HomeMy WebLinkAboutresolution.council.124-17 RESOLUTION #124
(Series of 2017)
A RESOLUTION OF THE ASPEN CITY COUNCIL, APPROVING A CONTRACT BETWEEN
THE CITY OF ASPEN AND BUTLER SNOW, LLP, AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, the City is proposing to issue new debt for the financing of land associated with future
municipal water supplies; and
WHEREAS, the City requires a level of legal oversight to the preparation of financial documents
associated with the issuance of such issuances of debt, and
WHEREAS, the firm of Butler Snow, LLC provides comprehensive and diverse legal expertise in
public finance and has one of the largest and most successful practices in the country, and
WHEREAS, the proposed issuances of.debt have similarities to the recent financing for the Aspen
Police Department in which Butler Snow, LLC supported the City and therefore has intimate knowledge
of the City's financial policies, home rule charter and of Colorado TABOR regulations in general;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that contract for bond counsel services
(attached hereto), between the City of Aspen and Butler Snow, LLC and does hereby authorize the City
Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED,READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of
September, 2017.
Steven Skadro , Mayor
1, Linda Manning, duly appointed and acting City Clerk do hereby certify tha the foregoing is a true and
accurate copy of the resolution adopted by the City Council of the City of Aspen, Colorado, at the
meeting held September 25, 2017.
n
Linda Manning, City Clerk
BUTLER I SNOW
September 5, 2017
VIA E-MAIL
City of Aspen
130 S. Galena
Aspen, CO 81611
Attn: Don Taylor, Finance Director
Re: Bond and Disclosure Counsel Services — City of Aspen General
Obligation Bonds for the Purchase of Certain Property for Use as
Storage of Municipal Water Supplies
Dear Don:
We are pleased to confirm our engagement as counsel to City of Aspen (the
"City"). We appreciate your confidence in us and will do our best to continue to merit it.
In establishing our attorney-client relationship, 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 services 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 and disclosure counsel to.the City in connection with the issuance
of general obligation bonds of the City in the approximate principal amount of $3,000,000
(the `Bonds"). Dee Wisor will be principally responsible for the work performed by Butler
Snow LLP on your behalf. Where appropriate, certain tasks may be performed by other
attorneys or paralegals. At all times, however, Dee Wisor will coordinate, review, and
approve all work completed for the City.
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 of securities like the
1801 California Slree! DEE P.WISOR T(720)330-2300
Sidle 5100 (720)330-2357 F(720)330-2301
Denner.Colorado 80202 Dee.\C'isor@ButlerSaow.com wnnn.Gnllerrnom.rom
Buniiit SNOXX'LLP
City of Aspen, Colorado
September 5, 2017
Page 2
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, including documents related to the election concerning 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 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 City in
connection with the Official Statement for the Bonds (the "Official Statement"). As such, we
will provide advice to the City on the applicable legal standards to be used in preparing the
Official Statement and meeting the City's disclosure responsibilities. At the conclusion of the
transaction we will deliver a letter to you stating that we have assisted the City 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 bond insurer, if any, 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 delivering 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 will be
addressed to the City 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 will be
based on facts and law existing as of their date.
Our services are limited to those contracted for explicitly herein; the City'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 City 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 other regulatory agency. Nor do our services include
City of Aspen, Colorado
September 5, 2017
Page 3
financial advice (including financial advice about the structure of Bonds) or advice on the
investment of funds related to the Bonds.
Representation of the City
In performing our services, the City will be our client and an attorney-client
relationship will exist between us. We will represent the interests of the City rather than the
City Council or its individual members. We will work closely with the City's general counsel
and will rely on the opinion of the general counsel 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.
Conflicts of Interest
Our firm sometimes represents, in other unrelated transactions, certain of the
financial institutions that may be involved in this transaction, such as underwriters, credit
enhancers, and banks. We do not believe that any of these representations will materially
limit or adversely affect our ability to represent the City in connection with the Bonds, even
though such representations may be characterized as adverse under the Colorado Rules of
Professional Conduct '(the "Rules"). In any event, during the term of our engagement
hereunder, we will not accept a representation of any of these parties in any matter in which
the City is an adverse party. However, pursuant to the Rules, we do ask that you consent to
our representation of such parties in transactions that do not directly or indirectly involve the
City. Your execution of this letter will signify the City's prospective consent to such
representations in matters unrelated to the City while we are serving as bond counsel
hereunder.
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, and (iv) the responsibilities we assume, we estimate
that our fee for this engagement will be $35,000. Such fee may vary: (i) if the principal
amount of the Bonds actually issued increases significantly, (ii) if material changes in the
structure of the financing occur, (iii) if unusual or unforeseen circumstances arise which
require a significant increase in our time or our responsibilities or (iv)the Bonds are not
delivered by March 31, 2018. If, at any time, we believe that circumstances require an
adjustment of our original fee estimate, we will consult with you.
City of Aspen, Colorado
September 5, 2017
Page 4
Our fees are usually paid at Closing out of proceeds of the Bonds. We
customarily do not submit any statement until the Closing, unless there is a substantial delay
in completing the financing. We understand and agree that our fees will be paid at Closing
out of proceeds.
Termination of Engagement
The City may terminate our engagement, with or without cause, upon 5 days'
written notice to us. We may terminate this engagement, upon 45 days' written notice to the
City.
Our fees for this engagement contemplate compensation for usual and
customary services as bond and disclosure counsel as described above. Upon delivery of the
opinion, our responsibilities as bond and disclosure counsel will terminate with respect to this
financing, and our representation of the City 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 City 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 proceeds, a failure by one of the parties to comply
with its contractual obligations (e.g., rebate requirements, continuing disclosure
requirements), an IRS audit, an SEC enforcement action, or a change in federal or state law.
Should the City seek the advice of bond 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.
Document Retention
At or within a reasonable period after Closing, we will review the file to
determine what materials should be retained as a record of our representation and those that
are no longer needed. We will provide you with a copy of the customary transcript of
documents after Closing and will return any original documents obtained from you (if a copy
is not included in the transcript). Our document retention policy is attached hereto.
Approval
If the 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 appreciate this opportunity to serve as your bond counsel and disclosure
counsel and look forward to a mutually satisfactory and beneficial relationship.
City of Aspen, Colorado
September 5, 2017
Page 5
BUTLER SNOW LLP
By:Y
ACCEPTED AND APPROVED:
CITY OF ASPEN
By:
Title: / ;, J1
Date:
DPW/jw
Enclosure
City of Aspen, Colorado
September 5, 2017
Page 6
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
City of Aspen, Colorado
September 5, 2017
Page 7
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 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 —