DISCLOSURE COUNSEL RETAINER (3)
DISCLOSURE COUNSEL RETAINER AGREEMENT
THIS AGREEMENT made this ~day of~, 2005, 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 and in the Agreement, the parties do hereby agree
as follows:
SECTION 1. 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 1 O(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 personas": (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 BOND COUNSEL SERVICES.
The City and Disclosure Counsel agree to the following schedule of fees in
connection with Disclosure Counsel representation:
First $10,000,000
Above $10,000,000
$1.10*
$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, Le., 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 an amount in excess of $1,000,000. 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 the
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.
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.
Cou ntersigned:
CITY OF CLEARWATER, FLORIDA
~~~
William B. Horne, II
City Manager
By: -1~ ;t:I/~
Fra~ibbard ·
Mayor
Approved as to form and
lei/ZCienCY:
Pamela K. Akin
City Attorney
Attest:
Witnesses:
'a E. Goudeau
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