Jones Hall - Wastewater Revenue Refunding Bonds Agreement
AGREEMENT
BETWEEN THE CITY OF GILROY AND JONES HALL, A
PROFESSIONAL LAW CORPORATION, FOR BOND COUNSEL
AND DISCLOSURE COUNSEL SERVICES IN CONNECTION
WITH WASTEWATER REVENUE REFUNDING BONDS
This AGREEMENT is entered into this 1 st day of February, 2010, between the
CITY OF GILROY (the "City") and JONES HALL, A PROFESSIONAL LAW CORPORATION,
San Francisco, California ("Attorneys").
BACKGROUND:
1. The City has previously entered into an Installment Purchase Agreement
dated as of April 1, 1999 (the" 1999 I nstallment Purchase Agreement"), with the South
County Regional Wastewater Authority (the "Authority"), under which the City, under
which the City has agreed to pay semiannual installment payments (the "1999
Installment Payments"), for the purpose of financing improvements to the regional
wastewater treatment plant which is operated by the Authority.
2. The City proposes to issue its 2010 Wastewater Revenue Refunding Bonds
(the "Bonds") for the purpose of refinancing the 1999 Installment Payments and thereby
providing financial savings to the City.
3. Prepayments of the 1999 Installment Payments will be applied to redeem
the outstanding South County Regional Wastewater Authority Revenue Bonds (Regional
Wastewater Facilities Project) Gilroy Refunding Series 1999A, which have been issued
by the Authority in the aggregate principal amount of $38,215,000 (the "Authority
Bonds").
4. The City requires the assistance of bond counsel and disclosure counsel in
connection with the issuance of the Bonds and Attorneys have agreed to provide such
services.
AGREEMENT:
In consideration of the foregoing and the mutual covenants contained in this
Agreement, the City and Attorneys agree as follows:
Section 1. Identification of Client. Attorneys shall represent the City in
connection with the proceedings for the authorization, issuance and sale of the Bonds.
Attorneys shall not represent, and shall owe no duties to, any other party than the City,
including but not limited to the Authority, the financial advisor, trustee and underwriter of
the Bonds.
Section 2. Duties of Attorneys as Bond Counsel. Attorneys shall perform all
of the following services as bond counsel to the City in connection with the issuance and
sale of the Bonds and the refinancing of the 1999 Installment Payments and the
Authority Bonds:
· Consultation and cooperation with the City and its staff and counsel,
with any financial consultant, underwriter and other professional firms
engaged by the City with respect to the issuance of the Bonds, and
assisting such persons in the formulation of a coordinated financial
and legal financing from the proceeds of the Bonds.
· Preparation of all legal proceedings deemed necessary or advisable
by Attorneys for the authorization, issuance and delivery of the Bonds;
and the refinancing of the 1999 Installment Payments and the
Authority Bonds, including preparation of (i) any documentation
required for the issuance of the Bonds by the City and the refunding of
the 1999 I nstallment Payments and the Authority Bonds, including an
Indenture of Trust authorizing the issuance of the Bonds, Irrevocable
Refunding Instructions relating to the refunding of the 1999
Installment Payments and the Authority Bonds, resolution authorizing
the issuance and sale of the Bonds and approving related documents,
all documentation required to be executed by the City in connection
with the delivery of the Bonds to the underwriter, and any agreements
providing collateral security for the Bonds, (ii) all necessary filings with
the California Debt and Investment Advisory Commission, (iii) all
certificates, requisitions, receipts and other documents required in
connection with the delivery of the Bonds to the underwriter, and (iv)
all other proceedings of the City incidental to or in connection with the
issuance, sale and delivery of the Bonds and the refinancing of the
1999 Installment Payments and the Authority Bonds.
· Upon the completion of proceedings to the satisfaction of Attorneys,
providing a legal opinion (i) unqualifiedly approving in all respects the
legality of all proceedings of the City for the authorization, issuance
and delivery of the Bonds and approving the legality of the related
leases and other agreements to which the City is a party, and (ii)
stating that interest on the Bonds is exempt from federal and State of
California personal income taxation. This opinion will be addressed to
the City, and other parties may be permitted to rely upon this opinion
by Attorneys.
· Upon the completion of proceedings to the satisfaction of Attorneys,
providing a legal opinion to the effect that as a result of the deposit
and application of the proceeds of the Bonds and other funds relating
to the Authority Bonds, the obligations of the City under the 1999
Installment Purchase Agreement have been fully discharged and
satisfied, and the Authority Bonds have been fully defeased in
accordance with the documents authorizing the issuance thereof.
This opinion will be addressed to the City and the Authority, and other
parties may be permitted to rely upon this opinion by Attorneys.
· Attending all meetings deemed necessary by Attorneys in the
performance of the services hereunder, or requested by City or its
staff.
· Any and all legal consultation requested by the City concerning the
issuance of the Bonds and the resolutions, certificates, agreements
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and other documents relating to the authorization, issuance and
delivery of the Bonds.
· Such other and further services as are customarily performed by bond
counsel on similar tax-exempt financings.
Section 3. Duties of Attorneys as Disclosure Counsel. Attorneys shall
perform all of the following services as disclosure counsel to the City in connection with
the issuance and sale of the Bonds:
· Participating in the preparation of the Official Statement by consulting
with representatives of the City, the underwriter, the financial advisor
and others, gathering information for disclosure in the Official
Statement, and assisting in drafting the Official Statement.
· Drafting a continuing disclosure certificate of the City and a purchase
contract between the City and the underwriter for the sale of the
Bonds.
· Rendering a letter addressed to the City and the underwriter stating
that based upon Attorneys' participation in the preparation of the
Official Statement, nothing has come to their attention to lead them to
believe that the Official Statement (except for any financial statements
and the financial and statistical data or forecasts, numbers, charts,
estimates, projections, assumptions or expressions of opinion
included therein, and The Depository Trust Company and its book-
entry system and information in the Appendices, as to which no view
need be expressed) as of the date of the Official Statement or the
date thereof contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
Section 4. Compensation. For the Bond Counsel services of Attorneys listed
in Section 2 in connection with each separate series of the Bonds, the City will pay
Attorneys a fee equal to the sum of the following (expressed as a percentage of the
principal amount of the particular series of the Bonds to be issued):
1 % of the first $1 aggregate million principal amount, plus
1/2% of the next $5 million aggregate principal amount, plus
1/4% of the next $5 million aggregate principal amount, plus
1/8% of the remaining principal amount.
Notwithstanding the foregoing percentage schedule, the fee for Bond Counsel
services of Attorneys shall not exceed $50,000.
For the Disclosure Counsel services of Attorneys listed in Section 3 in connection
with each separate series of the Bonds, the City will pay Attorneys a flat fee equal to
$25,000.
In addition, the City shall reimburse Attorneys for all out-of pocket costs and
expenses incurred by Attorneys in connection with their services hereunder for
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messenger and delivery services, photocopying, legal publication, travel and the cost of
preparing transcripts of the proceedings for closing purposes.
Payment of said compensation is entirely contingent upon the successful
issuance of the Bonds, and shall be payable solely from the proceeds of the Bonds, and
from no other funds of the City.
Section 5. Responsibilities of City. The City shall cooperate with Attorneys
and shall furnish Attorneys with certified copies of all proceedings taken by the City and
deemed necessary by Attorneys to render an opinion on the validity of the Bonds.
Attorneys shall not be liable to pay any costs and expenses incurred incidental to the
actual issuance and delivery of the Bonds, including the cost and expense of preparing
certified copies of proceedings required by Attorneys in connection with the issuance of
the Bonds, the cost of rating agencies, all printing and publication costs, fees and
expenses of parties other than Attorneys, costs and expenses of legal advertising and all
other expenses incurred in connection with the issuance of the Bonds, which shall be
paid by the City from the proceeds of the Bonds.
Section 6. Independent Contractor. Attorneys will act as an independent
contractor in performing the services required under this Agreement, and under no
circumstances will Attorneys be considered an agent, partner, or employee of the City.
Section 7. Liability Insurance. Attorneys shall maintain at their own expense
at all times during the term of this Agreement policies of insurance, acceptable to the
City, covering its workers' compensation injuries, public liability and professional liability.
Section 8. Termination of Agreement. This Agreement may be terminated at
any time by the City with or without cause upon written notice to Attorneys. In the event
of such termination, all finished and unfinished documents shall at the option of the City
become its property and shall be delivered to the City by Attorneys.
IN WITNESS WHEREOF, the City and Attorneys have executed this Agreement
as of the date first above written.
JONES HALL, A PROFESSIONAL LAW
CORPORA TION
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Ex cutive Vice resident
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