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HomeMy WebLinkAboutFIN 2021-11-08 Item 1C - Contract - Bond Counsel with Pacifica Law GroupCity of Tukwila Allan Ekberg, Mayor INFORMATIONAL MEMORANDUM TO: Finance Committee FROM: Vicky Carlsen, Finance Director CC: Mayor Ekberg DATE: November 2, 2021 SUBJECT: Contract with Pacifica Law Group for Bond Counsel Services ISSUE Staff is seeking approval for the Mayor to sign a 3 -year contract with Pacifica Law Group for bond counsel services. BACKGROUND Bond counsel services are a necessary function of issuing new debt and refunding existing debt. In October 2016, after an RFP process, Pacifica Law Group was selected for bond counsel services. Since that time, Pacific has provided excellent services to the City on all debt related matters. DISCUSSION The current 1 -year contract with Pacifica Law Group will expire at the end of 2021. Staff desires to enter into a new 3 -year contract for a total amount not to exceed $150 thousand. Costs are only incurred if the City issues new debt or refunds existing debt. Bond counsel provides a number of services related to debt including assessing financing options and considers legal issues related to projects, drafts legislation and bond documents, provides legal review of tax issues, and assists with post issuance compliance, among other services outlined in Exhibit A of the contract. RECOM M EN DATION The Council is being asked to authorize the Mayor to sign a 3 -year contract with Pacifica Law Group and consider this item for the consent agenda at the November 15, 2021, Regular meeting. ATTACHMENTS 3 -year contract with Pacifica Law Group 19 20 City of Tukwila 6200 Southcenter Boulevard, Tukwila WA 98188 CONTRACT FOR SERVICES Contract Number: This Agreement is entered into by and between the City of Tukwila, Washington, a non -charter optional municipal code city hereinafter referred to as "the City," and Pacifica Law Group LLP hereinafter referred to as "the Contractor," whose principal office is located at 1191 Second Avenue, Suite 2000, Seattle, WA 98101. Stacey Lewis (bond partner), Alison Benge (bond partner, specializing in Federal tax law), and Deanna Gregory will be the main contacts for City bond matters. Deanna Gregory will have primary oversight for Pacifica Law Group's representation of the City, but will assign other firm lawyers and paralegals when necessary, beneficial or cost-effective and when desirable to meet the time constraints of the matter. Ms. Gregory can be reached at her office at 206.245.1716 or any of the attorneys or other staff at Pacifica Law Group can be reached at 206.245.1700. Unless otherwise agreed in writing, the terms of this Agreement will also apply to any additional matters that the Contractor undertakes at the City's request. WHEREAS, the City has determined the need to have certain services performed for its citizens but does not have the manpower or expertise to perform such services; and WHEREAS, the City desires to have the Contractor perform such services pursuant to certain terms and conditions; now, therefore, IN CONSIDERATION OF the mutual benefits and conditions hereinafter contained, the parties hereto agree as follows: 1. Scope and Schedule of Services to be Performed by Contractor. The Contractor shall perform those services described on Exhibit A attached hereto and incorporated herein by this reference as if fully set forth. In performing such services, the Contractor shall at all times comply with all Federal, State, and local statutes, rules and ordinances applicable to the performance of such services and the handling of any funds used in connection therewith. The Contractor shall request and obtain prior written approval from the City if the scope or schedule is to be modified in any way. The parties hereto acknowledge that in rendering such services to the City, the Contractor is regulated by ethical rules, including rules regarding conflicts of interest, as set forth in Exhibit B attached hereto and incorporated herein by this reference. 2. Compensation and Method of Payment. The City shall pay the Contractor for services rendered according to the rate and method set forth on Exhibit C attached hereto and incorporated herein by this reference. The total amount to be paid shall not exceed $150,000 3. Contractor Budqet. The Contractor shall apply the funds received under this Agreement within the maximum limits set forth in this Agreement. The Contractor shall request prior approval from the City whenever the Contractor desires to amend its budget in any way. 4. Duration of Aqreement. This Agreement shall be in full force and effect for a period commencing_ January 1, 2022, and ending December 31, 2024 , unless sooner terminated under the provisions hereinafter specified. {KZS2490554.DOCX;1/13175.000001/ 2012 CA Revised Page 1 of 7 21 5. Independent Contractor. Contractor and City agree that Contractor is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto. Neither Contractor nor any employee of Contractor shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to the Contractor, or any employee of the Contractor. 6. Indemnification. The Contractor shall defend, indemnify and hold the City, its officers, agents, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, to the extent caused by the negligent acts or omissions of the Contractor under this Agreement. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, its officers, officials, employees, and volunteers, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Contractor's waiver, as respects the City only, of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Insurance. The Contractor shall procure and maintain in full force throughout the duration of this Agreement professional liability insurance with a minimum coverage of $1,000,000 per claim and $3,000,000 aggregate. Contractor shall provide evidence of such coverage in a manner and form acceptable to the City in the City's sole discretion. Cancellation of the required insurance shall automatically result in termination of this Agreement. 8. Record Keepinq and Reportinq. A. The Contractor shall maintain accounts and records, including personnel, property, financial and programmatic records which sufficiently and properly reflect all direct and indirect costs of any nature expended and services performed in the performance of this Agreement and other such records as may be deemed necessary by the City to ensure the performance of this Agreement. B. These records shall be maintained for a period of seven (7) years after termination hereof unless permission to destroy them is granted by the office of the archivist in accordance with RCW Chapter 40.14 and by the City. 9. Audits and Inspections. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by law during the performance of this Agreement. 10. Termination. This Agreement may at any time be terminated by the City giving to the Contractor thirty (30) days written notice of the City's intention to terminate the same. Failure to provide products on schedule may result in contract termination. If the Contractor's insurance coverage is canceled for any reason, the City shall have the right to terminate this Agreement immediately. 11. Discrimination Prohibited. The Consultant, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation or the presence of any disability in the selection and retention of employees or procurement of materials or supplies. {KZS2490554.DO CX;1 /13175.000001/1 2013 22 CA Revised 1 - Page 2 of 7 12. Assignment and Subcontract. The Contractor shall not assign or subcontract any portion of the services contemplated by this Agreement without the written consent of the City. 13. Entire Agreement; Modification. This Agreement, together with attachments or addenda, represents the entire and integrated Agreement between the City and the Contractor and supersedes all prior negotiations, representations, or agreements written or oral. No amendment or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. 14. Severability and Survival. If any term, condition or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement. 15. Notices. Notices to the City of Tukwila shall be sent to the following address: City Clerk, City of Tukwila 6200 Southcenter Blvd. Tukwila, Washington 98188 Notices to the Contractor shall be sent to the address provided by the Contractor upon the signature line below. 16. Applicable Law; Venue; Attorney's Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. DATED this day of , 2021. CITY OF TUKWILA CONTRACTOR Allan Ekberg, Mayor ATTEST/AUTHENTICATED: By: Printed Name and Title: Deanna Gregory, Partner Address: 1191 2nd Avenue, Suite 2000 City Clerk, Christy O'Flaherty Seattle, Washington 98101 APPROVED AS TO FORM: Office of the City Attorney {KZS2490554.DO CX;1 /13175.000001/1 2013 CA Revised 1 - Page 3 of 7 23 EXHIBIT A Scope of Services to be Performed by Contractor As bond counsel, Pacifica Law Group (the "Law Firm") shall provide all necessary legal services necessary to issue bond, notes and other evidences of indebtedness, including but not limited to: • Draft and distribute election documents, if a voted bond issue • Assist in the development or review of a distribution list and proposed schedule, flagging key notice, action and document deadlines • Gather appropriate facts regarding the financing and the proposed project, generally through an in-person kick off or "scoping" meeting • Conduct federal and state law analysis • Assess financing options and work with underwriters and financial advisors to consider legal issues • Review existing covenants and assess benefit of springing covenants • Draft and distribute bond (and, if requested, disclosure) documents • Revise, discuss, and explain documents • Arrange and participate in conference calls and meetings with City staff and other members of the finance team, as necessary, to follow up on issues identified at the scoping meeting or to review document drafts • Present documents to, and answer questions from, the City Council • Complete appropriate tax due diligence analysis • Work with the finance team to finalize disclosure documents in anticipation of marketing bonds • Review the results of pricing and draft or comment on the bond purchase agreement • Prepare closing certificates, prepare and print the notes or bonds, and deliver bond opinions • Deliver hard copies or CDs of the final transcript to the finance team • Coordinate with City staff on post -issuance compliance obligations (state, federal tax, and securities law) as necessary • Work cooperatively with the City Attorney and other special legal counsel retained by the City for special projects involving the issuance of bonds, closing of bond transactions, tracking of bond proceeds and related issues {KZS2490554.DO CX;1 /13175.000001/1 2013 24 CA Revised 1- Page4of7 Exhibit B Conflict of Interest As lawyers, the Contractor's representatives are regulated by ethical rules, including rules governing conflicts of interest, in the jurisdictions in which they practice. Based on the Contractor's review of their records, the Contractor's representation of the City on this initial matter does not create a conflict of interest for the Contractor or the City, however, the Contractor does serve as outside counsel and bond counsel to other municipalities and entities that interact and/or contract with the City (such as the Valley Communications Center, the Valley Communications Center Development Authority, the South Correctional Entity, the South Correctional Entity Facility Public Development Authority, King County, King County Regional Homelessness Authority, the Puget Sound Emergency Radio Network, the Housing Development Consortium (in connection with South King Housing and Homelessness Partners), and the Seattle Southside Regional Tourism Authority), and serves as underwriter's counsel from time to time to underwriting firms on matters unrelated to the City's bonds. Execution of this Agreement by the City's representative constitutes consent by the City to such representation. The Contractor agrees not to use any proprietary or other confidential nonpublic information concerning the City, acquired as a result of the Contractor's representation of the City, to the City's material disadvantage in connection with any litigation or other matter in which the Contractor is adverse to the City. If the City learns about significant name changes of any of the entities or about additional adverse or potentially adverse parties, it will advise the Contractor so their records can be updated. The Contractor's representation of the City does not include acting as counsel for any entity in which the City holds equity or any subsidiary, affiliate, equityholder, employee, family member or other person unless such additional representation is separately and clearly undertaken by the Contractor. During the Contractor's representation of the City, there may from time to time be issues that raise questions as to the Contractor's duties under the rules of professional conduct that apply to lawyers. These might include, e.g., conflict of interest issues, and could even include issues raised because of a dispute between the Contractor and the City over the handling of a matter. Under normal circumstances when such issues arise the Contractor would seek the advice of their non -bond related counsel such as Professional Standards Counsel, Loss Prevention partners or Professional Standards Conflicts Attorneys who are experts in such matters. Historically, the Contractor has considered such consultations to be attorney-client privileged conversations between firm personnel and the counsel for the firm. In recent years, however, there have been judicial decisions indicating that under some circumstances such conversations involve a conflict of interest between the City and the Contractor and that consultation with the Contractor's non -bond related counsel may not be privileged, unless the Contractor either withdraws from the representation of the City or obtain the City's consent to consult with the Contractor's non -bond related counsel. It is in the Contractor's and the City's interest, that in the event legal ethics or related issues arise during a representation, the Contractor receives expert analysis of their obligations. Accordingly, as part of this agreement concerning the Contractor's representation of the City, the City agrees that if the Contractor determines by their own discretion during the course of the representation that it is either necessary or appropriate to consult with the Contractor's non -bond related counsel (either Pacifica Law Group's internal counsel or, if determined necessary by the Contractor, outside counsel) the City consents to this and agrees that the Contractor's representation of the City shall not, thereby, waive any attorney-client privilege that the Contractor may have to protect the confidentiality of the City's and Contractor's communications with counsel. Any such consultation will be paid for by the Contractor, and not the City. {KZS2490554.DO CX;1 /13175.000001/1 2013 CA Revised 1 - Page 5 of 7 25 EXHIBIT C Compensation and Method of Payment FEE SCHEDULE Services at Time of Issuance Issue Size General Obligation Revenue Local Improvement District $1,000,000 $14,000 $16,000 $16,000 or Less $1,000,001- $18,000 $20,000 $20,000 $5,000,000 $5,000,001- $22,000 $24,000 $24,000 $10,000,000 $10,000,001- $27,000 $29,000 $29,000 $15,000,000 $15,000,001- $32,000 $34,000 $34,000 $20,000,000 $20,000,001 and $36,000 $38,000 $38,000 Above Fees are calculated based on the principal amount of the bonds, plus premium if the bonds are sold with net premium. Fees may be adjusted (up or down) for special projects to reflect unique transactions (such as 63-20 transactions or WI FIA loans) or to take advantage of economies of scale (such as multiple series of the same issue and credit being issued at the same time), with the prior consent of the City Finance Director. All bond counsel fees, costs and expenses are included in the fee matrix above. Bond counsel fees include all of the Contractor's work related to the bond issue (including but not limited to document preparation, state and federal tax law analysis, attending finance team and City Council meetings, expenses, costs, delivering the final opinion, answering questions during and between bond issues, and providing other services as outlined in the Scope of Services), unless another fee arrangement is agreed to by the City. The fee matrix may be adjusted, not more frequently than annually, with prior City approval. In the event the bonds are not issued, no fee will be charged. Depending on the complexity of the matter, bond counsel fees are likely to be lower if the bond issue is privately placed, such as with a bank. For bank loans, we typically charge a percentage of the regular fee schedule (such as 85%), depending on the facts and circumstances and the legal contract and related negotiations with the bank. For refunding issues, we typically charge 115% of the regular fee schedule. {KZS2490554.DO CX;1 /13175.000001/1 2013 26 CA Revised 1 - Page 6 of 7 SUPPLEMENTAL FEE SCHEDULE Supplemental Fee Schedule: Service Amount: Fixed Fee or Hourly Rate Specialized Services — Bond Issuances: • Rating presentation Included in fee matrix below (no additional charge) • General public finance advice, recommendations not related to a Included in fee matrix below (no additional charge) • Other services if on a different basis All bond counsel fees are included in fee matrix below. We propose an additional fee of $15,000 per bond issue to serve as Disclosure Counsel (prepare the preliminary and final official statements and deliver a 10b-5 opinion) at the City's request. Services at time of issuance See fee matrix below Overhead (coping, faxes, etc.) and travel Included in fee matrix below (no additional charge) Other fees We propose to charge a discounted hourly rate for all Pacifica attorneys performing work for the City that cannot be allocated to our role as bond counsel (and therefore be absorbed in the fee matrix below), subject to annual adjustments, and at the request of the City. Our 2021 public sector rates are below. Hourly rates are subject to annual adjustment. 2021 Stacey Lewis $430 Deanna Gregory $380 Toby Tobler $240 Alison Benge $460 Kristin Patterson $170 For special projects and with prior approval from the City, the Contractor would provide services on an hourly basis. The proposed hourly rates are listed above. These rates reflect the discount off standard rates customarily offered by the Contractor to public and not-for-profit clients. Billing rates may be adjusted not more frequently than annually, usually on January 1. Services performed after the effective date of the new rates will be charged at the new applicable rates. The Contractor does not charge for costs incurred internally (photocopying, long distance telephone charges, electronic legal research services and the like). However, to the extent the Contractor incurs costs from outside vendors directly related to City work, these costs will be passed through to the City without mark-up. The Contractor issues invoices for hourly fees and disbursements on a monthly basis. {KZS2490554.DO CX;1 /13175.000001/1 2013 CA Revised 1 - Page 7 of 7 27