Item Q5BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: Apri120, 2011
Bulk Item: Yes X No
Division: County Attorney
Staff Contact Person: Natileene Cassel
Phone: 292 -3470
AGENDA ITEM WORDING: Approval of First Amendment to the Professional Services contract
of Thomas Wright, Esq. to enable Mr. Wright to perform additional services related to the Contractors
Examining Board (CEB), related ordinances and rules and procedures.
ITEM BACKGROUND: On August 19, 2009 the BOCC entered into a contract with Mr. Tom
Wright in which he agreed to provide legal representation to the CEB. Since that time it has become
necessary to amend certain ordinances related to Chapter 6 of the Monroe County Code, to provide
more definite rules and procedures for the CEB, and provide legal research in consultation with the
Director of Growth Management and the County Attorney. The amendment provides for an set fee for
hearings and hourly rate of $150 per hour for a second day of hearings and additional services. The
amendment also places an annual cap of $25,000 for hourly services.
PREVIOUS RELEVANT BOCC ACTION: BOCC entered into a contract with Mr. Thomas Wright
on August 19, 2009, to provide legal counsel to the Contractor's Examining Board.
CONTRACT /AGREEMENT CHANGES: Allows for additional services and for an hourly rate for
those services with an annual cap of $25,000 on hourly services without prior approval of the BOCC.
STAFF RECOMMENDATIONS: Approval
TOTAL COST: $1500 per CEB meeting plus $150.00 per hour for additional services with annual cap of $25,000 for
hourly fees.
INDIRECT COST: N/A BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: Same as total cost SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management _
DOCUMENTATION: Included X Not Required
DISPOSITION:
AGENDA ITEM #
Revised 7/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Thomas Wright E sq. Contract #
Effective Date:
Expiration Date:
Contract Purpose/Description:
Amend contract to add further responsibilities.
Contract Manager:
(Name) (Ext.) (Department/Stop #)
for BOCC meeting on Aril 20, 2011 Agenda Deadline: April 5, 2011
CONTRACT COSTS
Total Dollar Value of Contract: $ $1500.+ Current Year Portion: $
$150.00 per
hour for
-- - -- ` - -
--
Budgeted? Yes❑ No ❑ Account Codes: -_
Grant: $ -_
County Match: $
ADDITIONAL COSTS
Estimated Ongoing Costs: $ more thatn For:
$25,000 hourt cap /yr
(Not included in dollar value above) (e maintenance.
utilities,
First Amendment to the Professional Services Contract
With Thomas Wright dated August 19 2009
On this day of , 2011, the Board of County Commissioners of
Monroe County, Florida, as the legislative and governing body of Monroe County, Florida, and in
accordance with the powers enumerated in Section 125.01, Florida Statutes ( "County") and
Thomas Wright, Esq., ( "Attorney"), hereby entered into this First Amendment to the Professional
Services Contract dated August 19` 2009.
Whereas, the present contract with the Attorney is limited to representation at Contractor
Examining Board (CEB) hearings; and
Whereas, it is in the best interest of the County to extend the scope of work to be
performed by the Attorney under the present contract to include additional representation;
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein,
the parties amend the contract dated, as follows:
1. Paragraph 2 of the Professional Services Contract shall be amended to state:
"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 provision applicable to the
hearings, as well as such administrative questions as may arise.
In addition, the attorney shall:
(1) Amend Monroe County Code Section 6 -267 to change the code requirements
for CEB meeting dates as determined by the Director of Growth Management
and the County Attorney; and
(2) Draft rules and procedures for the CLUB in consultation with the Director of
Growth Management and the County Attorney; and
(3) Amend Monroe County Code Section 6-270 to clarify the language regarding
repeat violations and amend any related statutes to eliminate any contradictions;
and
(4) Amend Section 6-56 to clarify the duties, responsibilities, and membership of
the Construction Board of Adjustment and Appeals; and
(5) Amend Monroe County Code sections from time to time as called upon to do
so in consultation with the Director of Growth Management and the County
Attorney; and
(6) Provide legal research related to the CEB and the Construction Board of
Adjustment and Appeals, from time to time as called upon to do so in
consultation with the Director of Growth Management and the County
Attorney,
The Attorney shall provide the 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 if he otherwise has any scheduling conflict requiring that an alternate
attorney be provided to the CEB."
2. Paragraph 3 of the Professional Services Contract shall be amended to state:
"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 Hundred Fifty Dollars ($150) per hour for additional time.
In addition to the compensation for hearings, when the Attorney is requested to
to perform other responsibilities as set forth in this agreement, the Attorney shall be paid
at the rate of Hundred Fifty Dollars ($150) per hour for the legal time spent providing
such services. The maximum amount of compensation for the hourly rate shall be
limited to and shall not exceed Twenty -Five Thousand Dollars ($25,000) in any calendar
year. It is the responsibility of the Attorney not to exceed this amount. Attorney agrees
that he is not authorized to exceed that amount and will not be compensated for hours
worked in excess of that amount without prior approval of the Board of County
Commissioners."
3. Paragraph 4 of the Professional Services Contract shall be amended to state:
"4. Billing. The Attorney shall submit a payment request in the form of an invoice to
the Growth Management Director on or before the tenth of each month for the services
performed during the previous month; late submission of the invoice may cause delay in
payment of the invoice. The bill must list the date of service, the service performed, and
the amount of time expended on the service divided into tenths of an hour, with such
specificity that the service can be understood by the clerk and shall provide any back -up
documentation if required by the clerk and shall conform to all statutory requirements
and all requirements specified by the local government entity to which the bill is
submitted. The bill must be in a form satisfactory to the County Clerk who is responsible
for review of invoices prior to payment. This contract is subject to the Local Government
Prompt Payment Act, Florida Statute Chapter 218 part VII:'
4. The remaining provisions of the Professional Services Contract, not inconsistent
herewith, shall remain in full force and effect.
THIS FIRST AMENDMENT to the Professional Services Contract dated August 19,
2009, shall become effective when executed by both the Attorney and by the Board of County
Commissioners of Monroe County, Florida.
Attest:
Danny L. Kolhage, Clerk
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Deputy Clerk
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PROFESSIONAL SERVICES CONTRACT
THIS CONTRACT is made and entered into this 19'' 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
ATTORNEY 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 if he 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
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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 if hand 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 and
2798 Overseas Highway, Ste. 400
Marathon, FL. 33050
County Attorney
1111 12" 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
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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.
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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
ATTORNEY 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. ATTORNEY 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. ATTORNEY 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.
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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 terms, 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. ATTORNEY 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 M oe County
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George Neugent, Mayor ` S TO 1`
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