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BOND COUNSEL RETAINER (3) BOND COUNSEL RETAINER AGREEMENT THIS AGREEMENT made this .Laay of~, 2005 by and between the CITY COUNCIL OF THE CITY OF CLEARW~ FLORIDA (the "City"), P.O. Box 4748, Clearwater, Florida 33758-4748, and the law Bond Counsel of BRYANT, MILLER & OLIVE, P.A., TALLAHASSEE, FLORIDA ("Bond Counsel"), 201 South Monroe Street, Suite 500, Tallahassee, Florida 32301. WITNESSETH: WHEREAS, the City wishes to retain a Bond Counsel 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, Bond 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 contained, the parties do hereby agree as follows: SECTION 1. AUTHORIZATION TO PROCEED AS BOND COUNSEL. Bond Counsel 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. BOND COUNSEL SERVICES. Bond 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. 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. (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 BOND COUNSEL SERVICES. A. The City and Bond Counsel agree to the following schedule of fees in connection with bond counsel representation: Fixed Rate General Cllligation Bonds* Fixed Rate Revenue Bonds* Variable Rate Revenue Bonds* FIRST $45,000,000 $45,000,000 AND PSOVE @ $.55 @ .45 @ $1.40 @ .90 @ $1.50 @ 1.00 *PER $1 ,000 The minimum fee for general obligation bonds and city revenue bonds is $15,000. 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 SECOND NEXT NEXT IN EXCESS OF $ 5,000,000 5,000,000 10,000,000 10,000,000 30,000,000 @$5.00 per $1 ,000 3.00 per $1,000 2.00 per $1,000 1.70 per $1,000 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. The above fees include bond validation proceedings on behalf of the City exclusive of appeal proceedings. 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, Bond 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 preparation of legislation, preparation of ruling requests to the Internal Revenue Service for rulings required in particular financing, seeking no action letters from the Securities and Exchange Commission and performance of other legal services at the request of the City shall be performed at the rate of $195.00 to $225.00 per hour based on the level of the attorney providing the services and the complexity of the matter involved. 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 Bond 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 Bond 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. Bond 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 Bond 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, Bond 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 Bond Counsel that Bond Counsel is not aware of any clients of the Bond Counsel that currently present any conflict between the interest of the City and other clients of Bond Counsel. If any potential conflict of interest arises during the time Bond Counsel is representing the City, Bond 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 Bond Counsel. SECTION 10. CANCELLATION OF AGREEMENT. The City may cancel or terminate this Agreement upon thirty days advance written notice to Bond Counsel. In the event of cancellation, Bond 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 Bond Counsel that Robert C. Reid, Grace Dunlap and Randall W. Hanna will be the lead attorneys assigned by Bond Counsel to provide the services contained herein. The City in its absolute discretion may immediately terminate this Agreement upon written notice to Bond Counsel if the services of any of these attorneys are unavailable to the City. IN WITNESS WHEREOF, the City and Bond Counsel have executed this Agreement as of the date first written above. Countersigned: CITY OF CLEARWATER, FLORIDA ~~-x William B. Horne, II City Manager By: 4~ ~ Frahk-Hfbbard { Mayor Approved as to form and 7Jj TCienCy: Pamela K. Akin City Attorney Attest: Bryant, Miller & Olive, P.A. y By61f:1/Z/ Tit e: 5JrtL~Ad'd~,'2-