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HomeMy WebLinkAboutResolution 23-03 Bond Counsel McCall Parkhurst & HortonA RESOL APPROV] FOR LEG WI counsel in related mai TOWN OF WESTLAKE RESOLUTION 23-03 ON BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, RESOLUTION AUTHORIZING A CONTINGENCY FEE CONTRACT SERVICES AND OTHER RELATED MATTERS mi. i, Town of Westlake, Texas (the "Town") requires the assistance of outside legal out its responsibilities related to the issuance of municipal securities and other WHEREAS, pursuant to Section 2254.102(e) of the Texas Government Code, as amended, the Town is i equired to provide written notice of its intent to enter a contingency fee contract for legal service before or at the time of giving the written notice required by Section 551.041, Texas Government Code, for the posting of the notice of the meeting at which this Resolution (this "Resolution"is adopted; and "REAS, the Town has reviewed the contingency fee contract provided by McCall, Parkhurst & Ilorton L.L.P. ("Outside Counsel") attached hereto as Exhibit A (the "Contract"); and W REAS, the Town has given written notice in the form attached hereto as Exhibit B (the "Notice") of its intent to enter into a contingency fee contract, which notice includes the criteria required by Section 2254.1036(a)(1) of the Texas Government Code (the "Contingency Contract Criteria" ), b posting this entire Resolution, including the Notice, on the Town's website prior to holding the pen meeting called for the purpose of considering the Contract; and the Town deems it appropriate to approve the Contract subject to the findings as further sel below; THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF TOWN OF TEXAS THAT: Sec n 1. FINDINGS OF THE TOWN. The Town finds that there is a substantial need for the egal services of Outside Counsel and that the services of Outside Counsel cannot be adequately r erformed by the attorneys and supporting personnel of the Town. Furthermore, the legal service contemplated in the Contract cannot be reasonably obtained from attorneys in private practice un r a contract providing only for the payment of hourly fees, without regard to the outcome oft ie matter, because of the nature of the matter for which the services will be obtained or because the Town does not have funds to pay the estimated amount required under a contract providing oil I ly for the payment of hourly fees. Section 2. CONFLICTS. The Town Council hereby terminates any and all prior agreements Jhat are in conflict with this resolution. Section 3. APPROVAL OF CONTINGENCY FEE CONTRACT. The Town hereby approves the Contract of Outside Counsel in the form attached hereto as Exhibit A with such changes, add tions or deletions as directed by the Mayor or Town Administrator of the Town. Secti n 4. CRITERIA FOR SELECTING OUTSIDE COUNSEL. The Town hereby approves the ontingency Contract Criteria in the Notice. The Town has selected Outside Counsel and has caus the written Notice, which includes the Contingency Contract Criteria, to be given to the public by osting the Notice at the Town Courthouse prior to holding the open meeting called for the purpose considering the Contract. Secti n 5. OTHER MATTERS. The Mayor and Town Administrator of the Town are authorized to io all things proper and necessary to carry out the intent hereof, including the approval of appropriat changes to the Contract. The Town hereby authorizes this Resolution to serve as the final action it connection with Section 2254.102(e) of the Texas Government Code, as amended, for any matter re erenced in the Contract or any amendment to the Contract necessary to effectuate the intent of this kesolution. PASSED AND APPROVED ON THIS 23'a DAY OF JANUARY 2023. Q/\ ATTEST: Sean Kilbride, Mayor Amy-M. Piu#ata, Town Secretary AS TO FORM: L. Stanton L�wry, Town Attomey EXHIBIT A Outside Counsel Contract LL „ Focused on Public Finance 1919. since '� RARKHURST & HOF2TON .4vi l` January 23, 2023 Honorable I vlayor and Members of the Town Council Town of W stlake 1500 Solan i Boulevard Building 7, Suite 7200 Westlake, I exas 76262 Honorable 14avor Kilbride and Members of the Town Council: We ire honored to serve as bond counsel to the Town of Westlake, Texas (the "Town"). The purpos of this engagement letter is to set forth certain matters concerning the services we will perforr i as bond counsel to the Town, both in connection with the issuance of bonds and other public securities (collectively, "Bonds") and on routine matters not directly connected to the issuance of 3onds but that require our advice and counsel. If we are asked to serve in the additional capacity of lisclosure counsel to the Town on a particular offering of public securities, the relevant provisions pelow shall also apply. The attorneys primarily responsible to the Town in the perfornri of the services of this engagement are Rudy Segura and Stefano Tavema. OVERVIEW As I lond Counsel we perform a specialized legal service. The tasks which this firm would undertake v rould be those necessary to rendering an opinion to the effect that any Bonds have been authorized, issued, and delivered in accordance with the Constitution and laws of the State of Texas, that 3uch Bonds constitute valid and legally binding obligations of the Town, and, assuming that the Bor ids qualify for such, that the interest on said Bonds is exempt from federal income taxes under exist rig statutes, regulations, rulings, and court decisions. In particular, we would prepare and direct a legal proceedings and perform the other necessary legal services with reference to the author" ation, issuance, and delivery of such Bonds. If asked to represent the Town in the additional 4 apacity of disclosure counsel (in such capacity, "Disclosure Counsel"), our tasks in such role would consist of conducting securities law due diligence with respect to the Town's finances at d operations, including interviews with staff, and reviewing or drafting an offering document. As Disclosure Counsel, we may or may not be asked to deliver a negative assurance letter (a " Ob-5 Opinion") to the Town addressing the Town's compliance with respect to Securities qnd Exchange Commission ("SEC") Rule 1 Ob-5. SCOPE OF ENGAGEMENT In t�is engagement, we will perform the following duties: 1. In connection with the issuance and sale of any Bonds and subject to the completion of proceedings to our satisfaction, we will render our legal opinion ("Bond Opinion"), regarding the valid" and binding effect of the Bonds, the source of payment and security for the Bonds, and the exclud bility of interest on the Bonds from gross income for federal income tax purposes, if applicable.) The Town will be entitled to rely on our Bond Opinion. The Bond Opinion will be 1 600 Congress Ave. 717 North Hamood Tvro Allen Center 112 E. Pecan Street suite 2150 Suite 900 1200 Smith Street, Suite 1550 Suite 1310 I Austin, Texas 787a Dallas, Texas 75201 Houston, Texas 77002 San Antonio, Texas 78205 T 512.478.3805 T 214.754.9200 713.980.0500 T. 210.225.2800 $12,472,0871 F 214,754.9250 '" 71.3,980:OS10 F 210,225.2984 www.mphlegal.com ti based on fi the certifie, us, and we Bonds. Dt and timely security. Town to cc is and law existing as of its date. In rendering our Bond Opinion, we will rely upon proceedings and other certifications of public officials and other persons furnished to vill assume continuing compliance by the Town with applicable laws relating to all ing the course of this engagement, we will rely on you to provide us with complete information on all developments pertaining to any aspect of the Bonds and their e understand that you will direct members of your staff and other employees of the perate with us in this regard. 2. We will prepare all resolutions, ordinances, and other instruments (including any filings required for the Internal Revenue Service) pursuant to which Bonds will be authorized, issued, delivered and secured, including election proceedings, if necessary, in cooperation and upon consu tation with the Town Council, the Town attorney, Town consultants, and other legal and fmanci l advisors and consultants of the Town. With respect to any financial transaction for which Bons are not issued (e.g., loan agreements, sale/leaseback transactions, etc.), we will prepare an negotiate all necessary proceedings to effectuate such transaction. 3. Assist the Town in seeking from other governmental authorities such approvals, permission and exemptions as we determine are necessary or appropriate in connection with the authorization, issuance and delivery of the Bonds or other transaction. In this connection, we particularly undertake to assist the Town in having the Bonds approved by the Public Finance Division of the Office of the Texas Attorney General, and, following such approval, registered by the Texas omptroller of Public Accounts. 4. We will attend meetings of the Town Council and staff meetings as required or requested. 5. In our capacity as Bond Counsel, we will review only those sections of any Official Statement be disseminated in connection with the sale of the Bonds which describe the Bonds, the ordinan a or resolution pursuant to which they will be issued and the tax-exempt treatment of the interest on the Bonds for purposes of federal income taxation. If requested or necessary for our represe itation, we will also assist the Town in preparing for any rating agency presentations, investor pri sentations or diligence calls related to the Official Statement. 6. In our capacity as Bond Counsel, we will draft the continuing disclosure undertake of the Town and advise the Town of its requirements. We will advise the Town and its consult ints in reviewing documents prepared for submission to national and/or state repositorie with respect to the Town's responsibilities under Rule 15c2-12 promulgated by the United Stal s Securities and Exchange Commission, and we will explain and train Town staff on its implica ons. 7. We will provide continuing advice concerning such subjects as arbitrage and rebate matters, application of bond proceeds, matters of post -issuance compliance with federal income taN laws, new developments in the law concerning bond issues, and changes in industry practices. 8. If asked to represent the Town as Disclosure Counsel on a particular transaction, we will ch,ift, prepare and distribute to the participating underwriters the preliminary official Engagement greement between the Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 2 11 statement prepare the Town's fins its financial verify and c the Official of the Tow render our no facts ha Official St a material of the circi the standai Opinion is without ou necessary matters id the final official statement, as such terms are defined in SEC Rule 15c2-12 , the "Official Statement"). We will gather the information and data necessary to Official Statement from Town staff and other vendors of the Town, including the icial advisor and outside auditor. Prior to disseminating the Official Statement to the underwriters, we will review and discuss the Official Statement with the Town staff, advisor, and other vendors of the Town, as we deem reasonably necessary, in order to infirm the accuracy of the statements and representations being made by the Town in Statement. The Town agrees that it will direct members of its staff and other vendors to cooperate with us in this regard. In addition, if requested by the Town, we will Ob-5 Opinion, which constitutes our legal opinion that, based upon Bond Counsel's i as outlined in the opinion and the information famished by representatives of Town, come to Bond Counsel's attention that would cause Bond Counsel to believe that the -ment used to market Bonds of the Town contain any untrue statement or omit to state ct required to be stated therein or necessary to make the statements therein, in the light istances under which they were made, not misleading. Our 1 Ob-5 Opinion will contain caveats and limitations that are typically included in similar transactions. Our 1 Ob-5 Aely for the benefit of Town and may not be relied upon or given to any other person prior consent. We will, upon request of the Town, undertake such services as may be assist the Town in satisfying the continuing disclosure requirements of Rule 15c2-12. should it be necessary to do so, we will render a written opinion with respect to any :ing to the compliance requirements of Rule 15c2-12. Exc lusions from Scope of Engagement. Our duties in this engagement are limited to those expressly s t forth above. Unless we are separately engaged in writing to perform other services, our duties c o not include any other services, including the following: 1. Preparing requests for tax rulings from the Internal Revenue Service, or no action letters frorr the Securities and Exchange Commission. 2. Preparing state securities law memoranda or investment surveys with respect to the Bonds. 3. Drafting state constitutional or legislative amendments. 4. Pursuing test cases or other litigation. 5. Making an investigation or expressing any view as to the creditworthiness of the Town or B nds. 6. Representing the Town in Internal Revenue Service examinations or inquiries, or Securities i nd Exchange Commission investigations. 7. After closing on Bonds, providing IRS rebate calculations for the Bonds. This is a matter thal should be left to a certified public accountant trained in calculating arbitrage rebate liability. 8. Addressing any other matter not specifically set forth above that is not required to render our Bond Opinion. Engagement TiTeement between the Town of Westlake, Texas and McCall, Parkhurst & Horton. L.L.P. Page 3 a� client relati, understand other party, counsel are letter will c not affect, I As firms, amt time that matter, letter, eitht as to make for such ac advice giv, will provic seek your discretion. ATTORNEY -CLIENT RELATIONSHIP i execution of this engagement letter, the Town will be our client and an attorney- nship will exist between us. We further assume that all other parties in this transaction hat we represent only the Town in this transaction, and that we are not counsel to any and we are not acting as an intermediary among the parties. Our services as bond imited to those contracted for in this letter; the Town's execution of this engagement nstitute an acknowledgment of those limitations. Our representation of the Town will )wever, our responsibility to render an objective Bond Opinion. CONFLICTS 3u are aware, our firm represents many political subdivisions and investment banking g others, who do business with political subdivisions. It is possible that during the are representing the Town, one or more of our present or future clients will have with the Town. It is also possible that we may be asked to represent, in an unrelated or more of the entities involved in the issuance of Bonds. We do not believe such m, if it occurs, will adversely affect our ability to represent you as provided in this because such matters will be sufficiently different from the issuance of the Bonds so uch representations not adverse to our representation of you, or because the potential 'ersity is remote or minor and outweighed by the consideration that it is unlikely that 1 to the other client will be relevant to any aspect of the issuance of the Bonds. We you written notice of any potential conflict we identify and, to the extent necessary, Titten consent to such representation which consent you are free to withhold at your FEES Or NION FEES: The fees for the legal services of this firm, as Bond Counsel, for the issuance of any series of Bonds ("Opinion Fees"), is as follows. All fees are contingent on the sale and delive of the Bonds. The Town may choose to pay our fees from proceeds of the Bonds or from funds on deposit with the Town. Also, we would expect to be reimbursed for our actual out- of-pocket expenses reasonably and necessarily incurred in connection with the authorization, issuance, ai id delivery of such Bonds, i.e. travel, photocopies, courier, a fee of $750 for each filing made with he IRS on the Town's behalf, and the Attorney General's filing fee. Gei Leral Obligation Bonds of the Town: The following fees apply to the issuance and sale of Boi ds secured by and payable from the Town's ad valorem taxes (this includes general obligation onds, tax notes, combination tax and revenue certificates of obligation, obligations issued pur uant to the Public Property Finance Act, and general obligation refunding bonds secured by the Town's ad valorem taxes). $6,000 for the first $1,000,000 borrowed, plus $1.00 per $1,000 borrowed thereafter, based upon the greater of par amount or purchase price for the Bonds. Minimum fee of $10,000 for each series of Bonds issued. The Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 4 IN secured by tax, includ' The follow the United calculated payable Bonds, to to the crt creation. Charge to conduct a bond election: $15,00,0 l Ob-5 Opinion fee: $0.30 per $1,000 in par amount of the Bonds, with a minimum fee of $12,500. Fee for preparation of the Preliminary Official Statement and the Final Official Statement: $7,500. ue Bonds of the Town: The following fees apply to the issuance and sale of Bonds i payable from a source of revenues of the Town other than the Town's ad valorem revenue refunding bonds secured by revenues of the Town. $12,500 for the first $1,000,000 borrowed, plus $1.00 per $1,000 borrowed thereafter, based upon the greater of par amount or purchase price for the Bonds. Minimum fee of $15,000 for each series of Bonds issued. 1 Ob-5 Opinion fee: $0.30 per $1,000 in par amount of the Bonds, with a minimum fee of $12,500. Fee for preparation of the Preliminary Official Statement and the Final Official Statement: $7,500. fees apply to the issuance of Bonds sold to the Texas Water Development Board or ates of America, regardless of the security or source of payment. Our fee would be follows: $12,500 for the first $1,000,000 in par amount of Bonds, plus $5.00 per $1,000 in par amount for the next $4 million in par amount of Bonds, plus $3.00 per $1,000 in par amount thereafter. Minimum fee of $25,000 for each series of Bonds issued. c Improvement District Bonds: Our fees for the issuance of Bonds secured by and i special assessments levied on real property pursuant to Chapter 372, Texas Local Code, would be two -and -a -half percent (2.5%) of the principal amount of said PID paid by the petitioning land developer. Additionally, we would charge any petitioner e creation of a new public improvement district a one-time fee of $25,000 with respect n of such public improvement district, to be paid by such petitioner at the time of said S cial Pro'ect Financings.: Our fees for the issuance of Bonds secured by and payable from fun other than the Town's general fund (e.g., self-supporting project, tax increment financings etc.), would be mutually negotiated at the outset of the transaction. In addition to the foregoing, we will be reimbursed for our out-of-pocket expenses reasonabl and necessarily incurred in connection with rendering non-traditional bond counsel services (.g., electronic research, photocopying, shipping, telecommunication, travel, and other similar ex enses). Said fees and expenses will be billed on a monthly basis, and shall be due and payable within 30 days from the date of receipt of each such bill by the Town. The Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 5 IN for ou to the retained by As Code, we during the Accounts a practice, trade assoi entity or fi the term c If I copy of th. your files. provide yc RECORDS rs and property furnished by you will be returned promptly upon receipt of payment ing fees and client charges. Our own files, including lawyer work product, pertaining action will be retained by us. For various reasons, including the minimization of storage expenses, we reserve the right to dispose of any documents or other materials is after the termination of this engagement. TEXAS GOVERNMENT CODE VERIFICATIONS squired by Chapters 2271 and 2252, and Section 2274.002 of the Texas Government :reby verify and certify that the firm, including any of its wholly owned subsidiary, ned subsidiary, parent company or affiliate, (a) does not and will not "boycott Israel" orm of this Agreement, (b) is not a company listed by the Texas Comptroller of Public der Sections 2270.0201 or 2252.153 of the Texas Government Code, (c) does not have olicy, guidance, or directive that discriminates against a "firearm entity" or "firearm ition", (d) will not discriminate during the term of this Agreement against a firearm arm trade association, and (e) does not and will not boycott "energy companies" during this Agreement. Any defined terming in this paragraph is as defined in the Texas Code, as amended. ACCEPTANCE e foregoing terms are acceptable to you, please so indicate by returning the enclosed engagement letter dated and signed by an authorized officer, retaining the original for We very much look forward to working with the Town and will always endeavor to i with the highest level of performance. MCCALL, PARKHURST & HORTON L.L.P. AWA,- lml ... . Sbg Accepted and Approved TOWN OF WESTLAKE, TEXAS By: -,b-, \ Honorable Sean Kilbride Mayor Date: January, 2023 Engagement greement between the Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 6 EXHIBIT B Notice of Outside Counsel Criteria Town of Westlake, Texas (the "Town") requires the assistance of outside legal counsel in carrying out its responsibilities related to the issuance of municipal securities and other related matters. Pun uant to Section 2254.102(e) of the Texas Government Code, as amended, the Town is required to f rovide written notice to the public stating certain criteria in connection with the engagement f McCall, Parkhurst & Horton L.L.P. ("Outside Counsel"). The own has caused this written notice (this "Notice") to be produced to satisfy Section 2254.102(e) Df the Texas Government Code, as amended, for the purpose of entering into a contingency 7ee contract with Outside Counsel (the "Contract") and the Town has reviewed and approved the following contingency contract criteria for this written notice: The Town is of pursuing 1 time. In tha providing lel interest fron pertaining to securities in other debt of with more th matters relei Texas amonj and other rel. to 1931. Tb personnel of Town attomi law firms wi on an hourly such attome, Town. It is becausethe' reason tnnai )ursuing the matter that is subj ect of the Contract with Outside Counsel for the purpose ie issuance and sale of municipal securities and other debt obligations from time to regard, the Town requires the representation of Outside Counsel for the purpose of al representation to the Townin the areas of federal tax law relating to the exemption of federal income taxation on governmental public securities, federal securities law the issuance of such public securities and State law governing the issuance of public Cexas, and for achieving an efficient and lawful issuance of municipal securities and .igations by the Town from time to time. Outside Counsel is a well -qualified law firm n 100 years of experience and has represented numerous entities similar to the Town in ant to the Contract. Outside Counsel is regularly ranked number one in the State of st its peers in the representation of entities similar to the Town for municipal securities ted matters. The Town has engaged Outside Counsel for previous matters dating back Town cannot adequately perform the legal services with attorneys and supporting the Town due to the state law complexity and federal tax law intricacies of which the ys and supporting personnel do not possess. The Town has found that the attorneys or h experience in the matters relevant to the Contract do not perform their legal services basis; rather, such attorneys and law firms are engaged and are only paid to the extent or law firm successfully completes the matters relevant to the Contract on behalf of the in the best interest of the Town to engage Outside Counsel on a contingency basis 'own wishes to preserve its right to forego the matters described in the Contract for any vial, political or otherwise) at no expense to the Town.