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HomeMy WebLinkAbout106-89 RESOLUTION NO. 106-89 A RESOLUTION APPOINTING AND DESIGNATING INVESTMENT BANKER AND APPROVING AND AUTHORIZING EXECUTION OF AGREEMENT RELATED THERETO ASSESSMENT DISTRICT NO. 89-1 (MAGEE/DIABLO RANCH) RESOLVED, by the Town Council of the Town of Danville, California, that WHEREAS, this Council proposes to undertake proceedings pursuant to appropriate special assessment and assessment bond acts for the acquisition, construction and financing of public improvements for the above-entitled assessment district; WHEREAS, the public interest and general welfare will be served by appointing and designating an investment banker for said proceedings; WHEREAS, there has been submitted to this Council an agreement by and between the Town and Sutro & Co. Incorporated pursuant to which said company would perform investment banking services required in conjunction with said proceedings, including the underwriting of the bonds contemplated to be issued as a result thereof; and the agreement has been duly considered by the Council; NOW, THEREFORE, IT IS ORDERED as follows: 1. Sutro & Co., Incorporated is hereby appointed and retained as investment banker for these proceedings. 2. Th~ agreement between Sutro & Co., Incorporated and this Town, in the form heretofore submitted to this Council, is hereby approved. 1 32]300]/35 3. The Mayor is hereby authorized and directed to execute said agreement for and on behalf of the Town and the City Clerk is hereby authorized and directed to attest same and to affix thereto the corporate seal of the Town. 4. A copy of the agreement is, by this reference, hereby made a part hereof. 5. The Clerk shall provide an executed copy of this Resolution and the agreement to Sutro & Co., Incorporated. I hereby certify that the foregoing is a full, true and correct copy of a resolution duly and regularly passed and adopted by the Town Council of the Town of Danville, California at a regular meeting thereof held on the day of ,<L~i~/~ , 1989 by the following vote: AYES, and in favor thereof, Councilmembers: NOES, Councilmembers: ABSENT, Councilmembers: ATTEST: APP ED AS TO F · ~~lty Clerk -~~'~ity Attorney 2 32]300]/35 AGREEMENT EMPLOYING INVESTMENT BANKER THIS AGREEMENT, made the seventh day of August, 1989, by and between the Town of Danville, a public body corporate and politic, created and existing under and by virtue of the laws of the State of California, hereinafter referred to as "Issuer" and Sutro & Co. Incorporated, a corporation, hereinafter referred to as "Sutro." WITNESSETH WHEREAS, Issuer plans, from time to time, to issue and sell assessment bonds for Improvement district No. 89-1 (hereinafter "Bonds") to aid in the financing of the Magee- Diablo Ranch Project (the "Project"); and WHEREAS, Issuer determines it to be in the best interest of the citizens of Danville to employ an investment banker to advise and assist it in the planning, structuring and sale of the Bonds and to achieve Issuer's objectives; and WHEREAS, Sutro has such licenses, capital and experience as to qualify to serve as an investment banker. NOW, THEREFORE, for and in consideration of the matters hereinbefore referred to and the mutual covenants herein set forth, the parties hereto agree as follows: 1. Sutro, in its capacity as Investment Banker, will make available for consultation and conference with Issuer, at times and places mutually agreed upon, personnel qualified to advise Issuer on matters relating to the financing. 2. In consultation with Issuer and its bond counsel, Sutro will render necessary and appropriate assistance to Issuer in formulation of a sound financing program and will design and prepare appropriate documents for the sale of the Bonds under conditions best suited to secure the lowest net interest rate. In so doing, Sutro will review and evaluate leases and other agreements, construction contracts, insurance provisions, covenant requirements and similar matters so as to provide Issuer with recommendations which will result in the greatest degree of flexibility compatible with sound financing procedures. 3. In connection with the issuance and sale of the Bonds, Sutro will provide assistance in the preparation of the legal documents including advice concerning the maturities of bonds to be offered, provisions for bond redemption prior to maturity, call premiums, registration, provisions for investment of bond funds, reserve fund requirements, investment procedures and similar matters which, in the judgment of Sutro, the Issuer or its bond counsel will result in obtaining the lowest interest cost for the Bonds as issued. 4. Sutro will prepare an Offering Statement for the Bonds, which will be supplied to prospective buyers of the Bonds in connection with the sale thereof. Such Offering Statement shall include, among other things, a detailed description of the Project, the Bonds to be offered, the financing plan, statistical data, and other information as experience has shown to be necessary for effective marketing of the Bonds. 5. Sutro will pay certain of its own costs incurred in the performance of this Agreement, including cost of travel within California, cost of its legal counsel, if any, communication, preparation (but not printing and mailing) of the Offering Statement and overhead expenses in connection with its work for Issuer, except as provided in Paragraph (6) hereof. 6. Issuer will pay out of Bond proceeds all costs and expenses in connection with issuance of the Bonds, including legal fees, the cost of statistical, computer and graphics services, cost of printing and distribution of the Offering Statement, travel outside California by Sutro as approved by Issuer, and expenses of publication, advertising and informational meetings. Any other expenses of Sutro, such as travel outside of California, informational meetings or other costs will require written approval by the Issuer. Issuer is under no liability for any expenses of Sutro until such time as Bonds are issued and then only from Bond proceeds. 7. Nothing contained herein shall preclude Sutro from carrying on its customary and usual business activities. Sutro specifically reserves the right to bid for and maintain secondary markets on any of the Issuer's outstanding bonds. 8. Upon approval of a financial plan requiring a negotiated underwriting, a Purchase Contract for the Bonds specifying interest rates and other terms and conditions of the financing will be submitted to the Issuer for its consideration. Sutro will be compensated through the underwriting discount, with all payments contingent upon the successful sale and delivery of the Bonds. The actual underwriting discount will be established before the sale of the Bonds through negotiations with the Issuer with due regard to current market conditions. 9. This contract includes all assessment bonds, whether issued all at one time or in series and any Mello-Roos bonds, if any, issued with respect to the Project. 10. This Agreement is t6 continue for a period of one (1) year, or until the Bonds are sold, whichever first occurs, unless previously terminated by mutual consent of the parties hereto. The operative period of the Agreement may be extended by mutual consent of the parties hereto. 11. Sutro & Co. hereby agrees to indemnify the City of Danville with respect to any liability of the City arising out of any negligent act or failure to act on the part of Sutro in connection with Sutro's responsibilities as defined by paragraphs 1, 2, 3 and 4 of this Agreement. It is acknowledged by Sutro & Co. that the scope of such indemnification includes reasonable legal costs incurred by the City with respect to such liability. The foregoing is limited to acts or failure to act related to Bonds actually underwritten by Sutro & Co. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. THE TOWN OF DANVILLE SUTR/~).~ INCORPORATED Richard G(Kiss - Vice President Public Finance