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HomeMy WebLinkAbout1988-020 , . ,. ... .I. to. ~" 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. 88-20 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING C E R T A I N PRO P 0 S A L SAN D A G R E E MEN T S (B 0 N D C 0 U N S E LAN DIN V E S JJl ENiT BANKER) WHEREAS, the City of San Bernardino (hereinafter called IICityll), has been requested to commence study of the feasibility of issuing bonds pursuant to the Improvement Bond Act 0 f 19 1 5 f or t he con s t r u c t i on of a 11 0 f f site imp rove men t sin the Central City South Area (Assessment District No. 983); and WHEREAS, BROWN & DIVEN, (IIBond Counse111), has submi tted a proposal to serve as Bond Counsel to the City in connection with the proceedings under the Municipal Improvement Act of 1913 and issuance of said 1915 Act Bonds; and WHEREAS, it is desirable for Bond Counsel and the City to enter into an agreement whereby the respective rights, obligations and duties of Bond Counsel and the City may be set forth with respect thereto; and WHEREAS, MILLER & SCHROEDER FINANCIAL, INC. (the II Investment Bankerll), has submi tted a proposal to act as an Investment Banker and assist the City and the City Staff in determining the financial feasibi1 ity of issuing bonds of the City and to select appropriate methods of financing Assessment District No. 983; and WHEREAS, it is desirable for the Investment Banker and the City to enter into an agreement whereby the respective rights, obligations and duties of the Investment Banker and the City may be set forth with respect thereto. 10-20-87 . ... .. < - <. 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 NOW, THEREFORE, BE IT RESOLVED BY THE ~1AYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO THAT: SECTION 1. The City hereby approves the agreements as a ttached hereto as Exhi bi ts II A" and "B" of the Bond Counsel and Investment Banker, respectively, and incorporated herein by reference and made a part hereof as though fully set forth at length herein. SECTION 2. That the Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City said agreements with the Bond Counsel and Investment Banker. SECTION 3. The source of payment with respect to said agreements as herein approved and the financial obligations of the City relative thereto shall be solely from the sale of the tax-exempt bonds or other obligations of the City as provided in said agreements and not from any other funds or moneys of the City. SECTION 4. This Resolution shall take effect upon adoption. * * * * * * * * * 28 0 - 20- 8 7 2 ; '.. , 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 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a on the day of 1st following vote, to wit: regular meeting thereof, held February , 1988~ by the AYES: CouncilMembers_~~~~22~_~~i]]x~_Flores, Maudsley, Pope-Ludlam, Miller Council Member Minor NAYS: ABSENT: None ~A'?~~Ab' City Clerk The foregoing resol ution is hereby approved this J)l day of Approved as to form and legal content: 26 27 28 0-20-87 February , 198~. 1no 3 .. .. SPECIAL COUNSEL AGREEMENT THIS J-~REEMENT is made and entered into this .:i1l,,1 day of , 198~ by and between the CITY OF SAN BERNARDINO, , a public corporation (hereinafter referred to as "City"), DIVEN, (hereinafter referred to as "Counsel"). NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties here- to as follows: SECTION 1. This Agreement shall be for a term of two (2) years from the date hereof. SECTION 2. That Counsel shall perform legal services in connection with the proposed assessment proceedings and bond issuance in the matter of a proposed special assessment district known and designated as CENTRAL CITY SOUTH ASSESSMENT DISTRICT (MILL AND "G" STREET) (hereinafter referred to as the "Assessment District") under pro- ceedings conducted pursuant to the provisions of the "Municipal Improvement Act of 1913", being Division 12 of the Streets and Highways Code of the State of California. Said Services shall include: A. Review of the dedication and acquisition of the streets and easements and other property in which work is proposed to be performed; B. Examination of the plans and specifications for the proposed work, the boundary map and assessment dia- gram of the Assessment District, the assessment roll and bonds, and the giving of instructions and advice in connection with the foregoing; 'i'l.f; C. Recommendations as to procedure, schedules ahd actions that should be conducted and taken; D. Preparation of all resolutions, notices, contracts, bond forms, and other papers and documents required in the proceedings; E. Examination of the proceedings, step by step, as taken; F. Appear at all hearings under the proceedings, and attend any meeting where attendance is requested; G. Make recommendations as to sale of bonds, if desired; H. Perform legal services, if required, pursuant to the provisions of the "Special Assessment Investigation, Limitation and Majority Protest Act of 1931", being Division 4 of the Streets and Highways Code of the State of California; Exhibit "A" .. \ I. Issuance of an approving legal opinion attesting to the validity of the proceedings and the issuance of the bonds. Such legal services shall not include any services in connection with the acquisition, by easement or condemna- tion, of any easements or other interest in real property necessary for the proposed improvements. These services can be provided by Counsel, by separate agreement, if de- sired. SECTION 3. That the City shall perform as follows: A. Furnish to Counsel such maps, records, title searches, and other documents and proceedings, or certified copies thereof, as are available and may be reason- ably required by Counsel in the performance of the services hereunder; B. Pay to Counsel a fee computed on the confirmed assess- ment as follows: ONE PERCENT (1%) on the first $1,500,000; ONE-HALF PERCENT (1/2%) from $1,500,001 to $7,500,000; ONE-QUARTER PERCENT (1/4%) from $7,500,001 to $15,000,000; ONE-EIGHTH PERCENT (1/8%) on the balance thereof. C. Payment of the above-referenced fee shall be as follows: All due and payable upon receipt of money from the sale and delivery of bonds to the successful under- writer. SECTION 4. Counsel hereby states that it does not represent clients with adverse interests as it relates to the issuance and sale of the bonds for financing this Assessment District. SECTION 5. That this Agreement may be terminated by either party hereto by mailing ten (10) days' prior written notice thereof to the other party involved by certified mail to the following address: CITY OF SAN BERNARDINO BROWN & DIVEN 300 North "Oil Street San Bernardino, California 92418 P.o. Box 8025, Fairbanks Ranch Plaza Rancho Santa Fe, California 92067 Exhibit "A" . . SECTION 6. This Agreement may not be amended except upon the ex- press written agreement of the parties hereto. SECTION 7. This Agreement and any documents or instruments attached hereto or referred to herein integrate all terms and conditions mentioned herein or incidental hereto, and supercede all negotiations and prior writing in respect to the subject matter hereof. In the event of conflict between the terms, conditions or provisions of this agreement, and any such document or instrument, the terms and conditions of this agreement shall prevail. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed on the day and year first hereinabove written. "CITY" CITY OF SAN BERNARDINO ~~tJ. ?Jd~'7 (MAYOR I CITY OF SAN BERNARDINO STATE OF CALIFORNIA ATTEST: ~~~~~ eITY CLERK CITY OF SAN BERNARDINO STATE OF CALIFORNIA APPROVED AS TO FORM and legal content: By: F. "COUNSEL" BROWN & D Exhibit "A" '. ,- AGREEMENT FOR INVESTMENT BANKING SERVICES THIS AGREEMENT, made this Sfil' day of .j{tkU"'j" 1983, by and (/ between the City of San Bernardino, California (hereinafter called the "City"), party of the first part, and MILLER & SCHROEDER FINANCIAL, INC., 505 Lomas Santa Fe Drive, Solana Beach, California (hereinafter called the "investment Banker"), party of the second part: WITNESSETH: WHEREAS, the City proposes to initiate proceedings for Assess- ment District No. 983 (Central City South) (the "Project"); and WHEREAS, the City requires assistance in the development of a sound, equitable and practical financing plan to implement the Pro- ject by taking into consideration sources of capital funds and cash flow requirements, annual costs, the allocation of those costs, statutory requirements and restrictions, and alternate methods, if applicable; and WHEREAS, the City requires the services of a municipal invest- ment banker experienced in financial consulting for and underwriting the obligations of cities to assist in such financial planning and to purchase the City's obligations at negotiated sale, and to co- ordinate the sale and distribution of the City's obligations; and WHEREAS, the City has determined that the Investment Banker is qualified by training and experience to perform said services; Exhibit "B" '. .... ... '. NOW, THEREFORE, it is mutually agreed as follows, to wit: The City hereby employs the Investment Banker and the Invest- ment Banker hereby accepts such employment to perform the services, upon the terms, subject to the conditions, and in consideration of payments as hereinafter set forth: Services to be Performed by the Investment Banker: The Investment Banker shall perform in a diligent manner the following services: 1. Assemble, review and analyze available financial and economic data and information which may have a general bearing on a program for financing the Project. 2. Based on the foregoing analysis, prepare a general review and description of the Project and outline the possible methods of financing such Project, the advantages and disadvantages of each method as applied to a given Project, the general legal and practical requirements or restrictions applicable to each method and their attendant costs. 3. Assist Bond Counsel with the preparation of necessary resolutions and other legal documents and make recommendations as to the exact terms and conditions under which bonds are to be issued and sold, including timing and method of sale, final amortization or repayment schedules, call and redemption features, provisions governing the issuance of additional bonds, covenants and other provisions in order to secure the best possible rating on the bonds. 4. Prepare the text and other material for an Official State- ment or bond prospectus describing the improvements, the bonds, their security, and economic and financial information on the City. Exhibi t liB II . . . .. ~, fI 5. If it is appropriate or desirable for any other public entity or agency thereof to participate in accomplishing the financing for the Project, the Investment Banker, in order to achieve maximum coordination of the proposed financing, shall, upon receipt of the approval of such other public entity or agency, also serve as the investment banker for such public entity or agency under the terms and conditions hereof. 6. The Investment Banker shall be available at reasonable times by telephone or at the offices of the City to discuss on a continuing basis the results of studies and analysis and generate such additional information as described or requested and consult with the City as to the financial aspects of any specific project then being considered. 7. Sale of Bonds: Compensation Unless the private sale of the City's obligations is prohibited by law, the City and Investment Banker shall enter into a bond purchase agreement for the sale of the City's obligations to the Investment Banker bearing interest at rates and at such discount as may be mutually agreeable to the City and the Investment Banker. The purchase of such obligations shall be subject to the standard and customary conditions of obligations of a similar nature including an unqualified legal opinion of counsel with respect to the validity and tax- exempt status of such obligations. City has entered into a contract with the law firm of Brown & Diven as bond counsel for the project. That firm is hereby accepted as "counsel" for Exhibit "B" purpose of this provision for so long as the Agreement between City and Brown & Diven shall remain in effect. It is understood that the Investment Banker's compensation may be greater that the discount to the extent that market conditions allow the obligations to be resold at the price in excess of their par value. The reasonable expectation of such premium, if any, shall be taken into account in determining the interest rate or rates and discount on the obligations. Investment Banker hereby specifically agrees to use its best good faith efforts in establishing the interest rate or rates and discount on the obligations. 8. In accordance with the terms and conditions of the Bond Purchase Contract, the Investment Banker shall, from the bond discount, bear all sales, management, underwriting and out-of-pocket costs and expenses, including, without limitation, travel, telephone, telegraph, stenographic work and the like, incurred by the Investment Banker in performing the Investment Banker's duties and obligations, unless the City specifically agrees in writing to the payment of such costs. The Investment Banker is not responsible for and shall not be held liable for any other expense or expenditure in connection with the financing program. 9. The term of this Agreement shall be two (2) years from the date hereof, but may be cancelled without cause by either party by giving the other party thirty (30) days written notice of such cancellation. Said notice to be sent certified mail to the following address: CITY OF SAN BERNARDINO MILLER & SCHROEDER 300 North "D" Street San Bernardino, CA 92418 505 Lomas Santa Fe Drive Solana Beach, CA Exhibit liB" ,-- . .:~. ',-: 10. This Agreement shall not be amended except upon the express written Agreement of the parties hereto to such amendment. 11. This Agreement and any documents or instruments attached hereto or referred to herein integrate or terms and conditions mentioned herein or incidental hereto, and supercede all negotia- tions and prior writing in respect to the subject matter hereof. In the event of conflict between the terms, conditions or pro- visions of this Agreement, and any such document or instrument, the terms and conditions of this Agreement shall prevail. IN WITNESS WHEREOF, said City, party of the first part, has caused these presents to be properly executed, and said Investment Banker, party of the second part, has caused these presents to be executed by one of its officers, as of the date hereinabove set forth. ATTEST: THE CITY OF SAN BERNARDINO i 2 '- ,/] By oA/~ /?~ (~ . ~~...; --// ~;!., / . . Mnl'/P' :?,~.. ?>9j ,h,J?' Secretary 0 ( SEAL) Approved as to form and 1 egal content: Exhibit "B" . ,...--. f!1} " i~1 Jl ' '.. I'! ,.,. - .~.~ ~ _... "') . .. . -'~',J 10-20-87 . . -p-- - \'-- - . f I .- ........