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HomeMy WebLinkAboutS05-Public Works -- File No ~4.40-68 CITY OF SAN BERNMRDINO - REQUEST P",R COUNCIL ACTION From: " REC'D.- '''MI' ~. Authorization to Execute Agre'e- ROGER G. HARDGRAVE ...... , N. O$Jbject: ment for Bond Counsel Services- 19QO ;""1 -8 H~ II' 10 Verdemont Area, Assessment Dis- Public WorkslEngineerJ.ng"~ trict No. 987--0RRICK,HERRINGD:Ii, ~. SUTCLIFFE--Termination of Agree- May 2, 199:0 ment with Best, Best & Krieger Dept: Date: Synopsis of Pl'lIVious Council action: 04-03-89 Authorization granted to proceed on Assessment District No. 987. 05-15-89 -- Resolution No. 89-148 adopted authorizing execution of an Agreement with Best, Best & Krieger for Bond Counsel services for Assessment District No. 987. :'t;- .~ ;; i .. Recommended motion: .. Adopt resolution. cc: Marshall Julian Jim Penman Andrew Green Contact person: Verne Nadeau Staff Report, Map Supporting data attached: Aareement & Resolution Phone: 5026 Ward: 5 FUNDING REQUIREMENTS: Amount: $5.000.00 Source: (Acct. No.) 251-663-53925 Acct. Descri tion District Finance: Council Notes: AQenda Item No. 'S -.s CITY OF SAN BERN. lDINO - REQUEST FI.. ~ COUNCIL ACTION STAFF REPORT On May 15, 1989, after response by various bond counsels to a request for proposal, the Mayor and Common Council adopted Resolution No. 89-148 authorizing execution of an Agreement with Best, Best & Krieger for Bond Counsel Services for Assessment District No. 987, Verdemont Area Improvement District. It has since been decided to terminate this Agreement, due to this firm's involvement in a case against the City. The project is now on a time schedule for the pro- ceedings and time is of the essence. Orrick, Herrington & Sutcliffe were selected as being the best qualified to provide the necessary bond counsel services at this time, due to their serving as Bond Counsel on the Verdemont Mello-Roos Community Facilities District. The proposed Agreement provides, in general, that Orrick, Herrington & Sutcliffe will provide normal bond counsel services for a fee of $15,000 or a percentage of the face value of the bonds, whichever is greater. This fee will be paid frqm the bond proceeds. ~ In the event that bonds are not sold, a mutually agreed upon, reasonable fee, not to exceed $5,000, shall be paid. This amount would have to be provided from City funds, if the district is not established and bonds sold. Since the services of a bond counselor are urgently needed to allow this assessment district to proceed, we recommend that the Agreement for Bond Counsel Services be approved. The normal procedure of soliciting proposals was not followed due to time constraints. EMERGENCY CLAUSE: It is vital that this item be on the Council A!enda for their meetin! of May 21, 1390 as the schedule for this District has been established and the clock is running. The services of Bond Counsel are necessary for preparation of the pertinent Resolutions according to schedule. 5-02-90 75-0264 ------ ~ - r 1 I ~--1 , J , J , J J -- - 1M ........ c.1', 1Mlf1 I I . ;, " " I' " ',L. t :r- " " ;, "=:..~I "'I ~' ~ \ I 5 , Lw"SNO . ;' , alM.S; ,uLVIfJ:!T - --- $110 ., _ ____ 'dH;~"NUT OR"'... ----- 6 P4LM IMP. ' " 5-02-90 -~ 1 2 3 4 5 6 7 8 RESOLUTION NO. .__ RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUT1.0N OF AN AGREEMENT WITH ORRICK, HERRINGTON & SUTCLIFFE RELATING TO PROVIDING BOND COUNSEL SERVICES FOR THE VERDEMONT AREA IMPROVEMENT DISTRICT, ASSESSMENT DISTRICT NO. 987, AND RESCINDING RESOLUTION NO. 89-148. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor is hereby authorized and directed to execute, on behalf of said City, an Agreement for Legal Services with Orrick, Herrington & Sutcliffe for providing bond 9 10 11 marked Exhibit "A," and incorporated herein by reference at fully 12 ' 13 14 counsel services the Verdemont Area Improvement District, for Assessment District No. 987, a copy of which is attached hereto as though set forth at length. SECTION 2. This resolution is rescinded if the parties to the Agreement for Legal Services fail to execute it within 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sixty (60) days of the passage of this resolution. SECTION 3. Resolution No. 89-148, authorizing execution of an Agreement with Best, Best and Krieger for Bond Counsel Services, is hereby rescinded. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / 5-02-90 RESO: AUTHORIZING EXECUTION OF AGRMT. WITH ORRICK, HERRINGTON & SU' .,IFFE RELATING TO BOND C< lSEL SERVICES FOR A.D. NO. 98/1 AND RESCINDING RESOLUTION NO. 89-148 1 I HEREBY CERTIFY that the foregoing resolution was duly 2 !adopted by the Mayor and Common Council of the City of San ! 3 ! Bernardino at a meeting thereof, held on the I 4 day of 5 wit: 6 Council Members: 7 ESTRADA 8 REILLY 9 FLORES , 1990, by the following vote, to- AYES NAYS ABSTAIN 10 MAUDSLEY 11 MINOR 12 POPE-LUDLAM 13 MILLER 14 15 16 17 18 19 20 City Clerk The foregoing resolution is hereby approved this day of , 1990. W. R. Holcomb, Mayor Ci ty of San Bernardino 21 Approved as to form and legal content: 22 James F. Penman 23 City Attorney 24 25 26 27 28 - 2 - CITY OF SAN BERNARDINO ASSESSMENT DISTRICT NO. 987 (VERDEMONT AREA) AGREEMENT FOR BOND COUNSEL SERVICES THIS AGREEMENT is made and entered into this day of , 1990, by and between the CITY OF SAN BERNARDINO, CALIFORNIA, a municipal corporation and public agency of the State of California, hereinafter called "CITY", and ORRICK, HERRINGTON & SUTCLIFFE, attorneys at law, Los Angeles, California, hereinafter called "Counsel". RECITALS A. WHEREAS, City desires to employ Counsel to perform legal services incident to the formation of Assessment District No. 987, pursuant to the "Municipal Improvement Act of 1913", being Division 12 (commencing with Section 10000) of the California Streets and Highways Code, with bonds to be issued in a single series representing unpaid assessments, for the financing of the acquisition and/or construction of certain public improvements, including appurtenant work and incidental expenses; and B. WHEREAS, Counsel is prepared and able to provide all legal services required and necessary incident to formation of the assessment district and issuance and sale of the bonds: COVENANTS NOW THEREFORE, it is mutually agreed by the parties hereto as follows: Section 1. AGREEMENT FOR SERVICES. City employs Counsel to render, and Counsel agrees to render, legal services incident to the assessment district as follows: (a) Review of the plans, specifications and contract documents for the proposed work, the map of the assessment district, the assessment roll and diagram, the bonds, and providing instruction and advice in connection therewith. (b) Preparation of all petitions, resolutions, notices, certificates, contracts, bond forms, and other papers and documents required in the assessment proceedings. JFW/bg [Orrick.Agr] 1 (c) Review of the methodology of the apportionment of improvement costs and expenses being assessed to the various parcels within the assessment district. (d) Examination of the assessment proceedings, step by step, as taken. (e) Attendance at meetings of City staff and the Common Council, as needed. (f) Issuance of Counsel's legal opinion as to the validity of the assessment proceedings, contracts and documents and the tax-exempt status of the bonds issued to represent unpaid assessments. Section 2. LEGAL FEES. For the services described in Section 1, City agrees to pay Counsel a fee based upon a percentage of the confirmed assessments as follows: Formation of District and first bond series: Proceedings Fee of $25,000 plus l5/l00ths percent (.15t) of the bond issue amount; Supplemental assessment: Proceedings Fee of $15,000; All subsequent bond series: Proceedings Fee of $5,000 plus l5/l00ths percent (.15%) of the bond issue amount. The foregoing fee shall be paid from the proceeds of the sale of bonds, within a reasonable time after sale and delivery of bonds to a bona fide purchaser, or, if assessments are paid in cash, from the proceeds of the cash collected, within a reasonable time after the expiration of the cash collection period. Section 3. COSTS. This Agreement contemplates that City shall reimburse Counsel for any long-distance telephone calls, publication fees, filing fees, messenger and express mail charges and the costs of printing; if travel outside of Southern California or other extraordinary expenditures are authorized by City, then City shall payor reimburse Counsel for the costs and expenses of such travel and for such other extraordinary expenses. Section 4. ABANDONMENT. If the assessment proceedings are abandoned prior to sale and delivery of bonds, then City shall be under no obligation to pay Counsel a fee for services, unless City has accepted a deposit for such purpose from the participants within the assessment district, and then up to a maximum fee of $15,000; however, if the assessment district is not formed for any reason, any costs described in Section 3 shall be reimbursed to Counsel, subject to a maximum amount of $5;000. JFW/bg [Orrick.Agr] 2 Section 5. LITIGATION. The fees specified in Section 2 do not include services in connection with the acquisition, by contract or condemnation, of any easements or other property necessary for the proposed improvements or services in connection with the validation of the assessment proceedings or in connection with any other litigation not arising out of the performance of this Agreement. Section 6. INFORMATION PROVIDED BY COUNTY. City agrees to furnish Counsel such maps, records, title searches and other documents and proceedings, or certified copies thereof, as may be required by Counsel in the performance of services hereunder. Section 7. agreement between herein. ENTIRE AGREEMENT. This Agreement is the entire the parties relating to the matters covered Section 8. AMENDMENT. Any amendment to this Agreement shall be of no force and effect unless in writing and signed by both parties hereto. Section 9. be terminated on either party. TERMINATION OF AGREEMENT. This Agreement may thirty (30) days prior written notice from IN WITNESS WHEREOF, the parties hereof have executed this Agreement in the City of San Bernardino, State of California, on the date and year first above written. ATTEST: CITY OF SAN BERNARDINO By: W.R. Holcomb, Mayor City of San Bernardino City Clerk ORRICK, HERRINGTON & SUTCLIFFE Approved as to form and legal content: JAMES F. PENMAN, City Attorney By: ~/l/>-o<? 9- ,:) e---v~ o JFW/bg [Orrick.Agr] By: George W. McFarlin 3 CITY OF SAN BERNARDINO ASSESSMENT DISTRICT NO. 987 (VERDEMONT AREA) AGREEMENT FOR BOND COUNSEL SERVICES THIS AGREEMENT is made and entered into this day of , 1990, by and between the CITY OF SAN BERNARDINO, CALIFORNIA, a municipal corporation and public agency of the State of California, hereinafter called "CITY", and ORRICK, HERRINGTON & SUTCLIFFE, attorneys at law, Los Angeles, California, hereinafter called "Counsel". RECITALS A. WHEREAS, City desires to employ Counsel to perform legal services incident to the formation of Assessment Distr1ct No. 987, pursuant to the "Municipal Improvement Act of 191'., being Division 12 (commencing with Section 10000) of ~he California Streets and Highways Code, with bonds to be issued~in a single series representing unpaid assessments, for the financing of the acquisition and/or construction of certain public improvements, inCluding appurtenant work and incidental expenses; and B. WHEREAS, Counsel is prepared and able to provide all legal services required and necessary incident to formation of the assessment district and issuance and sale of the bonds: COVENANTS NOW THEREFORE, it is mutually agreed by the parties hereto as follows: Section 1. AGREEMENT FOR SERVICES. City employs Counsel to render, and Counsel agrees to render, legal services incident to the assessment district as follows: (a) Review of the plans, specifications and contract documents for the proposed work, the map of the assessment district, the assessment roll and diagram, the bonds, and providing instruction and advice in connection therewith. (b) Preparation of all petitions, resolutions, notices, certificates, contracts, bond forms, and other papers and documents required in the assessment proceedings. JFW/bg [Orrick.Agr] 1 EXHIBIT A . (c) a.v~ew of the methodology of the apport~onment of improvement costs and expenses be~ng assessed to the various parcels w~th~n the assessment d~str~ct. (d) Examinat~on of the assessment proceedings, step by step, as taken. (e) Attendance at meetings of City staff and the Common Council, as needed. (f) Issuance of Counsel's legal op~n~on as to the validity of the assessment proceedings, contracts and documents and the tax-exempt status of the bonds issued to represent unpa~d assessments. Section 2. LEGAL FEES. For the services described ~n Sect~on 1, City agrees to pay Counsel a fee based upon a percentage of the confirmed assessments as follows: Formation of District and first bond series: Proceedings Fee of $25,000 plus 15/100ths percent (.15.> of the bond issue amount: · Supplemental assessment: Proceedings Fee of $15,000; Proceedings Fee of $5,000 plus 15/100ths percent (.15%) of the bond issue amount. All subsequent bond series: The foregoing fee shall be paid from the proceeds of the sale of bonds, within a reasonable time after sale and delivery of bonds to a bona fide purchaser, or, if assessments are paid in cash, from the proceeds of the cash collected, within a reasonable time after the expiration of the cash collection period. Section 3. COSTS. This Agreement contemplates that City shall reimburse Counsel for any long-distance telephone calls, publication fees, f~ling fees, messenger and express ma~l charges and the costs of printing; if travel outside of Southern California or other extraordinary expenditures are authorized by City, then City shall payor reimburse Counsel for the costs and expenses of such travel and for such other extraordinary expenses. Section 4. ABANDONMENT. If the assessment proceedings are abandoned prior to sale and delivery of bonds, then City shall be under no obligation to pay Counsel a fee for services, unless City has accepted a deposit for such purpose from the participants within the assessment district, and then up to a maximum fee of $15,000: however, if the assessment district is not formed for any reason, any costs described in Section 3 shall be reimbursed to Counsel, subject to a maximum amount of $5;000. JFW/bg [Orrick.Agr] 2 . Sec~~on 5. LITIGATION. The fees specified in Sec~ion 2 do no~ include services in connec~ion wi~h the acquisition, by contrac~ or condemnation, of any easements or other property necessary for the proposed improvements or services in connection with the validation of the assessment proceedings or in connection with any other litigation not arising out of the performance of this Agreement. Section 6. INFORMATION PROVIDED BY COUNTY. City agrees to furnish Counsel such maps, records, title searches and other documents and proceedings, or certified copies thereof, as may be required by Counsel in the performance of services hereunder. Section 7. agreement between herein. ENTIRE AGREEMENT. This Agreement is the entire the parties relating to the matters covered Section 8. AMENDMENT. Any amendment to this shall be of no force and effect unless in writing and both parties hereto. Agreement signed~by 4 ~ Section 9. be terminated on either party. IN WITNESS WHEREOF, the parties hereof have executed this Agreement in the City of San Bernardino, state of California, on the date and year first above written. TERMINATION OF AGREEMENT. This Agreement ..y thirty (30) days prior written notice from ATTEST: CITY OF SAN BERNARDINO City Clerk By: W.R. Holcomb, Mayor City of San Bernardino ORRICK, HERRINGTON & SUTCLIFFE Approved as to form and legal content: JAMES F. PENMAN, City Attorney By: George W. McFarlin By: JFW/bg [Orrick.Agr] 3 1 2 State of California ) Count} of San Bernardino ) SS Cit} ~, San Bernardino ) 3 I do hereby certify tha t the foregoi ng Resol uti on No, , is a full, true and correct copy of that now on file in 4 this off1 ce, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the City of San Bernardino, this day of , 19_, City Clerk " .-;'.