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Agenda 09/12/2017 Item #16K1509/12/2017 EXECUTIVE SUMMARY Recommendation to waive any potential conflict of interest and the Chair executes the conflict of interest waiver letters related to the County’s acquisition of the Golden Gate Utility System from the Florida Governmental Utility Authority (FGUA). OBJECTIVE: To utilize long-standing outside counsel for Collier County (who also have represented FGUA for many years) in the acquisition of the Golden Gate Utility System. CONSIDERATIONS: This past July 27, the Board by Resolution No. 2017-123 among other things authorized the County Manager to negotiate the acquisition of the Golden Gate Utility System from FGUA for Board approval. The local government law firm of Nabors Giblin & Nickerson and attorney Brian Armstrong, formerly of Nabors Giblin, have represented both Collier County and the Florida Governmental Utility Authority for many years. I expect this to be a friendly acquisition, as the terms and conditions of which were set forth in an Interlocal Agreement between the parties dated March 1, 1999. Given his familiarity with both FGUA and counsel for Nabors Giblin, the County Attorney has elected to work with Brian Armstrong in this acquisition. Both Mr. Armstrong and Nabors Giblin have asked that both parties in this transaction sign waiver of conflict forms. In the unlikely event that the acquisition proves adversarial, I will come back to the Board with an alternative recommendation. FISCAL IMPACT: None. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to form and legality, and requires majority support for approval. -JAK RECOMMENDATION: Recommendation that the Board of County Commissioners waives any potential conflict of interest and the Chair executes the conflict of interest waiver letters related to the County’s acquisition of the Golden Gate Utility System from the Florida Governmental Utility Authority. Prepared by: Jeffrey A. Klatzkow, County Attorney ATTACHMENT(S) 1. Collier County conflict waiver letter request (PDF) 2. FGUA-Collier Golden Gate Conflict Waiver Letter_7 19 17 (PDF) 3. Collier Conflict Waiver Letter_7 19 17 (PDF) 4. Resolution 2017-123 (PDF) 5. 6-27-17 Executive Summary - FGUA (PDF) 6. 3-1-99 Interlocal Agreement (PDF) 7. FGUA staff analysis re Armstrong conflict waiver request (PDF) 16.K.15 Packet Pg. 2550 09/12/2017 COLLIER COUNTY Board of County Commissioners Item Number: 16.K.15 Doc ID: 3646 Item Summary: Recommendation to waive any potential conflict of interest and the Chair executes the conflict of interest waiver letters related to the County’s acquisition of the Golden Gate Utility System from the Florida Governmental Utility Authority (FGUA). Meeting Date: 09/12/2017 Prepared by: Title: Legal Assistant/Paralegal – County Attorney's Office Name: Virginia Neet 08/18/2017 11:08 AM Submitted by: Title: County Attorney – County Attorney's Office Name: Jeffrey A. Klatzkow 08/18/2017 11:08 AM Approved By: Review: Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 08/18/2017 2:04 PM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 08/18/2017 2:54 PM Budget and Management Office Mark Isackson Additional Reviewer Completed 08/23/2017 8:58 AM County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 08/23/2017 3:50 PM Board of County Commissioners MaryJo Brock Meeting Pending 09/12/2017 9:00 AM 16.K.15 Packet Pg. 2551 16.K.15.a Packet Pg. 2552 Attachment: Collier County conflict waiver letter request (3646 : FGUA Waivers of Conflict) 16.K.15.a Packet Pg. 2553 Attachment: Collier County conflict waiver letter request (3646 : FGUA Waivers of Conflict) 16.K.15.a Packet Pg. 2554 Attachment: Collier County conflict waiver letter request (3646 : FGUA Waivers of Conflict) 16.K.15.a Packet Pg. 2555 Attachment: Collier County conflict waiver letter request (3646 : FGUA Waivers of Conflict) July 20, 2017 Via Electronic Mail John Pelham Pennington P.A. 215 S. Monroe Street Second Floor Tallahassee, Florida 32301 Re: Collier County – Transition of Golden Gate Utility System to County Ownership Dear John: As you know, Nabors, Giblin & Nickerson, P.A. (“this firm” or “NG&N”), has represented, and currently represents, the Florida Governmental Utility Authority (“FGUA”) as both utility counsel and bond counsel. This firm also has represented Collier County (the “County”) as bond counsel and in various other capacities as assigned by the County from time to time. Currently, NG&N acts as bond counsel to the County and provides legal services relating to governmental finance matters. In the recent past, this firm represented the County as special utility counsel and in its integration of the Orange Tree Utility Company water and sewer system into the County’s utility systems, providing both litigation support on behalf of the County, transactional representation, and title insurance related services. With the conveyance of the Orange Tree Utility System to the County, NG&N’s involvement in that matter has ended. Further, NG&N is not currently providing any ongoing utility-related legal services to the County. In our role as utility counsel to the FGUA, we have been asked to assist the Authority in the transition of the Golden Gate water and wastewater utility systems from FGUA ownership to County ownership. In the firm’s role as bond counsel for the FGUA, we have been asked to review existing debt instruments and assist with satisfying any requirements relating to the FGUA defeasing such debt or documenting the assumption of such debt by the County and providing any required opinions. If the County elects to issue its own debt for the acquisition of the Golden Gate System, the firm's role as bond counsel to the County would include analyz ing various financing structures for the County and completing any bond counsel work necessary to complete that County financing. TALLAHASSEE 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (850) 224-4070 Tel (850) 224-4073 Fax TAMPA 2502 Rocky Point Drive Suite 1060 Tampa, Florida 33607 (813) 281-2222 Tel (813) 281-0129 Fax FORT LAUDERDALE 110 East Broward Boulevard Suite 1700 Fort Lauderdale, Florida 33301 (954) 315-3852 Tel 16.K.15.b Packet Pg. 2556 Attachment: FGUA-Collier Golden Gate Conflict Waiver Letter_7 19 17 (3646 : FGUA Waivers of Conflict) John Pelham July 20, 2017 Page 2 The Interlocal Agreement between the County and the FGUA that authorized the FGUA’s acquisition of the Golden Gate systems requires that the transition be pursuant to an acquisition agreement between the FGUA and the County, subject to the terms and conditions of the Interlocal Agreement, the Bond Indenture and other debt instruments encumbering the systems. It will, therefore, be necessary for the FGUA and the County to negotiate a mutually agreeable acquisition agreement that sets forth the terms and conditions under which the transition will be accomplished, the system assets will be transferred, and setting forth the means by which the FGUA’s financial obligations with respect to the Golden Gate systems will be assumed or terminated. The Florida Bar Rules of Professional Conduct state that NG&N may not knowingly represent a person in the same or a substantially related matter in which that lawyer had previously represented a client whose interests are materially adverse to that person, and about whom the lawyer had acquired confidential information that is material to the matter at hand. However, such representation is allowed if each affected client gives informed consent, confirmed in writing. The County and the FGUA are each working toward a mutually desirable goal with regard to the transfer of ownership of the Golden Gate water and wastewater utility assets from FGUA to the County pursuant to the Interlocal Agreement. We do not believe that the transition of the Golden Gate systems from the FGUA to the County is substantially related to any past or current representation of the County by this firm, nor do we believe that information that the firm would have obtained in such representation is material to said transition of ownership. However, and in an abundance of caution, this letter is intended to confirm the agreement of the FGUA that NG&N may represent the FGUA in connection with the transition of the Golden Gate utility systems and the conveyance of the assets to County ownership, that NG&N may represent the FGUA as utility counsel and as bond counsel, and if the County elects to issue its own debt, that NG&N may represent the County, to the extent needed, in its limited role as bond counsel. The FGUA waives any conflict of interest or the appearance of such conflict arising out of such representations. 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 and the FGUA are satisfied, please have the Chairman sign and return a copy of this letter. NABORS, GIBLIN & NICKERSON, P.A. By: Heather J. Encinosa, Esq. For the Firm 16.K.15.b Packet Pg. 2557 Attachment: FGUA-Collier Golden Gate Conflict Waiver Letter_7 19 17 (3646 : FGUA Waivers of Conflict) John Pelham July 20, 2017 Page 3 Accepted and Approved: FLORIDA GOVERNMENTAL UTILITY AUTHORITY By: Name: Title: Date: 16.K.15.b Packet Pg. 2558 Attachment: FGUA-Collier Golden Gate Conflict Waiver Letter_7 19 17 (3646 : FGUA Waivers of Conflict) July 19, 2017 Via Electronic Transmission Jeffrey A. Klatzkow, Esq. County Attorney, Collier County, Florida 3299 Tamiami Trail East, Suite 800 Naples, Florida 34112-5749 Re: Florida Governmental Utility Authority – Transition of Golden Gate Utility System to County Ownership Dear Mr. Klatzkow: Nabors, Giblin & Nickerson, P.A. (“this firm” or “NG&N”), has represented, and currently represents, the Florida Governmental Utility Authority (“FGUA”) as both utility counsel and bond counsel. As you know, this firm also has a long history representing Collier County (the “County”) as bond counsel and in various other capacities as assigned by the County from time to time. Currently, NG&N acts as bond counsel to the County and provides legal services relating to governmental finance matters. In the recent past, this firm represented the County as special utility counsel and in its integration of the Orange Tree Utility Company water and sewer system into the County’s utility systems, providing both litigation support on behalf of the County, transactional representation, and title insurance related services. With the conveyance of the Orange Tree Utility System to the County, NG&N’s involvement in that matter has ended. Further, NG&N is not currently providing any ongoing utility-related legal services to the County. In our role as utility counsel to the FGUA, we have been asked to assist the Authority in the transition of the Golden Gate water and wastewater utility systems from FGUA ownership to County ownership. In the firm’s role as bond counsel for the FGUA, we have been asked to review existing debt instruments and assist with satisfying any requirements relating to the FGUA defeasing such debt or documenting the assumption of such debt by the County and providing any required opinions. In the firm's role as bond counsel to the County, we have been asked to analyze various financing structures for the County and to complete any bond counsel work necessary to complete any County financing. The Interlocal Agreement between the County and the FGUA that authorized the FGUA’s acquisition of the Golden Gate systems requires that the transition be pursuant to an acquisition agreement between the FGUA and the County, subject to the terms and conditions of TALLAHASSEE 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (850) 224-4070 Tel (850) 224-4073 Fax TAMPA 2502 Rocky Point Drive Suite 1060 Tampa, Florida 33607 (813) 281-2222 Tel (813) 281-0129 Fax FORT LAUDERDALE 110 East Broward Boulevard Suite 1700 Fort Lauderdale, Florida 33301 (954) 315-3852 Tel 16.K.15.c Packet Pg. 2559 Attachment: Collier Conflict Waiver Letter_7 19 17 (3646 : FGUA Waivers of Conflict) Jeffrey A. Klatzkow, Esq. July 19, 2017 Page 2 the Interlocal Agreement, the Bond Indenture and other debt instruments encumbering the systems. It will, therefore, be necessary for the FGUA and the County to negotiate a mutually agreeable acquisition agreement that sets forth the terms and conditions under which the transition will be accomplished, the system assets will be transferred, and setting forth the means by which the FGUA’s financial obligations with respect to the Golden Gate systems will be assumed or terminated. The Florida Bar Rules of Professional Conduct state that NG&N may not knowingly represent a person in the same or a substantially related matter in which that lawyer had previously represented a client whose interests are materially adverse to that person, and about whom the lawyer had acquired confidential information that is material to the matter at hand. However, such representation is allowed if each affected client gives informed consent, confirmed in writing. The County and the FGUA are each working toward a mutually desirable goal with regard to the transfer of ownership of the Golden Gate water and wastewater utility assets from the FGUA to the County pursuant to the Interlocal Agreement. We do not believe that the transition of the Golden Gate systems from the FGUA to the County is substantially related to any past or current representation of the County by this firm, nor do we believe that information that the firm would have obtained in such representation is material to said transition of ownership. However, and in an abundance of caution, this letter is intended to confirm the agreement of the County that NG&N may represent the FGUA in connection with the transition of the Golden Gate utility systems and the conveyance of the assets to County ownership, that NG&N may represent the FGUA as utility counsel and as bond counsel, and if the County elects to issue its own debt, that NG&N may represent the County, to the extent needed, in its limited role as bond counsel. The County waives any conflict of interest or the appearance of such conflict arising out of such representations. 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 and the County are satisfied, please have the Chairman sign and return a copy of this letter. Very truly yours, Heather J. Encinosa, Esq. For the Firm Collier County, Florida Chairman, Board of County Commissioners 16.K.15.c Packet Pg. 2560 Attachment: Collier Conflict Waiver Letter_7 19 17 (3646 : FGUA Waivers of Conflict) 1 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 4-1.9 of the Rules Regulating the Florida Bar A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent; or (b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or. (c) reveal information relating to the representation except as these rules would permit or require with respect to a client. 16.K.15.c Packet Pg. 2561 Attachment: Collier Conflict Waiver Letter_7 19 17 (3646 : FGUA Waivers of Conflict) 2 Rule 4-l.10(b) of the Rules Regulating the Florida Bar (b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, 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, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4- 1.9(b) and (c) that is material to the matter. Rule 4-l.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. 16.K.15.c Packet Pg. 2562 Attachment: Collier Conflict Waiver Letter_7 19 17 (3646 : FGUA Waivers of Conflict) RESOLUTION NO.2017- 1 2 3 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING BOARD OF COLLIER COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA AND ACTING AS THE EX-OFFICIO GOVERNING BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT NOTIFYING THE GOVERNING BOARD OF THE FLORIDA GOVERNMENTAL UTILITY AUTHORITY OF THE COUNTY'S INTENT TO INITIATE THE PROCESS FOR TRANSFER OF THE GOLDEN GATE WATER AND WASTEWATER UTILITY SYSTEM TO THE COUNTY; AND PROVIDING FOR APPLICABILITY AND AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,FLORIDA,AS FOLLOWS: SECTION 1. AUTHORITY. Pursuant to Chapter 125, Florida Statutes, the Board of County Commissioners (the "Board") of Collier County, Florida(the "County") has all the powers of local self- government including the power to acquire, own, improve, operate, maintain, and dispose of water and wastewater utility facilities. SECTION 2. COUNTY RIGHT TO ACQUIRE THE WATER AND WASTEWATER SYSTEM KNOWN AS THE GOLDEN GATE SYSTEM FROM THE FLORIDA GOVERNMENTAL UTILITY AUTHORITY. County staff has concluded preliminary financial and technical due diligence relating to the potential transfer to the Collier County Water-Sewer District District") of the water and wastewater systems serving the Golden Gate area (the "Golden Gate System") which are currently owned by the Florida Governmental Utility Authority ("FGUA"). The FGUA is a utility authority created pursuant to section 163.01(7)(g)(1), Florida Statutes (the "Utility Authority Law"). The Utility Authority Law authorizes two or more counties, cities or special districts in Florida to create a utility authority by interlocal agreement for the purpose of acquiring, owning, managing and operating water and wastewater systems anywhere in Florida. The Utility Authority Law requires any utility authority created pursuant to its terms to notify and obtain consent from the governing body of any county, city or special district (the "Host Government") before the utility authority may acquire a utility system which is located within the boundaries of the Host Government. By Resolution 99-169/Resolution CWS-99-1 issued March 9, 1999, the County, as the Host Government for the Golden Gate System, approved an interlocal agreement with the FGUA authorizing the FGUA to acquire the Golden Gate System (the "FGUA Interlocal Agreement"). Section 1 of the FGUA Interlocal Agreement reserves to the County the right to acquire all, but not less than all, of the Golden Gate System from the FGUA, specifically providing as follows: "The terms and provisions of such acquisition shall be established pursuant to a utility acquisition agreement between the Authority and the District, subject to the terms and conditions of the Interlocal Agreement and the Indenture. Notwithstanding the foregoing and unless otherwise agreed to by the Authority and the District, the purchase price for the Golden Gate Utility System shall be the amount required to repay the Bonds and any additional obligations of the Authority related with the Golden Gate Utility System. The District further agrees to negotiate with the Authority for the payment of a pro-rata share of any reasonable, verified Authority expenses at the time of acquisition by the District. The District shall also pay all verifiable expenses associated with the transfer of the Golden Gate Utility System by the Authority to the District." SECTION 3. STAFF RECOMMENDATION FOR COUNTY TO INITIATE PROCESS TO TRANSFER GOLDEN GATE SYSTEM TO THE COLLIER COUNTY WATER-SEWER DISTRICT. The preliminary financial and technical due diligence conducted by County staff indicate 16.K.15.d Packet Pg. 2563 Attachment: Resolution 2017-123 (3646 : FGUA Waivers of Conflict) that it may be in the public interest for the County to exercise its rights under the FGUA Interlocal Agreement to acquire the Golden Gate System from the FGUA. Preliminary analyses indicate that the District's service area surrounds the Golden Gate System, application of District rates to current customers of the Golden Gate System would result in a decrease of monthly water and wastewater bills of nearly $40 a month, and there would be no material adverse impact on current customers of the District from the acquisition of the Golden Gate System. For these reasons and based upon the information provided in the preliminary financial and technical reports from the County's consultants, County staff recommends that the Board authorize staff by this Resolution to initiate the process for final due diligence and negotiation of the terms of transfer of the Golden Gate System from the FGUA, notify the FGUA board of the County's desire to initiate such process, and request that the FGUA provide County staff such documents and access to the Golden Gate System as will facilitate the final stages of due diligence and place its management and contractors on notice of the County's intent to initiate the transfer process. SECTION 4. NO DETERMINATION OF PUBLIC INTEREST FOR TRANSFER. This Resolution does not constitute a determination of public interest in the transfer of the Golden Gate System to the District. Florida law requires that after the conclusion of final due diligence by County staff, if the County determines that transfer of the Golden Gate System from the FGUA to the District has merit, public notice and a public hearing must be held for the County to consider certain factors identified in section 125.3401, Florida Statutes. After considering the required factors at such hearing, should the Board determine that acquisition of the Golden Gate System is in the public interest, an acquisition agreement would then be executed by the County and FGUA providing the terms of such transfer and transfer date. SECTION 5. APPROVAL OF NOTICE TO THE FGUA AND INITIATION OF FINAL DUE DILIGENCE ACTIVITIES AS EX OFFICIO GOVERNING BOARD OF THE COLLIER COUNTY WATER AND WASTEWATER DISTRICT. County staff is hereby authorized to take such steps as are necessary to notify the FGUA board of the contents of this Resolution, conclude final due diligence activities and negotiate terms relating to the potential acquisition of the Golden Gate System by the District, and request that notice be given to all current contractors and suppliers of the initiation of the acquisition process so that any FGUA contract or service termination obligations can be initiated. SECTION 6. APPLICABILITY AND EFFECTIVE DATE. This Resolution shall be liberally construed to affect the purposes hereof and shall take effect immediately upon its adoption. 2 Ca ' 16.K.15.d Packet Pg. 2564 Attachment: Resolution 2017-123 (3646 : FGUA Waivers of Conflict) PASSED AND DULY ADOPTED at the meeting of the Board of County Commissioners of Collier County, Florida, acting as the Ex-Officio Board of the Collier County Water-Sewer District on the2 144'xlay of June, 2017. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA;AS THE GOVERNING BODY OF COLLIER COUNTY AND EX-OFFICIO BOARD OF THE COLLIER ' COUNTY W T EWER DISTRICT Q_#_zet....- „;.•JaPri Penny Taylor airman AnESY: flwIe ir E.BR Rk P ,.,rt as to Cfitatrnaap's zfnrts1re mkt,. 3 11 16.K.15.d Packet Pg. 2565 Attachment: Resolution 2017-123 (3646 : FGUA Waivers of Conflict) ATTEST: DWIGHT E. BR , erk BY: Deputy Clerk ppro -d as to F an Legality: i cott R.Teach Deputy County Attorney 01- 0 16.K.15.d Packet Pg. 2566 Attachment: Resolution 2017-123 (3646 : FGUA Waivers of Conflict) 16.K.15.e Packet Pg. 2567 Attachment: 6-27-17 Executive Summary - FGUA (3646 : FGUA Waivers of Conflict) 16.K.15.e Packet Pg. 2568 Attachment: 6-27-17 Executive Summary - FGUA (3646 : FGUA Waivers of Conflict) 16.K.15.e Packet Pg. 2569 Attachment: 6-27-17 Executive Summary - FGUA (3646 : FGUA Waivers of Conflict) 16.K.15.f Packet Pg. 2570 Attachment: 3-1-99 Interlocal Agreement (3646 : FGUA Waivers of Conflict) 16.K.15.f Packet Pg. 2571 Attachment: 3-1-99 Interlocal Agreement (3646 : FGUA Waivers of Conflict) 16.K.15.f Packet Pg. 2572 Attachment: 3-1-99 Interlocal Agreement (3646 : FGUA Waivers of Conflict) 16.K.15.f Packet Pg. 2573 Attachment: 3-1-99 Interlocal Agreement (3646 : FGUA Waivers of Conflict) 16.K.15.f Packet Pg. 2574 Attachment: 3-1-99 Interlocal Agreement (3646 : FGUA Waivers of Conflict) 16.K.15.f Packet Pg. 2575 Attachment: 3-1-99 Interlocal Agreement (3646 : FGUA Waivers of Conflict) 16.K.15.f Packet Pg. 2576 Attachment: 3-1-99 Interlocal Agreement (3646 : FGUA Waivers of Conflict) 16.K.15.g Packet Pg. 2577 Attachment: FGUA staff analysis re Armstrong conflict waiver request (3646 : FGUA Waivers of Conflict) 16.K.15.g Packet Pg. 2578 Attachment: FGUA staff analysis re Armstrong conflict waiver request (3646 : FGUA Waivers of Conflict)