Okaloosa County BOCC — March 18, 2014 — Contract for County Attorney Services

AGREEMENT FOR COUNTY ATTORNEY SERVICES This Agreement made and entered into this _ day of , 2014, by and between OKALOOSA COUNTY, FLORIDA, a political subdivision of the State of Florida (“County”) and the law firm of NABORS, GIBLIN & NICKERSON, P.A. ("NGN") for the provision of County Attorney services as more particularly set forth herein. WITNESSETH WHEREAS, the County has selected NGN to provide legal services as county attorney as a result of the County’s Request for Letters of Interest (HBCC 04-14); and WHEREAS, NGN represents that it has the ability to render the services as required by the County as set forth herein; and WHEREAS, the County seeks to engage NGN to serve as county attorney. NOW THEREFORE, in consideration of the above and the mutual covenants contained herein, the parties agree as follows: ARTICLE I. RECITALS. The above recitals are true and correct and are incorporated herein as essential terms of this Agreement. ARTICLE IL. SCOPE OF SERVICES. NGN shall provide county attorney services in accordance with the Scope of Services set forth in EXHIBIT A attached hereto and incorporated by reference. ARTICLE Uf. COMPENSATION AND INVOICES, 3.1 Compensation. Compensation under this Agreement shall be as set forth in EXHIBIT “B” attached hereto and incorporated by reference. 3.2 Invoices for General County Attorney Services. NGN shall submit an invoice for the compensation for General County Attorney Services on a monthly basis. Each invoice will be for the prior month’s service and in an amount equal to one twelfth of the agreed upon Annual Compensation amount of $250,000. The invoice for General County Attorney Services shall consist only of a request for payment for the prior month’s service and will not contain a detail summary of the actual services provided. However, NGN will maintain such information and make that information available upon request. 3.3 Invoices for Litigation Services. All statements or invoices for fees and costs for Litigation services rendered, that are submitted by NGN to the County shall be submitted in detail sufficient for proper pre-audit and post-audit thereof to insure that the work performed, expense incurred, or service rendered actually took place, and that the correct amount has been charged. 3.4 Invoices for Extraordinary Services consisting of Matters Exceeding 10 Hours in Work. Services for those general County Attorney Services matters which will exceed ten (10) hours (“Extraordinary Services”) shall be billed on an hourly basis. All statements or invoices for fees and costs for such services rendered, that are submitted by NGN to the County shall be submitted in detail sufficient for proper pre-audit and post-audit thereof to insure that the work performed, expense incurred, or service rendered actually took place, was properly authorized and that the correct amount has been charged. 3.5 Invoices for Special Services. Invoices for representation of the County with respect to the issuance of bonds, notes, or other obligations of the county, issuance of title certificates for the development of special revenue projects, specialized utility matters, legislative services or such other specialized services shall be negotiated on a project by project basis and subject to the approval of the County Administrator. The terms for invoicing on those matters shall be determined as part of the project negotiations. 3.6 No invoice will be processed without the executed task order, purchase order or contract/lease payment approval form approved by the respective County official(s). No invoice will be approved unless a copy of the actual invoice from the vendor accompanies the invoice reflecting the acquisition of goods/services. 3.7 No advancement of funds will be paid unless specifically approved by the Board of County Commissioners. 3.8 In the event a portion of an invoice submitted to the County for payment to NGN, as specified above, is disputed, payment for the disputed amount may be withheld pending resolution of the dispute, and the remainder of the invoice(s) will be processed for payment without regard to that portion which is in dispute. ARTICLE IV. TERM AND TERMINATION. 4.1 The term of this Agreement shall be from April 1, 2014 through March 31, 2015, unless terminated earlier pursuant to the provisions of this Agreement. This Agreement may be extended, upon mutual written agreement of the parties, for additional one (1) year terms or any other extension agreed to by the parties in writing. 4.2 Termination Without Cause. The County may terminate this Agreement without cause by giving written notice to NGN of its intent to terminate this Agreement. Such written notice of intent shall be given sixty (60) days prior to the actual date of termination. 4,3 Termination With Cause. This Agreement may be terminated by the County if there is a material breach of this Agreement which is not cured within twenty (20) days after the receipt of written notice of the breach. Upon the giving of written notice and the failure to cure, this Agreement shall be terminated automatically at the end of the cure period. 4.4 Upon such notification of termination, the parties shall cooperate to provide for an orderly transfer of responsibilities from NGN to its successor. 4.5. In the event sufficient budgeted funds are not available for a new monthly period, the County shall notify NGN of such occurrence and the Agreement shall terminate on the last day of the current monthly period without penalty or expense to the County. Such termination shall be deemed without cause. 4.6 The rights, duties and responsibilities of NGN shall continue in full force during the period of notice of termination set forth herein, regardless if for cause or without cause. 4.7 If the Agreement is terminated by the County as provided herein, NGN will be paid an amount which is equal to the total of all fees or costs incurred on or prior to the date of termination. ARTICLE V. DESIGNATED PERSONNEL. Services provided by NGN to the County shall be rendered by Gregory T. Stewart, designated as the County Attorney. Lynn M. Hoshihara, shall be designated as the Chief Assistant County Attorney. Additional attorneys employed by NGN shall be used in the provision of legal services to the County on an as needed basis and at the direction of Gregory T. Stewart or his designee. ARTICLE VI. INDEPENDENT CONTRACTOR. NGN is, and shall be, in the performance of the services provided herein an independent contractor and not an employee of the County. All persons engaged in the services provided herein shall at all times, and in all places, be subject to the NGN’s sole discretion, supervision, and control. NGN does not have the power or authority to bind the County in any promise, agreement or representation other than as specifically provided for herein. ARTICLE VII. OUTSIDE COUNSEL AND EXPERTS. From time to time, the Board may encounter issues which require retention of outside counsel or other experts with a specialized knowledge in a particular area. If such retention is required, NGN shall have the authority to use or retain on behalf of the County such additional experts or counsel that it deems necessary to implement the related objectives and programs of the County. Such retention shall be subject to the approval of the County Administrator. Statements for fees and costs incurred by any approved consultant, expert or counsel, shall be first reviewed by NGN and, upon approval, submitted to the County Administrator and/or the Board for payment, as appropriate. ARTICLE VIII. CONTRACT ADMINISTRATION. 8.1 NGN shall accept direction from the Board; however, for ease and convenience of administration, the County hereby also designates its County Administrator to provide policy direction and instructions to NGN in the administration of its duties hereunder to the extent that such direction and instruction does not conflict with the authority, policy or direction of the Board. 8.2 NGN shall be entitled to reasonably rely upon direction received from the County Administrator. ARTICLE IX: CONTRACTOR REQUIREMENTS & CERTIFICATIONS. 9.1 | NGN hereby certifies that it is legally entitled to enter into this Agreement with the County and that it will not be violating, either directly or indirectly, any conflict of interest statute or any other applicable laws by the performance of this Agreement. 9.2. .NGN represents that it has furnished a Public Entity Crimes Affidavit pursuant to Section 287.133, Florida Statutes and the other required executed forms as contained in the Request for Letters of Interest. 9.3. In connection with the services to be performed under this Agreement, NGN shall comply with the applicable provisions of State and Federal Equal Employment Opportunity statutes and regulations. ARTICLE X. GENERAL PROVISIONS. 10.1 NGN shall comply with the provisions of Chapter 119, Florida Statutes in the provision of the services provided herein to the County. 10.2 Insurance. During the term of this agreement, NGN shall maintain the insurance requirements as set forth on Exhibit “C” attached hereto. 10.3 Conflict of Interest. NGN represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of this legal services provided herein, as provided in the standards set forth in Part I of Chapter 112, Florida Statutes. NGN shall promptly notify the County in writing of any circumstance or representation that may create a conflict of interest or other circumstance which may influence or appear to influence the NGN’s judgment or quality of service. NGN shall abide by The Florida Bar’s ethics rules and applicable provisions in Chapter 112, Florida Statutes, in the provision of the services provided herein. 10.4 Indemnification. To the fullest extent permitted by law, NGN_ shall indemnify and hold the County harmless, its officers and employees from liabilities, damages, losses, and costs including but not limited to reasonable attorney fees, to the extent caused by the negligence, recklessness, or intentional wrongful conduct of the NGN and other persons employed or utilized by the NGN in the performance of this Agreement. 10.5 Governing Law and Venue. This Agreement shall be governed by the laws of the State of Florida. Venue for all legal actions necessary to enforce this agreement shall be in Okaloosa County, Florida. 10.6 Entire Agreement. The foregoing terms and conditions constitute the entire agreement between the parties hereto and any representation not contained herein shall be null and void and of no force or effect. This Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions of the parties, whether oral or written, pertaining to the subject matter hereof. NGN has provided services to the County and its Departments through various past agreements. Those past agreements will be deemed to be terminated and superseded by this Agreement. The only exceptions to this provision are set forth in EXHIIBT D. 10.7 Amendments. This Agreement may be amended only in writing upon mutual consent of the parties hereto. No amendment, supplement, modification or waiver of this Agreement shall be binding upon any party hereto unless executed in writing by such party. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this agreement, whether or not similar, unless otherwise expressly provided. 10.8 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered or mailed by registered or certified mail, postage prepaid, to the parties at the following addresses: County: Okaloosa County Florida County Administrator 1804 Lewis Turner Blvd., Suite 400 Fort Walton Beach, FL 32547 County Attorney: Nabors, Giblin & Nickerson, P.A. Attn: Gregory T. Stewart 1500 Mahan Drive, Suite 200 Tallahassee, FL 32308 Either party may, by written notice given to the other party, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Any notice shall be deemed given on the date such notice is delivered by hand or three days after the date mailed. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the day and year first hereinabove written. “hI as to form: OKALOOSA COUNTY, FLORIDA By: “John Dowd, FH) Charles K. Windes, Jr. Chairman Board of County Commissioners ATTEST: Date: Clerk of the Circuit Court ABORS, GIBLI cor Gregory ‘J. Stewart 79 Daun pac: MNaure 1, ZolY Signature CKERSON, P.A aula Dorn Print Name SS Lynn Hoswinara Print Name EXHIBIT A SCOPE OF SERVICES COUNTY ATTORNEY SERVICES NGN shall serve as the county attorney for the County and shall provide all legal services required by the County, which shall include but not limited to: (A) Oversee and direct the implementation of internal legal activities and operations, which include planning, coordinating, administering, and evaluating projects, processes, procedures, systems and standards; ensure compliance with Federal, State and local laws, regulations, codes, and/or standards. (B) Research and interpret the law using statutes, case law, ordinances and administrative regulations; provide legal advice, analysis, and opinions upon request for appointed county officials, administrative management staff and advisory boards concerning local government, administrative policy development, employment, purchasing practices, real estate, code enforcement, public records, and/or other related legal issues. (C) Prepare and review proposed legislation, ordinances, resolutions, contracts, deeds, leases, bond provisions and other legal documents requested by the County Commissioners, County Administrator or management staff. (D) Investigate complaints by or against the County; prepare cases for trial; represent the County in litigation, including administrative hearings, arbitration and civil trials before county, state and federal courts. (E) Make informed decisions to bring regulatory, administrative and litigation matters to a cost-effective conclusion. (F) Prepare, review, interpret and analyze a variety of information, data and reports and make recommendations based on findings. (G) Prepare cost estimates for budget recommendations; monitor and control outside counsel expenditures. (H) Coordinate, monitor and report to the Commission on the representation of the County by special outside counsel retained by the Commission. () Attend meetings of the Board of County Commissioners and committees. (J) Providing such other legal services as the Board may from time-to-time direct. EXHIBIT B COMPENSATION COMPENSATION FOR GENERAL COUNTY ATTORNEY SERVICES (A) |NGN shall be compensated for the county attorney services at the annual lump sum amount of $250,000 per year. Such amount shall be payable in twelve equal monthly installments. (B) NGN shall submit an invoice for the compensation for General County Attorney Services on a monthly basis. Each invoice will be for the prior month’s service and in an amount equal to one twelfth of the agreed upon Annual Compensation amount of $250,000. The invoice for General County Attorney Services shall consist only of a request for payment for the prior month’s service and will not contain a detail summary of the actual services provided. However, NGN will maintain such information and make that information available upon request. (C) To provide heightened accountability, NGN agrees to provide reports to the County documenting the time and resources spent upon General County Attorney Services. NGN and the County agree to jointly review such county attorney reports or invoices no later than October 1 of each year for purposes of promoting transparency and determining value, efficacy and equity of the current compensation arrangement. COMPENSATION FOR LITIGATION AND EXTRAORDINARY SERVICES EXCEEDING TEN (10) HOURS IN TIME NGN shall also provide legal services to the County in the prosecuting or defending litigation involving the County (for the purposes of this Agreement litigation is defined as those matters for which NGN serves as counsel of record for the County that are initiated by a filing in an administrative agency or tribunal or an action in state or federal court and shall also include all arbitrations and mediations) (“Litigation”). Additionally, NGN and the County recognizes that in some extraordinary matters relating to General County Attorney Services that the amount of time involved will exceed ten (10) hours in attorney time. These types of activities may include but are not limited to the preparing, revising and reviewing extensive ordinances, policy provisions, contracts, resolutions, agreements, leases, interlocal agreements, special election ballots, procurement documents, and other legal documents on behalf of the County that are reasonably expected to require more than ten (10) hours of attorney time (“Extraordinary Services”). Prior to engaging in the provision of these Extraordinary Services, NGN shall provide written notice to the County Administrator that the activity will exceed ten (10) hours and that the hourly billing provision for these Services will apply and shall obtain the approval of the County Administrator prior to beginning these Extraordinary Services. Litigation and Extraordinary Services will be compensated on an hourly basis at the following rates: (A) NGN shall be compensated for Litigation and Extraordinary Services on an hourly basis at the following rates: Partners $150 per hour Associates $135 per hour Clerks/Paralegals $65 per hour (B) Excluded from the above hourly rates are the matters contained on Exhibit “D” to this Agreement. (C) All statements or invoices for fees for such services rendered on Litigation and Extraordinary Services submitted by NGN to the County shall be submitted in detail sufficient for proper pre-audit and post-audit thereof to insure that the work performed, expense incurred, or service rendered actually took place, and that the correct amount has been charged. (D) All invoices shall include documentation for costs and shall be submitted to, approved and processed for payment by the County Administrator unless directed otherwise by the County Administrator. COMPENSATION FOR SPECTAL SERVICES NGN shall also provide various specialized services to the County, on an as needed basis (“Special Services”). These Special Services include but are limited to the following: (A) Representing the County with respect to the issuance of bonds, notes, or other obligations of the County; (B) Issuing title insurance commitments and policies; (C) Preparing and implementing Special Revenue Projects for the County; (D) Utility matters relating to capital projects, financing, rate setting, regulatory compliance, contracting, system development and enhancement. p g, SY. p (E) Providing legislative consulting services. Compensation for such Special Services shall be negotiated on a project by project basis, subject to the approval of the County Administrator. The terms for invoicing on those matters shall be determined as part of the project negotiations. REIMBURSEMENT OF COSTS Under this Agreement, NGN will not charge the County for travel time on those matters which are compensated on an hourly basis. In addition to the compensation specified above, NGN will be reimbursed for those expenses incurred which are directly related to the provision of services, including, but not limited to: copy and fax costs, long distance telephone costs, express mail and on-line research expenses. NGN will be reimbursed for travel in accordance with the provisions governing the travel of public officers and employees contained in Section 112.061, Florida Statutes. 10 EXHIBIT C INSURANCE REQUIREMENTS NGN shall maintain at a minimum, the following limits of insurance coverage during the term of this Agreement: A. Worker’s Compensation 1.) State Statutory 2.) Employer’s Liability $1,000,000 each accident B. Business Automobile & Commercial $1,000,000 each occurrence General Liability Insurance (A combined single limit) C. Personal and Advertising Injury $250,000 D. Professional Liability $1,000,000 11 EXHIBIT D EXCEPTIONS TO HOURLY RATE NGN currently represents Okaloosa County in certain matters that have different billing arrangements than under the terms of this Agreement. These matters will continue to be billed under the previous agreement rates or terms. The matters are as follows: Okaloosa County (FY 09-10 Reconciliation) Bay County, et al. v. Department of Juvenile Justice DOAH Case Nos. 11-0995, 11-0999, 11-1001, 11-1002, 11-1003, 11-1004, 11-1265, 11-1266, 11-1268 (Joint billing arrangement with the following Counties: Okaloosa, Nassau, St. Lucie, Polk, Marion, Walton, Charlotte and Manatee) Okaloosa County v. Department of Juvenile Justice (FY 10-11 Reconciliation) DOAH Case No. 11-5894 (Joint billing arrangement with the following Counties: Okaloosa, St. Lucie, Nassau, Polk, Marion, Walton, Charlotte and Manatee) Okaloosa County v. Department of Juvenile Justice (FY 11-12 Reconciliation) DOAH Case No. 13-2907 (Consolidated): Volusia County, et al. v. Department of Juvenile Justice DOAH CASE NOS. 13-1442, 13-2906, 13-2907, 13-2908, 13-2909, 13-2910, 13-2911, 13-2912, 13-2913, 13-2914, 13-2915, 13-4390 (Joint billing arrangement with the following Counties: Okaloosa, Nassau, St. Lucie, Walton, Polk, Charlotte and Manatee) Okaloosa County (FY 12-13 Reconciliation) Representation re: Department of Juvenile Justice Reconciliation (Joint billing arrangement with the following Counties: Okaloosa, Nassau, St. Lucie, Charlotte, Manatee, Collier, Walton) These matters have a cost of defense that is shared with other counties. The hourly rates that will continue to be charged for these matters are as follows: Firm Partners $250.00 per hour Firm Associates $200.00 per hour Law Clerks $ 75.00 per hour 12 EXHIBIT D (CONT.) NGN currently represents the County in two matters which are under a contingency fee agreement. These matters are as follows: Okaloosa County, Florida v. LaGrange Aero, Inc., et al. Case No. 2010-CA-6909 S (Ast Judicial Circuit) (Contingency) Leon County, et al. v. Expedia, Inc., et al. (On Line Travel) Case No. 2009-CA-4882 (2nd Judicial Circuit) Case No. 2009-CA-4319 (2nd Judicial Circuit) Case No. 1D12-4815 (1st DCA) Case No. 1D12-2421 (1st DCA) Case No. SC13-2056 (Fla. Supreme Court) Case No. SC13-838 (Fla. Supreme Court) (Contingency) These matters will continue to be handled under the terms of the contingency agreement entered into between NGN and the County. 13