11/01/2020 Case No. 04-CA-379-M ATTACHMENT D.6
COUNTY ADMINISTRATOR
CONTRACT SUMMARY FORM FOR CONTRACTS LESS THAN $50,000.00
Contract with: Vernis&Bowling of the Florida Keys,P.A. Contract 4
Effective Date: November 1,2020
Expiration Date: TBD
Contract Purpose/Description:
Expert witness services as to Plaintiff Donald Davis' Motion for Attorney Fees and Costs
in the inverse condemnation matter of Collins, et. al. and Donald Davis v. Monroe
County & State of Florida, Case No. 04-CA-379-M.
Contract is Original Agreement Contract Amendment/Extension Renewal
Contract Manager: Derek Howard 3470 CAY/Stop No.7
(Name) (Ext.) (Department/Stop 4)
CONTRACT COSTS
Total Dollar Value of Contract: $19,999.99 Current Year Portion: $
(must be less than$50,000) (If multiyear agreement then
requires BOCC approval,unless the
..ild 1. 7 1 -:lti', 11 1";-.11ii "'1011111
) ).UOO.UO). 3,000.00
Budgeted? Yes❑ NO ❑ Account Codes: 148 _ 67504 _530318
Grant: $ N/A - - - -
County Match: $ N/A - - - -
ADDITIONAL COSTS
Estimated Ongoing Costs: $ 0 /yr For:
(Not included in dollar value above) (e.g.maintenance,utilities,janitorial,salaries,etc.)
CONTRACT REVIEW
Changes Date Out
Date In Needed Reviewer
Robert B.Shillin er
Department Head 12/3/202o Yes❑ No■❑ g M 12/3/2020
Risk Management 12-3-2020 yes❑ No❑ Maria L.Slavik 12-3-2020
O.M.B./Purchasing 12/3/2020 Yes❑ NO❑ Christina Brickell 12/3/2020
County Attorney 12/4/2020 Yes❑ No■❑ 1
Robert B.Shillinger o 12/4/2020
Comments:
Page 71 of 74
AGREEMENT FOR EXPERT WITNESS SERVICES
THIS AGREEMENT is made as of this 1st day of December ,
2020, between Monroe County ("the COUNTY"), a political subdivision of the State of Florida,
whose address is 1100 Simonton Street, Key West, Florida 33040, and Vernis & Bowling of the
Florida Keys, PA, ("CONSULTANT"), whose address is 81990 Overseas Highway, Islamorada,
FL 33036, for expert witness services as to Plaintiff Donald Davis' Motion for Attorney's Fees
and Costs ("Davis Motion") in the inverse condemnation matter of Collins, et. al. and Donald
Davis v. Monroe County&State of Florida, Case No. 04-CA-379-M , ("Litigation"); and
WHEREAS, the COUNTY desires to engage CONSULTANT to provide expert witness
and consulting services to defend against the Davis Motion; and
WHEREAS, CONSULTANT desires to render these Services as described in SECTION
1, Scope of Services;
NOW,THEREFORE,the COUNTY and CONSULTANT, in consideration of the mutual
covenants contained herein, agree as follows:
SECTION 1. SCOPE OF SERVICES
CONSULTANT, through Dirk M. Smits, Esq., will provide expert witness consultation and
testimony as to the reasonableness of the attorney's fees and costs sought in the Davis Motion
("Services").
SECTION 2. COMPENSATION
Compensation for CONSULTANT'S Services under this Agreement shall be at the hourly rate of
$170 for Dirk M. Smits, Esq.; $1 b0 for Associates; and $110 for Paralegals.
In no event shall the compensation exceed a total of$19,999.99 without prior approval from the
Monroe County Board of County Commissioners.
SECTION 3. PAYMENT
All Services provided by CONSULTANT shall be billed on a current basis with monthly invoices
sent to the COUNTY that contain full detail as to the specific effort,hourly rate, and reimbursable
expenses incurred by CONSULTANT on COUNTY'S behalf. The invoices shall include any
necessary supporting documentation acceptable to the Clerk of Court for Monroe County.
Acceptability to the Clerk is based on generally accepted accounting principles and such laws,
rules and regulations as may govern the Clerk's disbursal of funds.
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If the CONSULTANT'S duties, obligations and responsibilities are materially changed by written
amendment to this Agreement after execution of this Agreement, compensation due to the
CONSULTANT shall be equitably adjusted, either upward or downward.
SECTION 4. PERIOD OF SERVICE
This Agreement shall become effective upon execution by CONSULTANT and acceptance and
approval by COUNTY in accordance with COUNTY'S policies,ordinances,or governing statutes.
This Agreement is retroactive to November 1, 2020. The services shall continue until terminated
by either the COUNTY, or by the CONSULTANT.
SECTION 5. NON-WAIVER OF IMMUNITY AND HOLD HARMLESS
COUNTY and CONSULTANT acknowledge that COUNTY does not waive immunity nor does
COUNTY agree to hold the CONSULTANT harmless, notwithstanding the provisions of Sec.
768.28, Florida Statutes, the participation of the CONSULTANT and the COUNTY in this
Agreement and the acquisition of any commercial liability insurance coverage, self-insurance
coverage, 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 the COUNTY
be required to contain any provision for waiver.
SECTION 6. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS
OF INTEREST BEFORE INITIATING REPRESENTATION
CONSULTANT has conducted athorough investigation and determined that CONSULTANT does not
have any ethical impediment, real or potential, including but not limited to conflicts of interest, to
representing COUNTY. To the extent that any ethical impediment, real or potential, is discovered
or ever arises, CONSULTANT shall immediately inform COUNTY in writing of the impediment
(regardless of whether CONSULTANT believes he or she has taken all steps necessary to avoid the
impediment and regardless of whether CONSULTANT believes that the impediment is insubstantial
or questionable),make full disclosure of the situation to COUNTY,obtain COUNTY'S express,written
consent to continue the representation of the other client, and take all other reasonable steps to avoid or
mitigate the impediment.
SECTION 7. FLORIDA GOVERNMENT-IN-THE-SUNSHINE LAW
CONSULTANT agrees that, unless specifically exempted or excepted by Florida law, the
provisions of Section 286.011, Florida Statutes, generally require full and public discussion of
matters to be voted upon by the Board of County Commissioners. CONSULTANT 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.
SECTION 8. FLORIDA PUBLIC RECORDS LAW
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CONSULTANT 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.
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.
Public Records Compliance. CONSULTANT must comply with Florida public records laws,
including but not limited to Chapter 119, Florida Statutes and Section 24 of article 1 of the
Constitution of Florida. The COUNTY and CONSULTANT shall allow and permit reasonable
access to, and inspection of, all documents, records, papers, letters or other "public record"
materials in its possession or under its control subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the COUNTY and CONSULTANT in conjunction with this
contract and related to contract performance. The County shall have the right to unilaterally cancel
this contract upon violation of this provision by the CONSULTANT. Failure of the
CONSULTANT to abide by the terms of this provision shall be deemed a material breach of this
contract and the COUNTY may enforce the terms of this provision in the form of a court
proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and
costs associated with that proceeding. This provision shall survive any termination or expiration
of the contract.
CONSULTANT is encouraged to consult with its advisors about Florida Public Records Law in
order to comply with this provision.
Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the CONSULTANT is
required to:
(1) Keep and maintain public records that would be required by the County to perform the
service.
(2) Upon receipt from the County's custodian of records,provide the County with a copy of
the requested records or allow the records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in this chapter or as otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
contract term and following completion of the contract if the CONSULTANT does not transfer
the records to the County.
(4) Upon completion of the contract, transfer, at no cost,to the County all public records in
possession of the CONSULTANT or keep and maintain public records that would be required by
the County to perform the service. If the CONSULTANT transfers all public records to the County
upon completion of the contract, the CONSULTANT shall destroy any duplicate public records
that are exempt or confidential and exempt from public records disclosure requirements. if the
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CONSULTANT keeps and maintains public records upon completion of the contract, the
CONSULTANT shall meet all applicable requirements for retaining public records. All records
stored electronically must be provided to the County, upon request from the County's custodian
of records, in a format that is compatible with the information technology systems of the County.
(5) A request to inspect or copy public records relating to a County contract must be made
directly to the County, but if the County does not possess the requested records, the County shall
immediately notify the CONSULTANT of the request, and the CONSULTANT must provide the
records to the County or allow the records to be inspected or copied within a reasonable time.
If the CONSULANT does not comply with the COUNTY's request for records,the COUNTY
shall enforce the public records contract provisions in accordance with the contract,
notwithstanding the COUNTY's option and right to unilaterally cancel this contract upon violation
of this provision by the CONSULTANT.
CONSULTANT shall not transfer custody, release, alter, destroy or otherwise dispose of any
public records unless or otherwise provided in this provision or as otherwise provided by law.
IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119 FLORIDA STATUTES TO THE CONSULTANT'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS BRIAN BRADLEY AT PHONE# 305-292-3470 BRADLEY-
BRIAN MONROECOUNTY-FL.GOV MONROE COUNTY ATTORNEY'S OFFICE
1111 12Tn Street, SUITE 408,KEY WEST,FL 33040.
SECTION 9. NO ASSIGNMENTS
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.
SECTION 10. 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 CONSULTANT 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
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Constitution, state statutes, case law, and, specifically, the provisions of Chapter 125, Florida
Statutes.
SECTION 11. RECORDS
CONSULTANT shall keep such records as are necessary to document the performance of its
services as set forth in 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 CONSULTANT to maintain appropriate records to
insure a proper accounting of all collections and remittances in this matter. CONSULTANT shall
be responsible for repayment of any and all reasonable 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.
SECTION 12. PUBLIC ACCESS
The COUNTY and CONSULTANT 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 CONSULANT.
SECTION 13. MONROE COUNTY CODE ETHICS PROVISION
CONSULTANT warrants that he or she has not employed, retained or otherwise had act on his
behalf any former COUNTY officer or employee in violation of Section 2 of Ordinance No. 10-
1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 10 1990.
For breach or violation of this provision the COUNTY may, at its discretion, terminate this
Agreement without liability and may also, at its discretion, deduct from the sums owed under the
Agreement, or otherwise recover, the full amount of any fee, commission, percentage, gift, or
consideration paid to the former or present COUNTY officer or employee. COUNTY employees
and officers are required to comply with the standards of conduct delineated in Section 112.313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts, doing business
with one's agency, unauthorized compensation, and misuse of public position, conflicting
employment or contractual relationship, and disclosure of certain information.
SECTION 14. PUBLIC ENTITY CRIME STATEMENT
Florida law provides that 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 an agreement to provide
any goods or services to a public entity,may not submit a bid on an agreement 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 public entity, may not be awarded or perform work as a contractor, supplier,
sub contractor, or consultant under an agreement with any public entity, and may not transact
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business with any public entity in excess of the threshold amount provided in Section 287.017,
for CATEGORY TWO for a period of thirty-six(36)months from the date of being placed on the
convicted vendor list. CONSULTANT warrants the neither CONSULTANT nor any authorized
time keeper has been named to the convicted vendor list.
SECTION 15. ANTI-KICKBACK
CONSULTANT 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.
SECTION 16. MODIFICATIONS AND AMENDMENTS
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.
SECTION 17. INDEPENDENT CONTRACTOR
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.
SECTION 18. COMPLIANCE WITH LAW
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.
SECTION 19. NON-DISCRIMINATION
CONSULTANT agrees that he or she will not discriminate against any person, and it is expressly
understood that upon a determination by a court of competent jurisdiction that discrimination has
occurred, this Agreement automatically terminates without any further action on the part of any
party, effective the date of the court order. CONSULTANT agrees to comply with all Federal and
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Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These
include but are not limited to: 1) Title VI1 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 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 V1.11 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 ss. 12101), as
maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10)
Monroe County Code Chapter 14, Article 11, which prohibits discrimination on the basis of race,
color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes
which may apply to the parties to, or the subject matter of,this Agreement.
SECTION 20. 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 CONSULTANT agree that neither the
COUNTY nor CONSULTANT 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.
SECTION 21. 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.
SECTION 22. NO PERSONAL LIABILITY
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
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or be subject to any personal liability or accountability by reason of the execution of this
Agreement.
SECTION 23. EXECUTION IN COUNTERPARTS
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.
SECTION 24. EXECUTION BY COUNTY ATTORNEY
Due to litigation, court scheduling constraints and in order to allow CONSULTANT to begin
representation in a timely manner this agreement may be executed by the County Attorney prior
to final approval of the Board of County Commissioners; in the event that the agreement is not
approved by the Board of County Commissioners,CONSULTANT shall submit an invoice for the
time and expenses incurred from the date of execution by the County Attorney until the Board of
County Commissioners voted not to approve this Agreement.
SECTION 25. CONTROLLING LAW
This Agreement is to be governed by the laws of the State of Florida. Venue shall be in Monroe
County.
SECTION 26. SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable,the remaining provisions shall
be valid and binding upon the parties. One or more waivers by either party of any provision,term
or condition shall not be construed by the other parry as a waiver of any subsequent breach of the
same provision,term or condition.
SECTION 27. NOTICE
Any notices sent by the parties shall be deemed to have been duly served if delivered in person to
the individuals and addresses listed below, or if delivered or sent by first class mail, certified,
return receipt requested, or by courier with proof of delivery. All written correspondence to the
COUNTY shall be dated and signed by an authorized representative of the CONSULTANT. The
correspondence shall be directed to:
FOR COUNTY:
Derek V. Howard, Esq.
Assistant County Attorney
1111 12a' Street, Suite 408
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Key West FL 33040
FOR CONSULTANT:
Dirk M. Smits, Esq.
Vernis&Bowling of the Florida Keys,PA
81990 Overseas Highway
Islamorada, FL 33036
SECTION 28. ADJUDICATION OF DISPUTES OR DISAGREEMENTS
COUNTY and CONSULTANT agree that all disputes and disagreements shall be attempted to be
resolved by meet-and-confer sessions between representatives of each of the parties. If the issue
or issues are still not resolved to the satisfaction of the parties,then any party shall have the right
to seek such relief or remedy as may be provided by this Agreement or by Florida law. COUNTY
and CONSULTANT specifically agree that no party to this Agreement shall be required to enter
into any arbitration proceedings related to this Agreement.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the day and date
first written above.
MONROE COUNTY
Robert B. Oig€tallys€gnedbyRobertR.5hMinger
pit:cn=Robert 6.Shil11nger,a=Monroe County 12/1/2020
fY E E� : -BOCC.ou=Monroe County Attorney.
S h i l(�E Ig e r €1
fmai€=shiElinger•bob@rnanreeeaunty-fl.gov,
By: c�1 5
ate:202032At 17M12-0SW
Robert B. Shillinger Date
Monroe County Attorney
VERNIS & BOWLING OF THE FLORIDA ;
KEYS,P.A. ("CONSULTANT")
Witness as to CONSULTANT M. SM—IT S
Corporate Officer
81990 overseas Highway
Islamorada FL 33036
Date:
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