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Item O11 O11 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE Mayor Craig Cates,District 1 The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5 Michelle Lincoln,District 2 James K.Scholl,District 3 David Rice,District 4 Board of County Commissioners Meeting July 19, 2023 Agenda Item Number: 011 2023-1289 BULK ITEM: No DEPARTMENT: County Attorney TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger no AGENDA ITEM WORDING: Ratification of a Professional Services Agreement with the law firm of Stearns, Weaver, Weissler, Alhadeff& Sitterson, P.A. to assist the County Attorney with drafting and preparing of a proposed County Charter, and authorizing the payment for work that commenced on June 8, 2023. ITEM BACKGROUND: On May 17, 2023, the Board directed the County Attorney to begin researching and drafting a proposed County Charter that would be presented to the Board for consideration, and in approved,placed on a future ballot for approval by the voters by referendum. The County Attorney has contracted with the law firm of Stearns, Weaver, Weissler, Alhadeff& Sitterson, P.A. ("Stearns Weaver") to assist him in researching various legal issues and drafting a proposed charter for future consideration. The proposed charter, if approved by the voters, would fundamentally alter the form of the County government, which would draw its authority from the charter as opposed to directly from the Florida Constitution. Due to the significance of a charter, the County Attorney seeks ratification of the selection of and contract with Stearns Weaver to work on this project. Additionally, it is anticipated that the work under the agreement could exceed the County Attorney's spending authority of$49,999.99 so ratification would be necessary to pay invoices once that threshold is met. The agreement contemplates that the bulk of the work will be performed by Glenn Burhans and Abigail Corbett, both of whom are shareholders in the firm. Both attorneys previously represented in the County in successful litigation against the online travel companies, which netted the County a seven figure settlement of unpaid tourist development taxes. Ms. Corbett has also provided counsel to the County on the legal impediments that would need to be overcome to institute a toll on U.S. 1. Both are experienced litigators who have worked on numerous election law and ballot issue cases. Other attorneys in that firm have represented the County on other matters as well. Because Stearns Weaver is a large law firm, this agreement- similar to prior agreements with this firm- contains a limited conflict of interest waiver that would permit other lawyers in the firm to still represent private clients in development and other matters that may be adverse to the County. Ratification of the agreement would 5087 consent to that limited conflict waiver. Under the agreement, Mr. Burhans would bill at an hourly rate of$475/hour, Ms. Corbett and other shareholders who might work on the file would bill at an hourly rate of$375/hour, associates would bill at $300/hour; and paralegals would bill at $195/hour. The County Attorney would need to approve adding any additional timekeepers beyond Mr. Burhans and Ms. Corbett. PREVIOUS RELEVANT BOCC ACTION: 5/17/23, BOCC directed the County Attorney to begin drafting a proposed County Charter. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: Approval DOCUMENTATION: Professional Services Agreement Stearns Weaver Charter County June 2023.pdf FINANCIAL IMPACT: This contract is anticipated to cost the County in excess of$50,000.00 should the proposed charter move forward. 5088 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this 11th day of July 2023, by and between MONROE COUNTY, hereinafter referred to as Client, and STEARNS, WEAVER, WEISSLER, ALHADEFF & SITTERSON, P.A., hereinafter referred to as Firm. WHEREAS, the Client requires certain professional legal 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 retroactive to June 8, 2023. 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. ARTICLE 2 - SERVICE TO BE PERFORMED The Firm shall provide advice and legal representation with regard to the following matters or category of matters as requested by Monroe County and subject to the prior approval of the Firm: 1. advice and representation regarding the adoption of a Monroe County Charter; 2. advice and representation regarding the Client adopting the Charter County Transportation Surtax; and 3. Any other matter requested in writing by the County Attorney and agreed to in writing by the Firm. The Firm has conducted a thorough investigation and determined that neither the Firm nor its attorneys has 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 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; and (b) obtain cancellation of all further amounts allegedly owed by the County to the Firm. The Client recognizes, however, that the Firm is a large law firm and represents many other entities and individuals who may be or are adverse to the Client since the Client, as a governmental entity, regulates and/or in the further may regulate, other Firm clients. The Firm's representation of the Client in the Subject Matter is possible only if the Client agrees to a present and future waiver of conflicts. Thus, during and after the time we are representing the Client, the Client agrees that we may also represent other present and future clients in matters adverse to the Client that are not directly related to the Subject Matter. Based on the foregoing, the Client agrees that our representation of it in the Subject Matter will not disqualify the Firm from opposing it in other matters that are unrelated to the Subject Matter of this representation. The Client hereby agrees, consents, and waives any conflict of interest arising out of our continued and future representation of Firm clients adverse to the Client in any other matter that is unrelated to the Subject Matter, including but not limited to permitting, enforcement, transactional, litigation, and 1 5089 any other matter which involves the Client's exercise of its authority as a governmental entity. The Firm agrees, however, not to use any privileged, proprietary or other confidential information of a nonpublic (i.e., not subject to disclosure pursuant to Chapter 119, Florida Statutes) nature concerning the Client acquired by the Firm as a result of our representation of the Client in this representation in connection with any litigation or other matter in which we are opposed to the Client. ARTICLE 3 - COMPENSATION FEES: The following are approved time-keepers and their hourly rates: Glenn Burhans, Shareholder $475 Abigail Corbett, Shareholder $375 In addition to the above, other shareholders, associates, of counsel, and paralegals may be assigned by the Firm to work on Monroe County matters at the hourly rates of $375 (shareholders), $300 (associates), and $195 (paralegals), respectively. The initial time-keepers approved by the County are listed above. This list of time-keepers may be amended from time to time (including for the addition or deletion of names, or promotion of a time-keeper from Associate to Shareholder)upon the prior written approval of the Monroe County Attorney. In the event that time-keepers are added, their billing rates shall be shown above, as may be amended from time to time. COSTS: 1. Travel expenses 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. 2. Other reimbursable expenses will include court filing fees and costs, witness fees (including experts and consultants) and court reporter fees. 3. 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. RETAINER An Advance Fee will not be required. 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 will list the names of the attorneys or paralegals working on each matter and the amount of time expended on the matter by each attorney or paralegal, 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. 2 5090 The Client will receive early and frequent evaluation of all cases. If the client is not likely to prevail in litigation, in the Firm's reasonable estimation, the Client will be advised in order to minimize litigation costs, and settle the case. Until ratified by the County Commission, the County's liability for work billed under this agreement shall be capped at no more than $49,999.99. ARTICLE 4 - 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 Attorneys 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 5 - 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 6 - 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 $250,000 per claim and $500,000 aggregate. Certificates of insurance showing coverage in the amounts shown above is in force shall be submitted 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 7 — MODIFICATION and TERMINATION OF AGREEMENT Any modification to this Agreement requires the 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. ARTICLE 8 - 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 3 5091 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 9— DISPUTE RESOLUTION This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The prevailing party in any proceeding to resolve a dispute under this Agreement shall be entitled to recover reasonable expenses, including attorneys fees and costs. ARTICLE 10 — 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: Monroe County Attorney Glenn Burhans, Jr. 1111 12th St. Suite 408 106 E. College Ave. —Suite 700 Key West, FL 33040 Tallahassee, FL 32301 Tel.: (305) 292-3470 Tel.: (850) 329-4850 Fax: (305) 292-3516 ARTICLE 11 — 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 20-1990. 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, commission, percentage, gift or consideration paid to the former or present County officer or employee. ARTICLE 12 —GOVERNING LAW This Agreement shall be governed and construed by and in accordance with the laws of the State of Florida. ARTICLE 13— 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 14— 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,. 4 5092 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 contractor 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 contractor or keep and maintain public records required by the public agency to perform the service. If the contractor transfers all public records to the public agency upon completion of the contract, the contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the contractor 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, Florida Statutes. 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, bradley- brian mmonroecount -fl. Off, (305) 292-3470. ARTICLE 15— 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. 5 5093 IN WITNESS WHEREOF, the Client and the Firm have executed this Agreement as of the day and year first above written. STEARNS WEAVER ALHADEFF & MONROE COUNTY BOARD OF COUNTY SITTERSON, P.A. COMMISSIONERS Q).By: By: Name: Glenn Burhans, Jr. Name: Robert B. Shillinger Title: Shareholder Title: County Attorney Date: July 11, 2023 Date: July 11, 2023 Pursuant to Section 1 of Ordinance 003-2023, the County Attorney has the authority to retain outside counsel including execution of all necessary documents, subject to ratification of the Board. Ratified by the Board of County Commissioners on day of 2023. Attest: KEVIN MADOK, Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: By: Deputy Clerk Mayor Approved as to form and legal sufficiency: Robert B. Shillinger, County Attorney 6 5094