1st Amendment 02/21/2018�V couR�l
� Kevin Madok CPA
Clerk of the Circuit Court & Comptroller — Monroe Count
p Y, Florida
DATE: February 23, 2018
TO: Kathy Peters, CP
County Attorney's Office
Jaclyn Carnago
County Attorney's Office
FROM: Pamela G. Hancock, D.C.
SUBJECT: February 21 BOCC Meeting
Attached is an electronic copy of Item P7, Amendment to Agreement with Stearns Weaver
Miller Weissler Alhadeff & Sitterson, PA, for your handling.
Should you have any questions, please feel free to contact me at ext. 3130. Thank you.
cc: Finance
File
KEY WEST MARATHON PLANTATION KEY
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway
Key West, Florida 33040 Marathon, Florida 33050 Plantation Key, Florida 33070
305 -294 -4641 305 - 289 -6027 305 -852 -7145
PK/ROTH BUILDING
50 High Point Road
Plantation Key, Florida 33070
305 -852 -7145
AMENDMENT TO AGREEMENT BETWEEN MONROE COUNTY AND
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON,P.A.
/ a� This Amendment to the Agreement dated August 8th, 2017 is entered into this 7 ih day of
�r"' , 2018, by and between Monroe County, a political subdivision of the State of Florida,
herea COUNTY, and S YEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON,
P.A.,hereafter FIRM.
WHEREAS, on August 8, 2017, the COUNTY and FIRM, entered into a contract to provide
legal services and representation to the COUNTY, attached hereto as Exhibit "A." to this Amendment;
and
WHEREAS, the contract hired the FIRM for representation and the provision of legal services
and advice to the County in connection with the bankruptcy case of Energy3, LLC 17-18986-RAM in the
United States Bankruptcy Court for the Southern District of Florida;
WHEREAS, the contract provided for a six-month period (term) from August 8, 2017 to
February 8, 2017, and further provided that the contract may be extended with the written approval of the
FIRM and the COUNTY;
WHEREAS, the contract provided for the expenditure of a maximum of forty-nine thousand
dollars and ninety-nine cents ($49,999.99),over said term;
WHEREAS, as of the most recent invoice sent by the FIRM and received by the COUNTY,
$34,003 of that not-to-exceed amount has been expended in connection with legal advice and
representation in connection with said bankruptcy case;
WHEREAS, in order to amend the term of the contract, to amend the scope of services, and to
remove the$49,999.99 cap on payments to the FIRM;
NOW THEREFORE, in consideration of the mutual promises of the original agreement as
amended herein,the parties agree as follows:
1. Paragraph 3 of the Agreement shall be amended to read as follows:
3. TERM OF AGREEMENT
This Agreement and representation by the FIRM is retroactively effective to February 7,
2018, and shall continue for a period of six months from the date of execution by the second
party unless terminated in less than six months by either the COUNTY, or by the FIRM in
accordance with ethical requirements and/or the terms of this Agreement. This Agreement
may be extended with the written approval of the FIRM and the COUNTY.
2. Paragraph 4 of the Agreement shall be amended to read as follows:
4. SCOPE OF THE WORK
Our representation is limited to providing legal services and advice to Monroe County,
Florida ("Client") in connection with the bankruptcy case of In re: Marine Mammal
Conservancy, Inc., Case No. 18-10594-LMI pending in in United States Bankruptcy Court,
Miami,Florida.
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3. Paragraph 6 of the Agreement shall be amended to read as follows:
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. 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.
4. As stated at Paragraph 6.3 in the original contract, the Approved Time Keeper shall be and
remain Drew M. Dillworth.
5. In all other respects, the remaining terms of the Agreement entered into August 8, 2017, and
not inconsistent herewith, shall remain in full force and effect.
6. This amendment shall be retroactively effective to February 7, 2018.
(SEAL) BOARD OF COUNTY COMMISSIONERS
Attest: KEVIN MADOK,Clerk OF MONROE O FL A
By (";2By:
Deputy Clerk M 'or 07-/z1/2e1g
STEARNS WEAVER MILLER WEISSLER
& ,P.A.
Witness:
By:
By i Signature
Signature
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MONROE COUNTY ATTORNEY
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AGREEMENT BETWEEN MONROE COUNTY AND
STEARNS WEAVER MILLER WEISSLER ALHADEFF& SITTERSON,P.A.
THIS AGREEMENT, made and entered into this 8�day of August,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
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A.. ("ATTORNEY")
regarding the retention of ATTORNEY by COUNTY to provide legal advice and services.
WHEREAS, it is in the public interest of COUNTY to have legal representation as set out below,
and
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:
1. 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 a Florida for Profit Corporation named above and whose legally authorized signature
appears at the bottom of this Agreement. ATTORNEY is licensed to practice law in Florida. ATTORNEY
has been retained to provide representation to Monroe County in connection with the bankruptcy case
of Energy3, LLC I7-18986-RAM pending the United States Bankruptcy Court. ATTORNEY may not
outsource this work without full written disclosure to,and prior written approval from, the COUNTY acting
through the County Attorney.
3. TERM OF AGREEMENT
This Agreement and representation by 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 six months from the date of execution
by the second party unless terminated in less than six months 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
Our representation is limited to providing legal services and advice to Monroe County,Florida
("Client")in connection with the bankruptcy case of Energy3, LLC 17-18986-RAM pending the United
States Bankruptcy Court, Miami,Florida.
EXHIBIT
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4.1 Professional ability to perform work,appointment of contract manager
ATTORNEY warrants that he or she is authorized by law to engage in the performance of the
activities herein described, subject to the terms and conditions set forth in these contract documents.
ATTORNEY shall designate Drew M. Dillworth, as the contract manager and 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
S49,999.99 without prior approval of 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.
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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: Hourly Rate:
Drew M. Dillworth $350.00
With the written approval of the County Attorney, additional time keepers may be
utilized by the ATTORNEY and billed at the following rates:
Partners $350
Associates $275
Paralegals $175
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 substantially discounted rates than the current hourly rates
charged to other clients of ATTORNEY. ATTORNEY has agreed that these are special rates
applicable to the COUNTY for this particular 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
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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 hearings 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.
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 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
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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 per hour as set forth in paragraph number 6.3. 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 may be provided for your
convenience)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
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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. A 1 fORNEY
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
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the Monroe County Code Article XXVI 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 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 A ORNEY'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 A 1 l ORNEYS 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
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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 notpassed 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 A I I ORNEY 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
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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
1 111 12'h Street, Suite 408
Key West, Florida 33040
(305)292-3470 (office)
(305)292-3516 (facsimile)
ShiIlinger-Bob@monroecounty-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 A I1 ORNEY 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
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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
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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 interpretation
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.
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Mediation proceedings initiated and conducted pursuant to this Agreement or as may be required
by a court of competent jurisdiction shall be conducted in accordance with the Florida Rules of Civil
Procedure and the usual and customary procedures required by the circuit court of Monroe County and
shall take place in Monroe County.
13. NOTICE REQUIREMENT
Any notice required or permitted under this agreement shall be in writing and hand delivered or
mailed, postage prepaid,to the other party by certified mail, returned receipt requested,to the following:
FOR COUNTY
County Administrator and County Attorney
1100 Simonton Street PO Box 1026
Key West,FL. 33040 Key West,FL 33040
FOR ATTORNEY
Drew M. Dillworth
150 West Flagler Street, Suite 220
Miami, FL 33130
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
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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. A l 1 ORNEY
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.
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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 section119.10, 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 ATTORNEY/CONTRACTOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
ATTORNEY/CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305-292-3470
BRADLEY-BRIANAMONROECOUNTY-FL.GOV, MONROE COUNTY
ATTORNEY'S OFFICE 1111 12TH 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
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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.
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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 CON TRACTOR
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
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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
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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.
36. HOLD HARMLESS AND INSURANCE
ATTORNEY certifies that it maintains a minimum professional liability coverage for
A I I ORNEY 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.
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the day and
date first a ve
By: '' G
Roman Gastesi
Monroe County Administrator
Date: ( ) ' Pi) ' \"
STE VER lP WEISSLER ALHADEFF& SITTERSON,P.A.:
By:
_Drew M. Dillworth, Esq.
Shareholder and Authorized Representative
DATE: R ' I
MONROE COUNTY ATTORNEY
APPR O ED AS FORM:
CHRI Tf. E M. UMBERT-BARROWS
ASSISTAN fCUp.y.ATTORNEY
Date
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