Item P2 BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: July 17, 2013 Department: County Attorney
Bulk Item: Yes _ No Staff Contact Person: Natileene Cassel
Phone#: 292-3470
AGENDA ITEM WORDING: Approval of contract with Erin L Deady, P.A. as outside legal
counsel for issues related to the RESTORE ACT and other issues as specifically assigned in writing by
the County Attorney. This contract has a ceiling of Fifteen Thousand Dollars and No/cents ($15,000)
for attorney fees. Any additional fees must be accomplished by written amendment approved by the
Board of County Commissioners.
ITEM BACKGROUND: The County requires assistance in legal issues related to the RESTORE
ACT legislation, and related State and Federal procedures and regulations.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval
TOTAL COST: $15,000 in fees INDIRECT COST: _ BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: see above SOURCE OF FUNDS:
REVENUE PRODUCING: Yes_ No AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included Not Required
DISPOSITION: AGENDA ITEM#
Revised 7/09
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Erin L. Deady,P.A. Contract#
Effective Date:
Expiration Date:
Contract Purpose/Description:
Legal services related to RESTORE ACT and other issues
Contract Manager: 3470 Legal
(Name) (Ext.) (Department/Stop#)
for BOCC meeting on Agenda Deadline:
CONTRACT COSTS
Total Dollar Value of Contract: $ 15,000 Current Year Portion: $ 15,000
Budgeted? Yes❑ No ❑ Account Codes: - - - -
Grant: $ - - - -
County Match: $ - - - -
ADDITIONAL COSTS
Estimated Ongoing Costs: $ /yr For:
(Not included in dollar value above) (e . maintenance,utilities, janitorial,salaries,etc.)
CONTRACT REVIEW
Changes Date Out
Date In Needed Reviewer
Division Director Yes❑ No❑
Risk Management Yes[:] No❑
O.M.B./Purchasing Yes[:] No❑
,� .. ,� n
County Attorney �� Yes❑ No .� �, ��
r"
Comments:
OMB Form Revised 2/27/01 MCP#2
j
(r11%F lorl l541 E.Mitchell Hammock Road • Oviedo,Florida 32765
Phone: 800-633-6458 • Fax: 800-781-2010
NI n t u`•� C
www flmic.co m
Insurance Corapanys
Created by The Florida Bar for its members.
Lawyers Professional Liability Policy
This is a Claims Made and Reported Policy.Please read it carefully.
Declarations
Policy Number: 20110227
Item 1. Named Insured Erin L.Deady,P.A.
Mailing Address: 620 W. Bloxham Street
Lantana,Florida 33462
Item 2. Policy Period. From 09/20/2012 to 09/20/2013 at 12:01 A.M.
Standard Time at Your Address Shown Above
Item 3. Limit of Liability: $500,000 Per Claim
$1,000,000 Total Limit
Item 4. Deductible: $5,000 AnnualAggregate
Item S. Premium: $1682
Item 6. Forms and Endorsements Attached at Policy Issuance:
FLPL-101 (R.08/01/2011) FLPL 20OR(R.08/01/2011) FLPL-103 (R.08/01/2011)
FLPL-108 (R.08/01/2011)
The Policy is not valid until signed by Our authorized representative-
August 27,2012
Date Issued uth Ares mmIve
FUL-100(A0 810 112 0 1 1) Page 1.of 1'
AGREEMENT BETWEEN MONROE COUNTY AND
Erin L Deady, P.A.
THIS AGREEMENT, made and entered into this day of .2013, by and between the BOARD
OF COUNTY COMMISSIONERS OF MONROE COUNTY,FLORIDA, ("COUNTY"),a political subdivision of the
State of Florida whose address is 1100 Simonton Street, Key West, Florida 33040, and, Erin L. Deady,
P.A. ("ATTORNEY"),1111 Hypoluxo Road,Suite 207, Lantana, FI 33462, regarding the retention of
ATTORNEY by COUNTY to provide legal advice and services.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein,the
parties agree as follows:
1. THE CLIENT
The Client is the COUNTY, and to the extent ethically permissible, it's elected and appointed officers and
its employees,unless COUNTY advises ATTORNEY otherwise.
2. THE ATTORNEY
ATTORNEY is the individual or professional association named above and whose legally authorized signature
appears at the bottom of this Agreement. ATTORNEY is licensed to practice law in all jurisdictions
relevant to this matter. ATTORNEY has been retained specifically because ATTORNEY is understood
by COUNTY to be able to handle this matter. If ATTORNEY practices with others who may also provide
services to COUNTY, he or she understands that COUNTY expects that ATTORNEY will be responsible for
managing the representation, assuring compliance of others with the terms of this Agreement and ethical
requirements, preparing and substantiating all bills, and communicating with COUNTY. ATTORNEY may
not delegate or outsource this work without full written disclosure to,and prior written approval from,the
COUNTY.
3. TERM OF AGREEMENT
This Agreement and representation by ATTORNEY is effective upon execution by ATTORNEY and
acceptance and approval by COUNTY in accordance with COUNTY'S policies,ordinances,or governing
statutes.The representation shall continue until terminated by either the COUNTY, or by the
ATTORNEY in accordance with ethical requirements and/or the terms of this Agreement.
4. SCOPE OF THE WORK AND LIMITATION ON ATTORNEY FEES
ATTORNEY shall provide legal services and advice to COUNTY regarding legal representation involving
the RESTORE ACT,which may include but not be limited to the tasks listed on Exhibit"B".
ATTORNEY may be assigned new matters by the COUNTY ATTORNEY from time to time during the
term of the agreement those matters shall be included under this Agreement when assigned by the
COUNTY ATTORNEY in writing and accepted in writing by ATTORNEY. The new matter shall be given a
new name and the matter shall be billed under that name.
This contract is limited to a maximum of Fifteen Thousand Dollars and No/Cents ($15,000.00) in
attorney fees. ATTORNEY shall not exceed this amount in fees. Any additional work in excess of this
attorney fee ceiling shall be accomplished by written amendment approved by the Board of County
Commissioners in the manner set forth in paragraph 28 below.
4.1 Professional ability to perform work,appointment of contract manager
i
ATTORNEY warrants that he or she is authorized by law to engage in the performance of the activities
herein described, subject to the terms and conditions set forth in these contract documents.
ATTORNEY shall designate an individual attorney to be the contract manager for each matter and the
contract manager shall at all times exercise independent, professional judgment and shall assume
professional responsibility for the services to be provided.ATTORNEY warrants that he or she and the
authorized time keepers are authorized by law and the Rules and Regulations of The Florida Bar to
engage in the performance of the activities encompassed by this Agreement. If ATTORNEY is a
member of a law firm, either as partner, shareholder,associate, or other relationship,ATTORNEY
warrants that he or she is authorized to enter into this Agreement by the law firm.
4.2 Management of time keepers
ATTORNEY is responsible for managing the matter cost-effectively and competently, e.g., by insuring
that additional time-keepers are competent, properly supervised,efficient,and in compliance with
the terms of this Agreement as well as with ethical obligations.
5. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS OF INTEREST BEFORE
INITIATING REPRESENTATION
ATTORNEY has conducted a thorough investigation and determined that neither ATTORNEY nor his or her
firm has any ethical impediment, real or potential, including but not limited to conflicts of interest,to
representing COUNTY.To the extent that any ethical impediment, real or potential,is discovered or
ever arises,ATTORNEY shall immediately inform COUNTY in writing of the impediment(regardless of
whether ATTORNEY believes he or she has taken all steps necessary to avoid the impediment and
regardless of whether ATTORNEY believes that the impediment is insubstantial or questionable),make full
disclosure of the situation to COUNTY,obtain COUNTY'S express,written consent to continue the
representation of the other client,and take all steps requested by COUNTY to avoid or mitigate the
impediment.ATTORNEY understands that,if a direct or indirect conflict of interest arises which, in the
opinion of the COUNTY, cannot be avoided or mitigated under the Rules of Professional Conduct of The
Florida Bar,COUNTY may,in its discretion,(a)obtain reimbursement from ATTORNEY for all fees and
expenses paid to ATTORNEY in this matter; (b)obtain cancellation of all amounts allegedly owed by
COUNTY to ATTORNEY;and (c) obtain reimbursement for consequential expenses incurred by COUNTY,
including the cost of replacement counsel.
6. PAYMENTS TO ATTORNEY
ATTORNEY shall submit to COUNTY invoices with supporting documentation acceptable to the Clerk
on a schedule as set forth in the contract. Acceptability to the Clerk is based on generally accepted
accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of
funds.
6.1 ATTORNEY Fee (Hourly)
ATTORNEY will be paid for his or her services based on the number of hours expended on behalf of
COUNTY(rounded to the nearest tenth hour for each time entry), not to include time billable to or
compensated by other clients, multiplied by the ATTORNEY'S hourly rate.The following minimum
billing documentation and time-keeper requirements are a condition precedent to payment by the
COUNTY.
6.2. Non-billable time
ATTORNEY will bill COUNTY only for time reasonably and necessarily incurred to render professional
services on COUNTY'S behalf in accordance with this Agreement.Time attributable to billing questions
is not billable.Time expended by time-keepers who have not been approved by COUNTY is also not
billable.
2
6.3. Hourly Rates,and Changes to hourly rates
Hourly rates for ATTORNEY and additional Timekeepers will be set at:
Approved Time Keepers:
Name: Hourly Rate:
Erin L. Deady $200.00
Keith Davis $200.00
ATTORNEY will charge no more than the hourly rate quoted above throughout the
duration of the matter, unless otherwise agreed in writing and approved by COUNTY in the same
manner as Agreement.
6.4. Discounts to other Clients
The rates ATTORNEY will charge COUNTY represent the lowest rates charged by the same time-
keepers to other clients. In the event that lower rates or discounts are provided to other clients,
ATTORNEY and approved time-keepers will also provide them on the same basis to COUNTY.
6.5.Time keepers
As used in this Agreement,the term "time keeper" shall include ATTORNEY and other ATTORNEYS and
individuals identified in paragraph 6.3 of this Agreement who will be providing services under this
Agreement and who will bill the COUNTY for their services in accordance with this Agreement.
6.51. Duplication of effort
Unless advance COUNTY approval is obtained,ATTORNEY will not have more than one time-keeper
bill for court appearances,attendance at depositions and meetings, including meetings with COUNTY
representatives, and internal conferences. In the event that more than one person attends,only the
time of the person with the lowest rate will be billable.ATTORNEY is not permitted to use this matter
to provide on the job training for a time-keeper,and bill for that time-keeper's services,without
COUNTY'S advance approval.
6.5.2.Time-keeper changes
Time-keepers approved by the COUNTY are listed in paragraph 6.3 of this Agreement,and may be
amended from time to time,upon mutual agreement of the COUNTY and the ATTORNEY,to evidence the
then-current circumstances.Additional time-keepers may not be added to the matter without advance
written approval from COUNTY.In the event that additional time-keepers providing services which are to be
billed to COUNTY are to be added to the staff,then their hourly rates shall be provided to COUNTY in
advance,and,upon written approval by the COUNTY,their rates and billing practices shall comply with the
requirements of this Agreement.COUNTY expects to receive discounts or other concessions so that
any increases or changes in time-keepers will not result in unnecessary or unreasonable charges to
COUNTY, e.g., for training, internal conferences, and management.
6.6. Existing work product
To the extent the ATTORNEY makes use of existing work product,e.g., in the form of research
previously performed for another client,then ATTORNEY shall bill only that time expended in using
that work product for COUNTY. In other words, no premium, markup,or other adjustment shall be
made to COUNTY bill for time spent on work already performed.
7. BILLING OF FEES AND EXPENSES
ATTORNEY shall comply with the following requirements as to billing fees and expenses as a condition
precedent to COUNTY'S obligation to pay each bill:
7.1. Monthly bills
3
Unless otherwise agreed in a writing signed by the COUNTY, bills shall be issued monthly by
ATTORNEY within fifteen (15)days after the close of each month.ATTORNEY understands that
COUNTY requires prompt bills in part to facilitate effective management of the representation and
fees.
7.2. Bill format
ATTORNEY shall provide detailed, itemized bills which shall, at a minimum:
7.2.1 Description
Provide a general description of the matter,to include the name of the COUNTY department or
constitutional officer, if not indicated in the title of the matter,for which legal services are being
performed (e.g. Richard Roe v. Monroe County—EEO Claim); a description of the work performed in
enough detail so that each item is distinguishable from other listed items and sufficient to allow
COUNTY to determine the necessity for and reasonableness of the time expended,the services
performed,the project or task each service relates to,the subject and purpose of each service,and
the names of others who were present or communicated with in the course of performing the service.
For example,simply the word "research" is not acceptable, more detail about the type of research
and what was determined by the research is necessary.
7.2.2 Personnel
Clearly identify each timekeeper performing services in conjunction with each entry.Clearly identify
all persons who are not full-time lawyers employed by the ATTORNEY'S firm (including paralegals,
employees of ATTORNEY with their titles,subcontractors, independent contractors,temporary
employees,and outsourcing providers). Personnel who are not listed as additional timekeepers will
not be paid unless approved in writing under the requirements of this Agreement.
7.2.3 Time Records
Record the time expended by each time-keeper separately. In those situations where the minimum
billing increment exceeds the actual time spent on a task and several of these "minor"tasks are
performed, it is expected that the services will be aggregated until the total actual time spent meets
the minimum billing increment.
7.2.4 Totals and By Task
State the amount of time expended by each time-keeper broken down for each task.
7.2.5 Summary of Rates
In a summary at the beginning or end of the bill, provide the current hourly rate for each time-keeper,
the total time billed by each time-keeper in that bill,the product of the total time and hourly rate for
each time-keeper,the total fees charged, and are reconciliation between the amount charged and any
applicable estimated or budgeted amount, by task. In addition, each monthly statement should show
the aggregate billing for that matter from the commencement of the matter through the currently-
billed month.
7.3. Expenses
COUNTY will pay the actual, reasonable cost of the following expense items if incurred in accordance
with the guidelines below(a copy of the form used by the County is provided for your convenience as
Exhibit"A" attached)and promptly itemized in ATTORNEY'S monthly bill:
7.3.1 Reimbursable expenses
4
Actual cost for necessary long distance telephone callls,telecopying at$.25 per outgoing page,
overnight or expedited delivery, couriers, photocopying at$.15 per page, postage, court fees,and
other expenses approved in advance by COUNTY or as listed below:
7.3.1.1. Expedited or emergency services
ATTORNEY is expected to avoid using expedited or emergency services,such as express delivery
services,couriers,telecopying, overtime, and so on, unless necessary because of unexpected
developments or extremely short deadlines.COUNTY may refuse to pay for any such expenses when
incurred routinely or because of ATTORNEY'S failure to manage the matter efficiently.
7.3.1.2. Computerized research
ATTORNEY is expected to use computerized research services cost-effectively to reduce time spent on
research, for example,while closely-monitoring computerized research to insure that the charges are
reasonable and necessary.ATTORNEY is expected to pass through to COUNTY any discounts or other
arrangements that reduce the cost of computerized services.
7.3.1.3. Photocopying
ATTORNEY is encouraged to use outside copying services to reduce the cost of large-volume copying,
provided that these expenses are efficient,cost-effective, and incurred and billed in accordance with
this Agreement.ATTORNEY is responsible for insuring that all copying complies with copyright
obligations.
7.3.1.4.Transcripts
Transcripts should not be ordered without prior approval from COUNTY.Transcripts should not be
ordered on an expedited basis unless necessary and approved in advance by COUNTY.ATTORNEY
should obtain digital electronic/computerized copies of transcripts when available at a reasonable
cost to avoid charging for time spent digesting or indexing transcripts,and to allow COUNTY to
maintain a digital electronic/computerized database of all transcripts.
7.3.1.5 Travel Expenses
Travel expenses within the ATTORNEY'S local area, defined as a radius of 50 miles from the
timekeeper's office,will not be reimbursed and time in transit is not billable.
Travel expenses outside the local area may only be reimbursed if the travel is approved in writing by
COUNTY ATTORNEY. Reimbursable travel expenses, if approved, are the cost of transportation by the
least expensive practicable means(e.g., coach class air travel),the cost of reasonable hotel
accommodations, and the cost of transportation while out of town (e.g., by cab or rental car,
whichever seems reasonable, at the lowest available rate).Travel expenses will be reimbursed in
accordance with the applicable provisions of Florida Statute 112.321 and of the Monroe County Code
for"approved travelers" and shall be summarized on the Monroe County Travel Form by ATTORNEY
with all applicable receipts attached thereto.
7.3.1.6 Travel Time
Time spent in transit outside Attorney's local area may be billed only if ATTORNEY or time-keeper is
unable to avoid traveling by using other forms of communication or it is determined by the County
that travel is in the County's best interest.Travel by more than one time-keeper at the same time to
the same destination is not allowed without approval from COUNTY.
5
Approved travel time during normal business hours, defined week-days from 8:30 a.m.to 6:00 p.m.,
will be billed at the hourly rate listed for the time-keeper in paragraph 6.3 of this Agreement.
Approved travel time outside of normal business hours will be billed at one-half the hourly rate listed
for the timekeeper in paragraph 6.3 of this Agreement.
7.3.2. Non-reimbursable expenses
The following expenses will in no event be reimbursable without prior written approval by County
Attorney and approval by the Board of County Commissioners:
7.3.2.1. Personal and Office Costs
Meals for time-keepers not related to travel, overtime,word processing or computer charges,
personal expenses, expenses that benefited other clients, expenses for books, costs of temporary
employees, periodicals or other library materials, internal filing or other document handling charges,
clerical expenses,stationery and other supply expenses, utilities, and any other expense that is either
unreasonable or unnecessary. (The fact that ATTORNEY charges other clients or that other firms
charge their clients for an expense does not make it reasonable or necessary under this Agreement.)
7.3.2.2.Experts,consultants, support services,outsourced services,etc.
ATTORNEY is not authorized to retain experts, additional counsel,consultants, support services,or the
like,or to out source or delegate work outside ATTORNEY'S law firm,without prior written approval
by County Attorney and approval by the Board of County Commissioners. If agreed to ATTORNEY will
be responsible for selecting and managing the services of others so that their services and expenses
will be rendered in accordance with the terms of this Agreement, including terms applicable to
ATTORNEY.ATTORNEY will manage others to obtain cost effective services for COUNTY. Unless
otherwise agreed in writing,ATTORNEY shall obtain a written retainer agreement, in a form which
may be specified by COUNTY,from each service provider, with bills from each provider being sent to
both ATTORNEY and COUNTY.
7.3.2.3 Temporary Staffing
ATTORNEY will not bill COUNTY for the time and expenses of temporary employees, including so-
called "Temps" or contract ATTORNEYS or other staff from outside companies, nor"outsource" or
delegate work, nor charge for summer associates, law clerks, or student clerks, (collectively
"temporary staff"even if not temporarily employed)without full advance disclosure of the
employee's temporary or short-term status to COUNTY, including disclosure of the actual amount paid
or to be paid to the individual. Unless COUNTY expressly agrees in writing to paying additional
amounts after full disclosure by ATTORNEY,ATTORNEY may not charge COUNTY more than the actual
cost paid by ATTORNEY.
7.3.2.4._Expenses not passed through at actual cost
COUNTY will not pay any markup for expenses. COUNTY will only reimburse the ATTORNEY for their
actual approved out-of-pocket costs and expenses, whether incurred personally by an approved time-
keeper or incurred by other approved personnel (such as experts,consultants, support services
personnel,or outsourced services personnel).
7.3.2.5.Overhead not charged to County
COUNTY will not pay for any"expense" items that are in fact part of ATTORNEY'S overhead which
should be included within ATTORNEY'S fee,the determination of which expenses fall into this
category are strictly within the discretion of the COUNTY.
7.3.3.Advance approval of expenses
6
in addition to the items noted above, ATTORNEY shall obtain advance approval from COUNTY before
incurring any expense in excess of$1,000.00 if ATTORNEY expects to be reimbursed forthat expense.
COUNTY may refuse to pay any expense for which advance approval was not obtained by ATTORNEY.
7.3.4. Copies of receipts for expenses
ATTORNEY shall include copies of receipts for all expenses with the itemized monthly bill. COUNTY
may refuse to pay any expense item for which documentation is not provided by ATTORNEY.
7.3.5. Expenses (and fees)after termination
Upon termination of the representation,ATTORNEY shall promptly bill COUNTY for any remaining
reimbursable expenses and fees. COUNTY may refuse to pay any fees or expenses not billed within 45
days of termination of the representation.ATTORNEY is also expected to cooperate promptly with all
aspects of termination and, if applicable,transition to other counsel. Payment for fees and expenses is
contingent upon prompt,full cooperation.
7.4. Bill and expense documentation
ATTORNEY must maintain supporting documentation for invoices until at least one year after the
termination of the representation.This documentation shall be made available by ATTORNEY to
COUNTY(or COUNTY'S designated representative, including an accountant,the County Clerk or
County Clerk's representative, or legal bill auditor) upon COUNTY'S written request.ATTORNEY agrees
to cooperate with any examination of this documentation and ATTORNEY'S fees and expenses,e.g., by
responding promptly and completely to any questions COUNTY or its designated representative may
have.ATTORNEY shall notify COUNTY in writing at least 60 days in advance of destroying any such
records and, in the event that COUNTY requests that they be preserved,shall preserve them at least
one additional year or, at the option of the COUNTY,delivered to the COUNTY for storage by the
COUNTY,with COUNTY responsible for paying the actual cost of storage.This documentation shall
include,for example,original time records,expense receipts, and documentation supporting the
amount charged by ATTORNEY for expense items generated by ATTORNEY or his or her firm.COUNTY
reserves the right not to pay any fee or expense item for which sufficient documentation or expense
item for which sufficient documentation is not available to determine whether the item was necessary
and reasonable.
8. PAYMENTTERMS
ATTORNEY'S request for payments and reimbursements may be made in either the ATTORNEY'S name
or the name of the ATTORNEY'S law firm, as appropriate.ATTORNEY bills complying with this
Agreement are due and payable according to the Prompt Payment Act. if the bill materially fails to
comply with the requirements of this Agreement,then it is not due and payable until its deficiencies
are remedied by ATTORNEY.
9. MATTER MANAGEMENT
COUNTY will expect that all communications between ATTORNEY, and additional time keepers,and
COUNTY will be reviewed by ATTORNEY and that ATTORNEY will serve as the point of contact for this
matter, including billing questions.
9.1. Case monitorine
COUNTY will be advised promptly by ATTORNEY of all significant facts and developments in the matter
so that COUNTY may manage the matter effectively and make informed decisions about strategy,
tactics,settlement,scheduling, costs, and other related matters. COUNTY will promptly receive from
ATTORNEY copies of all orders,opinions, pleadings, briefs, memoranda (internal and external),
correspondence, and any other document material to the subject matter of this Agreement, such that
the COUNTY will have a current, up-to-date, "mirror"copy of the COUNTY'S file maintained by
7
ATTORNEY. For discovery materials or exhibits that are lengthy,ATTORNEY should discuss them with
COUNTY before providing a copy. Documents available in digital electronic/computerized form should
be provided in that form in lieu of paper copies, if requested by County.Additionally, ATTORNEY may
be required to submit,on a monthly basis, a case status and progress report to be submitted to the
Board of COUNTY Commissioners.The format of the report shall be in the form required by the
COUNTY ATTORNEY.
9.2. Case control
ATTORNEY shall discuss all significant issues of strategy and tactics, including motions, discovery,
pleadings, briefs,trial preparation,experts,and settlement,with COUNTY before implementation.
ATTORNEY is expected to exercise independent professional judgment.
9.3.ATTORNEY cooperation
ATTORNEY will cooperate with COUNTY or COUNTY'S representatives to promptly provide all
information COUNTY requests or needs about the subject matter of this Agreement and ATTORNEYS
bills and handling of the matter.
9.4. COUNTY cooperation
ATTORNEY should consult with COUNTY about all opportunities for COUNTY to save money or make
use of COUNTY'S expertise to assist in, e.g., responding to discovery, preparing for trial, locating
experts, and the like. COUNTY may also have personnel and facilities available to reduce the expenses
related to the subject matter of this Agreement.
10. CONFIDENTIALITY AND PUBLIC RELATIONS
ATTORNEY is not authorized to waive or release any privilege or other protection of information—
confidential,secret,or otherwise—obtained from or on behalf of COUNTY.ATTORNEY is to keep all
confidential, privileged, or secret information confidential.This requirement is perpetual, i.e., it will
continue even after the termination of the relationship and this Agreement.
10.1 Prohibition against use of information
This requirement is also intended to prohibit ATTORNEY from using information obtained from or on
behalf of COUNTY, including work product prepared at COUNTY'S expense,for other client's of
ATTORNEY or his or her firm,without COUNTY'S advance written approval.
10.2 No use of County for marketing purposes
ATTORNEY is not authorized to identify COUNTY as a COUNTY, e.g.,for purposes of marketing or
advertising,without COUNTY'S prior approval.
11. OWNERSHIP OF ATTORNEY FILES AND WORK PRODUCT
ATTORNEY understands that all files and work product prepared by ATTORNEY or his or her firm at the
expense of COUNTY(or for which COUNTY is otherwise billed) is the property of COUNTY.Without
COUNTY'S prior written approval,this work product may not be used by ATTORNEY or his or her firm
nor disclosed by ATTORNEY or his or her firm to others,except in the normal course of ATTORNEY'S
representation of COUNTY in this matter.ATTORNEY agrees that COUNTY owns all rights, including
copyrights,to materials prepared by COUNTY or by ATTORNEY on behalf of COUNTY.ATTORNEY shall
notify COUNTY in writing at least 60 days in advance of destroying any such records and, in the event
that COUNTY requests that they be preserved,shall preserve them at least one additional year(with
COUNTY responsible for paying the actual cost of storage).ATTORNEY shall provide COUNTY with
prompt access to(including the ability to make copies of) all ATTORNEY files and work product,
regardless of whether the representation or matter is ongoing and whether ATTORNEY fees and
expenses have been paid in full.
8
12. DISPUTE RESOLUTION
ATTORNEY and COUNTY agree that if a dispute arises between them that neither shall be required to
enter into any arbitration proceedings related to this Agreement
12.1. Disputes regarding Attorney fees or expenses
ATTORNEY and COUNTY agree that all disputes regarding ATTORNEY'S fees or expenses are to be
resolved pursuant to the procedures and practices for mediation by the Attorney Consumer
Assistance Program of the Florida Bar.
12.2. Disputes regarding interpretation
COUNTY and ATTORNEY agree that all disputes and disagreements between them regarding
interpretation of the Agreement shall be attempted to be resolved by a meet and confer session
between representatives of COUNTY and ATTORNEY. If the issue or issues are still not resolved to the
satisfaction of both within thirty(30)days after the meet and confer session,then either shall have
the right to terminate the Agreement upon ten (10) business days notice in writing to the other party.
12.3 Legal or Administrative procedures
In the event any administrative or legal proceeding is instituted against either the COUNTY or
ATTORNEY relating to the formation, execution, performance, or breach of this Agreement, the
COUNTY and ATTORNEY each agree to participate, to the extent required by the other, in all
proceedings, hearings, processes, meetings, and other activities related to the substance of this
Agreement; institution of any administrative or legal proceeding shall constitute immediate
termination of this Agreement. ATTORNEY agrees to forward copies of all documents in his or her
possession related to the matter which is the subject of this Agreement to COUNTY at the time of filing
any administrative or legal proceeding.
12.4 ATTORNEY'S Fees and Costs
In the event any administrative proceeding or cause of action is initiated-or defended by the COUNTY
or ATTORNEY relative to the enforcement or interpretation of this Agreement,the prevailing party
shall be entitled to an award of reasonable ATTORNEY'S fees, and court costs, as an award against the
non-prevailing party, and shall include reasonable ATTORNEY'S fees,and court costs in appellate
proceedings.
Mediation proceedings initiated and conducted pursuant to this Agreement or as may be required by
a court of competent jurisdiction shall be conducted in accordance with the Florida Rules of Civil
Procedure and the usual and customary procedures required by the circuit court of Monroe County
and shall take place in Monroe County.
13. NOTICE REQUIREMENT
Any notice required or permitted under this agreement shall be in writing and hand delivered or
mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the
following:
FOR COUNTY
County Administrator and County Attorney
500 Whitehead Street PO Box 1026
Key West, FL. 33041 Key West, FL 33040
FOR ATTORNEY
Erin L Deady
9
1111 Hypoluxo Road
Suite 207
Lantana, FI 33462
IIm iru„n„ ? .. .yVw.a:or��
954-593-5102
14. GOVERNING LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida
applicable to contracts made and to be performed entirely in the State. Venue for any legal action
which may arise out of or under this agreement shall be in Monroe County, Florida.
15. ENTIRE AGREEMENT
The entire agreement between the COUNTY and ATTORNEY with respect to the subject matter hereof
is contained in this Agreement.This Agreement supersedes all prior oral and written proposals and
communications between the COUNTY and ATTORNEY related to this Agreement. No provision of this
Agreement shall be deemed waived, amended or modified by either party unless such waiver,
amendment or modification is in writing and signed by the party against whom the waiver,
amendment or modification is claimed.This Agreement shall be binding upon and inure to the benefit
of the parties hereto,their permitted successors and assigns.
16. FLORIDA GOVERNMENT-IN-THE-SUNSHINE LAW
ATTORNEY agrees that, unless specifically exempted or excepted by Florida law,the provisions of
Chapter 120, Florida Statutes, generally require full and public discussion of matters to be voted upon
by the Board of County Commissioners.ATTORNEY agrees to consult with the COUNTY ATTORNEYS
office concerning the application of the Sunshine Law from time to time concerning specific
circumstances that may arise during the term of this Agreement.
17. FLORIDA PUBLIC RECORDS LAW
ATTORNEY agrees that, unless specifically exempted or excepted by Florida law or Rules and
Regulations of The Florida Bar,the provisions of Chapter 119, Florida Statutes, generally require public
access to all records and documents which may be made or received under this Agreement.
ATTORNEY agrees to consult with the County Attorney's office concerning the application of the Public
Records Law from time to time concerning specific circumstances that may arise during the term of
this Agreement.
18. NO ASSIGNMENTS
ATTORNEY shall not assign or subcontract its obligations under this agreement,except in writing and
with the prior written approval of the Board of County Commissioners of Monroe County,which
approval shall be subject to such conditions and provisions as the Board may deem necessary. This
paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or
subcontractor shall comply with all of the provisions of this Agreement. Unless expressly provided for
therein, such approval shall in no manner or event be deemed to impose any additional obligation
upon the Board.
19. TERMINATION
Either of the parties hereto may terminate this contract without cause by giving the other party
fifteen (15) business days written notice of its intention to do so.
19.1 Documents forwarded to COUNTY
10
ATTORNEY agrees to forward to COUNTY along with Notice of Termination or upon receipt of Notice
of Termination, depending upon which party terminates the Agreement, copies of all documents in his
or her possession of any nature whatsoever related to the ATTORNEY'S representation of COUNTY or
obtained due to ATTORNEY'S representation of COUNTY.
19.2 Restriction on Communications
ATTORNEY agrees not to communicate with the public, including the press, about COUNTY or about
this matter.
20. SEVERABILITY
If a term,covenant, condition or provision of this Agreement shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction,the remaining terms,covenants,
conditions and provisions of this Agreement shall not be affected thereby; and each remaining term,
covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the
fullest extent permitted by law unless the enforcement of the remaining terms,covenants,conditions
and provision of this Agreement would prevent the accomplishment of the original intent of this
Agreement.The COUNTY and ATTORNEY agree to reform the Agreement to replace any stricken
provision with a valid provision that comes as close as possible to the intent of the stricken provision.
21. CAPTIONS
The captions set forth herein are for convenience of reference only and shall not define, modify, or
limit any of the terms hereof.
22. LEGAL OBLIGATIONS AND RESPONSIBILITIES; NON-DELEGATION OF CONSTITUTIONAL OR
STATUTORY DUTIES
This Agreement is not intended to relieve, nor shall it be construed as relieving, either the COUNTY or
ATTORNEY from any obligation or responsibility imposed upon each by law except to the extent of
actual and timely performance thereof by the other, in which case the performance may be offered in
satisfaction of the obligation or responsibility. Further this Agreement is not intended to authorize,
nor shall it be construed as authorizing,the delegation of the constitutional or statutory duties of the
COUNTY,except to the extent permitted by the Florida Constitution,state statutes,case law, and,
specifically,the provisions of Chapter 125, Florida Statutes.
23. RECORDS
ATTORNEY shall maintain all books, records, and documents directly pertinent to performance under
this Agreement, including the documents referred to in this Agreement, in accordance with generally
accepted accounting principles,consistently applied. Upon ten (10) business days written notice to
the other, representatives of either the COUNTY or ATTORNEY shall have access,at all reasonable
times,to all the other party's books, records,correspondence, instructions, receipts,vouchers and
memoranda (excluding computer software) pertaining to work under this Agreement for the purpose
of conducting a complete independent fiscal audit.ATTORNEY shall retain all records required to be
kept under this Agreement for a minimum of five years, and for at least four years after the
termination of this agreement.ATTORNEY shall keep such records as are necessary to document the
performance of the agreement and expenses as incurred, and give access to these records at the
request of the COUNTY,the State of Florida or authorized agents and representatives of said
government bodies. It is the responsibility of ATTORNEY to maintain appropriate records to insure a
proper accounting of all collections and remittances.ATTORNEY shall be responsible for repayment of
any and all audit exceptions which are identified by the Auditor General for the State of Florida,the
11
Clerk of Court for Monroe County,the Board of County Commissioners for Monroe County, or their
agents and representatives.
24. PUBLIC ACCESS
The COUNTY and ATTORNEY shall allow and permit reasonable access to and inspection of, all
documents, papers, letters,or other materials subject to the Florida Public Records Law, as provided
in Chapter 119, Florida Statutes, and made or received by the them, unless specifically exempted by
State Statute, Rules and Regulations of The Florida Bar, or case law. COUNTY shall have the right to
cancel this agreement upon violation of this provision by ATTORNEY.
25. MONROE COUNTY CODE ETHICS PROVISION
ATTORNEY warrants that he or she has not employed, retained or otherwise had act on his 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. 101990. For breach or
violation of this provision the COUNTY may,at its discretion,terminate this Agreement without
liability and may also, at its discretion, deduct from the sums owed under the Agreement,or
otherwise recover,the full amount of any fee, commission, percentage,gift,or consideration paid to
the former or present COUNTY officer or employee.COUNTY employees and officers are required to
comply with the standards of conduct 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, and misuse of public position,conflicting employment or contractual relationship, and
disclosure of certain information.
26. PUBLIC ENTITY CRIME STATEMENT
Florida law provides that 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 an agreement to provide any
goods or services to a public entity, may not submit a bid on a agreement 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,sub
contractor, or consultant under a agreement 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 thirty-six(36) months from the date of being placed on the convicted vendor list.
ATTORNEY warrants the neither ATTORNEY nor any authorized time keeper has been named to the
convicted vendor list.
27, ANTI-KICKBACK
ATTORNEY warrants that no person has been employed or retained to solicit or secure this
Agreement upon any contract or understanding for a commission, percentage, brokerage or
contingent fee,and that no employee or officer of the COUNTY has any interest, financially or
otherwise, in this Agreement, except as expressly stated herein. For breach or violation of this
warranty,the COUNTY shall have the right to annul this agreement without liability or, in its
discretion,to deduct any sums to be paid by COUNTY under this Agreement,or otherwise recover,the
full amount of such commission, percentage, brokerage or contingent fee.
28. MODIFICATIONS AND AMENDMENTS
This Agreement may not be modified in any way without the express,written consent of both
parties. Any and all modifications and Amendments of the terms of this Agreement shall be in writing
and executed by the Board of County Commissioners for Monroe County and by ATTORNEY in the
same manner as this Agreement.
29. INDEPENDENT CONTRACTOR
12
At all times and for all purposes hereunder,ATTORNEY is an independent contractor and not an
employee of the Board of County Commissioners of Monroe County. No statement contained in this
Agreement shall be construed so as to find ATTORNEY or any of the authorized time keepers,to be
the employees of the Board of County Commissioners of Monroe County, and they shall be entitled to
none of the rights, privileges or benefits of employees of Monroe County.
30. COMPLIANCE WITH LAW
In carrying out ATTORNEY'S obligations under this agreement,ATTORNEY shall abide by all statutes,
ordinances, rules and regulations pertaining to or regulating the provisions of this Agreement,
including those now in effect and hereafter adopted.Any violation of said statutes,ordinances, rules
or regulations shall constitute a material breach of this Agreement and shall entitle COUNTY to
terminate this Agreement immediately upon delivery of written notice of termination to ATTORNEY.
31. LICENSING
ATTORNEY warrants that ATTORNEY and additional timekeepers do presently have,shall have prior to
commencement of work under this Agreement, and at all times during said work, all required licenses
and permits whether federal,state,County or City.
32. NON-DISCRIMINATION
ATTORNEY agrees that he or she will not discriminate against any person, and it is expressly
understood that upon a determination by a court of competent 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. ATTORNEY 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. 6101-6107)
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.
33. NON-RELIANCE BY NON-PARTIES
No person or entity shall be entitled to rely upon the terms,or any of them,of this Agreement to
enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or
program contemplated hereunder, and the COUNTY and ATTORNEY agree that neither the COUNTY
nor ATTORNEY or any officer, agent,or employee of each shall have the authority to inform, counsel,
or otherwise indicate that any particular individual or group of individuals,entity or entities, have
13
entitlements or benefits under this Agreement separate and apart, inferior to,or superior to the
community in general or for the purposes contemplated under this Agreement.
34. ATTESTATIONS
ATTORNEY agrees to execute such documents as the COUNTY may reasonable require, including a
Drug-Free Workplace Statement,and a Public Entity Crime Statement.
35. COUNTY AUTHORITY
This Agreement has been duly noticed at a legally held public meeting conducted in Monroe County,
Florida.COUNTY'S performance and obligation to pay under this contract, is contingent upon annual
appropriation by the Board of County Commissioners.
36. HOLD HARMLESS AND INSURANCE
Prior to execution of this agreement,ATTORNEY shall furnish COUNTY Certificates of Insurance
indicating the minimum professional liability coverage for ATTORNEY and additional time-keepers in
the amount of one million dollars($1,000,000.00).ATTORNEY agrees to keep the same amount of
coverage or more at all times and to provide proof of said coverage to COUNTY at COUNTY'S request
at any time during the term of the Agreement.
37. NO PERSONAL LIABILITY
No covenant or obligation contained in this Agreement shall be deemed to be a covenant or obligation
of any member, officer, agent or employee of the Board of County Commissioners of Monroe County
in his or her individual capacity and no member, officer, agent or employee of the Board of County
Commissioners of Monroe County shall be liable personally on this Agreement or be subject to any
personal liability or accountability by reason of the execution of this Agreement.
38. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts,each of which shall be regarded as
an original, all of which taken together shall constitute one and the same instrument and the COUNTY
and ATTORNEY may execute this Agreement by signing any such counterpart.
THIS AGREEMENT will become effective when executed by both the ATTORNEY and executed
by the Board of County Commissioners of Monroe County, Florida.
Board of County Commissioners
Of Monroe County
Attest:
Amy Heavilin, CPA,
Clerk of Circuit Court By:
Mayor
By: Date:
Deputy Clerk
Date:
MONROE COUNT'' ATTORNEY
VED
ATTORNEY: :.,PRO S TO F .�
Signature NA ILEENE W. CASSEL
- ASSISTANT COUNTY ATTORNEY
Date ... ...�
Print Name
Address: . ... . 3.
DATE
14
° a
C
m � 88 w � a =
m g�Q c m oro m
st m c o r
ci
m CD
� a c 2 L� y
N
jam c m m
m n W a
�m CI)
o3m
CL G o
P-6 n lam
002
o �m
rn o Q L
sa m
�m3 0
CA
dCL 0
co w <Sb
R� c CL w <
n ' c� m w c m Z O
o
Z c
c °,w O
gym O M
3 2 n
�m
� 0 m
$'QQ CrJ
< H
W
of 3c ��•
�m 40 0
o -i>OM
w
zz
o
n
O CO) cn g Lp z Fn Fnn 49 O
m m m D Yn' ai -of
a M'^ n a
< <�, C a, D ° �'c 3 O
o o�� z CA
o N N 9 "i n 0
m T m a3 �, nw
F < ° u? m 2 G
orn
o o
o �v n
am
•c w
g�
m � 3
w =�
�8 O
SL•az
a
Em o
�SL o
5 y
EXHIBIT"B"
RESTORE ACT LEGAL SERVICES SCOPE OF WORK
1. Draft Department of Treasury Rules.
a. Prepare and develop legal positions (for County review and input) on Draft
Treasury Regulations for consistency with RESTORE Act, NEPA, CWA, Davis Bacon,
applicable Office of Management and Budget (OMB) and Department of Interior
(DOI) Policy Guidance.
b. Build support for positions on Draft Treasury Regulations.
2. Prepare County positions on the Draft Gulf Restoration Council Comprehensive Plan.
a. Develop supplemental written comment (for County review and comment) on the
Comprehensive Plan (comments due 6/24) focusing on consistency with the
RESTORE Act.
b. Engage Gulf Restoration Council staff on County positions.
c. Work to build support for County positions on Council Plan.
Initial Issues that Treasury Regulations Must Address
1. Defining specific terms and processes now will save time and effort to comply with the Act
and expedite distribution of funds. Chief concerns include clarifying the process and
procedures to comply with the Act,whether that be for specific determinations required by
the Act itself or what documentation the regulations will require for project funding.
2. List all applicable statutes that must be complied with so that local governments and others
understand their obligations under the RESTORE Act. We understand that nothing in the
RESTORE Act supersedes or otherwise affects any other provision of Federal law, including,
in particular,laws providing recovery for injury to natural resources under the Oil Pollution
Act of 1990 (33 U.S.C. 2701 et seq.) and laws for the protection of public health and the
environment. These laws include but are not limited to Clean Water Act (CWA), National
Environmental and Policy Act(NEPA),the Buy American Act and the Davis-Bacon Act.
3. Specific to NEPA, the Treasury Regulations must identify actions which generally require
preparation of a NEPA document (either an Environmental Impact Statement or an
Environmental Assessment), or which are categorically excluded from NEPA. As required
by regulations of the Council on Environmental Quality (40 CFR 1505.1 and 1507.3),
agencies must issue regulations identifying classes of actions generally requiring an
Environmental Impact Statement(EIS),generally not subject to the National Environmental
Policy Act(NEPA),and actions requiring an Environmental Assessment(EA).
Additionally,the Treasury Regulations need to clearly define the process going forward:
• The Regulations should provide guidance on documentation needed to meet all federal and
state requirements simultaneously with one set of project approval documents, including
permitting, regulatory, wage or materials requirements, etc. For Florida, that should
include, but not be limited to environmental regulatory requirements contained within
Chapters 373 and 403,F.S.
1
• Regarding the planning process,the Regulations should:
o Specify how the Comprehensive Plan, State Plans and Multi-year implementation
plans will be determined"consistent"with one another.
o Identify the content of multi-year implementation plans to assure compliance with
RESTORE Act and specify procedures for project modifications, project phasing and
modifications to projects or multi-year implementation plans. Perhaps an outline of
contents should be included in the Regulations or as an Appendix to them. This will
aid local governments in quickly developing clear plans also resulting in a more
streamlined review process for Treasury.
• The Regulations should define terms and processes such as:
o The process or processes for distribution of project funds and making "grants"
pursuant to (t)(2)(E)(ii)(III) "Limitation on transfers" (presumably different from
other types of funds distributions).
o Criteria to meet the various project purposes (including economic recovery). This
will avoid proffering projects that will not be approved wasting both time and
expense for local governments and Treasury.
o How "certification' will occur (criteria to achieve certification and who will provide
it or approve it) for determining that the project or program:
(I) is designed to restore and protect the natural resources, ecosystems,
fisheries, marine and wildlife habitats,beaches, coastal wetlands, or economy of
the Gulf Coast;
(II) carries out 1 or more of the activities described in clauses (i) and (ii) of
subparagraph (B);
(III) was selected based on meaningful input from the public, including broad-
based participation from individuals, businesses, and nonprofit organizations;
and
(IV) in the case of a natural resource protection or restoration project, is based
on the best available science".
o Activities considered as "administrative costs" and "planning assistance".
Administrative costs must capture all costs including auditing, monitoring and
reporting.
o The requirements (including documentation) for"previously approved projects and
programs" (as opposed to new project starts). For instance,will the development of
a multi-year implementation plan be considered a "previously approved project or
program" if it is started before a local government actually receives RESTORE Act
funds?
• The Regulations should outline public input and stakeholder involvement opportunities
such as:
o "Significant actions and associated deliberations" subject to public transparency
requirements (and what those requirements will be).
o The scopes and composition of the scientific advisory committee and the committee
to advise the Council on public policy issues.
• Land acquisition requirements should be described whether the project lands are initiated
at the federal,state,local or private entity level.
• Auditing and enforcement processes and procedures should be defined such as:
2
o Back end project monitoring, performance measures or milestones and reporting of
pre and post project benefits (including evaluating progress during project
implementation). Review timeframes and deadlines should be established for
various steps of the approval,auditing and monitoring processes.
o The role and procedures of the Office of the Inspector General of the Department of
the Treasury to conduct, supervise, and coordinate audits and investigations of
projects,programs,and activities funded.
o Any enforcement provisions and what that process may entail,including timeframes
associated with those provisions.
Initial Overview of the Council Plan Requirements per the Act:
Not later than 1 year after the date of enactment of the RESTORE Act,and after notice and
opportunity for public comment,the Chairperson,on behalf of the Council and after approval by the
Council,shall publish in the Federal Register2 the initial Comprehensive Plan to restore and protect
the natural resources,ecosystems,fisheries,marine and wildlife habitats,beaches,and coastal
wetlands of the Gulf Coast region. The Plan must include the following:
1. Such provisions as are necessary to fully incorporate in the Comprehensive Plan the
strategy,projects,and programs recommended by the President's Gulf Coast Restoration
Task Force;
Recommendation: The Draft should indicate if the project listed was recommended by the
Task Force or not.
2. A list of any project or grogram authorized prior to the date of enactment of this subsection
but not yet commenced,the completion of which would further the purposes and goals of
this subsection and of the RESTORE Act 3 But,the Draft Initial Comprehensive Plan itself
states: "In general, Council Members put forward projects and programs that have either
been federally authorized by Congress or approved under a State program plan or action."
(See language above: the Draft Plan seems to qualify"project and programs"as federally
authorized or approved under a State initiative which seems more limited than the
RESTORE Act language"any project or program"). Further,the document states,"the
Council will use an open and transparent process to evaluate and select ecosystem
restoration projects under the Council-selected Restoration Component"and the"Council
will further review the projects and programs on this list to determine whether each project
or program meets all applicable requirements of the RESTORE Act"
Recommendation: Please outline the specific process that will be used to evaluate and select
ecosystem restoration projects("any"projector program authorized but notyet commenced
or projects and programs that have either been federally authorized by Congress or approved
under a State program,plan or action"?)and how the 'further review"will take place to
Presumably 1 year from July 6,2012 when it was signed into law by the President although the Federal
Register notice provides deadline of July 8th.
2 Comments are due June 24,2013:
htto://narknlanning.nps.gov/commentFormBasic cfm?documentlD=53621
3 See also the Federal Register notice stating: Draft Plan,the preliminary lists of"authorized but not yet
commenced"ecosystem restoration projects,and Draft PEA by either of the following methods
3
determine whether or not the currently listed projects will continue to be included.
Additionally,please provide the "chain of com►nand"for making those decisions.
3. A description of the manner in which amounts from the Trust Fund projected to be made
available to the Council for the succeeding 10 years will be allocated.
Recommendation: This appears to be lacking in the document,but it stands to reason that
until the Project Gist is finalized the 1O year allocation piece cannot be finalized.
4. Subject to available funding in accordance with clause(iii),a prioritized list of specific
projects and programs to be funded and carried out during the 3-year period immediately
following the date of publication of the initial Comprehensive Plan,including a table that
illustrates the distribution of projects and programs by the Gulf Coast State.
Recommendation: This appears to be lacking as well,but should be included in the final plan.
The Plan documentshould also better describe the process that will be used to determine how
projects will be prioritized4 How will the 4 criteria in the prioritization process be reviewed in
their order of importance or achievement of benefits from the projects?
4 Currently the RESTORE Act states: "...in selecting projects and programs to include on the 3-year list
described in clause(ii)(IV)(dd),based on the best available science,the Council shall give highest priority to
projects that address 1 or more of the following criteria:
(I) Projects that are projected to make the greatest contribution to restoring and protecting the
natural resources,ecosystems,fisheries,marine and wildlife habitats,beaches,and coastal
wetlands of the Gulf Coast region,without regard to geographic location within the Gulf Coast
region.
(II) Large-scale projects and programs that are projected to substantially contribute to restoring and
protecting the natural resources,ecosystems,fisheries,marine and wildlife habitats,beaches,
and coastal wetlands of the Gulf Coast ecosystem.
(III) Projects contained in existing Gulf Coast State comprehensive plans for the restoration and
protection of natural resources,ecosystems,fisheries,marine and wildlife habitats,beaches,and
coastal wetlands of the Gulf Coast region.
(IV) Projects that restore long-term resiliency of the natural resources,ecosystems,fisheries,marine
and wildlife habitats,beaches,and coastal wetlands most impacted by the Deepwater Horizon oil
spill.
4