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Resolution 363-1987 Michael Halpern RESOLUTION NO. 363_1987 A RESOLUTION OF THE BOARD OF COUNTY COMMIS- SIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZ- ING THE MAYOR AND CHAIRMAN OF SAID BOARD TO EXECUTE A MODIFICATION OF AGREEMENT BY AND BETWEEN MONROE COUNTY AND MICHAEL HALPERN, ESQ., MODIFYING THAT CERTAIN PREVIOUS AGREE- MENT DATED DECEMBER 29, 1986. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE as follows: 1. That the Mayor and Chairman of said Board is hereby authorized to execute a Modification of Agreement by and between Monroe County and Michael Halpern, Esq" a copy of same being attached hereto, modifying that certain previous agreement dated December 29, 1986. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 25th day of September, A,D. 1987. (SEAL) BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA ~ Attest: ~~"/fG .J1;ta~ APPR .D AS TO F~::r. /J 8Y A E At ~UFF:C/E~ I Altomoy s O/"ee ~ 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 as Exhibit A, whereby the Attorney was to perform certain duties as 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; and WHEREAS, this modification of the previously described Agreement dated December 29, 1986, is made and entered into this 1st day of September, 1987, between the County and the Attorney. WIT N E SSE T H: That for the further consideration described herein, the ... County and the Attorney hereby mutually agree and covenant as follows: Section One The County and the 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 County/Attorn- ey 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 but excluding this Agreement and that certain Memorandum of Agreement entered into between Monroe County anp the Department of Community Affairs on November 7, 1986, and any changes or proposed changes involving administrative and policy decisions made during the implementa- tion of the County's Comprehensive Land Use Plan and Development Regulations and during the first six month review mandated by Sec. l3-l01(C), Monroe County Land Development Regulations, and by Chapter X, review of official Land Use District Maps, 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 Commissioners 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 2 deemed relevant to the purposes described in this subsection and 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 Three 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 personal payroll of Attor- n~y'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 up to 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 Modification of Project Scope Additions to, modifications, or deletions from the scope of services outlined in Section Two may be made by the County, and the compensation to be paid to the Attorney may be adjusted accordingly 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, and the Department of Community Affairs in accordance with the Memorandum of Agreement dated November 7, 1986. It is distinctly understood and agreed that no claim for extra work done or materials fur- nished by the Attorney beyond the scope of Section Two will be a~lowed by the County except as provided herein, nor shall the Attorney do any work or furnish any materials not covered by this modification unles s 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 4 reserves the right, at its discretion, to terminate or curtail 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 modification 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 termi.nation, 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 terminati0n, the Attorney shall appraise the work he has completed and submit his appraisal to the County for evaluation. e) The Attorney shall receive his compensation in full for services performed to the date of such termination or curtail- ment. The payment shall consist of the appropriate hourly compensation for the work task satisfactorily completed as described in Section Two, and shall be in the amount to be 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 Six (c)-(f) of this modification but compen- sation may be provided up to the amount of $30,000 only. Attor- ney 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 Mctdification to Agreement without the written consent of the County, Section Eight Non-discrimination The Attorney agrees that he 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 representative mutually acceptable to the County and the Attorney. The Attorney shall continue to render all services requested without inter- ruption, notwithstanding the provisions of this section. Section Ten Indemnification a) The Attorney does hereby consent and agree to indemni~y 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 and accuracy of his documents prepared or compiled under his 7 obligations under Section Two, and shall correct at his expense all significant errors or omiss{ons therein which may be dis- closed, The cost of the work necessary to correct those errors attributable to the Attorney and any damage incurred by the County as a result of additional costs caused by such errors shall be chargeable 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, con- tracts, or other data that may be provided by the County or other public or semi-public agencies which the Attorney should reason- able 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 sl1all 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, brokerage, or contingent fee and that no member of the County has any interest, financially or otherwise, in the Attorney or his 8 I.- _. ._ _..~ 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 obliga- tion 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 A~ticle 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. Should there be a contract or contracts entered into in addition to this Agreement to perform services under the Memorandum of Agreement dated November 7, 1986, such contract or contracts shall require the approval of the Department of Commu- nity Affairs to qualify for compensation under paragraph 6 of the aforesaid Memorandum of Agreement. 9 _________________.__1. Section Fifteen Conflict of Interest The parties do hereby agree and understand that Michael Halpern will not engage in nor will he represent any parties either before the Monroe County Commission or its agencies or the Department of Community Affairs in any matters relating to the Land Use Plan and Land Use Maps adopted by Monroe County as altered and amended in its review processes and that any present representations in these categories have been terminated as of this date. Section Sixteen Effective Date This Modification to Agreement shall not take effect until the same has been approved by the Department, BOARD OF COUNTY COMMISSIONERS o MONROE COUNTY, FLORIDA (Seal) Attest: ..QI. /4,/f IU . ~L:~ ,/ I j //0 A l'-.-, --'t-- r -, --....... ~ /- ) , /' / - / ( I /_~~',/,- t ( 0/ ,,--->\0- ~ ~tnesses ",- o 'D AS TO FORM :ilL SU;FICfENQ Attorney's Office 10