Resolution 222-1987
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County Attorney
RESOLUTION NO. 222 -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
JOHN BIGLER, ESQUIRE; APPOINTING JOHN BIGLER
HEARING OFFICER FOR THE DETERMINATION OF
VESTED RIGHTS UNDER THE MONROE COUNTY
COMPREHENS IVE 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. John Bigler, Esquire, represents himself as
professionally competent and capable of performing the services
described briefly above, and desires to be employed as 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 John Bigler,
Esquire, hearing officer, a copy of same being attached hereto
and made a part hereof.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the J,.J. day of 0""e,. , A.D., 1987.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
airman
(SEAL)
Attest: DArn~y L. KOLHAGE, C"'='k
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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 JOHN BIGLER, Esquire, hereinafter "ATTORNEY," whose
address is 604 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. John Bigler, 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 4-107(C).
b) The performance of any other hearing, tasks or duty as
assigned by the County Commission under Section 4-107(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 4-107(C) (2) or (5), Monroe County
Development Regulations.
ARTICLE II
In consideration for the performance of the services under
this contract, the County agrees to pay the Attorney $125.00 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
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,
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
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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 4-107(C)(2), Monroe County
Development Regulations; and in performing any other task or duty
assigned by the County Commissioners under Section 4-107(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-l07(A), Monroe
County Development Regulations; and
c) Any other legally available source of funds.
ARTICLE IV
Restrictions on Representation
From the effective date of this contract until the sub-
mission 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
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the subject of a proceeding which was pending during the time of
this contract.
ARTICLE V
Indemnification and Insurance
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
U.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
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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)(5), 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
cause 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
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non-performance, the County shall notify the Attorney in writing
and the Attorney shall discontinue all work under this contract
wi thin 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
to the Planning Director before the final payment is made, any
language in this contract with contrary implications notwith-
standing.
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
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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
IlPP, DVr:D AS TO fon!~'
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WITNESSES
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JOHN BIGLER