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Item R4 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 11/18/14—KL Division: County Attorney Bulk Item: Yes XX No Staff Contact Person: Bob Shillinger.292-3470 AGENDA ITEM WORDING: Approval of and authorization for the County Attorney to execute the conflict waiver letter dated October 31, 2014 authorizing the law firm of Nabors, Giblin & Nickerson (NGN) to represent both the County and the Key Largo Wastewater Treatment District (KLWTD) to draft an Interlocal Agreement (ILA) regarding wastewater funding and prosecuting an action to validate that ILA on behalf of both entities (County and KLWTD). ITEM BACKGROUND: The County's bond counsel, the law firm of Nabors, Giblin, Nickerson, P.A. (NGN), is also bond counsel to the Key Largo Wastewater Treatment District(KLWTD). County and KLWTD staff would like to have the benefit of NGN's assistance in a) drafting an interlocal agreement (ILA) that would facilitate the financing of wastewater projects in the unincorporated areas of the County at better terms than would otherwise be available and b) filing and prosecuting an action to validate that ILA. NGN's Steve Miller, Esq. would advise the County and NGN's Christopher Traber, Esq. would advise the KLWTD on the drafting of the agreement. It is contemplated that once the ILA is approved by both parties, the County and the KLWTD would jointly file and prosecute a validation proceeding in Circuit Court to obtain a judicial order approving and validating that agreement. NGN's Greg Stewart, Esq., or his designee, would represent both the County and the KLWTD in that proceeding and both entities would cooperate to jointly prosecute that action as co- plaintiffs. Under the Florida Bar's Rules of Professional Conduct, both the County Commission and the KLWTD board must consent in order for NGN to represent both entities on the same transaction and as co- parties to a validation action. Unless the County and the KLWTD provide their respective informed, written consent,NGN will be prohibited from representing both entities in this matter. When representation of multiple clients in a single matter is undertaken, the consultation must include an explanation of the implications of the common representation and the advantages and risks involved. Advantages. Joint representation by the same law firm on the negotiation phase and subsequent validation proceeding should result in a significant cost savings to both entities and ultimately the County taxpayers, some of whom are also KLWTD ratepayers. Additionally, both parties will continue to benefit from their respective long standing relationships with NGN without having to develop relationships with new counsel. Risks. When two parties are jointly represented by the same law firm in an action, there can be a risk of a conflict arising if there is a substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. None of the risk factors are reasonably foreseeable at this time given the nature of the proposed transaction and its subsequent approval by both governing bodies. However, if such a conflict were to arise during a validation action, NGN would withdraw from the joint representation and the parties would seek other counsel. The County Attorney's office would serve as co-counsel to NGN on the bond validation proceeding to ensure protection of the County's interests in the matter should a conflict arise. If a dispute arose once the agreement had been validated by the Court, both entities could continue to be represented by their own in house counsel or other counsel of its choosing other than NGN. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty W OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 2/05 TAMPA Nabors FORT MYERS Suite 1060,2502 Rocky Point Drive 12731 World Plaza Lane Tampa,Florida 33607 Building 83,Suite 2 (813)281-2222 Tel Fort Myers,Florida 33907 (813)281-0129 Fax Giblin & (239)288-4057 Fax FORTLAUDERDALE 110 East Broward Boulevard NickersonP.A. TALLAHASSEE suite 1700 Suite 200,1500 Mahan Drive Fort Lauderdale,Florida 33301 A T T O R N E Y S A T L A W Tallahassee,Florida 32308 (954)315-3852 Tel (850)2244070 Tel (850)2244073 Fax October 31, 2014 VIA ELECTRONIC MAIL Bob Shillinger,Esq. County Attorney Monroe County Attorney's Office 1111 12th Street, Suite 408 Key West, FL 3304OPaul Christian Re: Key Largo Wastewater Treatment Interlocal Agreement with Monroe County,Florida Dear Bob: We understand that an interlocal agreement between the Key Largo Wastewater Treatment District(the"District")and Monroe County(the"County")is being negotiated in connection with the allocation of state grant funds from the District to the County in exchange for the County agreeing to pay certain sums to the District over time(the"Interlocal Agreement"). Nabors,Giblin&Nickerson, P.A.("NG&N")currently serves as bond counsel to the District and the County. NG&N,with Chris Traber as lead counsel, has been requested to assist the District as its bond counsel for this transaction. The duties associated with that role are outlined in the attached letter to Paul Christian as General Manager to the District. With respect to our role as bond counsel to the County, our services include any necessary bond counsel services in accordance with our existing contract with the County including, but not limited to, reviewing/commenting on drafts of the interlocal agreement,preparation of any related resolutions or ordinances and attendance at any meeting they are considered for approval by the County,research relating to any issues that may arise,assistance with any validation proceedings,preparation of any other all documents,review/commenting on all financing documents prepared by other members of the working group,preparation of any necessary closing documents and attendance at the closing at which all documents are executed, and preparation and distribution of final transcripts to the entire working group. The Florida Bar Rules of Professional Conduct state that the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer(or a firm with which the lawyer was associated),represents a client whose interests are directly adverse to another client. However,the Rules do allow such representation if certain conditions specified in the Rules Bob Shillinger,Esq. County Attorney October 31,2014 Page 2 are satisfied and each affected client gives informed consent,confirmed in writing. We reasonably believe that NG&N will be able to provide competent and diligent representation to the County and the District with respect to this matter. I have attached relevant provisions of the Rules of Professional Conduct in the event you wish to review them. We also note that in validating the proposed Interlocal Agreement,NG&N likely will be representing both the County and the District. Because the County and the District each desire to obtain a successful validation,we are not aware of any unique risks in connection with such a dual representation. Both the County and the District should enjoy reduced costs and a more efficient effort with NG&N jointly representing them in the validation. The purpose of this letter is to confirm(1)that we may represent the County as bond counsel in the manner described above,and(2)that the County has agreed to waive any conflict of interest arising out of,and that the County will not object to,our representation of the District as described herein and the attached letter to the District. If you need to edit the terms of this letter,or wish to discuss any related issues,please contact me at your earliest convenience. Once you are satisfied with this conflict waiver, please sign and return the enclosed copy of this letter. We look forward to working with the County on this matter. NABORS,GIBLIN&NICKERSON,P.A. By: G Steven E.Miller, Shareholder Accepted and Approved: MONROE COUNTY ATTORNEY'S OFFICE By: Name: Title: Date: Rule 4-1.7 of the Rules Regulating the Florida Bar (a)Representing Adverse Interests.Except as provided in subdivision(b),a lawyer shall not represent a client if: (1)the representation of 1 client will be directly adverse to another client; or (2)there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b)Notwithstanding the existence of a conflict of interest under subdivision(a),a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2)the representation is not prohibited by law; (3)the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4)each affected client gives informed consent,confirmed in writing or clearly stated on the record at a hearing. Rule 4-1.10(d)of the Rules Regulating the Florida Bar (d) Waiver of Conflict. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 4-1.7. TAMPA FORT MYERS Suite 1060,2502 Rocky Point Drive Nabors 12731 World Plaza Lane Tampa,Florida 33607 Building 83,Suite 2 (813)281'-2222 Tel Fort Myers,Florida 33907 (813)281-0129 Fax Giblin & {239)288-4057 Fax FORT coward DALE NickersonP.A. TALLAHASSEE 110 East Suite 1 d Boulevard Su'ite 200,1500 Mahan Drive Suite,Flo Tallahassee,Florida 32308 Fort Lauderdale,Florida 33301 ATTORNEYS A T LAW { (954)315-3852 Tel 850)224-4070 Tel (850)224-4073 Fax October 31,2014 VIA ELECTRONIC MAIL Paul Christian General Manager Key Largo Wastewater Treatment District 98880 Overseas Highway Key Largo, Florida 33037 Re: Key Largo Wastewater Treatment Interlocal Agreement with Monroe County,Florida Dear Paul: We are providing this letter to confirm our role and responsibilities in connection with the above-referenced interlocal agreement between the Key Largo Wastewater Treatment District(the "District")and Monroe County(the"County")relating to the allocation of state grant funds from the District to the County in exchange for the County agreeing to pay certain sums to the District over time(the"Interlocal Agreement"). Nabors,Giblin&Nickerson,P.A.("NG&N")currently serves as bond counsel to the District and the County and you have requested NG&N to assist the District as its bond counsel for this transaction. Such services include consultation with District staff, participating in conference calls or meetings upon request, identifying potential issues, reviewing drafts of documents prepared by counsel to the District and the County,advising the District as to existing District bond document requirements, any necessary research regarding same, travel and attending any District meetings, if necessary and providing other legal counsel as needed and requested by the District. Since it is not possible to predict the number of hours to provide the above support services, we propose to bill on an hourly basis at the rates set forth below. However,we would not incur more than $7,500 in fees without first notifying the District in writing as to the nature of the additional time required. Shareholder $250 Associate 200 Paul Christian General Manager October 31, 2014 Page 2 In addition to the above fees,we would be reimbursed for all actual out-of-pocket expenses, including travel costs,photocopying at$0.20 per page,deliveries,long distance telephone charges, filing fees, and other necessary office disbursements. Our firm bills hourly engagements on a monthly basis and provides detail with each invoice identifying the date each service was performed, a brief description of the service performed,the employee at the firm who performed the service,the number of hours billed,the rate charged per hour,and the total fee. To the extent a formal opinion is requested during the transaction,we would discuss any additional opinion fee at that time and would only charge such additional fee with the consent of the District. As you are aware,our firm also serves as bond counsel to the County. During the course of the above transaction,the firm,with Steve Miller as lead counsel,would also act as bond counsel to the County. The duties associated with that role are outlined on the attached letter to Bob Shillinger as County Attorney to the County. The Florida Bar Rules of Professional Conduct state that the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer(or a firm with which the lawyer was associated),represents a client whose interests are directly adverse to another client. However,the Rules do allow such representation if certain conditions specific in the Rules are satisfied and each affected client gives informed consent,confirmed in writing. We reasonably believe that NG&N will be able to provide competent and diligent representation to the District and the County with respect to this matter. I have attached relevant provisions of the Rules of Professional Conduct in the event you wish to review them. We also note that in validating the proposed Interlocal Agreement,NG&N likely will be representing both the County and the District. Because the County and the District each desire to obtain a successful validation,we are not aware of any unique risks in connection with such a dual representation. Both the County and the District should enjoy reduced costs and a more efficient effort with NG&N jointly representing them in the validation. The purpose of this letter is to confirm(1)that we may represent the District as bond counsel in the manner described above,and(2)that the District has agreed to waive any conflict of interest arising out of,and that the District will not object to,our representation of the County as described herein and the attached letter to the County. If you need to edit the terms of this letter,or wish to discuss any related issues,please contact me at your earliest convenience. I have also provided a copy of this letter to Ray Giglio,as general counsel to the District so that you may seek his consultation as well. If there are additional questions Paul Christian General Manager October 31,2014 Page 3 that the District may have, I would be happy to discuss this matter at any time. Once you and the District are satisfied,please have the District representative sign and return the enclosed copy of this letter. We look forward to working with the District on this matter. NABORS,GIBLIN&NICKERSON, P.A. By: ---------------------------­---­-­­----­ '61ii§i ............opher M.Traber, Shareholder Accepted and Approved: KEW LARGO WASTEWATER TREATMENT DISTRICT By.- Name: Title: Date: cc: Ray Giglio,General Counsel Rule 4-1.7 of the Rules Regulating the Florida Bar (a)Representing Adverse Interests.Except as provided in subdivision(b),a lawyer shall not represent a client if. (1)the representation of 1 client will be directly adverse to another client; or (2)there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b)Notwithstanding the existence of a conflict of interest under subdivision(a),a lawyer may represent a client if- (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2)the representation is not prohibited by law; (3)the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4)each affected client gives informed consent,confirmed in writing or clearly stated on the record at a hearing. Rule 4-1.10(d)of the Rules Regulating the Florida Bar (d) Waiver of Conflict. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 4-1.7.