Item P4BOARD OF COUNTY COMMIISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 6/15/11 - MAR Division: County Attorney
Bulk Item: Yes X No Staff Contact Person: Suzanne Hutton. x 3470
AGENDA ITEM WORDING: Approval of an Agreement with the City of Key West (City) and the
Key West Botanical Garden Society, Inc. (KWBGS) authorizing payment of $24,206.00 to the City to
settle the dispute regarding clean-up costs for the site of the old Public Service Building which was
transferred to the City on July 26, 2005 and subsequently leased to the Key West Botanical Garden
Society, Inc. by the City.
ITEM BACKGROUND: On 7/26/05 the County transferred the site of the old Public Service
Building to the City after providing to the City Phase I and Phase lI Environmental Site Assessments.
The 5/2/05 Option Agreement for Sale and Purchase provides that "..except for those findings and
conditions identified in the Property's Phase 1 and Phase II Environmental Site Assessment, Seller
warrants and represents... [that due to] the best of Seller's knowledge, no underground treatment,
buried, partially buried or above ground storage tanks, storage vessels, sumps, drums, containers,
water, gas or oil wells, or landfills are or have ever been located on the property.." The 2005 Phase I
report recommended a Phase R assessment due to the fact that there had been a fuel tank on the
premises that, when removed in 2003, samples disclosed contamination resulting in removal of the
contaminated soil. The Phase H assessment, certified to the City of Key West and the Florida
Community Trust on 6/7/05, stated in summary, "The testing of the Public Service Building Site
revealed that no heavy metals were found in the soils that are above action levels. The ground water
under the old tank site tested below action levels. This Phase Two Report and the findings of the
testing will recommend "No Further Action". The City leased the site to the Key West Botanical
Garden Society to develop as a botanical garden and incorporate with the existing adjacent botanical
garden. In the summer of 2008, while excavating for installation of a pond, KWBGS encountered what
appeared to be oil contamination and $47,018 was incurred for clean-up, removal and post clean-up
assessment, prior to interest and late charges which were incurred. In a letter dated 4/2/09, the City
requested payment of certain bills related to the environmental assessment conducted for KWBGS and
the subsequent clean-up of oil contamination. The County recognizes that even after its 2003 removal
of considerable oil -contaminated soil and obtaining an environmental assessment in 2005 which
required no further action, there may have remained residual and undetected contamination. The City
has expended approximately $24,000 in addressing the invoices, before interest and penalties. KWBGS
has paid most of the bills for assessment, clean-up and removal in order to continue with its
development of the botanical garden but the County is not in privity with the KWBGS for the
possession and operation of the site and is only in privity with the City regarding the possession and
ownership of the property. Upon payment of the $24,206.00 by the County to the City under this
agreement and the out-of-pocket expenditures already made by the City, and the application of the
settlement monies to be applied to the outstanding invoices, all three parties have agreed to hold each
of the other parties harmless from any and all claims for assessments and/or cleanup of any
contamination from the fuel tank removed and remediated first by the County and subsequently by
KWBGS as the lessee of the City.
PREVIOUS RELEVANT BOCC ACTION:
7/26/2005 County transferred the site of the old Public Service Building to the City of Key West, FL
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: $24,206.00 INDIRECT COST: N/A BUDGETED: Yes
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: $24,206.00 SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year
APPROVED BY: County Atty ,4OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
Revised 2/05
No
AGREEMENT
THIS AGREEMENT is entered into this day of ,
2011, between the Board of County Commissioners of Monroe County (County), Florida, a political
subdivision of the State of Florida, the City of Key West (City), a municipality incorporated in the
State of Florida, and the Key West Botanical Garden Society, Inc. (KWBGS), a not -for -profit
organization, as follows:
WHEREAS, the County transferred the site of the old Public Service Building (PSB) to the City on
July 26, 2005, after providing to the City Phase 1 and Phase 2 Environmental Site Assessments;
and
WHEREAS, the May 2, 2005, Option Agreement for Sale and Purchase provides that "except for
those findings and conditions identified in the Property's Phase I and Phase II Environmental Site
Assessments, Seller warrants and represents ... [that due to] the best of Seller's knowledge, no
underground treatment, buried, partially buried or above ground storage tanks, storage vessels,
sumps, drums, containers, water, gas or oil wells, or landfills are or have ever been located on the
property;" and
WHEREAS, the 2005 Phase 1 report recommended a Phase 2 assessment due to the fact that
there had been a fuel tank on the premises and that when it was removed in 2003, samples
disclosed contamination, as a result of which contaminated soil was removed. The Phase 2
assessment, certified to the City of Key West and the Florida Community Trust on June 7, 2005,
stated in summary: 'The testing of the Public Service Building Site revealed that no heavy metals
were found in the soils that are above action levels. The ground water under the old tank site
tested below action levels. This Phase Two Report and the findings of the testing will recommend
'No Further Action'."
WHEREAS, the City leased the site to the Key West Botanical Garden Society (KWBGS) to
develop as a botanical garden and incorporate with the existing adjacent botanical garden; and
WHEREAS, in the summer of 2008, while excavating for installation of a pond, KWBGS
encountered what appeared to be oil contamination; and
WHEREAS, $47,018 was incurred for clean-up, removal and post clean-up assessment, prior to
interest and late charges which were incurred; and
WHEREAS, in a letter of April 2, 2009, the City requested payment of certain bills related to the
environmental assessment conducted for KWBGS and the subsequent clean-up of oil
contamination; and
WHEREAS, the County recognizes that even after its 2003 removal of considerable oil -
contaminated soil and obtaining in 2005 an environmental assessment which required no further
action, there may have remained residual and undetected contamination; and
WHEREAS, it is desired to settle the outstanding issues between the County, City, and KWBGS
regarding this matter; and
WHEREAS, the City has expended approximately $24,000 in addressing the invoices, before
interest and penalties; and
WHEREAS, KWBGS has paid most of the bills for assessment, clean-up, and removal in order to
continue with its development of the botanical garden, but the County is not in privity with the
KWBGS for the possession and operation of the site, and is only in privity with the City regarding
the possession and ownership of the property;
NOW THEREFORE, the parties agree as follows:
1) The County, City and KWBGS agree to settle the dispute regarding the site of the old Public
Service Building transferred to the City on July 26, 2005, and which was reflected in a deed
recorded at the Official Records of Monroe County, OR Book 2136 Pages 2453-2471.
2) Upon execution of this agreement by both parties, the County will pay to the City the sum of
$24,206.00.
3) In consideration of the $24,206.00 to be paid by the County under this agreement and the out-
of-pocket expenditures already made by the City in addressing the contaminants at the site,
and the application of the settlement monies to be applied to the outstanding invoices, all three
parties hereby hold each of the other parties harmless from any and all claims for assessments
and/or clean-up of any contamination from the fuel tank removed and remediated first by the
County and subsequently by KWBGS as the lessee of the City.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day
and year first above written.
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
By.
Deputy Clerk
(SEAL)
Attest: , Clerk
By
Clerk
(SEAL)
Attest:
By
Secretary
County, City & KWBGS Ag
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
M
Mayor/Chairman
CITY OF KEY WEST, FLORIDA
M
City Manager
KEY WEST BOTANICAL GARDEN SOCIETY, INC.
By.
President