04/20/2005 Agreement
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
May 3, 2005
TO:
Marva Green, Director
Special Projectl
Pamela G. Ha~
Deputy ClerkCJ
FROM:
At the April 20, 2005, Board of County Commissioner's meeting the Board granted
approval and authorized execution of an Agreement for Monitoring and Oversight Services
between Monroe County and Danny L. Kolhage, Clerk of the Courts concerning the Contract
with Maximus, Inc. for community correctional services.
Enclosed is a copy of the above-mentioned for your handling. Should you have any
questions please feel free to contact our office.
cc: County Attorney
File;
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AGREEMENT FOR MONITORING AND OVERSIGHT SERVICES
The Board of County Commissioners of Monroe County, Florida ("BOCC "or "County"),
whose principal mailing address is 1100 Simonton Street, Key West, Florida 33040, and Danny L.
Kolhage, as Clerk of the Courts and Clerk ofthe BOCC, whose principal address is 500 Whitehead
Street, Room 205, Key West, Florida 33040 ("Clerk") hereby agree as follows:
1. Recitations.
1.1 The BOCC has the authority to enter into this Agreement pursuant to the provisions
of Sections 125.01(3)(a) and 125.01(l)(P), Florida Statutes.
1.2 The Clerk, pursuant to the provisions of Sections 28.12 and 125.17, Florida Statutes,
is the clerk and accountant of the BOCC.
1.3 Section 948.15(2), Florida Statutes provides, in pertinent part, that a private entity
may provide probation services for offenders sentenced by the county court, and Section 948.15(3),
Florida Statutes provides that the private entity providing services for the supervision of misdemeanor
probationers must contract with the County.
1.4 The BOCC has entered into an agreement, dated January 21,2004, with Maximus,
Inc. for certain community correctional services for persons placed on misdemeanor probation by the
county court.
1.5 The agreement with Maximus, Inc. provides at Section 3.2.1 that an Application Fee
for Intake Interview of$1 0.50 will be charged to probationers, and further provides at Section 3.2.2
that a Basic Supervision Cost of$50.00 per month shall be charged to probationers.
1.6 The agreement with Maximus, Inc. at Section 3.2.9 provides: "The application fee for
intake interview includes a charge of Two Dollars and Fifty Cents ($2.50) to help defray part ofthe
County's monitoring and oversight functions related to this Agreement, and the basic supervision cost
includes a charge of Five Dollars ($5.00) to help defray part of the County's monitoring and oversight
functions. These charges shall be remitted to County in the same manner as fines and other Court
fees collected from probationers.
1.7 Misdemeanor probation services are court-related functions, and the BOCC believes
that the oversight and monitoring of the agreement with Maximus, Inc. is a service that is reasonable
for the Clerk to provide.
1.8 The Clerk agrees that he and his staff presently provide the general oversight and
monitoring service, and the County agrees that the Clerk should be compensated for the additional
work necessary for the general oversight and monitoring of the agreement with Maximus, Inc.
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2. Services By The Clerk.
2.1 The Clerk agrees to provide oversight and monitoring services related to the
agreement between the County and Maximus, Inc. The Clerk may periodically provide financial
and/or programmatic audits ofMaximus' performance in accordance with the terms ofthe Agreement
between Monroe County and Maximus. These services shall include receipt and review of monthly
reports submitted by Maximus, Inc. and receipt and accounting of all money paid to the Clerk and
County by Maximus, Inc.
2.2 The Clerk shall have no responsibility for, or liability in connection with, the services
provided to probationers by Maximus, Inc.; how and when individuals are ordered by the Court into
probations services supervised by Maximus, Inc; the determination of which services are appropriate
for probationers; the length of time a person is ordered into probation services; or for the actual
collection of money from probationers.
2.3 The Clerk shall report in writing to the County Administrator any violation of the
agreement between the County and Maximus, Inc., which violation is discovered by the Clerk; any
violation of state law or county ordinance committed by Maximus, Inc. or its agents or employees
which is discovered by the Clerk; and any financial irregularities or violations committed by Maximus,
Inc. or its agents or employees which is discovered by the Clerk.
3. Payment By The BOCC.
3 .1 For the services performed by the Clerk under this agreement, the County agrees that
all sums which have been received as of July I, 2004 and which in the future will be received by the
County pursuant to Section 3.2.9 of the agreement between the County and Maximus, Inc. shall be
paid to the Clerk.
3.2 The County shall have no further obligation to pay to the Clerk, from any other
source of funds, any sums in addition to what is paid to the County under the agreement with
Maximus, Inc.
3.3 The County, upon evidence submitted by the Clerk that shows any payments due to
the County have not been paid or have been mishandled by an agent or employee of Maxim us, Inc.,
shall seek collection by enforcement ofthe agreement or prosecution in court, as may be determined
appropriate by the County Attorney. All sums so collected by enforcement or prosecution shall be
remitted to the Clerk as and for payments due under this agreement.
4. Termination of Agreement.
4.1 This agreement may be terminated by the County, without cause, upon giving written
notice to the Clerk, and termination will be effective at 5:00 P.M. on the thirtieth day following the
date of delivery of the notice to the Clerk. Delivery may be made by electronic mail, U.S. mail,
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facsimile transmission, or hand delivery.
4.2 This agreement may be terminated by the Clerk, without cause, upon giving written
notice to the County, and termination will be effective at 5:00 P.M. on the thirtieth day following the
date of delivery of the notice to the County. Delivery may be made by electronic mail, U.S. mail,
facsimile transmission, or hand delivery. Delivery shall be made to the County Administrator, with
a copy to the County Attorney.
4.3 This agreement will automatically terminate at such time as the agreement between
Maximus, Inc. and the County ends or is terminated by either the County or Maximus, Inc.
5. General Terms and Conditions.
5.1 Governing Law. Venue. Interpretation. Costs. and Fees: This Agreement shall be
governed by and construed in accordance with the laws ofthe State of Florida applicable to contracts
made and to be perfonned 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
Maximus agree that venue will lie in the appropriate court or before the appropriate administrative
body in Monroe County, Florida. The County and Clerk agree that, in the event of conflicting
interpretations ofthe 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.
5.2 Severability. If any term, covenant, condition or provision of this Agreement (or the
application thereofto 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 the remaining terms, covenants, conditions and provisions of this
Agreement would prevent the accomplishment of the original intent of this Agreement. The County
and Clerk 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.
5.3 Attorney's Fees and Costs. The County and Clerk 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 ofthis 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.
5.4 Binding Effect. The terms, covenants, conditions, and provisions ofthis Agreement
shall bind and inure to the benefit of the County and Clerk and their respective legal representatives,
successors, and assigns.
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5.5 Authority. The County and Clerk respectively represents and warrants to the other
that the execution, delivery and performance of this Agreement have been du1y authorized by all
necessary action as required by law.
5.6 Adiudication of Disputes or Disagreements. County and Clerk 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.
5.7 Nondiscrimination. County and Clerk 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 and Clerk 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: (A) Title VI of the Civil Rights Act of1964
(PL 88-352) which prohibits discrimination on the basis of race, color or national origin; (B) 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; (C) Section 504 of the Rehabilitation Act of 1973,
as amended (20 USC s. 794), which prohibits discrimination on the basis of handicap; (D) The Age
Discrimination Act of1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on
the basis of age; (E) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended,
relating to nondiscrimination on the basis of drug abuse; (F) The Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of1970 (PL 91-616), as amended, relating
to nondiscrimination on the basis of alcohol abuse or alcoholism; (G) The Public Health Service Act
of1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality
of alcohol and drug abuse patent records; (H) 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; (I) Section 13-101, Monroe County Code, which prohibits discrimination; and (1) Any
other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to,
or the subject matter of, this Agreement.
5.8 Cooperation. In the event any administrative or legal proceeding is instituted against
either the County or Clerk relating to the formation, execution, performance, or breach of this
Agreement, County and Clerk 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 Clerk specifically agree
that no party to this Agreement shall be required to enter into any arbitration proceedings related to
this Agreement.
5.9 Covenant of No Interest. County and Clerk covenant that neither presently has any
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I interest, and shall not acquire any interest, which would conflict in any manner or degree with its
2 performance under this Agreement, and that only interest of each is to perform and receive benefits
3 as recited in this Agreement.
4
5 5.10 Code ofEthics. County and Clerk agree that officers and employees of the County and
6 Clerk recognize and will be required to comply with the standards of conduct for public officers and
7 employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to,
8 solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation;
9 misuse of public position, conflicting employment or contractual relationship; and disclosure or use
10 of certain information.
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12 5.11 No Solicitation/Payment. The County and Clerk warrant, respectively, that it or he
13 has neither employed nor retained any company or person, other than a bona fide employee working
14 solely for it or him, to solicit or secure this Agreement and that it has not paid or agreed to pay any
15 person, company, corporation, individual, or firm, other than a bona fide employee working solely
16 for it or him, any fee, commission, percentage, gift, or other consideration contingent upon or
17 resulting from the award or making of this Agreement. For the breach or violation ofthe provision,
18 the County and Clerk agree that the other shall have the right to terminate this Agreement without
19 liability and, at its or his discretion, to offset from monies owed, or otherwise recover, the full amount
20 of such fee, commission, percentage, gift, or consideration.
21
22 5.12 Public Access. The County and Clerk shall allow and permit reasonable access to, and
23 inspection of, all documents, papers, letters or other materials in its possession or under its control
24 subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and
25 Clerk in conjunction with this Agreement; and the County or Clerk shall have the right to unilaterally
26 cancel this Agreement upon violation of this provision by the other.
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28 5.13 Non- Waiver ofImmunity. Notwithstanding the provisions of Sec. 286.28, Florida
29 Statutes, the participation of the County and the Clerk in this Agreement and the acquisition of any
30 commercial liability insurance coverage, self-insurance coverage, or local government liability
3 I insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage,
32 nor shall any contract entered into by the County or Clerk be required to contain any provision for
33 WaIver.
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35 5.14 Privileges and Immunities. All of the privileges and immunities from liability,
36 exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
37 compensation, and other benefits which apply to the activity of officers, agents, or employees of any
38 public agents or employees of the County, when performing their respective functions under this
39 Agreement within the territorial limits of the County shall apply to the same degree and extent to the
40 performance of such functions and duties of such officers, agents, volunteers, or employees outside
41 the territorial limits of the County.
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43 5.15 Legal Obligations and Responsibilities: Non-Delegation of Constitutional or Statutory
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I Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating
2 entity from any obligation or responsibility imposed upon the entity by law except to the extent of
3 actual and timely performance thereofby any participating entity, in which case the performance may
4 be offered in satisfaction ofthe obligation or responsibility. Further, this Agreement is not intended
5 to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of
6 the County or Clerk, except to the extent permitted by the Florida constitution, state statute, and case
7 law.
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9 5.16 Non-Reliance bv Non-Parties. No person or entity shall be entitled to rely upon the
10 terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or
I I entitlement to or benefit of any service or program contemplated hereunder, and the County and the
12 Clerk agree that neither the County nor the Clerk or any agent, officer, or employee of either shall
13 have the authority to inform, counsel, or otherwise indicate that any particular individual or group
14 of individuals, entity or entities, have entitlements or benefits under this Agreement separate and
15 apart, inferior to, or superior to the community in general or for the purposes contemplated in this
16 Agreement.
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18 5.17 Attestations. The County and Clerk agree to execute such documents as the County
19 or Clerk may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement,
20 and a Drug-Free Workplace Statement.
21
22 5.18 No Personal Liability. No covenant or agreement contained herein shall be deemed
23 to be a covenant or agreement of the Clerk individually, or of any member, officer, agent or employee
24 of Monroe County, or the Clerk, in his or her individual capacity, and no member, officer, agent or
25 employee of Monroe County, or the Clerk, shall be liable personally on this Agreement or be subject
26 to any personal liability or accountability by reason of the execution of this Agreement.
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28 5.19 Execution in Counterparts. This Agreement may be executed in any number of
29 counterparts, each of which shall be regarded as an original, all of which taken together shall
30 constitute one and the same instrument and any ofthe parties hereto may execute this Agreement by
3 I singing any such counterpart.
32
33 5.20 Section Headings. Section headings have been inserted in this Agreement as a matter
34 of convenience of reference only, and it is agreed that such section headings are not a part of this
35 Agreement and will not be used in the interpretation of any provision of this Agreement.
36
37 5.21 IndemnifvIHold Harmless. To the extent permitted by Florida law, Clerk agrees to
38 indeIllIlifY and save County harmless from and against all claims and actions and expenses incidental
39 thereto, arising out of damages or claims for damages resulting from the negligence of Clerk, its
40 agents or employees in performance ofthis agreement. However, the Clerk shall not be liable for any
41 claims, actions, or expenses which arise from the negligent or intentional acts or omissions of the
42 County, its agents or employees. The extent of liability is in no way limited to, reduced, or lessened
43 by the insurance requirements contained elsewhere in this agreement. To the extent permitted by
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Florida law, County agrees to indemnify and save Clerk 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 County, its agents or employees in performance of this agreement. However, the
County shall not be liable for any claims, actions, or expenses which arise from the negligent or
intentional acts or omissions ofthe Clerk, its agents or employees. The extent of liability is in no way
limited to, reduced, or lessened by the insurance requirements which may be contained elsewhere in
this agreement.
Done and executed this 3rd day of May, 20~, upon motion duly made, seconded, and
passed at a public meeting of the BOCC held at Key West, Florida.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By: d;t~, ~/~~.J
(SEAL)
DANNYL.~
~APr 2~, 2005
MONROE COUNTY ATTORNEY
.APPIf..QV~ AS TO FORM:
~L..-.l.L .j(\~
JOHN R, COLLINS
.ct<tlLt'lIY, AIT9.fll'IEY
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