DISCLOSURE COUNSEL RETAINER (4)DISCLOSURE COUNSEL RETAINER AGREEMENT
THIS AGREEMENT made this -4?4 day of , 2010, by and between
the City of Clearwater, P.O. Box 4748, Clearwater, Florida 33758, hereinafter referred to
as the "City" and the law firm of Nabors, Giblin & Nickerson, P.A., 2502 Rocky Point
Drive, Suite 1060, Tampa, Florida 33607, herein after referred to as the "Disclosure
Counsel."
WITNESSETH:
WHEREAS, the City wishes to retain a firm to serve as Disclosure 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, Disclosure 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 (the "Agreement"), the parties do hereby agree as follows:
SECTION I. AUTHORIZATION TO PROCEED AS DISCLOSURE
COUNSEL. Disclosure Counsel is hereby authorized to provide Disclosure Counsel
services as described in this Agreement and for the professional fees described in this
Agreement.
SECTION 2. TERM. The term of the Agreement will be effective for five
(5) years from the date of execution.
SECTION 3. DISCLOSURE COUNSEL SERVICES. Disclosure
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. Disclosure Counsel agrees, at the
request of the City, to:
(A) Consult with City officials and staff concerning disclosure questions and
issues relating to the initial issuance of bonds or other indebtedness and continuing
disclosure requirements.
(B) Attend, upon request, meetings of the City Council (the "Council") or any
meeting of staff, relating to the issuance of bonds or disclosure matters;
(C) Prepare and review the City's bond purchase agreement in the event bonds
are offered pursuant to a negotiated sale;
(D) Prepare and/or review the City public sale solicitation documents in the
event bonds are offered pursuant to a competitive bid;
(E) Prepare the City's preliminary and final official statements in connection
with any bond offering;
(F) Supervise and coordinate the printing and delivery of the preliminary and
final official statements;
(G) Review all bond documents prepared in connection with an issuance of
bonds to the extent such documents involved disclosure matters;
(H) Provide a written 10(b)-5 disclosure opinion to the City at the time any
bonds are issued;
(I) Provide a. reliance letter or written 10(b)-5 disclosure opinion to the
underwriters at the time any bonds are issued;
(J) Consult with City officials and staff regarding all matters relating to
continuing disclosure requirements, specifically those now imposed by the Securities and
Exchange Commission Rule 15c2-12, as amended (the "Rule"). Disclosure Counsel's
responsibilities with respect to continuing disclosure shall involve, but not limited to, the
following issues:
(1) determination of "material events" (as defined in the Rule) and
timely disclosure of same;
(2) yearly compilation, determination and disclosure of "annual
information" (as described in the Rule);
(3) yearly disclosure of audited financial statements;
(4) timely disclosure of any material failure by the City to comply with
the Rule;
(5) determination and preparation of new language required by the Rule
to be included in bond resolution and official statements;
(6) obtaining assurances and obligations from other "material persons"
or "obligated persons" (as such terms are defined in the Rule) involved in a bond
transaction that such persons will comply with the Rule; and
(7) any and all matters regarding the Rule and the City's continuing
disclosure obligations.
SECTION 4. PROFESSIONAL FEES FOR DISCLOSURE COUNSEL
SERVICES. The City and Disclosure Counsel agree to the following schedule of fees in
connection with Disclosure Counsel representation.
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First $10,000,000 $1.10*
Above $10,000,000 $0.90*
*Per $1,000 $5,000 minimum
SECTION 5. ANCILLARY SERVICES. In addition to being asked to
perform typical services in connection with various issues of the City as noted, above,
Disclosure 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 continuing disclosure services and performance of other
legal services at the request of the City shall be performed at the rate of $150 per hour for
partners and $125 per hour for associate attorney time. 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 Disclosure 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 Disclosure 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. Disclosure
Counsel agrees to protect, defend, indemnify and hold the City and its officers,
employees and agents free and harmless from and against any and all losses, penalties,
damages, settlements, costs, charges, professional fees or other expenses or liabilities of
every kind and character arising out of or due to any negligent act or omission of
Disclosure 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, Disclosure Counsel shall procure and
maintain during the life of this Agreement professional liability insurance in the
minimum amount 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 Disclosure Counsel that Disclosure Counsel is not aware of any clients of Disclosure
Counsel that currently present any conflict between the interest of the City and other
clients of Disclosure Counsel. If any potential conflict of interest arises during the time
Disclosure Counsel is representing the City, Disclosure Counsel will promptly inform the
City. The City is under no obligation to agree to permit the conflict representation.
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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 Disclosure Counsel.
SECTION 10. CANCELLATION OF AGREEMENT. The City may
cancel or terminate this Agreement upon thirty days advance written notice to Disclosure
Counsel. In the event of cancellation, Disclosure 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 Disclosure Counsel that L. Thomas Giblin and W. Daniel Tyler will be the
lead attorneys assigned by Disclosure Counsel to provide the services contained herein.
The City in its absolute discretion may immediately terminate this Agreement upon
written notice to Disclosure Counsel if the services of any of these attorneys are
unavailable to the City.
IN WITNESS WHEREOF, the City and Disclosure Counsel have executed this
Agreement as of the date first written above.
Countersigned:
CITY OF CLEARWATER, FLORIDA
---,RT- By: _
William B. Horne, II Frank Hibbard
City Manager Mayor
Approved as to form and
legal sufficiency:
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Pamela . Akin
City Attorney
Witnesses:
Attest:
Cy is E. Goudeau
City Jerk
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