Case No. 2007-CA-1428-K 07/20/2011 DANNY - L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE: August 4, 2011
TO: Suzanne A. Hutton
County Attorney
ATTN: Kathy M. Peters I P
Executive Assistant
FROM: Isabel C. DeSantis, D.C.
At the July 20, 2011, Board of County Commissioner's meeting, the Board approved the
following:
Item P4 Professional Services Agreement for expert services of architect John
Erhig from the firm of Helman Hurley Charvat Peacock/Architects, Inc.
Item P5 Amendment to the Legal Services Agreement with Hogan Lovells US,
LLP naming an additional timekeeper and making the agreement retroactive to March 16, 2011.
Should you have any questions, please feel free to contact this office.
cc: Finance
File
PROFESSIONAL SERVICES AGREEMENT
BETWEEN MONROE COUNTY AND
HELMAN HURLEY CHARVAT PEACOCK/ ARCHITECTS, INC.
THIS AGREEMENT made and entered into this9tday of , 2011, by and between the
MONROE COUNTY ( "COUNTY"), a political subdivision of " to of Florida whose address is 1100
Simonton Street, Key West, Florida 33040, and of the firm of Heiman Hurley Charvat Peacock/ Architects,
Inc. ( "HHCP"), a Florida Corporation, whose address is 222 West Maitland Boulevard, Maitland, Florida
32751, hereby enter into this Agreement regarding the retention of John Ehrig ( "CONSULTANT"), by
COUNTY to provide consulting services in the case of The Tower Group, Inc, vs. Monroe County Board of
County Commissioners and Monroe County Board of County Commissioners, vs. Gonzalez Architects and
Jose Gonzalez, Case No. 07- CA -1428K .
WHEREAS, COUNTY desires to continue the services of CONSULTANT to provide expert technical
consultation and review of construction documents, contracts, drawings, architectural work and related
information in order to provide expert opinion and, if necessary, expert testimony in the above case; and
WHEREAS, CONSULTANT desires to provide the services to the COUNTY;
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the
parties agree as follows:
1. CONSULTANT will provide expert consultation and technical advice in the areas of construction
documents, related research, contracts, drawings, architectural work and related information in order to
provide expert opinion, and, if necessary, expert testimony if requested, by COUNTY in the above litigation.
2. This Agreement is retroactive to March 15, 2011, and shall become effective upon signature by
all parties and shall continue in effect until services are completed or terminated by either party, with or
without cause, upon fifteen (15) days written notice to the other party or upon final termination of the
litigation.
3. CONSULTANT warrants that CONSULTANT and additional timekeepers do presently have,
shall have prior to commencement of work under this Agreement, and at all times during said work, all
required licenses and permits whether federal, state, County or City that are applicable to the expertise
required under the Agreement.
4. CONSULTANT shall bill COUNTY at the hourly rate and time for approved time keepers.
Records of the time expended and description of the service performed by each time - keeper shall be
detailed separately on the invoices. Personnel who are not listed as timekeepers will not be paid unless
approved in writing by amendment with the same formalities as this Agreement.
Hourly Rates, and Changes to hourly rates are set at:
Approved Time Keepers:
Name: Hourly Rate: Testimony Rate:
John Ehrig $250 $300
Michael Campbell $185 $225
Graphic Designer $140
Administrative Support $75
11Page
Testimony rate shall include time spent in Deposition, Mediation & Settlement Conferences and Trial.
Unless COUNTY approval is obtained, CONSULTANT will not have more than one time - keeper bill for
the same court appearances, attendance at depositions and meetings, including meetings with COUNTY
representatives, and internal conferences. In the event that more than one person attends, only the time of
the person with the highest rate will be billable, unless additional billing for another time keeper is
approved in writing by the County Attorney. CONSULTANT is not permitted to use this matter to
provide on the job training for a time - keeper, and bill for that time - keeper's services, without
COUNTY'S advance approval.
5. The COUNTY and CONSULTANT agree that travel time and expenses shall be billed and paid
as follows:
a. All Travel time shall be calculated at the Hourly rate, not the Testimony rate.
b. Travel expenses within the CONSULTANT'S local or metropolitan area will not be
reimbursed. Local and Metropolitan area is defined as being within fifty (50) miles of the
CONSULTANT'S usual office space and does not include travel to or from the residence
to the office.
c. Reimbursable travel expenses are the cost of transportation by the Ieast expensive
practicable means (e.g., coach class air travel), the cost of reasonable hotel
accommodations, includes the cost of parking at the airport or taxi to and from the
airport, and the cost of transportation while out of town (e.g., by cab or rental car,
whichever seems reasonable, at the lowest available rate). Airplane travel shall be
verified by the attachment of a boarding pass or by a waiver. Travel expenses will be
reimbursed in accordance with the applicable provisions of the Monroe County Code for
"approved travelers" and shall be summarized on the Monroe County Travel Form by
CONSULTANT with all applicable receipts attached thereto as Exhibit A.
d. Payment of travel time and expenses will be made periodically but no more frequently
than monthly, in arrears. Expenses shall be submitted by CONSULTANT and authorized
by COUNTY in writing with backup documentation as required by the Clerk of Court.
Invoices shall include copies of receipts for all expenditures for which CONSULTANT
seeks reimbursement.
6. The COUNTY and CONSULTANT agree that reimbursable expenses, unrelated to travel, shall
be billed and paid as follows:
a. COUNTY will pay the actual reasonable cost of the following expense items if incurred
in accordance with the guidelines below and promptly itemized in CONSULTANT'S
monthly bill and shall be accompanied by backup documentation as required by the Clerk
of Court. COUNTY will not pay any multiplier for these expenses. COUNTY will not
pay any markup for expenses and COUNTY will only reimburse the CONSULTANT for
their actual approved out -of- pocket costs and expenses, whether incurred personally by
an approved time - keeper
b. COUNTY will pay the actual cost for necessary long distance telephone calls,
overnight or expedited delivery, couriers, photocopying at $.25 per page, postage, court
fees, and other expenses approved by COUNTY or requested in discovery for the
litigation.
c. CONSULTANT is expected to avoid using expedited or emergency services, such as
express delivery services, couriers, telecopying, overtime, and so on, unless necessary
because of unexpected developments or short deadlines. COUNTY may refuse to pay for
any such expenses when incurred routinely or because of CONSULTANT'S failure to
manage the matter efficiently.
2JPage
d. CONSULTANT is encouraged to use outside copying services to reduce the cost of
large- volume copying, provided that these expenses are efficient, cost - effective, and
incurred and billed in accordance with this Agreement. CONSULTANT is responsible
for insuring that all copying complies with copyright obligations.
e. Transcripts should not be ordered without approval from County Attorney. Transcripts
should not be ordered on an expedited basis unless necessary and approved by
COUNTY.
7. The COUNTY and CONSULTANT agree that the following expenses will not be paid or be
reimbursable without written approval by County Attorney:
a,. Meals for time- keepers not related to travel, overtime, word processing or computer
charges, personal expenses, expenses that benefited other clients, expenses for books,
costs of temporary employees, stationery and other supply expenses, utilities, and any
other expense that is either unreasonable or unnecessary.
8. CONSULTANT shall comply with the following requirements as to billing fees and expenses as
a condition precedent to COUNTY'S obligation to pay each bill:
a. CONSULTANT shall provide detailed, itemized bills which shall, at a minimum,
provide a general description of the matter for which consultant services are being
performed (e.g. Richard Roe v. Monroe County); a description of the work
performed in enough detail so that each item is distinguishable from other listed items
and sufficient to allow COUNTY to determine the necessity for and reasonableness of the
time expended. For example, simply the word "research" is not acceptable, more detail
about the type of research and what was determined by the research is necessary.
b. Clearly identify each timekeeper performing services in conjunction with each entry and
the amount of time being billed by the timekeeper and the service performed.
c. The time expended by each time - keeper shall be recorded separately.
d. CONSULTANT shall include copies of receipts for all expenses with the itemized
monthly bill. COUNTY may refuse to pay any expense item for which documentation is
not provided by CONSULTANT.
e. CONSULTANT must maintain support documentation for services and bills until at least
one year after the termination of the representation. This documentation shall be made
available by CONSULTANT to COUNTY (or COUNTY'S designated representative,
including an accountant, the County Clerk or County Clerk's representative, or legal bill
auditor) upon COUNTY'S written request. CONSULTANT agrees to cooperate with any
examination of this documentation and CONSULTANT'S fees and expenses, e.g., by
responding promptly and completely to any questions COUNTY or its designated
representative may have. CONSULTANT shall notify COUNTY in writing at least 60
days in advance of destroying any such records and, in the event that COUNTY requests
that they be preserved, shall preserve them at least one additional year or, at the option of
the COUNTY, delivered to the COUNTY for storage by the COUNTY, with COUNTY
responsible for paying the actual cost of storage. This documentation shall include, for
example, original time records, expense receipts, and documentation supporting the
amount charged by CONSULTANT for expense items generated by CONSULTANT or
his or her firm.
f. COUNTY reserves the right not to pay any fee or expense item for which sufficient
documentation or expense item for which sufficient documentation is not available to
determine whether the item was necessary and reasonable.
9. CONSULTANT agrees that, unless specifically exempted or excepted by Florida law, the
provisions of Chapter 286.011, Florida Statutes, apply to this Agreement. CONSULTANT agrees to
3IPaee
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.
10. CONSULTANT agrees that, unless specifically exempted or excepted by Florida law, 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. CONSULTANT 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.
11. CONSULTANT agrees to allow and permit reasonable access to, and inspection of, all
documents, papers, letters or other materials in its possession or under its control as relate to this
Agreement which are subject to the provisions of Chapter 119, Florida Statutes, also known as the Public
Records law, and records made or received by the COUNTY and CONSULTANT in conjunction with
this Agreement. CONSULTANT specifically acknowledges that any costs incurred or charged for records
under the Public Records law shall be charged in accordance with the law, which shall take precedence
over the terms of this Agreement. The COUNTY shall have the right to unilaterally cancel this
Agreement upon violation of this provision by CONSULTANT; however, CONSULTANT acknowledges
that termination of this agreement by either COUNTY or CONSULTANT shall not exempt the
CONSULTANT from the requirements of Chapter 119.
12. CONSULTANT shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting principles
consistently applied. Each party to this Agreement or their authorized representatives shall have
reasonable and timely access to such records of each other party to this Agreement for public records
purposes during the term of the Agreement and for four years following the termination of this
Agreement. If an auditor employed by the COUNTY or Clerk determines that monies paid to
CONSULTANT pursuant to this Agreement were spent for purposes not authorized by this Agreement,
the CONSULTANT shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS,
running from the date the monies were paid to CONSULTANT.
13. CONSULTANT is not authorized to retain additional experts, additional consultants, support
services, or the like, or to out - source or delegate work outside CONSULTANT'S firm, without prior
written approval by COUNTY.
14. The COUNTY'S performance and obligation to pay under this Agreement is contingent upon an
annual appropriation by the Board of County Commissioners.
15. COUNTY and CONSULTANT acknowledge that COUNTY does not waive any immunity nor
does COUNTY agree to hold CONSULTANT harmless; notwithstanding the provision of Sec. 768.28,
Florida Statutes, the participation of CONSULTANT and COUNTY in this Agreement and the
acquisition of any commercial liability insurance coverage, self - insurance, or local government liability
insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor
shall any contract entered into by COUNTY be required to contain any provision for waiver.
16. CONSULTANT agrees to comply with all Federal and Florida statutes, and all local ordinances,
as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil
Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race, color or national
origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681 -1683, and 1685-
1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of
1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975, as amended (42 USC ss. 6101 -6107) which prohibits discrimination on the
4ft g
basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to
nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism
Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912,
ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and
drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended,
relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with
Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal
or state statutes which may apply to the parties to, or the subject matter of, this Agreement.
17. In carrying out CONSULTANT'S obligations under this agreement, CONSULTANT 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
CONSULTANT.
18. NOTICE REQUIREMENT
Any notice required or permitted under this agreement shall be in writing and hand delivered or mailed,
postage prepaid, to the other party by certified mail, returned receipt requested, to the following:
FOR COUNTY:
County Attorney
PO Box 1026
Key West, FL. 33040
(305) 292-3470
FOR HHCP:
John Ehrig
222 West Maitland Boulevard
Maitland, FL. 32751
(407) 644 -2656
19. 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.
20. The entire agreement between the COUNTY and CONSULTANT 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 CONSULTANT 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.
21. CONSULTANT agrees to forward to COUNTY along with Notice of Termination or upon
receipt of Notice of Termination, depending upon which party terminates the Agreement, copies of all
documents in his or her possession of any nature whatsoever related to CONSULTANT'S consultation
with COUNTY or obtained thereto, after fees or expenses are paid under this Agreement.
Wage
22. Prior to execution of this agreement, CONSULTANT shall furnish COUNTY Certificates of
Insurance indicating the minimum professional liability coverage for CONSULTANT and additional
time - keepers in the total amount of one million dollars. CONSULTANT 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.
23. No covenant or obligation contained in this Agreement shall be deemed to be a covenant or
obligation of any member, officer, agent or employee of the Board of County Commissioners of Monroe
County in his or her individual capacity; and no member, officer, agent or employee of the Board of
County Commissioners of Monroe County shall be liable personally on this Agreement or be subject to
any personal liability or accountability by reason of the execution of this Agreement.
24. 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 CONSULTANT 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.
25. 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 CONSULTANT in the
same manner as this Agreement.
26. CONSULTANT is not authorized to identify COUNTY as a COUNTY, e.g., for purposes of
marketing or advertising, without COUNTY'S prior approval.
27. CONSULTANT understands that all files and work product prepared by CONSULTANT or his
or her firm at the expense of COUNTY (or for which COUNTY is otherwise billed) is the property of
COUNTY. Without COUNTY'S prior written approval, this work product may not be used by
CONSULTANT or his or her firm nor disclosed by CONSULTANT or his or her firm to others, except in
the normal course of CONSULTANT'S representation and as required by law in this matter.
CONSULTANT agrees that COUNTY owns all rights, including copyrights, to materials prepared by
COUNTY or by CONSULTANT on behalf of COUNTY.
28. CONSULTANT 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.
29. COUNTY and CONSULTANT agree that nothing contained herein shall create any relationship,
contractual or otherwise, with or any rights in favor of, any third party.
30. This Agreement may be executed in any number of counterparts, each of which shall be regarded
as an original, all of which taken together shall constitute one and the same instrument and the COUNTY
and CONSULTANT may execute this Agreement by signing any such counterpart.
6IPage
31. COUNTY and CONSULTANT agree to waive their rights to trial by jury; and further agree that
if any dispute and disagreement arise between them they shall first attempt to be resolve the dispute and
disagreement by a meet and confer session between representatives of each party. If the issue or issues are
still not resolved to the satisfaction of both parties, then the issue shall be submitted to mediation prior to
the institution of any other administrative or legal proceeding. If the issues are still not resolved any party
shall have the right to seek such relief or remedy as may be provided under the Agreement or under
Florida law. This Agreement is not subject to arbitration
32. COUNTY and CONSULTANT agree that neither presently has any interest, and shall not acquire
any interest, which would conflict in any manner or degree with its performance under this Agreement,
and that the only interest of each is to perform and receive benefits as recited in this Agreement.
33. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the
benefit of the COUNTY and CONSULTANT and their respective Iegal representatives, successors, and
assigns.
34. Each party represents and warrants to the other that the execution, delivery and performance of
this Agreement have been duly authorized by all necessary county and corporate action, as required by
law. Each party agrees that it has had ample opportunity to submit this Contract to legal counsel of its
choice and enters into this agreement freely, voluntarily and with advice of counsel.
35. COUNTY and CONSULTANT covenant that neither presently has any interest, and shall not
acquire any interest, which would conflict in any manner or degree with its performance under this
Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement.
36. At all times and for all purposes hereunder, CONSULTANT 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 CONSULTANT 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.
37. The COUNTY and CONSULTANT warrant that, in respect to itself, it has neither employed nor
retained any company or person, other than a bona fide employee working solely for it, to solicit or secure
this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or
firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or
other consideration contingent upon or resulting from the award or making of this Agreement. For the
breach or violation of the provision, the CONSULTANT agrees that the COUNTY shall have the right to
terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise
recover, the full amount of such fee, commission, percentage, gift, or consideration.
38. CONSULTANT agrees to execute such documents as the COUNTY may reasonably require, to
include a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement.
39. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any
member, officer, agent or employee of Monroe County in his or her individual capacity, and no member,
officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to
any personal liability or accountability by reason of the execution of this Agreement.
71Pa
40. THIS AGREEMENT will become effective when executed by both the CONSULTANT and
executed by the Board of County Commissioners of Monroe County, Florida.
IN WITNESS WHEREOF, each party caused this Agreement to be executed by its duly authorized
representative on the day and year first written above.
SEAL BOARD OF CO j 1 MMISSIONERS
A • t: DANNY L. KOLHAGE, Clerk OF MONRO ' , 4' . Y ' • ;;
By:
c '`
'' ► - piny Clerk I\ -").,; — I, I . •r/Chairman
NJ; ' "
• r CP : For HH +'
By. � `� � 0 t
Print Name: 'Mtta. N1 Print Nam:i�•j ;, - W
Date: L l t.I 1 11 Title: V lag ■ ie . (OEM a.
Date: - z ► 1
STATE OF FLORIDA
COUNTY OF Orek_n
On this . day of 21 S + 2011, b ,e
ore me, the undersigned notary public, 29Lsomlly appeared 3e9 Ia
E 1.. : 5 , known to me to be the person whose name is subscribed above or who produced
as identification, and acknowledged that he/she is the person who
ex uted the above Agr eme t with Monroe County for the purposes therein contained.
Notary blic
t 1. 7.µC . E. '[ir :A My commission expires: O' E01 I z0 1..
Print Name
MONROE COUNTY ATTORNEY
j`►"Y "kb Notary Public State of Florida AP RO V D AS TO F RM
F . Eli E Bridges
1c. �r My Commission DD965474
@o,.t Expires03 /09/2014 NATILEENE W. CASSEL
ASSISTANT COUNTY ATTORNEY
ate h ° 2 _ --.),,,C/
r 7
'1
t T
- TT+ '
T J.
V
:ILI n
: -: ry o
tv
o
I 11 • w 4-i •
II
1 3 #1
N ii m
1 4i
ill i 1 a 1 o j i
1 i - • rji
g O 1 ir
H W l
s i lg
4 Jai al ! W liy
a 1�
N Q
;. 1 W
o = 4 1 1 ill 1$
as 1 i I I fi • M m F� 0
O
1 oIl A Ili:
ij
1 s .1 s,
of ji
l i III
` 1 bill; I1 or
s ;1
I i
ill ill
i iii a
i Ifs' i of
a 1
1� w LAI -1l� t IS ' • 1 _I- 1
i > t 1 ° af3t I 1