AGR-7011 - STRADLING YOCCA CARLSON & RAUTH - BOND COUNSEL AGREEMENT FOR TAXABLE PENSION OBLIGATION BONDSZ`701
BOND COUNSEL AGREEMENT
CITY OF ORANGE
TAXABLE PENSION OBLIGATION BONDS.
THIS AGREEMENT, made as of this 30th day of June, 2020, by and between the CITY OF
ORANGE, a municipal corporation and general law city organized and existing under the laws of the
State of California (herein "City") and STRADLING YOCCA CARLSON & RAUTH, a
Professional Corporation(herein"Bond Counsel"):
RECITALS:
A. The City is a member of the California Public Employees' Retirement System
PERS") and; as such, is obligated by the Public Employees' Retirement Law, constituting Part 3 of
Division 5 of Title 2 of the California Government Code (the "Retirement Law"), and the contract
between the Board of Administration of PERS and the City Council of the City, (as amended, the
PERS Contract"),to make contributions to PERS to (a) fund pension benefits for its employees who
are members of PERS, (b) amortize the unfunded actuarial liability with respect to such pension
benefits, and(c)appropriate funds for the purposes described in (a)and(b); and
B. The City desires to issue its City of Orange Taxable Pension Obligation Refunding
Bonds (the "Bonds") to refund the City's obligations to PERS evidenced by the PERS Contract, to
pay unamortized, unfunded accrued actuarial liability with respect to pension benefits and possibly a
portion of the City's current normal contribution under the Retirement Law (the "Unfunded
Liability"); and
C. The City desires to retain Bond Counsel to do the necessary legal work hereinafter
outlined,upon the terms and conditions hereinafter set forth, for accomplishing the judicial validation
of the proposed Bonds; and
D. Bond Counsel represents that it is ready,willing and able to perform said legal work;
NOW, THEREFORE, in consideration of the premises, and the mutual covenants, terms and
conditions herein contained,the parties agree as follows:
l.SCOPE OF SERVICES
A. BOND COUNSEL SERVICES
The City retains Bond Counsel to provide, and Bond Counsel agrees to provide, legal
services in connection with the judicial validation for the Bonds. Bond Counsel's services will also
include:
i.Researching applicable laws and ordinances relating to the proposed
Bonds;
ii. Attending conferences and consulting with City staff and counsel
regarding such laws, and the need for amendments thereto, or
additional legislation;
iii. Participating in meetings, conferences or discussions with any
financial advisors, underwriters or other experts retained by the City
and with representatives of PERS with respect to the issuance of the
Bonds;
iv. Prosecuting a validation action in Orange County Superior Court (the
Validation");
v.Supervising and preparing documentation of the steps to be taken
through the issuance of the Bonds, including:
a.Drafting all resolutions, notices, rules and regulations and
other legal documents required for the validation of the
Bonds, in consultation with the City, the .City Attorney, the
City's financial advisor,underwriter and other experts;
b. Drafting and filing the Validation;
B. SPECIAL SERVICES
Special Services" are defined for purposes of this Agreement as services in addition
to the services outlined in Section A above. Special Services must be authorized in writing by the
City Manager, or his designee.
2.COMPENSATION
The CiTy agrees to pay Bond Counsel the following amounts as compensation for services
rendered by Bond Counsel under this Agreement:
A. For the services to be rendered under Section 1.A, Bond Counsel will be paid
a fee of$25,000; provided, however, if the Validation complaint is answered or the relief requested
by the City is otherwise contested, any fees incurred with respect to the challenged Validation will be
billed as Special Services and be paid in accordance with 2.B below.
The fees referenced in this Section 2.A shall be paid to Bond Counsel on the closing
date of the Bonds and shall be payable solely from Bond proceeds;provided that, if the City does not
elect to pursue the issuance of the Bonds following the filing of the Validation or if the City elects
not to hire Bond Counsel to serve as bond counsel in connection with the issuance of the Bonds, the
City shall pay Bond Counsel the $25,000 referenced above plus the expenses incurred pursuant to
Section 2.0 below within 30 days of such decision.
B. In the event Bond Counsel is requested to perform Special Services as set
forth in Section 1.B above and should the Validation be contested as described in 2.A above, Bond
Counsel will be paid fees at the hourly rates set forth in Exhibit A, or in such other manner as is
mutually acceptable to the City and Bond Counsel. Such fees will be billed monthly and shall be
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payable within thirty(30) days following the receipt of each invoice. Bond Counsel shall not be paid
fees for traveling time.
C. In addition to the fees set forth in Sections 2.A and 2.B above, Bond Counsel
shall be reimbursed for the actual cost of any out-of-pocket expenses reasonably incurred by Bond
Counsel in the course of its employment, such as document reproduction, telecommunications
charges, printing costs, filing fees, publications of notices, long-distance telephone calls, messenger
services, overnight delivery services, travel and similar items of expense. All expenses incurred in
connection with services rendered will be billed upon the issuance of the Bonds, and may include an
estimate of costs to be incurred subsequent to the issuance date; provided, however, that any
expenses related to a contested Validation shall be billed and paid monthly pursuant to Section 2.B
above.
3.PERSONNEL AND CONTRACT ADMINISTRATION
City agrees to accept and Bond Counsel agrees to provide the aforementioned services
primarily through Brian Forbath, Jonathan Guz, Allison Burns and David Palmer. If any one of the
above attorneys is unable to provide such services due to death, disability or similar event, Bond
Counsel reserves the right to substitute another of its attorneys, upon approval by the City Attorney,
or their designee, to provide such services; and such substitution shall not alter or affect in any way
Bond Counsel's or the City's other obligations under this Agreement.
This Agreement will be administered by the City Attorney, or their designee.
4.CONFLICTS OF INTEREST
Bond Counsel represents many of the underwriting firms active in the issuance of Bonds of
participation and other municipal financings. The City hereby provides its informed written consent
to Bond Counsel's representation of such underwriting firms on matters unrelated to the Bonds.
5.TERMINATION
A. This Agreement may be terminated without cause by the City or Bond
Counsel upon thirty(30) days' advance written notice to the other party. Such notification shall state
the effective date of the termination of this Agreement.
B. Bond Counsel reserves the absolute right to withdraw from representing the
CiTy if, among other things, the City fails to honor the terms of this Agreement, the City fails to
cooperate fully or follow Bond Counsel's advice on a material matter, or any fact or circumstance
occurs that would, in Bond Counsel's view, render its continuing representa.tion unlawful or
unethical. If Bond Counsel elects to withdraw, the City will take all steps necessary to free Bond
Counsel of any obligation to perform further services, including the execution of any documents
necessary to complete such withdrawal, and Bond Counsel will be entitled to be paid at the time of
withdrawal for all services rendered and costs and expenses paid or incurred on the City's behalf in
accordance with the payment terms set forth in Section 2 above. If necessary in connection with
litigation,Bond Counsel would request leave of court to withdraw.
C. Bond Counsel's representation of the City will be considered terminated at
the earlier of(i)the City's termination of its representation, (ii)Bond Counsel's withdrawal from its
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representation of the City, or(iii)the substantial completion by Bond Counsel of its substantive work
for the City. Unless Bond Counsel has been specifically engaged to perform Special Services related
to the Bonds after their issuance,Bond Counsel's representation of City shall terminate on the date of
issuance of the Bonds.
6. ARBITRATION
IN THE EVENT OF A DISPUTE REGARDING FEES, COSTS, OR ANY OTHER
MATTER ARISING OUT OF OR RELATED 1N ANY WAY WHATSOEVER TO BOND
COUNSEL'S RELATIONSHIP WITH THE CITY, OR BOND COUNSEL'S OR THE CITY'S
PERFORMANCE OF THIS AGREEMENT, INCLUDING THE QUALITY OF THE SERVICES
WHICH BOND COUNSEL RENDERS, THE DISPUTE SHALL BE DETERMINED, SETTLED
AND RESOLVED BY CONFIDENTIAL ARBITRATION IN THE COUNTY OF ORANGE,
CALIFORNIA. ANY AWARD SHALL BE FINAL, BINDING AND CONCLUSIVE UPON THE
PARTIES, AND A JUDGMENT RENDERED THEREON MAY BE ENTERED IN ANY COURT
HAVING JURISDICTION THEREOF. SHOULD YOU ELECT TO HAVE ANY FEE DISPUTE
ARBITRATED PURSUANT TO NONBINDING ARBITRATION UNDER STATUTORY OR
CASE LAW, THEN SUCH NONBINDING ARBITRATION SHALL DETERMINE ONLY THE
ISSUE OF THE AMOUNT OF FEES PROPERLY CHARGEABLE TO YOU. ANY OTHER
CLAIMS OR DISPUTES BETWEEN US, INCLUDING CLAIMS FOR PROFESSIONAL
NEGLIGENCE, SHALL REMAIN SUBJECT TO BINDING ARBITRATION PURSUANT TO
THIS AGREEMENT.
Arbitration may be demanded by the sending of written notice to the other party. If
arbitration is demanded, within 20 days of the demand the City shall present a list of five qualified
individuals who would be willing to serve that the City would find acceptable to act as arbitrator. To
serve as arbitrator, the individual must be a retired judge having served on any federal court or the
California Superior Court or higher court in the State of California. Within 20 days of receiving the
City's list, Bond Counsel may at its sole discretion (i) select any individual from that list and that
individual shall serve as the arbitrator, or (ii)propose its own list of five individuals for arbitrator. If
Bond Counsel chooses to present a separate list, the City may within 20 days select any individual
from that list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end
of this process, the City and Bond Counsel each shall select one individual from its own list and
those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to
the procedures set forth in the California Code of Civil Procedure §§ 1280 et seq., and in that
connection you and we agree that § 1283.05 thereof is applicable to any such arbitration. Nothing
herein shall limit the right of the parties to stipulate and agree to conduct the arbitration pursuant to
the then-current rules of the American Arbitration Association, the Judicial Arbitration & Mediation
Services, or any other agreed-upon arbitration services provider.
7.INDEMNIFICATION
Bond Counsel agrees to indemnify, defend and hold harmless the City, its officers, agents,
employees, representatives, and volunteers for damage to property and for injury to or death of any
person and from all claims, demands, actions, purported liability, or consequential damages of any
kind or nature arising out of or. in connection with Bond Counsel's negligent performances of
services under the terms of this Agreement or exercising any rights granted herein, except those
claims, demands, purported liability or consequential damages which arise out of the misconduct or
negligence of City.
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8.MISCELLANEOUS
A. Bond Counsel and the employees of Bond Counsel, in performance of the
Agreement, shall act in an independent capacity and not as officers or agents of the City.
B. Without the written consent of the City, this Agreement is not assignable by
Bond Counsel in whole or in part.
C. No alteration or variation of the terms of this Agreement shall be valid unless
in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated
herein shall be binding on any of the parties hereto.
D. In accordance with the requirements of California Business and Professions
Code § 6148, Bond Counsel advises you that the firm maintains professional errors and omissions
insurance coverage applicable to the services to be rendered to the City.
CITY OF ORANGE
By:
ick Ott , City Manager
APPROVED S TO FORM:
By:
ary A. Sl a , City e
STRADLING YOCCA CARLSON&RAUTH
a Professional Corporation
By:
Brian Forbath
Shareholder/President
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EXHIBIT A
Shareholders: Hourly Rate:
Brian Forbath 600
Allison Burns 550
All other Shareholders 500
Associates 375
Paralegals 140
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