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06/15/2017 AgreementMEMORANDUM OFFICE OF THE COUNTY ATTORNEY 1111 12" Street, Suite 408, Key West, FL 33040 Phone (305) 292- 3470 /Fax (305) 292 -3516 TO: Pam Hancock Executive Aide to the Clerk FROM: Abra Campo Executive Ad nu ' 4ator DATE: August 25, 2017 SUBJECT: Small Contract — Messer Caparello, P.A. For official BOCC records, attached is a small contract with Messer Caparello, P.A. The firm will provide legal advice and guidance to the BOCC and County employees with regard to requirements for filing financial disclosure forms. This is a duplicate original. The first original was lost in transit when put in the courier from the County Administrator's Office to the Clerk's Office. Also attached is a copy of the Contract Summary showing the first original had been routed to the appropriate departments before obtaining the County Administrator's signature. Also the first original contained scrivener's errors in the amount which are now correct on this attached duplicate original. For that reason on the Contract Summary you will notice that the amount is shown as $49,999.00. The correct amount however, is $49,999.99. ATTACHMENT D.6 COUNTY ADMINISTRATOR CONTRACT SUMMARY FORM FOR CONTRACTS LESS THAN $50,000.00 Contract with: Messer Caparello, P.A. Contract # Effective Date: jmk, 15, � Expiration Date: JVM , Contract Purpose /Description: Legal Services in regards to advice and guidance tome of the B OCC and employees of the Board with li financial discipsuro forms under Chapter 112 nf tht- Florida Stat"tes- Contract is Original Agreement Contract Amendment/Extension Renewal Contract Manager: Robert Shillinger 3470 County Attomey /Stop #7 (Name) (Ext.) (Department/Stop #) CONTRACT COSTS Total Dollar Value of Contract: $ 49,999.00 Current Year Portion: $ 15,000.00 (must be less than $50,000) (If multiyear agreement then requires BOCC approval, unless the total cumulauw amount is less than $i0 00) Budgeted? Yes® No ❑ Account Codes: 001 - 00101 - 530318 - - Grant: $ County Match: $ - ADDITIONAL COSTS Estimated Ongoing Costs: $ /yr For: (Not included in dollar value above) (e.. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Changes Date ut D to in Needed Re ie Department Head 6% / Yes❑ NoEr t� rf Risk Management W �`� "� ? Yes❑ No[� 4 O.M.B. /Purchasing P Yes❑ Nod 3L&6j PYLO&V P4111 County Attorney (6 [Lq�1 Yes❑ NoQ 1 Comments: Page 71 of 74 AGREEMENT BETWEEN MONROE COUNTY AND MESSER CAPARELLO, P.A. THIS AGREEMENT, made and entered into thisl day of June, 2017, 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 Mark Herron of the firm Messer Caparello, P.A. and "ATTORNEY regarding the retention of ATTORNEY by COUNTY to provide legal advice and services. and WHEREAS, it is in the public interest of COUNTY to have legal representation as set out below, WHEREAS, the ATTORNEY has agreed to provide legal representation to the COUNTY as set out below. NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties agree as follows: THE CLIENT The Client is the COUNTY, acting by and through its duly elected and appointed officers and its employees. 2. THE ATTORNEY ATTORNEY is an attorney and member of the firm Messer, Caparello, P.A. whose legally authorized signature appears at the bottom of this Agreement. ATTORNEY is licensed to practice law in Florida. ATTORNEY may not outsource this work without full written disclosure to, and prior written approval from, the COUNTY acting through the County Attorney. TERM OF AGREEMENT This Agreement and representation by ATTORNEY is effective upon execution by ATTORNEY and acceptance and approval by COUNTY in accordance with COUNTY'S policies, ordinances, or governing statutes. The representation shall continue for a period of one year from the date of execution by the second party unless terminated by either the COUNTY, or by the ATTORNEY in accordance with ethical requirements and /or the terms of this Agreement. This agreement may be extended with written approval of the firm and the County Attorney. 4. SCOPE OF THE WORK The Attorney shall provide legal advice and guidance to members of the Board of County Commissioners and employees of the Board with respect to their obligations and requirements to file financial disclosure forms under chapter 112 of Florida Statutes. An attorney client relationship will exist between the attorney and each official and employee receiving advice from the attorney. 4.1 Professional ability to perform work, appointment of contract manager ATTORNEY warrants that Mark Herron 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. Mark Herron 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. ATTORNEY 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 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 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 ATTORNEY has conducted a thorough investigation and determined that neither ATTORNEY nor his or her firm has any ethical impediment, real or potential, including but not limited to conflicts of interest, to representing COUNTY. To the extent that any ethical impediment, real or potential, is discovered or ever arises, ATTORNEY shall immediately inform COUNTY in writing of the impediment (regardless of whether ATTORNEY believes he or she has taken all steps necessary to avoid the impediment and regardless of whether ATTORNEY believes that the impediment is insubstantial or questionable), make full disclosure of the situation to COUNTY, obtain COUNTY'S express, written consent to continue the representation of the other client, and take all other reasonable steps to avoid or mitigate the impediment. Notwithstanding the foregoing, COUNTY understands and agrees that ATTORNEY may in the future — after this agreement has terminated - represent clients before COUNTY in unrelated matters. 6. PAYMENTS TO ATTORNEY ATTORNEY shall submit to COUNTY invoices with supporting documentation acceptable to the Clerk on a schedule as set forth in the contract. The total dollar amount of this contract shall not exceed $49,999.99 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 ATTORNEY on COUNTY'S behalf. 6.1 Attorney Fee (Hourly) ATTORNEY will be paid for his or her services based on the number of hours expended on behalf of COUNTY (rounded to the nearest tenth hour for each time entry), not to include time billable to or compensated by other clients, multiplied by the ATTORNEY'S hourly rate. The following minimum billing documentation and time - keeper requirements are a condition precedent to payment by the COUNTY. 6.2. Non - billable time ATTORNEY will bill COUNTY only for time reasonably and necessarily incurred to render professional services on COUNTY'S behalf in accordance with this Agreement. Time attributable to billing questions is not billable. Time expended by time - keepers who have not been approved by COUNTY is also not billable. 6.3. Hourly Rates, and Changes to hourly rates The ATTORNEY has agreed to rates as more fully set forth below: Approved Time Keepers: Name: Mark Herron Hourly Rate $300.00 With the written approval of the County Attorney, additional time keepers may be utilized by the ATTORNEY and billed at the following rates: Partners $300 Associates $200 Paralegals $125 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. The hourly rate to be changed by the lawyers and paralegals are reviewed annually and should ATTORNEY 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 other clients of ATTORNEY. ATTORNEY does not have a special government rate that is applied to all governmental entities who may be a client of ATTORNEY, but agrees that if ATTORNEY 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 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. 6.51. Duplication of effort Unless 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. However, with advance COUNTY approval, ATTORNEY 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. ATTORNEY is not permitted to use this matter to provide on the job training for a time - keeper. Approval for action on the part of the ATTORNEY 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 ATTORNEY 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 the ATTORNEY, 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 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. 6.7 Cap on payments Payment to the attorney by the County under this contract shall be limited to no more than $49,999.99 in total over the life of the agreement unless the Board of County Commissioners ratifies the agreement and authorizes payments in excess of that amount. ATTORNEY 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 ATTORNEY within fifteen (15) days after the close of each month. ATTORNEY understands that COUNTY requires prompt bills in part to facilitate effective management of the representation and fees. 7.2. Bill format ATTORNEY shall provide detailed, itemized 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 ATTORNEY'S firm (including paralegals, employees of ATTORNEY with their titles, subcontractors, independent contractors, temporary employees, and outsourcing providers). Personnel who are not listed as additional timekeepers will not be paid unless approved in writing under the requirements of this Agreement. 7.2.3 Time Records Record the time expended by each time - keeper separately. In those situations where the minimum 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 It is understood that the billing rate is a blended rate of $300 per hour for all attorneys. 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 "Exhibit A ") and promptly itemized in ATTORNEY'S 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. 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 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 ATTORNEY'S 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. All charges shall be reasonably documented on invoices to demonstrate that the charge is related to this agreement. 7.3.1.3. Photocopying ATTORNEY 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. ATTORNEY 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. 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 Travel Expenses Travel expenses within the ATTORNEY'S local area, defined as a radius of 50 miles from the timekeeper's 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 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 ATTORNEY 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 ATTORNEY 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 p.m., 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 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, outsourced services, etc ATTORNEY is not authorized to retain experts, additional counsel, consultants, support services, or the like, outside ATTORNEY'S law firm, without approval by County Attorney. 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 ATTORNEY'S overhead, which should be included within ATTORNEY'S fee, the determination of which expenses fall into this category are strictly within the discretion of the COUNTY. 7.3.3. Advance approval of expenses ATTORNEY shall obtain approval from COUNTY ATTORNEY before incurring any expense in excess of $1,000.00 if ATTORNEY expects to be reimbursed for that expense. COUNTY, in its discretion, may refuse to pay any expense for which approval was not obtained by ATTORNEY. 7.3.4. Copies of receipts for expenses ATTORNEY shall include copies of receipts for all expenses with the itemized monthly bill. COUNTY may refuse to pay any expense item for which documentation is not provided by ATTORNEY. 7.3.5. Expenses (and fees) after termination Upon termination of the representation, ATTORNEY shall promptly bill COUNTY for any remaining reimbursable expenses and fees. COUNTY may refuse to pay any fees or expenses not billed within 45 days of termination of the representation. ATTORNEY is also expected to cooperate promptly with all aspects of termination and, if applicable, transition to other counsel. Payment for fees and expenses is contingent upon prompt, full cooperation. 7.4. Bill and expense documentation ATTORNEY must maintain supporting documentation for invoices until at least one year after the termination of the representation. This documentation shall be made available by ATTORNEY to COUNTY (or COUNTY'S designated representative, including an accountant, the County Clerk or County Clerk's representative, or legal bill auditor) upon COUNTY'S written request. ATTORNEY agrees to cooperate with any examination of this documentation and ATTORNEY'S fees and expenses, e.g., by responding promptly and completely to any questions COUNTY or its designated representative may have. ATTORNEY shall notify COUNTY in writing at least 60 days in advance of destroying any such records and, in the event that COUNTY requests that they be preserved, shall preserve them at least one additional year or, at the option of the COUNTY, delivered to the COUNTY for storage by the COUNTY, with COUNTY responsible for paying the actual cost of storage. This documentation shall include, for example, original time records, expense receipts, and documentation supporting the amount charged by ATTORNEY for expense items generated by ATTORNEY or his or her firm. COUNTY reserves the right not to pay any fee or expense item for which sufficient documentation or expense item for which sufficient documentation is not available to determine whether the item was necessary and reasonable. 7.5 Entertainment ATTORNEY shall not be reimbursed for costs of entertainment, such as in room movies and alcoholic beverages. Furthermore, only meals for ATTORNEY and/or approved timekeeper shall be reimbursed in accordance with the provisions in this Agreement. 8. PAYMENT TERMS ATTORNEY'S request for payments and reimbursements may be made in either the ATTORNEY'S name or the name of the ATTORNEY'S law firm, as appropriate. ATTORNEY bills complying with this Agreement are due and payable according to the Prompt Payment Act. If the bill materially fails to comply with the requirements of this Agreement, then it is not due and payable until ATTORNEY remedies its deficiencies. 9. MATTER MANAGEMENT COUNTY will expect that all communications between ATTORNEY, and additional timekeepers, and COUNTY will be reviewed by ATTORNEY and that ATTORNEY 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 1111 12' Street, Suite 408 Key West, Florida 33040 (305) 292 -3470 (office) (305) 292 -3516 (facsimile) Shillin ar- Bobgmonroecounty -fl.gov 9.1. Case monitoring COUNTY will be advised promptly by ATTORNEY of all significant facts and developments in the matter so that COUNTY may manage the matter effectively and make informed decisions about strategy, tactics, settlement, scheduling, costs, and other related matters. COUNTY will promptly receive from ATTORNEY copies of all orders, opinions, pleadings, briefs, memoranda (internal and external), correspondence, and any other document material to the subject matter of this Agreement, such that the COUNTY will have a current, up -to- date, "mirror" copy of the 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 shall be lead counsel on the matter; however, ATTORNEY agrees that the lawyers employed by the Monroe County Attorney's Office may enter an appearance as co- counsel in the matter. 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 — confidential, 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 behalf of COUNTY, including work product prepared at COUNTY'S expense, for other clients of ATTORNEY or his or her firm, without COUNTY'S advance written approval. 10.2 No use of County for marketing purposes ATTORNEY is not authorized to identify COUNTY as a COUNTY, e.g., for purposes of marketing or advertising, without COUNTY'S 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 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 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. DISPUTE RESOLUTION ATTORNEY and COUNTY agree that if a dispute arises between them that neither shall be required to enter into any arbitration proceedings related to this Agreement. 12.1. Disputes regarding Attorney fees or expenses ATTORNEY and COUNTY agree that all disputes regarding ATTORNEY'S fees or expenses are to be resolved pursuant to the procedures and practices for mediation by the Attorney Consumer Assistance Program of the Florida Bar. 12.2. Disputes regarding i nterpretation COUNTY and ATTORNEY agree that all disputes and disagreements between them regarding interpretation of the Agreement shall be attempted to be resolved by a meet and confer session between representatives of COUNTY and ATTORNEY. If the issue or issues are still not resolved to the satisfaction of both within thirty (30) days after the meet and confer session, then either shall have the right to terminate the Agreement upon ten (10) business days notice in writing to the other party. 12.3 Legal or Administrative procedures In the event any administrative or legal proceeding is instituted against either the COUNTY or ATTORNEY relating to the formation, execution, performance, or breach of this Agreement, the COUNTY and ATTORNEY each agree to participate, to the extent required by the other, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement; institution of any administrative or legal proceeding shall constitute immediate termination of this Agreement. ATTORNEY agrees to forward copies of all documents in his or her possession related to the matter, which is the subject of this Agreement to COUNTY at the time of filing any administrative or legal proceeding. 12.4 ATTORNEY'S Fees and Costs In the event any administrative proceeding or cause of action is initiated or defended by the COUNTY or ATTORNEY relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to an award of reasonable ATTORNEY'S fees, and court costs, as an award against the non - prevailing party, and shall include reasonable ATTORNEY'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 REOUIREMENT Any notice required or permitted under this agreement shall be in writing and hand delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the following: FOR COUNTY County Administrator and County Attorney 1100 Simonton Street 1111 12' Street, Suite 408 Key West, FL. 33040 Key West, FL 33040 FOR ATTORNEY Mark Herron, Esq. Box 15579 Tallahassee, FL 32317 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 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. 16. FLORIDA GOVERNMENT -IN- THE - SUNSHINE LAW ATTORNEY 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. 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. Public Records Compliance. ATTORNEY 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 ATTORNEY 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 ATTORNEY 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 ATTORNEY. Failure of the ATTORNEY 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 attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The ATTORNEY 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 ATTORNEY 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 the ATTORNEY 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 the ATTORNEY transfers all public records to the County upon completion of the contract, the ATTORNEY shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the ATTORNEY keeps and maintains public records upon completion of the contract, the ATTORNEY 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 the ATTORNEY of the request, and the ATTORNEY must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the ATTORNEY 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 the ATTORNEY. A ATTORNEY who 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 119. 10, Florida Statutes. The ATTORNEY 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 ATTORNEWCONTRACTOR 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 12 Street, SUITE 408, KEY WEST, FL 33040. 18. 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 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 ATTORNEY agrees to forward to COUNTY along with Notice of Termination or upon receipt of Notice of Termination, depending upon which party terminates the Agreement, copies of all documents in his or her possession of any nature whatsoever related to the ATTORNEY'S representation of COUNTY or obtained due to ATTORNEY'S representation of COUNTY. 19.2 Restriction on Communications ATTORNEY agrees not to communicate with the public, including the press, about COUNTY or about this matter. 20. SEVERABILITY If a term, covenant, condition or provision of this Agreement shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provision of this Agreement would prevent the accomplishment 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. 21. CAPTIONS The captions set forth herein are for convenience of reference only and shall not define, modify, or limit any of the terms hereof. 22. LEGAL OBLIGATIONS AND RESPONSIBILITIES• NON - DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES This Agreement is not intended to relieve, nor shall it be construed as relieving, either the COUNTY or ATTORNEY from any obligation or responsibility imposed upon each by law except to the extent of actual and timely performance thereof by the other, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further this Agreement is not intended to authorize, nor shall it be construed as authorizing, the delegation of the constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida Constitution, state statutes, case law, and, specifically, the provisions of Chapter 125, Florida Statutes. 23. RECORDS ATTORNEY shall 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 ATTORNEY to maintain appropriate records to insure a proper accounting of all collections and remittances in this matter. ATTORNEY 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. PUBLIC ACCESS The COUNTY and ATTORNEY shall allow and permit reasonable access to and inspection of, all documents, papers, letters, or other materials subject to the Florida Public Records Law, as provided in Chapter 119, Florida Statutes, and made or received by the them, unless specifically exempted by State Statute, Rules and Regulations of The Florida Bar, or case law. COUNTY shall have the right to cancel this agreement upon violation of this provision by ATTORNEY. 25. MONROE COUNTY CODE ETHICS PROVISION ATTORNEY warrants that he or she has not employed, retained or otherwise had act on his behalf any former COUNTY officer or employee in violation of Section 2 of Ordinance No. 10 -1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 10 1990. For breach or violation of this provision the COUNTY may, at its discretion, terminate this Agreement without liability and may also, at its discretion, deduct from the sums owed under the Agreement, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former or present COUNTY officer or employee. COUNTY employees and officers are required to comply with the standards of conduct delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts, doing business with one's agency, unauthorized compensation, and misuse of public position, conflicting employment or contractual relationship, and disclosure of certain information. 26. PUBLIC ENTITY CRIME STATEMENT Florida law provides that person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on an agreement to provide any goods or services to a public entity, may not submit a bid on a agreement with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, sub contractor, or consultant under a agreement with any public entity, and may not transact business with any public entity in excess 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 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. 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 ATTORNEY'S obligations under this agreement, ATTORNEY shall abide by all statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this Agreement, including those now in effect and hereafter adopted. Any violation of said statutes, ordinances, rules or regulations shall constitute a material breach of this Agreement and shall entitle COUNTY to terminate this Agreement immediately upon delivery of written notice of termination to ATTORNEY. 31. LICENSING ATTORNEY warrants that ATTORNEY and additional timekeepers do presently have, shall have prior to commencement of work under this Agreement, and at all times during said work, all required licenses and permits whether federal, state, County or City. 32. NON - DISCRIMINATION ATTORNEY agrees that he or she will not discriminate against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. ATTORNEY agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 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; 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 33. NON - RELIANCE BY NON - PARTIES No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the COUNTY and ATTORNEY agree that neither the 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. 34. 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. 35. COUNTY AUTHORITY This Agreement has been entered into pursuant to the authority of and limitations imposed by Section 2- 58(b)(3) of the Monroe County Code. Accordingly, the County Administrator is authorized to execute the agreement on behalf of the County provided that the total payments under this agreement to the attorney do not exceed $49,999.99. 36. HOLD HARMLESS AND INSURANCE ATTORNEY certifies that it maintains a minimum professional liability coverage for ATTORNEY and additional timekeepers in the amount of $5 Million. 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. 37. NO PERSONAL LIABILITY No covenant or obligation contained in this Agreement shall be deemed to be a covenant or obligation of any member, officer, agent or employee of the Board of County Commissioners of Monroe County in his or her individual capacity and no member, officer, agent or employee of the Board of County Commissioners of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 38. 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. 39. EXECUTION BY COUNTY ATTORNEY Due to litigation, court scheduling constraints and in order to allow ATTORNEY 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, ATTORNEY 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. B Roman Gastesi County Administrator for Monroe County, Florida On behalf of the Board of County Commissioners of Monroe County, Florida, subject to the authorization of and limitations imposed by section 2- 58(b)(3) of the Monroe County Code of Ordinances Date: U I S 7 MESSER By:_ /y Mark Herron, DATE: M - er and Authorized Representative 14 . ao 17 MONROE COUNTY ATTORNEY OFIP VED AS Tq FORM: 0611 r, rl Ogg CHRIS I E M. LIMB RT- BARROWS ASSISTAf4 COUNTY ATTORNEY Date 10 4 1 4 � I EXHIBIT "A" Copy of Rule 4 -1.7 (a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.