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HomeMy WebLinkAboutStradling Yocca Carlson and Rauth; 2013-11-15;BOND COUNSEL AGREEMENT STRADLING YOCCA CARLSON & RAUTH THIS AGREEMENT is made and entered into as of the /S*^ day of (\[0{/(^VYKhev^ , 20X3_, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and STRADLING YOCCA CARLSON & RAUTH, a Professional Corporation, ("Bond Counsel"). NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as follows: 1. SCOPE OF WORK Bond Counsel shall perform legal services in connection with proposed proceedings to form one (1) land secured financing district for the purpose of financing authorized public improvements. The financing district is commonly referred to as College Boulevard - Reach A (the "Assessment District"). The Assessment District is formed under proceedings conducted pursuant to the provisions of the Municipal Improvement Act of 1913 (Streets and Highways Code Section 10,000 and following) (the "Improvement Act"), Article XIIID ofthe Constitution ofthe State of California ("Article XIIID") and the Omnibus Proposition 218 Implementation Act (Govemment Code Section 53,750 and following) (the "Implementation Act") (the Improvement Act, Article XIIID, and the Implementation Act may be referred to collectively as the "Assessment Law"). Bonds secured by all unpaid assessments within as Assessment District shall be issued pursuant to the Improvement Bond Act of 1915 (Streets and Highways Code Section 8500 and following) (the "Bond Act"). Such legal services shall include: A. Formation Proceedings - Assessment District 1. Researching applicable laws and ordinances relating to the proposed formation of the Assessment District; 2. Attending conferences and consulting with City staff and the City Attomey regarding such laws, and the need for amendments thereto, or additional legislation; 3. Participating in meetings, hearings, conferences or discussions with any financial advisors, underwriters or other experts retained by the City with respect to the formation of Assessment District; 4. Supervising and preparing documentation of the steps to be taken with respect to the formation of the Assessment District, including drafting all resolutions, nofices, rules and regulations, acquisition agreements and other legal documents required for the formation of the Assessment District in consultation with the City, the City Attomey, the City's fmancial advisor, underwriter and other experts. B. Issuance of Bonds - Assessment District Such services shall include the rendering of legal opinions (hereinafter called the "opinions") pertaining to the issuance of the Assessment District No. bonds to the effect that: City Attomey Approved Version 1/30/13 1. The Assessment District No. bonds have been properly authorized and issued and are valid and binding obligations; and 2. The essenfial sources of security for Assessment District No. bonds have been legally provided; and 3. Interest on the Assessment District bonds is exempt fi-om Califomia personal income taxation and is excluded from gross income for purposes of federal income taxes. Bond Counsel's services will also include: 1. Researching applicable laws and ordinances relating to the issuance of the Assessment District No. bonds; 2. Attending conferences and consulting with City staff and the City Attomey regarding such laws, and the need for amendments thereto, or additional legislation; 3. Participating in meetings, conferences or discussions with any financial advisors, underwriters or other experts retained by the City with respect to the issuance of the Assessment District bonds; 4. Supervising and preparing documentation of the steps to be taken with respect to the formation of the Assessment District and the issuance of the Assessment District bonds, including: a. Drafting all resolutions, notices, rules and regulafions and other legal documents required for the issuance of the Assessment District bonds, and all other documents relating to the security of the Assessment District bonds, in consultation with the City, the City Attomey, the City's financial advisor, underwriter and other experts; b. Preparing the record of proceedings for the authorization, sale and issuance of the Assessment District bonds; c. Assisting in the preparation of the portions of the official statement or placement memorandum for the sale of the Assessment District bonds which relate to the terms of the Assessment District No. bonds and the firm's legal opinion delivered with respect to the bonds including, but not limited to, the bond purchase agreement, bond indenture, and the continuing disclosure agreement; d. Reviewing the purchase contracts or the bidding documents relating to the sale of Assessment District No. 2013-1 Bonds and participating in the related negotiations; e. Participating in meetings and other conferences scheduled by the City, the City's financial advisor or the underwriter; f Consulting with prospective purchasers, their legal counsel and rating agencies; City Attomey Approved Version 1/30/13 g. Consulting with counsel to the City conceming any legislation or litigation which may affect the Assessment District bonds, the security for the Assessment District bonds, or any other matter related to the issuance of the Assessment District bonds; h. Consulfing with any trustee or fiscal agent for the Assessment District bonds and their counsel; i. Preparing the form of the Assessment District bonds, and supervising their production or printing, signing, authentication and delivery; j. Rendering the final approving opinion as to the validity of the Assessment District bonds for use and distribution upon their issuance; and k. Rendering a legal opinion to the underwriter or purchaser of the Assessment District bonds as to the applicability of the registration requirements of federal securities laws and the fair and accurate nature of those portions of the Official Statement described in (c) above. C. Disclosure Counsel Services - Assessment District 1. Prepare the Preliminary Official Statement and Official Statement for the Assessment District. 2. OBLIGATIONS OF CITY A. Cooperation with Counsel. Fumish to Counsel such maps, records, fifie searches, and other documents and proceedings, or certified copies thereof, as are necessary for Counsel to provide its approving legal opinion. B. Payment of Fees for Services Rendered. Payment to Counsel for services rendered pursuant to the engagement for the Assessment District shall be made as follows: 1. Legal Services Related to the Formation Proceedings. Counsel shall be paid on an hourly basis at the hourly rates shown below for those legal services described in Section 1 .A. above pertaining to the formation of the Assessment District; provided, however, that such fees shall not exceed $15,000 forthe Assessment District without the prior written consent of the City. Such fees shall be billed monthly and shall be payable within thirty (30) days following the receipt of each invoice from Counsel. Such fees for the Assessment District shall be payable solely from advances to the City from the owners or developers of property within the proposed Assessment District. City Attomey Approved Version 1/30/13 Hourly Rates Shareholders: $445/Hour Associates: $260/Hour Paralegals: $135/Hour 2. Legal Services Related to the Issuance of Bonds. If an Assessment District is formed and bonds are issued. Counsel shall be paid a fee for all services described in Secfion l.B. above. Such fee will be $45,000 and will be payable only from Assessment District bond proceeds. Such fee shall be due and payable upon the occurrence of the closing of the bonds. 3. Legal Services Related to Disclosure Counsel Services. If an Assessment District is formed and bonds are issued. Counsel shall be paid a fee for all services described in Secfion l.C. above. Such fee will be $25,000 and will be payable only from Assessment District bond proceeds. Such fee shall be due and payable upon the occurrence of the closing of the bonds. 3. STANDARD OF PERFORMANCE While performing the Services, Bond Counsel will exercise the reasonable professional care and skill customarily exercised by reputable members of Bond Counsel's profession practicing in the Metropolitan Southem Califomia Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 4. TERM Bond Counsel's services in this engagement are limited to those expressly set forth in Section 1 above. This engagement shall terminate upon the delivery of the transcripts of the proceedings to the City following the closing of the final series of bonds to be issued for the Assessment District. 5. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 6. STATUS OF BOND COUNSEL Bond Counsel will perform the Services in Bond Counsel's own way as an independent Bond Counsel and in pursuit of Bond Counsel's independent calling, and not as an employee of City. Bond Counsel will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Bond Counsel to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Bond Counsel pursuant to the Agreement will be the fiill and complete compensation to which Bond Counsel is entitled. City will not make any federal or state tax withholdings on behalf of Bond Counsel or its agents, employees or subcontractor counsels. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Bond Counsel or its employees or subcontractor counsels. Bond Counsel agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment. City Attomey Approved Version 1/30/13 unemployment payment or workers' compensation payment which City may be required to make on behalf of Bond Counsel or any agent, employee, or subcontractor Counsel of Bond Counsel for work done under this Agreement. At the City's election. City may deduct the indemnificafion amount from any balance owing to Bond Counsel. 7. SUBCONTRACTING Bond Counsel will not subcontract any portion of the Services without prior written approval of City. If Bond Counsel subcontracts any of the Services, Bond Counsel will be fully responsible to City for the acts and omissions of Bond Counsel's subcontractor counsel and of the persons either directly or indirectiy employed by the subcontractor counsel, as Bond Counsel is for the acts and omissions of persons directly employed by Bond Counsel. Nothing contained in this Agreement will create any contractual relationship between any subcontractor counsel of Bond Counsel and City. Bond Counsel will be responsible for payment of subcontractor counsels. Bond Counsel will bind every subcontractor counsel and every subcontractor Counsel of a subcontractor Counsel by the terms of this Agreement applicable to Bond Counsel's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER BOND COUNSELS The City reserves the right to employ other Bond Counsels in connection with the Services. 9. INDEMNIFICATION Bond Counsel agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys' fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Bond Counsel, any subcontractor Counsel, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable; provided, however, that this duty to defend, indemnify, and hold harmless shall not include any claim based upon the alleged errors or omissions of Bond Counsel related to the rendering of or the failure to render professional services hereunder so long as Bond Counsel maintains in effect errors and omissions insurance as required by this paragraph, or arising from the sole negligence or willful misconduct of the City, its officers, agents or employees. Bond Counsel agrees to maintain errors and omissions insurance in an amount not less than fifteen million dollars ($15,000,000) per claim period throughout the term of this Agreement. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensafion is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Bond Counsel will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connecfion with performance of the services by Bond Counsel or Bond Counsel's agents, representafives, employees or subcontractor Counsels. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of Califomia. City Attomey Approved Version 1/30/13 10.1 Coverages and Limits. Bond Counsel will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not consfitute any limitations or cap on Bond Counsel's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Bond Counsel pursuant to this Agreement are adequate to protect Bond Counsel. If Bond Counsel believes that any required insurance coverage is inadequate. Bond Counsel will obtain such addifional insurance coverage, as Bond Counsel deems adequate, at Bond Counsel's sole expense. 10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. Ifthe submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv. (if the use of an automobile is involved for Bond Counsel's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensafion and Emplover's Liabilitv. Workers' Compensation limits as required by the Califomia Labor Code. Workers' Compensation will not be required if Bond Counsel has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Bond Counsel's profession with limits of not less than $15,000,000 per claim. • If box is checked, Professional Liability City's Initials Bond Counsel's Initials Insurance requirement is waived. 10.2. Additional Provisions. Bond Counsel will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 Reserved. 10.2.2 Bond Counsel will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Bond Counsel will fiimish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Bond Counsel fails to maintain any of these insurance coverages, then City will have the option to declare Bond Counsel in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Bond Counsel is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Bond Counsel or deduct the amount paid from any sums due Bond Counsel under this Agreement. City Attomey Approved Version 1/30/13 10.5 Submission of Insurance Policies. City reserves the right to require, at anyfime, complete and certified copies of any or all required insurance policies and endorsements. IL BUSINESS LICENSE Bond Counsel will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Bond Counsel will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Bond Counsel will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Bond Counsel will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Bond Counsel or its agents, employees, and subcontractor Counsels pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Bond Counsel or its agents, employees and subcontractor Counsels pursuant to this Agreement will be delivered at once to City. Bond Counsel will have the right to make one (1) copy of the work product for Bond Counsel's records. 14. COPYRIGHTS Bond Counsel agrees that all copyrights that arise from the services will be vested in City and Bond Counsel relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Bond Counsel under this Agreement. For Citv Name Charles McBride Title Administrative Services Director Department Finance City of Carlsbad Address 1635 Faraday Avenue Carlsbad, CA 92008 For Bond Counsel Name Titie Address Phone No. Email Brian Forbath Shareholder 660 Newport Center, Suite 1600 Newport Beach, CA 92660 949-725-4193 bforbath@,svcr.com Phone No. 760-602-2430 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attomey Approved Version 1/30/13 16. CONFLICT OF INTEREST Bond Counsel shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Bond Counsel shall report investments or interests in all four categories. Bond Counsel represents many of the underwrifing firms active in the issuance of bonds for assessment districts and other municipal financings. The City hereby provides its informed written consent to Bond Counsel's representation of such underwriting firms on matters unrelated to the Assessment District. 17. GENERAL COMPLIANCE WITH LAWS Bond Counsel will keep fully informed of federal, state and local laws and ordinances and regulafions which in any manner affect those employed by Bond Counsel, or in any way affect the performance of the Services by Bond Counsel. Bond Counsel will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Bond Counsel's services with all applicable laws, ordinances and regulations. Bond Counsel will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractor Counsels and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Bond Counsel will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representafives of Bond Counsel or City will reduce such quesfions, and their respecfive views, to wrifing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representafive receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsafisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Bond Counsel's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Bond Counsel by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Bond Counsel. Upon notification of terminafion. Bond Counsel has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determinafion of fact based upon the work product delivered to City and of the percentage of work that City Attomey Approved Version 1/30/13 Bond Counsel has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Bond Counsel will assemble the work product and put it in order for proper filing and closing and deliver it to City. Bond Counsel will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 2L COVENANTS AGAINST CONTINGENT FEES Bond Counsel warrants that Bond Counsel has not employed or retained any company or person, other than a bona fide employee working for Bond Counsel, to solicit or secure this Agreement, and that Bond Counsel has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulfing from, the award or making of this Agreement. For breach or violafion of this warranty. City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Bond Counsel agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigafion or in conjunction with litigation. Bond Counsel acknowledges that if a false claim is submitted to City, it may be considered fraud and Bond Counsel may be subject to criminal prosecution. Bond Counsel acknowledges that Califomia Government Code sections 12650 et seq.. the False Claims Act applies to this Agreement and, provides for civil penalfies where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entified to recover its lifigation costs, including attomey's fees. Bond Counsel acknowledges that the filing of a false claim may subject Bond Counsel to an administrative debarment proceeding as the result of which Bond Counsel may be prevented to act as a Bond Counsel on any public work or improvement for a period of up to five (5) years. Bond Counsel acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of Califomia, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Bond Counsel and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Bond Counsel without the prior consent of City, which shall City Attomey Approved Version 1/30/13 not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a wrifing signed by both parties. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] City Attomey Approved Version 1/30/13 10 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Bond Counsel each represent and warrant that they have the legal power, right and actual authority to bind Bond Counsel to the terms and conditions of this Agreement. STRADING YOCCA CARLSON & RAUTH, a Professional Corporation CITY OF CARLSBAD, a municipal corporation of the State of Califomia (sign here) Brian Forbath, Shareholder (print name/title) City M-ant[gcr or Mayor or Division T)irQ(^hsBAo '^^^ as authorized by the City Managei<>QV^..'*^'^*^V^s^''':^ -Of ATTEST: BARBARA ENGLESON City Clerk If required by City, proper notarial acknowledgment of execution by Bond Counsel must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BY R, City Attomey y^/Assi§trfCity Attomey City Attomey Approved Version 1/30/13 11