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Item P12 P.12 Coty f � ,�� ,' BOARD OF COUNTY COMMISSIONERS �� Mayor David Rice,District 4 The Florida Keys � Mayor Pro Tem Craig Cates,District 1 y Michelle Coldiron,District 2 James K.Scholl,District 3 Ij Holly Merrill Raschein,District 5 County Commission Meeting June 15, 2022 Agenda Item Number: P.12 Agenda Item Summary #10707 BULK ITEM: Yes DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Cynthia Hall (305) 292-3470 No AGENDA ITEM WORDING: Approval of engagement letter with law firm of Fox Rothschild for advice and representation on intellectual property matters; authorization for County Attorney or his designee to sign. ITEM BACKGROUND: From time to time the County requires advice and representation on intellectual property matters, including copyrights and trademarks. The matters will include representation in litigation and also general advice. The law firm of Fox Rothschild LLP and its attorneys, including senior partner Robert Sacco,provide such representation and advice. The engagement letter presented for approval spells out the scope of services and hourly billing rates. Hourly billing rates for the three attorneys working on matters will be as follows: Robert Sacco, $700; Patti Flanagan, $505; Alex Braunstein, $470. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval. DOCUMENTATION: Monroe County Board of County Commissioners - Engagement Letter_5_9_2022(133878207.1) print to Microsoft pdf FINANCIAL IMPACT: Effective Date: June 16, 2021 Expiration Date: None Packet Pg. 3449 P.12 Total Dollar Value of Contract: TBD Total Cost to County: TBD Current Year Portion: estimated at$20,000 this year and approximately$5,000 in future years. Budgeted: Yes Source of Funds: Primarily ad valorem CPI: No Indirect Costs: None Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: No If yes, amount: Grant: County Match: Insurance Required: Yes, as specified in the Agreement. Insurance will be provided after BOCC approval. Additional Details: TBD 06/15/22 001-67501 - COUNTY ATTORNEY GENERAL $30,000.00 REVIEWED BY: Cynthia Hall Completed 05/31/2022 3:24 PM Bob Shillinger Completed 05/31/2022 4:28 PM Purchasing Completed 05/31/2022 4:33 PM Budget and Finance Completed 05/31/2022 4:42 PM Brian Bradley Completed 05/31/2022 4:56 PM Lindsey Ballard Completed 05/31/2022 5:04 PM Board of County Commissioners Pending 06/15/2022 9:00 AM Packet Pg. 3450 P.12.a IIUm� Fox Rothschdd u, xi iUPM Y xr i_xw 777.`.oath Fl�,a),Icr[)rive Swte 1.TOO West lower � West Palni 1B3eYach, FI....33401. � Tel(56 1.)835.9600 Fax(56 1.)835.9602 www foxrothschdd corn �s Robert Sacco Direct Dial: 561-804-4420 Email Address:RSacco(a FoxRothschild.com May 9, 2022 0 2 2 Monroe County Board of County Commissioners c/o Cynthia L. Hall, Esq. 0 Monroe County Attorney's Office I I 1112th Street, Suite 408 Key West, FL 33040 00 - 00 Re: Fox Rothschild LLP Engagement Letter Dear Cynthia: � i This letter will confirm that Monroe County Board of County Commissioners ("Client")has U11 i retained Fox Rothschild LLP ("Firm")to represent Client in connection with the matter described below. The Engagement Letter(`Letter"), along with the attached Standard Terms of Engagement(`Standard Terms"), comprise the Engagement Agreement(`Agreement") between Client and the Firm and explain the terms under which the Firm will provide legal E services to Client in this matter. (The Standard Terms are attached hereto and incorporated by reference as Exhibit 1.) W m Ur Scope of Work. Client has engaged the Firm to provide the following services: trademark counseling('Engagement"). Client has not engaged the Firm,nor has the Firm agreed, to .0 represent Client regarding any other matter. If Client requires the Firm's services in D E connection with any other matter, please let me know. E ca Identity of Client. The Firm's only client in the Engagement is the parry identified as Client c in the first paragraph of this Letter. The Engagement is not an agreement to represent any of e ca Client's affiliates, subsidiaries, parents or related individuals, departments, offices, agencies, 0 instrumentalities, officials, officers, directors, partners, members, shareholders, employees, independent contractors or agents (collectively, "Affiliates") unless the Firm has specifically 0 00 agreed to do so in writing. Client agrees that the Firm's representation of Client in the Engagement does not give rise to an attorney-client relationship between the Firm and any of c0 the Client's Affiliates. Further,the Firm's representation of Client in the Engagement will a) not give rise to any conflict of interest in the event other clients of the Firm are adverse to any C of Client's Affiliates. as U 133810925.1 Packet Pg. 34 1] P.12.a it ti ,irsn I i Nl; Q9 Q8 Client has agreed that Cynthia L. Hall, Esq.will be the contact person("Contact") for Client throughout the duration of the Engagement and that all Invoices should be sent to Contact for processing and payment. Fees and Billing. The Finn's minimum fee will be determined by the amount of time spent 0. on the Engagement multiplied by the applicable hourly billing rates. Each of the Firm's billing professionals and other personnel are assigned an hourly rate that reflects that person's 0 experience, skills, reputation, and ability, as well as prevailing market demand. The Firm's 2 billing rates currently range from$255 to $1000 per hour for lawyers and from$125 to $445 0 per hour for paralegals. All dollar amounts reflected in the Agreement are in United States o� Dollars. The Finn's time will be recorded in increments of rounded tenths of an hour, with one-tenth (0.1)being the minimum for any activity. The following attorneys and, if r� applicable, paralegals, will be working on the Engagement at the indicated hourly rates: 00 00 Robert Sacco ($700) Patti Flanagan ($505) � Alex Braunstein($470) �� i i LO The Firm reserves the right to revise the staffing of the Engagement as it deems efficient. If, at any time, Client has any questions concerning the staffing of the Engagement, please contact me immediately. The Firm's billing rates are adjusted from time to time, generally once a year, usually in June, to reflect then current levels of legal experience, changes in overhead costs, market conditions or other appropriate considerations. W m The Firm typically incurs costs in connection with the Engagement. These costs include postage, delivery charges, facsimile and photocopy charges, computerized legal research and related expenses,travel expenses including parking, mileage, meals and hotel costs, and use of outside service providers including printers or experts. In litigation matters, such expenses may also include filing fees, deposition costs, process servers, e-discovery costs and technician time, court reporters and witness fees. Client agrees to reimburse the Firm for any costs and expenses incurred in the course of the Engagement. If the Firm anticipates that substantial expenses will be incurred on Client's behalf,the Firm will advise Client and the c- Firm may request that Client pay these expenses directly. 2 M 0 The Firm will issue regular Invoices that detail the fees and costs incurred in the Engagement ("Invoices"),usually on a monthly basis. The time charged will include all time the Firm devotes to the Engagement. ci a� 2 Payment is due within thirty (30) days from the date of Invoices. Unpaid Invoices will C accrue interest at the maximum rate permitted by applicable laws. If an Invoice is not timely paid, the Firm may withdraw from the Engagement. If necessary, the Firm shall file a motion U 133810925.1 Packet Pg. 3452 P.12.a ["OX 6,,R01�u sc�1 d it ti ,irsn I i Nl; Q9 Q8 with the court to withdraw as counsel in the Engagement and Client shall not oppose said motion. �a Although the Firm attempts to capture all fees charged and disbursements made on Client's behalf through the closing date set forth in each Invoice, there may be fees or charges for a particular time period that will not appear on certain Invoices. Any such fees or charges will appear on subsequent Invoices. 0 2 No individual except the Firmwide Managing Partner, or his/her designee,has the authority e to modify the Invoices submitted to Client. o� Security for Financial Obligations. Florida law provides the Firm with the right to impose a lien upon and retain, as security for payment of the Firm's Invoices, all documents, money co and other intangibles and materials coming into the Firm's possession (except to the extent "- co that such a lien on funds, deposited with the Firm in its client trust account, is prohibited). Additionally,the Firm can acquire a lien,to the extent permitted by law, on all judgments, awards, damages or other settlement, compromise, or court award then or thereafter obtained or achieved on Client's behalf in the Engagement,whether by the Client, LO by the Firm, or by any other attorneys who may succeed the Firm in the Engagement. These retaining and charging liens may be asserted by the Firm in such circumstances as the Firm believes to be necessary or appropriate. a� No Retainer. No retainer is requested at this time. However, the Firm reserves the right to request retainers in the future. W m Prospective Waiver. The Firm is a large law firm with many offices and represents many companies and individuals innumerous jurisdictions. It is possible that during the course of 0 the Engagement another client will have a transaction with or a matter adverse to the Client U) unrelated to the Engagement or any subsequent engagement for the Client. Such matters may include, for example, a real estate transaction or land use matter, a bankruptcy matter, a financing matter, business counseling, corporate matter, a patent or intellectual property matter, or a labor and employment matter. The Firm also regularly represents clients in land use, zoning, condemnation, and tax assessment appeal matters adverse to government entities ("Government Matters"). This will confirm that the Client agrees that the Firm may continue to represent or may undertake in the future to represent existing or new clients in matters not substantially related to the Engagement, including but not limited to the Government Matters, even if the interests of such clients in those other matters are directly adverse to the Client. We agree, however,that the Client's prospective consent to conflicting U 2 representations contained in this paragraph will not apply to any litigation C 0 matters. Furthermore,the Firm agrees not to use any proprietary or other confidential information of a non-public nature concerning the Client acquired by the Firm as a result of the Engagement, to the Client's material disadvantage in connection with any matter in which E U 133810925.1 Packet Pg. 34 3] P.12.a it ti ,irsn I i Nl; Q9 Q8 the Firm is adverse to the Client. Client may wish to consult with independent counsel regarding this advance waiver. Similarly,new lawyers frequently join the Firm. These lawyers may have represented parties adverse to Client while employed by other law firms or organizations. The Firm assumes that, consistent with ethical standards, Client has no objection to the Firm's continuing representation of Client notwithstanding our lawyers' prior professional relationships. 0 ca Future Representation. If Client asks the Firm to take on an additional assignment in the c future, Client and the Firm will reach a separate understanding covering that additional assignment, which understanding will be reflected in a separate writing, which may include e-maiCO ls. Encryption of Electronic Email. We take data privacy very seriously. The Firm will first r- 00 attempt to transmit all email to Client by means of the Transport Layer Security (TLS) protocol,which encrypts communications between Client's email server and the Firm's email N server. Most major email providers support the TLS protocol, and it is considered a best practice in the security industry. If Client's email provider or server is not configured to L01 receive communications sent with the TLS protocol,the Firm automatically will re-send those communications without using the TLS protocol and without any encryption during transmission. The Firm strongly recommends that Client send and receive email containing attorney-client privileged information, Personally Identifiable Information or Protected E Health Information only by means of the TLS protocol. If Client is unable to receive email by means of the TLS protocol, please notify the undersigned and the Firm will use a third party service that will allow Client to retrieve its emails in a secure manner. a� Conclusion. If Client has any questions about the Agreement, please contact me as soon as 0 U) possible. Client may consult with separate counsel regarding this Agreement. o 0 ca 0 ca 0 0 0 ca a� 2 C 0 a� E U 2 133810925.1 d Packet Pg. 34 4] P.12.a it ti ,irsn I i NI; Q9 Q8 Please acknowledge Client's acceptance to the terms in the Agreement and receipt of the Standard Terms by signing one copy of the Letter and returning the signed copy to me at your earliest convenience. This Agreement will take effect on the date of Client's signature or when the Firm first performs legal services for Client, whichever is earlier. We appreciate the opportunity and privilege to represent Client in the Engagement. Ur 2 Sincerely, 2 0 a® 1- Robert Sacco CO 1- CO For Fox Rothschild LLP Enclosure 004 4 04 LO i i a� READ AND AGREED: , Monroe County Board of County Commissioners a� a� By: Robert Shillinger, Esq. Title: County Attorney , a� 0 o� A E E 0 ca 0 ca 0 0 0 ca a� 2 C 0 a� E U 2 133810925.1 d Packet Pg. 3455 P.12.a it ti „1B1 I i Nl; Q9 Q8 im i°ou li m�i Q9 Fox Rothschild LLP ATTORNEYS AT LAW C Standard Terms of Engagement for Legal Services Overview Fees and Billing These Standard Terms of Engagement("Standard Terms")along with 0 the Engagement Letter("Letter")comprise the Engagement The Firmi's minimum,fee will be determined by the amount of time Vl Agreement('"Agreement")between Client and Fox Rothschild LLP spent on the Engagement multiplied by the applicable hourly billing, 0 ("Firm")and explain the terms under which the Firm will provide legal rates.Each of the Firm's billing professionals and other personnel is p ro services to Client in the Engagement.Any defined term in the Letter assigned an hourly rate that reflects that person's experience,skills, shall have the same definition in the Standard Terms.In the event of a reputation,and ability,as well as prevailing market demand.The Firm's conflict between the provisions In the Standard Terms and the Letter„ time will be recorded in increments of rounded tenths of an hour.,with .0 the provisions in the Letter shall control. one-tenth(0.1)being the minimum for any activity. All dollar amounts reflected in the Agreement are in United States Dollars. Communications The Firm reserves the right to revise the staffing of the Engagement as it Client agrees to be candid and cooperative with the Firm and to deems efficient.The Firm's billing rates are adjusted from time to time, provide the Firm with full,complete,and truthful information.Client will generally once a year,usually in June„to reflect then current levels of tm communicate with the Firm before communicating with any parties, legal experience,changes in overhead costs,market conditions or other witnesses,or their counsel,or with any experts or consultants,about appropriate considerations. 00 the Engagement. t_ The Firm typically incurs costs in connection with the Engagement.These 00 Client agrees to inform the Firm,in writing,of any changes in Client's costs include postage,delivery charges,facsimile and photocopy charges, name,address,telephone number,contact person,or email address. computerized legal research and related expenses,travel expenses The Firm will endeavor to keep Client informed of the status of the including parking,mileage,meals and hotel casts,and use of outside C`etl Engagement to the extent necessary to enable Client to make service providers including printers or experts.In litigation matters,such C14 informed decisions, expenses may also include filing fees,deposition costs,process servers, C14 court reporters and witness fees.Client agrees to reimburse the Firm for l Client acknowledges that any opinion or belief that the Finn expresses any costs and expenses incurred in the course of the Engagement.If the �3l from time to time about the Engagement,including various courses of Firm anticipates that substantial expenses will be incurred on Client's tC action and the results that might be anticipated,is intended merely to be behalf,the(Firm will advise Client and the Firm may request that Client pay sml an expression of opinion based upon information available to the Firm at these expenses directly. the time and not a promise or guarantee. The Firm will issue regular Invoices that detail the fees and costs In order to increase the Firm's efficiency and responsiveness,the Firm m t will use state of the art communication devices(i.e.,email,document Incurred in the Engagement,usually on a monthly basis.The time transfer by computer,wireless telephones,facsimile transfer and other charged will include all time the Firm devotes to the Engagement. devices which may be developed in the future).The use of such devices Payment is due within thirty(30)days from the date of(Invoices. may place Client's confidences and privileges at risk.However,the Firm Unpaid Invoices will accrue interest at the maximum rate permitted by believes that the efficiencies involved in the use of these devices applicable laws.If an Invoice is not timely paid,the Firm may withdraw outweigh the risk of accidental disclosure.Client authorizes the Firm to from the Engagement.If necessary,the Firm shall file a motion with M use these electronic communication devices. the court to withdraw as counsel in the Engagement and Client shall C: not oppose said motion. Affiliations by Client a Client agrees and acknowledges that,unless specifically stated Although the Firm attempts to capture all fees charged and otherwise in the Letter,the Engagement is not an agreement by the disbursements made on Client's behalf through the closing date set QS forth in each Invoice,there may be fees or charges for a particular time Firm to represent any of Client's affiliates,subsidiaries,constituents, period that will not appear on certain Invoices.Any such fees or parents or related individuals,officers,directors,partners„members, charges will appear an subsequent Invoices. shareholders,employees,independent contractors or agents (collectively,"Affiliates").Client agrees that the Firm's representation of No individual except the Firmwide Managing Partner,or his/her Client in the Engagement does not give rise to an attorney-client designee,has the authority to modify the Invoices submitted to Client. relationship between the Firm and any of Client's Affiliates.Further,the 0 Firm's representation of Client in the Engagement will not give rise to Third-Party Payer CJ any conflict of interest in the event other clients of the Firm are adverse Unless agreed to in writing between Client and the Firm,even though a to any of Client's Affiliates. third party("Third Party Payor")may have agreed to pay the Invoices incurred in the En a ement,Client agrees to be ultimately Estimates 9 g 9 Y 0 responsible for payment of all Invoices incurred in the Engagement. (, The fees and costs relating to the Engagement are not predictable. If Client has advised the Firm that a Third Party Payer will be paying �a Accordingly,the Firm has made no commitment to Client concerning the some or all of the Invoices,Client acknowledges that,should Client 0 maximum amount of fees and costs that will be necessary to complete the instruct the Firm to shame confidential information with that Third Engagement.Any estimate of fees and costs that the Firm and Client Party Payer,including Invoices,Client may lose any privileges or M may have discussed orally or in writing represents only an estimate of protections that may apply to that information. 0 such fees and costs.Client also understands that payment of the Firm's fees and costs is not contingent on the ultimate outcome of the Engagement. March 2020 0 wYrw w.f o x ro th so h'r l d.co m Q8 California Colorado Delaware District of Columbia Florida Georgia Illinois Minnesota Nevada New Jersey 0 New York North Carolina Pennsylvania South Carolina Texas Washington C: e.nrmr� 0 Q8 E .0 U 133810925.1 Packet Pg. 34 6] P.12.a it ti „rBn I i Nl; Q9 Q8 Q8 Conflicts of Interest Client's Obligation to Place Insurance Carrier on Notice f Client has not already done so,Client should put an insurer on In the Firm's representation of Client in the Engagement,it may be y p y necessary for the Firm lawyers to analyze or address their notice of any claims that have been or could be made in connection professional duties or responsibilities or those of the Firm,and to with the Engagement,so that the insurer cannot take the position that consult with the Firm's General Counsel,or other lawyers,in doing notice was given late or that insurer was prejudiced by delay in so.To the extent the Firm is addressing its duties,obligations or providing i such notice. responsibilities to Client in those consultations,it is possible that a Conclusion of Engagement and Client Fifes conflict of interest might be deemed to exist as between Client and the Firm.As a condition of the Engagement,Client waives any Unless previously terminated,the attorney-client relationship between conflict of interest that might be deemed to arise out of any such Client and the Firm,related to the Engagement,will terminate when the 0 consultations.Client further agrees that these consultations are Firm sends to Client the Firm's final Invoice for services rendered in the U) protected from disclosure by the Firm's attorney-client privilege. Engagement or when the Firm advises Client that it will no longer represent Client in the Engagement. U Patent and Intellectual Property Matters °® Client may terminate the Engagement at any Time.The Firm may If the Engagement concerns patent prosecution,Client agrees and terminate the Engagement subject to applicable ethical and legal 0 acknowledges that the Firm will not be responsible for the payment of requirements.If permission for withdrawal is required by a court or maintenance fees and/or patent annuities(collectively,"Patent arbitration panel,the Firm,will promptly request such permission and Annuities").Client further agrees that Client will handle the payment Client agrees not to oppose such request.Client will remain obligated of Patent Annuities either directly or through firms that specialize for any Invoices through the effective date of the termination. solely in the payment of annuities for patent portfolios around the 7 Once Client's matter is concluded,the Firm will notify Client,offer to world.If Client needs assistance in identifying firms that provide such 1- return any original material Client provided to the Firm,and close the services,the Firm,will provide Client with information upon request. matter.Client can request that the entire file be sent to Client at this C14 To the extent that the Engagement relates to the defense of Client's time.If Client does not request the return of the entire file,it may be 00 sent to storage off-site,and thereafter an administrative cost may be 00 intellectual property rights, Client's comprehensive general liability charged to Client for retrieving it from storage.Client is responsible for Cl) or other liability insurance carrier may provide some reimbursement complying with any records retention obligations that may be applicable for the Invoices. to any record. C'g Protected Health Information Under the Firm's Records Retention Policy,as may be modified from Q time-to-time,the Firm may dispose of files as early as seven(7)years C14 Federal and state laws impose duties on both clients and law firms to after a matter is closed.The Firm will send written notice to Client at the ensure the privacy and security of"protected health Information"(PHI), last address in the Firm's records before disposing,of any of Client's files. I which broadly includes identifiable health and personal information of It is Client's responsibility to notify the Firm of any changes in Client's LO Individuals.Client should not send or transmit to the Firm any PHI in mailing address so that the Firm can properly notify Client,If Client's any formal,whether by hard copy,email,facsimile or other medium, mailing address is out of date in the Firm's records at the time of the unless and until:(i)Client and the Firm have a current,signed foregoing notice,Client agrees that the Firm may destroy files that Client Business Associate Agreement in place;(ii)the attorney with whom has not previously requested be returned to Client. _J Client is working at the Firm has determined that the PHI is needed in s� connection with the Engagement;(iii)Client has notified the attorney in The Firm and Client agree that all original Client-supplied materials advance of the transmission of the PHI;and(iv)the attorney has and all lawyer end-product(referred to generally as"client material") approved the manner by which such PHI will be received by the(Firm. are the property of the Client.Lawyer end-product includes,for E Client must let the Firm know it Client anticipates that the Engagement example,final contracts,pleadings,and trust documents.The Firm and tSl will involve PHI,so that the Firm can take the necessary steps to allow Client agree that lawyer work product,and copies of any electronic M its transmission to the Firm. discovery documents or data,are the property of the Firm.Lawyer work product includes,for example,drafts,notes,internal memoranda, W Use of Personal Information and electronic files,and lawyer representation and administration m materials,including related lawyer-client correspondence and conflicts �l The Firm gathers and processes personal data pursuant to all � applicable law. The Firm will use personal information that we materials.The Firm will assume that Client has a copy of all electronic Qs receive in connection with providing legal services to Client, documents provided to the Firm by Client or on Client's behalf,and marketing our services to Client,and to comply with applicable law. that Client retains in Client's records all electronic and physical 0 materials provided to Client in the course of the Engagement,All During and after the Engagement,the Firm may disclose personal �k information to parties involved in the work the Firm is performing, nonpublic information that Client has supplied to the Firm and that the opposing'',parties,arbitration panels and courts,and any other Firm retains will be kept confidential in accordance with applicable reasonably foreseeable entity. Additionally,the Firm may use third rules of professional responsibility. E parties,wherever located,to store and process personal data Future Changes in the Law received from Client or its agents or other sources. >, Client acknowledges that,after the Engagement has terminated,the Firm — No Tax Advice has no continuing obligation to advise Client of future legal developments, � Unless specifically stated in the Letter,or in a subsequent written unless Client subsequently engages the Firm to do so. 0 communication between the Firm and Client,the Engagement will not y r• y 5everabilit n Event of Partial Invalidity 4- include providing Client with legal advice pertaining to any federal, If any provision of the Agreement is held in whole or in part to be 0 state, foreign, or local tax matter or issue, whether or not directly unenforceable for any reason,the remainder of that provision and of the related to or affected by the legal matters that are part of the entire Agreement will be severable and will remain in effect.If the M Engagement. Agreement has been provided to Client in a language other than 0 English,the provisions contained in the English version shall control. March 2020 � 0 www.foxrothschild.coni Q8 0 California Colorado Delaware District of Columbia Florida Georgia Illinois Minnesota Nevada New Jersey New York North Carolina Pennsylvania South Carolina Texas Washington 0 E.n;s;r f Q8 E U M 133810925.1 Packet Pg. 34 7]