HomeMy WebLinkAbout2020 CON Kutak Rock LLP - Bond and Disclosure Counsel ServicesAGREEMENT FOR BOND AND DISCLOSURE COUNSEL SERVICES
THIS AGREEMENT (the "Agreement") is made and entered into this 11th day of
November, 2020, between the City of National City, whose address is 1243 National City
Blvd. National City, CA 91950 (the "City"), and Kutak Rock LLP ("Kutak") whose address
is 5 Park Plaza, Ste. 1500, Irvine, California 92614.
WITNESSETH:
WHEREAS, the City proposes to refinance the City's unamortized, unfunded accrued
actuarial liability with respect to pension benefits under Public Employees' Retirement Law,
constituting Part 3 of Division 5 of Title 2 of the California Government Code (the "Retirement
Law") and to fund the City's current liability with respect to pension benefits under its contract
with the Board of Administration of PERS and the Retirement Law for Fiscal Year 2020-21
(collectively, the "Project"); and
WHEREAS, Kutak is specifically trained and experienced in the conduct of proceedings
for accomplishing the refinancing of the Project through the preparation, sale and delivery of a
taxable pension obligation bonds for such purposes (the "Obligations"); and
NOW, THEREFORE, in consideration of the covenants and premises herein contained
and other good and valuable consideration, the parties hereto agree as follows:
1. Duties. Kutak shall provide legal services in connection with the
authorization, issuance and delivery of the Obligations (the "Transaction"). Such services shall
include, but not be limited to, the following:
a. Reviewing California State law regarding the authority for the City
to authorize and enter into the Obligations.
b. Conferring and consulting with the City, the officers, administrative
staff, financial advisor, underwriter and other representatives of the City in connection with the
preparation and formulation of the Transaction.
c. Preparation of the Resolution of Issuance, security documents and
all other resolutions, agreements, notices and other documents necessary for the proper conduct
and consummation of the Transaction.
d. A review of all financial documents for legal sufficiency.
e. Preparation of the official statement or disclosure document in
connection with the Transaction to assure the disclosure of all material facts within the
knowledge of the City.
f. Preparation of an incumbency certificate and any and all other
closing documents required of the City to accompany delivery of the financing documents.
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g. Preparation of documentation and assistance in obtaining credit
enhancement and/or a rating on the Obligations if such a rating is sought.
h. Attendance at and supervision of the closing, and issuing the legal
opinion of Kutak stating that the interest payments with respect to the Obligations is not exempt
from present federal incomes taxes and is exempt from State income taxes and approving in all
respects the legality of all proceedings for the authorization, issuance, sale and delivery of the
Obligations and other agreements relating to the Transaction.
i. Preparation of a transcript of the closing of the Transaction.
j. Conferring and consulting with City officials and agents with regard
to any problems which may arise prior to the maturity of the issuance.
k. Providing any other necessary services, including ongoing
monitoring of the Transaction after the sale of the Obligations and assistance to the City
regarding the Transaction, generally expected of Kutak not listed above.
2. Compensation. For provision of the services to be rendered pursuant to
this Agreement related to the execution and delivery or issuance of the Obligations, the City
shall pay Kutak a fee of $70,000, which fee shall include any out-of-pocket expenses incurred by
it in the course of this engagement, such as reproduction and printing costs, word processing
time, long distance telephone calls, travel at the request of the City and similar items (excluding
any publication costs). Said fee is payable only upon issuance of the Obligations and shall be
paid from proceeds thereof.
In the event Kutak is requested to perform additional work outside of its normal
and customary services as bond counsel or disclosure counsel, such as litigation, Kutak will be
paid additional compensation therefor following the submission of monthly, itemized bills at the
hourly rate of the attorney performing such services; provided, however, there shall be no
additional compensation due Kutak under the paragraph without the prior approval of the City.
3. Assignment. This Agreement may be assigned by the City to any other
issuer of the securities as may be necessary to consummate the Transaction, without the consent
of but with notice to Kutak.
4. No Guarantees; Entire Agreement. Nothing in this Agreement and
nothing in our statements to you should be construed as a guarantee or promise about the
outcome of the Transaction or any phase thereof. We make no such guarantees or promises.
Comments about the course or outcome of the Transaction or any phase thereof which we may
make from time to time are expressions of opinion only. The written Agreement constitutes the
entire Agreement between the parties hereto with respect to Kutak services and neither party has
been induced to make or enter into this Agreement by reason or promise, agreement,
representation, statement or warranty other than as herein contained.
5. Other Representation. Kutak may, from time to time, have clients
with interests which may be potentially adverse to the City. Kutak reserves the right to represent
said clients except on matters directly relating to the issuance and sale of the Obligations. We
will disclose any such potential conflict to you and will seek a waiver of that conflict. We will
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of course work with you and our other clients to construct an appropriate ethical wall to protect
the confidences of all of our clients and to clearly separate our work in any such case. Although
we are not asking for a waiver now since these conflicts may not emerge, we ask that you agree
to give good faith consideration to our requests for any such waivers in the future. This will
allow us to better serve all of our clients.
6. Work Product. Our files developed in the course of work undertaken
pursuant to this Agreement are your property. We will release those files to you or to anyone
else you designate upon your written request delivered to the attorney in charge of this matter.
However, such a request will signify the end of this engagement if it is then still ongoing. You
agree that we may, in our sole discretion, copy all or any portion of such files at your expense
and retain such copies, and that we may have a reasonable period of time before releasing the
documents to you or your designee in order to make the copies. We will from time to time send
portions of your files that are not currently needed to an off -site storage facility. The cost of
using this facility will be our sole expense. However, we are not the guarantor of the security of
any off -site storage facility. Accordingly, you agree that the firm will not be responsible for any
damages which may occur as a result of the loss of any of your files which we store at an off -site
storage facility. You also agree that we may, after the passage of two years without our having
performed any work for you pursuant to this engagement, destroy the files of this engagement
without further notice to you unless you have previously provided us with written instructions to
forward the files to you or to another person you designate.
7. Insurance. We carry professional liability insurance which would cover
the services we will be providing under the terms of this Agreement. That insurance is subject to
a self -insured retention.
8. Litigation. If an action or proceeding is commenced to enforce this
Agreement or any provision hereof, the prevailing party in such an action or proceeding shall be
entitled to recover the reasonable amount of his, her or its fees and costs thereof, in addition to
compensatory damages. For the purposes of enforcing this Agreement only, and as otherwise
required by law, you agree that this Agreement may be disclosed to a court.
9. Notices. All notices, demands, requests, consents and approvals given,
required or permitted to be given hereunder, shall be contained in writing and shall be deemed
sufficiently given if sent by express delivery service or by registered or certified mail, postage
prepaid and return receipt requested, addressed to the parties at the addresses set forth above or
on any addendum or counterpart to this Agreement, or to such other address as the recipient shall
have notified the sender of in writing. You agree to keep us currently informed of any change in
your address or telephone numbers so that we may effectively communicate with you. We will
also advise you promptly of any change in the firm's business address, electronic mail address,
telephone or facsimile numbers.
10. California Law. This Agreement is made under and shall be construed
in accordance with the substantive laws of the State of California.
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11. Counterparts. This Agreement may be executed in counterparts each
of which shall be deemed an original but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers and representatives thereto duly authorized, all as of the day and year
first above written.
APPROVED AS TO FORM
f
gil P. Morris - Jones
City Attorney
CITY OF NATIONAL CITY
By:
presentative
KUTAK ROCK LLP
By:
lbert R. Reyes, a er
4822-4028-3342.4
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11. Counterparts. This Agreement may be executed in counterparts each
of which shall be deemed an original but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers and representatives thereto duly authorized, all as of the day and year
first above written.
APPR
VED AS TO FO
gil P. Morris - ones
City Attorney
M
CITY OF NATIONAL CITY
AutRepresentative
KUTAK ROCK LLP
By:
Albert R. Reyes, a Pa
4822-4028-3342.4
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