01/19/2011 AgreementDANNY L. KOLHA GE
CLERK OF THE CIRCUIT COURT
DATE: February 17, 2011
TO: Suzanne A. Hutton
County Attorney
ATTN: Kathy M. Peters
Executive Assistant
FROM: Isabel C. DeSantis, D.C.
At the January 19, 2011, Board of County Commissioner's meeting, the Board granted
approval and authorized execution of Item Q10 concerning an Agreement for Expert Witness
Services between Monroe County and Terramar Environmental Services, Inc. in connection with
regulatory takings cases filed against Monroe County, including: Collins, et.al. v. Monroe County
v. State of Florida (Circuit Court Case No. CA-M-04-379); Lightner, et.al. v. Monroe County
(Circuit Court Case No. 2007-CA-280-K); and Lloyd A. Good v. Monroe County (Circuit Court
Case No. CA-K-01-977.
Enclosed is a duplicate original of the above -mentioned for your handling. Should you
have any questions, please feel free to contact this office.
cc: Finance
File
AGREEMENT FOR EXPERT WITNESS SERVICES
I
THIS AGREEMENT is made as of this / day of ,
2011, between Monroe County ("COUNTY"), a political subdivisid of the Sta of
Florida, whose address is 1100 Simonton Street, Key West, Florida 33040 and Terramar
Environmental Services, Inc. ("CONSULTANT") a Florida corporation, whose address is
1231 Crane Boulevard, Sugarloaf Key, Florida, 33042, for expert witness and consulting
services in connection with the regulatory takings cases filed against the County,
including but not limited to Collins, et. al. a Monroe County v. State of Florida (Circuit
Court Case No. CA-M-04-379); Lightner, et. al. v. Monroe County (Circuit Court Case
No. 2007-CA-280-k); and Lloyd A. Good v. Monroe County (Circuit Court Case No. CA-
K-01-977)("Litigation").
WHEREAS, COUNTY desires to engage CONSULTANT to provide expert
witness and consulting services in the area of environmental permitting and development
feasibility analysis in connection with the Litigation; and
WHEREAS, CONSULTANT desires to render these Services as described
SECTION I, Scope of Services; _-
NOW, THEREFORE, COUNTY and CONSULTANT in consideration of ate
mutual covenants contained herein, agree as follows:
SECTION I. SCOPE OF SERVICES
CONSULTANT, by and through its principal officer Philip A. Frank, shall assist the 1-0
County in preparing for and defending the County in the Litigation. CONSULTANT's
services shall include the following as necessary and required: (a) reviewing background
documents and other materials relevant to the performance of all duties under this
Agreement; (b) performing environmental permitting and development feasibility reports;
(c) conducting necessary or required research and analysis; (d) reviewing other
environmental permitting, development feasibility, and/or appraisal reports regarding the
properties at issue in the Litigation; and (e) preparing for and testifying at any depositions
and/or trials of the Litigation.
SECTION II. COMPENSATION
CONSULTANT shall be paid an hourly rate of ONE HUNDRED TWENTY DOLLARS
AND NO/cents ($120.00) for services performed under this Agreement. Compensation
for services provided by CONSULTANT shall not exceed Twenty-five Thousand Dollars
($25,000.00).
SECTION M. PAYMENT
In addition to the Compensation for CONSULTANT'S Services provided for herein,
Consultant shall be reimbursed for expenses (including air and ground transportation,
meals, and lodging) incurred in connection with travel performed at COUNTY' S request.
Consultant shall be reimbursed for expenses only to the extent and in the amounts
authorized by Section 112.061, Florida Statutes and the Monroe County Code, payment
will be made periodically, but no more frequently than monthly, in arrears. Expenses
shall be submitted by CONSULTANT and authorized by the COUNTY in writing with
backup documentation as required by the Clerk of Court.
The COUNTY' S performance and obligation to pay under this Agreement is contingent
upon an annual appropriation by the Board of County Commissioners and the approval of
the Board members at the time of contract initiation and its duration.
If the CONSULTANT'S duties, obligations and responsibilities are materially changed
by written amendment to this Agreement after execution of this Agreement,
compensation due to the CONSULTANT shall be equitably adjusted, either upward or
downward.
SECTION IV. PERIOD OF SERVICE
This Agreement shall become effective upon signature by all parties and shall continue in
effect until the services are completed or terminated. This Agreement may be terminated
by either party, with or without cause, upon seven days written notice to the other party.
SECTION V. NON -WAIVER OF IMMUNITY AND HOLD HARMLESS
COUNTY and CONSUTTANT acknowledge that COUNTY does not waive immunity
nor does COUNTY agree to hold the Consultant harmless; notwithstanding the
provisions of Sec. 768.28, Florida Statutes, the participation of the CONSULTANT and
the COUNTY 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.
SECTION VI. CONTROLLING LAW
This Agreement is to be governed by the law of the State of Florida Venue shall be in
Monroe County.
SECTION VII. SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable, the remaining
provisions shall be valid and binding upon the parties. One or more waivers by either party
of any provision, term or condition shall not be construed by the other party as a waiver of
any subsequent breach of the same provision, term or condition
SECTION VIII. NONDISCRIM NATION
CONSULTANT and COUNTY agree that there will be no discrimination against any
person, and it is expressly understood that upon a determination by a court of competent
2
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.
CONSULTANT or COUNTY agrees 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. 6101-61(Y7)
which prohibits discrimination on the basis of age; 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, ss. 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 maybe amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Monroe County Code Chapter 13,
Article VI, which prohibits discrimination on the basis of race, color, sex, religion,
national origin, ancestry, sexual orientation, gender identity or expression, familial status
or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which
may apply to the parties to, or the subject matter of, this Agreement.
SECTION IX. NOTICE
Any notices sent by the parties shall be deemed to have been duly served if delivered in
person to the individuals and addresses listed below, or if delivered or sent by first class
mail, certified, return receipt, or by courier with proof of delivery. All written
correspondence to the COUNTY shall be dated and signed by an authorized
representative of the CONSULTANT. The correspondence shall be directed to:
FOR COUNTY:
Mr. Robert Shillinger
Chief Assistant County Attorney
1111 12* Street, Suite 408
Key West, Florida 33040
FOR CONSULTANT:
Terramar Environmental Services, Inc.
1231 Crane Boulevard
Sugarloaf Key, Florida 33042
3
SECTION X. NO THIRD PARTY BENEFICIARIES
Nothing contained herein shall create any relationship, contractual or otherwise, with or
any rights in favor of, any third party.
SECTION XI. 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.
SECTION XII. 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.
SECTION XIII. 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 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. COUNTY and CONSULTANT specifically agree that
no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement.
SECTION XIV. COVENANT OF NO INTEREST
CONSULTANT and COUNTY 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.
SECTION XV. 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.
4
SECTION XVI. EXECUTION
This Agreement, including any exhibits included herein, constitutes the entire Agreement
between CONSULTANT and COUNTY, and supersedes and controls over all prior written
or oral understandings. This Agreement may be amended, supplemented or modified only
by a written instrument duly executed by the parties.
SECTION XVIL ATTESTATION.
Consultant agrees to execute such documents as the County may reasonably require, to
include a Public Entity Crime Statement, an Ethics Statement, Non -Collusion Affidavit
and a Drug Free Workplace Statement.
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
boar first written above.
L. HOLHAGE, Clerk
Deputy
Date: / — / 9 _ / /
TERRAMAR ENVIRONMENTAL
SERVICES, INC.
"CONSULTANT"
BOARD OF COUNTY COMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
/Chairman
Date: 9 —
Witnesses to Consultant
BY:
NAME: r'�� f7 // :A/'NAME:
i� Date:
TITLE:
ADDRESS: l Z W i9/ Ld, NAME:
2-Date:
Date: -112(l2oll—
5
I. 01hd1(
NON -COLLUSION AFFIDAVIT
A --
the city
of �� ! �G according to law on my oath, and under
penalty of perjury, depose and say that;
1) I
the Proposal for the project described as follows:
c s s &)'A Te,-.k
the bidder making
/�i�n�a�S-tvIJrGJ thc.
2) The prices in this bid have been arrived at independently without collusion,
consultation, communication or agreement for the purpose of restricting competition, as to any
matter relating to such prices with any other bidder or with any competitor;
3) Unless otherwise required by law, the prices which have been quoted in this bid have
not been knowingly disclosed by the bidder and will not knowingly be disclosed by the bidder prior
to bid opening, directly or indirectly, to any other bidder or to any competitor; and
4) No attempt has been made or will be made by the bidder to induce any other person,
partnership or corporation to submit, or not to submit, a bid for the purpose of restricting
competition;
5) The statements contained in this affidavit are true and correct, and made with full
knowledge that Monroe County relies upon the truth of the statements contained in this affidavit
in awarding contracts for said project.
STATE OF
COUNTY OF !�f^/� -
(Signature of Bidder)
2� /
DATE
PERSONALLY APPEARED BEFORE ME, the undersigned authority,
T )4 i [--I P A FV— who, after f irst being sworn by me, (name of
individual signing) affixed his/her signature in the space provided above on this
My commission expires:3urLq- 2D1 Lum
ecommission
SHONNA LAYHERResident of Marion County, IN
Expires: June 20, 2012
ETHICS CLAUSE
SWORN STATEMENT UNDER ORDINANCE NO. 10-1990
MONROE COUNTY FLORIDA
warrants that he/it has not employed,
retained or otherwise had act on his/its behalf any former County officer or employee in violation
of Section 2 of Ordinance No. 10-1990 or any County officer or employee in violation of Section 3
of Ordinance No. 10-1990. For breach or violation of this provision the County may, in its
discretion, terminate this contract without liability and may also, in its discretion, deduct from
the contract or purchase price, or otherwise recover, the full amount of any fee, omission,
percentage, gift, or consideration paid to the former County officer or employee.
(signature)
Date:
STATE OF
COUNTY OF _�_1 O/V rL-2 *5-2—
PERSONALLY APPEARED BEFORE ME, the undersigned authority,
Tows A. F' -�\4— who, after first being sworn by me, affixed his/her
signature (name of individual signing) in the space provided above on this day of
rL-P-;ZkkA i , 20 11
NOTARY PUBLIC
My commission expires:
SHONNALAYHER
ecommission
Resident of Marion County, IN
Expires: June 20, 2012
PUBLIC ENTITY CRIME STATEMENT
"A person or affiliate who has been placed on the convicted vendor list following a conviction for
public entity crime may not submit a bid on a contract to provide any goods or services to a
public entity, may not submit a bid on a contract with a public entity for the construction or repair
of a public building or public work, may not submit bids on leases of real property to public
entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or
CONTRACTOR under a contract with any public entity, and may not transact business with any
public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY
TWO for a period of 36 months fro the date of being placed on the convicted vendor list."
I have read the above and state that neither (Respondent's name)
nor any Affiliate has been placed on the convicted vendor list within the last 36 months.
f
(Signature)
Date: 2 /
STATE OF:
COUNTY OF:r?N/L��
Subscribed and sworn to (or affirmed) before me on FC bt2Lk-A ��, l 4 �
(date) by 31-10 r� tJra-- LA-) l WL (name of affiant). He/She is personally known to me
or has produced
identification) as identification.
NOT,
(type of
u
Scommission
SHONNA LAYHER M ommission Expires: 0 cP
Resident of Marion County, IN
Expires- June 20, 2012
DRUG -FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that:
(Name of Business)
1. Publish a statement notifying employees that the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance is prohibited in the workplace and
specifying the actions that will be taken against employees for violations of such prohibition.
2. Inform employees about the dangers of drug abuse in the workplace, the business's policy of
maintaining a drug -free workplace, any available drug counseling, rehabilitation, and employee
assistance programs, and the penalties that may be imposed upon employees for drug abuse
violations.
3. Give each employee engaged in providing the commodities or contractual services that are
under bid a copy of the statement specified in subsection (1).
4. In the statement specified in subsection (1), notify the employees that, as a condition of
working on the commodities or contractual services that are under bid, the employee will abide by
the terms of the statement and will notify the employer of any conviction of, or plea of guilty or
nolo contendere to, any violation of Chapter 893 (Florida Statutes) or of any controlled substance
law of the United States or any state, for a violation occurring in the workplace no later than five
(5) days after such conviction.
5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or
rehabilitation program if such is available in the employee's community, or any employee who is so
convicted.
6. Make a good faith effort to continue to maintain a drug -free workplace through
implementation of this section.
As the person authorized to sign the statement, I certify that this firm complies fully with the
above requirements. 1__j/
Bidders Signature
Date