PROFESSIONAL SERVICES RETAINER AGREEMENTPROFESSIONAL SERVICES RETAINER AGREEMENT
THIS AGREEMENT made this l.4 day o J1 2015 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 firm of BRYANT MILLER OLIVE P.A., TALLAHASSEE,
FLORIDA (the "Firm "), 101 North Monroe Street, Suite 900, Tallahassee, Florida 32301.
WITNESSETH:
WHEREAS, the City wishes to retain a law firm 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, the Firm 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. The Firm 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. PROFESSIONAL SERVICES. The Firm 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.
The Firm, in its role as 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 PROFESSIONAL SERVICES.
A. The City and the Firm agree to the following schedule of fees in connection with
Bond Counsel representation:
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*per $1,000 principal amount
The minimum Bond Counsel fee for direct City issues is $4518,000 for publicly offered .
bond issues and $20,000 for bank loans, and expenses would be reimbursed at actual out of
pocket costs in accordance with the existing Bond Counsel services contract.
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
Fixed Rate General
Fixed Rate Revenue
Variable Rate
Obligation Bonds*
Bonds*
Revenue Bonds*
10,000,000
2.00 per $1,000
NEXT
10,000,000
First $45,000,000
@$1.00
@1.40
@1.50
$45,000,000 and
above
@$.75
@0.90
@1.00
*per $1,000 principal amount
The minimum Bond Counsel fee for direct City issues is $4518,000 for publicly offered .
bond issues and $20,000 for bank loans, and expenses would be reimbursed at actual out of
pocket costs in accordance with the existing Bond Counsel services contract.
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.
C. Fees for Bond Counsel services will be the same for a negotiated or competitive
sale.
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, the
Firm 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 can be provided as Bond Counsel
such as (but not limited to) bond validation proceedings, preparation of legislation, preparation
of ruling requests to the Internal Revenue Service ( "IRS ") for rulings required in particular
financing, assisting the City in responding to an audit request from the IRS, seeking no action
letters from the Securities and Exchange Commission and post- issuance compliance 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
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undertaken without prior approval of the Finance Director and /or the City Attorney, as
applicable, on the scope of the requested legal services and the estimated costs of said services.
The Firm will also provide, at the request of the City, professional services outside the
customary scope of Bond Counsel services related to public finance matters including matters
related, but not limited to, litigation, labor and employment law and general city attorney
services at the governmental hourly rate based on the level of the attorney providing the
services and the complexity of the matter involved. No such additional services will be
undertaken without prior approval of the Finance Director and /or the City Attorney, as
applicable, 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 Firm for reasonable out -of- pocket expenses without markup including
but not limited to long distance calls and facsimile transmissions, copying or reproducing
documents, postage, court costs, parking costs and travel incurred by the Firm 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. The Firm 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 the Firm, 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,
the Firm 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 the Firm
that the Firm is not aware of any clients of the Firm that currently present any conflict between
the interest of the City and other clients of the Firm. If any potential conflict of interest arises
during the time the Firm is representing the City, the Firm will promptly inform the City. The
City is under no obligation to agree to permit the conflict representation.
The rules regulating The Florida Bar provide that common representation of multiple
parties is permissible where the clients are generally aligned in interest, even though there is
some difference in interest among them. The Firm has disclosed to the City that the Firm has,
currently does and may in the future, serve as bond or disclosure counsel to other local
governments, act as underwriters' counsel and represent lending institutions on public finance
matters inside and outside the State of Florida. From time to time, the Firm may represent
financial institutions which may underwrite the City's bonds, notes or other obligations (and
other financial institutions hired by the City) on financings for other governmental entities on
unrelated matters. In all such cases, such representations are standard and customary within
the industry and the Firm can effectively represent the City and the discharge of the Firm's
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professional responsibilities to the City will not be prejudiced as a result, either because such
engagements will be sufficiently different or because the potential for such prejudice is remote
and minor and outweighed by consideration that it is unlikely that advice given to the other
client will be relevant in any respect to the subject matter, and the City expressly consents to
such other representations consistent with the circumstances herein described. The Firm's
representation on unrelated matters is not likely to create or cause any actual conflict, and such
service will not be per se construed as a conflict or be objectionable to the City.
The Firm understands that the City reserves the right to identify a representation that it
finds objectionable in the future, in which case both parties agree to take appropriate steps to
resolve the issue. Should any potential conflict arise in the future, the Firm would immediately
disclose the facts to the City including the party with which there might be a conflict, the nature
of the potential conflict, and the means of resolving such potential conflict, including but not
limited to obtaining written conflict waivers from both parties and /or resignation of the
representation or representations which is /are causing the conflict, if desired.
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 the Firm.
SECTION 10. CANCELLATION OF AGREEMENT. The City may cancel or
terminate this Agreement upon thirty days advance written notice to the Firm. In the event of
cancellation, the Firm 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 the Firm that Robert C. Reid and
Monique Spotts 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 both of these attorneys are
unavailable to the City.
[Remainder of page left intentionally page — signature page follows]
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IN WITNESS WHEREOF, the City and the Firm have executed this Agreement as of the
date first written above.
Countersigned: CITY OF CLEARWATER, FLORIDA
By: - cteote fl C,e�os
William B. Horne, II George N. Cretekos
City Manager
Approved as to form and
Legal sufficiency:
4.1z
Pamela K. Akin
City Attorney
Witnesses:
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Attest:
Mayor
Rosemarie Call
City Clerk
BRYANT MILLER OLIVE P.A.
Title: Shareholder