Loading...
Item N11Meeting Date: June 10, 2015 Bulk Item: Yes xx No Division: County Attorney Staff Contact: Bob Shillinger 305-292-3470 AGENDA ITEM WORDING: Approval of First Amendment to Agreement between Monroe County and Nabors, Giblins & Nickerson, P.A. (NGN) related to bond validation and related issues. ITEM BACKGROUND: The County has a contract with its bond counsel, the law firm of Nabors, Giblin & Nickerson, P.A. to represent the County in bond validation matters. Since that contract was entered into on April 17, 2013, two of the attorneys listed as timekeepers have become partners in the firm which has increased their rates from $200 per hour to $250 per hour. The two time keepers at issue are Lynn Hoshihara and Carly Schrader. The County and the Key Largo Wastewater Treatment District (KLWTD) have entered into an interlocal agreement to reallocate Mayfield grant funds from the KLWTD to the County in exchange for 304 funds. As a condition of the ILA, both entities will submit the agreement to a bond validation proceeding and split the cost of that proceeding evenly. This amendment with NGN is necessary to start that process. PREVIOUS RELEVANT BOCC ACTION: 5/20/15, the BOCC approved ILA with KLWTD. On 11/18/14, the BOCC authorized County Attorney to execute conflict waiver letter dated 10/31/14 to allow NGN to represent both the County and the KLWTD in this matter. On 4/17/13, the BOCC approved Agreement with NGN related to bond validation and related issues. --- - ----------------- - CONTRACT/AGREEMENT CHANGES: Increase in rate of $50 per hour for attorneys Hoshihara • Schrader. -------------------- ----------- STAFF RECOMMENDATIONS: Approval. -------------------- REVENUE PRODUCING: no AMOUNT PER MONTH Year APPROVED BY: County Atty,,-�OMB/Purchasing — Risk Management Not Required _ F-1-1 &I I 1 M F Revised 1/09 First Amendment to Agreement Dated April 17, 2013 Between Monroe County and Nabors, Giblin, Nickerson, P.A. Related to Bond Validation and Related Issues On this day of June, 2015, the Board of County Commissioners of Monroe County, Florida, as the legislative and governing body of Monroe County, Florida, and in accordance with the powers enumerated in Section 125.01, Florida Statutes ("County") and the law firm of Nabors, Giblin, & Nickerson, P.A. ("Attorney"), hereby entered into this First Amendment to their agreement dated April 17, 2013. NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties amend their agreement of April 17, 2013, as follows: 6.3. Hourly Rates and Changes to hourly rate Hourly rate for Attorney and additional Timekeepers will be set at: Approved Time Keepers: Name: Hourly Rate: Gregory T. Stewart $250.00 Harry Chiles $250.00 Lynn Hoshihara $250.00 Carly Schrader $250.00 Heath Stokley $200.00 Attorney will charge no more than the stated hourly rate quoted above throughout the duration of the representation on all cases covered by this Agreement, unless otherwise agreed to in writing and approved by the County in the same manner as in this First Amendment. All other provisions of the April 17, 2013, which are not amended herein, shall remain in full force and effect. This First Amendment shall become effective when executed by both the Attorney and the Board of County Commissioners of Monroe County, Florida. IN WITNESS WHEREOF, the parties have caused this lease to be executed this day of .2015. (SEAL) ATTEST: AMY HEAVILIN„ CLERK By Deputy Clerk Witness for Attorney Signature Printed Name Date: Address BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor Danny L. Kolhage NABORS, GIBLIN & NICKERSON, P.A. Signature Printed Name Date: TALLAHASSEE FORT MYERS 1500 Mahan Drive 12731 World Plaza Lane Suite 200 Nabo Suite 2 Tallahassee, Florida 32308 rs Fort Myers, FlorldaV907 (850) 224-4070 Tel (239) 288-4027 Tel (850) 2244073 Fax Giblin (239) 288-4057 Fax FORT LAUDERDALE TAMPA 110 East Broward Boulevard Suite 1700 NickersonpA. 2502 Rocky Point Drive Suite IM Fort Lauderdale, Florida 33301 Temps, Florida 33607 (954) 3LS-3852 Tel (813) 281-2222 Tel (813) 28i-=9 Fax Reply to Tallahassee May 28, 2015 Via Electronic Mail Bob Shillinger Monroe County Attorney 1111 12th Street, Suite 408 Key West, Florida 33040 Re: Bond Validation Relating to the Internal Agreement Between Monroe County and Key Largo Wastewater Treatment Districi (Resequence the Distribution of Mayfield Grant Funding) Pursuant to our discussions, I have had an opportunity to review the material relating to the potential validation of certain indebtedness relating to an Interlocal Agreement between Monroe County and Key Largo Wastewater Treatment District relating to the resequence of the distribution of Mayfield Grant Funding. I have received a copy of the Interlocal Agreement which was approved on April 21, 2015. The firm would be pleased to represent Monroe County in the validation of the indebtedness related to that Interlocal Agreement. It is our understanding that the costs may be shared between Monroe County and the Key Largo Wastewater Treatment District ("Key Largo"). Pursuant to the agreement entered into between the firm and the Board of County Commissioners of Monroe County on April 17, 2013, we would continue to operate under the terms of that agreement (the "Representation Agreement"). However, under section 6.3 of the Representation Agreement, the approved time keepers were identified and rates assigned to them. The only significant change relating to those approved time keepers are that Lynn Hoshihara and Carly Schrader have now made partners of the firm and their hourly rate has been increased to $250.00. 1 anticipate that Lynn Hoshihara would be the only other attorney working with me on the validation in this matter. Bob Shillinger May 28,2015 Page 2 Please let me know what would need to be done to adjust the hourly rates. Otherwise, we would provide • services consistent with the Representation Agreement. We also would submit all invoices to you and the payment would be coordinated with Key Largo. If you prefer a different approach, please let me know. Additionally, actual costs incurred on behalf of Monroe County in the validation proceeding, we would ask be reimbursed. These would include: copy and fax costs, long distance telephone costs, express mail and on-line research expenses. Travel expenses will be reimbursed in accordance with the provisions governing the travel of public officers and employees contained in Section 112.06 1, Florida Statutes. Time in travel would not be charged. Sincerelk k T. Stewart GTS:pad AGREEMENT BETWEEN MONROE COUNTY AND NABORS, GIBLIN & NICKERSON, P.A. RELATED TO BOND VALIDATION AND RELATED ISSUES THIS AGREEMENT, made and entered into this % ? day of , 2013, A.D., 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, Nabors, Giblin & Nickerson, P.A., ("ATTORNEY"), a professional Association licensed in the State of Florida, hereby enter into this Agreement regarding the retention of ATTORNEY by COUNTY to provide legal advice and services. NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties agree as follows: 1. THE CLIENT The Client is the COUNTY, and to the extent ethically permissible, it's elected and appointed officers and its employees, unless COUNTY advises ATTORNEY otherwise. 2. THE ATTORNEY ATTORNEY is the individual or professional association named above and whose legally authorized signature appears at the bottom of this Agreement. ATTORNEY is licensed to practice law in all jurisdictions relevant to this matter. ATTORNEY has been retained specifically because ATTORNEY is understood by COUNTY to be able to handle this matter. If ATTORNEY practices with others who may also provide services to COUNTY, he or she understands that COUNTY expects that ATTORNEY will be responsible for managing the representation, assuring compliance of others with the terms of this Agreement and ethical requirements, preparing and substantiating all bills, and communicating with COUNTY. ATTORNEY may not delegate or outsource this work without full written disclosure to, and written approval from, the COUNTY. 3. TERM OF AGREEMENT This Agreement and representation by ATTORNEY is effective upon execution by ATTORNEY and acceptance and approval by COUNTY in accordance with COUNTY'S policies, ordinances, or governing statutes. The representation shall continue until terminated by either the COUNTY, or by the ATTORNEY in accordance with ethical requirements and/or the terms of this Agreement. 4. SCOPE OF THE WORK ATTORNEY shall provide legal services and advice to COUNTY regarding issues as set out more specifically in Attachment "A" to this agreement. ATTORNEY will be assigned new matters by the COUNTY ATTORNEY from time to time during the term of the agreement, those matters shall be included under this Agreement when assigned by the County Attorney in writing and accepted in writing by the Board of County Commissioners and the Clerk of Court is notified of the addition of the matter. The new matter shall be given a new name and the matter shall be billed under that name. 4.1 Professional abilitv to perform work. appointment of contract manaizer ATTORNEY warrants that he or she is authorized by law to engage in the performance of the activities herein described, subject to the terms and conditions set forth in these contract documents. ATTORNEY shall designate an individual attorney to be the contract manager for each matter and the contract manager shall at all times exercise independent, professional judgment and shall assume professional responsibility for the services to be provided. ATTORNEY warrants that he or she and the authorized time keepers are authorized by law and the Rules and Regulations of The Florida Bar to engage in the performance of the activities encompassed by this Agreement. If ATTORNEY is a member of a law firm, either as partner, shareholder, associate, or other relationship, ATTORNEY warrants that he or she is authorized to enter into this Agreement by the law firm. 4.2 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 ethical obligations. 5. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS OF INTEREST BEFORE INITIATING REPRESENTATION ATTORNEY has conducted a thorough investigation and determined that neither ATTORNEY nor his or her firm has any ethical impediment, real or potential, including but not limited to conflicts of interest, to representing COUNTY. To the extent that any ethical impediment, real or potential, is discovered or ever arises, ATTORNEY shall immediately inform COUNTY in writing of the impediment (regardless of whether ATTORNEY believes he or she has taken all steps necessary to avoid the impediment and regardless of whether ATTORNEY believes that the impediment is insubstantial or questionable), make full disclosure of the situation to COUNTY, obtain COUNTY'S express, written consent to continue the representation of the other client, and take all steps requested by COUNTY to avoid or mitigate the impediment. ATTORNEY understands that, if a direct or indirect conflict of interest arises which, in the opinion of the COUNTY, cannot be avoided or mitigated under the Rules of Professional Conduct of The Florida Bar, COUNTY may, in its discretion, (a) obtain reimbursement from ATTORNEY for all fees and expenses paid to ATTORNEY in this matter; (b) obtain cancellation of all amounts allegedly owed by COUNTY to ATTORNEY; and (c) obtain reimbursement for consequential expenses incurred by COUNTY, including the cost of replacement counsel. 6. PAYMENTS TO ATTORNEY ATTORNEY shall submit to COUNTY invoices with supporting documentation acceptable to the Clerk on a schedule as set forth in the contract. Acceptability to the Clerk is based on generally accepted accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of funds. 6.1 ATTORNEY Fee (Hourly Fee Engagements) ATTORNEY'S providing services on an hourly fee engagement 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. 2 M 6.3. Hourly Rates, and Changes to hourly rates Hourly rates for ATTORNEY and additional Timekeepers will be set at: Approved Time Keepers: Name: Hourly Gregory T. Stewart $250.00 Harry Chiles $250.00 Lynn Hoshihara $200.00 Carly Schrader $200.00 Heath Stokley $200.00 ATTORNEY will charge no more than the hourly rate quoted above throughout the duration of the matter, unless otherwise agreed in writing and approved by COUNTY in the same manner as Agreement. 6.4. 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 ATTORNEY may when necessary and reasonable have more than one time -keeper bill for court appearances, attendance at depositions and meetings, including meetings with COUNTY representatives, and internal conferences; however, permission to use more than one time keeper shall be in writing from the County Attorney or his designee (permission may be given via email) and attached to the invoice requesting payment. ATTORNEY is not permitted to use this matter to provide on the job training for a time -keeper, and bill for that time -keeper's services, without COUNTY' S approval. 6.5.2. Time -keeper changes Time -keepers approved by the COUNTY are listed in paragraph 6.3 of this Agreement, and may be amended from time to time, upon mutual agreement of the COUNTY and the ATTORNEY, to evidence the then -current circumstances. Additional time -keepers may not be added to the matter without written approval from COUNTY. In the event that additional time -keepers providing services which are to be billed to COUNTY are to be added to the staff, then their hourly rates shall be provided to COUNTY, and, upon written approval by the COUNTY, their rates and billing practices shall comply with the requirements of this Agreement. 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. Attorney Fee (Bond and Debt Financing) ATTORNEY'S providing bond or debt financing services will be paid for his or her services in accordance with the schedule attached hereto as Schedule 1.Bond Counsel services to be provided by the Attorney shall include those set forth in Attachment A. 7. BILLING OF FEES AND EXPENSES 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 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 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. 4 a 7.3. Expenses COUNTY will pay the actual, reasonable cost of the following expense items if incurred in accordance with the guidelines below and promptly itemized in ATTORNEY' S monthly bill: 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 writing by COUNTY or as listed below: 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. 7.3.1.3. Photocopying ATTORNEY is encouraged to use outside copying services to reduce the cost of large -volume copying, provided that these expenses are efficient, cost-effective, and incurred and billed in accordance with this Agreement. ATTORNEY is responsible for insuring that all copying complies with copyright obligations. 7.3.1.4. Transcripts Transcripts should not be ordered without approval from COUNTY. Transcripts should not be ordered on an expedited basis unless necessary and approved 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 or metropolitan area will not be reimbursed and time in transit is not billable. Travel expenses outside the metropolitan area may only be reimbursed if the travel was approved by COUNTY. Reimbursable travel expenses, if approved, are the cost of transportation by the least expensive practicable means (e.g., coach class air travel), the cost of reasonable hotel accommodations, and the cost of transportation while out of town (e.g., by cab or rental car, whichever seems reasonable, at the lowest available rate). Travel expenses will be reimbursed in accordance with the applicable provisions of Florida Statute 112.321 and of the Monroe County Code for "approved travelers" and shall be summarized on the Monroe County Travel Form by ATTORNEY with all applicable receipts attached thereto. 7.3.1.6 Travel Time Time spent in transit outside Attorney's local area may be billed only if ATTORNEY or time- keeper is unable to avoid traveling by using other forms of communication or it is determined by the County that travel is in the County's best interest. Travel by more than one time -keeper at the same time to the same destination is allowed with written approval from COUNTY. 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. 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, or to out source or delegate work outside ATTORNEY' S law firm, without written 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 stair' 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 In addition to the items noted above, ATTORNEY shall obtain written approval from COUNTY before incurring any expense in excess of $1,000.00 if ATTORNEY expects to be reimbursed for that expense. COUNTY may refuse to pay any expense for which approval was not obtained by ATTORNEY. 7.3.4. Copies of receipts for expenses ATTORNEY shall include copies of receipts for all expenses with the itemized monthly bill. COUNTY may refuse to pay any expense item for which documentation is not provided by ATTORNEY. 7.3.5. Expenses (and fees) after termination Upon termination of the representation, ATTORNEY shall promptly bill COUNTY for any remaining reimbursable expenses and fees. COUNTY may refuse to pay any fees or expenses not billed within 45 days of termination of the representation. ATTORNEY is also expected to cooperate promptly with all aspects of termination and, if applicable, transition to other counsel. Payment for fees and expenses is contingent upon prompt, full cooperation. 7.4. Bill and expense documentation ATTORNEY must maintain supporting documentation for invoices until at least one year after the termination of the representation. This documentation shall be made available by ATTORNEY to COUNTY (or COUNTY'S designated representative, including an accountant, the County Clerk or County Clerk's representative, or legal bill auditor) upon COUNTY'S written request. ATTORNEY agrees to cooperate with any examination of this documentation and ATTORNEY'S fees and expenses, e.g., by responding promptly and completely to any questions COUNTY or its designated representative may have. ATTORNEY shall notify COUNTY in writing at least 60 days in advance of destroying any such records and, in the event that COUNTY requests that they be preserved, shall preserve them at least one additional year or, at the option of the COUNTY, delivered to the COUNTY for storage by the COUNTY, with COUNTY responsible for paying the actual cost of storage. This documentation shall include, for example, original time records, expense receipts, and documentation supporting the amount charged by ATTORNEY for expense items generated by ATTORNEY or his or her firm. COUNTY reserves the right not to pay any fee or expense item for which sufficient documentation or expense item for which sufficient documentation is not available to determine whether the item was necessary and reasonable. 8. PAYMENT TERMS ATTORNEY' S request for payments and reimbursements may be made in either the ATTORNEY' S name or the name of the ATTORNEY' S law firm, as appropriate. ATTORNEY bills complying with this Agreement are due and payable according to the Prompt Payment Act. If the bill materially fails to comply with the requirements of this Agreement, then it is not due and payable until its deficiencies are remedied by ATTORNEY. 9. MATTER MANAGEMENT COUNTY will expect that all communications between ATTORNEY, and additional time keepers, and COUNTY will be reviewed by ATTORNEY and that ATTORNEY will serve as the point of contact for this matter, including billing questions. 9.1. 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 9M 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 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 client's 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 prior approval. 11. OWNERSHIP OF ATTORNEY FILES AND WORK PRODUCT ATTORNEY understands that all files and work product prepared by ATTORNEY or his or her firm at the expense of COUNTY (or for which COUNTY is otherwise billed) is the property of COUNTY. Without COUNTY'S 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 regardinginterpretation 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 fees, and court costs, as an award against the non -prevailing party, and shall include reasonable attorney 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 Gato Building PO Box 1026 1100 Simonton Street Key West, FL. 33041 Key West, FL 33040 FOR ATTORNEY: Gregory T. Stewart, Esq. Post Office Box 11008 Tallahassee, Florida 32302 14. GOVERNING LAW AND VENUE This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. Venue for any legal action which may arise out of or under this agreement shall be in Monroe County, Florida. 15. ENTIRE AGREEMENT The entire agreement between the COUNTY and ATTORNEY with respect to the subject matter hereof is contained in this Agreement. This Agreement supersedes all prior oral and written proposals and communications between the COUNTY and ATTORNEY related to the matters set forth in Attachement A. 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 by Florida law, the provisions of Chapter 286, 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. 18. NO ASSIGNMENTS ATTORNEY shall not assign or subcontract its obligations under this agreement, except in writing and with the 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. 10 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 maintain all books, records, and documents directly pertinent to performance under this Agreement, including the documents referred to in this Agreement, in accordance with generally accepted accounting principles, consistently applied. Upon ten (10) business days written notice to the other, representatives of either the COUNTY or ATTORNEY shall have access, at all reasonable times, to all the other party's books, records, correspondence, instructions, receipts, vouchers and memoranda (excluding computer software) pertaining to work under this Agreement for the purpose of conducting a complete independent fiscal audit. ATTORNEY shall retain all records required to be kept under this Agreement for a minimum of five years, and for at least four years after the termination of this agreement. ATTORNEY shall keep such records as are necessary to document the performance of the agreement and expenses as incurred, and give access to these records at the request of the COUNTY, the State of Florida or authorized agents and representatives of said government bodies. It is the responsibility of 11 ATTORNEY to maintain appropriate records to insure a proper accounting of all collections and remittances. ATTORNEY shall be responsible for repayment of any and all audit exceptions 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 This Agreement may not be modified in any way without the express, written consent of both parties. Any and all modifications and Amendments of the terms of this Agreement shall be in 12 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 shall not discriminate, in its employment practices and in providing services hereunder, on the basis of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial status, or age, and shall abide by all federal and state laws regarding non-discrimination. Upon a determination by a court of competent jurisdiction that such discrimination has occurred, this Agreement automatically terminates without any further action by the COUNTY, effective the date of the court order. ATTORNEY is aware of the provisions of Section 13-101 through 13-106, Monroe County Code, relating to non- discrimination, and agrees to abide by the Code's nondiscrimination requirements. 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 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. 13 36. HOLD HARMLESS AND INSURANCE Prior to execution of this agreement, ATTORNEY shall furnish COUNTY Certificates of Insurance indicating the minimum professional liability coverage for ATTORNEY and additional time -keepers in the amount of Five Hundred Thousand Dollars ($500,000.00). 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. THIS AGREEMENT will become effective when executed by both the ATTORNEY and executed by the Board of County Commissioners of Monroe County, Florida. Attest: Amy Heavilin, Clerk B. De uty Jerk Date: '�17/2 • 1 3 Witness two ATTORNEY: Stgn tore GOV I Print tNNan e Address:190 A6,6A DATE: C) r. -- ..�'�._ =� CM .. CD c� C Cs. J !1 ` .cr el C3 T�14 J2pV J Board of County Commissioners Of M oe County B . 5 Mayor 4/17/20 / 3 Date: Print Name \� DATE: ' ^7 r' ZO MONROE COUNTY ATTORNEY AN.PROVED AS TO M: ATILEENE W. CASSEL ASSISTANT COUNTY ATTORNEY Date - � - p/ i 14 0 ATTACHMENT A Scope of Representation Services to be provide by Nabors, Giblin & Nickerson as bond counsel shall include all customary and traditional duties typically incurred by bond counsel for State of Florida local governmental entities including but not limited to the following: • Consultation with County officials and staff concerning all legal questions relating to the issuance of Bonds; • Attendance, upon request, at any meeting of the Board of County Commissioners or any meeting of staff relating to the issuance of Bonds; • Preparation of all resolutions, bond documents and other instruments relating to Bonds, in cooperation with the County staff, the County's financial advisor and the County Attorney; • Analysis and resolution of tax problems associated with Bonds, including preparation of ruling requests and contacts with the United States Treasury, if necessary; • Review of all disclosure documents prepared or authorized by the County, insofar as such documents describe Bonds and summarize the documents securing he Bonds; • Preparation and review of all documentation required for closing; • Supervision of the printing of Bonds (if printed Bonds are utilized); • Provision of an opinion in written form at the time Bonds are delivered, which opinion shall cover (i) the legality of Bonds and the proceedings by which they are issued, (ii) if applicable, the exclusion from gross income for federal income tax purposes of interest paid on Bonds, and (iii) such other issues that are customarily required of bond counsel; and • Consultation with County officials and County staff concerning questions that may arise with regard to Bonds. 15 Schedule 1 Fees for Bond Counsel Services The County shall pay to Nabors, Giblin & Nickerson, compensation for services rendered and expenses incurred as bond counsel in accordance with the following schedule (all fees quoted on a per $1,000 Bond basis): Type of Issue Minimum Fee Fee Scale General Obligation $15,000 $1.25 per bond first $20,000,000 $1.00 per bond $20,000,000-40,000,000 $0.75 per bond over $40,000,000 New Money & Bank Loans $17,500 $1.50 per bond first $10,000,000 $1.25 pr bond $10,000,000-30,000,000 $0.75 per bond over $30,000,000 Special Transactions(l) $20,000 $1.50 per bond first $20,000,000 $1.25 pr bond $20,000,000-40,000,000 $0.75 per bond over $40,000,000 Validation N/A To be negotiated on a per transaction basis Out -of -Pocket Expenses N/A To be negotiated on a per transaction basis prior to closing. Would include, without limitation, special assessment bond issues, refundings, certificates of participation and unrated issues. 16 0 DATE(MM/DDMM ►c - CERTIFICATE OF LIABILITY INSURANCE 4/2/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT. If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WANED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER KOUWENHOVEN & ASSOC PHONE 407 774-5556 FX :(407)774-7820 365 Wekiva Springs Rd #251 ADDRESS:brian@kouwen.com Longwood, FL 32779 INSURERS) AFFORDING COVERAGE NAlc1 INSURER A: Underwriters at Lloyd's of London AA1126623 INSURED Nabors, Giblin & Nickerson, P.A. INSURERB: 1500 Mahan Drive, Suite 200 Tallahassee, FL 32308 nnvGOAnce nCOTICICATC nil IIu1QI=Q• QF\/ICIf1Nl NIIMQFR- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE 40OL NSR s e WVD POLICY NUMBER POLICY M DD/Y POLICYLIMITS MM/DD A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY X CLAIMS -MADE OCCUR X Lawyers Prof Liab B0738SPOO758OG 11/01/12 11/01/13 EACH OCCURRENCE $ 8 000 000 PREMISES Ea occurrence $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ 8,000,000 GEWL AGGREGATE LIMIT APPLIES PER: POLICY F1 PRO LOC ECT PRODUCTS - COMP/OP AGG $ $ AUTOMOBILE LIABILITY ANYAUTO ALL OWNED SCHEDULED AUTOS AUTOS NON OWNED HIRED AUTOS AUTOS COMBINED SINGLE LI9rr_ Ea accident $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY D MA E$ Per accident UMBRELLA LIAB EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y/N ANY PROPRIETORIPARTNERIEXECUTIVE ❑ OFFICERIMEMSER EXCLUDED'/ IM..d0.V In NN) If yes, describe under DESCRIPTION OF OPERATIONS below N/A OCRY ST MIT OER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT 1 $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Retroactive date: None (Full Prior Acts) Deductible: $50,000 Per Claim Monroe County SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 1111 12th Street, Suite 408 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Key West, FL 33040 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 1988-2010 ACORD CORPORATION. All rights reserved. ACORD25(2010/05) The ACORD name and logo are registered marks of ACORD 1 ® ACORO CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DDNYYY) 04242013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOTAFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT`. If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Agency Marketing Services, Inc. 9800 4th Street N, Suite 400 St. Petersburg FL 33702 NAME: Debbie Back PHONE rn A/C No E><t 727 384 1036 A/c No): 727 343 4123 ADDREss: dback@agencymarketing.com INSUREI AFFORDING COVERAGE NAIC i INSURERA: Darwin National Assurance Company INSURED Bolton & Helm, LLP & George A. Helm, P.A. dba P.O. BOX 958464 Lake Mary FL 32746 INSURER B : INSURERC : INSURERD : INSURER E : INSURERF: rnvcoar_cc rFRTIFIreTP MIIMRPR• RE%ASION NUMBER! THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR TYPEOFINSURANCE POLICYNUMBER MlDDNYYY M/DDNYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY A PREMISES Ea occurrence $ MED EXP An one person) CLAIMS -MADE OCCUR A R V K NA BY DA WENT w }� PERSONAL &ADV INJURY GENERAL AGGREGATE $ WAIVER-NIA-4 Y0 'ir"r W GEN'LAGGREGATE LIMITAPPLIES PER PRODUCTS - COMP/OPAGG $ POLICY 1 PRO L 0 C AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident BODILY INJURY (Per person) $ ANYAUTO BODILY INJURY (Per accident) $ ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIREDAUTOS AUTOS Pe PERT DAMAGE $ UMBRELLA OCCUR EACH OCCURRENCE AGGREGATE $ EXCESS ICLAIMS-MADE DED I I RETENTION $ WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS' LIABILITY Y I N ANY PROPRIETOR/PARTNER/EXECUTIVE❑N!A E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? /M (Mandatory in NH) E.L. DISEASE - EA EMPLOYE E.L. DISEASE - POLICY LIMIT If yes, describe under DESCRIPTION OF OPERATIONS below A LWYPFL- Lawyers Professional Liability 0307-4449 04/012013 04/012014 Limits 1,000,0002,000,000; 5,000 retention DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space is required) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Monroe County BCC THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 1100 Simonton Street, Room 2-268 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Key West FL 33040 O 1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105( The ACORD name and logo are registered marks of ACORD BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 11/18/14 — KL Division: County Attorney Bulk Item: Yes XX No Staff Contact Person: Bob Shilling_er. 292-3470 AGENDA ITEM WORDING: Approval of and authorization for the County Attorney to execute the conflict waiver letter dated October 31, 2014 authorizing the law firm of Nabors, Giblin & Nickerson (NGN) to represent both the County and the Key Largo Wastewater Treatment District (KLWTD) to draft an Interlocal Agreement (ILA) regarding wastewater funding and prosecuting an action to validate that ILA on behalf of both entities (County and KLWTD). ITEM BACKGROUND: The County's bond counsel, the law firm of Nabors, Giblin, Nickerson, P.A. (NGN), is also bond counsel to the Key Largo Wastewater Treatment District (KLWTD). County and KLWTD staff would like to have the benefit of NGN's assistance in a) drafting an interlocal agreement (ILA) that would facilitate the financing of wastewater projects in the unincorporated areas of the County at better terms than would otherwise be available and b) filing and prosecuting an action to validate that ILA. NGN's Steve Miller, Esq. would advise the County and NGN's Christopher Traber, Esq. would advise the KLWTD on the drafting of the agreement. It is contemplated that once the ILA is approved by both parties, the County and the KLWTD would jointly file and prosecute a validation proceeding in Circuit Court to obtain a judicial order approving and validating that agreement. NGN's Greg Stewart, Esq., or his designee, would represent both the County and the KLWTD in that proceeding and both entities would cooperate to jointly prosecute that action as co - plaintiffs. Under the Florida Bar's Rules of Professional Conduct, both the County Commission and the KLWTD board must consent in order for NGN to represent both entities on the same transaction and as co - parties to a validation action. Unless the County and the KLWTD provide their respective informed, written consent, NGN will be prohibited from representing both entities in this matter. When representation of multiple clients in a single matter is undertaken, the consultation must include an explanation of the implications of the common representation and the advantages and risks involved. Advantages. Joint representation by the same law firm on the negotiation phase and subsequent validation proceeding should result in a significant cost savings to both entities and ultimately the County taxpayers, some of whom are also KLWTD ratepayers. Additionally, both parties will continue to benefit from their respective long standing relationships with NGN without having to develop relationships with new counsel. Risks. When two parties are jointly represented by the same law firm in an action, there can be a risk of a conflict arising if there is a substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party, or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. None of the risk factors are reasonably foreseeable at this time given the nature of the proposed transaction and its subsequent approval by both governing bodies. However, if such a conflict were to arise during a validation action, NGN would withdraw from the joint representation and the parties would seek other counsel. The County Attorney's office would serve as co -counsel to NGN on the bond validation proceeding to ensure protection of the County's interests in the matter should a conflict arise. If a dispute arose once the agreement had been validated by the Court, both entities could continue to be represented by their own in house counsel or other counsel of its choosing other than NGN. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty ;2yOMB/Purchasing _ Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM #. Revised 2/05 TAMPA Suite 1060, 2502 Rocky Point Drive Tampa, Florida 33607 (813) 281-2222 Tel (813) 281-0129 Fax FORT LAUDERDALE 110 East Broward Boulevard Suite 1700 Fort Lauderdale, Florida 33301 (954) 315-3852 Tel Bob Shillinger, Esq. County Attorney Nabors Giblin& NickersonP.A. ATTORNEYS AT LAW October 31, 2014 VIA ELECTRONIC MAIL Monroe County Attorney's Office 1111 12th Street, Suite 408 Key West, FL 33040Paul Christian FORT MYERS 12731 World Plaza Lane Building 83, Suite 2 Fort Myers, Florida 33907 (239) 288-4027 Tel (239) 288-4057 Fax TALLAHASSEE Suite 200, 1500 Mahan Drive Tallahassee, Florida 32308 (850) 224-4070 Tel (850) 224-4073 Fax Re: Key Largo Wastewater Treatment Interlocal Agreement with Monroe County, Florida Dear Bob: We understand that an interlocal agreement between the Key Largo Wastewater Treatment District (the "District") and Monroe County (the "County") is being negotiated in connection with the allocation of state grant funds from the District to the County in exchange for the County agreeing to pay certain sums to the District over time (the "Interlocal Agreement"). Nabors, Giblin & Nickerson, P.A. ("NG&N") currently serves as bond counsel to the District and the County. NG&N, with Chris Traber as lead counsel, has been requested to assist the District as its bond counsel for this transaction. The duties associated with that role are outlined in the attached letter to Paul Christian as General Manager to the District. With respect to our role as bond counsel to the County, our services include any necessary bond counsel services in accordance with our existing contract with the County including, but not limited to, reviewing/commenting on drafts of the interlocal agreement, preparation of any related resolutions or ordinances and attendance at any meeting they are considered for approval by the County, research relating to any issues that may arise, assistance with any validation proceedings, preparation of any other all documents, review/commenting on all financing documents prepared by other members of the working group, preparation of any necessary closing documents and attendance at the closing at which all documents are executed, and preparation and distribution of final transcripts to the entire working group. The Florida Bar Rules of Professional Conduct state that the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer (or a firm with which the lawyer was associated), represents a client whose interests are directly adverse to another client. However, the Rules do allow such representation if certain conditions specified in the Rules Bob Shillinger, Esq. County Attorney October 31, 2014 Page 2 are satisfied and each affected client gives informed consent, confirmed in writing. We reasonably believe that NG&N will be able to provide competent and diligent representation to the County and the District with respect to this matter. I have attached relevant provisions of the Rules of Professional Conduct in the event you wish to review them. We also note that in validating the proposed Interlocal Agreement, NG&N likely will be representing both the County and the District. Because the County and the District each desire to obtain a successful validation, we are not aware of any unique risks in connection with such a dual representation. Both the County and the District should enjoy reduced costs and a more efficient effort with NG&N jointly representing them in the validation. The purpose of this letter is to confirm (1) that we may represent the County as bond counsel in the manner described above, and (2) that the County has agreed to waive any conflict of interest arising out of, and that the County will not object to, our representation of the District as described herein and the attached letter to the District. If you need to edit the terms of this letter, or wish to discuss any related issues, please contact me at your earliest convenience. Once you are satisfied with this conflict waiver, please sign and return the enclosed copy of this letter. We look forward to working with the County on this matter. NABORS, GIBLIN & NICKERSON, P.A. By: G Steven E. Miller, Shareholder Accepted and Approved: By: Name: Title: Date: Rule 4-1.7 of the Rules Regulating the Florida Bar (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. Rule 4-1.10(d) of the Rules Regulating the Florida Bar (d) Waiver of Conflict. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 4-1.7. TAMPA Suite 1060, 2502 Rocky Point Drive Tampa, Florida 33607 (813) 281-2222 Tel (813) 281-0129 Fax FORT LAUDERDALE 110 East Broward Boulevard Suite 1700 Fort Lauderdale, Florida 33301 (954) 315-3852 Tel Nabors Giblin& October 31, 2014 Paul Christian General Manager Key Largo Wastewater Treatment District 98880 Overseas Highway Key Largo, Florida 33037 FORT MYERS 12731 World Plaza Lane Building 83, Suite 2 Fort Myers, Florida 33907 (239) 288-4027 Tel (239) 288-4057 Fax TALLAHASSEE Suite 200, 1500 Mahan Drive Tallahassee, Florida 32308 (850) 224-4070 Tel (850) 224-4073 Fax Re: Key Largo Wastewater Treatment Interlocal Agreement with Monroe County, Florida Dear Paul: We are providing this letter to confirm our role and responsibilities in connection with the above -referenced interlocal agreement between the Key Largo Wastewater Treatment District (the "District") and Monroe County (the "County") relating to the allocation of state grant funds from the District to the County in exchange for the County agreeing to pay certain sums to the District over time (the "Interlocal Agreement"). Nabors, Giblin & Nickerson, P.A. ("NG&N") currently serves as bond counsel to the District and the County and you have requested NG&N to assist the District as its bond counsel for this transaction. Such services include consultation with District staff, participating in conference calls or meetings upon request, identifying potential issues, reviewing drafts of documents prepared by counsel to the District and the County, advising the District as to existing District bond document requirements, any necessary research regarding same, travel and attending any District meetings, if necessary and providing other legal counsel as needed and requested by the District. Since it is not possible to predict the number of hours to provide the above support services, we propose to bill on an hourly basis at the rates set forth below. However, we would not incur more than $7,500 in fees without first notifying the District in writing as to the nature of the additional time required. Shareholder $250 Associate 200 Paul Christian General Manager October 31, 2014 Page 2 In addition to the above fees, we would be reimbursed for all actual out-of-pocket expenses, including travel costs, photocopying at $0.20 per page, deliveries, long distance telephone charges, filing fees, and other necessary office disbursements. Our firm bills hourly engagements on a monthly basis and provides detail with each invoice identifying the date each service was performed, a brief description of the service performed, the employee at the firm who performed the service, the number of hours billed, the rate charged per hour, and the total fee. To the extent a formal opinion is requested during the transaction, we would discuss any additional opinion fee at that time and would only charge such additional fee with the consent of the District. As you are aware, our firm also serves as bond counsel to the County. During the course of the above transaction, the firm, with Steve Miller as lead counsel, would also act as bond counsel to the County. The duties associated with that role are outlined on the attached letter to Bob Shillinger as County Attorney to the County. The Florida Bar Rules of Professional Conduct state that the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer (or a firm with which the lawyer was associated), represents a client whose interests are directly adverse to another client. However, the Rules do allow such representation if certain conditions specific in the Rules are satisfied and each affected client gives informed consent, confirmed in writing. We reasonably believe that NG&N will be able to provide competent and diligent representation to the District and the County with respect to this matter. I have attached relevant provisions of the Rules of Professional Conduct in the event you wish to review them. We also note that in validating the proposed Interlocal Agreement, NG&N likely will be representing both the County and the District. Because the County and the District each desire to obtain a successful validation, we are not aware of any unique risks in connection with such a dual representation. Both the County and the District should enjoy reduced costs and a more efficient effort with NG&N jointly representing them in the validation. The purpose of this letter is to confirm (1) that we may represent the District as bond counsel in the manner described above, and (2) that the District has agreed to waive any conflict of interest arising out of, and that the District will not object to, our representation of the County as described herein and the attached letter to the County. If you need to edit the terms of this letter, or wish to discuss any related issues, please contact me at your earliest convenience. I have also provided a copy of this letter to Ray Giglio, as general counsel to the District so that you may seek his consultation as well. If there are additional questions Paul Christian General Manager October 31, 2014 Page 3 that the District may have, I would be happy to discuss this matter at any time. Once you and the District are satisfied, please have the District representative sign and return the enclosed copy of this letter. We look forward to working with the District on this matter. NABORS, GIRLIN & NICKERSON, P.A. By: C11d4'op* —herM. Tr—a-b, e"r, Shareholder Accepted and Approved: KEW LARGO WASTEWATER TREATMENT DISTRICT By: Name: Titic: Date: Qc*' Ray Giglio, General Counsel Rule 4-1.7 of the Rules Regulating the Florida Bar (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. Rule 4-1.10(d) of the Rules Regulating the Florida Bar (d) Waiver of Conflict. A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 4-1.7.