08/18/2021 Agreement �y Kevin Madok, CPA
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Clerk of the Circuit Court& Comptroller— Monroe County, Florida
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DATE: August 23, 2021
TO: Abra Campo
County Attorney's Office
FROM: Sally M. Abrams, D.C.
SUBJECT: August 18 BOCC Meeting
Attached, for your handling, is an electronic copy of Item R12, agreement with the law
firm of White & Smith, LLC to provide outside counsel services to the County Attorney's
Office and the Planning and Environmental Resources Department retroactive to August 1, 2021
and rescinding the June 21, 2006 agreement plus all amendments with that firm.
Should you have any questions,please feel free to contact ine at ext. 3550.
cc: Finance
File
KEY WEST MARATHON PLANTATION( KEY PK/ROTH BUILDING
500 Whitehead Street 3117 Overseas Highway 88820 Overseas Highway 50 Higih(Point Road
Key West,Florida 33040 Marathon,Florida 33050 Plantation Key,Florida 330,70 Plantation Key,Florida 33070
305-204-4641 305-2801-6027 305-852-7145 305-852-7145
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 18th day of August 2021, by and
between MONROE COUNTY, hereinafter referred to as Client, and White & Smith, LLC,
hereinafter referred to as the Firm.
WHEREAS, the Client requires certain professional legal and planning services; and,
WHEREAS, the Firm represents that it is capable of providing such Services:
NOW THEREFORE, in consideration of the promises contained herein, the parties hereto agree
as follows:
ARTICLE 1 - EFFECTIVE DATE AND TERM
The effective date of this Agreement shall be August 1, 2021. The Agreement shall continue in
full force and effect until terminated either by the Firm or by the Client. Monroe County's obligation
to pay is contingent upon annual appropriation by the Monroe County Board of County
Commissioners. This agreement shall replace the prior agreement between the parties plus all
of its amendments.
ARTICLE 2 —THE PARTIES
The Client is Monroe County, acting by and through its duly elected and appointed officers and
its employees.
The Firm is a business entity licensed to do business within the State of Florida. The primary
attorney named below is licensed to practice law within the State of Florida and will be responsible
for providing legal services to the County Attorney under this Agreement. However, other
timekeepers in the Firm may support the work of the primary attorney and provide other planning
expertise. The Firm may not outsource the work covered by this Agreement without full written
disclosure and prior written approval from the County acting through the County Attorney.
The primary attorney providing legal services under this Agreement shall be Tyson Smith. Other
timekeepers may be assigned, as provided for in Article 4.
The Firm will communicate as appropriate with the County by e-mail, which may not be secure.
However, the County and the Firm will not rely upon e-mail communications for matters that are
urgent. The point of contact for this matter at County is the County Attorney, the Director of
Planning and Environmental Resources, or the County Attorney's or Director's respective
designees.
The County Attorney, or other County official designated by the County Attorney will timely inform
the primary attorney for the Firm of any Board, Commission, or other agency action related to all
matters to which the Attorney has been assigned, which would impact upon the Firm's
representation of the County in this matter.
Communications by the Firm to a designated County point of contact shall be considered
communications to the County. If the designated point of contact wishes the Firm to communicate
any information or opinion directly to the Board of County Commissioners, the County designee
will request in writing that the primary attorney to do so.
ARTICLE 3 -- SERVICES TO BE PERFORMED
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The Firm shall provide planning and legal advice and legal representation to the Client with regard
to the following subject matter areas as requested by the Monroe County Attorney, the Director
of Planning and Environmental Resources, or their respective designees and subject to the prior
approval of the Firm: Matters related to the County's Planning and Environmental Resources
Department or County Attorney's Office as assigned in writing by the County Attorney.
Firm timekeepers shall consult directly with the office of the County Attorney, or the County
Attorney's designee, or the Director of Planning and Environmental Resources, , or the Director's
designee, on an as needed basis on issues relating to land use and to growth management,
including research of state, federal and local laws and cases; review of county documents
including plans, regulations, policies, resolutions and other relevant material; the preparation of
memoranda, ordinances, plans and other documents as specified by the County Attorney or the
Director. This is specifically not an agreement for representation in litigation; however, the County
Attorney may expressly request a legal or planning opinion which may relate to litigation, and the
Firm may accept to advise the County on that topic or not as the Firm's expertise applies.
3.1 No Conflicts.
The Firm has conducted a thorough investigation and determined that neither the Firm nor its
employees have any ethical impediment, real or potential, to representing the County. If any such
impediment arises, the Firm shall immediately take steps required by Florida Bar rules, if
applicable, to resolve the conflict or withdraw from representation. If a conflict of interest arises
that cannot be avoided or mitigated under the Rules of Professional Conduct of the Florida Bar,
the County may, in its discretion, (a) obtain reimbursement from the Firm for all fees and costs
paid to the Firm in this matter related to the conflict; and (b) obtain cancellation of all further
amounts allegedly owed by the County to the Firm related to the conflict.
3.2 Professional Ability to Perform Work; Contract Manager.
The Firm warrants that it is authorized by law to engage in the performance of the work described
herein, subject to the terms and conditions set forth in this Agreement. The Firm shall designate
Tyson Smith as the contract manager, who at all times shall exercise independent professional
judgment and shall assume professional responsibility for the services to be provided. The Firm
warrants that the authorized timekeepers are authorized by law and by the Rules and Regulations
of the Florida Bar, where applicable, to engage in the performance of the activities encompassed
by the Agreement.
3.3 Management of Timekeepers.
The Firm is responsible for managing the matter cost-effectively and competently. The Firm shall
ensure that additional timekeepers 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, as applicable.
ARTICLE 4 - COMPENSATION
4.1 FEES:
The following are approved timekeepers and their hourly rates:
Name Hourly Rate
E. Tyson Smith $250 normal billing (legal) and $225 (planning)
E. Tyson Smith $275 when travel is required for authorized
County business
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S. Mark White $250 normal billing (legal) and $225 (planning)
Legal Associates $175
Planners $125
Interns $50
The initial timekeeper categories approved by the County are listed above. These categories of
timekeepers may be amended from time to time upon the prior written approval of the Monroe
County Attorney. In the event that categories are added, their billing rates shall be shown above,
as may be amended from time to time.
4.2 COSTS:
a. Travel expenses for timekeeper travel in excess of 50 miles from the timekeeper's office
will be reimbursed in accordance with and at the rate set forth in the applicable provisions
for "approved travelers" in the Monroe County Code, and will be summarized on the
Monroe County Travel Form with all applicable receipts attached.
b. Travel expenses, including but not limited to, transportation, food, and hotel or other
accommodations, shall not be billed separately, but shall be reimbursed included in the
rate of$275 per hour as listed in section 4.1 above.
c. Other reimbursable expenses will include court filing fees and costs, witness fees
(including experts and consultants), transcripts, and court reporter fees. Pre-approval
from the County must be obtained for these items. The Firm shall attach copies of
statements or receipts showing that payment has been made together with any and all
backup documentation to substantiate the expense to the invoice.
d. All reimbursable expenses outlined above must be passed through without markup.
e. All other costs will be non-reimbursable, including but not limited to postage (including
overnight mail), photocopies, facsimiles, telephone charges, courier charges, and
computerized research.
4.3 RETAINER
A retainer will not be required.
4.4 BILLING
All invoices shall be sent to the Client on a monthly basis. All invoices shall be paid in accordance
with Florida Local Government Prompt Payment Act unless there are disputed charges. All billing
shall be done in .10 hour increments.
Each invoice shall list the names of the attorneys or planners working on each matter and the
amount of time expended on the matter by each attorney or planner, on a daily basis, with a short
description of the work performed for that billing entry. Each invoice will be submitted with
supporting documentation in a form acceptable to the Clerk of Courts, based on generally
accepted accounting principles, and such laws, rules and regulations as may govern the Clerk's
disbursal of funds.
The Firm will bill the County only for time reasonably and necessarily incurred to render
professional services on the County's behalf in accordance with this Agreement. Time attributable
to resolving billing questions is not billable. Time expended by timekeepers not included in the
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timekeeper categories above is not billable, unless expressly authorized by the County Attorney
prior to work performed or expenses incurred.
The County Attorney will receive early and frequent evaluation of all matters. If the Firm is
authorized and undertakes litigation services as provided above and the Client is not likely to
prevail in litigation, in the Firm's reasonable estimation, the County Attorney will be advised in
order to minimize litigation costs, and settle the case.
ARTICLE 5 - STANDARD OF CARE
The Firm shall exercise the same degree of care, skill, and diligence in the performance of the
Services as is ordinarily provided by legal and planning professionals under similar circumstances
and the Firm shall, at no additional cost to the Client, re-perform services which fail to satisfy the
foregoing standard of care.
ARTICLE 6 - COMPLIANCE WITH LAWS
In performance of the Services, the Firm will comply with applicable regulatory requirements
including federal, state, and local laws, rules regulations, orders, codes, criteria and standards.
ARTICLE 7 - INSURANCE
During the performance of the Services under this Agreement, the Firm shall maintain
Professional Liability Insurance, which shall be written by an insurance company authorized to do
business in Florida. This insurance shall provide coverage against such liability resulting from
this Contract. The minimum limits of coverage shall be $1,000,000 per claim and aggregate.
The Firm will provide workers compensation insurance coverage as required in South Carolina
and Missouri.
The Firm will provide Employers Liability coverage in the amounts of$500,000 for bodily injury by
accident, $500,000 for bodily injury by disease, policy limits, and $500,000 bodily injury by
disease, each employee.
The Firm will provide Commercial general liability coverage in the amount of$1,000,000.
The Firm will provide vehicle liability coverage in the amount of$300,000.
Certificates of insurance showing coverage in the amounts shown above is in force shall be on
file at the time of initial execution of the Agreement by both parties. The Firm shall maintain
coverage in force at all times. Thereafter, the Firm shall supply new certificates of insurance,
showing coverage in force, whenever the policy lapses or is replaced by another policy.
ARTICLE 8 — MODIFICATION and TERMINATION OF AGREEMENT
Any modification or amendment to this Agreement requires the prior express written consent of
both parties.
Client shall have the right to terminate this Agreement or suspend performance thereof without
cause for the Client's convenience upon written notice to the Firm, and the Firm shall have the
right to terminate or suspend performance of Services upon written notice to the Client and upon
terms consistent with the Rules Regulating the Florida Bar and the State and Federal Rules of
Civil Procedure, if applicable.
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Upon termination and upon timely request of Client, the Firm agrees to return copies of all
documents in its possession of any nature related to the Firm's representation of the County that
have not previously been provided to the County.
ARTICLE 9 - UNCONTROLLABLE FORCES
Neither the Client nor the Firm shall be considered to be in default of this Agreement if delays in
or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the exercise
of reasonable diligence, the non-performing party could not avoid. The term "Uncontrollable
Forces" shall mean any event which results in the prevention or delay of performance by a party
of its obligations under this Agreement and which is beyond the reasonable control of the
non-performing party. It includes, but is not limited to fire, flood, earthquakes, storms, lightning,
epidemic, war, riot, civil disturbance, sabotage, and governmental actions (unless such
governmental action is the nonpayment of legal fees).
Neither party shall, however, be excused from performance if nonperformance is due to forces
which are preventable, removable, or remediable and which the non-performing party could have,
with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable
dispatch. The non-performing party shall, within a reasonable time of being prevented or delayed
from performance by an uncontrollable force, give written notice to the other party describing the
circumstances and uncontrollable forces preventing continued performance of the obligations of
this Agreement.
ARTICLE 10 - DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the State of
Florida. Venue shall be in the Circuit Court of the 16th Judicial Circuit or the U.S. District Court
for the Southern District of Florida. The prevailing party in any proceeding to resolve a dispute
under this Agreement shall be entitled to recover reasonable expenses, including attorney's fees
and costs, awarded by a court of competent jurisdiction.
ARTICLE 11 - NOTICE
Any notice required to be given under this Agreement shall be in writing and delivered by certified
mail, return receipt requested, to the other party as follows:
For Monroe County: For the Firm:
Robert B. Shillinger, Esq. Tyson Smith, Esq., AICP
Monroe County Attorney White & Smith, LLC
1111 12th St. Suite 408 PO Box 20954
Key West, FL 33040 Charleston, SC 29413
Tel.: (305) 292-3470 Tel: (843) 937-0201
Fax: (305) 292-3516
ARTICLE 12 - ETHICS CLAUSE
The Firm warrants that it has not employed, retained or otherwise had acts on its behalf any
former Monroe County Code officer or employee in violation of Section 2 of Ordinance 10-1990
or any current County officer or employee in violation of Section 3 of Monroe County Ordinance
10-1990. For breach or violation of this provision, the County may, at its discretion, terminate this
Agreement without liability and may also deduct from the amount owed the full amount of any fee,
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commission, percentage, gift or consideration paid to the former or present County officer or
employee.
The parties recognize and agree that officers and employees of the COUNTY recognize and will
be required to comply with the standards of conduct for public officers and employees as
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; misuse of
public position, conflicting employment or contractual relationship; and disclosure or use of certain
information.
ARTICLE 13-GOVERNING LAW
This Agreement shall be governed and construed by and in accordance with the laws of
the State of Florida. Venue for any legal action which may arise out of or under this agreement
shall be in Monroe County, Florida.
ARTICLE 14- RECORDS
The Firm shall maintain all books, records, and documents directly pertinent to performance under
this Agreement in accordance with generally accepted accounting principles consistently applied.
If an auditor employed by the County or the Clerk of Courts determines that monies paid to the
Firm were spent for purposes not authorized by this Agreement, the Firm shall repay the monies
together with interest calculated pursuant to Section 55.03, F.S., running from the date the monies
were paid to the Firm.
ARTICLE 15- FLORIDA PUBLIC RECORDS LAW
Per F.S. 119.0701, the Firm shall:
1. Keep and maintain public records required by the public agency to perform the
service.
2. Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or copied within
a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise
provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the duration of
the contract term and following completion of the contract if the Firm does not transfer the records
to the public agency.
4. Upon completion of the contract, transfer, at no cost, to the public agency all public
records in possession of the Firm or keep and maintain public records required by the public
agency to perform the service. If the Firm transfers all public records to the public agency upon
completion of the contract, the Firm shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the Firm keeps and
maintains public records upon completion of the contract, the Firm shall meet all applicable
requirements for retaining public records. All records stored electronically must be provided to the
public agency, upon request from the public agency's custodian of public records, in a format that
is compatible with the information technology systems of the public agency.
A contractor who fails to provide public records to Monroe County or pursuant to a valid public
records request within a reasonable time may be subject to penalties under section 119.10,
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Florida Statutes. The County shall have the right to unilaterally cancel this contract upon violation
of this provision by the Firm. Failure of the Firm to abide by the terms of this provision shall be
deemed a material breach of this contract and the Firm 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 Firm shall not transfer custody, release, alter, destroy, or otherwise dispose of any public
records except as provided in this provision or as otherwise provided by law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS
AT: BRIAN BRADLEY, C/O MONROE COUNTY ATTORNEY'S OFFICE,
1111 12TH ST. SUITE 408 KEY WEST FL 33040 Ii� III
11 !1! in i 0i i1O Ou i�� ,,,...�I.,,, O (305) 292-3470.
ARTICLE 16— MISCELLANEOUS
A. F.S. 287.135: This contract is terminable at the option of the County if the firm is
found to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged
in a boycott of Israel.
B. 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 bid, proposal,
or reply on a contract to provide any goods or services to a public entity, may not submit a bid,
proposal, or reply on a contract 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, 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 Section 287.017, for CATEGORY TWO for a period of 36 months from the
date of being placed on the convicted vendor list. By signing this Agreement, FIRM represents
that the execution of this Agreement will not violate the Public Entity Crimes Act(Section 287.133,
Florida Statutes).
Violation of terms of this contract shall result in termination of this Agreement and recovery of all
monies paid hereto, suspension of the ability to bid on and perform County contracts, and may
result in debarment from COUNTY's competitive procurement activities.
In addition to the foregoing, FIRM further represents that there has been no determination, based
on an audit, that it or any subcontractor has committed an act defined by Section 287.133, Florida
Statutes, as a "public entity crime" and that it has not been formally charged with committing an
act defined as a"public entity crime" regardless of the amount of money involved or whether FIRM
has been placed on the convicted vendor list.
FIRM will promptly notify the COUNTY if it or any subcontractor or FIRM is formally
charged with an act defined as a "public entity crime" or has been placed on the
convicted vendor list.
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C. Ethics Clause: The Firm warrants that it has not employed, retained, or
otherwise had act on its behalf, any former County officer or employee subject to the prohibition
of Monroe County Ordinance No. 010-1990 or any current County officer or employee in
violation of Section 3 of Ordinance No. 020-1990. For breach or reviolation of this provision the
County may, in its discretion, terminate this contract without liability and may also, in its
discretion, deduct from the contract or purchase price, or otherwise recover, the full amount of
any fee, commission, percentage, gift, or consideration paid to the former County officer or
employee.
D. No Solicitation / No Payment: The FIRM and COUNTY warrant that, in respect to
itself, it has neither employed nor retained any company or person, other than a bona fide
employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed
to pay any person, company, corporation, individual, or firm, other than a bona fide employee
working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon
or resulting from the award or making of this Agreement. For the breach or violation of the
provision, the FIRM agrees that the COUNTY shall have the right to terminate this Agreement
without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full
amount of such fee, commission, percentage, gift, or consideration.
E. Non-Discrimination. FIRM and COUNTY agree that there will be no
discrimination 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. FIRM and COUNTY agree 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 in employment
on the basis of race, color, religion, sex, and national origin; 2) Title IX of the Education
Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits
discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended
(20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination
on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as
amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive
Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-
616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7)
The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as
amended, relating to confidentiality of alcohol and drug abuse patient records; 8) Title VI I I of the
Civil Rights Act of 1968 (42 USC s.3601 et seq.), as amended, relating to nondiscrimination in
the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC
s. 12101 Note), as may be amended from time to time, relating to nondiscrimination on the
basis of disability; 10) Monroe County Code, Chapter 14, Article II, which prohibits
discrimination on the basis of race, color, sexual orientation, sex, religion, disability, national
origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11)
Any other nondiscrimination provisions in any Federal or state statutes which may apply to the
parties hereto, or the subject matter of, this Agreement.
E-Verify System. In accordance with F.S. 448.095, the Firm will register with and shall utilize
the U.S. Department of Homeland Security's E-Verify system to verify the work authorization
status of all new employees hired by the Firm during the term of the Contract and shall
expressly require any subcontractors performing work or providing services pursuant to the
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Contract to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify
the work authorization status of all new employees hired by the subcontractor during the
Contract term. Any subcontractor shall in these then provide an affidavit stating that the
subcontractor does not employ, contract with, or subcontract with an unauthorized alien. The
Firm shall comply with and be subject to the provisions of F.S. 448.095.
IN WITNESS WHEREOF, the Client and the Firm have executed this Agreement as of the day
and year first above written.
White &Smith, LLC MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS
Tyso math, AICP, Esq. Michell- Col•Iron, �a •r ,�/
Shareholder t/ A
Date: August 17, 2021 Date: �� 'tl
ATTEST: KEVIN MADOK, CLER
1A toAg Deputy C
Approved for form and legal sufficiency by
Robert B. Shillinger, County Attorney
Robert B. DN:cDigitally
Yeobert B.Shill signed by iert nger,
Shillinger
o=Monroe County BOCC,ou=Monroe
County
orney,email=shillinger-
Shillinger Dab:2021108.17 1 J 35 43.04 00'
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