10/19/2011 Agreement DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE: October 27, 2011
TO: Suzanne A. Hutton
County Attorney
ATTN: Kathy M. Peters .
Executive Assistant
FROM: Isabel C. DeSantis, D.C.
At the October 19, 2011, Board of County Commissioner's meeting, the Board granted
approval of the following:
Item S2 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.
Attached are one fully-executed original and a duplicate copy of the document for your
handling. Should you have any questions, please feel free to contact this office.
-cc: Finance
File
Doc# 1856645 10/31/2011 1; 57PM
Filed & Recorded in Official Records of
MONROE COUNTY DANNY L. KOLHAGE
AGREEMENT
�g d
THIS AGREEMENT is entered into this 1 _- day of
2011, between the Board of County Commissioners of Monroe Coun (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, [no. (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 Fl
July 26, 2005, attar providing to the City Phase 1 and Phase 2 Environmental Site Assessments; f
A11 y
andU 1
WHEREAS, the May 2, 2005, option Agreement for Sale and Purchase provides that `except fca,)N 0Z CL v
those findings and conditions identified in the Property's Phase I and Phase 11 Environmental Site t {
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 wefts, or landfills are or have ever been located on the
property;' and
WHEREAS, the 2005 Phase 5 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
assessmen,, certified to the City of Key West and the Florida Co*Yrmt!nity Trust on j4*re 7, 2006,
stated in summary: "The testing of the Public Service Building Site revealed that no heavy metals
were found in the soils that are above actin 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 dean -up assessment, prior to
interest and late charges wbi& were incurred; and
WHEREAS, in a letter of April 2, 2009, the City requested payment of certain bdis related to the
environmental assessment conducted for KWBGS and the subsequent dean -up of oil
contamination; and
WHEREAS, the County recognizes that every 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
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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 folbws:
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 duly 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 $24246.00 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 b 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) A .'; BOARD OF UNTY COMMISSIONERS
Attest: DAN "I- KOLHAGE, Cleric OF MON F Ar---
r
By
Deputy Clerk Mayor /Chairman ^
(SEAL) Attest ,Clerk ITY OF KEY WEST, FLORIDA
By
Clerk n
By
City Manager
KEY WEST BOTANICAL GARDEN SOCIETY, INC.
By_ President W
City Clerk
J
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County, City &KWBGs a 9 2 Bk# 2540 Pg# 349
RELEASE OF ALL CLAIMS
This Indenture witnesses that I, Rick Harty, President, on behalf of the Key West
Botanical Garden Society, Inc., for good and valuable consideration, to wit: a settlement
agreement between the City of Key West, Monroe County and Key West Botanical Garden
Society, Inc. involving soil contamination and the City of Key West's payment toward the
resolution of said issue in excess of $24,000.00, do hereby for my heirs, personal representatives
and assigns, release and forever discharge Gallagher Bassett Services, Inc., Employer's Mutual
Inc., the City of Key West, and all other persons, firms or corporations charged or chargeable
with responsibility or liability, their heirs, representatives or assigns, from any and all claims,
demands, damages, costs, expenses, loss of services, actions and causes of action arising from
any act or occurrence up to the present time, and particularly on account of all property damages,
loss or damages of any kind sustained or that I may hereafter sustain in consequence of the
removal and disposition of soil from the Key West Botanical Garden Society site that occurred
on or about the month of June, 2008, at or near 5210 College Road located in Key West, Florida.
To procure payment of said sum, I thereby declare that I am more than 18 years of age;
that no representation about the nature and extent of said damages made by any attorney or agent
of any party hereby released, nor any representations regarding the nature and extent of legal
liability or financial responsibility of any of the parties released, have induced me to make this
settlement; that in determining said consideration there has been taken into consideration not
only the ascertained damages, but also the possibility that the damages sustained may be
uncertain and indefinite, so that consequences not now anticipated may result from the removal
of said soil described herein.
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Page 1 of 2
The undersigned enters into this agreement as an authorized representative of the Key
West Botanical Garden Society, Inc., said authority being granted to the undersigned at a meeting
of its Board of Directors held on 1/21/2011.
The undersigned agrees, as a further consideration and inducement for this compromise
settlement, that it shall apply to all unknown and unanticipated damages resulting from the
removal of said soil described herein, as well as to those now disclosed.
I understand that the parties hereby released admit no liability of any sort by reason of
said removal of soil described herein and that said consideration and settlement in compromise is
made to terminate further controversy respecting all claims for damages that I have heretofore
asserted or that I or my personal representatives or other representatives of the Key West
Botanical Garden Society, Inc., might hereafter assert because of said removal.
Signed and sealed this day of yd [[ Fk , 2011.
Z � O-A
RICK HARTY, Pre ' ent
KEY WEST BOTANICAL GARDEN SOCIETY, INC.
STATE OF FLORIDA )
COUNTY OF MONROE )
On the I �
J � da y of adm - s Ek , 2011 before me personally appeared RICK
HARTY (Personally Known/Identification Provided: kMflA DNVM- LiCF- ), to me
known to be the person who executed the foregoing instrument, and acknowledged that RICK
HARTY executed same as a free act and deed.
(SEAL) MR M M p
W MMMM t DqMw
My Commission Expires: Owded PPiftt WowOm,
Page 2 of 2
STA tE OF FLORIDA
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RESOLUTION NO. 11 -247
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF KEY WEST, FLORIDA, APPROVING THE
ATTACHED AGREEMENT BETWEEN THE CITY, MONROE
COUNTY AND THE KEY WEST BOTANICAL GARDEN
REGARDING REMEDIATION COSTS FOR THE FORMER
MONROE COUNTY PUBLIC SERVICE BUILDING SITE ON
THE PROPERTY LOCATED AT 5210 COLLEGE ROAD;
PROVIDING CONDITIONS; PROVIDING FOR AN
EFFECTIVE DATE
WHEREAS, City staff recommends approval of the attached
Agreement to resolve costs incurred during clean up of oil
contamination on the site of the former Public Service Building;
and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF KEY WEST, FLORIDA, AS FOLLOWS:
Section 1: That the City Manager is hereby authorized to
execute on behalf of the City of Key West the attached Agreement
among the City, Monroe County and the Key West Botanical Garden,
Inc., and to accept payment from the County in the amount of
$24,206.00.
Section 2: That the attached Release regarding fill that
was removed from the site is hereby approved acknowledged.
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Section 3: That this Resolution shall go into effect
immediately upon its passage and adoption and authentication by the
signature of the presiding officer and the Clerk of the Commission.
Passed and adopted by the City Commission at a meeting held
this 6th day of September , 2011.
Authenticated by the presiding officer and Clerk of the
Commission on September 7 , 2011.
Filed with the Clerk September 7 , 2011.
CRAIG CWES, MAYOR
A S
CHERYL SMI CITY CLERK Doc# P 5
Bk# 25540 40 Pg# 353
MONROE COUNTY
OFFICIAL RECORDS
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