#11-5783 (David Dee w/Gardner, Bist, Wiener, Wadsworth, Bowden, Bush, Dee, LaVia & Wright, P.A.)
11-5783 RETENTION AGREEMENT WITH
GARDNE& BIST. WIENE& WADSWORTH. BOWDEN.
BUSH. DEE. LA VIA & WRIGHT. P.A.
Ibis Retention Agreement is made by and between the Board of County Commissioners
of Collier County, Florida (the "County"), and the law firm of Gardner, Bist, Wiener,
Wadsworth, Bowden, Bush, Dee, LaVia & Wright, P.A., of Tallahassee, Florida ("Dee").
Whereas, David S. Dee has special expertise and resources in a wide range of legal
matters, with particular expertise in local government law, environmental law and permitting of
solid waste facilities and related issues; and
Whereas, the County from time to time has a requirement and need for legal services
which are particularly within the expertise of Dee.
Now, therefore, in consideration of the premises contained herein, the County hereby
hires and retains Dee and Dee hereby agrees to provide legal services to County.
ARTICLE 1
COMPENSATION; METHOD OF PAYMENT
1.1 Compensation shall be paid to Dee in accordance with the terms set forth in Exhibit "A"
attached hereto and made a part hereof. Requirements for reimbursable expenses are set
forth in Exhibit "B," attached hereto and made a part hereof. Expenses other than
automobile expenses must be documented by copies of paid receipts or other evidence of
payment. The Certificate contained in Exhibit "C" must be included with every invoice
submitted for payment.
1.2 The rates set forth in Exhibit "A" shall remain in effect without change for a minimum of
three (3) years from the effective date of this Agreement. In the subsequent years of the
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Agreement, upon the request of Dee, the County Attorney is authorized to negotiate to
increase the hourly rate up to a maximum of ten (10) percent without approval by the
Board of County Commissioners. In the negotiation process, Dee must substantiate the
reason the request is being made (i.e. market conditions, increase in CPI, etc.)
1.3 Multiple Attorney Assignments.
The County acknowledges that, from time to time, it may be advisable for Dee to assign
more than one attorney to a project or case. Nevertheless, in order to ensure that such
multiple attorney assignments are efficient and cost-effective for the County, Dee agrees
to the following procedures and billing limitations for multiple attorney assignments.
1.3.1 A primary attorney will be identified for such projects or cases and that
attorney will be the contact attorney for the County except in the case of an
emergency or the County's written pre-approval. In practice, this means that
generally only the primary attorney will meet or communicate directly with
County personnel or attend meetings, court, arbitrations, mediations or other
proceedings on behalf of the County.
1.3.2 Attorneys assigned to a project or case other than the primary attorney will be
less senior attorneys with lower billing rates unless the additional attorney(s)
haslhave a demonstrated expertise that will demonstrably enhance the value
and efficiency of the legal services being provided to the County.
1.3.3 Dee agrees that internal or in-house conferences among multiple attorneys
assigned to a project or case shall be kept to the minimum reasonably necessary
for the provision of the legal services in question. To the extent internal or in-
house conferences among multiple attorneys assigned to a project or case are
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necessary, each such attorney may bill his or her customary rate for up to thirty
(30) minutes for any such conference. To the extent such a conference exceeds
thirty (30) minutes in length, Dee agrees that it will discount the total billings
for all attorneys involved in the conference by forty-five (45) percent.
1.4 Dee may submit invoices for hourly work assignments pursuant to Exhibit "A" only after
the services for which the invoices are submitted have been completed or expenses
incurred. An original invoice plus one copy is due within fifteen (15) days of the end of
the month, except the final invoice which must be received no later than sixty (60) days
after the work is completed or the expiration of this Agreement.
1.5 To be deemed proper, all invoices must comply with the requirements set forth in this
Agreement and must be submitted on the form and pursuant to the instruction prescribed
by County. Payment may be withheld for failure of Dee to comply with a term,
condition, or requirement of this Agreement.
1.6 Payment shall be made to David S. Dee at:
Gardner, Bist, Wiener, Wadsworth, Bowden,
Bush, Dee, LaVia & Wright, P.A.
1300 Thomaswood Drive
Tallahassee, Florida 32308-7914
ARTICLE 2
INSURANCE
2.1 Dee shall as a minimum, provide, pay for, and maintain in force at all times during the
term of this Agreement, professional liability insurance in an amount not less than Two
Million Dollars ($2,000,000.00) Per Occurrence, Combined Single Limits. If any liability
insurance obtained by Dee to comply with the insurance requirements contained herein is
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issued on a "claims made" form as opposed to an "occurrence" form, the retroactive date
for coverage shall be no later than the commencement date of the assigned work to which
this Agreement applies, and such insurance shall provide, in the event of cancellation or
.
non-renewal, that the discovery period for insurance claims (tail coverage) shall not be
less than three years following the completion of the assigned work and acceptance by the
County.
2.2 Such policy or policies shall be issued by United States Treasury approved companies
authorized to do business in the State of Florida, and having agents upon whom service of
process may be made in Collier County, Florida.
2.3 Dee shall furnish to the Risk Management Director Certificates of Insurance or
endorsements evidencing the insurance coverages specified by this Article prior to
beginning performance of work under this Agreement.
ARTICLE 3
TERM AND TIME OF PERFORMANCE
3.1 The term of this Agreement shall be for a period of three (3) years to begin September 27,
2011 and to end on September 27,2014, unless terminated earlier in accordance with the
provisions of this Agreement. Absent notice of intent to terminate, the Agreement may
be renewed upon mutual consent of the parties for three (3) additional terms of one (1)
year each. In the event the term of this Agreement extends beyond a single fiscal year of
County, the continuation of this Agreement beyond the end of any fiscal year shall be
subject to the availability of funds from County in accordance with Chapter 129, Florida
Statutes.
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3.2 Time shall be deemed to be of the essence in performing the duties, obligations and
responsibilities by this Agreement.
3.3 Any amendments, alterations, variations, modifications or waivers of provisions of this
Agreement shall only be valid when they have been reduced to writing, duly signed by
both parties hereto, and attached to the original of this Agreement.
ARTICLE 4
TERMINATION
4.1 Ibis Agreement may be terminated by either party for cause upon ten (10) days' notice or
by either party for convenience upon no less than thirty (30) days' advance written notice
in accordance with the "NOTICES" section of this Agreement.
4.2 Termination of this Agreement for cause shall include, but not be limited to, failure to
suitably perform the work, failure to continuously perform the work in a manner
calcula(ed to meet or accomplish the objectives of County as set forth in this Agreement,
or multiple breach of the provisions of this Agreement notwithstanding whether any such
breach was previously waived or cured.
4.3 In the event this Agreement is terminated for convenience, Dee shall be paid for any
services performed to the date the Agreement is terminated; however, upon notice by
either party to terminate, Dee shall refrain from performing further services or incurring
additional expenses under the term of this Agreement. Dee acknowledges and agrees that
Ten Dollars ($10) of the compensation to be paid by County, the adequacy of which is
hereby acknowledged by Dee, is given as specific consideration to Dee for County's right
to terminate this Agreement for convenience. Dee's obligations to the County as
provided for hereunder shall cease upon termination, except for participating in an orderly
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and professional transfer of such responsibilities and files or copies of files to the County
or its designee.
ARTICLE 5
RECORD AUDIT AND INSPECTION
5.1 County shall have the right to audit the books and records of Dee pertinent to the funding
under this Agreement. Dee shall preserve and make available, at reasonable times for
examination and audit by County, all financial records, supporting documents, and other
documents pertinent to this Agreement for a period of three (3) years after termination of
this Agreement or, if any audit has been initiated and audit fmdings have not been
resolved at the end of the three years, the books and records shall be retained until
resolution of the audit findings.
5.2 If the Florida Public Records Act (Chapter 119, Fla. Stat.) is determined by County to be
applicable to Dee's records, Dee shall comply with all requirements thereof, however, no
confidentiality or non-disclosure requirement of either federal or state law shall be
violated by Dee.
ARTICLE 6
CONFLICT OF INTEREST
6.1 Dee states that it is familiar with and will comply with the terms and conditions of
Chapter 112, Part ill, Florida Statutes (Code of Ethics).
6.2 It is important that Dee be independent and impartial in order to properly conduct its
services to the County. Dee shall not act as counsel in any lawsuit or other adversary
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proceeding in which County is named as an adversary party or in which Dee takes an
adverse position to the County.
6.3 Neither Dee nor its employees shall have or hold any continuing or frequently recurring
employment or contractual relationship that is substantially antagonistic or incompatible
with Dee's loyal and conscientious exercise of judgment related to its performance under
this Agreement.
6.4 In the event Dee is permitted to utilize subcontractors, herein, to perform any services
required by this Agreement, Dee agrees to prohibit such subcontractors, by written
contract, from having any conflicts as within the meaning of this section.
6.5 If at any time Dee's firm represents a client in matters having to do with the Collier
County government, be it before the Board of County Commissioners or any other agency
or division of Collier County government, Dee will contact the County Attorney's Office
before undertaking such representation so that it can be determined whether a conflict of
interest exists.
ARTICLE 7
INDEMNIFICATION
7.1 Dee acknowledges and agrees that Ten Dollars ($10.00) of the compensation to be paid
by County, the adequacy of which is hereby acknowledged by Dee, is given as specific
consideration to Dee so that Dee shall at all times hereafter indemnify, hold harmless and,
at County's option, defend or pay for an attorney selected by County to defend County, its
officers, agents, servants, and employees against any and all claims, losses, liabilities, and
expenditures of any kind, including attorney fees, court costs, and expenses, caused by a
negligent act or omission of Dee, its employees, agents, servants, or officers, accruing,
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resulting from, or related to the subject matter of this Agreement including, without
limitation, any and all claims, demands or causes of action of any nature whatsoever
resulting from injuries or damages sustained by any person or property. The provisions of
this section shall survive the expiration or earlier termination of this Agreement. To the
extent considered necessary by County, any sums due Dee under this Agreement may be
retained by County until all of County's claims for indemnification pursuant to this
Agreement have been settled or otherwise resolved; and any amount withheld shall not be
subject to payment of interest by County.
ARTICLE 8
OWNERSHIP OF DOCUMENTS
8.1 Any and all reports, photographs, surveys, and other data and documents provided or
created in connection with this Agreement are and shall remain the property of County.
In the event of termination of this Agreement, any reports, photographs, surveys, and
other data and documents prepared by Dee, whether finished or unfinished, shall become
the property of County and shall be delivered by Dee to the County within seven (7) days
of termination of this Agreement by either party. Any compensation due to Dee shall be
withheld until all documents are received as provided herein.
ARTICLE 9
INDEPENDENT CONTRACTOR
9.1 Dee is an independent contractor under this Agreement. Services provided by Dee shall
be subject to the supervision of Dee, and such services shall not be provided by Dee as
officers, employees, or agents of the County. The parties expressly acknowledge that it is
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not their intent to create any rights or obligations in any third person or entity under this
Agreement.
ARTICLE 10
NONDISCRIMINATION, EQUAL OPPORTUNITY
AND AMERICANS WITH DISABILITIES ACT
10.1 Dee shall not unlawfully discriminate against any person in its operations and activities in
its use or expenditure of the funds or any portion of the funds provided by this Agreement
and shall affmnatively comply with all applicable provisions of the Americans with
Disabilities Act (ADA) in the course of providing any services funded in whole or in part
by County, including Titles I and II of the ADA (regarding nondiscrimination on the basis
of disability), and all applicable regulations, guidelines, and standards.
10.2 Dee's decisions regarding the delivery of services under this Agreement shall be made
without regard to or consideration of race, age, religion, color, gender, national origin,
marital status, physical or mental disability, political affiliation, or any other factor which
cannot be lawfully or appropriately used as a basis for service delivery.
10.3 Dee shall comply with Title I of the Americans with Disabilities Act regarding
nondiscrimination on the basis of disability in employment and further shall not
discriminate against any employee or applicant for employment because of race, age,
religion, color, gender, national origin, marital status, political affiliation, or physical or
mental disability.
In addition, Dee shall take affirmative steps to ensure
nondiscrimination in employment against disabled persons. Such actions shall include,
but not be limited to, the following: employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of
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compensation, terms and conditions of employment, training (including apprenticeship),
and accessibility.
10.4 Dee shall take affirmative action to ensure that applicants are employed and employees
are treated without regard to race, age, religion, color, gender, national origin, marital
status, political affiliation, or physical or mental disability during employment. Such
actions shall include, but not be limited to, the following: employment, upgrading,
demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of
pay, other forms of compensation, terms and conditions of employment, training
(including apprenticeship), and accessibility.
10.5 Dee shall not engage in or commit any discriminatory practice in performing the Scope of
Services or any part of Scope of Services of this Agreement.
ARTICLE 11
NOTICES
11.1 Whenever either party desires to give notice to the other, such notice must be in writing,
sent by registered or certified United States Mail, postage prepaid, return receipt
requested, or by hand-delivery, addressed to the party for whom it is intended at the place
last specified. The place for giving notice shall remain the same as set forth herein until
changed in writing in the manner provided in this section. For the present, the parties
designate the following:
FOR COLLIER COUNTY:
Jeffrey A. Klatzkow, County Attorney
Government Center
3299 Tamiami Trail East, Suite 800
Naples, Florida 34112
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FOR DEE:
David S. Dee
Gardner, Bist, Wiener, Wadsworth, Bowden,
Bush, Dee, LaVia & Wright, P.A.
1300 Thomaswood Drive
Tallahassee, Florida 32308-7914
ARTICLE 12
MISCELLANEOUS
8.1 WANER OF BREACH AND MATERIALITY
Failure by County to enforce any provision of this Agreement shall not be deemed a
waiver of the provision or modification of this Agreement. A waiver of any breach of a
provision of this Agreement shall not be deemed a waiver of any subsequent breach and
shall not be construed to be a modification of the terms of this Agreement.
8.1 COMPLIANCE WITH LAWS
Dee shall comply with all federal, state, and local laws, codes, ordinances, rules, and
regulations in performing its duties, responsibilities, and obligations related to this
Agreement.
12.3 SEVERANCE
In the event a portion of this Agreement is found by a court of competent jurisdiction to
be invalid, the remaining provisions shall continue to be effective unless County and Dee
elect to terminate this Agreement. The election to terminate this Agreement based upon
this provision shall be made within seven (7) days after the fmding by the court becomes
fmal.
12.4 APPLICABLE LAW AND VENUE
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Ibis Agreement shall be interpreted and construed in accordance with and governed by
the laws of the State of Florida. Venue for litigation concerning this Agreement shall be
in Collier County, Florida.
12.5 PRIOR AGREEMENTS
This document supersedes all pnor negotiations, correspondence, conversations,
agreements, and understandings applicable to the matters contained herein and the parties
agree that there are no commitments, agreements or understandings concerning the
subject matter of this Agreement that are not contained in this document. Accordingly,
the parties agree that no deviation from the terms hereof shall be predicated upon any
prior representations or agreements, whether oral or written. It is further agreed that no
modification, amendment or alteration in the terms or conditions contained herein shall
be effective unless contained in a written document in accordance with Article 3 above.
12.6 INCORPORATION BY REFERENCE
The truth and accuracy of each "Whereas" clause set forth above is acknowledged by the
parties. The attached Exhibits "A," "B," and "C" are incorporated into and made a part of
this Agreement.
DATE: lo-~g-'2DH
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A!t"",.c,~l:. .'1'
g;WIGIlTJi "a.ItOCK, CLERK
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BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By: M~
FRED W. COYLE, C
Page 12 ofl7
Approved as to form and
legal sufficiency
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County Attorney ~
Cd.&
By:
GARDNER, BIST, WIENER,
WADSWORTH, BOWDEN, BUSH, DEE,
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David S. Dee
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Its:
STATE OF FLO~d
COUNTY OF Ck../
The foregoing Retention Agreement was acknowledged before me this ~y of
~~, 2011, by David S. Dee as ~f Gardner, Bist, Wiener, Wadsworth,
Bowden, Bush, Dee, LaVia & Wright, P.A. He is personally known to me ~r flPeeeeed
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EXHIBIT A
For professional services rendered, Dee's, fee shall be based on the hourly rate as follows:
$225.00 per hour for services provided by principals;
$175.00 per hour for services provided by associates;
$ 70.00 per hour for services provided by law clerks & paralegals.
Dee's fee shall not exceed $100,000.00 without the approval of the Board of County
Commissioners. Any expenditure beyond the initial $100,000.00 approval by the Board of
County Commissioners must have Board approval prior to work being performed. (Where
appropriate a "not to exceed" sum shall be agreed to when each assignment is made to Dee.
In the event that Dee is required or requested to perform any additional or extraordinary services
not herein contemplated, Dee shall be entitled to apply for additional compensation, the amount
of which shall be subject to the approval of County and no such additional compensation in
excess of the amount herein stated shall be paid unless specifically authorized in advance by
County in its sole discretion.
Dee shall provide, at no cost to County, the annual response to County's auditors regarding
pending or threatened litigation. The auditors typically request information regarding all
litigation, claims and assessments considered to be material. The response should include the
nature of the litigation, the progress of the case to date, an estimate of the amount or range of
potential loss, and any other information considered necessary to explain the case. Dee shall
provide said response within 30 days of receipt of the request.
NOTES:
. Divisions, or departments within such divisions, shall be responsible and pay for legal
counsel services relating to litigation and outside counsel specifically for cases, matters or
issues relating to such division or department, as determined by the County Attorney in
coordination with the County Manager.
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EXHIBIT B
1. In addition to the charges for professional fees set forth in Exhibit "A," and the
Schedules attached hereto, County shall reimburse Dee for out-of-pocket expenses
reasonably incurred in the course of rendering such legal services, including costs of
long distance calls, printing, costs of reproduction, and necessary travel expenses
incurred in accordance with the requirements of Chapter 112, F.S. Dee shall not
charge for travel of attorneys between its offices so that it can provide the best
available and most appropriate lawyer in any of its office locations for the issues
involved.
2. Dee shall submit invoices on a monthly basis for the payment of out-of-pocket
expenses. Each invoice shall include a signed certificate listing all costs, expenses,
vouchers, invoices and other documentary evidence that will describe in reasonable
detail the basis for expenditures for which reimbursement is sought as set forth below.
3. REOUIREMENTS
The following represents Collier County's payment requirements for legal costs
~ Your federal employee identification number must be on all invoices submitted.
~ The applicable Purchase Order number must be on all invoices submitted.
~ No service, interest, or other charge of like nature is to be imposed with regard to
any item, invoice, or request. All firms doing business with Collier County must
have a current W -9 "Request for Taxpayer Identification Number and
Certification" on file.
~ Services rendered must be specifically and concisely identified.,.
~ Names of persons performing services, hourly rates, and dates must be listed. The
County agrees to reimburse Dee for retention and utilization of sub-consultants.
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~ Reimbursable expense must be verified by attached receipts or copies thereof.
~ Claims for mileage and meals cannot exceed statutory allowance as provided for
under Chapter 112, F.S. Meals and mileage cannot be charged unless the
professional has traveled outside the county of the principal business location.
~ Claims for lodging at single rate (actual cost) must be substantiated by paid bill or
charge, with a cap of no more than $150.00 per night.
~ Car rentals required for travel should include compact or standard-size vehicles
only.
~ Common carrier travel shall be reimbursable at tourist or coach class fares only.
~ Accounting Division requires original receipts, or copies of receipts which have
been individually certified to be true copies of the originals. In addition the
Certificate contained in Exhibit C must accompany each invoice. The certifying
person must sign the Certification form and a description provided of the items,
which are certified.
~ Faxes shall not be reimbursed
~ Legal Research costs (Lexis-Nexis, WestIaw, etc.) shall not be reimbursed
Page 16 of 17
EXHIBIT C
CERTIFICATE
IT IS HEREBY CERTIFIED that:
1. has been duly designated as special counsel to
render legal services or provider of services for or on behalf of Collier County;
2. Each of the documents hereinafter identified and attached is a true and correct copy of the
original record;
3. Expenditure(s) enumerated represent costs necessarily incurred during the course of
official business for which payment has not been received and for which documentation is
not available or reasonably retrievable;
4. Claims are in compliance with the applicable statutes and administrative orders, and with
the express provision that all other parties are barred from entitlement to any part of these
costs.
RE:
Invoice No.
, Dated
Period Covered:
, Amount
IN-HOUSE CHARGES:
Photocopies:
copies @ $0. IS/each
$
Mileage:
miles @ ~mile
$
OTHER (Copies of invoices reQuired):
Long Distance Calls
$
Other:
$
TOTAL:
$
FOR THE FIRM
Signed:
Print Name:
Title:
Date:
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