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FY2009-2013 08/19/2009 DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: August 27, 2009 TO: Suzanne A. Hutton County Attorney FROM: Kathy M Peters Executive Assistant Pamela G. HanC~c. A TTN: At the August 19, 2009, Board of County Commissioner's meeting the Board granted approval and authorized execution of a Professional Services Contract between Monroe County and Thomas D. Wright to serve as legal counsel for the Contractors Examining Board. Enclosed is a copy of the above-mentioned for your handling. Should you have any questions please feel free to contact our office. cc: Finance Filev PROFESSIONAL SERVICES CONTRACT THIS CONTRACT is made and entered into this 19th day of August, 2009, by and between the Board of County Commissioners of Monroe County, a political subdivision of the State of Florida, hereafter COUNTY, whose address is Gato Building, 1100 Simonton Street, Key West, FL 33040, and THOMAS WRIGHT, whose address is P.O. Box 500309, Marathon, FL 33050-0309, hereafter ATTORNEY. WITNESSETH: WHEREAS, Chapter 6, Article III, Monroe County Code, authorizes the Contractors Examining Board (CEB) to conduct hearings to determine if contractors' licenses or certificates of competency should be suspended or revoked, or state certified contractors should have their permitting privileges suspended or revoked for violations of Chapter 6; and WHEREAS, the CEB has traditionally been provided legal counsel for their quasi- judicial hearings but the County staff has had to provide the full extent of prosecution of the cases without legal counsel to assist in presenting their cases; and WHEREAS, the COUNTY deems it in the best interest of the residents and property owners in Monroe County to provide an attorney for both prosecutorial purposes and advice to the CEB; and WHEREAS, there is a conflict of interest for members of the County Attorney's Office to serve in both capacities; and WHEREAS, it is deemed most efficient to have the prosecutorial attorney be the attorney assigned to prosecute cases before the Code Enforcement Special hearing magistrate as the CEB cases generally overlap those of Code Enforcement and for the attorney advising the CEB to be a contracted attorney with experience in handling administrative hearings; NOW, THEREFORE, in consideration of the mutual promises contained in this contract the parties agree as follows: 1. The ATTORNEY shall serve as legal counsel to the Contractors examining Board. The Attorney further understands that the County will contract for one alternate to serve on dates when there are scheduled cases which require the Attorney's recusal and for dates on which there are scheduling conflicts, although Attorney is expected, to the greatest degree possible, to avoid such scheduling conflicts. 2. Scope of Services. The ATTORNEY shall advise the CEB on procedures for the conduct of the hearings and substantive legal matters pertaining to the hearings, including but not limited to interpretations of Code and statutory provisions applicable to the hearings, as well as such administrative. The A TTORNEY shall provide the County Director of Growth Management with at least three (3) days notice prior to a hearing if it should become necessary to recuse himself from a matter or ifhe otherwise has any scheduling conflict requiring that an alternate attorney be provided to the CEB. The ATTORNEY understands that the County Attorney's Office will continue to provide the CEB with ordinance drafting services, and that from time to time, the CEB may schedule a portion of a meeting for consultation on such matters. The ATTORNEY may participate in such discussions although the primary purpose of this Agreement is to provide outside counsel for the conduct of quasi-judicial hearings and Wri2:ht CEB K 2009 3. Compensation. The COUNTY shall pay the ATTORNEY at a rate of One Thousand Five Hundred Dollars ($1,500) per meeting of the CEB at which ATTORNEY provides counsel. If a meeting is continued for a second day, ATTORNEY shall be paid at the rate of One Hundred Fifty Dollars ($150) per hour for additional time. 4. Billing. The ATTORNEY shall submit to the Growth Management Director an invoice by the tenth of each month for services performed during the previous month. The bill must be in a form satisfactory to the County Clerk. Payment shall be made in compliance with the Florida Local Government Prompt Payment Act. 5. Termination by County. The ATTORNEY serves at the pleasure of the COUNTY'S Board of County Commissioners. The Board may terminate this contract by providing the ATTORNEY with 30 days written notice of termination. Upon receipt of the notice or upon any later effective termination date described in the notice, the ATTORNEY must immediately cease performing any further services under this contact. The COUNTY will remain obligated to pay the ATTORNEY for all services performed --but unpaid -up to the date of the ATTORNEY'S receipt of the notice or the effective date, which may be specified by the Board, which shall not be less than 30 days unless mutually agreed to, in writing, between the parties. 6. The ATTORNEY warrants that he has not employed, retained or otherwise had act on his behalf any former County officer or employee subject to the prohibition of Section 2 or Ordinance No. 010-1990 or any County officer or employee in violation of Section 3 or Ordinance No. 010-1990. For breach or violation of this provision the COUNTY may, in its discretion, terminate this contract without liability and may also, in its discretion, deduct from the contract or purchase price, to otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former County officer or employee. 7. The COUNTY will provide the ATTORNEY with at least fifteen 15 days notice of any scheduled hearing, and at least five (5) days notice of the persons scheduled to appear before the CEB for disciplinary hearings. 8. Term of Agreement. The term of this Agreement begins on October 1, 2009 and terminates four years thereafter, unless earlier terminated in accordance with the terms of this Agreement. 9. Termination by Attorney. The ATTORNEY may terminate this contact by giving the COUNTY at least 30 days written notice. The ATTORNEY shall be paid for all services performed -but unpaid -up to the effective date of his termination. 10. Notice. All written notices of intent to terminate will be considered to have been delivered and received ifhand delivered or sent by certified US Mail or a nationally recognized courier service to the addresses first written above. All written notices of scheduling of meetings, conflicts and recusals shall be delivered by hand, through US mail, or through e-mail. Notices shall be provided to the following: FOR COUNTY: Growth Management Director 2798 Overseas Highway, Ste. 400 Marathon, FL. 33050 and County Attorney 1111 1 ih Street, Suite 408 Key West, FL 33040 FOR ATTORNEY: 9711 Overseas Highway Marathon, Fl. 33050 11. Attorneys' Fees, Venue, Applicable Law. In the event of litigation to enforce payment or any of the terms of the agreement, the prevailing party shall be entitled to receive reasonable attorneys' fees, including WriQht CEB K 2009 2 appellate attorney fees, if necessary. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. Venue for any legal action which may arise out of or under this agreement shall be in Monroe County, Florida. 12. Public Entity Crime Statement. A person or affiliate who has been placed on the convicted vendor list following a conviction for 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 public work, may not submit bids on leases of 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 in excess of the threshold amount provided in Section 280.017, F.S., for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 13. Entire Agreement. The entire agreement between the COUNTY and ATTORNEY with respect to the subject matter hereof is contained in this Agreement. This Agreement supersedes all prior oral and written proposals and communications between the COUNTY and ATTORNEY related to this Agreement. No provision of this Agreement shall be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by the party against whom the waiver, amendment or modification is claimed. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns. 14. Florida Government-In-The-Sunshine Law. ATTORNEY agrees that, unless specifically exempted or excepted by Florida law, the provisions of Chapter 286, Florida Statutes, generally require full and public discussion of matters to be voted upon by the Contractors examining Board. ATTORNEY agrees to consult with the COUNTY ATTORNEY'S office concerning the application of the Sunshine Law from time to time concerning specific circumstances that may arise during the term of this Agreement. 15. Florida Public Records Law. ATTORNEY agrees that, unless specifically exempted or excepted by Florida law or Rules and Regulations of The Florida Bar, the provisions of Chapter 119, Florida Statutes, generally require public access to all records and documents which may be made or received under this Agreement. ATTORNEY agrees to consult with the County Attorney's office concerning the application of the Public Records Law from time to time concerning specific circumstances that may arise during the term of this Agreement. 16. No Assignments. ATTORNEY shall not assign or subcontract its obligations under this agreement, except in writing and with the prior written approval of the Board of County Commissioners of Monroe County, which approval shall be subject to such conditions and provisions as the Board may deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or subcontractor shall comply with all of the provisions of this Agreement. Unless expressly provided for therein, such approval shall in no manner or event be deemed to impose any additional obligation upon the Board. 17. Severability. If a term, covenant, condition or provision of this Agreement shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provision of this Agreement would prevent the accomplishment of the original intent of this Agreement. The COUNTY and ATTORNEY agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. Wril!ht CEB K 2009 3 18. Captions. The captions set forth herein are for convenience of reference only and shall not define, modify, or limit any of the terms hereof. 19. Legal Obligations And Responsibilities; Non-Delegation Of Constitutional Or Statutory Duties. This Agreement is not intended to relieve, nor shall it be construed as relieving, either the COUNTY or A TTORNEY from any obligation or responsibility imposed upon each by law except to the extent of actual and timely performance thereof by the other, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further this Agreement is not intended to authorize, nor shall it be construed as authorizing, the delegation of the constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida Constitution, state statutes, case law, and, specifically, the provisions of Chapter 125, Florida Statutes. 20. Records. A TTORNEY shall maintain all books, records, and documents directly pertinent to performance under this Agreement, including the documents referred to in this Agreement, in accordance with generally accepted accounting principles, consistently applied. Upon ten (10) business days written notice to the other, representatives of either the COUNTY or ATTORNEY shall have access, at all reasonable times, to all the other party's books, records, correspondence, instructions, receipts, vouchers and memoranda (excluding computer software) pertaining to work under this Agreement for the purpose of conducting a complete independent fiscal audit. ATTORNEY shall retain all records required to be kept under this Agreement for a minimum of five years, and for at least four years after the termination of this agreement. ATTORNEY shall keep such records as are necessary to document the performance of the agreement and expenses as incurred, and give access to these records at the request of the COUNTY, the State of Florida or authorized agents and representatives of said government bodies. It is the responsibility of ATTORNEY to maintain appropriate records to insure a proper accounting of all collections and remittances. ATTORNEY shall be responsible for repayment of any and all audit exceptions which are identified by the Auditor General for the State of Florida, the Clerk of Court for Monroe County, the Board of County Commissioners for Monroe County, or their agents and representatives. 21. Public Access. The COUNTY and ATTORNEY shall allow and permit reasonable access to and inspection of, all documents, papers, letters, or other materials subject to the Florida Public Records Law, as provided in Chapter 119, Florida Statutes, and made or received by the them, unless specifically exempted by State Statute, Rules and Regulations of The Florida Bar, or case law. COUNTY shall have the right to cancel this agreement upon violation of this provision by ATTORNEY. 22. Anti-Kickback. A TTORNEY warrants that no person has been employed or retained to solicit or secure this Agreement upon any contract or understanding for a commission, percentage, brokerage or contingent fee, and that no employee or officer of the COUNTY has any interest, financially or otherwise, in this Agreement, except as expressly stated herein. For breach or violation of this warranty, the COUNTY shall have the right to annul this agreement without liability or, in its discretion, to deduct any sums to be paid by COUNTY under this Agreement, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 23. Modifications and Amendments. This Agreement may not be modified in any way without the express, written consent of both parties. Any and all modifications and Amendments of the terms of this Agreement shall be in writing and executed by the Board of County Commissioners for Monroe County and by ATTORNEY in the same manner as this Agreement. 24. Independent Contractor. At all times and for all purposes hereunder, ATTORNEY is an independent contractor and not an employee of the Board of County Commissioners of Monroe County. No statement contained in this Agreement shall be construed so as to find ATTORNEY or any of the authorized time keepers, to be the employees of the Board of County Commissioners of Monroe County, and they shall be entitled to none of the rights, privileges or benefits of employees of Monroe County. Wri{!ht CEB K 2009 4 25. Compliance with Law. In carrying out ATTORNEY'S obligations under this agreement, ATTORNEY shall abide by all statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this Agreement, including those now in effect and hereafter adopted. Any violation of said statutes, ordinances, rules or regulations shall constitute a material breach of this Agreement and shall entitle COUNTY to terminate this Agreement immediately upon delivery of written notice of termination to ATTORNEY. 26. Licensing. ATTORNEY warrants that ATTORNEY presently has, and at all times during said work, all required licenses, whether federal, state, County or City. 27. Non-Reliance By Non-Parties. No person or entity shall be entitled to rely upon the tenns, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the COUNTY and ATTORNEY agree that neither the COUNTY nor ATTORNEY or any officer, agent, or employee of each shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated under this Agreement. 28. Attestations. A TTORNEY agrees to execute such documents as the COUNTY may reasonable require, including a Drug-Free Workplace Statement, and a Public Entity Crime Statement. 29. County Authority. This Agreement has been duly noticed at a legally held public meeting conducted in Monroe County, Florida. COUNTY'S performance and obligation to pay under this contract, is contingent upon annual appropriation by the Board of County Commissioners. 30. Hold Harmless and Insurance. Prior to execution of this agreement, ATTORNEY shall furnish COUNTY Certificates of Insurance indicating the minimum professional liability coverage for ATTORNEY. ATTORNEY agrees to keep the same amount of coverage or more at all times and to provide proof of said coverage to COUNTY at COUNTY'S request at any time during the term of the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and date first Board of County Commissioners Of Mxoe County ~ --L.... B~~~4 0 J~,e.{J - George Neugent, Mayor \.'.C, uD l&..J 2: a:::: a.. a:::: o l&.. o La..J -1 l.L. ,...... N !5 c 0"\ is C"oooI -j~ >-c~ ~'1J.~ Lt_, zG <( 0 o ::c TTON "7 A ~/,(c;.:' 't i.;..~>;J __ ~~.., '< ~~O"~_/~ 19nature 7 '"'7 Wright CEB K 2009 5 ACORD.. CERTIFICATE OF LIABILITY INSURANCE ~Pc;l~2 I OA~~M/~~J THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PRODUCER Professional Risk Specialty Gr A Division of Brown & Brown, I 5900 N Andrews Avenue Ste. 401 Ft Lauderdale FL 33309 Phone:954-453-6280 Fax: 954-429-9487 INSURERS AFFORDING COVERAGE - INSURER A: Westport Insurance Corp. + INSURER B: INSURER C: INSURER 0: INSURER E' NAIC# 39845 'INS,j"REO Thomas o. Wright Chartered 9711 Overseas Highway Marathon FL 33050 ..------ '__.__ _. .h___ .-..---..----...-.-...-.-.-.- --.-.-- .....-...--... COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEO TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING AHY REQUIREMENT. TERM OR CONDITION OF my CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY ElE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO AI..L THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN LTR S A TYPE OF INSURANCE GENERAL LIABILITY COMMERCIAl GENERAl LIABILITY -- X ClAIMS MADE 0 OCCUR LAWYERS PROF LIAS 04/11/10 POliCY NUMBER ....---..--.........---...--...-...--..-.--..- OOO,OQ.Q.._._ WLA308004012704 RETRO: 4/11/97 04/11/09 COMBINED SINGlE LIMIT (E. accident) s DODll Y INJURY (Pet 1*$01\) s BODILY INJURY (PIN' ac:cident) PROPERTY DAMAGE (PIN' ac:cktenl) I S AUTO ONLY. EA ACCIDENT S - EA ACe I $ --.----.--.-.. OTHER THAN -_.1...____....___..__..._.... AUTO ONLY: AGG I S EACH OCCURRENCE __ ~. ___.. ..__.. .... ....__ -==-._=t:--===~- OEOUCTIBlE RETENTION $ WORKERS COMPENSATION AND EMPLOVERS" UA81UTY IWY PROPRIETOR/PARTNER/EXECUTIVE OFFICERlMEMBER eXCLUDED? ~m,~~~~s below OTHER s $ DESCRIPTION OF OPERA noNS I LOCATIONS I VEHICLES I EXCLUSIONS ADDeo BY ENDORSEMENT I SPECIAL PROVISIONS CERTIFICATE HOLDER County of Monroe County Attorney's Office Attn: Kathy Peters P.O. Box 1026 Key West, FL 33041 CANCElLATION SHOULD ANY OF THE ABOVE DESCRIBED POliCIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE l.EFT, BUT FAIlURE TO DO SO SHALL IMPOSE NO OBUGATION OR LIABIUTY OF ANY KINO UPON THE INSURER, ITS AGENTS OR RePRESENTATIVES. A EDREP~~TA,[ ACORD 25 (2001/08) ~ ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08)