Loading...
02 Contract ADM 01-00-10-19 RFQ-Nason YeagerCity of Okeechobee City Attorney Legal Services Agreement The City of Okeechobee, a Florida municipal corporation, with its principal place of business located at 55 S.E. 3rd Avenue Okeechobee, Florida 34974 (the "City") and Nason, Yeager, Gerson, Harris & Fumero, P.A., Attorneys at Law, with offices located at: 3001 PGA Boulevard, Suite 305, Palm Beach Gardens, Florida 33410 (the "Firm"), for and in consideration of the mutual covenants contained in this City Attorney Legal Services Agreement (the "Agreement") and other good and valuable consideration, mutually agree as follows: Background The City requires the retention of a City Attorney and has reviewed the qualifications submitted by law firms pursuant to a solicitation for requests for qualifications. The City determined that the Firm is qualified and capable to serve as City Attorney. The City and the Firm desire to engage in a stable and flexible long-term contractual relationship whereby the City can recognize pricing efficiencies for legal services and the Firm is available to provide service as City Attorney as required by its Charter, as well as additional legal services on an as -needed basis, in a cost effective manner. Terms and Conditions 1. The Firm as City Attorney. The Firm will provide legal services as the City Attorney to the City. For purposes of this Agreement, the primary attorney to serve as City Attorney shall be John J. Fumero with Carlyn H. Kowalsky and John ("Jack") K. Rice serving as his alternate and/or backup, if and when needed (the "Designated Attorneys"). Further, the City shall have access to the complete complement of practice groups and breadth of experience of the other attorneys at the Firm on an "as needed" basis to provide legal services to the City, commensurate with this Agreement. Accordingly, the Firm was selected based upon the Firm's substantive and unique knowledge of governmental law, and the City's legal priorities and needs. 2. Legal Services. The Firm shall perform all of the legal services customarily associated with the City Attorney, and the Office of the City Attorney, for the benefit of the City Council and the City, as set forth in Attachment A, and such other services directed or requested from time -to -time by the City Council or City Administrator. Among other things, the Firm shall develop and implement plans for the effective and efficient provision of legal services and support for the City, City Administrator, and operation of the City's Office of the City Attorney. The Firm shall also develop plans and internal processes to enhance the accountability and interaction of the City Attorney's Office with the City Council, City Administrator and City staff. 3. Compensation, Terms, and Conditions. The Firm shall perform the City Attorney legal services set forth in Attachment A. To determine a reasonable and accurate legal services budget and monthly flat fee, the City Attorney shall bill their time on an hourly basis for Page 1 of 7 a period of time not to exceed 90 days. During such time period, the hourly billing shall not exceed the proposed monthly billing of $9400.00/month. Within this time, City Attorney, based on upon its actual experience in providing legal services to the City, as well as understanding the City's needs and priorities as established by City Council and the City Administrator, shall develop and propose a monthly flat fee for City Attorney legal services. Once the monthly flat fee is established and agreed upon, thereafter, the City Attorney pursuant to this Agreement shall submit a monthly invoice on the 51h day of each month. For services outside the Scope of Work in Exhibit A, the Firm will be compensated for special legal counsel services at a discounted, blended governmental hourly rate of $275.00, as set forth in Attachment B. In the event the City Attorney and the City are not able to negotiate an acceptable monthly flat fee for legal services as set forth in Attachment A, then this contract for services shall be terminated at a date certain as set by the City following thirty (30) days prior written notice to the City Attorney. 4. Duration and Termination. This Agreement (the "Agreement") is effective as of January 1, 2020. The Firm shall provide City Attorney legal services at the will of the City Council. The Firm or the City may terminate this Agreement by providing thirty (30) days prior written notice to the other of its intent to terminate. 5. Administration. For ease and convenience of administration, and to the extent not in conflict with the City Council, the City Council hereby authorizes and designates the City Administrator to provide additional policy direction and instructions to the Designated Attorneys and the Firm in the administration of the duties of the City Attorney as set forth herein, and to manage and administer the terms and provisions of this Agreement on behalf of the City Council. 6. Insurance. The Firm shall maintain in full force and effect malpractice insurance coverage in an amount of not less than $2,000,000 per claim and $2,000,000 policy limit aggregate and shall from time -to -time provide the City with evidence of such insurance. 7. Notices. All notices under this Agreement shall be in writing and shall be provided to the City, attention City Administrator, at 55 S.E. 3rd Avenue Okeechobee, Florida 34974, and to the Firm, attention John J. Fumero, at 3001 PGA Boulevard, Suite 305, Palm Beach Gardens, Florida 33410. 8. Severability. If any provision or portion of this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed to be severable and shall remain in full force and effect. 9. Non -Liability for Costs and Expenses. The Firm shall be reimbursed by City for any actual reasonable and necessary expenses paid by the Firm in connection with the carrying out of its duties hereunder. 10. Appointment. The City Council hereby appoints the Designated Attorneys, through the Firm, as City Attorney for the City of Okeechobee. The City Administrator is directed and authorized to use and consult with the Firm for City. Page 2 of 7 11. Acknowledgement of Exclusion of Worker's Compensation Coverage. The Firm herein expressly agrees and acknowledges that it is an independent contractor. As such, it is expressly agreed and understood between the parties hereto, in entering into this professional services contract, that City shall not be liable to the Firm for any benefits or coverage as provided by the Worker's Compensation Law of the State of Florida. 12. Conflict of Interest. The Firm, by signing this Agreement, covenants that it has no public or private interest, direct or indirect, and shall not acquire directly or indirectly any such interest which shall conflict in any manner with the performance of the City Attorney's services and obligations under this Agreement. The Firm further agrees that, in the performance of this contract, no person having such an interest as described above shall be employed. 13. Public Records. The Firm shall maintain files, available for inspection by the City Administrator or his designee, containing documentation of costs and fees incurred in connection with this Agreement. In accordance with Chapter 119, Florida Statutes, any documents of any nature produced pursuant to this Agreement shall be a public record to the extent required by law. Anything that is produced by or developed in connection with this Agreement shall remain the exclusive property of the City and may not be copyrighted, patented, or otherwise restricted as provided by Florida Statutes. Neither the Firm nor any other individual employed under this Agreement shall have any proprietary interest in any product(s) delivered under this Agreement. The reasonable cost of preparing and photocopying the documents for the City may be charged for said services. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: Lane Gamiotea, CMC, City Clerk, City of Okeechobee (863) 763-9814; lgamiotea(a,cityofokeechobee.com; 55 S.E. 3rd Avenue Room 100, Okeechobee, Florida 34974. 14. Amendments. Any parry may, from time -to -time, request changes under this Agreement. Such changes, which are mutually agreed upon, shall be incorporated in written amendments to this Agreement. 15. Entire Agreement. This instrument, including any attachments, embodies the entire agreement of the parties. There are no other provisions, terms, conditions, or obligations. This Agreement supersedes all previous oral or written communications, representations or agreements on this subject. 16. Liability. The City shall defend the actions of the Firm in performing legal services on behalf of the City. As required by the City, the Firm shall maintain for their respective law firms, during the period of this Agreement, a professional liability insurance policy or policies professional liability coverage for the professional services to be rendered to Page 3 of 7 the City under this Agreement. 17. Powers Conferred on City Attorney. The Firm has the authority to file any papers necessary and proper in any action which it is authorized to prosecute or defend on behalf of the City, and the right and authority to do any and all things necessary and proper to protect the interest of the City. Any attorney employed by the Firm may provide legal support services or representation under this Agreement. 18. City Attorney Client. The City of Okeechobee, acting by and through its City Council, as a collegial body, shall be considered the Firm's client. The parties hereto have caused this City of Okeechobee Legal Services Agreement to be executed in duplicate this 4— day of January 2020. Witness NASON, YEAGER, GERSON, HARRIS & FUMERO, P.A. [Sign ture] l I By. - �'-'John J. Fumero, Esq. [Printed Name] Partner Attest: CITY OF OKEECHOBEE, FLORIDA B By: owling R. Watford, Jr., ayor Lane Gamiotea, CMC, CityClerk Page 4 of 7 Attachment A City Attorney Legal Services (A) The Firm will provide legal services as City Attorney to the City consistent with the Charter of the City. (B) The City Attorney retainer services described herein are to be provided in conjunction with efforts of the City Council, designated officials and staff of the City and designated officials from the City including the City Administrator and City Clerk. Additional Special Counsel Legal Services and Operational Review Services may also be provided by the Firm on an hourly basis, as specified in Attachment B, or as otherwise approved by the City Council. (C) City Attorney Legal Services shall encompass the following: (1) Prepare for and attend City Council meetings and workshops, attorney/client sessions, if and when deemed necessary, in addition to participate in the preparation and review of agendas for meetings of the City Council; and (2) Participate in Code Enforcement Board, Planning and Zoning/Board of Adjustment and Technical Review Committee Meetings; and (3) Review, and/or approve ordinances, resolutions, and contracts presented to the City Council; and (4) Participate in periodic conference calls at a time to be mutually determined by the City Administrator and City Attorney to identify and discuss outstanding issues, and City priorities; and (5) Provide legal advice to City Council members and participate in individual conference calls with City Council members in order to provide advice regarding upcoming City Council agenda items; and (6) Meetings with City Administrator and City staff, if and when necessary; and (7) Monitor and report on the progress of services handled or represented by other outside legal counsel. Page 5 of 7 Attachment B Compensation for City Attorney Services Monthly Fee The Firm will be compensated $9,400 per month for legal work described in the Scope of Services provided in Attachment A. 2. Legal work outside Scope of Services The Firm will be compensated for Special Counsel Legal Services that are outside of the Scope of Services described in Attachment A at a discounted, blended governmental hourly rate as follows: (a) $275 per hour of attorney time; and (b) $80 per hour of certified paralegal time. Costs and Expenses The Firm shall only charge for actual costs and expenses incurred and invoiced by this Finn on behalf of this engagement. Prior written authorization to proceed with Special Legal Counsel and Operation Review Services is required. Attachment 1 sets forth the most commonly incurred costs and expenses. The Firm may advance these costs and seek reimbursement, with the underlying documentation, in our billings. There shall be no other administrative fees or costs charged to the City. 4. Invoicing and Payment The Firm shall invoice the City on a monthly basis for services rendered and any expenses incurred in connection with the Firm's representation of the City. See Attachment 1. To ensure accountability and transparency, monthly invoicing shall provide detail on the individual who provided services, the amount of time incurred, and a summary of the services provided. Page 6 of 7 ATTACHMENT 1 Cost/Expense Typical Charges Computer Research Actual usage. Court Reporters Direct invoice from vendor to client or paid from retainer. Delivery Charges Actual amount invoiced to firm. Mode of delivery based on need and economy. Messenger Service Actual amount invoiced to the firm. Overnight Express Actual amount invoiced to the film. Telefacsimile Outgoing: No charge Incoming: No charge Photocopying for large jobs more than 100 pages Inside copies: $0.25/page Outside services: Actual amount invoiced to firm. Secretarial Overtime No charge Telephone Charges Actual long distance. Temporary Help Actual amount invoiced to the firm. Travel-Local/Surface Reasonable mileage or actual rental charges. Travel -Out -of -Town Intrastate: Actual common carrier charges for coach. Interstate: Actual common carrier charges for business class. Meals/Accommodations: Lowest corporate seasonal rate available, reasonable business-related meal expenses. Word Processing No charge Other Expenses Actual cost invoiced to the firm. In selected cases, these items may be directly invoiced from vendor to client. Page 7 of 7 TO: Robin / t FROM: Bobbie Jo+ MEMORANDUM DATE: SUBJECT: FOIE COQ v Jan. 8, 2020 Legal Services Agreement RFQ# ADM 01-00-10-19 Attached herewith is one fully executed original agreement to forward to Attorney Fumero's office. It is my understanding that all the required documents are included, excluding the BTR to be issued by the City, kindly forward a copy to our office upon receipt. Once the file is complete it will be scanned, and e -copy's will be sent out to the appropriate individuals, I have included a copy for your records in case you need information from it prior to being able to provide the e -copy. Thank You! VII. NEW BUSINESS CONTINUED A memorandum provided as Exhibit 2 explained the vacant Tots were recently purchased by SE5, LLC to build a duplex on Lots 1 and 2, and another on Lots 3 and 4. The dedicated 5 -foot wide utility easements are located along the East property line of Lot 1, West property line of Lot 2, East property line of Lot 3, and West property line of Lot 4. Three new easements will be provided along the West property line of Lot 1, East property line of Lot 2, West property line of Lot 3, and East property line of Lot 4. Utility letters of no improvements within the existing easements have been received. Administrator MontesDeOca explained, should the Council approve the request, a document will be submitted at a later date for Council approval that would be recorded in the official records as this would amend the original dedicated Plat. He also confirmed the zoning and future land use for the property is correct for the proposed use. Mayor Watford, Council Members Abney, Clark, Jarriel, and Keefe voted: Aye. Nays: none. Motion Carried. B. A motion was made by Council Member Jarriel to reject all bids received for Request for Proposal No. ADM 02-00-10-19 City Attorney Legal Services; seconded by Council Member Keefe. Mayor Watford, Council Members Abney, Clark, Jarriel, and Keefe voted: Aye. Nays: none. Motion Carried. As directed by the Council at the December 3, 2019 meeting, proposed contracts were provided within Exhibit 3 from both firms [Nason, Yeager, Gerson, Harris & Fumero, P.A., and Swaine, Harris & Wohl, P.A.], who had representatives in attendance. A motion was made by Council Member Keefe to award Request for Qualifications No. ADM 01-00-10-19 for City Attorney Legal Services to Nason, Yeager, Gerson, Harris & Fumero, P.A; seconded by Council Member Clark. Mayor Watford opened the floor for discussion. Council Member Abney questioned the duration of terms for the contract submitted by Nason, Yeager, Gerson, Harris & Fumero, P.A. The effective date is January 1, 2020, but there is no end date. Administrator MontesDeOca explained he suggested the contract be on an annual basis, but the Council can make specific amendments as they see fit. Council Member Abney then confirmed attendance at all meetings is addressed in each contract. These include the City Council, Planning Board/Board of Adjustment/Design Review Board, and Technical Review Committee meetings, and Code Enforcement Magistrate Hearings. Mayor Watford questioned the flat fee of $9,400.00 per month provided in the Nason, Yeager, Gerson, Harris & Fumero, P.A. contract without a set number of hours. Council Member Jarriel explained he calculated it to equal approximately 34 hours of billed time. He divided the $9,400.00 fee by the hourly rate of $275.00. He verified with Attorney Cook that this was an accurate average of time needed. He and Mayor Watford voiced their concerns with selecting a firm that is approximately $3,000.00 higher per month. Council Member Clark inquired to confirm that the budgeted amount for Fiscal Year 2019-20 is $145,500.00. However, that is the budget total; $80,000.00 is budgeted for Professional Services which was calculated at 35 hours per month at the rate of $185.00 per hour. The budget also includes health insurance coverage ($10,850.00) as well as equipment, repairs and maintenance, education, memberships and subscriptions, and office supplies that would no longer be paid after December 31, 2019. Council Member Clark implied that the remaining amounts of these line items be applied to professional services to cover the higher contract cost. Administrator MontesDeOca added specific projects, such as the charter review, are not included in the scope of services; they would be addressed, and costs negotiated in specific work orders. Mayor Watford asked whether there were any comments from the public; there were none. Mayor Watford expressed his preference with the Swaine, Harris & Wohl, P.A. firm as they represent cities that are more similar to Okeechobee, and the significant difference in costs. Council Member Clark stated the combined years of water quality experience the Nason, Yeager, Gerson, Harris & Fumero, P.A. firm brings is a plus, and the City would spend less time on these contracts or issues. December 17, 2019 Regular Meeting Page 3 of 6 VII. NEW BUSINESS CONTINUED Mr. John Fumero, a partner with Nason, Yeager, Gerson, Harris & Fumero P.A., addressed the Council explaining he has been practicing law for 31 years. He was the legal counsel for the South Florida Water Management District for approximately 15 years and worked alongside the firm who oversaw the formation of the Okeechobee Utility Authority (Attorney Michael Minton). He has over 25 years of experience working with the agriculture industry, and is the attorney for Montura Estates, a small community in Hendry County. He briefly explained his rate proposal was to work at the hourly rate of $275.00 for 60 to 90 days, after which the firm would be able to provide a better budget amount once the required number of hours have been established based on needs and priorities. Mr. Bert Harris, a partner with Swaine, Harris & Wohl, P.A., addressed the Council and explained he has been practicing law in Lake Placid for 40 years. He has been the Town of Lake Placid's attorney for approximately 30 years and has handled ordinances, resolutions, and annexations. His firm did not submit a flat fee as they prefer hourly rates. Mr. Harris' normal rate is $300.00 per hour, but government entities receive a reduced rate as there is not a collection problem with governments. The contract has an easy out clause; the City may terminate the contract at any time and for any reason with no advance notice. Attorney Swaine, and now his son, has represented the City of Sebring consistently for a total of 40 years. Attorney Wohl represents the City of Arcadia. The firm has also been representing Lykes Brothers' local divisions for 30 years. Council Members Abney, Clark, and Keefe voted: Aye. Mayor Watford and Council Member Jarriel voted: Naye. Motion Carried. C. Discuss City Fire Services. Attorney Cook distributed Attorney General Opinion No. 92-33 to the Council on December 10, 2019. Pursuant to Section 4, Article VIII of the Florida State Constitution, by law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law. To summarize, if the County contracts to perform firefighting, rescue and fire inspection services for the City, without being granted the ultimate power to supervise and control such services, there would be no referendum requirements. He also provided a copy of Florida Statute 125.0101 for reference. As instructed at the December 3, 2019, meeting Administrator MontesDeOca followed up with County Administrator Chartier to obtain their specific questions in writing. They provided that it is understood the level of service requirements for the County would be to maintain and continue an ISO rating of 3 as well as the related fire protection and support services. The County requested limiting additional staff time usage on this issue until further information can be supplied, and requested the Council provide answers to the questions below. Contract or Assessment: will the services be paid via a stand-alone fire services contract with the County, or would the cost be obtained via County's fire assessment, the same as with the unincorporated portions of the County? Council Members Clark and Jarriel prefer a Contract. Council Member Abney is not opposed to a Contract as long as it is structured properly to benefit the City. Council Member Keefe agreed with a Contract but later in the discussion stated the issue should be placed on the 2020 ballot as a referendum for the voters to decide. Mayor Watford favored the assessment as the City will have no control over a contract. Storage: would the City's firehouse be available for storage of back-up/secondary equipment for the Okeechobee County Fire Rescue? Would a cost to the County be levied and if so, what would be the associated cost? Council Members Abney, Clark, Jarriel, and Keefe agreed this should be part of contract negotiations. Mayor Watford stated there is no advantage for the County to use the City's building for storage. He added the County Fire Chief stated at a previous meeting that the building is too far away. December 17, 2019 Regular Meeting Page 4 of 6 Bobbie Jenkins From: Robin Brock Sent: Friday, January 10, 2020 3:23 PM To: Carlyn H. Kowalsky; John J. Fumero Cc: Missy Hernandez; Marcos Montes De Oca; Lane Gamiotea; Bobbie Jenkins Subject: City Attorney Agreement Attachments: City Attorney Legal Services Agreement.pdf Hi Carlyn, Attached is the fully executed City Attorney Legal Services Agreement for your records, along with the required documents, excluding the BTR, which will be processed as soon as we receive the application. I am mailing you the original agreement today. If you have any questions, please do not hesitate to contact us. We are happy to have you on board. Have a great weekend. Robin Robin Brock Executive Assistant 55 SE 3 d Avenue Okeechobee, FL 34974 Phone: (863) 763-3372 Direct: (863) 763-9812 FAX: (863) 763-1686 Email: rbrock(a)citvofokeechobee.com Website: www.cityofokeechobee.com NOTICE: Florida has a very broad public records law. As a result, any written communication created or received by the City of Okeechobee officials and employees will be available to the public and media, upon request, unless otherwise exempt. Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this office. Instead, contact our office by phone or in writing.