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HomeMy WebLinkAbout17-Development Services c. .cITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: MICHAEL E. HAYS, Director Subject: Resolutions Authorizing the Execution of Agreements for Bond Counsel and Investment Banker- Assessment District No. 1026, Tract. Nos. 11261, 13822 and 10260 File No. I 4.40-1 18 MCC Date: 12-20-1999 Dept: Development Services Date: December 13,1999 <<;;@IF>>W Synopsis of Previous Council Action: 10-18-99 --- Authorized to proceed with the formation of an Assessment District pursuant to the Municipal Improvement Act of 1913 for water and sewer fees relative to the development ofTract Nos. 11261, 13822 and 10260 was granted. Recommended Motion: ADOPT RESOLUTIONS (2) ~/A . Michael E.~ Contact person: LASZLO "Les" FOGASSY Supporting data attached: Staff Report, Maps, Kesolutions FUNDING REQUIREMENTS: Amount: $28,335 (Consultant fees to be paid for from aeposlt oy peuuoner "" .tSona proceeds) Source: (Acct. No.) N/A Phone: 5026 Ward: 4,6 Council Notes: (Aod. D_Pllon)~ ' Fina~ce. .'17 ,/~ :)Av--. Agenda Item No. 11 1~:J./)191 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolutions Authorizing the Execution of Agreements for Bond Counsel and Investment Banker - Assessment District No. 1026, Tract. Nos. 11261, 13822 and 10260. BACKGROUND: On September 13, 1999, this office received a request from the Developer of portions of Tract No. 11261, all of Tract No. 13822 and all of Tract No. 10260, for theformation of an Assessment District pursuant to the provisions of the Municipal Improvement Act of 1913. The pwpose of the Assessment District is to finance the water and sewer fees relative to the development of these tracts and thus assist the developer in the development of these tracts. The total amount to be assessed, including formation costs, as proposed by the developer, is $1.27 million, and will be spread over a period of 20 years at 6% interest. The homebuyer would still pay these costs without the formation of the assessment district, as part of the total purchase price. On October 18,1999, this office was authorized to proceed with the formation of the Assessment District. Tract No. 11261 is located on the south side of Nineteenth Street, east ofCalifomia Street. There are 24 undeveloped lots remaining within this tract and only those lots within this tract will be included in the district. Tract No. 13822 is located north of 16th Street, east of California Street and consists of38 undeveloped lots. Tract No. 10260 is located north of Hill Drive, west of Mayfield A venue and consists of 46 lots. As proposed, one district will be established that will encompass all three tracts, with each tract being a separate zone. The formation of this district will require the retention of bond counsel to oversee the formation of the district, and the retention of an investment banker, for the marketing and sale of bonds. A Request for Proposal was mailed out for Investment Banker and 5 firms responded. Although Miller & Schroeder did not have the lowest rate, we are recommending them due to previous experience with the City. A summary of the responses is as shown below. The discount rate is the percentage of the total bond issue that will be paid to the firm as compensation for services. Firm Name' Seidler-Fitzgerald Miller & Schroeder US Bancorp Kinsel, Newcomb & De Dios Stone & Youngberg ProDOsed Discount Rate 1.00% 1.05% 1.875% 2.00% 3.119% Based on the proposed Bond issue of$1.27 million, this fee would be $13,335 if the firm of Miller & Schroeder is selected. This fee will be paid from Bond proceeds. In the event that the CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report- continued district is not fonned and no bonds are sold, no fees are paid to the Investment Banker. When the Bonds are sold, they are purchased by the underwriter based on their marketability at the time of issuance. A significant element of that marketability is the interest rate structure detennined by the underwriter. The purchase offer inay include any premium or discount the underwriter deems necessary to sell the bonds. The City may choose not to accept the Investment Banker's Offer and choose to offer the Bonds for sale to others. Evaluation of the interest structure and Investment Banker's purchase offer is generally done by a financial consultant based on knowledge of the bonds and markets conditions at the time of issurance. We are also recommending the finn of Sabo & Green for Bond Counsel. This finn has had extensive experience with the City, as well as the Economic Development Agency. Consultant fees for Bond Counsel are estimated to be $15,000 and will be paid for from the deposit by the developer. The attached Resolutions authorize the execution of Agreements with Miller & Schroeder for Investment Banking Services, and Sabo & Green for Bond Counsel. FINANCIAL IMPACT: $13,335 for Investment Banker to be paid from Bond proceeds and $15,000 for Bond Counsel to be paid from developers deposit. RECOMMENDATION: Staff recommends adoption of the attached resolutions. ,. ( TRACT NO. 11261 No Scole TRACT NO. 13822 5th 51. Mill 51. i < . o Ii u . 0. Oron e Show Rd. {! ., . . o VICINITY MAP CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION PROPOSED 1913 ACT ASSESSMENT DISTRICT FOR WA TER AND SEWER FEES-PTNS OF TRACT NO. 11261, TRACT NO. 13822 AND TRACT NO. 10260 ~ indicates un-incorporated areas ~ within City's Sphere of Inftuence Created by: !.-. Foqa~y Date: 07/x)/FJ'79 \. ""'_. @ @ @. PORTION OF TRACT NO. 11261 Proposed Assessment District Boundary ~I @ e G> TRACT NO. 13822 Proposec:l Assessment District Boundary I 'i ill i 'I u ,I. .7:h s:r_ ...... \. ~ i .....: I ;;..-.... @ \. e e t;;\ I e / ~ .......~ : ~", ~ '=':: ~ .,' ~ I I"......... ....>....J. 1--1-.(.... ..................: I, t;;\ ......{ \..... t;;\ " \.:;J: 17t\S",..1 t '.::J .__.........~ ". ;.....-.----, I " t:':\ . I : @\ ~@.~. I@: 1-;;----; r---r-----.'l t.....- ~_.: I~! lG>;@! !~I 1---.-....1 !-<2SSI371~-1;; t"._..-e._.--'~ . fi:\ i i. t;;\!. ~ i.lIl:i u I . '=l . o. v.:.J . I 11-~'-'-'1 ! i'- t;;\ .-t'-~-'II i.:........;;---: \.::;I 01: \:.:J:\:.:J ij \;::), ,_..............i 0 !......---.-..t....--...........; u i...................... IQ. :t;;\,1?\, iQ'. ,=. .>.;:}''C)'.\::I .__............1 i..-----...-.~...._----; i..............--.. lei! e e! ! G I ll----~ ~---...-t-----t ~..-...-..--1 r.;-! It;;\ir,;.i! @. '='/ \.\::J:'='/ .... I Cu::'olTlillgs Way I (-1'1 NORTH ( 1 J 16::lSIIe'!t ""...".... RDA ASSESSOR"S EXISTING GENERAL PLAN AREA THOMAS GUICE- FflOJECT NUMBEll LAND USE LAND USE DESIGNATION PAGE . GRID \".":~t~ Nc:".hwes: 26.-361-44 1I1ru 20 & Vacan! Land RS . Re.,c.n:ial Suburban 5.!&1 Ac. M'L 5;0 Coo: F:::jec: 26..30 1.30 dvu 36 [m"roved) 2Si.3i~~3 ttvu 80 Vacant Land RS . Ru,c.n:ial Suburllan 8.52 AC. ~'''L .-- COO: _'0 (ur.mprove~ 'Thcmas Guide San Bema,c:nQ Ccun:y. 1697 Ee::::n ~.....- ~ .t=NC1UC orVl~lIfr AcrlCr r Tract No. 10260, M.B. 224/9-12 Proposed Assessment District Boundary . " @ .0 . (!) ~ . ~ "'" ...7 ,KJ HI' ScRLl: .- . .' TO: FRED WILSON, City Administrator CITY OF SAN BERNARDINO Inter-Office Memorandum FROM: MICHAEL E. HAYS, Director Development Services ~?j} SUBJECT: Proposed 1913/15 Act Assessment District No. 1026 DATE: December 16, 1999 COPIES: File No. l4.40-GEN ; Reading On October 18, 1999, the Mayor and Council authorized this department to proceed with the formation ofa 1913115 Act Assessment District for Tract Nos. 11261, 13822 and 10260. In light of recent problems with Assessment District 995 (Verdemont Mello-Roos), there have been some concerns about the formation of this district. Historically, 1913/15 Act Assessment Districts are generally more stable and favorable than Mello-Roos districts. Unlike AD 995, these assessments will be fixed over the life of the district. (As you recall, AD 995 had provisions for an alternate formula which almost doubled the assessments one year). In the event any delinquencies occur, they will be handled on a per parcel basis, and not district wide, as AD 995 was. As with any assessment district, there is always a risk factor involved. However, our experience with 1913/15 Act districts has been favorable. Presently, there are 5 1913/15 Act active districts throughout the City, and none of these have posed any major delinquency problems. As an additional safeguard, we will propose to pay the fees as they become due and payable, rather than in one lump sum amount. There are also requirements that the property values meet at least a 3: 1 lien ratio. An appraisal has not been done yet, but will be accomplished as part of the proceedings. As part of the proceedings, a detailed Engineer's Report will be prepared and submitted to the Mayor and Council for review. This report will contain details such a property values, method of assessment and the actual assessments proposed on a per parcel level. All formation costs will be paid for by the developer. In the event that the formation of the district is terminated, there will be no cost to the City. As required by law, all prospective homebuyers will be given a disclosure relative to the assessment district prior to the close of escrow. A homeowner may also pay off the assessments early, a provision that was not available for AD 995. I hope this clears up some of the concerns about the formation of this district. If you need additional information, please contact this office at eXtension 5026. MICHAE ,E. HAYS, Dire.c~{7el/nt Services ASZLO "Les" FOGASSY Real Property Official Public Works Division ytp./;t . Izjzo/rf I I .' 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 (G(Q)~W RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECfING THE EXECUTION OF AN AGREEMENT WITH THE FIRM O~ &: SCHROEDER FINANCIAL, INC., FOR INVESTMENT BANKING SERVICES RELATIVE TO THE FORMATION ASSESSMENT DISTRICT NO. 1026 FOR TRACT NO. 13822, PORTIONS OF TRACT NO. 11261 AND TRACT NO. 10260. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City, an Agreement for Investment Banking Services with the firm of Miller & Schroeder Financial, Inc., relative to Assessment District No. 1026 for Tract No. 13822, portions of Tract No. 11261 and Tract No. 10260, a copy of which is attached hereto as Exhibit "A" and made a part hereof. SECTION 2. This Resolution is rescinded if parties to said Agreement fail to execute it within sixty (60) days of the passage of this resolution. //1 /1/ /1/ //1 /1/ //1 //1 //1 //1 //1 //1 ,!&.tf&- 1t,~Ojff 12/09/99 I 25 26 JAMES F. PENMAN, City ttomey 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 RESOLUTION AUTHORIZING TIlE EXECUTION OF AN AGREEMENT FOR INVESTMENT BANKING SERVICES WI1H TIlE FIRM OF MILLER AND SCHROEDER RELATIVE TO ASSESSMENT DISTRICT NO. 1026. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof held on the day of .19 . by the following vote, to-wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA LIEN MCGINNIS SCHNETZ SUAREZ ANDERSON MILLER City Clerk The foregoing resolution is hereby approved this _ day of .19_. 22 23 24 Approved as to form and legal content: JUDITH VALLES, Mayor City of San Bernardino -:t.P 2 " AGREEMENT FOR INVESTMENT BANKING SERVICES TInS AGREEMENT is made and entered into this day of . _ . by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter called "CITY" and the firm of Miller & Schroeder Financial, Inc. hereinafter called "INVESTMENT BANKER" WITNESSETH WHEREAS, CITY proposes to initiate proceedings for Assessment District No. 1026, (ZONE I: Tract No. 13822 - California & 16th Streets; ZONE 2, - PORTIONS OF TRACT NO.1l261-Pennsylvaniaand 19th Streets; ZONE 3: TRACTNO,10260-AcaciaAvenue& 59th Street) (the "PROJECT") and the issuance of 1915 Act Limited Obligation Improvement Bonds; 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 these costs, statutory requirements and restrictions and alternate methods, if applicable; and WHEREAS, the CITY requires the services of a municipal investment banker experienced in the 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 obligation; and WHEREAS, the CITY has determined that the INVESTMENT BANKER is qualified by training and experience to perform said services. NOW, THEREFORE, it is mutually agreed, as follows: EXHBIT "A" Agreement for Investment Banking Services - Assessment District No. 1026 The CITY hereby employs the INVESTMENT BANKER and the INVESTMENT 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 the CITY in developing the scope of the fmancial 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 the sale of the securities. The Official Statement will include a description of the Bonds and their security, and pertinent financial and economic data. In preparation of the Official Statement, INVESTMENT BANKER will exercise due diligence in the ascertainment of all material facts and circumstances regarding the project and their disclosure 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. The INVESTMENT BANKER will use its best efforts to accomplish the formal marketing at the earliest date possible consistent with sound investment banking and underwriting principals. INVESTMENT BANKER agrees to use its best efforts in establishing the interest rate or rates and discounts 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". The INVESTMENT BANKER may form a group of investment banking firms for the purpose of underwriting and selling the Bonds. INVESTMENT BANKER'S earnings from SW;h sale shall be its sole compensation under this Agreement except as otherwise specifically set forth herein. 2 Agreement for Investment Banking Services - Assessment District No.. 1026 2. The INVESTMENT BANKER will submit an offer to the CITY to purchase the Bonds subject to pertinent resolutions, the Official Statement, and all other necessary documents, approvals and proceedings governing such Bonds having. been detennined by bond counsel, the CITY and the underwriter to be satisfactory in all respects for financing purposes. If after negotiations with the INVESTMENT BANKER, in good faith, the CITY and the INVESTMENT BANKER fail to agree on terms of the sale of 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 the INVESTMENT BANKER by making available copies of economic and fmancial reports, 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 its obligations hereunder. B. INVESTMENT BANKER shall pay its own out-of-pocket and other expenses, the cost of 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 costs of printing the Bonds, the Official Statement and other documents and fees and expenses of its legal counsel, bond counsel, consultants, accountants and of any experts retained by the City in connection with the financing. D. The City shall pay the INVESTMENT BANKER, from the proceeds of the Bonds, underwriting fees not to exceed 1.05% of the total Bond issue, or as otherwise negotiated between INVESTMENT BANKER and the CITY. E. It is expressly understood and agreed and the CITY hereby recognizes that in performing its activities pursuant to a negotiated sale the 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 INVESTMENT BANKER an employee or agent of the CITY, the INVESTMENT BANKER shall be at all times, an independent contractor. ~ F. The term of this Agreement shall extend to the date of sale of Bonds as contemplated herein, as detennined by the date upon which the formal Bond Purchase Contract is executed by the CITY and the INVESTMENT BANKER or the term of this Agreement shall be two (2) years from the date hereof, whichever is longer. The Agreement may be cancelled without cause by either party giving the other party thirty (30) days written notice of such cancellation. Said notice shall be sent to the ,3 Agreement for Investment Banking Services - Assessment District No. 1026 party by certified mail at the following address: CITY OF SAN BERNARDINO Michael E. Hays, Director Development Services 300 North "0" Street San Bernardino, CA 92418 INVESTMENT BANKER Miller and. Schroeder Financial, Inc. 505 Lomas San Fe Drive, Suite 100 Solana Beach, CA 92075 G. The CITY may terminate this Agreement if, after negotiations in good faith, the CITY and the INVESTMENT BANKER fail to agree on mutually acceptable terms of the sale of the Bonds. Upon termination of this Agreement, the City shall be under no further obligation to the INVESTMENT BANKER hereunder except that the City is obligated to pay the Underwriter any expenses incurred on behalf of the CITY pursuant to Paragraph II C of this Agreement should the City not sell the Bonds to the INVESTMENT BANKER pursuant to Section 1 B of this Agreement. 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 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 a conflict between the terms, conditions or provisions of this Agreement, and such document or instrument, the terms and conditions of this Agreement shall prevail. III III III III III III 4 Agreement for Investment Ban/cing Services - Assessment District No. 1026 IN WITNESS WHEREOF, the CITY has caused this Agreement to be properly executed and the INVESTMENT BANKER has caused this Agreement to be properly executed by one of its officers, as of the date hereinabove set forth. INVESTMENT BANKER: CITY OF SAN BERNARDINO a municipal corporation, Miller & Schroeder Financial, Inc. By: By: JUDITH VALLES, Mayor ATTEST: City Clerk Approved as to form and legal content: JAMES F. PENMAN, City Attorney 5 ., .' AGREEMENT FOR INVESTMENT BANKING SERVICES TIllS AGREEMENT is made and entered into this day of . by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter called "CITY" and the firm ofMiIIer & Schroeder Financial, Inc. hereinafter called "INVESTMENT BANKER" WITNESSETH WHEREAS, CITY proposes to initiate proceedings for Assessment District No. 1026, (ZONE 1: Tract No. 13822 - California & 16th Streets; ZONE 2, - PORTIONS OF TRACT NO. -11261 - Pennsylvania and 19-tlJ..8treets; ZONE 3: TRACT NO. 10260 - Acacia Avenue & 59th Street) (the "PROJECT") and the issuance of 1915 Act Limited Obligation Improvement Bonds; and WHEREAS, the CITY requires assistance in the development of a sound, equitable and practical financing pia; to uripl:ment the PROJECT by taking into consideration sources of capital funds and cash flow requirements, annual costs, the allocation of these costs, statutory requirements and restrictions and alternate methods, if applicable; and WHEREAS, the CITY requires the services of a municipal investment banker experienced in the 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 obligation; and - WHEREAS, the CITY has detennined that the INVESTMENT BANKER is qualified by training and experience to perform said services. NOW, THEREFORE, it is mutua1ly agreed, as follows: Agreement for Investment Banldng Services - Assessment District No. 1026 The CITY hereby employs the INVESTMENT BANKER and the INVESTMENT 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: r. Services to be performed by the INVESTMENT BANKER: A. Structuring the Financing: I. INVESTMENT BANKER will work with the CITY in developing the scope of the frnancial 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 ofan Official Statement for the sale of the securities. The Official Statement will include a description of the Bonds and their security, and pertinent financial and economic data. In preparation of the Official Statement, INVESTMENT BANKER will exercise due diligence in the ascertainment of all material facts and circumstances regarding the project and their disclosure 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. The INVESTMENT BANKER will use its best efforts to accomplish the formal marketing at the earliest date possible consistent with sound investment banking and underwriting principals. INVESTMENT BANKER agrees to use its best efforts in establishing the interest rate or rates and discounts 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". The 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 sha1l be its sole compensation under this Agreement except as otherwise specifically set forth herein. 2 Agreement for Investment Banking Services - Assessment District No. 1026 - 2. The INVESTMENT BANKER will submit an offer to the CITY to purchase the Bonds subject to pertinent resolutions, 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 satisfactory in all respects for financing purposes. If after negotiations with the . INVESTMENT BANKER, in good faith, the CITY and the INVESTMENT BANKER fail to agree on terms of the sale of 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 the INVESTMENT BANKER by making available copies of economic and fmancial reports, 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 its obligations hereunder. B. INVESTMENT BANKER shall pay its own out-of-pocket and other expenses, the cost of 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 costs of printing the Bonds, the Official Statement and other documents and fees and expenses of its legal counsel, bond counsel, consultants, accountants and of any experts retained by the City in connection with the financing. D. The City shall pay the INVESTMENT BANKER, from the proceeds of the Bonds, underwriting fees not to exceed 1.05% of the total Bond issue, or as otherwise negotiated between INVESTMENT BANKER and the CITY. E. It is expressly understood and agreed and the CITY hereby recognizes that in performing its activities pursuant to a negotiated sale the INVESTMENT BANKER is actitig 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 INVESTMENT BANKER an employee or agent of the CITY, the INVESTMENT BANKER shall be at all times, an independent contractor. F. The term of this Agreement shall extend to the date of sale of Bonds as contempIated herein, as determined by the date upon which the formal Bond Purchase Contract is executed by the CITY and the INVESTMENT BANKER or the term of this Agreement shall be two (2) years from the date hereof, whichever is longer. The Agreement may be cancelled without cause by either party giving the other party thirty (30) days written notice of such cancellation. Said notice shalI be sent to the 3 Agreement for Investment Banldng Services - Assessment District No. 1026 party by certified mail at the following address: CITY OF SAN BERNARDINO Michael E. Hays, Director -Development Ser..ices 300 North "0" Street San Bernardino, CA 92418 INVESTMENT BANKER Miller and Schroeder Financial, Inc. 505 Lomas San-Fe Drive, Suite 100 Solana Beach, CA 92075 G. The CITY may terminate this Agreement if, after negotiations in good faith, the CITY and the INVESTMENT BANKER fail to agree on mutually acceptable terms of the sale of the Bonds. Upon termination of this Agreement, the City shall be under . no further obligation to the INVESTMENT BANKER hereunder except that the City ~ is obligated to pay the Underwriter any expenses incurred on behalf of the CITY pursuant to Paragraph II C of this Agreement should the City not sell the Bonds to the INVESTMENT BANKER pursuant to Section 1 B of this Agreement. 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 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 a conflict between the terms, conditions or provisions of this Agreement, and such document or instrument, the terms and conditions of this Agreement shall prevail. III III III III III III 4 '. Agreement for Investment Banlcing Services - Assessment District No. 1026 IN WITNESS WHEREOF, the CITY has caused this Agreement to be properly executed and the INVESTMENT BANKER has caused this Agreement to be properly executed by one of its officers, as of the date hereinabove set forth. INVESTMENT BANKER: CITY OF SAN BERNARDINO a municipal corporation, Miller & Schroeder Financial, Inc. By: , By: JUDITH VALLES, Mayor ATTEST: City Clerk Approved as to form and legal content: JAMES F. PENMAN, City Attorney 5 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 (G(Q)~W RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF AN AGREEMENT WITH THE FIRM OF S~ AND GREEN FOR LEGAL SERVICES RELATIVE TO THE FORMATION OF ASSESSMENT DISTRICT NO. 1026 FOR TRACT NO. 13822, PORTIONS OF TRACT NO. 11261 AND TRACT NO. 10260. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City, an Agreement for legal services with the firm of Sabo and Green relative to Assessment District No. 1026 for Tract No. 13822, portions of Tract No. 11261 and Tract No. 10260, a copy of which is attached hereto as Exhibit "A" and made a part hereof. SECTION 2. This Resolution is rescinded ifparties to said Agreement fail to execute it within sixty (60) days of the passage of this resolution. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 RESOLUTION AUlHORIZlNG 1HE EXECUTION OF AN AGREEMENT FOR LEGAL SERVICES WITH 1HE FIRM OF SABO AND GREEN RELATIVE TO ASSESSMENT DISTRICT NO. 1026. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 4 Common Council of the City of San Bernardino at a meeting thereof held on the day of , 19 . by the following vote, to-wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA LIEN MCGINNIS SCHNETZ SUAREZ ANDERSON MILLER City Clerk The foregoing resolution is hereby approved this _ day of ,19 . JUDITH VALLES, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, City rney 'dfJc~-.,T. . ~, 2 AGREEMENT FOR LEGAL SERVICES This AGREEMENT is made and entered into this_day of ,19~ by and between the CITY OF SAN BERNARDINO, California, a municipal corporation, hereinafter referred to as the "CITY" and SABO & GREEN, a Professonal Law Corporation, hereinafter referred to as "BOND COUNSEL" RECITALS WHEREAS, the CITY desires to initiate proceedings for the formation of an Assessment . - District ("DISTRICT") pursuant to the provisions of the Municipal Bond Improvement Act of 1913, Division 12 of the Streets and Highways Code and the Improvement Bond Act of 1915, Division 10 of said Streets and Highways Code for the purposes of financing certain fees for the construction of certain public improvements; and WHEREAS, the CITY desires to retain the services of BOND COUNSEL relative to the preparation of resolutions, notices, bond forms and other documents required in the proceedings and issue their legal opinion or opinions as to the validity of the proceedings and necessary documents. NOW, THEREFORE, it is mutually agreed upon as follows: 1. SCOPE OF SERVICES' BOND COUNSEL shall perform those services specified in retainer letter and proposal of services, dated November 24. 1999 . a copy of which is attached hereto as Exhibit "A" , and as directed by the CITY of San Bernardino. 2. TERM OF AGREEMENT The services of BOND COUNSEL are to commence after the CITY has authorized work to start by issuance of a Notice to Proceed. This Agreement shall expire upon the successful completion of the sale of Bonds and completion of the DISTRICT, including the tiling and recording of assessments or upon termination of proceedings. EXHIBIT "A" Agreement for Legal Services - Assessment District 1026 -- SABO & GREEN. Page 2 3. STANDARD OF PERFORMANCE BOND COUNSEL shall complete all work product and design in conformance with applicable local and state laws. 4. CHANGESIEXTRA SERVICES A. Performance of the work specified in the Proposal is made an obligation of BOND COUNSEL under this Agreement, subject to any changes made subsequently upon mutual written agreement of the parties. Any change which has not been so incorporated shall not be binding on either party. 5. COMPENSATION A. The CITY shall reimburse the BOND COUNSEL for actual costs (including labor costs, employee benefits, overhead,. profit, other direct and indirect costs) incurred by the BOND COUNSEL in performance of the work, in an amount not to exceed $15.000.00. plus exoenses, as described in Exhibit "An. In the event this Agreement is terminated prior to the completion of the DISTRICT, the CITY shall reimburse BOND COUNSEL at the rate of$175 per hour for all attomey hours, plus expenses, and as more fully set forth in the attached Exhibit "An. B. Said compensation shall not be altered unless there is significant alteration in the scope, complexity or character of the work to be performed. Any adjustment of the total cost of services will only be permitted when the BOND COUNSEL establishes and CITY has agreed, in writing, that there has been, or is to be, a significant change. 6. PAYMENT BY CITY A. The billings for all services rendered pursuant to this Agreement shall be submitted monthly by BOND COUNSEL to CITY and shall be paid by CITY within thirty (30) days after receipt of same, excepting any amounts disputed by CITY. All tasks as specified in proposal shall be completed prior to final payment. 7. SUPERVISION AND ACCEPTANCE OF SERVICES A. The Director of Development Services of the CITY, or his designee, shall have the right of general supervision over all work performed by BOND COUNSEL and shall be CITY's agent with respect to obtaining BOND COUNSEL's compliance hereunder. No payment for any services rendered under this Agreement shall be made without prior approval of the Director of Development Services Works or his designee. Agreement for Legal Services - Assessment District 1026 - SABa & GREEN. Page 3 8. COMPLIANCE WITH CML RIGHTS LAWS AND AMERICANS WIm DISABILITIES ACT BOND COUNSEL hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin or disability. BOND COUNSEL's hiring practices and employee policies shall comply with all applicable Federal, State and local laws. Such action shall include, but not be limited to, the following: Recruitment and recruitment advertising, employment, upgrading, and promotion. In addition, BOND COUNSEL shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, handicap, disability or religion in compliance with State and Federal laws. 9. TERMINATION OF AGREEMENT A. This agreement may be terminated by either party upon thirty (30) days written notice in the event of substantial failure of the other party to perform in accordance with the terms of this Agreement. Each party shall have twenty (20) days following date of such notice within which to correct the substantial failure giving rise to such notice. BOND COUNSEL hereby covenants and agrees that upon termination of this Agreement for any reason, BOND COUNSEL will preserve and make immediately available to CITY, or its designated representatives, maps, notes, correspondence, or records related to work paid for by the CITY and required for its timely completion, and to fully cooperate with CIty so that the work to be accomplished may continue. Any subsequent use of such incomplete documents shall be at the sole risk of the CITY and CITY agrees to hold harmless and indemnify BOND COUNSEL from any claim, losses, costs, including Attorney's fees, and liability arising out of such use. B. This agreement may be terminated for the convenience of the CITY upon thirty (30) days written notice to BOND COUNSEL. Upon such notice, BOND COUNSEL shall provide work product to CITY and CITY shall compensate BOND COUNSEL in the manner set forth above. C. Following the effective date of termination of this Agreement pursuant to this Section, the Agreement shall continue until all obligations arising from such termination are satisfied. . 10. CONTINGENCIES In the event that, due to causes beyond the control of and without the fault or negligence of BOND COUNSEL, BOND COUNSEL fails to meet any of its obligations under this Agreement, and such failure shall not constitute a default in performance, and the CITY may grant to BOND COUNSEL such extensions of time and make other arrangements or additions, excepting any increase in payment, as may be reasonable under the Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 4 circumstances. Increases in payment shall be made only under the "changes" provision of this Agreement. 11. INDEPENDENT CONTRACTOR BOND COUNSEL shall act as an independent contractor in the performance of the services provided for tinder this Agreement. BOND COUNSEL shall furnish such services in its own manner and in no respect shall it be considered an agent or employee of CITY. . 12. ASSIGNMENT OR SUBCONTRACTING Neither this Agreement, nor any portion thereof, may be assigned by BOND COUNSEL without the written consent of CITY. Any attempt by BOND CQUNSEL to assign or subcontract any performance of this Agreement without the written consent of the CITY shall be null and void and shall constitute a breach of this agreement All subcontracts exceeding $10,000, shall contain all provisions of this Agreement. 13. NOTICES All official notices relative to this Agreement shall be in writing and addressed to the following representatives of BOND COUNSEL and CITY: BOND COUNSEL: CITY: Timothy J. Sabo SABO & GREEN 201 N. "E" Street San Bernardino, CA 92401 Michael E. Hays Director of Development Services 300 North "D" Street San Bernardino, CA 92418 14. RESPONSffiILITIES OF PARTIES A. Upon completion of all work under this Agreement, BOND COUNSEL will transfer ownership and title to CITY of all documents relative to the formation of the DISTRICT. 15. HOLD HARMLESS CLAUSE BOND COUNSEL hereby agrees to 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 BOND COUNSEL's negligent acts, errors or omissions under this Agreement. ~ Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 5 16. INDEMNITY BOND COUNSEL shall indemnify, defend and hold hannless CITY from and against any. and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities, of, by, or with respect to third parties, which arise from BOND COUNSEL's negligent acts, error or omissions under this Agreement. BOND COUNSEL shall not be responsible for, and CITY shall indemnify, defend and hold hannless BOND COUNSEL from and against, any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities of, by or with respect to third parties, which arise solely from the CITY's negligence. With respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities of, by or with respect to third parties, which arise from the joint or concurrent negligence of BOND COUNSEL and CITY, each party shall assume responsibility in proportion to the degree of its respective fault. 17. LIABILITY/INSURANCE BOND COUNSEL shall maintain the following types of insurance with limits as shown: A. Workers Compensation as required by the laws of the State ofCalifomia, including Employment Liability with $250,000 limits covering all persons providing service on behalf of BOND COUNSEL and all risks to such persons under this Agreement. BOND COUNSEL shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. B. Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non-owned vehicles. The policy shall have at least a combined single limit of$l,OOO,OOO for bodily injury and property damage. C. Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents or subcontractors. All other provisions of this policy are to remain unchanged." BOND COUNSEL shall furnish certificates of insurance and certified copies of all policies and endorsements to the Development Services Department, Real Property Section, evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 6 not be terminated or expire without thirty (30) days written notice to the Development Services Department, Real Property Section, and shall maintain such insurance from the time BOND COUNSEL commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insured with respect to liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance or self-insurance programs carried or administered by the CITY or other parties represented under this Agreement. 18. ATTORNEY'S FEES The prevailing party in any legal action to enforce or interpret any provisions of this Agreement will be entitled to recover from the losing party all attorneys' fees, court costs, and necessary disbursements in connection with that action. The costs, salary, and expenses of the CITY Attorney, and members of his office, in connection with that action shall be considered as attorneys' fees for the purpose of this agreement. 19. VALIDITY Should any provision herein be found or deemed to be invalid, this Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and effect, and to this end the provisions of this Agreement are declared to be severable. 20. ENTIRE AGREEMENT This Agreement represents the entire and integrated understanding between the parties hereto and supersedes all prior and contemporaneous negotiations, representations, understandings and agreements, whether written or oral, with respect to the subject matter thereof. This Agreement may be amended only by written instrument signed by both parties. Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. BOND COUNSEL: SABO & GREEN By: Approved as to form and legal content. JAMES F. PENMAN, City Attorney .~ CITY OF SAN BERNARDINO, a municipal corporation By: JUDITH V ALLES, Mayor Page 7 ATIEST: City Clerk 2380 I CALABASAS ROAO Sum 1015 CALABASAS, CALII'ORNIA 91302 (118)704-0195 fAJ((818) 704-4729 SABO &.GREEN AITORNEYS AT LAW A PROFESSIONAL CORPORATION 201 NORTH "E" STREET SUITE 300 SAN BERNARDINO, CALIfORNIA 92401 (909) 383-9373 fAJ((909) 383-9378 35-325 DATE PALM DRIVE Sum 232 CA1lIEDtlAL CITY, CALIPoRNIA 92234 (760) 770-0873 fAJ((76O) 77D-1724 INTERNET: www.sabogreen.com DIRECT E-MAIL ADDRESS: tsabo@sabogrccn.com November 24, 1999 Mike Hays Director of Development Services City ~ San Bernardino 300 North "D" Street, Third Floor San Bernardino, California 92418 Re: Retainer Letter - Bond Counsel Services Proposed Century Crowell Communities Assessment District Dear Mr. Hays: We are pleased to submit this proposal to serve the City of San Bernardino (the "City") as bond counsel in connection with a special assessment district financing (the "Financing") sought by Century Crowell Communities (the "Assessment District Petitioner") to specially benefit the residential subdivision and improvement of certain lands which the Assessment District Petitioner is under contract to acquire, including the property known as Arrow Vista (Tract Map Nos. 11261 and 13822) and Sterling Heights (Tract Map No. 10260) in the City. In our capacity as bond counsel for the Financing requested by the Assessment District Petitioner, we will provide guidance, advice and representation to the City in connection with any and all legal issues and problems arising with regard to the Financing. Additionally, we will prepare the legal documentation, including legal notices and resolutions of the Mayor and Common Council necessary for the Financing, and when all conditions precedent have been satisfied, we will render the bond opinion at the time of close of the Financing. To the extent deemed necessary, we will attend all meetings in connection with the Financing. For the bond counsel services set forth above, or as subsequently directed by the City, we shall be paid a fee of$15,000, plus expenses upon closing of the Financing; provided. however, that if the transaction is not consummated for any reason, we shall be compensated at a rate of $175 per hour for all attorney hours, plus expenses; and provided, further, that in the event the Financing has not closed on or before the date which is six months from the da~ of adoption by the Mayor and EXHIBIT "A" Mike Hays November 24, 1999 Page 2 -. Common Council of the resolution of intention initiating the improvements and assessment requested by the Assessment District Petitioner, we shall be compensated at the hourly rate set forth above for all attorney hours. plus expenses, until the close or suspension by the City of the Financing, and in either such event whether or not the fee so earned may exceed $15,000. In the event the Financing has not closed on or before the date which is six (6) months from the date of adoption by the Mayor and Common Council of such resolution of intention as relates to the Financing, we will, within thirty (30) days thereafter, send the City a statement for payment reflecting the attorney hours plus expenses as billable to that date. We will thereafter send monthly statements to the City for legal fees and expenses incurred on the City's behalfin connection with die Financing until final close or suspension of the Financing. As far as expenses are concerned, please be informed that we charge for database searches, secretarial overtime when required by the urgency of a client's matter, long distance telephone calls, special deliveries and other similar items. All such charges are billed at or below our estimated cost. We also charge for duplicating and providing copies of documents (currently $0.25 per page) and facsimile transmission (currently incoming $1.00 per page and outgoing $2.00 first page and $1.00 per page thereafter). Our schedule of charges for expenses changes from time- to-time to reflect inflation and other factors. Those changes apply prospectively to all matters then being handled by the firm. Our billing practices reflect our desire to deal fairly with our clients in this as in all other aspects of our relationship. We welcome the opportunity to be retained by the City, and assuming this letter is acceptable to the City, we look forward to providing bond counsel services to the City in connection with the proposed Financing. Mike Hays November 24, 1999 Page 3 If the tenns of this retainer letter are acceptab1.!= to the City and reflect its understaDding and agreement, please have the appropriate authorized officer sign and return to the undersigned the enclosed extra copy of this letter. Very truly yours, SABO & GREEN A Professional Corporation ~ ~~~ ACCEPTED AND AGREED TO: CITY OF SAN BERNARDINO By Its Date: P:IAPPSI WPDA T AISBEOIO 166-02\llOC\OO 1-1.WPD "...,.. " H . AGREEMENT FOR LEGAL SERVICES This AGREEMENT is made and entered into this _day of ., 19-",--,-, . by and between the CITY OF SAN BERNARDINO, California, a municipal corporation, hereinafter referred to as the "CITY" and SABO & GREEN, a ProfessonalLaw Corporation, hereinafter referred to as "BOND COUNSEL" RECITALS WHEREAS, the CITY desires to initiate proceedings for the fo~tion of an Assessment District ("DISTRICT") pursuant to the provisions of the Municipal Bond Improvement Act of 1913, Division 12 of the Streets and Highways Code and the Improvement Bond Act of 1915, Division 10 of said Streets and Highways Code for the purposes of financing certain fees for the construction of certain public improvements; and WHEREAS, the CITY desires to retain the services of BOND COUNSEL relative to the preparation of resolutions, notices, bond forms and other documents required in the proceedings and issue their legal opinion or opinions as to the validity of the proceedings and necessary documents. NOW, THEREFORE, it is mutually agreed upon as follows: 1. SCOPE OF SERVICES BOND COUNSEL shall perform those services specified in retainer letter and proposal of services, dated November 24. 1999 . a copy of which is attached hereto as Exhibit "A" , and as directed by the CITY of San Bernardino. 2. TERM OF AGREEMENT The services of BOND COUNSEL are to commence after the CITY has authorized work to start by issuance of a Notice to Proceed. This Agreement shall expire upon the successful completion of the sale of Bonds and completion of the DISTRICT, including the filing and recording of assessments or upon termination of proceedings. Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 2 3. STANDARD OF PERFORMANCE BOND COUNSEL shall complete all work product and design in conformance with applicable local and state laws. 4. CHANGESIEXTRA SERVICES A. Performance of the work specified in the Proposal is made an obligation of BOND COUNSEL under this Agreement, subject to any changes made subsequently upon mutual written agreement of the parties. Any change which has not been so incorporated shall not be binding on either party. 5. COMPENSATION A. The CITY shall reimburse the BOND COUNSEL for actual costs (including labor costs, employee benefits, overhead, profit, other direct and indirect costs)incurred by the BOND COUNSEL in performance of the work, in an amount not to exceed $15.000.00. Dlus exoenses. as described in Exhibit "A". In the event this Agreement is terminated prior to the completion of the DISTRICT, the CITY shall reimburse BOND COUNSEL at the rate of $175 per hour for all attorney hours, plus expenses, and as more fully set forth in the attached Exhibit "A". B. Said compensation shall not be altered unless there is significant alteration in the scope, complexity or character of the work to be performed. Any adjustment of the total cost of services will only be permitted when the BOND COUNSEL establishes and CITY has agreed, in writing, that there has been, or is to be, a significant change. 6. PAYMENT BY CITY A. The billings for all services rendered pursuant to this Agreement shall be submitted monthly by BOND COUNSEL to CITY and shall be paid by CITY within thirty (30) days after receipt of same, excepting any amounts disputed by CITY. All tasks as specified in proposal shall be completed prior to fina1 payment. 7. SUPERVISION AND ACCEPTANCE OF SERVICES A. The Director of Development Services of the CITY, or his designee, shall have the right of general supervision over all work performed by BONP COUNSEL and shall be CITY's agent with respect to obtaining BOND COUNSEL's compliance hereunder. No payment for any services rendered under this Agreement shall be made without prior approval of the Director of Development Services Works or his designee. Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 3 8. COMPLIANCE WITH CIVIL RIGHTS LAWS AND AMERICANS WITH DISABILITIES ACT BOND COUNSEL hereby certifies that it wilJ not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin or disability. BOND COUNSEL's hiring practices and employee policies shall comply with all applicable Federal, State and local laws. Such action shall include, but not be limited to, the folJowing: Recruitment and recruitment advertising, employment, upgrading, and promotion. In addition, BOND COUNSEL shall not exclude from participation under this Agreement any employee or applicant for employment on the basis of age, handicap, disability or religion in compliance with State and Federal laws. 9. TERMINATION OF AGREEMENT A. This agreement may be terminated by either party upon thirty (30) days written notice in the event of substantial failure of the other party to perform in accordance with the terms of this Agreement. Each party shall have twenty (20) days folJowing date of such notice within which to correct the substantial failure giving rise to such notice. BOND COUNSEL hereby covenants and agrees that upon termination of this Agreement for any reason, BOND COUNSEL wilJ preserve and make immediately available to CITY, or its designated representatives, maps, notes, correspondence, or records related to work paid for by the CITY and required for its timely completion, and to fulJy cooperate with CITY so that the work to be accomplished may continue. Any subsequent use of such incomplete documents shall be at the sole risk of the CITY and CITY agrees to hold harmless and indemnify BOND COUNSEL from any claim, losses, costs, including Attorney's fees, and liability arising out of such use. B. This agreement may be terminated for the convenience of the CITY upon thirty (30) days written notice to BOND COUNSEL. Upon such notice, BOND COUNSEL shall provide work product to CITY and CITY shall compensate BOND COUNSEL in the manner set forth above. C. Following the effective date ofterrnination of this Agreement pursuant to this Section, the Agreement shall continue until all obligations arising from such termination are satisfied. 10. CONTINGENCIES In the event that, due to causes beyond the control of and without the fault or negligence of BOND COUNSEL, BOND COUNSEL fails to meet any of its obligations under this Agreement, and such failure shall not constitute a default in performance, and the CITY may grant to BOND COUNSEL such extensions of time and make other arrangements or additions, excepting any increase in payment, as may be reasonable under the Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 4 circumstances. Increases in payment shall be made only under the "changes" provision of this Agreement. 11. INDEPENDENT CONTRACTOR BOND COUNSEL shall act as an independent contractor in the performance of the services provided for under this Agreement. BOND COUNSEL shall furnish such services in its own manner and in no respect shaH it be considered an agent or employee of CITY. 12. ASSIGNMENT OR SUBCONTRACTING Neither this Agreement, nor any portion thereof, may be assigned by BOND COUNSEL without the written consent of CITY. Any attempt by BOND CQUNSEL to assign or subcontract any performance of this Agreement without the written consent of the CITY shall be nuH and void and shaH constitute a breach of this agreement. AIl subcontracts exceeding $10,000, shall contain all provisions of this Agreement. 13. NOTICES All official notices relative to this Agreement shall be in writing and addressed to the foHowing representatives of BOND COUNSEL and CITY: BOND COUNSEL: CITY: Timothy 1. Sabo SABO & GREEN 201 N. "E" Street San Bernardino, CA 92401 Michael E. Hays Director of Development Services 300 North "D" Street San Bernardino, CA 924 I 8 14. RESPONSIBILITIES OF PARTIES A. Upon completion of all work under this Agreement, BOND COUNSEL wiH transfer ownership and title to CITY of all documents relative to the formation of the DISTRICT. 15. HOLD HARMLESS CLAUSE BOND COUNSEL hereby agrees to hold CITY, its elective and appointive boards, officers, and employees, harmIess from any liability for damage or claims for damage for personal injury including death, as weH as from claims for property damage, which may arise from BOND COUNSEL's negligent acts, errors or omissions under this Agreement. Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 5 16. INDEMNITY BOND COUNSEL shall indemnify, defend and hold harmless CITY from and against any - . and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities, of, by, or with respect to third parties, which arise from BOND COUNSEL's negligent acts, error or omissions under this Agreement. BOND COUNSEL shall not be responsible for, and CITY shall indemnify, defend and hold harmless BOND COUNSEL from and against, any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities of, by or with respect to third parties, which arise solely from the CITY's negligence. With respect to any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, expenses (including attorneys' fees) and liabilities of, by or with respect to third parties, which arise from the joint or concurrent negligence of BOND COUNSEL and CITY, each party shall assume responsibility in proportion to the degree of its respective fault. 17. LIABILITYIINSURANCE BOND COUNSEL shall maintain the following types of insurance with limits as shown: A. Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of BOND COUNSEL and all risks to such persons under this Agreement. BOND COUNSEL shall require its Workers Compensation carrier to waive all rights of subrogation against the CITY and its officers and employees and any others for whom services are being provided under this Agreement. B. Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non-owned vehicles. The policy shall have at least a combined single limit of $1 ,000,000 for bodily injury and property damage. C. Professional Liability Insurance with limits of at least $1,000,000 per claim. In lieu of naming the CITY as an additional insured, the policy may be endorsed as follows: "Insurance coverage afforded by this policy shall also apply to the liability assumed by the Insured under the Agreement with the CITY OF SAN BERNARDINO for legal services, provided such liability results from an error, omission or negligent act of the insured, its officers, employees, agents or subcontractors. All other provisions of this policy are to remain unchanged." BOND COUNSEL shall furnish certificates of insurance and certified copies of all policies and endorsements to the Development Services Department, Real Property Section, evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificates shall provide that such insurance shall Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 6 not be terminated or expire withouf thirty (30) days written notice to the Development Services Department, Real Property Section, and shall maintain such insurance from the time BOND COUNSEL commences performance of services hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the CITY and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insured with respect to liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance or self-insurance programs carried or administered by the CITY or other parties represented under this Agreement. 18. "ATTORNEY'S FEES The prevailing party in any legal action to enforce or interpret any provisions of this Agreement will be entitled to recover from the losing party all attorneys' fees, court costs, and necessary disbursements in connection with that action. The costs, salary, and expenses of the CITY Attorney, and members of his office, in connection with that action shall be considered as attorneys' fees for the purpose of this agreement. 19. VALIDITY Should any provision herein be found or deemed to be invalid, this Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and effect, and to this end the provisions of this Agreement are declared to be severable. 20. ENTIRE AGREEMENT This Agreement represents the entire and integrated understanding between the parties hereto and supersedes all prior and contemporaneous negotiations, representations, understandings and agreements, whether written or oral, with respect to the subject matter thereof. This Agreement may be amended only by written instrument signed by both parties. Agreement for Legal Services - Assessment District 1026 - SABO & GREEN. Page 7 BOND COUNSEL: CITY OF SAN BERNARDINO, a municipal corporation SABO & GREEN By: By: JUDITH V ALLES, Mayor Approved as to form and legal content. AITEST: JAMES F. PENMAN, City All mey City Clerk '""Mo.o- . . 23801 CALABASAS ROAD SUITE 1015 CALABASAS, CAl.IFORNIA 91302 (818)704-ll195 FAJ((818) 704-4729 SABO & GREEN AITORNEYS AT LAW A PROFESSIONAL CORPORATION 201 NORTII"E"STREJrr . SUllE300 SAN BI!RNARD"o. CALIFORNIA 92401 (909) 383-9373 FAJ((909) 383-9378 35-325 OATBIW.M IlIuvl! SUllE232 . CATHEDRAL ClrY, CAl.IFORNiA 92234 . (760) 170-0873 FAJ((76O) 170-1724 INTERNET: www.sabogreen.com OlREcr E-MAIL AoORESS: tsabo@sabogreen.com November 24, 1999 Mike Hays Director of Development Services City of San Bernardino 300 North "0" Street, Third Floor San Bernardino, California 92418 Re: Retainer Letter - Bond Counsel Services Proposed Century Crowell Communities Assessment District Dear Mr. Hays: We are pleased to submit this proposal to serve the City of San Bernardino (the "City'') as bond counsel in connection with a special assessment district financing (the "Financing") sought by Century Crowell Communities (the "Assessment District Petitioner") to specially benefit the residential subdivision and improvement of certain lands which the Assessment District Petitioner is under contract to acquire, including the property known as Arrow Vista (Tract Map Nos. 11261 and 13822) and Sterling Heights (Tract Map No. 10260) in the City. In our capacity as bond counsel for the Financing requested by the Assessment District Petitioner, we will provide guidance, advice and representation to the City in connection with any and all legal issues and problems arising with regard to the Financing. Additionally, we . will prepare the legal documentation, including legal notices and resolutions of the Mayor and Common Council necessary for the Financing, and when all conditions precedent have been satisfied, we will render the bond opinion at the time of close of the Financing. To the extent deemed necessary, we will attend all meetings in connection with the Financing. For the bond counsel services set forth above, or as subsequently directed by the City, we shall be paid a fee of $15,000, plus expenses upon closing of the Financing; provided, however, that if the transaction is not consummated for any reason, we shall be compensated at a rate of $175 per hour for all attorney hours, plus expenses; and provided, fiuther, that in the event the Financing has not closed on or before the date which is six months from the da~ of adoption by the Mayor and EXHIBIT "A" .- Mike Hays November 24, 1999 Page 2 Common Council of the resolution of intention initiating the improvements and assessment requested by the Assessment District Petitioner, we shaH be compensated at the hourly rate set forth above for all attorney hours, plus expenses, until the close or suspension by the City of the Financing, and in either such event whether or not the fee so earned may exceed $15,000. In the event the Financing has not closed on or before the date which is six (6) months from the date of adoption by the Mayor and Common Council of such resolution of intention as relates to the Financing, we will, within thirty (30) days thereafter, send the City a statement for payment reflecting the attorney hours plus expenses as billable to that date. We will thereafter send monthly statements to the City for legal fees and expenses incurred on the City's behalf in connection with the Financing until final close or suspension of the Financing. As far as expenses are concerned, please be informed that we charge for database searches, secretarial overtime when required by the urgency of a client's matter, long distance telephone calls, special deliveries and other similar items. All such charges are billed at or below our estimated cost. We also charge for duplicating and providing copies of documents (currently $0.25 per page) and facsimile transmission (currently incoming $1.00 per page and outgoing $2.00 first page and $1.00 per page thereafter). Our schedule of charges for expenses changes from time- to-tffil'e to reflect inflation and other factors. Those changes apply prospectively to all matters then being handled by the firm. Our billing practices reflect our desire to deal fairly with our clients in this as in all other aspects of our relationship. We welcome the opportunity to be retained by the City, and assuming this letter is acceptable to the City, we look forward to providing bond counsel services" to the City in connection with the proposed Financing. . . Mike Hays November 24, 1999 Page 3 If the terms of this retainer letter are acceptable to the City and reflect its understanding and agreement, please have the appropriate authorized officer sign and return to the undersigned the enclosed extra copy of this letter. Very truly yours, SABO & GREEN A Professional Corporation ~~~ ACCEPTED AND AGREED TO: CITY OF SAN BERNARDINO By Its Date: P:\APPS\ WPDA T A\SBEOIOI66-02\1XlC\OO I-I.WPD