02/20/2013 AgreementAMY HEA VILIN, CPA
CLERK OF THE CIRCUIT COURT
DATE: March S, 2013
TO: Thomas P. Ravenel, Director
Finance Department
FROM: Pamela G. Han oc , .C.
At the February 20, 2013, Board of County Commissioner's meeting the Board granted
approval and authorized execution of Item 04 Contracts with George Helm, PA, the law firm of
Rissman Barrett; the law firm of Pall Marks to serve as outside counsel for the County's workers
compensation cases; and approval to enter into a Contract with Pyszka Blackman in the event the
County is not able to enter into a contract with any of the top three firms; and authority for the
County Attorney to execute the retainer agreements.
Enclosed is a copy of each the above -mentioned for your handling. Should you have
any questions, please feel free to contact our office.
cc: File `,/
AGREEMENT BETWEEN MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS AND RISSMAN, BARRETT, HURT, DONAHUE & MCLAIN, P.A.,
FOR THE PROVISION OF LEGAL SERVICES
OIL -
THIS AGREEMENT is entered into thisdaday of , 2013, by and between
the Monroe County Board of County Commissioners ("County") and 6ssman, Barrett, Hurt,
Donahue & McLain, P.A. ("Attorney").
WHEREAS, the County wishes to enter into this agreement with the Attorney so that the
Attorney will act as private legal counsel to the County;
NOW THEREFORE, IN CONSIDERATION of the mutual promises contained herein,
the parties agree as follows:
Client: The Client is the County, and to the extent ethically permissible, its elected and
appointed officers and its employees, unless County advises Attorney otherwise. In
the event that the Attorney cannot ethically represented individuals in addition to
County, Attorney shall so advise the County of that fact immediately.
2. Attorney: Attorney is the person or firm named above. The Attorney may not delegate
or outsource this work without the prior written consent of the County.
Tenn: This Agreement is effective upon execution by the parties. The representation
shall continue until terminated either by the Attorney or by the County. The County's
performance and obligation to pay under this agreement is contingent upon annual
appropriations by the Monroe County Board of County Commissioners.
4. Scope of Work: Attorney shall provide legal services and advice to the County regarding
workers' compensation clams, investigation, research and litigation as assigned to the
Attorney by County. Attorney will be assigned new claims by the Sr. Administrator
of the Benefits Department of the County from time to time.
a. Professional ability to perform work: Attorney warrants that he or she is
authorized by law to render services for the scope of work set forth in this
paragraph. The Attorney further warrants that all of the approved timekeepers
listed below are authorized by the Rules of the Florida Bar to engage in delivery
of legal services described herein. If Attorney is a member of a law firm, as
partner, shareholder, associate or other relationship, Attorney warrants that he or
she is authorized to enter into this agreement by Attorney's firm.
b. The Attorney is responsible for managing the matter cost-effectively and
competently, e.g., by ensuring that the authorized timekeepers are competent,
properly supervised, efficient, and in compliance with the terms of this
Agreement as well as ethical obligations.
5. Hourly rates and timekeepers:
Hourly rates for attorneys and additional timekeepers will be set as follows:
N
Attorneys
Billing Rate
Theodore N. Goldstein
$135
Richard B. Robbins
$135
Robert A. Donahue
$135
Paralegals
Billing Rate
Toni Hill
$75
Peggy Swiebel
$75
Kara Graham
$75
.Special Conditions Regarding Representation:
a. Attorney has been retained by County to provide the scope of services described
in Section 4 above. Attorney represents that he or she is competent and available
to handle that matter. In the event that additional matters are assigned by County
to Attorney, this agreement shall apply to those matters as well, unless a separate
Agreement is required by the County.
b. Review of ethical obligations 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, to representing County.
If 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.
7. Payment:
Payment will be made upon receipt of a proper invoice with documentation of services
rendered, pursuant to the Florida Local Government Prompt Payment Act.
a. Fees: Attorney shall provide a general description of the matter; clearly identify
each person performing services, record the time expended by each person
separately; state the amount of time expended by each person daily (and, within
each day, broken down by task where more than one project or task was worked
upon within the same day); describe within each itemized daily task entry, in
sufficient detail to readily allow the 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. Billing shall occur in increments of 0.1 hours.
b. Travel expenses will be reimbursed in accordance with the applicable provisions
for "approved travelers" of the Monroe County Code, and will be summarized on
the Monroe County Travel Form with all applicable receipts attached thereto.
Travel shall be billed from the firm's office closest to the hearing or deposition.
C. Reimbursable expenses: Court filing fees and costs, witness fees (including
experts and consultants), and court reporter fees.
d. Non -reimbursable expenses: All other costs will be non-reimburseable, including
but not limited to postage, photocopying, facsimile, telephone charges, courier
charges, computerized research, facsimile charges.
8. Termination: The agreement can be terminated by either party with or without cause
with 90 days prior written notice.
9. Records: Attorney shall maintain all books, records, and documents directly pertinent to
performance under this Agreement, for a period of three (3) years after termination of
representation. County shall have access to such books, records and documents for the purpose
of inspection or audit during normal business hours, at the County's cost, upon five (5) days'
written notice. Attorney shall be responsible for repayment of any and all audit exceptions
which are identified by the Auditor General for the State of Florida, the Clerk of Court for
Monroe County, the County, or their agents and representatives.
10. Modification: Additions to, modifications to or deletions from the provisions set forth in
this agreement shall be effective only in writing and approved by County.
11. Indemnification and Hold Harmless: The Attorney agrees to indemnify and hold Monroe
County harmless for any and all claims, liability, losses and causes of action which may arise out
of its fulfillment of the Agreement. Attorney agrees to pay all claims and losses, including
related court costs and reasonable attorneys' fees, and shall defend all suits filed due to the
negligent acts, errors or omissions of the Attorney employees and/or agents.
12. Insurance. Throughout the term of this engagement, Attorney shall maintain Professional
Liability Insurance in the minimum amount of $1.0 million per occurrence. Prior to the effective
date of this Agreement Attorney shall provide to the County certificates of insurance.
13. Taxes: Monroe County is exempt from federal excise and state sales and use taxes.
14. Independent Contractor: It is the intent of the parties hereto that the Attorney shall be
legally considered as an independent contractor and that neither it nor its employees or agents
shall, under any circumstance, be considered servants or agents of the County and County shall
at no time be legally responsible for any negligence on the part of said successful responder, its
employees or agents, resulting in either bodily or personal injury or property damage to any
individual, firm, or corporation.
15. Disclosure: The Attorney shall be required to list any or all potential conflicts of interest,
as defined by Florida Statute 112 and Monroe County Ethics Ordinance. The Attorney shall
disclose all actual or proposed conflicts of interest, financial or otherwise, direct or indirect,
involving any client's interest which may conflict with the interests of the County.
16. Assignment: the Attorney shall not assign, transfer, convey, sublet or otherwise dispose
of this agreement, or of any or all of its right, title or interest therein, or his or its power to
execute such contract to any person, company or corporation without prior written consent of the
County.
17. Force Majeure: The Attorney shall not be liable for delay in performance or failure to
perform, in whole or in part, the services due to the occurrence of any contingency beyond its
control or the control of any of its subcontractors or suppliers, including labor dispute, strike,
labor shortage, war or act of war whether an actual declaration thereof if made or not,
insurrection, sabotage, riot or civil commotion, act of public enemy, epidemic, quarantine
restriction, accident, fire, explosion, storm, flood, drought, or other act of God, act of any
governmental authority, jurisdictional action, or insufficient supply of fuel, electricity, or
materials or supplies, or technical failure where the Attorney has exercised reasonable care in the
prevention thereof, and any such delay or failure shall not constitute a breach of this agreement.
18. Governing Law/Venue: This agreement shall be governed and construed by and in
accordance with the laws of the State of Florida and constitutes the entire agreement between the
County and Attorney. Venue of any court action filed relative to this agreement shall lie in
Monroe County, Florida.
19. Antisolicitation: The Attorney warrants that no person has been employed or retained to
solicit or secure this contract upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee and that no member of the Monroe County government or the
County has any interest, financially or otherwise in the Attorney or its subcontractors.
20. Severability: If any provision of the agreement shall be held by a Court of competent
jurisdiction to be invalid or unenforceable, the remainder of this agreement, or the application of
such provision other than those as to which it is invalid or unenforceable, shall not be affected
thereby; and each provision of the agreement shall be valid and enforceable to the fullest extent
permitted by law.
21. Notice: Any notice required or permitted under this agreement shall be in writing and
hand -delivered or mailed, postage prepaid by certified mail, return receipt requested, to the other
party as follows:
For Monroe County: For Attorney: Theodore N. Goldstein, Esquire
Monroe County Attorney's Office Rissman, Barrett, Hurt, Donahue & McLain, P.A.
1111 12th St., Suite 408 Post Office Box 4940
Key West, FL 33040 Orlando, FL 32802-4940
22. Ethics Clause: The Attorney warrants that it has not employed, retained or otherwise had
act on its behalf, any former Monroe County officer or employee in violation of Section 2 or
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 the provision, the County may, at its discretion
terminate this agreement without liability and may also, at its discretion, deduct from the
agreement or purchase price, or otherwise recover, the full amount of any fee, commission,
percentage, gift, or consideration paid to the former or present County officer or employee.
23. Public Entity Crime Statement: A person or affiliate who has been placed on the
convicted vendor list following a conviction for public entity crime may not submit a response
on a contract to provide any goods or services to a public entity, may not submit a response/bid
on a contract with a public entity for the construction or repair of a public building or public
work, may not submit responses/bids on leases of real property to public entity, may not be
awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract
with any public entity, and may not transact business with any public entity in excess of the
threshold amount provided in section 287.017, Florida Statutes, for CATEGORY TWO for a
period of 36 months from the date of being placed on the convicted vendor list.
24. General Requirements:
a) 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) are 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 Attorney's 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
5
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.
b) Dispute resolution: 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.
c) 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 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.
d) Captions. The captions set forth herein are for convenience of reference only and shall not
define, modify, or limit any of the terms hereof.
e) Conflicts in interpretation. The County and Attorney agree that, in the event of conflicting
interpretations of the terms or a term of this Agreement by or between them, the final
interpretation by the County shall apply.
0 Adjudication of Disputes and Disagreements. The County and Attorney agree that all
disputes and disagreements between them shall be attempted to be resolved by a meet and confer
session between representatives of the County and Attorney. If the issue or issues are still not
resolved to the satisfaction of both within 30 days after the meet and confer session, then either
shall have the right to seek such relief as may be provided by this Agreement or by Florida law.
g) Cooperation. 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. The County and Attorney each agree that neither shall be required
to enter into any arbitration proceedings related to this Agreement or any Attachment or
Addendum to this Agreement.
h) 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.
i) 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 usual and customary procedures
required by the circuit court of Monroe County.
j) Non -Discrimination. Attorney shall not discriminate, in its employment practices and in
providing services hereunder, on the basis of race, color, sex, religion, disability, national origin,
ancestry, sexual orientation, gender identity or expression, familial status, or age, and shall abide
by all federal and state laws regarding non-discrimination. Upon a determination by a court of
competent jurisdiction that such discrimination has occurred, this Agreement automatically
terminates without any further action by the County, effective the date of the court order.
Attorney is aware of the provisions of Section 13-101 through 13-106, Monroe County Code,
relating to non-discrimination, and agrees to abide by the Code's nondiscrimination
requirements.
k) Claims for State or Federal Aid. The County and Attorney agree that each shall be, and
is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this
Agreement, provided that all applications, requests, grant proposals, and funding solicitations by
Attorney shall be approved by the County prior to submission.
1) 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.
m) 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.
7
IN WITNESS WHEREOF, the parties have executed this agreement the day and year first above
written.
Ane
Witness
(Print Name:) Annette L. Hill
(SEAL)
Attest: AMY L. HEAVILIN, Clerk
Rissman, Barrekt, Hurt, Donahue & cLain, P.A.
By V Q i
Theodore N. 6bldstein
MONROE COUNTY BOARD
OF COU TY 0 IS NERS
LtOutii'� f�4Foh�u(
MONROE COUNTY ATTORNEY
;ROVE T ,FORM:
CYN I MIA L. MALL
ASS TANT COUNTY ATTORNEY
Date _��. S _a013
RECEIVED
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BELOW. THIS CEIRTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERS), AUTHORIZED
REPRESEMTATWE OR PRODUCER, AND THE CERTIFICATE HOLDER,
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