Resolution No. 2010-089RESOLUTION NO. 2010-89
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND
BARCLAYS CAPITAL FOR FINANCIAL ADVISORY SERVICES IN -
CONNECTION WITH PROJECT VOLT
WHEREAS, the City of Vernon ("City") -is a chartered municipal
corporation of the State of California; and
WHEREAS, the City desires consultants to provide certain
services for its Light -and Power utility.
NOW,_THEREFORE, BEITRESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon does
hereby find and determine that the recitals contained. hereinabove
are true and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the basic financial terms set forth in agreement with
Barclays Capital, a copy which is attached hereto as Exhibit A (the
"Agreement").
SECTION 3: Subject to revisions to the Agreement
satisfactory to the City ,Attorney, the City Council of the City of
Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the
Agreement with such revisions for, and on behalf of, the City and the
City Clerk or Deputy City Clerk is hereby authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk's designee, to send a fully
executed Agreement to Barclays.
SECTION 5: The City Clerk of the City of Vernon shall
certify to'the passage, approval and adoption of this resolution, and
the City Clerk of the City of Vernon shall cause this resolution and
the City Clerk's certification to be entered in the File of Resolutions
of the Council of this City.
APPROVED AND ADOPTED this 19th day of July, 2010.
Name: Hilario Gonzales
Title: Mayor
AT ST:
Willard G. uch City Clerk
-2-
STATE .OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES )
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution., being Resolution
No. 2010-89, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council duly
held on Monday, July,19, 2010, and thereafter was duly signed by the
Mayor or Mayor Pro-Tem of the City of Vernon.
Executed -this day of July, 2010, at Vernon, California.
Willard ag c i, City Clerk
(SEAL)
3
July 12, 2010
City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Attn: Eric Fresch
Special Finance Counsel
Dear Eric:
This letter agreement (this "Agreement") will confirm the understanding and agreement between Barclays Capital Inc. ("Barclays Capital") and
the City of Vernon (the "City") as provided below. The terms of this Agreement shall apply to all services provided by Barclays Capital to the
City in connection with its engagement hereunder.
1. The City hereby engages Barclays Capital on an exclusive basis for the purpose of providing financial advisory services to the City
with respect to a Transaction (as defined below) involving the City's electric transmission and distribution system (the "Electric System")'
2. Barclays Capital hereby accepts the engagement described in paragraph 1 and, in that connection, agrees to:
(a) provide general business, financial and valuation 'analyses of the Electric System;
(b) develop, update and review with the City on an ongoing basis a list and status of parties which might be interested in a
Transaction involving the Electric System, and only contact parties approved by the City;
(c) assist the City in arranging meetings and / or conference calls with the approved list of parties to discuss their respective
interests in a Transaction involving the Electric System;
(d) coordinate the distribution to and execution of a confidentiality agreement, in a form to be agreed upon by the City, with each
prospective counterpany;
(e) upon the City's request, assist the City in preparing a briefing memorandum and other marketing materials; concerning the Electric
System, to be shared with prospective counterparties;
(f) assist the City in developing a data room for the Electric System and managing access to the data room by prospective
counterparties;
(g) manage the overall auction process including the day-to-day diligence and site visits associated with the process;
t For specificity, Vernon's Electric System is a fully integrated electric utility, including electric generation,
transmission, distribution, and customer service functions. The electric system serves the entire 5.2 square mile area
of the City, -serving -primarily industrial customers. Vernon's transmission and distribution systems are
interconnected with the SCE system at the CAISO Laguna Bell substation. The City owns the facilities within the
City limits for the interconnection of the Vernon electric system with the SCE system. The City owns and operates
all the transmission and distribution facilities within the City limits. Distribution facilities include approximately 75
miles of 66kV power line, approximately 180 miles of 16 kV, and approximately 174 miles of 7kV power lines
(most of which are above ground, 150 miles of conductors are underground). The electric system has eight active
primary substations, three of which are dedicated customer substation and five are regular substations. In addition,
the City owns and operates two additional gas turbines, as well as a fiber optics communications system.
A CLAY
CAPITAL
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(h) consult with and advise the City concerning financing, hedging, and asset management opportunities that could be undertaken by
a prospective counterparty in connection with a Transaction involving the Electric System; and
(i) assist the City in negotiating transactional contracts with any prospective counterparty.
3. For purposes of this Agreement
(a): A "Transaction" shall mean, with. respecttothe Electric System, any transaction orseriesor combination of related transactions,
other than in the ordinary course of business, whereby, directly or indirectly, a material interest (including any economic interests)
in, or a -material portion' of the assets of, such Electric System is sold to, acquired by or otherwise transferred to a counterparty
or counterparties for cash or any other consideration, including, without limitation, by means of a sale or exchange of assets or
capital stock, other securities or ownership interests, a merger or consolidation, a leveraged buy-out, a minority investment, the
formation of a joint venture or partnership; a derivative or hedging transaction or any similar transaction. For the avoidance of
doubt, a "Transaction" shall include (i) the monetization of future cash flows of the Electric System (or similar or related
transactions) and (ii) the monetization and/or sale (or other transfer) of a material interest (including any economic interests) in, or
a material portion of, a franchise, SPV or similar entity which owns and/or houses all or a portion of the assets of (or owns an
interest (including any economic interests) in) the Electric System.
(b) Subject to subparagraph 3(c) below, "Consideration" shall mean (i) thegross value of all cash, securities and other property
payable by an acquirer and/or its affiliates in connection with a Transaction, (ii) in the case of a Transaction involving a joint
venture or partnership, the gross value of all cash, securities and assets contributed by the City and any other parties to such
joint venture or partnership, or (iii) in the case of a Transaction involving a spin-off or a split -off, the equity value of such spun -
off or split -off entity. The value of any such securities (whether debt or equity) or other property shall be determined as
follows: (A) the value of securities for which there is an established public market will be equal to the closing market price on
the last trading day prior to the public announcement of such Transaction and (B) the value of securities that have no
established public market, and the value of consideration that consists of other property, shall be the fair market value: thereof.
"Consideration" also shall be deemed to include the aggregate principal amount of any indebtedness for money borrowed ,and any
capital leases, unfunded pension liabilities and guarantees, if any, of the City or its subsidiaries at the time of public
announcement. If the Consideration involved in a Transaction is paid in any currency other than the U.S. dollar, the value of
such foreign currency for purposes hereof shall be converted into U.S. dollars at the prevailing exchange rate on the date on
which such Consideration is paid.
(c) If a Transaction is structured in such a way so as to provide for the transfer of substantially all of the assets of the Electric
System or any of its assets or subsidiaries but the retention of other assets of the Electric System or such assets or
subsidiaries, as the case may be, including, without limitation, cash, cash equivalents, investments, inventories and receivables,
such retained assets or subsidiaries shall nevertheless be deemed to be part of the Consideration involved in such Transaction
as follows: (i) with respect to investments, in an amount equal to the market value of such investments; (ii) with respect to
inventories and receivables, in an amount equal to the book value thereof, and (iii) with respect to any other assets, in an
amount to be reasonably determined by the parties hereto. Notwithstanding the foregoing, if the Transaction terms are altered by
the City after a counterparty to the Transaction has been selected by the City and such alteration reduces the Consideration to
be paid by such counterparty to the City, an amount equal to such reduced Consideration shall be deemed to be part of the
Consideration (provided that this sentence shall not apply if the reduction in the Consideration is due to circumstances or
dltlo'na--&ftternal—to the —City),
4. As compensation for the services rendered by Barclays Capital hereunder, the City agrees as follows:
(a) If, during the term of Barclays Capital's engagement hereunder or at any time during a period of 12 months following the
effective date of termination of Barclays Capital's engagement hereunder, an agreement to effect a Transaction with respect to the
Electric System is entered into or a Transaction with respect to the Electric System is consummated, the City shall pay Barclays
Capital an advisory fee with respect to such Transaction of $8 million ("Base Fee") plus an incentive fee of 2% on the amount
of Consideration greater than $800 million in connection with such Transaction (the "Incentive Fee",together with the Base Fee,
the "Advisory Fee"). The Advisory Fee shall be payable by the City to Barclays Capital in cash upon closing of a Transaction
with respect to the Electric System.
(b) If discussions regarding a Transaction are terminated or a Transaction does not occur for any reason whatsoever and the City
and/or any of its affiliates is paid a break-up, termination or similar fee by the prospective acquirer, counterparty or any other
person in connection therewith during the term of Barclays Capital's engagement hereunder or in connection with a Transaction
for which a fee would otherwise have been payable pursuant to subparagraph 4(a) above, the City shall pay Barclays Capital,
promptly upon receipt thereof, a fee equal to the lesser of (1) 50% of such break-up, termination or similar fees or (ii) the
BARCLAYS
CAPITAL
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amount that would otherwise have been payable by the City to Barclays Capital if such Transaction had been consummated in
accordance with its terms.
(c) Any amounts actually paid by the City pursuant to subparagraph 4(a)(i) shall be creditable once against any fees that
subsequently become payable pursuant to subparagraph 4(b).
5. As further consideration for the services being provided by Barclays Capital and inadditionto a Transaction or in lieu thereof, the
City agrees that Barclays Capital shall have the right to arrange or lead any financing, refinancing, risk management transactions,
liability management and any other investment banking and financial advisory services related to the Transaction during the term of
Barclays Capital's engagement hereunder and for a period of 12 months following or termination of this engagement. If Barclays
Capital agrees to participate in any such transaction, Barclays Capital shall be paid fees for its services which are customary for
Barclays Capital for the services rendered, provided, that Barclays Capital shall be entitled to retain at least 50% of the overall
economics of any offering, financing or placement of securities. In addition, any participation in any transaction referred to in this
paragraph shall be on a lead -managed, sole book -running, lead arranger, sole counterparty or sole advisor basis, as the case may be.
Notwithstanding the above or any oral representations made to the contrary, this Agreement does not constitute a commitment by
Barclays Capital or its affiliates to participate in any such transaction and such a commitment will exist only upon the execution of a
separate, written agreement containing terms and conditions applicable to such transaction.
6. After considering both the potential conflicts inherent in providing acquisition financing or related services while concurrently providing
sell -side financial advisory services, as well as the potential benefits associated with Barclays Capital providing such acquisition financing
or relatedservices, the City consents to and agrees that, to the extent any prospective counterparty to a Transaction requires or is
contemplating any financing in order to consummate such Transaction (including, without limitation, any interim or permanent senior or
subordinated debt financing or the sale or placement of any debt or equity securities) or related capital planning and/or risk
management services (including, without limitation, execution of interest rate, foreign exchange, credit and commodities hedging or equity
derivative transactions), Barclays Capital, through itself and one or more of its affiliates, may offer to such counterparty and participate
in such acquisition financing or related services in respect of such Transaction.
7. The City shall reimburse Barclays Capital, promptly upon request, for any reasonable expenses incurred, however Barclays will require
City approval for any significant professional and legal fees and disbursements.
8. The City shall:
(a) furnish to Barclays Capital the names of all parties with which the City has had discussions or contacts prior to or during the
term of Barclays Capital's engagement hereunder concerning a Transaction; and
(b) make available to Barclays Capital all information concerning the business, assets, liabilities, operations, financial condition and
prospects of the Electric System or the City . which Barclays Capital reasonably requests in connection with the performance of its
obligations hereunder. The City shall promptly advise Barclays Capital regarding any material developments or matters relating to
the City, the Electric System or which may otherwise affect the Transaction or related financing which occur during the term of
Barclays Capital's engagement hereunder.
(c) All such information provided by or on behalf of the City shall be complete and accurate and not misleading in all material
respects, and Barclays Capital shall be entitled to, rely upon the accuracy and completeness of all such information without
i
independent verification.
9. The parties acknowledge that the City may refuse to discuss or negotiate any Transaction or related financing with any party for any
reason whatsoever and may terminate negotiations with any party at any time.
10. The City agrees that in any press release announcing a transaction contemplated by this Agreement, the City will include in such
press release a reference to Barclays Capital's role as financial advisor to the City with respect to such transaction. The City agrees
that Barclays Capital has the right following the earlier of such public announcement by the City or the closing of a Transaction or
related financing to place a press release in financial and other publications at its own expense describing its services to the City
hereunder; provided, that "Barclays Capital will submit a copy of any such press release to the City for its prior approval, which
approval shall not be unreasonably withheld or delayed,
11. Except as required by applicable law or legal process, any written or oral advice to be provided by Barclays Capital under this
Agreement is exclusively for the information of the City, and such advice and the terms of this Agreement shall not be disclosed
publicly or made available to third parties without the prior approval of Barclays Capital, other than to the City Council and the City's'
employees, consultants and advisors who have a need to know and have been informed by the City of the confidential nature of such
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advice and accordingly such advice shall not be relied upon by any person or entity other than the City. Notwithstanding the
foregoing, Barclays Capital acknowledges that the agenda and proceedings of the City Council are public and of public record, as are
any agreements entered into by the City; provided, that the City shall use reasonable efforts, consistent with its obligations under law,
to maintain as confidentialany information provided by Barclays Capital pursuant to its engagement hereunder. The City acknowledges
that (I) Barclays Capital is not providing any advice on tax, legal, regulatory or accounting matters and that it will seek the advice of
its own professional advisors for such matters and make an independent decision regarding any transaction contemplated herein based
upon such advice and (ii) the determination of the proper application of United States generally accepted accounting principles or other
accounting, tax or regulatory treatment to an actual transaction is the sole responsibility of the City.
12. In consideration for the services to; be provided by Barclays Capital hereunder, the City hereby agrees to indemnify and hold harmless
each of Barclays Capital, its affiliates and their respective directors, officers, employees; advisors and other representatives (each, an
"Indemnified Party") against any and all losses, claims, damages, expenses and liabilities, joint or several (collectively, "Liabilities"), to
which an Indemnified Party may become liable, arising out of or otherwise relating to this Agreement (collectively, the "Indemnity
Coverage"), unless a court of competent jurisdiction determines in a final, non -appealable judgment that the Liabilities directly resulted
from the gross negligence or willful misconduct of such Indemnified Party. The City further agrees to reimburse each Indemnified Party
promptly -upon request for all out-of-pocket expenses (including reasonable attorneys' fees and expenses) as they are incurred in
connection with the investigation of, preparation for the defense of or providing evidence in, any action, claim, suit, proceeding or
investigation, whether pending or threatened (each and collectively, an "Action"), arising out of or otherwise relating to the Indemnity
Coverage. The City also agrees That no Indemnified Party shall have any liability of any nature to the City or any other person
asserting any Action on behalf of or in right of the City, whether arising out of or otherwise relating to the Indemnity Coverage,
unless a court of competent jurisdiction determines in a final, non -appealable judgment that such Liabilities resulted directly from the
gross negligence or willful misconduct of such Indemnified Party.
Promptly after receipt by an Indemnified Party of service of any complaint or actual notice of the commencement of any Action with
respect to which indemnification is being sought hereunder, such Indemnified Party will notify the City in writing of such complaint or
of the commencement of such Action, but failure to so notify the City will relieve the City from the obligation to indemnify such
Indemnified Party only if and only to the extent the City suffers actual prejudice as a result thereof, and will not in any event relieve
the City from any other obligation or liability that the City may have to any Indemnified Party otherwise than in accordance with the _
provisions hereof. If the City so elects, the City will assume the defense of such Action, in which case, the Indemnified Party shall
not be entitled to reimbursement for any costs it incurs for defense (other than reasonable costs of investigation, assisting the City in
its defense and providing evidence in or preparing to serve or serving as a witness) in connection therewith; provided, however, that if
the Indemnified Party reasonably determines that having common counsel would present such counsel with a conflict of interest or if
the defendants in or targets of any such Action include both an Indemnified Party and the City and such Indemnified Party reasonably
concludes that there may be legal defenses available to it or other Indemnified Parties' that are different from or in addition to those
available to the City, or if the City fails to assume the defense of such Action or to employ counsel reasonably satisfactory to such
Indemnified Party in a timely manner, then such indemnified Party may employ separate counsel to represent or defend it in any such
Action and the City will pay the reasonable and customary fees and disbursements of such counsel; provided, however, that the City
will not be required to pay the fees and disbursements of"more than one separate counsel (in addition to local counsel) for such
Indemnified Parties in any jurisdiction in any single action or proceeding. In any Action the defense of which the City assumes, the
Indemnified Party will have the right to participate in such litigation and to retain its own counsel at such Indemnified Party's own
expense.
If for any reason the foregoing indemnity or reimbursement is unavailable or insufficient, the City shall contribute to amounts paid or
payable by Barclays Capital and each other Indemnified Party in respect of such Liabilities in such proportion as is appropriate to
reflect The relative benefits and relative faults of the City, on the one hand, and Barclays Capital, on the other hand, along with any
other equitable considerations, in connection with the matters to which such Liabilities relate,
The City agrees that the indemnification, reimbursement and contribution commitments set forth in this paragraph 12 shall apply whether
or not any Indemnified Party is a formal party to any such Action and the rights of the Indemnified Parties referred to in this
paragraph 12 shall be in addition to any other rights that any Indemnified Party may otherwise have against the City. The City
agrees that, without Barclays Capital's prior written consent, it will not agree to any settlement of, compromise or consent to the entry
of any judgment in or other termination of any Action (each and collectively, a "Settlement") in respect of which indemnification could
be sought hereunder unless (i) such Settlement includes an unconditional release of each Indemnified Party from any liabilities arising
out of such Action and does not include any findings of fact or admissions of culpability as to the Indemnified Party and (ii) the
parties agree 'that the terms of such Settlement shall remain confidential, to the extent permitted by law.
Additionally, the parties agree that in any legal proceeding between the parties related to the terms of this Agreement, including with
respect to any disputes, breaches or enforcement of the terms contained herein, the losing party as determined by a court of
competent jurisdiction or any arbitral authority shall reimburse the prevailing party for any legal and other expenses reasonably incurred
by the prevailing party in connection with such legal proceeding.
BARCLAYS -
CAPITAL
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13. Nothing in this Agreement, expressed or implied, is intended to confer or does confer on any person or entity otherthan the parties
hereto or their respective successors and assigns, and to the extent expressly set forth herein, the Indemnified Parties, any rights or
remedies under or by reason of this :Agreement or as a result of the services to be rendered by Barclays Capital hereunder. The
City acknowledges that Barclays Capital has been retained hereunder solely as a financial advisor of . the City with respect to any
Transaction and is engaged hereunder as an independent contractor. The City further acknowledges that Barclays Capital is not acting
as an agent of the City or in a fiduciary capacity (whether contractual or extra -contractual) with respect to the City or its stakeholders,
employees; creditors or any other third party and agrees that it shall not make,- and hereby waives, any claim based on an assertion
of any such fiduciary capacity. The City agrees that Barclays Capital is not assuming any duties or obligations other than those
expressly set forth in this Agreement.
14. The City acknowledges :and agrees that:
(a) Barclays Capital is a full service securities firm engaged in a wide range' of businesses and from time to time; in the ordinary
course of its business, Barclays Capital or its affiliates will hold long or short positions and trade or otherwise effect transactions
for their own account or the account of their customers in debt orequitysecurities or loans (or any derivatives thereof) of the
companies which may be the subject of the transactions contemplated by this Agreement. Such trading is conducted, of course,
with strict informational barriers in place to protect the confidentiality of client information and in strict compliance with applicable
securities laws. During the course of Barclays Capital engagement with the City, Barclays Capital or its affiliates may have in
their possession material, non-public information regarding other companies that could potentially be relevant to the City or the
transactions contemplated herein but which cannot be shared due to an obligation of confidence to such other companies.
(b) Barclays Capital's research analysts and research departments are independent from Barclays Capital's investment banking division
and are subject to certain regulations and internal policies. Barclays Capital's research analysts may hold and make statements
or investment recommendations and/or publish research reports with respect to the transactions contemplated herein or any
counterparly thereto that differ from or are inconsistent with the views or advice communicated by Barclays Capital's investment
banking division.
(c) Barclays Capital may arrange for all or any of the services fo be performed by it hereunder to be performed by any of its
respective direct or indirect holding companies and/or any direct or indirect subsidiaries of Barclays Capital or such holding
companies:
15. The City and Barclays Capital each represent to the other that there is no other person or entity that is entitled to a finder's fee,
brokerage commission or other payment in connection with the transactions contemplated by this Agreement as a result of any
agreement or understanding with it
16. The term of Barclays Capital's engagement hereunder shall extend from the date hereof until terminated as set forth below. Subject
to the provisions of paragraphs 3 through 7, 8(c), 9, 11 through 15, 17 and 19, which shall survive any termination of this
Agreement, either party may terminate Barclays Capital's engagement hereunder at any time by giving the other party at least 10 days'
prior written notice:
17. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions
of this Agreement, which shall remain in full force and effect. This Agreement may be executed in counterparts, each such
counterpart shall be deemed an original and all such counterparts shall together constitute one instrument.
18. This Agreement contains the entire understanding of the parties hereto relating to the matters set forth' herein and supersedes all prior
drafts, correspondences or communications with respect hereto. This Agreement may not be amended or modified except in writing
signed by each of the parties and shall be governed by and construed and enforced in accordance with the laws of the State of
New, York. The City and Barclays Capital hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States District Courts located in the County of New York for any lawsuits, actions
or other proceedings arising out of or relating to this Agreement and agree not to commence any such lawsuit, action or other
proceeding except in such courts. The City further agrees that service of any process, summons, notice or document by mail to the
City's' address set forth above shall be effective service of process for any lawsuit, action or other proceeding brought against the City
in any such court. The City and Barclays Capital hereby irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding arising out of or relating to this Agreement in the courts of the State of New York or the
United States District Courts located in the County of New York, and hereby further irrevocably and unconditionally waive and agree
i
not to plead or claim in any such court that any such lawsuit, action or other proceeding brought in any such court has been
brought in an inconvenient forum. Any 'right to trial by jury with respect to any lawsuit, claim or other :proceeding ansirig out of or
relating to this Agreement or the services to be rendered by Barclays Capital hereunder Is expressly and Irrevocably waived.
BARS ' Y
CAPITAL
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19. The City represents and warrants, based upon the advice of the 'Office of th? City Attorney of the City of Vernon, that this
Agreement has been duly and validly authorized, executed and delivered by the City and, assuming due authorization and execution
hereof by Barclays Capital, constitutes a valid, legal and binding obligation of the City enforceable against it in accordance with its
terms. The obligations of the City contained herein, as the context may require, shall be binding upon the City's Council, Council
members, .administrators, managers and other officials .(collectively, the "City Officials") in each of their official capacities as
representatives of the City. Without Independent verification, Barclays Capital shall be entitled to rely on the statements and actions of
the City Administrator as may be reasonable under the Circumstances in performing its services hereunder.
[The rest of this page has Jntentionally been left blank.]
BA CLAY
CAPITAL
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If the foregoing correctly sets "forth the understanding and agreement between Barclays Capital and the City, please so indicate in the space
provided for that purpose below, whereupon this letter shall constitute a binding agreement as of the date first written above.
BARCLAYS CAPITAL INC.
By:
Name: John Lange
Title: Managing Director,
Global Head of Power and Utilities
AGREED:
CITY OF VERNON
By:
Name:
Title:
ATTEST:
By:
Name: Willard G. Yamaguchi
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Laurence S. Wiener
Title: City Attorney-
STAFF REPORT
City Attorney Department
DATE: July 19, 2010
TO: The Honorable Mayor and Members of the City Council
FROM: Laurence S. Wiener, City Attorney
RE: Consultant Contracts for Project Volt
Background:
As Mr. Eric Fresch has previously reported to the City Council, he has been assembling
a consultant team to explore non_ traditional methods to raise capital for the Light and,
Power utility. He has titled this effort "Project Volt."
Discussion:
Mr. Fresch is now proposing that the City enter into three contracts with consultants for
the purpose of further exploring Project Volt.
The first contract would be with AssociatedEnergyPartners ("AEP"). This contract
would be for financial investment and energy consulting services. The principal of AEP
is Eric Fresch and in addition to providing his own expertise, Mr. Fresch has indicated
that AEP intends to subcontract with other consultants, including Bond Logistics, to
0 of the val, le of
the transaction. No fees would be owed if the transaction does not close.
The second contract would be with Barclays Capital for financial advisory services. The
fee for Barclays will be $8 million plus 2% of the value of the transaction in excess of
$800 million. ` As with the contract with AEP, the fees are paid only upon closing the
transaction.
The third contract is with Latham and Watkins for legal services. This contract provides
that the City will pay a fee of 0.7% of the gross proceeds raised by the transaction. In
addition, Latham will be paid a fee of $150,000 per month beginning June 1. If the
transaction is completed, then the total amount due to Latham and Watkins will be
reduced by the monthly fees that have already been paid. If the transaction is never
completed, then Latham will keep the monthly fee as its compensation,
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Additionally, the Latham contract includes new rates for work other than Project Volt.
These new rates are for work to (1) explore power pooling, or (2) advise the City in
efforts to acquire generation resources (e.g., acquire a power plant, or purchase power
from another entity). For this work, Latham would be paid at 80% of its full rates plus
0.4% of the transaction value.
Each of the contracts were provided to the City midday on July 14th. Upon initial review
of the contracts, it appears that each contract requires some revision to ensure that the
contracts will not conflict with each other, will clearly define the scope of the project to
which the contracts apply, and do not include certain provisions that are unacceptable
to the City. However, if the City Council finds the basic financial terms of the contracts
acceptable and wishes to allow Project Volt to move forward as quickly as possible, the
City Attorney's Office would recommend that the City Council approve the basic
financial terms presented in the contracts and authorize the Mayor to execute the
contracts, with revisions satisfactory to the City Attorney.
Recommendation:
if the City Council finds the basic financial terms of the contracts acceptable and wishes
to allow Project Volt to move forward as quickly as possible, the City Attorney's Office
recommends that the City Council approve the basic financial terms presented in the
contracts and authorize the Mayor to execute the contracts, with revisions satisfactory
to the City Attorney.
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Juarez, Debbie
From: Juarez, Debbie
Sent: Monday, December 27, 2010 3:08 PM
To: Muro, Evangelina
Subject: Barclays Capital Agreement - Res. No. 2010-89
Per Kristen — The file is to be noted that the parties never came to agreement and that this agreement will not be
executed. It does not need to be repealed.
---------------------------------------------------------
Deborah Juarez
Records Wanagement Assistant
City of Vernon - City Cferk's Office
4305Santa 'Fe Avenue
Vernon, CA 90058
(323) 583-8811
12/27/2010