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09/29/1993CONSULTING AGREEMENT THIS AGREEMENT is made and entered into this day of S , 1993, by and between the BOARD OF COUNTY COMMISSIONERS OF MO ROE COUNTY, FLORIDA, hereinafter called the "CLIENT" and MR. MARTIN E. FIRESTONE, whose address is P.O. Box 188, Sugarloaf Shores, Florida 33044, hereinafter called the "CONSULTANT". WITNESSETH: WHEREAS, CLIENT wishes to retain a consultant to assist and to provide expertise and experience in making proper determinations with respect to cable television operations and services and other telecommunications operations and services within Monroe County, Florida (hereinafter called the "COUNTY"); and WHEREAS, CONSULTANT has the expertise and experience to assist the CLIENT in making proper determinations with respect to cable television operations and services and other telecommunications services and operations and, in fact, wishes to provide such expert assistance to the CLIENT; r1 NOW, THEREFORE, in consideration of the foregoing and the= mutual covenants and promises contained herein, the CLIENT and;' the CONSULTANT (sometimes hereinafter collectively called,::1he.-,� "PARTIES") agree as follows: X1- RETAINER SERVICES The CONSULTANT agrees to provide professional telecommunications consulting services to the CLIENT on a retainer basis as requested by the CLIENT. SCOPE OF WORK The CONSULTANT agrees to provide expert advice and assistance to the CLIENT with respect to the impact and effect of the Cable Television Consumer Protection and Competition Act of 1992 (hereinafter called the "92 Act") on the cable television franchise agreement between the COUNTY and TCI Cablevision of Florida, Inc. (hereinafter called the "FRANCHISE"), including but not necessarily limited to its provisions with respect to rate regulation, consumer protections and services, programming services and technical standards. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT in the development, preparation, implementation and prosecution of a course of action to verify and ascertain the authority of the COUNTY to exercise cable television rate regulation, adopt and enforce consumer protection requirements, insure proper cable television programming services and adopt and enforce cable television technical standards. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT to insure that its cable television regulatory authority is in compliance with the provisions of the 92 Act and the rules and regulations of the Federal Communications Commission (hereinafter called the "FCC") implementing the provisions of the 92 Act. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT with respect to the development, preparation, filing and prosecution of such certifications, applications and other documents as may be required for the COUNTY to obtain from the FCC the authority to regulate cable television rates and such other cable television operations and services as appropriate pursuant to the 92 Act and the rules and regulations of the FCC. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT, on an on -going basis, with respect to the administration and enforcement of the provisions of the FRANCHISE and to insure that such is in compliance with the requirements of the 92 Act and the FCC's implementing rules and regulations. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT with respect to the coordination and implementation of cable television rate and other regulatory actions by and among the CLIENT and other cable television franchising authorities within the COUNTY, to wit, the cities of KEY WEST and KEY COLONY BEACH. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT with respect to obtaining reimbursement for the CLIENT of the costs of administering and enforcing the FRANCHISE pursuant to the provisions of the 92 Act and prior cable television statutes. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT with respect to impact and effect of the development, implementation and initiation of new telecommunications services and systems within the COUNTY, including but not necessarily limited to fiber optic network(s), "wireless cable" systems, non-commercial FM radio services, non-commercial locally originated television service. 2 The CONSULTANT agrees to provide expert advice and assistance to the CLIENT, if requested, with respect to an assessment of the telecommunications needs of the COUNTY, particularly as to the development and installation of a fiber optic network, the preparation of a request for proposals for a fiber optic network, an evaluation of such proposals and negotiation of a contract with the selected proposer, if any. The CONSULTANT agrees to provide expert advice and assistance to the CLIENT, if requested, in the development of a comprehensive COUNTY telecommunications policy and program providing for the coordination and integration of the various telecommunications services which exist and which will be implemented and initiated within the COUNTY. The CONSULTANT agrees, as may be reasonably requested by the CLIENT, to attend any meetings and/or hearings of the CLIENT and to provide, as needed and requested by CLIENT, verbal and/or written reports and analyses with respect to those matters within the scope of work of the CONSULTANT. COMPENSATION OF CONSULTANT The CONSULTANT shall be compensated for the services to be performed under the terms of this Agreement on the following basis: The CONSULTANT shall submit an invoice or invoices showing the hours expended at a rate of ONE HUNDRED FIFTY DOLLARS ($150.00) per hour. The total of such invoice or invoices shall not exceed a total amount of THIRTY THOUSAND DOLLARS ($30,000.00) per year for each year of the term of this Agreement. The CLIENT shall be charged for actual hours expended as provided for in the above paragraph and will be charged for customary and usual out-of-pocket expenses including, but not limited to, duplication, printing, long distance telephone calls, postage, FAX, express delivery service, etc. The CONSULTANT shall itemize and support the charges for such out-of-pocket expenses in and as part of the invoice or invoices for services rendered submitted by the CONSULTANT to the CLIENT. The CONSULTANT shall not undertake and/or charge the CLIENT for travel, lodging and/or other travel associated expenses without prior notification to and the approval of the CLIENT. M AUTHORIZATION FOR SERVICES The CONSULTANT shall perform the services provided for herein under the direction of the CLIENT or CLIENT'S designee. LATE DELIVERY OR INABILITY TO PERFORM In the event that CONSULTANT encounters difficulty in meeting performance requirements, or anticipates difficulty in complying with requests for telecasting, CONSULTANT shall immediately notify the County Administrator, in writing, of said difficulty and the reasons therefor. SEVERABILITY If any provision of the Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement or the application of such provision other than those as to which it is invalid or unenforceable, shall not be effected thereby; and each provision of the Agreement shall be valid and enforceable to the fullest extent permitted by law. NOTICE Any notice required or permitted under this Agreement shall be in writing and hand -delivered or mailed, postage prepaid by certified mail, return receipt requested, to the other party as follows: To County: County Administrator Public Service Building 5100 College Road, Stock Island Key West, Florida 33040 (305) 292-4441 To Consultant: Martin E. Firestone P.O. Box 188 Sugarloaf Shores, Florida 33044 (305) 745-8850 CONSENT TO JURISDICTION This Agreement, its performance, and all disputes arising hereunder, shall be governed by the laws of the State of Florida and both parties agree that a proper venue for any action shall be Monroe County. 4 COMPLIANCE WITH LAW CONSULTANT shall comply with all federal, state, and local laws, ordinances, regulations and rules applicable to the services to be performed by each party under the terms of this Agreement. CONSULTANT shall maintain such licensure as is required by law to carry out the services in this Agreement. TERMINATION FOR CAUSE OR LACK OF FUNDS AND NON -WAIVER A. If CONSULTANT fails to fulfill the terms of this Agreement, or attachments, properly or on time, or otherwise violates the provisions of the Agreement or of applicable laws or regulations governing the use of funds, COUNTY may terminate the Agreement by written notice of thirty (30) days, which notice shall specify cause. All finished or unfinished supplies or services compensated under this Agreement shall, at the option of COUNTY or pursuant to State statute become property of COUNTY. The COUNTY shall pay CONSULTANT fair and equitable compensation for expenses incurred prior to termination of the Agreement, less any amount of damages caused by CONSULTANT'S breach. If the damages are more than compensation payable, CONSULTANT will remain liable after termination and COUNTY can affirmatively collect damages. B. In the event that funds from COUNTY cannot be continued at a level sufficient to allow for the purchase of services specified herein, this Agreement may be terminated upon giving written notice of thirty (30) days to CONSULTANT delivered in person or by mail to CONSULTANT. C. COUNTY shall not be obligated to pay for any services or goods provided by CONSULTANT after the effective date of termination. D. Any waiver of any breach of covenants herein contained to be kept and performed by CONSULTANT shall not be deemed or considered as a continuing waiver and shall not operate to bar or prevent COUNTY from declaring a forfeiture for any succeeding breach either of the same conditions or covenants or otherwise. ANTI -DISCRIMINATION CONSULTANT will not discriminate against any person on the basis of race, creed, color, religion, sex, age, national origin, or any other characteristic which is not job -related, in its recruiting, hiring, promoting, terminating or any other area affecting employment under this Agreement. CONSULTANT agrees to include this paragraph in all contracts it enters into with other persons or entities and to abide by all Federal and State laws regarding non-discrimination, including but not limited to, Executive Order 11246, Execution Order 11375 and U.S. Department of Labor regulations. 5 ANTI -KICKBACK CONSULTANT warrants that he has not employed, retained or otherwise had acted on his behalf any former county officer subject to the prohibition in Section 2 of Ordinance No. 10-1990 or any county officer or employee in violation of Section 3 of Ordinance No. 10-1990, and that no employee or officer of the County has any interest, financially or otherwise, in CONSULTANT except for such interests permissible by law and fully disclosed by affidavit attached hereto. For breach or violation of this paragraph, the COUNTY may, in its discretion, terminate this Agreement without liability and may also, in its discretion, deduct from the contract or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the former county officer or employee. I CONTRACTOR At all times and for all purposes hereunder, CONSULTANT is an independent contractor and not an employee of the COUNTY. NO CONFLICT OF INTEREST The CONSULTANT assures the CLIENT that, to the best of his knowledge, information and belief, the signing of this Agreement does not create any conflict of interest and that during the time of this Agreement CONSULTANT will not undertake representation of any parties to or before CLIENT seeking to obtain contracts or other benefits from CLIENT. OWNERSHIP OF DOCUMENTS All documents which are prepared in the performance of this Agreement are to be, and shall remain, the property of the CLIENT and shall be delivered to the County Administrator at any time upon request and no later than thirty (30) days after termination of this Agreement. INDEMNIFICATION The CONSULTANT shall indemnify and hold the CLIENT harmless from and against any and all losses, penalties, damages, professional fees, including attorney fees and all costs of litigation and/or judgments arising out of any wilful misconduct or negligent act, error or omission of the CONSULTANT arising out of or incidental to the performance of this Agreement or work performed thereunder. MODIFICATION No modification or amendment of this Agreement shall become effective until approved in writing by both parties. TIME OF PERFORMANCE AND CANCELLATION The term of this Agreement shall begin with the date of its execution by CLIENT and shall terminate upon the third anniversary of the date of such execution, that is three (3) years from the date of such execution. This Agreement may be terminated by majority vote of the CLIENT or by the mutual agreement of the CLIENT and the CONSULTANT. In the event the CLIENT shall seek to terminate this Agreement, the CLIENT shall provide the CONSULTANT with thirty (30) days notice of its intention to terminate. ASSIGNMENT SUB -CONTRACT CONSULTANT shall not assign or sub -contract this Agreement, except in writing and with the prior written approval of CLIENT. EXECUTION OF AGREEMENT IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement on the day, month and year first written above. ATTEST: DANNY L. KOLHAGE, Clerk BOARD OF COUNTY COMMISSIONERS A". OF MONROE COUNTY, FLORIDA (SEAL) ATTEST: (wit ness) Mayor/Chairman MARTIN E. FIRESTONE A-— CONTRACT ATTACHMENT: COMPLIANCE WITH LAW WHEREAS, all persons are subject to and must abide by all applicable local, state and federal laws; and WHEREAS, federal and state funding require inclusion in contracts of provisions for compliance with -specified laws; now, therefore, the parties to the contract of which this document is a part agree as follows: The contractor shall comply with all' laws' to the extent applicable to the operations of contractor, including but not limited to: 1. The National Environmental Policy Act of 1969 (42 USC §4321, et seq.) and 24 CFR, Part.58; 2. Executive Order 11988, Flood Plain Management; 3. Executive Order 11990, Protection of Wetlands; 4. The Endangered Species Act of 1973, as amended (16 USC 11531, et seq.); 5. The Fish and Wildlife Coordination Act of 1958, as amended (16 USC §661, et seq.); 6. The Wild and Scenic Rivers Act of 1968, as amended (16 USC §1271, et seq.); 7. The Safe Drinking Water Act of 1974, as amended (42 USC §300f, et seq.); 8. Section 401(f) of the Lead -Based Paint Poisoning Prevention Act, as amended (42 USC §4831(b), et seq.); 9. The Clean Air Act of 1970, as amended (421 i1SC 57401, et seq.); 10. The Federal Water Pollution Control Act of 1972, as amended (33 USC §1251, et seq.); 11. The Clean Water Act of 1977 (Public Law 95-217); 12. The Solid Waste Disposal Act, as amended by. -the Re- source Conservation and Recovery Act of 1975 (42 USC §6901, et seq.); 13. Noise Abatement and Control: Departmental Policy Implementation Responsibilities and Standards, 24 CFR Part 51, Subpart B; 14. Flood Disaster Protection Act of 1973 (PL 93-234); 15. Protection'of Historic and Cultural Properties under HUD Programs, 24 CFR, Part 59; 16. Coastal Zone Management Act of 1972 (PL 92-583); 17. Executive Order 11593, "Protection and Enhancement of the Cultural Environment"; 18. Architectural and Construction Standards; 19. Architectural Barriers Act of 1968 (42 USC §4151); 20. Executive Order 11296, relating to Evaluation of Flood Hazards; 21. Executive Order 11288, relating to the Prevention, Control and Abatement of Water Pollution; 22. Cast -Effective Energy Conservation Standards, 24 CFR, Part 39; 23. Section 8 Existing Housing Quality Standards, 24 CFR, Part 882; 24. Section 319 of Public Law 101-121, as provided in the "Governmentwide Guidance for New Restrictions on Lobbying; Interim Final Guidance published in the December 20, 1989, Federal Register, which prohibits recipients of federal contracts or graints from using appropriated funds for lobbying in connection with a grant or contract, and requires that each person who requests or receives a federal contract or grant, and their subrecipients, disclose lobbying undertaken with non-federal funds; 25. Executive Order 11246; 26. Procurement reqquirements for Counties under Chapters 255, 274 and 287, Florida Statutes; and 27. Americans with Disabilities Act. - L - SWORN STATEMENT PURSUANT TO SECTION 287.133(3)(a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS. 1. This sworn statement is submitted to Monroe County [print name of the public entity] by Martin E. Firestone [print individual's name and title] for [print name of entity submitting sworn statement] whose business address is 99 Bay Drive, Bay Point, Key West, Florida 33040 and (if applicable) its Federal Employer Identification Number (FEIN) is (If the entity has no FEIN, include the Social Security Number of the individual signing this sworn statement: 13 0 —.24 — 3141 2. I understand that a "public entity crime" as defined in Paragraph 287.133(1)(g), Florida Statutes, means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or of the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. 3. I understand that"convicted" or "conviction" as defined in Paragraph 287.133(l)(b), Florida Statutes, means a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1,1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or polo contendere. 4. I understand that an "affiliate" as defined in Paragraph 287.133(l)(a), Florida Statutes. means: 1. A predecessor or successor of a person convicted of a public entity crime; or 2. An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entitycrime. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. 5. I understand that a "person" as defined in Paragraph 287.133(l)(e), Florida Statutes, means any natural person or entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entity. • C. Based on information and belief, the statement which I have marked below is true in relation to the entity ' submitting this sworn statement. [Indicate which statement applies.] _ Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a -public entity crime subsequent to July 1,1989. The entity submitting this sworn statement, nor any of its officers, directors, exectutives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1,1999. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1,1989. However, there has been it subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FORTHE PUBLIC ENTITY IDENTIFIED ON PARAGRAPH 1(ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFO TION CONTAINED IN THIS FORM. ^�'�7 [signature] Sworn to and subscribed before me this" Z' day of� ,19 Personally known OR Produced identification nE, fG 21 . fMc d (Type of identification) -y Notary Public -State of My Commission expires Not" PAk Side 0i err _ All Comminion Expires Morch 24,1914 /m &d Thry Troy Fan . kuvrance hn (Printed typed or stamped commissioned name of notary public) C_. 4We•m Form PUR 7068 (Rev. 06/11/92)