HomeMy Public PortalAboutBryan, Miller, Oliver- Bond Counsel ServicesBryant
Miller
Olive
July 27, 2015
The Honorable Mayor and City Council Members
City of Crestview, Florida
198 North Wilson Street
Crestview, Florida
Re: Bond Counsel Services Agreement (Final)
Ladies and Gentlemen:
Attorneys at Law
111 Riverside Avenue
Suite 200
Jacksonville, FL 32202
Tel 904.384.1264
Fa.x 904.388.2986
v, Urnot.r.%
We are pleased to have an opportunity to offer the following as our agreement to
serve as bond counsel to the City of Crestview (the "City"). This agreement also
memorializes and continues the long-standing relationship the City has had with the
undersigned.
We propose that our services as bond counsel include the following:
1. Review of financing documents in connection with participation by the City in
any bond or note pool, or any regional authority or district financings, if applicable.
2. Preparation of all ordinances, resolutions and other basic agreements and
documents which may underly any proposed financing; and advice regarding escrow
structuring for refunding issues.
3. Preparation of validation pleadings, research with respect to the pertinent
legal issues and advice and consultation with respect to the validation hearing, if the
bonds, notes or lease -purchase certificates of participation (collectively, the "Bonds")
are validated; participation in the validation hearing at the trial court level to the extent
requested by the City Attorney; and, if necessary, appellate services before the Florida
Supreme Court.
4. Services in connection with the sale of the Bonds, including preparation of the
resolution authorizing the sale of the Bonds, and the notice of sale and bid forms (if the
Bonds are sold at public sale); review of the bond purchase contract (if the Bonds are
sold at negotiated sale to an investment banker); review of the bank loan commitment (if
Atlanta • Jacksonville • Miami • Orlando • Tallahassee • Tampa • Washington, D.C.
the Bonds evidence a negotiated private placement with a commercial bank); limited
assistance in the preparation of the official statement for the Bonds (if the Bonds are
publicly offered); and preparation of bond certificates.
5. If the Bonds bear interest at variable rates per annum (and include liquidity
providers) and/or if any interest rate swap agreements or other derivative or "hedging"
products (collectively, the "Derivatives") are used in connection with the Bonds, review of
the documentation for the liquidity facility and the Derivatives, as applicable. Also, if any
guaranteed investment contracts ("GIC's") dealing with the investment of bond proceeds
are utilized, review of the GIC's. However, please be aware that as bond attorneys, we
do not provide financial advice to our clients and are never involved in the
recommendations by financial advisor professionals to use a Derivative and/or G/C in
connection with any financing.
6. Assistance in selection of underwriters and other professionals involved in the
financings.
7. Preparation of all necessary closing documents used in connection with the
delivery of the Bonds.
8. Issuance of our opinion with respect to the validity of the Bonds and
exemption of interest thereon from federal income taxation (as applicable), including
review and analysis of all information necessary in order to deliver such an opinion.
9. Attendance at the bond closing and, as necessary, planning, document
drafting and negotiating sessions.
10. Additional services requested by City staff.
We propose that our fees as bond counsel (excluding out-of-pocket expenses)
be fixed on an issue -by -issue basis, after negotiation with City staff.
Furthermore, our firm would serve as disclosure counsel to the City, at your
request, and assume responsibility for preparation of the official statement for the Bonds
and the preparation of the continuing disclosure agreement in order to address the anti-
fraud provisions of SEC Rule 10b-5 and the requirements of SEC Rule 15c2-12. We
would render the appropriate opinions to you as our client. However, assumption of this
additional responsibility would be for a separate additional fee based upon the current
hourly rate or rates of the attorneys assigned to this task or such other fee negotiated
with the City.
CONFLICTS
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. We have disclosed to the City
that we have, and may in the future, serve as bond, disclosure or other counsel to other
2
Crestview -Bond Counsel Letter Agreement
local governments or otherwise act as underwriter's counsel on public finance matters in
Florida. From time to time, we may represent the firm or firms 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 in Florida on unrelated matters. In
either case, such representations are standard and customary within the industry and
we can effectively represent the City and the discharge of our 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 City acknowledges and agrees that our role as bond counsel,
disclosure counsel, or counsel to any local governmental entity or financial institution or
in conjunction with public finance transactions is not likely to create or cause any actual
conflict, and service as disclosure counsel, bond counsel, or counsel to other clients of
ours will not per se be construed as a conflict or be objectionable to the City. However,
the City reserves the right to identify a representation that it finds objectionable in the
future, in which case we agree to take appropriate steps to resolve the issue.
ATTORNEY -CLIENT RELATIONSHIP
In this transaction, the City will be our client and an attorney -client relationship
will exist between the City and the firm. In performing our services as bond counsel, we
will represent the interests of the City exclusively. Our representation of the City will not
affect, however, our responsibility to render an objective bond counsel opinion.
Upon the closing of the Bond transaction, without notice, it will be presumed that
our services on that transaction shall be complete, and the firm will not be actively
providing any services under this engagement letter, until requested again by the City or
its counsel.
Except in extraordinary circumstances and subject to agreement of the parties,
payment of our bond counsel fee in connection with the proposed Bonds of the City
would be contingent upon the successful closing of the Bonds, but in any event we
would still expect reimbursement for our out-of-pocket expenses.
Finally, if City staff desires that we review or prepare any other documents and/or
perform substantial research in connection with a financing plan or other special
government project, or provide other post -issuance services (including, but not limited
to, interest rate mode changes, changes in other bond professionals or services in
connection with state or federal regulatory proceedings), that do not result in the
issuance of Bonds, we propose that our fee be based upon the current hourly rates of
those attorneys performing work on the matter, plus our out-of-pocket expenses, or be a
fixed amount approved by you.
To the extent permitted by the Rules of Ethics of The Florida Bar, we agree (1) to
keep and maintain public records that ordinarily and necessarily would be required by
3
Crestview -Bond Counsel Letter Agreement
the City in order to perform our services under this proposal; (2) to provide the public
with access to public records pertaining to our services under this proposal, on the
same terms and conditions that the City would provide the records, and at a cost that
does not exceed the cost as may be provided by law; (3) to ensure that public records
pertaining to our services under this proposal, that are exempt or confidential and
exempt from public records disclosure requirements, are not disclosed except as
authorized by law; (4) to meet all requirements for retaining public records pertaining to
our services under this proposal and transfer, at no cost, to the City all such public
records in our possession upon termination of this agreement, which have not
previously been provided to the City, and destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure requirements; and (5)
with respect to records stored electronically, to provide them to the City in a format that
is compatible with its information technology systems.
This proposal and resulting agreement, if accepted by the City, may be
terminated by the City or our firm upon 30 days written notice by the applicable party.
If this proposal is acceptable to the City, please have the Mayor of the City
execute it in the space below.
This proposal may be executed in several counterparts, and each counterpart
shall for all purposes be deemed an original; and all such counterparts shall constitute
one and the same instrument.
Yours very truly,
Judson Freeman, Jr.
Accepted July 27, 2015, by the City.
ATTEST:
CITY OF CRESTVIEW
By.
1 (tArm.
ayor
4
Crestview -Bond Counsel Letter Agreement
RESOLUTION NO. 15-17
A RESOLUTION APPROVING CERTAIN MEMBERS OF THE FINANCING TEAM
FOR ANTICIPATED BOND, NOTE AND OTHER FINANCING TRANSACTIONS BY
THE CITY OF CRESTVIEW, FLORIDA; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CRESTVIEW, FLORIDA:
SECTION 1. AUTHORITY. This resolution is adopted pursuant to Chapter 166, Florida Statutes,
and other applicable provisions of law (collectively, the "Act").
SECTION 2. FINDINGS. It is hereby found, ascertained and determined that:
A. The City of Crestview, Florida (the "City"), anticipates bond, note and other financings (the
"Financings") in the near future.
B. It is desirable to approve certain of the outside finance professionals, including bond counsel, the
financial advisor and the investment banker/underwriter, in advance of the Financings, and authorize the City
Clerk to negotiate contracts with certain of those professionals.
C. The City Clerk recommends the following firms for those positions: Bryant Miller Olive P.A.
("BMO"), for bond counsel; Dunlap & Associates, Inc., for financial advisor (the "Financial Advisor"); and The
Frazier Lanier Company (the "Underwriter" for negotiated, publicly -offered financings); BMO, the Financial
Advisor and the Underwriter, herein collectively, the "Finance Professionals"). Due to the prior experience and
long history of bond counsel service to the City by Judson Freeman, Jr., BMO is recommended for the bond
counsel position in accordance with its proposed engagement agreement attached hereto as Exhibit A. The
Financial Advisor has proposed an agreement attached hereto as Exhibit B.
D. It is desirable that the City Clerk be delegated the authority to negotiate contracts with the
Financial Professionals and present them to the City.
SECTION 3. SELECTION OF FINANCE PROFESSIONALS. The Finance Professionals
recommended by the City Clerk are hereby approved, and the City Clerk is hereby delegated the authority to
negotiate appropriate contracts with them .
SECTION 4. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption
this July 27, 2015.
CITY OF CRESTVIEW, FLORIDA
2
By:
(SEAL)
ATTESTED AND COUNTERSIGNED:
, Council V-i€43-12—es-ident
ffr 5 icon t ?Kin.; rr-N
Dunlap
Associates
AGREEMENT WITH DUNLAP & ASSOCIATES, INC.
FOR FINANCIAL CONSULTING SERVICES
THIS AGREEMENT, entered into this 27th day of July, 2015, by and between the City of Crestview,
Florida, hereinafter referred to as "Client", and Dunlap & Associates, Inc., hereinafter referred to as
"Financial Advisor".
WHEREAS, the Client desires assistance in providing financial consulting in relation to issuance of
general obligation and water and sewer bonds.
WHEREAS, the Financial Advisor is experienced and qualified in providing said services under the
terms and conditions hereinafter set forth:
NOW, THEREFORE, the Client hereby retains the Financial Advisor to provide financial consulting
services for bond issuance. In consideration of the covenants and conditions hereinafter contained, the
parties hereto agree as follows:
I. SERVICES TO BE PERFORMED BY FINANCIAL ADVISOR
A. Debt Issue Development and Sales Services. The Financial Advisor shall perform the
following services for a debt offering (bond issue) when authorized by the Client.
1. Planning and Development Phase
a. Research and advise on aspects of tax exemption and arbitrage in cooperation with
the Client's legal counsel and bond counsel. Assist in obtaining Internal Revenue
Service rulings, if necessary.
b. If necessary, assist in the preparation and analysis of refunding studies in cooperation
with Client's officials and administrative staff, bond attorneys, accountants,
architects, engineers and other professionals as requested by the Client.
c. Carefully analyze the financing to determine the best methods of strengthening its
marketability consistent with current economic and capital market conditions and
increasingly stringent rating agency criteria. This may involve the use of municipal
bond insurance, surety bonds, letters of credit, underlying ratings, rating upgrades or
other credit enhancement devices. A more thorough discussion of the Financial
Advisor's credit enhancement services is presented later in this section.
d. Perform a comprehensive analysis to determine the best possible plan of finance.
The bond issue will be analyzed on its merits, including a market test to determine its
marketability. Assist in determination of method of sale. Coordinate selection of an
underwriter, if a negotiated sale is selected.
e. Consult with the rating agencies, Moody's, Standard & Poor's and/or Fitch Investors
Service with regard to the proposed financing and assist in obtaining the most
favorable credit rating possible. Prepare Client thoroughly for any credit rating
presentations and participate in those meetings.
1146 Keyes Avenue Winter Park, Florida 32789
Telephone: 407.678.0977 Telecopy: 407.678.6240
g•
Provide assistance and recommendations with the selection of ancillary service
providers such as underwriters, registrar, trustee and printer.
Act as liaison with bond counsel and coordinate other professionals providing
information in connection with the proposed financing.
h. Prepare a timetable of events for all concerned leading to the successful sale and
delivery of an offering.
2. Marketing Phase
a. Advise on the appropriate terms and conditions of the sale, including maturity
schedule, underwriter discount, redemption provisions, interest rate bidding
requirements and basis for award.
b. Advise on the timing of the bond sale, taking into consideration such factors as
changing economic conditions, current and projected market trends and specific
requirements to the Client.
c. Coordinate with bond counsel the preparation of authorizing ordinances and
resolutions and other documents involved in the sale of bonds or other methods of
financing. In the event the issue is sold by competitive sale, the Financial Advisor
will also assist in publicizing the issue in advance with an Official Statement, Notice
of Sale, Bid Forms and such other means necessary and advisable to develop
nationwide public and institutional interest.
d. Assist the Client in meeting full disclosure requirements and conforming to suggested
guidelines when preparing the Official Statement as an advisor.
e. Distribute the Official Statement to potential purchasers of the Client's securities.
Directly contact those lead underwriters most likely to be syndicate managers.
Maximize efforts to market the Client's debt issuance most effectively.
f. Conduct informational meetings with the investment community, including
investment bankers (dealers and dealer banks) and institutional investors (banks,
bank holding companies, and insurance companies) in New York, Florida and
elsewhere, if necessary, to establish bidding interest on this offering.
g•
If the financing is sold competitively, advertise the bond sale in nationally prominent
financial publications, in addition to coordinating local publication requirements.
h. For competitively sold bond issues, verify the bid opening to assist with the
verification and evaluation of bids and recommend the most favorable bid for award.
3. Bond Closing Phase
a. Direct bond closing details, including coordination with bond counsel, printer,
underwriter and insurance companies to promptly execute the closing of the
financing.
11 46 Keyes Avenue Winter Park, Florida 32789
Telephone: 407.678.0977 Telecopy: 407.678.6240
b. Direct, coordinate and supervise preparation of the transcript and provide the Client
with bond and interest debt service schedules showing required semi-annual
payments and other information relevant to the completed financing.
c. Solicit bids on investment of idle funds, if requested.
B. General Services
1. Facilitate the Client on any required bond and loan coverage tests, anti -dilution test as
required by loan documents or as requested by rating agencies.
2. In addition, the Financial Advisor will attend periodic meetings as requested by Client for
items that result in a financing.
C. Work Products. The Financial Advisor or Disclosure Counsel shall provide the following
work products for each competitive and negotiated debt offering.
1. Preliminary Official Statement
2. Final Official Statement
3. Official Notice of Bond Sale (Competitively Sold Issues)
4. Estimated Timetable
5. Rating Agency Presentation Outlines
6. Such other analyses, cash flow projections and materials necessary for financial planning
and bond sale purposes.
7. Bond refinancing sensitivity analyses.
II. FEES FOR SERVICES PERFORMED
A. Fees for all services:
For the performance of services in Sections I.A., I.B. and I.C., the Financial Advisor shall be
compensated on the basis of the fee schedule shown in Appendix A.
1. Printing Costs. The fee schedule in Appendix A does not include printing of Official
Statements and bond certificates.
2. Out -of -Pocket Expenses. The fee schedule in Appendix A does cover miscellaneous
issuance costs and financial advisor out-of-pocket expenses related to bond issues.
B. Payment Due
1. The Financial Advisor's fee and any reimbursement for out of pocket issuance costs shall
be due and payable 30 days after receipt by the Client of the invoice.
C. Negotiation of Fee. Any specific arrangements regarding fees not covered by this agreement
may be negotiated by the Client and Financial Advisor.
III. ASSIGNMENT OF FINANCIAL ADVISOR PERSONNEL
A. The services to be provided by the Financial Advisor shall be provided by J. Craig Dunlap,
Sylvia Dunlap, Kelly Ryman, and Justin Baumgardner of Dunlap & Associates, Inc.
1 146 Keyes Avenue Winter Park, Florida 32789
Telephone: 407.678.0977 Telecopy: 407.678.6240
B. Changes in Staff. The Financial Advisor will advise the Client not less than thirty (30) days
in advance of any proposed changes in the Financial Advisor's staff assignment to enable the
Client opportunity to discuss such proposed changes with the Financial Advisor.
The Financial Advisor shall agree to assign staff satisfactory to the Client. In the event that after
discussion of such proposed changes in staff, the Client determines that the changes are not
acceptable, the agreement may be terminated by thirty (30) days written notice by the Client.
IV. INDEMNITY
Financial Advisor agrees to defend, indemnity, save and hold harmless the Client, its officers,
agents and employees from any claim, demand, suit, loss, cost or expense for any damages which
may be asserted, claimed or recovered against or from Client, its officers, agents, or employees
by reason of any damage to property or personal injury, including death and which damage,
injury or death arises out of or is incidental to or in any way connected with Financial Advisor's
performance of services. This indemnification includes, but is not limited to, the performance of
this Agreement by Financial Advisor or any act or omission of Financial Advisor, their agents,
servants, contractors, patrons, guests or invitees and includes any costs, attorneys' fees, expenses
and liabilities incurred in the defense of any such claims or the investigation thereof.
V. NOTICES
Any notices required to be given by either party to the other shall be provided to the following
address:
City of Crestview, Florida
198 North Wilson Street
Crestview, Florida 32536
VL TERM OF AGREEMENT
Dunlap & Associates, Inc.
1146 Keyes Avenue
Winter Park, FL 32789
This agreement shall be for a three-year period with an option to renew for additional three-year
periods commencing on the date of its execution. Modification shall be by mutual consent and
termination shall be sixty (60) day written notice by either party. The Client shall not be
obligated to pay for any services provided by Financial Advisor after Financial Advisor has
received notice of termination.
The Client's performance and obligation to pay under this agreement is contingent upon an
annual appropriation by the City Council.
During the term of this agreement, the Client may terminate this agreement for cause after first
giving the Financial Advisor (30) days notice of default and opportunity to cure the default within
the thirty day period. In the event the acts constituting default are a violation of law, the
Financial Advisor will be subject to immediate termination of agreement.
VII. TERMINATION
This agreement may be terminated for cause by action of Client or by Financial Advisor upon
three (3) days written notice by the party that elected to terminate, or for convenience by action of
1146 Keyes Avenue Winter Park, Florida 32789
Telephone: 407.678.0977 Teleeopy: 407.678.6240
Client upon not less than fourteen (14) days' written notice.
Termination of this agreement for cause shall include, but not be limited to, failure to suitably
perform the work, failure to continuously perform the work in a manner calculated to meet or
accomplish the objectives of Client as set forth in this agreement, or multiple breach of the
provisions of this agreement, notwithstanding whether any such breach was previously waived or
cured.
Notice of termination shall be provided in accordance with the "NOTICES" Section V of this
agreement except that notice of termination by the Client if the Client deems it necessary to
protect the public health, safety, or welfare may be verbal notice which shall be promptly
confirmed in writing in accordance with the "NOTICES" Section V of this agreement.
In the event this agreement is terminated for convenience, Financial Advisor shall be paid for any
services performed up until the date the Agreement is terminated. Upon being notified of Client's
election to terminate, Financial Advisor shall refrain from performing further services or
incurring additional expenses under the terms of this agreement. Under no circumstances shall
Client make payment for services which have not been performed.
VIII. OTHER TERMS AND CONDITIONS
The Financial Advisor will provide a certificate of insurance for a minimum of S1,000,000
professional liability coverage, and the Client shall be additional named insured.
The Financial Advisor agrees (1) to keep and maintain public records that ordinarily and
necessarily would be required by the City in order to perform our services under this proposal; (2)
to provide the public with access to public records pertaining to our services under this proposal,
on the same terms and conditions that the City would provide the records, and at a cost that does
not exceed the cost as may be provided by law; (3) to ensure that public records pertaining to our
services under this proposal, that- are exempt or confidential and exempt from public records
disclosure requirements, are not disclosed except as authorized by law; (4) to meet all
requirements for retaining public records pertaining to our services under this proposal and
transfer, at no cost, to the City all such public records in our possession upon termination of this
agreement, which have not previously been provided to the City, and destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure requirements;
and (5) with respect to records stored electronically, to provide them to the City in a format that is
compatible with its information technology systems.
This agreement shall be governed by the laws of the State of Florida. The Financial Advisor
agrees to follow all Federal, State and local Laws including, but not limited to, Public Records
Laws.
It is agreed the Financial Advisor presently has no interest, and shall not acquire any interest,
direct or indirect, which would conflict in any manner or degree with the performance of the
Financial Advisor's services under this agreement. It is further agreed that in the performance of
this agreement, the Financial Advisor shall employ no person having any such interest.
IN WITNESS WHEREOF, the parties have signed this contract as of the day and the year above written.
1146 Keyes Avenue Winter Park, Florida 32789
Telephone: 407.678.0977 Telecopy: 407.678.6240
APPENDIX A
FEE SCHEDULE
For our services as Financial Advisor, our proposed fee will be as follows:
Our normal fee schedule per bond series will apply for future financings as follows:
$1.00/$1,000 for the first $20 million
$0.75/$1,000 for the next $20 million
$0.50/$1,000 for amounts in excess of $40 million
A minimum fee of $25,000 would be charged for each bond financing
A minimum fee of $20,000 would be charged for each bank loan financing.
If additional services, other than financial advisory services, are required, these fees will be negotiated at
a later date and mutually agreed upon.
• For investment services, the Financial Advisor will arrange for the competitive bidding of bond
proceeds and will be compensated by the successful bidder in an amount consistent with
Federal tax regulations.
• For escrow restructurings and any additional services, the fees will be negotiated on a case by
case basis.
1146 Keyes Avenue Winter Park, Florida 32789
Telephone: 407.678.0977 Telecopy: 407.678.6240
THE CITY OF CRESTVIEW, FLORIDA DUNLAP & ASSOCIATES, INC.
By:
By
,e4-47/ r(;tie-t ,
Mayor
dia-M
ty Clerk
By:
President
By:
Senior Vice President
1146 Keyes Avenue Winter Park, Florida 32789
Telephone: 407.678.0977 Telecopy: 407.678.6240