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Item G1 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 8 ,2014 Division: Coun1y Administration Bulk Item: Yes No X Department: County Attorney Staff Contact Person: Cynthia L. Hall 295-3174 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$16 million line of credit with the County; authority for the County Attorney to sign conflict waiver letter. 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 DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes— No X AMOUNT PER MONTH Year APPROVED BY: County Attylt/OMB/Purchasing _ Risk Management DOCUMENTATION: Included Not Required DISPOSITION: AGENDA ITEM# Br ant Miller Attorneys at Law 101 NordiNlonroe Strect oulte 000 Olive TaUaliassee rL 32301 Tel 8S0,2,22,8611 Fax 850,2 22.8969 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) Adinta - Ja6�,.,oax1lle - MWami Orl.mdo - Tallahassce - Tarrya - Wvsti npion, D.C. .......... 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. 7— George A.Smith,Jr. Shareholder of Bryant Miller Olive P.A. Accepted this—day of September,2014 MONROE COUNTY,FLORIDA By: Name: MONROE COUNI Y TTORNEY Title: T I R06 �D �S �' FORM: C y NTH A N T C(YNT I RALL ASSIS A T COUNT ATTORNEY Date—!- *$- 141 .........................