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HomeMy WebLinkAboutC2009-070 - 2/24/2009 - ApprovedFULBRIGHT Sc JAWORSKI L.L.P. A REGISTERED LIMITED LIABILITY PARTNERSHIP 300 CONVENT STREET. SUITE 2200 SAN f\NTONIO. TEXAS 7 8205-3 7 9 2 WWW.FU LB RIGHT.COM W KUHN@FU LB RIG HT.COM DIRECT DIAL: (210) 270-7131 TELEPHONE: X210) 224-5675 FACSIMILE: (210) 270-7205 February 24, 2009 Honorable Henry Garrett Mayor City of Corpus Christi 1201 Leopard Street Corpus Christi, Texas 78401 1ZE: ENGAGEMENT TO PROVIDE BOND COUNSEL SERVICES TO THE CITY OF CORPUS CHRISTI, TEXAS Dear Mayor Garrett: Our Firm is pleased to offer to represent the City of Corpus Christi, Texas (the "City's in connection with rendering bond counsel services to the City, including, but not limited to, the issuance of any debt instrument or certain other obligations (the "Obligations ") issued by the City or any non-profit corporation created by the City (the "Matter'. It is our understanding that this engagement is for a five year initial term, with an option to extend this term to be exercised at the sole discretion of the City. The purpose of this letter is to set forth our agreement with respect to the terms of our engagement. As special legal counsel for the City, we will represent your interests in regard to the Matter. Although we will endeavor to achieve a result in the Matter that is satisfactory to you, it is understood that we make no promises or guarantees to you concerning the outcome of any particular transaction and cannot do so. Our representation of the City will involve providing general legal advice, drafting all appropriate legal documents, reviewing and approving any disclosure documents relating to the sale of the Obligations (in consultation with the City staff and the City's financial advisors), and, to the extent necessary, obtaining the approval of the Texas Attorney General for the issuance of the Obligations. Assuming that the City can make certain representations, we will render our Firm's bond counsel opinion concerning the validity and enforceability of the Obligations and, to the extent necessary, the exemption of interest for federal income tax purposes to the holders of the Obligations. This bond counsel opinion will be relied upon by the proposed purchasers of the Obligations. Cooperation. To enable us effectively to perform the services contemplated, it is essential that you disclose fully and accurately all material facts and keep us apprised of all developments relating to the Matter. You have agreed to cooperate fully with us and to make 2009-070 M2009-054 02/24/09 Fulbright & Jaworslci Mayor Henry Garrett February 24, 2009 Page 2 your representatives available to attend meetings, conferences, hearings, and other proceedings. As necessary, we will need to work closely with the City staff to finalize the Matter. In connection with the issuance of Obligations, our fee will be based upon the scale attached hereto as Exhibit A and incorporated by reference for all purposes, plus reimbursement for reasonable expenses as described below. Our fees and expenses are payable out of proceeds from the sale of the Obligation, and are contingent upon the sale of the Obligations. There will be no additional fees for time spent and resources allocated to respond to post-compliance issuance questions asked by the representatives of the City concerning these Obligations. For any work outside of the scope of our Firm's bond counsel services or to the extent the complexity of the Matter dictates otherwise (which could result in lower hourly rates), our fees are based on the time spent by the attorneys and the paralegal personnel who work on the Matter. This negotiation may also include professional services related to the calling and conducting any elections. We will not commence any such work without the prior approval of an authorized representative of the City. 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, opposing counsel, and others; conferences among our attorneys and paralegal personnel; factual investigation if needed; legal research; responding to your requests for us to provide information to you or your auditors; drafting letters and other documents and travel if needed. Generally, our hourly billing rates for domestic offices range from $390 to $875 for partners; from $310 to $485 for senior associates; from $350 to $580 for senior counsel; from $175 to $525 for counsel; from $185 to $350 for associates; from $150 to $350 for patent agents; from $390 to $900 for of counsel; from $90 to $250 for paralegals; and from $155 to $255 for senior paralegals. My time is billed at $560 an hour. Other lawyers and paralegals may be assigned as necessary to achieve proper staffing. Work performed by paralegals will be charged at rates ranging from $140 to $215 an hour. Billing rates for both attorneys and paralegal personnel are reviewed annually and generally are revised at the beginning of each year to reflect an attorney's and paralegal's increased experience level. However, we will not charge the City for our time and resources spent performing research necessary to respond to questions or issues related to Obligations issued prior to execution of this engagement agreement. Additionally, there will be no fee for our time and resources spent in response to questions or issues which require less than five (5) hours of time per individual Matter. E~x enses. In addition to our fees for rendering professional services, our statement will include other charges for expenses and services incurred incident to the performance of our legal services, such as photocopying, delivery charges, travel expenses, long-distance telephone calls, facsimile transmissions, Texas Attorney General's filing fee, overtime for secretaries and other nonlegal staff, specialized computer applications such as computerized legal research and filing fees. A copy of Fulbright & Jaworski L.L.P.'s current recharge schedule, which is subject to change from time to time, is attached as Exhibit B. We will provide you with at least thirty (30) 80467497.4 Mayor Henry Garrett February 24, 2009 Page 3 days' advance written notice of any change in Exhibit B expenses or with respect to our Firm's hourly billing rates. It is not our policy to make any profit on any of these other expenses and services. Our invoices will reflect the cost to us of the products and services. In some situations, the actual cost of providing the product or service is difficult to establish, in which case we will use our professional judgment on the charges to be made. In some situations, we can arrange for ancillary services to be provided by third parties with direct billing to the City. Bi11inQ Cvcle. Our billing rates are based on the assumption of prompt payment. Consequently, fees for our legal services to the City that are based upon hourly rates will be billed monthly and are payable within 30 days of receipt. Billings for the issuance of debt by the City will be billed upon the issuance of the Obligations. Conflicts. If a controversy arises between you and any other client of our Firm, we, after taking into account the rules of professional ethics applicable to us, may decline to represent either you or such other client or both you and such other client. Representation of Others; Waiver of Conflicts of Interests. You understand that we represent many investment banking firms, commercial banks, and other parties to public finance transactions from time to time in connection with other issues, including the City's financial advisors and potential underwriters for your securities, and you do not object to our continued representation (in connection with other issues) of any such firm with respect to which you choose to do business in connection with issuance of the Obligations, since doing so is how we are able to gain the experience we need to complete the Matter in an effective and efficient manner. If a controversy arises between you and any other client of our Firm, we, after taking into account the rules of professional ethics applicable to us, may decline to represent either you or such other client or both you and such other client. Termination or Withdrawal. Our representation may be terminated prior to the conclusion of the Matter by either of us by written 30 days prior notice to the other party. We reserve the right to withdraw from our representation if, among other things, you fail to honor the terms of this engagement letter or fail to cooperate or follow our advice on a material matter, or if any fact or circumstance would, in our view, render our continuing representation unlawful, unethical or ineffective. No such termination or withdrawal, however, will relieve you of the obligation to pay the legal fees owed us for services performed and other charges owing to us to the date of termination or withdrawal. Client Documents. We will maintain all documents you furnish us in our client files for the Matter. At the conclusion of the Matter (or earlier if appropriate), it is your obligation to advise us as to which, if any, of the documents in our files you wish us to return to you. We may keep copies thereof to the extent we believe advisable for our records. We will retain any remaining documents in our files for a certain period of time and ultimately destroy them in accordance with our Firms' record retention program schedule then in effect. 80467497.4 Mayor Henry Garrett February 24, 2009 Page 4 Standazds of Professionalism and Attomey Complaint Information. Pursuant to rules promulgated by the Texas Supreme Court and the State Bar of Texas, we are to advise clients that the State Bar of Texas investigates and prosecutes complaints of professional misconduct against attorneys licensed in Texas. A brochure entitled Attorney Complaint Information is available at all of our Texas offices and is likewise available upon request. A client that has any questions about State Bar's disciplinary process should call the Office of the General Counsel of the State Bar of Texas at 1-800-932-1900 toll free. Conclusion. This engagement letter constitutes the entire terms of the engagement of Fulbright &Jaworski L.L.P. in the representation of the City relating to the Matter. These written terms of engagement are not subject to any oral agreements or understandings, and they can be modified only by further written agreement signed both by the authorized representative of the City and Fulbright &Jaworski L.L.P., as appropriate. Unless expressly stated in these terms of engagement, no obligation or undertaking shall be implied on the part of either the City or Fulbright &Jaworski L.L.P. If the foregoing correctly reflects the terms and conditions of our representation of the City, please so indicate by executing the enclosed copy of this letter in the space provided below and return it to us. Please do not hesitate to telephone us if you have any questions. We are pleased to have this opportunity to be of service to the City, and we look forward to working with you, the City Council and the City staff. Very truly yours, W. ey uhn Fulbright &Jaworski L.L.P. WJK/jcq Attachment Accepted and agreed to effective the ~`~ day of February, 2009. CITY OF CORPUS CHRISTI, TEXAS i By: ~s~~/~ ~ Name: rAn el R. Escobaz Title: City Manager 4TTEST. .1..•~-xs~ay~ 80467497.4 ARMiANDO CHAPA CITY SECREfM" ~p ~ - //5 AUTHORIZED BT COUIYfIL...IL.~.~~ nn ~...ft~ SECRPTARY ~b EXHIBIT A Fee Schedule* Principal Amount of Obligations (per $1,000 denomination) $0 - $10,000,000 $10,000,001-$25,000,000 $25,000,001 - $50,000,000 $50,000,001 - $100,000,000 $100,000,001 - $200,000,000 Over $200,000,000 Obligations* $1.2500 $1.1250 $0.8750 $0.7500 $0.6250 $0.5000 *This scale will be increased by 35% for the issuance of any refunding obligations and provides for a minimum fee of $15,000 for the issuance of any Obligations. *In addition, the City will authorize an amount not to exceed $5,000 to our Firm for additional federal income tax expertise relating to the Obligations, based upon our Firm's hourly billing rates. *To the extent that our Firm is responsible for preparing the offering documents relating to the issuance of any Obligations, an additional fee of $7,500 will be charged. *This fee scale is not applicable if the Obligations are issued in a variable rate mode, are further secured with a liquidity facility, and/or involve the utilization of any derivative products, are issued by anon-profit corporation created by the City, or are issued in connection with an economic development financing, including a TIRZ or other similar financing. *This fee schedule is applicable to the following types of Obligations: general obligation bonds, certificates of obligation, tax notes, revenue bonds, and other similar indebtedness. 80467497.4 EXHIBIT B FULBRIGHT & JAWORSICI L.L.P. (San Antonio) Expenses and Services Summary** VICE CHARGE Binding Data Base Research Lexis, Westlaw, Information America Deliveries Overnight/Express Outside Courier In-House Courthouse Messengers Document Scanning Duplicating Photocopy Color photocopy Microfilrn/Microfiche Videography (duplication) Electronic Mail (via Internet) Library Research by Library Staff Weekend & Late Evening Air Conditioning Postage Secretarial Overtime Facsimile (Outgoing) N/A (Pricing varies in other office locations) Costs allocated by the Firm Direct Cost Direct Cost N/A (Pricing varies in other office locations) $40.00/Hour plus Transportation (Pricing varies in other office locations) $.12 per page -Direct Cost $0.15 per page $0.85 per page $0.50 per page $5.00/tape plus $20.00/duplication No Charge $130.00 per hour N/A (Pricing varies in other office locations) Direct Cost on any item or group of items which cost $1.00 or more $28.00 per hour (Pricing varies in other office locations) $0.80 per page plus applicable LD charges 50467497.4 EXPENSE/SERVICE CHARGE Telephone Long Distance (Domestic) Long Distance (International) $0.30 per minute 80% of direct dial rate File Storage Retrieval Transportation Mileage (personal automobile) Lodging Meals Car Rental/Airline/Rail/Etc. CD-ROM Research Graphic Arts Practice Support E-Discovery Firm hosting of on-site document review performed by outside contract attorneys N/A (Pricing varies in other office locations) Applicable IRS allowable rate per mile Direct Cost Direct Cost Direct Cost $30.00 - $50.00 per Search (rate varies based on length of search) $120.00 - $150.00 per hour, plus direct cost of supplies $60.00 - $215.00 per hour Direct Cost $5.00 per hour ** These fees are capped at $1,500.00 per individual Matter. 80467497.4