Item N05 N.5
t, BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Heather Carruthers,District 3
IleOI1da Keys Mayor Pro Tern Michelle Coldiron,District 2
- p �pw° Danny L.Kolhage,District 1
aµ David Rice,District 4
Sylvia J.Murphy,District 5
County Commission Meeting
December 11, 2019
Agenda Item Number: N.5
Agenda Item Summary #6310
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger(305) 292-3470
No
AGENDA ITEM WORDING: Approval of Amendment to the Agreement with BAKER,
DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC for representation relating to the
County's appeal of FEMA's denial of costs to remove the $49,999.99 cap.
ITEM BACKGROUND: This Amendment will remove the $49,999.99 cap in the agreement dated
March 21, 2019. The Board approved/ratified the Agreement with Baker Donelson at its March 21,
2019 meeting and the Board directed the County Attorney to proceed with a request for arbitration of
FEMA's denial of reimbursement for $6,470,410.00 for base camp expenditures during the
aftermath of Hurricane Irma. Due to the specialized nature of this area of law, the County's legal
needs would be best served by outside counsel with expertise in this field. While the County has not
yet exceeded the amount of $49,999.99, it is anticipated that the cost for legal services will exceed
that amount as the County proceeds with an arbitration of this matter.
PREVIOUS RELEVANT BOCC ACTION: The Board Ratified the Agreement on March 21,
2019. On October 16th, 2019, the Board directed staff to proceed with a request for arbitration
regarding FEMA's denial of cost incurred for Hurricane Irma base camps.
CONTRACT/AGREEMENT CHANGES:
Removing $49,999.99 cap
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
Amendment to Baker Donelson Agreement to remove $49,999.99 cap
03/21/2019 Agreement
FINANCIAL IMPACT:
Effective Date: December 11, 2019.
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N.5
Expiration Date: Upon completion of FEMA appeal of denial of base camp invoices or other
FEMA appeals as assigned relating to Hurricane Irma Projects.
Total Dollar Value of Contract: TBD-Based upon rates set forth in the Agreement.
Total Cost to County
Current Year Portion: TBD
Budgeted: Yes
Source of Funds: 00101-530318
CPI: No
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant:
County Match:
Insurance Required: Yes, as set forth in the original agreement. The COIs were previously
provided when the original agreement was approved by the BOCC.
Additional Details:
03/21/19 001-67501 - COUNTY ATTORNEY GENERAL $0.00
FEMA appeal
REVIEWED BY:
Bob Shillinger Completed 11/25/2019 10:07 AM
Christine Limbert Completed 11/25/2019 10:50 AM
Budget and Finance Completed 11/25/2019 12:41 PM
Maria Slavik Completed 11/25/2019 2:58 PM
Kathy Peters Completed 11/25/2019 3:06 PM
Board of County Commissioners Pending 12/11/2019 9:00 AM
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AMENDMENT TO AGREEMENT
This Amendment to the Agreement dated March 21, 2019 is entered into this llt' day of
December, 2019,by and between Monroe County, a political subdivision of the State of Florida,hereafter
COUNTY, and BAKER DONELSON BEARMAN, CALDWELL & BERKOWITZ, PC, hereafter
ATTORNEY.
WHEREAS, on March 21, 2019, the COUNTY and BAKER DONELSON BEARMAN,
CALDWELL&BERKOWITZ,PC, entered into a contract to provide legal services and representation to
the COUNTY relating to FEMA's denial of cost incurred by the COUNTY; and 0
WHEREAS, on October 16, 2019, the Board of County Commissioners directed staff to proceed 0
with a request for arbitration of FEMA's denial of cost for the base camps utilized for Hurricane Irma;
and as
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WHEREAS, the original agreement has a cap of$49,999.99 which needs to be removed to allow
for payment of expenditures that exceed the cap;
Now therefore, in consideration of the mutual promises of the original agreement as amended r-
herein,the parties agree as follows: U)
1. Paragraph 6 of the Agreement shall be amended to read as follows:
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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 M
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 2
COUNTY'S behalf.
2. In all other respects, the remaining terms of the agreement entered into March 21, 2019, and E
not inconsistent herewith, shall remain in full force and effect.
as
(SEAL) BOARD OF COUNTY COMMISSIONERS
Attest: KEVIN MADOK, Clerk OF MONROE COUNTY, FLORIDA
as
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By By:
Deputy Clerk Mayor/Chairman a�
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BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC
as
By:
Ernest B. Abbott, Esq. a
OF COUNSEL and Authorized Representative E
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Kevin MIadok, cpA
Clerk of the Circuit Court& Comptroller-.. Monroe County, Florida
DATE: March 22, 2019
TO: Kathy Peters, CP 0
County Attorney's Office a
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FROM: Pamela G. Hancock, D.C.
SUBJECT: March 21 sf BOCC Meeting
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Attached is an electronic copy of N2,Agreement with Baker, Donselson, Bearman,
Caldwell & Berkowitz, PC for representation relating to the County's administrative appeal of E
FEMA's denial of costs,for your handling.
as
Should you have any questions,please feel free to contact me at (305) 292-3550. Thank
you.
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cc: Finance E
File
KEY WEST MARATHON PLANTATION KEY PK/ROTH BUILDI'N
50�0 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 High Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 33070 PI 70
305-294-4641 305-2801-6027 305-852-7145 3 Packet Pg. 1137
N.5.b
AGREEMENT BETWEEN MONROE COUNTY AND
BAKER,DONELSON,BEARMAN,CALDWELL&BERKOWITZ,PC
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THIS AGREEMENT,made and entered into thi day of March,2019,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
BAKER DONELSON BEARMAN,CALDWELL&BERKOWITZ,PC ("ATTORNEY")regarding
the retention of ATTORNEY by COUNTY to provide legal advice and services.
A
WHEREAS, it is in the public interest of COUNTY to have legal representation as set out below,and
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WHEREAS, the ATTORNEY has agreed to provide legal representation to the COUNTY as set forth
herein and in Attachment A.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the
parties agree as follows:
I. THE CLIENT
The Client is the COUNTY,acting by and through its duly elected and appointed officers and its
employees.
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2. THE ATTORNEY
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ATTORNEY is a Professional Corporation that is registered as a Florida Foreign Corporation named
above and whose legally authorized signature appears at the bottom of this Agreement. ATTORNEY is
licensed to practice law in Alabama, Florida, Georgia, Louisiana, Maryland, Mississippi, South Carolina,
Tennessee,Texas and District of Columbia. ATTORNEY has been retained to provide representation to
Monroe County in connection with FEMA's denial of cost incurred by the County. 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 until terminated by either the COUNTY, or by the c
ATTORNEY in accordance with ethical requirements and/or the terms of this Agreement.
4. SCOPE OF THE WORK
Our representation is limited to providing legal services and advice to Monroe County,Florida
("Client")in connection with:
FEMA's denial of cost incurred by the COUNTY, including a review of the County's
Administrative Appeal as filed on February 15,2019,to evaluate the strength of the appeal and, if
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appropriate,to prepare one or more supplements to the appeal,however this Agreement may be used
for any other services pertaining to other disputes with FEMA that may arise.
4.1 Professional abilityo 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 Ernest Abbott, 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 0
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. 0
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5. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS OF INTEREST
BEFORE INITIATING REPRESENTATION 0
ATTORNEY has conducted a thorough investigation and determined that neither ATTORNEY nor his
or her firm has any known 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 0
(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 0
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
Cleric on a schedule as set forth in the contract. The total dollar amount of this contract shall not exceed
$49,999.99 without prior approval 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
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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 0
billable.
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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: E
Ernest Abbott- Of Counsel $510.00
Wendy Huff Ellard-Shareholder $365.00
Michelle F. Zaltsberg-Associate $340.00
Danielle Aymond- Of Counsel $325.00
Macy Climo-Associate $275.00
Jordan Corbitt-Associate $250.00
Paralegal $190.00
With the written approval of the County Attorney, additional time keepers may be E
utilized by the ATTORNEY and billed at the following rates:
Shareholders $365 E
Associates $250-$340
Paralegals $190
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 the standard rates charged by the Approved Time Keepers
for.the type of services to be provided under the Agreement for other similarly situated public
and non-profit entities. ATTORNEY has agreed that these are the rates applicable to the
COUNTY for this particular matter.
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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 E
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. v
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
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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 0
Provide a general description of the matter, to include the name of the COUNTY department or o
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 o
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 tinder the requirements of this Agreement.
7.2.3 Time Records E
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 0
performed, it is expected that the services will be aggregated until the total actual time spent meets the 0
minimum billing increment. 0
7.2.4 Totals and By
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State the amount of time expended by each time-keeper broken down for each task. v
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.
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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, 0
overnight or expedited delivery, couriers, photocopying at $.15 per page, postage, court fees, and other
expenses approved in advance by COUNTY. In order to receive reimbursement Attorney must attach
copy of invoice from overnight or expedited delivery, couriers, long distance carriers and indicating
which calls are related to this agreement. All charges shall be reasonably documented on invoices to
demonstrate that the charge is related to this agreement.
7.3.1.1. Expedited or emergency services
ATTORNEY is expected to avoid using expedited or emergency services, such as express
delivery services, couriers, telecopying, overtime, and so on, unless necessary because of unexpected
developments or extremely short deadlines. COUNTY may refuse to pay for any such expenses when
incurred routinely or because of ATTORNEY'S failure to manage the matter efficiently.
7.3.1.2. Computerized research
ATTORNEY is expected to use computerized research services cost-effectively to reduce time
spent on research, for example,while closely-monitoring computerized research to insure that the charges
are reasonable and necessary. ATTORNEY is expected to pass through to COUNTY any discounts or
other arrangements that reduce the cost of computerized services. All charges shall be reasonably
documented on invoices to demonstrate that the charge is related to this agreement.
7.3.1.3.Photocopying
ATTORNEY is encouraged to use outside copying services if this will reduce the cost of large-
volume copying, provided that these expenses are efficient, cost-effective, and incurred and billed in
accordance with this Agreement. ATTORNEY is responsible for insuring that all copying complies with
copyright obligations. All charges shall be documented on. invoices to demonstrate that the charge is
related to this agreement.
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7.3.1.4.Transcripts
Transcripts should not be ordered without prior approval from COUNTY. Transcripts should not
be ordered on an expedited basis unless necessary and approved in advance by COUNTY. ATTORNEY
should obtain digital electronic/computerized copies of transcripts when available at'a reasonable cost to
avoid charging for time spent digesting or indexing transcripts, and to allow COUNTY to maintain a
digital electronic/computerized database of all transcripts.
7.3.1.5 Travel Expenses
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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 0
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.
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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, 0
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 snake it reasonable or necessary under this Agreement.) v
7.3.2.2.Experts, consultants, support services,outsourced services, etc.
ATTORNEY is-not authorized to retain experts, additional counsel, consultants, support services,
or the like, outside ATTORNEY'S law firm, without approval by County Attorney. If agreed to
ATTORNEY will be responsible for selecting and managing the services of others so that their services
and expenses will be rendered in accordance with the terms of this Agreement, including terms applicable
to ATTORNEY.ATTORNEY will manage others to obtain cost-effective services for COUNTY. Unless
otherwise agreed in writing, ATTORNEY shall obtain a written retainer agreement, in a form
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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 TemporaLy 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
"ouutsource" 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 0
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
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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 titne-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
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COUNTY will not pay for any"expense" items that are in fact part of ATTORNEY'S overhead,
which should be included within ATTORNEY'S fee, the determination of which expenses fall into this
category are strictly within the discretion of the COUNTY.
7.3.3. Advance approval of expenses
ATTORNEY shall obtain approval from COUNTY ATTORNEY before incurring any expense in
excess of $1,000.00 if ATTORNEY expects to be reimbursed for that expense. COUNTY, in its
discretion,may refuse to pay any expense for which approval was not obtained by ATTORNEY. 0
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 0
remaining reimbursable expenses and fees. COUNTY may refuse to pay any fees or expenses not billed
within 45 days of tennination 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
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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 0
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 o
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.
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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 o
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. E
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:
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Robert Shillinger,Esq. c
Monroe County Attorney
1111 12"'Street, Suite 408
Key West,Florida 33040
(305)292-3470(office)
(305)292-3516 (facsimile)
Shillinger-Bobnmonroecounty-fl.gov
9.1. Case monitoring
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COUNTY will be advised promptly by ATTORNEY of all significant facts and developments in
the matter so that COUNTY may manage the matter effectively and make informed decisions about
strategy,tactics, settlement, scheduling, costs, and other related matters. COUNTY will promptly receive
from ATTORNEY copies of all orders, opinions, pleadings, briefs, memoranda (internal and external),
correspondence, and any other document material to the subject matter of this Agreement, such that the
COUNTY will have a current, up-to-date, "mirror" copy of the COUNTY'S file maintained by
ATTORNEY. For'discoveiy 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 0
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.
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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.
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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. E
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 0
related to the subject matter of this Agreement. 0
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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 c
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
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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 0
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 cm
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 E
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
nterpretation
COUNTY and ATTORNEY agree that all disputes and disagreements between them regarding
interpretation of the Agreement shall be attempted to be resolved by a meet and confer session between
representatives of COUNTY and ATTORNEY. If the issue or issues are still not resolved to the
satisfaction of both within thirty (30) days after the meet and confer session, then either shall have the
right to terminate the Agreement upon ten(10)business days' notice in writing to the other party.
12.3 Legal or Administrative procedures M
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.
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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
3
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
0
FOR ATTORNEY
Ernest B.Abbott
901 K Street,N.W., Suite 900 E
Washington,D.C.20001 .�
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.
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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.
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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
A
ATTORNEY agrees that, unless specifically exempted or excepted by Florida law or Rules and
Regulations of The Florida Bar, the provisions of Chapter 119, Florida Statutes, generally require public
access to all records and documents which may be made or received under this Agreement. ATTORNEY
agrees to consult with the County Attorney's office concerning the application of the Public Records Law
from time to time concerning specific circumstances that may arise during the term of this Agreement. _
Public Records Compliance. ATTORNEY must comply with Florida public records laws, 3
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, E
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 0
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
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from the County's custodian of records, in a format that is compatible with the information technology
systems of the County.
(5) A request to inspect or copy public records relating to a County contract must be made directly
to the County, but if the County does not possess the requested records, the County shall immediately
notify the ATTORNEY of the request, and the ATTORNEY must provide the records to the County or
allow the records to be inspected or copied within a reasonable time.
If the ATTORNEY does not comply with the COUNTY's request for records, the COUNTY shall 0
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 o
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.
a
The ATTORNEY shall not transfer custody, release, alter,destroy or otherwise dispose of any public 0
records unless or otherwise provided in this provision or as otherwise provided by law. E
IF THE ATTORNEWCONTRACTOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
ATTORNEY/CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305-292-3470 E
BRADLEY-BRIANna MONROECOUNTY-FL.GOV, MONROE COUNTY
ATTORNEY'S OFFICE 1111 12Tx 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.
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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
0
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 E
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 0
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.
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23. RECORDS `D
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.
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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 0
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ATTORNEY warrants that he or she has not employed, retained or otherwise had act on his o
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 CREVIE STATEMENT o
Florida law provides that person or affiliate who has been placed on the convicted vendor list o
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 E
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 v
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
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Any and all modifications and Amendments of the terns of this Agreement shall be in writing
and executed by the Board of County Commissioners for Monroe County and by ATTORNEY in the
same manner as this Agreement.
29. INDEPENDENT CONTRACTOR
At all times and for all purposes hereunder,ATTORNEY is an independent contractor and not an
employee of the Board of County Commissioners of Monroe County. No statement contained in this
Agreement shall be construed so as to find ATTORNEY or any of the authorized time keepers, to be the 0
employees of the Board of County Commissioners of Monroe County, and they shall be entitled to none 0
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 VII 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 v
discrimination on the basis of age; 5)The Drug Abuse Office and Treatment Act of 1972(PL 92-255), as Q
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 ss. 12101), as maybe amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Monroe County Code Chapter 14, Article I1, which
prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual
17
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' N.5.b
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 0
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
ATTORNEY and additional timekeepers in the amount of$5 Million. ATTORNEY agrees to keep the
same amount of coverage or more at all times and to provide proof of said coverage to COUNTY at .�
COUNTY'S request at any time during the term of the Agreement..
37. NO PERSONAL LIABILITY
No covenant or obligation contained in this Agreement shall be deemed to be a covenant or
obligation of any member, officer, agent or employee of the Board of County Commissioners of Monroe
County in his or her individual capacity and no member, officer, agent or employee of the Board of
County Commissioners of Monroe County shall be liable personally on this Agreement or be subject to v
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
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N.5.b
Due to litigation, court scheduling constraints and in order to allow ATTORNEY to begin
representation in a timely manner this agreement may be executed by the County Attorney prior to final
approval of the Board of County Commissioners; in the event that the agreement is not approved by the
Board of County Commissioners, ATTORNEY shall submit an invoice for the time and expenses
incurred from the date of execution by the County Attorney until the Board of County Commissioners
voted not to approve this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 0
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the day and
date first Written above.
MONROE TY
By: /✓
Roman Gastesi:
County Administrator for Monroe County,Florida
Date: Inl-1-01 11,.Z I .
SAKE O ELSO , AN CA WELL & BERKOWITZ,PC F` ',z' ti
7
By. E bbott,Esq. . L, n
OF COUNSEL and Authorized Representative ny
•' d as
DATE:
THE BOARD OF COUNTY COMMISSIONERS hereby ratify the foregoing Agreement
between Monroe County and BAKER,DONELSON,BEARMAN, CALDWELL&
.,BERKOWITZ',NPC.
v �
(SEAL) &1.� --,t BOARD OF COUNTY COMMISSIONERS
Attest KEVINMADOK OF MONR E COUNTY
yT, y
Deputy Clerk ayor
DATE:
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MONROE COUNTY ATTORNEY ca
P 0 D AS TO F RM
�J��f�t-s�% :�er -
CHRISTINE LIMBERT-BARROWS
ASSISTANT COUNTY AT RNEY
DATE: 1
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N.5.b
Attachment A
Letter of Engagement
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I� SON '901 K STREET,N.W.
BAKER-DONE�p.1 SUITE 940
BEARMAN, CALDWELL BERKOW1TL, PC WASHINGTON,D.C.20001
PHONE: 202.568.3400
FAX: 202.508,3402
i
WWW.bakerdonelson com
ERAIEST B.Anarr,OF COUNSEL
Direct Dial:202.508.3425
Direct Fax:202.226.2225 U)
E-Mail Address:ealbb-ott@bakerdonelson.com
0
March 1,2019
1TRANSM TE D By lE-n4m(SiuLLi11GER-BoB@Mo1RoFCou1TY-F L. v)
Robert Shillinger E
Chief Assistant.County Attorney
Monroe County Attorney's Office
1111 12th Street
Suite 408
c
Key West, FL 33040
0
RE: Hurricane Irma Response and Recovery- FEMA
Dear Mr. Shillinger:
We are pleased that 'Monroe County has asked Baker, Donelson, Bearman, Caldwell & S
Berkowitz, PC to assist with FEMA issues arising from Hurricane Irma, and specifically with the
County's administrative appeal of FEMA's denial of a significant costs incurred by the County under its E
debris removal contract(s). It would be our pleasure to work with you on'this matter and others as we
may mutually agree in the future.
The work we discussed was to review the County's administrative appeal as filed on February.
15, 2019, to evaluate the strength of the appeal and, if appropriate, to prepare one or more supplements
to the appeal to increase the probability of success. however, this engagement is broad enough to allow
us to perform services pertaining to any other dispute with FEMA that may arise as hurricane Irma PW
obligations go forward. E
This letter, when executed byMonroe County, confirms our engagement as counsel and provides
certain information concerning our fees, billing and collection policies, and other terms that will govern
our relationship. Although we do not wish to be overly formal in our relationships with our clients, we
have found it a helpful practice to confirm with our clients the nature and terms of our representation. (1
do understand that Monroe County may wish to use a Monroe County form of contract in lieu of this
letter, and we will of course review it,to assure its terms are.acceptable.)
ALABAMA-FLORIDA a GEORGIA-LOUISIANA-MARYLAND-MISSISSIPPI-SOUTH CAROLINA TENNESSEE-TEXAS e VIRGINIA o WASHINGTON,D.C_
4835-1677-4537v 1
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Mr. Robert Shillinger
March 1, 2019
Page 2
Our engagement will be terminable at will by either of us, subject to payment of all fees for
services performed and costs advanced through the date of termination.
We will bill you monthly based upon hourly rates. My current rate is $510 per hour. The rates
of the Baker Donelson disaster recovery group lawyers likely to be assigned to this matter range from
$275 per hour to $365 per hour, and the rate of the disaster recovery group paralegal (primarily used for
cite/fact checking and filing logistics is $190 per hour. Our rates are periodically adjusted and the rates 0
of attorneys working on your matter may be raised based on market considerations and/or increased
seniority or specialization of the lawyers involved upon thirty (30) days written notice. You will be e
billed for reasonable expenses, such as travel,binding and photocopy expense,telecopies, etc. a�
If we are called upon to issue any written opinion, comfort or other similar letters, it is our
practice to charge a premium in addition to billings at hourly rates. Of course, any premium billings will
be discussed with you in advance. Attached to this letter is a summary of the terms of engagement that
will apply to our representation. Please review these and let me know if you have any questions
0
concerning our policies.
This engagement is limited in scope in the following respects. The Firm is not Monroe County's
general counsel; while there are a plethora of issues from this natural disaster, the Firm is only engaged
for a few discrete tasks. Specifically, the Finn agrees to engage as the Monroe County's counsel on
FEMA issues arising from Hurricane Irma, including administrative appeal of FEMA determinations,
advice on how to comply with FEMA, eligibility regulations and policies applicable to FEMA disaster
assistance grants, work funded by federal grant funds, and the interplay between disaster assistance and E
insurance and other funding. This may include review, for FEMA eligibility and federal grant
regulatory compliance, of various contracts and forms of contract for Monroe County, including those
funded in whole or in part by state and federal grants, and review of leases and insurance policies for
their impact on federal assistance. We have not been engaged to perform any other services. When our
advice and assistance on these matter(s)is concluded, this limited scope engagement will be concluded.
We have explained to you that Baker Donelson represents abroad range of clients that may be
involved in various aspects of recovery efforts from natural disasters such as Hurricanes Matthew,
Harvey, Irma, Maria, Irma and Michael. Those clients include states and municipalities and their 2
various agencies, specifically including local governments and public authorities; non-profit entities
eligible for FEMA disaster assistance; private contractors that engage in multiple industries, including COD
program management, design and engineering, debris removal and construction; other public and private
property owners; project owners; insurance companies; and third party administrators and individuals.
We also have a robust pro bono practice as our lawyers contribute their time to those in need. Thus, the
Firm assists a number of different types of public and private entities and individuals, both regarding
their FEMA claims and appeals and to represent contractors in various clean-up, removal and
construction industries.
In the course of our representation, the Firm may obtain confidential information regarding one
party which may be of interest to the other. We cannot disclose such information. The Finn plans to
vigorously represent Monroe County in this engagement as outlined above and will vigilantly protect the
confidentiality of our communications with Monroe County. We also plan to vigorously represent the
4835-1677-453M
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Mr.Robert Shillinger
March 1, 2019
Page 3
Firm's other clients on their matters and will vigilantly protect the confidentiality :of our
communications with these other clients as well.
Monroe County acknowledges in this engagement the Firm's representation of these other clients
and their claims and agree-that by accepting this limited scope engagement,Baker Donelson will not be
precluded from representing the Finn's other clients now and in the future in these various aspects..of the
disaster recovery process including transactions and litigation, unless the specific work and advice we U)
provide to Monroe County, or the specific project that is subject of an administrative appeal we pursue
on behalf of Monroe County, is directly at issue. Monroe County also acknowledges that the Firm's e
review of a specific contract or form of contract for FEMA and federal regulatory compliance is not a
general,engagement with.respect to that contract or project and is not an engagement to review the scope
of work, design, engineering, change orders, or contract performance. Accordingly, should a dispute
later arise between vendors or contractors and Monroe County; Baker Donelson's work reviewing a
contract for FEMA compliance under this engagement does not present a conflict for Baker Donelson':s
representation of the vendor or contractor adverse to Monroe County. Thus, some of Firm's E
representations of other clients as noted above may bear a relationship to similar FEMA work we
perform for Monroe County and some of our other clients may even be adverse to Monroe County in
transactions and disputes, including litigation. You and the Firm.agree that so long as the specific work
and advice we provide to Monroe County is not directly at issue and so-long as we do not divulge any of
Monroe County's confidences, we may represent our other clients in those matters. This engagement
includes Monroe County's waiver of the conflicts of interest that might otherwise arise by virtue of our B
-engagement with Monroe County as outlined herein and consent to the representation by Baker
Donelson of other parties in transactions and disputes,including future litigation.
If the terms described above-arid in the attached summary are satisfactory, please have a copy of
the letter signed and returned to me.
We are grateful for the opportunity to work with you in connection with this matter, and we look E
forward to a mutually satisfactory relationship.
Siz-_Hy� CD
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Ernest B. Abbott
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Enclosures
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AGREEMENT WAIVER:AND CONSENT
We. have carefully read the foregoing letter, have considered all information necessary and useful in
4835=1677-4537v1
Packet Pg. 1161
Mr. Robert Shillinger
March 1, 2.019
Page 4
determining whetheror not to consent to the-representation outlined above and to waive the conflicts of
interest described therein. We have been encouraged to consult with independent counsel regarding this
consent to representation and waiver of the conflicts of interest. We are fully aware of our legal rights
in this regard. Upon reasoned reflection,we hereby voluntarily agree to waive these conflicts of interest
and confirm our consent to the Baker Donelson representations as outlined above. In addition, we agree
that we will respect the confidences of the other clients with Baker Donelson and the attorney-client
privilege with respect to the;other clients.of Baker Donelson.
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4835-1677-4,537v1
Packet Pg. 1162
BAKER,DONELSON,BEARMAN,CALDWELL&BERKO.WITL, llC.
TERMS OF ENGAGEMENT
We appreciate your decision,to retain Baker,Donelson,Bearman, 8. SCOPE OF OUR DUTIES. We .will provide the legal services
Caldwell&Berkowitz, P.C. (the"Firm") as your legal counsel. Our generally described-in the engagement letter that accompanies this
initial engagement is limite4 to the matter(s) identified in the attachment. You will provide us with such factual information and
engagement letter that accompanies this attachment. The following materials as we require to perform the services identified in the
summarizes our billing practices and certain other terns that will apply engagement letter,and will make such business or'technical decisions
to our initial and any future engagement., and determinations as are-appropriate. It is understood that you are
1. MoNTHLY BILLING. We will bill monthly throughout the not relying on us for business,investment,or accounting,decisions,or
engagement for a particular matter, absent an express agreement to to investigate the character or credit of persons with whom you may be
the contrary,and our statements are'due within 30 days from the date dealing, unless otherwise specified in the letter. We will keep you
they were rendered. In instances in which we represent more than one advised of developments as necessary to perform our services and will
person with respect to a matter;each person that we represent is jointly consult with.you as necessary to ensure the timely, effective and
and severally responsible for our fees and expenses with respect to the efficient completion of our work.
representation. Our statements contain a concise summary of each 9. ETHICAL MATTERS. Regarding the ethics of our profession 0
matter for which legal services are rendered and a fee was charged, that will govern our representation,several points deserve emphasis.
2. DEUNQUENCIES. 'In the event that a statement is not fully As a matter of professional responsibility,we are required to preserve
paid within 60 days from the.date it was rendered,we will have the the confidences and secrets of our clients. This professional obligation
discretion to determine whether our withdrawal from this matter is and the legal privilege for attomey-client communications exist to
appropriate under the circumstances. By retaining us under these encourage candid and complete cornimunication between a client and
terms, you,agree that we are entitled to,attorneys'fees and costs if its lawyer. We cart perform truly beneficial services for a client only if
collection activities are necessary. You also agree that non-payment of we are aware of all information that might be relevant to our
statements shall entitle us to stop work and withdraw from your representation. Consequently, we trust that our _attorney-client
representation in any court or administrative proceedings and you relationship with you will be based on mutual confidence and
agree not to contest any such withdrawal. unrestrained communication that will facilitate our proper representation
3. RETAINERS AND ESTIMATES. When establishing fees for of you. Additionally,you should be aware that,in instances in which we
services that we render,we are guided primarily by the time and labor represent a corporation,limited liability company,limited partnership or
required,although we also consider other appropriate factors,such as similar legal entity,our client relationship Is with the entity and not with C:
the novelty and difficulty of the legal issues involved; the legal skill its individual executives,shareholders,directors,partners,or persons in
required to perform the particular assignment; time-saving use of similar positions. in those cases,our professional responsibilities are
resources(including research,analysis,data and documentation)that owed to the entity. Of course, we can also represent individual
we have previously developed and stored electronically or otherwise in executives, shareholders, partners and other persons related to the
quickly retrievable form;the fee customarily charged by comparable entity in matters that do not conflict with the interests of the entity.
firms for similar legal services;the amount of money involved or at risk- Because we are a large,full-service law firm with offices located
and the results obtained; and the time.constraints imposed by either throughout Tennessee,in Alabama,in Florida,in Georgia,In Louisiana,
you or the circumstances. The firm generally requires a retainer in an in Mississippi,in Texas and in Washington,D.C., lawyers in one office C:
amount which is appropriate with respect to the prbposed or practice area may be(and often are)asked to represent a client with
representation. Unless otherwise agreed,the retainer will be applied to respect to interests that are adverse to those of another client who is 0
the last statement rendered In connection with the representation. If represented by the firm in connection with another matter. Just as you
any unearned portion of a retainer exceeds$20.00,it will be refunded would not wish to be foreclosed in an appropriate situation from
to you. Otherwise,it will be retained by the firm. retaining a law firm that Competes with the Firm,the Firm wishes to be
4. INOUiRIES AND BILLING FORMATS. We, invite our clients to able to consider the representation of multiple competitors in.your
discuss freely with us any questions that they have Concerning a fee industry or other clients who may have interests that are potentially �
charged for any matter. We want our clients to be satisfied with both adverse to your Interests,but with respect to matters that are unrelated
the quality of our services and the reasonableness of the fees that we in any way to our representation of you. The ethics governing the legal
charge for those services. We will attempt to provide as much billing profession permit law firms to accept such multiple representations �
information as you require and in such customary form that you desire. assuming certain criteria are met as discussed below. 4)
5,DELEGATION AND PERIODIC CHANGES IN RATES,In determining During the term of this engagement, our primary obligation and
a reasonable fee for the time and labor required for a particular matter, goal is to meet ,the legal needs of you - our valued client.
we consider the ability, experience and reputation of the lawyer or Consequently, we agree that we will not accept representation of
lawyers in our firm who perform the services. to facilitate this another client to pursue interests that are directly adverse to your
determination,we internally assign to each lawyer an hourly rate based interests unless and until we have made full disclosure to you of all the C:
on these:factors. When selecting lawyers to perform services for a relevant facts, circumstances and implications of our undertaking the
client,we generally seek to.assign lawyers having the lowest hourly two representations,and you have consented to'cur representation of E
rates consistent with the skills, time demands and other factors the other client. You agree, however,that you will be reasonable In
influencing the professional responsibility required for each matter. Of evaluating such circumstances and that you will give your consent if we
Course, our internal allocation of values for lawyer times changes can confirm to you In good faith that the following Criteria are met: (I) CD
periodically to account for increases in our cost of delivering legal there is no substantial relationship between any matter in which we are
service,other economic factors,and the augmentation of a particular representing or have represented you and the matter for the other
lawyer's ability,experience and reputation, We record and bill our time client; (i) our representation of the other client will not implicate any
in one-tenth hour(six minute)increments. confidential information we have received from you; (iii) our effective C`t
6. EXPENSES. In addition to legal fees, our statements may representation of you and the discharge of our professional
include out-of-pocket expenses that we have advanced on your behalf responsibilities to you will not be prejudiced by our representation of the N
and other charges(which may exceed direct costs)for certain support other client;and(iv)the other client has also consented in writing based t+f
activities. The Firm reserves the right to submit expenditures of on our full disclosure of the relevant facts, circumstances and
$100.00 or more to you for direct payment to the service provider. implications of our undertaking the two representations.
Advanced casts generally will include such items as travel expenses, By making this agreement,we are establishing the criteria that
postage,riling,recording,certification and registration fees Charged by will govern the exercise of your right under applicable ethical rules to
governmental bodies. Our charges typically include such items as long withhold consent to our representation of another client whose interests
distance telephone calls, facsimile transmissions, overnight courier are adverse to yours, You will retain the right,of course,to contest in cy
services,computer research .and charges for photocopying materials good faith our representation that the criteria have been met,in which
sent to you or third parties agree'
required for our use. Unless otherwise- event we would have the burden of supporting our representations to
specifically agreed,you agree to pay us for these other charges on the you.
following basis:(a)long distance telephone-published long distance The Frm's Privacy Policy is attached.
rates;(b)facsimile transmissions-S1.00 per page for outgoing faxes
and no charge for Incoming faxes; (6)computerized legal research is 10.TERMINATION OF SERVICE. Upon completion of the matter to
charged at the rates charged to us by the service provider;and (d) which this representation applies, or upon earlier termination of our
photocopying-$.20 per page, relationship,the attomey-client relationship wiil'end unless you and we
7. THIRD PARTIES SUCH As EXPERTS AND COURT REPORTERS. have expressly agreed to a continuation,with respect to Other matters.
During the course of our representation, it may be-'appropriate or We hope,of course,that such a continuation will be the case. The
necessary to hire third parties to provide services on your behalf, representation is terminable at will by either party subject to ethical
These services may include consulting or testifying experts, restraints and the payment of all fees,aitd costs. In the unusual event
investigators, providers of computerized litigation support and court that a court of competent jurisdiction refuses to permit the Firm to
reporters. Because of the legal"work product"protection afforded to withdraw upon termination,you remain responsible for fees and costs.
services that an attorney requests from third parties, in certain Your agreement to this engagement constitutes your acceptance
situations our firm may assume responsibility for retaining the of the foregoing terms and conditions. If any of them is unacceptable to
appropriate service providers. Even if we do so,however,you will be you,please advise us now so that we can resol4e any differences and
responsible for paying all fees and expenses directly to the service proceed with a clear, complete and consistent understanding of our
providers or reimbursing us for these costs. relationship.
Packet Pg. 1163
BAKER,DONELSON,BEARBRAN,CALDWELL&BERKO\'VITZ;P.C.
PRIVACY POLICY
Under a recently adopt@d federal law;attorneys in some circumstances may be required to inform:their clients of their
policies regarding privacy of client information. Attorneys have been and continue to be bound by professional
standards of client confidentiality that are even more stringent than those required by law, Therefore, we have
always protected,your right to privacy and the confidentiality of your information.
Types of Nonpublic Personal Information We Collect
We collect nonpublic personal information about you that is provided to us by you or obtained by us with your
authorization.
Parties to Whom We Disclose Information
For current and former clients,We do not disclose any nonpublic personal information obtained in the course of our Qs
practice except as agreed to by you,or as required under applicable law.
Protecting the Confidentiality and Security of Current and Former Clients'Information
We retain records relating to professional services that we provide so that We are better able"to assist you and,in
some cases, to comply with professional guidelines.. In order to guard your nonpublic personal information, we
maintain physical,electronic,and procedural safeguards that comply with our professional standards.
Please call if you have any questions, because your privacy,our professional ethics,and the ability to provide you
with quality legal services are very important to us.
This notice requirement only applies to nonpublic personal information about individuals who obtain financial products
or services primarily for personal,family,or household purposes,and does not.apply to information"about companies 0
or individuals who obtain such products or services for business,commercial,or agricultural purposes. 2
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