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Item P13 * REVISED BACK-UP* BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 9/21/12- MAR Department County Attorney Bulk Item: Yes X No Staff/Contact Person: Bob Shillinger x3470 AGENDA ITEM WORDING: Approval of agreement with David Kirwan to serve as hearing officer in the hearings for BOCC employees named in the Grand Jury report on the iPhone/iPad investigation. ITEM BACKGROUND: On 9/10/12, the BOCC held a special meeting to discuss the Monroe County Grand Jury Report detailing their findings ;and ' recommendations regarding their iPhone/iPad investigation involving County staff and County property. Following discussion, the Board authorized entering into an agreement with David Kirwan to serve as the hearing officer in the disciplinary hearings for the BOCC employees named in the Grand Jury Report in lieu of the County Administrator, who is the recognized disciplinary authority but was also named in the Grand Jury Report. The Board also voted to retain retired Sheriff Rick Roth to serve as Mr. Kirwan's Investigator under the agreement. While the contract is being entered into between the County,and Mr. Kirwan, the Administrator has agreed to cover the costs associated with this agreement. It is contemplated that the Administrator will reimburse the County for all costs associated with this agreement. PREVIOUS RELEVANT BOCC ACTION: 9/10/12 ;BOCC voted to retain David Kirwan as hearing officer for BOCC employees named in the Grand Jury Report in lieu of the County Administrator and that the County Administrator would pay for the costs of these services CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval Costs to be Borne by the County TOTAL COST: Administrator NOT County INDIRECT COST: N/A BUDGETED: Yes N/A No DIFF'F'ERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes_ No X AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management - DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM## P;13 Revised 7/09 *Revised Backup 9%14/12 * - Now includes the Proposed-Agreement AGREEMENT THIS AGREEMENT ("Agreement") is entered into on September 21, 2012, by and between Monroe County, Florida, acting through its Board of County Commissioners ("Board" or "BOCC"), a political subdivision of the State of Florida, whose main business address is 1100 Simonton Street, Key West, Florida 33040; David P. Kirwan, Specially Appointed Temporary Hearing Officer ("Hearing Officer" or "Kirwan" as appropriate), whose present address is 5800 Overseas Highway, Unit 4, Marathon, Florida 33050; and retired Sheriff Richard Roth ("Roth or Investigator"). WHEREAS, pursuant to Chapter 125, Part III, Monroe County employs a County Administrator; and WHEREAS, on April 16, 2008, the BOCC hired Roman Gastesi to serve as its County Administrator, a position which he continues to serve in today; and WHEREAS, F.S. 125.74, Monroe County Code section 2-58, and the Monroe County Personnel Policies and Procedures Manual make the County Administrator responsible for discipline of employees; and WHEREAS, the County Administrator is unable to discharge his duties outlined in Florida Statutes Section 125.74(1),,subsections (k) and (1), and Chapter 9 of the Monroe County Personnel Policies and Procedures Manual with respect to imposing discipline on subordinate employees arising out of the investigation into the purchase and misappropriation of County- purchased iPhones and iPads by the former Senior Administrator of the County's Technical Services Department ("iPhone Matter"); and WHEREAS, the BOCC has determined that it is in the best interests of the County, its employees, and the public to bring in an outside party to serve as the Hearing Officer for the limited purpose of considering and imposing discipline, if appropriate, on County employees for their conduct in the iPhone Matter; and WHEREAS, the responsibilities of the Hearing Officer shall only be provided in order to effect a disciplinary process stemming from the Spring'2012 Grand Jury Report, and no other responsibilities of the County Administrator are to be assumed; WHEREAS, the BOCC and Kirwan have agreed that an investigator could be of assistance to the Hearing Officer to assist with the process; and WHEREAS, the retired Sheriff of Monroe County 'Richard Roth has agreed to assist Kirwan as his investigator and Kirwan has agreed to Roth's assistance; and WHEREAS, negotiations between Monroe County, Kirwan, and Roth have resulted in this mutually acceptable Agreement; 1 NOW THEREFORE, in consideration of the covenants and promises contained herein, the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. David P. Kirwan is hereby retained as an independent contractor by the BOCC to serve as the Hearing Officer for the limited purpose of considering and imposing discipline, if appropriate, on County employees who fall under the jurisdiction of the County Administrator of Monroe County, Florida, arising out of their conduct in the iPhone Matter. In this regard, the parties contemplate that the scope of services shall include all actions that would customarily be taken by the County Administrator under Chapter 9 of the Personnel Policies and Procedures Manual if he were acting as the hearing officer, including but not limited to: review of the relevant documents related to the iPhone Matter; preparation of notices to County employees outlining alleged violations of Monroe County personnel policies; acting as hearing officer for pre-determination hearings; and preparation of outcome letters following the pre-determination hearings. The Hearing Officer will coordinate his efforts with retired Monroe County Sheriff Richard Roth, who has agreed to assist Kirwan with his duties under this agreement as his Investigator. Roth shall also be considered to be an independent contractor of both Kirwan and the BOCC. The scope of services may also include appearances in front of the BOCC. While no express time limit is set in this Agreement for completion of services, it is the desire of the BOCC that Kirwan and Roth begin to discharge the duties described in this Agreement immediately upon execution of this Agreement and that the disciplinary process be completed as soon as possible, while taking into consideration the participants' rights to due process. 2. DISCLOSURE OF FINANCIAL INTERESTS. Due to the very limited extent of engagement, it is not intended that this contract result in Kirwan or Roth being deemed a "local officer"as provided in Section 112.3145, Florida Statutes. 3. INDEPENDENT CONTRACTOR. The Hearing Officer and his Investigator will be considered as independent contractors of the BOCC, not employees. Neither Kirwan nor Roth shall be subject to the County's Personnel Policies and Procedures Manual nor shall either be entitled to any benefits or leave. They will set their own hours as appropriate. 4. DUTIES a. HEARING OFFICER. During the time period covered by this Agreement, the Hearing Officer shall perform only those duties outlined in paragraph (1), above, which the County Administrator would have been a position to perform pursuant to Section 125.74(1)(k)&(1), Florida Statutes, had the County Administrator's involvement in the iPhone Matter not necessitated the hiring of the Hearing Officer. In performing said duties, the Hearing Officer shall have all authority conferred on the County Administrator by Section 125.75(1)(k) & (1), Florida Statutes, as well as the Monroe County Personnel Policies and Procedures Manual. b. INVESTIGATOR. Sheriff Roth will serve as the Hearing Officer's Investigator. In that capacity,- Sheriff Roth- will assist the Hearing Officer in conducting- any interviews and preparing reports and documents that might be necessary. All 2 expenses for which Sheriff Roth seeks reimbursement shall be submitted through Kirwan's office. 5. POST-CONTRACT RESTRICTIONS. Nothing in this Agreement shall be deemed to impose any restrictions on the Hearing Officer and/or the Investigator with respect to their ability to appear before the Commission on behalf of others once they completes the terms of service of this Agreement. 6. TERMINATION OF AGREEMENT. This Agreement may be terminated prior to completion of the scope of services by either party with five days written notice, in writing, served by personal service. Notice to the Hearing Officer or Investigator shall be served on the address listed above for Kirwan. Notice to the BOCC shall be served on Monroe County Attorney's Office, 1111 12`h St., Suite 408, Key West, FL 33040. 7. COMPENSATION. aring*Offiter�shalllbez paid at an hourly rate of two hundred fifty dollarss(V40:110)per hours for the scope of services outlined in paragraph (1), which shall include research; preparation of hearing notices; hearings; travel time; review of personnel files; and preparation of outcome letters. kinvesti•gator:ahall-be--paid,,at the hourly rate of fifty dollarst(}$S.0 ;_0)- p.er heur for investigation incident to the scope of services outlined in paragraph (1) above. The Hearing Officer and Investigator shall be paid upon presentation to the Clerk of an invoice showing hours spent by day, with sufficient detail to be able to allow the County to identify the specific work that was performed. 8. TRAVEL REIMBURSEMENT. In addition to the compensation outlined in paragraph (7) above, the BOCC agrees to reimburse Hearing Officer and Investigator for the costs of mileage, meals, other expenses and lodging incurred by them that may be necessary, required, or appropriate in fulfilling their duties and responsibilities under this Agreement pursuant to rates set forth in the Monroe County Code. Said claim for travel reimbursement will be submitted on a form supplied by Monroe County, with copies of invoices for meals, lodging,parking and other items attached. 9. INDEMNIFICATION AND COOPERATION. A. Indemnification. The BOCC agrees to defend, hold harmless, and indemnify the Hearing Officer and Investigator against any tort, professional liability, or other legal demand, claim, or action related directly or indirectly to the Hearing Officer's and/or Investigator's actions under this Agreement. B. Cooperation. In the event of actual or threatened litigation and/or administrative proceedings involving the BOCC or the County which arises out of an action or actions which occurred, or are alleged to have occurred, while Kirwan and Roth were acting under the terms of this Agreement, Kirwan and Roth agree to cooperate with the BOCC and its counsel in defending and resolving the litigation or proceeding. In such regard, the BOCC agrees to pay Kirwan's and Roth's reasonable travel and subsistence expenses incurred in cooperating with the BOCC and its counsel, including preparation for and actual discovery, settlement, and trial and hearing of such matters. 3 r' , C. The Hearing Officer and Investigator agree that, unless required by law, they will not cooperate with or assist any party, person, or entity who has, had, or may have, or asserts that he, she or it has or may have any claim of any nature against the BOCC or the County, its agents, officers, or employees, unless the BOCC or its authorized agent expressly consents in writing to waive this provision of this Agreement. D. The Hearing Officer and Investigator will not disclose to any person, party, or entity any confidential, proprietary, time-sensitive, or;non-public information relating to the BOCC, the County, and its operations unless required by law to do so. 10. GOVERNING LAW; ATTORNEY'S FEES AND COSTS; VENUE. This Agreement is made in the State of Florida and will be governed by Florida law. The prevailing party in any litigation, arbitration, or mediation relating to this Agreement will be entitled to recover its reasonable expenses and attorneys' fees from the other party for all matters, including but not limited to, appeals. Monroe County, Florida will be the proper venue for any litigation involving this Agreement. 11. FORM OF AGREEMENT. This Agreement may be signed in more than one counterpart, each of which shall constitute an original of this Agreement. Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement. Wherever used herein, the singular will include the plural, the plural will include the singular, and pronouns will be read as masculine, feminine, or neuter as the context requires. 12. OTHER TERMS AND CONDITIONS. A. If any provision, term, or portion of this Agreement shall be held to be unconstitutional, illegal, invalid, or enforceable by a court of competent jurisdiction, the remaining terms, conditions, and portions shall remain in full force and effect as if originally agreed to without the term, condition, or portion that has been determined to be unconstitutional, illegal, invalid or unenforceable., B. The waiver by any part of a breach or violation of any term or provision of this Agreement by any other party shall not operate or be construed as a waiver of any subsequent breach or violation by the other party. C. This Agreement incorporates and 'supersedes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein. The text herein constitutes the entire agreement between the BOCC and the Hearing Officer, and this Agreement cannot be amended except by a written document mutually agreed to and executed with the same formalities as this Agreement. D. This Agreement is personal to Kirwan and Roth and shall not be assigned or subcontracted without the prior express written consent of the BOCC. 4 Jr 4 ,. E. All records generated in the course of performance of this Agreement shall be treated as public records in accordance with Florida public records law. All such records shall be maintained for a period of no less than five (5) calendar years after conclusion of the services. All such records may be given to. the County at the conclusion of these services, in which case the responsibility for 'record retention and compliance with Florida public record law as to these records is transferred to the County. WHEREFORE, the parties hereto have signed and sealed this Agreement on the date first above written. (Seal) BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA ATTEST: Danny L.Kolhage, Clerk By: By: Deputy Clerk Mayor WITNESS: (Signature) DAVID P. KIRWAN (Print name) • (Signature) RICHARD ROTH (Print name) MONROE COUNTY ATTORNEYA I`gvNTHIA L. HALL ASSISTANT COUNTY ATTORNEY Date ___ Imo}" 64.O/ 5 * ADD-ON * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 21,2012 Division:County Attorney Bulk Item: Yes XX No ` Staff Contact Person:Pedro Mercado AGENDA ITEM WORDING: Approval of waiver of SHIP mortgage loan breach. ITEM BACKGROUND: On January 19,2005 Ms. Stacy Charlton purchased a residence at 587 116t street,Marathon. She financed the purchase by obtaining a primary mortgage with the Bayrock Mortgage Corp and by obtaining a secondary mortgage through the County's SHIP program.On January 26,2007 Ms. Chariton refinanced her primary mortgage with Countrywide Home Loans,Inc. in order to finance some home improvements. Unfortunately,neither Countywide nor Ms.Charlton informed or sought approval of the refinancing from the County.The result is that the refinancing triggered the acceleration clause in the SHIP mortgage.The SHIP mortgage contains a provision that states that if the First Mortgage is satisfied or refinanced than all sums secured by the SHIP mortgage shall immediately become due and payable.The County first learned of the breach of the SHIP mortgage when Ms. Charlton contacted the MCHA in order to request subordination of the SHIP mortgage in order to obtain HARP re-financing.After reviewing all of the pertinent documents Ms. Charlton was informed that the MCHA did not have the authority to subordinate a mortgage that was not in good standing.Ms. Chariton then contacted the CAY directly and informed me that the reason for the original refinancing was for purposes for effecting home improvements at the residence covered by the SHIP mortgage.Ms.Chariton has also provided a list of the improvements(attached).Ms. Charlton continues to live in the residence and is requesting that the Board waive the breach of the SHIP mortgage which would then enable her to go back to the MCHA and seek a subordination of the mortgage. PREVIOUS RELEVANT BOCC ACTION: None. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: N/A BUDGETED: Yes XX No COST TO COUNTY:N/A SOURCE OF FUND: REVENUE PRODUCING: Yes XX No AMOUNT PER MONTH APPROVED BY: County Atty P.na .OMB/Purchasing Risk Management DOCUMENTATION: Included ` Not Required DISPOSITION: AGENDA ITEM#ADn,o_ruP-151 HOME IMPROVEMENTS 587 116th STREET MARATHON Roof Steves Roofing 8220.00 Ceiling Repair Leak from roof Sunshine 750.00 Generator Home Depot . 1163.90 Fence Key Largo Fence 984.10 Gravel rock Discount R&S 443.13 Remove 3 Large trees John Key Largo 1200.00 and haul away Rear Deck Trex &delivery Home Depot 3236.76 Special deck screws Home Depot 142.60 Demo &Haul Labor 600.00 2 X 6 bracing Installation , 1900.00 Bathroom Toilet Home Depot Vanity with Sink Home Depot Faucet Home Depot 1853.78 Medicine cabinet Home Depot light bar for vanity Home Depot Showerhead Home Depot Shower fixtures Home Depot Shower rod Home Depot Demo old bathroom & Labor Tomas Cantieelo 250.00 haul Install new Labor Tomas Cantieelo 500.00 Plumber set toilet&sink Jorge Arancibibo 576.00 /shower fixtures 365.10 Electrician New Gfi's . David Gato 675.00 Light bar&rewire hot water heater Living Room 2 lighting fixtures Home Depot 173.33 Replace a/c wall unit 486.94 Labor Bill Walsh 200.00 Kitchen Faucet Home Depot 190.96 Plumber Faucet&repair leak 229.84 _ Bedroom Sliding Closet Doors Home Depot 177.79 New a/c/wall unit 339.40 Labor Bill Walsh 150.00 Interior Doors 2 B/R &1 Bath Home Depot 172.95 hardware &frames 141.38 Labor Tomas Cantieelo 225.00 Windows 5 large Home Depot 787.98 1 small 155.77 Labor Tomas Cantieelo 1150.00 Paint&nails& handles 137.65 Backdoor Frame&hardware Home Depot 383.10 Concrete repair&hang labor 225.00 • • i HOME IMPROVEMENTS 587 116th STREET MARATHON Paint Exterior T Home Depot ; 787.99 Paint house&eaves Jose Mesa 1500.00 Remove old gutters 200.00 Paint Interior Home Depot 380.89 Paint brushes etc 121.2 _ Labor we helped Mynor Gonzales 600.00 Retractable Awning Materials 1700.38 Installation 300.00 Total $33,777.92 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 9/21/12 - MAR Department County Attorney Bulk Item: Yes X No Staff/Contact Person: Bob Shillinger x3470 AGENDA ITEM WORDING: Approval of agreement with David Kirwan to serve as hearing officer in the hearings for BOCC employees named in the Grand Jury report on the iPhone/iPad investigation, ITEM BACKGROUND: On 9/10/12, the BOCC held a special meeting to discuss the Monroe County Grand Jury Report detailing their findings and recommendations regarding their iPhone/iPad investigation involving County staff and County property. Following discussion, the Board authorized entering into an agreement with David Kirwan to serve as the hearing officer in the disciplinary hearings for the BOCC employees named in the Grand Jury Report in lieu of the County Administrator, who is the recognized disciplinary authority but was also named in the Grand Jury Report. The Board also voted to retain retired Sheriff Rick Roth to serve as Mr. Kirwan's Investigator under the agreement. While the contract is being entered into between the County and Mr. Kirwan, the Administrator has agreed to cover the costs associated with this agreement. It is contemplated that the Administrator will reimburse the County for all costs associated with this agreement. PREVIOUS RELEVANT BOCC ACTION: 9/10/12 BOCC voted to retain David Kirwan as hearing officer for BOCC employees named in the Grand Jury Report in lieu of the County Administrator and that the County Administrator would pay for the costs of these services CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval Costs to be Borne by the County TOTAL COST: Administrator NOT County INDIRECT COST: N/A BUDGETED: Yes N/A No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management. DOCUMENTATION: Included TBP Not Required DISPOSITION: AGENDA ITEM # Revised 7/09 r * REVISED BACK-UP * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 9/21/12 - MAR Department County Attorney Bulk Item: Yes X No Staff/Contact Person: Bob Shillinger x3470 AGENDA ITEM WORDING: Approval of agreement with David Kirwan to serve as hearing officer in the hearings for BOCC employees named in the Grand Jury report on the iPhone/iPad investigation. ITEM BACKGROUND: On 9/10/12, the BOCC held a special meeting to discuss the Monroe County Grand Jury Report detailing their findings and recommendations regarding their iPhone/iPad investigation involving County staff and County property. Following discussion, the Board authorized entering into an agreement with David Kirwan to serve as the hearing officer in the disciplinary hearings for the BOCC employees named in the Grand Jury Report in lieu of the County Administrator, who is the recognized disciplinary authority but was also named in the Grand Jury Report. The Board also voted to retain retired Sheriff Rick Roth to serve as Mr. Kirwan's Investigator under the agreement. While the contract is being entered into between the County and Mr. Kirwan, the Administrator has agreed to cover the costs associated with this agreement. It is contemplated that the Administrator will reimburse the County for all costs associated with this agreement. PREVIOUS RELEVANT BOCC ACTION: 9/10/12 BOCC voted to retain David Kirwan as hearing officer for BOCC employees named in the Grand Jury Report in lieu of the County Administrator and that the County Administrator would pay for the costs of these services CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval Costs to be Borne by the County TOTAL COST: Administrator NOT County INDIRECT COST: N/A BUDGETED: Yes N/A No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year APPROVED BY: County Atty X OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: Revised 7/09 AGENDA ITEM # P-13 Revised Backup 9/14/12 Now includes the Proposed Agreement AGREEMENT THIS AGREEMENT ("Agreement") is entered into on September 21, 2012, by and between Monroe County, Florida, acting through its Board of County Commissioners ("Board" or "BOCC"), a political subdivision of the State of Florida, whose main business address is 1100 Simonton Street, Key West, Florida 33040; David P. Kirwan, Specially Appointed Temporary Hearing Officer ("Hearing Officer" or "Kirwan" as appropriate), whose present address is 5800 Overseas Highway, Unit 4, Marathon, Florida 33050; and retired Sheriff Richard Roth ("Roth or Investigator"). WHEREAS, pursuant to Chapter 125, Part III, Monroe County employs a County Administrator; and WHEREAS, on April 16, 2008, the BOCC hired Roman Gastesi to serve as its County Administrator, a position which he continues to serve in today; and WHEREAS, F.S. 125.74, Monroe County Code section 2-58, and the Monroe County Personnel Policies and Procedures Manual make the County Administrator responsible for discipline of employees; and WHEREAS, the County Administrator is unable to discharge his duties outlined in Florida Statutes Section 125.74(1), subsections (k) and (1), and Chapter 9 of the Monroe County Personnel Policies and Procedures Manual with respect to imposing discipline on subordinate employees arising out of the investigation into the purchase and misappropriation of County - purchased iPhones and iPads by the former Senior Administrator of the County's Technical Services Department ("iPhone Matter"); and WHEREAS, the BOCC has determined that it is in the best interests of the County, its employees, and the public to bring in an outside party to serve as the Hearing Officer for the limited purpose of considering and imposing discipline, if appropriate, on County employees for their conduct in the iPhone Matter; and WHEREAS, the responsibilities of the Hearing Officer shall only be provided in order to effect a disciplinary process stemming from the Spring 2012 Grand Jury Report, and no other responsibilities of the County Administrator are to be assumed; WHEREAS, the BOCC and Kirwan have agreed that an investigator could be of assistance to the Hearing Officer to assist with the process; and WHEREAS, the retired Sheriff of Monroe County Richard Roth has agreed to assist Kirwan as his investigator and Kirwan has agreed to Roth's assistance; and WHEREAS, negotiations between Monroe County, Kirwan, and Roth have resulted in this mutually acceptable Agreement; 1 NOW THEREFORE, in consideration of the covenants and promises contained herein, the PARTIES hereby agree as follows: 1. SCOPE OF SERVICES. David P. Kirwan is hereby retained as an independent contractor by the BOCC to serve as the Hearing Officer for the limited purpose of considering and imposing discipline, if appropriate, on County employees who fall under the jurisdiction of the County Administrator of Monroe County, Florida, arising out of their conduct in the iPhone Matter. In this regard, the parties contemplate that the scope of services shall include all actions that would customarily be taken by the County Administrator under Chapter 9 of the Personnel Policies and Procedures Manual if he were acting as the hearing officer, including but not limited to: review of the relevant documents related to the iPhone Matter; preparation of notices to County employees outlining alleged violations of Monroe County personnel policies; acting as hearing officer for pre -determination hearings; and preparation of outcome letters following the pre -determination hearings. The Hearing Officer will coordinate his efforts with retired Monroe County Sheriff Richard Roth, who has agreed to assist Kirwan with his duties under this agreement as his Investigator. Roth shall also be considered to be an independent contractor of both Kirwan and the BOCC. The scope of services may also include appearances in front of the BOCC. While no express time limit is set in this Agreement for completion of services, it is the desire of the BOCC that Kirwan and Roth begin to discharge the duties described in this Agreement immediately upon execution of this Agreement and that the disciplinary process be completed as soon as possible, while taking into consideration the participants' rights to due process. 2. DISCLOSURE OF FINANCIAL INTERESTS. Due to the very limited extent of engagement, it is not intended that this contract result in Kirwan or Roth being deemed a "local officer" as provided in Section 112.3145, Florida Statutes. 3. INDEPENDENT CONTRACTOR. The Hearing Officer and his Investigator will be considered as independent contractors of the BOCC, not employees. Neither Kirwan nor Roth shall be subject to the County's Personnel Policies and Procedures Manual nor shall either be entitled to any benefits or leave. They will set their own hours as appropriate. 4. DUTIES a. HEARING OFFICER. During the time period covered by this Agreement, the Hearing Officer shall perform only those duties outlined in paragraph (1), above, which the County Administrator would have been a position to perform pursuant to Section 125.74(1)(k)&(1), Florida Statutes, had the County Administrator's involvement in the iPhone Matter not necessitated the hiring of the Hearing Officer. In performing said duties, the Hearing Officer shall have all authority conferred on the County Administrator by Section 125.75(1)(k) & (1), Florida Statutes, as well as the Monroe County Personnel Policies and Procedures Manual. b. INVESTIGATOR. Sheriff Roth will serve as the Hearing Officer's Investigator. In that capacity, Sheriff Roth will assist the Hearing Officer in conducting any interviews and preparing reports and documents that might be necessary. All 2 expenses for which Sheriff Roth seeks reimbursement shall be submitted through Kirwan's office. 5. POST -CONTRACT RESTRICTIONS. Nothing in this Agreement shall be deemed to impose any restrictions on the Hearing Officer and/or the Investigator with respect to their ability to appear before the Commission on behalf of others once they completes the terms of service of this Agreement. 6. TERMINATION OF AGREEMENT. This Agreement may be terminated prior to completion of the scope of services by either party with five days written notice, in writing, served by personal service. Notice to the Hearing Officer or Investigator shall be served on the address listed above for Kirwan. Notice to the BOCC shall be served on Monroe County Attorney's Office, 1111 12`h St., Suite 408, Key West, FL 33040. 7. COMPENSATION. Hearing Officer shall be paid at an hourly rate of two hundred fifty dollars ($250.00) per hour for the scope of services outlined in paragraph (1), which shall include research; preparation of hearing notices; hearings; travel time; review of personnel files; and preparation of outcome letters. Investigator shall be paid at the hourly rate of fifty dollars ($50.00) per hour for investigation incident to the scope of services outlined in paragraph (1) above. The Hearing Officer and Investigator shall be paid upon presentation to the Clerk of an invoice showing hours spent by day, with sufficient detail to be able to allow the County to identify the specific work that was performed. 8. TRAVEL REIMBURSEMENT. In addition to the compensation outlined in paragraph (7) above, the BOCC agrees to reimburse Hearing Officer and Investigator for the costs of mileage, meals, other expenses and lodging incurred by them that may be necessary, required, or appropriate in fulfilling their duties and responsibilities under this Agreement pursuant to rates set forth in the Monroe County Code. Said claim for travel reimbursement will be submitted on a form supplied by Monroe County, with copies of invoices for meals, lodging, parking and other items attached. 9. INDEMNIFICATION AND COOPERATION. A. Indemnification. The BOCC agrees to defend, hold harmless, and indemnify the Hearing Officer and Investigator against any tort, professional liability, or other legal demand, claim, or action related directly or indirectly to the Hearing Officer's and/or Investigator's actions under this Agreement. B. Cooperation. In the event of actual or threatened litigation and/or administrative proceedings involving the BOCC or the County which arises out of an action or actions which occurred, or are alleged to have occurred, while Kirwan and Roth were acting under the terms of this Agreement, Kirwan and Roth agree to cooperate with the BOCC and its counsel in defending and resolving the litigation or proceeding. In such regard, the BOCC agrees to pay Kirwan's and Roth's reasonable travel and subsistence expenses incurred in cooperating with the BOCC and its counsel, including preparation for and actual discovery, settlement, and trial and hearing of such matters. 3 C. The Hearing Officer and Investigator agree that, unless required by law, they will not cooperate with or assist any party, person, or entity who has, had, or may have, or asserts that he, she or it has or may have any claim of any nature against the BOCC or the County, its agents, officers, or employees, unless the BOCC or its authorized agent expressly consents in writing to waive this provision of this Agreement. D. The Hearing Officer and Investigator will not disclose to any person, party, or entity any confidential, proprietary, time -sensitive, or non-public information relating to the BOCC, the County, and its operations unless required by law to do so. 10. GOVERNING LAW; ATTORNEY'S FEES AND COSTS; VENUE. This Agreement is made in the State of Florida and will be governed by Florida law. The prevailing party in any litigation, arbitration, or mediation relating to this Agreement will be entitled to recover its reasonable expenses and attorneys' fees from the other party for all matters, including but not limited to, appeals. Monroe County, Florida will be the proper venue for any litigation involving this Agreement. 11. FORM OF AGREEMENT. This Agreement may be signed in more than one counterpart, each of which shall constitute an original of this Agreement. Paragraph headings are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement. Wherever used herein, the singular will include the plural, the plural will include the singular, and pronouns will be read as masculine, feminine, or neuter as the context requires. 12. OTHER TERMS AND CONDITIONS. A. If any provision, term, or portion of this Agreement shall be held to be unconstitutional, illegal, invalid, or enforceable by a court of competent jurisdiction, the remaining terms, conditions, and portions shall remain in full force and effect as if originally agreed to without the term, condition, or portion that has been determined to be unconstitutional, illegal, invalid or unenforceable. B. The waiver by any part of a breach or violation of any term or provision of this Agreement by any other party shall not operate or be construed as a waiver of any subsequent breach or violation by the other party. C. This Agreement incorporates and supersedes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein. The text herein constitutes the entire agreement between the BOCC and the Hearing Officer, and this Agreement cannot be amended except by a written document mutually agreed to and executed with the same formalities as this Agreement. D. This Agreement is personal to Kirwan and Roth and shall not be assigned or subcontracted without the prior express written consent of the BOCC. 4 r • • E. All records generated in the course of performance of this Agreement shall be treated as public records in accordance with Florida public records law. All such records shall be maintained for a period of no less than five (5) calendar years after conclusion of the services. All such records may be given to the County at the conclusion of these services, in which case the responsibility for record retention and compliance with Florida public record law as to these records is transferred to the County. WHEREFORE, the parties hereto have signed and sealed this Agreement on the date first above written. (Seal) ATTEST: Danny L. Kolhage, Clerk By: Deputy Clerk WITNESS: (Signature) (Print name) (Signature) (Print name) BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: 6 Mayor DAVID P. KIRWAN RICHARD ROTH MONROE COUNTY ATTORNEY AP/9ROVE AS TOYO NTHIA L. k' ASSISTA T COUNTY A TORNEY Date____ _ 7 - U