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Backup Documents 01/24/2012 Item #16K 3ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 6 X' 3 TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office. The completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on the item.) ROUTING SLIP Complete routing lines #1 through 94 as appropriate for additional signatures, dates, and/or information needed. If the document is already complete with the exce tion of the Chairman's signature draw a line throw h routinia lines #I throuph 44, complete the checklist, and forward to Sue Filson line #5). Route to Addressee(s) (List in routing order) Office ' ' u Date 1. (Initial ) Applicable) 2. January 24, 2012 Agenda Item Number 16 -K -3 3. Chairman, with the exception of most letters, must be reviewed and signed by the Office of the S/ 4. Colleen M. Greene, ACA County Attorney (/ --r _ 01/24/12 5. Ian Mitchell, BCC Executive Manager Board of County Commissioners I Documents Attached 1 Z (Z 6. Minutes and Records Clerk of Court's Office (2k)((2_ PRIMARY CONTACT INFORMATION (The primary contact is the holder of the original document pending BCC approval. Normally the primary contact is the person who created /prepared the executive summary. Primary contact information is needed in the event one of the addressees above, including Sue Filson, need to contact staff for additional or missing information. All original documents needing the BCC Chairman's signature are to be delivered to the BCC office only after the BCC has acted to approve the item Name of Primary Staff Colleen M. Greene, ACA Phone Number 252 -8400 Contact (Initial ) Applicable) Agenda Date Item was January 24, 2012 Agenda Item Number 16 -K -3 Approved by the BCC Chairman, with the exception of most letters, must be reviewed and signed by the Office of the Type of Document Retention Agreement — Henderson Franklin Number of Original `k Attached I I Documents Attached INSTRUCTIONS & CHECKLIST I: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05 <<matter_ number» /«document_numberu Initial the Yes column or mark "N /A" in the Not Applicable column, whichever is appropriate. Yes N/A (Not (Initial ) Applicable) 1. Original document has been signed /initialed for legal sufficiency. (All documents to be signed by the CMG Chairman, with the exception of most letters, must be reviewed and signed by the Office of the County Attorney. This includes signature pages from ordinances, resolutions, etc. signed by the County Attorney's Office and signature pages from contracts, agreements, etc. that have been fully executed by all parties except the BCC Chairman and Clerk to the Board and possibly State Officials. 2. All handwritten strike - through and revisions have been initialed by the County Attorney's Office and N/A all other parties except the BCC Chairman and the Clerk to the Board 3. The Chairman's signature line date has been entered as the date of BCC approval of the document or CMG the final negotiated contract date whichever is applicable. 4. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's signature and CMG initials are required. 5. In most cases (some contracts are an exception), the original document and this routing slip should be N/A provided to Ian Mitchell in the BCC office within 24 hours of BCC approval. Some documents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be aware of your deadlines! 6. The document was approved by the BCC on 01/24/12 and all changes made during the meeting CMG have been incorporated in the attached document. The County Attorney's Office has reviewed the changes, if applicable. 7 Please return an executed copy to Colleen M. Greene, ACA CMG I: Forms/ County Forms/ BCC Forms/ Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05 <<matter_ number» /«document_numberu 16K3 MEMORANDUM Date: January 27, 2012 To: Colleen Greene County Attorney's Office From: Teresa L. Polaski, Deputy Clerk Minutes & Records Department Re: Retention Agreement with Henderson Franklin Enclosed please find one (1) original referenced above (Agenda Item #16K3), which was approved by the Board of County Commissioners on Tuesday, January 24, 2012. The Minutes & Records Department has retained an original, which will be kept as part of the Board's Official Records. If you have any questions, please call me at 252 -8411. Thank you 16K 3 RETENTION AGREEMENT WITH HENDERSON FRANKLIN This Retention Agreement is made by and between the Board of County Commissioners of Collier County, Florida (the "County "), and the law firm of Henderson Franklin of Ft. Myers, Florida ( "Henderson Franklin "). Whereas, Henderson Franklin has special expertise and resources in a wide range of legal matters, with particular expertise in civil trial litigation, including employment and labor litigation; defense of school boards, cities, counties and other governmental entities; and civil rights litigation in state and federal court; and Whereas, the County requires legal services which are particularly within the expertise of Henderson Franklin specifically in defending the County through and including trial in the lawsuit captioned Don Edwards v. Collier County (Case No. 09- 6111 -CA). Discovery is in the early stages with numerous depositions pending. Henderson Franklin will also provide complete trial preparation, attendance at trial, post -trial motions and related matters. Now, therefore, in consideration of the premises contained herein, the County hereby hires and retains Henderson Franklin and Henderson Franklin hereby agrees to provide legal services to County. ARTICLE 1 COMPENSATION; METHOD OF PAYMENT 1.1 Compensation shall be paid to Henderson Franklin 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 16K3 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 two (2) years from the effective date of this Agreement. In the subsequent years of the Agreement, upon the request of Henderson Franklin, 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, Henderson Franklin 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 Henderson Franklin to assign more than one attorney to this case. Nevertheless, in order to ensure that such multiple attorney assignments are efficient and cost - effective for the County, Henderson Franklin agrees to the following procedures and billing limitations for multiple attorney assignments. 1.3.1 A primary attorney will be identified for this case 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) 2 16K S has /have a demonstrated expertise that will demonstrably enhance the value and efficiency of the legal services being provided to the County. 1.3.3 Henderson Franklin 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 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, Henderson Franklin agrees that it will discount the total billings for all attorneys involved in the conference by forty -five (45) percent. 1.4 Henderson Franklin 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 Henderson Franklin to comply with a term, condition, or requirement of this Agreement. 1.6 Payment shall be made to Henderson Franklin at: Henderson Franklin 1715 Monroe Street Post Office Box 280 c X% 16K 3 Ft. Myers, FL 33902 ARTICLE 2 INSURANCE 2.1 In order to insure the indemnification obligation contained above, Henderson Franklin 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 Three Million Dollars ($3,000,000.00) Per Occurrence, Combined Single Limits. If any liability insurance obtained by Henderson Franklin to comply with the insurance requirements contained herein is 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 Henderson Franklin 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. 4 16KS ARTICLE 3 TERM AND TIME OF PERFORMANCE The term of this Agreement shall be for a period of two (2) years to begin January 24, 2012 and to end on January 24, 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. 3.1 Time shall be deemed to be of the essence in performing the duties, obligations and responsibilities by this Agreement. 3.2 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 This 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 calculated 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. 5 16K 3 4.3 In the event this Agreement is terminated for convenience, Henderson Franklin shall be paid for any services performed to the date the Agreement is terminated; however, upon notice by either party to terminate, Henderson Franklin shall refrain from performing further services or incurring additional expenses under the term of this Agreement. Henderson Franklin acknowledges and agrees that Ten Dollars ($10) of the compensation to be paid by County, the adequacy of which is hereby acknowledged by Henderson Franklin, is given as specific consideration to Henderson Franklin for County's right to terminate this Agreement for convenience. Henderson Franklin's obligations to the County as provided for hereunder shall cease upon termination, except for participating in an orderly and professional transfer of such responsibilities and files or copies of files to the County or its designee. ARTICLE S RECORD AUDIT AND INSPECTION 5.1 County shall have the right to audit the books and records of Henderson Franklin pertinent to the funding under this Agreement. Henderson Franklin 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 findings 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 Henderson Franklin's records, Henderson Franklin shall comply with all 6 16K 3 requirements thereof, however, no confidentiality or non - disclosure requirement of either federal or state law shall be violated by Henderson Franklin. ARTICLE 6 CONFLICT OF INTEREST 6.1 Henderson Franklin states that it is familiar with and will comply with the terms and conditions of Chapter 112, Part III, Florida Statutes (Code of Ethics). 6.2 It is important that Henderson Franklin be independent and impartial in order to properly conduct its services to the County. Henderson Franklin shall not act as counsel in any lawsuit or other adversary proceeding in which County is named as an adversary party or in which Henderson Franklin takes an adverse position to the County. 6.3 Neither Henderson Franklin nor its employees shall have or hold any continuing or frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with Henderson Franklin's loyal and conscientious exercise of judgment related to its performance under this Agreement. 6.4 In the event Henderson Franklin is permitted to utilize subcontractors, herein, to perform any services required by this Agreement, Henderson Franklin 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 Henderson Franklin' 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, Henderson Franklin will contact the County Attorney's Office before undertaking such representation so that it can be determined whether a conflict of interest exists. 7 16K 3 ARTICLE 7 INDEMNIFICATION Henderson Franklin agrees, to the fullest extent permitted by law, to indemnify and hold harmless the County against damages, liabilities and costs arising from the negligent acts of Henderson Franklin in the performance of the professional services under this Agreement, to the extent that Henderson Franklin is responsible for such damages, liabilities and costs. Henderson Franklin shall not be obligated to indemnify the County for the County's own negligence or for the negligence of others. 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 Henderson Franklin, whether finished or unfinished, shall become the property of County and shall be delivered by Henderson Franklin to the County within seven (7) days of termination of this Agreement by either party. Any compensation due to Henderson Franklin shall be withheld until all documents are received as provided herein. ARTICLE 9 INDEPENDENT CONTRACTOR 9.1 Henderson Franklin is an independent contractor under this Agreement. Services provided by Henderson Franklin shall be subject to the supervision of Henderson Franklin, and such services shall not be provided by Henderson Franklin as officers, employees, or agents of the County. The parties expressly acknowledge that it is not their 8 16K3 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 Henderson Franklin 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 affirmatively 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 H of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. 10.2 Henderson Franklin'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 Henderson Franklin 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, Henderson Franklin 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 9 16K S compensation, terms and conditions of employment, training (including apprenticeship), and accessibility. 10.4 Henderson Franklin 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 Henderson Franklin 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 mi 16K 3 FOR HENDERSON FRANKLIN: John Potanovic, Esq. 1715 Monroe Street Post Office Box 280 Ft. Myers, FL 33902 ARTICLE 12 MISCELLANEOUS 12.1 WAIVER 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. 12.2 COMPLIANCE WITH LAWS Henderson Franklin 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 Henderson Franklin elect to terminate this Agreement. The election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 11 16K3 12.4 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. 12.5 PRIOR AGREEMENTS This document supercedes all prior 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: DJ"T-E�-.', CK, C LERK iroved a to form &legal sufficiency Collee Greene, Assistant County Attorney BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA B lua_ W. Y� FRED W. COYLE, CHAIR&AN 12 Approved as to form and legal sufficiency Colleen M. Greene Assistant County Attorney HE SON FRAN By: John Potan vic, sq. < AllIts: E • 16K3 11 STATE OF FLORIDA COUNTY OF COLLIER The foregoing Retention Agreement was acknowledged before me this day of , 2012 by ✓0ii � !� /� Soj�e�iv.(�ef/ o � as /Z of Henderson Franklin, He is personally known to me or produced identification. !Lt Signature of Notary P lic el Name of Notary Public typed, printed or My Commission Expires: CLAUDIA KELLY .. :.; Commission # DD 885037 ` -t Expires July 6, 2013 'W „�...•' BadedThuTmyF rinMurariaa0P38�7018 13 as 16K 3 EXHIBIT A For professional services rendered, Henderson Franklin's fee shall be based on the hourly rate as follows: John F. Potanovic, Partner $275.00 per hour All other Partners $275.00 per hour Suzanne M. Boy, Associate $190.00 per hour All other associates $190.00 per hour Paralegals $90.00 per hour Henderson Franklin's fee shall not exceed $100,000.00 in the case of Don Edwards v. Collier County (Case No. 09- 6111 -CA) 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. In the event that Henderson Franklin is required or requested to perform any additional or extraordinary services not herein contemplated, Henderson Franklin 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. Henderson Franklin 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. Henderson Franklin 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. 14 16K 3 EXHIBIT B 1. In addition to the charges for professional fees set forth in Exhibit "A," and the Schedules attached hereto, County shall reimburse Henderson Franklin 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. Henderson Franklin 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. Henderson Franklin 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. 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 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 Henderson Franklin for retention and utilization of sub - consultants. 15 16K3 '� ➢ 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, Westlaw, etc.) shall not be reimbursed 16 EXHIBIT C CERTIFICATE IT IS HEREBY CERTIFIED that: 16K3 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: Mileage: OTHER (Copies of invoices required): Long Distance Calls TOTAL: 04.0411/4740 Other: copies @ $0.15 /each miles @ /mile FOR THE FIRM Signed: — Print Name: Title: Date: 17