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HomeMy WebLinkAboutPR 13031:VINSON & ELKINSTo ~ From: Date: Re: City of Port Arthur Finance Department Memorandum Steve Fitzgibbons, City Manag~ Rebecca Underhill, CPA, Direc~rd~Y-Fin~Ice February 7, 2005 PR 13031 Recommendation Presented for City Council consideration and approval is PR 13031 which authorizes the City Manager to execute a bond counsel agreement with Vinson and Elkins, Attorneys at Law. Background Vinson and Elkins has served as bond counsel to the City of Port Arthur for many years. As such, they advise and assist the City and First Southwest in all bond issues. Due to the longstanding relationship, the firm has a background and understanding of the issues in Port Arthur. The City has been very satisfied with their services, and wishes to enter into a two year agreement with them. Budgetary Effect Financial advisory fees are typically paid through bond issuance costs. At this time, the only issue being considered is the refunding proposal on today's agenda. The fees are stated in the contract in Section I. P. R. NO. 13031 RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A BOND COUSEL CONTRACT WITH VINSON AND ELKINS. ATTORNEYS AT LAW WHEREAS. the City of Port Arthur requires the service of bi3nd counsel to assist in the issuance of debt: and WHEREAS. the City has a very longstanding relationship with Vinson and Elkins. Attorneys at Law.' and WHEREAS, the City has been satisfied with the performance of Vinson and Elkins. Attorneys at Law, and WHEREAS. the City Council deems it is in the best interest of the City to continue the relationship with a firm that is entirely familiar with the background and circumstances of the City's finances. NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Council hereby authorizes the City Manager to execute the bond counsel contract with Vinson and Elkins, Attorneys at Law as attached hereto as Exhibit A. Section 3. That a copy of the caption of this Resolution shall be spread upon the Minutes of the City Council. READ, ADOPTED, AND APPROVED, this 15th day of February, 2005, AD, at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following vote: AYES: Mayor: Councilmembers: NOES: Mayor ATTEST: Evangeline Green. City Secretary APPROVED AS TO FORM: Mark Sokolow. City Jgt)ttomey t'O,q Ioe¼a, t~ APPROVED FOR ADMINISTRATION: e 7itzgibbons. City M, anager ~,ebecca Underhill. CPA. Finance Director EXHIBIT "A" Frank McCreary fmccreary~,velaw.corn Tel 713758.2440 Fax 713.615,5256 February 9, 2005 Honorable Mayor and City Council City of Port Arthur Post Office Box 1089 Port Arthur. Texas 77641-1089 Ladies and Gentlemen: This letter, when accepted by you, will constitute our agreement to serve as bond counsel to the City. We agree that our services as bond counsel will include the following: Preparation of the ordinance calling each bond election held by the City, including the Spanish translation of the election ordinance: Submission to the United States Department of Justice of a request for preclearance of each bond election under the Federal Voting Rights Act: For each issue or series of bonds (or other obligations), attendance at all meetings of the City Council as required or requested in connection with the planning and authorization of such issue or series, including consultation on federal income tax matters; For each issue or series of bonds (or other obligations), preparation of the ordinance of the City Council authorizing issuance of the obligations of such issue or series, together with all other legal documents comprising the transcript of proceedings for authorization and issuance of such issue or series; Review of information of a legal nature to be included in any Official Statement for each issue or series of obligations, limited to the terms and conditions of the obligations to be issued, the legal authority for the issuance of the obligations and the pledge of taxes or revenues for the payment of such obligations, and the status of the obligations and the interest thereon under federal income tax law; Preparation of and submission to the Attorney General of Texas of a transcript of proceedings for each issue or series of bonds (or other obligations) to Vtnson & Elklns LLP Attorneys at Law Austin Beijing Dallas First City Tower, 1001 Fannln Street, Suite 2300, Houston, Texas 77002-6760 Dubai Houston London Moscow NewYork Tokyo Washington Tel 713.758.2222 Fax 713.758.2346 www.velaw.com February 9, 2005 Page 2 obtain the approval of the Attorney General and registration by the Comptroller of Public Accounts of Texas of such issue or series; Preparation and filing of legal documents required under federal income tax law for each issue or series of bonds (or other obligations), and the preparation of and deliver)' to the City of a letter of instructions with respect to the federal income tax treatment of bond proceeds; 10. Supervision of the printing of each issue or series of bonds (or other obligations); Representation of the City at the closing of the sale of each issue or series, including preparation of all closing documents; and If appropriate, the delivery at closing of our approving opinion as to the validity of each issue or seres of bonds (or other obligations) under Texas law and the exclusion of interest on such obligations from gross income of the holders under federal income tax law. For the services outlined above, our fee would be as follows: (a) For the City's Certificates of Obligation and General Obligation Bonds, a fee of $1.00 per bond with a minimum fee of $12,500, payable from the proceeds of such obligtations. Co) For the City's Refunding Bonds, a fee of $1.25 per bond with a minimum fee of $17,500, payable from the proceeds of the Bonds. The above fees are contingent on the issuance of the obligations by the City. If no obligations are issued, no fee will be due. Fees for bond counsel services in connection with revenue bonds or other obligations not specifically described above will be established at the time of each issue, subject to the approval of the City. The City would also reimburse us for disbursements made on behalf of the City and expenses and charges relating to our representation, including travel, long distance telephone charges, and photocopy and document delivery charges. All such charges xvill be subject to approval by the City. FebnJary g. 2005 Page 3 The services outlined above do not include such matters as services as disclosure counsel in connecnon ~vith bond issues, work on post-closing federal tax or disclosure ~ssues, obtaining IRS rulings or clarifications of federal tax law, or presentations to rating agencies or bond insurers. We will be pleased to provide legal services in connection with any matters not ~ncluded in paragraphs 1 through 10 above, but we believe that such additional services should be the subject of a separate engagement letter. This agreement will remain in force and effect for a period not to exceed two years unless terminated as provided herein. This agreement may be terminated by either party at any time on thirty days' written notice. We agree not to assign or otherwise transfer any interest in this agreemem without the prior written consent of the City. This agreement ~ncorporates the Standard Terms of Engagement For Legal Services (the "Standard Terms'"} attached hereto. We agree that any increases in the "Additional Charges" described in the Standard Terms will not be effective until 30 days after receipt by the City. of a revised schedule of such charges reflecting any such increases. If the arrangement set out above meets with your approval, please take appropriate action to approve this agreement and remm one executed copy to the undersigned. Very truly yours. Frank McCreary 0257:2150 Attachment 2070016_1 .DOC ACCEPTED: CITY OF PORT ARTHUR. TEXAS By: Mayor Febmar,/9, 2005 Page4 VINSON & ELK1NS L.L.P. Standard Terms of Engagement for Legal Services This statement sets forth certain standard terms of our engagement as your lawyers and is intended as a supplement to the engagement letter that we have with you as our client. Unless modified in writing by mutual agreement, these terms will be an imegral part of our agreement with you as reflected in the engagement letter. Therefore, we ask that you review this statement carefully and contact us promptly if you have any questions. We suggest that you retain this statement in your file with the engagement letter. The Scope of Our Work You should have a clear understanding of the legal services we will provide. Any questions that you have should be dealt with promptly. We will at all t~mes act on your behalf to the best of our ability. Any expressions on our part concerning the outcome of your legal matters are expressions of our best professional judgment, but are not guarantees. Such opinions are necessarily limited by our knowledge of the facts and are based on the state of the law ar the time they are expressed. It is our policy that the person or entity that we represent is the person or entity that is identified in our engagement letter, and absent an express agreement to the contrary does not include any affiliates of such person or entity (e.g., if you are a corporation or partnership, any parents, subsidiaries, employees, officers, directors, shareholders or partners of the corporation or partnership, or commonly owned corporations or partnerships; or, if you are a trade association, any members of the trade association). If you believe this engagement includes additional entities or persons as our clients you should inform us immediately. It is also our policy that the attorney-client relationship will be considered terminated upon our completion of any services that you have retained us to perform. If you later retain us to perform further or additional services, our attorney-client relationship will be revived subject to the terms of engagement that we agree on at that time. This engagement shall be subject to the Texas Disciplinary Rules of Professional Conduct. February 9, 2005 Page5 Who Will Provide the Legal Services Customarily, each client of the Firm is served by a principal attorney contact. The principal attorney should be someone in whom you have confidence and with whom you enjoy working. You are free to request a change of principal attorney at any time. Subject to the supervisory role of the principal attorney, your work or parts of it may be performed by other lawyers and legal assistants in the Firm. Such delegation may be for the purpose of involving lawyers or legal assistants with special expertise in a given area or for the purpose of providing services on the most efficient and timely basis. Whenever practicable, we will advise you of the names of those attorneys and legal assistants who work on your matters. How Our Fees Will Be Set Generally, our fees are based on the time spent by the lawyers and paralegal personnel who work on the matter. We will charge for all time spent in representing your interests, including, by way of illustration, telephone and office conferences with you and your representatives, consultants (if any), opposing counsel, and others; conferences among our legal and paralegal personnel; factual investigation; legal research; responding to your requests for us to provide information to your auditors in connection with reviews or audits of financial statements; drafting letters and other documents; and travel. We will keep accurate records of the time we devote to your work in units of quarters of an hour. The hourly rates of our lawyers and legal assistants are reviewed and adjusted annually on a firm-wide basis to reflect current levels of legal experience, changes in overhead costs, and other factors. Although we may from time to time, at the client's request, furnish estimates of legal fees and other charges that we anticipate will be incurred, these estimates are by their nature inexact (due to unforeseeable circumstances) and, therefore, the actual fees and charges ultimately billed may vary from such estimates. With your advance agreement, the fees ultimately charged may be based upon a number of factors, such as: The time and effort required, the novelty and complexity of the issues presented, and the skill required to perform the legal services promptly; The fees customarily charged in the community for similar services and the value of the services to you; The amount of money or value of property involved and the results obtained; February g, 2005 Page 6 The time constraints imposed by you as our client and other circumstances, such as an emergency closing, the need for injunctive relief from court, or substantial disruption of other office business; The nature and longevity of our professional relationship with you; The experience, reputation and expertise of the lawyers performing the services; The extent to which office procedures and systems have produced a high-quality product efficiently. For certain well-defined services (for example, a simple business incorporation), we will (if requested) quote a flat fee. It is our policy not to accept representation on a flat-fee basis except in such defined-service areas or pursuant to a special arrangement tailored to the needs of a particular client. In all such situations, the flat fee arrangement will be expressed in a letter, setting forth both the amount of the fee and the scope of the serwces to be provided. We also will, in appropriate c~rcumstances, provide legal services on a conungent fee basis. Any contingent fee representation must be the subject of a separate and specific engagement letter. Additional Charges In addition to our fees, there will be other charges for items incident to the performance of our legal services, such as photocopying, messengers, travel expenses, long- distance telephone calls, facsimile transmissions, postage, overume for secretaries and other non-legal staff, specialized computer applicauons such as computerized legal research, and filing lees. The current basis for these charges ~s set forth below. The Firm will rewew this schedule of charges on an annual basis and adjust them to take into account changes in the Firm's costs and other factors. Duplicating The Finn charges $.15 per page. Courier Services The Firm charges an amount which generally represents cost including the distribution service provided by the Firm. Depending on the volume of work performed by a service provider, the Finn may receive a volume discount Februa~j g, 2905 Page 7 during a particular accounting period for which no adjustment is made on an individual client's bill. Computer Aided Legal Research (CALR) Third party providers of CALR services charge the Firm amounts each month based on the type, extent, and duratton of the services provided. The Firm charges clients for client research only based on the computed cost to the Finn for the use of the services. This cost is monitored and revised periodically to achieve an average "at cost" rate for clients. Telefax The Firm charges $1.00 per page for outgoing telefaxes, which includes all telephone costs. Telephone The Firm does not charge for local calls. Due to the Firm-wide volume of Dong distance calls and multitude of rates for the various area codes and exchanges (over 65.000k the Firm does not bill each individual call based on the statements received from providers, but rather charges a fiat rate of 5;.41 per minute for each long distance call made within the United States. This rate ($.41) is an approximation of third party provider charges and internal costs associated with this service. International calls are charged based on the rate in effect for the country being called. Travel-Related Expenses Airfare, meals, and related travel expenses charged to the client represent actual, out-of-pocket cost. Depending on the volume of both Finn and personal travel, the Firm may receive beneficial services, including airline tickets from its travel agent for which no adjustment is made on an individual client's account. In addition, credits earned under the Frequent Flyer Programs accrue to the individual traveler and not to the Finn. All Other Costs The Firm charges actual disbursements for third-party services like court reporters, expert witnesses, etc., and may recoup expenses reasonably incurred February 9, 2005 Page 8 in connection with services performed in-house, such as mail services, secretarial overtime, file retrieval, etc. Unless special arrangements are otherwise made, fees and expenses of others (such as experts, investigators, consultants and court reporters) will be the responsibility of, and billed directly to, the client. Further, all invoices in excess of $500 will be forwarded to the client for direct payment. Billing Arrangements and Terms Our billing rates are based on the assumption of prompt payment. Consequently, unless other arrangements are made, fees for services and other charges will be billed monthly and are payable within thirty days of receipt. By engaging us, you acknowledge and agree that you are responsible for payment of fees, expenses and disbursements. In appropriate matters as an accommodation to you, we may agree to direct our bills to third-party payors (e.g., an insurer), but you agree that you will remain fully responsible for timely payment of our bills if for any reason the third party does not timely pay such bills. Likewise, we agree that we owe our professional obligations to you, even when a third party pays our bills. Advances Clients of the Finn are sometimes asked to deposit funds as an advance payment with the Firm. The advance payment will be applied first to payment of charges for such items as photocopying, messengers, travel, etc., as more fully described above, and then to fees for services. The advance will be deposited in our client advance account and we will charge such other charges and our fees against the advance and credit them on our billing statements. In the event such other charges and our fees for services exceed the advance deposited with us, we will bill you for the excess monthly or may request additional advances. Any unused portion of amounts advanced will be refundable at the conclusion of our representation. Confidentiality We will preserve the confidentiality of information you provide us consistent with applicable law including the rules of professional conduct governing lawyers. This confirms your agreement that, with respect to finn brochures or other material or information regarding the firm m~d its practice, we may indicate the general nature of our representation of you and your identity as a fim~ client. FebruaPJ 9. 2005 Page g Client and Firm Documents We will maintain any documents that you furnish to us in our client file (or files) for this matter. At your request, we will return your documents to you at the conclusion of the matter ~or earlier, if appropriatel It is your obligation to tell us which, if any, of the documents that you furnish us that you want returned. We will return those documents to you promptly after our receipt of payment for outstanding fees and charges. Our own files pertaining to this matter, including the work performed by our attorneys, will be retained by the Firm. Any documents retained by the firm will be kept for a certain period of time. and ultimately we will destroy them in accordance with our record retention program schedule then in effect.