HomeMy WebLinkAboutEngagement of Bingham McHale LLP 6-8-2010Bingham • McHaIeLLP
A T T O R N E Y S A T L A W
Honorable Thomas Galligan
Mayor, City of Jeffersonville
500 Quartermaster Court
Jeffersonville, IN 47130
June 8, 2010
Re: Engagement of Bingham McHale LLP
Dear Mayor Galligan:
John R. Gregg
Attorney at Law
(812) 886-9970 Direct
i ~re~e(a~binehammchale. cam
On behalf of the lawyers and staff at Bingham McHale LLP, we are pleased to accept
employment in connection with services as special counsel for the City of Jeffersonville. We
look forward to working with you and the City. In performing the services, I will be the primary
contact on this matter.
We have enclosed with this letter an Employment Memorandum describing the
procedures which we propose to follow in providing our services.
Please sign the Employment Memorandum and return a copy to me.
Pursuant to your request, we are also enclosing an outline of Project Financing Requested
Information. This is the discussed information we need to commence working on the project
financing matters. Two of the matters appear particularly time sensitive, those being getting (1)
the requested information to draft a tax law reimbursement resolution (which must adopted by
the Redevelopment Commission no later than 60 days after the date the city first paid project
costs, which you advised occurred in connection with completed land purchases paid by the city
during the week of May 24th}; and (2) the Sewage Works Bond Anticipation Note transcript that
comes due in September to start working on a refinancing plan.
Thank you for the opportunity to serve you and the City of 3effersonville.
Yours truly,
JRG/sml/1499123.2
Enclosures
o re
Bingham McHale LLP I Indianapolis I Jasper I Vincennes I www.binghammchate.com
2'700 Market Tower 110 West Market Street I Indianapolis, IN 46204 I Phone 31'7.635.8900 Fax 3i7•z36.g907
EMPLOYMENT MEMORANDUM
TO: CITY OF JEFFERSONVILLE, INDIANA
c/o Thomas Galligan, Mayor
Re: City of Jeffersonville, Indiana
Canal Project/Police Station Project/Sewer System Projects
(collectively, the "Projects")
The purpose of this memorandum is to set forth the role we have been asked to take, the
responsibilities we have agreed to assume and the amounts and terms of payments to us as
special counsel and bond counsel in connection with the above-referenced Projects and the
financing thereof (the "Bonds") by the City of Jeffersonville, Indiana and its Redevelopment
Commission and/or other City entities (the "Issuer").
1. ~ecial Counsel. Bingham McHale LLP will work with selected City officials,
employees and consultants. Our special counsel representation may include, but not limited to:
a. Serve as general counsel for the Projects;
b. Coordinate with the City team;
c. Formalize a Project plan /timeline;
d. Assist in redevelopment activities;
e. Provide regulatory counsel; and
f. Review and draft contracts and agreements.
2. Bond Counsel. Bingham McHale LLP views the role of bond counsel as a
member of a team that works creatively and efficiently to address the needs of the issuer client.
We will prepare, or assist Issuer's counsel in the preparation of, all resolutions, minutes, notices
and other documents relating to the issuance of the Bonds. We will work closely with the team
in determining the best structure and preparing a timetable for the transaction. We will prepare
or assist in the preparation of all necessary legal documents setting forth the terms of the issue.
We will assist you with any petition requirements. We will coordinate all the activities necessary
to seek and obtain any state approvals. In addition, we will coordinate the closing of the
proposed financing, including preparation of resolutions, certificates, and most of the other
required closing documents. We will assemble the transcript of the transaction, prepare and
make all filings required by the Internal Revenue Service.
As bond counsel we have been engaged with the primary responsibility to render an
objective legal opinion with respect to the authorization, issuance, validity, and tax exempt status
of the Bonds. As bond counsel, we will: examine applicable law; prepare the resolutions,
indenture or ordinance authorizing and securing the Bonds and other authorizing documents;
consult with the parties to the transaction prior to the issuance of the Bonds; review certified
proceedings; and undertake such additional duties as we deem necessary to render the bond
opinion.
Subject to the completion of proceedings to our satisfaction, we will render our opinion
that, among other things, the Bonds have been duly authorized, executed and delivered by the
Issuer and are valid and binding special obligations of the Issuer, payable solely from the sources
provided therefor; and that the interest paid on the Bonds will be: (i) excluded from gross
income for federal income. tax purposes; and (ii) exempt from Indiana income taxes (subject to
certain limitations which may be expressed in the opinion). The opinion will be executed and
delivered by us in written form on the date the Bonds are exchanged for their purchase price (the
"Closing") and will be based on facts and law existing as of its date.
In rendering the opinion, 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. We will not review the financial condition of the Issuer,
the feasibility of the project to be financed with the Bond proceeds, or the adequacy of the
security provided to Bond owners, and we will express no opinion relating thereto.
In performing our services as bond counsel, our client will be the Issuer, and we will
represent its interests. 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
representation of the Issuer does not alter our responsibility to render an objective opinion as
bond counsel.
We also anticipate rendering advice to the Issuer in connection with real estate, contract,
grant and other issues which may be connected with the planning, construction and financing of
the Projects.
Although Bingham McHale LLP has the capabilities of performing a wide variety of
legal services, our role as bond counsel would not typically include work on any litigation that
might arise out of the financing, any federal or state regulatory matter relating to the project, any
post-closing arbitrage compliance or any post-closing continuing disclosure matters. These
additional services could be obtained from Bingham McHale LLP, outside the role as bond
counsel.
3. Fees. To a large extent our fees are based on the time and effort expended.
However, other factors are involved, such as the responsibility assumed in processing the
transaction, the complexity of the work and the time pressures placed on bringing the transaction
to an orderly conclusion. It is difficult to provide a firm figure with respect to fees because of
the fact that fees are so closely related to time invested in the transaction.
a. Billing, Generally. We will bill all time on an hourly basis at our standard
rates. We call to your attention that we may open several separate files under this engagement in
order to appropriately allocate fees and charges between the various projects. The time of each
attorney who may work on the project may be billed at differing hourly rates. Each attorney's
rate depends on his or her experience and skill for the type of work required by the project, and
the novelty and complexity of the issues involved. Paralegals and clerks also have hourly rates.
Rates are reviewed and adjusted annually. Time spent on a project will be recorded daily.
Examples of time which will be recorded are time involved in research, investigation, telephone
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calls, travel, conferences, appearances at hearings, preparation, drafting, correspondence and
organizing files and materials.
b. Expenses. In addition, we will expect to be reimbursed for all out-of-
pocket expenses, including travel costs, photocopying, deliveries, long distance telephone
charges, filing fees, and other similar disbursements and charges.
4. Payment of Fees. If the financings for the Projects are consummated, our fees
will be paid at the Closing out of Bond proceeds, and we do not contemplate submitting any
statement until the Closing. See paragraph 6 below for payment of our fees in the event the
financing is not consummated.
5. Local Counsel. We will be pleased to coordinate our efforts with your City
Attorney. We will work with the City Attorney to see that all related hearings and meetings are
attended and ensure that all resolutions and ordinances are duly introduced and passed.
6. Scope of Employment. The Issuer is employing us only in connection with the
Projects described in this Memorandum. If the Issuer later desires to employ us for other matters
and we accept the representation, we may ask that a separate agreement be executed for the other
projects. The new agreement may contain terms different from those contained in this one. If no
additional agreement is executed, this agreement will apply to the new projects, with the billing
and payment to be in accordance with the Firm's standard practice.
7. Termination of Services. We or the Issuer may terminate our representation at any
time by written notice. In such event, we will be paid for our services and for charges incidental
to our representation and termination, through the date of termination, whether or not the
transaction closes. Any termination by us will be in accordance with our ethical obligations to
the Issuer, local Rules of Court and the Indiana Rules of Professional Conduct.
8. Relationships with Other Clients. Because we are large, full-service law firm we
maybe (and often are) asked to represent a client with respect to interests that are adverse to those
of another client who is represented by the firm in connection with another matter. Just as the Issuer
would not wish to be prevented in an appropriate situation from retaining a law firm that competes
with Bingham McHale LLP, our firm wishes to be able to consider the representation of other
persons or entities who may have interests that are potentially adverse to the Issuer, but with respect
to matters that are unrelated in any way to our representation of the Issuer with respect to the
Projects. The ethics that govern us permit us to accept such multiple representations, assuming
certain requirements are met.
During the term of this engagement, we agree that we will not accept representation of
another client to pursue interests that are directly adverse to the Issuer's interests unless and until
we make full disclosure to the Issuer of all the relevant facts, circumstances, and implications of
our undertaking the two representations, and confirm that the following criteria are met: (i) there
is not a substantial relationship between any matter in which we are representing or have
represented the Issuer and the matter for the other client; (ii) any confidential information that we
have received from the Issuer will not be available to the lawyers and other Bingham McHale
LLP personnel involved in the representation of the other client; and (iii) our effective
representation of the Issuer and the discharge of our professional responsibilities to the Issuer
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will not be prejudiced by our representation of the other client. If the foregoing conditions are
satisfied, the Issuer agrees that we may undertake the adverse representation and that all conflict
issues will be deemed to have been resolved or consented to by the Issuer.
By making this agreement, we are establishing the criteria that will govern the exercise of
the Issuer's rights under applicable ethical rules to object to our representation of another client
whose interests are adverse to the Issuer. If you contest in good faith the facts underlying our
confirmation to you that the specified criteria have been met, then we will have the burden of
reasonably supporting those facts.
The Issuer has informed us that it does not anticipate utilizing any financing options
offered by the Indiana State Revolving Fund ("SRF"). We currently represent the SRF in
matters unrelated to the Projects and have concluded (as described above) that those
representations will not affect our representation of the Issuer in the Projects. By acceptance of
this engagement, the Issuer consents to our representation of it in this engagement and our
continuing representation of SRF in such other unrelated matters.
The Issuer's agreement to this engagement constitutes the Issuer's acceptance of the
foregoing terms and conditions. If any of them is unacceptable to the Issuer, please advise us
now so that we can resolve any differences and proceed with a clear, complete, and consistent
understanding of our relationship.
9. Competent and Dili eng, t Representation. We ethically cannot guarantee any
particular result that we may obtain on your behalf. However, we will provide competent and
diligent representation, with the legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.
We are pleased to be of service to the City of Jeffersonville.
BINGxAM McHALE LLP
By; ~-'
o R. g
RECEIVED AND ACCEPTED this ~ day of June, 2010:
CITY OF JEFFERSONVILLE, INDIANA
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