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HomeMy WebLinkAboutResolution - 2018-R0102 - Orrick, Herrinton, & Sutcliffe - 03/22/2018Resolution No. 2018-RO102 Item No. 6.2 March 22, 2018 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Letter of Engagement by and between Orrick, Herrington & Sutcliffe, LLP of Austin, Texas and the City of Lubbock appointing Orrick, Herrington & Sutcliffe, LLP as bond counsel for the City of Lubbock. Said Letter of Engagement is attached hereto and incorporated in the Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council on March 22, 2018 DANIEL M. POPE, MAYOR ATTEST: Re cca Garza, City Se�etat APPROVED AS TO CONTENT: �L Blu Kosteli , Chief Financial Officer APPROVED AS TO FORM: elli Leisure, Assistant City Attorney Res. LtrofEngagementOrri ck 3.13.18 Resolution No. 2018-RO102 March 22, 2018 Mayor and City Council Members P.O. Box 2000 Lubbock, Texas 79457-2000 Re: Bond Counsel Services - Engagement Letter Dear Mayor and City Council Members: C Orrick Orrick, Herrington & Sutcliffe LLP 500 West 2"0 Street Suite 1900 Austin, Texas 78701 orrick.com We are pleased to submit to you this proposed agreement for the City of Lubbock (the "City") to engage Orrick, Herrington & Sutcliffe LLP ("Orrick") as Bond Counsel in connection with the City's issuance from time to time of bonds, notes, certificates of obligation and other debt instruments (collectively, the "Bonds") and in connection with such other general finance matters as may be referred to us from time to time. When approved by the City Council (the "City Council") of the City, this letter (the "Agreement") will confirm and evidence an agreement between the City and Orrick. The client for purposes of this engagement is the City. It is understood that this representation does not create an attorney -client relationship with any other person or entity, unless specifically agreed otherwise in writing. Nature and Scope of Engagement A. Basic Services: As Bond Counsel, Orrick will prepare all required legal proceedings and perform certain other necessary legal work in connection with the City's authorization, issuance and sale of each series of the Bonds. Our services as Bond Counsel will include the following Basic Services, which we would carry out directly or in concert with officials and staff of the City: (1) Attendance at all meetings of the City Council and/or City staff, as required or requested, in connection with the planning and authorization of Bonds, including consultation on federal income tax matters: (2) Consultation with City officials and staff -to review information to be included in the offering document(s) for each series of Bonds, but only to the extent that such information describes such series, the security therefor, their federal income tax status and our opinion; 4140-3721-1666.2 Orrick March 22, 2018 Page 2 (3) Preparation of bond election proceedings, as necessary, and assistance with filing or necessary preclearance letters with the United States Department of Justice; (4) Preparation of the ordinance authorizing issuance of each series of the Bonds (the "Ordinance") and all other instruments which comprise the transcript of legal proceedings pertaining to the authorization, issuance and sale of each such series; (5) Preparation and submission of transcripts of legal proceedings pertaining to the issuance of each series of Bonds to the Attorney General of the State of Texas to obtain an approving opinion and to obtain the registration of the Bonds by the Comptroller of Public Accounts, as required by law: (6) Review of certified proceedings and performance of such additional duties as are necessary for the delivery, at the closing of each series of the Bonds, of an approving opinion, based on facts and law existing as of its date, generally to the effect that such series has been duly issued, executed and delivered in accordance with the Constitution and laws of the State of Texas, that the Bonds of each series constitute valid and legally binding obligations of the City as described in the respective ordinance (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, if applicable, that interest on such series of Bonds is excludable from the gross income of the owners thereof for federal income tax purposes under then -existing law; (7) Prior to and in connection with the closing of each series of the Bonds, 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 Bonds, including yield restrictions and rebate requirements; (8) Representation of the City at each Bond sale and closing, including preparation of all closing documents; and (9) At the closing of each series of the Bonds, delivery of an opinion regarding the applicability of federal and state securities laws to such series, the eligibility of the Bonds for investment by various fiduciaries and other regulated investors and the validity and enforceability of security agreements, indentures and other documents related to the Bonds and the security therefor. B. Additional Services: In addition Counsel, Orrick is prepared to undertake Additional limitation the following: 4140-3721-1666 to the foregoing Basic Services, as Bond Services, as directed by the City, including without Orrick March 22, 2018 Page 3 (1) Disclosure work or similar services (other than the preparation of certain sections of the offering documents for the Bonds as described in paragraph (2) under Basic Services above) to assist the City in the preparation of such offering documents, on such basis and to such extent as shall be directed by the City, (_') Preparation of the "Blue Sky" surveys or securities registration services; (3) Work on post -closing federal tax or disclosure issues: and (4) Services rendered in connection with documentation related to credit or liquidity facilities or enhancements or other special structuring techniques or devices to be employed in connection with the issuance of variable rate obligations, unusual issues arising in connection with the City's financial reports or audits, and other special services not ordinarily required in connection with the issuance of fixed rate Bonds. Fees and Expenses Unless otherwise agreed to by the City and Orrick, our fees for Basic Services for each series of Bonds will be charged in accordance with the fee schedule, attached hereto as Exhibit A. Our fees for Additional Services will be based on the time spent by the lawyers, paralegals, and other professionals or paraprofessionals who work on the matter, at the hourly rates in effect at the time the work is performed. We will be reimbursed for reasonable and actual out-of-pocket expenses, to the extent permitted by the City's Guidelines for the Retention and Hiring of Outside Legal Counsel, such as the cost of reproduction of documents, out-of-town travel, long-distance telephone, telecommunications and similar expenses, deliveries, filing fees and all items paid for by Orrick on behalf of the City and incurred in connection with the performance of any services hereunder. Our fees for services as Bond Counsel that relate to a specific series of Bonds will be payable at the time of delivery of the Bonds. With respect to matters or services that do not relate to a specific series of Bonds that the City, through the City Attorney or other authorized officer, may request us to provide, our fees for services will be charged on an hourly basis for time spent on the matter based on the Firm's current hourly rates, billable and payable monthly. We will -be pleased to provide an estimate of such fees at the time we receive a request to provide such Additional Services. Other Terms of Engagement Conflict Considerations and Agreement: We recognize that we are disqualified from representing any other client with interests materially and directly adverse to the City in any matter (i) which is substantially related to this representation or (ii) where there is a reasonable probability that 4140-3721-1666 orrick March 22, 2018 Page 4 confidential information furnished to us by the City could be used to the City's disadvantage. The City understands and agrees that, with those exceptions, our representation of the City in this matter will not prevent or disqualify Orrick from representing clients adverse to the City, or whose interests may conflict with the City's in litigation, business transactions, or other matters. Cooperation: We necessarily must rely on the accuracy and completeness of the facts and information the City and the City's agents provide us. In order to enable us to render effectively the legal services contemplated, the City agrees to disclose fully and accurately all facts and keep us informed of all developments relating to the matters involved in this engagement. We will keep the City advised of all significant developments and will provide any other detailed reporting that the City requests. Withdrawal or Termination: Our relationship is based upon mutual consent and the City may terminate our representation at any time, with or without cause, by notifying us. The City's tennination of our services will not affect the City's responsibility for payment of fees for legal services rendered and of other charges incurred before termination and in connection with an orderly transition of the matter. We are subject to rules of professional conduct, which list several circumstances that require or allow us to withdraw from representing a. client, including for example, nonpayment of fees or costs, misrepresentation or failure to disclose material facts, fundamental disagreements, and conflict of interest with another client. We try to identify in advance and discuss with our clients any situation which may lead to our withdrawal, and if withdrawal ever becomes necessary, we will give the client written notice of our withdrawal. Retention and Disposition of Records Pertaining to the Matter: After our representation of the City on a matter concludes, our current policy is to close our matter file and retain it for seven (7) years following closure. For various reasons, including minimizing storage costs, when the seven-year retention period expires, we may, and we are hereby given the right to, dispose of the matter file (including discarding paper and deleting electronic records pertaining to the matter that were not previously discarded or deleted). We may, however, retain beyond the seven-year retention period (i) our business and administrative records pertaining to the matter or you, including, for example, matter opening records, financial records, time and expense reports, personnel and staffing records, and records of our communications with you (collectively our "business file"), (ii) records that our attorneys may designate for longer retention, (iii) work product of our attorneys, such as contracts, research, briefs, notes or memoranda, that our attorneys may elect to retain for form use purposes, and (iv) certain types of records that our records retention policy provides should be retained longer. If the City wants to take possession of the originals or receive copies of any portion of our matter file belonging to the City before the retention period expires, the City must notify us in writing and, provided that we have received payment of our outstanding fees and costs incurred for the matter, we will send the City the requested portion of our matter file belonging to the City at the City's expense. We may 4140-3721-1666.2 Orrick March 22, 2018 Page 5 retain, at our expense, a copy of that portion of our matter file that is sent to the City. Additionally, the City must notify us in writing if the City wants us to retain our matter file for a different retention period. Other Information: Submitted herewith as Exhibit B is a notarized Certificate of Interested Parties - Form 1295, as completed and filed with the Texas Ethics Commission (the "TEC") in accordance with the provisions of Section 2252.908, Texas Government Code, and the rules promulgated by the TEC. As required by Texas Government Code, Section 2270.002, Orrick verifies that Orrick (1) does not "boycott Israel" (as defined in Texas Government Code Section 808.001). and (2) subject to or as otherwise required by applicable federal law, will not boycott Israel during the term of this letter. Pursuant to Section 2252.152, Texas Government Code, Orrick is not a company currently listed by the Texas Comptroller of Public Accounts under Sections 806.051, 807.051, or 2252.153 of the Texas Government Code. Conclusion of Engagement: ment: Upon completion of our representation of the City in a transaction, whether upon completion of a transaction or due to termination or withdrawal, we will have no further obligation to advise the City with respect to that transaction or with respect to changes in the laws or regulations that could have an impact upon the City's future rights and liabilities relating to that transaction. Choice of Law: This Agreement shall be governed by and construed in accordance with the laws or the State of Texas. Entire Aueement: This letter (a) constitutes the entire agreement between the City and Orrick regarding the City's engagement of Orrick to represent the City with respect to the Bonds, (b) is subject to no oral agreements or understandings and (c) can be modified or changed only by a further written agreement signed by the City and Orrick. No obligation or undertaking not set forth expressly in this letter shall be implied on the part of either the City or Orrick. We are pleased to have this opportunity to be of service and to work with you. If you have any questions, please contact me at 512.575.6001. We request that you sign, date in the space provided below and return one copy of this letter to reflect that you agree to the terms and conditions of this representation. Very truly yours, ORRICK, HERRINGTON & StT['CLIFFE LLP By: JOrr V. Kyle, Jr 4140-3721-1666.2 March 22, 2018 Page 7 EXHIBIT A Bond Counsel Fee Schedule for Basic Services Bond Proceeds Amount Fee First $5 million $7,500 minimum fee Next $5 million Orrick $7,500 plus $1.25 per $1,000 of bond proceeds in excess of $5 million $10 million - $20 million $13,750 plus $1.00 per $1.000 of bond proceeds in excess of $10 million Over $20 million $23,750 plus $.75 per $1,000 of bond proceeds in excess of $20 million 4 i ao-3n i-1666.2 March 22, 2018 Page 8 EXHIBIT B Certificate of Interested Parties 4140-3721-1666.2 Orrick CERTIFICATE OF INTERESTED PARTIES FORM 1295 loll Complete Nos. 1.4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2018-324006 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Orrick, Herrington & Sutcliffe LLP Austin, TX United States Date Filed: 03/08/2018 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock, Texas Date Acknowledged: g Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 2018BC Certificates of Obligation 2018 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary Bicks, Peter New York, NY United States X Hermle, Lynne Menlo Park, TX United States X Zuklie, Mitchell Menlo Park, CA United States X Brown, Walter San Francisco, CA United States X 5 Check only if there is NO Interested Party. ❑ 6 UNSWORN DECLARATION I i t' My name is I`I l l 1� VI Le 1 v- and my date of birth is . My address is '2 0 0 W. 1NV ' 4 I UT - O U AM KI T(, (street) (city) (state) (zip code) (country) I declare under penalty perjury that the foregoing is true and correct. foof Executed in Tt� tV I C County, State of �li 1l>Z J on theI:L_day of M AP111 , 2011,. (month) (year) signatbie of authorized agent of contracting business entity (Declarant) I-orms proviaeo oy texas ttnlcs commission www.ethics.state.tx.us version V1.0.5523