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HomeMy WebLinkAboutRes 2020-02 Authorizing Bond Counsel Engagement AgreementCity of West University Place Harris County, Texas RESOLUTION 2020-02 RESOLUTION APPROVING BOND COUNSEL ENGAGEMENT AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § CITY OF WEST UNIVERSITY PLACE § WHEREAS, the City of West University Place, Texas (the "City") intends to issue its bonds, notes and other public securities from time to time (collectively, "Obligations") to finance and refinance City facilities, projects and for authorized purposes and, in connection with each issuance of Obligations, the City's City Council (the "City Council"), working with the City's consultants, advisors and attorneys, must prepare (or provide for the preparation of) a transcript of proceedings, including orders, resolutions, certificates, agreements and other instruments to evidence compliance with applicable federal income tax laws governing the issuance of tax- exempt obligations (collectively, "Proceedings"); WHEREAS, to assist and advise the City Council in connection with the preparation of the Proceedings and to ensure that the Proceedings are prepared and approved in accordance with applicable law, the City Council anticipates having a substantial need for legal counsel to advise the Board and the City in connection with, and to provide specialized legal services relating to, the preparation of the Proceedings and the implementation of procedures required in connection with the issuance of the Obligations and the use and disposition of the proceeds thereof, and such legal services cannot be adequately performed by the personnel of the City based upon the specialized nature of the legal services; WHEREAS, the specialized legal services cannot reasonably be obtained from attorneys in private practice under a contract providing only for the payment of hourly fees, without regard to the outcome of the matter, because of the nature of the matter for which the services will be obtained; to wit, the matter comprises the issuance of Obligations which will serve as the sole source of payment for the legal services; and WHEREAS, the City Council wishes to obtain such specialized legal services from attorneys with substantial previous experience serving as bond counsel by engaging the law firm of Orrick, Herrington & Sutcliffe LLP, Houston, Texas ("Orrick"), a nationally recognized law firm in the field of municipal law and state and federal laws governing the issuance of bonds, notes and other public securities; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE, TEXAS: 4149-5412-7649.1 Section 1. The declarations, determinations and findings declared, made and found in the preamble to this Resolution are hereby adopted, restated and made a part of the operative provisions hereof. Section 2. The Mayor of the City is hereby authorized and directed to execute the engagement agreement by and between the City and Orrick in substantially the form attached to this Resolution as Exhibit A, for the purpose of engaging such firm as bond counsel to provide specialized legal services described in the engagement agreement relating to the preparation of the Proceedings in connection with the issuance of Obligations from time to time and the implementation of procedures required in connection therewith. Section 3. It is officially found, determined and declared that the meeting at which this Resolution was adopted was open to the public and public notice of the time, place, and subject matter of this meeting and the notice required by Section 2254.1036, Texas Government Code, was given, all as required by Chapter 551, Texas Government Code. Section 4. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. [Execution Page Follows] 4149-5412-7644.1 APPROVED AND ADOPTED on January 27, 2020. Digi u0i00 ir�9 o City Secretary, Thelrrl-Gilliam City of West University Place, Texas RECOMMENDED: .ity Manager, Dave Beach City of West University Place, Texas APPROVED AS TO FORM: City Attorney, Alan Petrov City of West University Place, Texas 4149 5412-7649.1 SIGNED: Mayor, Bob Higl City of West Uni EXHIBIT A (follows this page) 4149-5412-7649.1 Exhibit A January 12, 2020 Honorable Mayor and City Council City of West University Place 3800 University Boulevard West University Place, Texas 77005 Re: Bond Counsel Services for City of West University Place Dear Mayor and City Council Members: Orrick Orrick, Herrington & Sutcliffe LLP 609 Main Street 40th Floor Houston, TX 77002-3106 +1713 658 6400 orrick.com Marcus Seitz (713) 658-6420 mdeitz(Porrick.com This letter and the attached Standard Terms of Engagement (the "Agreement") will set out the terms under which Orrick, Herrington & Sutcliffe LLP ("Bond Counsel") will serve as bond counsel with respect to bonds that the City of West University Place (the "Issuer") intends to issue, subject to voter approval as necessary, and with respect to any equipment notes or similar contractual obligations, tax and/or revenue notes and for any refunding or variable rate bonds of the Issuer, whether currently outstanding or to be issued. Such bonds, notes and obligations are collectively referred to in this letter as the "Bonds." We are very pleased to have the opportunity to serve as Bond Counsel for the Issuer. The following is based on our standard form of engagement letter. We do not intend this letter to be difficult to understand or filled with "legalese." Please let us know if there is anything you do not fully understand or if there are any changes you would like us to make in order to better tailor the terms of our engagement to the needs of the Issuer. 1. Scope of Services. Bond Counsel shall perform the following legal services in connection with any issuance of Bonds: (1) Assistance with the conduct of Issuer general obligation elections and the preparation of election documents; (2) Analysis of the structure of the Bonds under Texas law and the eligibility to finance with tax-exempt bonds under federal tax law. (3) Consultation with representatives of the Issuer, the financial adviser, underwriters, underwriters' counsel, and others, with respect to the timing, terms, and legal structure of the proposed Bonds. (4) Preparation of documents to be adopted or entered into by the Issuer required for the authorization, sale and issuance of the Bonds (excluding the Bond Purchase Agreement to be prepared by underwriters' counsel), including preparation of the Bond Order, Paying Agent Registrar Agreement, Escrow Agreement and the other Bond Documents (the "Major Legal Documents"). (5) Preparation of the Continuing Disclosure Agreement pursuant to United States Securities and Exchange Commission Rule 15c2-12. 4142-7836-3425.2 Orrick Page 2 (6) Preparation of summaries of the Major Legal Documents included in the Official Statement. (7) Review of any investment agreement entered into at or prior to closing, and the procedures by which bids are solicited, in each case for compliance with federal tax laws related to tax -exemption of interest on the Bonds. (S) Attendance at such meetings or hearings of the Issuer and working group meetings or conference calls as Issuer may request. After the closing of any series of the Bonds and upon specific request of the Issuer, providing assistance to the Issuer concerning questions and issues that may arise prior to the maturity of the Bonds. In rendering opinions and performing legal services under this Agreement, Bond Counsel shall be entitled to rely on the accuracy and completeness of information provided and certifications made by, and opinions provided by counsel to, the Issuer and other parties and consultants, without independent investigation or verification. Knowledge of attorneys and non -attorneys at Bond Counsel's firm not working directly any Bond issue will not be imputed to Bond Counsel nor shall there be any duty on the part of Bond Counsel to make any inquiry of such other attorneys or non -attorneys. Bond Counsel services are limited to those specifically set forth above. Bond Counsel services do not include representation of the Issuer or any other party to the transaction in any litigation or other legal or administrative proceeding, audit or investigation involving any of the Bonds or any related matter. Bond Counsel services do not include any financial advice or analysis or data or mathematical verification. Also, Bond Counsel services will not include services related to rebate or other post issuance tax compliance or ongoing continuing disclosure filings (although Bond Counsel may be available for separate engagement to provide such services pursuant to separate a contract). 2. Fees. Bond Counsel will be paid a fixed fee for each series of Bonds issued by the Issuer, equal to the greater of $15,000 or $0.95 per $1,000 of the proceeds amount of each series of Bonds issued subject to the following adjustments and assumptions. The fixed fee would be adjusted by adding $5,000 for additional federal tax work required in the event of the issuance of refunding Bonds and $10,000 for work relating to the conduct of a Bond election (contingent on voter approval of such election and to be paid at the time of the issuance of the Bonds approved in such election). 3. Expenses. In addition to the fees provided above, Issuer will pay Bond Counsel for costs and expenses (direct and indirect) incurred in connection with the services, including (without limitation) Texas Attorney General review fees, third -party translation services related to a bond election, filing and publication, document reproduction and delivery, long distance telephone, telecopy, word processing, computer research, secretarial overtime, closing transcripts and other similar expenses. Any filing, publication or printing costs required in connection with the Bonds shall be paid directly by Issuer, but if paid by the Bond Counsel on behalf of Issuer, shall be reimbursed to Bond Counsel on demand. Payment in respect of such costs and expenses will be fixed at $1,500, exclusive of the Texas Attorney General review fees, third -party translation services related to a bond election and extraordinary expenses, provided, however, that any extraordinary expenses shall be approved by the Issuer prior to such expenses being incurred. 4142-7$36-3425.2 Orrick Page 3 4. Payment. Fees and expenses shall be payable by Issuer at or after issuance of each series of Bonds. Payment of all fees and expenses hereunder shall be made from proceeds of the Bonds, or otherwise as mutually determined by the Issuer and Bond Counsel and shall be entirely contingent upon issuance of each series of Bonds. 5. Termination of Agreement, Legal Services and Other Obligations. This Agreement shall be for a term of three years beginning February 3, 2020 and ending February 2, 2023, which may be extended for an additional two years upon mutual agreement of the parties hereto. This Agreement and all legal services to be rendered under it may be terminated by the Issuer at any time by written notice, with or without cause. 6. Nature of Engagement, Client Relationships with Other Parties. The role of bond counsel, generally, is to prepare or review the proceedings for issuance of the bonds, notes or other evidence of indebtedness and to provide a legal opinion with respect to the validity thereof and other subjects (usually including the tax status of interest thereon) addressed by the opinion. Consistent with the historical origin and unique role of bond counsel, and reliance thereon by the public finance market, Bond Counsel's role as bond counsel under this Agreement is to provide opinions and related legal services that represent an objective judgment on the matters addressed rather than the partisan position of an advocate. Issuer acknowledges that Bond Counsel regularly performs legal services for many private and public entities in connection with a wide variety of matters. For example, Bond Counsel has represented, is representing or may in the future represent other public entities, underwriters, trustees, rating agencies, insurers, credit enhancement providers, lenders, contractors, suppliers, financial and other consul tants,:advisors, accountants, investment and swap providers/brokers, providers/brokers of derivative products and others who may have a role or interest in the Bond financing or that may be involved with or adverse to the Issuer in this or some other matter. Bond Counsel agrees not to represent any such entity in connection with the any Bond financing, during the term of this Agreement, without the consent of the Issuer. Given the special, limited role of bond counsel described above, Issuer acknowledges and agrees that no conflict of interest exists or would exist, and waives any actual or potential conflict of interest that might be deemed to arise, now or in the future, from this Agreement or any such other relationship that Bond Counsel may have had, have or enter into, and the Issuer specifically consents to any and all such relationships. 7. Limitation of Rights to Parties. Nothing in this Agreement or in any of the documents contemplated hereby, expressed or implied, is intended or shall be construed to give any person other than Issuer and Bond Counsel any legal or equitable right or claim under or in respect of this Agreement, and this Agreement shall inure to the sole and exclusive benefit of the Issuer and Bond Counsel. 8. Counterparts. This Agreement may be executed in any number of counterparts and each counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same Agreement. 9. Anti -Boycott Verification. As required by Chapter 2270, Government Code, Bond Counsel hereby verifies that Bond Counsel does not boycott Israel and will not boycott Israel through the term of this agreement. For purposes of this verification, "boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm 4142-7836-3425.2 ornck Page 4 on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli -controlled territory, but does not include an action made for ordinary business purposes. 10. Foreign Terrorists Organizations. Pursuant to Chapter 2252, Texas Government Code, Bond Counsel represents and certifies that, at the time of execution of this agreement neither Bond Counsel, nor any wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of the same (i) engages in business with Iran, Sudan, or any foreign terrorist organization as described in Chapters 806 or 807 of the Texas Government Code, or Subchapter F of Chapter 2252 of the Texas Government Code, or (ii) is a company listed by the Texas Comptroller of Public Accounts under Sections 806.051, 807.051, or 2252.153 of the Texas Government Code. The term "foreign terrorist organization' in this paragraph has the meaning assigned to such term in Section 2252.151 of the Texas Government Code. If the foregoing is acceptable to the Issuer, please so indicate by returning the enclosed copy of this letter, signed by an authorized officer, and retain an original for your files. ORRICK HERRINGTON & SUTCLIFFE, LLP CITY OF WEST UNIVERSITY PLACE, TEXAS $y: By: Marcus Deitz, Partner Bob Higley, Mayor 4142-7836.3425.2 0 Orrick STANDARD TERMS OF ENGAGEMENT Except as modified in writing by the accompanying engagement letter or in another agreement signed by the Client and Orrick, the following provisions shall apply to the relationship between Orrick and the Client. 1. Client Our engagement is only on behalf of the person(s) or entity(s) identified in the engagement letter accompanying these Standard Terms of Engagement. Our representation of the Client, does not encompass any officer, director, employee, owner, principal, member or partner of or any other person affiliated with the Client; or any subsidiary, parent or other affiliate of the Client. If any of these persons or entities require the services of counsel in connection with the Matter, we would be pleased to discuss whether we might be able to represent any of them, but any such representation would need its own engagement letter, and would depend on our review and disclosure to all concerned of any conflicts of interest that may arise in connection with any such concurrent representation, and on appropriate consents being obtained from the Client and from those seeking such additional representation. 2. Scope of Engagement The scope of Orrick's representation of the Client is limited to the specific Matter identified in the accompanying engagement letter, and such additional matters as the Client and Orrick may in their mutual discretion agree to from time to time. In each case, Orrick's agreement to any expansion of the scope of its representation of the Client will be subject, among other things, to such additional conflict checks, waivers, retainers, approvals and other arrangements as Orrick may in its professional judgment deem necessary or appropriate in the circumstances. Except as otherwise expressly provided in any written engagement letter (or a written amendment of a prior engagement letter) between Orrick and Client entered into in connection with such expansion of the scope of Orrick's representation, the agreement reflected in these Standard Terms of Engagement, and in the accompanying engagement letter, applies to Orrick's current representation of the Client and to any subsequent matters that Orrick agrees to undertake on the Client's behalf. 3. Conflicts of Interest Our agreement to represent the Client is conditioned upon the understanding that we are free to represent any clients (including the Client's adversaries) and to take positions adverse to either the Client or an affiliate of the Client in any matters (whether involving the same substantive area(s) of law for which the Client has retained us or some other unrelated area(s), and whether involving business transactions, counseling, litigation or otherwise), which do not involve the same factual and legal issues as matters for which the Client has retained us or may hereafter retain us. In this connection, the Client should be aware that we provide services on a wide variety of legal subjects to a large number of clients both in the United States and internationally, some of whom are or may in the future operate in the same area(s) of business in which the Client is operating or may operate. (A summary of Orrick's current practice areas and the industries in which we represent clients can be found on Orrick's web site at www.orrick.com.) We will, of course, hold in confidence the Client's secrets and confidences. Similarly, the Client understands that while Orrick may obtain confidential information from other clients that may be of interest to the Client, Orrick cannot share such information with the Client. The Client acknowledges that the Client has had the opportunity to consult with its in-house or separate counsel 4142-7836-3425.2 Orrick Page 2 about the consequences of the waiver set forth in this paragraph. After such consultation, the Client consents to these other representations, agrees that it will not seek to disqualify Orrick from any such present or future representations, and waives any actual or potential conflict that might arise from such current or future representations so long as those other representations do not involve the same factual and legal issues as a current active engagement for the Client. 4. Internal Communications The occasion might arise for us, at our own expense, to consult regarding our engagement for the Client with our own counsel (e.g., our Chief Legal Officer, other firm lawyers working with our Chief Legal Officer who do not perform work for the Client on the Matter, or our own outside counsel). To the extent that we are addressing our own rights or responsibilities, a conflict of interest might be deemed to exist between Orrick and the Client as to such consultation or resulting communications, particularly if a dispute were ever to arise between Orrick and the Client regarding the Matter. A condition of this engagement is that the Client hereby consents to such consultation occurring, and waives any claim of conflict of interest based on such consultation or resulting communications that could otherwise disqualify us from continuing to represent the Client or from acting in our own behalf, even if such consultation or communications might be deemed adverse to the interests of the Client. The Client acknowledges and agrees that any such consulting and communications are protected, from disclosure to the Client, by Orrick's own attorney client privilege. 5. Responsibilities of Attorney and Client We will provide to the Client legal counsel and assistance in accordance with the accompanying engagement letter. The Client will not look to or rely upon Orrick for any investment, accounting, financial or other non -legal advice, including without limitation any advice regarding the character or credit of any person with whom the Client may be dealing. Although we will at times communicate with the Client by e-mail, letter, or other written form, we may provide much of our counsel and assistance in telephone conversations and meetings with the Client. If the Client ever wishes for us to confirm any oral advice in writing, please let us know. For us to represent the Client effectively, we need the Client to provide us with complete and candid information regarding the subject matter of the Matter, to keep us informed of relevant developments, to make decisions necessary for us to fulfill our responsibilities in the Matter and otherwise to provide to us the Client's reasonable assistance and cooperation. We have a duty of confidentiality to the Client and each of our other clients. We take this duty very seriously and, except to the extent permitted by the applicable rules of professional conduct, we will not disclose any confidential information of the Client to any other client or person. Similarly, we cannot disclose to the Client the confidences of any other client even when such information relates to matters that might affect the Client. 6. Fees, Costs and Disbursements We will bill the Client on a monthly basis for our services, unless other arrangements are described in the engagement letter to which these "Standard Terms and Conditions" are attached. Our 4142-7836-3425 2 Orrick Page 3 bills are payable promptly upon receipt, with payment required no later than 30 days following our invoice date. Unless other arrangements are described in the engagement letter to which these "Standard Terms and Conditions" are attached, our fees are based on the amount of time we spend on the Matter. Each Orrick attorney, legal assistant and other timekeeper assigned to the Matter will have an hourly billing rate. These billing rates, which are set based upon seniority and expertise, are subject to adjustment annually, effective as of January 1 of each year, to reflect, among other factors, seniority advancements. Unless other arrangements are described in the engagement letter to which these "Standard Terms and Conditions" are attached, in addition to fees, we also will bill the Client on a monthly basis for in-house services such as telephone charges, document reproduction, word processing, computerized research, out-of-town travel and messenger services. Subject to our ethical obligations, certain of such items may be charged at more than Orrick's direct cost to cover its estimated associated administrative costs, overhead and materials. More specific information relating to Orrick's disbursement policies is available upon request. Unless special arrangements are made, Orrick does not take responsibility for paying fees and expenses of third parties, which will be the Client's responsibility and may be billed directly to the Client. If any claim or action is brought against Orrick or any of its personnel which alleges negligence or wrongdoing of the Client or a third party, or if Orrick or any current or former attorney or employee of Orrick is asked or required by a third party to testify or produce documents as a result of Orrick's representation of the Client, the Client agrees to pay Orrick for any resulting costs or expenses, including Orrick's time, even if Orrick's representation of the Client has ended. This paragraph is not intended to apply to any claim brought by or on behalf of the Client alleging wrongdoing by Orrick. The obligation to timely pay our bills is solely the Client's and is not contingent upon, nor shall the payment due date be extended or otherwise affected by any judgment or settlement; any right the Client may have for reimbursement, indemnification or insurance; or the Client's receipt of any other form of payment the Client may claim or expect to receive from some other party. If the Client has any question or issue regarding any bill, the Client should notify us promptly of any such question or issue, and must in any event promptly pay any portion of such bill that is not the subject of a question or issue. Although Orrick may furnish estimates of fees or costs that are anticipated will be incurred, these estimates shall not be binding, are subject to unforeseen circumstances, and are by their nature inexact. 7. Engagement Termination The Client may terminate this representation at any time, with or without cause, but in the case of litigation, court approval may be necessary. Subject to the application of the applicable rules of professional responsibility, Orrick also reserves the right to withdraw, if among other things, the Client fails to make timely payments of any invoice, the Client fails to cooperate or follow Orrick's advice on a material matter, or any fact or circumstance arises that, in Orrick's view, renders our continuing 4142-7$36-3425 2 Orrick Page 4 representation unlawful or unethical, or we otherwise have the right to withdraw pursuant to applicable rules of professional responsibility. Any termination of our representation of the Client would be subject to such approval as may be required from any court(s) in which we are appearing on the Client's behalf. In the event of termination by either of us, the Client agrees to pay us fees and costs for work performed prior to termination, to the extent permitted by law. 8. Date of Termination Orrick's representation of the Client will be considered terminated at the earliest of (i) the Client's termination of the representation, (ii) Orrick's withdrawal from the representation, (iii) the substantial completion of Orrick's substantive work for the Client, or (iv) our sending you our final statement for services rendered in the matter. 9. Client Files (Cloud Storage, Retention and Disposition) Orrick recognizes that cloud computing services offer valuable tools to its clients and has entered into arrangements with certain providers of those services. Data and documents, including client confidential data uploaded to a cloud computing service rather than stored on equipment or servers controlled by Orrick may be less secure and less confidential than clients expect. If the Client does not wish to have its information and data stored with third party cloud service providers, the Client must advise Orrick not to do so. If the Client requests or directs Orrick to use cloud computing services other than those services provided by Orrick, the Client agrees that Orrick is not responsible for, and agrees to indemnify and hold Orrick harmless from and against any and all claims, suits and actions, arising from use of the cloud computing service requested by the Client, including any security or confidentiality breaches that occur. Once our engagement in this Matter ends, we will send you a written notice advising you that this engagement has concluded. You may thereafter direct us to return, retain or discard some or all of the documents pertaining to the engagement. Orrick may charge the Client for the reasonable costs of retrieval, assembly, copying, storage and transfer of all files or materials in any format. If Orrick determines it appropriate to dispose of materials relating to the Matter, Orrick will provide you written notice of that determination. If you do not respond to the notice within sixty (60) days, you agree and understand that any materials left with us after the engagement ends may be retained or destroyed at our discretion without further notice to you and in a manner which preserves the confidential and secret nature of their contents. If you have a Records Retention Policy in place with which outside counsel will need to comply, please advise us so that we may so inform our Records Department. You should understand that "materials" include paper files as well as information in other mediums of storage including voicemail, email, printer files, electronic document files, facsimiles, dictation recordings, video files, and other formats. We reserve the right to make, at our expense, certain copies of all documents generated or received by us in the course of our representation. When you request copies of documents from us, copies that we generate will be made at your expense. We will maintain the confidentiality of all documents throughout this process. Our own files pertaining to the Matter will be retained by the firm (as opposed to being sent to you) or destroyed. These firm files include, for example, firm administrative records, time and expense 4142-7836-3425.2 0 Orrick Page 5 reports, personnel and staffing materials, and credit and account records. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to destroy or otherwise dispose of any documents or other materials retained by us within a reasonable time after the termination of the engagement. 10. Binding Agreement The engagement letter and these Standard Terms of Engagement represent the entire understanding and agreement between the Client and Orrick with respect to the subject matter referred to herein. By signing below, the Client acknowledges that the engagement letter and these Standard Terms of Engagement have been carefully reviewed and their content understood and that the Client agrees to be bound by all of the terms and conditions. Furthermore, the Client acknowledges that Orrick has made no representations or guarantees to the Client regarding the outcome of the Matter or the time necessary to complete the Matter. The provisions of this letter may only be amended in writing and signed by both parties. 11. Acceptance of Engagement Terms By signing below, you acknowledge and represent that you have read the engagement letter and these Standard Terms of Engagement, that you understand and agree to the terms and provisions, and that you are authorized to do so on behalf of the Client. ORRICK HERRINGTON & SUTCLIFFE, LLP By: Marcus Deitz, Partner 4142-7836-3425.2 CITY OF WEST UNIVERSITY PLACE, TEXAS By.�_� f } -Sob Higley, Mayor 54