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90-045b - Blackberry Farm - Rauscher Pierce Refsnes for underwritng financing for BBF purchase Reso 8274aReturn to: yF CUP -RTI 10300 Torre ?C upea� A 01 RESOLUTION NO. 8274 RESOUMON OF 1 CITY COUNCIL OF 1 CITY OF =IM101 AUTHORIZING EXECL)TION OF !i'EEENT BEIMEEN rM CITY OF FJMUINO AND RAUSCM • EJI'.•1 PZEFSNES, INC.• • UNDEMMITIlLc yl'V IN CONNECTION WME THE FINANCI1Z OF 1 : • M" VJEP IS, an agreement between the City of Cupertino and Rauscher Pierce Refsnes, Inc. outlining the terms and conditions for provision of underwriting services in connection with the financing of the Blackberry Farm Acquisition Project, has been presented to the City Council; and said agreement having been approved by the Director of Finance and the City Attorney; NOW, =ZEFORE, BE IT RESOLVED, that the City Manager is hereby authorized to execute the agreement herein referred to in behalf of the City of Cupertino. PASSED AND ADOPIED at a regular meeting of the City Council of the City of Cupertino this 19thday of November , 1990 by the following vote: Vote Members of the City Council AYES: Goldman, Rogers, Sorensen, Szabo, Koppel NOES: None ABS: None ABS=: None /s/ Dorothy Cornelius City Clerk /s/ Barb Koppel Mayor, City of Cupertino THIS IS TO CERTIFY THAT THE WITHIN INSTRUMENT ISA TRUE AND CORRECT COPY OF THE ❑RIGINAL,,9N FILE IN THIS !OFFICE. ATTEST CITY CLK OF THE CITY Di'Fw�ppE�NO BY r_ CLFRK my��, RAUSCHER PIERCE REFSNES, INC. AGREEMENT BETWEEN THE CITY OF CUPERTINO AND RAUSCHER PIERCE REFSNES, INC. FOR UNDERWRITING SERVICES IN CONNECTION WITH THE FINANCING OF THE BLACKBERRY FARM AND FREMONT OLDER ACQUISITION PROJECT THIS UNDERWRITING SERVICES AGREEMENT (hereinafter "Agreement'), made and entered into this 19thday of November , 1990 by and between the CITY OF CUPERTINO, a City duly organized under the laws of the State of California (hereinafter called "City'), and RAUSCHER PIERCE REFSNES, INC., a corporation, (hereinafter called "Underwriter'); and WHEREAS, City is contemplating the financing of the Blackberry Farm and Fremont Older Acquisition Project (hereinafter called 'Project'); and WHEREAS, City desires to retain the services of Underwriter to develop and implement a financing that will result in a financing of this Project, and Underwriter represents to City that it is qualified and competent to assist City by providing all applicable underwriting services; and NOW, THEREFORE, for and in consideration of the mutual promises hereinafter set forth, the parties hereto do hereby agree as follows: I. SERVICES PROVIDED BY UNDERWRITER. Underwriter shall meet and confer with City, its representatives, staff, and attorneys for the purpose of developing and implementing a program of financing that will result in the financing of this Project. Specifically, to the extent that it is legally and financially feasible to do so, and to assure that the financing will be successfully consummated, Underwriter shall, with the authorization of City, perform in a diligent manner the following typical but not all inclusive services: One California Street, Suite 2630 • San Francisco, California 94111 • (415) 989-2300 / Member New York Stock Exchange, Inc. a. Review, analyze and evaluate available financial, legal and other relevant information and data which may have a bearing on a program to finance the Project. b. Confer and consult with City staff, bond counsel, and other involved City advisors regarding objectives, costs, revenue sources, cash flows, time frames, advantages and disadvantages, restraints and other applicable factors leading to selection of the types of financing procedures to be followed and the types of securities to be issued. C. Act as sole or managing underwriter of securities issued to finance the Project. d. Recommend to City the terms and conditions under which the securities are to be sold and issued, including times of sale, maturity schedules, call and redemption features, security provisions, application of proceeds obtained from sales of the securities, flow of funds, selection of bank trustee and other vendors and providers of services essential to the securities issuances, and other pertinent details. e. Assist City legal and bond counsel in the preparation of the resolutions, trust agreements, lease agreements and other legal documents related to issuances of the securities. f. In connection with each securities issuance, upon approval by City of final financing details, prepare the text and other material, print and distribute preliminary and final official statements in connection with marketing the securities. The official statements will describe the securities, the applicable portion of the Projects and sources of funds, provisions of the resolutions and other related legal documents regarding security for payment of principal of and interest on the securities, and the financial and economic background of City. The final official statement shall provide full disclosure of all material facts concerning the issue so that applicable provisions of pertinent federal law and administrative regulations are complied with. g. As required, confer with the municipal credit rating agency or agencies with regard to the assignment of ratings of the securities issues, and in connection therewith, present to these rating agencies all data and information to permit them to evaluate and rate the securities issues prior to their sale. RAUSCHER PIERCE REFSNES, INC. h. Investigate and, if cost effective, apply for debt service insurance, which will enable the securities to be offered with a AAA rating. Also, if and when appropriate, confer and consult with selected financial institutions regarding other credit enhancement methods, solicit and evaluate proposals and recommend to City the exact terms and conditions under which such other credit enhancement methods should be utilized and structured. i. Upon final approval by City of financing details, and upon direction by City to do so, market the securities utilizing its best efforts to obtain the lowest possible interest cost consistent with market conditions, maturity schedule and rating of the issue, and present to the City a Contract of Purchase which will detail the conditions and circumstances under which the City will be obligated to sell and the Underwriter will be obligated to purchase the securities. If after negotiations with the Underwriter in good faith, City and Underwriter fail to agree on the terms of sale of the securities, City would then be free to offer the securities for sale to others. j. Arrange for printing and delivery of the securities and receipt of proceeds from their sale. k. Provide for and coordinate the activities of all parties involved in the preparation and execution of final documentation and timely closing of each financing, delivery of funds or investments and release of the securities. 1. Prepare a portfolio for reinvestment of issue proceeds, if appropriate and requested, that will produce the highest yield consistent with the planned drawdown of funds and applicable arbitrage restraints. 2. DUTIES OF CITY. City agrees to: (i) cooperate with bond counsel and other attorneys who will prepare legal documents and proceedings, advise and counsel with respect to any litigation affecting the financing, review contracts and other legal documents and render an approving legal opinion of the securities; (ii) make available to Underwriter all personnel, information, reports, records, statistical data, financial statements, and legal documents and opinions that City has or obtains with respect to the RAUSCHER PIERCE REFSNES, INC. securities as may be reasonably requested by Underwriter in connection with the performance of its obligations hereunder. 3. REQUIREMENTS FOR ISSUANCE OF SECURITIES. The securities, at the time of delivery, shall be accompanied by an approving legal opinion of a nationally recognized bond counsel in a form acceptable to Underwriter as to the validity of the securities and the exemption of interest thereon from Federal and California income taxes, together with a non -litigation certificate and other usual closing papers in customary and acceptable form. Expenses (except as described in Paragraph 6 below) incurred in connection with the issuance of said securities may be paid from proceeds of sale of the securities. 4. COMPENSATION. Underwriter shall be compensated for its participation by receiving a percentage of the face (par) value of each issue of securities, if any are issued, pursuant to this Agreement. Said percentage of the face (par) value (hereinafter called "discount") shall range in amount from 1.4% to 1.75%, based essentially upon the amount and maturity schedule of the issue, its credit rating and market conditions at the time of its sale. Final agreement as to the amount of the discount shall be reached at the time of execution of the Contract of Purchase referred to in Section 1(i) hereof. The discount applicable to each issue of securities shall be payable at the time of closing such issue. 5. TERM AND EXCLUSIVITY OF AGREEMENT. Both parties hereto agree that, for a period of two (2) years from the date of due execution of this Agreement, Underwriter shall have the exclusive right to provide underwriting services with respect to the proposed securities. Further, it is agreed that the exclusive period above may be extended for ninety (90) days with the mutual written consent of Underwriter and City. There is no limit to the number of extensions allowable. RAUSCHER PIERCE REFSNES, INC. 6. COSTS AND EXPENSES. In the event that sale of securities is not consummated for any reason, City shall not be required to compensate Underwriters for any underwriting discount. However, in the case of each and every securities issue, whether or not Underwriter accepts delivery of or pays for the securities as set forth herein, Underwriter shall be under no obligation to pay, and City shall pay all expenses and costs in connection with the authorization, execution and sale of the securities to the Underwriter, including but not limited to: bond counsel and disclosure counsel legal fees and expenses; fees and expenses of the lessor; the cost of preparing, printing or reproduction, signing, transporting, delivery and safekeeping of the securities, legal documents, official statements and all ancillary papers, in reasonable quantities; liability, casualty, title and debt service insurance premium; trustee and paying agency fees and charges; CDAC fees; credit rating agency fees; and the costs of obtaining CUSIP numbers for the securities; shall be paid from the proceeds of the securities and to the extent not so paid shall be paid by City. In each case where discretion may be possible with respect to any such expense, at the specific request of City approval of the amount such expenses will be obtained in advance. 7. CONDITIONS FOR PERFORMANCE OF UNDERWRITER'S OBLIGATIONS Underwriter's obligations hereunder shall be subject: (i) to City performance of its obligations at or prior to the issuance and delivery of the securities, and (ii) to accuracy in all material respects, in Underwriter's judgement, of City's representations as of the time of the issuance and delivery of the securities. 8. CANCELLATION OF AGREEMENT BY CITY. City reserves the right to cancel this Agreement if Underwriter shall fail to perform the services specified in Section 1. hereof, except as provided in Section 7. immediately preceding, upon thirty (30) days written notice to Underwriter. 9. ENTIRE AGREEMENT. This agreement constitutes the entire agreement between the parties hereto, and supersedes all prior agreements and understanding, both written and oral, between the parties with respect to the RAUSCHER PIERCE REFSNES, INC. subject matter hereof and is made solely for, and shall bind and inure to, the benefit of the signatories and their respective successors and assigns, and no other person shall have or acquire any rights hereunder or by virtue hereof. RAUSCHER PIERCE REFSNES, INC. Vice President RAUSCHER PIERCE REFSNES, INC.