Item N3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: February 16, 2011 Division: County Attomey
Bulk Item: Yes X No Staff Contact Person/Phone #: Suzanne Hutton. x3473
AGENDA ITEM WORDING: Approval of an agreement between the BOCC (County), the City of
Key West (City) and the Key West Botanical Garden Society, Inc. ( KWBGS) authorizing payment of
$24,206 to the City to settle the on -going dispute concerning costs incurred for clean -up, removal and
post clean -up assessment of contaminants at the site of the old Public Service Building (PSB) which the
County transferred to the City on 7/26/2005 and the City then leased to the KWBGS to develop as a
botanical garden.
ITEM BACKGROUND:
On 7/26/2005 the County transferred the old PSB located on College Road in Stock Island to the City.
In the Option Agreement for Sale and Purchase dated 5/2/2005, the County represented to the City that
"except for those findings and conditions identified in the Property's Phase I and Phase II
Environmental Site Assessments..." to the best of their knowledge no other contaminants were or have
ever been located on the property. The Phase I Report recommended a Phase H Environmental Site
Assessment because there had been a fuel tank on the premises and, when removed in 2003, samples
disclosed contamination. The Phase 2 Assessment, certified to the City and the Florida Community
Trust (FCT) on 6/7/2005, stated in summary "The testing of the PSB Site revealed 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 then leased the property to the KWBGS to develop as a botanical garden
and incorporate with the existing adjacent botanical garden. While excavating for installation of a pond,
KWBGS encountered what appeared to be oil contamination. $47,018 was incurred for clean-up,
removal and post clean-up assessment. The County received a written request from the City for
payment of certain bills related to the environmental assessment and clean up of oil contamination. The
County recognizes that even after its 2003 removal of considerable contaminated soil and after
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, and KWBGS has paid most of the bills for
assessment, clean-up and removal in order to continue its development of the botanical garden;
however, the County is not in privity with the KWBGS for the possession and operation of the site, only
with the City regarding the possession and ownership of the property. This agreement authorizing the
County to pay $24,206 to the City will finally resolve this on -going dispute.
PREVIOUS RELEVANT BOCC ACTION:
2003 Option Agreement for Sale and Purchase, samples disclosed contamination from removal of fuel
tank on premises
2005 Phase I Report recommends Phase 2 Environmental Site Assessment recommending "No further
action" (certified to City and FCT on 6/7/05)
7/26/2005 County transferred old PSB to City which City leased to KWBGS to develop as a botanical
garden
Summer 2008 KWBGS encountered oil contamination and $47,018 incurred for clean-up removal and
post clean-up assessment
4/2/2009 City requested payment of certain bills related to the environmental assessment conducted for
KWBGS and subsequent clean-up
CONTRACT /AGREEMENT CHANGES: N /A.
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: $24,206.00 INDIRECT COST: N/A BUDGETED: No
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 Anyo OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
Revised 1/09
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, there is insufficient documentation to confirm statutory responsibility for the clean -up;
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
S
Deputy Clerk
(SEAL)
Attest:
By
(SEAL)
Attest:
By
, Clerk
Clerk
Secretary
County, City & KWBGS Ag
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
Mayor /Chairman
CITY OF KEY WEST, FLORIDA
By
City Manager
KEY WEST BOTANICAL GARDEN SOCIETY, INC.
By.
President