HWWS-Bond Counsel Agreement-082023.pdf

BOND COUNSEL AGREEMENT -Page 1

BOND COUNSEL AGREEMENT

THIS AGREEMENT by and between the Harlingen Waterworks System, a department of the City of Harlingen, Texas, a home-rule municipality, hereinafter referred to as "Waterworks," and vendor:_______, hereinafter referred to as "Bond Counsel," evidences the following:

1.01 PARTIES - The parties to this Agreement are:

(a) Harlingen Waterworks System, a department of the City of Harlingen, Texas, a home-rule municipality

134 East Van Buren Avenue Mailing Address:

Harlingen, Texas 78550-6828 P.O. Box 1950 Harlingen, Texas 78551-1950

956-430-6100

FAX - 956-430-6111

(b) Waterworks' Authorized Timothy E. Skoglund, P.E.

Representative: General Manager 956-430-6157

FAX - 956-430-6111

Email - tskoglund@hwws.com

(c) Waterworks' Primary Ronald De la Garza Contact: Finance and Revenue Director 956-430-6120

FAX - 956-430-6116

Email - rdelagarza@hwws.com

(d) Bond Counsel: Name Address City, State Zip code Phone #

FAX -

(e) Bond Counsel's Authorized Name Representative: Position Phone #

FAX

Email -

BOND COUNSEL AGREEMENT -Page 2

(f) Bond Counsel's Primary Contact:

Phone:

FAX:

Email:

(e) Bond Counsel's complete name is required. A Bond Counsel that is a business entity other than a sole proprietorship must submit documentation to show that it is authorized to transact business in the State of Texas. A business or individual doing business under an assumed name must provide a copy of its Assumed Name Certificate filed with the proper authorities.

(f) A street address is required. Bond Counsel may designate a post office box for mailing purposes only.

1.02 INDEPENDENT CONTRACTOR STATUS/ASSIGNMENT

(a) Independent Contractor - Bond Counsel, including its employees, agents, and representatives, will at all times remain independent contractors and will not, unless specifically authorized in writing either in this Agreement or in a separate document be considered a representative, employee, or agent of the Waterworks.

(b) Assignment - The obligations of Bond Counsel set forth in this Agreement may not be assigned to any third party without the written permission of the Waterworks.

2.01 DEFINITIONS

(a) "Board of Trustees" means the governing body of the Waterworks. Members of the Board of Trustees are appointed by the City Commission.

(b) "Bonds" includes any debt obligation of the Waterworks for which Bond Counsel is requested to serve in that capacity.

BOND COUNSEL AGREEMENT -Page 3

(c) "Bond Opinions" means one or more opinions of Bond Counsel that the bond issue or other debt obligation anticipated by this Agreement is a valid and binding obligation of the City pursuant to the statutes and regulations of the State of Texas, and that the interest on the debt obligations is exempt from federal income taxation under the federal tax code the United States (the “Code”). The opinion of Bond Counsel shall include an unqualified opinion, substantially to the effect that: (a) the debt obligations constitute a valid, legal, and binding obligation of City; (b) interest on the debt obligations is excluded from gross income for federal income tax purposes pursuant to the Code; and (c) if applicable, such interest on the debt obligations is not a specific preference item for purposes of the federal individual or corporate alternative minimum taxes under the Code; additionally, if required by the municipal securities market place, a supplemental opinion of Bond Counsel substantially to the effect that (a) all agreements relating to the debt obligations have been duly and validly authorized, executed and delivered by City and constitute the valid, legal and binding obligations of the City; and (b) all authorizing resolutions and ordinances of City and its agencies with respect to the debt obligations have been duly adopted and are valid and binding on City.

(d) "Bond Transcript" means those documents that are necessary for the issuance and sale of the bonds.

(e) "City" means the City of Harlingen, a Texas home-rule municipality.

(f) "City Commission" means the Mayor and Commissioners of the City of Harlingen.

(g) “Firm” means vendor providing bond counsel services.

(h) "Waterworks" means the Harlingen Waterworks System, a Department of the City of Harlingen, a Texas home-rule municipality.

2.02 CONTRACT DOCUMENTS - The Contract Documents are:

(a) This Agreement.

(b) The Waterworks' Request for Qualifications.

(c) Bond Counsel's Response to Request for Qualifications (RFQ #XX-XX).

(d) Any addenda to this Agreement signed by both Parties.

(e) Exhibit A – Schedule of Fees & Reimbursable Expenses.

(g) Exhibit B - Ethics Statement and Conflict of Interest Questionnaire.

BOND COUNSEL AGREEMENT -Page 4

2.03 SCOPE OF SERVICES

In consideration of the compensation stated in Exhibit A – Schedule of Fees & Reimbursable Expenses, the Firm agrees to provide the Waterworks with the services as described in Waterworks’ Request for Qualifications and the Firm's Response to Request for Qualifications, which is incorporated herein by reference for all purposes, and which services may be generally described as follows:

“Bond Counsel and Related Advisory Services”

3.01 TERM OF AGREEMENT

(a) This Agreement will be effective on the date last signed by a Party hereto, and will remain in effect for a five year period thereafter.

4.01 PAYMENT

(a) In consideration of the Firm’s provision of the services in compliance with all terms and conditions of this Agreement, the Waterworks shall pay the Firm in accordance with Exhibit A – Schedule of Fees & Reimbursable Expenses.

(b) Form for Payment – Fees and expenses associated with the issuance of debt and reimbursement for payment to the Texas Attorney General’s office may be paid directly from debt proceeds at closing. Firm will submit an invoice to Financial Advisor prior to the closing of the transaction.

(c) Firm will submit an invoice to the Waterworks for the reimbursement of remaining expenses associated with the debt transaction. Payment by the Waterworks will be processed within 30 days of receipt of the invoice. Submission of an invoice by Firm is a representation that the services invoiced have been provided in accord with the terms of this Agreement.

5.01 STANDARD OF PERFORMANCE

(a) Bond Counsel warrants that the work to be performed under the terms of this Agreement will be performed: (1) in accordance with industry standards for nationally recognized bond counsel; and (2) in compliance with applicable State and Federal statutes and regulations.

(b) The work under this agreement shall be performed only by the individuals identified in Bond Counsel's Response to Request for Qualifications unless Bond Counsel obtains, for each additional person, the prior written approval of the General Manager, Director of Finance or either's designee. Prior written approval is not required for secretaries, legal assistants, typists, transcriptionists, or other employees of Bond Counsel who do not have discretionary authority over the scope or nature of the work to be performed.

(c) All work under this agreement shall be performed by or under the direct supervision and control of a partner or principal of the firm who has been individually identified

BOND COUNSEL AGREEMENT -Page 5 in the Bond Counsel’s Response to Request for Qualifications or by an addendum to this Agreement. The partner or principal of the firm responsible for the performance of this Agreement must be an attorney licensed to practice law in the State of Texas.

(d) Each partner or principal of the firm who has been identified in Bond Counsel’s Response to Request for Qualifications or by an addendum to this Agreement accepts individual responsibility and liability for the work performed.

(e) Bond Counsel, at its expense, will secure and maintain in full force and effect during the term of this Agreement all required licenses, permits, and similar legal authorizations, and comply with all requirements thereof.

(f) Bond Counsel, at its sole cost and expense, shall perform and comply with all applicable laws of the United States and the State of Texas, and the Charter, Municipal Code, and ordinances of the City of Harlingen with regard to the subject matter of this Agreement.

(g) Bond Counsel shall be responsible for the professional quality, technical accuracy, and the coordination of all reports, statements, other documents, advice, designs, drawings, specifications, and other services furnished by or on the behalf of Bond Counsel under this Agreement, including any advice and other services furnished by and documents prepared by subcontractors. Bond Counsel, without additional compensation, shall correct or revise any errors or deficiencies in the documents or other consultant services immediately upon notification by the Waterworks. The obligation provided for in this section with respect to any acts or omissions during the term of this Agreement shall survive any termination or expiration of this Agreement.

6.01 TERMINATION OR SUSPENSION - the Waterworks may terminate this Agreement before completion of the Project for any of the following reasons:

(a) when, in the sole opinion of the Waterworks, there has been significant noncompliance with the requirements of the Agreement;

(b) when, in the sole opinion of the Waterworks, work on the project has slowed to an unacceptable level or been discontinued either by agreement of the Parties or otherwise.

7.01 RESOLUTION OF DISPUTES

(a) In the event a dispute arises, except a decision by the Waterworks to terminate the Agreement, the Project will continue to the extent possible.

(b) In the event of a dispute that cannot be resolved between the parties, the parties agree to select a mediator to assist in resolving the dispute. Each party to the mediation will pay an equal share of the cost of the mediation.

(c) In the event the dispute cannot be resolved by mediation, the parties may agree to a binding or nonbinding arbitration or may choose to litigate the dispute. Each party to an arbitration proceeding will pay an equal share of the cost.

BOND COUNSEL AGREEMENT -Page 6

8.01 INSURANCE

(a) Bond Counsel is required to maintain general liability and professional malpractice insurance sufficient to protect the Waterworks and the City of Harlingen from third party claims related to the work, or the performance of the work, to be undertaken by bond counsel pursuant to this Agreement including without limitation: (1) workers' compensation;

(2) claims by Bond Counsel's employees for bodily injury, sickness, disease, or death; (3) claims for personal injury sustained by any person as a direct or indirect result of Bond Counsel's employment of the person or sustained by any other person; (4) claims for damage to property (other than the work) because of injury to or destruction of tangible property, including loss of use; and (5) claims for damages for personal injury, death, or property damage resulting from Bond Counsel's use and/or maintenance of any motor vehicle.

(b) Certificates of Insurance

(1) Bond Counsel will provide the Waterworks with Certificates of Insurance before commencing work on the work to be undertaken pursuant to this Agreement.

(2) The Certificates will provide that no coverage will be canceled, renewal refused, or materially changed for the duration of this Agreement unless at least thirty days prior written notice is given to the Waterworks.

8.02 NOTICES

(a) Any notice required by this agreement will be given at the address or telephone facsimile number shown above.

(b) Notices sent by mail will be deemed delivered when received.

(c) Notices sent by telephone facsimile will be deemed delivered when received except that facsimile notices sent after 5:00 p.m. at the location of the recipient, as determined by the time of receipt of the last page of the document transmitted, will be deemed delivered the following business day.

9.01 GENERAL PROVISIONS

(a) Construction and Place of Performance - This Agreement will be construed under and in accord with the laws of the State of Texas, and all obligations of the Parties created hereunder are performable in Cameron County, Texas.

(b) Execution of Other Instruments - The Parties hereto agree that they will execute such other and further instruments and documents as are or may become necessary or convenient to effectuate this Agreement.

(c) Paragraph Headings - The paragraph headings used in this Agreement are for convenience only and are not to be considered in construing its terms.

BOND COUNSEL AGREEMENT -Page 7

(d) Parties and Successors Bound - This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns, as may be applicable.

(e) Prior Agreements - This Agreement supersedes any prior understandings or written or oral agreements between the Parties with respect to the subject matter of the Agreement and contains the entire Agreement between the Parties as of the date of its execution.

(f) Modification - This Agreement may be modified only in writing subscribed by the Parties hereto.

(g) Electronic Transmissions - Unless expressly agreed by the parties in an electronic transmission: (1) this agreement may not be modified by means of an electronic transmission;

and (2) nothing in an electronic transmission will satisfy the requirements for a writing or constitute a contract or electronic signature under: (a) the Electronic Signatures in Global and National Commerce Act, (b) any version of the Uniform Electronic Transactions Act including Ch. 322, Texas Business and Commerce Code, (c) any other state or federal statute or regulation governing electronic transactions, (d) any course of dealings between the parties, or (e) any common business practice.

(h) Effective Date - This Agreement will be effective on the date last signed by a Party hereto.

Harlingen Waterworks System, a Department of the City of Harlingen, Texas, a Home-Rule Municipality

By: ___________________________ Timothy E. Skoglund, P.E.

General Manager

Date: ___________________________

BOND COUNSEL AGREEMENT -Page 8

Bond Counsel Firm:

By: ___________________________ Representative

Date: ___________________________