HomeMy WebLinkAboutAgreement A-16-148 with Hawkins Delafield Wood LLP-2016 Refunding Lease Revenue Bonds.pdf Agreement No. 16-148
2016 Refunding Lease Revenue Bonds
Hawkins Agreement
1 AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2 (Bond Counsel and Disclosure Counsel Services for
3 2016 Refunding Lease Revenue Bonds)
4 THIS AGREEMENT ("Agreement") is made and entered into this 5th day of
5 April , 2016, by and between the COUNTY OF FRESNO, a political subdivision of
6 the State of California, hereinafter referred to as "COUNTY," and the law firm of HAWKINS
7 DELAFIELD & WOOD, LLP, hereinafter referred to as "ATTORNEY."
8 WITNESSETH:
9 WHEREAS, COUNTY, through the Fresno County Financing Authority, a joint
10 powers agency ("JPA"), caused the issuance, on a tax-exempt basis, of the Fresno County
11 Financing Authority Lease Revenue Bonds, Series 2007 (Shared Use Juvenile Court Project) in
12 the aggregate principal amount of$55,350,000 ("Prior Bonds") to finance shared use juvenile
13 court facilities of the COUNTY; and
14 WHEREAS, COUNTY has the possible need to issue refunding lease revenue bonds
15 ("Refunding Bonds"), on a tax-exempt basis, and at a fixed interest rate, that would fully
16 redeem the Prior Bonds, but only if the COUNTY obtains a satisfactory minimum financial
17 savings under a financing plan ("Financing Plan") to be determined by the COUNTY; and
18 WHEREAS, COUNTY wishes to engage the specialized legal services of a law firm to
19 serve both as bond counsel and as disclosure counsel who is expert in legal matters concerning
20 the foregoing transactions; and
21 WHEREAS, ATTORNEY represents that it is specially trained and experienced, and
22 that it possesses such expertise; and
23 WHEREAS, such specialized legal services are either not available or not expected to
24 be available in COUNTY's Office of the County Counsel.
25 NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions
26 herein described, the parties hereto agree as follows:
27 1. Engagement of Attornev: COUNTY hereby engages ATTORNEY as an
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1 independent contractor through the services of the following key person(s): Arto C. Becker,
2 Esq., Russell A. Miller, Esq., Diane K. Quan, Esq., and Brian Organ, Esq., partners of
3 ATTORNEY; and such other partners of, and associate lawyers and staff members employed
4 by, ATTORNEY as ATTORNEY deems necessary, and who COUNTY's County Counsel
5 ("County Counsel"), or his or her designee, approves pursuant to paragraph 3 of this
6 Agreement, except that the foregoing key persons may, from time to time, consult with such of
7 ATTORNEY's other lawyers on a "limited basis" (as defined below) as ATTORNEY
8 reasonably deems prudent and necessary under the circumstances. It is understood that
9 ATTORNEY may not replace any of the aforementioned key persons named above without the
10 prior, express, written approval of County Counsel, or his or her designee. In case of death,
II illness or other incapacity of any of the foregoing key persons, ATTORNEY shall provide a
12 replacement of at least equal professional ability and experience as the key person replaced.
13 A. Scope of Bond Counsel Services: In its capacity as bond counsel, ATTORNEY
14 shall provide the following professional legal services in order to assist COUNTY in selling
15 and issuing the Refunding Bonds and the full redemption of the Prior Bonds:
16 (1) Provide legal review of the financing structure of the proposed
17 Financing Plan, including the Refunding Bonds and the full redemption of the Prior Bonds,
18 with the understanding that ATTORNEY, by acting as Bond Counsel, will not structure the
19 Refunding Bonds.
20 (2) Consult with COUNTY officials, County Counsel, or his or her
21 designee, lawyers in ATTORNEY's firm who are acting in their capacity as COUNTY's
22 disclosure counsel ("Disclosure Counsel"), and the municipal financial advisor selected by
23 COUNTY, concerning the timing, terms, and structure of the Financing Plan, including the
24 Refunding Bonds and the full redemption of the Prior Bonds.
25 (3) Perform legal services attendant to the use of the JPA for the Financing
26 Plan, including the Refunding Bonds and the full redemption of the Prior Bonds.
27 (4) Prepare, review, and advise COUNTY in connection with, any and all
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1 documents, agreements, resolutions, instruments and certificates to be used for Financing Plan
2 to accomplish the sale and issuance of the Refunding Bonds and the full redemption of the
3 Prior Bonds including, but not limited to:
4 (a) The Site Lease between COUNTY and JPA for COUNTY's lease of
5 COUNTY's selected property (initially, the Juvenile Justice Campus courthouse project
6 financed with the Prior Bonds) ("Property') to the JPA;
7 (b) The Lease between JPA and COUNTY, for JPA's lease back of Property
8 to COUNTY; and
9 (c) The Assignment of Rents Agreement Relating to the Lease
10 ("Assignment Agreement") between JPA and a trustee ("Trustee") to be selected by COUNTY
1 1 for JPA's assignment of JPA's receipt of COUNTY's rents payable under the Lease, for the
12 benefit of the holders of the Refunding Bonds ("Refunding Bondholders");
13 (d) The indenture between Trustee and JPA to secure COUNTY's pledge of
14 COUNTY's obligation to pay rents under the Lease, for the benefit of the holders of the
15 Refunding Bonds;
16 (e) The Refunding Bonds;
17 (f) The escrow agreement(s) or other appropriate instrument(s) ("Escrow
18 Agreement") necessary for transferring the proceeds of the Refunding Bonds to the trustee of
19 each of the Prior Bonds to fully redeem the Prior Bonds;
20 (g) The resolutions of COUNTY's Board of Supervisors and JPA's
21 governing board authorizing the issuance and sale of the Refunding Bonds, and the full
22 redemption of the Prior Bonds, and related matters under the Financing Plan, setting forth the
23 terms and conditions of the Refunding Bonds, their form, date, denominations, and maturities,
24 providing for the establishment of a fund as security for the Refunding Bonds to ensure
25 compliance with applicable laws and regulations, insurance policies, if any, and credit or
26 liquidity facilities, if any, and the full redemption of the Prior Bonds.
27 (5) Review, and advise COUNTY in connection with, the Preliminary
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1 Official Statement and the Official Statement for the Financing Plan, prepared by Disclosure
2 Counsel, describing COUNTY, the Financing Plan, the Financing Documents, the issuance and
3 sale of the Refunding Bonds, the full redemption of the Prior Bonds, and other related
4 documents, agreement, resolutions, instruments and certificates. "Financing Documents"
5 means all of the documents listed in paragraph 1.A.(4), above, the SEC Continuing Disclosure
6 Certificate (described below), the Event Notice (described below), and the Bond Purchase
7 Agreement (described below).
8 (6) Review, and advise COUNTY in connection with, preliminary and final
9 title reports, title insurance, and, if any, appraisals, concerning COUNTY's and JPA's interests
10 in the Property.
11 (7) Review, and advise COUNTY in connection with, any and all
12 documents, resolutions, instruments and certificates to be executed by COUNTY at the closing
13 of the Refunding Bonds, and the full redemption of the Prior Bonds, which are necessary for
14 COUNTY to comply with the continuing disclosure requirements under Securities and
15 Exchange Commission Rule 15c-212, including, but not limited to the amendments thereto
16 ("SEC Continuing Disclosure Certificate" for the Refunding bonds, and "Event Notice"to be
17 filed under the continuing disclosure certificate for the Prior Bonds).
18 (8) If a negotiated sale is used for the Financing Plan, review, and advise
19 COUNTY in connection with, the bond purchase agreement with the underwriter ("Bond
20 Purchase Agreement"), prepared by Disclosure Counsel for the sale of the Refunding Bonds,
21 and other related documents, agreements, resolutions, instruments and certificates.
22 (9) If a competitive sale is used for the Financing Plan, review, and advise
23 COUNTY in connection with:
24 (a) the Official Notice of Sale of the Refunding Bonds and Bid Form, both
25 of which shall be prepared by ATTORNEY;
26 (b) the notice of intention to sell securities, prepared by ATTORNEY, to be
27 published in a publication selected by COUNTY's Auditor-Controller/Treasurer-Tax
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1 Collector, as provided by Government Code § 53692;
2 (c) the bids submitted for the purchase of the Refunding Bonds; and
3 (d) other related documents, agreements, resolutions, instruments and
4 certificates.
5 (10) Provide comment to underwriter's counsel, if such counsel is employed
6 by an underwriter, and to Disclosure Counsel, concerning any and all documents, agreements,
7 instruments and resolutions referred to herein which are prepared by Disclosure Counsel.
8 (11) As to those documents, agreements, resolutions, instruments and
9 certificates prepared by ATTORNEY, distribute necessary drafts and revisions of same,
10 receive comments from members of the financing team for the Financing Plan and from other
11 parties for such financing plan, and resolve same to the satisfaction of County Counsel or his
12 or her designee.
13 (12) Examine proofs of the Refunding Bonds.
14 (13) Draft all closing documents, instruments and certificates in connection
15 with the Financing Plan, including the Refunding Bonds and the full redemption of the Prior
16 Bonds.
17 (14) Render written unqualified opinions relating to the Financing Plan,
18 including the Refunding Bonds, and the full redemption of the Prior Bonds, as applicable,
19 which shall be acceptable to County Counsel, or his or her designee, in form and substance, to
20 the following effect:
21 (a) that COUNTY and JPA have the full legal right, power and authority to
22 enter into and carry out and consummate transactions on their respective parts contemplated
23 under (i) each of the agreements in the Financing Documents to which they are a party, and (ii)
24 the resolutions of COUNTY's Board of Supervisors and the board of directors of JPA, as
25 applicable; and
26 (b) that JPA is a separate joint powers agency duly authorized, validly
27 existing and in good standing under the laws of the State of California; and
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1 (c) that JPA has full legal power and adequate authority to adopt the
2 necessary resolutions in connection with the authorization and sale and issuance of the
3 Refunding Bonds and the full redemption of the Prior Bonds, to enter into the Financing
4 Documents to which it is a party, and to own or lease its properties and to carry on its business
5 now conducted and as contemplated by the Financing Documents and the Official Statement;
6 and
7 (d) that each of the agreements in the Financing Documents (except for the
8 Bond Purchase Agreement, on which ATTORNEY shall render an opinion, as stated below, in
9 its capacity as Disclosure Counsel) to which COUNTY and JPA are a party, have been duly
10 authorized, executed and delivered or issued, as applicable, by COUNTY and JPA, and
11 constitute legally valid and binding obligations of COUNTY and JPA enforceable against
12 COUNTY and JPA, as applicable, in accordance with their respective terms; and
13 (e) that the obligation of COUNTY to make rental payments under and
14 during the term of the Lease constitute a valid and binding obligation of COUNTY, payable
15 from the funds of COUNTY lawfully available for that purpose, and that the Lease does not
16 constitute a debt of COUNTY or the State of California or any of its political subdivisions
17 within the meaning of any constitutional or statutory debt limitation or restriction, and does not
18 constitute an obligation for which COUNTY or the State of California is obligated to levy or
19 pledge any form of taxation or for which COUNTY or the State of California has levied or
20 pledged any form of taxation;
21 (f) that, upon the issuance of the Refunding Bonds, and upon the deposit of
22 cash and certain proceeds of the Refunding Bonds into the escrow funds established under the
23 Escrow Agreement, and the investment of money and securities in accordance with the
24 provisions of the Escrow Agreement, the owners of the Prior Bonds shall cease to be entitled to
25 the pledge of the Revenues as provided in the indenture for the Prior Bonds, and all
26 agreements, covenants and other obligations of the Authority to the owners of such Bonds
27 thereunder shall thereupon cease, terminate and become void and be discharged and satisfied,
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1 except only that the County will remain liable for payment of all principal, interest and
2 premium, if any, represented by the Prior Bonds, but only out of monies on deposit in the
3 interest and sinking fund or otherwise held in trust for such payment of such Prior Bonds. In
4 rendering such opinion, reliance may be made on the verification report prepared by a third
5 party ("Verification Report") as to the mathematical accuracy of the schedules with respect to
6 the sufficiency of the escrow funds established to pay the Prior Bonds without independently
7 verifying the accuracy of the information contained in the Verification Report;
8 (g) that the portion of each of COUNTY's rental payments designated as
9 and constituting interest paid by COUNTY under the Lease and received by the registered
10 owners of the Refunding Bonds (i) is excluded from "gross income" for federal income tax
11 purposes under Section 103 of the Internal Revenue Code of 1986, and (ii) is exempt from
12 personal income taxes of the State of California, and
13 (h) that any agreements or instruments not referred to above, which are
14 executed by COUNTY and prepared by ATTORNEY, acting in its capacity as Bond Counsel,
15 have been duly authorized, executed, and delivered by COUNTY or JPA, and that they
16 constitute legally valid and binding obligations of COUNTY or JPA, enforceable against
17 COUNTY or JPA, as applicable, in accordance with their terms; and
18 (i) any other written opinions, if any, reasonably requested by the
19 underwriter and COUNTY that relate to the Financing Plan.
20 All such opinions shall be addressed in a letter to COUNTY's Board of
21 Supervisors or JPA's board of directors, as applicable (which letter shall expressly state that
22 ATTORNEY is acting as Bond Counsel for COUNTY or JPA, as applicable), and be provided
23 at the time of the delivery of and receipt for payment of the Refunding Bonds. Any and all
24 such opinions shall also be addressed to the underwriter (if requested by the underwriter), as a
25 reliance opinion, as hereinafter provided, and be provided at the time of the delivery of and
26 receipt for payment of the Refunding Bonds.
27 If ATTORNEY provides a written opinion to any third party (e.g., an
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1 underwriter) whereby the third party is allowed to rely upon any opinion given by
2 ATTORNEY to COUNTY herein (a"reliance opinion"), such reliance opinion shall (i) be
3 provided in a letter, separate from the opinions given by ATTORNEY to COUNTY herein, and
4 (ii) expressly state substantially to the effect that no attorney-client relationship exists or is
5 created by reason of giving such opinion.
6 (15) Comment and advise COUNTY on issues that arise in the course of the
7 implementation of the Financing Plan.
8 (16) Attend meetings with either COUNTY staff, COUNTY Debt Advisory
9 Committee, or the Board of Supervisors, or all of them, upon request by the County Counsel,
10 or his or her designee.
11 (17) Attend meetings with rating agencies and COUNTY's municipal
12 financial advisor, upon request by County Counsel, or his or her designee.
13 (18) Handle closing and post-closing issues in connection with the Financing
14 Plan, and distribute any and all documents, agreements, resolutions, instruments and
15 certificates to appropriate persons or organizations.
16 (19) Perform such other similar services as County Counsel, or his or her
17 designee, may request.
18 B. Scope of Disclosure Counsel Services: In its capacity as disclosure counsel,
19 ATTORNEY shall provide the following professional legal services in order to assist
20 COUNTY in issuing and selling the Refunding Bonds, and fully redeeming the Prior Bonds:
21 (1) Consult with COUNTY officials, County Counsel, or his or her
22 designee, lawyers in ATTORNEY's firm who are acting in their capacity as COUNTY's bond
23 counsel ("Bond Counsel"), and the municipal financial advisor selected by COUNTY,
24 concerning the timing, terms, and structure of the Financing Plan, including the Refunding
25 Bonds and the full redemption of the Prior Bonds, with the understanding that ATTORNEY,
26 by acting as Disclosure Counsel, will not structure the Refunding Bonds.
27 (2) Review, and advise COUNTY in connection with, any and all
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1 documents, agreements, resolutions, instruments and certificates to be used for the issuance
2 and sale of the Refunding Bonds, and the full redemption of the Prior Bonds, but not limited to,
3 the paying agent or fiscal agent agreement or certificate (if used), the Refunding Bonds, the
4 COUNTY Board Resolution, the tax certificate, insurance policies, and credit or liquidity
5 facilities.
6 (3) Prepare, review, and advise COUNTY in connection with, the
7 Preliminary Official Statement and the Official Statement for the Financing Plan describing the
8 COUNTY, the Financing Plan, the issuance and sale of the Refunding Bonds, and other related
9 documents, agreements, resolutions, instruments and certificates.
10 (4) Prepare and review, and advise COUNTY in connection with, any and
11 all documents, agreements, instruments and resolutions to be executed by COUNTY at the
12 closing of the Refunding Bonds, including, but not limited to, the SEC Continuing Disclosure
13 Certificate and Event Notice.
14 (5) Perform due diligence necessary to prepare COUNTY's Preliminary
15 Official Statement, Official Statement, SEC Continuing Disclosure Certificate, and any other
16 disclosure documents for the Financing Plan, in order to ensure that such Financing Plan,
17 including the Refunding Bonds and the full refunding of the Prior Bonds, is in compliance with
18 the applicable securities laws and regulations, including, but not limited to Securities and
19 Exchange Commission Rule IOb-5 and Rule 15c2-12, including but not limited to the
20 amendments thereto.
21 (6) If a negotiated sale is used for the Financing Plan, preparation and
22 review of, and advise COUNTY in connection with, the Bond Purchase Agreement, for the
23 sale of the Refunding Bonds, and other related documents, agreements, resolutions and
24 certificates.
25 (7) Provide comment to underwriter's counsel, if such counsel is employed
26 by an underwriter, and to Bond Counsel, concerning any and all documents, agreements,
27 instruments and resolutions referred to herein which are prepared by Bond Counsel.
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1 (8) As to those documents, agreements, resolutions, instruments and
2 certificates prepared by ATTORNEY, distribute necessary drafts and revisions of same,
3 receive comments from members of the financing team for the Financing Plan and from other
4 parties for such financing plan, and resolve same to the satisfaction of County Counsel or his
5 or her designee.
6 (9) Render unqualified written opinions relating to the Financing Plan,
7 including the Refunding Bonds, and the full redemption of the Prior Bonds, as applicable,
8 which shall be acceptable to County Counsel, or his or her designee, in form and substance, to
9 the following effect:
10 (a) that the Official Statement for the Financing Plan, including the
11 Refunding Bonds and the full redemption of the Prior Bonds, on the basis of the information
12 developed in the course of the performance of the services referred to therein, considered in
13 light of ATTORNEY's understanding of the applicable law and experience ATTORNEY has
14 gained through its practice thereunder, ATTORNEY is of the opinion, subject to the limitations
15 expressed in the opinion, which limitations shall be acceptable to COUNTY, that as of the date
16 of the opinion, ATTORNEY has no reason to believe that, as of the date of the opinion, the
17 Official Statement as of its date contained an untrue statement of a material fact or omitted to
18 state any material fact required to be stated therein or necessary to make the statements therein,
19 in light of the circumstances under which they were made, not misleading (except for (i) the
20 financial statements and other financial and statistical data, forecasts, estimates and
21 expressions of opinion included therein and in Appendix A - "Financial, Economic and
22 Demographic Information Regarding the County of Fresno" and (ii) the statements in the
23 Official Statement with respect to The Depository Trust Company and its book-entry system
24 and matters relating thereto, including the material appearing under the heading "Book Entry
25 Only System" as to which ATTORNEY expresses no opinion) or that the Official Statement as
26 of the date of the opinion (except as aforesaid) contains an untrue statement of a material fact
27 or omits to state any material fact required to be stated therein or necessary to make the
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1 statements therein, in light of the circumstances under which they were made, not misleading
2 (except as aforesaid);
3 (b) that the Official Statement for the Financing Plan, including the
4 Refunding Bonds, and the full redemption of the Prior Bonds, to the extent that the statements
5 contained therein purport to summarize the (i) the Financing Plan, (ii) the Financing
6 Documents, (iii) the sale and issuance of the Refunding Bonds and the full redemption of the
7 Prior Bonds, (iv) security and source of payment for the Refunding Bonds, (v) other related
8 documents, agreement, resolutions, instruments and certificates, (vi) the laws and regulations
9 governing and in connection with the Financing Documents, and (vii) the state and federal tax
10 treatment of interest on the Refunding Bonds, is accurate and complete in all material respects
1 1 (assuming, but only for those documents not generated as ATTORNEY's own work product,
12 the accuracy, completeness and fairness of the statements contained in such underlying
13 information);
14 (c) that the Official Statement for the Financing Plan, including the
15 Refunding Bonds, and the full redemption of the Prior Bonds, was duly authorized, executed,
16 and delivered by COUNTY and JPA;
17 (d) if a negotiated sale is used, that the Bond Purchase Agreement has been
18 duly authorized, executed, and delivered by COUNTY and JPA, and that it constitutes a legally
19 valid and binding obligation of COUNTY and JPA, respectively, enforceable against
20 COUNTY and JPA, respectively, in accordance with its terms;
21 (e) that the Refunding Bonds are exempt from the registration requirements
22 of the Securities Act of 1933, as amended;
23 (f) that the Indenture and the issuance of the 2012 Refunding Bonds are
24 exempt from qualification under the Trust Indenture Act of 1939, as amended;
25 (g) that any agreements or instruments not referred to above, which are
26 executed by COUNTY and prepared by ATTORNEY, in its capacity as Disclosure Counsel,
27 have been duly authorized, executed, and delivered by COUNTY, and that they constitute
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1 legally valid and binding obligations of COUNTY, enforceable against COUNTY in
2 accordance with their terms;
3 (h) any other written opinions, if any, reasonably requested by the
4 underwriter and COUNTY that relate to the Financing Plan.
5 All such opinions shall be addressed in a letter to COUNTY's Board of
6 Supervisors or JPA's governing board (which letter shall expressly state that ATTORNEY is
7 acting as Disclosure Counsel for COUNTY or JPA), and be provided at the time of the
8 delivery of and receipt for payment of the Refunding Bonds. Any and all such opinions shall
9 also be addressed to the underwriter (if requested by the underwriter), as a reliance opinion, as
10 hereinafter provided, and be provided at the time of the delivery of and receipt for payment of
11 the Refunding Bonds.
12 If ATTORNEY provides a reliance opinion to any third party (e.g., an
13 underwriter) whereby the third party is allowed to rely upon any opinion given by
14 ATTORNEY to COUNTY herein, such reliance opinion shall (i) be provided in a letter,
15 separate from the opinions given by ATTORNEY to COUNTY herein, and (ii) expressly state
16 in the text of such reliance opinion substantially to the effect that no attorney-client
17 relationship exists or is created by reason of giving such opinion.
18 (10) Assist COUNTY, and its municipal financial advisor, in corresponding
19 with the printer of the Preliminary Official Statement and Official Statement in order to
20 facilitate a prompt and efficient printing of same.
21 (11) Render legal advice, as requested by County Counsel, relating to the sale
22 of the Refunding Bonds.
23 (12) Comment and advise COUNTY on issues that arise in the course of the
24 implementation of the Financing Plan.
25 (13) Attend meetings with COUNTY staff, COUNTY's Debt Advisory
26 Committee, or COUNTY's Board of Supervisors, or all of them, upon request by the County
27 Counsel, or his or her designee.
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1 (14) Handle closing and post-closing issues in connection with the Financing
2 Plan, and distribute any and all documents, agreements, resolutions, instruments and
3 certificates to appropriate persons or organizations.
4 (15) Perform such other similar services as County Counsel, or his or her
5 designee, may request.
6 C. Additional Services: Subject to the terms and conditions of this Agreement,
7 ATTORNEY shall also provide arbitrage rebate and yield restriction compliance services
8 related to the Prior Bonds ("Arbitrage Compliance") pursuant to a separate engagement letter
9 from County Counsel or his or her designee to ATTORNEY.
10 D. Authorization to Proceed With Work: ATTORNEY shall commence
11 performance of services upon receiving authorization to proceed with work from County
12 Counsel, or his or her designee.
13 2. Performance by Attorney: ATTORNEY agrees to timely perform all services
14 provided under this Agreement. ATTORNEY agrees to avoid unnecessary duplicative efforts
15 on the part of ATTORNEY and ATTORNEY's partners, associate lawyers, and staff members
16 in ATTORNEY's performance of services for COUNTY hereunder.
17 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
18 conferences between or among ATTORNEY's partners, associate lawyers, and staff members,
19 unless such intra-office conferences promote efficiency in the performance of ATTORNEY's
20 work on a matter, or a reduction in the cost of compensation paid or reimbursement made for
21 related, reasonable and necessary, out-of-pocket expenses to ATTORNEY, or both.
22 In the performance of the tasks identified in paragraph 1 under this Agreement,
23 ATTORNEY shall provide only those services which are necessary to carry out such tasks in
24 an efficient and effective manner.
25 ATTORNEY shall provide lawyers who possess the following qualities and skills:
26 A. the lawyer possesses a high level of professional ethics and personal integrity,
27 and exercises good judgment;
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I B. the lawyer has experience and expertise in the particular municipal finance
2 matter for which he or she is providing services;
3 C. the lawyer has exceptional technical legal skills;
4 D. the lawyer vigorously represents COUNTY so that COUNTY's best interests
5 are served;
6 E. the lawyer efficiently and timely completes assigned tasks;
7 F, the lawyer is reasonably available when County Counsel, or his or her designee,
8 needs to consult with the lawyer on short notice;
9 G. the lawyer anticipates potential problems and advises County Counsel regarding
10 same;
11 H. the lawyer explains complex municipal finance concepts to County Counsel, or
12 his or her designee, so that County Counsel, or his or her designee, has a clear and complete
13 understanding of the relevant issues and facts of a matter; and
14 I. the lawyer cooperates with County Counsel, or his or her designee, and other
15 members of the financing team, including amicably resolving disputes, if any, among financing
16 team members to the satisfaction of County Counsel, or his or her designee.
17 3. Compensation of ATTORNEY: COUNTY shall be obligated to compensate
18 ATTORNEY pursuant to the terms and conditions of this Agreement only for the performance
19 of those tasks, to the reasonable satisfaction of COUNTY, which are related to the subject
20 matter of this Agreement. It is understood that COUNTY shall not be obligated to compensate
21 ATTORNEY for any work, services, or functions performed by ATTORNEY: (i) in seeking to
22 obtain COUNTY's business or negotiating with COUNTY to enter into this Agreement or (ii)
23 in providing COUNTY with documentation, explanations, or justifications concerning the
24 adequacy or accuracy of its invoices for the performance of services under this Agreement and
25 resolving same to the reasonable satisfaction of COUNTY.
26 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation for
27 performance of tasks under this Agreement (except for ATTORNEY's performance of services
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1 related to Arbitrage Compliance pursuant to Section I.C. of this Agreement) the following sum
2 per hour per person:
3 Partners:
4 Arto C. Becker S550
5 Russell A. Mliler $550
6 Diane K. Quan $518
7 Brian Organ $362
8 The foregoing lawyers may, from time to time, consult with such of ATTORNEY's
9 other lawyers on a "limited basis" as ATTORNEY reasonably deems prudent and necessary
10 under the circumstances, and ATTORNEY may also, upon the written approval of County
11 Counsel, or his or her designee, provide additional partners of, or associate lawyers employed
12 by its firm to perform significant services under this Agreement, provided that such additional
13 persons who are consulted or who provide significant services are compensated by COUNTY
14 for performance of tasks under this Agreement at a rate not to exceed each such person's
15 customary billing rate per hour for local governmental entities. Notwithstanding anything
16 stated to the contrary in this paragraph, the term "limited basis," as provided herein shall mean
17 fifteen (15) hours or less worked by ATTORNEY's lawyers, collectively, other than the
18 lawyers identified above, per month or fraction thereof.
19 COUNTY agrees to pay ATTORNEY, and ATTORNEY agrees to accept, a fixed rate
20 of compensation, and related, reasonable and necessary out-of-pocket expenses, for
21 ATTORNEY's performance of services related to Arbitrage Compliance pursuant to Section
22 I.C. of this Agreement.
23 In addition, ATTORNEY shall be reimbursed for reasonable, and necessary out-of-
24 pocket expenses, as follows: telephone charges, telephonic facsimile transmission charges,
25 computer research charges, filing fees, courier charges, postage charges, printing and
26 photographic reproduction expenses, in-State travel, and all such directly-related expenses.
27 It is understood that ATTORNEY shall not be reimbursed for its secretarial or clerical
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1 services (including overtime hours worked), or normal office operating expenses, with the
2 exception of those charges and expenses stated in the immediately preceding paragraph of this
3 Agreement. In addition, ATTORNEY shall not be reimbursed for such services performed or
4 expenses incurred, regardless of whether such tasks are performed or expenses are incurred by
5 ATTORNEY's partners, associate lawyers, or anyone else. Under no circumstances shall
6 COUNTY compensate ATTORNEY for secretarial or clerical work performed by paralegals.
7 Furthermore, COUNTY shall not compensate ATTORNEY for work performed by paralegals
8 where such work ordinarily is performed by licensed attorneys, including legal research and
9 legal document drafting.
10 It is understood that COUNTY may abandon the Financing Plan, at any time, without
1 1 any reason.
12 Notwithstanding anything else stated to the contrary in this Agreement, the closing of
13 the Financing Plan and COUNTY's receipt of the funds from the issuance and sale of the
14 Refunding Bonds in an amount necessary to pay for the full redemption of the Prior Bonds and
15 related COUNTY staff costs shall be a condition precedent to COUNTY's obligation to
16 compensate ATTORNEY for such services performed under financing plan, and to
17 COUNTY's obligation to reimburse ATTORNEY for related reasonable and necessary out-of-
18 pocket expenses incurred in connection with such financing plan.
19 If the condition precedent stated immediately above has been satisfied, then
20 ATTORNEY's compensation shall be as follows:
21 A. If COUNTY does not use bond insurance for the Financing Plan, then for all of
22 ATTORNEY's services related to the Financing Plan (which does not include
23 services related to Arbitrage Compliance) the amount paid to ATTORNEY
24 shall not exceed One Hundred Ten Thousand Dollars ($I10,000).
25 B. If COUNTY uses bond insurance for the Financing Plan, then the maximum
26 amount provided in Section 3.A. immediately above shall be increased by the
27 amount of Ten Thousand Dollars (S10,000).
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1 C. For ATTORNEY's reasonable and necessary out-of-pocket expenses related to
2 the Financing Plan (which does not include services related to Arbitrage
3 Compliance), the amount paid to ATTORNEY shall not exceed Five Thousand
4 Dollars (S5,000).
5 D. For ATTORNEY's services and related, reasonable and necessary out-of-
6 pocket expenses related to Arbitrage Compliance (which does not include
7 services related to the Financing Plan), the amount paid to ATTORNEY is
8 fixed at Four Thousand Dollars (S4,000).
9 E. In any event, and subject to all other terms and conditions of this Section 3, for
10 all of ATTORNEY's services related to the Financing Plan and Arbitrage
11 Compliance, and all of ATTORNEY's related, reasonable and necessary out-
12 of-pocket expenses, the amount paid to ATTORNEY shall not exceed One
13 Hundred Twenty Nine Thousand Dollars (S129,000).
14 4. Payment and Record-keeping: Subject to paragraph 3 of this Agreement,
15 payment of compensation for the services provided in connection with the Financing Plan and
16 reimbursement for related, reasonable and necessary out-of-pocket expenses incurred shall be
17 made by COUNTY after submission of an itemized invoice by ATTORNEY to County
18 Counsel no later than the fifteenth (15th) day following the closing of such financing plan.
19 Payment of compensation for arbitrage rebate and yield restriction compliance services and
20 reimbursement for related, reasonable and necessary out-of-pocket expenses incurred under
21 section I.C. of this Agreement shall be made by COUNTY after submission of an itemized
22 invoice by ATTORNEY to County Counsel no later than the 15th day following
23 ATTORNEY's delivery to COUNTY of the work product for such services. All payments of
24 compensation and reimbursement for expenses incurred in connection therewith shall be made
25 by COUNTY no later than forty-five (45) days following the date that COUNTY receives a
26 properly completed invoice requesting the payment for such services rendered and expenses
27 incurred.
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1 All such invoices shall reflect accurately the tasks performed by ATTORNEY under
2 this Agreement. In addition, all such invoices shall have sufficient detail as may be required by
3 COUNTY's Auditor-Controller/Treasurer-Tax Collector, including, but not limited to:
4 A. The specific nature of each task performed as services under this Agreement;
5 B. The name of the person performing each such task;
6 C. The number of hours worked by each such person for each such task;
7 D. The hourly rate per each such person performing each such task; and
8 E. The related, reasonable and necessary, out-of-pocket expenses incurred, as
9 provided for in paragraph 3 of this Agreement.
10 In addition to the requirements of this paragraph 4 of this Agreement, each invoice
1 1 shall set forth a summary of hours worked by each partner and associate lawyer, and paralegal,
12 for the applicable billing period. Furthermore, each such invoice shall set forth the product of
13 such summary of hours worked by each person multiplied by such person's billing rate, as set
14 forth herein (e.g., Mr. Becker's total hours worked = 10 hours; Mr. Becker's hourly billing rate
15 is $550; 10 hours x Mr. Becker's billing rate of$550 per hour= $5,500).
16 In preparing invoices, ATTORNEY shall segregate each task performed on a daily
17 basis. If requested by County Counsel, or his or her designee, ATTORNEY shall not combine
18 unrelated tasks as a single entry in lieu of setting forth the hours of work performed by a
19 partner, associate lawyer, or paralegal on each specific task.
20 ATTORNEY shall prepare its invoices in an organized manner that facilitates an
21 efficient review of the services performed and the expenses incurred in order to provide
22 COUNTY with a clear and complete understanding of how much time was devoted to specific
23 tasks and projects, and the cost associated therewith.
24 ATTORNEY shall keep complete records of the services provided, as described in this
25 paragraph 4 of this Agreement, together with all related reasonable and necessary, out-of-
26 pocket expenses applicable to the work provided under this Agreement. COUNTY's Auditor-
27 Controller/ Treasurer-Tax Collector, or his or her duly authorized representatives, shall be
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1 given reasonable access to all of these records for the purposes of audit of this Agreement.
2 In addition, ATTORNEY shall be subject to the examination and audit of such records
3 by the Auditor General for a period of three (3) years after final payment under this Agreement
4 (Gov. Code, § 8546.7).
5 5. Term of Agreement: This Agreement shall be effective as of the date that it is
6 executed by both parties. This Agreement shall continue in full force and effect unless and
7 until it is terminated by either or both parties. Either party may terminate this Agreement at any
8 time, either in whole or in part. However, if ATTORNEY elects to terminate this Agreement,
9 COUNTY's rights under any pending matter which may arise from ATTORNEY's services
10 hereunder shall not be prejudiced due to such termination as required by the Rules of
11 Professional Conduct of the State Bar of California. Subject to paragraph 3 of this Agreement,
12 ATTORNEY shall be paid for all services performed to the date of termination of this
13 Agreement, which are done to the reasonable satisfaction of COUNTY.
14 6. Independent Contractor: In performance of the work, duties and obligations
15 assumed by ATTORNEY under this Agreement, it is mutually understood and agreed that
16 ATTORNEY, including any and all of ATTORNEY's officers, agents, and employees will at
17 all times be acting and performing as an independent contractor, and shall act in an
18 independent capacity and not as an officer, agent, servant, employee,joint venturer, partner, or
19 associate of COUNTY. Furthermore, COUNTY shall have no right to control or supervise or
20 direct the manner or method by which ATTORNEY shall perform its obligations under this
21 Agreement. However, COUNTY shall retain the right to administer this Agreement so as to
22 verify that ATTORNEY is performing its obligations in accordance with the terms and
23 conditions hereof. ATTORNEY and COUNTY shall comply with all applicable provisions of
24 law and the rules and regulations, if any, of governmental authorities having jurisdiction over
25 matters of the subject hereof.
26 Because of its status as an independent contractor, ATTORNEY shall have absolutely
27 no right to employment rights and benefits available to COUNTY employees. ATTORNEY
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1 shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-
2 required employee benefits. In addition, ATTORNEY shall be solely responsible and save
3 COUNTY harmless from all matters related to payment of ATTORNEY's employees,
4 including compliance with social security, withholding, and all other regulations governing
5 such matters. It is acknowledged that during the term of this Agreement, ATTORNEY may be
6 providing services to others unrelated to COUNTY or to this Agreement.
7 7. Hold Harmless: ATTORNEY shall hold COUNTY, its officers, agents, and
8 employees harmless and indemnify and defend COUNTY, its officers, agents, and employees
9 against payment of any and all costs and expenses (including attorney's fees and court cost),
10 claims, suits, losses, damages, and liability arising from or arising out of any actual or alleged
I 1 negligent or wrongful acts or omissions of ATTORNEY, including its partners, officers,
12 agents, and employees, in performing or failing to perform the services provided herein.
13 COUNTY's receipt of any insurance certificates required herein does not in any way relieve
14 the ATTORNEY from its obligations under this paragraph 7 of this Agreement.
15 The provisions of this paragraph 7 shall survive the termination of this Agreement.
16 8. Insurance: Without limiting COUNTY's rights under paragraph 7 of this
17 Agreement, or against any third parties, ATTORNEY, at its sole expense, shall maintain in full
18 force and effect the following insurance policies throughout the entire term of this Agreement:
19 A. A policy of professional liability insurance with limits of coverage of not less
20 than Ten Million and No/100 Dollars ($10,000,000.00)per covered event;
21 B. A policy of comprehensive general liability insurance with limits of coverage of
22 not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence. The policy of
23 comprehensive general liability shall be written on a per occurrence basis. (Such insurance
24 shall include automobile insurance coverage, provided however, if ATTORNEY maintains
25 comprehensive general liability insurance that does not cover a loss in connection with an
26 automobile, ATTORNEY shall also obtain and maintain automobile liability insurance
27 coverage with limits of coverage of not less than One Hundred Thousand and No/100 Dollars
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1 ($100,000.00) per person and Three Hundred Thousand and No/100 Dollars ($300,000.00) per
2 occurrence and shall be written to cover all vehicles or owned and non-owned vehicles): and
3 C. A policy of workers compensation insurance as is required by the California
4 Labor Code, providing full statutory coverage.
5 All such insurance policies shall be issued by insurers who have at least an A.M. Best
6 rating of A, FSC VII (except for the Professional Liability Insurance policy, which shall be
7 issued by an insurer who has at least a Standard & Poor's and Fitch's rating of AA- because
8 the specialized carrier is fulfilling a need in a specialty market) and shall be acceptable to
9 COUNTY's Personnel Services Manager, Risk Management Division. In addition, the
10 comprehensive general liability insurance policy (and the automobile liability insurance policy,
11 if such policy is at any time maintained separately from the comprehensive general liability
12 insurance policy) shall name COUNTY, its officers, agents, and employees, individually and
13 collectively, as additional insureds, but only insofar as the operations under this Agreement are
14 concerned. Such coverage for additional insureds shall apply as primary insurance and any
15 other insurance, or self-insurance, maintained by COUNTY, its officers, agents, and
16 employees, shall be excess only and not contributing with such insurance provided under
17 ATTORNEY's policies herein. This insurance shall not be canceled, reduced, or changed
18 without a minimum of thirty (30) calendar days advance, written notice given to County
19 Counsel (at the address for notices to County Counsel provided herein) and to COUNTY's
20 Personnel Services Manager, Risk Management Division at the following address:
21 Personnel Services Manager, Risk Management Division
COUNTY OF FRESNO
22 2220 Tulare Street, 16th Floor
23 Fresno, CA 93721
24 ATTORNEY shall provide to County Counsel a certificate of insurance for all the
25 foregoing policies and an endorsement to ATTORNEY's comprehensive general liability
26 insurance policy (and, to ATTORNEY's automobile liability insurance policy, if such policy is
27 at any time maintained separately from the comprehensive general liability insurance policy)
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1 naming COUNTY as an additional insured, as stated above, which are acceptable to
2 COUNTY's Personnel Services Manager, Risk Management Division, evidencing proof of
3 such insurance coverages required herein prior to performing any services under this
4 Agreement. Any insurance proceeds available to ATTORNEY under its comprehensive
5 general liability insurance in excess of the minimum coverage and limits specified for that
6 policy in this Agreement shall be available to the additional insured under the endorsement
7 required by this agreement. If COUNTY permits ATTORNEY to sub-contract any of its duties
8 under this Agreement, ATTORNEY shall require all sub-contractors to obtain endorsements to
9 their comprehensive insurance naming COUNTY as additional insured with coverage at least
10 as broad as that provided by Insurance Services Office (ISO) form number CG 20 38 04 13.
11 In addition to its obligations set forth hereinabove, ATTORNEY agrees that it shall
12 maintain, at its sole expense, in full force and effect for a period of three (3) years following
13 the termination of this Agreement a policy of professional liability insurance with limits of
14 coverage of not less than Ten Million and No/100 Dollars ($10,000,000.00) per claim;
15 provided, however, in the event that ATTORNEY does not maintain such policy of insurance
16 for such entire three (3) year period, ATTORNEY shall maintain, at its sole expense, in full
17 force and effect extended claims reporting coverage insurance in lieu thereof in the amount of
18 not less than Ten Million and No/100 Dollars ($10,000,000.00).
19 If either the professional liability or comprehensive general liability insurance policies
20 (or, the automobile liability insurance policy, if such policy is at any time maintained
21 separately from the comprehensive general liability insurance policy) required to be
22 maintained pursuant to this paragraph 8 of this Agreement, or both (or all of them, as the case
23 may be), have a self-insured retention, such self-insured retentions shall be funded by
24 ATTORNEY and approved by COUNTY's Personnel Services Manager, Risk Management
25 Division.
26 The provisions of this paragraph 8 shall survive the termination of this Agreement.
27 9. Agreement is Binding Upon Successors: This Agreement shall be binding upon
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1 COUNTY and ATTORNEY and their successors, executors, administrators, legal
2 representatives, and assigns with respect to all the covenants and conditions set forth herein.
3 10. Assignment and Subcontracting: Notwithstanding anything stated to the
4 contrary in paragraph 9 of this Agreement, neither party hereto shall assign, transfer, or sub-
5 contract this Agreement nor its rights or duties hereunder without the written consent of the
6 other.
7 11. Amendments: This Agreement may only be amended in writing signed by the
8 parties hereto.
9 12. Conflict of Interest: ATTORNEY promises, covenants, and warrants that, after
10 having performed a reasonable investigation, the performance of its services and representation
11 to COUNTY under this Agreement do not result in a ``conflict of interest" as that term is used
12 in the Rules of Professional Conduct of the State Bar of California. In the event a "conflict of
13 interest" occurs, ATTORNEY will request COUNTY's Board of Supervisors to waive such
14 "conflict of interest' on a case-by-case basis.
15 13. Further Assurances by ATTORNEY: ATTORNEY represents that it has read
16 and is familiar with Government Code §§ 1090 et seq. and §§ 87100 et seq.. ATTORNEY
17 promises, covenants, and warrants that, after having performed a reasonable investigation, the
18 performance of its services under this Agreement shall not result in or cause a violation by it of
19 Government Code §§ 1090 et seq. and §§ 87100 et seq.
20 14. Compliance With Laws: ATTORNEY shall comply with all federal, state, and
21 local laws and regulations applicable to the performance of its obligations under this
22 Agreement.
23 15. Notices: The persons and their addresses having authority to give and receive
24 notices under this Agreement include the following:
25 COUNTY ATTORNEY
26 County Counsel Arto C. Becker, Esq.
COUNTY OF FRESNO Hawkins Delafield & Wood, LLP
27 2220 Tulare Street, Wells Fargo Center
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5th Floor 333 South Grand Avenue, Suite 3650
1 Fresno, CA 93721 Los Angeles, CA 90071
2 Any and all notices between COUNTY and ATTORNEY provided for or permitted
3 under this Agreement must be in writing and delivered either by personal service, by first-class
4 United States mail, by an overnight commercial courier service, or by telephonic facsimile
5 transmission. A notice delivered by personal service is effective upon service to the recipient.
6 A notice delivered by first-class United States mail is effective three COUNTY business days
7 after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice
8 delivered by an overnight commercial courier service is effective one COUNTY business day
9 after deposit with the overnight commercial courier service, delivery fees prepaid, with
10 delivery instructions given for next day delivery, addressed to the recipient. A notice delivered
1 1 by telephonic facsimile is effective when transmission to the recipient is completed (but, if
12 such transmission is completed outside of COUNTY business hours, then such delivery shall
13 be deemed to be effective at the next beginning of a COUNTY business day), provided that the
14 sender maintains a machine record of the completed transmission. For all claims arising out of
15 or related to this Agreement, nothing in this section establishes, waives, or modifies any claims
16 presentation requirements or procedures provided by law, including but not limited to the
17 Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with
18 section 810).
19 16. Venue and Governing Law: The parties agree that for purposes of venue,
20 performance under this Agreement is to be in Fresno County, California. The rights and
21 obligations of the parties and all interpretations and performance of this Agreement shall be
22 governed in all respects by the laws of the State of California.
23 17. Disclosure of Self-Dealing Transactions: This provision is only applicable if
24 ATTORNEY is operating as a corporation (a for-profit or non-profit corporation) or if during
25 the term of this Agreement, ATTORNEY changes its status to operate as a corporation.
26 Members of ATTORNEY's Board of Directors shall disclose any self-dealing
27 transactions that they are a party to while ATTORNEY is providing goods or performing
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1 services under this Agreement. A self-dealing transaction shall mean a transaction to which the
2 ATTORNEY is a party and in which one or more of its directors has a material financial
3 interest. Members of the Board of Directors shall disclose any self-dealing transactions that
4 they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form
5 (Exhibit A) and submitting it to COUNTY prior to commencing with the self-dealing
6 transaction or immediately thereafter.
7 18. Entire Agreement: This Agreement constitutes the entire agreement between
8 COUNTY and ATTORNEY with respect to the specialized legal services to be provided
9 herein and supersedes any previous agreement concerning the subject matter hereof,
10 negotiations, proposals, commitments, writings, or understandings of any nature whatsoever
1 1 unless expressly included in this Agreement.
12 If any part of this Agreement is found violative of any law or is found to be otherwise
13 legally defective, ATTORNEY and COUNTY shall use their best efforts to replace that part of
14 this Agreement with legal terms and conditions most readily approximating the original intent
15 of the parties.
16 19. Counterparts: This Agreement may be executed in counterparts, each of which
17 is deemed an original, but all of which together constitute the same Agreement.
18 [Signature pages follow.]
19
20
21
22
23
24
25
26
27
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1 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
2 executed as of the day and year first above written.
3
ATTORNEY:
4
HAWKINS DELAFIELD & WOOD, LLP
5
By C'
6 Arto C. Becker, Esq.
Partner
7
8 COUNTY:
9 COUNTY OF FRESNO,
10 a political subdivision of the State of California
Ernest Buddy Mendes, Chairman
42 Board of Supervisors
13
ATTEST:
14
BERNICE E. SEIDEL, Clerk
15 Board of Supervisors
16
17 By �sa��
Deputy
18 '
19
20
21
22
23
21
25 = ..
26
27
26
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REVIEWED AND RECOMMENDED
1 FOR APPROVAL:
2
By
3 Daniel C. Cederborg
4 County Counsel
5 APPROVED AS TO ACCOUNTING FORM:
VICKI CROW, C.P.A.,
6 AUDITOR-CONTROLLER/TREASURER-
TAX COLLECTOR
7 //``
8 By ( e,!2,
pep
9
Uty
10 APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG, COUNTY COUNSEL
11
12
By
13 Deputy
14 ORG: 0710
FUND: 0001
15 ACCOUNT: 7295
SUBCLASS: 10000
16
17
18
19
20
21
22
23
24
25
26
27
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EXHIBIT A
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno ("County"), members of a contractor's board
of directors ("County Contractor"), must disclose any self-dealing transactions that they are a party
to while providing goods, performing services, or both for the County. A self-dealing transaction is
defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest"
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member's name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
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(1)Company Board Member Information:
Name: Date:
Job Title:
(2)Company/Agency Name and Address:
(3) Disclosure(Please describe the nature of the self-dealing transaction you are a party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233(a)
(5)Authorized Signature
Signature: Date:
A-2