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Resolution 329-1987 Monroe County Commission RESOLUTION NO. 329 -1987 A RESOLUTION OF THE BOARD OF COUNTY COMMIS- SIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZ- ING THE MAYOR/CHAIRMAN OF SAID BOARD TO EXECUTE A MODIFICATION OF AGREEMENT BY AND BETWEEN MONROE COUNTY, FLORIDA AND MICHAEL HALPERN. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that said Board hereby authorizes the Mayor/Chairman of said Board to execute a Modification of Agreement by and between Monroe County, Florida and Michael Halpern, 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 1st day of September, A.D. 1987. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA stI~"~~J} airman . , , . _ .." ,<, . ....., .... . ~ . . ~ t .. . .. .' ( Seal) Attest :DANNY L. KOLHAGE Clerk , L2L~tP/ BY Attorney's Office MODIFICATION OF AGREEMENT WHEREAS, Monroe County, a political subdivision of the State of Florida, hereinafter "county," and Michael Halpern, Esq., hereinafter "attorney," whose address is 209 Duval Street, Key West, Florida, entered into a binding contract on December 29, 1986, as authorized by Resolution No. 387-1986, attached hereto Exhibit A, whereby the attorney was to perform certain of the duties set forth in Article III, Section B (6) of an Agreement, dated November 7, 1986, and attached hereto as Exhibit B, entered into between the county and the State of Florida, Department of Community Affairs, hereinafter "department"; and WHEREAS, the department has requested several changes in the previously executed agreement between the county and the attorney and the county and the attorney are amenable to the department's requests; and WHEREAS, in view of the department's concerns the county and attorney desire to revise the agreement of December 29, 1986, by this modification of agreement. Hodification of the previously described agreement December 29, 1986, made and entered into on between the county and the attorney. WIT N E SSE T H: dated 1987, e That for the further consideration described herein the county and the attorney hereby mutually agree and covenant as follows: Section One The county and attorney agree and acknowledge that this modification of agreement is a memorialization of revisions desired by the department and that, while this modification of agreement relates back to the December 29, 1986, agreement, the provisions of this modification shall control over all similar provisions in the December 29, 1986, agreement and it shall be unnecessary in this modification of agreement to refer to the similar provisions of the December 29, 1986, agreement. All new provisions in this modification to agreement are additional to, and shall control over any inconsistencies in, the coun- ty/attorney agreement of December 29, 1986. Section Two Scope of Services The county employs the attorney as an attorney and counselor at law to perform and render legal assistance to the County Attorney and the Board of County Commissioners in regard to the implementation of the county's comprehensive land use plan and land development regulations, to-wit: a) To advise members of the county's staff and the Board of County Commissioners in matters of state and local law, including any contracts with the department and any changes or proposed changes involving administrative and policy decisions made during the implementation of the county's comprehensive land use plan and development regulations and during the first &ix month review mandated by Sec. 13-101(C), Monroe County Land Development Regulations, and by Chapter X, Sec. (C)(4)(e)(7), Monroe County Comprehensive Land Use Plan. In carrying out the legal assistance just described, the attorney shall perform such legal research as is necessary to provide professional advice and shall attend Board of County Commission meetings, Planning Commission meetings and citizen advisory committee meetings when so directed by the County Attorney, the Board of County Commis- sioners, or the Planning Commission. b) To draft such legal instruments or memoranda of law concerning the county's comprehensive land use plan and land development regulations, and the implementation and amendment thereof, as directed by the County Attorney, Board of County Commissioners, or the Planning Commission. The phrase "such legal instruments" shall include proposed comprehensive land use plan or land development regulation amendments, any documentation offered in support of such amendments, and any other writing deemed relevant to the purposes described in this subsection and 2 requested by the County Attorney, Board of County Commissioners, or the Planning Commission. Section Three Amount and Method of Compensation a) The county shall compensate the attorney for the completed services described in Section Two of this modification of agreement at the rate of $125.00 per hour plus reimbursable expenses. Reimbursable expenses shall be those described in F.S. 112.061 and shall be paid only at the rates set forth in that statute. Reimbursable expenses shall also include long distance telephone expenses. The attorney shall present an invoice to the county monthly, or as appropriate, for payments currently due, and payment shall be made within 15 days after the invoice(s) have been approved by the County Attorney. The invoice shall indicate the payment based on the work tasks completed. Pursuant to Section Four of this modification to agreement, this section shall not apply until the county has received sufficient funds from the department. b) Regardless of Section 3(a) of this modification, the total amount of compensation available to attorney under this modification shall not exceed $30,000.00. c) Records of the attorney's personnel payroll of attor- ney's employees who may be assigned work under the modification of agreement, of the reimbursable expenses thereunder, and records of accounts between the county and the attorney shall be kept on a generally recognized accounting basis and shall be available to the county or to an authorized representative or to a representative of the State of Florida for audit during normal business hours. Section Four a) Funding for this modification of agreement shall be provided by the department in the amount of $30,000.00. Such funds shall be the sole source of remuneration to the attorney for all services performed under this modification, and the 3 county shall not be obligated to compensate the attorney from any other source. All payments described in Section 3 of this addendum, are hereby made contingent upon the funding described herein. b) All written work products created pursuant to this modification of agreement shall be furnished to the County Attorney and he shall forthwith transfer copies thereof to the department. If the written work product is ultimately rejected by the department, the county shall not be obligated to compen- sate the attorney therefor regardless of whether there are funds supplied by the department otherwise available. Section Five o Modification of Project Scope Additions to, modifications, or deletions from the scope of services outlined in Section 2 may be made by the county, and the compensation to be paid to the attorney may be adjusted accord- ingly by mutual agreement of the contracting parties. Change orders will not be effective until approved by the Board of County Commissioners of Monroe County, Florida. It is distinctly understood and agreed that no claim for extra work done or materials furnished by the attorney beyond the scope of Section 2 will be allowed by the county except as provided herein, nor shall the attorney do any work or furnish any materials not covered by this modification unless such work is first authorized in writing. Any such work or materials furnished by the attorney without such written authorization first being given shall be at his own risk, cost, and expense, and the attorney hereby agrees that without such written authorization, that he will make no claim for compensation for such work or materials furnished. Section Six Curtailment or Termination of Services a) The county and the attorney hereby agree to the full performance of the covenants contained herein. The county reserves the right, at its discretion, to terminate or curtail 4 the services provided in this contract for any misfeasance, malfeasance or non-performance of the contract by the attorney. b) In the event the county shall terminate or curtail the services or any part of the services of the contract herein provided, the county shall notify the attorney in writing and the attorney shall discontinue the 'work under this modificafion thirty (30) days after receipt of such notice. Where such termination is due to negligent performance or failure to perform the contract, the attorney will be liable to the county for damages caused thereby, and all sums due the attorney shall be stopped. c) Upon such termination, the attorney shall deliver to the county all documents entirely or partially completed, togeth- er with any unused materials supplied by the county. d) Upon termination, the attorney shall appraise the work it has completed and submit its appraisal to the county for evaluation. e) The attorney shall receive its compensation in full for services performed to the date of such termination or curtail- described in Section Two, consist of the appropriate hourly task satisfactorily completed as and shall be in the amount to be men t . This payment shall for the work compensation agreed mutually by the attorney and the county. If there is no mutual agreement the attorney will provide the county with records, and the county will employ the same method used for payment for previous work as a guide in the determination of the final payment. The county shall make this final payment within sixty (60) days after the attorney has delivered the last of the partially completed documents together with any records that may be required to determine the amount due, unless either party has served the other with a written request to arbitrate a dispute. f) Regardless of whether the work is terminated by mutual consent or when the termination is due to negligent performance or failure to perform, there shall be no limitation upon the county as to the subsequent use of documents or ideas incorporat- ed therein for the preparation of any final studies, plans, 5 documents, or amendments to the plan or development regulations, and the county reserves the right after thirty (30) days follow- ing a written termination notice to the attorney, to take over the services and follow them to completion by contract with others, or otherwise. g) When the attorney reasonably believes that the $30,000 compensation cap will shortly be reached, he shall promptly notify the county and, if it concurs, the parties shall mutually ~ declare this modification terminated. Upon such declaration, the attorney shall be compensated, and work products provided, pursuant to Section 6(c)-(f) of this modification but compen- sation may be provided up to the amount of $30,000 only. Attorney understands, acknowledges, and agrees that compensation for all services rendered under this contract cannot exceed $30,000 and that failure to timely notify the county as provided above may result in services rendered going uncompensated if the number of billable hours multiplied by $125 exceeds $30,000. Section Seven Prohibition On Subcontracting and Assignment a) This modification to agreement shall not be assignable at whole or in part without the written consent of the county and attorney. b) Attorney shall not subcontract out any portion of this modification to agreement without the written consent of the county. Section Eight Non-discrimination The attorney agrees that it will not discriminate against any of his 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 sub-contracts hereunder, if such are approved by the county, except subcontracts for standard commercial supplies. Any 6 violation of such provisions shall constitute a material breach of this modification to agreement. Section Nine Arbitration of Disputes Any dispute arising under this modification 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 representa- tive mutually acceptable to the county and the attorney. The attorney shall continue to render all services requested without interruption, notwithstanding the provisions of this section. Section Ten Indemnification a) The attorney does hereby consent and agree to indemnify and hold harmless the county, its Mayor, the Board of County Commissioners, appointed boards and commissions, officers, and employees, individually and collectively, from all fines, suits, claims, demands, actions, costs, obligations, attorneys fees, or liability 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 his 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 re- quirements 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. b) The attorney shall be responsible for the completeness 7 and accuracy of his documents prepared or compiled under his obligations under Section 2, and shall correct at his expense all significant errors or omissions therein which may be disclosed. The cost of the work necessary to correct those errors attribut- able to the attorney and any damage incurred by the county as a result of additional costs caused by such errors shall be charge- able to the attorney. The fact that the county has accepted or approved the attorney's work shall in no way relieve the attorney of any of his responsibilities. This provision shall not apply to any maps, official records, contracts, or other data that may be provided by the county or other public or semi-public agencies which the attorney should reasonably expect to be accurate and which the attorney could not reasonably be expected to know to be inaccurate. Section Eleven Insurance The attorney shall procure and maintain a standard Compre- hensive Liability Insurance Policy in an amount and of a type acceptable to the County Attorney. 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 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 of 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 County Attorney. Section Twelve Anti-Kickback The attorney warrants that no person has been employed or retained to solicit or secure this modification of agreement upon an agreement or understanding for>a commission, percentage, ~ 8 brokerage, or contingent fee and that no member of the county has any interest, financially or otherwise, in the attorney or his subcontractors. For breach or violation of this warranty, the county shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, the full amount of such commission, percentage, brokerage or contingent fee. Section Thirteen Completion and Termination Date Unless otherwise extended by the county and attorney by mutual agreement or terminated as provided elsewhere in this modification to agreement, this modification shall terminate on December 1, 1987. All documents, other work products and tasks described in Section Two shall be completed by that date. The attorney acknowledges and agrees that failure to comply with this section may result in the disapproval by the department for the payment for such document(s), other work product(s) or task(s) and that such disapproval shall relieve the county of all obligation to compensate the attorney therefor. Section Fourteen Non-Exclusivity Nothing contained in this modification to agreement shall be construed to prevent the county from contracting with other attorneys to perform the services described in Section Two or Article III, Section B(6) of the department/county agreement of November 7, 1986. In addition, if the attorney compensation cap of $30,000.00 contained in this modification is reached before the completion by attorney of all the services set forth in Section Two, nothing contained herein shall be construed to prevent the county and attorney from entering into a new agree- ment or agreements for the completion by attorney of those services. 9 n Section Fifteen Effective Date This modification to agreement shall not take effect until the same has been approved by the department. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor/Chairman (SEAL) Attest: Clerk Mike Halpern Witnesses BY 10 III iJ1 Monroe Count) ~~rnmission RESOLUTION NO. 387-1986 A RESOLUTION OF THE BOARD OF COUNTY COml1S- SIONERS OF MONROE COUNTY, FLORIDA, AUTHO- RTZING THE MAYOR AND CHAIRMAN OF THE BOARD TO EXECUTE AN AGREEMENT BY AND BETWEEN THE COUNTY COMMISSION OF MONROE COUNTY AND MICHAEL HALPERN CONCERNING PERFORMANCE OF CERTAIN DUTIES RELATING TO THE RECENTLY ADOPTED LAND USE PLAN. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that said Board hereby authorizes the Mayor and Chairman of the'Board to execute an Agreement by and between the County Commission of Monroe County and Michael Halpern, a copy of same being attached hereto, concerning performance of certain duties relating to the recently adopted Land Use Plan. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the ~ day of December, A.D. 1986. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY~ ~,f. .' ~ -- ,~..^.- r.,~ i;< y..-t'l(:': ........~~".,. ;;-')~a'",:,,,, ',<>..J ; . . .~,.: ..>/ (SEAL) " Attest:D ~ ~T"'n' T ~ 0 1.1 ,,' ~J, L.oLIIAG'E, Clerk ~aL~J)/ CLERK ' EXHIBIT "A" APPROVED AS W FORM AN~GALSUFRC~NC~ ~"-.. ZA,A~ BY Attorneys Oft'ice e . ACREEMENT THIS AGREEMENT made this ;?9Ch day of December, 1986, by and between the COUNTY COMMISSION OF MONROE COUNTY, (hereinafter referred to as "Party of the First Part") and MICHAEL HALPERN, ESQ" (hereinafter referred to as "Party of the Second Part") WIT N E SSE T H That for and in consideration of the joint and mutual agreements and covenants herein entered into and the compensation therefor, the Parties do agree as follows: 1. That aforesaid Party of the Second Part is hereby employed by the Party of the First Part to perform certain duties relating to tIle recently adopted Land Use Plan as hereinafter outlined and report back to the County Commission on or before January 6, 1987, as to the findings and recommendations of said Party of the Second Part. 2. That said specific duties prescribed to the Party of the Second Part are as follows: (A) (1) Set forth and outline the obligations and procedures of the Party of the First Part as concerns the new Land Use Plan and the revisions and timing required therein. (2) The potential source or sources of funds or Donies from the State or from any other source to pay the cost of accomplishing the revisions of said Plan. e (3) The rights, duties and responsibilities of the present Monroe County Commission which was incurred by agreements with the DCA or any other department that are binding on 11onroe County as the County proceeds to accomplish the re- visions of the Plan as set forth therein. (4) Any matters or actions not referred to herein specifically but which were taken or acted on by any prior Commissions or this present Commission that the Party of the Second Part concludes that this Commission should know about. . The party of the second part is to give a synopsis of the following: ~~. .., . . (B)(l) Agreements signed with DCA or other govern- ment entities concerning implementation of the Monroe County Land Use Plan. (2) Framework, parameters and freedom of action and choice concerning responsibilities and obligations of those agreements. Also, the party of the second part shall perform the follow- ing duties as part of this aereement: (3) Establish Commission's obligation concerning revision and timing of changes to the Land Use Plan including degree of independence. (4) Synopsize in laymen's language Chapter 13 of Vol, III of the Land Use Plan. (5) Discover and synopsize ALL potential sources of funding from the State and others to defray the cost of the 6th month and 12th month reviews. (6) To attend and report on the three (3) public hearings on LUP changes prescribed by the County Commission. (7) To attend and report on the public hearing(s) n required to be conducted by the Monroe County Planning Commission under provisions of Vol. III Section 13-101 D-3. 3. That for and in consideration of the services rendered herein the Party of the Second Part shall be compensated the sum of One Hundred Twenty-five ($125.00) Dollars per hour and any and all cost incurred in performing the duties herein prescribed shall be billed to the County and approved by the County Commis- sion. That the remuneration provided for herein shall be paid .~ from the contract money contained in the agreement signed by an~ between the County and the DCA on the 7th day of November, ~ wherein the sum of $1,050,000.00 was set forth therein.) 4. It is recognized by both parties that the Party of the Second Part has heretofore been very actively engaged in repre- senting many clients before the County Commission and it is specifically understood and agreed that because of the undertak- ~ . ing herein set forth that the Party of the Second Part does hereby assure the Party of the First Part that he will not further represent clients before Monroe County during the time that this contract and agreement is in force and effect, thus removing any question of a conflict of interest. IN vJITNESS WHEREOF, we hereto affix our hands and seals on this v19zf~ day of December, A.D. 1986. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA ..,... ~ . ,~-r By n (SEAL) Mayor/Chairman . / , Party' of the First Part , J Attest.. D.A'1'./I'.l.'''''-''L r""r\TI:r"f"1T':' 'C!"r,fr .c--u\, '..... . :...U..r.......t .:......J..'--,~....:t ....,~, 1~ ~~r~d/ C er ' Wit~ses: (;.. ~ \." . '\ /,/ / . ~/~ ,'" t./l{).A.~ I I 1 ~ MICHAEL HA E Party of the , Part 9~~ /' APPf'? .D AS TO FOn~;; ",.A'}} E9Ai.~"rnt~ Aft.7rnfY(s ONir:e -l''''''''''''T , I 'r -' .' to prepare recommended conclusions of law and findings of fact for consideration by the County Commission, document reproduction and preparation, court reporter services and other hearing related costs. The Special Counsel to act as its general legal representative concerning litigation involving the County's implementation of the Monroe County Comprehensive Land Use Plan and Land Development Regulations. The Special counsel and/or members of the firm as appropriate will be expected to advise the County in matters of state and local law, including changes and proposed changes, involving administrative and'policy decisions made during the implementation of the Monroe county Comprehensive Land Use Plan and Land Development Regulations and on such other matters as the County deems appropriate at the discretion of the County Attorney. The Special Counsel will coordinate these responsibilities with the Planning Department and the County Attorney. '-=-_1 The Special Counsel will prepare, within six months after selection, impact fee ordinances and other appropriate legal instruments such as inter local agreements for adoption consideration by and between Monroe County and the Cities of Key West, Key colony Beach and Layton for the collection of impact fees from new development in those Cities and ensure the transfer of fees collected to the County for those services impacted. Compensation shall be as specified in a subcontract which will specify hourly rates, expenses, costs and modification provisions. 11 EXHIBIT "B"