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HomeMy WebLinkAbout1989-231 \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~ RESOLUTION NO. 89-231 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE ORRICK, HERRINGTON & SUTCLIFFE, AND THE CITY OF SAN BERNARDINO FOR BOND COUNSEL SERVICES. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute a Bond Counsel Agreement between Orrick, Herrington & Sutcliffe, and the City of San Bernardino in the form of a copy of said agreement attached hereto as Exhibit "A". SECTION 2. This Agreement shall not take effect until fully signed and executed by both parties. The City shall not be obligated hereunder unless and until the Agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. SECTION 3. This resolution is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at an adjourned regular meeting thereof, held on the 5th day of July , 1989, by the following vote, to wit: AYES: Council Members Estrada, Reilly, Flores, Maudsley, Pope-Ludlam, Miller NAYS: None ABSENT: Council Member Minor DAB:br June 23, 1989 . ~ 4 BOND COUNSEL AGREEMENT THIS BOND COUNSEL AGREEMENT, made as of the 5th day of July, 1989, by and between the City of San Bernardino (hereinafter called the "City"), and ORRICK, HERRINGTON & SUTCLIFFE, (hereinafter called "Bond Counsel"); R E C I TAL S WHEREAS, the City proposes to hold a city general obligation bond election on November 7, 1989 and, if the election is successful to issue and sell general obligation bonds (the "Bonds") and desires to retain the services of Bond Counsel to assist the City incident to such election, issuance and sale. NOW, THEREFORE, in consideration of the mutual covenants, terms and covenants herein contained, the parties hereto agree as follows: 1. The City hereby employs Bond Counsel to furnish the legal services relative to the Bonds hereinafter set forth and Bond Counsel hereby agrees to furnish such legal services: (a) Consultation with the City, and its staff and counsel and the City's Financial Consultant concerning the election proceedings, including preparation of resolutions, the order, notices, affidavits and certificates as required by law for such election. (b) Consultation with the City and its staff and counsel, and the City's Financial Consultant concerning the Bonds and the timing, terms and structure of the offering thereof. (c) Preparation of the proceedings for the authorization, issuance and public sale of the Bonds. (d) Review, as to those matters relative to the issuance and sale of the Bonds, of the Official Statement describing the Bonds to be prepared by the City's Financial Consultant and, if requested, participation in meetings reviewing the Official Statement, provided, however, that Bond Counsel will not be responsible for the preparation or content thereof. (e) If requested, attendance at meetings of the City Council and with rating agencies and the City's Financial Consultant regarding the issuance and sale of the Bonds. 1768b5 f . , ~ J I (f) Attendance at the public sale of the Bonds, if requested, and preparation of the resolution to be adopted selling the Bonds. (g) Examination of proofs of the Bonds, the preparation of final closing papers, the organization and conducting of the Bond closing and the rendering of a final legal opinion at the time of delivery of and receipt for payment of the Bonds. (h) Such other legal services as may be incidental to the foregoing. Bond Counsel's services will not include representation of the City in any legal action challenging the validity of the transaction. In the event any such services shall become necessary, Bond Counsel will perform such services on such terms as shall be mutually agreeable at the time. 2. Bond Counsel shall receive a fee of $5,000 for legal services rendered pursuant to this agreement, based upon the work performed by Bond Counsel to the date of the election. 3. If the ballot proposition carries and the Bonds are issued and sold, in addition to the fee specified in paragraph 2 above, there shall become due to Bond Counsel upon delivery of the Bonds, or any thereof, a fee for legal services in the amount of $25,000. In the event that Bond Counsel is (i) requested to participate in meetings with bond rating agencies and prospective bond bidders, in accordance with paragraphs l(e} and l(f} of this Agreement, (ii) requested to prepare proceedings in connection with variable interest rate Bonds, or (iii) requested to prepare proceedings which contemplate credit enhancement, either through bond insurance or a letter of credit or otherwise, an additional fee for such work shall be due Bond Counsel, said fee to be agreed upon by the City and Bond Counsel, following the decision by the City or the City's Financial Consultant that such work is desirable. Bond Counsel understands that no litigation is presently pending against the City concerning the Bonds, and, in the event litigation is filed which affects the City or the issuance of the Bonds and which will result in the rendering of additional legal services by Bond Counsel, the fee provided for above shall be subject to adjustment as shall be mutually agreed upon by the City and Bond Counsel. If the ballot proposition carries and the contemplated Bond issuance proceedings are thereafter abandoned or discontinued for any reason and the City does not issue and sell the Bonds, Bond Counsel shall be paid a fee based on Bond Counsel's standard hourly rate by the 2 1768b5 , .. City for services covered by this Agreement and performed by Bond Counsel in connection with the Bonds prior to the date of abandonment or discontinuance, based upon the work performed by Bond Counsel to said date of abandonment or discontinuance, but not to exceed $10,000. 4. In addition to the foregoing, Bond Counsel shall be reimbursed for out-of-pocket expenses, which include traveling expenses, long-distance telephone call charges, reproduction of documents, secretarial overtime requested by the City, filing fees, cost of preparing on Bond Counsel's word processing equipment legal documents required for the proceedings, and like expenditures. Reimbursement as provided hereunder shall be paid following receipt of Bond proceeds; provided, however, should the contemplated election and Bond issuance proceedings be abandoned or discontinued for any reason and the City does not issue and sell the Bonds, Bond Counsel shall be reimbursed by the City for all such out-of-pocket expenses upon submission of an itemized statement therefor. Additional expenses, such as costs of printing necessary legal documents and the Bonds, shall be paid directly by the City. IN WITNESS WHEREOF, as of the date written, the City has caused this instrument its behalf and in its name by its has caused this instrument to be executed on its name by a partner. first hereinabove to be executed on and Bond Counsel its behalf and in CITY OF SAN BERNARDINO BY ORRICK, HERRINGTON & SUTCLIFFE By /./-;.t..) ~ ~...e::.--<.-'1'-~ 3 1768b5 LAW OFFICES ORRICK, HERRINGTON & SUTCLIFFE Suite 3100 333 South Hope Street Los Angeles, California 90071 Telephone (213) 680-7000 Telecopier (213) 680-4600 San Francisco, California 94111 600 Montgomery Street Telephone (415) 392-1122 New York, New York 10022 599 Lexington Avenue Telephone (212) 326-8800 Sacramento, California 95814 555 Capitol Mall Telephone (916) 447-9200 Writer's Direct Dial Number July 18, 1989 Ms. Shauna Clark City Clerk City of San Bernardino P.o. Box 1318 San Bernardino, California 92402 Re: Bond Counsel Aareement Dear Ms. Clark: Pursuant to your July 11, 1989 letter, enclosed please find three executed originals of the Bond Counsel Agreement (the "Agreement") between the City of San Bernardino (the "City") and Orrick, Herrington & Sutcliffe with respect to the City's proposed issuance of general obligation bonds. As you indicated in your letter, the Agreement was approved by Resolution No. 89-231. Please return an original copy of the Agreement along with a copy of Resolution No. 89-231 to me once the City has signed the Agreement. Please do not hesitate to call me if you have any questions. Sincerely, ~.~ SSB: j c r Enclosures 1881b5 f8 :;:q m n rn ~ fT1 o I (') "'''--4 --< F2 rn :::0 ~ F: N o -0 .p"" N -