Resolution - Vinson & Elkins•
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN
AREA WATER AUTHORITY AUTHORIZING THE GENERAL MANAGER
TO EXECUTE AN ENGAGEMENT LETTER FOR VINSON & ELKINS,
L.L.P., TO SERVE AS BOND COUNSEL TO THE BAYTOWN AREA
WATER AUTHORITY; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN AREA
WATER AUTHORITY:
Section 1: That the Board of Directors of the Baytown Area Water Authority hereby
authorizes the President to execute an engagement letter for Vinson & Elkins, L.L.P., to serve as
bond counsel to the Baytown Area Water Authority. A copy of said engagement letter is
attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: This resolution shall take effect immediately from and after its passage by
the Board of Directors of the Baytown Area Water Authority.
INTRODUCED, READ and PASSED, by the affirmative vote of the Board of Directors
of the Baytown Area Water Authority this the 21st day of April, 2004.
ATTEST:
-Z5?"/ir
GFIY W/. SMITH, Assistant Secretary
APPROVED AS TO FORM:
GNACIO RAMIREZ, SR.
eral Counsel
F:\Karen\Files\BA WA\Resolution\Vinson&ElkinsBondCounsel4BAWA.doc
RT L. GILLETTE, President
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Vinson8rE1MZL
ATTOR.. YS AT LAW
April 14, 2004
Board of Direcao):s
Baytown Area W Ater Authority
2123 Market Stre t
Baytown, Texas '77520
Ladies and Gentlmen:
VINSON & El HINS L.L.P.
2300 FflSI Q Y :R
1001 FANNiN STREET
H O SITON, TEXAS 77102-6760
TELEPHONE (7 3) 758 2222
FAX (713) 7 53.2346
www velAw com
Frank McCleary
Direct Dial 713-758.2440
Direct Fax 713.615 5256
fmcctear1 velaw.a nm
This letter, v, hen accepted by you, will constitute our agreement to serve as bond counsel to
the Authority. W , agree that our services as bond counsel will include the following:
1. For each issue or series of bonds (or other obligations), attendance at all meetings
of 'the Board of Directors as required or requested in connection with the planning
and authorization of such issue or series, including consultation on federal income
tag: matters;
2. Foi• each issue or series of bonds (or other obligations), preparation of the
res. Jlution of the Board authorizing issuance of the obligations of such issue or
serves, together with all other legal documents comprising the transcript of
prc ceedings for authorization and issuance of such issue or series;
3. Co.isultation with the Authority and the Authority's financial advisors to review
infirmation of a legal nature to be included in any Official Statement or other
prospectus for each issue or series of obligations, regarding the terms and
cor.ditions of the obligations to be issued, the legal authority for the issuance of
the: obligations and the pledge of taxes or revenues for the payment of such
obligations, and the status of the obligations and the interest thereon under federa
inc )me tax law;
4. Preparation of and submission to the Attorney General of Texas of a transcript or.
proceedings for each issue or series of bonds (or other obligations) to obtain the
approval of the Attorney General and registration by the Comptroller of Public:
Acr:ounts of Texas of such issue or series;
5. Preraaration and filing of legal documents required under federal income tax laa
for each issue or series of bonds (or other obligations), and the preparation of and
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delivery to the Authority of a letter of instructions with respect to the federal
ir come tax treatment of bond proceeds;
6. S-ipervision of the printing of each issue or series of bonds (or other obligations);
7. R. :presentation of the Authority at the closing of the sale of each issue or series,
including preparation of all closing documents; and
8. If appropriate, the delivery at closing of our approving opinion as to the validity
of each issue or series of bonds (or other obligations) under Texas law and the
et,. elusion of interest on such obligations from gross income of the holders under
fe 3eral income tax law.
For the services outlined above, our fee for the Authority's Series 2004 Contract Revenue
Bonds to be sot( to the Texas Water Development Board would be $19,500. Such fee will be
contingent on this issuance of the bonds by the Authority. If no bonds are issued, no fee will he
due.
Fees for futtre bond counsel services will be established at the time of each issue, subject to
the approval of tl-_e Authority.
The Authority would also reimburse us for disbursements made on behalf of the Authority
and expenses and charges relating to our representation, including travel, long distance telephone
charges, and photocopy and document delivery charges. All such charges will be subject to
approval by the A uthority.
The services outlined above do not include such matters as services as disclosure counsel in
connection with bond issues, work on post -closing federal tax or disclosure issues, obtaining IRS
rulings or clarifications of federal tax law, or presentations to rating agencies or bond insurers.
We will be p1ea,ed to provide legal services in connection with any matters not included in
paragraphs 1 through 8 above, but we believe that such additional services should be the subject
of a separate engz.gement letter.
This agreem ;nt will remain in force and effect unless terminated as provided herein. This
agreement may e terminated by either party at any time on thirty days' written notice. We
agree not to assign or otherwise transfer any interest in this agreement without the prior written
consent of the Au hority.
This agreem ;nt incorporates the Standard Terms of Engagement For Legal Services (the.
"Standard Terms") attached hereto. We agree that any increases in the "Additional Charges"
described in the Standard Terms will not be effective until 45 days after receipt by the Authority
of a revised schedule of such charges reflecting any such increases.
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If the arrangement set out above meets with your approval, please take appropriate action to
approve this agreement and return one executed copy to the undersigned.
Very truly yours,
ank McCreary rad'''
0257:2150
Attachment
1602263 1.DOC
ACCEPTED:
BAYTOWN AREA WATER AUTHORITY
By:
President, Board of Directors
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April 14, 2004
VINSON & ELKINS L.L.P.
Standard Terms of Engagement
for Legal Services
This statement sets forth certain standard terms of our engagement as your lawyers and is
intended as a sul:plement to the engagement letter that we have with you as our client. Unless
modified in writiag by mutual agreement, these terms will be an integral part of our agreement
with you as reflected in the engagement letter. Therefore, we ask that you review this statement
carefully and contact us promptly if you have any questions. We suggest that you retain this
statement in your file with the engagement letter.
The Scope of Our Work
You shot.ld have a clear understanding of the legal services we will provide. Any
questions that you have should be dealt with promptly.
We will a: all times act on your behalf to the best of our ability. Any expressions on our
part concerning he outcome of your legal matters are expressions of our best professional
judgment, but are not guarantees. Such opinions are necessarily limited by our knowledge of the
facts and are based on the state of the law at the time they are expressed.
It is our r olicy that the person or entity that we represent is the person or entity that Is
identified in our engagement letter, and absent an express agreement to the contrary does not
include any affiliates of such person or entity (e.g., if you are a corporation or partnership, any
parents, subsidiaries, employees, officers, directors, shareholders or partners of the corporation
or partnership, ':'r commonly owned corporations or partnerships; or, if you are a trade
association, any .members of the trade association). If you believe this engagement includes
additional entities or persons as our clients you should inform us immediately.
It is also our policy that the attorney -client relationship will be considered terminated
upon our completion of any services that you have retained us to perform. If you later retain us
to perform further or additional services, our attorney -client relationship will be revived subject
to the terrns of engagement that we agree on at that time.
This engagement shall be subject to the Texas Disciplinary Rules of Processional
Conduct.
Who Will Provide the Legal Services
Customarly, each client of the Firm is served by a principal attorney contact. The
principal attorne" should be someone in whom you have confidence and with whom you enjoy
working. You a•e free to request a change of principal attorney at any time. Subject to the
supervisory role of the principal attorney, your work or parts of it may be performed by other
lawyers and legal assistants in the Firm. Such delegation may be for the purpose of involving
lawyers or legal ,:ssistants with special expertise in a given area or for the purpose of providing
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services on the most efficient and timely basis. Whenever practicable, we will advise you of the
names of those a,.tomeys and legal assistants who work on your matters.
How Our Fees Will Be Set
Generalll, our fees are based on the time spent by the lawyers and paralegal personnel
who work on the matter. We will r.harge for all time spent in representing your interests,
including, by way of illustration, telephone and office conferences with you and your
representatives, consultants (if any), opposing counsel, and others; conferences among our legal
and paralegal personnel; factual investigation; legal research; responding to your requests for us
to provide information to your auditors in connection with reviews or audits of financial
statements; draft ng letters and other documents; and travel. We will keep accurate records of
the time we devote to your work in units of quarters of an hour.
The hour y rates of our lawyers and legal assistants are reviewed and adjusted annually
on a firm -wide b psis to reflect current levels of legal experience, changes in overhead costs, and
other factors.
Although we may from time to time, at the client's request, furnish estimates of legal fees
and other charge; that we anticipate will be incurred, these estimates are by their nature inexact
(due to unforeseeable circumstances) and, therefore, the actual fees and charges ultimately billed
may vary from sr.,ch estimates.
With your advance agreement, the fees ultimately charged may be based upon a number
of factors, such a.3:
The time and effort required, the novelty and complexity of the issues presented, and the
skill required to perform the legal services promptly;
The fees 1;ustomarily charged in the community for similar services and the value of the
services to you;
The amoii.nt of money or value of property involved and the results obtained;
The time constraints imposed by you as our client and other circumstances, such as im
emergency closing, the need for injunctive relief from court, or substantial disruption of
other office business;
The natun and longevity of our professional relationship with you;
The experience, reputation and expertise of the lawyers performing the services;
The exter, t to which office procedures and systems have produced a high -quality product
efficiently
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For certan well-defined services (for example, a simple business incorporation), we will
(if requested) quote a flat fee. It is our policy not to accept representation on a flat -fee ba.$is
except in such di:fined-service areas or pursuant to a special arrangement tailored to the needs of
a particular client. In all such situations, the flat fee arrangement will be expressed in a letter,
setting forth botr the amount of the fee and the scope of the services to be provided.
We also will, in appropriate circumstances, provide legal services on a contingent fee
basis. Any contingent fee representation must be the subject of a separate and specific
engagement lette r.
Additional Charges
In additic n to our fees, there will be other charges for items incident to the performance
of our legal si;rvices, such as photocopying, messengers, travel expenses, long-distance
telephone calls, facsimile transmissions, postage, overtime for secretaries and other non -legal
staff, specializedcomputer applications such as computerized legal research, and filing fees. The
current basis for these charges is set forth below. The Firm will review this schedule of charges
on an annual basis and adjust them to take into account changes in the Firm's costs and other
factors.
E' .iplicating
Tie Finn charges $.15 per page.
C 3urier Services
T'ie Firm charges an amount which generally represents cost including the
distribution service provided by the Firm. Depending on the volume of work
p'.rformed by a service provider, the Firm may receive a volume discount during a
particular accounting period for which no adjustment is made on an individual
cl.Lent's bill.
Camputer Aided Legal Research (CALR)
Third party providers of CALR services charge the Firm amounts each month
based on the type, extent, and duration of the services provided. The Firm charges
cl Lents for client research only based on the computed cost to the Firm for the uie
of' the services. This cost is monitored and revised periodically to achieve an
average "at cost" rate for clients.
Ti ;lefax
The Firm charges $1.00 per page for outgoing telefaxes, which includes all
telephone costs.
Telephone
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Tie Firm does not charge for local calls. Due to the Firm -wide volume of long
distance calls and multitude of rates for the various area codes and exchanges
(c ver 65,000), the Firm does not bill each individual call based on the statements
received from providers, but rather charges a flat rate of $.41 per minute for each
long distance call made within the United States. This rate ($.41) is an
approximation of third party provider charges and internal costs associated with
this service. International calls are charged based on the rate in effect for the
cc untry being called.
Ti avel-Related Expenses
Alfare, meals, and related travel expenses charged to the client represent actual,
oust -of -pocket cost. Depending on the volume of both Firm and personal travel,
the Firm may receive beneficial services, including airline tickets from its travel
agent for which no adjustment is made on an individual client's account. In
addition, credits earned under the Frequent Flyer Programs accrue to the
individual traveler and not to the Firm.
All Other Costs
Tl.e Firm charges actual disbursements for third -party services like court
reporters, expert witnesses, etc,, and may recoup expenses reasonably incurred in
cc anection with services performed in-house, such as mail services, secretarial
overtime, file retrieval, etc.
Unless special arrangements are otherwise made, fees and expenses of others (such ss
experts, investigrtors, consultants and court reporters) will be the responsibility of, and billed
directly to, the cl-.ent. Further, all invoices in excess of $500 will be forwarded to the client for
direct payment.
Billing Arrangements and Terms
Our billing rates are based on the assumption of prompt payment. Consequently, unless
other arrangemeri:s are made, fees for services and other charges will be billed monthly and are
payable within th:rty days of receipt.
By engaging us, you acknowledge and agree that you are responsible for payment of fees,
expenses and dist ursements. In appropriate matters as an accommodation to you, we may agree
to direct our bills to third -party payors (e.g., an insurer), but you agree that you will remain fully
responsible for timely payment of our bills if for any reason the third party does not timely pay
such bills. Likewise, we agree that we owe our professional obligations to you, even when a
third party pays our bills.
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Advances
Clients c-F the Firm are sometimes asked to deposit funds as an advance payment with the
Firm. The advance payment will be applied first to payment of charges for such items as
photocopying, messengers, travel, etc., as more fully described above, and then to fees for
services. The a,ivance will be deposited in our client advance account and we will charge such
other charges ani our fees against the advance and credit them on our billing statements. In the
event such other charges and our fees for services exceed the advance deposited with us, we will
bill you for the excess monthly or may request additional advances. Any unused portion of
amounts advanc.3dl will be refundable at the conclusion of our representation.
Confidentiality
We will preserve the confidentiality of information you provide us consistent with
applicable law including the rules of professional conduct governing lawyers. This confirms
your agreement 'hat, with respect to firm brochures or other material or information regarding
the firm and its practice, we may indicate the general nature of our representation of you and
your identity as a firm client.
Client and Firm Documents
We will maintain any documents that you furnish to us in our client file (or files) for this matter.
At your request, 'we will return your documents to you at the conclusion of the matter (or earlier,
if appropriate). It is your obligation to tell us which, if any, of the documents that you furnish us
that you want re umed. We will return those documents to you promptly after our receipt of
payment for outstanding fees and charges. Our own files pertaining to this matter, including the
work performed 1)y our attorneys, will be retained by the Firm. Any documents retained by the
firm will be kept for a certain period of time, and ultimately we will destroy them in accordance
with our record r: tention program schedule then in effect.
1602263_1.DOC