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HomeMy WebLinkAbout20-46 Letter of Engagement Butler Snow Enterprise Bonds 04-08-2020 1801 California Street Suite 5100 Denver, Colorado 80202 KIMBERLEY K. CRAWFORD (720) 330-2354 Kim.Crawford@ButlerSnow.com T (720) 330-2300 F (720) 330-2301 www.butlersnow.com BUTLER SNOW LLP April 2, 2020 Town of Firestone 151 Grant Avenue Firestone, Colorado 80520 Attention: A.J. Krieger, Town Manager Proposed Issuance of Town of Firestone, Colorado Water Enterprise Revenue Bonds, Series 2020 Dear Members of the Board of Trustees: We are pleased to confirm our engagement as bond counsel and special counsel to the Town of Firestone, Colorado (the “Town”) with respect to the issuance of its Water Enterprise Revenue Bonds, Series 2020 (the “Bonds”). We appreciate your confidence in us and will do our best to continue to merit it. As you know, we have performed legal services for the Town in the past. Nevertheless, in establishing our attorney-client relationship for this new transaction, current practice standards dictate that we set forth in writing (and in some detail) the elements of our mutual understanding. While some of the matters covered in this engagement letter will never be relevant or of concern between us, we hope you will understand that as attorneys and counselors it is our natural function to try to make communication clear and complete, and to anticipate and resolve questions before they arise. We also believe that the performance of our se rvices may require your effort and cooperation. Consequently, the better we each understand our respective roles, responsibilities and contributions, the more efficient, effective and economical our work for you can be. Personnel This letter sets forth the role we propose to serve and the responsibilities we propose to assume as bond counsel and special counsel to the Town in connection with the issuance of the Bonds by the Town. We understand that the Town Board of Trustees (the “Board”) has authorized the execution of this letter. Kim Crawford and Maria Harwood will be principally responsible for the work performed on your behalf. Where appropriate, certain tasks may be performed by other attorneys or paralegals. At all times, however, Kim will coordinate, review, and approve all work completed for the Town. Town of Firestone, Colorado April 2, 2020 Page 2 Scope of Employment Bond counsel is engaged as a recognized expert whose primary responsibility is to render an objective legal opinion with respect to the authorization and issuance of bonds. As your bond counsel, we will: examine applicable law; consult with the parties to the transaction prior to the issuance of the Bonds; prepare customary authorizing and operative documents, which may include proceedings relating to: the authorization of the sale and issuance of the Bonds, and closing certificates; review a certified transcript of proceedings; and undertake such additional duties as we deem necessary to render the opinion. Subject to the completion of proceedings to our satisfaction, we will render our opinion relating to the validity of the Bonds, the enforceability of the security for the Bonds, and the exclusion of the interest paid on the Bonds (subject to certain limitations which may be expressed in the opinion) from gross income for federal income tax purposes and for Colorado income tax purposes. We are also being retained by you to act as special counsel to the Town in connection with the Official Statement for the Bonds (the “Official Statement”). As such, we will provide advice to the Town on the applicable legal standards to be used in preparing the Official Statement and meeting the Town’s disclosure responsibilities. At the conclusion of the transaction we will deliver a letter to you stating that we have assisted the Town in the preparation of the Official Statement, and that in the course of such assistance, nothing has come to the attention of the attorneys in our firm rendering legal services in connection with our representation which leads us to believe that the Official Statement, as of its date (except for the financial statements, other statistical data and statements of trends and forecasts and information concerning The Depository Trust Company (“DTC”) provided by DTC contained in the Official Statement and its Appendices, as to which we express no view), 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 made, not misleading. In rendering our opinion and letter, 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. Our opinion and letter each will be addressed to the Town and will be executed and delivered by us in written form on the date the Bonds are exchanged for their purchase price (the “Closing”). The opinion and letter each will be based on facts and law existing as of their date. Our services are limited to those contracted for explicitly herein; the Town’s execution of this letter constitutes an acknowledgment of those limitations. Specifically, but without implied limitation, our responsibilities do not include any representation by Butler Snow LLP in connection with any IRS audit, SEC enforcement action or any litigation involving the Town or the Bonds, or any other matter. Neither do we assume responsibility for the preparation of any collateral documents (e.g., environmental impact statements) which are to be filed with any state, federal or Town of Firestone, Colorado April 2, 2020 Page 3 other regulatory agency. Nor do our services include financial advice (including financial advice about the structure of Bonds) or advice on the investment of funds related to the Bonds. Representation of the Town In performing our services as bond counsel and as special counsel, the Town will be our client and an attorney-client relationship will exist between us. We will represent the interests of the Town rather than the Board, its individual members, or the Town’s employees. We will work closely with the Town Attorney and will rely on his opinion with regard to specific matters, including pending litigation. We assume that other parties to the transaction will retain such counsel as they deem necessary and appropriate to represent their interests in this transaction. Our limited representation of the Town does not alter our responsibility to render an objective opinion as bond counsel. Conflicts of Interest Before accepting any new business, the Colorado Rules of Professional Conduct require us to evaluate whether there exist any ethical constraints to representing you in this new matter. We have completed a conflicts check within our firm and have found no current conflict between the Town and our existing clients. We note that Stifel Nicolaus & Company Incorproated (your “Underwriter”), as well as many other investment banking firms in Colorado, have been our clients in past bond transactions unrelated to the Town. As you are aware, our Public Finance Department specializes in all aspects of public finance in Colorado, New Mexico, Nevada, and Wyoming, and our firm represents many political subdivisions, investment bankers/underwriters, trustees, financial institutions and other companies and individuals. During the course of our engagement with you or at some future time, it is possible that we may be asked to represent your Underwriter as underwriter’s counsel in unrelated bond transactions. Further, it is possible that we may be asked to represent, in wholly unrelated matters outside the area of publi c finance, financial institutions, companies or individuals that have transactions with the Town. Technically, because an issuer sells its bonds to an underwriter or purchaser, your interests are “adverse” to those of your Underwriter. You likely will agr ee with us that bond transactions are more of a cooperative effort than an adversarial purchase and sale. We do not believe that our former, current or possible future representation of your Underwriter will act as a material limitation on our ability to represent the Town as bond counsel and special counsel. In addition, this issue of Bonds is not a matter which is substantially related to our previous representation of the Underwriter. Accordingly, even though your interests are adverse to those of the Underwriter in this bond transaction, based upon our ethical rules, it is our conclusion that we may undertake this engagement. With respect to our future representation of the Underwriter in a matter unrelated to the Bonds, we acknowledge that you might be concerned about confidentiality of information. We Town of Firestone, Colorado April 2, 2020 Page 4 want to advise you that we will not use any information obtained in our capacity as bond counsel or special counsel to the disadvantage of the Town. If you have questions or concerns about our analysis of this issue, about our former or (possible) future representation of the Underwriter, or if you would like us to consult further with your general counsel on this matter, please let us know. Subject to such consultation, we will treat your acceptance of this letter as consent to our past and future representation of the Underwriter in matters unrelated to the Bonds. Fee Arrangement Based upon: (i) our current understanding of the terms, structure, size and schedule of the financing, (ii) the duties we will undertake pursuant to this letter, (iii) the time we anticipate devoting to the financing, (iv) the skill and experience required to complete the services properly, and (v) the responsibilities we will assume, we estimate that our fee as bond counsel and special counsel will be $75,000. Such fees may vary: (i) if the principal amount of Bonds actually issued differs significantly from the amount stated above, (ii) if material changes in the structure of the financing occur, or (iii) if unusual or unforeseen circumstances arise which require a significant increase in our time or our responsibilities. If, at any time, we believe that circumstances require an adjustment of our original fee estimate, we will consult with you and prepare an amendment to this engagement letter. In addition, this letter authorizes us to incur expenses and make disbursements on behalf of the Town, which we will include in our Invoice. We understand and agree that our contingent fees will be paid at Closing out of Bond proceeds. If the financing is not consummated, we understand and agree that we will not be paid. If, for any reason, the financing is completed without our opinion as bond counsel, we will expect to be compensated at our normal hourly rates for time actually spent on your behalf, plus disbursements. Document Retention Butler Snow maintains its client files electronically. We do not keep separate paper files. We will scan documents you or others send to us related to your matter to our electronic file for that matter and will retain only the electronic version while your matter is pending. Unless you instruct us otherwise, once such documents have been scanned to our electronic file, we will destroy all paper documents provided to us. If you send us original documents that need to be maintained as originals while the matter is pending, we ordinarily will scan those to our client file and return the originals to you for safekeeping. Alternatively, you may request that we maintain such originals while the matter is pending. If we agree to do that, we will make appropriate arrangements to maintain those original documents. Town of Firestone, Colorado April 2, 2020 Page 5 Unless you instruct us otherwise, once our work on this matter is completed, we will designate your file as a closed file on our system and will apply our document retention policy then in effect to the materials in your closed file. At that time, we ordinarily will return to you any original documents we have maintained in accordance with the preceding paragraph while the matter was pending. Otherwise, we will retain the closed file materials for our benefit and subject to our own policies and procedures concerning file retention and destruction. Accordingly, if you desire copies of any documents (including correspondence, e-mails, pleadings, contracts, agreements, etc.) related to this matter or generated while it was pending, you should request such copies at the time our work on this matter is completed. A more complete notice of Butler Snow’s Record Retention and Destruction Policy for Client Files, which also will be applicable to this Engagement, is attached as Exhibit A and incorporated herein by reference. Termination of Engagement The above fees contemplate compensation for usual and customary services as bond counsel and as special counsel to the Town in connection with the Official Statement, as described above. Upon delivery of the opinion and letter, our responsibilities as bond counsel and as special counsel will terminate with respect to this financing, and our representation of the Town and the attorney-client relationship created by this engagement letter will be concluded. Specifically, but without implied limitation, we do not undertake to provide continuing advice to the Town or to any other party to the transaction. Many post-issuance events may affect the Bonds, the tax-exempt status of interest on the Bonds, or liabilities of the parties to the transaction. Such subsequent events might include a change in the project to be financed with Bond proceeds, a failure by one of the parties to comply with its contractual obligations (e.g., rebate requirements, continuing disclosure requirements), an IRS audit, or a change in federal or state law. Should the Town seek the advice of bond counsel or special counsel on a post-closing matter or seek other, additional legal services, we would be happy to discuss the nature and extent of our separate engagement at that time. Approval If the estimated fees, the requested consent to possible future representation of the Underwriter, and other foregoing terms of this engagement are acceptable to you, please so indicate by returning a copy of this letter signed by the officer so authorized, keeping a copy for your files. We are pleased to have the opportunity to serve as your bond counsel and special counsel and look forward to a mutually satisfactory and beneficial relationship. We are deeply committed to the proposition that our clients must be satisfied with the quality of our services as well as the amount of our charges. Our effectiveness and your best interest are enhanced by an atmosphere of candor and confidence between us, not only as to the facts and circumstances of the legal issues on which we are working, but also as to the attorney-client relationship itself. If at any time you have questions concerning our work or our fees, we hope that you will contact us immediately. Town of Firestone, Colorado April 2, 2020 Page 6 BUTLER SNOW LLP Accepted and Approved: TOWN OF FIRESTONE, COLORADO By: Bobbi Sindelar Its: Mayor Date: April 8, 2020 KKC/jw Enclosure Town of Firestone, Colorado April 2, 2020 Page 7 Exhibit A NOTICE TO CLIENTS OF BUTLER SNOW’S RECORD RETENTION & DESTRUCTION POLICY FOR CLIENT FILES Butler Snow maintains its client files electronically. Ordinarily, we do not keep separate paper files. We will scan documents you or others send to us related to your matter to our electronic file for that matter and will ordinarily retain only the electronic version while your matter is pending. Unless you instruct us otherwise, once such documents have been scanned to our electronic file, we will destroy all paper documents provided to us. If you send us original documents that need to be maintained as originals while the matter is pending, we ordinarily will scan those to our client file and return the originals to you for safekeeping. Alternatively, you may request that we maintain such originals while the matter is pending. If we agree to do that, we will make appropriate arrangements to maintain those original documents while the matter is pending. At all times, records and documents in our possession relating to your representation are subject to Butler Snow’s Record Retention and Destruction Policy for Client Files. Compliance with this policy is necessary to fulfill the firm’s legal and ethical duties and obligations, and to ensure that information and data relating to you and the legal services we provide are maintained in strict confidence at all times during and after the engagement. All client matter files are subject to these policies and procedures. At your request, at any time during the representation, you may access or receive copies of any records or documents in our possession relating to the legal services being provided to you, excluding certain firm business or accounting records. We reserve the right to retain originals or copies of any such records of documents as needed during the course of the representation. Unless you instruct us otherwise, once our work on this matter is completed, we will designate your file as a closed file on our system and will apply our document retention policy then in effect to the materials in your closed files. At that time, we ordinarily will return to you any original documents we have maintained in accordance with the preceding paragraph while the matter was pending. Otherwise, we will retain the closed file materials for our benefit and subject to our own policies and procedures concerning file retention and destruction. Accordingly, if you desire copies of any documents (including correspondence, e-mails, pleadings, contracts, agreements, etc.) related to this matter or generated while it was pending, you should request such copies at the time our work on this matter is completed. You will be notified and given the opportunity to identify and request copies of such items you would like to have sent to you or someone else designated by you. You will have 30 days from the date our notification is sent to you to advise us of any items you would like to receive. You will be billed for the expense of assimilating, copying and transmitting such records. We reserve the right to retain copies of any such items as we deem appropriate or necessary for our use. Any non -public Town of Firestone, Colorado April 2, 2020 Page 8 information, records or documents retained by Butler Snow and its employees will be kept confidential in accordance with applicable rules of professional responsibility. Any file records and documents or other items not requested within 30 days will become subject to the terms of Butler Snow’s Record Retention and Destruction Policy for Client Files and will be subject to final disposition by Butler Snow at its sole discretion. Pursuant to the terms of Butler Snow’s Record Retention and Destruction Policy for Client Files, all unnecessary or extraneous items, records or documents may be removed from the file and destroyed. The remainder of the file will be prepared for closing and placed in storage or archived. It will be retained for the period of time established by the policy for files related to this practice area, after which it will be completely destroyed. This includes all records and documents, regardless of format. While we will use our best efforts to maintain confidentiality and security over all file records and documents placed in storage or archived, to the extent allowed by applicable law, Butler Snow specifically disclaims any responsibility for claimed damages or liability arising from damage or destruction to such records and documents, whether caused by accident; natural disasters such as flood, fire, or wind damage; terrorist attacks; equipment failures; breaches of Butler Snow’s network security; or the negligence of third-party providers engaged by our firm to store and retrieve records. 52394883.v1