HomeMy WebLinkAboutSA-3 - SA TAX ALLOCATION BONDSREQUEST • - d
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SUCCESSORRI 1
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ACTION
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MEETING DATE:
AUGUST 21, 2018
TITLE:
APPROVE AGREEMENTS WITH URBAN FUTURES
INC., ORRICK, HERRINGTON & SUTCLIFFE, LLP,
AND BEST, BEST & KRIEGER, LLP FOR BOND
SERVICES PERTAINING TO THE REFUNDING OF
THE TAX ALLOCATION BONDS, SERIES 2003 A & B
AND 2011A (NON -GENERAL FUND)
(STRATEGIC PLAN NO. 4, 2D)
CITY Ij ANAGER
RECOMMENDED ACTION
CLERK OF THE COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Implementing Resolution
❑ Other
CONTINUED TO
FILE NUMBER
1) Authorize the City Manager and Clerk of the Council to execute an agreement with Urban
Futures Inc. for financial advisor & fiscal consultant services related to the refunding of the
Tax Allocation Bonds for a one-year term beginning August 21, 2018 through July 31, 2019,
for a not -to -exceed amount of $60,000 for financial advisor services and a not -to -exceed
amount of $25,000 for fiscal consultant services, subject to non -substantive changes
approved by the City Manager and the Agency Counsel.
2) Authorize the City Manager and Clerk of the Council to execute an agreement with Orrick,
Herrington & Sutcliffe, LLP for bond counsel services related to the refunding of the Tax
Allocation Bonds for a one-year term beginning August 21, 2018 through July 31, 2019, for
a not -to -exceed amount of $66,500, subject to non -substantive changes approved by the
City Manager and the Agency Counsel.
3) Authorize the City Manager and Clerk of the Council to execute an agreement with Best,
Best & Krieger, LLP for disclosure counsel services related to the refunding of the Tax
Allocation Bonds for a one-year term beginning August 21, 2018 through July 31, 2019, for
a not -to -exceed amount of $52,500, subject to non -substantive changes approved by the
City Manager and theAgency Counsel .
DISCUSSION
As a best practice and a matter of prudence, the City's Finance and Management Services
Agency, , valuates the City's existing debt obligations to identify potential savings in its borrowing
SA -3-1
Agreements with Urban Futures, Orrick & BBK
August 21, 2018
Page 2
costs. The analysis disclosed that interest rates have decreased since the original issuance of the
bonds in both 2003 and 2011. As a result, staff began to discuss its options with its financial advisor
Urban Futures, Inc. ("UR"). After conducting its due diligence, which encompassed evaluation of
the current interest rate and financing environment, it was determined that both the 2003 and 2011
Tax Allocation Bonds (TAB's) were appropriate to initiate the Refunding Process ("refunding").
Both the 2003 and 2011 TAB's were originally issued by the former Santa Ana Redevelopment
Agency (RDA).
Staff began analyzing the feasibility of a refunding in 2016. In preparation for the refunding, staff
directed UFI to issue Requests for Proposals ("RFPs") for bond and disclosure counsel services.
Six proposals were received. After evaluating the proposals, staff recommended the Successor
Agency to engage Orrick, Herrignton & Sutcliffe ("Orrick") as the bond counsel and Best Best &
Krieger, LLP (BBK) as disclosure counsel. Both Orrickand BBK, presented the lowest cost of the
experienced firms available for bond and disclosure counsel services respectively. Staff utilized
the pool of financial advisors previously authorized by the City Council to select and engage UFI
as its financial advisor.
However, due to litigation surrounding the California Department of Finance's ("DOF") decision on
unencumbered funding for affordable housing (Cuenca v. Cohen 2017), the efforts of refunding the
Tax Allocation Bonds in 2016 were temporarily halted. Subsequent to the California Supreme Court
upholding the DOF's decision, staff has resumed the process of refunding the 2003 A & B bonds
and is now recommending to include the 2011 bonds to generate additional debt service savings.
The Oversight Board and the Successor Agency approved the authorizing resolutions to refund
the Tax Allocation Bonds at their respective meetings on June 27, 2018 and July 17, 2018.
Currently, and per AB 1484, the DOF is reviewing the resolutions and the issuance of the refunding
bonds. The DOF has sixty days to review and upon approval, staff will present to the Successor
Agency the financing documents in order to execute the refunding.
CURRENT MARKET ANALYSIS
Currently, market interest rates are at 3.49%. Refinancing the 2003A & B and 2011A Bonds
through the issuance of a refunding bond issue (the "2018 Bonds") is expected to generate a total
debt service savings of approximately $19.9 million, without extending the current maturity date of
the bonds. In order to maximize the savings amount, the Agency will contribute the existing cash
funded reserve account (approx. $6.7 million) and unexpended proceeds (approx. $5.8 million)
from the 2011 A Bonds, to the refunding escrow for the 2018 Bonds. The former RDA was prohibited
from entering into new agreements for the use of the 2011 bond proceeds upon enactment of AB
X1 26, shortly after the issuance of the 2011 Bonds. As such, the $5.8 million remain unexpended
and is available to be used in this refunding transaction.
The final savings amount will depend on the market interest rates in effect at the time the 2018
Bonds are priced, which is anticipated to be during the first week of October 2018. Based on the
redevelopment dissolution laws, the estimated annual savings amount (approximately $1.97 million
per year through 2028 and then $100,000 from 2029 to 2031) would be allocated towards
enforceable obligations, or shared among taxing entities (including: Santa Ana Unified School
SA -3-2
Agreements with Urban Futures, Orrick & BBK
August 21, 2018
Page 3
District, the County of Orange, Rancho Santiago Community College District and other countywide
special districts) as residual revenues.
In anticipation of DOF approval and in order to continue with the process of refunding, staff is
recommending to reconfirm and assign the following financing team members:
Urban Futures, Inc. ("UFI") as Financial Advisor and Fiscal Consultant;
Orrick, Herrington & Sutcliffe, LLP ("Orrick") as Bond Counsel and;
Best, Best & Krieger, LLP ("BBK") as Disclosure Counsel.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's effort to meet Goal #4 — City Financial Stability, Objective
#2 — (Provide a reliable five-year financial forecast that ensures financial stability in accordance
with the strategic plan), Strategy D (Conduct an assessment of the City's debt and refinancing
options to achieve savings).
FISCAL IMPACT
All costs associated with this transaction will be paid at closing of the Refunding Process, with
proceeds from the refunding 2018 Bonds scheduled for October/November 2018.
Steven A. Mendoza
Executive Director
Community Development Agency
Sergio Vidal go
Assistant Finance Director
Finance and Management Services Agency
Exhibits: 1. Urban Futures Inc. Agreement
2. Orrick, Herrington & Sutcliffe, LLP Agreement
3. Best, Best & Krieger, LLP Agreement
SA -3-3
SA -3-4
Exhibit 1
PROFESSIONAL SERVICES AGREEMENT
WITH URBAN FUTURES, INC. FOR
FINANCIAL ADVISORY SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement") is made and
entered into this day of , 2018, by and between Urban Futures,
Incorporated (herein "Consultant"), and the Successor Agency to the Community Redevelopment
Agency for the City of Santa Ana, a public body, corporate and politic (hereinafter "Successor
Agency").
NOW, THEREFORE, the parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all of the terms and conditions
of this Agreement, the Consultant shall perform the financial advisory and fiscal consultant
work or services set forth in the "Scope of Services" attached hereto as Exhibit "A" and
incorporated herein by reference. Consultant warrants that all work and services set forth in
the Scope of Services will be performed in a competent, professional and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall
be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the
City of Santa Ana and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits. Fees and Assessments. Consultant shall obtain at its sole
cost and expense such licenses, permits and approvals as may be required by law for the
performance of the services required by this Agreement including, but not limited to, registration
as a financial advisor with the Securities and Exchange Commission (SEC) and Municipal
Securities RulemakingBoard(MSRB).
2.0 CONTINGENT COMPENSATION
2.1 Contract Sum. Payment to Consultant is contingent upon final bond team
and package approval by Successor Agency Board with regard to the refunding of outstanding
Community Redevelopment Agency Series 2003A and 2003B and 2011 Tax Allocation
Bonds (TABS). For the services rendered pursuant to this Agreement, the Consultant shall be
compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit
"B" and incorporated herein by this reference. Total compensation under this Agreement shall
not exceed $85,000.00.
2.2 Invoicing. Consultant shall maintain a detailed invoice, in the form
approved by City's Finance Director, describing the tasks performed and amount charged for each
such task. The Successor Agency shall review the invoice and pay Consultant the approved
charges no later than thirty (30) days following the Successor Agency Board action referenced
above.
1
SA -3-5
Exhibit 1
3.0 COORDINATION OF WORK
3.1 Representative of Consultant. Michael Busch is hereby designated as being
the principal and representative of the Consultant authorized to act in its behalf with respect to
the work and services specified herein and make all decisions in connection therewith.
3.2 Contract Officer. The City Manager of the City of Santa Ana, is hereby
designated as being the representative of the Successor Agency authorized to act in its behalf with
respect to the work and services specified herein and make all decisions in connection
therewith ("Contract Officer"). The City Manager shall have the right to designate another Contract
Officer by providing written notice to the Consultant.
3.3 Prohibition Against Subcontracting or Assignment. Consultant shall not
contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the Successor Agency. Neither this Agreement nor any
interest herein may be assigned or transferred, voluntarily or by operation of law, without the
prior written approval of the City. Any such prohibited assignment or transfer shall be void.
3.4 Independent Contractor. Neither the Successor Agency nor any of its
employees shall have any control over tite manner, mode or means by which the Consultant, its
agents or employees, perform the services required herein, except as otherwise set forth.
Consultant shall perform all services required herein as an independent the contractor of the City
and shall remain under only such obligations as are consistent with that role. Consultant shall not
at any time or in any manner represent that it or any of its agents or employees are agents or
employees of the Successor Agency.
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance. The Consultant shall procure and maintain, at its sole cost
and expense, in a form and content satisfactory to the Successor Agency, during the entire term of
this Agreement including any extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance. Consultant shall maintain
commercial general liability insurance which shall include, but not be limited to protection against claims
arising from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Consultant's operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not
less than the following: single limit coverage applying to bodily and personal injury, including death
resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, and in the
aggregate. Such insurance shall (a) name the Successor Agency, its officers, employees, agents, volunteers
and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance
or self-insurance programs maintained by the Successor Agency; and (c) contain standard separation of
insured'sprovisions.
(b) Worker's Compensation Insurance. A policy of worker's
SA -3-6
Exhibit 1
compensation insurance in such amount as will fully comply with the laws of the State
of California and which shall indemnify, insure and provide legal defense for both the
Consultant and the Successor Agency against any loss, claim or damage arising from
any injuries or occupational diseases occurring to any worker employed by or any persons
retained by the Consultant in the course of carrying out the work or services contemplated
in this Agreement.
(c) Automotive Insurance. Business automobile liability insurance,
or equivalent form, with a combined single limit of not less than $1,000,000 per
occurrence. Said policy shall include coverage for owned, non -owned, leased and hired
cars.
(d) Professional Liability or Error and Omissions Insurance. A policy of
insurance in an amount not less than $1,000,000.00 per claim or as is customary for the
work to be performed under this contract with respect to loss arising from the actions
of Consultant perfonningprofessional services hereunder on behalf ofthe Successor Agency.
All of the above policies of insurance shall be primary insurance and shall name the
Successor Agency, its officers, employees and agents as additional insured's. The insurer shall
waive all rights of subrogation and contribution it may have against the Successor Agency, its
officers, employees and agents and their respective insurers. All of said policies of insurance shall
provide that said insurance may not be amended or canceled without providing thirty (30) days
prior written notice by registered mail to the Successor Agency. In the event any of said policies
of insurance are canceled, the Consultant shall, prior to the cancellation date, submit new evidence
of insurance in conformance with this Section 4.1 to the Contract Officer. No work or services
under this Agreement shall commence until the Consultant has provided the Successor Agency
with Certificates of Insurance or appropriate insurance binders evidencing the above insurance
coverage and said Certificates of insurance or binders are approved by the Successor Agency.
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL
THIRTY (30) -DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
The Consultant agrees that the provisions of this Section 4.1 shall not be construed as
limiting in any way the extent to which the Consultant may be held responsible for the payment of
damages to any persons or property resulting from the Consultant's activities or the activities of any
person or persons for which the Consultant is otherwise responsible.
The insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A" or better in the most recent edition of Best Rating
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category
Class VII or better, unless such requirements are waived by the Successor Agency Attorney due
3
SA -3-7
Exhibit 1
to unique circumstances.
4.2 Indemnification. Consultant agrees to indemnify the Successor Agency, its
officers, agents and employees against, and will hold and save them and each of them harmless
from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities, including paying any legal costs, attorney's fees, or
paying any judgment (herein "claims ordiabilities") that may be asserted or claimed by any person,
firm or entity arising out of or in connection with the performance of the work or services of the
Consultant, its agents, employees, subcontractors, or invitees, provided for herein, or arising
from the negligent acts or omissions of the Consultant hereunder, or arising from the Consultant's
negligent performance of or failure to perform any term, provision covenant or condition of this
Agreement, but excluding such claims or liabilities to the extent caused by the sole negligence or
willful misconduct of the Successor Agency.
4
SA -3-8
Exhibit 1
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this
Agreement shall begin on the Effective Date and continue in full force and effect until July 31,
2019. The term of this Agreement may be extended upon a writing executed by both parties, including
the City Manager and the Successor Agency Legal Counsel.
5.2 Termination Prior to Expiration of Term. Either party may terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other
party. Upon receipt of the notice of termination, the Consultant shall immediately cease all work or
services hereunder except as may be specifically approved by the Contract Officer.
6.0 MISCELLANEOUS
6.1 Covenant Aeainst Discrimination. Consultant covenants that, by and for
itself, its heirs, executors, assigns and all persons claiming under or through them, that there shall
be no discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to ensure that applicants are employed and that
employees are treated during employment without regard to their race, color, creed, religion, sex,
marital status, national origin or ancestry.
6.2 Non -liability of Successor Aeencv Officers and Employees. No officer or
employee of the Successor Agency shall be personally liable to the Consultant, or any successor in
interest, in the event of any default or breach by the Successor Agency or for any amount which
may become due to the Consultant or to its successor, or for breach of any obligation of the terms of
this Agreement.
6.3 Conflict of Interest. No officer or employee of the Successor Agency shall
have any financial interest, direct or indirect, in this Agreement nor shall any such officer or
employee participate in any decision relating to the Agreement which affects his financial interest
or the financial interest of any corporation, partnership or association in which he is, directly or
indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that
it has not paid or given and will not pay or give any third party any money or other consideration
for obtaining this Agreement.
6.4 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid, first-class mail, in the case of the
Successor Agency, to the City Manager and to the attention of the Contract Officer, Clerk of the
Council, City of Santa Ana, 20 Civic Center Plaza (M-30), P.O. Box 1988, Santa Ana, California
92702-1988, and in the case of the Consultant, to the person at the address designated on the
execution page of this Agreement.
6.5 Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either party by
reason of the authorship of this Agreement or any other rule of construction which might
5
SA -3-9
Exhibit 1
otherwise apply.
6.6 Integration: Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any
and all previous negotiations, arrangements, agreements and understandings, if any, between the
parties, and none shall be used to interpret this Agreement. This Agreement may be amended at
any time by the mutual consent of the parties by an instrument in writing.
6.7 Severability. In the event that part of this Agreement shall be declared invalid
or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity
or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby
declared as severable and shall be interpreted to carry out the intent of the parties hereunder
unless the invalid provision is so material that its invalidity deprives either party of the basic benefit
of their bargain or renders this Agreement meaningless.
6.8 Waiver. No delay or omission in the exercise of any right or remedy by a
non -defaulting party on any default shall impair such right or remedy or be construed as a waiver.
A party's consent to or approval of any act by the other party requiring the party's consent or
approval shall not be deemed to waive or render unnecessary the other party's consent to or approval
of any subsequent act. Any waiver by either party of any default must be in writing and shall not
be a waiver of any other default concerning the same or any other provision of this Agreement.
6.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter
proceeds tojudgment.
6.10 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized
to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate anyprovision of any other Agreement to which said party is bound.
C
SA -3-10
Exhibit 1
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
ATTEST:
MARIAD.HUIZAR
Clerk of the Council
SUCCESSOR AGENCY OF THE CITY OF
SANTA ANA
RAUL GODINEZ II
City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO CONSULTANT
Recommended for
Approval:
I Urban Futures, Inc.
Sergio Vidal
Assistant Finance Director
Finance and Management
Services Agency
LE
Michael Busch
Chief Executive Officer
Address: 17821 E. 17' Street, Suite 245
Tustin, CA 92780
7
SA -3-11
Exhibit 1
EXHIBIT"A"
SCOPE OF SERVICES
The specific tasks to be performed and completed by Consultant in performing the financial advisory and fiscal
consultant services are as provided below in this Exhibit "A". Consultant shall complete all services under this
Agreement within the Tenn, as described in Section 5.1.
1. Assist in the selection of appropriate team members, such as underwriter, bond counsel, and other
members of the financing team (depending on method of sale).
2. If requested, prepare fee comparables necessary to negotiate professional service fees.
3. Coordinate review and approval of financing documents with outside State agencies.
4. Evaluate the financing structure, to include debt service schedules; call features; bond security;
flow of funds; sources and uses of funds including costs of issuance; underwriters discount and
original issue discount; investment of bond proceeds; and estimated positive and negative cash
flow to the Client.
5. Assist client staff, underwriters and other financing team members in working with credit rating
agencies and financial institutions, and prepare any presentation materials and documentation for
rating and credit reviews.
6. Work with client staff, bond counsel, disclosure counsel, underwriters and other participants, to
review, prepare and advise on information contained in the preliminary and final official
statements, Indenture of Trust, fiscal agent agreement, investment agreements, and other legal and
disclosure documents and materials required to facilitate the sale of the bonds.
7. Prepare a pre -pricing book and comparable rates and scales to ensure the client is receiving the
best yield in the market.
8. Assist in the final closing of the financing and monitor market conditions including interest rate
"spreads" between various tax-exempt and taxable securities, up until the actual marketing and
pricing of the bonds.
8
SA -3-12
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SA -3-14
Exhibit 2
SPECIAL LEGAL COUNSEL SERVICES AGREEMENT
This AGREEMENT, made and entered into this_ day of , 2018, by and
between Orrick, Herrington & Sutcliffe LLP, a Califomia professional law corporation
("Attorneys"), and the Successor Agency to the Community Redevelopment Agency for the City
of Santa Ana, a public body, corporate and politic (hereinafter "Successor Agency").
RECITALS
A. Successor Agency desires to employ Attorneys to assist the Successor Agency Legal Counsel
in the provision of specialized legal services to the Successor Agency in a bond issuance,
refinancing and refunding, and other related legal matters, as well as serving as bond counsel,
and
B. Attorneys represent that they are licensed to practice law in the State of California, have
special experience and knowledge in the field of public financing and desire to undertake said
services.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. RETENTION OF ATTORNEYS Successor Agency hereby agrees to and does retain
Attorneys, for the compensation hereinafter specified, to assist the Successor Agency Legal Counsel
in bond counsel services related to 2018 Tax Allocation Refunding Bonds and other legal issues when
and as requested by the Successor Agency Legal Counsel to do so. Attorneys accept said retention
and agree to perform, in timely and efficient manner, all such services as may be requested by the
Successor Agency Legal Counsel. Attorneys shall confirm their acceptance of work requested by
Successor Agency in writing by e-mail or letter.
2.
A. CONTRACT SUM Payment to Consultant is contingent upon final bond team
and package approval by Successor Agency Board with regard to the refunding of outstanding
Community Redevelopment Agency Series 2003A and 2003B and 2011 Tax Allocation
Bonds (TABs). Successor Agency agrees to compensate Attorneys, and Attorneys agree to accept
from Successor Agency, as and for payment in full for all of said services in regard to each such
action, compensation which shall not exceed $66,500.00. See Schedule of Compensation attached
hereto as Exhibit A and incorporated herein by reference.
B. REIMBURSEMENT FOR COSTS Successor Agency agrees to reimburse Attorneys
for out-of-pocket expenses, including but not limited to, mileage, expert witness fees, copying costs,
service of process, and mail services authorized by the Successor Agency Legal Counsel in
connection with the performance of duties under this Agreement. Any costs in excess of $5,000
require Successor Agency Legal Counsel approval prior to incurring the expense. All expenses must
have supporting documentation submitted with the invoice.
SA -3-15
Exhibit 2
3. METHOD OF PAYMENT Attorneys shall submit a monthly statement specifying the
services performed, dates and number of hours, and an itemization of expenses related thereto with
supporting documentation (i.e. receipts, invoices, copy of check, etc).
4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or
proceeding in which they undertake to assist the Successor Agency Legal Counsel, as aforesaid, shall
be and remain under, and subject to the control and direction of said Successor Agency Legal Counsel
at all stages, and that they shall at all times keep the Successor Agency Legal Counsel informed of all
matters pertaining thereto. Successor Agency will keep Attorneys informed of all significant
developments in matters relating to any representation undertaken by Attorneys. Attorneys further
agree, if and when their retention hereunder is terminated by Successor Agency, as hereinafter
specified, they shall return to Successor Agency Legal Counsel any and all files then in their
possession concerning each and every matter or proceeding in which they represented the Successor
Agency pursuant to this Agreement.
5. REPORTING REQUIREMENTS Attorneys agree to keep the Successor Agency Legal
Counsel, Director of Finance, and anyone other person(s) designated by the Successor Agency
informed of significant events in the transaction.
6. TERM The term of this Agreement shall commence on the date first written above and
terminate on June 30, 2019, unless terminated earlier pursuant to Section 13 below. The term of this
Agreement may be extended upon a writing executed by both parties, including the City Manager and
the Successor Agency Legal Counsel.
7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that, in
the performance of their covenants hereunder, Attorneys are and shall be independent contractors,
and not officers or employees of Successor Agency.
8. INSURANCE Attorneys shall provide to the Successor Agency Legal Counsel proof of
Professional Liability (errors and omissions) insurance, with a combined single limit of not less
than $1,000,000 per claim, and maintain such insurance throughout the term of this Agreement. If
Attorneys fail or refuse to produce and maintain the insurance required by this section, or fail or
refuse to fumish the Successor Agency with required proof that insurance has been procured and
is in force and paid for, the Successor Agency shall have the right, at the Successor Agency's
election, to forthwith terminate this Agreement. Such termination shall not affect Attorneys' right
to be paid for its time and materials expended prior to notification of termination.
7. INDEMNIFICATION Attorneys agree to and shall indemnify and hold harmless the
Successor Agency, its officers, agents, employees, and representatives from liability for personal
injury, damages, restitution, judicial or equitable relief arising out of Attorneys' negligent or
wrongful performance or conduct of this Agreement.
8. CONFIDENTIALITY If Attorneys receive from the Successor Agency information,
which due to the nature of such information is reasonably understood to be confidential and/or
proprietary, Attorneys agree that it shall not use or disclose such information except in the
performance of this Agreement, and further agree to exercise the same degree of care it uses to
2
SA -3-16
Exhibit 2
protect its own information of like importance, but in no event less than reasonable care.
"Confidential Information" shall include all nonpublic information. Confidential information
includes not only written information, but also information transferred orally, visually,
electronically, or by other means. Confidential information disclosed to either party by any
subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations
of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in
publicly available sources; (b) is, through no fault of the Attorneys, disclosed in a publicly
available source; (c) is in rightful possession of the Attorneys without an obligation of
confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently
developed by the Attorneys without reference to information disclosed by the Successor Agency.
9. CONFLICT OF INTEREST CLAUSE Attorneys covenant that it presently has no interests
and shall not have interests, direct or indirect, that would conflict in any manner with performance
of services specified under this Agreement.
10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic
communication in the manner provided in this Section, to the following persons:
Successor Agency: Clerk of the Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6956
Courtesy Copy: Successor Agency Legal Counsel
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Facsimile (714) 647-6515
To Attorneys: Justin Cooper, Partner
Orrick, Herrington & Sutcliffe LLP
405 Howard Street
San Francisco, CA 94105
Facsimile: (415) 773-5759
Email: icooperOorrick.com
A party may change its address by giving notice in writing to the other party. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the
new address. If sent by mail, communication shall be effective or deemed to have been given three
(3) days after it has been deposited in the United States mail, duly registered or certified, with
3
SA -3-17
Exhibit 2
postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be
effective or deemed to have been given twenty-four (24) hours after the time set forth on the
transmission report issued by the transmitting facsimile machine, addressed as set forth above. For
purposes of calculating these time frames, weekends, federal, state, County or City holidays shall
be excluded.
11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and
exclusive statement between the Successor Agency and Attorneys, and supersedes any and all
other agreements, oral or written, between the parties. In the event of a conflict between the terms
of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This
Agreement may not be modified except by written instrument signed by the Successor Agency
and by an authorized representative of Attorneys. The parties agree that any terms or conditions
of any purchase order or other instrument that are inconsistent with, or in addition to, the terms
and conditions hereof, shall not bind or obligate Attorneys or the Successor Agency. Each party to
this Agreement acknowledges that no representations, inducements, promises or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which
are not embodied herein.
12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services
of Attorneys, Attorneys may not assign, transfer, delegate, or subcontract any interest herein
without the prior written consent of the Successor Agency and any such assignment, transfer,
delegation or subcontract without the Successor Agency's prior written consent shall be considered
null and void. Nothing in this Agreement shall be construed to limit the Successor Agency's ability
to have any of the services which are the subject of this Agreement performed by Successor
Agency personnel or by other Attorneys retained by Successor Agency.
13. TERMINATION This Agreement may be terminated by Successor Agency at any time.
As a condition of such termination, Attorneys shall deliver to the Successor Agency all files and
records generated under this Agreement as of such date.
Attorneys may terminate this agreement, subject to their obligation to provide reasonable notice to
arrange alternative representation. In such case, Successor Agency agrees to secure new counsel as
quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record
in any litigation in which Attorneys may be involved.
14. DISCRIMINATION Attorneys shall not discriminate because of race, color, creed,
religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as
defined and prohibited by applicable law, in the recruitment, selection, training, utilization,
promotion, termination or other employment related activities. Attorneys affirm that it is an equal
opportunity employer and shall comply with all applicable federal, state and local laws and
regulations.
15. JURISDICTION — VENUE This Agreement has been executed and delivered in the State
of California and the validity, interpretation, performance, and enforcement of any of the clauses
of this Agreement shall be determined and governed by the laws of the State of California. Both
SA -3-18
Exhibit 2
parties further agree that Orange County, California, shall be the venue for any action or
proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
16. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its
signature herein below has the power, authority and right to bind their respective parties to each of
the terms of this Agreement, and shall indemnify Successor Agency fully, including reasonable costs
and attorney's fees, for any injuries or damages to Successor Agency in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
ATTEST:
SUCCESSOR AGENCY OF THE CITY OF
SANTA ANA
Maria D. Huizar
Clerk of the Council Raul Godinez II
City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO ORRICK, HERRINGTON & SUTCLIFFE
Successdi1eencx-Leeal Counsel LLP
By: '
Ryan o g By:
Assistant al Co sel Name:
Title:
Tax ID No.
Recommended for Approval:
Sergio Vidal
Assistant Finance Director
5
SA -3-19
SA -3-20
Exhibit 3
SPECIAL LEGAL COUNSEL SERVICES AGREEMENT
This AGREEMENT, made and entered into this —day of 2018, by and
between Best Best & Krieger, a California Professional Corporation ("Attorneys"), and the
Successor Agency to the Community Redevelopment Agency for the City of Santa Ana, a public
body, corporate and politic (hereinafter "Successor Agency").
RECITALS
A. Successor Agency desires to employ Attorneys to assist the Successor Agency Legal Counsel
in the provision of specialized legal services to the Successor Agency in a bond issuance,
refinancing and refunding, and other related legal matters, as well as serving as disclosure
counsel, and
B. Attorneys represent that they are licensed to practice law in the State of California, have
special experience and knowledge in the field of public financing and desire to undertake said
services.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. RETENTION OF ATTORNEYS Successor Agency hereby agrees to and does retain
Attorneys, for the compensation hereinafter specified, to assist the Successor Agency Legal Counsel
in disclosure counsel services related to 2018 Tax Allocation Refunding Bonds and other legal issues
when and as requested by the Successor Agency Legal Counsel to do so. Attorneys accept said
retention and agree to perform, in timely and efficient manner, all such services as may be requested
by the Successor Agency Legal Counsel. Attorneys shall confirm their acceptance of work requested
by Successor Agency in writing by e-mail or letter.
2. PAYMENT FOR SERVICES RENDERED
A. CONTRACT SUM Payment to Consultant is contingent upon final bond team
and package approval by Successor Agency Board with regard to the refunding of outstanding
Community Redevelopment Agency Series 2003A and 2003B and 2011 Tax Allocation
Bonds (TABs). Successor Agency agrees to compensate Attorneys, and Attorneys agree to accept
from Successor Agency, as and for payment in full for all of said services in regard to each such
action, compensation which shall not exceed $52,500.00. See Schedule of Compensation attached
hereto as Exhibit A and incorporated herein by reference.
B. REIMBURSEMENT FOR COSTS Successor Agency agrees to reimburse
Attorneys for out-of-pocket expenses, including but not limited to, mileage, expert witness fees,
copying costs, service of process, and mail services authorized by the Successor Agency Legal
Counsel in connection with the performance of duties under this Agreement. Any costs in excess of
$5,000 require Successor Agency Legal Counsel approval prior to incurring the expense. All
expenses must have supporting documentation submitted with the invoice.
1
SA -3-21
Exhibit 3
3. METHOD OF PAYMENT Attorneys shall submit a monthly statement specifying the
services performed, dates and number of hours, and an itemization of expenses related thereto with
supporting documentation (i.e. receipts, invoices, copy of check, etc).
4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or
proceeding in which they undertake to assist the Successor Agency Legal Counsel, as aforesaid, shall
be and remain under, and subject to the control and direction of said Successor Agency Legal Counsel
at all stages, and that they shall at all times keep the Successor Agency Legal Counsel informed of all
matters pertaining thereto. Successor Agency will keep Attorneys informed of all significant
developments in matters relating to any representation undertaken by Attorneys. Attorneys further
agree, if and when their retention hereunder is terminated by Successor Agency, as hereinafter
specified, they shall return to Successor Agency Legal Counsel any and all files then in their
possession concerning each and every matter or proceeding in which they represented the Successor
Agency pursuant to this Agreement.
5. REPORTING REQUIREMENTS Attorneys agree to keep the Successor Agency Legal
Counsel, Director of Finance, and anyone other person(s) designated by the Successor Agency
informed of significant events in the transaction.
6. TERM The term of this Agreement shall commence on the date first written above and
terminate on June 30, 2019, unless terminated earlier pursuant to Section 13 below. The term of this
Agreement may be extended upon a writing executed by both parties, including the City Manager and
the Successor Agency Legal Counsel.
7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that, in
the performance of their covenants hereunder, Attorneys are and shall be independent contractors,
and not officers or employees of Successor Agency.
8. INSURANCE Attorneys shall provide to the Successor Agency Legal Counsel proof of
Professional Liability (errors and omissions) insurance, with a combined single limit of not less
than $1,000,000 per claim, and maintain such insurance throughout the term of this Agreement. If
Attorneys fail or refuse to produce and maintain the insurance required by this section, or fail or
refuse to furnish the Successor Agency with required proof that insurance has been procured and
is in force and paid for, the Successor Agency shall have the right, at the Successor Agency's
election, to forthwith terminate this Agreement. Such termination shall not affect Attorneys' right
to be paid for its time and materials expended prior to notification of termination.
7. INDEMNIFICATION Attorneys agree to and shall indemnify and hold harmless the
Successor Agency, its officers, agents, employees, and representatives from liability for personal
injury, damages, restitution, judicial or equitable relief arising out of Attorneys' negligent or
wrongful performance or conduct of this Agreement.
8. CONFIDENTIALITY If Attorneys receive from the Successor Agency information,
which due to the nature of such information is reasonably understood to be confidential and/or
proprietary, Attorneys agree that it shall not use or disclose such information except in the
performance of this Agreement, and further agree to exercise the same degree of care it uses to
2
SA -3-22
Exhibit 3
protect its own information of like importance, but in no event less than reasonable care.
"Confidential Information" shall include all nonpublic information. Confidential information
includes not only written information, but also information transferred orally, visually,
electronically, or by other means. Confidential information disclosed to either party by any
subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations
of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in
publicly available sources; (b) is, through no fault of the Attorneys, disclosed in a publicly
available source; (c) is in rightful possession of the Attorneys without an obligation of
confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently
developed by the Attorneys without reference to information disclosed by the Successor Agency.
9. CONFLICT OF INTEREST CLAUSE Attorneys covenant that it presently has no interests
and shall not have interests, direct or indirect, that would conflict in any manner with performance
of services specified under this Agreement.
10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic
communication in the manner provided in this Section, to the following persons:
Successor Agency: Clerk of the Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6956
Courtesy Copy: Successor Agency Legal Counsel
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Facsimile (714) 647-6515
To Attorneys: Best Best & Krieger
3390 University Avenue, 5'h Floor
P.O. Box 1028
Riverside, California 92502
Phone: (951) 686-1450
Facsimile: (951) 686-3083
A party may change its address by giving notice in writing to the other party. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the
new address. If sent by mail, communication shall be effective or deemed to have been given three
(3) days after it has been deposited in the United States mail, duly registered or certified, with
postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be
3
SA -3-23
Exhibit 3
effective or deemed to have been given twenty-four (24) hours after the time set forth on the
transmission report issued by the transmitting facsimile machine, addressed as set forth above. For
purposes of calculating these time frames, weekends, federal, state, County or City holidays shall
be excluded.
11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and
exclusive statement between the Successor Agency and Attorneys, and supersedes any and all
other agreements, oral or written, between the parties. In the event of a conflict between the terms
of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This
Agreement may not be modified except by written instrument signed by the Successor Agency
and by an authorized representative of Attorneys. The parties agree that any terms or conditions
of any purchase order or other instrument that are inconsistent with, or in addition to, the terms
and conditions hereof, shall not bind or obligate Attorneys or the Successor Agency. Each party to
this Agreement acknowledges that no representations, inducements, promises or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which
are not embodied herein.
12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services
of Attorneys, Attorneys may not assign, transfer, delegate, or subcontract any interest herein
without the prior written consent of the Successor Agency and any such assignment, transfer,
delegation or subcontract without the Successor Agency's prior written consent shall be considered
null and void. Nothing in this Agreement shall be construed to limit the Successor Agency's ability
to have any of the services which are the subject of this Agreement performed by Successor
Agency personnel or by other Attorneys retained by Successor Agency.
13. TERMINATION This Agreement may be terminated by Successor Agency at any time.
As a condition of such termination, Attorneys shall deliver to the Successor Agency all files and
records generated under this Agreement as of such date.
Attorneys may terminate this agreement, subject to their obligation to provide reasonable notice to
arrange alternative representation. In such case, Successor Agency agrees to secure new counsel as
quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record
in any litigation in which Attorneys maybe involved.
14. DISCRIMINATION Attorneys shall not discriminate because of race, color, creed,
religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as
defined and prohibited by applicable law, in the recruitment, selection, training, utilization,
promotion, termination or other employment related activities. Attorneys affirm that it is an equal
opportunity employer and shall comply with all applicable federal, state and local laws and
regulations.
15. JURISDICTION — VENUE This Agreement has been executed and delivered in the State
of California and the validity, interpretation, performance, and enforcement of any of the clauses
of this Agreement shall be determined and governed by the laws of the State of California. Both
parties further agree that Orange County, California, shall be the venue for any action or
proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
SA -3-24
Exhibit 3
16. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its
signature herein below has the power, authority and right to bind their respective parties to each of
the terms of this Agreement, and shall indemnify Successor Agency fully, including reasonable costs
and attorney's fees, for any injuries or damages to Successor Agency in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
SONIA R.,QARVALHO
Counsel
By:
RyanO.
Assistant
Recommended for Approval:
Sergio Vidal
Assistant Finance Director
SUCCESSOR AGENCY OF THE CITY OF
SANTA ANA
Raul Godinez II
City Manager
BEST BEST & KRIEGER
By:
Name:
Title:
Tax ID No.
SA -3-25
SA -3-26