Jones Hall - Bonfante Gardens Agreement
JONES HALL
A PROFESSIONAL LAW CORPORATION
AGREEMENT FOR SPEGAL LEGAL SERVICES
THIS AGREEMENT FOR LEGAL SERVICES is made and entered into this 30 7~
day of Oe.c.rMflt!/L , 1999, by and between the CITY OF GILROY of Santa Clara County,
California, (the "Client"), and JONES HALL, A Professional Law Corporation, San Francisco,
California (" Attorneys").
WITNESSETH:
WHEREAS, the Client proposes to assist in the financing of certain recreational and
educational facilities for the Bonfante Gardens Theme Park ("Bonfante Gardens") by issuing
evidence(s) of indebtedness in the form of bonds, notes, certificates of participation or other
documents (the "Securities"); and
WHEREAS, the Client finds that Attorneys are specially trained and experienced to
provide services for the financing and the issuance of the Securities; and
WHEREAS, the public interest, economy and general welfare will be served by this
Agreement for Special Legal Services (the" Agreement");
NOW, THEREFORE, IT IS HEREBY AGREED, as follows:
1. Duties of Attorneys. Attorneys shall provide legal services in connection with the
authorization, issuance and consummation of the financing proceedings relating to the
Securities. Such services shall include the following:
a. Confer and consult by conference, teleconference, mail, e-mail, and / or fa x
with the officers, attorneys and administrative staff of the Client and with other
members of the Client's financing team, including financial advisors, underwriters,
disclosure and underwriter counsel, and any bond insurers and any rating agency
personnel, to create complete and successful proceedings for the authorization, issuance,
sale and delivery of the Securities;
b. Prepare any required agreements, contracts, any required amendments to
existing financing documents, indentures, ordinances and all resolutions, notice and legal
documents necessary for the proper conduct of the financing proceedings relating to the
Securities, including procedure ordinances and resolutions under the Client's city charter;
c. Assist the Client, as required, in the processing and timing of its
financing, including assisting the Client in obtaining the services of other consultants for
the financing, including, but not limited to non-profit corporation counsel, disclosure
counsel, financial advisors and underwriters;
d. Review, without undertaking an independent investigation, any official
statement or other disclosure document prepared in connection with the financing
proceedings to assure correctness of disclosure relating to the legal documents;
e. Prepare and provide for the closing of any financing, including a signature
and no-litigation certificate, an arbitrage certificate, use of proceeds certificates, receipts
and any and all other closing documents required to accompany delivery of the
Securities;
f. Prepare and provide a transcript of the proceedings necessary to
accompany delivery of the Securities;
g. Subject to the favorable determination of the Attorneys of compliance
with applicable federal and state tax laws and rules, provide the legal opinion of
Attorneys that the interest due with respect to the Securities is excluded from gross
income for purposes of federal income taxation and that such interest is exempt from
California personal income taxation;
h. Subject to the favorable determination of the Attorneys of compliance
with applicable state law and local, charter city procedures, provide the legal opinion of
Attorneys approving in all regards the legality of all proceedings relating to the Securities
and that the Securities are legal, valid and binding obligations, payable from and in
accordance with the terms of their authorization documents; and
i. Confer and consult with Client officials and agents with regard to
problems which may arise during the servicing and payment of principal and interest on
the Securities after closing.
2. Compensation. For any separate issue of Securities, the Attorneys shall be paid:
1 % of the first $1,000,000 of principal amount; 1/2% of the next $9,000,000 of principal
amount; and 1/4% of any principal balance over $10,000,000. For each such issue, the
Attorneys shall be reimbursed the costs of out-of-pocket expenses, including filing, messenger
and delivery services and duplication costs, but not to exceed $3,000 per each such issue. The
payment of any compensation is entirely contingent on the closing of the financing. Payment of
such compensation shall be arranged by separate agreement by and between the Attorneys and
Bonfante Gardens under which agreement the Attorneys understand and agree that Bonfante
Gardens, for whose benefit the financing is being arranged, and not the City, will be solely
responsible for said compensation and costs.
The foregoing services and compensation include any travel by the Attorneys within the
State of California. In the event out-of-state travel is required, it shall be subject to separate
written agreement between Attorneys and the Client.
3. Excepted Services. There shall be excepted from the services required of the
Attorneys under this Agreement, any services involving litigation of any sort, including any
validation actions for the Securities, if required, any services as disclosure counsel and any
services regarding on-going compliance with federal arbitrage, rebate and continuing disclosure
laws. Any services excepted from or otherwise not included in this Agreement and for which
the Client wishes to retain the Attorneys and which the Attorneys agree to perform shall be
subject to separate written agreement(s) between Attorneys and the Client.
4. Responsibilities of the Client. The Client shall cooperate with Attorneys and
shall furnish Attorneys certified copies of all proceedings taken by the Client, or other
information deemed necessary by Attorneys to render an opinion upon the validity of such
proceedings. The Client shall also be responsible for any compliance required under applicable
federal income tax law and regulatory and securities laws, including those for continuing
disclosure.
5. Termination of Agreement. This Agreement for Legal Services may be terminated
by the Client, with or without cause, at any time prior to completion, by giving written notice to
the Attorneys. In the event of termination, all finished and unfinished documents, exhibits,
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project data, reports and evidence shall, at the option of the Client, become its property and
shall be delivered to it by Attorneys.
6. Subcontracting and Assignment The Attorneys are prohibited from
subcontracting or assigning any services to be performed under this Agreement without the
Client's prior written consent.
7. Indemnification and Insurance. To the fullest extent permitted by law, Attorneys
shall defend through counsel approved by the City (which approval shall not be unreasonably
withheld), indemnify and hold harmless the City, its officers, representatives, agents and
employees against any and all suits, damages, costs, fees, claims, demands, causes of action,
losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising
or resulting directly or indirectly from any willful or negligent acts, errors or omissions of
Attorneys or Attorneys' assistants, employees or agents, including all claims relating to the
injury or death of any person or damage to any property. The limit on Attorneys' liability to the
City hereunder is the greater of $1,000,000 per occurrence or the maximum coverage under
Attorneys' Professional Liability Insurance policies.
In addition to any other obligations under this Agreement, Attorneys shall, at no cost to
the City, obtain and maintain throughout the term of this Agreement: (a) Comprehensive
Liability Insurance, including coverage for owned and non-owned automobiles, with a minimum
combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily
injury, sickness or disease, or death to any person, and damage to property, including the loss
of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum
coverage of $5,000,000 per occurrence and aggregate. As a condition precedent to the City's
obligations under this Agreement, Attorneys shall furnish evidence of such coverage (naming the
City, its officers and employees as additional insureds on the Comprehensive Liability
insurance policy referred to in (a) immediately above) and requiring thirty (30) days written
notice of policy lapse or cancellation, or of a material change in policy terms.
8. Notices. Any notice to be given by the parties hereto shall be in writing and
delivered or mailed, first class, postage prepaid to the following addresses:
To the City:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attention: Michael Dorn, Administrative Services Director
To Jones Hall:
650 California Street
18th Floor
San Francisco, CA 94108
Attn: Stephen R. Casaleggio, Vice President
Notices delivered personally will be deemed delivered as of actual receipt; mailed
notices will be deemed delivered as of three (3) days after mailing.
9. Confidential Information. During and after the term of this Agreement,
Attorneys shall maintain in confidence and not use, except to the extent required to perform its
obligations hereunder, all proprietary or confidential information of the City of which Attorneys
may become aware in the performance of their services hereunder.
10. Partial Invalidity. If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will
nevertheless continue in full force without being impaired or invalidated in any way.
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IN WITNESS WHEREOF, the Client and Attorneys have executed this Agreement as of
the date first written above.
CLIENT:
CITY OF GILROY
ATTORNEYS:
JONES HALL,
A Professional Law Corporation
By:
.~ ;/Q?-
Michael Dorn,
Administrative Services Director
By:
~~
Stephen R. Casaleggio,
Vice President
Approved as to Form:
By:
Of~I<. ~
Linda A. Callon,
City Attorney
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