01/17/2007 Agreement
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
January 25, 2007
TO:
Teresa Aguiar, Division Director
Employee Services
Pamela G. Hanc~
Deputy Clerk CY
FROM:
At the January 17, 2007, Board of County Commissioner's meeting the Board granted
approval and authorized execution of the following:
Agreement between Monroe County and Epstein, Becker & Green, P.C. as outside
counsel to complete the negotiations with Teamsters Local 769 (Case No. 051604-00002).
Agreement between Monroe County and Epstein, Becker & Green, P.C. as outside
counsel to handle firefighter employment, firefighter personnel and other firefighter issues
Enclosed is a copy of each of the above-mentioned your handling. Should you have any
questions please do not hesitate to contact this office.
cc: County Attorney
Finance
File)
AGREEMENT BETWEEN MONROE COUNTY AND
Epstein, Becker, & Green, P.C. for Firefighter Issues
(Case Number: 051604-00003)
THIS AGREEMENT, made and entered into this 1,tL;.ay of /J~A , 200V, A.D., by and
between the BOARD OF COUNTY COMMISSIONERS OF MO~OUNTY, FLORIDA,
("COUNTY"), a political subdivision of the State of Florida whose address is 1100 Simonton
Street, Key West, Florida 33040, Michael W. Casey, HI and, Epstein, Becker, & Green, P.c.
(hereinafter collectively referred to as "ATTORNEY") hereby enter into this Agreement regarding the
retention of ATTORNEY by COUNTY to provide legal advice and services.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein,
the parties agree as follows:
1. THE CLIENT
The Client is the COUNTY, and to the extent ethically permissible, it's elected and appointed
officers and its employees, unless COUNTY advises ATTORNEY otherwise.
2. THE ATTORNEY
ATTORNEY is the individual or professional association named above and whose legally authorized
signature appears at the bottom of this Agreement. ATTORNEY is licensed to practice law in all
jurisdictions relevant to this matter. ATTORNEY has been retained specifically because
ATTORNEY is understood by COUNTY to be able to handle this matter. If ATTORNEY
practices with others who may also provide services to COUNTY, he or she understands that
COUNTY expects that ATTORNEY will be responsible for managing the representation, assuring
compliance of others with the terms of this Agreement and ethical requirements, preparing and
substantiating all bil1s, and communicating with COUNTY. ATTORNEY may not delegate or
outsource this work without full written disclosure to, and prior written approval from, the COUNTY.
3. TERM OF AGREEMENT
This Agreement and representation by ATTORNEY is effective upon execution by ATTORNEY
and acceptance and approval by COUNTY in accordance with COUNTY'S policies, ordinances,
or governing statutes. The representation shall continue until terminated by either the COUNTY,
or by the ATTORNEY in accordance with ethical requirements and/or the terms of this
Agreement.
4. SCOPE OF THE WORK
ATTORNEY shall provide legal services and advice to COUNTY regarding firefighter's
employment, contractual and other issues related to firefighters.
4.1 Professional ability to perform work. appointment of contract manager
ATTORNEY warrants that he or she is authorized by law to engage in the performance of the
activities herein described, subject to the terms and conditions set forth in these contract
documents. ATTORNEY shall designate an individual attorney to be the contract manager for
each matter and the contract manager shall at all times exercise independent, professional
judgment and shall assume professional responsibility for the services to be provided.
ATTORNEY warrants that he or she and the authorized time keepers are authorized by law and
the Rules and Regulations of The Florida Bar to engage in the performance of the activities
encompassed by this Agreement. If ATTORNEY is a member of a law firm, either as partner,
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shareholder, associate, or other relationship, ATTORNEY warrants that he or she is authorized to
enter into this Agreement by the law firm.
4.2 Management of time keevers
ATTORNEY is responsible for managing the matter cost-effectively and competently, e.g., by
insuring that additional time-keepers are competent, properly supervised, efficient, and in
compliance with the terms of this Agreement as well as with ethical obligations.
5. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS OF
INTEREST BEFORE INITIATING REPRESENTATION
ATTORNEY has conducted a thorough investigation and determined that neither ATTORNEY nor his
or her firm has any ethical impediment, real or potential, including but not limited to conflicts of
interest, to representing COUNTY. To the extent that any ethical impediment, real or potential, is
discovered or ever arises, ATTORNEY shall immediately inform COUNTY in writing of the
impediment (regardless of whether ATTORNEY believes he or she has taken all steps necessary to
avoid the impediment and regardless of whether ATTORNEY believes that the impediment is
insubstantial or questionable), make full disclosure of the situation to COUNTY, obtain COUNTY'S
express, written consent to continue the representation of the other client, and take all steps requested by
COUNTY to avoid or mitigate the impediment. ATTORNEY understands that, if a direct or indirect
conflict of interest arises which, in the opinion of the COUNTY, cannot be avoided or mitigated
under the Rules of Professional Conduct of The Florida Bar, COUNTY may, in its discretion, (a) obtain
reimbursement from ATTORNEY for all fees and expenses paid to ATTORNEY in this matter; (b)
obtain cancellation of all amounts allegedly owed by COUNTY to ATTORNEY; and (c) obtain
reimbursement for consequential expenses incurred by COUNTY, including the cost of replacement
counsel.
6. PAYMENTS TO ATTORNEY
ATTORNEY shall submit to COUNTY invoices with supporting documentation acceptable to the
Clerk on a schedule as set forth in the contract. Acceptability to the Clerk is based on generally
accepted accounting principles and such laws, rules and regulations as may govern the Clerk's
disbursal of funds.
The Invoices Shall Reference This Agreement As Case Number: 051604-00003.
6.1 ATTORNEY Fee (Hourlv)
ATTORNEY will be paid for his or her services based on the number of hours expended on
behalf of COUNTY (rounded to the nearest tenth hour for each time entry), not to include time
billable to or compensated by other clients, multiplied by the ATTORNEY'S hourly rate. The
following minimum billing documentation and time-keeper requirements are a condition
precedent to payment by the COUNTY.
6.2. Non-billable time
ATTORNEY will bill COUNTY only for time reasonably and necessarily incurred to render
professional services on COUNTY'S behalf in accordance with this Agreement. Time attributable
to billing questions is not billable. Time expended by time-keepers who have not been approved
by COUNTY is also not billable.
6.3. Hourlv Rates. and Changes to hourlv rates
Hourly rates for ATTORNEY and additional Timekeepers will be set at:
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Approved Time Keepers:
Name: Hourly Rate:
Michael Casey $350.00 (increase to $375.00 on January 1,2007)
Kevin Vance $250.00 (increase to $260.00 on January I, 2007)
Brian Molinari $250.00 (increase to $260.00 on January I, 2007)
Pia Mendoza, Paralegal $125.00
ATIORNEY will charge no more than the hourly rate quoted above throughout the
duration of the matter, unless otherwise agreed in writing and approved by COUNTY in the same
manner as Agreement.
6.4. Discounts to other Clients
The rates A TIORNEY will charge COUNTY represent the lowest rates charged by the same
time-keepers to other clients. In the event that lower rates or discounts are provided to other
clients, ATIORNEY and approved time-keepers will also provide them on the same basis to
COUNTY.
6.5. Time keepers
As used in this Agreement, the term "time keeper" shall include ATTORNEY and other
ATIORNEYS and individuals identified in paragraph 6.3 of this Agreement who will be
providing services under this Agreement and who will bill the COUNTY for their services in
accordance with this Agreement.
6.51. Duplication of effort
Unless advance COUNTY approval is obtained, ATIORNEY will not have more than one time-
keeper bill for court appearances, attendance at depositions and meetings, including meetings
with COUNTY representatives, and internal conferences. In the event that more than one person
attends, only the time of the person with the lowest rate will be billable. ATIORNEY is not
permitted to use this matter to provide on the job training for a time-keeper, and bill for that time-
keeper's services, without COUNTY'S advance approval.
6.5.2. Time-keeper changes
Time-keepers approved by the COUNTY are listed in paragraph 6.3 of this Agreement, and may be
amended from time to time, upon mutual agreement of the COUNTY and the A TIORNEY, to
evidence the then-current circumstances. Additional time-keepers may not be added to the matter
without advance written approval from COUNTY. In the event that additional time-keepers providing
services which are to be billed to COUNTY are to be added to the staff, then their hourly rates shall be
provided to COUNTY in advance, and, upon written approval by the COUNTY, their rates and billing
practices shall comply with the requirements of this Agreement. COUNTY expects to receive
discounts or other concessions so that any increases or changes in time-keepers will not result
in unnecessary or unreasonable charges to COUNTY, e.g., for training, internal conferences,
and management.
6.6. Existing work product
To the extent the ATIORNEY makes use of existing work product, e.g., in the form of research
previously performed for another client, then A TIORNEY shall bill only that time expended in
using that work product for COUNTY. In other words, no premium, markup, or other adjustment
shall be made to COUNTY bill for time spent on work already performed.
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7. BILLING OF FEES AND EXPENSES
ATTORNEY shall comply with the following requirements as to bil1ing fees and expenses as a
condition precedent to COUNTY'S obligation to pay each bil1:
7.1. Monthlv bil1s
Unless otherwise agreed in a writing signed by the COUNTY, bil1s shall be issued monthly by
ATTORNEY within fifteen (15) days after the close of each month. ATTORNEY understands
that COUNTY requires prompt bills in part to facilitate effective management of the
representation and fees.
7.2. Bill format
ATTORNEY shall provide detailed, itemized bil1s which shall, at a minimum:
7.2.1 Descriotion
Provide a general description of the matter, to include the name of the COUNTY department or
constitutional officer, ifnot indicated in the title of the matter, for which legal services are being
performed (e.g. Richard Roe v. Monroe County-EEO Claim); a description of the work
performed in enough detail so that each item is distinguishable from other listed items and
sufficient to allow COUNTY to determine the necessity for and reasonableness of the time
expended, the services performed, the project or task each service relates to, the subject and
purpose of each service, and the names of others who were present or communicated with in the
course of performing the service. For example, simply the word "research" is not acceptable,
more detail about the type of research and what was determined by the research is necessary.
7.2.2 Personnel
Clearly identify each timekeeper performing services in conjunction with each entry. Clearly
identify all persons who are not full-time lawyers employed by the ATTORNEY'S firm
(including paralegals, employees of ATTORNEY with their titles, subcontractors, independent
contractors, temporary employees, and outsourcing providers). Personnel who are not listed as
additional timekeepers will not be paid unless approved in writing under the requirements of this
Agreement.
7.2.3 Time Records
Record the time expended by each time-keeper separately. In those situations where the minimum
bil1ing increment exceeds the actual time spent on a task and several of these "minor" tasks are
performed, it is expected that the services wil1 be aggregated until the total actual time spent
meets the minimum billing increment.
7.2.4 Totals and Bv Task
State the amount of time expended by each time-keeper broken down for each task.
7.2.5 Summarv of Rates
In a summary at the beginning or end of the bill, provide the current hourly rate for each time-
keeper, the total time billed by each time-keeper in that bil1, the product of the total time and
hourly rate for each time-keeper, the total fees charged, and are reconciliation between the
amount charged and any applicable estimated or budgeted amount, by task. In addition, each
monthly statement should show the aggregate bil1ing for that matter from the commencement of
the matter through the currently-billed month.
7.3. Exoenses
COUNTY wil1 pay the actual, reasonable cost of the following expense items if incurred in
accordance with the guidelines below and promptly itemized in ATTORNEY'S monthly bill:
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7.3.1 Reimbursable expenses
Actual cost for necessary long distance telephone caUs, telecopying at $.25 per outgoing page,
overnight or expedited delivery, couriers, photocopying at $.15 per page, postage, court fees, and
other expenses approved in advance by COUNTY or as listed below:
7.3.1.1. Expedited or emerltencv services
A TIORNEY is expected to avoid using expedited or emergency services, such as express
delivery services, couriers, telecopying, overtime, and so on, unless necessary because of
unexpected developments or extremely short deadlines. COUNTY may refuse to pay for any such
expenses when incurred routinely or because of ATIORNEY'S failure to manage the matter
efficiently.
7.3.1.2. Computerized research
A TIORNEY is expected to use computerized research services cost-effectively to reduce time
spent on research, for example, while closely-monitoring computerized research to insure that the
charges are reasonable and necessary. ATIORNEY is expected to pass through to COUNTY any
discounts or other arrangements that reduce the cost of computerized services.
7.3.1.3. Photocopvinlt
A TIORNEY is encouraged to use outside copying services to reduce the cost of large-volume
copying, provided that these expenses are efficient, cost-effective, and incurred and billed in
accordance with this Agreement. A TIORNEY is responsible for insuring that aU copying
complies with copyright obligations.
7.3.1.4. Transcripts
Transcripts should not be ordered without prior approval from COUNTY. Transcripts should not
be ordered on an expedited basis unless necessary and approved in advance by COUNTY.
ATIORNEY should obtain digital electronic/computerized copies of transcripts when available
at a reasonable cost to avoid charging for time spent digesting or indexing transcripts, and to
aUow COUNTY to maintain a digital electronic/computerized database of aU transcripts.
7.3 .1.5 Travel Expenses
Travel expenses within the ATIORNEY'S local or metropolitan area will not be reimbursed and
time in transit is not biUable. Travel expenses outside the metropolitan area may only be
reimbursed if the travel was approved in advance by COUNTY. Reimbursable travel expenses, if
approved in advance, are the cost of transportation by the least expensive practicable means (e.g.,
coach class air travel), the cost of reasonable hotel accommodations, and the cost of
transportation while out of town (e.g., by cab or rental car, whichever seems reasonable, at the
lowest available rate). Travel expenses wiU be reimbursed in accordance with the applicable
provisions of Florida Statute 112.321 and of the Monroe County Code for "approved travelers"
and shaU be summarized on the Monroe County Travel Form by ATTORNEY with aU applicable
receipts attached thereto.
7.3 .1.6 Travel Time
Time spent in transit outside Attorney's local area may be biUed only if ATTORNEY or time-
keeper is unable to avoid traveling by using other forms of communication or it is determined by
the County that travel is in the County's best interest. Travel by more than one time-keeper at the
same time to the same destination is not aUowed without prior approval from COUNTY.
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7.3.2. Non-reimbursable exoenses
The following expenses will in no event be reimbursable without prior written approval by
County Attorney and approval by the Board of County Commissioners:
7.3.2.1. Personal and Office Costs
Meals for time-keepers not related to travel, overtime, word processing or computer charges,
personal expenses, expenses that benefited other clients, expenses for books, costs of temporary
employees, periodicals or other library materials, internal filing or other document handling
charges, clerical expenses, stationery and other supply expenses, utilities, and any other expense
that is either unreasonable or unnecessary. (The fact that ATTORNEY charges other clients or
that other firms charge their clients for an expense does not make it reasonable or necessary under
this Agreement.)
7.3.2.2. Exoerts. consultants. suooort services. outsourced services. etc.
ATTORNEY is not authorized to retain experts, additional counsel, consultants, support services,
or the like, or to out source or delegate work outside ATTORNEY'S law firm, without prior
written approval by County Attorney and approval by the Board of County Commissioners. If
agreed to ATTORNEY will be responsible for selecting and managing the services of others so
that their services and expenses will be rendered in accordance with the terms of this Agreement,
including terms applicable to ATTORNEY. ATTORNEY will manage others to obtain cost
effective services for COUNTY. Unless otherwise agreed in writing, ATTORNEY shall obtain a
written retainer agreement, in a form which may be specified by COUNTY, from each service
provider, with bills from each provider being sent to both ATTORNEY and COUNTY.
7.3.2.3 Temoorarv Staffing
ATTORNEY will not bill COUNTY for the time and expenses of temporary employees,
including so-called "Temps" or contract ATTORNEYS or other staff from outside companies,
nor "outsource" or delegate work, nor charge for sununer associates, law clerks, or student
clerks, (collectively "temporary staff' even if not temporarily employed) without full advance
disclosure of the employee's temporary or short-term status to COUNTY, including disclosure of
the actual amount paid or to be paid to the individual. Unless COUNTY expressly agrees in
writing to paying additional amounts after full disclosure by ATTORNEY, ATTORNEY may not
charge COUNTY more than the actual cost paid by ATTORNEY.
7.3.2.4. Exoenses not oassed through at actual cost
COUNTY will not pay any markup for expenses. COUNTY will only reimburse the
ATTORNEY for their actual approved out-of-pocket costs and expenses, whether incurred
personally by an approved time-keeper or incurred by other approved personnel (such as experts,
consultants, support services personnel, or outsourced services personnel).
7.3.2.5. Overhead not charged to County
COUNTY will not pay for any "expense" items that are in fact part of ATTORNEY'S overhead
which should be included within ATTORNEY'S fee, the determination of which expenses fall
into this category are strictly within the discretion of the COUNTY.
7.3.3. Advance aooroval of exoenses
In addition to the items noted above, ATTORNEY shall obtain advance approval from COUNTY
before incurring any expense in excess of $1 ,000.00 if ATTORNEY expects to be reimbursed for
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that expense. COUNTY may refuse to pay any expense for which advance approval was not
obtained by ATTORNEY.
7.3.4. Copies of receipts for expenses
ATTORNEY shall include copies of receipts for all expenses with the itemized monthly bill.
COUNTY may refuse to pay any expense item for which documentation is not provided by
ATTORNEY.
7.3.5. Expenses (and fees) after termination
Upon termination of the representation, ATTORNEY shall promptly bill COUNTY for any
remaining reimbursable expenses and fees. COUNTY may refuse to pay any fees or expenses not
billed within 45 days of termination of the representation. ATTORNEY is also expected to
cooperate promptly with all aspects of termination and, if applicable, transition to other counsel.
Payment for fees and expenses is contingent upon prompt, full cooperation.
7.4. Bill and expense documentation
ATTORNEY must maintain supporting documentation for invoices until at least one year after
the termination of the representation. This documentation shall be made available by
ATTORNEY to COUNTY (or COUNTY'S designated representative, including an accountant,
the County Clerk or County Clerk's representative, or legal bill auditor) upon COUNTY'S
written request. ATTORNEY agrees to cooperate with any examination of this documentation
and ATTORNEY'S fees and expenses, e.g., by responding promptly and completely to any
questions COUNTY or its designated representative may have. ATTORNEY shall notify
COUNTY in writing at least 60 days in advance of destroying any such records and, in the event
that COUNTY requests that they be preserved, shall preserve them at least one additional year or,
at the option of the COUNTY, delivered to the COUNTY for storage by the COUNTY, with
COUNTY responsible for paying the actual cost of storage. This documentation shall include, for
example, original time records, expense receipts, and documentation supporting the amount
charged by ATTORNEY for expense items generated by ATTORNEY or his or her firm.
COUNTY reserves the right not to pay any fee or expense item for which sufficient
documentation or expense item for which sufficient documentation is not available to determine
whether the item was necessary and reasonable.
8. PAYMENT TERMS
ATTORNEY'S request for payments and reimbursements may be made in either the
ATTORNEY'S name or the name of the ATTORNEY'S law firm, as appropriate. ATTORNEY
bills complying with this Agreement are due and payable according to the Prompt Payment Act.
If the bill materially fails to comply with the requirements of this Agreement, then it is not due
and payable until its deficiencies are remedied by ATTORNEY.
9. MATTER MANAGEMENT
COUNTY will expect that all communications between ATTORNEY, and additional time
keepers, and COUNTY will be reviewed by ATTORNEY and that ATTORNEY will serve as the
point of contact for this matter, including billing questions.
9. I. Case monitoring
COUNTY will be advised promptly by ATTORNEY of all significant facts and developments in
the matter so that COUNTY may manage the matter effectively and make informed decisions
about strategy, tactics, settlement, scheduling, costs, and other related matters. COUNTY will
promptly receive from ATTORNEY copies of all orders, opinions, pleadings, briefs, memoranda
(internal and external), correspondence, and any other document material to the subject matter of
this Agreement, such that the COUNTY will have a current, up-to-date, "mirror" copy of the
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COUNTY'S file maintained by ATIORNEY. For discovery materials or exhibits that are
lengthy, A TIORNEY should discuss them with COUNTY before providing a copy. Documents
available in digital electronic/computerized form should be provided in that form in lieu of paper
copies, if requested by County. Additionally, ATIORNEY maybe required to submit, on a
monthly basis, a case status and progress report to be submitted to the Board of COUNTY
Commissioners. The format of the report shall be in the form required by the COUNTY
ATIORNEY.
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9.2. Case control
A TIORNEY shall discuss all significant issues of strategy and tactics, including motions,
discovery, pleadings, briefs, trial preparation, experts, and settlement, with COUNTY before
implementation. A TIORNEY is expected to exercise independent professional judgment.
9.3. ATIORNEY cooperation
ATIORNEY will cooperate with COUNTY or COUNTY'S representatives to promptly provide
all information COUNTY requests or needs about the subject matter of this Agreement and
A TIORNEY' S bills and handling of the matter.
9.4. COUNTY cooperation
A TIORNEY should consult with COUNTY about all opportunities for COUNTY to save money
or make use of COUNTY'S expertise to assist in, e.g., responding to discovery, preparing for
trial, locating experts, and the like. COUNTY may also have personnel and facilities available to
reduce the expenses related to the subject matter of this Agreement.
10. CONFIDENTIALITY AND PUBLIC RELATIONS
ATIORNEY is not authorized to waive or release any privilege or other protection of
information - confidential, secret, or otherwise - obtained from or on behalf of COUNTY.
A TIORNEY is to keep all confidential, privileged, or secret information confidential. This
requirement is perpetual, i.e., it will continue even after the termination of the relationship and
this Agreement.
10.1 Prohibition against use of information
This requirement is also intended to prohibit ATIORNEY from using information obtained from
or on behalf of COUNTY, including work product prepared at COUNTY'S expense, for other
client's of A TIORNEY or his or her firm, without COUNTY'S advance written approval.
10.2 No use ofCountv for marketing purooses
A TIORNEY is not authorized to identify COUNTY as a COUNTY, e.g., for purposes of
marketing or advertising, without COUNTY'S prior approval.
11. OWNERSHIP OF ATIORNEY FILES AND WORK PRODUCT
A TIORNEY understands that all files and work product prepared by A TIORNEY or his or her
firm at the expense of COUNTY (or for which COUNTY is otherwise billed) is the property of
COUNTY. Without COUNTY'S prior written approval, this work product may not be used by
A TIORNEY or his or her firm nor disclosed by A TIORNEY or his or her firm to others, except
in the normal course of ATIORNEY'S representation of COUNTY in this matter. ATIORNEY
agrees that COUNTY owns all rights, including copyrights, to materials prepared by COUNTY
or by A TIORNEY on behalf of COUNTY. A TIORNEY shall notify COUNTY in writing at
least 60 days in advance of destroying any such records and, in the event that COUNTY requests
that they be preserved, shall preserve them at least one additional year (with COUNTY
responsible for paying the actual cost of storage). ATIORNEY shall provide COUNTY with
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prompt access to (including the ability to make copies of) all ATTORNEY files and work
product, regardless of whether the representation or matter is ongoing and whether ATTORNEY
fees and expenses have been paid in full.
12. DISPUTE RESOLUTION
ATTORNEY and COUNTY agree that if a dispute arises between them that neither shall be
required to enter into any arbitration proceedings related to this Agreement
12.1. Disputes regarding Attornev fees or expenses
ATTORNEY and COUNTY agree that all disputes regarding ATTORNEY'S fees or expenses
are to be resolved pursuant to the procedures and practices for mediation by the Attorney
Consumer Assistance Program of the Florida Bar.
12.2. Disputes regarding interpretation
COUNTY and ATTORNEY agree that all disputes and disagreements between them regarding
interpretation of the Agreement shall be attempted to be resolved by a meet and confer session
between representatives of COUNTY and ATTORNEY. If the issue or issues are still not
resolved to the satisfaction of both within thirty (30) days after the meet and confer session, then
either shall have the right to terminate the Agreement upon ten (10) business days notice in
writing to the other party.
12.3 Legal or Administrative procedures
In the event any administrative or legal proceeding is instituted against either the COUNTY or
ATTORNEY relating to the formation, execution, performance, or breach of this Agreement,
the COUNTY and ATTORNEY each agree to participate, to the extent required by the other, in
all proceedings, hearings, processes, meetings, and other activities related to the substance of
this Agreement; institution of any administrative or legal proceeding shall constitute immediate
termination of this Agreement. ATTORNEY agrees to forward copies of all documents in his or
her possession related to the matter which is the subject of this Agreement to COUNTY at the time
of filing any administrative or legal proceeding.
12.4 ATTORNEY'S Fees and Costs
In the event any administrative proceeding or cause of action is initiated or defended by the
COUNTY or ATTORNEY relative to the enforcement or interpretation of this Agreement, the
prevailing party shall be entitled to an award of reasonable ATTORNEY'S fees, court costs,
investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall
include reasonable ATTORNEY'S fees, court costs, investigative, and out-of-pocket expenses in
appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement
or as may be required by a court of competent jurisdiction shall be conducted in accordance with
the Florida Rules of Civil Procedure and the usual and customary procedures required by the
circuit court of Monroe County and shall take place in Monroe County.
13. NOTICE REOUIREMENT
Any notice required or permitted under this agreement shall be in writing and hand delivered or
mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the
following:
FOR COUNTY
County Administrator and
500 Whitehead Street
Key West, FL. 33041
305-292-4441
County Attorney
PO Box 1026
Key West, FL 33040
305-292-3470
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FOR A TIORNEY
Michael Casey III
Epstein, Becker & Green, P.c.
Suite 2100, Wachovia Financial Center
200 South Biscayne Blvd
Miami, FL 33131
305-982-1520
14. GOVERNING LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed entirely in the State. Venue for any
legal action which may arise out of or under this agreement shall be in Monroe County, Florida.
15. ENTIRE AGREEMENT
The entire agreement between the COUNTY and A TIORNEY with respect to the subject matter
hereof is contained in this Agreement. This Agreement supersedes all prior oral and written
proposals and communications between the COUNTY and ATIORNEY related to this
Agreement. No provision of this Agreement shall be deemed waived, amended or modified by
either party unless such waiver, amendment or modification is in writing and signed by the party
against whom the waiver, amendment or modification is claimed. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns.
16. FLORIDA GOVERNMENT-IN-THE-SUNSHlNE LAW
ATTORNEY agrees that, unless specifically exempted or excepted by Florida law, the provisions
of Chapter 120, Florida Statutes, generally require full and public discussion of matters to be
voted upon by the Board of County Commissioners. ATIORNEY agrees to consult with the
COUNTY ATTORNEY'S office concerning the application of the Sunshine Law from time to
time concerning specific circumstances that may arise during the term of this Agreement.
17. FLORIDA PUBLIC RECORDS LAW
A TIORNEY agrees that, unless specifically exempted or excepted by Florida law or Rules and
Regulations of The Florida Bar, the provisions of Chapter 119, Florida Statutes, generally require
public access to all records and documents which may be made or received under this Agreement.
ATIORNEY agrees to consult with the County Attorney's office concerning the application of
the Public Records Law from time to time concerning specific circumstances that may arise
during the term of this Agreement.
18. NO ASSIGNMENTS
A TIORNEY shall not assign or subcontract its obligations under this agreement, except in
writing and with the prior written approval of the Board of County Commissioners of Monroe
County, which approval shall be subject to such conditions and provisions as the Board may
deem necessary. This paragraph shall be incorporated by reference into any assignment or
subcontract and any assignee or subcontractor shall comply with all of the provisions of this
Agreement. Unless expressly provided for therein, such approval shall in no manner or event be
deemed to impose any additional obligation upon the Board.
19. TERMINATION
Either of the parties hereto may terminate this contract without cause by giving the other party
fifteen (15) business days written notice of its intention to do so.
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19.1 Documents forwarded to COUNTY
ATTORNEY agrees to forward to COUNTY along with Notice of Termination or upon receipt of
Notice of Termination, depending upon which party terminates the Agreement, copies of all
documents in his or her possession of any nature whatsoever related to the ATTORNEY'S
representation of COUNTY or obtained due to ATTORNEY'S representation of COUNTY.
19.2 Restriction on Communications
ATTORNEY agrees not to communicate with the public, including the press, about COUNTY or
about this matter.
20. SEVERABILITY
If a term, covenant, condition or provision of this Agreement shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants,
conditions and provisions of this Agreement shall not be affected thereby; and each remaining
term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable
to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provision of this Agreement would prevent the accomplishment ofthe original
intent of this Agreement. The COUNTY and ATTORNEY agree to reform the Agreement to
replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision.
21. CAPTIONS
The captions set forth herein are for convenience of reference only and shall not define, modify,
or limit any of the terms hereof.
22. LEGAL OBLIGATIONS AND RESPONSIBILITIES: NON-DELEGATION OF
CONSTITUTIONAL OR STATUTORY DUTIES
This Agreement is not intended to relieve, nor shall it be construed as relieving, either the
COUNTY or ATTORNEY from any obligation or responsibility imposed upon each by law
except to the extent of actual and timely performance thereof by the other, in which case the
performance may be offered in satisfaction of the obligation or responsibility. Further this
Agreement is not intended to authorize, nor shall it be construed as authorizing, the delegation of
the constitutional or statutory duties of the COUNTY, except to the extent permitted by the
Florida Constitution, state statutes, case law, and, specifically, the provisions of Chapter 125,
Florida Statutes.
23. RECORDS
ATTORNEY shall maintain all books, records, and documents directly pertinent to performance
under this Agreement, including the documents referred to in this Agreement, in accordance with
generally accepted accounting principles, consistently applied. Upon ten (10) business days
written notice to the other, representatives of either the COUNTY or ATTORNEY shall have
access, at all reasonable times, to all the other party's books, records, correspondence,
instructions, receipts, vouchers and memoranda (excluding computer software) pertaining to
work under this Agreement for the purpose of conducting a complete independent fiscal audit.
ATTORNEY shall retain all records required to be kept under this Agreement for a minimum of
five years, and for at least four years after the termination of this agreement. ATTORNEY shall
keep such records as are necessary to document the performance of the agreement and expenses
as incurred, and give access to these records at the request of the COUNTY, the State of Florida
or authorized agents and representatives of said government bodies. It is the responsibility of
ATTORNEY to maintain appropriate records to insure a proper accounting of all collections and
remittances. ATTORNEY shall be responsible for repayment of any and all audit exceptions
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which are identified by the Auditor General for the State of Florida, the Clerk of Court for
Monroe County, the Board of County Commissioners for Monroe County, or their agents and
representatives.
24. PUBLIC ACCESS
The COUNTY and ATTORNEY shall allow and permit reasonable access to and inspection of,
all documents, papers, letters, or other materials subject to the Florida Public Records Law, as
provided in Chapter 119, Florida Statutes, and made or received by the them, unless specifically
exempted by State Statute, Rules and Regulations of The Florida Bar, or case law. COUNTY
shall have the right to cancel this agreement upon violation of this provision by ATTORNEY.
25. MONROE COUNTY CODE ETHICS PROVISION
ATTORNEY warrants that he or she has not employed, retained or otherwise had act on his
behalf any former COUNTY officer or employee in violation of Section 2 of Ordinance No. 10-
1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 10 1990.
For breach or violation of this provision the COUNTY may, at its discretion, terminate this
Agreement without liability and may also, at its discretion, deduct from the sums owed under the
Agreement, or otherwise recover, the full amount of any fee, commission, percentage, gift, or
consideration paid to the former or present COUNTY officer or employee. COUNTY employees
and officers are required to comply with the standards of conduct delineated in Section 112.313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts, doing business
with one's agency, unauthorized compensation, and misuse of public position, conflicting
employment or contractual relationship, and disclosure of certain information.
26. PUBLIC ENTITY CRIME STATEMENT
Florida law provides that person or affiliate who has been placed on the convicted vendor list
following a conviction for public entity crime may not submit a bid on an agreement to provide
any goods or services to a public entity, may not submit a bid on a agreement with a public entity
for the construction or repair of a public building or public work, may not submit bids on leases
of real property to public entity, may not be awarded or perform work as a contractor, supplier,
sub contractor, or consultant under a agreement with any public entity, and may not transact
business with any public entity in excess ofthe threshold amount provided in Section 287.017,
for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on
the convicted vendor list. ATTORNEY warrants the neither ATTORNEY nor any authorized
time keeper has been named to the convicted vendor list.
27. ANTI-KICKBACK
ATTORNEY warrants that no person has been employed or retained to solicit or secure this
Agreement upon any contract or understanding for a commission, percentage, brokerage or
contingent fee, and that no employee or officer of the COUNTY has any interest, financially or
otherwise, in this Agreement, except as expressly stated herein. For breach or violation of this
warranty, the COUNTY shall have the right to annul this agreement without liability or, in its
discretion, to deduct any sums to be paid by COUNTY under this Agreement, or otherwise
recover, the full amount of such commission, percentage, brokerage or contingent fee.
28. MODIFICATIONS AND AMENDMENTS
This Agreement may not be modified in any way without the express, written consent of both
parties. Any and all modifications and Amendments of the terms of this Agreement shall be in
writing and executed by the Board of County Commissioners for Monroe County and by
ATTORNEY in the same manner as this Agreement.
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29. INDEPENDENT CONTRACTOR
At all times and for all purposes hereunder, ATTORNEY is an independent contractor and not an
employee of the Board of County Commissioners of Momoe County. No statement contained in
this Agreement shall be construed so as to find ATTORNEY or any of the authorized time
keepers, to be the employees of the Board of County Commissioners of Momoe County, and they
shall be entitled to none ofthe rights, privileges or benefits of employees ofMomoe County.
30. COMPLIANCE WITH LAW
In carrying out ATTORNEY'S obligations under this agreement, ATTORNEY shall abide by all
statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this
Agreement, including those now in effect and hereafter adopted. Any violation of said statutes,
ordinances, rules or regulations shall constitute a material breach of this Agreement and shall
entitle COUNTY to terminate this Agreement immediately upon delivery of written notice of
termination to ATTORNEY.
31. LICENSING
ATTORNEY warrants that ATTORNEY and additional timekeepers do presently have, shall
have prior to commencement of work under this Agreement, and at all times during said work, all
required licenses and permits whether federal, state, County or City.
32. NON-DISCRIMINATION
ATTORNEY agrees that he or she will not discriminate against any person, and it is expressly
understood that upon a determination by a court of competent jurisdiction that discrimination has
occurred, this Agreement automatically terminates without any further action on the part of any
party, effective the date of the court order. ATTORNEY agrees to comply with all Federal and
Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These
include but are not limited to: I) Title VI of the Civil Rights Act of 1964 (PL 88-352) which
prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education
Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits
discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended
(20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination
on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as
amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive
Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-
616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7)
The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as
amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the
Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the
sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s.
1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of
disability; 10) Momoe County Code Chapter 13, Article VI, which prohibits discrimination on
the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity
or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal
or state statutes which may apply to the parties to, or the subject matter of, this Agreement.
33. NON-RELIANCE BY NON-PARTIES
No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to
enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or
program contemplated hereunder, and the COUNTY and ATTORNEY agree that neither the
13
COUNTY nor ATIORNEY or any officer, agent, or employee of each shall have the authority to
inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity
or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or
superior to the community in general or for the purposes contemplated under this Agreement.
34. ATIESTATIONS
A TIORNEY agrees to execute such documents as the COUNTY may reasonable require,
including a Drug-Free Workplace Statement, and a Public Entity Crime Statement.
35. COUNTY AUTHORITY
This Agreement has been duly noticed at a legally held public meeting conducted in Monroe
County, Florida. COUNTY'S performance and obligation to pay under this contract, is contingent
upon annual appropriation by the Board of County Commissioners.
36. HOLD HARMLESS AND INSURANCE
Prior to execution of this agreement, ATIORNEY shall furnish COUNTY Certificates of
Insurance indicating the minimum professional liability coverage for ATIORNEY and additional
time-keepers in the amount of $1,000,000.00. ATIORNEY agrees to keep the same amount of
coverage or more at all times and to provide proof of said coverage to COUNTY at COUNTY'S
request at any time during the term of the Agreement.
37. NO PERSONAL LIABILITY
No covenant or obligation contained in this Agreement shall be deemed to be a covenant or
obligation of any member, officer, agent or employee of the Board of County Commissioners of
Monroe County in his or her individual capacity and no member, officer, agent or employee of
the Board of County Commissioners of Monroe County shall be liable personally on this
Agreement or be subject to any personal liability or accountability by reason of the execution of
this Agreement.
38. RETROACTNE
This Agreement shall be retroactive to August 18, 2005. The parties agree that the firm has billed
the County and has not been paid on some invoices because it was not clear to the Clerk what
contract the bill should be applied to or the contract hourly rate was different from the rate billed.
The parties agree that the Attorney will resubmit any bills which apply under this contract and
which have not been paid, and Attorney will charge the County at the rate being billed at the time
the work was done.
Time billed under another Agreement shall be separated and a new invoice containing
firefighter's employment, contractual and other issues related to firefighters shall be sent to
COUNTY with that time included. This will enable the parties to keep track of time spent on the
issues related to this Agreement.
-REMAINDER OF THIS PAGE LEFT INTENTION ALL Y BLANK-
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39. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be regarded
as an original, all of which taken together shall constitute one and the same instrument and the
COUNTY and ATTORNEY may execute this Agreement by signing any such counterpart.
THIS AGREEMENT will become effective when executed by both the ATTORNEY and
executed by the Board of County Commissioners of Monroe County, Florida.
Board of County Commissioners
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Mario DiGelUlaro, M~q[
Date: IAN 1 7 lUU7
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