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TC BOT Agenda Packet 1.23.23
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(6 <*!7"&!:).$!+"!.++ $4!+ (-!:&9)('!6 +($2!.$4! .1 !.!4(-.9()(+7!+ .+!0 A&(0 -!-: '(.)!$ 4-;!:) .- ! .41(- !+ ! "#$!> '0 +.07\]-!\[**(' !V^! "&0-!($!.41.$' !.+!^IUCV_HCTUII!.$4!0 .-"$.9) ! .''"66"4.+("$-!#())!6.4 !+"!.--(-+!7"&8 M.2 !F!"*!F! 3 1500 Solana Blvd Building 7, Suite 7100 Town of Westlake Westlake, TX 76262 Staff Report File #:WA RES 23-01 Agenda Date:1/23/2023 Agenda #:C.1. ACADEMY STAFF REPORT RECCOMENDATIONS Consider approving Resolution 23-01 approving the Fiscal Year 2021-2022 Annual Audit Report from BrooksWatson & Co., PLLC; and take appropriate action STAFF: Marlene Rutledge, Academic Finance Manager BACKGROUND: OneofthemainobjectivesoftheFinanceDepartmentistoprovidetheBoardofTrusteeswithanAnnual FinancialReport(AFR)forWestlakeAcademyforreview,discussion,andapproval.Incompliancewiththe accountingrequirementsestablishedbytheGovernmentalAccountingStandardsBoard(GASB),thepurposeof theAFRistoprovideusefulandtransparentinformationonthefinancialpositionoftheAcademy,bothatthe Government-Wide and General Fund levels. AttheJune21,2022TownCouncilmeeting,BrooksWatson&Co.,PLLCwasapprovedtoperformWestlake Academy’sindependentauditingservicesfora3-yearperiod.ForfiscalyearendingAugust31,2022, BrooksWatsonwillprovideanAnnualFinancialReportin draftformat byFriday,January20,2022.Withthis draft,staffwillbeabletoprovidesummarizedstatisticalinformationinarevisedagendamemoandcomplete the detailed Management Data & Analysis (MD & A) section of the audit report. Inthemeantime,weagainhadno findings,reportableconditions,normaterialweaknessesthatarerequiredto bereportedtotheTexasEducationAgency(TEA)forfiscalyearendingAugust31,2022.Thiswasverbally confirmedwithLouisBreedlove,AuditManagerwithBrooksWatson,onJanuary16,2022.Findingsmay includematerialweaknessesinTEAcomplianceorinsufficientinternalcontrols,etc.Anyfindingsrequirean explanationwithcorrectivemeasuresbesubmittedtoTEAalongwiththeannualfinancialreportandreviewed in subsequent years to ensure correction and/or compliance in the area of the reported weakness. Note* Final Report will be provided Friday, January 20, 2023. (Auditors are finalizing.) DISCUSSION: BrooksWatson’sAuditManager,LouisBreedlove,willpresentanoverviewandsummaryreportregardingthe WestlakeAcademyAnnualFinancialReport.TheBoardofTrusteeswillhavetheoptiontodiscussandaskany questionsregardingtheauditofMr.BreedloveandTownStaff.Aresolutionispresentedforthe Board’s consideration. FISCAL IMPACT: $18,000 Town of WestlakePage 1 of 2Printed on 1/23/2023 powered by Legistar™ 4 File #:WA RES 23-01 Agenda Date:1/23/2023 Agenda #:C.1. STAFF RECOMMENDATION: Staff recommends the Town Council approve WA Resolution No. 23-01, as presented. BOARD OF TRUSTEE ACTION/OPTIONS: 1.Motion to approve WA Resolution No. 23-01, as presented. 2.Motion to amend, with the following stipulations. (Please state in motion) 3.Motion to deny or take no action. Town of WestlakePage 2 of 2Printed on 1/23/2023 powered by Legistar™ 5 WESTLAKE ACADEMY RESOLUTION NO. 23-01 A RESOLUTION OF THE WESTLAKE ACADEMY BOARD OF TRUSTEES APPROVING THE FISCAL YEAR 2021-2022 ANNUAL AUDIT REPORT FROM BROOKSWATSON & CO., PLLC, CERTIFIED PUBLIC ACCOUNTANTS. WHEREAS, Under Title 19 Chapter 109.23(d) of the Texas Administrative Code, the district must hire at its own expense an independent auditor to conduct an independent audit of its financial statements and provide an opinion on its Annual Financial Report, and WHEREAS, Under Section 44.008(d) of the Texas Education Code, the annual financial th audit is due no later than the 150 day after the end of the fiscal year (January 28 for the August 31 fiscal year), and WHEREAS, the audit report must be approved by the Board of Trustees NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF WESTLAKE ACADEMY: SECTION 1: That all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That the Board of Trustees of Westlake Academy does hereby approve the Fiscal Year 2021-2022 annual audit report from BrooksWatson & Co., PLLC, Certified Public Accountants attached hereto as . SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Board of Trustees hereby determines that it would have adopted this Resolution without the invalid provision. SECTION 4: That this resolution shall become effective from and after its date of passage. rd PASSED AND APPROVED ON THIS 23 DAY OF JANUARY 2023. ___________________________________ Sean Kilbride, President Resolution WA 23-01 Page 1 of 2 6 ATTEST: ________________________________ ___________________________________ Amy M. Piukana, Board Secretary Dr. Sean Wilson, Superintendent APPROVED AS TO FORM: ________________________________ Janet S. Bubert or L. Stanton Lowry, School Attorney Include any Exhibits along with your Resolutions or Ordinances in a separate file. Resolution WA 23-01 Page 2 of 2 7 8 9 : 21 22 23 24 WestlakeAcademy*2600OttingerRoad*TarrantCounty*Westlake,Texas76262 www.westlakeacademy.org 25 26 27 28 29 2: 31 32 33 34 35 36 37 38 39 3: 41 42 43 44 45 46 47 48 49 4: 51 52 53 54 55 56 57 58 59 5: 61 62 63 64 65 66 67 68 69 6: 71 72 73 74 75 76 77 78 79 7: 81 82 83 84 85 86 87 88 89 8: 91 92 93 94 95 96 97 98 99 9: :1 :2 :3 :4 :5 :6 :7 :8 :9 :: 211 212 2 214 with . (GAAS) accordance in Standards Based Approach - Assessment Processes and controls are evaluated Risk Potential areas of risk are identified Compliance Testing Test compliance with laws and regulations Fieldwork Test accuracy of financial information Conclusion & Reporting Evaluation and communication of results Auditing performed was Accepted we are andand laws, could . payroll addition audit financial program balances evaluated which that in Investment assessment and reports, with theagreements, in are those of risk TheGenerally school the procedures : audit Funds grant of payroll disbursements of prepared,communication assure controls underlying and approach over.is of to provisions areas Public to cashtesting and part foundation misstatement) . as revenues, Standards based report letters of - accurate with testing agreed contracts (state risk .The . potential OVERVIEW OF THE AUDIT PROCESS performed grant processes. . are a liabilities, material Audit payablesSubmission,is required results examined to use (PFIA)materially the AcademyandproceduresWeidentifiedleadstatementsrevenue,relatedrelatedPerformedcomplianceregulations,PEIMSActBalancestestingareTheevaluatedto 4 216 of result a as requirements . management ethics with discovered all noted identified Governance with were dealing with were in acts Controls misstatements illegalcontrol compliance Charged Internal or in . encountered Those internal in uncorrected were withRegarding no conducted independence irregularities, procedures were was audit Communication Letters fraud,difficultiesdeficiencies AuditregardingNoNoThereourNo CommunicationCommunication ----- oo 8 21: of % 4 . ending 16 year the represents , during 580 , 253 , . 718 , 360 1 $ $ balance, expenditures decreased Fund ending balance The . General fund 2022 General Fund Balance 2022 , 31 year GeneralAugustfiscalFY 2022 Budget Results: The Academy had an overall negative budget variance of $297k. 221 We remain available throughout the year. Questions? Contact Info:Louis Breedlove, Senior Audit Manager Phone 281.907.9188 | Fax 888.875.058714950 Heathrow Forest Pkwy | Ste 530Houston, TX 77032LBreedlove@BrooksWatsonCPA.com 1500 Solana Blvd Building 7, Suite 7100 Town of Westlake Westlake, TX 76262 Staff Report File #:RES 23-02 Agenda Date:1/23/2023 Agenda #:C.2. TOWN STAFF REPORT RECCOMENDATIONS Consider approving Resolution 23-02 entering into agreement between the Town of Westlake and Government Capital Securities for financial consulting services; and take appropriate action STAFF: Sean Kilbride, Mayor BACKGROUND: Giventheincreasingcomplexitiesofmunicipalfinancein today’spoliticalandeconomicenvironment,ithas been determined a need for change that allows for more proactive financial management strategy. DISCUSSION: GovernmentCapitalSecuritiesispresenttoanswerquestionsabouttheiroverallfinancialconsultingservices thatcanbeprovided,includingexpertisewithbonds,waterdistricts,PublicImprovementDistricts,Developer Agreements,andamyriadofotherfinancialmatterspertinenttotheTown.Ifapproved,theAgreementperiod begins January 23, 2023. RECOMMENDATION: The Town Council may wish to approve Resolution 23-02, as presented. TOWN COUNCIL ACTION/OPTIONS: 1)Motion to approve Resolution 23-02, entering into agreement with Government Capital Securites as financial advisors. 2)Motion to amend with the following stipulations (please state stipulations in motion) 3)Motion to table 4)Motion to deny Town of WestlakePage 1 of 1Printed on 1/19/2023 powered by Legistar© 222 ` TOWN OF WESTLAKE RESOLUTION 23-02 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING AN AGREEMENT BETWEEN THE TOWN OF WESTLAKE AND GOVERNMENT CAPITAL SECURITIES FOR FINANCIAL SERVICES. WHEREAS, the Westlake Town Council Fiscal and Budgetary Policies state With available resources, seek out and employ the assistance of qualified financial advisors and consultants in the management and administration of the Towns financial functions; and WHEREAS, the Town of Westlake staff have evaluated the current and future development WHEREAS, the Town Council recognized the increased complexities of municipal finance in t; and WHEREAS, the Town Council finds that the agreement with Government Capital Securities provides sound financial planning; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the people of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: THAT, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: THAT, the Town Council hereby terminates any and all prior agreements that are in conflict with this resolution. SECTION 3: THAT, the Town Council of the Town of Westlake, Texas, hereby agrees to enter into an agreement with Government Financial Capital Securities. attached hereto as Exhibit and further authorizes the Mayor to execute said agreement on behalf of the Town of Westlake. SECTION 4: It is hereby found, determined, and declared that a sufficient written notice of the date, hour, place, and subject of this meeting of the Town Council was posted at the location and the time required by law preceding this meeting, as required by the Open Meetings Act, Chapter 551, Texas Government Code, and that this meeting has been open to the public as required by law at all times during which this Resolution and the subject matter thereof has been discussed, considered and formally acted upon. It is further found, determined and declared that sufficient written notice of the Engagement Agreement was posted as required by Chapter 2254, Texas Government Code. The Town Council further ratifies, approves and confirms such written notices and the contents and posting thereof. Resolution Page 1 of 2 223 ` SECTION 5: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. SECTION 6: That this resolution shall become effective from and after its date of passage. rd PASSED AND APPROVED ON THIS 23 DAY OF JANUARY 2023. _____________________________ ATTEST: Sean Kilbride, Mayor _____________________________________ Amy M. Piukana, Town Secretary APPROVED AS TO FORM: ____________________________ L. Stanton Lowry, Town Attorney Resolution Page 2 of 2 224 MUNICIPAL ADVISORY AGREEMENT rd This Municipal Advisory Agreement is agreed upon this the 23 day of January 2023, by and between the TOWN OF WESTLAKE (the ÐClientÑ) and GOVERNMENT CAPITAL SECURITIES CORPORATION (ÐGCSCÑ). WHEREAS, the Client periodically desires to issue debt securities or related indebtedness (ÐSecuritiesÑ) and is in need of advice on such issuances; WHEREAS, GCSC has advised a variety of governmental entities and maintains expertise in that area; and will have a fiduciary responsibility to the Client; and WHEREAS, the Client and GCSC desire to establish a relationship, which is terminable as provided herein, pursuant to which GCSC will advise the Client on the issuance of Securities, as well as provide advice pertaining to the structuring and sale of the Securities and other matters. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions referenced and exchanged herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, covenant and agree as follows: 1. Scope of Municipal Advisory Activities to be Performed. GCSC shall serve as the ClientÓs Municipal Advisor for the issuance of the ClientÓs Securities. Such advice can include, as applicable to the Securities to be issued, the following: Assist in the selection of bond counsel and any other professional services entity in connection with the issuance of the Securities. Advise as to the obligation structure, considering such factors as, terms, features, maturity amounts and dates, coupon rates, call features, reserve requirements, administrative costs, security features, credit enhancements and other pertinent factors, and make recommendations to the Client with respect to the appropriateness and adequacy of the obligation structure and features. Advise the Client generally on alternative financing and loan practices, structures and programs. Confer with bond and tax counsel concerning all necessary legal documents and proceedings and obtain their opinion relative to the compliance with limitations and constraints of federal tax regulations applicable to tax-exempt obligations. Assist in the preparation of preliminary and final official statements, if requested. Arrange for purchase of escrow securities, if applicable. Select a paying agent or trustee, as required, or an escrow agent to hold the escrow securities and make payments on bonds refunded, if applicable. Meet with the Client and personnel to assist in explaining the ClientÓs Securities, if requested. Advise the Client of the prevailing bond market conditions and recommend timing of any public sale or private placement of Securities. 225 Coordinate the preparation of materials for submission to rating agencies for municipal bond rating. Attend the bond sale, review the bids received and provide recommendations to the Client and its governing board as to acceptance of a bid; and, if applicable, structure the refunding issue based on the bid accepted. Assist in the preparation and filing of annual continuing disclosure reports, if applicable, with the MSRB. Advise, assist, negotiate on behalf of, and make recommendations to the Client regarding the terms and pricing for the ClientÓs securities or other obligations with (a) state or national banks, (b) accredited investors, or (c) qualified institutional buyers. Perform all other duties usually performed by a Municipal Advisor incidental to a financing program as may be requested by the Client. However, GCSC will NOT accept or hold ÐGood FaithÑ deposits to Client provided by Underwriters. 2. Independent Registered Municipal Advisor (ÐIRMAÑ). If acting in the capacity of an Independent Registered Municipal Advisor (ÐIRMAÑ) with regard to the IRMA exemption of the SEC Rule, GCSC will review all third-party recommendations submitted to GCSC in writing by the Client. Compensation. Issuer shall pay a fee for each issuance of Securities which shall be equal to or less than the fee schedule below, plus reasonable expenses to GCSC as compensation for advising the Issuer on the i Issuance of Securities. Said payment will be due and payable upon the funding of said Securities. DƚǝĻƩƓƒĻƓƷ /ğƦźƷğƌ {ĻĭǒƩźƷźĻƭ CĻĻ {ƷƩǒĭƷǒƩĻ Λ.ğƭĻķ ƚƓ ƷƚƷğƌ ƦƩƚĭĻĻķƭ ƚŅ źƭƭǒĻΜ CƩƚƒ υЉ Ʒƚ υЊͲЉЉЉͲЉЉЉ ŅĻĻ źƭ υЊЎͲЉЉЉ CƩƚƒ υЊͲЉЉЉͲЉЉЊ Ʒƚ υЎͲЉЉЉͲЉЉЉ ŅĻĻ źƭ υЊЎͲЉЉЉ њ υЎ͵ЉЉ ƦĻƩ υЊͲЉЉЉ ƚǝĻƩ υЊͲЉЉЉͲЉЉЉ CƩƚƒ υЎͲЉЉЉͲЉЉЊ Ʒƚ υЊЉͲЉЉЉͲЉЉЉ ŅĻĻ źƭ υЌЎͲЉЉЉ њ υЋ͵ЎЉ ƦĻƩ υЊͲЉЉЉ ƚǝĻƩ υЎͲЉЉЉͲЉЉЉ CƩƚƒ υЊЉͲЉЉЉͲЉЉЊ ğƓķ ğĬƚǝĻ ŅĻĻ źƭ υЍАͲЎЉЉ њ υЋ͵ЉЉ ƦĻƩ υЊͲЉЉЉ ƚǝĻƩ υЊЉͲЉЉЉͲЉЉЉ Other services: MSRB Continuing Disclosure (if required) preparation & filing $1,750 per year. House Bill 1378 preparation $250 per year. Fees for Arbitrage Services Arbitrage Reporting Base fee of $1,200 per bond year for each series of bonds outstanding. Additions to the base fee will be assessed for unexpected complexities arising beyond the scope of a standard arbitrage reporting engagement and will be discussed with the Client prior to invoicing. Tax Form Preparation $1,000 to $1,500 per form Arbitrage Consulting $300 per hour 226 3. Term of Engagement. Client agrees to utilize GCSC as its Municipal Advisor for a period of one (1) year from and after the date of this Agreement or for such period of time until the aforementioned Securities have been successfully funded. It is understood that this agreement shall automatically renew for subsequent one (1) year periods of time. It is recognized that both the Client and GCSC possess the right to terminate this Agreement anytime with or without cause upon thirty (30) daysÓ prior written notice. 4. Fiduciary Duty. GCSC is registered as a Municipal Advisor with the SEC and Municipal Securities Rulemaking Board (ÐMSRBÑ). As such, GCSC has a Fiduciary duty to Client and must provide both a Duty of Care and a Duty of Loyalty that entails the following. Duty of Care: a) exercise due care in performing its municipal advisory activities; b) possess the degree of knowledge and expertise needed to provide Client with informed advice; c) make a reasonable inquiry as to the facts that are relevant to Client determination as to whether to proceed with a course of action or that form the basis for any advice provided to Client; and d) undertake a reasonable investigation to determine that GCSC is not forming any recommendation on materially inaccurate or incomplete information; GCSC must have a reasonable basis for: i. any advice provided to or on behalf of the Client; ii. any representations made in a certificate that it signs that will be reasonably foreseeably relied upon by the Client, any other party involved in the municipal securities transaction or financial product, or investors in ClientÓs securities; and iii. any information provided to Client or other parties involved in the municipal securities transaction in connection with the preparation of an official statement. Duty of Loyalty: GCSC must deal honestly and with the utmost good faith with the Client and act in Client Ós best interests without regard to the financial or other interests of GCSC. GCSC will eliminate or provide full and fair disclosure (included herein) to Client about each material conflict of interest (as applicable). GCSC will not engage in municipal advisory activities with Client as an financial entity, if it cannot manage or mitigate its conflicts in a manner that will permit it to act in Client Ós best interests. 6. Authority to Execute. The individuals signing this Agreement on behalf of GCSC and the Client each represents and warrants that he or she is duly authorized to execute and deliver this Agreement on such partyÓs behalf. This Agreement is entered into on the date first written above. THE TOWN OF WESTLAKE GOVERNMENT CAPITAL SECURITIES CORPORATION By:___________________________________ By: ___________________________________ Title: Mayor Title: President 227 i i Required Disclosures: Disclosure of Conflicts of Interest and Legal or Disciplinary Events Pursuant to Municipal Securities Rulemaking Board (ÐMSRBÑ) Rule G-42, on Duties of Non-Solicitor Municipal Advisors, Municipal Advisors are required to make certain written disclosures to clients and potential clients which include, amongst other things, Conflicts of Interest and any Legal or Disciplinary events of GCSC and its associated persons. Conflicts of Interest Compensation GCSC represents that in connection with the issuance of municipal securities, GCSC may receive compensation from a Client or Obligated Person for services rendered, which compensation is contingent upon the successful closing of a transaction and/or is based on the size of a transaction. Consistent with the requirements of MSRB Rule G-42, GCSC hereby discloses that such contingent and/or transactional compensation may present a potential conflict of interest regarding GCSCÓs ability to provide unbiased advice to enter into such transaction. The contingent fee arrangement creates an incentive for the firm to recommend unnecessary financings or financings that are disadvantageous to the Client, or to advise Client to increase the size of the issue. GCSC mitigates such conflict through its adherence to its fiduciary duty to Client, which includes a duty of loyalty to Client in performing all municipal advisory activities to Client. This duty of loyalty obligates GCSC to deal honestly and with the utmost good faith with Client and act in the ClientÓs best interests without regard to GCSCÓs financial or other interests. Other Municipal Advisor Relationships GCSC serves a wide variety of other Clients that may from time to time have interests that could have a direct or indirect impact on the interests of another GCSC Client. For example, GCSC serves as municipal advisor to other municipal advisory Clients and, in such cases, owes a regulatory duty to such other Clients. These other Clients may, from time to time and depending on the specific circumstances, have competing interests. In acting in the interests of its various Clients, GCSC could potentially face a conflict of interest arising from these competing Client interests. GCSC fulfills its regulatory duty and mitigates such conflicts through dealing honestly and with the utmost good faith with all of its Clients. GCSC fulfills its regulatory duty and mitigates such conflicts through dealing honestly and with the utmost good faith with Client receiving this disclosure. GCSC does not engage in any fee-splitting arrangement involving GCSC and any provider of investments. GCSC as an administrative task and on behalf of the Issuer, will pay various participants involved in a municipal bond transaction from monies received from the Issuer. GCSC does not consider its administrative task for the Issuer to have any impediment to GCSCÓs ability to render unbiased and competent advice or to fulfill its regulatory duty to its clients. The fee paid to GCSC increases the cost of issuance to Client. The increased cost occurs from compensating GCSC for municipal advisory services provided. If GCSC becomes aware of any additional potential or actual conflict of interest after this disclosure, GCSC will disclose the detailed information in writing to the Client or obligated person in a timely manner. Legal or Disciplinary Events GCSC does not have any legal events or disciplinary history on GCSCÓs Form MA and Form MA-I, which includes information about any criminal actions, regulatory actions, investigations, terminations, judgments, liens, civil judicial actions, customer complaints, arbitrations and civil litigation. The Client may electronically access GCSCÓs most recent Form MA and each most recent Form MA-I filed with the Commission at the following website: www.sec.gov/edgar/searchedgar/companysearch.html. There have been no material changes to a legal or disciplinary event disclosure on any Form MA or Form MA-I filed with the SEC. If any material legal or regulatory action is brought against GCSC, GCSC will provide complete disclosure to the Client in detail allowing the Client to evaluate GCSC, its management and personnel. Municipal Securities Rulemaking Board Rule G-10 Disclosure Pursuant to Municipal Securities Rulemaking Board Rule G-10, on Investor and Municipal Advisory Client Education and Protection, Municipal Advisors are required to provide certain written information to their municipal entity and obligated person clients which include the following: GCSC is currently registered as a Municipal Advisor with the U.S. Securities and Exchange Commission and the Municipal Securities Rulemaking Board. Within the Municipal Securities Rulemaking Board (ÐMSRBÑ) website at www.msrb.org, CLIENT may obtain the Municipal Advisory client brochure that is posted on the MSRB website. The brochure describes the protections that may be provided by the MSRB Rules along with how to file a complaint with financial regulatory authorities. 228 1500 Solana Blvd Building 7, Suite 7100 Town of Westlake Westlake, TX 76262 Staff Report File #:RES 23-03 Agenda Date:1/23/2023 Agenda #:C.3. TOWN STAFF REPORT RECCOMENDATIONS Consider approving Resolution 23-03 approving a contingency fee contract for legal services with McCall Parkhurst & Horton L.L.P and other related matters; and take appropriate action STAFF: Sean Kilbride, Mayor BACKGROUND: The Town has previously used Bracewell Law Firm to assist with the issuance of Bonds. Giventheincreasedcomplexitiesofmunicipalfinance,thereisasubstantialneedforthelegalservicesof OutsideBondCounselandthattheservicesofOutsideCounselcannotbeadequatelyperformedbythe attorneys and supporting personnel of the Town. TheproposedresolutionprovidesnoticeofOutsideCounselcriteriaandapprovesenteringintoagreementwith McCall, Parkhurst & Horton L.L.P as the TownÓs Bond Counsel. RECOMMENDATION: The Town Council may wish to approve Resolution 23-03, as presented. TOWN COUNCIL ACTION/OPTIONS: 1)Motion to approve Resolution 23-03, as presented 2)Motion to approve and amend with the following stipulations (please state stipulations in motion) 3)Motion to table 4)Motion to deny Town of WestlakePage 1 of 1Printed on 1/23/2023 powered by Legistar© 229 TOWN OF WESTLAKE RESOLUTION 23-03 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING RESOLUTION AUTHORIZING A CONTINGENCY FEE CONTRACT FOR LEGAL SERVICES AND OTHER RELATED MATTERS WHEREAS, 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; and WHEREAS, pursuant to Section 2254.102(e) of the Texas Government Code, as amended, the Town is required to provide written notice of its intent to enter a contingency fee contract for legal services 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 WHEREAS, the Town has reviewed the contingency fee contract provided by McCall, Parkhurst & Horton L.L.P. (Outside Counsel) attached hereto as Exhibit A (the Contract); and WHEREAS, 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), by posting this entire Resolution, including the Notice, on the Towns website prior to holding the open meeting called for the purpose of considering the Contract; and WHEREAS, the Town deems it appropriate to approve the Contract subject to the findings as further set below; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF TOWN OF WESTLAKE, TEXAS THAT: Section 1. FINDINGS OF THE TOWN. The Town finds that there is a substantial need for the legal services of Outside Counsel and that the services of Outside Counsel cannot be adequately performed by the attorneys and supporting personnel of the Town. Furthermore, the legal services contemplated in the Contract cannot be reasonably 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 or because the Town does not have funds to pay the estimated amount required under a contract providing only for the payment of hourly fees. Section 2. CONFLICTS. The Town Council hereby terminates any and all prior agreements that are in conflict with this resolution. 22: 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, additions or deletions as directed by the Mayor or Town Administrator of the Town. Section 4. CRITERIA FOR SELECTING OUTSIDE COUNSEL. The Town hereby approves the Contingency Contract Criteria in the Notice. The Town has selected Outside Counsel and has caused the written Notice, which includes the Contingency Contract Criteria, to be given to the public by posting the Notice at the Town Courthouse prior to holding the open meeting called for the purpose of considering the Contract. Section 5. OTHER MATTERS. The Mayor and Town Administrator of the Town are authorized to do all things proper and necessary to carry out the intent hereof, including the approval of appropriate changes to the Contract. The Town hereby authorizes this Resolution to serve as the final action in connection with Section 2254.102(e) of the Texas Government Code, as amended, for any matter referenced in the Contract or any amendment to the Contract necessary to effectuate the intent of this Resolution. rd PASSED AND APPROVED ON THIS 23 DAY OF JANUARY 2023. _____________________________ ATTEST: Sean Kilbride, Mayor _____________________________________ Amy M. Piukana, Town Secretary APPROVED AS TO FORM: ____________________________ L. Stanton Lowry, Town Attorney 231 EXHIBIT A Outside Counsel Contract 232 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. Pursuant to Section 2254.102(e) of the Texas Government Code, as amended, the Town is required to provide written notice to the public stating certain criteria in connection with the engagement of McCall, Parkhurst & Horton L.L.P. (Outside Counsel). The Town has caused this written notice (this Notice) to be produced to satisfy Section 2254.102(e) of the Texas Government Code, as amended, for the purpose of entering into a contingency fee 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 pursuing the matter that is subject of the Contract with Outside Counsel for the purpose of pursuing the issuance and sale of municipal securities and other debt obligations from time to time. In that regard, the Town requires the representation of Outside Counsel for the purpose of providing legal representation to the Townin the areas of federal tax law relating to the exemption of interest from federal income taxation on governmental public securities, federal securities law pertaining to the issuance of such public securities and State law governing the issuance of public securities in Texas, and for achieving an efficient and lawful issuance of municipal securities and other debt obligations by the Town from time to time. Outside Counsel is a well-qualified law firm with more than 100 years of experience and has represented numerous entities similar to the Town in matters relevant to the Contract. Outside Counsel is regularly ranked number one in the State of Texas amongst its peers in the representation of entities similar to the Town for municipal securities and other related matters. The Town has engaged Outside Counsel for previous matters dating back to 1931. The Town cannot adequately perform the legal services with attorneys and supporting personnel of the Town due to the state law complexity and federal tax law intricacies of which the Town attorneys and supporting personnel do not possess. The Town has found that the attorneys or law firms with experience in the matters relevant to the Contract do not perform their legal services on an hourly basis; rather, such attorneys and law firms are engaged and are only paid to the extent such attorney or law firm successfully completes the matters relevant to the Contract on behalf of the Town. It is in the best interest of the Town to engage Outside Counsel on a contingency basis because the Town wishes to preserve its right to forego the matters described in the Contract for any reason (financial, political or otherwise) at no expense to the Town. 233 January 23, 2023 Honorable Mayor and Members of the Town Council Town of Westlake 1500 Solana Boulevard Building 7, Suite 7200 Westlake, Texas 76262 Honorable Mayor Kilbride and Members of the Town Council: We are honored to serve as bond counsel to the Town of Westlake, Texas (the “Town”). The purpose of this engagement letter is to set forth certain matters concerning the services we will perform 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 Bonds but that require our advice and counsel. If we are asked to serve in the additional capacity of disclosure counsel to the Town on a particular offering of public securities, the relevant provisions below shall also apply. The attorneys primarily responsible to the Town in the performance of the services of this engagement are Rudy Segura and Stefano Taverna. OVERVIEW As Bond Counsel we perform a specialized legal service. The tasks which this firm would undertake would 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 such Bonds constitute valid and legally binding obligations of the Town, and, assuming that the Bonds qualify for such, that the interest on said Bonds is exempt from federal income taxes under existing statutes, regulations, rulings, and court decisions. In particular, we would prepare and direct the legal proceedings and perform the other necessary legal services with reference to the authorization, issuance, and delivery of such Bonds. If asked to represent the Town in the additional capacity 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 and 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 “10b-5 Opinion”) to the Town addressing the Town’s compliance with respect to Securities and Exchange Commission (“SEC”) Rule 10b-5. SCOPE OF ENGAGEMENT In this 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 validity and binding effect of the Bonds, the source of payment and security for the Bonds, and the excludability 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 234 based on facts and law existing as of its date. In rendering our Bond Opinion, we will rely upon the certified proceedings and other certifications of public officials and other persons furnished to us, and we will assume continuing compliance by the Town with applicable laws relating to all Bonds. During the course of this engagement, we will rely on you to provide us with complete and timely information on all developments pertaining to any aspect of the Bonds and their security. We understand that you will direct members of your staff and other employees of the Town to cooperate 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 consultation with the Town Council, the Town attorney, Town consultants, and other legal and financial advisors and consultants of the Town. With respect to any financial transaction for which Bonds are not issued (e.g., loan agreements, sale/leaseback transactions, etc.), we will prepare and negotiate all necessary proceedings to effectuate such transaction. 3. Assist the Town in seeking from other governmental authorities such approvals, permissions 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 Comptroller 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 to be disseminated in connection with the sale of the Bonds which describe the Bonds, the ordinance 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 representation, we will also assist the Town in preparing for any rating agency presentations, investor presentations or diligence calls related to the Official Statement. 6. In our capacity as Bond Counsel, we will draft the continuing disclosure undertaking of the Town and advise the Town of its requirements. We will advise the Town and its consultants in reviewing documents prepared for submission to national and/or state repositories with respect to the Town’s responsibilities under Rule 15c2-12 promulgated by the United States Securities and Exchange Commission, and we will explain and train Town staff on its implications. 7. We will provide continuing advice concerning such subjects as arbitrage and rebate matters, the application of bond proceeds, matters of post-issuance compliance with federal income tax 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 draft, prepare and distribute to the participating underwriters the preliminary official ____________________________ Engagement Agreement between the Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 2 235 statement and the final official statement, as such terms are defined in SEC Rule 15c2-12 (collectively, the “Official Statement”). We will gather the information and data necessary to prepare the Official Statement from Town staff and other vendors of the Town, including the Town’s financial advisor and outside auditor. Prior to disseminating the Official Statement to the participating underwriters, we will review and discuss the Official Statement with the Town staff, its financial advisor, and other vendors of the Town, as we deem reasonably necessary, in order to verify and confirm the accuracy of the statements and representations being made by the Town in the Official Statement. The Town agrees that it will direct members of its staff and other vendors of the Town to cooperate with us in this regard. In addition, if requested by the Town, we will render our 10b-5 Opinion, which constitutes our legal opinion that, based upon Bond Counsel’s investigation as outlined in the opinion and the information furnished by representatives of Town, no facts have come to Bond Counsel’s attention that would cause Bond Counsel to believe that the Official Statement used to market Bonds of the Town contain any untrue statement or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Our 10b-5 Opinion will contain the standard caveats and limitations that are typically included in similar transactions. Our 10b-5 Opinion is solely for the benefit of Town and may not be relied upon or given to any other person without our prior consent. We will, upon request of the Town, undertake such services as may be necessary to assist the Town in satisfying the continuing disclosure requirements of Rule 15c2-12. Additionally, should it be necessary to do so, we will render a written opinion with respect to any matters relating to the compliance requirements of Rule 15c2-12. Exclusions from Scope of Engagement. Our duties in this engagement are limited to those expressly set forth above. Unless we are separately engaged in writing to perform other services, our duties do not include any other services, including the following: 1. Preparing requests for tax rulings from the Internal Revenue Service, or no action letters from 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 Bonds. 6. Representing the Town in Internal Revenue Service examinations or inquiries, or Securities and Exchange Commission investigations. 7. After closing on Bonds, providing IRS rebate calculations for the Bonds. This is a matter that 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 Agreement between the Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 3 236 ATTORNEY-CLIENT RELATIONSHIP Upon execution of this engagement letter, the Town will be our client and an attorney- client relationship will exist between us. We further assume that all other parties in this transaction understand that we represent only the Town in this transaction, and that we are not counsel to any other party, and we are not acting as an intermediary among the parties. Our services as bond counsel are limited to those contracted for in this letter; the Town’s execution of this engagement letter will constitute an acknowledgment of those limitations. Our representation of the Town will not affect, however, our responsibility to render an objective Bond Opinion. CONFLICTS As you are aware, our firm represents many political subdivisions and investment banking firms, among others, who do business with political subdivisions. It is possible that during the time that we are representing the Town, one or more of our present or future clients will have transactions with the Town. It is also possible that we may be asked to represent, in an unrelated matter, one or more of the entities involved in the issuance of Bonds. We do not believe such representation, if it occurs, will adversely affect our ability to represent you as provided in this letter, either because such matters will be sufficiently different from the issuance of the Bonds so as to make such representations not adverse to our representation of you, or because the potential for such adversity is remote or minor and outweighed by the consideration that it is unlikely that advice given to the other client will be relevant to any aspect of the issuance of the Bonds. We will provide you written notice of any potential conflict we identify and, to the extent necessary, seek your written consent to such representation which consent you are free to withhold at your discretion. FEES O PINION F EES: 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 delivery 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, and delivery of such Bonds, i.e. travel, photocopies, courier, a fee of $750 for each filing made with the IRS on the Town’s behalf, and the Attorney General’s filing fee. General Obligation Bonds of the Town: The following fees apply to the issuance and sale of Bonds secured by and payable from the Town’s ad valorem taxes (this includes general obligation bonds, tax notes, combination tax and revenue certificates of obligation, obligations issued pursuant 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. ____________________________ Engagement Agreement between the Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 4 237 Charge to conduct a bond election: $15,000 10b-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. Revenue Bonds of the Town: The following fees apply to the issuance and sale of Bonds secured by and payable from a source of revenues of the Town other than the Town’s ad valorem tax, including 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. 10b-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. Bonds sold to the Texas Water Development Board or the United States of America: The following fees apply to the issuance of Bonds sold to the Texas Water Development Board or the United States of America, regardless of the security or source of payment. Our fee would be calculated as 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. Public Improvement District Bonds: Our fees for the issuance of Bonds secured by and payable from special assessments levied on real property pursuant to Chapter 372, Texas Local Government Code, would be two-and-a-half percent (2.5%) of the principal amount of said PID Bonds, to be paid by the petitioning land developer. Additionally, we would charge any petitioner requesting the creation of a new public improvement district a one-time fee of $25,000 with respect to the creation of such public improvement district, to be paid by such petitioner at the time of said creation. Special Project Financings.: Our fees for the issuance of Bonds secured by and payable from funds 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 reasonably and necessarily incurred in connection with rendering non-traditional bond counsel services (e.g., electronic research, photocopying, shipping, telecommunication, travel, and other similar expenses). 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. ____________________________ Engagement Agreement between the Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 5 238 RECORDS Papers and property furnished by you will be returned promptly upon receipt of payment for outstanding fees and client charges. Our own files, including lawyer work product, pertaining to the transaction will be retained by us. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to dispose of any documents or other materials retained by us after the termination of this engagement. TEXAS GOVERNMENT CODE VERIFICATIONS As required by Chapters 2271 and 2252, and Section 2274.002 of the Texas Government Code, we hereby verify and certify that the firm, including any of its wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate, (a) does not and will not “boycott Israel” during the term of this Agreement, (b) is not a company listed by the Texas Comptroller of Public Accounts under Sections 2270.0201 or 2252.153 of the Texas Government Code, (c) does not have a practice, policy, guidance, or directive that discriminates against a “firearm entity” or “firearm trade association”, (d) will not discriminate during the term of this Agreement against a firearm entity or firearm trade association, and (e) does not and will not boycott “energy companies” during the term of this Agreement. Any defined terming in this paragraph is as defined in the Texas Government Code, as amended. ACCEPTANCE If the foregoing terms are acceptable to you, please so indicate by returning the enclosed copy of this engagement letter dated and signed by an authorized officer, retaining the original for your files. We very much look forward to working with the Town and will always endeavor to provide you with the highest level of performance. MCCALL, PARKHURST & HORTON L.L.P. By: ______________________________ Rodolfo Segura Jr Accepted and Approved TOWN OF WESTLAKE, TEXAS By: _______________________________________ Honorable Sean Kilbride Mayor Date: January ____, 2023 ____________________________ Engagement Agreement between the Town of Westlake, Texas and McCall, Parkhurst & Horton L.L.P. Page 6 239 1500 Solana Blvd Building 7, Suite 7100 Town of Westlake Westlake, TX 76262 Staff Report File #:23-15 Agenda Date:1/23/2023 Agenda #:D.1. TOWN STAFF REPORT RECCOMENDATIONS The Town Council will conduct a closed session pursuant to Texas Government Code, annotated, Chapter 551, Section 551.074(a)(1): Deliberation regarding Personnel Matters to deliberate the appointment, employment, evaluation, reassignment, duties of a public officer or employee: (Town Manager) Town of WestlakePage 1 of 1Printed on 1/19/2023 powered by Legistar© 23: