4857-6624-2913 v1
AGREEMENT
BETWEEN THE CITY OF PACIFICA AND JONES HALL,
A PROFESSIONAL LAW CORPORATION, FOR BOND
COUNSEL SERVICES IN CONNECTION WITH
WASTEWATER PROJECT FINANCING THROUGH THE
INFRASTRUCTURE AND ECONOMIC DEVELOPMENT
BANK
This AGREEMENT (this “Agreement”) is entered into as of this 8th day of May, 2023, between the CITY OF PACIFICA, a municipal corporation organized and existing under the laws of the State of California (the “City”) and JONES HALL, A PROFESSIONAL LAW CORPORATION, San Francisco, California (“Attorneys”).
BACKGROUND:
1. The City owns and operates a system for the collection, treatment and disposal of wastewater within the service area of the City (the “Wastewater System”), and the City wishes to provide financing for the improvements to the Wastewater System. 2 In order to finance such improvements to the Wastewater System, the City has applied for financing from the Infrastructure And Economic Development Bank (the “Infrastructure Bank”) through its program under the Bergeson-Peace Infrastructure and Economic Development Bank Act.
3. In connection with the financing of such projects by the Infrastructure Bank, the City requires the advice and assistance of nationally-recognized bond counsel to provide necessary legal services, and Attorneys are competent to provide such legal services and have previously represented the City as its bond counsel on financings undertaken to provide financing for the Wastewater System.
AGREEMENT:
In consideration of the mutual covenants hereinafter contained, and for other good and valuable consideration, the City and Attorneys hereby agree as follows:
1. Attorney-Client Relationship. Upon execution of this Agreement, the City will be Attorney’s client and an attorney-client relationship will exist between the City and Attorneys. Attorneys assume that the Infrastructure Bank and other parties to the transaction will retain such counsel, as they deem necessary and appropriate to represent their interests. Attorneys further assume that all other parties understand that in the transaction Attorneys represent only the City, Attorneys are not counsel to any other party, and Attorneys are not acting as an intermediary among the parties. Attorneys’ services as Bond Counsel as described herein are limited to those contracted for in this Agreement. Attorneys’ representation of the City will not affect, however, its responsibility to render an objective opinion with respect to the financing. 4857-6624-2913 v1 -2-
2. Scope of Services. Attorneys shall perform all of the following services (“Services”) as Bond Counsel to the City in connection with the financing to be provided by the Infrastructure Bank for improvements to the Wastewater System:
Consultation and cooperation with the City attorneys, municipal advisor firms and other consultants, staff and employees of the City in connection with the review of documentation drafted by legal counsel to the Infrastructure Bank relating to the financing, including advising the City on matters relating to the Installment Sale Agreement between the Infrastructure Bank and the City (the “Installment Sale Agreement”). Reviewing the Installment Sale Agreement for the purpose of ensuring that the provisions thereof are consistent with the legal documentation previously delivered by the City in connection with bonds and other obligations issued by the City to provide financing and refinancing for the Wastewater System, the obligations of the City under which are on a parity with the Installment Sale Agreement.
Advising the City concerning any and all filings which are required to be made on the Electronic Municipal Market Access (EMMA) system in connection with the financing, including drafting such filings and making such filings on behalf of the City.
Preparation of a resolution of the City Council approving the Installment Sale Agreement and related transaction agreements, and attending the City Council meeting at which such resolution is considered, if requested to do so by City staff.
Preparation of legal documents required for the execution and delivery of the Installment Sale Agreement and the closing of the transaction, including but not limited to such documentation as may be required to evidence the Installment Sale Agreement on a parity with other outstanding obligations of the City with respect to the Wastewater System; preparation of all other proceedings incidental or in connection with the financing. Supervising the closing of the transaction and advising the City concerning the review, execution and delivery of all documentation relating to the closing.
Upon completion of proceedings to the satisfaction of Attorneys, providing a legal opinion to the City which addresses the legality of the proceedings of the City for the authorization, execution and delivery of the Installment Sale Agreement and related matters. Such opinion will be addressed to the City and, at the discretion of Attorneys and in accordance with industry practice, may be addressed to the Infrastructure Bank.
Such other and further services as are normally performed by bond counsel in connection with similar financings, including but not limited to answering any and all questions concerning the financing and the related documents 4857-6624-2913 v1 -3-
at any time following the execution and delivery of the Installment Sale Agreement.
Each opinion of Attorneys will be delivered on the date of execution and delivery of the Installment Sale Agreement will be based on facts and law existing as of its date, will cover certain matters not directly addressed by such authorities, and will be in reliance upon the certified proceedings and other certifications of public officials and other persons furnished to Attorneys without undertaking to verify the same by independent investigation.
3. Compensation. For the Bond Counsel services of Attorneys listed in Section 2, the City will pay Attorneys a flat fee equal to $35,000. Said fee is not set by law but is negotiable between Attorneys and the City. All expenses incurred by Attorneys in connection with their services under this Agreement shall be the sole responsibility of Attorneys. Said fee shall be contingent upon the successful execution and delivery of the Installment Sale Agreement.
4. Responsibilities of the City. The City shall cooperate with Attorneys and shall furnish Attorneys with certified copies of all proceedings taken by the City, or other deemed necessary by Attorneys to render an opinion upon the validity of such proceedings. All costs and expenses incurred incidental to the actual execution and delivery of the Installment Sale Agreement, costs of other attorneys and professionals, and any other expenses incurred in connection with the execution and delivery of the Installment Sale Agreement.
5. Independent Contractor. Attorneys will act as an independent contractor in performing the services required under this Agreement, and under no circumstances will Attorneys be considered an agent, partner, or employee of the City. Attorneys shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Services under this Agreement. Consultant shall pay all payroll taxes imposed by any governmental entity and shall pay all other taxes not specifically identified in this Agreement as City’s responsibility.
6. Indemnification. Attorneys shall, to the fullest extent allowed by law, with respect to claims, liability, loss, damage, costs, or expenses, including reasonable attorney's and expert witness fees, awards, fines, penalties, or judgments, arising out of or relating to the Services performed in a negligent manner (collectively "Claims"), defend, indemnify, and hold harmless City, its Officials, officers, employees and agents (the "City Parties"), except to the extent the Claims are attributable to City Parties' gross negligence or willful misconduct. Attorneys shall defend the City Parties as required by California Civil Code Section 2778, and with counsel reasonably acceptable to those parties. Attorneys shall have no right to seek reimbursement from the City Parties for the costs of defense.
The obligations contained in this Section shall survive the termination of this Agreement for whatever cause for the full period of time allowed by law and shall not in any way be limited by the insurance requirements of this Agreement.
7. Liability Insurance Policies. Attorneys shall maintain at their own expense at all times during the term of this Agreement and for such additional periods as described herein, the insurance listed below with insurers licensed to do business in the State of California and with a Best's rating of no less than A:VII 4857-6624-2913 v1 -4-
A. Commercial General Liability Insurance. Commercial General Liability Insurance, with limits providing a minimum amount of $1,000,000 combined single limit coverage for each occurrence, $2,000,000 general aggregate and $2,000,000 products/completed operations aggregate. The insurance shall cover all operations including but not limited to the following: (1) premises, operations and mobile equipment liability; (2) completed operations and products liability; (3) contractual liability insuring the obligations assumed by Attorneys in this Agreement; (4) broad form property damage liability; (5) personal injury liability endorsement, including death; and (6) automobile bodily injury and property damage insurance, including all owned, hired and non-owned equipment.
B. Professional Liability Insurance. Professional Liability Insurance protecting against liabilities arising out of or in connection with negligent acts, errors, or omissions of Attorneys and all of Attorneys’ employees, subcontractors, consultants and other agency in connection with this Agreement, at a minimum amount of $5,000,000 combined single limit coverage and $5,000,000 aggregate, on a "claims made basis" with a continuation of coverage extension for liabilities for two years from the date the Services are substantially complete. Such professional liability policies shall include coverage for liability assumed by the Attorneys under this Agreement.
C. Workers Compensation Insurance. Workers Compensation insurance, occupational disease insurance and employer’s liability insurance shall be required with minimum limits as required by law, covering all workplaces involved in this Agreement.
D. Policy Terms. Concurrently with execution of this Agreement, Attorneys shall provide City with Certificates of Insurance evidencing that Attorneys have obtained or maintains the insurance required by this Section. The Certificates shall be on forms acceptable to City. Attorneys shall also furnish City with original endorsements with the following documentation:
• Precluding cancellation or reduction in coverage before the expiration of thirty (30) days after City shall have received written notification thereof from Attorneys by United States mail;
• Providing that Attorneys’ insurance shall apply separately to each insured against whom claim is made or suit is brought, and include a “separation of insureds” or “severability” clause which treats each insured separately, except with respect to the limits of the insurer's liability (cross-liability endorsement); • Excepting Attorneys’ professional liability insurance, naming City, its City Council, boards, commissions, committees, officers, employees and agents as additional insureds (“Additional Insureds”); and
• Providing that for any claims relating to Attorneys’ services hereunder, Attorneys’ insurance coverage shall be primary insurance with respect to City, its City Council, boards, commissions, committees, officers, employees and agents, and that any insurance or self-insurance maintained by City for itself, its City Council, boards, commissions, committees, officers, employees and agents shall be in excess of Attorneys’ insurance and shall not be contributory with it. • It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverages requirements and/or limits shall be available to the Additional Insured, including but not limited to any umbrella or excess insurance. Furthermore, the requirements for coverage and limits shall be the greater of: (a) the minimum coverage and limits specified in this Agreement; or (b) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured. 4857-6624-2913 v1 -5-
E. Material Breach. If Attorneys fail to maintain insurance coverage or provided insurance documentation which is required pursuant to this Agreement, it shall be deemed a material breach of this Agreement. City, at its sole option, may terminate this Agreement and obtain damages from Attorneys resulting from said breach. Alternatively, City may purchase the required insurance coverage, and without further notice to Attorneys, may deduct from sums due to Attorneys any premium costs advanced by CITY for such insurance. These remedies shall be in addition to any other remedies available to City.
8. Termination of Agreement. This Agreement may be terminated by the City at any time by giving written notice to Attorneys with or without cause. In the event of termination, all finished and unfinished documents, exhibits, project data, reports, and evidence shall, at the option of the City, become its property and shall be delivered to it by Attorneys.
4857-6624-2913 v1 -6-
9. Entire Agreement. This Agreement represents the entire understanding of City and Attorneys as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by an amendment in writing signed by each party.
11. Severability. If any part of this Agreement is determined to be unconstitutional, invalid or beyond the authority of either party, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement can be interpreted to give effect to the intentions of the parties.
12. Counterparts. This Agreement may be signed in counterparts and, when fully signed, such counterparts shall have the same effect as if signed in one document.
13. Choice of Law. This Agreement and all matters relating to it shall be governed by the laws of the State of California without reference to its choice of laws principles and venue shall be in the appropriate court in San Mateo County, California.
IN WITNESS WHEREOF, the City and Attorneys have executed this Agreement as of the date first above written.
CITY OF PACIFICA
By
Kevin Woodhouse, City Manager
JONES HALL, A PROFESSIONAL LAW
CORPORATION
By
Vice President
ATTEST
______________________________
Sarah Coffey, City Clerk
APPROVED AS TO FORM
______________________________
Michelle Marchetta Kenyon, City Attorney