HomeMy WebLinkAboutFoster Pepper PLLC. - 050216c c - 9,1k
LEGAL SERVICES CONTRACT
This Contract is made and entered into by and between Jefferson County, a political subdivision
of the State of Washington, hereinafter referred to as the "County," and Foster Pepper PLLC
hereinafter referred to as the "Law Firm." The County and the Law Firm hereby agree to the
following terms and conditions:
1. Services Provided
A. The primary purpose of this contract is to provide legal advice, consultation and services to
the Jefferson County, specifically, (1) bond counsel services described in section A of the Scope
of Services attached as Exhibit 1 to this Contract; (2) other finance counsel services described in
section B of Exhibit 1; and (3) other legal services as expressly requested by the County.
B. The Jefferson County Prosecuting Attorney shall be the overall client representative for
services performed under this contract. The Jefferson County Treasurer shall be the County's
day-to-day representative for bond counsel services described in Exhibit 1.
C. The Law Firm will keep County well informed of all legal matters it handles on the County's
behalf. The Law Firm shall send the County copies of all material papers coming in or going out
of its offices to or from third parties. The Law Firm shall, at such times and in such form as the
County may require, furnish the County with periodic reports pertaining to the work and services
undertaken pursuant to this agreement.
D. The specific attorneys at the Law Firm responsible for bond counsel services are: Marc
Greenough, Hugh Spitzer, William Tonkin and Lindsay Fisher, and those attorneys shall be
appointed as special deputy prosecuting attorneys in connection with the work to be performed
under this contract. If the Law Firm proposes to have other lawyers at that firm perform material
amounts of work for the County, the Law Firm shall submit the names of the relevant attorneys
to the Prosecuting Attorney for approval.
2. Compensation and Payment
Compensation for the bond counsel services described in Section A of Exhibit 1 will be payable
as set forth in Exhibit 2, only upon the issuance of the bonds or notes with respect to which the
services are rendered.
Compensation for the non -bond counsel finance -related services described in Section B of
Exhibit 1, and for the other services requested by the Prosecuting Attorney, will be billed
monthly based on the Law Firm's standard hourly rates for those services, reduced by 10%, but
in any event no greater than $360 per hour, plus actual out-of-pocket expenses. As specific
projects are proposed for assistance by the Law Firm, the Prosecuting Attorney and the Law
Firm shall discuss budgets for that work and/or rate adjustments. If as a part of such other legal
services the firm agrees to perform a "due diligence" review of any official statement, offering
circular, bond prospectus or other sales material, the furnishing of the firm's legal opinion
provided for in Section 1 shall be conditioned on its satisfaction of the sufficiency of such
statement, circular, prospectus or other materials.
51087731.4 1
For work billed on an hourly basis, the Law Firm will provide a detailed invoice identifying the
work performed, the date accomplished, and the hours charged. The Law Firm will also detail
and provide documentation for any costs. The County will pay the Law Firm within 30 days
after receipt of properly completed invoices for legal services. Invoices for work performed on
an hourly basis shall be submitted to the Prosecuting Attorney for review and approval by that
department and subsequent transmittal by that office to the Clerk to the County Commission.
Bond counsel services bills shall be submitted to the Clerk to the County Commission.
Payment shall be considered timely if made by the County within 30 days after receipt of a
properly completed invoice.
Advance Payment Prohibited. No payment in advance or in anticipation of services or
supplies under this contract shall be made by the County.
3. Term of Contract
The term of this Contract shall be from the date of execution to December 31, 2017. Either party
may terminate this agreement prior to that date upon 30 days written notification. It is agreed
that the Law Firm will be compensated for services provided through the date of notification of
termination at the applicable hourly rates. However, in the case of bond counsel services, the
Law Firm will be compensated on an hourly basis at the time bonds are issued, for the work that
the Law Firm performed with respect to that bond issue, but in no event greater than the fee
calculated in accordance with the fee schedule set forth above. Compensation for any services
provided after notification of termination shall be pursuant to agreement of the parties.
4. Contract Amendments
Modifications to the contract, including changes to the scope of representation or the maximum
compensation, and term of agreement shall be made by written agreement executed by both
parties.
5. Applicable Law and Venue
This contract shall be governed by the laws of the State of Washington. In the event of a lawsuit
involving this contract, venue shall be proper only in Jefferson County Superior Court.
6. Independent Capacitv of Law Firm
The Law Firm and its employees or agents performing under this contract are not employees or
agents of the County. The Law Firm will not hold itself out as, nor claim to be, an officer or
employee of the County by reason of this contract, nor will the Law Firm make any claim of
right, privilege, or benefit which would accrue to an employee or official of the County.
7. Conflicts of Interest
The parties recognize that Law Firm may be asked to represent clients in cases or on matters
adverse to the County. The Law Firm shall notify the County when the Law Firm is asked to
participate in cases or matters adverse to the County by advising the Prosecuting Attorney of the
51087731.4 2
nature of the matter or the name of the case, and will request a written waiver from the County
prior to undertaking work on such case or matter. The County recognizes and approves the Law
Firm's representation of the City of Port Townsend and the Jefferson County Public Utility
District on finance and other matters (including land use and Growth Management Act
representation of the City of Port Townsend), and the County waives any conflict of interest that
may exist by virtue of the Law Firm's existing representation of those two public entities. The
Law Firm from time to time also represents private sector clients with real estate transactions
with the County or with land use matters before the County. Although the grant of a waiver of a
conflict of interest will be the County's to make, the County will ordinarily be expected to allow
lawyers in the Law Firm to assist such private sector clients so long as the representation does
not constitute a challenge to the County's underlying regulatory authority or does not involve a
matter of substantial controversy. Finally, the Law Firm represents D.A. Davidson & Co. and
other underwriters and placement agents and may represent banks that are direct purchasers of
the County's bonds, in each case on matters unrelated to the County. The County recognizes and
approves the Law Firm's representation of such clients on unrelated matters.
8. Confidentiality
The Law Firm shall maintain as confidential all information concerning its advice and
recommendations, as well as information related to the business of the County, its financial
affairs, relations with its clientele and its employees, and any other information which may be
specifically classified as confidential by the County in writing to the Law Firm. To the extent
consistent with RCW 42.56 (Public Records Act), the County shall maintain all information
which the Law Firm specifies in writing as confidential. This contract is a Public Record in
accordance with the Public Records Act.
9. Liabilitv. Insurance and Warran
By accepting the terms of this resolution, Foster Pepper PLLC warrants and agrees that: (1) the
firm is an independent contractor and no member or employee of the firm shall be deemed to be
an employee of the County; (2) the work to be performed by the firm shall be performed only by
attorneys experienced as bond counsel or by attorneys or legal assistants under the direct
supervision and control of experienced bond lawyers; (3) Foster Pepper PLLC shall indemnify
the County from any and all liabilities (including but not limited to all claims, suits, actions,
administrative proceedings and all attorney's fees, costs, losses, expenses, awards and judgments
associated therewith) caused by the errors or negligent acts or omissions of the firm in
connection with its performance or lack of performance as bond counsel pursuant to this
resolution; and (4) the firm will have in effect professional liability insurance ("errors and
omissions") with minimum limits of liability of at least $1,000,000.
10. Authority to Bind Law Firm
The person executing this Legal Services Contract is authorized to A) execute same and by doing
so B) bind Law Firm to the terms, obligations and conditions of this Legal Services Contract.
51087731.4
Date: 114M a 1 2-0 1(e, 2016
JEFFERSON COUNTY
BOARD OF COMMISSIONERS
Kathleen Kler, Chair
ATTEST:
C erk of t Board ' ✓ ,�
51087731A 4
FOSTER PEPPER PLLC (Law Firm)
Federal Tax ID: 91-0606972
Signature
Marc R. Greenough
Typed Name
Member
Title
APPROVED AS TO FORM ONLY:
Deputy Prosecuting Attorney.
EXHIBIT 1
SCOPE OF BOND COUNSEL/FINANCE COUNSEL SERVICES
In the following, the term "bonds" includes any obligation of the issuing local government
(the "County") for which the Law Firm is asked to serve as bond counsel.
A. BOND COUNSEL SERVICES
(1) Advising the County and its consultants on the legal requirements applicable to
and, when requested, participating with those consultants and County's staff in planning, the
financing of a project, including advice on state law and federal income tax and securities laws;
(2) Reviewing the transcripts relating to the prior issuance by the County of related
outstanding obligations (typically revenue obligations), to assure conformity of the bonds with
applicable covenants and conditions;
(3) Based on facts provided by the issuer, performing the necessary legal analysis to
determine, in financings in which the bonds are intended to be tax-exempt, whether interest on
the bonds will qualify for an exclusion from gross income for federal income tax purposes, and
preparing tax exemption and nonarbitrage certificates;
(4) Drafting the ordinances/resolutions and other documents necessary to authorize
the bonds to be sold and issued (including, where applicable, ballot title ordinances/resolutions);
(5) Attending certain meetings relating to the sale and issuance of the bonds;
(6) Forwarding County financing documents to bond rating agencies and/or bond
insurers, when requested by the County or County's financial consultant or underwriter, and
explaining those documents to agency and insurer representatives;
(7) When requested by the County or County's financial consultant or underwriter,
reading those portions of drafts of the official statement, offering circular or other sales material
relating to the bonds prepared by the County's investment bankers necessary to assure the
accuracy only of the description of the bonds, the source of payment and security for the bonds,
any continuing disclosure undertaking and the federal tax treatment of the interest on the bonds;
(8) Reviewing special assessment district formation and assessment documents that
have been prepared by county staff or attorneys;
(9) Preparing closing documents necessary to support the issuance of the bonds and
assembling the transcript after the closing; and
(10) Subject to the completion of proceedings to our satisfaction, furnishing the firm's
approving legal opinion for the bonds regarding the validity and binding effect of the bonds and
the excludability of interest on the bonds from gross income for federal income tax purposes.
The Law Firm's bond opinion will be based on facts and law existing as of its date, and will
51087731.4
constitute the expression of our professional judgment on the matters expressly addressed and
not a guarantee of result. In rendering that opinion, the Law Firm 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 the Law Firm will assume the
County's continuing compliance, after the issue date, with applicable laws relating to the bonds.
During the course of this engagement, the Law Firm will rely on the County to provide the Law
Firm with complete and timely information on all developments pertaining to any aspect of the
bonds and their security, as well as the expected use of bond proceeds. The Law Firm
understands and expects that officers and employees of the County will cooperate with us in this
regard.
B. OTHER SERVICES
Traditional bond counsel services described above do not include the following
additional bond and project -related work for the County which the Law firm will perform on
request, working with the County's Prosecuting Attorney or other designated representatives.
The provision of these services involves appropriate fee arrangements.
(1) The drafting or review for sufficiency of any environmental impact statements or
other evidence of compliance with the State and National Environmental Policy Acts, the
Shorelines Management Act, Growth Management Act and similar laws;
(2) The drafting or review for accuracy of portions of any official statement, offering
circular or other sales material relating to the issuance of the bonds prepared by the County or its
underwriter or otherwise used in connection with such bonds, other than the review of those
portions of the official statement describing the bonds, the source of payment and security for the
bonds, any continuing disclosure undertaking and the expected federal tax treatment of the
interest on the bonds is included in our services as bond counsel (See item A.7 above);
(3) Giving advice to the County's consultants regarding the applicability of the
registration requirements under federal or state securities laws or regarding federal and state
securities disclosure requirements or due diligence review;
(4) Drafting or negotiating of bond purchase agreements (though as a matter of
course as bond counsel the Law Firm typically reviews such agreements to assure that they
conform to the County's bond authorization documents);
(5) Negotiation and drafting of repurchase agreements, investment contracts,
custodial agreements, swap agreements, credit enhancement or liquidity facilities (other than
bond insurance), and contracts (including contracts with developers or owners of property
included within local improvement districts formed by the County), or disputes or litigation in
connection therewith;
(6) Attending rating agency or public information meetings in connection with the
issuance of bonds;
(7) Preparation of supplemental opinions required of the Law Firm (as bond counsel)
by the County or the underwriter of bonds in connection with their issuance;
51087731.4 6
(8) The drafting or obtaining of state or federal legislation;
(9) Participating in administrative proceedings, trial or appellate litigation;
(10) Drafting special assessment district formation and assessment documents and
attending special assessment hearings;
(11) Work in connection with seeking or obtaining governmental assistance or
approvals from governmental agencies other than the County, necessary for carrying out the
purposes of the bond issue;
(12) Providing services relating to public works bidding, negotiating design or
construction contracts, or carrying out the acquisition of property or the construction of projects;
(13) Representing the County in Internal Revenue Service examinations or inquiries,
or Securities and Exchange Commission investigations;
(14) After closing, providing continuing advice to the County or any other party
concerning any actions necessary to assure that interest paid on the bonds will continue to be
excludable from gross income for federal income tax purposes (e.g., our engagement as bond
counsel does not include rebate calculations for the bonds, dealing with changes of use or delays
in the expenditure of proceeds);
(15) Assisting the County with its continuing disclosure obligations consistent with
applicable securities laws; or
(16) Addressing any other matter not specifically set forth above that is not required to
furnish our bond opinion.
C. FILE MANAGEMENT
After the transaction is concluded, the Law Firm will deliver to the County a complete
copy of the transcript of the transaction. A transcript is delivered generally within 30 to 60 days
after closing. The Law Firm will then close its files regarding the matter, and the Law Firm's
work on that specific transaction will be completed. Additional services after closing would be
addressed under Part B, above.
51089931.4 7
EXHIBIT 2
FEES FOR BOND COUNSEL SERVICES
Bond counsel services will be compensated in accordance with the following schedule:
Type of Issue Par Amount Base Fee Add'1 per $1000 Par Amt
GENERAL OBLIGATION BONDS:
1,000,000
7,500
+
2.40
5,000,000
17,100
+
1.20
10,000,000
23,100
+
0.85
25,000,000
35,850
+
0.55
50,000,000
49,600
+
0.45
75,000,000
60,850
+
0.35
100,000,000
69,600
+
0.25
above 100M
negotiable
51067731.4 8
Type of Issue Par Amount Base Fee Add'l per $1000 Par Amt
REVENUE BONDS:
1,000,000
9,000
+
2.88
5,000,000
20,520
+
1.44
10,000,000
27,720
+
1.02
25,000,000
43,020
+
0.66
50,000,000
59,520
+
0.54
75,000,000
73,020
+
0.42
100,000,000
83,520
+
0.30
above 100M
negotiable
Adiustments to Base Fee Schedule
The following adjustments shall be made in the above schedule under the following
circumstances: (1) The fee for refunding issues (or refunding portions of combined refunding —
new money issues) shall be the amount calculated on the schedule times 1.2; (2) the fee for
"build America bonds" and similar credit subsidy bonds shall be calculated on the schedule
times 1.5; and (3) the fee for Notes shall be the amount calculated on the schedule times .66, and
if Notes are rolled over, the fee will be over half the fee charged for the original issue of Notes.
However, the maximum compensation for any bond issue shall not exceed $35,850 without
further express authorization by the Board of County Commissioners. Bond counsel also shall
be reimbursed for any actual out-of-pocket expenses, such as travel, document production and
reproduction, and communications, incurred by it in rendering its services. The payment of the
fee is contingent on the successful delivery of the Bonds and Notes, respectively.
51087731.4 9
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
FROM: Philip Morley, County Administrator
DATE: May 2, 2016
RE: Bond Counsel Service Agreement; Foster Pepper PLLC; approximately 510,620
STATEMENT OF ISSUE: Board approval is requested of a Bond Counsel Services Agreement with
Foster Pepper PLLC. Foster Pepper would provide bond counsel services for the refunding of the
County's 2007 Limited Term General Obligation Bond (LTGO) that funded a portion of JeffCom's
Tower and communications infrastructure project, and would be available through December 31, 2017 for
any subsequent bond counsel services the County might request.
ANALYSIS: The Bond Counsel Services Agreement with Foster Pepper PLLC would provide bond
counsel for the refunding of the County's 2007 Limited Term General Obligation Bond (LTGO) that
funded a portion of JeffCom's Tower and communications infrastructure project. Approximately
$1,300,000 of new LTGO Bonds will be issued at lower interest rate, saving JeffCom $10,000412,000
per year for the remaining 11 years of the term of the original bonds.
The original 2007 bonds were issued by Jefferson County when JeffCom was still a department of the
County. Since JeffCom's reorganization, the County and JeffCom have an Interlocal Agreement to
ensure tax revenues collected by the County for JeffCom are applied to the bond payments. Under this
bond refund, the new bonds would be issued by the County and serviced under the same arrangement.
Foster Pepper has successfully provided bond counsel services to Jefferson County for many years. The
proposed bond refunding and Bond Counsel Service Agreement is recommended by Treasurer Stacie
Prada. JeffCom Director Karl Hatton has been coordinating with the Treasurer on the refund, and
informed the JeffCom Administrative Board of the refunding at the JeffCom Board's meeting in March.
The Prosecutor's Office has reviewed the Bond Counsel Services Agreement and approved it as to form.
FISCAL IMPACT: None to Jefferson County. Bond Counsel services for the 2007 LTGO Bond
Refund will come out of the bond refinancing proceeds, with a net savings to JeffCom estimated at
$10,000-12,000 per year for the next 11 years.
RECOMMENDATION: Approve the proposed Bond Counsel Services Agreement.
ZRBPhilip Morlnty dministrator Date
CONTRACT REVIEW FORM
CONTRACT WITH: Foster Pepper PLLC.
CONTRACT FOR: Bond Counsel Services TERM: Thru Dec. 31, 2017
COUNTY DEPARTMENT: County Administrator Office
For More Information Contact: Stacie Prada x-154 APR 2 6 201
Contact Phone #:
RETURN TO: Philip Morley RETURN BY: asap
(Person in Department) (Date)
AMOUNT: Approximately $10,620 PROCESS:
Revenue:
Expenditure:
Matching Funds Required:
Sources(s) of Matching Funds
From Bond Refund savings
Step 1: REVIEW BY
Review by:
Date Reviewed:
�PPROVED
FORM
Comments
x Exempt from Bid Process
Consultant Selection Process
Cooperative Purchase
Competitive Sealed Bid
Small Works Roster
Vendor List Bid
RFP or RFQ
Other
Returned for revision (See Comments)
Step 2: REVIEW B PROSECUTI,gg O EY
Review by: ��A Z
Date Reviewed:
APPROVED AS TO FORM ❑ Returned for revision (See Comments)
Commen s
Step 3: (If required) DEPARTMENT MAKES REVISIONS & RESUBMITS TO
RISK MANAGEMENT AND PROSECUTING ATTORNEY
Step 4: CONTRACTOR/CONSULTANT SIGNS APPROPRIATE NUMBER OF
ORIGINALS
Step 5: SUBMIT TO BOCC FOR APPROVAL
Submit originals and 6 copies of Contract, Review Form, and Agenda Bill to BOCC Office.
Place "Sign Here" markers on all places the BOCC needs to sign.
MUST be in BOCC Office by 4:40 p.m. TUESDAY for the following Monday's agenda.
(This form to stay with contract throughout the contract review process.)
Philip Morley
From: Marc Greenough <marc.greenough@foster.com>
Sent: Wednesday, April 13, 2016 1:11 PM
To: Stacie Prada; Philip Morley; Anne Sears
Cc: David Alvarez
Subject: RE: Jefferson County Bond Refinancing
Attachments: SEADOCS-#51087731-v4- Bond Counsel Services Contract.DOC; SEADOCS-#51087731-
vdocx- Bond Counsel Services Contract.DOCX; Executed Jefferson County Contract.pdf
Stacie, Philip and Anne, I look forward to working with you on this refunding. Our bond counsel
contract has expired (the statutory limit is two years). Our records reflect that our most recent
contract expired at the end of 2012. We were in negotiations for another contract that would have
expired at the end of 2014, but it's not clear (to me, from our records) that we ever executed that
contract, since we appear to have executed instead a contract regarding legal services for the Port
Hadlock sewer project. I have attached a revised contract, as well as a redline that reflects changes
from the contract that expired at the end of 2012. Please let me know if you have comments or
questions, thanks.
Marc R. Greenough
ATTORNEY
FOSTER PEPPER PLLC
1111 Third Avenue, Suite 3000
Seattle, Washington 98101
marc.areenouah(cDfoster.com
206.447.7888 direct
206.227.9777 cell
foster.com
From: Jim Nelson [mailto:jnelson@dadco.com]
Sent: Tuesday, April 12, 2016 2:46 PM
To: Stacie Prada; Philip Morley; Anne Sears; Marc Greenough
Cc: Grant M. Brooks; Suzanne Eide; Lisa Takeuchi
Subject: RE: Jefferson County Bond Refinancing
Stacie, Philip, Anne and Marc,
Attached for your review is a draft RFP for receiving interest rate bids from banks (private placement) for an advance
refunding of Jefferson County's 2007 Limited Tax General Obligation Bond. Please review and let me know if you have
any comments.
I will follow up with a draft financing schedule (with target dates for drafting documents, approving the Bond Resolution,
and Closing/Delivery Date of funds).
If you have any questions or would like additional information, please call 206-389-4062.
Sincerely,
co\
§1 C! -1 W-, 0 ot
May 2, 2016
1820 Jefferson Street
PO Box 1220
Port Townsend, WA 98368
Phil Johnson, District 1 David W. Sullivan, District 2 Kathleen Kler, District 3
Foster Pepper PLLC
Attn: Marc R. Greenough, Attorney
1111 Third Avenue, Suite 3000
Seattle, WA 98101
AGREEMENT re: Bond Counsel Service; In the Amount of approximately $10,620;
Jefferson County Administrator's Office; Foster Pepper PLLC
Dear Mr. Greenough,
Enclosed are two Original Contracts re: Bond Counsel Service; In the Amount of
approximately $10,620; Jefferson County Administrator's Office; Foster Pepper PLLC
Please sign both, keeping one Original for your records. Please return the second Original for
our records to the following address:
Jefferson County Commissioners Office
PO Box 1220
Port Townsend, WA. 98368
Please contact our office if you have any questions.
Tha, ik you,
Julie Shannon
Executive Secretary I
Enclosure
Phone (360) 385-9100 Fax (360) 385-9382 jeffbocc(aco.jefferson.wa.us
FOSTER PEPPER,,,
May 9, 2016
Jefferson County Washington
Board of Directors
Attn: Julie Shannon
1820 Jefferson Street
PO BOX 1220
Port Townsend, WA 98368
Re: Foster Pepper PLLC
Bond Counsel Legal Services Contract
Dear Julie:
Direct Phone (206) 447-7888
Direct Facsimile (206) 749-2088
marc.greenough@foster.com
MAY 12 2016
An executed original of the Legal Services Contract is enclosed. Please contact our
office should you have any questions.
Sincerely,
Susan Carpenter
Legal Assistant to Marc R. Greenough
Enclosure
1111 Third Avenue, Suite 3000, Seattle, Washington 98101-3299 tel: 206.447.4400 fax: 206.447.9700
51522552.1 foster.com