Item I4 BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: October 16, 2013 Division: Growth Management
Bulk Item: Yes ® No ❑ Department: Building
Staff Contact Person: Jerry Smith, Building Official Phone: x2521
Odalys Mayan, Licensing Coordinator x2583
AGENDA ITEM WORDING:
Approval of a Professional Services Contract with Thomas D. Wright to serve as legal counsel for the
Contractors' Examining Board.
ITEM BACKGROUND:
Monroe County 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 violation of Chapter 6. Mr.
Tom Wright has served in the capacity of legal counsel for the CEB since August, 2009 and his current
contract expires on October 1, 2013. He has agreed to renew the contract at the same terms and
conditions for an additional three year term. The contract provides for a set fee for hearings of$1,500,
and an hourly rate of$150.00 for a second day of hearings and additional services with an annual cap of
$25,000.00. This item is included in the approved budget for FY2014.
PREVIOUS RELEVANT BOCC ACTION:
BOCC approved previous contract with Mr. Thomas Wright on 8/19/09.
BOCC approved a first amendment to the contract on 4/20/11.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval
TOTAL COST: $1,500 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:
COST TO COUNTY: $ Same as total cost SOURCE OF FUNDS: 180-52502-530318
REVENUE PRODUCING: Yes ❑ No ® AMOUNT PER MONTH _ Year
APPROVED BY: County Attorney: OMB/Purchasing: V Risk Management: 2"'
DOCUMENTATION: Included: C Not Required: ❑
DISPOSITION: AGENDA ITEM#:
Revised 7/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Thomas Wright, Esq. Contract#
Effective Date: 10/17/13
Expiration Date: 10/17/16
Contract Purpose/Description:
Legal counsel for the Contractors'Examining Board CEB)
Contract Manager: J. Smith ° x2521 Building/ 11
(Name) (Ext.) (Department/Stop#)
for BOCC meeting on 10/16/13 Agenda Deadline: 10/1/13
CONTRACT COSTS
Total Dollar Value of Contract: $ NTE Current Year Portion: $ NTE
$75,000 $25,000
Budgeted? Yes® No ❑ Account Codes: 180-52502-530318- -
Grant: $ - - - -
County Match: $ N/A - - - -
ADDITIONAL COSTS
Estimated Ongoing Costs: $ /yr For:
(Not included in dollar value above) (eg.maintenance,utilities,janitorial,salaries,etc.)
CONTRACT REVIEW
Changes Date Out
Date In Needed Reviewer
Division Director Yes[:]No[:] A el
')Risk Management , = � r ! Yes❑No1a 4 ... ,
O.M.B./Purc acing Yes❑NoEd 0 AA-)/l 0i 0 C1 174 L13
f o
County Attorney 13 Yes❑No .ea /y
Comments:
OMB Form Revised 2/27/01 MCP#2
PROFESSIONAL SERVICES CONTRACT
THIS CONTRACT is made and entered into this 17th day of October,2013,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 D.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
questions as may arise.
A. 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
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B. Draft rules and procedures for the CEB in consultation with the Director of
Growth Management and the County Attorney; and
C. Amend Monroe County Code Section 6-270 to clarify the language regarding
repeat violations and amend any related statutes to eliminate any contradictions; and
D. Amend Section 6-56 to clarify the duties,responsibilities,and membership of the
Construction Board of Adjustment and Appeals;
E. 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
F. 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 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.
3. Compensation.The COUNTY shall pay the ATTORNEY at a rate of One Thousand Five
Hundred Dollars($1,500.00)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 ($150.00)per hour for additional time.
In addition to the compensation for hearings,when the Attorney is requested to perform other
responsibilities as set forth in this agreement,the Attorney shall be paid at the rate of One Hundred Fifty
Dollars($150.00)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
($25,000.00)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.
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 requirement
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 Statue Chapter 218,
Paragraph VII.
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
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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 1,2013 and terminates four
(4)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 thirty(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 County Attorney
2798 Overseas Highway, Ste.400 1111 12`h Street, Suite 408
Marathon,FL 33050 Key West,FL 33040
OR 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 appellate attorney fees, if necessary. This Agreement shall be governed by and construed in
accordance with the 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
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280.017,F.S.,for CATEGORY TWO for a period of thirty six(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.
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
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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(4)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.
25. Compliance with Law. In carrying out ATIORNEY'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.
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26. Licensing. ATIORNEY warrants that ATIORNEY 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 benefit 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 reasonably
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,ATIORNEY shall furnish
COUNTY Certificates of Insurance indicating the minimum professional liability coverage for
ATTORNEY.ATIORNEY 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 written above.
Board of County Commissioners
Of Monroe County
Attest: By:
Amy Heavlin,Clerk George Neugent,Mayor
By:
Deputy Clerk
Thomas Wright:
Signature
MONROE P COUNTY TY ATTORNEY
TO FORM:
SVE ,.,
AS8IS V WILUAMS
Date OUNTY ATTORNEY
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