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Item N03BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: August 19, 2009 Division: Co1mty Attorney Bulk Item: Yes , X No Staff Contact Person/Phone #: Suzanne Hutton, #3470 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 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 violation of Chapter 6. The CEB traditionally provides legal counsel for their quasi-judicial hearings but County staff has had to provide the full extent of prosecution of cases without legal counsel to assist in presenting their cases. County staff feels it is in the best interest of the residents and property owners in Monroe County to provide an attorney for both prosecutorial purposes and advise to the CEB but there is a conflict of interest for members of the County Attorney's Office to serve in both capacities. This contract will provide an attorney with experience in handling administrative hearings to serve as legal counsel to the CEB and County Attorney staff will continue to act as the prosecutor in Code Enforcement cases. PREVIOUS RELEVANT BOCC ACTION: NIA CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: $1 500 per CEB meeting/ if meeting is continued to a 2nd day: additional $150 per hour 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 ## 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 revolted 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: I. 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 limiter[ 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 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 tune. 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 Conrmissioners. 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 perfonned --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 patties. G. 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 arnount 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. Tenmination 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 2798 Overseas .I-lighway, Ste. 400 Marathon, FL. 33050 FOR ATTORNEY: 9711 Overseas Highway Marathon, Fl. 33050 and County Attorney 1 I 1 1 12"' Street, Suite 408 Key West, FL 33040 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 r=n W �nnn 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 udder 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 tern 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 tern, covenant, condition or provision of this Agreement shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terns, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining tern, 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. Zil..1-1- rrn TJ lnnn ? 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 minimurn 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 govcrnment 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 sarne 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. r,�R u )nno 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 udder 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 tern of the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and date first written above. Attest: Danny L. Kohlage, Clerk By Deputy Clerk Board of County Commissioners Of Monroe County Im George Neugent, Mayor ignature �� ; j�WrYAYTOM TTON �s:Y rrn rr 11nnn WESTPIORTINSURANCE CORPORATION PROFESSIONALS ADVANTAGE FOR LAWYERS® LAWYERS PROFESSIONAL LIABILITY INSURANCE Westport Insurance Corporation (A Stock Insurance Company, hereinafter called the "Company) Policy Number: WLA3 0 8 0 0 4 012 7 0 4 Renewal of Policy: WLA3 0 8 0 0 4 012 7 0 3 DECLARATIONS NOTICE: THIS IS A CLAIMS -MADE AND REPORTED POLICY. EXCEPT AS MAY BE OTHERWLSE PROVIDED HEREIN, THIS COVERAGE IS LIMITED TO LIABILITY FOR ONLY THOSE CLAIMS WHICH ARE FIRST MADE AGAINST AN INSURED AND REPORTED TO THE COMPANY WHILE THE POLICY IS IN FORCE. A. Named Insured: LAW OFFICES OF THOMAS D. WRIGHT, CHARTERED Address: 9711 OVERSEAS HIGHWAY MARATHON, FL 33050 B. Policy Period: From 12:01 A.M. 0 4 -11_ - 2 0 0 9 To 12:01 A.M. 0 4 -11- 2 010 Local time at the address stated herein C. Limits of Liability: $ 1,000,000 Per Claim $ 2, 0 0 0, 0 0 0 Aggregate for the Policy Period D. Deductible: $ 5, 000 Per Claim Claims Expenses are included within the Limit of Liability and Deductible. E. Premium: $ 4,767.00 Florida Hurricane Surcharge: $ 47.67 Total Premium + Surcharge: $ 4,814.67 F. Retroactive Date: 4 / 11 / 19 9 7 The Declarations and the forms listed on the attached Schedule of Form(s) and Endorsement(s), together with the completed and signed application and supplements, shall constitute the contract between the NAMED INSURED and the Company. WESTPORT INSURANCE CORPORATION Countersignature Date Authorized Representative SP 3 383 10206 Page 1 of 1 Copyright 02006 Westport Insurance Corporation. All rights reserved. The reproduction or utilization of this work in any form whether byany electronic, mechanical, or other means, nowknown or hereafter invented, including xerography, photocopying, and recording, and information storage and retrieval system is forbidden without the written permission of Westport Insurance Corporation. Insured Copy ly WESTPORT INSURANCE CORPORATION SCHEDULE OF FORM(S) AND ENDORSEMENT(S) The Declarations and the forms listed below and attached hereto, together with the completed and signed application and supplements, shall constitute the contract between the NAMED INSURED and the Company, FORMS AND ENDORSEMENTS WIC FL -NOTICE SP 3 383 I SP 3 689 SP 2 277 SP 3 389 SP 3 400 SP 3 402 SP 3 897 SP 3 393 SP 3 689 0206 10-02 FLORIDA NOTICE TO POLICYHOLDERS 02-06 DECLARATIONS 02-06 SCHEDULE OF FORMS AND ENDORSEMENTS 09-06 SIGNATURE PAGE 02-06 LIMITATION OF INDIVIDUAL PRIOR ACTS 02-06 SCH OF ADD`L INS-ABSTRACT/TITLE AGENCIES 02-06 SPECIFIED BUSINESS EXCLUSION 04-07 AMEND ENDT -- FL - TERMINATION ENDT 02-08 PROFESSIONAL ADVANTAGE FOR LAWYERS Copyright©2006 Westport Insurance Corporation. All rights reserved. The reproduction or utilization of this work in any form whether by any electronic, mechanical, or other means, now known or hereafter invented, including xerography, photocopying, and recording, and information storage and retrieval system is forbidden without the written permission of Westport Insurance Corporation. Insured Copy WESTPORT INSURANCE CORPORATION POLICY NUMBER: WLA308004012704 THE ATTACHED COMMON POLICY CONDITIONS, COVERAGE PART DECLARATIONS, COVERAGE FORM(S) AND OTHER FORMS AND ENDORSEMENTS, IF ANY, FORM THE ATTACHED POLICY. IN WITNESS WHEREOF, Westport Insurance Corporation has caused this policy to be executed and attested, and, if required by state law, this policy shall not be valid unless countersigned by our duly authorized representative. WESTPORT INSURANCE CORPORATION je President Secretary SP 2 277 0906 kiwred copy WESTPORT INSURANCE CORPORATION PROFESSIONALS ADVANTAGE FOR LAWYERS' THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. LIMITATION OF INDIVIDUAL PRIOR ACTS Section Ill. EXCLUSIONS is amended to include the following exclusion: This POLICY does not apply to any CLAIM based upon, arising out of or attributable to, or directly or indirectly resulting from an act, error, omission, circumstance or PERSONAL INJURY committed by the following INSURED prior to the corresponding RETROACTIVE DATE(S): Insured: THOMAS D. WRIGHT Retroactive Date: 04/11/1997 All other terms and conditions of this policy shall remain unchanged. This endorsement forms a part of the policy to which attached, effective on the inception date of the policy unless otherwise stated herein. (The information below is required only when this endorsement is issued subsequent to the preparation of the policy.) Endorsement Effective 0 4 -11- 0 9 Policy No. WLA308004012704 Namedinsur,ed LAW OFFICES OF THOMAS D_ WRIGHT, CHARTERED r Authorized Representative WESTPORT INSURANCE CORPORATION V• Awl 194t President 7r Secretary SP 3 389 0206 Copyright 0 1998 Westport Insurance Corporation. All rights reserved. The reprod action or utilization of this work in any form whether by any electronic, mechanical, or other means, now known or hereafter invented, includingxerography, photocopying, and recording, and information storage and retrieval system is forbidden without the written permission of Westport Insurance Corporation. Insured Copy WESTP►ORT INSURANCE CORPORATION PROFE&IONA LS A DVANTA G E FO R LAWYERS' THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SCHEDULE OF ADDITIONAL INSURED ABSTRACT/TITLE AGE, NCIES I. Section II. DEFINrrIONS E. "INSURED" is amended to include the following; E. The entity(ies) listed below are additional INSURED under this POLICY, but only as respects PROFESSIONAL SERVICES rendered or that should have been rendered by a lawyer listed in the Application who is a partner, officer, director, stockholder, shareholder, employee or "of counsel" of the NAMED INSURED while acting in the capacity as a Title Insurance Agent or Title Abstractor on behalf of the said entity(ies) listed below: FLORIDA KEYS TITLE COMPANY U. Section III. EXCLUSIONS is amended to include the following exclusions: any defects in title of which any INSURED had knowledge at the date of issuance of title insurance; any intentional breach of underwriting authority by any INSURED in the INSUREDS capacity as a title insurance agent; any conversion, misappropriation or improper commingling of funds, including but not limited to escrow activities and insurance placement; SP 3 400 0206 Copyright 0 1998 Westport Insurance Corporation. All rights reserved. The reproduction or uti I izationof this work in any form whether by any electronic, mechanical, or other means, now known or hereafter invented, including xerography, photocopying, and recording,and information storage and retrieval system is forbiddenwithoutthe written permission of Westport Insurance Corporation. Insured Copy