BOND COUNSEL RETAINER (4)BOND COUNSEL RETAINER AGREEMENT
THIS AGREEMENT made this 4:?' day of , 2010 by and between the CITY
COUNCIL OF THE CITY OF CLEARWATER, FLORIDA (the "City"), P.O. Box 4748, Clearwater,
Florida 33758-4748, and the law Bond Counsel of BRYANT MILLER OLIVE P.A.,
TALLAHASSEE, FLORIDA ("Bond Counsel"), 101 North Monroe Street, Suite 900, Tallahassee,
Florida 32301.
WITNESSETH:
WHEREAS, the City wishes to retain a Bond Counsel to serve as Bond Counsel to the
City in connection with various bond issues and other matters for five (5) years; and
WHEREAS, pursuant to the City's request for proposals, Bond Counsel has been
selected to provide the desired services on terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein contained, the parties do hereby agree as follows:
SECTION 1. AUTHORIZATION TO PROCEED AS BOND COUNSEL. Bond
Counsel is hereby authorized to provide Bond Counsel services as described in this Agreement
and for the professional fees described in this Agreement.
SECTION 2. TERM. This Agreement will be effective for five (5) years from the date
of execution.
SECTION 3. BOND COUNSEL SERVICES. Bond Counsel, hereby agrees to provide
its professional services and facilities in connection with all bond issuance and other debt
activities of the City subject to the conditions and in consideration of the payment of fees set
forth herein. Bond Counsel agrees, at the request of the City, to:
(A) Review proposed financing programs as to the legal feasibility, compliance with
applicable law and pending or proposed revision to the law, including U.S. Treasury
regulations.
(B) Advise as to structuring procedures, required approvals and filings, schedule of
events for timely issuance, potential cost-saving techniques and other legal matters relative to
issuance of the debt instrument(s).
(C) Attend meetings with City Staff and officials, the City's financial advisor,
underwriters, rating agencies and others as appropriate for development or sale of bonds or
dissemination of information in connection therewith.
(D) Prepare bond ordinances or resolutions and any amendments thereto in order to
authorize the issuance of the bonds.
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(E) Prepare any trust indenture; escrow deposit agreement; registrar or paying agent
agreement, and any other agreements of similar documents necessary, related or incidental to
the financing.
(F) Prepare all pleadings (e.g. complaint, notice of service, proposed answer,
memorandum of law, proposed order, etc.) and, as requested by the City Attorney, assist in or
conduct the validation hearing.
(G) Review the transcript of all proceedings in connection with the foregoing and
indicate any necessary corrective action.
(H) if sale is by competitive bid, assist in preparation of the bid documents, notice of
sale, evaluation of bids and any other documentation or action necessary to conduct a sale of
the bonds in that manner.
(I) Review all disclosure documents prepared or authorized by the City insofar as
such documents describe the bonds and summarize the underlying documents. However, the
Bond Counsel assumes no responsibility for the disclosure documents insofar as such
documents describe the financial circumstances of the offering or any other statistical
projections or data and the Bond Counsel assumes no responsibility for preparing "Blue Sky
Memorandums," registering obligations of the City in any State or for preparing legal
investment surveys.
(j) Prepare, obtain, deliver and file all closing papers necessary in connection with
the sale and issuance of the bonds, including, but not limited to, certified copies of all minutes,
ordinances, resolutions and orders; certificates such as officers, seal, incumbency, signature, no
prior pledge, arbitrage and others; and verifications, consents and opinions from accountants,
engineers, special consultants and attorneys.
(K) Review all underwriting proposals, prepare all closing documents and attend
and assist in the closing.
(L) Render an opinion in written form at the time the bonds are delivered, which
opinion will cover (1) the legality of the bonds and the proceedings by which they are issued
and (2) the exemption from gross income for federal income tax purposes of the interest paid on
the bonds.
SECTION 4. PROFESSIONAL FEES FOR BOND COUNSEL SERVICES.
A. The City and Bond Counsel agree to the following schedule of fees in connection
with bond counsel representation:
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Fixed Rate General Fixed Rate Revenue Variable Rate
Obli ation Bonds* Bonds* Revenue Bonds*
First $45,000,000 @$.55 @1.40 @1.50
$45,000,000 and
above @$.45 @0.90 @1.00
*per $1,000
The minimum fee for general obligation bonds and city revenue bonds is $15,000.
B. For conduit financings, the City agrees that the Bond Counsel shall be
compensated for the above services at the time bonds are delivered according to the following
schedule:
FIRST $5,000,000 @ $5.00 per $1,000
SECOND 5,000,000 3.00 per $1,000
NEXT 10,000,000 2.00 per $1,000
NEXT 10,000,000 1.70 per $1,000
IN EXCESS OF 30,000,000 1.00 per $1,000
The minimum fee for industrial development bonds and private activity bonds is
$30,000. Expenses will be capped at $7,500 but subject to negotiation in unusual cases. The
Bond Counsel understands that fees for conduit financings shall be paid by the obligor and not
by the City.
SECTION 5. ANCILLARY SERVICES. In addition to being asked to perform
typical Bond Counsel services in connection with various issues of the City as noted, above,
Bond Counsel agrees to provide certain ancillary services, such as ongoing consultation with
the City on routine matters, i.e., phone conversations, short correspondence and simple advice
on proposed or closed transactions without additional cost. Other services such as bond
validation proceedings, preparation of legislation, preparation of ruling requests to the Internal
Revenue Service for rulings required in particular financing, seeking no action letters from the
Securities and Exchange Commission and performance of other legal services at the request of
the City shall be performed at an hourly rate based on the level of the attorney providing the
services and the complexity of the matter involved. No such services will be undertaken
without prior approval of the Finance Director and the City Attorney on the scope of the
requested legal services and the estimated costs of said services.
SECTION 6. COMPENSABLE EXPENSES. Reimbursement of expenses shall be
made by the City to the Bond Counsel for reasonable out-of-pocket expenses as described above
without markup including but not limited to long distance calls and facsimiles, copying or
reproducing documents, postage, court costs, parking costs and travel incurred by Bond
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Counsel in performance of the duties hereunder. Travel and per diem costs as well as auto
travel expenses shall not exceed that which is available to City of Clearwater employees.
SECTION 7. INDEMNIFICATION AND INSURANCE. Bond Counsel agrees,
through the provision of professional liability insurance and similar coverages, to protect,
defend and indemnify the City and its officers, employees and agents from and against any and
all losses, penalties, damages, settlements, costs, charges, professional fees or other expenses or
liabilities of every kind and character caused by any negligent act or omission of Bond Counsel,
its employees, agents and subcontractors in connection with or arising directly or indirectly out
of this Agreement and/or the performance hereof. Without limiting its liability under this
Agreement, Bond Counsel shall procure and maintain during the life of this Agreement
professional liability insurance in an amount in excess of $2,000,000. This provision shall
survive the termination of this Agreement.
SECTION 8. CONFLICT OF INTEREST. It is understood by the City and Bond
Counsel that Bond Counsel is not aware of any clients of the Bond Counsel that currently
present any conflict between the interest of the City and other clients of Bond Counsel. If any
potential conflict of interest arises during the time Bond Counsel is representing the City, Bond
Counsel will promptly inform the City. The City is under no obligation to agree to permit the
conflict representation.
SECTION 9. CONSTRUCTION AND AMENDMENTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida. This Agreement
may be amended only by a writing duly entered into by the City and Bond Counsel.
SECTION 10. CANCELLATION OF AGREEMENT. The City may cancel or
terminate this Agreement upon thirty days advance written notice to Bond Counsel. In the
event of cancellation, Bond Counsel shall immediately cease work hereunder and shall be
reimbursed for eligible and documented reimbursable expenses incurred prior to the date of
cancellation. Further, it is understood and agreed between the City and Bond Counsel that
Robert C. Reid and Grace Dunlap will be the lead attorneys assigned by Bond Counsel to
provide the services contained herein. The City in its absolute discretion may immediately
terminate this Agreement upon written notice to Bond Counsel if the services of any of these
attorneys are unavailable to the City.
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IN WITNESS WHEREOF, the City and Bond Counsel have executed this Agreement as
of the date first written above.
Countersigned:
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William B. Horne, II
City Manager
Approved as to form and
Legal sufficiency:
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Pamela K. Akin
City Attorney
Witnesses:
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CITY OF CLEARWATER, FLORIDA
By:
Frank Hibbard
Mayor
Attest:
Bryant Miller Olive P.A.
Title: Shareholder
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