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09/21/2016 Agreement i AMY HEAVILIN, CPA CLERK OF CIRCUIT COURT & COMPTROLLER t- \ MONROE COUNTY,FLORIDA DATE: October 4, 2016 TO: Bob Shillinger, County Attorney ATTN: Kathy Peters, CP, County Attorney's Office FROM: Cheryl Robertson Executive Aide to the Clerk of Court & Comptroller BR At the September 21, 2016 Board of County Commissioner's meeting the Board granted approval and authorized execution of Item P7 Approval of a contract for legal services with Cole Scott Kissane, PA retroactive to September 19, 2016 to provide for continued legal representation by Chris Ambrosio until his replacement is trained. cc: County Attorney (electronic copy) Finance (electronic copy) File 500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663 3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025 88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fax:305-852-7146 A AGREEMENT BETWEEN MONROE COUNTY AND COLE, SCOTT& KISSANE,gq P.A. THIS AGREEMENT, made and entered into this day day of September,2016, 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 COLE, SCOTT & KISSANE, P.A. ("CSK") regarding the retention of CSK by COUNTY to provide legal representation,consultation,advice and services. WHEREAS, it is in the public interest of COUNTY to have legal representation as set out below, and WHEREAS, CSK has agreed to provide legal representation, consultation, advice and services to the COUNTY as set out below. 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,acting by and through its duly elected and appointed officers and its employees. 2. THE ATTORNEY CSK is a professional association named above and whose legally authorized signature appears at the bottom of this Agreement. CSK is licensed to practice law in Florida. CSK has been retained specifically because CSK has hired Chris Ambrosio who was an Assistant County Attorney in the County Attorney's Office to be an associate attorney at CSK. Mr. Ambrosio's legal services are desired by the COUNTY in ensuring that there is no gap in representation and consistency on the matters he handled while employed with the COUNTY. CSK may not outsource this work without full written disclosure to, and prior written approval from,the COUNTY acting through the County Attorney. 3. TERM OF AGREEMENT This Agreement and representation by CSK is effective upon execution by CSK and acceptance and approval by COUNTY in accordance with COUNTY's policies, ordinances, or governing statutes. The representation shall continue for a period of six months from the date of execution by the second party unless terminated in less than six months by either the COUNTY, or by CSK in accordance with ethical requirements and/or the terms of this Agreement. This Agreement may be extended with written approval of CSK and the County Attorney. 4. SCOPE OF THE WORK CSK representation is limited to providing legal consultation,advice and services to COUNTY in connection with the matters and types of matters previously handled by Mr.Ambrosio while he was employed as an Assistant County Attorney. Mr. Ambrosio is expected to consult and advise the COUNTY staff on matters he previously handled and on the types of matters he previously handled and assist with the training of his replacement attorney. . 4.1 Professional ability to perform work,appointment of contract manager CSK warrants that Chris Ambrosio 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. Chris Ambrosio shall 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. CSK warrants that 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. 4.2 Management of time keepers CSK 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 all ethical obligations set forth in the Rules of Professional Responsibility of the Florida Bar. 5. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS OF INTEREST BEFORE INITIATING REPRESENTATION CSK has conducted a thorough investigation and determined that CSK has no 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, CSK shall immediately inform COUNTY in writing of the impediment(regardless of whether CSK believes it has taken all steps necessary to avoid the impediment and regardless of whether CSK believes that the impediment is insubstantial or questionable), make full disclosure of the situation to COUNTY, obtain the County Commission's express, written consent to continue the representation of the other client, and take all other reasonable steps to avoid or mitigate the impediment.Notwithstanding the foregoing,COUNTY understands and agrees that CSK may in the future— after this agreement has terminated - represent clients before and against the COUNTY in unrelated matters. 6. PAYMENTS TO ATTORNEY CSK shall submit to COUNTY invoices with supporting documentation acceptable to the Clerk on a schedule as set forth in the contract. The total dollar amount of this contract shall not exceed $50,000.00 without prior approval for the County Commission. 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. All services provided with respect to this agreement will be billed on a current basis with monthly invoices sent to you that will contain full detail as to the specific effort, hourly rates, and reimbursable expenses incurred by CSK on COUNTY's behalf. 6.1 Attorney Fee(Hourly) CSK will be paid for legal 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 CSK'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 CSK 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 Changes to hourly rates CSK has agreed to rates as more fully set forth below: Approved Time Keepers: Name: Hourly Rate: Chris Ambrosio $200.00 With the written approval of the County Attorney,additional time keepers may be utilized by CSK and billed at the following rates: Partners $300 Associates $200 Paralegals $110 CSK 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. The hourly rate to be changed by the lawyers and paralegals are reviewed annually and should CSK determine that a rate adjustment is warranted for this engagement the COUNTY will be notified in advance of any change. 6.4. Discounts to other Clients The rates set forth above are those current hourly rates charged to some other governmental clients of CSK. CSK does not have a singular government rate that is applied to all governmental entities who may be a client of CSK, but agrees that if CSK creates a special government rate for the time keepers set forth herein or subsequently approved,that rate shall apply to COUNTY in this matter. —--- 6.5.Time keepers As used in this Agreement,the term"time keeper"shall include CSK attorneys and staff 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 COUNTY approval is obtained, CSK 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. However, with advance COUNTY approval, CSK may have more than one time-keeper present at the administrative hearing in this matter and each attorney and timekeeper shall be paid at their rate established in paragraph number 6.3. In the event that more than one person attends, only the time of the person with the highest rate will be billable. CSK is not permitted to use this matter to provide on the job training for a time-keeper. Approval for action on the part of CSK may be accomplished by letter, email, or verbally by the County Attorney or his/her designee, if verbal approval is given the attorney may verify that approval by email to CSK or CLERK(as necessary for billing purposes). 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 CSK, to evidence the then-current circumstances. Additional time-keepers may be added by amendment to this agreement and approval by the Board of County Commissioners. In the event that additional time-keepers providing services,which are to be billed to COUNTY,are to be added,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 fo the extent CSK makes use of existing work product, e.g., in the form of research previously performed for another client, then CSK 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 CSK shall comply with the following requirements as to billing 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 CSK within fifteen (15) days after the close of each month. CSK understands that COUNTY requires prompt bills in part to facilitate effective management of the representation and fees. 7.2. Bill format CSK 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, if not indicated in the title of the matter, for which legal services are being performed ; 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 CSK (including paralegals, employees of CSK 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. 7.3. 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"Exhibit A")and promptly itemized in CSK's monthly bill: 7.3.1 Reimbursable ex ep nses 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 expcinc approved in advance by COUNTY. In order to receive reimbursement Attorney must attach copy of invoice from overnight or expedited delivery, couriers, long distance carriers and indicating which calls are related to this agreement. All charges shall be reasonably documented on invoices to demonstrate that the charge is related to this agreement. 7.3.1.1. Expedited or emergency services CSK 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 CSK's failure to manage the matter efficiently. 7.3.1.2. Computerized research CSK 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. CSK is expected to pass through to COUNTY any discounts or other arrangements that reduce the cost of computerized services. All charges shall be reasonably documented on invoices to demonstrate that the charge is related to this agreement. 7.3.1.3. Photocopying CSK is encouraged to use outside copying services if this will reduce the cost of large-volume copying, provided that these expenses are efficient, cost-effective, and incurred and billed in accordance with this Agreement. CSK is responsible for insuring that all copying complies with copyright obligations. All charges shall be documented on invoices to demonstrate that the charge is related to this agreement. 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. CSK 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 Travel Expenses Travel expenses outside the local area may only be reimbursed if the travel was approved in advance by COUNTY. Reimbursable travel expenses 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 is reasonable, at the lowest available rate). Cab fare to and from the originating airport is reimbursable. Expenses will be reimbursed in accordance with the applicable provisions of Florida Statute 112.061 for "approved travelers" and of the Monroe County Code Article XXVI and shall be summarized on the Monroe County Travel Form by CSK with all applicable receipts attached thereto("See Exhibit A"). -------7.3.1.6 Travel Time Time spent in transit outside Attorney's local area may be billed only if CSK or time-keeper is unable to avoid traveling by using other forms of communication or it is determined by the County Attorney 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 allowed with approval from County Attorney. In order to be reimbursed for airline tickets,the boarding pass shall be attached to the invoice. Approved travel time during normal business hours, defined weekdays from 8:30 a.m. to 6:00 pm., will be billed at the hourly rate listed for the timekeeper 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-reimbursable expenses The following expenses will in no event be reimbursable without 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 CSK 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,outsourced services.etc. CSK is not authorized to retain experts, additional counsel, consultants, support services, or the like, outside of CSK, without approval by County Attorney. If agreed to CSK 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 CSK. CSK will manage others to obtain cost-effective services for COUNTY. Unless otherwise agreed in writing, CSK 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 CSK and COUNTY. 7.3.2.3 Temporary Staffing CSK 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 CSK,CSK may not charge COUNTY more than the actual cost paid by CSK. 7.3.2.4. Expenses not passed through at actual cost COUNTY will not pay any markup for expenses. COUNTY will only reimburse the CSK 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 CSK's overhead, which should be included within CSK's fee, the determination of which expenses fall into this category are strictly within the discretion of the COUNTY. 7.3.3. Advance approval of expenses CSK shall obtain approval from County Attorney before incurring any expense in excess of $1,000.00 if CSK expects to be reimbursed for that expense. COUNTY, in its discretion, may refuse to pay any expense for which approval was not obtained by CSK. 7.3.4.Copies of receipts for expenses CSK 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 CSK. 7.3.5. Expenses(and fees)after termination Upon termination of the representation, CSK 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. CSK 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 CSK must maintain supporting documentation for invoices until at least one year after the termination of the representation. This documentation shall be made available by CSK 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. CSK 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 CSK for expense items generated by CSK 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. 7.5 Entertainment CSK shall not be reimbursed for costs of entertainment, such as in room movies and alcoholic beverages. Furthermore, only meals for CSK and/or approved timekeeper shall be reimbursed in accordance with the provisions in this Agreement. 8. PAYMENT TERMS CSK's request for payments and reimbursements may be made in the name of CSK, as appropriate. CSK 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 CSK remedies its deficiencies. 9. MATTER MANAGEMENT COUNTY will expect that all communications between CSK, and additional timekeepers, and COUNTY will be reviewed by CSK and that CSK will serve as the point of contact for this matter, including billing questions. The COUNTY contact for this Agreement shall be: Robert Shillinger, Esq. Monroe County Attorney 1 l 11 12'h Street, Suite 408 Key West, Florida 33040 (305)292-3470(office) (305)292-3516(facsimile) Shillinger-Bob@monroecounty-fl.gov 9.1. Case monitoring COUNTY will be advised promptly by CSK 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 CSK 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, "minor" copy of the COUNTY's file maintained by CSK. For discovery materials or exhibits that are lengthy, CSK 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, CSK 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 CSK shall discuss all significant issues of strategy and tactics, including motions, discovery, pleadings, briefs, trial preparation, experts, and settlement, with COUNTY before implementation. CSK is expected to exercise independent professional judgment. 9.3. ATTORNEY cooperation CSK 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 CSK's bills and handling of the matter. 9.4. COUNTY cooperation CSK shall be lead counsel on the matter; however, CSK agrees that the lawyers employed by the Monroe County Attorney's Office may enter an appearance as co-counsel in the matter. CSK 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 CSK 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. CSK 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 CSK from using information obtained from or on behalf of COUNTY, including work product prepared at COUNTY's expense, for other clients of CSK or his or her firm,without COUNTY's advance written approval. 10.2 No use of County for marketing purposes CSK is not authorized to identify COUNTY for purposes of marketing or advertising, without COUNTY's approval. 11. OWNERSHIP OF ATTORNEY FILES AND WORK PRODUCT CSK understands that all files and work product prepared by CSK at the expense of COUNTY(or for which COUNTY is otherwise billed) is the property of COUNTY. Without COUNTY's written approval,this work product may not be used by CSK or his or her firm nor disclosed by CSK or his or her firm to others, except in the normal course of CSK's representation of COUNTY in this matter. CSK agrees that COUNTY owns all rights, including copyrights, to materials prepared by COUNTY or by CSK on behalf of COUNTY. CSK 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). CSK shall provide COUNTY with prompt access to(including the ability to make copies of)all CSK files and work product, regardless of whether the representation or matter is ongoing and whether CSK fees and expenses have been paid in full. 12. DISPUTE RESOLUTION CSK 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 Attorney fees or expenses CSK and COUNTY agree that all disputes regarding CSK'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 CSK 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 CSK. 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 CSK relating to the formation, execution, performance, or breach of this Agreement,the COUNTY and CSK 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. CSK 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 CSK's Fees and Costs In the event any administrative proceeding or cause of action is initiated or defended by the COUNTY or CSK relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to an award of reasonable CSK's fees, and court costs, as an award against the non- prevailing party,and shall include reasonable CSK's 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: FOR COUNTY County Administrator and County Attorney 1100 Simonton Street PO Box 1026 Key West, FL 33040 Key West, FL 33040 • FOR CSK Johnson K.Thomas Cole Scott&Kissane,P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami,Florida 33156 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 CSK with respect to the subject matter hereof is contained in this Agreement. This Agreement supersedes all oral and written proposals and communications between the COUNTY and CSK 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-SUNSHINE LAW CSK agrees that, unless specifically exempted or excepted by Florida law, the provisions of Section 286.011, Florida Statutes,generally require full and public discussion of matters to be voted upon by the Board of County Commissioners. CSK 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 CSK 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. CSK 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. Public Records Compliance. CSK must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The COUNTY and CSK shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other"public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the COUNTY and CSK in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the CSK. Failure of CSK to abide by the terms of this provision shall be deemed a material breach of this contract and the COUNTY may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attomey's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. CSK is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Pursuant to F.S. 119.0701 and the terms and conditions of this contract,the CSK is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if CSK does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the ATTORNEY or keep and maintain public records that would be required by the County to perform the service. If CSK transfers all public records to the County upon completion of the contract, CSK shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If CSK keeps and maintains public records upon completion of the contract, CSK shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify CSK of the request, and CSK must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If CSK does not comply with the COUNTY's request for records, the COUNTY shall enforce the public records contract provisions in accordance with the contract, notwithstanding the COUNTY's option and right to unilaterally cancel this contract upon violation of this provision by CSK. If CSK fails to provide the public records to the County or pursuant to a valid public records request within a reasonable time may be subject to penalties under section I19.10,Florida Statutes. CSK shall not transfer custody, release, alter, destroy or otherwise dispose of any public records unless or otherwise provided in this provision or as otherwise provided by law. IF THE ATTORNEY/CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF-CHAPTER 119,FLORIDA STATUTES,TO THE ATTORNEY/CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT. CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305-292-3470 BRADLEY-BRIAN(a,MONROECOUNTY-FL.GOV, MONROE COUNTY ATTORNEY'S OFFICE 1111 12TH Street.SUITE 408.KEY WEST,FL 33040. 18. NO ASSIGNMENTS CSK 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. 19.1 Documents forwarded to COUNTY CSK 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 CSK's representation of COUNTY or obtained due to CSK's representation of COUNTY. 19.2 Restriction on Communications CSK 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 CSK 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 CSK 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 CSK shall keep such records as are necessary to document the performance of its services as set forth in 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 CSK to maintain appropriate records to insure a proper accounting of all collections and remittances in this matter. CSK shall be responsible for repayment of any and all reasonable 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. MONROE COUNTY CODE ETHICS PROVISION CSK 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. 25. 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 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. CSK warrants the neither CSK nor any authorized time keeper has been named to the convicted vendor list. 26. ANTI-KICKBACK CSK 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. 27. MODIFICATIONS AND AMENDMENTS 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 CSK in the same manner as this Agreement. 28. INDEPENDENT CONTRACTOR At all times and for all purposes hereunder, CSK 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 CSK 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. 29. COMPLIANCE WITH LAW In carrying out CSK's obligations under this agreement, CSK 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. 30. LICENSING CSK warrants that CSK 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. 31. NON-DISCRIMINATION CSK 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. CSK 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: 1)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) Monroe 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; II) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of,this Agreement. 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 CSK agree that neither the COUNTY nor CSK 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 CSK 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 CSK certifies that it maintains a minimum professional liability coverage for CSK and additional timekeepers in the amount of$5 Million. CSK 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 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. 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 CSK may execute this Agreement by signing any such counterpart. 38. EXECUTION BY COUNTY ATTORNEY Due to litigation, court scheduling constraints and in order to allow CSK to begin representation in a timely manner this agreement may be executed by the County Attorney prior to final approval of the Board of County Commissioners; in the event that the agreement is not approved by the Board of County Commissioners, CSK shall submit an invoice for the time and expenses incurred from the date of execution by the County Attorney until the Board of County Commissioners voted not to approve this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the day and date first written above. By: Ro ert B. Shillinger County Attorney or Monroe County, Florida Date: ct/D 0 THE BOARD OF COUNTY COMMISSIONERS hereby ratify the foregoing Agreement between Monroe County and COLE, SCOTT&KISSANE,P.A. (SEAL) BOARD OF COUNTY COMMISSIONERS AMY HEAVILIN, Clerk OF MONROE COUNTY,FLORIDA I i �t = , / Mayor &I- M .>.Date: 9/9/Rt7/(0 COLE, SCOTT&KISSAl�Y�,PA.: N NI 2 0 -n \� 0 By: ` � \ -� -or. O m Daniel J. Kissane, s"V n� 'LUI..�= Authorized Representative ,-i• !K o_ F G DATE: 1 ' I 3-Ib r.^ z. r- r s 4, co > ut - L UINC:d C::'Ir1Y ATTO EY ry_±inn tO F M: n.HI B.SHy.L...';;-1ER.ar _.Dale ..,- ` EXHIBIT"A" : , ' §I§ i . ! I | ) B § § ■ � 0k @ ■ , | �r ■ i } | § S | , | ■ | ,| 7 | # .. , | f|| » |7 § |! . Ili ||O■ k 1 g pill k 2 § % | | 1 | q d \ ! . . || . ■ | iu| E § § \ I ; § I -|| ■ � ; |||■ - ■ | | I '| | : § § 1. ;:a2 . 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