Item N8BOARD OF COUNTY COMIVIISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 5/18/11 - Key Largo Division: Cggpty Attorney
Bulk Item: Yes No XX Staff Contact Person: Bob Shillinger, 292 -3470
AGENDA ITEM WORDING: Approval of Amendment to Agreement dated January 19, 2011 between
Monroe County and Terramar Environmental Services, Inc.
ITEM BACKGROUND: The County has an agreement with Terramar Environmental Services, Inc. for
Phil Frank, Ph.D., to testify on behalf of the County in the defense of regulatory takings cases. The
proposed amendment expands the scope of services to include cases other than regulatory takings cases
where the County is named as a defendant, such as the matter of Florida Key Deer v. Craig Fugate, et al.,
90- 10037 -CV or other cases related to the biological opinion adopted by FEMA and the US Fish and
Wildlife Service as a result of the Key Deer case.
PREVIOUS RELEVANT BOARD ACTION: On 1/19/11, BOCC approved original agreement.
CONTRACT /AGREEMENT CHANGES: Changed the scope of services to expand type of cases in
which Dr. Frank can testify on behalf of the County.
STAFF RECOMMENDATIONS: Approval
TOTAL COSTS: TBD INDIRECT COST: TBD
DIFFERENTIAL OF LOCAL PREFERENCE: n/a
COST TO COUNTY: TBD
BUDGETED: Yes xx No
SOURCE OF FUNDS: Ad valorem
REVENUE PRODUCING: Yes No XX AMOUNT PER MONTH Year
APPROVED BY: County Atty A Q�-
OMB/Purchasmg Risk Management
DOCUMENTATION: Included
Not Required X
DISPOSITION: AGENDA ITEM #
AMENDMENT TO AGREEMENT DATED JANUARY 19, 2011
BETWEEN MONROE COUNTY AND TERRAMAR ENVIRONMENTAL SERVICES, INC.
On this day of May, 2011, A.D., the Board of County Commissioners of
Monroe County, Florida, as the legislative and governing body of Monroe County,
Florida, and in accordance with the powers enumerated in Section 125.01, Florida
Statutes, ( "County") and Terramar Environmental Services, Inc. ( "Consultant ") enter into
this Amendment to their Agreement dated January 19, 2011.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained
herein, the parties amend the January 19, 2011 Agreement ( "the Agreement ") as follows:
The County and Attorney hereby agree to amend the Agreement to expand the
scope of services set forth in Section I of the Agreement to include testifying as
an expert witness in any matter in litigation involving the County, including but
not limited to those regulatory takings cases specifically listed in the first
paragraph of the Agreement or to those cases in which the County is a defendant.
2. The remaining terms of the Agreement shall be unaffected by this Amendment
and shall remain in full force and effect except as specifically referenced herein.
3. THIS AMENDMENT to the Agreement shall become effective when executed
by both the CONSULTANT and executed by the Board of County
Commissioners of Monroe County, Florida.
Board of County Commissioners
Of Monroe County, Florida
Attest:
Danny L. Kolhage, Clerk
By:
Heather Carruthers, Mayor
Deputy Clerk
Date:
Witness for Consultant: For Terramar Environmental
Services, Inc.
Print Name
Print Name
Date:
Print Title
Date:
AMENDMENT TO AGREEMENT DATED JANUARY 19, 2011
BETWEEN MONROE COUNTY AND TERRAMAR ENVIRONMENTAL SERVICES, INC.
On this day of May, 2011, A.D., the Board of County Commissioners of
Monroe County, Florida, as the legislative and governing body of Monroe County,
Florida, and in accordance with the powers enumerated in Section 125.01, Florida
Statutes, ( "County ") and Terramar Environmental Services, Inc. ("Consultant) enter into
this Amendment to their Agreement dated January 19, 2011.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained
herein, the parties amend the January 19, 2011 Agreement ( "the Agreement") as follows:
1. The County and Attorney hereby agree to amend the Agreement to expand the
scope of services set forth in Section I of the Agreement to include testifying as
an expert witness in any matter in litigation involving the County, including but
not limited to those regulatory takings cases specifically listed in the first
paragraph of the Agreement or to those cases in which the County is a defendant,.
2. The remaining terms of the Agreement shall be unaffected by this Amendment
and shall remain in full force and effect except as specifically referenced herein.
3. THIS AMENDMENT to the Agreement shall become effective when executed
by both the CONSULTANT and executed by the Board of County
Commissioners of Monroe County, Florida.
Board of County Commissioners
Of Monroe County, Florida
Attest:
Damuy L. Kolhage, Clerk
By:
Deputy clerk
Witness for Consultant:
Print Name
Date:
MONROE C UNTY ATTORNEY
APP TO R
OB B. SH LLINGE JR.
CHIEF TWSTANT COUNTY ATTORNEY
Date:,-
Heather Carruthers, Mayor
LM. -
For Terramar Environmental
Services, Inc.
PVI0 -1
Print Name Q
Print Title
Date: j l
AGREEMENT FOR EXPERT WITNESS SERVICES
THIS AGREE11dENr is made as of this / day of
2011, between Monroe County ("COUNTY"), apolitical subdivisi of the S of
Florida, whose address is 1100 Simonton Street, Key West, Florida 33040 and Teanmar
- it l Services, Inc. ("CONSULTANT") a Florida corporation, whose address is
1231 Crane Boulevard, Sugarloaf Key, Florida, 33042, fce ercpert witness and consulting
services in c omia Lion with the regulatory takings cases filed against the County,
including but not limited to Coftm et. of v Monroe Como v State of Florida (Circuit
Court Case No. CA M - 379); Lightner, a aL v Monroe County (Circuit Caul Case
No. 2007 -CA 2Wk); and Lloyd A. Good v Monroe County (Circuit Court Case No. CA-
K-01- 977)( "Litigatit n
WHEREAS, COUNTY desires to engage CONSULTANT to provide =pert
witness and consulting services in the area of caviromucaw permitting and development
feasibility analysis in coaaxtion with the Litigation; and
WHEREAS. CONSULTANT desirrs to reader these Services as desari , cd IR 22
-2
SECTION I, Scope of Services; - ' —
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NOW, THEREFORE, COUNTY and CONSULTANT in consideration ofthe w
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mutual covenants contained herein, agree as follows:
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SECTION L SCOPE OF SERVICES _
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CONSULTANT, by and through its principal offices Philip A. Frank, shall assist tho
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Count in Pig for and defending the Canty in the Litigation. CONSULTANT's
services shall include the following as neeeasary and required: (a) reviewing badWound
documents and other materials relevant to the performance of all duties under this
Agwment; (b) pig eatviromnnuemal permitting and development feasibility
(c) conducting accessary or required research and analysis; (d) reviewing other
environmental permitting, development fewbility, and/or appraisal reports ngerding the
properties at issue in the Litigation; and (e) preparing for and testifying at any depontiong
and/or trials of the Litigation.
SECTION EL COA04MATION
CONSULTANT shall be paid an hourly into of ONE HUNDRED TWENTY DOLLARS
AND NO/cents ($120.00) for services perfamed under this Agreement. Coon
for services provided by CONSULTANT shall not exceed Twcuty- -five Thousand Dollars
($25,000.00).
SECTION 111.. PAYMENT
In addition to the Compensation for CONSULTANT'S Services provided for herein,
Consultant shall be reimbursed for ex (including air and ground transportation,
meals, and lodging) incaured in connection with travel at COUNTY'S
Performed request.
Consultant shall be reimbursed for expenses only to the extent and in the amounts
authorized by Section 112. 061, Florida Statutes and the Mourne 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.
N the CONSULTANT'S duties, obligations and responsibilities are materially changed
by written amendment to this Agreement after exaction of this Agroemcnt, -
compensation due to the CONSULTANT shall be equitably adjusted, either upward or
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 patty.
SECTION V. NON - WAIVER OF EWMuNITY AND HOLD SAR1bII,E.S3
COUNTY and CONSUTLANT admawledge that COUNTY does not waive immunity
nor does COUN'T'Y agree to hold the Consultant harmless; notwithstanding the
provisions of Sea 768.28, Florida Statute, the participation of the CONSULTANT and
the COUNTY in this Amt and the acquisition of any commercial liability
insinanoe 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 VL CONTROLLING LAW
This Agreement is to be governed by the law of the State of Florida. Venue shall be in
Monroe County.
SECTION VIL SEVERABILITY
If say pion of this Agreement is held invalid or unsrafozoeable, the remaining
previsions shall be valid and binding upon the patties. One or maze waivers by either party
of any provision, term or condition shall not be construed by the other party as a waiver of
any subsequent broach of the same provision, term on condition.
SECTION VUL NONDI.SCRE IINIATION
CONSULTANT and COUNTY agree that there will be no discriminatiozl against any
person, and it is expressly understood that upon a determination by a court of competent
jurisdiction that dis--imination 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 - ;nation. These include but am
not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 8 9-352) 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 sea; 3) Section 504 of the Rehabilitation Act of
1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of
4) The Age Discrimination Act of 1975, as armed (42 USC as. 6101 -6107)
which prohibits discrimination on the basin 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 Ad of 1912, ss. 523 and 527 (42 USC as. 69W-3 and 290ea31 as amended,
relating to co . at . ty of alcohol and drug abuse patent records; 8) Title VIII of the
Civil Rights Act of 1968 (42 USC a. et seq.). as amended, relating to nondiscrimination
in the sale, rental or financing of housing; 9) The Americana with Disabilities Act of
1990 (42 USC a. 1201 Note), as maybe amended frozn time to dine, relating to
nondiscarimiaation an the basis of disability; 10) Monroe County Code Chapter 13,
Article VI, which probubita discrimination on the basis of raM color, sea, religion,
national origin, ancestry. sexual orientation, gender identity or expmagion, familial status
or age; 11) Any other nondiscrimination provisions in any Federal state statutes which
ay Y parties to, or the subject matter of, this Agmemac
SECTION IR. NOTICE
Any notices sent by the partial shall be deemed to have been duly served if delivered in
P=011 to the individuals and addresses listed below, or if delivered or seat by fun class
mail, art died, return receipt, or by courier with proof of delivery. All written
oorrespondenoe to the COUNTY shall be dated and signed by an authorized
le resentative of the CONSULTANT. The correspondence shall be directed to
FOR COUNTY:
Mr. Robert Shillingm
Chief Assistant County Atboraoy
111112 Street, Suite 408
Key went, Florida 33040
FOR CONSULTANT:
Tertamar Environmental Services, Inc.
1231 Crane Boulevard
Sugarloaf Key. Florida 33042
3
SECTION % NO THIRD PARTY BEN WICIARICS
Nothing contained herein shall create any relationship, cont or otherwise, with or
any rights in favor of, any third party.
SECTION %L 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, succcasors, and assigns.
SECTION %II. AUTHORITY
Each ply represents and warrants to the other that the execution, delivery and
performance a of this Agreement have been duly authorized by all necessary County and
corporate action, as required by law.
SECTION %HL ADJUDICATION OF DISPUTES OR DISAGREBIUNTS
COUNTY and CONSULTANT agree that all disputes and disagc+cements shall be
attempted to be resolved by meet and confer sessions between re 117ps fives of each of
the parties. K 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 Amt or by Florida law. COUNTY and CONSULTANT specifically agree that
no party to this Agreement shall be required to eater into any arbitration proceedings
related to this Agreement.
SECTION %IV. 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 Agrecincat.
SECTION %V. 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 Statutea, 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 XVL EXECUTION
This Agreement, including any ethbits included hawn, _ the entire Ag=zw
between CONSULTANT and COUNTY, and supersedes and controls over all prise written
or oral understandings. This Agmement may be amended, supplemented ac modified only
by a written instrument duly executed by the parties.
SECTION XVE ATTESTATION.
Consultant agrees to execute such documents as the County may reasonably require. to
inchrde a Public Entity Crime Statement, an Ethics Statement, Non - Collusion Affidavit
and a Thug Free workplace Statement.
VM7WSS WHEREOF, the parties hereto have awcuted this Agmement as of the day
first written above.
B
L. HOLHAGE, Clerk
D /�/ 9 —�/
TERRAMA,R ENVIRONMENTAL
SERVICES, INC.
"CONSULTANT"
BY:
NAME:
BOARD OF COUNTY CMUMONM
OF MONBOE COUNTY, FLORIDA
By:
Dam - [ 9- //
whoessell to Consupan
NAME:
Date:
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ADDRESS: /Zy/ C/fNe a 4-1 NAME:
Date: / 2 c 1 2 011
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NON - COLLUSION AFFIDAVIT
the city
of �y �G according to law on my oath, and under
penalty of perjury, depose and say that;
1) I
am- �L ���}2 / =N�/, �,/�= S - the bidder making
the Proposal for the project described as follows:
�x�JLrt (,IJ��n1SS S'� vd�f,�s 61; f1, T�. rQ I»cr,� :h��ro�M.rn�al S- U�r/iGJ,�H
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 ��yr'J /4
COUNTY OF � .0ZO -e-
(Signature of Bidder)
1
DATE
PERSONALLY APPEARED BEFORE ME, the undersigned authority,
T' L I P A 9- R- y who, after f irst being sworn by me, (name of
individual signing) affixed his /her signature in the space provided above on this
20-�
My commission expires: Skru. Zb Wz
( eummlsslon Rea dentof Medan Cou IN
Expires: June 20, 2012
ETHICS CLAUSE
Z�/,/ Aj lceS
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 W. 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.
/ A - Z
(signature)
Date:
STATE OF /j/]
COUNTY OF / - / 0'V /� A&
PERSONALLY APPEARED BEFORE ME, the undersigned authority,
T �q A who, after first being sworn by me, affixed his /her
E-1
signature (name of individual signing) in the space provided above on this �_ day of
F"ce�zuA 9H
20 I
NOTARY PUBLIC
My commission expires:
( e c ommIssion
Resident of Marton County, IN
Expires: June 20, 2012
PUBLIC ENTITY CREME STATEMENT
'A person or affiilate 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 perbmn work as a contractor, supplier, subcontractor, or
CONTRACTOR wxler 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 9 v vendor list.'
1 have road tilts above and state that ' '
nor any Affiliate has been placed on the convicted vendor list wiMtin the last 36 name)
zffwA-
(ft)
Cate:
STATE OF:
COUNTY OF: _._1VOly e,
Subscribed and sworn to (or affirmed) before me on Rbau a 9 e 1 w,
(date) by S w o ri ma- LAY RV (name of affiant). HerShe is known to me
or has produced rL ipa. 9
(type of
1 4 n liRca Lion) as identification.
ecomm is&W SHONNA LAYHER Mission Expires: Q Le t Do lap ( a'
Resident of Marlon County, IN
Expires- June 20,2M2
DRUG -FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida Statute 28 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
polo 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. r ,/
Bidder's Signature
Date