DISCLOSURE COUNSEL RETAINER
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DISCLbsURE COUNSEL RETAINER AG~EMENT
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THIS AGREEMENT is made on the ~aay Of~' 1995, by and
between the CITY COMMISSION OF THE CITY OF CLEAR R, FLORIDA (the
"City") and the law firm of NABORS, GIBLIN & NICKERSON, P. ., TAMPA, FLORIDA
("Disclosure Counsel").
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WIT N E SSE T H:
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 of the next ensuing three
(3) 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 premises and mutual covenants
herein contained, the parties hereto 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. DISCLOSURE COUNSEL SERVICES. Disclosure Counsel hereby
agrees to provide its professional services and facilities in connection with 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, any meeting of the City Commission (the
"Commission") 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's 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;
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, · (G) Review all bond documents prepared in connlction with an issuance of
bonds to the extent such documents involve 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 recent
amendments to Securities and Exchange Commission Rule 15c2-12 (the "Rule"). NGN's
responsibilities with respect to continuing disclosure shall involve, but not be 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 resolutions 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 other matters regarding the Rule and the City's
continuing disclosure obligations.
SECTION 3. PROFESSIONAL FEES FOR DISCLOSURE 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
*Per $1,000
$1 .1 0*
$0.90*
$5,000 Minimum
SECTION 4. ANCILLARY SERVICES. In addition to being asked to perform
typical Disclosure Counsel services in connection with various issues of the City as
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, , noted, above, Disclosul Counsel agrees to provide certain LnCillary 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 $150.00 per
hour for partners and $125.00 for 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 5. COMPENSABLE EXPENSES. Reimbursement of expenses shall
be made by the City to the firm for reasonable out-of-pocket expenses 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 6. 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 7. CONFLICT OF INTEREST. It is understood by the City and
Disclosure Counsel that Disclosure Counsel is not aware of any clients of the firm that
currently present any conflict between the interests 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 8. 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 9. COMPLIANCE WITH RECYCLED PAPER ORDINANCE. Per
Ordinance 5059-90, the City and Disclosure Counsel agree to the following:
A. All reports submitted to the City shall use recycled paper when it is
available at a reasonable price and of satisfactory quality to meet contractual
performance standards. For the purposes of this paragraph, the price of recycled paper
shall be considered "reasonable" if its cost is no more than ten percent higher than the
lowest price offered for non-recycled paper.
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B. All reports submitted to the City shall use both sides of paper sheets
whenever practical.
C. Disclosure Counsel shall be responsible for maintaining records
documenting usage of recycled paper for reports submitted to the City in fulfillment of
contractual obligations. Disclosure Counsel shall submit such records to the City
according to procedures to be established by the Purchasing Manager.
SECTION 10. TERM. This Agreement will be effective for three (3) years from
the date of execution and may be extended for two one (1) year renewals following that
upon written agreement by the City Commission.
SECTION 11. CANCELLATION OF AGREEMENT. The City may cancel or
terminate this Agreement upon sixty 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 William D. (Danny) Tyler will be the
lead attorneys assigned by the firm to provide the services contained herein. The City
in its absolute discretion may immediately terminate this Agreement upon written notice
to the firm 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.
Countersig ned:
CITY OF CLEARWATER, FLORIDA
By:
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Er eth M. eptula
City Manager
i a Garvey
Mayor-Commissioner
Approved as to form and
legal sufficiency:
Attest:
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Pamela K. Akin
City Attorney
~u[~u /:i.. A)..
City Clerk
WI~NESS~
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NABORS, GIBLIN, & NICKERSON, P.A.
By:~L~~
Title: . 'ihL~
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