Res No 093-19-15365RESOLUTION NO.93-19-15365
A Resolution retaining Thomas F. Pepe, Esquire, as the City Attorney for the
City of South Miami, approving his written contract and instructing the Qty
Mayor to execute the contract on behalf of the City.
WHEREAS, Article II, Section 7, paragraph A., 2. of the Charter of the City of
South Miami establishes the office of City Attorney and states:
SECTION 7.Officers
A. Appointments. The Commission shall appoint the following, who shall be
officers of the City who shall serve at the pleasure of the Commission:
2. A City Attorney and such Assistant City Attorneys as may be necessary
who shall act as the legal advisor for the municipality and all of its officers in
matters relating to their official powers and duties. The City Attorney shall be a
lawyer of at least five years practice in the Courts of the State of Florida
immediately preceding the time of his or her appointment. He or she shall prepare
or review all ordinances, resolutions, contracts, bonds and other written
instruments in which the municipality is concerned and shall endorse on each his
or her approval of the form, language and execution thereof. When required by
the Commission, he or she shall prosecute and defend, for and in behalf of the
City, all complaints, suits, and controversies in which the City is a party, before
any Court or other legally constituted tribunal; he or she shall render such
opinions on legal matters affecting the City as the Commission may direct; and he
or she shall perform such other professional duties as may be required of him or
her by Ordinance or Resolution of the Commission or by this Charter.
; and
WHEREAS, Article III, Section 5, paragraph H of the Charter of the City of South
Miami states:
The City Manager shall be the chief executive officer and head of the
administrative branch of the City government. He or she shall be responsible for the
proper administration of all affairs of the City. He or she shall have the following
powers and duties to:
H. Contract for the purchase of any goods or services for any department of
the City in an amount up to and including $5,000.00. All contracts for goods and
services in excess of $5,000.00 shall be approved by the City Commission. The City
Manager shall report all expenditures to the City Commission monthly.
All purchases shall be approved after competitive conditions shall have been
maintained and competitive bids sought from at least three different sources of
supply if available, such determination to be made by the Commission, and,
notwithstanding the foregoing, the City may make purchases through other
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Resolution No. 93-19-15365
governmental agencies that have followed similar bidding procedures. This
subsection does not apply to the purchase of legal and expert services that have been
approved by the City Commission.
; and
WHEREAS, Article VI, Section 6 of the Charter of the City of South Miami states:
SECTION 6. Autonomy.
Neither the Commission nor any of its members shall direct or request the removal
of any person from office by the City Manager or by any of his or her subordinates,
or in any manner take part in the removal of officers and employees in the
administrative service of the City. Except for the purpose of inquiry and for the
purpose of interviewing any candidate for department director prior to appointment
by the City Manager subject to the City Commission's approval, the Commission
and its members shall deal with the administrative service solely through the City
Manager and neither the Commission nor any member thereof shall give orders to
any subordinates of the City Manager, either publicly or privately. This section shall
not apply to officers appointed under Article II, Section 7 of this Charter.
; and
WHEREAS, Thomas Pepe, Esquire, has been licensed as an attorney and
counselor at law in all courts in the state of Florida by the Florida Supreme Court since
1974; and
WHEREAS, Thomas Pepe, Esquire, was appointed by the City Commission in
March, 2011, as its City Attorney and has been serving at the will and pleasure of the City
Commission for eight years; and
WHEREAS, the City entered into a contract with Thomas F. Pepe for legal services as
the City Attorney for South Miami on March 15, 2011, for a three-year term, expiring on
March 15, 2014; and
WHEREAS, the City extended Thomas F. Pepe's City Attorney contract in 2014, 2017,
and 2018; and
WHEREAS, Thomas F. Pepe's current written City Attorney contract was scheduled to
expire on April 16, 2019; and
WHEREAS, Thomas F. Pepe has briefed and argued approximately 39 cases before
various appellate courts including the Third, Fourth and Fifth District Court of Appeals in
Florida as well as the Florida Supreme Court, the federal Fifth Circuit Court of Appeals, federal
Second Circuit Court of Appeals, and the Eleventh Circuit Court of Appeals; and
WHEREAS, Thomas F. Pepe has tried, during his career, in excess of 51 cases in both
Florida circuit courts and in federal courts in Florida and New York. Twenty-six of these trials
were before a jury and many involved contract disputes; and
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Resolution No. 93-19-15365 .
WHEREAS, Thomas F. Pepe has been certified by The Florida Bar Association as an
expert in City, County and Local Government law; and
WHEREAS, Thomas F. Pepe has attained 158 hours of local government continuing
legal education since becoming the City's Attorney. The courses involved a variety of areas
related to City government, including labor and employment law, evidence, city, county and
local government law certification, general local government law in Florida, public finance in
Florida, advanced labor topics, Florida land use, drug testing and toxicology, Sunshine law,
public records law and ethics for public officers; and
WHEREAS, the City Commission at its April 16, 2019 meeting resolved that the City
Attorney's current contract shall continue until a new contract is approved and instructed the
City Attorney to perform a search for conflict counsel to provide the members of the
Commission with legal advice as to the negotiation of the City Attorney's contract and present
those names to the City Commission for their selection of such attorney; and
WHEREAS, several conflict counsel candidates were found, and their names and
resumes were presented to the City Commission; and
WHEREAS, the City Commission instructed the City Attorney to retain Rafael Suarez -
Rivas as conflict counsel; and
WHEREAS, the City Commission members who desired to seek Mr. Rivas's advice
have done so; and
WHEREAS, the Mayor and City Commission for the City of South Miami desires to
enter into a contract with Thomas Pepe to provide the City of South Miami with legal services
and extend his appointment as City Attorney for a one-year term.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT:
Section 1: Thomas F. Pepe's appointment as City Attorney shall continue in accordance
with the terms of his new contract, a copy of which is attached to this resolution. The City
Manager, as an agent of the City Commission and pursuant to the City's Charter, shall execute
the City Attorney's contract on behalf of the City.
Section 2. Severability. If any section clause, sentence, or phrase of this resolution is for
any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall
not affect the validity of the remaining portions of this resolution.
Section 3, Effective Date. This resolution shall become effective immediately upon
adoption by vote of the City Commission.
PASSED AND ADOPTED this 16t" day of Jam, 2019.
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Resolution No. 93-19-15365
ATTEST:
-Pawi
CITY CLERK
APPROVED:
AS TO COMMISSION VOTE:
ITY Mayor Stoddard:
Vice Mayor Harris:
Commissioner Welsh:
Commissioner Liebman:
Commissioner Gil:
5-0
Yea
Yea
Yea
Yea
Yea
Page 4 of 4
Agenda Item No:2.
City Commission Agenda Item Report
Meeting Date: July 16, 2019
Submitted by: Nkenga Payne
Submitting Department: City Attorney
Item Type: Resolution
Agenda Section:
Subject:
A Resolution retaining Thomas F. Pepe, Esquire, as the City Attorney for the City of South Miami, approving his
written contract and instructing the City Manager to execute the contract on behalf of the City. 3/5 ice Mayor
Harris) (Public Hearing was on 7/2/19)
Suggested Action:
Attachments:
Res -City Attorney Contract 2019v4.docx
City_Attorney_Contract_2019v6.doc
City Attorney Contract 2019v6.1 redline (1).pdf
MDBR Ad. pdf
MH Ad. pdf
1
AGREEMENT FOR LEGAL SERVICES
This Agreement is entered into by and between the City of South Miami, located at 6130
Sunset Drive, South Miami, Florida 33143, and Thomas F. Pepe, Esquire, located at 1450
Madruga Avenue, Suite 202, Coral Gables, Florida 33146.
Whereas, Article II, Section 7, paragraph A (2) of the Charter of the City of South
Miami establishes the office of City Attorney; and
Whereas, the City Attorney is appointed by and serves at the will and pleasure of the
City Commission; and
Whereas, the City Commission desires to have the City enter into a written contract
with Thomas F. Pepe, Esquire for legal services to be provided by him as the City Attorney
for the City of South Miami and to serve at the will and pleasure of the City Commission.
NOW, THEREFORE, the parties mutually agree as follows:
1. Scope of Services.
Thomas F. Pepe, Esquire, (hereinafter referred to as "City Attorney") shall render all
legal services that are required by the City's Charter, provided, however, that the City
Commission may direct or authorize others to participate in the delivery of legal services.
Should the City Attorney provide service to private clients outside the scope of this
agreement, he shall take all actions, within a 40 hour work week, to ensure that legal
work for the City of South Miami, authorized herein, always receives the highest
priority, and that the private workload shall never delay any work product or meeting
described in the scope of this Agreement.
(a) In addition, the City Attorney's duties shall include the following:
(i) Attend at all regular, special and emergency meetings of the City
Commission, the Environmental Review and Preservation Board, and the
Planning Board (Local Planning Agency);
(ii) Confer with and advise the City Commission, the City Manager, City
Clerk, the Environmental Review and Preservation Board, the Planning
Board, as well as the head of all of the departments of the City and the
head of the Human Resources; Code Enforcement, and Purchasing
Divisions, on legal matters when requested by them with the approval of
the City Manager;
(iii) Prepare and/or review all ordinances, resolutions, contracts, bonds,
employment agreements and other documentation or other written
municipal instruments as requested;
(iv) Provide an indication as to the legality or lack thereof, and any
recommended revisions to ensure the legality of all resolutions and
ordinances, prior to the City Manager placing them on the City
Commission agenda;
(v) Prepare legal opinions on matters affecting the City, as the Commission
may direct or as staff may request;
(vi) Attend the City Manager's staff meetings, when requested;
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(vii) Defend the City in all complaints, suits, and controversies in which the
City is a party, and prosecute all claims on behalf of the City, as directed
by the City Commission, before any court or other legally constituted
tribunal, provided, however, that other attorneys provided through the
City's insurance policies or other outside counsel as may be approved or
selected by the City Commission may occasionally provide such defense.
(viii) Recommend and coordinate outside legal services in specialized areas
such as Land Use, Labor (Employment Law), Bonds, Pensions, P3s, etc.,
with prior approval by the City Commission. The City Attorney shall not
be required to serve as sole legal counsel on matters relating to legal
specialties outside his areas of expertise. When, in the opinion of the City
Commission, the City's legal service should be provided by individuals
with specialized legal training, education and/or experience, the City
Attorney's duties and the scope of his work shall not include those legal
services, other than in a supervisory capacity. In such case, the City
Commission may authorize the City Attorney to retain outside counsel.
Payment for such outside legal counsel shall be made from the City's
budget appropriation for "Outside Professional Legal Services", Account
No. 001-1500-514-3410 and no deduction shall be made from the City
Attorney's retainer.
(b) Such other professional duties that are currently required by City Charter, City
ordinance, or City resolution. Should the City install a legal work -tracking
system that automatically records the requests for legal services by City staff and
Commission members, the City Attorney will incorporate this system into his
work process when it becomes functional. However, in the event that the system
causes the City Attorney, significant extra time or expense in operation of the
system, the City Attorney shall have a right to reopen negotiations of the contract
solely to negotiate additional compensation for the extra time and expense.
(c) Use of an emergency records backup system whereby all records related to the
City's legal matters shall be retained and archived using the City's secure digital
storage resources in a secure manner approved by and coordinated through the
City's IT services. Such records shall be available to the City Commission which
may share them with the Charter Officers as necessary, including in a situation
where the City Attorney may become indisposed. Due to the fact that the City has
previously allowed the City Attorney to serve private clients while serving the
City, a separate backup storage system shall be used for the City's legal matters to
avoid creating City access to files of private clients.
2. Compensation.
(a) Legal Services Retainer: The total amount of annual compensation for City
Attorney's legal services/retainer, exclusive of approved expenses (delineated
below) and exclusive of outside legal services (labor/employment law, land use,
etc.), is Two Hundred Sixty -Eight Thousand Four Hundred Fifty -Nine
($268,459.00) Dollars. The retainer shall be paid in equal monthly installments
and within 15 days of the City's receipt of an invoice for such fee. The invoice
shall be submitted to the City no earlier than the fifteenth day of the month in
which payment is due. The retainer shall increase by the CPI adjustment for
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Miami -Ft. Lauderdale -West Palm Beach, if positive, at the start of every fiscal
year. The retainer shall be billed to and paid by the Finance Department from the
account for "Legal Services Retainer", Account No. 001-1500-514-3120.
(b) The monthly retainer invoice shall include a generalized breakdown of the time
spent on assignments and litigation by identifying the department or
commissioner assigning the work, or if litigation, by identifying the case,
followed by the approximate number of hours expended in that month for each
department, Commission member and case. If the City Manager assigns cost -
recoverable legal work to the City Attorney, the City Attorney shall include a
separate line item in his monthly billing identifying the project, as well as the
date, description of legal services performed and amount of time in 1 Oths of an
hour spent on each project.
(c) Outside Counsel: The City Attorney is authorized to hire outside legal specialists
to perform work for the City without the need to have such work approved by
resolution provided that: (i) the total amount for each matter does not exceed
$5,000; and (ii) the legal services are billed showing the date services were
rendered, describing the services and providing the time expended on each date. A
copy of the bills for such outside counsel shall be included with the City
Attorney's bill for reimbursement and shall be charged to the City's budget
appropriation for "Outside Professional Legal Services", Account No. 001-1500-
514-3410; and (iii) in the event that the City Attorney determines that additional
work of a legal specialist is necessary for a particular matter that would exceed
the $5,000 limit, then the City Attorney shall obtain authority by written
resolution of the City Commission for those additional services which shall
include a describe the need for such service, and an estimate of the ultimate
expense of such service. Once approved by the Commission, these services shall
be billed to and paid by the Finance Department from the account for "Outside
Professional Legal Services", Account No. 001-1500-514-3410.
(d) Additional services for Third Parties. In the event that the City Attorney performs
services that are paid for by third parties, such as legal review of public records
prior to release, the City shall pay the City Attorney the fees that the City collects
from third parties for these services.
(e) Archiving City Attorney Files. At the City's option and expense, the City
Attorney shall allow the City's information technology specialist to establish an
automatic uploading of all of the City Attorney files in real time that relate to City
business, provided such system does not interfere with the operations of the City
Attorney or his office and provided it does not change the date modified stamp on
the documents.
3. Reimbursable Expense. The City shall not be charged for liability insurance or any
general office operating costs of the City Attorney, such as office rent, telephone service,
electricity, water, heat, air conditioning, in -town meals, the cost of office equipment, or
other expenses that are not directly related to City business. The City Attorney shall be
reimbursed for all expenses incurred on behalf of, or for the benefit of, the City. These
expenses include, but are not limited to, copying costs at the rate of 15 cents per page,
facsimile transmission cost of 15 cents per page, appearance fee of court reporters, cost for
transcription of testimony, witness fees, fees for service of summonses and subpoenas,
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courier fees, express mailing -type fees, postage, filing fees, travel expenses
(refundable/changeable economy class fare), out-of-town meals at the rate no greater than
provided for in Florida Statutes 112.061, accommodations and travel -related expenses,
expert witness fees, translator fees, cost of investigation, legal research by others,
paralegal work, books, dues and publications, continuing legal education relating to
municipal law and issues, aerial photography, maps, demonstrative evidence,
videographers, etc. These services shall be billed to and paid by the Finance Department
from the account for "Non -Professional Legal Expenses", Account No. 001-1500-514-
4065. An itemized bill will be delivered to the City no more often than every two weeks
and no less than monthly for reimbursement of these expenses. Expenses for litigation
shall be accounted for separately and by case name.
4. Term. The term of this agreement is one year from the date of the resolution of the
City Commission approving this contract. This contract shall automatically renew
unless either the City Commission by resolution or the City Attorney by written
communication to all members of the City Commission advises the other, at least 90 days
before the end of the term of the contract, of their intent not to renew the contract or of
the Commission's intent to publish a solicitation for the Office of City Attorney. In the
case of a solicitation, nothing shall prevent the City Attorney from submitting a response
to the solicitation. In the event that this contract automatically renews, it will not renew
more than four times so that the total term, including renewals, will not exceed five years.
Should the contract term expire without prior renewal or termination, the performance
and compensation terms of this contract will be honored on a month -to -month basis as
long as Thomas Pepe and the City Commission desire.
5. Termination. Either the City Commission or the City Attorney may terminate and
cancel this agreement without cause. If the Commission passes a resolution to terminate
the contract for any reason other than for cause, the City attorney shall be entitled to
receive severance pay at the contract rate paid on the 15`h of the month for four months.
In the event of termination, all documents, files, notes, memoranda, pleadings, exhibits,
project data, reports, evidence and any other document relating to the City or City
business shall be delivered to the City Clerk as soon as practicable. Following a
resolution by the majority of the Commission to terminate the contract, the City Attorney
may resign and declare a voluntary termination as of that date. Should a significant
breach of contract occur, written notice of the breach of contract shall be provided by the
Commission to the City Attorney. A substantial finding by the Commission that the City
Attorney is in significant breach of the contract shall constitute cause for immediate
termination.
6. Indemnification. The City shall defend, hold harmless and indemnify the City Attorney
in the event the City Attorney is made, or is threatened to be made, a party to any
proceeding by reason of his status as City Attorney, or by reason of any alleged act or
omission which occurred while he was acting as the City Attorney, including but not
limited to any alleged claim, fine, penalty, demand, or other legal, equitable, or statutory
action, whether groundless or otherwise, which arises out of the apparent scope of his
work or his authority as City Attorney. This indemnification provision includes the
payment of the deductible/retention but shall not require the City to indemnify the City
Page 4 of 5
Attorney for any liability or cost not covered by professional liability insurance and
which is resulting from his malfeasance, misfeasance or professional malpractice. This
provision shall survive the termination of this agreement.
7. Insurance. The City Attorney shall carry the following insurance coverage at his
expense, and provide a copy of the insurance certificate to the City:
(a) Comprehensive General Liability coverage having minimum limits of
$1,000,000.00 per occurrence combined single limit for bodily injury liability and
property damage liability. This shall include premises and/or operations;
independent contractors and products and/or completed operations; broad.form
property damage; and contractual liability endorsement.
(b) Business Vehicular Liability coverage having minimum limits of $1,000,000.00
per occurrence. Combined Single Limit for Bodily Injury Liability, and Property
Damage Liability. This shall include Owned Vehicles, Hired and non -Owned
Vehicles and Employees Non -Ownership provided employees are insurable.
'(c) Professional Liability (errors and omissions) coverage having minimum limits of
$1,000,000.00 per occurrence with respect to negligent acts, errors or omissions in
connection with the professional services to be provided and any deductible not to
exceed $20,000.00 each claim.
8. Independent Contractor. This agreement shall not be deemed to create the relationship
of employer -employee between the City and City Attorney, and no rights or privileges of
an employee of the City shall inure to City Attorney.
9. Effective Date. This contract shall become effective upon the date that it is approved by
resolution of the City Commission.
IN WITNESS WHEREOF, the Mayor,-, acting as the agent for the City Commission, and
Thomas F. Pepe, individually have hereinafter set their hand and seals on the date following their
name below.
ATTESTED:
CITY OF SOUTH MIAMI
CITY COMMISSION
Nkenga A� Payne, C1V Philip K. Stoddard
City Clerk Mayor
Dated: i, t. T,. y Z
READ AND APPROVED AS TO FORM,
LANGUAGE; ,L GALITY A
EXEC'CJTIO'N EREOF:
Thomas F. Pepe, individ allytand as
CitY�Attorney
Dated:
Page 5 of 5
MIAMI DAILY BUSINESS REVIEW
Published flatly except Saturday Sunday and
Least Holidays
Munn IaianmDeds County Flnndn
STATE OF FLORIDA
COUNTY OF MIAMI-DADE:
Before the undersigned authority personally appeared
GUILLERMO GARC,A, who on oath says that he or she is the
DIRECTOR OF OPERATIONS. Legal Notices of the Miami Daily
Business Review frk/a Miami Review, a daily (except
Saturday. Sunday and Legal Holidays) newspaper
published at Miami in Miami-Dede County. Florida. that the
attached copy of advertisement being a Legs' Advertisement
of Notice in the matter of
NOTICE OF PUBLIC HEARING
CITY OF SOUTH MIAMI -JUL 2. 2019
in the XXXX Coun.
was published in said newspaper in the issues of
06/21/2019
Af iant further says that the said Miami Daily Business
Review is a newspaper published at Miami. in said Idiami-Dade
County. Florida and that the said newspaper has heretofore
been continuously published In said Miami -Dade County, Florida
each day (except Saturday. Sunday and Legal Holidays) and
has been entered as second class mail inatter at the post
ofiice in Miami in said Miami -Dade County. Fiona for a period
of one year next preceding the first publication of the attached
copy of advertisement and affiant further says that he or she
has neither paid nor promised any person. firm or corporation
any discount rebatecommission or refund for the purpose of
secudng this advertisement for publication in the said
newspaper.
personally known to me
o
CITY OF SOUTH M U M I
NOTICE OF PUBLIC °HEARING
NOTWETS HERESY given that the City Contmieslon of 'me CSty oiS +'"
Miami, Florida will conduct Pub!ic Hawing(s) at its regular City Commission
meeting scheduled for Tuesday, July 2, 2019, beginning at 7A0 p.m., in the
City Commission Chamhers. 6130 Sunset Drive, to consider the following
item(s):
A Resolution retaining Thomas F. Pepe, Esquire, as the City Attorney tar
Souththe City Of Miami,
the City Manageoe ecuttapproving he coinstructing
contract on behalf of he City.
ALL interested parties are invited to attend and will be heard.
For further information, please contact the City Clerk's Office at:
305-663-6340.
Nkenga A. Payne, CMC
City Clark
Pursuant to Florida Statutes 286.0105. the City, hereby, advises the public
that it a person decides to appeal any decision made by this Board, Agency
or Commission with respect to any matter considered at its meeting or
hearing, he or she will need a record of the proceedings, and that for such
purpose, affected person may need to ensure that a verbatim record of the
proceedings. 1s made which record includes the testimony and evidence
upon which the appeal is to be based. 19-8510000408463M
6121