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Resolution 221-1987 /- County Attorney RESOLUTION NO. 221-1987 A RESOLUTION AUTHORIZING THE CHAIRMAN OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, TO EXECUTE AN EMPLOYMENT AGREEMENT BY AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AND H. RAY ALLEN, ESQUIRE; APPOINTING H. RAY ALLEN HEARING OFFICER FOR THE DETERMINATION OF VESTED RIGHTS UNDER THE MONROE COUNTY COMPREHENSIVE LAND USE PLAN AND DEVELOPMENT REGULATIONS. WHEREAS, the recently effective Monroe County Comprehensive Land Use Plan and Development Regulations provide for relief if the Land Use Plan or Development Regulations deprive a land owner of significant beneficial use of his or her property and for a determination of development rights which may have vested prior to the effective date of such Plan and Regulations; and WHEREAS, the process for providing for relief or determina- tion requires a hearing officer who must make recommendations on each application to the Board of County Commissioners; and WHEREAS, the hearing officer must be a member of the Florida Bar and experienced in land use law; and WHEREAS, Mr. H. Ray Allen, Esquire, represents himself as professionally competent and capable of performing the services described briefly above, and desires to be employed as a hearing officer; now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, as follows: That the Mayor and Chairman of the Board of County Commis- sioners of Monroe County, Florida, is hereby authorized to execute an employment agreement by and between the Board of County Commissioners of Monroe County, Florida, and H. Ray Allen, Esquire, a copy of same being attached hereto. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the tJ"J. day of 0v..., , A. D., 1987. (SEAL) At tes t: 2:>ANNY 1.. KOLHAGE, Clerk ~,t ~) ,{).~. ~ er BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA /~ airman APPROVED AS TO FORM AND LEGAL SUFFICIENCY. 8Y_~ ~~ cZ Attorney's Office p/' 2 PROFESSIONAL SERVICES CONTRACT THIS CONTRACT, made and entered into this day of , 1987, by and between MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida, hereinafter "COUNTY," and H. RAY ALLEN, Esquire, hereinafter "ATTORNEY," whose address is 618 Whitehead Street, Key West, Florida. WIT N E SSE T H: WHEREAS, the recently effective Monroe County Comprehensive Land Use Plan and Development Regulations provide for relief if the Land Use Plan or Development Regulations deprive a land owner of significant beneficial use of his or her property and for a determination of development rights which may have vested prior to the effective date of such plan and regulations; and WHEREAS, the process for providing such relief or determina- . tion requires a hearing officer who must make recommendations on each application to the Board of County Commissioners; and WHEREAS, the hearing officer must be a member of the Florida Bar and experienced in land use law; and WHEREAS, Mr. H. Ray Allen, Esquire, represents himself as professionally competent and capable of performing the services described briefly above, and in a more detailed fashion herein, desires to be employed as a hearing officer. NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter contained, the County does hereby employ , <<< the Attorney and the Attorney does hereby accept the employment with the covenants and conditions which follow. ... ARTICLE I .-. Scope of Professional Services The Attorney agrees to provide professional services in accord with the following requirements: a) The Attorney shall conduct the hearings required by Chapter 8, Monroe County Development Regulations within the time frames established by that Chapter. The Attorney shall render his recommended order according to the standards of that Chapter except to the extent the Attorney, in his professional judgment, believes such standards are superseded by the laws or consti- tutions of the State of Florida or the United States of America. The Attorney shall also render his recommended order within the time constraints set forth in Chapter 8. The hearings and recommended orders just described shall also, where applicable, be in conformance with Section 4-l07(C). b) The performance of any other hearing, tasks or duty as assigned by the County Commission under Section 4-l07(C) (2) or (5) . c) A notice to proceed under this contract shall consist of the assignment of an application for beneficial use or vested rights to the Attorney by the Board of County Commissioners acting under either Section 8-202(B) (2) or 8-302(B) (2) or as otherwise specifically directed by the Board of County Commis- sioners acting under Section 4-l07(C) (2) or (5), Monroe County Development Regulations. ARTICLE II In consideration for the performance of the services under this contract, the Courity agrees to pay the Attorney $ per hour including all hours necessary to adequately prepare for the hearings described above. Payment shall become due upon the submission of a recommend- ed order by the Attorney to the Board of County Commissioners. For any other hearing assigned by the Board of County Commissioners assigned under Section 4-107(C)(2), Monroe County Development Regulations, payment shall be due and owing upon , , 'I< either the conclusion of the hearing or submission of the recom- mended order, whichever is appropriate. Payment shall be in the ..same time and manner as payment for services in a Chapter 8, A... Monroe County Development Regulations, hearing. In the case of a task or duty performed at the direction of the Board of County Commissioners under Section 4-107(C)(5), Monroe County Development Regulations, payment shall become due and owing upon the submission of a completed work product to the County Commission or their designee(s) or upon completion of the assigned task or duty. Upon the occurrence of either event just described, the Attorney will present an invoice to the County for 2 the payment then due, and payment will be made within 15 days after such invoice has been approved by the Planning Director. The County shall also pay the Attorney's reimbursable expenses incurred in: preparing for and conducting the hearings described in Chapter 8, Monroe County Development Regulations; preparing for an conducting any other hearing as assigned by the County Commissioners under Section 4-l07(C)(2), Monroe County Development Regulations; and in performing any other task or duty assigned by the County Commissioners under Section 4-l07(C)(5), Monroe County Development Regulations. However, such expenses shall only be reimbursable to the extent authorized F.S. 112.061. The Attorney shall present a separate invoice for such expenses incurred in each hearing or in the performance of each task or duty assigned in a form, prescribed by the Planning Director simultaneously with the invoice for professional services and payment shall be made within 15 days after the expense invoice has been approved by the Planning'Director. ARTICLE III Financing The payments described in Article II are specifically contingent on the sufficient availability of funds from any of the following three sources: a) The $1,050,000 Department of Community Affairs assis- tance contract; b) Application fees authorized by Section 4-107(A), Monroe County Development Regulations; and , . i. c) Any other legally available source of funds. ARTICLE IV .. . ~ ,fl. From' the effective date of this contract until the sub- Restrictions on Representation ~ission of the last invoice to the County, the Attorney shall not act as an agent or attorney in any proceedings, application or other matter involving property before any decision making body of the County or County official. For a period of one year following the submission of the last invoice under this contract, the Attorney shall not act as an agent or attorney in any pro- ceeding, application or other matter involving property that was 3 the subject of a proceeding which was pending during the time of this contract. ARTICLE V Indemnification and Insurance (Version 1) The Attorney does hereby consent and agree to indemnify and hold harmless the County, its Mayor, the Board of County Commis- sioners, appointed Boards and Commissions, Officers, and Employ- ees, individually and collectively, from all fines, suits, claims demands, actions, costs, obligations, attorneys fees, or liabil- ity of any kind arising out of the sole negligent actions of the Attorney and does hereby agree to and does assume all the risk in the operation of its business hereunder and shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of its performance of this contract. The amount and type of insurance coverage requirements set forth hereunder shall in no way be construed as limiting the scope of indemnity set forth in this paragraph. The County does hereby covenant and agree to indemnify and save harmless the Attorney from any fines', suits, claims, demands, actions, costs, obligations, attorney fees, or liability of any kind resulting from a negligent act by any of the County's employees. Further, the Attorney agrees to defend and pay all legal costs attendant to acts attributable to any negligent acts of the Attorney. For the purposes of this contract "sole negligent actions" include the preparation of a recommended order, adopted without substantial modification by the County Commission, which order $ results in any claim, fine, demand, action, costs, obligations, attorneys' fees or liability of any kind arising under 42 J].S.C.A.; .1983 or any other of the various federal civil rights .... statutes. The Attorney shall procure and maintain a standard Compre- hensive Liability Insurance Policy in an amount and of a type acceptable to the Planning Director. The County shall be named on the Comprehensive Insurance Policy as an additionally named insured and shown on the insurance certificate provided to the County by the Attorney. The Attorney shall also procure and maintain a workman's compensation policy and hold the County 4 harmless from all claims arising thereunder. Nothing herein shall be construed to limit the scope of indemnity set forth above. The certificates shall provide that if the policies are cancelled by the insurance company or Attorney during the term of the Contract, ten (10) days written notice prior to the effective date of such cancellation will be given to the Planning Director. ARTICLE VI Curtailment or Termination of Services The County and the Attorney agree to the full performance of the covenants contained herein. The Attorney reserves the right, at the Attorney's discretion, to decline to perform any tasks or duties requested by the County Commission pursuant to Section 4-107(C)(S), Monroe County Development Regulations. Such refusal shall in no way constitute a breach for non-performance or constructive termination or anticipatory breach of this contract. The County reserves the right, at its discretion, to termi- nate this contract for any of the following: negligent perfor- mance; misfeasance; malfeasance; and non-performance of the contract except the non-performance noted in the immediately preceding paragraph. The County also reserves the right to engage the services of other qualified attorneys as hearing officers and, in its discretion, may assign applications for beneficial use, vested rights, or other tasks and duties to them and such assignment shall in no way be construed to constitute an interference with, a violation of, an abrogation of, or an anticipatory breach of, the Attorney's rights under this con- . . tract. This contract may also be terminated by either party without ~ause provided that thirty (30) days written notice is provided .... to the other party. Regardless of which party elects to termi- nate the contract under this paragraph, the Attorney shall follow through with all assigned applications to a recommended order or complete all other assigned tasks or duties unless both parties mutually agree otherwise and the County shall fully pay for such professional services rendered. In the event the County shall terminate this contract for misfeasance, malfeasance, negligent performance or 5 non-performance, the County shall notify the Attorney in writing and the Attorney shall discontinue all work under this contract within thirty (30) days after the receipt of such notice. In addition, the Attorney will be liable to the County for all damages caused thereby, and all sums due the Attorney shall be stopped. However, for the purposes of this contract, the re- jection or modification by the County Commission of a recommended final order submitted by the Attorney shall not constitute evidence of negligent non-performance provided that such recom- mended order was prepared in a professional workmanlike manner. Furthermore, regardless of whether this contract terminated without cause or by the County for cause, there shall be no limitation on the County's use of Attorney work products already submitted to the County, including but not limited to, recommend- ed final orders or any reports requested by the County Commis- sion. ARTICLE VII Miscellaneous Provisions All documents prepared by the Attorney under the terms of this contract including, but not limited to, recommended final orders, memoranda of law, transcripts of testimony, exhibits submitted during any hearings, written materials prepared in anticipation of or subsequent to any hearings, and any reports or drafts of the same are to be and will remain the property of the County and any such documents remaining in the possession of the Attorney upon the termination of the contract shall be delivered . It to the Planning Director before the final payment is made, any language in this contract with contrary implications notwith- <oS tanding. ... . The Attorney warrants that no person has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contin- gent fee and that no member of the County has any interest, financially or otherwise, in the Attorney's law firm or his subcontractors. For breach or violation of this warranty, the County shall have the right to annual this contract without liability or, in its discretion, to deduct from the contract 6 price or consideration, the full amount of such commission, percentage, brokerage or contingent fee. Any dispute arising under this contract which is not settled by the County and the Attorney in ten (10) days shall be decided by an arbitration board composed of a representative of the County, a representative of the Attorney, and a representative mutually acceptable to the County and the Attorney. The Attorney shall continue to render all services requested in this contract without interruption, notwithstanding the provisions of this section. The Attorney agrees that it will not discriminate against any of its employees or applicants for employment because of their race, color, religion, sex, or national origin, and to abide by all Federal and State laws regarding non-discrimination. The Attorney further agrees to insert the foregoing provisions in all subcontracts hereunder, if such are approved by the County, , except subcontracts for standard commercial supplies or raw materials. Any violation of such provisions shall constitute a material breach of this' contract. The Attorney shall not subcontract any of the services described in this contract without the written permission of the County. In addition, this contract shall not be assignable in whole or in part without the written consent of the parties hereto, and it shall extend to and be binding upon the heirs, administrators, executors, successors and assigns of the parties hereto. , . IN WITNESS WHEREOF, the parties hereto have placed their hands and seals, the date first above written. .... ~.". BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor/Chairman (SEAL) Attest: Clerk 7 , .' Witnesses ... ~:~...... -, -, H. RAY ALLEN .APMOVED AS TO FORM AND LEGAL SUFFICIENCY. 8V Attorney's Office 8