06/15/2005 Agreement
MONROE COUNTY, FLORIDA
NUMBER:
STANDARD LEGAL SERVICES AGREEMENT
AGREEMENT
CAY LIT 2005-05-02
THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA,
as the legislative and governing bOdy of Monroe County, Florida, and in accordance
with the powers enumerated in Section 125.01, Florida Statutes (the "County") and
Tyson Smith (the "Attorney") hereby enter into this Agreement regarding the
retention of Attorney by County to provide legal advice and services:
1. Client: The Client is the County, and to the extent ethically permissible and
appropriate in the matter, its elected and appointed officers and its' employees,
unless County advises Attorney otherwise. In the event that Attorney cannot
ethically represent individuals in addition to County, Attorney shall advise County in
writing of that fact immediately.
2. Attorney: The Attorney is the individual named above and whose signature
appears at the bottom of this Agreement, Attorney is licensed to practice law in all
jurisdictions relevant to this matter. As provided in Exhibit A, Attorney practices
with others who also will provide services to County. Attorney understands that
County expects that Attorney will be responsible for managing and coordinating
representation with lead counsel (Robert H. Freilich, special land use counsel, Paul
Hastings, Los Angeles) and other co-counsel as provided in Exhibit A, assuring
compliance of others within Attorney's firm with the terms of this Agreement and
ethical requirements, preparing and substantiating all bills, and communicating with
County, Except as provided in Exhibit A, Attorney may not delegate or outsource
this work without full written disclosure to, and prior written approval from, the
County.
3. Matter: Attorney has been retained by County in connection with the matter
described in Exhibit A. Attorney represents that he or she is competent and
available to handle that matter, In the event that additional matters are assigned
by County to Attorney, this agreement shall ?IPply to those matters as well, unless a
separate Agreement is required by the County.
3.1. Review of ethical obligations before initiating representation:
Attorney has conducted a thorough investigation and determined that neither
Attorney nor his or her firm has any ethical impediment, real or potential, 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 (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 full disclosure
of the situation to County, obtain County's express, written consent to continue the
of the situation to County, obtain County's express, written consent to continue the
representation of the other client, and take all steps requested by County to avoid
or mitigate the impediment. Attorney understands that, if a direct or indirect
conflict of interest arises which, in the opinion of the County, cannot be avoided or
mitigated under the Rules of Professional Conduct of The Florida Bar, County may,
in its discretion, (a) obtain reimbursement from Attorney for all fees and expenses
paid to Attorney in this matter; (b) obtain cancellation of all amounts allegedly owed by
County to Attorney; and (c) obtain reimbursement for consequential expenses
incurred by County, including the cost of replacement counsel.
3.2. Limitations to scope of representation: Except where prohibited by
the Rules of Professional Conduct of The Florida Bar, the Monroe County Attorney's
Office will serve as co-counsel in all matters covered by this Agreement. As co-
counsel, the Office attorney's will assist Attorney by performing tasks assigned by
Attorney, including but not limited to serving as local counsel; securing the
cooperation of County employee's, officers, and others in discovery and other
matters; obtaining evidentiary materials from County files; assisting with discovery;
attending hearings and depositions; filing pleadings; arranging for closed attorney-
client sessions with the Board of County Commissioners; and performing other
tasks as necessary and convenient for Attorney, Decisions as to tactical approaches
to be utilized shall be the ultimate responsibility of the Attorney, and other
authorized counsel as designated in Exhibit A, and issues which rise to the level of a
client decision shall be resolved by the Board of County Commissioners. Any
further limitations or special conditions shall be as set forth in Exhibit A.
3.3. Term of Agreement and Representation: This Agreement and
representation by Attorney is effective upon 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
Attorney in accordance with ethical requirements and this Agreement.
3.4. County expectations and goals: The County expects the Attorney to
seek the best resolution for the County at the lowest reasonable cost to the
taxpayers. At the earliest reasonable point during the representation, the Attorney
shall report to the County, via the County Attorney, any reasonable potential for
settlement, including related settlement costs and expenses, the estimated chances
of the County prevailing on the merits, and the potential financial exposure should
the County not prevail on the merits. Any other expectations and goals shall be as
set forth in Exhibit A.
4. 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 compensated by
other clients, multiplied by the Attorney's hourly rate as set forth in Exhibit A. The
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following minimum billing documentation and time-keeper requirements are a
condition precedent to payment by the County.
4.1. 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
as indicated on Exhibit A is also not billable.
4.2. Changes to hourly rates: Attorney will charge no more than the
hourly rate quoted in Exhibit A throughout the duration of the matter, unless
otherwise agreed in writing signed by County.
4.3. Discounts to other Clients: The rates Attorney will charge County
represent the lowest rates charged by the same time-keepers to other clients on
comparable matters. In the event that lower rates or discounts are provided to
other clients on comparable matters, Attorney and approved time-keepers will also
provide them on the same basis to County.
4.4. Additional time-keepers: Additional time-keepers may not be added
to the matter without advance written approval from County. In the event that
additional time-keepers providing services which are to be billed to the County are
to be added to the staff, 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. Additional time-keepers
approved by the County are listed in Exhibit A to this Agreement, and this Exhibit
A may be amended from time to time, upon mutual agreement of the County and
the Attorney, to evidence the then-current circumstances.
4.5. 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 County, then Attorney may bill only that time expended in using that work
product for County. In other words, no premium, markup, or other adjustment
may be made to bill County for time spent on work already performed.
4.6. Travel: Travel restrictions, including restrictions on billing time during
travel, are set forth below.
5. 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:
5.1. Monthly bills: Unless otherwise agreed in a writing signed by the
County, bills shall be issued monthly by Attorney within 15 days after the close of
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each month. Attorney understands that County requires prompt bills in part to
facilitate effective management of the representation and fees.
5.2. Bill format: Attorney shall provide detailed, itemized bills which shall,
at a minimum:
5.2.1 Description. Provide a general description of the matter, to
include the name of the County department or 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).
5.2.2 Personnel. Clearly identify each person performing services
(Le., time-keepers) in conjunction with each entry.
5.2.3 Other Personnel. Clearly identify all persons who are not full-
time lawyers employed by the Attorney's firm (including subcontractors,
independent contractors, temporary employees, and outsourcing providers).
5.2.4 Time Records. 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 performed, it is
expected that the services will be aggregated until the total actual time spent meets
the minimum billing increment.
5.2.5 Totals and By Task. State the amount of time expended by
each time-keeper daily (and, within each day, broken down by task where more
than one project or task was worked upon within the same day).
5.2.6 Task Description. Describe within each itemized daily task
entry, in sufficient detail to readily allow the County to determine the necessity for
and reasonableness of the time expended, the services 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, Included should be a reasonably specific delineation of
services sufficiently itemized to allocate time within a matter to such categories of
effort as Legal Research, Fact Gathering, Internal Conferences, Communications
with Client, Particular Document Drafting, Court Appearance, Deposition
Attendance, and so forth.
5.2.7 Summary of Rates. 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 a reconciliation between the amount
charged and any applicable estimated or budgeted amount, by task. In addition,
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each monthly statement should show the aggregate billing for that matter from the
commencement of the matter through the currently-billed month.
5.2.8 Digital/Electronic Copy. County is currently using Time
Matters and Time Billing software in the County Attorney's office, and prefers that
an electronic reporting software which can be incorporated into the County's
software data base for tracking and reporting purposes be used by Attorney.
Attorney should discuss the capabilities of Attorney's billing system with County
before rendering the first bill. County should receive a digital electronic/computerized
version of each bill, together with a paper copy, to facilitate bill review.
5.3. Expenses: County will pay the actual, reasonable cost of the following
expense items if incurred in accordance with the guidelines below and promptly
itemized in Attorney's monthly bill:
5.3.1 Reimbursable expenses: Actual cost for necessary long
distance telephone calls, telecopying ($0.25 per outgoing page), overnight or
expedited delivery, couriers, photocopying ($0.15 per page), postage, court fees,
and other ex enses a roved in advance b Count or as listed below:
5.3.1.1. 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.
5.3.1.2. 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.
5.3.1.3. Photocopying: Attorney is encouraged to use
outside copying services to 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.
5.3.1.4. 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
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charging for time spent digesting or indexing transcripts, and to allow County to maintain a
digital electronic/computerized database of all transcripts,
5.3.1.5 Travel Expenses: Travel expenses within the
Attorney's local or metropolitan area will not be reimbursed if the time spent in
transit is billed. Travel expenses outside the metropolitan area may only be
reimbursed if the travel was approved in advance by County. Reimbursable travel
expenses, if approved in advance, 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 seems reasonable, at the lowest available rate). Travel
expenses will be reimbursed in accordance with the applicable provisions for
"approved travelers" of the Monroe County Code, will be summarized on the Monroe
County Travel Form with all applicable receipts attached thereto.
5.3.1.6 Travel Time. Time spent in transit, locally or
otherwise, may be billed only if (a) Attorney or time-keeper is unable to avoid
traveling by using other forms of communication and (b) Attorney or time-keeper
is unable to bill time in transit to other clients. Travel by more than one time-
keeper at the same time to the same destination is not allowed without prior approval
from County. Approved travel time during time-keeper's normal business hours will be
billed at the hourly rate listed for the time-keeper on Exhibit A. Approved travel
time outside of time-keeper's normal business hour's will be billed at one-half the
hourly rate listed for the time-keeper on Exhibit A.
5.3.2. Non-reimbursable expenses: The following expenses will in no
event be reimbursable, unless specifically agreed to in advance in a writing signed
by County:
5.3.2.1. Personal and Office Costs. Meals for time-keepers,
overtime, word processing or computer charges, 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 the firm
charges other clients or that other firms charge their clients for an expense does
not make it reasonable or necessary.)
5.3.2.2. Experts, consultants, support services,
outsourced services, etc. Attorney is not authorized to retain experts, additional
counsel, consultants, support services, or the like, or to out source or delegate work
outside Attorney's law firm, without prior written approval by County. 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
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obtain cost-effective services for County. Unless otherwise agreed in writing,
Attorney shall obtain a written retainer agreement, in a form which may be specified
by County, from each service provider, with bills from each provider being sent to
both Attorney (for management purposes) and County (for review and payment).
5.3.2.3. Expenses not passed through at actual cost. 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 time-keeper or incurred by other approved personnel (such as experts,
consultants, support services personnel, or outsourced services personnel),
5.3.2.4. Overhead not charged to County. 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,
5.3.3. Advance approval of expenses. In addition to the items noted above,
Attorney shall obtain advance approval from County before incurring any expense in excess
of $ 1,000,00 if Attorney expects to be reimbursed for that expense, County may refuse to
pay any expense for which advance approval was not obtained by Attorney.
5.3.4. 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.
5.3.5. Expenses (and fees) after termination. Upon termination of
the representation, Attorney shall promptly bill County for any remaining
reimbursable expenses and fees. County may refuse to pay any fees or expenses
not billed within 45 days of termination 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.
5.4. Bill and expense documentation. Attorney understands that
Attorney must have documentation to support all aspects of each bill, including fees
and expenses, and must maintain that documentation 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 County, with County responsible
for paying the actual cost of storage. This documentation shall include, for
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example, original time records, expense receipts, and documentation supporting
the amount charged by Attorney for expense items generated by the Attorney or
his or her firm. County reserves the right not to pay any fee or expense item for
which sufficient documentation is not available to determine whether the item was
necessary and reasonable, Upon prior written Agreement by the County, Attorney
may provide the documentation in digital electronic form in Adobe Portable
Document Format (PDF) or in Alchemy format in lieu of the manual preservation
requirements detailed above.
6. Payment terms: Attorney bills complying with this Agreement are due and
payable upon receipt. If the bill materially fails to comply with the requirements of
this Agreement, then it is not due and payable until its deficiencies are remedied by
Attorney. County is entitled to a 1% prompt payment discount if a bill is paid within 15
days of receipt by County or correction of deficiencies by Attorney, whichever is later, (or if
the bill is satisfied by funds held by Attorney, e,g" in a trust account). County shall not be
liable for interest or other late charges unless specifically agreed to in advance in a writing
signed by County.
7. Budgets. Attorney will, upon written request by the County, prepare an
estimate or budget of the likely costs, by task, of this matter, including fees and
expenses, and a plan for handling the matter. Attorney will update the budget and
plan at least once every three months. In the event that Attorney obtai.ns
information indicating that the budget (or any line item) may be exceeded by more
than five percent, he or she will notify County of that immediately. In a written
statement accompanying each bill, preferably in tablular form, Attorney will
reconcile the budget with each month's bill, e,g., by explaining whether the billed
amounts, by task, are more or less than the amounts budgeted therefore. County
shall have the right not to pay any amounts that are over budget or not included
within the budget.
8. Staffing and matter management. Attorney has been retained specifically
because Attorney, personally, is understood by County to be able to handle this
matter, Employment of additional individuals, whether attorneys, paralegals, or
others, who will bill time to County is not permitted without the advance written
approval of County.
8.1. Time-keeper changes. Changes in time-keepers, e.g., replacement
of an attorney as well as increases or decreases in the number of the time-keepers
working on the subject-matter of this Agreement, must have the advance written
approval of County. County expects to receive discounts or other concessions so
that any increases or changes in time-keepers will not result in unnecessary or
unreasonable charges to County, e.g., for training, internal conferences, and
management.
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8.2. Duplication of effort. At any time, the County may request
that,unless advance County approval is obtained, Attorney will not have more than
one time-keeper bill for court appearances, attendance at depositions and meeting,
including meetings with County representatives, and internal conferences. Upon
such request, and without prior County approval, in the event that more than one
person attends, only the time of the person with the lowest rate will be billable.
Attorney is not permitted to use this matter to provide on the job training for a
time-keeper, and bill for that time-keeper's services, without County's advance
approval.
8.3. Matter management. 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 ethical obligations.
8.4. Communications. County will expect that all communications
between Attorney and County will be reviewed by Attorney and that Attorney will
serve as the point of contact for this matter, including billing questions. The point
of contact for this matter at County is the County Attorney or the individual
specifically identified in Exhibit A.
8.5. Case monitoring. County will be advised promptly by Attorney of all
significant facts and developments in the matter so that County may mange the
matter effectively and made 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 discovery 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.
8.6. 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, but to implement the decisions of
County as expressed to the Attorney by the County Attorney.
8.7. 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.
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8.8. County cooperation. 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
related to the subject matter of this Agreement.
8.9. Temporary staff, delegation, outsourcing. 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
"outsource" 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 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,
9. 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 is to keep all
confidential, privileged, or secret information confidential. This requirement is
perpetual, Le., it will continue even after the termination of the relationship and this
Agreement. 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 Countys of Attorney or his or her firm, without
County's advance written approval. Attorney is not authorized to identify County as
a County, e.g., for purposes of marketing or advertising, without County's prior
approval. Upon termination of the representation, Attorney agrees to return
promptly all information obtained from or on behalf of County to County. Attorney
is not authorized to communicate with the public, including the press, about County
or this matter without the advance approval of County.
10. 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 prior written approval, this work product may not be
used by Attorney 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
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representation or matter is ongoing and whether attorney fees and expenses have
been paid in full.
11. Dispute resolution: Attorney and County agree that all disputes regarding
Attorney's fees or expenses are to be resolved pursuant to the procedures and
practices for mediation by the Attorney Consumer Assistance Program of the Florida
Bar,
12. Governing law, modification of this Agreement, entire agreement:
This Agreement is to be interpreted in accordance with the laws of Florida and with
the ethical requirements of that jurisdiction. The Agreement may not be modified in
any way without the express, written agreement of both parties. This represents
the entire agreement of the parties.
13. Monroe County Code Ethics Provisions: This provision is found in Section
18.8 below.
14. Time Keeper Defined: As used in this Agreement, the term "time keeper"
shall include Attorney and other attorneys and individuals identified in Exhibit A
who will be providing services under this Agreement and who will bill the County for
their services in accordance with this Agreement.
15. Methods of Approval and Consent By County: Any consents or approvals
required by this Agreement to be made by the County shall, unless the context
expressly states otherwise, be made by the County Attorney or an authorized
Assistant County Attorney in written form, to include but not limited to hand-
written, typed, or printed notes, electronic mail, letters, or facsimile transmissions,
16. Florida Government-in-the-Sunshine Law: Attorney agrees that, unless
specifically exempted or excepted by Florida law, the provisions of Chapter 120,
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: 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.
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18. County's Standard Contract Terms:
18.1 No Assignments. Without the prior written consent from the County,
Attorney shall not assign or transfer this Agreement.
18.2 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 prior 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.
18.3 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.
18.4 Captions. The captions set forth herein are for convenience of
reference only and shall not define, modify, or limit any of the terms hereof.
18.5 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,
18.5.1 Conflicts in interpretation. The County and Attorney agree
that, in the event of conflicting interpretations of the terms or a term of this
Agreement by or between them, the final interpretation by the County shall apply.
18.5.2 Adjudication of Disputes and Disagreements. The County
and Attorney agree that all disputes and disagreements between them shall be
attempted to be resolved by a meet and confer session between representatives of
the County and Attorney. If the issue or issues are still not resolved to the
satisfaction of both within 30 days after the meet and confer session, then either
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shall have the right to seek such relief as may be provided by this Agreement or by
Florida law.
18.5.3 Cooperation. 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, The County and Attorney each agree that neither
shall be required to enter into any arbitration proceedings related to this Agreement
or any Attachment or Addendum to this Agreement.
18.5.4 Legal Obligations and Responsibilities; Non-delegation of
Constitutional or Statutory Duties. 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 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.
18.6 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, court costs,
investigative, and out-of-pocket expenses, as an award against the non-prevailing
party, and shall include reasonable attorney's fees, court costs, investigative, and
out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated
and conducted pursuant to this Agreement or as may be required by a court of
competent jurisdiction shall be conducted in accordance with the Florida Rules of
Civil Procedure and usual and customary procedures required by the circuit court of
Monroe County.
18.7 Records. Attorney shall maintain all books, records, and documents
directly pertinent to performance under this Agreement, including the documents
referred to in Sections 5.4 and 10 of this Agreement, in accordance with generally
accepted accounting principles, consistently applied. Upon ten (10) business days
written notice to the other, representatives of either the County or Attorney shall
have access, at all reasonable times, to all the other party's books, records,
correspondence, instructions, receipts, vouchers and memoranda (excluding
computer software) pertaining to work under this Agreement for the purpose of
conducting a complete independent fiscal audit. Attorney shall retain all records
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required to be kept under this Agreement for a minimum of five years, and for at
least four years after the termination of this agreement. Attorney shall keep such
records as are necessary to document the performance of the agreement and
expenses as incurred, and give access to these records at the request of the
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. Attorney
shall be responsible for repayment of any and all audit exceptions which are
identified by the Auditor General for the State of Florida, the Clerk of Court for
Monroe County, the Board of County Commissioners for Monroe County, or their
agents and representatives.
18.7.1 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.
18.8 Monroe County Code Ethics Provision. Attorney warrants that he
has not employed, retained or otherwise had act on his 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, misuse of public position, conflicting employment or
contractual relationship, and disclosure of certain information.
18.9 Authority. Attorney warrants that he and the authorized time keepers are
authorized by law and the Rules and Regulations of The Florida Bar to engage in the
performance of the activities encompassed by this Agreement. If Attorney is a
member of a law firm, either as partner, shareholder, associate, or other
relationship, Attorney warrants that he is authorized to enter into this Agreement
by Attorney's law firm.
18.10 Public Entity Crime Statement. Florida law provides that person
or affiliate who has been placed on the convicted vendor list following a conviction
for public entity crime may not submit a bid on an agreement to provide any goods
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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 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 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.
18.11 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 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.
18.12 Modifications and Amendments. Any and all modifications of the
terms of this agreement shall only be amended in writing and executed by the
Board of County Commissioners for Monroe County and by Attorney.
18.13 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 employees of the Board of County Commissioners of Monroe
County, and they shall be entitled to none of the rights, privileges or benefits of
employees of Monroe County.
18.14 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 the County to terminate this Agreement immediately upon delivery
of written notice of termination to Attorney.
18.15 Licensing and Permits. Attorney warrants that Attorney 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.
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18.16 Non-Discrimination. Attorney shall not discriminate, in its
employment practices and in providing services hereunder, on the basis of race,
color, sex, religion, disability, national origin, ancestry, sexual orientation, gender
identity or expression, familial status, or age, and shall abide by all federal and
state laws regarding non-discrimination. Upon a determination by a court of
competent jurisdiction that such discrimination has occurred, this Agreement
automatically terminates without any further action by the County, effective the
date of the court order. Attorney is aware of the provisions of Section 13-101
through 13-106, Monroe County Code, relating to non-discrimination, and agrees to
abide by the Code's non-discrimination requirements.
18.17 Claims for State or Federal Aid. The County and Attorney agree
that each shall be, and is, empowered to apply for, seek, and obtain federal and
state funds to further the purpose of this Agreement, provided that all applications,
requests, grant proposals, and funding solicitations by Attorney shall be approved
by the County prior to submission.
18.18 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 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.
18.19 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.
18.20 Signatures of Parties Required. This Agreement shall not be
effective until executed by both County and Attorney and received in final executed
form by an authorized representative of County.
18.21 County Authority. This Agreement has been considered at a duly
noticed and legally held public meeting conducted in Monroe County, Florida.
18.22 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
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Agreement or be subject to any personal liability or accountability by reason of the
execution of this Agreement.
18.23 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.
THIS AGREEMENT has been signed and executed by the Board of County
Commissioners of Monroe County, Florida, and has been signed and executed by
Attorney, on the dates indicated below, and shall be effective as of the date last
signed by a party to the Agreement.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY: ")J# >n ~
Dixie M. Spehar, Mayor
Date:
Deputy Clerk
Date: ~ I~ ZonS"
ROBERT B. ILL! ER, JR.
ASSIS?~ COUbl,T~ AJIORNEY
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EXHIBIT A
Identification of Matters included:
Collins, et al. VS. Monroe County VS. State of Florida, CA M 04-379
Contract for Legal Services to Prepare Comprehensive Amendments to
Chapter 9.5, Monroe County Code (By Assignment)
Other matters expressly requested and authorized by the County Attorney
and expressly agreed to by the Attorney; including but not limited to
matters related to AICUZ, proposed Interim Development Ordinances,
pending BUD applications.
References:
2: Attorney: Attorney is co-counsel on this matter and is hereby authorized to
work with the following other outside counsel:
Robert H. Freilich, Lead Counsel, Paul, Hastings, Janofsky & Walker LLP
Stephen J. Moore, Co-Counsel, Stephen J. Moore, P.C.
Attorney will forward billing and expense statements for Stephen J. Moore, P.c.
with Attorney's monthly invoices for payment by the County in accordance with the
terms set forth herein. Robert H. Freilich has been retained by the County by
separate agreement and will bill the County pursuant to the terms of said
agreement.
3.2: Limitations to Scope of Representation: no additional at this time.
3.4: County expectations and goals: no additional at this time.
4: Attorney's Hourly Fee Rate:
Tyson Smith:
Mark White:
Associates:
Clerks/Pa ra lega Is:
$195.00; $245.00 for trial and deposition
$195.00; $245.00 for trial and deposition
$175.00; $225.00 for trial and deposition
$85.00
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4.4: Approved Additional Time Keepers:
Name:
Hourly Rate:
for Steohen J. Moore, P.c.
Stephen J. Moore
Paralegal
$225; $275 for trial and deposition
$50.00
8.4: County Point of Contact:
Robert B. Shillinger, Jr.
Assistant County Attorney
P.O. Box 1026, Key West, FL 33041-1026
305) 292-3470
shillinger-bob@monroecountY-fl.gov
:J ~
Attorn~TYSOn Smith
for White & Smith, LLC
Date: .3 V lo{ t t) J 1--0~
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~~~tative
Date: 0 (" 1'2.0 1 0 (
jcon lega Iservice
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