DISCLOSURE COUNSEL RETAINER (2)
.' ~
"
I
I
DISCLOSURE COUNSEL RETAINER AGREEMENT
THIS AGREEMENT is made on the K~ day of ~ ' 2000, by
and between the CITY OF CLEARWATER, P. O. Box 4748, \Clearwater, Florida
33758-4748 ("City"), and the law firm of NABORS, GIBLIN & NICKERSON, P.A., The
Pointe, Suite 1060, 2502 Rocky Point Drive, Tampa, Florida 33607("Disclosure
Counsel"),.
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 for three (3) years with an
option to extend for one two (2)-year renewal.; 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 three (3)
years from the date of execution and may be extended for one two (2)-year renewal
upon approval by the Commission.
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.
(8) Attend, upon request, meetings 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;
/V} /) /" / r'"
vol...-u~2 ~. C'c/)
(5/
.
~ '.
I
I
(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 1 O(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 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 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 obligati~ns.
2
I
" .
I
J
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 $150.00 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 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.
3
I
'\'
I
I
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 1 O. 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 William D. Tyler will be the lead
attorneys assigned by the Disclosure Counsel to provide the services contained herein.
The City in its absolute discretion may immediately terminate this Agreement upon written
notice to the 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:
~ 1-- ~0-
Brian J. Auncd
Mayor-Commissioner
CLEARWATER, FLORIDA
By:
Michael J. Roberto
City Manager
AP~as to form:
Pamela K. Akin
City Attorney
Attest:
ia E. Goudea~ "'.
lerk
NABORS, GIBLIN & NICKERSON, P.A.
By ~
Print NalT\e:
Title: '5hcu-
4