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HomeMy WebLinkAbout1988-069 -" 1 RESOLUTION NO. 88-69 2 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING CERTAIN PROPOSALS AND AGR~~EMENTS (BOND COUNSEL, UNDERWRITER AND ASSESS- 3 MENT ENGINEER) 4 WHEREAS, the City of San Bernardino (hereinafter called 5 "City", has been requested to commence proceedings for the issuin 6 of bonds pursuant to the Improvement Bond Act of 1915 for the con 7 truction of street improvements in portions of Industrial Park- 8 way between Palm Avenue and the Cable Creek Flood Control Channel 9 and in portions of the East side of Palm Avenue between Indust- 10 rial Parkway and the A.T.& S.F. Railroad right of way; and 11 WHEREAS, on October 6, 1987, the City Engineer and City 12 Clerk were authorized to proceed with initiating proceeding for 13 the project under the provisions of the 1913/15 Act, (Assess- 14 ment District No. 985); and 15 WHEREAS, the Developer has requested that BEST, BEST & 16 KRIEGER act as Bond Counsel and that STONE & YOUNGBERG act as 17 Financial Consultant (Underwriter) on the project which was ap- 18 proved by reference in the authorization to proceed on said 19 October 6, 1987 Council Meeting; and 20 WHEREAS, the Director of Public Works did on November 20, 21 1987, conduct panel interviews for Assessment Engineering service 22 for the project and the firm of WILLDAN ASSOCIATES was chosen to 23 act in that capacity; and 24 WHEREAS, BEST, BEST & KRIEGER ("Bond Counsel"), has sub- 25 mitted a proposal to serve as Bond Counsel to the City in con- 26 nection with the proceedings under the Municipal Improvement Act 27 of 1913 and issuance of said 1915 Act Bonds; and 28 WHEREAS, the City Attorney has recommended that outside counsel be retained. 2-24-8 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 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. STONE & YOUNGBERG (the IIUnderwri terll). has submitted a proposal to act as Financial Consultant (Underwriter) and assist the City and the City Staff in determining the financial feasibility of issuing bonds of the City and to select appropriate methods of financing Assessment District No. 985; and WHEREAS. it is desirable for the Financial Consultant (Underwriter) and the City to enter into an agreement whereby the respective rights. obligations and duties of the Underwriter and the City may be set forth with respect thereto; and WHEREAS. WILLDAN ASSOCIATES. (the Assessment Engineer) has submi tted a proposal to serve as Assessment Engi neer for the City in connection with the proceedings to prepare the Engineer's Report. Maps. Notices and Assessment Rolls necessary for the proceedings; and WHEREAS. it is desirable for the Assessment Engineer and the City to enter into an agreement whereby the respective rights. obligations and duties of the Assessment Engineer and the City may be set forth with respect thereto. 12 2-87 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 26 27 28 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO THAT: SECTION 1. The City hereby approves the agreements as attached hereto as Exhibits IIAII, IIBII and IICII of the Bond Counsel, Underwriter and Assessment Engineer, 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, Underwriter and Assessment Engineer. 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 up-front monies deposited with the City by the Developer and/or 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. * * * * * * * * * 12 2-87 3 . - Ass~ssment District 985 Consultant Agreement 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 I HEREBY CERTIFY that the foregoing resol ution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a on the 7th day of following vote, to wit: regular mee ti ng thereof, he 1 d March , 1 9 ~, by the AYES:CouncilMembers___~~~~~~~_Florea~~~e~, Minor, Miller NAYS: ABSENT: None Council members Reilly, Pope-Ludlam ~~~~/ , C ty Clerk The foregoing resolution is hereby approved this filL- day of Approved as to form and legal content: /\ .~.,/ 1 I / , I ! , .U 1'~ Attorney 1 2-87 March , 19~ (2 Li b/") <7 . ;~ / /./ "" /( -(. /( ,. / I A; . I P,f:or of P;;c{ty of San erVrdi no ,I 4 ~ / '/ AGREEMENT FOR LEGAL SERVICES THIS AGREEMENT is entered into as of the ~4r day of ~I qf1-l' , 1988 by and between THE CITY OF SAN BERNARDINO, a municipal corporation (the "City"), and BEST, BEST & KRIEGER, a partnership including professional corpora- tions (the "Attorneys"). 1. Employment. The City employs the Attorneys as special counsel to the City to assist it in conducting proceedings pursuant to the Municipal Improvement Act of 1913, Division 12 of the Streets and Highways Code, and the Improvement Bond Act of 1915, Division 10 of said Code, for the purpose of establishing an assessment district, including portions of the City which will benefit from the acquisition and construction of certain public improvements, and as bond counsel, with respect to the issuance of bonds pursuant to the said Improvement Bond Act of 1915, for the purpose of financing the design, acquisition and construc- tion of said public improvements and expenses incidental thereto. 2. Services. The Attorneys will advise the City Attorney's Office in regard to the proceedings for the es- tablishment of said assessment district and will prepare all ordinances, resolutions, notices, bond forms, and other documents required in the proceedings. amine all proceedings, step-by-step They will ex- as taken, and when the bonds are issued, will -1- Exhibit "A" ". .'~ issue their opinion or opinions upon the validity thereof. They will also attend any meeting in which substantive action in connection with the proceedings is to be taken. The services to be rendered by the attorneys will not include any services in connection with validation or condemnation suits, if such suits be filed to validate any proceedings or for the acquisition of any property or 'easement proposed to be taken. The services of the Attorneys also do not include any services or opinions in connection with the writing of case contracts, any services or opinions in connection with any proceeding subsequent to the sale of bonds, or any services or opinions in connection with any litigation. 3. Compensation. For preparation and supervision of the proceedings, examination of each step as taken, and the issuance of their approving opinion on the bonds to be issued, the Attorneys will be paid the greater of $15,000 or an amount determined in accordance with the following schedule. The amount to which the following schedule percentages are applied is the aggregate amount of the face value of bonds issued to finance the improvements within the proposed assessment district as contemplated by this agreement. AMOUNT $0.00 '$1,000,000. PERCENTAGE 1-1/2% 3/4 of 1% - $ 1,000,000. - $ 5,000,000. 1-7-88 Exhibit "A" -2- $5,000,000. - $10,000,000. 1/2 of 1% Over $10,000,000. 1/4 of 1% The Attorney's fee will be payable upon the issuance of bonds. If other services are requested by the City which are not within the scope of those provided for herein, they will be performed by the Attorneys on a time-basis at the hourly rates of the Attorneys involved. In the event the bonds are not issued, the Attorneys will be paid a reasonable fee, to be mutually agreed upon, based upon applicable hourly rates of the Attorneys undertaking the work prior to abandonment but in no event shall such sum exceed $15,000. 4. Reimbursement of Expenses. In addition to the fees provided for above, the Attorneys will be reimbursed by the City upon monthly statements for any out-of-pocket expenses incurred by them in the course of their employment, such as long distance telephone calls, telegrams, messenger and courier services, travel at the request of City officials, duplicating, computer time, and the like. The Attorneys will order the printing of the bonds for the account of the 1-7-88 -3- Exhibit "A" " city. The bills for such printing will come directly to the City and will be paid from bonds proceeds. IN WITNESS WHEREOF, the parties have caused this agreement to be executed as of the date first above written. CITY OF SAN BERNARDINO BY ~f~,~/IJ~' r:1ayor - 1 / ATTEST: ~~~~/ ..e;i ty Clerk BE7/j lJM\ BY / '" " Partner APPROVED AS TO FORM AND LEGAL CONTENT ,l~ Attorney 1-7-88 -4- Exhibit "A" ,/,-.'" ../ /.". /,., ..... ( AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made and entered into this /4-1:- day of a;J , 19~, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter called "City", and WILLDAN ASSOCIATES, a California corporation, hereinafter call "Engineer". WITNESSETH WHEREAS, City desires to establish a Benefit Assessment Dis- trict for street improvements and other required improvements for the project known as the Industrial Parkway Assessment Dis- trict, pursuant to the. proceedings of one or more of the municipal improvement acts; and WHEREAS, in order to develop such a program, it is necessary to retain the professional services of a qualified engineering and consulting firm; and WHEREAS, Engineer is qualified to provide said professional services for the development of such a program; and WHEREAS, San Bernardino City Council has elected to engage the services of Engineer upon the terms and conditions as herein- after set forth. NOW, THEREFORE, it is mutually agreed, as follows: 1. GENERAL Engineer shall perform those services specified in "Scope of Services", a copy of which is attached hereto as Exhibit "I" and incorporated herein by reference and made a part hereof as though it were fully set forth herein. 1-11-88 Exhibit "c" , ' Performance of the work specified in said Proposal is made an obligation of E~gineer under this Agreement, subject to any changes made subsequently upon the mutual agreement of the parties hereto. 2. COMPENSATION Compensation to Engineer for the total services to be rendered pursuant to this Agreement shall be a lump sum of twenty thousand dollars ($20,000). These amounts shall be paid in monthly installments as work progresses and shall be totally due and payable upon com- pletion of all the items of work specified in Exhibit "1". 3. EXTRA SERVICES No extra services shall be rendered by Engineer under this Agreement unless such extra services shall be authorized, in writing, by City, prior to the performance of such extra services. Authorized extra services shall be invoiced based on Engineer's "Schedule of Hourly Rates" dated August, 1987, a copy of which is attached hereto as Exhibit "2" and incorporated herein by reference and made a part hereof as though it were fully set forth herein. 4. PAYMENT BY CITY The billings for all services rendered pursuant to this Agreement shall be submitted monthly by Engineer to City and shall be paid by City within twenty (20) days after receipt of same. 5. The director of Public Works of City, or his designee, shall have the right of general supervision of all work performed by Engineer and shall be City's agent with respect to obtaining 1-11-88 Exhibit "c" Engineer's compliance hereunder. No payment for any services rendered under this agreement shall be made without prior approval of the Director of Public Works or his designee. // / /' / // / // // // // " // 1-11-88 / / / / / / Exhibit "e" 11. NOTICES Official notices relative to the services proyided und~r this Agreement shall be in writing addressed to the following: Engineer City Mr. John A. Friedrich Willdan Associates 155 Hospitality Lane, Ste. 110 San Bernardino, CA 92408 Mr. Roger G. Hardgrave Director of Public Works/ City Engineer 300 North "0" Street San Bernardino, CA 92418 12. ENTIRE AGREEMENT This Agreement and any documents or instrument attached hereto or referred to herein integrate all terms and conditions mentioned herein or incidental hereto, and supersede 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 in- strument, the terms and conditions of this Agreement shall pre- vail. .// // // // // // ..- // // ,,/ ,/ 1-11-88 Exhibit "c" 6. ASSURANCE OF COMPLIANCE WITH CIVIL RIGHTS LAWS Engineer hereby certifies that it will not_ndiscriminate against any employee or applicant for employment because of race, color, religion, sex, marital status or national origin. Engineer agrees to take affirmative action to ensure that applicants are employed and employees are treated during employment without regard to their race, color, religion, sex, martial status or national origin. Such action shall include, but not be limited to, the following: employment; upgrading, demotion or transfer; recruitment or recruitment advertising; and designated repre- sentatives. In addition, Engineer shall not exclude from participa- tion in, deny the benefits of or subject to discrimination under this Agreement any employee or applicant for employment on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as pro- vided in Section 504 of the Rehabilitation Act of 1973 or religion except that any exemption from such prohibition against discrimina- tion on the basis of religion as provided in the Civil Rights Act of 1964 or Title VIII of April 11, 1968, as amended, shall also apply. 7. TERMINATION OF AGREEMENT City shall have the right to terminate this Agreement upon giving a 10-day written notice of such termination to Engineer. In the event of such termination, the Director of Public Works of his designee, based upon work accomplished by Engineer prior to notice of such termination, shall determine the amount of fees 1-11-88 Exhibit "c" to be paid to Engineer for such services based upon accepted eng~~eering and/or planning practices. E~gineer sh~ll have the right of appeal to such finding by the Director of Public Works or his designee, pursuant to San Bernardino Municipal Code, Section 2.64. 'I'ae 8et.ermin.:ltion of tno }{.:lyor .:lad COHlft\OR COblRelil !!I1.all ee final dl\/l. conclu3i vc a3 t.o lohe 1iIl\6HnL of 31l.ch fee", J(J;~ 8. INDEPENDENT CONTRACTOR ~0f~ Engineer shall act as an independent contractor in the per- formance of the services provided for in this Agreement and shall furnish such services in Engineer's own manner and method and in no respect be considered an agent or employee of City. 9. NON-ASSIGNMENT This Agreement is not assignable either in whole or in part by Engineer without the written consent of City. 10. HOLD HARMLESS Engineer hereby agrees to and shall hold City, its elective and appointive boards, officers and employees harmless from any liability for damage or claims for damage for personal injury including death as well as from claims for property damage which may arise from Engineer's negligent acts, errors or omissions under this Agreement. Engineer agrees to and shall defend City and its elective and appointive boards, officers and employees from any suits or actions at law or in equity for damages caused by reason of any of the aforesaid negligent acts, errors or omissions. 1-11-88 Exhibit "c" IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officer duly authorized in that behalf. WILLDAN ASSOCIATES 1-11-88 CITY OF SAN BERNARDINO a municipal corporation Bydi-<~ 1-- A) J2 t~~ yor / - '--' ATTEST: ~~~ C--:fty Clerk APPROVED AS TO FORM and LEGAL CONTENT: Exhibit "c" CITY OF SAN BERNARDINO INDUSTRIAL PARKWAY ASSESSMENT DISTRICT EXHIBIT "l'T SCOPE OF SERVICES In conjunction with the preparation of the Assessment Dis- trict Feasibility Report and formation of an Assessment District, the Engineer shall provide the following services: Phase 1 - Assessment District Feasibility Report 1. Determine area of benefit. 2. Prepare composite boundary map. 3. Prepare assessment roll. 4. Identify non-assessable properties, if any. 5. Identify facilities to be financed by Assessment District. 6. Meet with City staff, as required. 7. In conjunction with City staff, determine assessment spreading basis. 8. Attend a minimum of two (2) meetings and conduct an open house work shop with the area participants to discuss the district, boundaries, assessments and method of spread. 9. Prepare alternates on the items to be included in the district for cost comparison purposes and new rolls for each. 10. Submit the property owners list, boundary map, preliminary cost spreads and other pertinent data to the City in a re- port form upon completion of Phase 1. Phase 2 - Assessment District Proceedings 1. Review the proposed facilities and determine if any area outside the District will receive benefit from the pro- posed facilities. If such is the case, make provisions for outside contributions. 2. Coordinate with the appraisal engineer, design engineer, bond counsel and financial consultant selected for this project. 3. Assist in the preparation of a detailed time schedule for the assessment proceedings. 1-11-88 Exhibit "1" 4. Prepare District boundary map. 5. Prepare assessment diagram. 6. Prepare a cost estimate of all incidental costs associated with the Assessment District. 7. Prepare the Preliminary Engineer's Report which will contain the plans and specifications, cost estimate with incidentals, assessment roll, method of assessment, District Procedural Certificates, assessment diagram and the description of work. 8. Prepare and post notices. 9. Prepare "Notice of Assessment Amount" (computer) con- taining (preliminary/confirmed) assessment amount, ownership name and address, assessment number and Assessor's parcel number. These notices will be pre- pared for two (2) mailings for Notification of Public Hearing and Confirmed Assessment. 10. Attend the public hearings and present the Engineering's Report. 11. Prepare an amended Engineer's Report after opening construction bids to reflect the Contractor's bid prices for each item of work. 12. Upon completion of the public hearing on the assessment spread, make revisions as may be ordered by the City Council. 13. Assist in the filing and recording of diagram and maps and prepare (Notice of Assessment) for recording and publication, as required by Assessment District proceedings. 14. Prepare the collection list for the 3D-day cash collection period. 15. Assist in the audit of the initial cash payments in lieu of bonds in cooperation with the designated collection officer and assist in compiling the initial list of unpaid assessments in excess of $150 (or whichever minimum amounts the statutes may provide at the time). Unpaid liens of less than $150 would be included on the collection list to be submitted to the County. 1-11-88 Exhibit "1" Services Provided By City III setting forth the Scope of $ervices, the City will assist the Engineer by providing the following: 1. Up-to-date maps, plans, reports and other data relating to the project. 2. Envelopes and City letterhead for mailings. 3. All appropriate cost estimates necessary for inclusion in the Engineer's Report. 4. Right-of-entry upon public and private property, as required. 5. Other consultants whose services are required to com- plete the project. 1-11-88 Exhibit "1" WILLDAN ASSOCIATES SCHEDULE OF HOURLY RATES August 1987 Exhibit "2" Classification Engineering Sr. Consultant Principal Engineer Division Manager Project Director Sr. Engineer Sr. Project Manager Project Manager Associate Engineer Sr. Designer (CADD) Designer (CADD) Supervising Engineer Engineering Associate Sr. Designer Sr. Design Engineer Design Engineer Sr. Drafter Designer Sr. Drafter (CAD) Drafter (CAD Drafter Technical Aide Spvsr. - Public Works Observation Sr. Public Works Observer Public Works Observer Sr. Real Property Agent Real Property Agent Assistant Real Property Agent Surveying Spvsr. Mapping Services Sr. Survey Analyst Sr. Calculator Calculator II Survey Analyst Calculator I Spvsr. - Survey Survey Party Chief Two-Man Field Party Three-Man Field Party 7/27/87 1-11-88 Fee Rate Per Hour $110.00 100.00 88.00 82.00 75.00 73.00 66.00 64.00 64.00 60.00 82.00 64.00 60.00 52.00 48.00 50.00 42.00 50.00 46.00 40.00 34.00 66.00 55.00 46.00 75.00 66.00 55.00 80.00 60.00 60.00 50.00 50.00 40.00 72.00 67.00 132.00 170.00 Effective 8/1/87 Exhibit ":2" Schedule of Hourly Rates August 1987 Page 2 Fee Rate Per Hour Special Districts Special Districts Coordinator Special Districts Analyst II Special Districts Analyst I $ 75.00 55.00 45.00 Planning Principal Planner Sr. Planner Planning Associate Planning Assistant Planning Technician 75.00 61.00 56.00 44.00 35.00 Building Plan Check Engineering Spvsr. Building Inspection Building Inspector Permit Specialist Rehabilitation Specialist Sr. Rehabilitation Specialist Spvsr. Rehabilitation Services 60.00 60.00 50.00 37.00 45.00 55.00 65.00 Computer Computer Time Spvsr. Programming Sr. Program Analyst Program Analyst Programmer Computer Data Entry 63.00 66.00 55.00 46.00 37.00 32.00 Other Secretarial 30.00 Consultation in connection with litigation and court appearances will be quoted separately. Additional billing classifications may be added to the above listing during the year as new positions are created. 7-27-87 Effective 8/1/87 1-11-88 Exhibi t "2" Schedule of Hourly Rates August 1987 Page 3 The above schedule is for straight time. Overtime will be charged at 1.25 times the standard hourly rates. Sundays and holidays will be charged at 1.70 times the standard hourly rates. It should be noted that the foregoing wage rates are effective through July 31, 1988. The rates may be adjusted after that date to compensate for labor adjustments and other increases in labor costs. 7-27-87 Effective 8/1/87 1-11-88 Exhibi t "12" ',.. . . "' . .t AGREEMENT FOR INVESTMENT BANKING SERVICES THIS AGREEr1ENT, made this /~ day of t'p , 1988, by and between the City of San Bernardino, California (hereinafter called the "City"), and STONE & YOUNGBERG, 15260 Ventura Boule- vard, Sherman Oaks, California (hereinafter called the "Investment Banker"): WITNESSETH: WHEREAS, the City proposes to initiate proceedings for Assessment District No. 985 (Industrial Parkway Improvement District) (the "Project"); and WHEREAS, the City requires assistance in the development of a sound, equitable and practical financing plan to implement the Project 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 investment 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 coordinate 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; 1-7-88 1 Exhibit liB" .~ ; ., 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: I. Services to be performed by the Investment Banker: A. Structuring the Financing: 1. Investment Banker will work with City in developing the scope of the financial feasibility and assessing the marketability of the project. 2. Investment Banker will work with the City's bond counsel recommending specific terms and conditions affecting the basic security of the Bonds. 3. Investment Banker will prepare the text of an Official Statement for sale of the securities. Said Official Statement will include a descrip- tion of the Bonds and their security, and pertinent financial and economic data. In preparation of the Official Statement, Invest- ment Banker will exercise due diligence in the ascertainment of all material facts and circum- stances regarding the project and their dis- closure in the prospectus. 4. Investment Banker will be present at any necessary information meeting or meetings. 5. If the City so requests, Investment Banker will assist in arranging the selection of a paying agent. B. Marketing the Bonds: 1. Investment Banker will use its best efforts to accomplish the formal marketing at the earliest date possible consistent with sound investment banking and underwriting principles. Investment Banker agrees to use its best efforts in estab- lishing the interest rate or rates and discounts 1-7-88 -2- Exhibit "B" .t on the bonds. It is intended that, once purchased by the Investment Banker, the BOnds will be re- offered to the public on the basis of an immediate "bona fide public offering". Investment Banker may form a group of investment banking firms for the purpose of underwriting and selling the Bonds. Investment Banker's earnings from such sale shall be its sole compensation under this agreement except as otherwise specifically set forth herein. 2. Investment Banker will submit an offer to the City to purchase the bonds subject to pertinent resolu- tions, the Official Statement, and all other necessary documents, approvals, and proceedings governing such Bonds having been determined by bond counsel, the City, and the Underwriter to be satis- factory in all respects for financing purposes. If after negotiations with Investment Banker, in good faith, the City and Investment Banker fail to agree on terms of sale of the Bonds, the City may terminate this Agreement, then offer the Bonds for sale to others. II. General provisions Relating to the City and the Investment Banker: A. The City agrees to cooperate with Investment Banker by making available copies of economic and financial re- ports, agreements, contracts, resolutions, and other relevant documents pertaining to the project, the City or the Bonds as reasonably may be required from time to time for prompt and efficient performance by Investment Banker of their obligations hereunder. B. Investment Banker shall pay its own out-of-pocket and other expenses, the cost of the preparation of the Official Statement, Underwriter's Counsel, Blue Sky and Investment Memoranda used by the Investment Banker and all advertising expenses in connection with the public offering of the Bonds. C. The City shall pay from the proceeds of the Bonds or other funds of the City all costs and expenses customarily paid therefrom, including the cost of printing the Bonds, the Official Statement and other documents, the fees and expenses of its legal counsel, bond counsel, consultants, accountants, and of any other experts retained by the City in connection with the financing. 1-7-88 -3- Exhibit "B" . , D. It is expressly understood and agreed and the City hereby recognizes that in performing its activities pursuant to a negotiated sale that Investment Banker is acting solely on its own behalf and plans to submit to the City a proposal to purchase the Bonds for resale. Nothing herein shall be construed to make the Underwriter an employee or agent of the City, Investment Banker shall be at all times, an independent contractor. E. The term of this agreement shall extend to the date of sale of the Bonds as contemplated herein, as determined by the date upon which the formal Bond Purchase Contract is executed by the City and Investment Banker or the term of this Agreement shall be two (2) years from the date hereof, whichever is longer. This Agreement may be cancelled without cause by either party by giving the other party thirty (30) days written notice of such cancellation. Said notice shall be sent to the party by certified mail at the following address: F. STONE & YOUNGBERG f~~: 15260 Ventura Bl, Ste 31(y'Y~(..,-f-- 3.0 5 LeHto.;:) Sau La Fee 9f' i ~TC Solana Ec~ch, CA Shennan Oaks, CA 91403 The City may terminate this Agreement if, after negotiations in good faith, the City and Stone & Youngberg fail to agree on mutually acceptable terms of sale of the Bonds. Upon termination of this Agreement, the City shall be under no further obligation to the Underwriter hereunder, except that the City is obligated to pay to the Underwriter any expenses incurred on behalf of the City pursuant to Paragraph II B of this Agreement should the City not sell the Bonds to the Underwriter pursuant to Section B of this Agreement. CITY OF SAN BERNARDINO 300 North "0" Street San Bernardino, CA 92418 THIS AGREEMENT shall not be amended except upon the express written Agreement of the parties hereto to such amendment. 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. 1-7-88 -4- Exhibit "B" . 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, has caused these presents to be properly executed, and said Investment Banker, has caused these present to be executed by one of its officers, as of the date hereinabove set forth. ATTEST: THE CITY OF SAN BERNARDINO ~~4b /" . tit'.' Clerk g ~ BY c:' vIr) I~ WI. AlE STO~ & YOUNGBERG ( SEAL) er Approved as to form and legal content: / // (// ,~ -7-88 -5- Exhibit "B"