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BOARD OF COUNTY COMMISSIONERS
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Mayor David Rice, District 4
Mayor Pro Tem Sylvia J. Murphy, District 5
IleOI1da Keys
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Danny L. Kolhage, District 1
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George Neugenf District 2
Heather Carruthers, District 3
County Commission Meeting
October 17, 2018
Agenda Item Number: P.2
Agenda Item Summary #4723
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Cynthia Hall (305) 292 -3470
No
AGENDA ITEM WORDING: Approval to enter into Legal Services Agreement with the law firm
of Sundstrom & Mindlin, LLP, for advice and representation regarding the possible acquisition of a
wastewater utility and related issues.
ITEM BACKGROUND: At the July 2018 meeting, the BOCC directed the County Attorney's
office to provide advice regarding the possible acquisition of K W Resort Utilities by the County or
FKAA, by direct purchase or eminent domain; possible assumption of regulatory oversight including
rate setting by the County; and related issues. The law firm of Sundstrom & Mindlin has over thirty
years of experience in wastewater issues, including specific expertise in governmental acquisition of
privately owned wastewater utilities and consolidation of wastewater utilities in counties.
Section 2 -180 of the Monroe County Code states: "When the county attorney determines that the
best interests of the county would be served by using the expertise of outside counsel, the county
attorney shall request that the board retain the outside counsel recommended by the county attorney.
If the board concurs with the county attorney's recommendation, then the board shall retain the
outside counsel through a standard engagement contract prepared by the county attorney and
approved by the board" The County Attorney has determined that the best interests of the County
would be served by using the expertise of this firm.
PREVIOUS RELEVANT BOCC ACTION: July 2018, direction to staff as stated above.
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Agreement for Legal Services Sundstrom stamped
FINANCIAL IMPACT:
Effective Date: September 1, 2018
Expiration Date: None
Total Dollar Value of Contract: TBD. Rates are stated in the contract.
Total Cost to County: TBD
Current Year Portion: TBD
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing:
Grant:
County Match:
Insurance Required:
Additional Details:
If yes, amount:
.
REVIEWED BY:
Cynthia Hall
Completed
09/08/2018 5:04 PM
Bob Shillinger
Completed
09/11/2018 11:44 AM
Budget and Finance
Completed
09/11/2018 3:28 PM
Maria Slavik
Completed
09/12/2018 7:37 AM
Kathy Peters
Completed
09/12/2018 12:02 PM
Board of County Commissioners
Pending
10/17/2018 9:00 AM
AGREEMENT FOR LEGAL SERVICES BY AND BETWEEN MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS AND SUNDSTROM & MINDLIN, LLP
THIS AGREEMENT ( "Agreement ") is entered into this day of
, 20 , by and between the MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS hereinafter referred to as the County, and SUNDSTROM &
MINDLIN, LLP, hereinafter referred to as the Attorneys (collectively, the County and Attorneys
are referred to as the Parties).
WHEREAS, the County desires to contract with outside legal representation with
expertise in the purchase and acquisition of wastewater utilities; and
WHEREAS, Attorneys have represented that they have expertise in this area; and
WHEREAS, the Parties wish to enter into this Agreement so that the Attorneys will act as
private legal counsel to the BOCC;
NOW THEREFORE, IN CONSIDERATION of the mutual promises contained herein,
the Parties agree as follows
1. Term This Agreement shall commence upon execution by both Parties and shall continue
until terminated either by the County or by the Attorneys. The effective date of this Agreement
shall be September 5, 2018.
2. Scope of Services The Attorneys will provide the following services:
- Advice and representation regarding the potential acquisition of K W Resort
Utilities, Inc. (KWRU) by Monroe County, the Florida Keys Aqueduct Authority, or another
entity, either by direct purchase, eminent domain, or another method
- Any and all other related issues.
- From time to time, and contingent upon the availability of Attorneys, the Scope of
Services may require the Attorneys to appear at meetings of the Board of County Commissioners
for the purpose of providing briefings.
3. Special Conditions Regarding Representation
a) The Client is Monroe County Board of County Commissioners (BOCC). In the event
that the Attorneys cannot ethically represent the BOCC, the Attorneys shall immediately advise
the BOCC, in writing, of that fact.
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b) The Attorneys are licensed to practice law in all jurisdictions relevant to this matter and
meet the statutory criteria for private counsel to a Board of County Commissioners (BOCC) in the
State of Florida.
c) The Attorneys have been retained by the BOCC to provide the scope of services
described in Section 2 above. The Attorneys represent that they are competent and available to
handle that matter. In the event that additional matters are assigned by the BOCC to the Attorneys,
this Agreement shall apply to those matters as well, unless a separate Agreement is required by
the BOCC.
d) The Attorneys have conducted a thorough investigation prior to undertaking this
representation and have determined that neither the law firm nor its individual attorneys have any
ethical impediment, real or potential, to representing the BOCC. To the extent that any ethical
impediment, real or potential, is discovered or ever arises, the Attorneys shall immediately inform
the BOCC in writing of the impediment (regardless of whether the Attorneys believe they have
taken all steps necessary to avoid the impediment and regardless of whether the Attorneys believe
that the impediment is insubstantial or questionable), make full disclosure of the situation to the
BOCC, obtain the BOCC's express, written consent to continue the representation of the other
client, and take all steps requested by the BOCC to avoid or mitigate the impediment. The
Attorneys understand that if a direct or indirect conflict of interest arises which, in the opinion of
the BOCC, cannot be avoided or mitigated under the Rules of Professional Conduct of The Florida
Bar, the BOCC may, in its discretion, (a) obtain reimbursement from the Attorneys for all fees and
expenses paid to the Attorneys in this matter; (b) obtain cancellation of all amounts allegedly
owed by the BOCC to the Attorneys; and, (c) obtain reimbursement for consequential expenses
incurred by the BOCC, including the cost of replacement counsel.
4. Fees and Costs:
a. Attorneys shall bill at the hourly rate of $325 per hour (attorney William
Sundstrom, Esq.) or $300 per hour (other partners in the firm). Associates in the firm, if
utilized, will be billed at the hourly rate of $ 225 and paralegals or other legal
professionals, if utilized, will be billed at the hourly rate of $ 60
b. Payment will be made upon receipt of a proper invoice with documentation of
services rendered, pursuant to the Florida Local Government Prompt Payment Act. On
each invoice, Attorney shall provide a general description of the matter; clearly identify
each person performing services, record the time expended by each person separately; state
the amount of time expended by each person daily (and, within each day, broken down by
task where more than one project or task was worked upon within the same day); describe
within each itemized daily task entry, in sufficient detail to readily allow the County to
determine the necessity for and reasonableness of the time expended, the services
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performed, the project or task each service relates to, the subject and purpose of each
service, and the names of others who were present or communicated with in the course of
performing the service. Billing shall occur in increments of 0.1 hours.
Travel expenses will be reimbursed in accordance with the applicable provisions
for "approved travelers" of the Monroe County Code, and will be summarized on the
Monroe County Travel Form with all applicable receipts attached thereto. Travel shall be
billed from the firm's office closest to the hearing or deposition.
d. The following expenses are reimbursable: Court filing fees and costs, witness fees
(including experts and consultants), and court reporter fees.
All other costs will be non - reimbursable, including but not limited to postage,
photocopying, facsimile, telephone charges, courier charges, computerized research,
facsimile charges.
f. This Agreement is subject to annual appropriation by the Board of County
Commissioners.
5. Termination: This Agreement can be terminated by either party with or without cause
with thirty (30) days' prior written notice. Attorneys shall be paid for all work completed up to
the point of termination.
6. Accounting Records Records of the Attorneys pertaining to this Agreement shall be kept
on generally recognized accounting principles, acceptable to the Monroe County Clerk, and shall
be available to the BOCC or to an authorized representative for audit. The Attorneys understands
that the Attorneys must have documentation to support all aspects of each bill, including fees and
expenses, and must maintain that documentation until at least four years after the termination of
the representation. This documentation shall be made available by the Attorneys to the BOCC or
their designated representative, including an accountant; and /or, to the Monroe County Clerk or
Monroe County Clerk's representative or legal -bill auditor, upon written request. The Attorneys
agree to cooperate with any examination of this documentation and Attorneys' fees and expenses,
e.g., by responding promptly and completely to any questions the BOCC or its designated
representative may have. The Attorneys shall notify the BOCC in writing at least 60 days in
advance of destroying any such records and, in the event the BOCC requests that they be preserved,
shall preserve them at least one additional year or, at the option of the BOCC, deliver them to the
BOCC for storage by the BOCC, with the BOCC responsible for paying the actual cost of storage.
This documentation shall include, for example, original time records, expense receipts, and
documentation supporting the amounts charged by the Attorneys for expense items generated by
the Attorneys. The BOCC reserves the right not to pay any fee or expense item for which sufficient
documentation is not available to determine whether the item was necessary and reasonable. Upon
the execution of an Agreement or Amendment to this Agreement by the BOCC, the Attorneys may
provide the documentation in digital electronic form, in Adobe Portable Document Format (PDF),
or in Alchemy format in lieu of the manual preservation requirements detailed above.
a) Access to Records: The Attorneys shall maintain all books, records, and documents
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directly pertinent to performance under this Agreement, including but not limited to the documents
referred to in Section 6 of this Agreement, in accordance with generally accepted accounting
principles, consistently applied. Upon ten (10) business days of one parry's written notice to the
other, representatives of the BOCC or the Attorneys 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. The Attorneys 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. The Attorneys 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 BOCC, Monroe County, the State of Florida, or authorized agents and
representatives of said government bodies. It is the responsibility of the Attorneys to maintain
appropriate records to insure a proper accounting of all collections and remittances. The Attorneys
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 BOCC, or
their agents and representatives.
Florida Public Records Law: The Attorneys agree 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. The Attorneys agree 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.
7. Modification Additions to, modification to or deletions from the provisions set forth in
this Agreement shall only be effective if in writing and approved by the BOCC.
8. Indemnification and Hold Harmless The Attorneys agree to indemnify and hold the
BOCC harmless for any and all claims, liability, losses and causes of action arising out of their
actions and inactions in provision of legal services under this Agreement to the fullest extent
allowable by Florida law and the ethics rules. The Attorneys agree to pay such claims and losses,
including related court costs and reasonable attorneys' fees, and shall defend all suits filed due to
the negligent acts, errors or omissions of the Attorneys' employees and /or agents to the fullest
extent allowable by Florida law and the ethics rules.
9. Insurance Professional Liability Insurance shall also be maintained as specified. Within
ten (10) days following execution of this Agreement, Attorneys shall provide a certificate of
insurance showing evidence of the coverages listed below, with Monroe County Board of County
Commissioners listed as a certificate holder.
The coverage provided herein shall be provided by an insurer with an A.M. Best Rating of
VI or better, that is licensed to do business in the State of Florida and that has an agent for service
of process within the State of Florida. The coverage shall contain an endorsement providing sixty
(60) days' notice to the BOCC prior to any cancellation of said coverage. Said coverage shall be
written by an insurer acceptable to the BOCC and shall be in a form acceptable to the BOCC.
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The Attorneys shall obtain and maintain the following policies:
a) Workers' Compensation insurance as required by the State of Florida;
b) Employers Liability Insurance with limits of $100,000 per Accident; $500,OODisease
policy limits; Disease policy limits of $100,000 for each employee;
c) Comprehensive business automobile and vehicle liability insurance covering claims for
injuries to members of the public and /or damages to property of others arising from use of motor
vehicles, including ofsite and offsite operations, and owned, hired or non -owned vehicles, with
minimum limits of $100,000 Combined Single Limit, and if split limits are provided, the minimum
acceptable limits shall be $50,000 per person, $100,000 per occurrence, and $25,000 property
damage.
d) Commercial general liability covering claims for injuries to members of the public or
damage to property of others arising out of any covered act or omission of the Attorneys or any of
their employees, agents, subcontractors or subconsultants, including Premises and /or Operations,
Independent Contractors; Broad Form Property Damage and a Contractual Liability Endorsement
with $300,000 Combined Single Limit, and if split limits are provided, the minimum acceptable
limits shall be $100,000 per person, $300,000 per occurrence, and $50,000 property damage.
e) The BOCC shall be named as an additional insured with respect to the Attorneys'
liabilities hereunder in the insurance coverages identified in Paragraphs C and D.
f) At all times while this Agreement is in effect, Attorneys shall provide to the BOCC
current Certificates of Insurance or a copy of all insurance policies including those naming the
BOCC as an additional insured showing coverages in force at the time. The BOCC reserves the
right to require certified copies of such policies upon request.
10. Taxes The BOCC and Monroe County are exempt from Federal Excise and State of
Florida use and sales taxes.
11. Disclosure The Attorneys shall be required to list any or all potential conflicts of interest,
as defined by Florida Statute 112 and the Monroe County Ethics Ordinance. The Attorneys shall
disclose all actual or proposed conflicts of interest, financial or otherwise, direct or indirect,
involving any client's interest which may conflict with the interests of the BOCC.
12. Assignment The Attorneys shall not assign, transfer, convey, sublet or otherwise dispose
of this Agreement, or of any or all of their right, title or interest therein, or their power to execute
such contract to any person, company or corporation without prior written consent of the BOCC.
13. Governing Law /Venue This Agreement shall be governed and construed by and in
accordance with the laws of the State of Florida and constitutes the entire agreement between the
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BOCC and the Attorneys. The venue of any court action filed relative to this Agreement shall lie
in Monroe County, Florida.
14. The Attorneys warrant that no person has been employed or retained to solicit or secure
this contract upon an agreement or understanding for a commission, percentage, brokerage, or
contingent fee and that no member of the Monroe County government or the BOCC has any
interest, financially or otherwise in the Attorneys or their subcontractors.
15. Severability If any provision of this Agreement shall be held by a Court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of
such provision(s) other than that /those held invalid or unenforceable, shall not be affected thereby;
and each provision of the Agreement shall be valid and enforceable to the fullest extent permitted
by law.
16. Notice Any notice required or permitted under this Agreement shall be in writing and
hand - delivered or mailed, postage prepaid by certified mail, return receipt requested, to the other
party as follows:
Fnr the R()C C-
Monroe County Attorney
1111 12 Street, Suite 408
Key West, FL 33041
For the Attorneys
William E. Sundstrom
Sundstrom & Mindlin, LLP
2548 Blairstone Pines Drive
Tallahassee, FL 32301
The BOCCC shall give notice to the Attorneys of any meetings at which the Attorneys'
presence is required or requested.
17. Ethics Clause The Attorneys warrant that they have not employed, retained or otherwise
had act on their behalf, any former Monroe 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 the provision, the BOCC may, at its discretion
terminate this agreement without liability and may also, at its discretion, deduct from the
agreement or purchase price, or otherwise recover, the full amount of any fee, commission,
percentage, gift, or consideration paid to the former or present County officer or employee.
18. Public Entity Crime Statement: A person or affiliate who has been placed on the convicted
vendor list following a conviction for public entity crime may not submit a response on a contract
to provide any goods or services to a public entity, may not submit a response /bid on a contract
with a public entity for the construction or repair of a public building or public work, may not
submit responses /bids on leases of real property to a public entity, may not be awarded or perform
work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity,
and may not transact business with any public entity in excess of the threshold amount provided
in Florida Statutes Section 287.017, for CATEGORY TWO for a period of 36 months from the
date of being placed on the convicted vendor list.
19. General Requirements of Contractors:
a) Ownership of Attorney files and work product. The Attorneys understand that all files
and work product prepared by the Attorneys or their firms at the expense of the BOCC (or for
which the BOCC is otherwise billed) are the property of the BOCC. Without the prior written
approval of the BOCC, this work product may not be used by the Attorneys or their firms nor
disclosed by the Attorneys or their firms to others, except in the normal course of the Attorneys'
representation of the BOCC in this matter. The Attorneys agree that the BOCC owns all rights,
including copyrights, to materials prepared by the BOCC or by the Attorneys on behalf of the
BOCC. The Attorneys shall notify the BOCC in writing at least 60 days in advance of destroying
any such records and, in the event the BOCC requests that they be preserved, shall preserve them
at least one additional year (with the BOCC responsible for paying the actual cost of storage). The
Attorneys shall provide the BOCC 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 attorneys' fees and expenses have been paid in full.
b) Dispute resolution: The Attorneys and the BOCC agree that all disputes regarding
attorneys' fees or expenses are to be resolved pursuant to the procedures and practices for
mediation by the Attorney Consumer Assistance Program of the Florida Bar.
c) Entire Agreement: The entire agreement between the BOCC and the Attorneys 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 BOCC and the Attorneys related to
this Agreement. No provision of this Agreement shall be deemed waived, amended or modified
by either party unless such waiver, amendment or modification is in writing and signed by the
party against whom the waiver, amendment or modification is claimed. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns.
d) Cooperation: In the event any administrative or legal proceeding is instituted against either
the BOCC or the Attorneys relating to the formation, execution, performance, or breach of this
Agreement, the BOCC and the Attorneys each agree to participate, to the extent required by the
other, in all proceedings, hearings, processes, meetings, and other activities related to the substance
of this Agreement. The BOCC and the Attorneys each agree that neither shall be required to enter
into any arbitration proceedings related to this Agreement or any Attachment or Addendum to this
Agreement.
e) Attorney's Fees and Costs: In the event any administrative proceeding or cause of action
is initiated or defended by the BOCC or the Attorneys relative to the enforcement or interpretation
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of this Agreement, the prevailing party shall be entitled to an award of reasonable attorney's fees,
court costs, investigative, and out -of- pocket expenses as an award against the non - prevailing party,
and shall include reasonable attorney's fees, court costs, investigative, and out -of- pocket expenses
in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this
Agreement or as may be required by a court of competent jurisdiction shall be conducted in
accordance with the Florida Rules of Civil Procedure and usual and customary procedures required
by the circuit court of the Monroe County Board of County Commissioners.
f) Authority: The signatories below warrant that they are authorized to enter into and bind their
respective entities to the terms of this Agremeeet.
g) Non - Discrimination: The Attorneys shall not discriminate, in their 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 BOCC, effective the date of the court order. The
Attorneys are aware of the provisions of Section 13 -101 through 13 -106, Monroe County Code,
relating to non - discrimination, and agree to abide by the Code's nondiscrimination requirements.
h) 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 BOCC and the Attorneys may execute this
Agreement by signing any such counterpart. Pursuant to Monroe County Ordinance No. 005-
2018, this Agreement may be executed using electronic signatures.
(Remainder of page intentionally left blank.)
IN WITNESS OF, the pa r - ties have executed this Agreement the day and year
first above written.
COMMISSIONERS MONROE COUNTY BOARD OF COUNTY
B y :
Attest: KEVIN MADO , Clerk of the
Court
By:
Mayor David Rice
Deputy Clerk
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
Digitally signed by Cynthia L. Hall
DIN cn= CynthiaL. Hall, o= Monroe
County SOCC, ou, —ail–hall-
cynthia @monroecounty- fl.gm, r –US
Date: 2018.09.0816:23:38 - 04'00'
Assistant County Attorney
91P s