HomeMy WebLinkAbout79-00 RESOLUTIONro-
ik
RESOLUTION No, 74-00 MICROFILMED
A RESOLUTION AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A LETTER OF ENGAGEMENT WITH
KUTAK, ROCK & CAMPBELL FOR ATTORNEY SERVICES ON
THE FINANCING OF THE WASTEWATER TREATMENT
PLANT FACILITY.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1. That the City Council hereby authorizes the Mayor and Clerk to execute a
Letter of Engagement with Kutak, Rock & Campbell, for attorney services on the financing of the
wastewater treatment plant facility. A copy of the letter is attached hereto marked Exhibit "A" and
made a part hereof.
PASSED AND APPROVED this 6th day of June , 2000.
ATTES±:
By:/Y/�n. �i�dg
Heather Woodruff, City erk
•
KUTAK ROCK LLP
SUITE 1100
425 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201-3409
501-975-3000
FACSIMILE 501 -975-3001
www.kutakrock.com
June 5, 2000
Honorable Fred Hanna
City of Fayetteville, Arkansas
113 W. Mountain
Fayetteville, AR 72701
my/0(.0,J?
• EXHIBIT A
Res. 79-00
ATLANTA
DENVER
KANSAS CITY
LINCOLN
NEWPORT BEACH
OKLAHOMA CITY
OMAHA
PASADENA
RICHMOND
SCOTTSDALE
WASHINGTON
Re: City of Fayetteville, Arkansas — Wastewater Treatment Improvement Financing
Dear Mayor Hanna:
The purpose of this engagement letter is to set forth certain matters concerning the
services we expect to perform as counsel to the City of Fayetteville, Arkansas (the "City") in
connection with the proposed financing by the City of various wastewater treatment
improvements, including the construction of a new wastewater treatment facility (the
"Project"). We understand that the Project may be financed utilizing various structures and
revenue sources. You have informed us that portions of the Project may be financed using (i)
the proceeds of tax-exempt bonds issued by the City and secured by water and sewer revenues
and/or sales and use tax revenues, (ii) loans to the City from the Arkansas Department of
Environmental Quality secured by water and sewer revenues and/or sales and use tax revenues,
and (iii) the proceeds of a special sales and use tax of limited duration to be adopted by the
voters of the City. We further understand that it is the City's present intent to finance the
Project in stages during the years 2001-2004.
SCOPE OF ENGAGEMENT
6`
(a) Where the issuance of the City's bonds (the "Bonds") occurs in connection with
this engagement, we would serve as_bond counsel ("Bond Counsel") to the City and would
expect to perform the following duties for each such issuance:
(1) Subject to the completion of proceedings to our satisfaction, render our
legal opinion (the "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 and Arkansas income tax purposes;
X
03
(2) Prepare and review resolutions, ordinances, documents and certificates
necessary or appropriate to the authorization, issuance and delivery of the Bonds,
coordinate the authorization and execution of such resolutions, ordinances, documents
and certificates, and review enabling legislation;
10-1 7194.01
• • EXHIBIT A
KUTAK ROCK LLP
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5, 2000
Page 2
Res. 79-00
(3) Assist the City and any underwriter of the Bonds 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;
(4) Review legal issues relating to the structure of the Bond issue;
(5) Review certified proceedings;
(6) Undertake such additional duties as are necessary to render our Bond
Opinion;
(7) Assist the City in presenting information to bond rating organizations
and providers of credit enhancement relating to legal issues affecting the issuance of the
Bonds; and
(8) Draft the continuing disclosure undertaking of the City.
In addition to the customary duties of Bond Counsel set forth above, we understand that
we may additionally be asked to (i) draft the Bond Purchase Agreement between the City and
the underwriter(s) with respect to the Bonds and (ii) assist the City in preparing the official
statement (the "Official Statement") with respect to the Bonds, and, subject to the satisfactory
completion of our review, provide to the City written advice that, in the course of our
participation, no information has come to our attention which leads us to believe that the
Official Statement, as of its date (except for the financial statements, other statistical data,
feasibility reports and statements of trends and forecasts, and information concerning any
credit enhancer and The Depository Trust Company, contained in the Official Statement and its
appendices, as to which we will express no belief), contains any untrue statement of material
fact or omits to state any material fact necessary to make the statements in the Official
Statement, in light of the circumstances under which they were, not misleading. Although it is
permissible for Bond Counsel to undertake the activities described in this paragraph, they are
typically performed by counsel to the underwriter.
Each Bond Opinion will be addressed to the City and will be delivered by us on the
date that an issue of Bonds is exchanged for the purchase price thereof (the "Closing").
Each Bond Opinion will be 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 without undertaking to verify the same by
independent investigation, and we will assume continuing compliance by the City with
applicable laws relating to the Bonds. During the course of this engagement, we will rely on
the City to provide us with complete and timely information on all developments pertaining to
any aspect of each issue of Bonds and their security.
10-17194.01
rn
1
03
• • EXHIBIT A
KUTAK ROCK LLP Res. 79-00
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5, 2000
Page 3
(b) Where the Project is financed through one or more loans ("Loans") to the City
from the Arkansas Department of Environmental Quality ("ADEQ"), we would serve as Bond
Counsel to the City in connection with each such Loan and would expect to perform the same
or similar duties as those set forth above in connection with the issuance of Bonds, modified as
necessary to meet the requirements of the ADEQ revolving loan program; and
(c) Where the Project is to be financed with the proceeds of any sales and use tax,
whether or not in connection with the issuance of Bonds, we would serve as special counsel to
the City with respect to election matters, and would expect to prepare or assist in the
preparation of all resolutions, ordinances, ballots and other materials for such election and,
upon request, to attend all public meetings relating to such election.
Our duties in this engagement are limited to those expressly set forth above. Among
other things, our duties will not include:
(I) Preparing requests for tax rulings from the Internal Revenue Service, or
no action letters from the Securities and Exchange Commission;
(II) Drafting state constitutional or legislative amendments;
(III) Pursuing test cases or other litigation;
(IV) Making any investigation or expressing any view as to the
creditworthiness of the City or the Bonds;
(V) Representing the City in Internal Revenue Service examinations or
inquiries, or Securities and Exchange Commission investigations; or
(VI) Excepts as set forth in (c) above, addressing any other matter not
specifically set forth above that is not required to render our Bond Opinion.
ATTORNEY-CLIENT RELATIONSHIP
Upon execution of this engagement letter, the City will be our client and an attorney-
client relationship will exist between us. We assume that all other parties in connection with
the issuance of any Bonds or the making of any Loans will understand that in those
transactions we represent only the City, we are not counsel to any other party, and we are not
acting as an intermediary among the parties. Our services as counsel to the City are limited to
those contracted for herein, and the City's execution of this engagement letter will constitute
an acknowledgment of those limitations. Our representation of the City will not affect,
however, our responsibility to render objective Bond Opinions where required in connection
with this engagement.
10-17194.01
•
KUTAK ROCK LLP
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5, 2000
Page 4
CONFLICTS
• EXHIBIT A
Res. 79-00
During the course of any Bond financings referenced above, our firm will likely be
representing the underwriter(s) of the Bonds in separate unrelated matters. We do not believe
such representations, if they occur, will adversely affect our ability to represent you as
provided in this letter 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.
Execution of this letter will signify the City's consent to our representation of said
underwriter(s) consistent with the circumstances described in this paragraph.
FEES
(a) In connection with each issue of Bonds as described above, we propose Bond
Counsel fees as set forth in the following table:
Principal Amount
Up to $5,000,000
$5,000,001 - $10,000,000
$10,000,001 - $15,000,000
$15,000,001 - $20,000,000
$20,000,001 - $30,000,000
$30,000,001 - $50,000,000
Bond Counsel Fee
$25,000
. $30,000
$35,000
$37,500
$40,000
$45,000
In the event we are asked to undertake additional duties traditionally performed by
underwriter's counsel (including the preparation of the Bond Purchase Agreement and Official
Statement), we propose an additional fee of $5,000 in connection with each such issue under
$10,000,000 in principal amount and $7,500 in connection with each such issue over
$10,000,000 in principal amount.
(b) In connection with each Loan as described above, we propose Bond Counsel
fees as set forth in the following table:
10-17194.01
Principal Amount
Up to $5,000,000
$5,000,001 - $10,000,000
$10,000,001 - $15,000,000
$15,000,001 - $20,000,000
$20,000,001 - $30,000,000
$30,000,001 - $50,000,000
Bond Counsel Fee
$12,500
$15,000
$17,500
$20,000
$25 ,000
$30,000
Fra
r EXHIBIT A
KUTAK ROCK LLP
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5, 2000
Page 5
Res. 79-00
(c) For serving the City as special counsel with respect to election matters as
described above, we propose a fee based upon a flat hourly rate of $200 per hour for all
attorneys of the firm who perform legal services in connection with such engagement.
In addition, with respect to each representation of the City described above, we will
expect to be reimbursed for all client charges made or incurred on your behalf, such as travel
costs, photocopying, deliveries, long distance telephone charges, fax charges, filing fees,
computer-assisted research and other out-of-pocket expenses.
We understand and agree that our fees with respect to Bonds and Loans will be paid at
the time of Closing of each such financing. If the financing is not consummated, we understand
that we will not be paid for time expended on your behalf but will be reimbursed for client
charges made or incurred on your behalf.
Our fees with respect to election matters will be billed on a monthly basis and are
payable irrespective of the submission of questions to the voters or the ultimate approval of
questions submitted.
If the foregoing terms are acceptable to you, please so indicate by returning the
enclosed copy of this engagement letter signed by an appropriate officer, retaining the original
for your files. We look forward to working with you.
Accepted and Approved:
CITY OF F YETTEVILLE, ARKANSAS
By:
Title:
Dated:
10-17194.01
NAlaa
KUTAK ROCK LLP
B
as -
n M. Wilbourn
4
JUN. D. LUUU U; UUr Iwl i,Ju: :vLr
•
KUTAK ROCK LLP
SUITE 1100
429 WEST CAPITOL AVENUE
LITTLE ROOK, ARKANSAS 7E201-3409
601-976-9000
meow ILE 601-976-3001
www. kutakroe k. e0m
June 5, 2000
Honorable Fred Hanna
City of Fayetteville, Arkansas
113 W. Mountain
Fayetteville, AR 72701
DV. 411J C.
• EXHIBIT A
ATLANTA
DENVER
CITY
LINC0LM
NEWPORT BEACH
ORLAROMA CITY
OMAHA
PASADENA
RICHMOND
SCOTTSDALE
WASNI"OYON
Re: City of Fayetteville, Arkansas — Wastewater Treatment Improvement Financing
Dear Mayor Hanna:
The purpose of this engagement letter is to set forth certain matters concerning the
services we expect to perform as counsel to the City of Fayetteville, Arkansas (the "City") in
connection with the proposed financing by the City of various wastewater treatment
improvements, including the construction of a new wastewater treatment facility (the
"Project"). We understand that the Project may be financed utilizing various structures and
revenue sources. You have informed us that portions of the Project may be financed using (i)
the proceeds of tax-exempt bonds issued by the City and secured by water and sewer revenues
and/or sales and use tax revenues, (ii) loans to the City from the Arkansas Department of
Environmental Quality secured by water and sewer revenues and/or sales and use tax revenues,
and (ili) the proceeds of a special sales and use tax of limited duration to be adopted by the
voters of the City. We further understand that it is the City's present intent to finance the
Project in stages during the years 2001-2004.
SCOPE OF ENGAGEMENT
(a) Where the issuance of the City's bonds (the "Bonds") occurs in connection with
this engagement, we would serve as bond counsel ("Bond Counsel") to the City and would
expect to perform the following duties for each such issuance:
(1) Subject to the completion of proceedings to our satisfaction, rendez our
legal opinion (the "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 and Arkansas income tax purposes;
(2) Prepare and review resolutions, ordinances, documents and certificates
necessary or appropriate to the authorization, issuance and delivery of the Bonds,
coordinate the authorization and execution of such resolutions, ordinances, documents
and certificates, and review enabling legislation;
10-17194.01
JUN -05-2000 16:56 5019753001
P.03
•
JUN. D. dJUU o:uorm rJIAA ftVLA NV. LOIN
• •
KUTAK ROCK LLP
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5, 2000
Page 2
(3) Assist the City and any underwriter of the Bonds 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;
(4) Review legal issues relating to the structure of the Bond issue;
(5) Review certified proceedings;
(6) Undertake such additional duties as are necessary to render our Bond
Opinion;
(7) Assist the City in presenting information no bond rating organizations
and providers of credit enhancement relating to legal issues affecting the issuance of the
Bonds; and
(8) Draft the continuing disclosure undertaking of the City.
In addition to the customary duties of Bond Counsel set forth above, we understand that
we may additionally be asked to (i) draft the Bond Purchase Agreement between the City and
the underwriter(s) with respect to the Bonds and (u) assist the City in preparing the official
statement (the "Official Statement") with respect to the Bonds, and, subject to the satisfactory
completion of our review, provide to the City written advice that, in the course of our
participation, no information has come to our attention which leads us to believe that the
Official Statement, as of its date (except for the financial statements, other statistical data,
feasibility reports and statements of trends and forecasts, and information concerning any
credit enhancer and The Depository Trust Company, contained in the Official Statement and its
appendices, as to which we will express no belief), contains any untrue statement of material
fact or omits to state any material fact necessary to make the statements in the Official
Statement, in light of the circumstances under which they were, not misleading. Although it is
permissible for Bond Counsel to undertake the activities described in this paragraph, they are
typically performed by counsel to the underwriter.
Each Bond Opinion will be addressed to the City and will be delivered by us on the
date that an issue of Bonds is exchanged for the purchase price thereof (the "Closing").
Each Bond Opinion will be 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 without undertaking to verify the same by
independent investigation, and we will assume continuing compliance by the City with
applicable laws relating to the Bonds. During the course of this engagement, we will rely on
the City to provide us with complete and timely information on all developments pertaining to
any aspect of each issue of Bonds and their security.
tan+a41
JUN -05-2000 16:56
5019753001 P.04
JUN. b. ZUUU b:UbY14 KUTAK RUUK NU. 4(1i ..
• •
KUTAK ROCK LLP
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5, 2000
Page 3
(b) Where the Project is financed through one or more loans ("Loans") to the City
from the Arkansas Department of Environmental Quality ("ADEQ"), we would serve as Bond
Counsel to the City in connection with each such Loan and would expect to perform the same
or similar duties as those set forth above in connection with the issuance of Bonds, modified as
necessary to meet the requirements of the ADEQ revolving loan program; and
(c) Where the Project is to be financed with the proceeds of any sales and use tax,
whether or not in connection with the issuance of Bonds, we would serve as special counsel to
the City with respect to election matters, and would expect to prepare or assist in the
preparation of all resolutions, ordinances, ballots and other materials for such election and,
upon request, to attend all public meetings relating to such election.
Our duties in this engagement are limited to those expressly set forth above. Among
other things, our duties will not include:
(I) Preparing requests for tax rulings from the Internal Revenue Service, or
no action letters from the Securities and Exchange Commission;
(II) Drafting state constitutional or legislative amendments;
(III) Pursuing test cases or other litigation;
(IV) Making any investigation or expressing any view as to the
creditworthiness of the City or the Bonds:
(V) Representing the City in Internal Revenue Service examinations or
inquiries, or Securities and Exchange Commission investigations; or
(VI) Excepts as set forth in (c) above, addressing any other matter not
specifically set forth above that is not required to render our Bond Opinion.
ATTORNEY-CLIENT RELATIONSHIP
Upon execution of this engagement letter the City will be our client and an attorney-
client relationship will exist between us. We assume that all other parties in connection with
the issuance of any Bonds or the making of any Loans will understand that in those
transactions we represent only the City, we are not counsel to any other party, and we are not
acting as an intermediary among the parties. Our services as counsel to the City are limited to
those contracted for herein, and the City's execution of this engagement letter will constitute
an acknowledgment of those limitations. Our representation of the City will not affect,
however, our responsibility to render objective Bond Opinions where required in connection
with this engagement.
10-17194.01
JUN -05-2000 16:57
5019753001 t P.05
JUN D. ZUUU b:UbYM h a MU63
•
KUTAK ROCK LLP
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5, 2000
Page 4
CONFLICTS
•
NU. 4iii t. 0
During the course of any Bond financings referenced above, our firm will likely be
representing the underwriter(s) of the Bonds in separate unrelated matters. We do not believe
such representations, if they occur, will adversely affect our ability to represent you as
provided in this letter 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.
Execution of this letter will signify the City's consent to our representation of said
underwriter(s) consistent with the circumstances described in this paragraph.
FEES
(a) In connection with each issue of Bonds as described above, we propose Bond
Counsel fees as set forth in the following table:
Principal Amount
Up to $5,000,000
$5,000,001 - $10,000,000
$10,000,001 - $15,000,000
$15,000,001 - $20,000,000
$20,000,001 - 530,000,000
$30,000,001 - $50,000,000
Bond Counsel Fee
$25,000
$30,000
$35,000
$37,500
$40,000
$45,000
In the event we are asked to undertake additional dudes traditionally performed by
underwriter's counsel (including the preparation of the Bond Purchase Agreement and Official
Statement), we propose an additional fee of $5,000 in connection with each such issue under
$10,000,000 in principal amount and 57,500 in connection with each such issue over
$10,000,000 in principal amount.
(b) In connection with each Loan as described above, we propose Bond Counsel
fees as set forth in the following table:
io-ms4.01
JUN -05-2000 16:57
Prracipai Amount
Up to $5,000,000
$5,000,001 - $10,000,000
$10,000,001 - $15,000,000
$15,000,001 - $20,000,000
$20,000,001 - $30,000,000
$30,000,001- $50,000,000
5019753001
Bond Counsel Fee
$12,500
$15,000
$17,500
$20,000
$25,000
$30,000
P.06
JUN. 5. 2000 5:0711i XUTAH ROCK NO. 4713
• •
KUTAK ROCK LLP
Honorable Fred Hanna
City of Fayetteville, Arkansas
June 5 2000
Page 5
(c) For serving the City as special counsel with respect to election matters as
described above, we propose a fee based upon a flat hourly rate of $200 per hour for all
attorneys of the firm who perform legal services in connection with such engagement.
In addition, with respect to each representation of the City described above, we will
expect to be reimbursed for all client charges made or incurred on your behalf, such as travel
costs, photocopying, deliveries, long distance telephone charges, fax charges, filing fees,
computer-assisted research and other out-of-pocket expenses.
We understand and agree that our fees with respect to Bonds and Loans will be paid at
the time of Closing of each such financing. If the financing is not consummated, we understand
that we will not be paid for time expended on your behalf but will be reimbursed for client
charges made or incurred on your behalf.
Our fees with respect to election matters will be billed on a monthly basis and are
payable irrespective of the submission of questions to the voters or the ultimate approval of
questions submitted.
If the foregoing terms are acceptable to you, please so indicate by returning the
enclosed copy of this engagement letter signed by an appropriate officer, retaining the original
for your files. We look forward to working with you.
KUTAK ROCK LLP
Accepted and Approved:
CITY OF FAYETTEVILLE, ARKANSAS
By:
Title:
Dated:
•
1017194.01
JUN -05-2000 16:57 501yr56001
By
P.07
•
1
•
RESOLUTION NO. 74-00
A RESOLUTION AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A LETTER OF ENGAGEMENT WITH
KUTAK, ROCK & CAMPBELL FOR ATTORNEY SERVICES ON
THE FINANCING OF THE WASTEWATER TREATMENT
PLANT FACILITY.
•
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1. That the City Council hereby authorizes the Mayor and Clerk to execute a
Letter of Engagement with Kutak, Rock & Campbell, for attorney services on the financing of the
wastewater treatment plant facility. A copy of the letter is attached hereto marked Exhibit "A" and
made a part hereof.
PASSED AND APPROVED this 6i° day of June , 2000.
APPROVED:
7/�9C //�Glsf�yyr�
ATTEST:
By:///%...f�cvu
Heather Woodruff, City erk
By:
red Hanna, Mayor