10/20/2004
CONSULTING AGREEMENT
THIS AGREEMENT made and entered into this the 2-/1 ~ay of (~)'[;Ttth(:? 2004, by
and between MONROE COUNTY (hereinafter County), a political subdivision of the State of
Florida, and THE NOISE CONSULTANCY, LLC (hereinafter Consultant), authorized to do
business in the State of Florida.
IN CONSIDERATION of the mutual promises and covenants contained herein, the parties
agree as follows:
1. SCOPE OF CONTRACT: Consultant will assist County by providing consulting services
to review and re-draft Monroe County's Noise Code. The Consultant's services will consist of
the following;
A. Tour identified problem areas within the jurisdiction of Monroe County.
B. Conduct sound level measurements of problem sources and/or conduct a
demonstration of the methodology of sound level measurements for enforcement purposes.
C. One day of on-site consultation that may include a second day depending on
completion of on-site tasks, scheduled at a mutually convenient date.
D. Present an educational session on the basics of sound as it applies to noise
regulation including theoretical and practical approaches to noise codes and then discuss
jurisdiction specific requirements with all interested parties.
E. Review relevant documents as provided by Monroe County
F. Draft amendments to Noise Code based upon all information gathered.
G. Re-draft as necessary until the Code amendments are adopted.
H. Prepare an "Analysis of Public Comments", if written comments are received and a
formal response is desired.
1. Remain available for consultation via phone or e-mail.
In performing this Agreement, Consultant shall comply with all applicable laws, rules,
regulations, and policies of the United States of America or any jurisdiction where
Consultant's services are to be performed and shall save County harmless from
Consultant's failure to do so.
2. TERMS: The Consultant must commence work on this agreement within fourteen
days of the effective date of this agreement. The consultant must complete the first draft of
the Noise Code Amendment within ninety days of the effective date of this agreement. The
Consultant will continue to work diligently on re-drafts of the Code amendments as
necessary. The project is essential to the County's publiC function of ensuring the public's
health, safety and welfare. Therefore, time is of the essence in completing the project.
3. FEES: The total compensation to be paid to the Consultant in consideration of his
services under this agreement shall be $8,500. The County shall pay the Consultant upon
receipt of a proper invoice, with supporting documentation, pursuant to the State of Florida
Prompt Payment Act. In the event that funds are partially reduced or cannot be obtained or
continued at a level sufficient to allow for the purchase of the services contemplated, then
the agreement may be terminated immediately at the option of the County upon written
notice of termination being delivered in person or by mail to the Consultant. The County
will not be obligated to pay for any services provided by the Consultant after the Consultant
has received written notice of immediate termination.
4. ADDITIONAL SERVICES beyond the scope enumerated in paragraph 1 will be paid at
$125/hour. Additional days of on-site consulting will be paid at $1,250/day plus expenses
(to the extent allowed by Sec. 112.061, FS). It is anticipated that the Consultant will travel
to Monroe County for at least one day and not more than two days to comply with the
requirements of the agreement. Any additional travel for on-site consultation must be
approved by the County Administrator in advance.
Consultant understands and agrees that if this Agreement should be terminated for any
reason, payment of all expenses and fees incurred to the termination date will be made
within 30 days of such termination.
5. MISCELLANEOUS PROVISIONS:
a) Consultant shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting
principles consistently applied. Each party to this Agreement or their authorized
representatives shall have reasonable and timely access to such records of each other party
to this Agreement for public records purposes during the term of the Agreement and for
four years following the termination of this Agreement.
b) Governing Law, Venue, Interpretation, Costs, and Fees: 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.
In the event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the County and Consultant agree that
venue will lie in the appropriate court or before the appropriate administrative body in
Monroe County, Florida.
The County and Consultant agree that, in the event of conflicting interpretations of the
terms or a term of this Agreement by or between any of them the issue shall be submitted
to mediation prior to the institution of any other administrative or legal proceeding.
c) Severability. If any term, covenant, condition or provision of this Agreement (or the
application thereof to any circumstance or person) shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining terms,
covenants, conditions and provisions of this Agreement, shall not be affected thereby; and
each remaining term, 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
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the remaining terms, covenants, conditions and provisions of this Agreement would prevent
the accomplishment of the original intent of this Agreement. The County and Consultant
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.
d) Attorney's Fees and Costs. The County and Consultant agree that in the event any cause
of action or administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an
award against the non-prevailing party, and shall include attorney's fees, courts costs,
investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings
initiated and conducted pursuant to this Agreement shall be in accordance with the Florida
Rules of Civil Procedure and usual and customary procedures required by the circuit court
of Monroe County.
e) Binding Effect. The terms, covenants, conditions, and provisions of this Agreement shall
bind and inure to the benefit of the County and Consultant and their respective legal
representatives, successors, and assigns.
f) Authority. Each party represents and warrants to the other that the execution, delivery
and performance of this Agreement have been duly authorized by all necessary County and
corporate action, as required by law.
g) Adjudication of Disputes or Disagreements. County and Consultant agree that all
disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives of each of the parties. If no resolution can be agreed upon within
30 days after the first meet and confer session, the issue or issues shall be discussed at a
public meeting of the Board of County Commissioners. If the issue or issues are still not
resolved to the satisfaction of the parties, then any party shall have the right to seek such
relief or remedy as may be provided by this Agreement or by Florida law.
h) Nondiscrimination. County and Consultant agree that there will be no discrimination
against any person, and it is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the
court order. County or Consultant agree to comply with all Federal and Florida statutes, and
all local ordinances, as applicable, relating to nondiscrimination. These include but are not
limited to:
1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination
on the basis of race, color or national origin.
2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-
1683, and 1685-1686), which prohibits discrimination on the basis of sex.
3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which
prohibits discrimination on the basis of handicaps.
4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which
prohibits discrimination on the basis of age.
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5) The Drug Abuse Office and Treatment Act of 1972 (Pl 92-255), as amended,
relating to nondiscrimination on the basis of drug abuse.
6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (Pl 91-616), as amended, relating to nondiscrimination on the
basis of alcohol abuse or alcoholism.
7) The Public Health Service Act of 1912, 55. 523 and 527 (42 USC ss. 690dd-3 and
290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records.
8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating
to nondiscrimination in the sale, rental or financing of housing.
9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be
amended from time to time, relating to nondiscrimination on the basis of disability.
10) Any other nondiscrimination provisions in any Federal or state statutes which
may apply to the parties to, or the subject matter of, this Agreement.
i) Cooperation. In the event any administrative or legal proceeding is instituted against
either party relating to the formation, execution, performance, or breach of this
Agreement, County and Consultant agree to participate, to the extent required by the other
party, in all proceedings, hearings, processes, meetings, and other activities related to the
substance of this Agreement or provision of the services under this Agreement. County and
Consultant specifically agree that no party to this Agreement shall be required to enter into
any arbitration proceedings related to this Agreement.
j) Covenant of No Interest. County and Consultant covenant that neither presently has any
interest, and shall not acquire any interest, which would conflict in any manner or degree
with its performance under this Agreement, and that only interest of each is to perform and
receive benefits as recited in this Agreement.
k) Code of Ethics. County agrees that officers and employees of the County recognize and
will be required to comply with the standards of conduct for publiC officers and employees
as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation
or acceptance of gifts; doing business with one's agency; unauthorized compensation;
misuse of public position, conflicting employment or contractual relationship; and disclosure
or use of certain information.
I) No Solicitation/Payment. The County and Consultant warrant that, in respect to itself, it
has neither employed nor retained any company or person, other than a bona fide
employee working solely for it, to solicit or secure this Agreement and that it has not paid
or agreed to pay any person, company, corporation, individual, or firm, other than a bona
fide employee working solely for it, any fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this Agreement.
For the breach or violation of the provision, the Consultant agrees that the County shall
have the right to terminate this Agreement without liability and, at its discretion, to offset
from monies owed, or otherwise recover, the full amount of such fee, commission,
percentage, gift, or consideration.
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m) Public Access. The County and Consultant shall allow and permit reasonable access to,
and inspection of, all documents, papers, letters or other materials in its possession or
under its control subject to the provisions of Chapter 119, Florida Statutes, and made or
received by the County and Consultant in conjunction with this Agreement; and the County
shall have the right to unilaterally cancel this Agreement upon violation of this provision by
Consultant.
n) Non-Waiver of Immunity. Notwithstanding the provISions of Sec. 286.28, Florida
Statutes, the participation of the County and the Consultant in this Agreement and the
acquisition of any commercial liability insurance coverage, self-insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of immunity to
the extent of liability coverage, nor shall any contract entered into by the County be
required to contain any provision for waiver.
0) Privileges and Immunities. All of the privileges and immunities from liability, exemptions
from laws, ordinances, and rules and pensions and relief, disability, workers' compensation,
and other benefits which apply to the activity of officers, agents, or employees of any
public agents or employees of the County, when performing their respective functions
under this Agreement within the territorial limits of the County shall apply to the same
degree and extent to the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the County.
p) Legal Obligations and Responsibilities: Non-Delegation of Constitutional or Statutory
Duties. This Agreement is not intended to, nor shall it be construed as, relieving any
participating entity from any obligation or responSibility imposed upon the entity by law
except to the extent of actual and timely performance thereof by any participating entity, in
which case the performance may be offered in satisfaction of the obligation or
responsibility. Further, this Agreement is not intended to, 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 statute, and case law.
q) 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 the Consultant agree that neither the County nor the Consultant or any
agent, officer, or employee of either 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 in this Agreement.
r) Attestations. Consultant agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a
Drug-Free Workplace Statement.
s) No Personal Liability. No covenant or agreement contained herein shall be deemed to be
a covenant or agreement of any member, officer, agent or employee of Monroe County in
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his or her individual capacity, and no member, officer, agent or employee of Monroe County
shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
t) Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be regarded as an original, all of which taken together
shall constitute one and the same instrument and any of the parties hereto may execute
this Agreement by singing any such counterpart.
u) Section Headings. Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are not a part of
this Agreement and will not be used in the interpretation of any provision of this
Agreement.
v) Indemnify/Hold Harmless. Consultant agrees to indemnify and save County harmless
from and against all claims and actions and expenses incidental thereto, arising out of
damages or claims for damages resulting from the negligence of Consultant, its agents or
employees in performance of this agreement. However, the Consultant shall not be liable
for any claims, actions, or expenses which arise from the negligent or intentional acts or
omissions of the County, its agents or employees. The extent of liability is in no way limited
to, reduced, or lessened by the insurance requirements contained elsewhere in this
agreement.
6. NOTICE: All notices provided for herein shall be sent by certified mall, postage
prepaid, and addressed as follows:
County
County Administrator
1100 Simonton Street
;~~~fL 33040
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i~j/\c\\)-~ .&f:,.' :~', ESS WH.EREOF, the parties hereto have set their hands and seals the day
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:~~:-s.:~NNY L. KOLHAGE, CLERK
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Deputy Clerk
Consultant
The Noise Consultancy, LLC
309 Van Neste Road
Flemington, NJ 08822
BOARD OF COUNTY COMMISSIONERS
::MO~lY~~
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Mayor/C~ttp.erscm
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(CORPORATE SEAL)
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THE NOISE CONSULTANp(,: LLJ;.
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Eric M. Zwerling, si ent
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