Item R4
Revised 2/95
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: September 20. 2000
Division:
County Administrator
Bulk Item: Yes
No ---X-
Department: County Administrator
AGENDA ITEM WORDING:
Approval to change the November meeting of the Board of County Commissioners to November 21
and 22,2000 at the Key Largo Library.
ITEM BACKGROUND:
The Board of County Commissioners has scheduled its November 2000 meeting for November 13 and
14 at the Key Largo Library. Because of information received by Mayor Freeman from the Supervisor
of Elections, it appears as though any newly elected commissioners would not be able to assume their
seats at that time. Florida Statutes state that the term commences on the second Tuesday following the
election. The scheduled dates would not allow for the new commissioner(s) to take their seats until the
December 2000 meeting.
PREVIOUS REVELANT BOCC ACTION:
Scheduling of November meetings.
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST:
-0-
BUDGETED: Yes
No
COST TO COUNTY: -0-
REVENUE PRODUCING: Yes
No
AMOUNT PER MONTH_ Year
APPROVED BY: County Arty X.
OMB/Purchasing _Risk Management _
J'--~
James L. Roberts
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION:
Included lL
To Follow
Not Required
DISPOSITION:
AGENDA ITEM #~LI
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Shirley Freeman
MAYOR
COUNTY OF MONROE
530 WHITEHEAD STREET
KEY WEST. FLORIDA 33040
305-292-3430
Fax 305-292-3577
boccfree@mail.state.fl.us
DATE:
August 31, 2000
TO:
Jim Roberts
County Administrator
Mayor Shirley Freeman ~ ~
RE: Dates of November Commission Meeting
FROM:
The Supervisor of Elections has informed me that, according to state statute,
my successor cannot take office until November 21, 2000. Our November
commission meeting is scheduled for November 13 & 14.
I suggest the meeting be changed to November 21 & 22 or November 28 &
29. This way my successor will be able to take office and participate in the
November meeting as I took office before the November meeting in 1992.
Attached is a copy of the state statute provided by the Supervisor of
Elections.
RECE1VED
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COUNTY ADMINISTRATOR'
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The Florida Keys - America's Caribbean Islands
RECYCLED PAPER
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Ch. 100
GENERAL, PRIMARY, AND SPECIAL ELECTIONS
F.$. 1999
election by the qualified voters of the Rheriffs county or
any district thereof, and the sheriff shall have at least
five copies of the notice posted in conspicuous places
in the county.
~.-.. 5. ch. 3879. 1-= AS 159: I. 8. ch. 4328. 1895; .. 4, elL 4537.
1897; GS 178; RGS 220: CGL255; I. 1. ch. 25383. 1949: I. 4, elL 28lI7O. 1851;
sa. 10. 35. ch. .108;.. 12. ch. 77-175; I. 3. elL 83-251; I. 544, elL 85-147.
~..8&OlI.
100.025 Citizens residing overseas; notice of elee-
tlons.--A citizen of this state who is residing overseas'
may notify the supervisor of elections in the county
where he or she is registered of his or her overseas
address; and, thereafter, the supervisor shall notify
such citizen at least 90 days prior to regular primary
and general elections and when possible prior to any
special election so that such citizen may follow the pro-
cedures for absentee voting provided by law.
HIeIary.-.. 1, ch. 87-414; I. 8. ch. 680280; I. 3. elL 77-175; I. 18. elL 81-304;
I. 4. ch. 89-338;.. 18. ch. 94-224; I. 1388. ch. 950147.
Nate.--Fonner I. 87.0831.
100.031 General electlon.--A general election
shall be held in each county on the first Tuesday after
the first Monday in November of each even-numbered
year to choose a successor to each elective federal,
state, county, and district officer whose term will expire
before the next general eIectlon and, except as pr0-
vided in the State Constitution, to fill each vacancy in
elective office for the unexpired portion of the term.
~.-.. 2. ch. 3879,1_ AS 155: I. 2. elL.... 18115: I. 1, elL 4537.
1897; GS 171; RGS 218; CGL 251; I. 4, ch. 28870. 1851; I. 12. elL 77.175.
..... r_ I. 88JM.
;t.
100.041 OffIcers chosen at general electJon.-
(1) State senators shall be elected for terms of 4
years, those from odd-numbered districts in each year
the number of which is a multiple of 4 and those from
even-numbered districts in each even-numbered year
the number of which is not a multiple of 4. Members of
the House of Reoresentatives shall be elected for terms
ot 2 years in each even-numbered year. In each
county, a clerk of the circuit court, sheriff, superintend-
ent of schools, property appraiser, and tax coUector
shaD be chosen by the qualified electors at the general
election In each year the number of which Is a multiple
of 4. The Governor and the administrative officers of
the executive branch of the state shall be elected for
terms of 4 years in each ev&n-numb'ered year the num-
ber of which is not a multiple of 4. The terms of state
offices other than the terms of m~bers of the Legisla-
ture shaIJ begin on the first Tuesday after the first M0n-
day in January after said election. The term of office of
each member of the legislature shall begin upon e1ec-
tion.
(2)(a)
commissioner from an 0del-
e ene
tion In each vearthe number of which Is a m eo,
for a 4-year term commencln~ the second Tues~
lOllowlna sum :on, ana e county commissioner
from an even-n rea district shall be elected at the
general election in each even-numbered year the num-
ber of which Is not a multiple of 4, for a 4-yearterm com-
mencing on the second Tuesday following such elec-
tion.
(b) Notwithstanding paragraph (a), the go~ming
board of a charter county may provide by ordinance, to
be approved by referendum, that the terms of Its mem-
bers shall commence on a date later than the second
Tuesday following general elections, but in any case
the date of commencement shall be uniform for all
members and shall be no later than the first Tuesday
after the first Monday in January following each mem-
ber's election.
(3)(a) School board members shall be elected at a
general election for terms of 4 years. The term of office
of a school board member and of a superintendent of
schools shall begin on the second Tuesday following
the general election in which such member or superin-
tendent Is elected.
(b) In each school district which has flYe school
board members, the terms shall be arranged so that
three members are elected at one general election and
two members elected at the next ensuing general elec-
tion.
(4) The term of office of each county and each dis-
trict offICer not otherwise provided by law shall com-
mence on the first Tuesday after the first Monday in
January foDowing his or her election.
HIlIIDry.-.. 3. elL 3879. 1888; RS 158; I. 3. elL 4328. 11195; .. 2. elL 4537.
1887; GS 172; I. 10. elL 7838. 1.111; RGS 217; CGL 252: I. 4. elL 2tI87O. 1951;
I. 15. ch. 281118. 1l1l5I; I. 1. c:h. 51-140; I. 1. ch. 63-479; I. 1. elL 67-98; I. 1. ell.
87-1110;1. 11. c:h....18;1. 1. elL 6lI-3llO;.(4) lonneltr.. 14. Art. XVIII 01 the Con-
I1IulIan 011885. .. --..: CllI-*IlO Il8lU1OIy law by.. 10. Art. XII OIl1le
eon..tian........ln 1~1. 1. ch. 73-47;.. 18. ch. 73-334; 1.1. elL 77.102;
.. 12. ch. 77.178: I. 1. elL 780121; I. 21. ch. 79-184: I. 14, elL 85-228: .. 1. ch.
8&85; .. 14, elL Q.a3I; I. a48. t:ll.ll50147; I. II, ch. 88-1211.
NoIe.-FolrMr I. SlI.OS. "
100.051 Candidate's name on general election bal-
lot-The supervisor of elections of each county shall
print on ballots to be used in the county at the next gen-
eral election the names of candidates who have been
nominated by a pofiticaI party, other than a minor politi-
cal party, and the candidates who have otherwise
obtained a position on the general election ballot in
compliance with the requirements of this code.
HIlIIDry.-.. 53, elL 88. 1.13; RGS 357; CGl414; I. ... ch. 28870. 1951: s.
3. elL ~ I. 1. elL 7Oo<I3ll; I. 12. ch. 77-175.
..... r- I. 10u0.
100.061 Firat primary eIectIon.-ln each year in
which a general election is held, a first primary election
for nomination of candiCfates of political parties shall be
held on the Tuesday 9 weeks prior to the general eJec-
tion. Each candidate receiving a majority of the votes
cast in each contest in the first primary election shall be
decJared nominated for such office. A second primary
election shaiI be hetd 88 provided by s. 100.091 in
every contest in which a candidate does not receive a
majority.
HIlIIDry.-..8. elL_ 1113; RGS3OI; CGL359:.. 2. ch. 137111, 1921; I. 1.
ch. 17887. 11137: I. 7. elL'" 1lN1: I. 4. ch. 28870. 1951;.. 1. ch. 57.188; I.
1. ch. 59-4: .. 1. elL 81-1745; I.'" elL 83-251.
..... r_ I. 1oa.aa.
1oo.D71 Grouping of candidates on primary bal-
loIL-
(1)(8) Where two or more similar offices are to be
filled In the same election, the names of candidates
shaD be placed or printed upon the baDot or voting
machine In groups or districts; that Is, if two or mo~e
members of the legislature or two or more members of
26
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IN THE CIRCUIT COURT OF THE SIXTEENTH
JUDICIAL CIRCUIT, IN AND FOR MONROE COUNTY, FLORIDA
FLORIDA KEYS AQUEDUCT
AUTHORITY,
Case No. CA-K-OO-1170
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS,
MONROE COUNTY, FLORIDA and
OGDEN WATER SYSTEMS OF KEY
LARGO, INC.,
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ANSWER AND COUNTERCLAIM OF DEFENDANT
OGDEN WATER SYSTEMS OF KEY LARGO, INC.
ANSWER
The defendant Ogden Water Systems of Key Largo, Inc. ("Ogden"), pursuant to
Fla. R. Civ. P. 1.11 O( c), answers as follows to the Complaint of the plaintiff, Florida'
Keys Aqueduct Authority ("FKAA"):
1. Admitted that the action is one for a declaratory judgment, and that the
amount in controversy exceeds $15,000, thus vesting jurisdiction in this court pursuant to
Florida Statutes section 86.011; denied that the Complaint seeks damages.
2. Without knowledge.
3. Admitted.
5/
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted.
10. The first three sentences of paragraph 10 are admitted. The fourth and last
sentence of paragraph 10 is denied inasmuch as whether the defendant Board of County
Commissioners (the "Board") obtained the site was not a predicate for the FKAA to issue
the Limited Notice to Proceed.
II. Denied that any of the referenced facts and circumstances came "to light"
subsequent to the execution of the Design/Build Contract and the Operation and
Maintenance Agreement. All of said facts and circumstances were known all along.
12. Admitted that exhibits C and D are authentic, and they speak for
themselves as to their content. Denied that their content is accurate in fact, or correct in
their legal conclusions.
13. Paragraph 13 contains purely legal argument, which requires no answer.
To the extent paragraph 13 is construed to allege a fact, that fact is denied.
14. Paragraph 14 contains purely legal argument, which requires no answer.
To the extent paragraph 14 is construed to allege a fact, that fact is denied.
-2-
15. Denied that Ogden's legal position is accurately stated in paragraph 15.
Admitted that Ogden contends that the Design/Build Contract should not be declared
void. Without~nowledge of the Board's position.
COUNTERCLAIM
1. Ogden countersues the FKAA for a declaratory judgment, and alleges as
follows:
2. Ogden played no role in the facts and circumstances forming an alleged
violation of the Government in the Sunshine Law, section 286.011, Florida Statues (the
"Sunshine Law").
3. Ogden relied in good faith upon the capability of the Board and the FKAA
to comply with their legal obligations, including their obligation to comply with the
Sunshine Law. Ogden was entitled to, and did, reasonably rely on the Board's
representation that it was legally empowered to circulate the RFP and conduct the
contractor selection process as it did, and the FKAA' s representation it was legally
empowered to enter into the DesignlBuild Contract as it did.
4. In reliance thereon, Ogden has inyested substantial sums to compete in the
selection process, to negotiate the Design/Build Contract, and subsequently to comply
with its obligations under the Design/Build Contract.
5. The FKAA is estopped from denying the validity of the contract at this
point, or seeking to void the selection process. It would be a terrible injustice for the
-3-
Court to declare void the selection of Ogden to enter into the Design/Build Contract as a
consequence of this action. The injustice that would result from a failure to uphold the
estoppel is of sufficient dimension to justify any effect upon public interest or policy
which would result from raising the FKAA' s estoppel.
6. In addition, the Board, the FKAA and other government agencies have
invested substantial sums, and are continuing to invest substantial sums, in their
concerted effort to facilitate the expeditious completion of the Key Largo wastewater
treatment project. For this reason it would be inappropriate for the Court to declare
void the selection of Ogden to enter into the Design/Build Contract as a consequence of
this action.
7. Any violation of the Sunshine Law, if one took place, was unintentional
and insubstantial and does not form a basis to declare void the selection of Ogden to
enter into the Design/Build Contract.
8. Moreover, the Court need not declare the selection of Ogden to enter into
the DesignlBuild Contract void as a matter of law. The TEP and the Board conducted
extensive public meetings, duly noticed and held in full compliance with the Sunshine
Law. Any discussion of issues in the selection process that took place outside of these
public meetings was also repeated, made public, and fully discussed in the public
meetings. Therefore, any violation of the Sunshine Law, if one took place, has already
been the subject of sufficient corrective action.
-4-
9. The TEP's actions were not a device intended to evade the Sunshine Law.
The TEP did not crystallize any secret decisions to a point just short of ceremonial
acceptance in any of its non-public communications.
10. The Board did not ceremonially accept or perfunctorily ratify the TEP's
recommendations. Indeed, the cost per "equivalent dwelling unit" of Ogden's proposal
was so much less than that of any other bidder, there is no chance any other proposal
could have been selected had there been more public debate.
11. The cost per equivalent dwelling unit of the sewering of Key Largo can
only be increased by additional delay.
12. Finally, the Court should not declare void the selection of Ogden to enter
into the Design/Build Contract because such a decision would cause delay in the process
of constructing a central sanitary wastewater treatment plant in Key Largo, a project of
immense importance to ensuring satisfactory water quality in Key Largo. This Court's
decision to declare void the selection of Ogden to enter into the Design/Build Contract
would cause immense environmental harm to Key Largo.
WHEREFORE, Ogden prays that the Court take jurisdiction of this action and the
parties hereto and render a declaratory judgment, declaring either (1) that there was no
Sunshine Law violation in connection with the award of the Design/Build Contract, or
(2) that, under all the facts and circumstances of this case, any such Sunshine Law
-5-
violation does not justify declaring void the process by which Ogden was selected to
enter into the Design/Build Contract.
Respectfully submitted,
THE RIVAS LAW FIRM
311 S. Calhoun St., Suite 206
Tallahassee, FL 32301
Tel: (850) 412-0306
Fax: (850) 412-0909
RobRivas@aol.com
Robert Rivas
Florida Bar No. 896969
I HEREBY CERTIFY that a copy of this Answer and Counterclaim was served
by fax and by U.S. Mail on September 13,2000, upon counsel listed below.
Robert T. Feldman
Feldman, Koenig & Highsmith, P.A.
13 15 Whitehead S t.
Key West, FL 33040
F. Alan Cummings
Cummings & Snyder, P .A.
P.O. Box 589
Tallahassee, FL 32302-0589
~~----
Robert Rivas
James T. Hendrick
Monroe County Attorney
Morgan & Hendrick, P .A.
317 Whitehead St.
Key West, FL 33040
John A. Jabro
90311 Overseas Highway, Suite B
Tavernier, FL 33070-2445
-6-