HomeMy WebLinkAboutThe Weist Law Firm 2017-12-07COU No. 1718159
AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES
This Agreement, made and entered into this 7th day of December, 2017 ("Effective
Date"), by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and
The Weist Law Firm, a law firm , organized and in good standing under the laws of the state
of California, hereinafter referred to as "Consultant".
RECITALS
This Agreement is predicated on the following facts:
a. City requires consulting services related to providing Bond Counsel Services in
connection with the City's entry into a contract with the refunding of the 2006 Revenue
Bonds.
b. Consultant represents that it has the qualifications, skills, experience and properly
licensed to provide these services, and is willing to provide them according to the terms
of this Agreement.
c. City and Consultant agree upon the Scope -of -Work and Work Schedule attached hereto
as Attachment "A", describing contract provisions for the project and setting forth the
completion dates for the various services to be provided pursuant to this Agreement.
TERMS OF AGREEMENT
1.0 DESCRIPTION OF PROJECT
1.1 The Project is described in detail in the attached Scope -of -Work (Attachment "A").
2.0 SCOPE OF SERVICES
2.1 As set forth in Attachment "A".
2.2. Additional Services. Additional services, if any, shall only proceed upon written
agreement between City and Consultant. The written Agreement shall be in the form of
an Amendment to this Agreement.
3.0 CONDUCT OF WORK
3.1 Time of Completion. Consultant shall commence performance of services as required
by the Scope -of -Work upon receipt of a Notice to Proceed from City and shall complete
such services to the City's reasonable satisfaction, even if contract disputes arise or
Consultant contends it is entitled to further compensation.
4.0 COMPENSATION FOR SERVICES
4.1 Basis for Compensation. For the performance of the professional services of this
Agreement, Consultant shall be compensated on a time and expense basis not to
exceed a guaranteed maximum dollar amount of $96,000, in each case fully contingent
on the execution of the refunding of the 2006 Revenue Bonds. Labor charges shall be
based upon hourly billing rates for the various classifications of personnel employed by
Consultant to perform the Scope of Work as set forth in the attached Attachment A,
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COU No. 1718179
which shall include all indirect costs and expenses of every kind or nature, except direct
expenses. The direct expenses and the fees to be charged for same shall be as set
forth in Attachment A. Consultant shall complete the Scope of Work for the not -to -
exceed guaranteed maximum, even if actual time and expenses exceed that amount.
4.2 Changes. Should changes in compensation be required because of changes to the
Scope -of -Work of this Agreement, the parties shall agree in writing to any changes in
compensation. "Changes to the Scope -of -Work" means different activities than those
described in Attachment "A" and not additional time to complete those activities than the
parties anticipated on the date they entered this Agreement.
4.3 Sub -contractor Payment. The use of sub -consultants or other services to perform a
portion of the work of this Agreement shall be approved by City prior to commencement
of work. The cost of sub -consultants shall be included within guaranteed not -to -exceed
amount set forth in Section 4.1.
4.4 Terms of Payment. Payment to Consultant for services rendered in accordance with this
contract shall be based upon the work satisfactorily performed prior to the date of the
invoice, and shall be due and payable thirty (30) days after receipt by the City. The
invoice shall provide a description of each item of work performed, the time expended to
perform each task, the fees charged for that task, and the direct expenses incurred and
billed for. Invoices shall be accompanied by documentation sufficient to enable City to
determine progress made and to support the expenses claimed.
5.0 ASSURANCES OF CONSULTANT
5.1 Independent Contractor. Consultant is an independent contractor and is solely
responsible for its acts or omissions. Consultant (including its agents, servants, and
employees) is not the City's agent, employee, or representative for any purpose.
It is the express intention of the parties hereto that Consultant is an independent
contractor and not an employee, joint venturer, or partner of City for any purpose
whatsoever. City shall have no right to, and shall not control the manner or prescribe the
method of accomplishing those services contracted to and performed by Consultant
under this Agreement, and the general public and all governmental agencies regulating
such activity shall be so informed.
Those provisions of this Agreement that reserve ultimate authority in City have been
inserted solely to achieve compliance with federal and state laws, rules, regulations, and
interpretations thereof. No such provisions and no other provisions of this Agreement
shall be interpreted or construed as creating or establishing the relationship of employer
and employee between Consultant and City.
Consultant shall pay all estimated and actual federal and state income and self-
employment taxes that are due the state and federal government and shall furnish and
pay worker's compensation insurance, unemployment insurance and any other benefits
required by law for himself and his employees, if any. Consultant agrees to indemnify
and hold City and its officers, agents and employees harmless from and against any
claims or demands by federal, state or local government agencies for any such taxes or
benefits due but not paid by Consultant, including the legal costs associated with
defending against any audit, claim, demand or law suit.
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COU No. 1718179
Consultant warrants and represents that it is a properly licensed professional or
professional organization with a substantial investment in its business and that it
maintains its own offices and staff which it will use in performing under this Agreement.
5.2 Conflict of Interest. Consultant understands that its professional responsibility is solely
to City. Consultant has no interest and will not acquire any direct or indirect interest that
would conflict with its performance of the Agreement. Consultant shall not in the
performance of this Agreement employ a person having such an interest. If the City
Manager determines that the Consultant has a disclosure obligation under the City's
local conflict of interest code, the Consultant shall file the required disclosure form with
the City Clerk within 10 days of being notified of the City Manager's determination.
6.0 INDEMNIFICATION
6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2
Consultant shall not begin work under this Agreement until it procures and maintains for
the full period of time allowed by law, surviving the termination of this Agreement
insurance against claims for injuries to persons or damages to property, which may arise
from or in connection with its performance under this Agreement.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
1. Insurance Services Office ("ISO) Commercial General Liability Coverage
Form No. CG 20 10 10 01 and Commercial General Liability Coverage —
Completed Operations Form No. CG 20 37 10 01.
2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1
"any auto" or Code 8, 9 if no owned autos and endorsement CA 0025.
3. Worker's Compensation Insurance as required by the Labor Code of the
State of California and Employers Liability Insurance.
4. Errors and Omissions liability insurance appropriate to the consultant's
profession. Architects' and engineers' coverage is to be endorsed to
include contractual liability.
B. Minimum Limits of Insurance
Consultant shall maintain limits no less than:
1. General Liability: $1,000,000 combined single limit per occurrence for
bodily injury, personal injury and property damage including operations,
products and completed operations. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, the
general aggregate limit shall apply separately to the work performed
under this Agreement, or the aggregate limit shall be twice the prescribed
per occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for
bodily injury and property damage.
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COU No. 1718179
3. Workers Compensation and Employers Liability: Worker's compensation
limits as required by the Labor Code of the State of California and
Employers Liability limits of $1,000,000 per accident.
4. Errors and Omissions liability: $1,000,000 per occurrence.
C. Deductibles and Self -Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by
the City. At the option of the City, either the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects to the City, its officers,
officials, employees and volunteers; or the Consultant shall procure a bond
guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
D. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
1. General Liability and Automobile Liability Coverages
a. The City, it officers, officials, employees and volunteers are to be
covered as additional insureds as respects; liability arising out of
activities performed by or on behalf of the Consultant, products
and completed operations of the Consultant, premises owned,
occupied or used by the Consultant, or automobiles owned, hired
or borrowed by the Consultant for the full period of time allowed by
law, surviving the termination of this Agreement. The coverage
shall contain no special limitations on the scope -of -protection
afforded to the City, its officers, officials, employees or volunteers.
b. The Consultant's insurance coverage shall be primary insurance
as respects to the City, its officers, officials, employees and
volunteers. Any insurance or self-insurance maintained by the
City, its officers, officials, employees or volunteers shall be in
excess of the Consultant's insurance and shall not contribute with
it.
c. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to the City, its officers, officials,
employees or volunteers.
d. The Consultant's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect
to the limits of the insurer's liability.
2. Worker's Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against the City,
its officers, officials, employees and volunteers for losses arising from
Consultant's performance of the work, pursuant to this Agreement.
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COU No. 1718179
3. Professional Liability Coverage
If written on a claims -made basis, the retroactivity date shall be the
effective date of this Agreement. The policy period shall extend one year
from date of final invoice.
4. All Coverages
Each Insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits except after thirty (30) days prior written
notice by certified mail, return receipt requested, has been given to the
City.
E. Acceptability of Insurers
Insurance is to be placed with admitted California insurers with an A.M. Bests
rating of no less than A- for financial strength, AA for long-term credit rating and
AMB -1 for short-term credit rating.
F Verification of Coverage
Consultant shall furnish the City with Certificates of Insurance and with original
Endorsements effecting coverage required by this Agreement. The Certificates
and Endorsements for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf. The Certificates and
Endorsements are to be on forms provided or approved by the City. Where by
statute, the City's Workers' Compensation - related forms cannot be used,
equivalent forms approved by the Insurance Commissioner are to be substituted.
All Certificates and Endorsements are to be received and approved by the City
before Consultant begins the work of this Agreement. The City reserves the right
to require complete, certified copies of all required insurance policies, at any
time. If Consultant fails to provide the coverages required herein, the City shall
have the right, but not the obligation, to purchase any or all of them. In that
event, the cost of insurance becomes part of the compensation due the
contractor after notice to Consultant that City has paid the premium.
G. Subcontractors
Consultant shall include all subcontractors or sub -consultants as insured under
its policies or shall furnish separate certificates and endorsements for each sub-
contractor or sub -consultant. All coverage for sub -contractors or sub -consultants
shall be subject to all insurance requirements set forth in this Paragraph 6.1.
6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition
thereto, Consultant agrees, for the full period of time allowed by law, surviving the
termination of this Agreement, to indemnify the City to the extent of Consultant's
insurance coverages set forth in Paragraph 6.1 for any claim, cost or liability that arises
out of, or pertains to, or relates to any negligent act or omission or the willful misconduct
of Consultant in the performance of services under this contract by Consultant, but this
indemnity does not apply to liability for damages for death or bodily injury to persons,
injury to property, or other loss, arising from the sole negligence, willful misconduct or
defects in design by the City, or arising from the active negligence of the City.
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COU No. 1718179
"Indemnify," as used herein includes the expenses of defending against a claim and the
payment of any settlement or judgment arising out of the claim. Defense costs include
all costs associated with defending the claim, including, but not limited to, the fees of
attorneys, investigators, consultants, experts and expert witnesses, and litigation
expenses.
References in this paragraph to City or Consultant, include their officers, employees,
agents, and subcontractors.
7.0 CONTRACT PROVISIONS
7.1 Ownership of Work. All documents furnished to Consultant by City and all documents or
reports and supportive data prepared by Consultant under this Agreement are owned
and become the property of the City upon their creation and shall be given to City
immediately upon demand and at the completion of Consultant's services at no
additional cost to City. Deliverables are identified in the Scope -of -Work, Attachment "A".
All documents produced by Consultant shall be furnished to City in digital format and
hardcopy. Consultant shall produce the digital format, using software and media
approved by City.
7.2 Governing Law. Consultant shall comply with the laws and regulations of the United
States, the State of California, and all local governments having jurisdiction over this
Agreement. The interpretation and enforcement of this Agreement shall be governed by
California law and any action arising under or in connection with this Agreement must be
filed in a Court of competent jurisdiction in Mendocino County.
7.3 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments
set forth the entire understanding between the parties.
7.4 Severability. If any term of this Agreement is held invalid by a court of competent
jurisdiction, the remainder of this Agreement shall remain in effect.
7.5 Modification. No modification of this Agreement is valid unless made with the agreement
of both parties in writing.
7.6 Assignment. Consultant's services are considered unique and personal. Consultant
shall not assign, transfer, or sub -contract its interest or obligation under all or any portion
of this Agreement without City's prior written consent.
7.7 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement
shall be a waiver of any other or subsequent breach of the same or any other covenant,
term or condition or a waiver of the covenant, term or condition itself.
7.8 Termination. This Agreement may only be terminated by either party: 1) for breach of
the Agreement; 2) because funds are no longer available to pay Consultant for services
provided under this Agreement; or 3) City has abandoned and does not wish to complete
the project for which Consultant was retained. A party shall notify the other party of any
alleged breach of the Agreement and of the action required to cure the breach. If the
breaching party fails to cure the breach within the time specified in the notice, the
contract shall be terminated as of that time. If terminated for lack of funds or
abandonment of the project, the contract shall terminate on the date notice of
termination is given to Consultant. City shall pay the Consultant only for services
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COU No. 1718179
performed and expenses incurred as of the effective termination date. In such event, as
a condition to payment, Consultant shall provide to City all finished or unfinished
documents, data, studies, surveys, drawings, maps, models, photographs and reports
prepared by the Consultant under this Agreement. Consultant shall be entitled to
receive just and equitable compensation for any work satisfactorily completed
hereunder, subject to off -set for any direct or consequential damages City may incur as
a result of Consultant's breach of contract.
7.9 Execution of Agreement. This Agreement may be executed in duplicate originals, each
bearing the original signature of the parties. Alternatively, this Agreement may be
executed and delivered by facsimile or other electronic transmission, and in more than
one counterpart, each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument. When executed using either alternative,
the executed agreement shall be deemed an original admissible as evidence in any
administrative or judicial proceeding to prove the terms and content of this Agreement.
8.0 NOTICES
Any notice given under this Agreement shall be in writing and deemed given when
personally delivered or deposited in the mail (certified or registered) addressed to the
parties as follows:
CITY OF UKIAH
DEPT. OF FINANCE
300 SEMINARY AVENUE
UKIAH, CALIFORNIA 95482
9.0 SIGNATURES
THE WEIST LAW FIRM
MR. CAMERON A. WEIST, ESQ.
108 WHISPERING PINES DRIVE, SUITE 235
SCOTTS VALLEY, CALIFORNIA 95066
IN WITNESS WHEREOF, the parties have executed this Agreement the Effective Date:
December 7, 2017
565493055
IRS IDN Number
CITY OF UKIAH
BY:
3 )3-
E
3-
E SANGIr 'OMO Date
CITY MANA ER
ATTEST
CITY CLERK Date
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ATTACHMENT A
SCOPE OF SERVICES & FEE STRUCTURE
BOND AND DISCLOSURE COUNSEL SERVICES FOR CITY OF UKIAH
In connection with the issuance of Series 2018 Refunding Revenue Bonds (the "2018
Bonds"), the proceeds of which will be used to prepay and legally defease the entire
issue of outstanding 2006 Water and Wastewater Revenue Bonds, Series A (the "2006
Bonds") issued by the Association of Bay Area Governments (the "ABAG") on March 2,
2006, Weist Law agrees to provide the following services:
Pre -Refunding Considerations.
We will guide the City through certain legal and financial pre -refunding considerations
when analyzing the contemplated refunding of the 2006 Bonds (the "Refunding"). Some
of these considerations include:
(i) making sure that that the 2006 Bonds can be refunded on a current basis
(as opposed to an advanced basis) and further ensure that any
restructured debt will comply with requirements any new legislation
affecting tax-exempt bonds;
(ii) making sure that any parity debt that is not being restructured is fully
considered and their respective associated covenants are examined for
compliance;
(iii) working with the City's staff and Financial Advisor to devise a plan of
Refunding that is designed to result in the lowest financing cost possible;
(iv) working with the Trustee and Escrow Agent to ensure that all required
redemption notices are timely and properly delivered to existing bond
owners of the 2006 Bonds being Refunded;
(v) making sure that the escrow agreement properly and legally defeases all
outstanding 2006 Bonds being refunded, and that the escrow investment
meets the requirements of the prior bond documents pertaining to the
2006 Bonds; and
(vi) advising as to the proper and prudent reserve levels, and/or surety
reserve requirements and levels, as the case may be.
Bond Counsel Services:
Bond Counsel shall provide the following legal services in connection with the
preparation of the resolutions, documents and certifications necessary for the
undertaking and consummation of the Refunding and issuance of the 2018 Bonds
contemplated by this Proposal. Such services shall include the following:
1. Consulting with representatives of the City and its staff, including, but not limited
to, the City Manager, Finance Director, Public Works Director and the City
Attorney, as well as the City's engineers, consultants, and others, with respect to
the timing, terms and legal and financial structure of the Refunding and issuance
of the 2018 Bonds.
2. Preparing all resolutions, ordinances, notices, affidavits, Depository Trust
Company agreements, escrow agreements, indentures, installment sale
Attachment A — Contract #1718179
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agreements, lease or loan agreements, and other legal documents customarily
prepared by Bond Counsel, as required for the undertaking and consummation of
the Refunding and issuance of the 2018 Bonds (the "Principle Documents").
3. Reviewing documentation prepared by City staff, advisors, and/or consultants,
including audit reports and budgets, project descriptions, rate studies and rate
setting documents,underwriter and banking term sheets and bid documents and
the purchase contracts to be derived therefrom.
4. Preparing documentation relating to any debt service coverage stipulations,
parity debt conditions, rate stabilization constructs, redemption provisions and
reserve fund requirements required in connection with the undertaking and
consummation of the Refunding and issuance of the 2018 Bonds.
5. Preparing the escrow agreements (including all required redemption notices)
necessary for the full and proper defeasance of the 2006 Bonds.
6. the various legal and financing structures that may be available to the City in
connection with the undertaking and consummation of the Refunding and
issuance of the 2018 Bonds.
7. Attending such meetings or hearings of the City Council (the "Council"), and
working group meetings or conference calls as the City may request, and as
Bond Counsel deems prudent and necessary.
8. Preparing all final closing papers required to consummate the Refunding and
issuance of the 2018 Bonds, as well as the coordination of the closing thereof.
9. Providing Bond Counsel's customary final legal opinion as to the validity of the
2018 Bonds and the exemption from gross income for federal income tax
purposes and from California personal income tax of interest thereon.
10.the required reports to the California Debt and Investment Advisory Commission
(pursuant to section 8855 et seq. of the Government Code) respecting the sale of
the 2018 Bonds, as well as the required Form 8038-G to the Internal Revenue
Service (pursuant to Section 149 of the Internal Revenue Code of 1986).
11. Preparing a complete transcript of the proceedings for the 2018 Bonds,
containing signed copies of all resolutions, ordinances, legal agreements,
disclosure statements, certificates and notices. Copies shall be provided to the
City and each member of the financing team.
Disclosure Counsel Services: If the City chooses to proceed with a public offering (as the
desired alternative to a private placement), Bond Counsel shall provide the following
legal services as the City's Disclosure Counsel in connection with the preparation of the
Official Statement for the corresponding 2018 Bonds, and related sales documents to
be used in connection therewith. Such services shall include the following:
1. Consulting with City staff and officers in order to perform the due diligence
required to produce the Official Statement (both preliminary and final).
2. Discussing and consulting with City staff and the Financial Advisor, as well as
all applicable underwriters, attorneys, engineer's, title officers, trustees or
fiscal or paying agents, feasibility consultants and all other professionals or
participants in the issuance of the 2018 Bonds, in order to perform the due
diligence required to produce the Official Statement (both preliminary and
final).
Attachment A — Contract #1718179
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3. Reviewing all agreements, certificates, resolutions, orders, notices, and
affidavits produced in said proceedings and such other reports, documents
and correspondence of legal nature as may be necessary in order to perform
the due diligence required to produce the requisite Official Statement for each
of the Financing Transaction (both preliminary and final).
4. Preparing the bond purchase contract for the 2018 Bonds.
5. Preparing the continuing disclosure certificate to assist the underwriter with
compliance with the provisions of Securities and Exchange Commission Rule
15c2-12.
6. Providing an opinion indicating compliance with (i) Section 17(a) of the
Securities Act of 1933, (ii) Section 10b-5 of the Securities Exchange Act of
1934, and (iii) Rule 15c2-12 of the Securities Exchange Act of 1934.
Fee Structure:
Fees for legal services for the Refunding and issuance of the 2018 Bonds as described
will be based on a contingent fixed fee basis in accordance with the table below:
Out-of-pocket expenses include such things as out -of -office fee (charged at $585 for
each day of required travel) printing, mailing, travel and transcript preparation (charged
at $450 for each transcript).
Attachment A — Contract #1718179
Page 3 of 3
Bond Counsel
Disclosure Counsel
Combined Bond
and Disclosure
Counsel
Fee
$55,500
$37,500
$93,000
Expenses
$1,500
$1,500.00
$3,000
Out-of-pocket expenses include such things as out -of -office fee (charged at $585 for
each day of required travel) printing, mailing, travel and transcript preparation (charged
at $450 for each transcript).
Attachment A — Contract #1718179
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