bond counsel for underground utilities district No.101, perform all of the services set forth in Exhibit A "Scope of Services to be Provided by Bond Counsel" and, as may be requested and authorized from time to time by the City Attorney of CITY in connection with the authorization, issuance and consummation of certain City financings, and (b) provide general legal advice to the CITY, its departments, officers and employees concerning City financings, proposed City financings and other financial matters as requested of, or assigned to, ATTORNEY by the City Attorney of CITY. Performance of services by ATTORNEY may be requested by CITY by either telephone or in writing and such request shall be confirmed in writing by ATTORNEY. CITY shall specify in reasonable detail the scope of services requested with respect to each matter on which it engages the 0 • services of ATTORNEY. CITY shall also specify how such services or advice are to be billed to CITY pursuant to Paragraph 3 hereof. Unless otherwise expressly approved by CITY, services provided to CITY by ATTORNEY pursuant to this Agreement shall be provided solely by Robert E. Hessell. CITY shall have the right to personally interview any other individual whose services ATTORNEY proposes to utilize to provide services pursuant to this Agreement and shall have the right to reject any or all such individuals until CITY is satisfied that such persons have adequate credentials and experience to perform the required services for the CITY. This Agreement for services shall be non - exclusive and CITY shall, at any time, have the absolute right to use different bond counsel or disclosure counsel for matters or City financings other than those for which ATTORNEY have been specifically engaged. 2. TERM This Agreement shall continue in full force and effect until terminated by either of the parties hereto. CITY shall have the right at any time to terminate the services of ATTORNEY with regard to any matter or City financing for which ATTORNEY has previously been engaged by CITY. In the event this Agreement, or the services of ATTORNEY with regard to a particular matter or City financing, are terminated prior to the completion of any matter or City financing upon which ATTORNEY is engaged at the time of such termination, ATTORNEY shall be reasonably compensated for all services rendered to CITY, and allowable expenses incurred by ATTORNEY as set forth in Paragraph 3.A.3 hereof, on such matter(s) or City financing(s) prior to the date of such termination of services by the CITY. 3. COMPENSATION A. Bond Counsel Services. For the services of ATTORNEY as bond counsel to the CITY as described in Exhibit A hereof, the CITY will pay ATTORNEY, and ATTORNEY agrees to accept, compensation as follows: I . Formation of AD and Debt Issuance. If the AD is formed and bonds or similar indebtedness are issued by or for the benefit of the AD, Counsel shall be paid a fee for all services computed on the principal amount of each series of bonds or similar indebtedness issued as follows: One -half of one percent (0.5 %) of the principal amount up to $5,000,000; plus 2 One - quarter of one percent (0.25 %) of the principal amount from $5,000,001 to $10,000,000; plus One - eighth of one percent (0.125 %) of the principal amount from $10,000,001 to $20,000,000; plus One - sixteenth of one percent (0.0625 %) of the principal amount above $20,000,001. Notwithstanding the foregoing, the minimum fee shall be $20,000. The fee for the bonds or similar indebtedness shall be due and payable upon the occurrence of the Closing. 2. If Debt Is Not Issued. In the event that the AD is formed and debt is not issued for any reason, Counsel shall be paid a fee of $5,000 for all services rendered with respect to the formation of the AD. The fee shall be due and payable upon invoice from Counsel, which may be transmitted to the City following a determination that debt will not be issued. 3. Costs and Expenses. In addition to the foregoing, all costs and expenses reasonably incurred in connection with the proceedings to form the AD are to be billed to, and payable by, City. Costs and expenses will be billed at cost, except the expenses stated below will be billed as follows: Photocopying: Mileage: Facsimile: Computer Research: Transcript Preparation: Bond Preparation: $0.10 per page IRS Rate - (unless over one -half hour and billed hourly) $0.10 per page (sending only) Cost, plus 10% (not to exceed $300) Not to exceed $90 per transcript Not to exceed $300 per series of bonds Costs and expenses incurred in connection with the proceedings to form the AD shall be due and payable at the time the fee for the services is due and payable and shall be payable solely from the proceeds of the first issuance of bonds or similar indebtedness, collections from the Assessment District, or any combination thereof. Expenses incurred in connection with the issuance of bonds or similar indebtedness shall be due and payable at the time of the Closing of the issue for which such expenses were incurred and shall be payable from the proceeds of the issue. c 4. RESPONSIBILITIES OF THE CITY The CITY shall cooperate with ATTORNEY and shall furnish ATTORNEY with certified copies of all proceedings taken by the CITY, or other documents or information deemed necessary by ATTORNEY to perform these services hereunder. All costs and expenses incurred incidental to the actual issuance and delivery of the financing instruments, including the cost and expense of preparing certified copies of proceedings required by ATTORNEY in connection with the issuance of the financing instruments, the cost of preparing the financing instruments for execution and delivery, all printing costs and publication costs, and any other expenses incurred in connection with the issuance of the financing instruments, shall be paid by the CITY. 5. INDEMNIFICATION HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever'(individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement or Consultant's activities (including the negligent and/or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 0 • 0 6. INSURANCE Without limiting Consultant's indemnification of City, and np for to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant' shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less 5 than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for 3 each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 7. CONFLICTS OF INTEREST It is recognized that ATTORNEY may have clients who may, from time to time, have interests adverse to CITY. ATTORNEY reserves the right to represent such clients in matters not connected with the services to be provided to CITY pursuant to this Agreement. In the event that ATTORNEY represents or proposes to represent a client who may have interests adverse to CITY, in a matter connected with the services to be provided to CITY pursuant to this Agreement. ATTORNEY shall, immediately upon discovering said possible adverse interest, provide written notice to CITY of the possible adverse interest. ATTORNEY agrees to comply with any obligations they may have pursuant to California Government Code Section 87100 et seq. 8. TERMINATION OF AGREEMENT This Agreement may be terminated by the CITY at any time, with or without cause, by giving written notice to ATTORNEY. In the event of termination, all finished and unfinished documents, exhibits, data, reports, 7 0 0 and evidence shall, at the option of CITY, becomes its property and shall be delivered to it by ATTORNEY. 9. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all oral or written representations or written agreements which may have been entered into between the parties. No modification or revision shall be of any force or effect, unless the same is in writing and executed by the parties hereto. Upon approval of this Agreement by the City Council, all prior Agreements between the Parties shall be rescinded. 10. ASSIGNMENT Neither ATTORNEY nor CITY may assign or transfer this Agreement, or any part thereof, without the prior written consent of the other party. 11. GOVERNING LAW; SEVERABILITY This Agreement shall be governed by the laws of the State of California. If any provision of this Agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this Agreement are intended to be and shall be deemed severable. The parties shall agree, if reasonably practicable, upon provisions which are equivalent from an economic point of view to replace any provision which is determined to be invalid. Any action brought relating to this agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 12. COMPLIANCE WITH LAWS In the performance of this Agreement, ATTORNEY shall abide by and conform to any and all applicable laws of the United States, the State of California and the City Charter and Ordinances of CITY. 13. WAIVER No waiver or failure to exercise any right, option or privilege under the terms of this Agreement on any occasion shall be construed to be a waiver of any other right, option or privilege on any other occasion. 14. INDEPENDENT CONTRACTOR The performance of ATTORNEY'S services hereunder shall be in the capacity of an independent contractor and not as an officer, agent, or 2 15 im 17 0 9 employee of CITY. In consideration for the compensation paid to ATTORNEY by CITY, ATTORNEY agrees that CITY shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, health or any other benefits and ATTORNEY agrees that ATTORNEY shall not sue or file a claim, petition or application therefore against CITY or any of its officers, employees, agents, representatives or sureties. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. NO THIRD PARTY RIGHTS The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation or undertaking established herein. NOTICE Any notice or demand required or permitted to be given by the terms of this Agreement, or by any law or statute may be given by CITY by depositing said notice or demand in the U.S. Mail, postage prepaid, addressed to ATTORNEY at ATTORNEY'S address or any new address provided by ATTORNEY in writing to CITY. Service of said notice or demand on ATTORNEY shall be complete five (5) days after deposit of said notice or demand in the mail. Any notice or demand required or permitted by the terms of this Agreement or by any law or statute may be given by either party by either (1) personal delivery, (2) FAX transmission or (3) first -class United States Mail, postage prepaid. Notices and communication concerning this Agreement shall be delivered, faxed or mailed to the following addresses: City of Newport Beach Attn: City Attorney 3300 Newport Blvd. Newport Beach, CA 92663 Phone: (949) 644-3131 FAX: (949) 644 -3139 E Robert Hessell 13223 -1 Black Mountain Road Suite 310 San Diego, CA 92129 Phone: (858) 735-7228 Either party may, by notice to the other party, change the address specified above. Service of any notice or demand shall be complete when received at the designated address. 18. AUTHORITY AND EFFECTIVE DATE OF AGREEMENT ATTORNEY and ATTORNEY's signators represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of ATTORNEY and to bind ATTORNEY hereto. The effective date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event ATTORNEY fails to set forth a date of execution opposite the name(s) of ATTORNEY'S signator(s), ATTORNEY hereby authorizes CITY, by and through its representative, to insert the date of execution by ATTORNEY'S signator(s) as the date said Agreement, as executed by ATTORNEY, is received by CITY. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: BY cl-�-- C - ff City Attorney for the City of Newport Beach ATTEST: CItPOR EACH, A rpor do By Mayor for the City of Newport Beach CONSULTANT: ,zof /W�' B By: LaVonne Harkless, Robert E. Hessell City Clerk Attachments: Exhibit A— Scope of Services c or - r 0 EXHIBIT A Bond Counsel Services Scope of Services Legal services to be provided by Counsel shall include: (a) attending negotiation sessions and otherwise assisting City staff in the negotiation with utility companies; (b) preparing all resolutions, notices, agreements, bonds, and other papers and documents required in the proceedings; (c) examining the proceedings related to the formation of the AD (d) appearing at all hearings under the proceedings, and attending any other meeting where attendance is requested by the City; (e) reviewing and examining the map showing the boundaries of the AD; (f) reviewing the method and formula utilized by the Assessment Engineer for the apportionment of the special assessment; (g) reviewing the "Report" of the Assessment Engineer; (h) participating with the City's financing team to determine the structure of any bond or similar debt issuance; (i) assisting in the review of those sections of the official statement, if any, to be disseminated in connection with the issuance of any series of bonds related to authority and security for the bonds, tax - exemption, legal opinion, litigation, summary of bond indenture, bond purchase agreement or notice of sale and other supporting documentation relating to the offering for sale of any bonds or similar indebtedness; Q) preparing or reviewing any continuing disclosure agreement required under SEC Rule 15c2 -12; (k) consulting with any underwriter, rating agency and credit enhancement provider, and their respective legal counsel, participating in the sale of, or security for, any bonds or similar indebtedness; (1) consulting with any trustee, fiscal agent or paying agent, and their respective legal counsel, participating in the sale of, or security for, any bonds or similar indebtedness; (m) assisting in any ballot proceedings; (n) subject to the completion of the proceedings to Counsel's satisfaction, issuing an approving legal opinion attesting to the validity of the proceedings and the issuance of bonds or similar indebtedness, which legal opinion will be addressed to the City and will be delivered by Counsel on the date the bonds are exchanged for their purchase price (the "Closing "); (o) providing any necessary supplemental legal opinions as to the applicability of the registration requirements of federal securities laws and other matters related to the issuance of bonds or similar indebtedness; provided, however, such opinions do not include the rendering of a 10(b)5 opinion regarding any official statement or similar document; (p) providing advice and instruction to the City and its staff in connection with any of the foregoing. 11