Jones Hall - 2009 Agreement for the 2003 CertificatesAGREEMENT
BETWEEN THE GILROY PUBLIC FACILITIES FINANCING
AUTHORITY AND JONES HALL, A PROFESSIONAL LAW
CORPORATION, FOR BOND COUNSEL AND DISCLOSURE
COUNSEL SERVICES IN CONNECTION WITH LEASE
REVENUE NOTE AND BOND ISSUES
This AGREEMENT is entered into this 3rd day of August, 2009, between the
GILROY PUBLIC FACILITIES FINANCING AUTHORITY (the "Authority') and JONES HALL,
A PROFESSIONAL LAW CORPORATION, San Francisco, California ( "Attorneys ").
BACKGROUND:
1. The Authority and the City of Gilroy (the "City ") have previously authorized
the execution and delivery of Certificates of Participation (City of Gilroy — Public
Buildings Project) Series 2003 (Auction Rate) in the aggregate principal amount of
$45,900,000 (the "2003 Certificates ") in order to provide financing for the construction of
a police station, a fire station, a corporation yard and a playfield sports complex.
2. The City has requested the Authority to issue its 2009 Lease Revenue
Notes (the "Notes "), the proceeds of which will be used to refinance the 2003 Certificates
and provide additional funding for public capital improvements.
3. The Authority requires the assistance of bond counsel and disclosure
counsel in connection with the issuance of the Notes and any notes or bonds issued to
refund the Notes (the "Refunding Obligations "), and Attorneys have agreed to provide
such services.
AGREEMENT:
In consideration of the foregoing and the mutual covenants contained in this
Agreement, the Authority and Attorneys agree as follows:
Section 1. Identification of Client. Attorneys shall represent the Authority and
the City in connection with the proceedings for the authorization, issuance and sale of
the Notes and any Refunding Obligations. Attorneys shall not represent, and shall owe
no duties to, any other party than the Authority and the City, including but not limited to
the financial advisor, trustee and underwriter of the Notes and Refunding Obligations.
Section 2. Duties of Attorneys as Bond Counsel. Attorneys shall perform all
of the following services as bond counsel to the Authority and the City in connection with
the issuance and sale of the Notes and Refunding Obligations:
Consultation and cooperation with the Authority and City members,
staff and counsel, with any financial consultant, underwriter and other
professional firms engaged by the Authority or the City with respect to
the issuance of the Notes and Refunding Obligations, and assisting
such persons in the formulation of a coordinated financial and legal
financing from the proceeds of the Notes and Refunding Obligations.
Preparation of all legal proceedings deemed necessary or advisable
by Attorneys for the authorization, issuance and delivery of the Notes;
including preparation of (i) any documentation required for the
issuance of the Notes and Refunding Obligations by the Authority and
the refunding of the 2003 Certificates, including a Trust Agreement
authorizing the issuance of the Notes, an Amended and Restated Site
Lease and an Amended and Restated Lease Agreement between the
Authority and the City, an Assignment Agreement from the Authority
to the trustee, Irrevocable Refunding Instructions relating to the
refunding of the 2003 Certificates, resolutions authorizing the
issuance and sale of the Notes and Refunding Obligations and
approving related documents, all documentation required to be
executed by the Authority in connection with the delivery of the Notes
and Refunding Obligations to the underwriter, and any agreements
providing collateral security for the Notes and Refunding Obligations
except as may be within the scope of responsibility of other attorneys
on the transaction, (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 Notes and Refunding Obligations to the original purchaser
thereof, and (iv) all other proceedings of the Authority and the City
incidental to or in connection with the issuance, sale and delivery of
the Notes and Refunding Obligations.
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 Authority for the authorization,
issuance and delivery of the Notes and Refunding Obligations and
approving the legality of the related leases and other agreements to
which the Authority or the City is a party, and (ii) stating that interest
on the Notes and Refunding Obligations is exempt from federal and
State of California personal income taxation. This opinion will be
addressed to 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 Authority or
City staff.
• Any and all legal consultation requested by the Authority or the City
concerning the issuance of the Notes and Refunding Obligations, the
lease agreement, and any resolutions, certificates, agreements and
other documents relating to the authorization, issuance and delivery of
the Notes and Refunding Obligations.
• 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 Authority and the City in
connection with the issuance and sale of the Notes and Refunding Obligations:
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• Participating in the preparation of the Official Statement by consulting
with representatives of the Authority, 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 Authority and the
City and a purchase contract among the Authority, the City and the
underwriter for the sale of the Notes and Refunding Obligations.
Rendering an opinion to the Authority, 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 Notes and Refunding
Obligations, the Authority 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 Notes
or Refunding Obligations to be issued):
1% of the first $1 aggregate million principal amount, plus
1/4% of the next $5 million aggregate principal amount, plus
1/8% of the remaining principal amount.
Notwithstanding the foregoing, if the term of any series of the Notes or Refunding
Obligations is 12 months or less, the foregoing fee shall be discounted by 53 %; and if
the term of any series of the Notes or Refunding Obligations is 24 months or less, the
foregoing fee shall be discounted by 40 %.
For the Disclosure Counsel services of Attorneys listed in Section 3 in connection
with each separate series of the Notes and Refunding Obligations, the Authority will pay
Attorneys a flat fee equal to $20,000 for the Notes, and $15,000 for each issue of
Refunding Obligations, if any.
In addition, the Authority shall reimburse Attorneys for all out -of pocket costs and
expenses incurred by Attorneys in connection with their services hereunder for
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 Notes or Refunding Obligations, and shall be payable solely from the
proceeds of the Notes or Refunding Obligations, and from no other funds of the Authority
or the City.
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Section 5. Responsibilities of Authority. The Authority shall cooperate with
Attorneys and shall furnish Attorneys with certified copies of all proceedings taken by the
Authority and deemed necessary by Attorneys to render an opinion on the validity of the
Notes and Refunding Obligations. Attorneys shall not be liable to pay any costs and
expenses incurred incidental to the actual issuance and delivery of the Notes and
Refunding Obligations, including the cost and expense of preparing certified copies of
proceedings required by Attorneys in connection with the issuance of the Notes and
Refunding Obligations, 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 Notes and
Refunding Obligations, which shall be paid by the Authority from the proceeds of the
Notes and Refunding Obligations.
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
Authority or 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
Authority and 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 Authority 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 Authority become its property and shall be delivered to the Authority by Attorneys.
IN WITNESS WHEREOF, the Authority and Attorneys have executed this
Agreement as of the date first above written.
PUBLIC FACILITIES FINANCING
Director
JONES HALL, A PROFESSIONAL LAW
CORPORATION
(IJ 4LU— T
Vice President
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