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Item D6M C ounty of f Monroe ELj » °o E � BOARD OF COUNTY COMMISSIONERS /�� Mayor David Rice, District 4 Th e Florida Keys Mayor Pro Tem Sylvia J. Murphy, District 5 Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting January 17, 2018 Agenda Item Number: D.6 Agenda Item Summary #3787 BULK ITEM: Yes DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Cynthia Hall (305) 292 -3470 No AGENDA ITEM WORDING: Approval of request for conflict waiver from the law firm of Bryant Miller Olive (BMO), to allow BMO to represent PNC Bank for purpose of negotiating a $40 million Line of Credit with the County if PNC is selected as the lender; and authority for the County Attorney or his designee to sign the conflict waiver letter. ITEM BACKGROUND: In December 2017, the Monroe County Board of County Commissioners (BOCC) gave approval to advertise a Request for Proposal (RFP) for a Line of Credit in the amount of not to exceed $40 million. The intention is to use the funds as a short term source of funding to pay for extraordinary hurricane expenses, pending reimbursement of County hurricane expenses by FEMA. The RFP was issued in mid December 2017. Six proposals were received, one of which came from PNC Bank, National Association (PNC). A selection committee will be meeting on January 3, 2018, to rank the lenders and make a recommendation to the BOCC regarding which proposal to accept. (Concurrent with this item, on the same meeting agenda, staff will be asking for approval to select a lender, approval of the resolution, and approval to negotiate the final Line of Credit Agreement with the selected lender, subject to the recommendation of the selection committee following its meeting on January 3rd.) The County has been advised that PNC would be represented in negotiations by the law firm of Bryant Miller Olive (BMO). BMO has previously represented the County as its disclosure counsel in connection with the issuance of the 2003 and 2007 series infrastructure surtax bonds. Florida Bar rules prevent an attorney from representing one client in a matter adverse to another client. However, the attorney may represent both clients if the attorney believes that representation of one client will not adversely represent the responsibilities to the other client, and if both clients consent in writing. Via a letter dated January 2, 2018, BMO has requested a waiver of the conflict. Staff does not believe that BMO's exercise of independent professional judgment in its role as counsel for PNC in connection with the current Line of Credit will be materially affected by its role as disclosure counsel in connection with the 2003 and 2007 bonds, in the event that PNC is selected as the lender in connection with the current Line of Credit. PREVIOUS RELEVANT BOCC ACTION: On September 8, 2014, the BOCC approved a similar request for conflict waiver for BMO, in connection with its representation of PNC as the lender on a $32 million loan and $16 million line of credit. CONTRACT /AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval. DOCUMENTATION: Add On G Rev Agenda Waiver of Conflict Bryant Miller Olive (BMO) rep PNC Bank from CH 9 3 14 Monroe County Conflict Letter (01317376) FINANCIAL IMPACT: Effective Date: Expiration Date: Total Dollar Value of Contract: Total Cost to County: Current Year Portion: Budgeted: Source of Funds: CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: Grant: County Match: Insurance Required: Additional Details: If yes, amount: None REVIEWED BY: Bob Shillinger Completed 12/29/2017 4:11 PM Budget and Finance Completed 12/29/2017 4:39 PM Maria Slavik Completed 01/02/2018 7:23 AM Kathy Peters Completed 01/02/2018 10:02 AM Board of County Commissioners Pending 01/17/2018 9:00 AM BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 8, 2014 Division: County Administration 0 4- Bulk Item: Yes No X Department: County Attorney Cr 0 Staff Contact Person: Cynthia L. Hall 295-3174 0 ITEM BACKGROUND: In June 2014, the BOCC approved issuance of an RFP for a term loan not to exceed $32 million and a line of credit not to exceed $16 million. Concurrent with this agenda item, at the Sept. 8, 2014 BOCC meeting, staff will be asking the BOCC for permission to negotiate further with its leading candidate for the line of credit: PNC Bank, National Association ("PNC"). The County has been advised that PNC would be represented in negotiations by BMO. BMO previously represented the County as its disclosure counsel in connection with issuance of 2003 and 2007 series infrastructure surtax bond. Florida Bar rules prevent an attorney from representing one client in a matter adverse to another client; however, the attorney may represent both clients if the attorney believes that his representation of one client will not adversely affect the responsibilities to the other client, and if both clients consent in writing. Via a letter dated September 3, 2014 (attached), BMO has requested a waiver of the conflict. Staff does not believe that BMO's exercise of independent professional judgment in its role as counsel for PNC in connection with the line of credit will be materially affected by its role as disclosure counsel in connection with the 2003 and 2007 bonds. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A. STAFF RECOMMENDATIONS: Approval of the request for conflict waiver TOTAL COST: INDIRECT COST: BUDGETED: Yes No 1111 W W 04 1 1 104" 1 1 1 1 1 SOURCE OF FUNDS: REVENUE PRODUCING: Yes — No X AMOUNT PER MONTH Year APPROVED BY: County Atty 0 MB/Purchasing Risk Management U 1 DOCUMENTATION: Included ® Not Required DISPOSITION: AGENDA ITEM # L- 0 as rr �a 0 0 CL CL September 3, 2014 Monroe County, Florida 1111 12th Street #408 Key West, Florida 33040 Attention: Robert B. Shillinger, Jr., Esq., County Attorney Re: Waiver of Potential Conflict of Interest under Applicable Florida Bar Rules — Monroe County, Florida Infrastructure Sales Surtax Revenue Line of Credit (the "Line of Credit ") Dear Mr. Shillinger: This letter is written to Monroe County, Florida (the "County ") to discuss the applicability of and our obligation to consult with the County regarding Rule 4-1.7 of the Rules Regulating The Florida Bar concerning conflicts of interest. Bryant Miller Olive P.A. ( "BMO ") provides ongoing legal representation to the County placed as Disclosure Counsel in connection with certain publicly offered bonds but BMO has not been engaged by the County in any capacity on the Line of Credit. We understand that PNC Bank, National Association ( "PNC ") has been selected by the County as the sole lender for the Line of Credit. BMO has provided and is currently providing legal representation as lender's counsel to PNC in connection with certain financing transactions to other governmental and private borrowers. BMO has also been asked by PNC to represent it as lender in connection with the Line of Credit. We anticipate that any negotiations regarding the terms of the Line of Credit will be negotiated on behalf of the County by the County's staff, Bond Counsel, Financial Advisor, and your office. Further, we understand that the County's Bond Counsel will be preparing the financing documents. Rule 4 -1.7 prohibits a lawyer from representing a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest. Rule 4-1.7 further directs that a lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless: (i) IN Atlanta jacrisonvitic %.lianai o OrLajido o T-. lahasm�e , Tamoa • Wailiin` D.(.. Monroe County, Florida September 3, 2014 Page 2 the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client, and (ii) each client consents after consultation. We do not believe that our representation of either party in the subject transaction will adversely affect our responsibilities to and relationship with the other client. We are unable to undertake representation of PNC in connection with the Line of Credit without the consent of PNC and the County. Accordingly, we request that the County waive any conflict of interest arising from our representation of PNC in connection with the Line of Credit. We understand that the waiver granted by the County is subject to the agreement that our firm will not (a) use any information gained in our firm's current or prior representation of County to the detriment of the County or any of its affiliates, or (b) represent or advise PNC with respect to (i) any dispute, claim, or litigation against the County or any of its affiliates, or (ii) any proceeding in which PNC has an adverse interest to the County or any of its affiliates. We will advise PNC of the matters contained herein. This letter is being sent to you electronically (scanned .pdf file). If the foregoing is acceptable, please sign and return a copy to me. We appreciate your consideration and very much value the opportunity to provide our services as Disclosure Counsel to the County. BRYANT MILLER OLIVE P.A. George A. Smith, Jr. Shareholder of Bryant Miller Olive P.A. Accepted this day of September, 2014 MONROE COUNTY, FLORIDA By: Name: Title: MONROE COUNTY TTORNEY RO ED S �T FORM: ;e CYNTHIA L. A L� ASSIS AJ,WTCOUN�]' ATTORNEY Date_ g" 0 as Cr 4) 0 0 CL CL IN Bryant Miller Olive January 2, 2018 Monroe County, Florida 1111 12th Street #408 Key West, Florida 33040 Attention: Cynthia L. Hall, Esq., Assistant County Attorney Attorneys at Law One Tampa City Center Suite 2700 Tampa, FL 33602 Tel 813.273.6677 Fax 813.223.2705 www.bmolaw.com Re: Waiver of Potential Conflict of Interest under Applicable Florida Bar Rules - Monroe County, Florida Line of Credit (the "Line of Credit ") Dear Ms. Hall: This letter is written to Monroe County, Florida (the "County ") to discuss the applicability of and our obligation to consult with the County regarding Rule 4 -1.7 of the Rules Regulating The Florida Bar concerning conflicts of interest. Bryant Miller Olive P.A. ( "BMO ") provides ongoing legal representation to the County placed as Disclosure Counsel in connection with certain publicly offered bonds but BMO has not been engaged by the County in any capacity on the Line of Credit. We understand that PNC Bank, National Association ( "PNC ") may be selected by the County as the sole lender for the Line of Credit. BMO has provided and is currently providing legal representation as lender's counsel to PNC in connection with certain financing transactions to other governmental and private borrowers. BMO has also been asked by PNC to represent it as lender in connection with the Line of Credit. We anticipate that any negotiations regarding the terms of the Line of Credit will be negotiated on behalf of the County by the County's staff, Bond Counsel, Financial Advisor, and your office. Further, we understand that the County's Bond Counsel will be preparing the financing documents. Rule 4 -1.7 prohibits a lawyer from representing a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest. Rule 4 -1.7 further directs that a lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless: (i) the lawyer reasonably believes them representation will not adversely affect the lawyer's responsibilities to and relationship with the other client, and (ii) each client consents after I 0 a� CU 0 c� 0 �a M rr 0 0 Atlanta . Jacksonville . Miami . Orlando . Tallahassee . Tampa . Washington, DC Cynthia L. Hall, Esq. January 2, 2018 Page 2 consultation. We do not believe that our representation of either party in the subject transaction will adversely affect our responsibilities to and relationship with the other client. We are unable to undertake representation of PNC in connection with the Line of Credit without the consent of PNC and the County. Accordingly, we request that the County waive any conflict of interest arising from our representation of PNC in connection with the Line of Credit. We understand that the waiver granted by the County is subject to the agreement that our firm will not (a) use any information gained in our firm's current or prior representation of County to the detriment of the County or any of its affiliates, or (b) represent or advise PNC with respect to (i) any dispute, claim, or litigation against the County or any of its affiliates, or (ii) any proceeding in which PNC has an adverse interest to the County or any of its affiliates. We will advise PNC of the matters contained herein. This letter is being sent to you electronically (scanned .pdf file). If the foregoing is acceptable, please sign and return a copy to me. We appreciate your consideration and very much value the opportunity to provide our services as Disclosure Counsel to the County. BRYANT MILLER OLIVE P.A. 4AV .0 ono�� Duane D. Draper Shareholder of Bryant Miller Olive P.A. Accepted this day of January, 2018. MONROE COUNTY, FLORIDA By: Name: Title: