HomeMy WebLinkAboutRES 14-138RESOLUTION NO. 14-138
WHEREAS, the City of Beaumont, Texas, (the "City ") proposes to issue Waterworks
and Sewer System Revenue and Refunding Bonds, Series 2014A & Waterworks and
Sewer Revenue Refunding Bonds, Taxable Series 2014B in the approximate amount of
$82,890,000 (the "Bonds "); and,
WHEREAS, in order to proceed with the issuance of the Bonds, the City desires to
authorize the employment of bond counsel;
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT, TEXAS:
THAT the statements and findings set out in the preamble to this resolution are hereby, in
all things, approved and adopted; and,
That the City is authorized to and hereby employs Bracewell & Giuliani LLP, of
Houston, Texas, as bond counsel for the issuance of the Bonds, pursuant to the terms of
the engagement letter dated June 16, 2014, presented by Bracewell & Giuliani LLP, to the
City, attached hereto as Exhibit "A;" and,
BE IT FURTHER RESOLVED that the City Attorney be and he is hereby authorized
to execute the engagement letter dated June 16, 22014, presented by Bracewell & Giuliani
LLP, on behalf of the City of Beaumont for the purposes described herein; and,
BE IT ALSO RESOLVED that the City and its bond counsel are authorized to
proceed with taking all action appropriate for the issuance of the Bonds; provided,
however, that the Bonds shall be issued only if the final terms and provisions thereof are
hereinafter approved by the City Council.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 24th day of
June, 2014. ���,UAAO
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Mayor Be y Ames -
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June 16, 2014
Mr, Tyrone E. Cooper
City of Beaumont, Texas
801 Main Street, Suite 325
Beaumont, TX 77701
Texas
Bracewell & Giuliani LLP
Now York
711 Louisiana Street
Washington, DC
Suite 2300
Connecticut
Houston, Texas
Seattle
77002-2770
Dubai
London
713.2212300 Once
713.221.1212 Fox
bgllp.con
Re: Bond Counsel — Waterworks and Sewer System Revenue and Refunding
Bonds, Series 2014A & Waterworks and Sewer System Revenue Refunding
Bonds, Taxable Series 201413
Dear My. Cooper:
Thank you for engaging us to represent City of Beaumont, 'Texas (the "Client ") in
connection with the captioned obligations and such other obligations, if any, that the City
may elect to issue in conjunction therewith (the "Obligations "). We appreciate the
confidence you have shown in Bracewell & Giuliani LLP ( "B &G" or `Bond Counsel ") and
look forward to this opportunity to represent the Client.
It is our practice to confirm the terms and conditions of our engagements, and that is
the purpose of this letter and the accompanying Terms of Engagement, If you have any
questions about this letter, .or 'Perms of Engagement, or any aspect of the engagement or
representation, please contact me as soon as possible.
Scope of Enfra£Yement
As Bond Counsel, we will prepare, or assist the appropriate City officials and staff in
the preparation of all required legal proceedings and will perform certain other necessary
legal work in corurection with the City's authorization, issuance, and sale of the Obligations.
Our services as Bond Counsel will include the following Basic Services, which we will carry
out directly or In concert with City officials and staff, as follows:
(1) Preparation or assistance in the preparation of the Ordinance authorizing the
issuance of the Obligations (the "Ordinance ") and all other legal instruments that comprise
the transcript of legal proceedings pertaining to the authorization, issuance, and sale of
Obligations;
94482610.1
EXHIBIT "A"
City of Beaumont, Texas
June 16, 2014
Page 2
(2) Preparation of one set of initial temporary bonds to be submitted to the
Attorney General for approval and to the Comptroller for registration and, if required,
preparation of one set of definitive bonds to be held in book -entry only form;
(3) Attendance at meetings called by the appropriate City officials and staff to
discuss the sizing, timing, or sale of the Obligations;
(4) Consultation with City officials and staff and the City's financial advisor,
together with underwriters, if any, to review information to be included in the offering
documents for The Obligations, but only to the extent that such information describes the
Obligations, the security therefor, federal income tax status and our opinion;
(5) Preparation and submission of a transcript of legal proceedings pertaining to
the issuance of the Obligations to the Attorney General of Texas to obtain an approving
opinion;
(6) Supervision of the printing of the Obligations and the delivery thereof to the
purchasers thereof, including, if requested by the City, solicitation of bids from bond printers
to obtain the lowest responsible printing costs for the City;
(7) At the closing of the Obligations, delivery of an approving opinion, based on
facts and law existing as of its date, generally to the effect that the Obligations have been
duly issued, executed, and delivered in accordance with the Constitution and laws of the
State of Texas, that the Obligations constitute valid and legally binding obligations of the
City (subject to bankruptcy, insolvency, reorganization, moratorium, and other similar laws
in effect from time to time relating to or affecting the enforcement of rights of creditors of
political subdivisions) and that, subject to certain restrictions, interest on the Obligations is
excludable from the gross income of the owners thereof for federal income tax purposes; and
(8) Prior to and in connection with the closing of the Obligations, giving advice to
the City to enable appropriate officials to comply with the arbitrage requirements of the
Internal Revenue Code of 1986 as they affect. the Obligations, including yield restrictions and
rebate requirements.
Anticipated Staffn,
Although I will be your primary contact, Todd Greenwalt, Marron Wallace, Amanda
Edwards and Katherine Milton will be the other attorneys representing you on this matter.
44482610.1
City of Beaumont, Texas
June 16, 2014
Page 3
Fees
We will provide our services as bond counsel for a fee equal to 15 basis points (ie.
0.15 %) of the face amount of the Bonds issued, but subject to a minimum fee of $17,500 per
series. The fee will be payable only at the time of delivery of the Bonds. This fee does not
include any fee for co -bond counsel, should the City elect to employ one. Separate and apart
from such expenses, Bond Counsel will be reimbursed for any filing fees paid by Bond
Counsel to the Attorney General of Texas, which fees may be as much as $9,500 per series of
Obligations.
The Bond Counsel fees for the services provided here are wholly contingent upon the
actual sale and delivery of the Obligations.
Nothing herein shall be construed as creating any personal liability on the part of any
officer of the Client, and this agreement may be terminated by the Client by giving thirty (30)
days' written notice.
Conflicts
It is B &G's practice to comply with the professional standards and ethics
requirements in the jurisdictions in which we perform legal services or manage the account.
Based on the information that you have provided, it does not appear that this engagement is
materially adverse to any substantially related matter that B &G is handling for other clients
of the firm. It is important that you know, however, that B &G may represent other clients
within the same industry and may have matters that may be adverse to your interests in
unrelated matters.
Consultation with Independent Counsel
Under the terms of this Engagement Letter and the attached Terms of Engagement,
the Client has specific obligations to B &G (for example, the obligation to provide complete
and accurate information to the firm). Moreover, there are limits to the rights that the Client
might otherwise have (for example, the agreement to resolve any dispute with B &G by
arbitration rather than by jury trial). If you wish to obtain independent advice concerning
these or any other provisions of this Engagement Letter or Terms of Engagement, we
encourage you to contact counsel of your choice.
Please call me if you wish to discuss any aspect of this engagement. If this letter and
the Terms of Engagement accurately reflect our agreement, please sign the enclosed copy of
this letter and return it to me.
44482610.1
City of Beaumont, Texas
June 16, 2014
Page 4
Thank you again for the opportunity to represent the Client in this matter.
Very truly yours,
Bracewell & Giuliani LLP
f :
f
By: Derrick Mitchell
Attachments
AGREED AND ACCEPTED:
CITY OF BEAUMONT, TFXAS
By:
Tyrone ls. Cooper, City Attorney
#4482610.1
Exhibit A to
Agreement for Bond Counsel Services
BRACEWELL & GIULIANI LLP
Partners
Associates
44482610,1
Todd Greenwalt
$845
Derrick Mitchell
$585
]Barron Wallace
$680
Amanda Edwards $450
Katherine Milton $400
BRACEWELL & GIULIANI LLP
TERMS OF ENGAGEMENT
Introduction
These are the Terms of Engagement adopted by Bracewell & Giuliani LLP ( "B &G ") and
referred to in our Engagement Letter as the basis for our representation. Because they are an
integral part of our agreement to provide representation, we ask that you review this document
carefully and retain it for your files. If you have any questions after reading it, please promptly
inform your principal contact at the firm.
Client of the Firm
Since B &G has been engaged to represent the client only, the engagement does not include the
client's affiliated or related entities, or their respective individual partners or employees.
For example, for corporations and partnerships, unless otherwise specifically stated in the
Engagement Letter, our representation does not include any parents, subsidiaries, employees,
officers, directors, shareholders, or partners of the corporation or partnership, or commonly
owned corporations or partnerships. Similarly, for trade associations, our representation does not
include members of the trade association; and for individuals, our representation does not include
employers, partners, spouses, siblings, or other family members. In the event we are asked to
undertake representation of any other entity in connection with this engagement, we will do so
only by agreement defined in the Engagement Letter.
The Scope of the Representation
B&G undertakes to provide representation and advice on the matters for which we are engaged,
and it is important that we both have a clear understanding of the services that B &G has agreed
to provide. In the Engagement Letter, B &G specifies the matter in which we will provide
representation and the scope of the services we will provide. If there are any questions about the
engagement, including the scope of the representation, and related services being performed,
please address those questions promptly with your principal contact at the firm.
As you may be aware, the Treasury Department has issued new Regulations, commonly referred
to as Circular 230, that dictate how attorneys must communicate with their clients whenever they
render "written advice" on tax issues. The new regulations are very broad and will frequently
restrict ordinary communications between attorney and client. We can avoid the costly and time -
consuming process of preparing a formal opinion to comply with Circular 230 by including a
legend on written advice similar to the following: "As required by United States Treasury
Regulations, you should be aware that this communication is not intended or written by the
sender to be used, and it cannot be used, by any recipient for the purpose of avoiding
penalties that may be imposed on the recipient under United States federal tax laws."
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Unless we agree in advance to the contrary, written advice that we prepare for you will contain
this legend.
Our Relationship With Others
B &G represents many businesses and individuals. In some instances, the applicable rules of
professional responsibility may limit our ability to represent clients with conflicting or
potentially conflicting interests. Those rules of professional responsibility often allow us to
exercise our independent judgment in determining whether our relationship with one client
prevents us from representing another. In other situations, we may be permitted to represent a
client only if the other clients consent to that representation.
If a conflicts issue unrelated to the engagement develops between you and another client, we A411
follow the applicable rules of professional responsibility to determine whether we may represent
either you or the other client in the unrelated controversy. In making this determination, we will
consider your agreement to the Conflicts of Interest provisions in these Terms of Engagement.
In addition to our representation of other companies and individuals, we also regularly represent
lawyers and law firms. As a result, opposing counsel in the matter may be a lawyer or law firm
that we may represent now or in the future. Likewise, opposing counsel in the matter may
represent our firm now or in the future. Further, we have professional and personal relationships
with many other attorneys, often because of our participation in bar associations and other
professional organizations. We believe that these relationships with other attorneys do not
adversely affect our ability to represent any client. Your acceptance of our Engagement: Letter
means you consent to any such relationships between our firm and other lawyers or law firms,
even counsel representing a party adverse to you in this engagement.
Conflicts of Interest
Conflict of interest is a concern for lawyers and their clients. We attempt to identify actual and
potential conflicts at the outset of any engagement, and may request that you sign a conflict
waiver before we accept an engagement. Occasionally, other clients or prospective clients may
ask us to seek a conflict waiver from you so that we can accept an engagement on their behalf.
Please do not take such a request to indicate that we will represent you less zealously; we make
such requests because we take our professional responsibilities to all clients and prospective
clients very seriously.
Unfortunately, conflicts sometimes arise or become apparent after work begins on an
engagement. When that happens, we will do our best to address and resolve the situation in the
manner that best serves the interests of all of our affected clients.
Because B &G is a large firm, we may be asked to represent someone whose interests may be
adverse to yours. B &G accepts this engagement on the understanding that our representation of
you will not preclude us from accepting another engagement from an existing or a new client.
provided (1) that such engagement is not substantially related to the subject matter of services we
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provide to you, and (2) that in accepting such other engagement we would not impair the
confidentiality of proprietary, sensitive or otherwise confidential information you have provided
to us.
Rules concerning conflicts of interest vary with the jurisdiction. In Ordinance to avoid any
uncertainty, our policy is that the "Texas Disciplinary Rules of Professional Conduct will be
applicable to the representation. Unless the Engagement Letter stipulates that some other rules
of professional responsibility will govern our attorney- client relationship, your acceptance of our
Engagement Letter means you agree with that policy.
Staffing The Project
In most cases, one attorney will be your primary contact. In Ordinance to provide you with the
expertise of our firm, and to provide services on a cost effective basis, that attorney will delegate
parts of your work to other lawyers, legal assistants and other professionals.
Fees Billing Arrangements and Terms of Payment
B &G issues invoices on a regular basis, normally each month, for fees and other charges.
Invoices are due on presentment and are considered past due 30 days after receipt. It is
important to review invoices that are presented each month and to bring any concerns regarding
the invoice, services or staffing to the attention of your primary contact at the firm within 30
days of receipt of an invoice.
Fees for professional services and reimbursable expenses are not contingent on the outcome of
the project.
Clients frequently ask us to estimate the fees and other charges they are likely to incur in
connection with a :particular matter. Any estimate is based on professional judgment and facts
and circumstances that appear at the time. As such, any estimate is subject to the understanding
that, unless we agree otherwise in writing, it does not represent a maximum, minimum, or fixed -
fee quotation. The ultimate cost frequently is more or less than the amount estimated.
As an adjunct to providing services, we may incur and pay a variety of charges on your behalf or
charge for certain ancillary support services. Whenever we incur such charges on your behalf or
charge for such ancillary support services, we will bill them to you as part of your monthly
invoice. Examples include charges for photocopying, postage, long- distance telephone calls,
travel and conference expenses, delivery charges, computerized research, and facsimile and other
electronic transmissions. Outside expenses generally will be billed at cost, while some in -house
expenses (e.g., copying, telecopying, computer services and in -house research) will include a
reasonable allocation of overhead. In appropriate cases, reimbursable expenses will also include
overtime charges for dedicated services for secretaries and other staff.
It may be necessary for us to retain third parties, such as consultants, experts and investigators, in
Ordinance to represent you adequately. In that event, you will be responsible for the payment of
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the invoices of those third parties. Although we may advance third -party disbursements in
reasonable amounts, we will ask you to pay larger third -party invoices (usually those over $500)
directly to the third party providing the services. Because we often have ongoing professional
relationships with the persons who render such services, we also ask that you pay such bills
promptly and send us notice of your payment.
At times, and for a limited time, we may retain copies of documents generated or received by us
in the course of your representation. Should you request documents from us at the conclusion of
our representation (other than your original documents), to the extent that such documents may
be available, you agree to compensate the fine for reproduction charges and professional fees
required to retrieve, review and duplicate the files.
Should your account become delinquent and satisfactory payment terms are not arranged, we
may take steps, as permitted under the rules regulating our profession, to withdraw fr,am the
representation, cease representation or terminate the engagement.
If the representation will require a concentrated period of activity, such as a trial, arbitration, or
hearing, we reserve the right to require the payment of all amounts owed and the prepayment of
the estimated fees and expenses to be incurred in completing the trial, arbitration, or hearing, as
well as arbitration fees likely to be assessed. If you fail to timely pay the estimated fees and
expenses, we will have the right to cease performing further work and the right to withdraw from
the representation, subject to any applicable rules of court or other applicable tribunal.
Although an insurer's payment of defense costs may be applied to billings of the firm, the
payment obligation remains with you. Failure of any insurer to pay all or part of the billings for
this Project does not relieve you from the obligation to pay billings in full and in a timely
manner.
From time to time, we assist clients in pursuing third parties for recovery of attorneys' fees and
other charges resulting from our services. These situations include payments under contracts,
statutes or insurance policies. However, it remains your obligation to pay all amounts due to us
within 30 days of the date of our statement.
Taxes
B &G anticipates that it will perform all, or substantially all, of its professional services for this
engagement in the United States. B &G will bill the client from, and B &G will receive all
payments in, the United States. Accordingly, neither B &G nor the client anticipates the
assessment of taxes outside the United States on the payments to B &G required under the
Engagement Letter.
The client, however, agrees that all payments under the Engagement Letter shall be payable to
B &G in U.S. Dollars, free and clear of any and all present and future taxes, levies, imposts,
duties, deductions, withholdings, fees, liabilities and similar charges (the "Taxes "). If any Taxes
are required to be withheld or deducted from any amount payable under the Engagement Letter,
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94482610.
then the amount payable under the Engagement Letter shall be increased to the amount which,
after deduction from such increased amount of all Taxes required to be withheld or deducted
therefrom, will yield to B &G the amounts stated to be payable to B &G under the Engagement
Letter. In the event that the client is required to withhold or deduct Taxes from any payment
under the Engagement Letter, the client shall promptly pay such Taxes and shall furnish B &G
with appropriate tax receipts issued by tax authorities showing payment of such Taxes by the
client.
Your Cooperation
To enable us to provide effective representation, you agree to: (1) disclose to us, fully and
accurately and on a timely basis, all facts and documents that are or might be material or that we
may request; (2) keep us apprised on a timely basis of all developments relating to the
representation that are or might be material; (3) attend meetings, conferences, and other
proceedings when it is reasonable to do so; and, (4) cooperate fully with us in all matters relating
to the engagement.
Insurance Coverage;
We will only represent you, and not your insurer, in this matter.
Unless we specifically agree to do so, we will not evaluate any aspect of insurance coverage,
advise you with respect to such coverage, or become involved in any policy or coverage dispute.
From time to time., we represent insurance companies, and our ability to assist you with such
insurance issues may be limited by our need to comply with the rules governing conflicts of
interest. However, if your matter involves coverage questions, we ask that you let us know in
advance so that we do not inadvertently transmit information to your insurer that might somehow
affect coverage.
Termination
Because B &G has been engaged to provide services in connection with the representation
specifically defined in our Engagement Letter, the attorney - client relationship terminates upon
our completion of our services related to the representation. After completion of the
representation, however, changes may occur in the applicable laws or regulations that could
affect your future rights and liabilities in regard to the matter. B &G has no continuing obligation
to give advice with respect to any future legal developments that may relate to the project.
You may terminate the engagement at any time, with or without cause, by notifying us in
writing. The firm also can terminate the engagement before the completion of its representation
of you in the specified matter if (a) the continued representation would result in a violation of the
applicable rules of professional conduct; (b) the termination can be accomplished without
material adverse effect on your interests; (c) the firm has a fundamental disagreement with the
objective in this engagement; (d) you substantially fail to discharge an obligation regarding this
engagement, including the payment of fees and expenses and the duty of cooperation as provided
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in the Terms of Engagement; or (e) other good cause for termination exist. In the event that the
firm intends to terminate the engagement, the firm will give reasonable notice and allow you
access to your files relating to this engagement.
The termination of our services will not affect your responsibility for payment of legal services
rendered and other charges incurred before termination and in connection with an Ordinancely
transition of the project.
Confidentiality and Document Retention
At the close of any matter, we may return relevant documents to Client, send remaining pertinent
parts of our files to a private storage facility for a limited time or destroy certain documents. The
attorney closing the file will determine, at his or her discretion, which portion should be returned
to Client, which portion should be sent to private storage (and for how long) and which portions
are to be destroyed.
You agree that we will own and retain our own files pertaining to the engagement and that you
will not have the right or ability to require us to deliver such files (or copies thereof) to you,
including, for example, firm administrative records, time and expense reports, personnel and
staffing materials, credit and accounting records, electronic mail correspondence (other than such
correspondence which was sent to you by a member of our firm) and internal lawyer's work
product, such as drafts, Bonds, internal memoranda and legal and factual research, including
investigative reports prepared by or for the internal use of lawyers. Further, at the discretion of
the responsible partner for the project in question, we may destroy any such documentation
which is the property of the firm or any documentation which such partner determines to be
duplicative or unnecessary, and in all eases without having to obtain your consent.
Under provisions of the Internal Revenue Code and Treasury Regulations, a law firm is subject
to disclosure and list maintenance requirements if the firm receives a certain minimum fee for
providing legal services and with respect to specific types of transactions. Pursuant to those
requirements, the firm must file a disclosure form with the IRS and maintain a file with respect
to any such transaction that identifies, among other items, the name and taxpayer identification
number of each participant in the transaction, a summary of the transaction, a description of the
tax aspects of the transaction and a copy of any tax opinion rendered with respect to the
transaction. The firm must provide the file to the IRS within 20 days of its request.
In the event that our work for you is subject to the list maintenance requirements, we would be
required to make the disclosures in a form filed with the IRS and to maintain a file as described
above and provide the file to the IRS upon its request. Accordingly, you hereby consent to our
making such disclosures, maintaining such file, providing it to the IRS, and in all other
ways complying with the disclosure and list maintenance requirements without obtaining
further permission from you. You further agree that you hereby waive any attorney - client
or other privilege or right to confidentiality of information with respect to the information
that we determine in our sole discretion must be provided to the IRS pursuant to these
requirements. This waiver will be effective at the time the above information is provided to
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the IRS. Time devoted to complying with the list maintenance requirements will be billed in
accordance with our customary rates.
Disclaimer
We cannot guarantee the outcome of any matter. Any expression of our professional judgment
regarding your matter or the potential outcome is, of course, limited by our knowledge of the
facts and based on the law at the time of expression. It is also subject to any unknown or
uncertain factors or conditions beyond our control.
Either at the commencement or during the course of the representation, we may express opinions
or beliefs about the matter or various courses of action and the results that might be anticipated.
Any expressions on our part concerning the outcome of the representation, or any other legal
matters, are based on our professional judgment and are not guarantees.
By signing the Engagement Letter or otherwise indicating your acceptance of the Engagement
Letter, you acknowledge that B &G has made no promises or guarantees to you about the
outcome of the representation, and nothing in these Terms of Engagement shall be construed as
such a promise or guarantee.
Our Professional Responsibility
The code of professional responsibility lists several types of conduct or circumstances that
require or allow us to withdraw from representing a client. These include, for example,
misrepresentation or failure to disclose material facts, action contrary to our advice, conflict of
interest with another client and nonpayment of fees or charges. B &G tries to identify in advance
and discuss with our clients any situation that may lead to our withdrawal. If withdrawal ever
becomes necessary, B &G gives our client written notice as soon as practicable.
The State Bar of Texas investigates and prosecutes complaints of professional misconduct
against attorneys licensed in Texas. A brochure entitled Attorney Complaint Information is
available at all of our offices and is likewise available upon request. A client that has any
questions about the State Bar's disciplinary process should call the Office of the General Counsel
of the State Bar of Texas at 1- 800 - 932 -1900 (toll free).
Modification of Our Agreement
The Tenns of Engagement reflect our agreement on the terms of all engagements, and are not
subject to any oral agreements, modifications, or understandings. Any change in these Terms of
Engagement must be made in writing signed by both B &G and Client.
In Conclusion
We look forward to a long and mutually satisfying relationship with you. Again, if at any time
you have a question or concern, please feel free to bring it to the attention of your principal
contact at our firm.
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