Fort Walton Beach Council agenda — 02-09-2010 Regular — reading text

of the State of Florida, whose address is 107 Miracle Strip Parkway SW, Fort Walton Beach, Florida 32548, hereinafter called CITY" and NABORS, GIBLIN & NICKERSON, P. A., whose address is 2502 Rocky Point Drive, Suite 1060, Tampa, Florida 33607, hereinafter referred to as " ATTORNEY." WITNESSETH WHEREAS, CITY desires to retain the service of a competent and qualified attorney to represent CITY in finance, local government and related matters; and WHEREAS, ATTORNEY is competent, qualified, and duly authorized to practice law in the State of Florida, is nationally recognized in the practice of public finance and desires to provide professional legal services to CITY according to the terms and conditions stated herein, THEREFORE, in of the understandings and NOW, consideration mutual covenants set forth herein, CITY and ATTORNEY agree as follows: SECTION 1. SERVICES. CITY does hereby retain ATTORNEY to furnish professional services and perform those tasks generally described as legal services related to CITY financial matters, including, but not limited to, debt issuance and refundings, and as further described in the Scope of Services attached hereto and incorporated herein as Exhibit A as requested by CITY from time to time. SECTION 2. REQUESTS FOR SERVICE. a) Requests for performance of professional services by ATTORNEY under this Agreement shall be made by the CITY's Manager or Attorney or their designee on behalf of CITY. Each request for services shall generally describe the services required of ATTORNEY. CITY makes no promise as to the number of service requests nor that Requests for ATTORNEY will perform any services for CITY under this Agreement. services may be made by telephonic or written (including electronic) means. b) It is recognized that questions in the day -to -day conduct of performance pursuant to this Agreement may arise. CITY designates the CITY's Manager and Attorney ( or their designees) as the CITY employees to whom all communications The pertaining to day -to -day conduct of the Agreement shall be addressed. the designated representatives shall have the authority to transmit instructions, receive information, and interpret and define CITY's policy and decisions pertinent to the work 103- covered by this Agreement. Such persons are herein referred to as " authorized representatives of CITY." SECTION 3. CHANGES IN THE SCOPE OF SERVICES. CITY or ATTORNEY may request changes that would increase, decrease, or otherwise modify the Scope of Services, which changes shall only be implemented with the mutual consent of the parties hereto. SECTION 4. RESPONSIBILITIES OF ATTORNEY. a) ATTORNEY agrees to timely provide the professional services and facilities required to assist CITY in the field of finance, debt issuance, refundings, and other related and ancillary matters as deemed necessary or appropriate by CITY. b) ATTORNEY shall keep abreast of state and federal statutes, regulations, codes, and applicable case law in all areas of responsibility at its sole expense. c) ATTORNEY designates John R. Stokes as the primary attorney to provide services to CITY. John R. Stokes will be assisted from time to time by other members of his firm. To the extent practical, Mr. Stokes will designate the same members or representatives of ATTORNEY to assist with CITY matters in order to provide consistent representation to CITY. d) ATTORNEY agrees to utilize associates and legal assistants /paralegals where appropriate and under the supervision of ATTORNEY to accomplish cost - effective performance of services. ATTORNEY agrees to plan budgets for the defense of cases in terms of the use of experts and related matters. e) It shall be the responsibility of ATTORNEY to specifically request all required information and to provide reasonably sufficient time to review all information so as not to delay performance under this Agreement without good cause. f) ATTORNEY shall be responsible for the professional quality, technical accuracy, competence, and methodology of the work done under this Agreement. ATTORNEY shall, without additional compensation, correct or revise any errors or deficiencies in the work performed under this Agreement which result from the negligence of ATTORNEY. g) Neither CITY's review, approval, or acceptance of, nor payment for, any of the services required shall be construed to operate as a waiver of any rights under this Agreement nor of any cause of action arising out of the performance of this Agreement. ATTORNEY shall be liable to CITY in accordance with applicable law for any and all damages to CITY caused by ATTORNEY's negligent or wrongful performance of any of the services furnished under this Agreement. 104-  SECTION 5. PAYMENT FOR SERVICES AND BILLING. a) In consideration of the promises and the faithful performance by ATTORNEY of its obligations, CITY agrees to pay ATTORNEY a fee based on a " Fixed Fee Methodology" or a " Time Basis Methodology." The Fixed Fee Methodology shall be negotiated between ATTORNEY and CITY'S financial advisor for each transaction involving the issuance of debt by CITY, with the acknowledgment of an authorized representative of CITY. ATTORNEY shall be compensated at the rates as shown on Exhibit B for services authorized and performed on a Time Basis Methodology. b) If any services are requested by CITY on the basis of "Limitation of Funds" amount, ATTORNEY is not authorized to exceed that amount without the prior approval of CITY. c) In lieu of, or in addition to, establishment of a Limitation of Funds amount, CITY may provide for a " Not to Exceed" amount for any service authorization. d) On transactions where ATTORNEY is being compensated on a Time Basis Methodology, CITY shall compensate ATTORNEY for the actual work hours required to perform the services authorized. Actual work hours shall not include compensation for travel time to or from the offices of ATTORNEY, to the City of Fort Walton Beach, or travel time to court appearances. Payment shall be made to ATTORNEY when requested as work progresses, but not more than once monthly for services rendered. ATTORNEY shall provide an itemized invoice based on actual services rendered. e) Reimbursable expenses shall be paid in addition to the payment for professional services and shall include actual expenditures made by ATTORNEY, its employees, or its professional consultants in the interest of the work effort for the expenses listed in the subsections that follow. 1) Expenses of transportation when traveling in connection with case assignments based on Sections 112. 061( 7) and ( 8), Florida Statutes, or its successor; 2) Long distance calls and facsimile transmissions; 3) Expense for reproductions, postage, and handling of material associated with the work effort; and 4) The cost of other expenditures made by ATTORNEY in the interest of the work effort. 105-  SECTION 6. GENERAL TERMS AND PAYMENT. a) ATTORNEY shall invoice monthly basis when being CITY on a compensated on a Time Basis Methodology and within sixty ( 60) days of the closing of a financing transaction when being compensated on a Fixed Fee Methodology. CITY shall pay ATTORNEY within thirty ( 30) days of receipt of such valid invoice. Each service authorization shall be treated separately for final payment purposes. b) After final payment, CITY may perform or have performed an audit of the records of ATTORNEY to support final payment under any service authorization issued hereunder using the Time Basis Methodology. This audit would be performed at a time mutually agreeable to ATTORNEY and CITY subsequent to the close of the final fiscal period in which the last work is performed. Total compensation to ATTORNEY may be determined subsequent to an audit as provided for in this subsection and the immediately following subsection, and the total compensation so determined shall be used to calculate final payment to ATTORNEY. The accomplishment of this audit shall not delay final payment as provided in subsection 6( a). c) ATTORNEY agrees to maintain any and all books, documents, papers, accounting records, and other evidence pertaining to services performed under this Agreement in such a manner as will readily conform to the terms of this Agreement and to make such materials available at its office at all reasonable times during the Agreement period and for three ( 3) years from the date of final payment under this Agreement for audit or inspection as provided for in subsection 6(b). Separate accounting records shall be maintained by ATTORNEY for each service authorization. d) In the event any audit or inspection conducted after final payment, but within the period provided in subsection 6( c), reveals any overpayment by CITY to ATTORNEY under the terms of this Agreement, ATTORNEY shall refund such overpayment to CITY within thirty (30) days of notice of same by CITY. SECTION 7. OWNERSHIP OF DOCUMENTS. All legal opinions or any other form of written instrument or document that may result from ATTORNEY'S services or that may have been created during the course of ATTORNEY'S performance under this Agreement shall become the property of CITY after final payment is made to ATTORNEY; however, ATTORNEY retains the right to keep copies of its work product and to use same for appropriate purposes. SECTION 8. INITIAL TERM; RENEWAL OPTION. This Agreement shall become effective upon execution by CITY and shall run for a period of five ( 5) years, unless earlier terminated as provided herein. At the option of CITY, with the consent of ATTORNEY, this Agreement may be extended for an additional five ( 5) year term commencing at the end of the initial five ( 5) year term. 106-  SECTION 9. NO FINDERS FEES. ATTORNEY warrants that it has not employed or retained any company or persons, other than a bona fide employee working solely for ATTORNEY, to solicit or secure this Agreement and that it has not paid or individual or firm, other than a bona agreed to pay any person, company, corporation, fide employee working solely for ATTORNEY, any fee, commission, percentage, gift, or