Agenda 03/25/2008 Item #16K 8
Agenda Item No. 16K8
March 25, 2008
Page 1 of 12
EXECUTIVE SUMMARY
Reeommendation that the Board approve and authorize the Chairman to execute a Retention
Agreement with the law firm Nelson Hesse, LLP to provide specialized legal counsel to the
Collier County Water and Wastewater Authority relating specifically to Orange Tree Utility
Company's Petition for Limited Proceeding Rate Increase.
OBJECTIVE: That the Board approves a Retention Agreement with the law firm of Nelson Hesse,
LLP to provide specialized legal counsel to the Collier County Water and Wastewater Authority
relating specifically to Orange Tree Utility Company's Petition for Limited Proceeding Rate
Increase.
CONSIDERATIONS: Attached for the Board's approval is a Retention Agreement with the law
firm of Nelson Hesse, LLP ("Hesse"), which is a law firnl that includes counsel with extensive
experience in public utility rate increase matters. Hesse's counsel is required due to its specialized
experience in public utility rate matters and the need, in this instance, to secure an independent
counsel who can provide lcgal advise to the Collier County Water and Wastewater Authority,
separate from other interests of the County.
The rate charged for the attorney handling this matter is consistent with other counsel with similar
expertisc. The agrcemcnt also provides for reimbursement of actual out-of-pocket expenses and
limits the charge for ovcrnight lodging consistent with the past direction of this Board. In
accordance with Section VILO of the Board's purchasing policy, the Office of the County Attorney
is recommending that Board fOlmally waive competition and authorize the execution of this
agreement.
FISCAL IMPACT: Thc approval and execution of the attached Retention Agreement has no
fiscal impact in and of itself but there will be a tiscal impact in accordance with the terms and
conditions of such contracts, upon the provision of legal services required by the Collier County
Water and Wastewater AuthOlity pertaining to Orange Tree Utility Company's Petition for Limited
Proceeding Rate Increase. Such fiscal impact wiII be determined on an hourly basis at the rate of the
attorney working on thc rcquest or project and will include appropriate reimbursable expenses
including travel and per dicm expenses in accordance with Section 112.061, Florida Statutes and as
otherwise mandated by the agreemcnt.
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners waiver formal competition to
the Purchasing Policy, approve and authorize the Chairman to execute the attached rctention
agreement with the law finn of Nelson Hcss to provide legal counsel relating specifically to Orange
Tree Utility Company's Pctition for Limited Proceeding Rate Increase. Additionally, direct the
Clerk to pay all invoices submitted in accordance with the terms of this agreement from the period
commencing March 19, 2008, through the final effective date of the agreement.
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Prepared Bv: Scott R. Tcach, Managing Assistant County Attorncy
Attachment: Retention Agreement
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Agenda Item ~~o. 16K8
March 25, 2008
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COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
16K8
Item Summary:
Recommendation that the Board approve and authorize the Chairman to execute a Retention
Agreement with the law fjrm Nelson Hesse, LLP to provide specialized legal counsel to the
Collier County Water and Wastewater Authority relating specifically to Orange Tree Utility
Companys Petition for Limited Proceeding Rate Increase.
Meeting Date:
3/25/2008 90000 AM
Prepared By
Scott R. Teach
Assistant County Attorney
Date
County Attorney
County Attorney Office
Approved By
Scott R. Teach
Assistant County Attorney
Date
County Attorney
County Attorney Office
3/19/200811:12 AM
Approved By
James V. Mudd
County fll:anager
Date
Board of County
County Manager's Office
3/19/20083:14 PM
COnlmtssioners
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Aoenda :tsm No.1 Gf'<8
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RETENTION AGREEMENT WITH
NELSON HESSE. LLP
This Retention Agreement is made by and between the Board of County Commissioners
of Collier County, Florida, as the Ex Officio Governing Body of the Collier County Water and
Wastewater Authority (hereafter, "County"), and the law firm of Nelson Hess, LLP ("Nelson
Hesse").
Whereas, Nelson Hesse has special expertise and resources in a wide range of legal
matters, with particular expertise in Public Utility Regulation and Rate Cases; and
Whereas, the County has a need for such specialized legal services, which are particularly
within the expertise of Nelson Hesse;
Now, therefore, in consideration of the premises contained herein, the County hereby
hires and retains Nelson Hesse and Nelson Hesse hereby agrees to provide legal counsel to the
Collier County Water and Wastewater Authority relating specifically to the Orange Tree Utility
Company's Petition for Limited Proceeding Rate Increase. Nelson's Hesse's representation is
limited to advising the Water and Wastewater Authority on legal issues pertaining to the
referenced rate increase petition and does not extend to providing services related to the
County's potential rebuttal rate case.
ARTICLE t
COMPENSATION; METHOD OF PAYMENT
1.1 Compensation shall be paid to Nelson Hesse 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.
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AJenda liem No. 15K8
March 25, 2008
Page 4 of 12
1.2 All services in connection with this contract shall be provided by attorney Omer Causey,
except in the case of an emergency or the County's written pre-approval.
1.3 Nelson Hesse 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 (I 5) 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.
1.4 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 Nelson Hesse to comply with a term,
condition, or requirement of this Agreement.
1.5 Payment shall be made to Nelson Hesse at:
Nelson Hesse, LLP.
2070 Ringling Boulevard
Sarasota, Florida 34237
ARTICLE 2
INSURANCE
2.1 In order to insure the indemnification obligation contained above, Nelson Hesse 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 Nelson Hesse 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.
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2.2 Nelson Hesse shall furnish to the Risk Management Director Certificates ofInsurance or
endorsements evidencing the insurance coverages specified by this Article within seven
(7) days of execution of this Agreement.
ARTICLE 3
TERM AND TIME OF PERFORMANCE
3.1 The term of this Agreement shall be for a period commencing on March 19, 2008 and
ending on June 30, 2008, unless terminated earlier by either party upon fifteen (15) days'
notice.
3.2 Time shall be deemed to be of the essence in performing the duties, obligations and
responsibilities by this Agreement. Any amendments or modifications of this Agreement
shall only be valid when they have been reduced to writing, signed by both parties, and
attached to this Agreement.
ARTICLE 5
RECORDS
5.1 Nelson Hesse 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. If the Florida Public Records Act (Chapter 119, Fla. Stat.) is determined by
County to be applicable to Nelson Hesse's records, Nelson Hesse shall comply with all
requirements thereof, however, no confidentiality or non-disclosure requirement of either
federal or state law shall be violated.
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Agenda Item No, 16K8
March 25, 2008
Page 6 of 12
ARTICLE 6
CONFLICT OF INTEREST
6.1 Nelson Hesse shall not act as counsel in any lawsuit or other adversary proceeding in
which County is named as an adversary party or in which Nelson Hesse takes an adverse
position to the County during the term of the representation.
ARTICLE 7
OWNERSIDP 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
and, upon request, shall be delivered by Nelson Hesse to the County within seven (7)
days of termination of this Agreement by either party.
ARTICLE 8
INDEPENDENT CONTRACTOR
9.1 Nelson Hesse is an independent contractor under this Agreement and not as an officer,
employee, or agent of the County.
ARTICLE 9
NOTICES
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:
County Attorney
Government Center
3301 Tamiami Trail East
Naples, Florida 34112
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FOR NELSON HESSE:
Nelson Hesse LLP.
2070 Ringling Boulevard
Sarasota, Florida 34237
ARTICLE t2
MISCELLANEOUS
12.1 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. Failure by County to
enforce any provision of this Agreement shall not be deemed a waiver of the provision or
modification of this Agreement. 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.
12.3 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:
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA, as Ex Officio
Governing Body of the Collier County Water and
Wastewater Authority,
ATTEST:
DWIGHT E. BROCK, CLERK
By:___
TOM HENNING, CHAIRMAN
Approved as to form and
legal sufficiency
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Aoenda Item No. 16K8
" March 25. 2008
Page 8 of 12
Managing Assistant County Attorney
DATE:
DD{lf(OS.
NELSON HESSE, LLP
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By. '.
Its: a...(Y ~ S--
STATE OF FLORIDA
COUNTY OF~OLLIER ~cTl\-
The foregoing Retention Agreement was acknowledged before me this ~ay of
.~ ,2008, by(7);ncr &Il.-M'J as /1, rf-r,.p v of Nelson Hesse, LLP, a
Florida limited liability partnership, on behalf of the limited liability partnership. He/she is
personally known to me Of produoed
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. ature of Notary Public
JOHANNA M. BRADLEY
Name of Notary Public typed, printed or
My Commission Expires:
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r\1arch 25, 2003
Page:1 of 12
EXHIBIT "A"
For professional services rendered, Nelson Hesse's fee shall be based on the hourly rate as
follows:
$250.00 per hour for services provided by principals and associates
Nelson Hesse's fee shall not exceed $50,000.00 per Purchase Order without the approval of the
Board of County Commissioners. (Where appropriate a "not to exceed" sum shall be agreed to
when each assignment is made to Nelson Hesse.)
In the event that Nelson Hesse is required or requested to perform any additional or
extraordinary services not herein contemplated, Nelson Hesse 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 in writing by County in its sole discretion.
If requested, Nelson Hesse 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.
Nelson Hesse 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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P,genda Item No. i6KS
March 25, 2008
PaJe 10 of 12
EXHIBIT "B"
1. In addition to the charges for professional fees set forth in Exhibit "A," and the
Schedules attached hereto, County shall reimburse Nelson Hesse 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 (with lodging expenses no greater than $150.00 per night) incurred in
accordance with the requirements of Chapter 112, F.s.
2. Nelson Hesse 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
)i> Your federal employee identification number must be on all invoices submitted.
)i> The applicable Purchase Order number must be on all invoices submitted.
)i> No service, interest, or other charge of like nature is to be imposed with regard to
any item. invoice. or request. All fmns doing business with Collier County must
have a current W-9 "Request for Taxpayer Identification Number and
Certification" on file.
)i> Services rendered must be specifically and concisely identified, as well as the
bond issue or financing transaction for which the services were rendered.
)i> Names of persons performing services, hourly rates, and dates must be listed. The
County agrees to reimburse Nelson Hesse 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
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p..geilda Item No. 16K8
March 25, 2008
Page 12 of 12
EXHIBIT C
CERTIFICATE
IT IS HEREBY CERTIFIED that:
1. has been duly designated as special counsel to
render legalol'~rvices 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
$
Mileage:
miles
$
OTIffiR (Copies of invoices required):
Long Distance Calls
$
Other:
$
TOTAL:
$
FOR THE FIRM
Signed:
Print Name:
Title:
Date:
04.cOA.OI158n92 rev 1
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