CN-480000-26019.pdf

AGREEMENT BETWEEN THE STATE OF FLORIDA

DEPARTMENT OF EDUCATION,

THE FLORIDA BOARD OF GOVERNORS,

AND

COOPER & KIRK, PLLC

This AGREEMENT is entered into in the City of Tallahassee, Leon County, Florida, by and between the State of Florida, Department of Education, located at 325 West Gaines Street, Tallahassee, Florida 32399-0400, the Florida Board of Governors, located at 200 West College Avenue, Tallahassee, Florida 32301, and Cooper & Kirk, PLLC., (the CONTRACTOR). The Department of Education and Florida Board of Governors are both agencies of the State of Florida and are collectively referred to as the AGENCIES in this document. Charles J. Cooper is the contract manager for the CONTRACTOR. The CONTRACTOR’S business address is 1523 New Hampshire Avenue, N.W., Washington, D.C., 20036. The CONTRACTOR’S telephone number is 202-220-9600.

The CONTRACTOR’S Employer Identification Number is 30-0101425. This AGREEMENT shall bind the parties upon its execution by their representatives.

WHEREAS, the AGENCIES are in need of continued legal representation in the cases of Leroy Pernell, et al., v. Florida Board of Governors of the State University System, et al., Case No. 4:22-cv-304- MW-MAF, and Adriana Novoa, et al., v. Manny Diaz, Jr., et al., Case No. 4:22-cv-00324-AW-MAF, both filed in the U.S. District Court, Northern District of Florida, Tallahassee Division, and any subsequent cases, appeals, or related matters, as requested by the AGENCIES. Representation in all cases may include representation of the Commissioner of Education in his official capacity, the Board of Governors, the State Board of Education, and members of the Board of Governors and State Board of Education in their official capacities, as requested by the AGENCIES. The AGENCIES may request advice on other education matters as needed; and

WHEREAS, the CONTRACTOR has the expertise necessary to perform the duties and responsibilities outlined in this AGREEMENT.

NOW, THEREFORE, the parties agree as follows:

ARTICLE 1. ENGAGEMENT OF THE CONTRACTOR

The AGENCIES agree to engage the CONTRACTOR and the CONTRACTOR agrees to perform the services set forth below. The CONTRACTOR understands and agrees that all services contracted for are to be performed solely by the CONTRACTOR and may not be subcontracted for or assigned without the prior written consent of the AGENCIES.

ARTICLE 2. SCOPE OF SERVICES

The CONTRACTOR agrees to:

1. Provide the AGENCIES with specific products and services, which include, but are not limited to, reports, findings, and drafts that must be received and accepted in writing by the AGENCIES’ contract managers prior to payment.

2. Provide the AGENCIES with the following products and services: The CONTRACTOR or any attorney under his or her supervision shall perform those activities appropriate to the case in accordance with the duties and responsibilities of a member of the Florida Bar.

3. Additionally, the CONTRACTOR shall provide and agrees to the following:

a. The CONTRACTOR recognizes that the BOARD OF GOVERNORS and the

CONTRACTOR: Cooper & Kirk (26-019)

COMMISSIONER OF EDUCATION are the clients and that through the AGENCIES’ General Counsels, or their designee, the clients have the ultimate authority to settle the case or go forward with the prosecution of the case.

b. After consultation with the CONTRACTOR, the AGENCIES’ contract managers shall determine the following: whether to use the services of expert witnesses; whether to use the testimony of witnesses residing out-of-state or at a distance from the hearing site, which would require the AGENCIES to reimburse their travel expenses; whether to take the depositions of potential witnesses.

ARTICLE 3. TIME OF PERFORMANCE

This AGREEMENT shall begin on July 1, 2025 or upon execution by the last party, whichever is later, and end on June 30, 2026.

ARTICLE 4. CONSIDERATION

1. Fees and costs shall be paid in accordance with the provisions of ATTACHMENT A FOR PRIVATE ATTORNEY SERVICES, including Exhibit 1.

2. Justified and reasonable travel expenses which are directly and exclusively related to the professional services rendered under this contract will be reimbursed in accordance with Section 112.061, Florida Statutes (F.S.). For the purpose of computing travel expenses, the CONTRACTOR'S place of business shall be that listed in the Preamble to this AGREEMENT and all travel expenses shall be computed on that basis.

3. The AGENCIES are exempted from payment of Florida state sales and use taxes and Federal Excise tax. The CONTRACTOR, however, shall not use the AGENCIES’ tax exemption numbers to secure any materials or services. The CONTRACTOR shall be responsible and liable for the payment of all its FICA/Social Security and other taxes resulting from this

AGREEMENT.

4. The CONTRACTOR shall not pledge the AGENCIES’ credit or make the AGENCIES a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness.

5. Payment for services shall be issued in accordance with the provisions of Section 215.422, F.S.

6. Pursuant to Section 215.422(5), F.S., the Department of Financial Services has established a

Vendor Ombudsman to act as an advocate for vendors. The Vendor Ombudsman may be reached at (850) 413-7269 or 410-9724.

7. In accordance with the provision of Section 287.0582, F.S., the State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature, if the terms of this AGREEMENT extend beyond the current fiscal year.

8. A contingency fee contract must be commercially reasonable. “Commercially reasonable” means the fees shall be no more than the amount permissible pursuant to Rule 4-1.5 of the rules regulating The Florida Bar and case law interpreting that rule. If the amount of the fee is in dispute, the counsel retained by the state shall participate in mandatory binding arbitration.

Payment of all attorney’s fees is subject to appropriation. Attorney’s fees shall be forfeited if, during the pendency of the case, the counsel retained by the state takes a public position that is adverse to the state’s litigation or settlement posture.

ARTICLE 5. DOCUMENTATION

1. The CONTRACTOR shall submit monthly written invoices, in accordance with the requirements of ATTACHMENT A FOR PRIVATE ATTORNEY SERVICES, paragraph D, Format for Invoices, for all fees or other compensation for services or expenses in detail sufficient for a proper pre-audit and post-audit. All invoices shall be submitted via email to Jamie Braun, Department of Education, Office of the General Counsel, at Jamie.Braun@fldoe.org, and to Rachel Kamoutsas, Florida Board of Governors, Office of the General Counsel, at Rachel.Kamoutsas@flbog.edu.

2. Each private attorney who is under contract to provide attorney services for the state or a state agency shall, from the inception of the contractual relationship until at least four (4) years after the contract expires or terminates, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of such attorney services. The private attorney shall make all such records available for inspection and copying upon request in accordance with Chapter 119, Florida Statutes.

ARTICLE 6. PUBLIC RECORDS

All documents prepared pursuant to this agreement are subject to Florida’s Public Records Law. Refusal of the CONTRACTOR to allow public access to such records as required by such law shall constitute grounds for unilateral cancellation of this AGREEMENT.

ARTICLE 7. TERMINATION OF AGREEMENT

1. The AGENCIES may terminate the AGREEMENT for their convenience or cause by giving five (5) days written notice by registered mail to the CONTRACTOR, specifying the effective date of termination.

2. If this AGREEMENT is terminated, the CONTRACTOR shall be reimbursed for services satisfactorily performed subject to any damages sustained by the AGENCIES.

3. If this AGREEMENT is terminated, all finished or unfinished documents, data, studies, correspondence, reports and other products prepared by or for the CONTRACTOR under this AGREEMENT shall be made available to and for the exclusive use of the AGENCIES.

4. Notwithstanding the above, the CONTRACTOR shall not be relieved of liability to the AGENCIES for damages sustained by virtue of any termination or breach of this AGREEMENT by the CONTRACTOR.

ARTICLE 8. AMENDMENTS

Any changes must be mutually agreed upon and incorporated in written amendments to this

AGREEMENT.

ARTICLE 9. INDEPENDENT CONTRACTOR

The CONTRACTOR, and any of its employees, agents, or assigns, are independent contractors and not employees or agents of the AGENCIES.

ARTICLE 10. LIABILITY

1. The AGENCIES shall not assume any liability for the acts, omissions to act or negligence of the CONTRACTOR, its agents, servants, and employees, nor shall the CONTRACTOR disclaim its own negligence to the AGENCIES or any third party.

2. The CONTRACTOR is encouraged to maintain, during the period of this AGREEMENT, a professional liability insurance policy for the professional services to be rendered.

ARTICLE 11. NONDISCRIMINATION AND COMPLIANCE

The CONTRACTOR shall comply with all federal, state and local laws and ordinances applicable to the work and shall not discriminate on the grounds of race, color, religion, sex, or national origin in the performance of work.

ARTICLE 12. ADMINISTRATION OF AGREEMENT

1. The Department of Education contract administrator is Winston McGriff and the contract manager is Jamie Braun.

2. The Board of Governors contract administrator is Heidie Bryant and the contract manager is Rachel Kamoutsas.

3. The CONTRACTOR contract manager is Charles J. Cooper.

4. All written and verbal approvals referenced in this AGREEMENT must be obtained from the parties' contract managers or their designees.

5. All notices must be given to the parties’ contract manager.

6. This contract shall be governed by and construed under the laws of the State of Florida.

ARTICLE 13. PUBLIC ENTITY CRIME

A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or a public work, may not submit bids on leases or real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor , or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, F.S., for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. Any contract in violation of this provision is null and void.

ARTICLE 14. MYFLORIDAMARKETPLACE REQUIREMENTS

All vendors desiring to sell to the State commodities or contractual services as defined in Section 287.012, F.S., are required to register in MyFloridaMarketPlace, the State e-procurement system, in compliance with Rule 60A-1.030, Florida Administrative Code (F.A.C.). Further, each vendor may be subject to a one percent (1 %) Transaction Fee on all payments made by the state which the vendor is responsible for paying to the state. Rule 60A-1.031, F.A.C. However, in order to pay the CONTRACTOR more promptly, the AGENCIES request the CONTRACTOR register in MyFloridaMarketPlace and payments under this CONTRACT will be noted as exempt from the Transaction Fee.

ARTICLE 15. AGREEMENT AS INCLUDING 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.

ARTICLE 16. SPECIAL CONDITIONS

1. The CONTRACTOR agrees to permanently refrain from using or mentioning its association with the AGENCIES in advertisements, letterhead, business cards, etc. The CONTRACTOR'S services to the AGENCIES may be generally described in the CONTRACTOR'S professional resume. The CONTRACTOR may not give the impression in any manner, that the AGENCIES recommend or endorse the CONTRACTOR.

2. All contacts with the news media pertaining to the subject of this AGREEMENT shall be referred to the AGENCIES’ contract managers.

3. Anything that is produced by or developed in connection with this contract shall remain the exclusive property of the AGENCIES and may not be copyrighted, patented, or otherwise restricted as provided by law. Neither the CONTRACTOR nor any other individual employed under this AGREEMENT shall have any proprietary interest in any product(s) developed or produced under this AGREEMENT.

4. Upon request, the CONTRACTOR shall provide the AGENCIES with status reports for each case. These reports may include, but are not limited to, issues involving Department or Board of Governors’ staff, the judicial or administrative tribunal, statutory or case law interpretation, unique case and legal arguments, and significant events or accomplishments for the reporting period.

5. All documents intended to be provided to third parties or filed with a court or an administrative agency must be sent to the AGENCIES’ contract managers and general counsels with enough lead time to allow meaningful review, unless waived by the AGENCIES’ contract managers or general counsels. Copies of final or as-filed documents shall also be sent to the AGENCIES’ contract managers and general counsels.

6. All discovery, including depositions, document production, etc., shall be coordinated with the AGENCIES’ contract managers and the CONTRACTOR to avoid needless duplication.

7. The CONTRACTOR will send the Department and the Board of Governors separate invoices for fees and costs incurred under this contract.

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

OFFICE OF THE ATTORNEY GENERAL

ATTACHMENT A FOR

PRIVATE ATTORNEY SERVICES

A. SCOPE OF SERVICES

The CONTRACTOR shall:

1. Provide services described more particularly described in the AGREEMENT, ARTICLE 2.

Scope of Services.

2. Review and analyze the AGENCIES’ legal files, data, documents and other materials concerning the above matter and advise on recommended legal course. Attend and participate in meetings, conference calls, inspections or the like and report on the status of the legal matters.

3. Prepare and file pleadings, motions, or briefs, initiate and conduct discovery, as required and represent the AGENCIES in any related litigation and otherwise represent the AGENCIES at trial or on appeal.

B. COMPENSATION-FEES

1. The AGENCIES shall be billed in accordance with Exhibit 1. Fees shall not exceed $950,000.00, and fees in excess of such amount shall not be compensable. The CONTRACTOR shall notify the AGENCIES, in writing, when fees for billable services reach

2. $800,000.00. Said notification shall be made as soon as is practicable and prior to the next monthly invoice. Failure to comply with these provisions will result in non-payment.

3. Billable hours shall be measured in 6-minute increments. Compensation of attorney hours will be for actual time spent providing attorney services to the AGENCIES.

4. Premium rates will not be paid for overtime work.

5. Attorney time while traveling will be compensated at 100 percent of the hourly rates reflected in Exhibit 1.

6. Funds may be moved from one category (fees or costs) to another under this contract without amendment to pay properly documented invoices, so long as the total contract amount is not exceeded.

C. COMPENSATION-COSTS

1. Reimbursement of costs for such items as exhibits, transcripts and witness fees requires prior written or oral authorization by the AGENCIES and shall be reimbursed based upon documented third party vendor charges. The AGENCIES shall not pay for firm surcharges added to third party vendor charges.

2. Routine expenses such as phone calls, facsimile transmissions, routine postage, copy work, local travel expenses, printed library materials and local courier, word processing, clerical or secretarial services are overhead and will not be separately compensated.

3. Non-routine office overhead expenses such as long distance courier services, bulk mailings, bulk third party copying, blueprints, x-rays, and photographs must be justified to the AGENCIES and shall be reimbursed based on documented third-party vendor charges. If these charges exceed $100.00, prior written approval from the AGENCIES must be obtained. In-house bulk mailings and bulk copying expenses must be supported by usage logs or similar documentation. Firm surcharges are not reimbursable.

4. The CONTRACTOR shall only bill the AGENCIES for a proportionate share of the cost of legal research, attending hearings or engaging in client representation of any type, which is also applicable to other clients.

5. Reimbursable costs shall not exceed $50,000.00. The CONTRACTOR shall notify the AGENCIES in writing when costs reach $40,000.00. Said notification shall be made as soon as is practicable and prior to the next monthly invoice.

D. FORMAT FOR INVOICES

1. Within 30 days of service provision, each invoice statement for fees and costs shall be submitted in a format that includes, at a minimum, the following information:

a. Case name and number, if applicable, or other legal matter reference

b. Invoice number for the particular bill

c. CONTRACTOR taxpayer identification number (FEIN)

d. CONTRACTOR and both AGENCIES’ contract manager names

e. Inclusive dates of the month covered by the invoice

f. Itemization of the dates; hours billed (if hourly); a concise, meaningful description of the services rendered, with sufficient detail to enable the AGENCIES to evaluate the services rendered and costs; the person(s) who performed the services for each day during which the CONTRACTOR performed work; their hourly rate (if hourly) as specified in Exhibit 1, and any billing rate that is for some reason different from the one furnished in Exhibit 1, e.g., travel at a reduced hourly rate.

g. A listing of all invoiced costs to be accompanied by copies of actual receipts.

h. The total of only the current bill.

i. Prior balances or payment history should be shown separately, if at all.

j. A certification statement, signed by the CONTRACTOR's contract manager that reads, “I certify that all costs and fees claimed in this invoice statement for payment are accurate and were performed in furtherance of the AGREEMENT between Cooper & Kirk, PLLC, the Department of Education and the Florida Board of Governors.”

k. Any other information as may be requested by the AGENCIES’ contract managers.

E. ADMINISTRATION OF AGREEMENT

1. The Department of Education contract manager is Jamie Braun. The Board of Governors contract manager is Rachel Kamoutsas.

2. The CONTRACTOR contract manager is Charles J. Cooper.

3. All approvals must be obtained from the parties' contract managers or their designees. All notices must be given to the parties’ contract managers.

4. This AGREEMENT shall be governed by and construed under the laws of Florida.

F. OTHER AVAILABLE SERVICES

Upon receiving approval from the AGENCIES, the CONTRACTOR shall use existing AGENCIES agreements, when available and cost effective, to acquire services (e.g., bulk third-party copying) and the assistance of professionals (e.g., court reporters, expert witnesses) at reduced rates.

G. PUBLIC RECORDS

All documents prepared pursuant to the AGREEMENT are subject to Florida’s Public Records Law.

Refusal of the CONTRACTOR to allow public access to such records, as required by such law, shall constitute grounds for unilateral cancellation of this AGREEMENT.

H. SPECIAL CONDITIONS

1. The CONTRACTOR will make affirmative efforts to achieve cost effectiveness by consolidating court hearings, limiting travel, streamlining case processing, using printed forms, using the appropriate level of attorney or staff experience required by task, and taking other actions to improve efficiency.

2. Multiple staffing at meetings, hearings, depositions, trials, etc., by the CONTRACTOR will not be compensated without prior written approval from the AGENCIES.

3. CONTRACTOR agrees that all documents shall be promptly returned at the termination of the CONTRACTOR's involvement in the case or matter at hand.

4. AGENCIES’ in-house staff shall be used in the legal matter to the maximum extent possible.

5. The CONTRACTOR will provide immediate notice by facsimile transmission or telephone regarding significant case developments which will likely result in media inquiries.

6. The CONTRACTOR shall provide the AGENCIES immediate notice of any representation undertaken by the CONTRACTOR in matters where the client is suing or being sued by the state or state entities in any civil or adversarial administrative action.

7. A contingency fee contract must be commercially reasonable. “Commercially reasonable” means the fees shall be no more than the amount permissible pursuant to Rule 4-1.5 of the rules regulating The Florida Bar and case law interpreting that rule. If the amount of the fee is in dispute, the counsel retained by the state shall participate in mandatory binding arbitration.

Payment of all attorney’s fees is subject to appropriation. Attorney’s fees shall be forfeited if, during the pendency of the case, the counsel retained by the state takes a public position that is adverse to the state’s litigation or settlement posture.

8. Each private attorney who is under contract to provide attorney services for the state or a state agency shall, from the inception of the contractual relationship until at least 4 years after the contract expires or terminates, maintain detailed current records, including documentation of all expenses, disbursements, charges, credits, underlying receipts and invoices, and other financial transactions that concern the provision of such attorney services. The private attorney shall make all such records available for inspection and copying upon request in accordance with Chapter 119, Florida Statutes.

9. The AGENCIES’ general counsels must approve and sign the contract as to form and legality.

The Contract must be signed by both agency heads, who shall also maintain custody of the contract.

EXHIBIT 1 - Fee Schedule

J. HOURLY BILLING SCHEDULE:

A. CONTRACTOR's attorney and paralegal staff to be used under this contract include the following individuals at the hourly rates indicated:

NAME Hourly Rate Charles J. Cooper $795 John Ohlendorf $795 John Ramer $795 Davis Cooper $795 Megan Wold $795

ALL FIRM ATTORNEYS $795

Kaitlyn Troilo, Erica Lizza, and Annitta Bailey (Non-Attorneys) $270

ALL ATTORNEY WORK RELATED TO DISCOVERY $380________

The above rates may be adjusted if both parties agree, and shall be documented in writing by amendment to this AGREEMENT.

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK