HomeMy WebLinkAboutThe Weist Law Firm 2020-05-20COU #1920-256
AGREEMENT FOR BOND AND DISCLOSURE COUNSEL SERVICES
THIS AGREEMENT is made and entered into this 20th day of May, 2020 by and between the City of
Ukiah and its component units for which the City Council acts as legislative body (collectively, with each of such
entity, the "City"), whose address is 300 Seminary Avenue, Ukiah, CA 95482, and The Weist Law Firm (the
"Bond Counsel"), whose address is 20 South Santa Cruz Avenue, Suite 300, Los Gatos, CA 95030.
WITNESSETH:
WHEREAS, the City desires to retain and utilize Bond Counsel to provide the necessary legal services
relating to the issuance of all future debt issuances (each such issuance of debt hereafter sometimes referred to
as the "Bonds"), upon the terms and conditions hereinafter set forth as necessary from time to time to accomplish
the financing goals and objectives of the City; and
WHEREAS, Bond Counsel has provided services well to City on past debt issuances and has gained
detailed knowledge and understanding of City's finances and current debt obligations; and
WHEREAS, City has come to rely on Bond Counsel to provide expert advice and services unique to
City financial and debt issues; and
WHEREAS, the City desires to move expeditiously when financing opportunities are presented to
capitalize on favorable market conditions for the issuance of debt; and
WHEREAS, time is of the essence to engage bond counsel and disclosure services to maximize cost
savings for the City of Ukiah; and
WHEREAS, Bond Counsel is specifically trained and experienced in the conduct of proceedings for the
issuance of the Bonds, and hereby represents that it is ready, willing and able to perform said work; and
NOW, THEREFORE, in consideration of the covenants and premises herein contained and other good
and valuable consideration, the receipt of which is hereby acknowledged, City hereby engages the services of
Bond Counsel, and the parties hereto agree as follows:
Section 1. Scope of Services.
Bond Counsel Services: When directed by City in writing to proceed with the issuance of Bonds, Bond
Counsel shall provide the following legal services in connection with the preparation of the resolutions,
documents and certifications necessary for the sale and delivery of the Bonds. Such services shall include the
following:
1. Consult with representatives of the City, including the City Manager and Finance Director, as
well as the City's financing and accounting staff, engineers, rate consultants, financial advisors, and others, with
respect to the timing, terms and legal structure of each proposed issuance of Bonds.
2. Research applicable laws and ordinances relating to each issuance of Bonds.
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3. Prepare all notices, affidavits, Depository Trust Company agreements, leases, indentures, trust
agreements, escrow agreements, fiscal agent agreements, and other legal documents customarily prepared by
Bond Counsel, as required for the issuance of each separate series of Bonds (the "Principle Documents").
4. Prepare all resolutions and ordinances authorizing the issuance of Bonds, fixing the date,
denominations, numbers, maturity and interest rates, providing the form of the Bonds and authorizing their
execution, authentication and registration; certifying the terms and conditions upon which the same are to be
issued; providing for the setting up of special funds for the disposition of proceeds of the sale of the Bonds,
including creation of reserve funds and escrow funds, if any, and such other funds as may be advisable, and
providing all other details in connection therewith, including special covenants and clauses for the protection of
the interests of the City and Bondholders; preparation of the resolution selling all or any part of an authorized
Bond issue; preparation of all documents required for Bond delivery and supervising such delivery; preparation
of all other proceedings incidental to or in connection with the issuance, sale and delivery of Bonds.
5. Review of documents prepared City staff, financial advisor, or consulting engineers, including
rate reports, purchase contract(s), and the continuing disclosure undertaking or undertakings.
6. Review of documentation with respect to any bond provisions, parity debt provisions and
reserve fund policy provided or required in connection with the Bonds, if any.
7. Review and evaluate the various financing structures that may be available to the City for the
securing of the Bonds. Our analysis will examine the range of capital borrowing methods available to the City.
8. Assist in the preparation of a financing plan for each issuance of Bonds.
9. Attend 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.
10. Coordinate legal presentations to the rating agencies and/or credit enhancement providers. We
will advise on the legal prudence of seeking a rating and/or bond insurance.
11. Prepare final closing papers to be executed by the City required to effect delivery of the Bonds
and coordination of the closing of the Bonds.
12. Render Bond Counsel's customary final legal opinion on the validity of the Bonds and the
exemption from gross income for federal income tax purposes and from California personal income tax of
interest thereon.
13. Prepare 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 Bonds.
14. Prepare a complete transcript of the proceedings for each issuance of Bonds, containing
corresponding originally signed copies of all resolutions, ordinances, legal agreements, rating letters, preliminary
and final official statements, disclosure agreements and certificates, regulatory filings and notices. Copies shall
be provided to the City and each member of the financing team.
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Disclosure Counsel Services: If Bonds are issued on a publically offered basis, Bond Counsel shall
provide the following legal services as the City's Disclosure Counsel in connection with the preparation of each
corresponding Official Statement and related sales documents to be used in connection with such Bonds. Such
services shall include the following:
1. Consult with City staff and officers in order to perform the due diligence required to produce
the Official Statement (both preliminary and final) for each public issuance of Bonds.
2. Consult with underwriters, attorneys, financial advisors, engineer's, title officers, trustees or
fiscal or paying agents, feasibility consultants and all other professionals or participants in the issuance of each
separate series of Bonds, in order to perform the due diligence required to produce each corresponding Official
Statement (both preliminary and final).
3. Review 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 each corresponding Official Statement (both preliminary and
final).
4. Prepare or assist in the preparation of the bond purchase contracts relating to each corresponding
issuance of Bonds.
5. Prepare or assist in the preparation of each applicable continuing disclosure certificate to assist
the underwriters in complying with the provisions of Securities and Exchange Commission Rule 15c2-12.
6. Provide 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.
Excluded Services Bond Counsel's services are limited to those specifically set forth above. Bond
Counsel's services do not include representation of the City or any other party to the transaction in any litigation
or other legal or administrative proceeding involving the Bonds or any other matter.
Bond Counsel's services also do not include legal services not specified above relating to the issuance
of Bonds, including but not limited to compliance with the California Environmental Quality Act, the National
Environmental Policy Act, the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, the Hazardous Material Transportation Act, the Resource Conservation and Recovery Act, the Federal
Water Pollution Control Act, the Occupational Safety and Health Act, the Safe Drinking Water Act, the Porter -
Cologne Water Quality Control Act, the Safe Drinking Water and Toxic Enforcement Act of 1986, the Hazardous
Substance Account Act, the Hazardous Waste Control Act, or any determinations pertaining to completion and
readiness for acceptance.
Bond Counsel's services also do not include Bond validation proceedings or any responsibility for
compliance with state blue sky, environmental, land use, real estate or similar laws or for title to or perfection of
security interests in real or personal property, including the acquisition of interests in real property, whether
through gift, negotiation or the exercise of the power of eminent domain. Bond Counsel's services also do not
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include any responsibility for the negotiation or preparation of joint powers agreements with other agencies.
Bond Counsel will not be responsible for the services performed or acts or omissions of any other participant.
Also, Bond Counsel's services for a particular series of Bonds will not extend past the date of issuance
of such series of Bonds and will not, for example, include services related to on-going administration, annexation,
rebate compliance or continuing disclosure or otherwise related to such series of Bonds, proceeds of such series
of Bonds or a refunding after issuance of such series of Bonds.
Bond Counsel may be willing to perform such excluded services on such terms as might be mutually
agreed to at the time of need. The performance by Bond Counsel of services excluded by the preceding three
paragraphs, if required by the City, shall be under separate written agreement, unless otherwise directed and
agreed to under Section 3(c) hereof.
Section 2. Various Types of Bonds.
The City may issue any Bonds which are allowed under federal and state law including but not limited
to general obligation bonds, leases and/or certificates of participation, revenue bonds, land -secured (assessment
and special tax) bonds, refunding bonds, special tax bonds and other types of obligations, as generally described.
General Obligation Bonds — General Obligation Bonds ("GO Bonds") are funded by ad valorem taxes
and require a 2/3 voter approval. The California Government Code, Division 4, Chapter 4, Article 1 commencing
with section 43600 authorizes the City to finance certain municipal improvements through GO Bonds when the
City determines the public interest and necessity demands the acquisition, construction or completion of such
municipal improvements, including property or structures necessary or convenient to carry out the objects,
purposes, and powers of the City. Examples of projects for which GO Bonds are often issued include but are not
limited to libraries, public parks, public services, and public safety facilities.
Lease Financings and Certificates of Participation — Lease financings may take a variety of forms,
including certificates of participation, lease revenue bonds and direct leases (typically for equipment). When the
City finances the acquisition or construction of capital improvements with a lease financing, the City agrees to
lease either the financed asset or some other City owned asset and, most commonly, the City's lease payments
are securitized in the form of certificates of participation (the "Certificates of Participation") or lease revenue
bonds (the "Lease Revenue Bonds"). Generally, no voter approval is required to issue these types of obligations.
These are used where backing by the City's general fund is the most cost effective and feasible method, such as
in the financing of public facilities. The City Council must annually appropriate funding for the payment of debt
service associated with these types of debt instruments as part of the approval of the City's budget.
Installment Sale Contract Financings and Revenue Bonds — Installment Sale Contract financings and
Revenue Bonds are generally issued by the City for water and wastewater enterprise projects that are financially
self-sustaining without the use of taxes and therefore rely on the revenues collected by the applicable enterprise
fund to repay the debt. Voter approval is not required.
Marks -Roos Revenue Bonds. Under the Marks -Roos Local Bond Pooling Act of 1985, codified at
California Government Code sections 6500 to 6599.3 (the "Marks -Roos Act"), the City, in consort with or as
part of a joint -powers authority, may use a "pooled" financing technique for a broad array of public capital
improvements. Voter approval is not required.
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Assessment Bonds — The Improvement Bond Act of 1915 (Streets and Highways Code Section 8500 et
seq.) and other state laws, subject to Article XIIID of the California Constitution, allow the City to issue bonds
to finance improvements that provide "specific benefit" to the assessed real property. Installments are collected
on the secured property tax roll of the County. This type of financing is secured by the lien upon and assessments
paid by the real property owners and does not obligate the City's general fund or other funds.
Special Tax Bonds — Under the Mello -Roos Community Facilities Act of 1982, the City may issue bonds
on behalf of a Community Facilities District (CFD) to finance capital facilities, most commonly in connection
with new development. These bonds must be approved by a two-thirds vote of the qualified electors in the CFD,
which the Mello -Roos Act defines to mean registered voters if there are 12 or more registered voters in the CFD
and, if there are fewer than 12 registered voters, the landowners in the CFD. Bonds issued by the City under the
Mello -Roos Act are secured by a special tax on the real property within the CFD. The financed facilities do not
need to be physically located within the CFD. As this type of financing is secured by the special tax lien upon
the real property it does not obligate the City's general fund or other funds.
Refunding Obligations — Pursuant to the Government Code and various other financing statues
applicable in specific situations, the City is authorized to provide for the issuance of bonds for the purpose of
refunding any long-term obligation of the City.
Other Obligations — There may be special circumstances when other forms of debt are appropriate and
may be evaluated on a case-by-case basis. Such other forms include, but are not limited to: bond anticipation
notes, grant anticipation notes, tax allocation bonds, lease revenue bonds, pension obligation bonds, etc.
Section 3. Compensation.
(a) Legal Fees for Bond Counsel Services. For each series of Bonds issued by the City, Bond
Counsel shall be paid a flat fee of $19,500, plus one-half of one percent (1/2%) of the principal amount of each
series of Bonds issued up to $8,000,000, and then one-eighth of one percent (1/8%) of the principal amount
thereafter, in total not to exceed three percent (3%) of the principal amount of the total series of Bonds issued.
Payment of said amount shall be entirely contingent upon the successful issuance of such applicable series of
Bonds, subject to early termination as set forth in Section 5. City and Bond Counsel reserve the right at any time
prior to City directing Bond Counsel to begin services under Section 1 to negotiate and revise legal fees for bond
counsel services to ensure City receives a fair market rate for such services. Such revisions shall be made in
writing. Alternatively, the City may issue a request for proposals for bond counsel services for an issuance of
Bonds and award the contract for that issuance to another firm.
(b) Legal Fees for Disclosure Counsel Services. If, and only if, a series of Bonds are issued on a
publicly offered basis, for all such series of Bonds issued by the City, Disclosure Counsel shall be paid a flat fee
of $26,500 plus one-half of one percent (1/2%) of the principal amount of each series of Bonds issued up to
$4,000,000, and then one-eighth of one percent (1/8%) of the principal amount thereafter. Payment of said
amount shall be entirely contingent upon the successful issuance of such applicable series of Bonds, subject to
early termination as set forth in Section 5. City and Bond Counsel reserve the right at any time prior to City
directing Bond Counsel to begin services under Section 1 to negotiate and revise legal fees for disclosure counsel
services to ensure City receives a fair market rate for such services. Such revisions shall be made in writing.
Alternatively, the City may issue a request for proposals for disclosure counsel services for an issuance of Bonds
and award the contract for that issuance to another firm.
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(c) Miscellaneous Legal Services. If and to the extent Bond Counsel is requested in writing (with a
return written acknowledgment by Bond Counsel) by either the City Manager or Finance Director to perform
legal services that are outside the scope of services set forth in Section 1, Bond Counsel shall be paid an hourly
rate of $485 per hour—which is scheduled to increase to $510 on January 1, 2021 (the "Hourly Rate").
(d) Out -of -Pocket Expenses. In addition to the legal fees, Bond Counsel shall be reimbursed its
normal and customary out-of-pocket expenses, including travel (which includes an out of office fee of $650 for
each day of travel) and customary mileage rates; parking charges and bridge tolls as incurred, photocopies at
thirty-five cents per page, transcript preparation and distribution; telephone and facsimile charges as incurred,
and postage and express delivery charges as incurred for each series of Bonds issued.
Section 4. Invoicing.
Bond Counsel shall submit to the City invoices in acceptable detail and format for services rendered,
including any supporting documentation as may be requested by the City. Invoices must reference this Agreement
and must clearly specify the services performed. Each invoice shall be reviewed by City staff prior to payment
to ensure that the billing is consistent with the compensation provisions of this Agreement. Bond Counsel
compensation under this Agreement shall be payable on the date of closing of each series of Bonds, or within the
normal processing schedule of the City's accounts payable process, if fees are due before or without the issuance
of Bonds.
Section 5. Termination of Agreement and Legal Services.
This Agreement and all legal services to be rendered under it may be terminated at any time by written
notice from either party, with or without cause. In that event, all finished and unfinished documents prepared for
adoption or execution by the City, shall, at the option of the City, become its property and shall be delivered to
it or to any party it may designate; provided that Bond Counsel shall have no liability whatsoever for any
subsequent use of such documents, if this Agreement is terminated by City. In the event of termination by the
City without cause, Bond Counsel shall be entitled to receive compensation for all work performed to the date
of termination based on the Hourly Rate. The final invoice from Bond Counsel shall detail by date, services
performed and hours or fraction of hours spent performing said service. This continuing right to receive
compensation shall survive the term of this Agreement. If not sooner terminated as aforesaid, this Agreement
and all legal services to be rendered under it shall terminate upon final issuance of the Bonds. Upon termination
by the City, Bond Counsel shall have no future duty of any kind to or with respect to the Bonds or the City.
Section 6. Insurance.
Bond Counsel specifically represents that it maintains errors and omissions insurance of a minimum of
$1,000,000/$2,000,000 aggregate applicable to the Bond Counsel services to be rendered under this Agreement.
Section 7. Nature of Engagement.
The City acknowledges that Bond Counsel regularly performs legal services for many private and public
entities in connection with a wide variety of matters. Bond Counsel has represented, is representing or may in
the future represent other public entities, underwriters, trustees, rating agencies, insurers, credit enhancement
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providers, lenders, contractors, suppliers, financial and other consultants/advisors, accountants, investment
providers/brokers, providers/brokers of derivative products and others who may have a role or interest in a
particular issuance of Bonds or that may be involved with or adverse to the City in this or some other matter.
Bond Counsel agrees not to represent any such entity in connection with the Bonds financing, during the
term of this Agreement, without the consent of the City. Given the special, limited role of Bond Counsel described
above, the City acknowledges that no conflict of interest exists or would exist, and waives any conflict of interest
that might appear actually or potentially to exist, now or in the future, by virtue of this Agreement or any such
other attorney-client relationship that Bond Counsel may have had, have or enter into, and the City specifically
consents to any and all such relationships.
Section 8. Standards of Professional Conduct.
Bond Counsel and every employee thereof shall provide their services, advice and any reports in full
compliance with all applicable law and professional standards. Bond Counsel represents that it is specially
trained, experienced, expert and competent to perform the services required under this Agreement, and that each
individual providing legal services is a member in good standing of the State Bar and is licensed to practice in
California. Bond Counsel certifies that it will not accept representation in any matters, including litigation, under
this Agreement if it or any employee thereof has any personal or financial interest therein.
Bond Counsel certifies that it accepts this retention because it has the time, energy, skills and ability
necessary to perform the duties required in an efficient, trustworthy, professional and businesslike manner. It is
understood that the services under this Agreement must be provided immediately, and that they are time -critical.
Bond Counsel is engaged by City for its unique qualifications and skills.
Bond Counsel agrees that it will comply with all ethical duties, will maintain the integrity of the attorney-
client relationship and work product privileges, and will take all steps available to preserve all applicable legal
privileges, confidences, and records from disclosure to the extent required by law.
Section 9. No Guarantee of Outcome.
City hereby acknowledges and agrees that this is a best efforts undertaking, and that no guarantee of
success or outcome has been, or can be, made by Bond Counsel.
Section 10. Indemnification.
City agrees that it will indemnify and hold harmless Bond Counsel and its respective directors, officers,
employees and controlling persons (Bond Counsel and each such person being an "Indemnified Party") from and
against any and all losses, claims, damages and liabilities, joint or several, as incurred, to which such Indemnified
Party may become subject under any applicable United States federal or state law, or any applicable foreign law,
or otherwise, and related to or arising out of any untrue statement or alleged untrue statement of a material fact
contained in any information, including without limitation the due diligence disclosure relating to the Bonds (the
"Disclosure"), furnished or made available by City to Bond Counsel or otherwise, to the underwriter or
purchasers of the Bonds or any of their representatives or the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein not misleading, in the light of the circumstances
under which they were made; provided, however, that City will not be liable to the extent that any loss, claim,
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damage or liability resulted from Bond Counsel's bad faith or negligence in performing the services described
above. Bond Counsel shall indemnify and defend City on the same terms and to the same extent as City is
obligated to indemnify and defend Bond Counsel under this Section 10 arising from Bond Counsel's bath faith
or negligence in performing the service described above.
Section 11. Independent Contractor.
Bond Counsel and City understand and agree that Bond Counsel is an independent contractor and that
the City shall not be liable for Workers' Compensation, retirement or unemployment benefits for Bond Counsel
or Bond Counsel's agents, partners or employees.
Section 12. Entire Agreement.
This Agreement contains the entire understanding between Bond Counsel and City. All previous
proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded
except to the extent that they have been incorporated into this Agreement.
No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall
be considered valid unless specifically agreed to in writing by both Bond Counsel and City. No oral agreement
or implied covenant shall be held to vary the provisions of this Agreement. This Agreement shall bind and inure
to the benefit of the parties to this Agreement and any subsequent successors or assigns as may be permitted
pursuant to the provisions of this Agreement.
Section 13. Modification.
Both City and Bond Counsel understand that it may be desirable or necessary during the execution of
this Agreement for Bond Counsel or City to modify the scope of services provided for under this Agreement.
Any material extension or change in the scope of work shall be discussed with City and all changes and
their cost shall be memorialized in a written amendment to this original Agreement prior to the performance of
the additional work. Until a written change order is so executed, City shall not be responsible to pay any charges
Bond Counsel may incur in performing such additional services, and correspondingly Bond Counsel shall not be
required to perform any such additional services.
Section 14. Severability.
All sections and subsections of this Agreement are severable, and the unenforceability or invalidity of
any of the sections or subsections of this Agreement shall not affect the validity or enforceability of the remaining
sections or subsections of this Agreement, but such remaining sections or subsections shall be interpreted and
construed in such a manner as to carry out fully the intention of the parties.
Therefore, if any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity
of the remaining portions or provisions shall not be effected by such holding and shall nevertheless continue in
full force without being impaired or invalidated in any way.
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Section 15. Waiver.
The waiver by either party of a default or breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent default or breach of the same or of a different provision of that party.
No waiver or modification of this Agreement or of any covenant condition, or limitation contained in this
Agreement shall be valid unless in writing and duly executed by the party or parties to be charged therewith.
Section 16. Counterparts.
This Agreement may be executed in any number of counterparts and each counterpart shall for all
purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same
Agreement. Said counterparts may be exchanged electronically and electronic or digital signatures on such copies
shall be deemed and have the same legal effect as original signatures.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers and representatives thereto duly authorized, all as of the day and year first above written.
CITY OF UKIAH, CALIFORNIA
By: 5
SagE Sangiaeomo, City Manager
THE WEIST LAW FI
By:
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