1 AGREEMENT FOR BOND COUNSEL SERVICES
THIS AGREEMENT (the “Agreement”) is made and entered into this ____ day of _____, 202__, between the City of Gonzales, whose address is 147 Fourth Street, Gonzales, California 93926 (the “City”), and Kutak Rock LLP (“Kutak”) whose address is 5 Park Plaza, Ste. 1500, Irvine, California 92614.
W I T N E S S E T H:
WHEREAS, the City proposes to finance the construction and installation of certain improvements to its Community Center (the “Project”); and WHEREAS, Kutak is specifically trained and experienced in the conduct of proceedings for accomplishing the financing of the Project through the preparation, sale and delivery of tax-exempt lease revenue bonds or other obligations 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, sale, execution and delivery of the Obligations (the “Transaction”).
Such services shall include, but not be limited to, the following:
a. Conferring and consulting with the City, the officers, administrative staff, municipal advisor, underwriter, if any, placement agent, if any, and other representatives of the City in connection with the preparation and formulation of the Transaction. b. 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.
c. A review of all financial documents for legal sufficiency. d. Preparation of an incumbency certificate, a tax compliance certificate, and any and all other closing documents required of the City to accompany delivery of the financing documents.
e. 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 exempt from present federal and State income taxes, as the case may be, 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.
f. Preparation of a transcript of the closing of the Transaction. 2 g. Conferring and consulting with City officials and agents with regard to any problems which may arise prior to the maturity of the issuance. h. 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, the City shall pay Kutak a fee of $40,000 assuming the Obligations are issued on a private placement basis to the United States of America, acting through the Rural Utilities Service (or successor agency, bureau or division) of the United States Department of Agriculture. Such fee shall include any out-of-pocket expenses incurred by Kutak 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). Such 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, 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 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.
3 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. Kutak carries 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 or arbitrator.
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.
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.
4 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.
CITY OF GONZALES
By: ______________________________
Title: _____________________________
KUTAK ROCK LLP
By: ______________________________
Albert R. Reyes, a Partner