Item S7BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 18, 2012 Division: County Attorney
Bulk Item: Yes _ No _ Staff Contact Person: Natileene Cassel
Phone #: 292-3470
AGENDA ITEM WORDING: Approval of Agreement with the law firm of Gardner, Bist, Wiener,
Wadsworth, Bowden, Bush, Dee, LaVia & Wright, P. A., to serve as outside counsel in various claims
involving the County before the Public Service Commission and related matters, if necessary. It is
necessary due to the timing of hearings for representation to begin prior to the Board Meeting;
therefore the contract is retroactive to April 2, 2012 and is signed by the County Attorney subject to
ratification by the Board of County Commissioners.
ITEM BACKGROUND: The County has various pending claims and anticipated claims before the
Public Service Commission, these claims require specific legal expertise. Presently the County requires
legal representation in the following: Public Service Commission Docket No. 120054-EM, In Re:
Complaint of Robert & Julianne Reynolds Against the Utility Board of the City of Key West, and
Monroe County vs. Utility Board of the City of Key West FL, d/b/a Keys Energy Services et al (Case
No. 2011-CA-342-K), and the Petition of Key West Resort Utilities for Declaratory Statement before
the Public Service Commission.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval
TOTAL COST: unknown INDIRECT COST: BUDGETED: Yes X No
(Hourly rate of $200.00)
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No X OUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included Not Required
DISPOSITION: AGENDA ITEM #
Revised 7/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Gardner, Bist, et al P.A. Contract #
Effective Date:
Expiration Date:
Contract Purpose/Description:
Contract with Gardner, BIst, Wiener, Wadsworth, Bowden, Bush, Dee. La Via &
Wright for legal representation before the Public Service Comm and related matters
Contract Manager: Natileene Cassel 3580 Legal #7
(Name) (Ext.) (Department/Stop #)
for BOCC meeting on 4-18-12 Agenda Deadline: 4-3-12
CONTRACT COSTS
Total Dollar Value of Contract: $ Hourly Current Year Portion: $ _
Budgeted? Yes® No ❑ Account Codes: 001-22001-530-318-
Grant: $ _ _ _ _
County Match: $ _ _ _ _
ADDITIONAL COSTS
Estimated Ongoing Costs: $ /yr For:
(Not included in dollar value above) (e . maintenance,
CONTRACT REVIEW
salaries,
Division Director
Date In
Changes
Needed Reviewer
Yes❑ No❑e..
Date Out
Risk Management
O.M.B./Purc�asing
L Lf
IMa
Yes[:] No®
Yes❑ No�
t� /
County Attorney
- !
Yes❑ NoD' , • ;
Comments:
�IJ1V113 Ful111 1CC V 15CU L/L IM 1 1VK.Y 9fL
AGREEMENT BETWEEN MONROE COUNTY AND
Gardner, Sist, Wiener, Wadsworth, Bowden, Bush, Dee, LaVia, & Wright, P.A.
THIS AGREEMENT, made and entered into this day of . 2012, by and between the BOARD
OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, (-COUNTY"), a political subdivision of the
State of Florida whose address is 1100 Simonton Street, Key West, Florida 33040, and, Gardner, Blst,
Wiener, Wadsworth, Bowden, Bush, Dee, LaVia, & Wright, P.A. (*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 bills, and communicating with COUNTY. ATTORNEY may
not delegate or outsouroe 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 retroactive to the 2'd Day of April, 2012,
and upon 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 (a) Key West Resort Utilities
Corporation claim against the County before the Public Service Commission and other matters related
to or involving KWRU; and (b) Issues relating to pending disputes regarding the electrification of No
Name Key, including (1) advice, consultation, and representation with respect to activities in Public
Service Commission Docket No. 120054-EM, In Re: Complaint of Robert & Julianne Revnolds Against
the Utility Board of the City of Key West. and (if) advice, consultation, and representation (as directed)
regarding electric utility and Public Service Commission Issues Implicated In the appeal of the Order of
Dismissal issued in Monroe County vs. Utility Board of the City of Key West FL d/b/a Keys Energy
Services. et al. (Case No. 2011-CA-342-K). In addition, the ATTORNEY may be assigned new matters by
the County Attorney from time to time during the term of this agreement; any new matters shall be
assigned by amendments to this agreement. New matters shall be Included under this Agreement
with ATTORNEY when assigned by the County Attorney in writing and approved by the Board of
Commissioners.
4.1 Professional ability to gaform, 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, shareholder, associate, or other relationship, ATTORNEY
warrants that he or she is authorized to enter into this Agreement by the law firm.
4.2 Managgment of time keepers
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 obilgatlons.
S. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS OF INTEREST BEFORE
INTIlAT1NG REPRESENTATION
ATTORNEY has conducted a thorough investigation and determined that neitherATTORNEYror 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 ConductafThe
Florida Bar, COUNTY may, In its discretion, (a) obtain reimbursement from ATTORNEY for all flees 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. PAYMENTSTOATTORNEY
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 Cleric is based on generally accepted
accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of
funds.
6.2. ATTORNEY Fee IFlounvl
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 ATTORNEYS 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. Hourly Rates. and Chanres to hourly rates
Hourly rates for ATTORNEY and additional Timekeepers will be set at:
2
Approved Time Keepers:
Name: Hourly Rate:
Robert Scheffel Wright $200.00
Jay LaVia $200.00
ATTORNEY 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 ATTORNEY 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,
ATTORNEY and approved time -keepers will also provide them on the same basis to COUNTY.
6.5. Time keel
As used in this Agreement, the term "time keeper" shall include ATTORNEY and other ATTORNEYS 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.
6.5L Duplication of effort
Unless advance COUNTY approval Is obtained, ATTORNEY 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. ATTORNEY 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 63 of this Agreement, and may be
amended from time to time, upon mutual agreement of the COUNTY and the ATTORNEY, 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 whkfi 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 bllling practices shag 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. Existina work product
To the extent the ATTORNEY makes use of existing work product;, e.g., in the form of research
previously performed for another client, then ATTORNEY 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.
7. BILLING OF FEES AND EXPENSES
ATTORNEY shall comply with the following requirements as to bllling fees and expenses as a condition
precedent to COUNTY'S obligation to pay each bill:
7.1. Monthly bills
Unless otherwise agreed in a writing signed by the COUNTY, bills 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 fo a
ATTORNEY shall provide detailed, itemized bills which shall, at a minimum:
7.2.1 Description
Provide a general description of the matter, to Include the name of the COUNTY department or
constitutional officer, if not 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 ATTORNEYS 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
billing increment exceeds the actual time spent on a task and several of these "minor tasks are
performed, it is expected that the services will be aggregated until the total actual time spent meets
the minimum billing increment.
7.2.4 Totals and By Task
State the amount of time expended by each time -keeper broken down for each task.
7.2.5 Summary 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 bill, 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 billing for that matter from the commencement of the matter through the currently -
billed month.
7.3. Expenses
COUNTY will pay the actual, reasonable cost of the following expense items if Incurred in accordance
with the guidelines below ( a copy of the form used by the County is provided for your convenience as
Exhib!eA") and promptly itemized in ATTORNEYS monthly bill:
7.3.1 Reimbursable expenses
Actual cost for necessary long distance telephone calls, 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. Ex edited or emelgency serdW
ATTORNEY 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 ATTORNEYS failure to manage the matter efficiently,
7.3.1.2. Computerized research
ATTORNEY 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. ATTORNEY Is expected to pass through to COUNTY any discounts or other
arrangements that reduce the cost of computerized services.
7.3.1.3. PhgtgonvIng
ATTORNEY 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. ATTORNEY Is responsible for insuring that all copying complies with copyright
obligations.
7.3.1.4. Transcriots
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. ATTORNEY
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 allow COUNTY to
maintain a digital electronic/computerized database of all transcripts.
7.3.1.5 T_UWj Expen=
Travel expenses within the ATTORNEYS local area, defined as a radius of 50 miles from the
timekeepees office, will not be reimbursed and time in transit is not billable.
Travel expenses outside the local 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 will be reimbursed in
accordance with the applicable provisions of Florida Statute 112.321 and of the Monroe County Code
for "approved travelers" and shall be summarized on the Monroe County Travel Form by ATTORNEY
with all applicable receipts attached thereto.
7.3.1.6 Travel Time
Time spent In transit outside Attorney's local area may be billed 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 allowed without approval from COUNTY. Air Travel will be reimbursed
when the Invoice contains a boarding pass. Travel by taxi to and from the airport shall be reimbursed
upon providing proof of payment. Parking at the airport will be paid upon providing proof of payment.
Approved travel time during normal business hours, defined week -days from 8:30 a.m, to 6:00 p.m.,
will be billed at the hourly rate listed for the time -keeper in paragraph 6.3 of this Agreement.
Approved travel time outside of normal business hours will be billed at one-half the hourly rate listed
for the timekeeper in paragraph 6.3 of this Agreement.
7.3.2. Non-rE4mbursable expenses
The following expenses will in no event be reimbursable without prior written approval by County
Attorney and approval bythe Board of County Commissioners:
7.3.2.1. Personal and Office cots
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 cha
clerical expenses, stationery and other supply expenses, utilities, arges,
nd 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. Experts consultants support services outsourc d services etc
ATTORNEY is not authorized to retain experts, additional counsel consultants support
like, or to out source or delegate work outside ATTORNEY'S law firm, without prior written appsrovaor Ihe
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 Temporary 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 summer 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. Expenses not passed 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 ATTORNEYS overhead which
should be included within ATTORNEYS fee, the determination of which expenses fail Into this
category are strictly within the discretion of the COUNTY.
7.3.3. Advance approval of expenses
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 that expense.
COUNTY may refuse to pay any expense for which advance approval was not obtained by ATTORNEY.
7.3.4. Conies 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 COUNTVS written request. ATTORNEY agrees
to cooperate with any examination of this documentation and ATTORNEYS 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
ATTORNEYS request for payments and reimbursements may be made in either the ATTORNEYS name
or the name of the ATTORNEYS 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.
9.1. Case monitorins
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
7
the COUNTY will have a current, up-to-date, "mirror" copy of the COUNTY'S file maintained by
ATTORNEY. For discovery materials or exhibits that are lengthy, ATTORNEY 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, ATTORNEY may
be 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 ATTORNEY.
9.2. Case control
ATTORNEY shall discuss all significant issues of strategy and tactics, including motions, discovery,
pleadings, briefs, trial preparation, experts, and settlement, with COUNTY before implementation.
ATTORNEY is expected to exercise independent professional judgment.
9.3. ATTORNEY cooperation
ATTORNEY 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 ATTORNEY'S
bills and handling of the matter.
9.4. COUNTY cooperation
ATTORNEY 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
ATTORNEY is not authorized to waive or release any privilege or other protection of information —
confidentiai, secret, or otherwise — obtained from or on behalf of COUNTY. ATTORNEY 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 ATTORNEY from using Information obtained from or on
behaff of COUNTY, including work product prepared at COUNTY'S expense, for other client's of
ATTORNEY or hiss or her firm, without COUNTY'S advance written approval.
10.2 No use of Counly for marketing Purrtioses
ATTORNEY 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 ATTORNEY FiLES AND WORK PRODUCT
ATTORNEY understands that all files and work product prepared by ATTORNEY 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 ATTORNEY or his or her firm
nor disclosed by ATTORNEY or his or her firm to others, except in the normal course of ATTORNEYS
representation of COUNTY in this matter. ATTORNEY agrees that COUNTY owns all rights, including
copyrights, to materials prepared by COUNTY or by ATTORNEY on behalf of COUNTY. 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 (with
COUNTY responsible for paying the actual cost of storage). ATTORNEY shall provide COUNTY with
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. OiSPUTE 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 regardins 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. D!&Rute1=ardip&101gE2MWtlo
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 ATTORNEYS Fees and C091
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 ATTORNEYS fees, and court costs, as an award against the
non -prevailing party, and shall include reasonable ATTORNEYS fees, and court costs 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 REQUIREMENT
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;
G]
FOR COUNTY
County Administrator and
500 Whitehead Street
Key West, FL. 33041
FOR ATTORNEY
County Attorney
PO Box 1026
Key West, FL 33040
Telephone 305/292-3470
Facsimile 305/292-3516
Gardner, Blst, Wiener, Wadsworth, Bowden, Bush, Dee, LaVia, & Wright, PA
1300 Thomaswood Drive
Tallahassee, Florida 32308
Telephone S50/385-0070
Facsimile 850/385-5416
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 ATTORNEY 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 ATTORNEY 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 pa
rty 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 -SUNSHINE UW
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. ATTORNEY 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
ATTORNEY 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.
ATTORNEY 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
is. NO ASSIGNMENTS
ATTORNEY 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 shaft 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.
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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.
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 Agreemerrt, copies of all documents in his
or her possession of any nature whatsoever related to the ATTORNEYS representation of COUNTY or
obtained due to ATTORNEYS representation of COUNTY.
19-2,11-e-striction an unications
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 of the 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.
2L 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 A D R PON IBI • NON -DELEGATION O CON O O
STATUTORY DUTIES
This Agreement Is not intended to relieve, nor shall it be construed as relleving, 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 obiigation 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) pertalning 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
;overnment bodies. It is the responsibility of ATTORNEY to maintain appropriate records to insure a
proper accounting of all collections and remittances. ATTORNEY shali be responsible for repayment of
any and ail audit exceptions 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. PUBUCACCESS
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.1s-1990 or any
COUNTY officer or employee in violation of Section 3 of Ordinance No. 101990. 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. PUBUC gTY 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 of the 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 Monroe 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 Monroe County, and they shall be entitled to
none of the rights, privileges or benefits of employees of Monroe County.
30. COMPLIANCE WITH LAW
In carrying out ATTORNEYS obligations under this agreement, ATTORNEY shall abide by all Federal
and State 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.
3L 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 -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 COUNTY
nor ATTORNEY 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.
33. ATTESTATIONS
ATTORNEY agrees to execute such documents as the COUNTY may reasonable require, Including a
Drug -Free Workplace Statement, and a Public Entity Crime Statement.
34. 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.
35. HOLD HARMLESS AND INSURANCE
Prior to execution of this agreement, ATTORNEY shall furnish COUNTY Certificates of Insurance
indicating the minimum professional liability coverage forATTORNEY and additional time -keepers in
the amount of $2,000,000.00 per claim, $4,000,000.00 aggregate. ATTORNEY 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.
36. NO PERSONAL UABILITY
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
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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.
37. 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 AGREEMENTwill become effective when executed by both the ATTORNEY and executed
by the Board of County Commissioners of Monroe County, Florida.
Board of County Commissioners
Of Monroe County
Attest:
Danny L. Kohiage, Clerk By:
David Rice, Mayor
By: Date: J
Deputy Clerk H /30 G G
Date: �131L-
Wit/nes-s to ATTORNEY: ATTORNEY
5ig> h6nd-A- J Ld4oy Signatu 0�1 ✓ - �
Print Name L.JPrint Na
Address: /.3Qo `Thamascc�aad
DATE, 2�M
14
MONROE COUNTY ATTORNEY
PPROVED AS TO I;�
yRM:
ATILEENE W. CASSEL
ASSISTANT COUNTY ATTORNEY
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