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Agenda 12/11/2012 Item #16A3512/11/2012 Item 16.A.35. EXECUTIVE SUMMARY Recommendation to approve and authorize the Chairman to sign a Retention Agreement for legal services with FEMA Law Associates, PLLC pertaining to an appeal concerning the de- obligation of FEMA funds related to Hurricanes Katrina and Wilma with a request to open a Purchase Order in an amount not to exceed $20,000. OBJECTIVE: To obtain approval to enter into a Retention Agreement for legal services with FEMA Law Associates, PLLC ( "FEMA Law "). CONSIDERATIONS: Attached for the Board's approval is a Retention Agreement with the FEMA Law; which is a law firm that specializes in representing public agency clients on issues arising under the laws, regulations, and policies of the Federal Emergency Management Agency, including but not limited to matters seeking to reverse the de- obligation of FEMA assistance grants. At the September 11, 2012, Board of County Commissioner's (BCC) meeting the Board directed the County Manager to pursue the recovery of de- obligated Federal Emergency Management Agency (FEMA) payments from Hurricanes Katrina and Wilma and authorized the expenditure of funds for technical, legal, and professional resources to support the recovery effort. Staff is requesting Board approval of the attached Retainer Agreement and authorization to open a Purchase Order in an amount not to exceed $20,000. In the event that the cost of pursuing this appeal with FEMA Law's assistance will exceed the requested amount, staff will return to the Board to seek authorization for additional funds. FISCAL IMPACT: Funding in the amount of $20,000 is available in Fund 001- 103010. LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval —SRT. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. RECOMMENDATION: To approve and authorize the Chairman to sign the attached Retention Agreement for legal services with FEMA Law Associates, PLLC for FEMA claims pertaining to Hurricanes Katrina and Wilma not to exceed $20,000. Prepared by: Gary McAlpin, Manager, Coastal Management Programs Attachments: Retention Agreement with FEMA Law Associate, PLLC Packet Page =2730- COLLIER COUNTY Board of County Commissioners Item Number: 16.A.35. 12/11/2012 Item 16.A.35. Item Summary: Recommendation to approve and authorize the Chairman to sign a Retention Agreement for legal services with FEMA Law Associates, PLLC pertaining to an appeal concerning the de- obligation of FEMA funds related to Hurricanes Katrina and Wilma with a request to open a Purchase Order in an amount not to exceed $20,000. Meeting Date: 12/11/2012 Prepared By Name: PuigJudy Title: Operations Analyst, GMD P &R 12/5/2012 8:57:28 AM Submitted by Title: Director - Coastal Management Programs,Coastal Zon Name: McAlpinGary 12/5/2012 8:57:30 AM Approved By Name: PuigJudy Title: Operations Analyst, GMD P &R Date: 12/5/2012 9:17:03 AM Name: McAlpinGary Title: Director - Coastal Management Programs,Coastal Zon Date: 12/5/2012 9:21:46 AM Name: LorenzWilliam Title: Director - CDES Engineering Services, Comprehensive Date: 12/5/2012 9:27:37 AM Name: PuigJudy Title: Operations Analyst, GMD P &R Date: 12/5/2012 9:36:16 AM Packet Page -2731- Name: TeachScott Title: Deputy County Attorney,County Attorney Date: 12/5/2012 1:12:34 PM Name: KlatzkowJeff Title: County Attorney Date: 12/5/2012 2:01:00 PM Name: FinnEd Title: Senior Budget Analyst, OMB Date: 12/5/2012 2:31:23 PM Name: OchsLeo Title: County Manager Date: 12/5/2012 4:05:01 PM Packet Page - 2732 12/11/2012 Item 16.A.35. 12,111/2012 item 16.A.35. RETENTION AGREEMENT WITH FEMA LAW ASSOCIATES, PLLC This Retention Ap,,reement is made by and between the Board of County Commissioners of Collier County. Florida (tile "County"), and the law firin of FEMA Law Associates, PLLC ("FLA") whose principal place of business is located at 172-5 1 Street, NW. Suite 300, Washington. D.C. 20006, Washington. FLA has special expertise and resources in repres en t ing public agency client& on issues arising, under the laws, regulations, and policies of the Federal Emergency Management Agency (-FEMA-), includinge but not limited to matters seeking to reverse the deobliption of* FEMA assistance grants, and Whereas, tile County wishes to retain counsel to provide legal services which are particularly within the expertise of FLA. Now. therefore, in consideration of the premises contained herein, the County hereby hires and retains FLA and FLA hereby agrees to provide legal services to County. ARTICLE I COMPENSATION: MET140D OF PAYMENT 1.1 Compensation shall he paid to FLA in accordance with the terms set I-brth in Exhibit -A- attached hereto and made a part hereof, Requirements for reimbursable expenses are set f6rth 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 even, ' invoice submitted for payment. Page I of 16 Packet Page -2733- 12/11/2012 Item 16.A.35. 1.2 The rates set forth in Exhibit ­A7 shall remain in effect without change for a minimum of two (2) years from the effective date of this Agreement, In any subsequent years of the Agreement, upon the request of FLA. 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, FLA must -substantiate the reason the request is being made (i.e. market conditions. increase in CPI. etc.) 1.3 Multiple Attorney Assiggaimcnts. FLA agrees that all legal services will be primarily provided tar the County by its Principal. Ernest B. Abbott. with assistance from his alsta parale- ff and by any designated L-n t. other FLA attorney (either currently in FLA *s employ or subsequently hired) as designated by Mr. Abbott. 1.4 FLA 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 expense,,; incurred. An original invoice plus one copy is due within fifteen ( 15) days of the end (if the month, except the final invoice which must he received no later than sixty ((° 0) dad =s after thL work is completed or the expiration of this Agrecinent. Li To be deemed proper. all invoices must comply with the requirements set ibi-th in this Aureement and must be submitted on the harm and pursuant to the instruction prescribed by County. Payment may be withheld fi)r failure of FLA to comply with a term. condition. or requirement of this Agreement. 1.6 PaNTncnt shall be made to FLA at: FEMA Law Associates. PLLC Suite 300 1725 1 Street, NW Page 2 of t6 Patket Page -2734- 12/11/2012 Item 16.A.35. Washington, D.C. 20006 ARTICLE 2 INSURANCE 2.1 FLA 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 no less than Two Million Dollars, ($2,000,000.00) per occurrence. Combined Single Limits. If any liability insurance obtained by FLA to (x)mpl.v with the insurance requirements contained herein is issued on a "claims made" form as opposed to an "occurrence" f=orm. the retroactive date for coverage shall be no) later than the commencement date of tile assigned work to which this Agreement applies, and such Insurance shall provide, in the event of cancellation or non-renewal. that the discovery period f6r insurance claims i tail coverage) shall not be less than three years ibliowing the completion of the assigned worh, and acceptance by the County. 2. _2 Such policy or policies shall be issued by an i � with at least an ­A­ ratin,-, insurance companN wi from the-A.M. Best Company. Inc. 2.3 Fl.-A shall furnish to the Risk Management Director Certificatc- of Insurance Or endorsements evidencing the insurance coverages specified by this Article prior to beginning perfbrmance of work under this Agreement, Page 3 of 116 Packet Page -2735- 12/11/2012 Item 16.A.35. ARTICLE 3 TERM AND TIME OF PERFORMANCE The term of this Aercement shall be for a period of two (2) years to begin November 13. 2012 and to end on November 12, 2014., unless terminated earlier in accordance with tile provisions of this Agreement. Absent notice of intent to tenninatc. the Agreement may be renewed upon mutual consent of the parties lbr three (3) additional terms of' one (1) year cach- (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.) 3.2 Time shall be deemed to be of the essence in performing the duties. obligations and responsi bilities by this Agreement. 1. w ivers of provisions of this Anv amendments, alterations, variations, niodifications of a I Agreement shall only be valid when they have been reduced to writing. duly signed by both parties hereto, and attached to the on'trinai ofthis Agreement. ARTICLE 4 TERMINATION 4.1 This Agreement I 7eement inay be ten-ninated by either Marty fir cause upon ten (10) days* notice or h-y, either party ibr convenience upon no less than thirty (30) days' advance written notice in accordance with the "NOTICES" section of this Agreement. 4,2 Ternlination of this Agreement for cause shall include, but not be III-nited to. failure to suitably perform the wort . failure to continuously perform the work in a manner calculated to meet or accomplish the objectives of County as set forth in this Agreement, loft., Page '4 of] 6 Packet Page -2736- 12/11/2012 Item 16.A.35. 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 tbr convenience. FLA shall be paid for any services perkmiled to the date the Agreement is terminated, however, upon notice by either party to terminate. FLA shall refrain from performing further services or incurring additional expenses under the term of tills Agreement. FLA acknowledges and agrees that Ten Dollars ($ 10) of the compensation to be paid by County, the adequacy of which is hereby acknowledged by FLA, is given as specific, consideration to FLA for County's right to terminate this Agreement for convenience. FLA*s obligations to the County as provided for hereunder shall cease upon termination, except for participating in all orderly and professional transfer of such responsibilities and files or copies offices to the County or its desic-Triet: ARTICLE 5 RECORD AUDIT AND INSPECTION 5.1 Countv shall have the right to audit the books and records of FLA pertinent to the funding under this Agreement. 'FLA shall preserve and make available. at reasonable times for examination and audit by County, all financial records, supporting documents. and other C, documents pertinent to this Agreement for a period o f three (3) years after tenninatiOn of this Agreement or. if any audit has been initiated and audit findings have not been resolved Agreement In at the end of the three year.,,-, the books and records shall be retained until resolution of the audit findings. Z Page 'S of 16 Packet Page -2737- 12/11/2012 Item 16.A.35. t ,.2 If tile Florida Public Records Act (Chapter 119. Fla. Stat.) is detenn ined by County o be applicable to FLA's records. FLA shall comply with all requirements thereof ARTICLE 6 CONFLICT OF INTEREST 6.1 FLA states that it is familiar with and will comply with the terms- and conditions of Chapter 112, Part 111. Florida Statutes (Code of-Ethics,). 6.2 It is important that FLA be independent and impartial in order to properly conduct its services to the County. FLA shall not act as counsel In any lawsuit or other adversary proceeding in which County is named as an adversary party or in tivhich FLA takes an adverse position to the County. 6.3 Neither FLA nor its employees shall have or hold any contirtumig or frequently recurring employment or contractual relationship that is substantially incompatible y antatiomstic or incompat with FLA's loval and conscientious exercise of judgment related to its performance under this A,,reement. .r 0.4 In the event FLA is permitted to utilize subcontractors, herein, to perform any services required by this Agreement. FLA agrees to prohibit such subcontractors. by written contract. from having any conflicts as withi tile meaning ofthi� section. in this; If' at any time FLA's firm represents a client in matters having to do with the Collier CountygOvernment, be it before the Board of County Con-u-nissioners or any other agency or division of Collier County government. FLA will contact tile County Attorney's Office before undertaking such representation so that it can he determined whether a conflict of interest emsts. Page 6 of 16 Packet Page -2738- 12111/2012 Item 16.A.35. ARTICLE 7 OWNERSHIP OF DOCUMENTS 7.1 Any and all documents provided or created in connection with this Agreement are and shall remain the property of County. In the event of' tcrinination of this Agreement, any documents prepared by FLA. whether finished or unfinished. shall become the property of County and shall be delivered by FLA to the County within seven (7) 1 days of termination of this Agreement by either party. Any compensation due to FLA shall be withheld until all documents are received as provided hereirl. ARTICLE 8 INDEPENDENT CONTRACTOR S.1 FLA is an independent contractor under this Agreement. Services pro,Ni led by FLA shall be subject to the supervision of FLA, and such service,,; shall not he provided by FLA as officers, employees, or agents of the County. The parties expressly acknowledge that it Lis not their intent to create any rights or obligations in ariv third person or entity under this A- cement. --r ARTICLE 9 NONDISCRIMINATION. EQUAL OPPORTUNITY AND AMERICANS WITH DISABILITIES ACT 9J FLA shaR not unlawfully discriminate as any person in its operations and activities ' in its use or expenditure of the funds or any portion of the funds proxided this by - is Aareement and shall affin-natively comply with all applicable proNrisions of the Americans with Disabilities Act (AAA) in the course of providing any services funded in whole or in part by County. including Page -7 of 16 Packet Page -2739- 12/11/2012 Item 16.A.35. Titles I and 11 of the ADA (regarding nondiscrimination on the basis of disability), and all A*W applicable regulations, guidelines, and standards. 9.2 FLA's decisions regardin- the delivcry of services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, sexual orientation national origin, martial status, physical or mental disability, political afffliation, or any ether factor which cannot be lawfully or appropriately used as a basis for service delivery. 9.3 FLA shall comply with Title I of the Americans with Disabilities Act regarding nondiscrimination on the basis of disability in employment and flifther shall not discriminate against any employee or applicant for employment because of' rage, age, religZ, ion. color. gender, - sexual orientation, national oriLq-n. marital status, political affiliation. or physical or mental disabilitv. In addition, FLA shall take affirmative steps to ensure nondiscrimination in employment atgainst disabled persons. Such actions shall include, but not he limited to. the followin,,: emplovillent, 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. Z, 9.4 FLA shall take affirmative action to ensure that applicants are employed and employees are treated without regard to race, age. religion- color. gender, sexual orientation, national ori marital status. political affiliation. or Physical or mental disability during employment. Such actions shall include. but not be limited to, the following: employment. upgrading. dernotion. transfer, recruitment or recruitment advertising, layoff terniination, rates of pay, other tbrnis of compensation. terms and conditions of employment. training (including apprenticeship), and accessibilitv. Page A of 16 Packet Page -2740- 12/11/2012 Item 16.A.35. 9.; FLA 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 10 NOTICES 10.1 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 partyffir whom, it is intended at the place last specified. The place for riving notice shall remain the same as sel forth herein until chanecd in writing in the manner g`1 1 1, - - provided in this section. For the present. the parties designate the Following- FOR COLLIER. COUNTY: Jeffrev A. Klatzkow. (.-'.ountv Attorney Government Center 3299 Tarniami Trail East Suite 800 Naples. F I o ri da 3 4 J 12 FOR FENIA LAW ASSOCIATES, PLLC: Ernest B. Abbott. Esq. FERIA Law Associates, PLLC Suite 300 1725 1 Street, NW Washington, D.C', 210000 ARTICLE I I MISCELLANEOUS 11. 1 WAIVER OF BREACH AND MATERIALITY Nee 9 of 16 Packet Page -2741- 12/11/2012 Item 16.A.35. 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 cif this Agreement. 11.2 COMPLIANCE WITH LAWS FLA 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. 11.3 SEVERANCE In the event a portion of'this Agreement is Ibund by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless County and FLA elect to terminate this Agrecincrit. The election to terminate this Agreement based upon this provision shall be made within seven (7) days alter the finding by the court becomes final. 11.4 APPLICABLE LAW AND VENUE This 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. I L' PRIOR AGREEMENTS This document supersedes all prior negotiations, correspondence. conversations, agreements. and understandings applicable to the matters contained herein and the parties agree that there are no commitments. a&,Teemcnts or understandings conceming the Page 10 or 16 Packet Page -2742- 12/11/2012 Item 16.A.35. su4iect 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 representat ions 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, 11.6 INCORPORATION BY REFERENCE The truth and accuracy of each 'Wiereas" clause set forth above is acknowledged by the parties. The attached Exhibits "A," "B" and "C" are Incorporated into and made a pail of this Agreement. DATE: December H, 2012 ATTEST: DWIGHT E. BROCK, CLIERK Approved as to form and legal sufficiency Scott R. Teach Deputy County Attomev BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTN'. FLORIDA By: FRED W. COYLE. CHAIRMAN Page I I of 16 Packet Page -2743- DATE: k � 2,0 12- FEMA Assc►ciat LLC By: �f5 rnest B. Abbott, Esq. Its: 12/11/2012 Item 16.A.35. CITE' OF WASHINGTON DISTRICT OF COLUMBIA The foregoing Retention Agreement was acknowledged before me thus C,-'�' day of /Vot,P'T t . 2012, by er^es� � ��as G of I"EMA Law Associates. PLLC, on behalf of Ernest B. Abbott, He/she is personally known to me or produced �VV,.r'r L rcZl J.,C as identification. SiL nature of? -olary Public Names of Notary Public typed, printed or My Commission Expires,: Notary Public Diswct of Columbia Ibg Ctu nissiw as,Wy 14, 2013 ` r 4L e r tii a►.. i Fft 'fit - +` i -0.1 Page 12 of 16 Packet Page -2744- 12111/2012 Item 16.A.35. EXHIBIT A For professional services rendered. FEMA Law Associates, PLLC's fee shall he based on the hourly rate as follows: Ernest B. Abbott $400.00 per hour Other Attorneys $200.00 per hour Law Clerks & Paralegals $80.00 per hour FEMA Law Associates' fee shall not exceed $ 1003000.00 without the prior 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 FEMA Law Associates.) In the event that FEMA Law Associates is required or requested ttx perforrn any additional or extraordinar- s b entitled to apply y services not herein contemplated- FEMA Law Associate, shall e for additional compensation, the amount of which shall be subject to the approval of County and no such additional coliriperisation in excess of the amount herein stated shall be paid U*riless specifically authorized in advance by County in its sole discretion. - FEMA Law Associates shall provide. at no cost to County. the annual response to County',"; 7 auditors reLardim, pendmig, or threatened litigation. The auditors typically request information L, - - 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, all estimate of the amount or range of potential loss, and any other information considered necessary to explain the case. FEMA Law Associates shall provide said response within 30 days 01'reccipt ofthe request. NOTES: Divisions, or departments within such divisions, shall be responsible and pay for legal counsel services relati- to litigation and outside counsel specifically lbr cases, matters or issues relating to such division or department. as determined by the County Attorney in coordination with the County Manager, Page 13 of 16 Packet Page -2745- 12/11/2012 Item 16.A.35. WNUMNS-91 I In addition to the charges for professional fees set forth in Exhibit "A." and the Schedules attached hereto, Counter shall reimburse FEMA Law Associates 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. FEMA Law Associates shall not charge for travel of attorneys- between its officcs so that it can provide the best available and most appropriate lawyer in any of its office locations for the issues involved. 2. FEMA Law Associates shah subn-dt invoices on a monthly basis for the payment of out-of-pocket expense-,. Each invoice shall include a signed certificate listing all costs, expenses, vouchers. invoices and other documentary evidence that will describe in I reasonable detail the basis for is expenditures for which reimbursement sought It I ght as set forth below. REQUIREMENTS 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 he on all invoices submitted. No service, interest. or other charae of like nature is to be imposed with regard to any item, invoice, or request. All firms doin4g, business with Collier County must have a current VNI-9 "Request for Taxpayer Identification Number and Certification" on file. ;,,, Services rendered must be specifically and concisely identified: Name b s of performing services. hourly rates, and dates must e fisted- The County agrees to reimburse FEMA Law Associates for retention and utilization of sub-consultants. Pam 14 of 16 Packet Page -2746- 12/11/2012 Item 16.A.35. Reimbursable expense must be verified by attached receipts or copies thereof' Claims for mficage 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 priticipal business location. Claims for lodging at skizie 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. r Common carrier travel shall be reimbursable at tourist or coach class fares only. Accounting Division requires o riuinal 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. Tile certifying person must sism the Certification form and a description provided of the items, which are certified. I , Faxes shall not be reimbursed Lesgal Research costs (Leis-Nexis, Westlaw, etc.) shall not he reimbursed Pave I i cif` 1 6 Packet Page -2747- I 12/11/2012 Item 16.A.35. EXHIBIT C CERTIFICATE IT IS HEREBY CERTIFIED that: 1- has been duly designated as special counsel to render legal services or provider ofservice 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; 2. Expenditure(s) enumerated represent casts necessarily incurred during the course ofoffiicial 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 statute and administrative orders, and with the express proNrision that all other parties are Marred from entitlement to any part of these costs. RE: Invoice No. . Dated Period Covered: . Amount IN -HOUSE CHARGES: Photocopies: copies (k SO.l 5 /each Mileage: miles Mfr, imilc OTHER (Copies of invoices required): Long Distance Calls S Other: TOTAL: FOR THE FIR: Signed: Print Name: Title: Date: fA- et0,- C;1UM47 Page 16 of 16 Packet Page -2748-