CAC Agenda 11/08/2012CAC
MEETING
AGENDA
NOVEMBER 8, 2012
Meeting Agenda and Notice
COASTAL ADVISORY COMMITTEE (CAC)
THURSDAY, November 8, 2012 -1:00 P.M.
BOARD OF COUNTY COMMISSIONERS CHAMBERS
THIRD FLOOR, COLLIER COUNTY GOVERNMENT CENTER
3299 TAMIAMI TRAIL EAST, NAPLES
• Sunshine Law on Agenda Questions
• 2012 CAC MEETING DATES
I. Call to Order
II. Pledge of Allegiance
III. Roll Call
IV. Changes and Approval of Agenda
V. Public Comments
VI. Approval of CAC Minutes
1. October 11, 2012
VII. Staff Reports
1. Expanded Revenue Report
2. Emergency Beach Renourishment Naples and Vanderbilt Beach Status
3. Marco South Project Status
4. Wiggins Pass Project Status
VIII. New Business
1. Clam Pass Permit update and Data Gathering Proposal
a. Clam Pass Channel Improvements & Peer Review Services
2. Bird Monitoring Requirements
3. Legal Consulting; Services for FEMA
* Attachment No. 1 FEMA Retention Agreement Proposal
* Attachment No. 2 Earnest B. Abbott Resume
* Attachment No. 3 FEMA Law Associates Stafford Act Experience
* Attachment No. 4 Letter dated 10 -30 -12 from Mr. Abbott
IX. Old Business
1.Coastal Advisory Committee. Management of Beach Renourishment letter dated
10/26/2012 and as directed by the CAC
X. Announcements
XI. Committee Member Discussion
XII. Next Meeting Date/Location
December 13, 2012 Government Center, 3rd Floor
XIII. Adjournment
CAC November 8, 2012
VII -1 Revenue Report
1 of 18
COLLIER COUNTY TOURIST TAX REVENUE
FY 13 TDC Revenue Report
31- Oct -2012
Budget
FY 13 Adopted
FY 13 ("4
FY 13 Net
Variance to FY 13
Description
Fund
Budget
Reserved by Law
Budget
FY 13 Forecast
Budget
Beach Facilities
183
2,368,600
(121,600)
2,247,000
2,368,600
0
TDC Promotion
184
3,588,800
(180,800)
3,408,000
3,588,800
0
Non - County Muse
193
342,000
(17,100)
324,900
342,000
0
TDC Admin
194
1,667,700
(83,400)
1,584,300
1,667,700
0
Beach Renourishn
195
4,809,000
(297,900)
4,511,100
4,809,000
0
Promotion Disaste
196
0
-
0
0
0
County Museums
198
1,579,100
79,100
1,500,000
1,579,100
Gross Budget
$14,355,200
(779,900)
$13,575,300
$14,355,200
$0
Less 5% Rev Res
(779,900)
Net Budget
13,575,300
Collections
% Budget
Collected to
% over FY 12
% over FY '
% over FY 10
Month
Actual FY 13
m
Cu YTD
Dat e
collections
collections
collections
Oct
627,861
627,861
4.374%
19.52%
31.12%
41.11%
Nov
0
627,861
4.374%
Na
Na
Na
Dec
0
627,861
4.374%
Na
Na
Na
Jan
0
627,861
4.374%
Na
Na
Na
Feb
0
627,861
4.374%
Na
Na
Na
Mar
0
627,861
4.374%
Na
Na
Na
Apr
0
627,861
4.374%
Na
Na
Na
May
0
627,861
4.374%
Na
Na
Na
June
0
627,861
4.374%
Na
Na
Na
July
0
627,861
4.374%
Na
Na
Na
Aug
0
627,861
4.374%
Na
Na
Na
Sept
0
627,861
4.374%
Na
Na
n/a
Total
627,861
627,861
19.52%
31.12%
41.11%
'FWVIIRT,..�
�
Bal to Collect
13,727,339
Budget Comparison
5 Yr Collect
5 Yr Collect
Budgeted
Actual
Month over Month
` Forecast JIM
Month
History-Cum
History- Monthl
Collections
Collections
Variance
Collections!
Oct
3.5%
3.5%
498,837
627,861
129,024
498;837
Nov
8.1%
4.7%
667,994
0
Na
667,994
Dec
14.0%
5.9%
847,404
0
Na
847,404
Jan
22.3%
8.3%
1,189,853
0
Na
1,189,853'
Feb
35.1%
12.8%
1,840,940
0
Na
1,890,940
Mar
50.8%
15.7%
2,246,668
0
Na
2,246,668
Apr
69.1%
18.3%
2,624,759
0
Na
2,624,759:
May
79.2%
10.2%
1,457,116
0
Na
1,457,116
June
85.4%
6.1%
882,042
0
Na
862,042
July
90.3%
4.9%
708,949
0
Na
708,949
Aug
95.6%
5.2%
752,626
0
Na
752,626
Set
100.0%
4.4%
638,012
0
Na
638 012
Total
100.0%
100.0%
14,355,200
627,861
129,024
„- 1 14,355,2W
100.00%
Tourist
Tax Revenue Collection
Curve
0
$ 3. 0 ................................................................................
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-Budgeted
V
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d G
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CAC November 8, 2012
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■
Pelican Bay Foundation, Inc.
November 6, 2012
Linda A. Elligott
Project Manager
U.S. Army Corps of Engineers
Fort Myers Regulatory Office
1520 Royal Palm Square Blvd., Suite 310
Fort Myers, FL 33919
Re: Clam Pass Dredging Permit USACE File No. SAJ -1996-
02789([P -LAE)
Ms. Elligott;
Please accept this letter as a matter of record and clarification of fact. Please know that there is only
one, duly elected body that represents the entire residential and commercial member interests of
Pelican Bay, and that entity is the Pelican Bay Foundation Board of Directors.
The Pelican Bay Foundation, Inc. (Foundation) is the governing association for the community of
Pelican Bay (located in Collier County) and is the successor to the original developer of the Pelican
Bay PUD, Coral Ridge - Collier Properties, Westinghouse Communities of Naples, and WCI. As such,
the Foundation has unique rights and responsibilities for governance within the PUD which only the
Foundation can exercise.
Located within the Pelican Bay PUD is the area known as Clam Pass and Clam Bay. The Foundation
has specific rights and responsibilities for enforcement of the declaration of protective covenants and
restrictions for these areas. Additionally, while the Foundation's predecessor, Coral Ridge - Collier
Properties, gift deeded the areas encompassing Clam Pass and Clam Bay to Collier County (County)
in April 1982, the Foundation holds all reversion rights should any of the terms and conditions of the
declaration of protective covenants and restrictions not be properly complied with.
One specific covenant and restriction involves the Foundation's involvement with the dredging permit
for Clam Pass. Due to its unique and sole rights and responsibilities within this area, the Pelican Bay
Foundation has established a cooperative and collaborative relationship with Collier County on the
recent submittal of the above referenced dredging permit application. This cooperative approach is
best embodied, and memorialized in the County's response to RAI #2, which was collaboratively
authored by the County's coastal engineer, Atkins, and the Foundation's coastal engineer, Olsen
Associates.
Among other things, this document reflects the understandings reached by the working group that:
1. The County will only dredge Clam Pass for the health of the Clam Bay system.
2. The permit is substantially consistent with the same parameters as the last dredging event of
Clam Pass that was authorized by the permitting agencies.
Pelican Bay Foundation, Inc. • 6251 Pelican Bay Boulevard 9 Naples, Florida 34108
(239) 597 -8081 • (239) 597 -6802 FAX • E -Mail memberservices@pelicanbay.org
CAC November 8, 2012
VIII -1 New Business
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3. Each dredging event will be justified individually by specified "triggers" including evidence
of:
a. Sustained shoaling in the active portion of the dredge template, resulting in the average
cross - sectional area falling consistently below 200 square feet
b. Increased tidal phase lag
c. Decreased tidal prism
4. Dredging decisions, including widths, depths, and cubic volume of sand removed, will be
based on joint monitoring and cooperative agreement between Collier County and the Pelican
Bay Foundation in light of what is needed to maintain tidal flushing for the health of the
system.
5. As a "pre - remediation" measure, the first placement of beach - quality sand will be placed as
infill into the meandered Pass location.
b. Appropriately, and consistent with sand by -pass principles, remaining cubic yards of available
beach - quality sand dredged from the Pass channel will be placed south of the Pass.
The Pelican Bay Foundation has been integrally involved in developing this approach and process and
endorses it as scientifically and environmentally responsible. This has also been approved by the
Florida Department of Environmental Protection (FDEP) in its recently issued permit.
The Foundation is aware of the efforts of individuals and groups that seek to derail, undermine, or
delay this reasonable and responsible approach to the health and maintenance of Clam Pass and Clam
Bay. However well- intentioned they may be, the Foundation believes these efforts are not
representative of the best interests of the residential and commercial members of Pelican. Bay, nor in
the general public's best interests.
Specifically, the requests that the Corps conduct a comprehensive EIS should be rejected as
unwarranted and unnecessary and should be viewed as nothing more than a disruptive and counter-
productive tactic.
Of immediate and critical concern is the fact that storm- driven shifts in sand deposits have
dramatically reshaped the direction of the Pass and clogged the Pass to the extent that not only have
private structures been threatened, but the above referenced triggers have seemingly been tripped, so
that plans for dredging of the Pass need to be set in motion.
The Pelican Bay Foundation thanks you for your attention to this urgent matter. We join Collier
County in requesting that the US Army Corps of Engineers join the Florida Department of
Environmental Protection and approve of this wholly appropriate, thoughtful, and collaborative permit
application as soon as possible. Time is absolutely of the essence now.
Sincerely,
Pelican Bay Foundation
Ronnie Bellone
Chair
2
CAC November 8, 2012
VIII -1 New Business
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Cc: Tunis McElwain
Leo Ochs
Nick Casalanguida
Bill Lorenz
Gary McAlpin
Commissioner Fred Coyle
Commissioner Donna Fiala
Commissioner Tom Henning
Commissioner Georgia Hiller
Tim Nance
Mayor John Sorey
Jeff Tabar
Erik Olsen
Ken Humiston
Coastal Advisory Committee
Keith Dallas
Neil Dorrill
Susan Boland
CAC November 8, 2012
VIII -1 a New Business
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Professional Engineering Services for
Clam Pass Channel Improvements and Peer Review Services
Contract Number 09- 5262 -CZ
November 6, 2012
ATKINS NORTH AMERICAN, INC. is pleased to provide this scope of work for Collier County Coastal Zone
Management Department. The intention of this work assignment is to provide professional coastal
engineering services to evaluate the condition of Clam Pass due to natural changes encountered due to
recent storm events. Atkins will also provide services to work in cooperation with the Pelican Bay
Foundation, Inc. (and their consultant(s)) to develop a recommendation regarding the need to (or not)
dredge the Pass in order to maintain flushing. In accordance with Collier County Contract Number 09-
5262-CZ the following scope of work is presented herein.
Scope of Services
Task 1: Clam Pass Topographic and Hydrographic Survey
Atkins will conduct a topographic and hydrographic survey in order to document the condition of the
Pass including the entrance channel, the interior channel in the interior portion of the bay and R-
Monuments 39 to 44. As shown on the attached plan, the area to be surveyed includes Stations -1 +00
through 18 +00 from the previous limits of maintenance dredging events from 2002 and 2007. It is our
intent to use Agnoli, Barber, and Brundage (ABB) to perform the collection of the survey data. ABB has
previously surveyed the Pass and is familiar with the conditions and effort required to complete this
work.
All work shall be conducted in accordance to Section 01000 (Beach Profile Topographic Surveying),
01100 (Offshore Profile Surveying) and Section 01200 (Borrow Site, Shoal and Other Bathymetric
Surveying) of the March 2004 Bureau of Beaches and Coastal Systems Monitoring Standards for Beach
Erosion Control Projects including field methodology and final deliverables.
http: / /www.dep.state.fl.us/ beaches /publications /pdf /standard.pdf
Prior to the start of the survey a reconnaissance of FDEP second order monuments is required to
confirm that survey control is in place and undisturbed using Real Time Kinematic Global Positioning
System (RTK GPS). In order to achieve required accuracy, the survey shall be controlled using FDEP 2nd
order monuments. All assessable 2nd and 3rd order FDEP control monuments in the project area shall
be located using RTK GPS.
Topographic and Hydrographic profile surveys will be collected. All data seaward of the dune shall be
collected using RTK GPS technology. Upland areas inaccessible to RTK GPS shall be collected using
standard differential leveling techniques. Upland topography shall extend approximately 150 feet
landward of the vegetation line or until an obstacle is encountered.
An ACSM Certified Hydrographer shall oversee all hydrographic surveys for nearshore, offshore and inlet
surveys. Hydrographic portions of the profile line shall be collected from a survey vessel equipped with
RTK GPS technology and a dynamic motion sensor to provided instantaneous tide and motion
corrections. Standard hydrographic procedures shall be followed including all necessary quality control
checks. Horizontal and vertical positioning checks will be conducted at the beginning and end of each
day using second order FDEP monuments located in the project area. The fathometer will be calibrated
via bar - checks and a sound velocity probe at the beginning and end of each day. The DIGIBAR PRO sound
CAC November 8, 2012
VIII -1a New Business
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velocity meter or equivalent which provides a fast additional calibration for sound velocity as compared
to the traditional bar check shall be used. More specifically, bar checks will be performed from a depth
of five feet to a maximum depth of twenty -five feet. Analog data showing the results of the bar check
calibration will be displayed on the fathometer charts at five foot increments during descent and ascent
of the bar.
In order to maintain the vessel navigation along the profile lines HYPACK navigation software or
equivalent shall be used. This software shall provided horizontal position to the sounding data allowing
real -time review of the profile data in plan view or cross section format. The navigation software shall
also provided navigation to the helm to control the deviation from the online azimuth. The landward
limits of the hydrographic survey shall be based on a minimum of fifty feet beyond the seaward extent
of the beach profile. Profiles shall extend seaward beyond the depth of closure, or 2,500 feet offshore,
whichever is further.
A Professional Surveyor and Mapper (PSM) shall signed and sealed the required DEP survey reports
which shall included field survey notes, profile plots, GIS plan view maps, photographs in both directions
along the beach and towards the dune also a close -up of the monument when found as well as all other
required deliverables included in Section 0100, 01100 and 01200 of the FDEP Monitoring Standards for
Beach Erosion control Projects http: / /www.dep.state.fl.us/ beaches /publications /pdf /standard.pdf. Four
copies of the report along with a CD version will be provided to the County.
Task 2: Survey Data and Cross Sectional Analysis
Upon completion of the survey data collection effort Atkins will perform an analysis to determine the
condition of the Pass with regards to design limits and standards to maintain flushing. Plans will be
prepared showing the survey data and presented as cross sections that indicate existing grade, previous
permitted cut depths and cross- sections will be presented. Of particular importance is the ability of the
channel to maintain flushing. Cross - sectional area calculations will be performed to determine the
channel condition as compared to the critical cross- section. The ability to convey water to maintain
adequate flushing is severely diminished when any of the three segments of the Pass have reached a
critical cross sectional threshold. Indicators or triggers of these critical cross sectional thresholds were
determined to be for Segments A (mouth of Pass) & B (throat of Pass) approximately 200 square feet
and Segment C (flood shoal) approximately 300 square feet (Tabar, 2010).
Upon determination of whether dredging is necessary, volume calculations will be completed to
determine the amount of sediment and to be removed in order to provide adequate flushing. It is
estimated that several levels (three total) of design width will be examined. A preferred width will be
presented that optimizes the design showing existing conditions in comparison to the permitted limits of
dredging. A letter report will be prepared that presents the results of analysis. The report and analysis
will be made available to the Foundation for review and concurrence.
Following the recommendation of a preferred design, preliminary project construction costs and
scheduling will be completed for County planning purposes. Cost will be presented for
mobilization /demobilization, dredge activity, disposal site preparation, sediment removal, and
construction administration. A project schedule will be prepared indicating all phases of construction
including bidding, pre- dredge surveys, pre- dredge monitoring, mobilization /demobilization,
construction /dredging, and monitoring.
V,
CAC November 8, 2012
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Scope and Fee for completion of final sets of construction design documents will be presented to the
County upon request, and is not included in this scope of services. Upon approval from the County,
Atkins will prepare the final design documents. As part of the final design documents, a report will be
completed that assembles all work and information to date. This report will also include a proposed
maintenance - dredging program, long -term budgets, maintenance intervals and future permit
renewals /extensions will be presented.
Task 3: Peer Review and Collaboration Efforts
As part of the cooperative and collaborative relationship between Pelican Bay Foundation, Inc. and
County an approach was established through a working group in 2010. This approach is best explained
in the response for additional information number two for the Joint Coastal Permit. Within this
response several items were agreed upon: Periodic dredging of Clam Pass is triggered to occur when
the average cross sectional area within the active portion of dredge template is below 200 ftz (2007,
Humiston & Moore Monitoring Report). Collier County Coastal Zone Management is responsible for
Physical monitoring of the pass through periodic surveys and initiating maintenance of the pass. Tidal
prism and phase lag will also be monitored and used as indicators of when dredging is required.
It is our understanding that the Foundation will be completing an analysis of tidal prism and phase lag
through their annual monitoring program (the monitoring report is expected late November 2012).
Atkins will conduct a peer review of the data, analysis and report findings for the County. This process
would be performed with the intent to recommend a dredge width, limits of dredging and volume
removed and disposal location(s).
Task 4: Project Management and Meetings
Atkins will prepare for, travel to and attend three (3) meeting to present findings, meet with County
project manager and collaborate with the Foundation. ATKINS will complete monthly updates to County
staff on the schedule, task and present budget of the project. In addition, quarterly progress reports will
be prepared that outline project expenses to date and review the budget and schedule.
Budget Estimate
Work for this assignment will be performed on a time and materials basis for the amount of $39,700.
Work will be billed to the County on a monthly basis based on the percentage of work completed for the
preceding month.
Task 1 Clam Pass Topographic and Hydrographic Survey
Task 2 Survey Data and Cross Sectional Analysis $13,500
$13,580
Task 3 Peer Review and Collaboration Efforts
Task 4 Project Management and Meetings $9'090
11230
Schedule Estimate Total: $39,700
The following sch le f pletio clpated. Submit draft findings report within 45 calendar
and a final repo, i a owing the Notice -to- Proceed and. days
L November 6, 2012
Jeffre
Project Dir or Date
Atkins No erican, Inc.
CAC November 8, 2012
VIII -1 a New Business
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Labor Costs
Tech
Labor Cost
Reimbursable Costs
Tasks
2 to 4
Total
Hogs
Labor
Cost
$165.00
Sub- CContrCactors $13,500
32
$5,280
$119.00
40
40
$4,760
$100.00
80
80
$8,000
$85.00
96
96
$8,160
248
$26,200
248
$26,200
Reimbursable Costs
Task No. 1
o
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Reimbursable
Costs
$o
$13,500
$13,500
Sub- CContrCactors $13,500
Total Reimbursables $13,500
Total Project Budget
$39,700
I;
$39,700
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CAC November 8, 2012
VIII -1a New Business
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2800 N. HORSESHOE DRIVE
NAPLES, FLORIDA 34104
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CAC November 8, 2012
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CAC November 8, 2012
VIII -1a New Business
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This list is not intended to be all- inclusive. Hourly rate fees for other categories of professional, support
and other services shall be mutually negotiated by the County and firm on a project by project basis as
needed.
Schedule B
Contract No: 09 -5262 "County Wide Engineering Services"
Standard Hourly Rate Schedule for all disciplines
Personnel Category
Standard Hourly Rate
Principal
$195
Senior Project Manager
$165
Project Manager
$148
Senior Engineer
$155
Engineer
$119
Senior Inspector
$85
Inspector
$65
Senior Planner
$140
Planner
$110
Senior Designer
$115
Designer
$100
Environmental Specialist
$115
Senior GIS Specialist
$145
GIS Specialist
$100
Clerical
$60
Surveyor and Mapper
$130
CADD Technician
$85
Survey Crew - 2 man
$130
Survey Crew - 3 man
$160
Survey Crew - 4 man
$180
This list is not intended to be all- inclusive. Hourly rate fees for other categories of professional, support
and other services shall be mutually negotiated by the County and firm on a project by project basis as
needed.
CAC November 8, 2012
Protecting Southwest Florida's unique natural environment and quality of life; ... now and forever.
November 7, 2012
Mr. Gary McAlpin
Coastal Zone Management
Natural Resource Department
Collier County Government
2800 N. Horseshoe Drive
Naples, Florida 34104
Dear Mr. McAlpin:
This is a proposal for monitoring shorebird activity on both sides of Wiggins Pass between
monuments R -12 and R -17 from November 2012 through November 2013. These surveys will
be conducted accordance with the specifications outlined in the copy of the attached email dated
November 1, 2012 from Stephen Keehn to Gary McApline and will be conducted from July 15
to May 15 (10 months) annually,
Personnel
Mileage
Total per survey
260.00/survey
20.00/survey
280.00/survey
Two surveys per month = 560.00/month
Ten surveys each year=5,600/year
ff you have any questions or need any additional information, contact me at your convenience,
Sincerely,
M
OIJAX1.9� ,
David S. Addison
Science Department
Conservancy of Southwest Florida
1450 Merrihue Drive
Naples, Florida 34102
Tel: (239) 403-4230
Fax: (239) 262-5872
Email: 9 davea(@conservanev.orp-
littp://www.conservanc or
Y
1460 Merrihue Drive I Naples, Florida 34102 1 239.262.0304 1 Fax 239,262-0672 1 www.conservaricy.org
CAC November 8, 2012
VIII -2 New Business
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From: Keehn, Stephen [ mailto : Stephen. Keehn @shawgrp.com]
Sent: Thursday, November 01, 2012 10:02 AM
To: McAlpinGary
Cc: Floyd, Lauren
Subject: Bird Monitoing Requirements.
Gary
These are the bird monitoring requirements for Wiggins Pass. We have already tried to get these
modified on another project, and there was no flexibility at the region level. We can try later when we are
not up against a time constraint, and there may be other- communities interested. This requirement
includes all shore birds (l i). I would plan for the initial year, with allowance for adding the additional a
years and the beach.
Three months prior to construction and for the 3 years following each dredging and sand
placement event, the Applicant must conduct bi- monthly (twice - monthly) surveys for piping
plovers in the beach fill and dredging templates within the action area covering the
nonbreeding season for plovers (July 15 to May 15 of each year) to monitor and quantify the
level of take associated with the project and to evaluate the potential effects of future projects
of similar nature. At least one of the bi- monthly surveys should be conducted on a weekend
during each of the months of October, November, March and April.
Piping plover identification, especially when in non - breeding plumage, can be difficult. Qualified
professionals with shorebird /habitat survey experience must conduct the required field work.
The following will be collected and reported:
a. Negative and positive survey data.
b. The amount and type of recreational use (e.g., people, dogs on -off leash, vehicles,
kite - boarders).
c. Piping plover locations with a Global Positioning System (decimal degrees
preferred).
d. Habitat feature(s) used by piping plovers when observed (e.g., intertidal, flesh
wrack, old wrack, dune, mid- beach, vegetation).
e. Landscape feature(s) where piping plovers are located (e.g„ inlet spit,
tidal creek, shoals, Iagoon shoreline).
f. Substrate used by piping plovers (e.g., sand, mud /sand, mud, algal mat).
g. Behavior of piping plovers (e.g., foraging, roosting, preening, bathing, flying,
aggression, walking).
h. Color bands observed on piping plovers.
i. All other shorebirds /waterbirds seen within the survey area.
All information shall be incorporated into a database. Submit pre -and postconstruction piping plover
monitoring results (datashects, neaps, database) on standard electronic media (e.g., CD, DVD) to the
FWC, and to the Service's South Florida Ecological Services Office (1339 20th Street, Vero Beach,
Florida 32960 -3559; 772- 562 - 3909). All reports will be clue by December 1 following the end of the
nonbreeding season for plovers (July 15) of each year.
Stephen Keehn, P.E.
CAC November 8, 2012
VIII -2 New Business
3of3
Senior Coastal Engineer
Coastal Planning & Engineering, Inc.
A Shaw Group Company
2481 NW Boca Raton Blvd
Boca Raton, FL 33431
561.361.3151 direct
561.441.5499 cellular
561.391.9116 fax
Stephen.Keehn@shawg!p.conq
www.coastalplanning.net
Shaw'r" a world of Solutions"""
www.shawgrp.corn
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Opinions, conclusions and other information in this message that do not relate to the official
business of The Shaw Group Inc. or its subsidiaries shall be understood as neither given nor
endorsed by it. The Shaw Group Inc.
http://www.shawp-rp.com
Under Florida Law, e-mail addresses are public records. If you do not want your e -mail address released in response to a public records
request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing.
CAC November 8, 2012
VIII -3 New Business
1 of 2
EXECUTIVE SUMMARY
Recommendation to approve a proposed Retainer Agreement for Legal Consulting
Services with FEMA Law Associates, PLLC for a not to exceed time and material amount
of $20,000.
OBJECTIVE: To obtain legal consulting services related to the appeals process required to
settle reimbursement of de- obligated cost specific to PW 2700 authorized for FEMA DR -1609,
Hurricane Wilma.
CONSIDERATIONS: This proposal is to provide legal consulting services related to the
appeals process required to settle the reimbursement of de- obligated cost specific to PW 2700
authorized for FEMA DR -1609, Hurricane Wilma. The total amount of $20,000 will be used to
pay for legal consulting services, materials and travel for task assignments as authorized by the
County.
FEMA Law Associates, PLLC specializes in FEMA law and Collier County is retaining their
services for assistance regarding the de- obligation funding with FEMA.
Authorization per Purchasing Policy VII -H Procurement of Professional Services — The
acquisition of services from experts or consultants for purposes of preparing for or defending
against imminent or pending litigation or administrative proceedings shall be exempt from all
competitive requirements of this policy. Any such acquisitions that do not exceed $50, 000 may be
approved by the County Attorney and the Purchasing Department without further action.
Acquisitions that exceed $50, 000 may be authorized by the County Attorney and the Purchasing
Department, but will be reported at a regular meeting of the Board for ratification.
FISCAL IMPACT: The source of funds is from Category "A" Tourist Development Tax fund
195. It is estimated that $20,000 is required to perform these activities.
GROWTH MANAGEMENT IMPACT: There is no impact to the Growth Management Plan
related to this action.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney's Office,
requires majority vote, and is legally sufficient for Board action. —
RECOMMENDATION: To recommend approval for a proposed Retainer Agreement for
Legal Consulting Assistance with FEMA Law Associates, PLLC for a not to exceed time and
material amount of $20,000.
CAC November 8, 2012
VIII -3 New Business
2 of 2
PREPARED BY: J. Gary McAlpin, P.E., Coastal Zone Management, Natural Resources
Department
ATTACHMENTS:
Attachment No. 1 FEMA Retention Agreement Proposal
Attachment No. 2 Ernest B. Abbott Resume
Attachment No. 3 FEMA Law Associates Stafford Act Experience
Attachment No. 4 Letter dated 10 -30 -12 from Mr. Abbott
Attachment No. 1
RETENTION AGREEMENT WITH
FEMA LAW ASSOCIATES, PLLC
This Retention Agreement is made by and between the Board of County Commissioners
of Collier County, Florida (the "County "), and the law firm of FEMA Law Associates, PLLC
( "FLA ") whose principal place of business is located at 805 15th Street, NW, Suite 510,
Washington, D.C. 20005.
Whereas, FLA has special expertise and resources in representing public agency clients
on issues arising under the laws, regulations, and policies of the Federal Emergency Management
Agency ( "FEMA "), including but not limited to matters seeking to reverse the deobligation of
FEMA assistance grants; and
Whereas, the County wishes to retain counsel to provide legal services which are
particularly within the expertise of FLA;
Now, therefore, in consideration of the premises contained herein, the County hereby
hires and retains FLA and FLA hereby agrees to provide legal services to County.
ARTICLE 1
COMPENSATION; METHOD OF PAYMENT
1.1 Compensation shall be paid to FLA in accordance with the terms set forth in Exhibit "A"
attached hereto and made a part hereof. Requirements for reimbursable expenses are set
forth in Exhibit `B," attached hereto and made a part hereof. Expenses other than
automobile expenses must be documented by copies of paid receipts or other evidence of
payment. The Certificate contained in Exhibit "C" must be included with every invoice
submitted for payment.
Attachment No. 1
1.2 The rates set forth in Exhibit "A" shall remain in effect without change for a minimum of
two (2) years from the effective date of this Agreement. In any subsequent years of the
Agreement, upon the request of FLA, the County Attorney is authorized to negotiate to
increase the hourly rate up to a maximum of ten (10) percent without approval by the
Board of County Commissioners. In the negotiation process, FLA must substantiate the
reason the request is being made (i.e. market conditions, increase in CPI, etc.)
1.3 Multiple Attorney Assignments.
FLA agrees that all legal services will be exclusively provided for the County by its
Principal, Ernest B. Abbott, with assistance from his designated paralegal staff.
1.4 FLA may submit invoices for hourly work assignments pursuant to Exhibit "A" only after
the services for which the invoices are submitted have been completed or expenses
incurred. An original invoice plus one copy is due within fifteen (15) days of the end of
the month, except the final invoice which must be received no later than sixty (60) days
after the work is completed or the expiration of this Agreement.
1.5 To be deemed proper, all invoices must comply with the requirements set forth in this
Agreement and must be submitted on the form and pursuant to the instruction prescribed
by County. Payment may be withheld for failure of FLA to comply with a term,
condition, or requirement of this Agreement.
1.6 Payment shall be made to FLA at:
FEMA Law Associates, PLLC
Suite 510
805 15th Street, NW
Washington, D.C. 20005
Attachment No. 1
ARTICLE 2
INSURANCE
2.1 FLA shall as a minimum, provide, pay for, and maintain in force at all times during the
term of this Agreement, professional liability insurance in an amount no less than Three
Million Dollars ($3,000,000.00) per occurrence, Combined Single Limits. If any liability
insurance obtained by FLA to comply with the insurance requirements contained herein is
issued on a "claims made" form as opposed to an 'occurrence" form, the retroactive date
for coverage shall be no later than the commencement date of the assigned work to which
this Agreement applies, and such insurance shall provide, in the event of cancellation or
non - renewal, that the discovery period for insurance claims (tail coverage) shall not be
less than three years following the completion of the assigned work and acceptance by the
County.
2.2 Such policy or policies shall be issued by United States Treasury approved companies
authorized to do business in the State of Florida, and having agents upon whom service of
process may be made in Collier County, Florida.
2.3 FLA shall furnish to the Risk Management Director Certificates of Insurance or
endorsements evidencing the insurance coverages specified by this Article prior to
beginning performance of work under this Agreement.
ARTICLE 3
TERM AND TIME OF PERFORMANCE
3.1 The term of this Agreement shall be for a period of two (2) years to begin November 13,
2012 and to end on November 12, 2015, unless terminated earlier in accordance with the
Attachment No. 1
provisions of this Agreement. Absent notice of intent to terminate, the Agreement may
be renewed upon mutual consent of the parties for three (3) additional terms of one (1)
year each. (In the event the term of this Agreement extends beyond a single fiscal year of
County, the continuation of this Agreement beyond the end of any fiscal year shall be
subject to the availability of funds from County in accordance with Chapter 129, Florida
Statutes.)
3.2 Time shall be deemed to be of the essence in performing the duties, obligations and
responsibilities by this Agreement.
3.3 Any amendments, alterations, variations, modifications or waivers of provisions of this
Agreement shall only be valid when they have been reduced to writing, duly signed by
both parties hereto, and attached to the original of this Agreement.
ARTICLE 4
TERMINATION
4.1 This Agreement may be terminated by either party for cause upon ten (10) days' notice or
by either party for convenience upon no less than thirty (30) days' advance written notice
in accordance with the "NOTICES" section of this Agreement.
4.2 Termination of this Agreement for cause shall include, but not be limited to, failure to
suitably perform the work, failure to continuously perform the work in a manner
calculated to meet or accomplish the objectives of County as set forth in this Agreement,
or multiple breach of the provisions of this Agreement notwithstanding whether any such
breach was previously waived or cured.
4.3 In the event this Agreement is terminated for convenience, FLA shall be paid for any
services performed to the date the Agreement is terminated; however, upon notice by
Attachment No. 1
either party to terminate, FLA shall refrain from performing further services or incurring
additional expenses under the term of this Agreement. FLA acknowledges and agrees
that Ten Dollars ($10) of the compensation to be paid by County, the adequacy of which
is hereby acknowledged by FLA, is given as specific consideration to FLA for County's
right to terminate this Agreement for convenience. FLA's obligations to the County as
provided for hereunder shall cease upon termination, except for participating in an orderly
and professional transfer of such responsibilities and files or copies of files to the County
or its designee.
ARTICLE 5
RECORD AUDIT AND INSPECTION
5.1 County shall have the right to audit the books and records of FLA pertinent to the funding
under this Agreement. FLA shall preserve and make available, at reasonable times for
examination and audit by County, all financial records, supporting documents, and other
documents pertinent to this Agreement for a period of three (3) years after termination of
this Agreement or, if any audit has been initiated and audit findings have not been
resolved at the end of the three years, the books and records shall be retained until
resolution of the audit findings.
5.2 If the Florida Public Records Act (Chapter 119, Fla. Stat.) is determined by County to be
applicable to FLA's records, FLA shall comply with all requirements thereof, however,
no confidentiality or non - disclosure requirement of either federal or state law shall be
violated by FLA.
Attachment No. 1
ARTICLE 6
CONFLICT OF INTEREST
6.1 FLA states that it is familiar with and will comply with the terms and conditions of
Chapter 112, Part III, Florida Statutes (Code of Ethics).
6.2 It is important that FLA be independent and impartial in order to properly conduct its
services to the County. FLA shall not act as counsel in any lawsuit or other adversary
proceeding in which County is named as an adversary party or in which FLA takes an
adverse position to the County.
6.3 Neither FLA nor its employees shall have or hold any continuing or frequently recurring
employment or contractual relationship that is substantially antagonistic or incompatible
with FLA's loyal and conscientious exercise of judgment related to its performance under
this Agreement.
6.4 In the event FLA is permitted to utilize subcontractors, herein, to perform any services
required by this Agreement, FLA agrees to prohibit such subcontractors, by written
contract, from having any conflicts as within the meaning of this section.
6.5 If at any time FLA's firm represents a client in matters having to do with the Collier
County government, be it before the Board of County Commissioners or any other agency
or division of Collier County government, FLA will contact the County Attorney's Office
before undertaking such representation so that it can be determined whether a conflict of
interest exists.
Attachment No. 1
ARTICLE 7
INDEMNIFICATION
7.1 FLA acknowledges and agrees that Ten Dollars ($10.00) of the compensation to be paid
by County, the adequacy of which is hereby acknowledged by FLA, is given as specific
consideration to FLA so that FLA shall at all times hereafter indemnify, hold harmless
and, at County's option, defend or pay for an attorney selected by County to defend
County, its officers, agents, servants, and employees against any and all claims, losses,
liabilities, and expenditures of any kind, including attorney fees, court costs, and
expenses, caused by negligent act or omission of FLA, its employees, agents, servants, or
officers, or accruing, resulting from, or related to the subject matter of this Agreement
including, without limitation, any and all claims, demands or causes of action of any
nature whatsoever resulting from injuries or damages sustained by any person or property.
The provisions of this section shall survive the expiration or earlier termination of this
Agreement. To the extent considered necessary by County, any sums due FLA under this
Agreement may be retained by County until all of County's claims for indemnification
pursuant to this Agreement have been settled or otherwise resolved; and any amount
withheld shall not be subject to payment of interest by County.
ARTICLE 8
OWNERSHIP OF DOCUMENTS
8.1 Any and all reports, photographs, surveys, and other data and documents provided or
created in connection with this Agreement are and shall remain the property of County.
In the event of termination of this Agreement, any reports, photographs, surveys, and
Attachment No. 1
other data and documents prepared by FLA, whether finished or unfinished, shall become
the property of County and shall be delivered by FLA to the County within seven (7) days
of termination of this Agreement by either party. Any compensation due to FLA shall be
withheld until all documents are received as provided herein.
ARTICLE 9
INDEPENDENT CONTRACTOR
9.1 FLA is an independent contractor under this Agreement. Services provided by FLA shall
be subject to the supervision of FLA, and such services shall not be provided by FLA as
officers, employees, or agents of the County. The parties expressly acknowledge that it is
not their intent to create any rights or obligations in any third person or entity under this
Agreement.
ARTICLE 10
NONDISCRIMINATION, EQUAL OPPORTUNITY
AND AMERICANS WITH DISABILITIES ACT
10.1 FLA shall not unlawfully discriminate against any person in its operations and activities
in its use or expenditure of the funds or any portion of the funds provided by this
Agreement and shall affirmatively comply with all applicable provisions of the
Americans with Disabilities Act (ADA) in the course of providing any services funded in
whole or in part by County, including Titles I and II of the ADA (regarding
nondiscrimination on the basis of disability), and all applicable regulations, guidelines,
and standards.
Attachment No. 1
10.2 FLA's decisions regarding the delivery of services under this Agreement shall be made
without regard to or consideration of race, age, religion, color, gender, sexual orientation
national origin, martial status, physical or mental disability, political affiliation, or any
other factor which cannot be lawfully or appropriately used as a basis for service delivery.
10.3 FLA shall comply with Title I of the Americans with Disabilities Act regarding
nondiscrimination on the basis of disability in employment and further shall not
discriminate against any employee or applicant for employment because of race, age,
religion, color, gender, sexual orientation, national origin, marital status, political
affiliation, or physical or mental disability. In addition, FLA shall take affirmative steps
to ensure nondiscrimination in employment against disabled persons. Such actions shall
include, but not be limited to, the following: employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff, termination, rates of pay, other forms of
compensation, terms and conditions of employment, training (including apprenticeship),
and accessibility.
10.4 FLA shall take affirmative action to ensure that applicants are employed and employees
are treated without regard to race, age, religion, color, gender, sexual orientation, national
origin, marital status, political affiliation, or physical or mental disability during
employment. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff, termination, rates of pay, other forms of compensation, terms and conditions of
employment, training (including apprenticeship), and accessibility.
10.5 FLA shall not engage in or commit any discriminatory practice in performing the Scope
of Services or any part of Scope of Services of this Agreement.
Attachment No. 1
ARTICLE 11
NOTICES
11.1 Whenever either party desires to give notice to the other, such notice must be in writing,
sent by registered or certified United States Mail, postage prepaid, return receipt
requested, or by hand - delivery, addressed to the party for whom it is intended at the place
last specified. The place for giving notice shall remain the same as set forth herein until
changed in writing in the manner provided in this section. For the present, the parties
designate the following:
FOR COLLIER COUNTY:
Jeffrey A. Klatzkow, County Attorney
Government Center
3299 Tamiami Trail East
Suite 800
Naples, Florida 34112
FOR FEMA LAW ASSOCIATES, PLLC:
Ernest B. Abbott, Esq.
FEMA Law Associates, PLLC
Suite 510
805 15th Street, NW
Washington, D.C. 20005
ARTICLE 12
MISCELLANEOUS
8.1 WAIVER OF BREACH AND MATERIALITY
Failure by County to enforce any provision of this Agreement shall not be deemed a
waiver of the provision or modification of this Agreement. A waiver of any breach of a
Attachment No. 1
provision of this Agreement shall not be deemed a waiver of any subsequent breach and
shall not be construed to be a modification of the terms of this Agreement.
8.1 COMPLIANCE WITH LAWS
FLA shall comply with all federal, state, and local laws, codes, ordinances, rules, and
regulations in performing its duties, responsibilities, and obligations related to this
Agreement.
12.3 SEVERANCE
In the event a portion of this Agreement is found by a court of competent jurisdiction to
be invalid, the remaining provisions shall continue to be effective unless County and FLA
elect to terminate this Agreement. The election to terminate this Agreement based upon
this provision shall be made within seven (7) days after the finding by the court becomes
final.
12.4 APPLICABLE LAW AND VENUE
This Agreement shall be interpreted and construed in accordance with and governed by
the laws of the State of Florida. Venue for litigation concerning this Agreement shall be
in Collier County, Florida.
12.5 PRIOR AGREEMENTS
This document supersedes all prior negotiations, correspondence, conversations,
agreements, and understandings applicable to the matters contained herein and the parties
agree that there are no commitments, agreements or understandings concerning the
subject matter of this Agreement that are not contained in this document. Accordingly,
the parties agree that no deviation from the terms hereof shall be predicated upon any
prior representations or agreements, whether oral or written. It is further agreed that no
Attachment No. 1
modification, amendment or alteration in the terms or conditions contained herein shall
be effective unless contained in a written document in accordance with Article 3 above.
12.6 INCORPORATION BY REFERENCE
The truth and accuracy of each "Whereas" clause set forth above is acknowledged by the
parties. The attached Exhibits "A," `B" and "C" are incorporated into and made a part of
this Agreement.
DATE: November 13, 2012 BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
ATTEST:
DWIGHT E. BROCK, CLERK
Approved as to form and
legal sufficiency
Scott R. Teach
Deputy County Attorney
FRED W. COYLE, CHAIRMAN
FEMA Law Associates, PLLC
DATE:
Its:
CITY OF WASHINGTON
DISTRICT OF COLUMBIA
Attachment No. 1
The foregoing Retention Agreement was acknowledged before me this day of
, 2012, by as of FEMA Law Associates,
PLLC, on behalf of Ernest B. Abbott. He /she is personally known to me or produced
as identification.
Signature of Notary Public
Name of Notary Public typed, printed or
My Commission Expires:
Attachment No. 1
EXHIBIT A
For professional services rendered, FEMA Law Associates PLLC's fee shall be based on the
hourly rate as follows:
Ernest B. Abbott
$400.00 per hour
Law Clerks & Paralegals $80.00 per hour
FEMA Law Associates' fee shall not exceed $100,000.00 per new matter assigned without the
approval of the Board of County Commissioners. Any expenditure beyond the initial
$100,000.00 approval by the Board of County Commissioners must have Board approval prior to
work being performed. (Where appropriate a "not to exceed" sum shall be agreed to when each
assignment is made to FEMA Law Associates.)
In the event that FEMA Law Associates is required or requested to perform any additional or
extraordinary services not herein contemplated, FEMA Law Associates shall be entitled to apply
for additional compensation, the amount of which shall be subject to the approval of County and
no such additional compensation in excess of the amount herein stated shall be paid unless
specifically authorized in advance by County in its sole discretion.
FEMA Law Associates shall provide, at no cost to County, the annual response to County's
auditors regarding pending or threatened litigation. The auditors typically request information
regarding all litigation, claims and assessments considered to be material. The response should
include the nature of the litigation, the progress of the case to date, an estimate of the amount or
range of potential loss, and any other information considered necessary to explain the case.
FEMA Law Associates shall provide said response within 30 days of receipt of the request.
NOTES:
• Divisions, or departments within such divisions, shall be responsible and pay for legal
counsel services relating to litigation and outside counsel specifically for cases, matters or
issues relating to such division or department, as determined by the County Attorney in
coordination with the County Manager.
Attachment No. 1
EXHIBIT B
1. In addition to the charges for professional fees set forth in Exhibit "A," and the
Schedules attached hereto, County shall reimburse FEMA Law Associates for out -of-
pocket expenses reasonably incurred in the course of rendering such legal services,
including costs of long distance calls, printing, costs of reproduction, and necessary
travel expenses incurred in accordance with the requirements of Chapter 112, F.S.
FEMA Law Associates shall not charge for travel of attorneys between its offices so
that it can provide the best available and most appropriate lawyer in any of its office
locations for the issues involved.
FEMA Law Associates shall submit invoices on a monthly basis for the payment of
out -of- pocket expenses. Each invoice shall include a signed certificate listing all
costs, expenses, vouchers, invoices and other documentary evidence that will describe
in reasonable detail the basis for expenditures for which reimbursement is sought as
set forth below.
REQUIREMENTS
The following represents Collier County's payment requirements for legal costs
➢ Your federal employee identification number must be on all invoices submitted.
➢ The applicable Purchase Order number must be on all invoices submitted.
➢ No service, interest, or other charge of like nature is to be imposed with regard to
any item, invoice, or request. All firms doing business with Collier County must
have a current W -9 "Request for Taxpayer Identification Number and
Certification" on file.
➢ Services rendered must be specifically and concisely identified.
➢ Names of persons performing services, hourly rates, and dates must be listed. The
County agrees to reimburse FEMA Law Associates for retention and utilization of
sub - consultants.
Attachment No. 1
➢ Reimbursable expense must be verified by attached receipts or copies thereof.
➢ Claims for mileage and meals cannot exceed statutory allowance as provided for
under Chapter 112, F.S. Meals and mileage cannot be charged unless the
professional has traveled outside the county of the principal business location.
➢ Claims for lodging at single rate (actual cost) must be substantiated by paid bill or
charge, with a cap of no more than $150.00 per night.
➢ Car rentals required for travel should include compact or standard -size vehicles
only.
➢ Common carrier travel shall be reimbursable at tourist or coach class fares only.
➢ Accounting Division requires original receipts, or copies of receipts which have
been individually certified to be true copies of the originals. In addition the
Certificate contained in Exhibit "C" must accompany each invoice. The certifying
person must sign the Certification form and a description provided of the items,
which are certified.
➢ Faxes shall not be reimbursed
➢ Legal Research costs ( Lexis- Nexis, Westlaw, etc.) shall not be reimbursed
EXHIBIT C
CERTIFICATE
IT IS HEREBY CERTIFIED that:
Attachment No. 1
I has been duly designated as special counsel to
render legal services or provider of services for or on behalf of Collier County;
2. Each of the documents hereinafter identified and attached is a true and correct copy of the
original record;
3. Expenditure(s) enumerated represent costs necessarily incurred during the course of
official business for which payment has not been received and for which documentation is
not available or reasonably retrievable;
4. Claims are in compliance with the applicable statutes and administrative orders, and with
the express provision that all other parties are barred from entitlement to any part of these
costs.
RE: Invoice No. , Dated
Period Covered:
IN -HOUSE CHARGES:
Photocopies: _
Mileage:
OTHER (Copies of invoices required):
Long Distance Calls
Other:
TOTAL:
04- COA- 01158/2897
Amount
copies @ $0.15 /each
miles @ /mile
FOR THE FIRM
Signed:
Print Name:
Title:
Date:
d,
a,
0
ERNEST B. ABBOTT
FEMA Law Associates, PLLC
Suite 300
1725 Eye Street, NW
Washington, D.C. 20006
FEMA LAW ASSOCIATES, PLLC 2001 - present
Attachment No. 2
Phone (202) 349 -3790
Fax (202) 349 -3792
E -mail: eabbott<cr�,fema- law.com
Web Address: www.fema- law.com
• Founder and Principal of law and regulatory consulting firm specializing in federal Emergency
Management and Disaster Law for clients across the United States (more than 30 states to date)
• Emergency management legal practice focuses on laws, regulations, policies and procedures relating to
eligibility for federal disaster and mitigation assistance, the coordination of federal, state, local, non-
profit, and private sector responders in catastrophic events, and all elements of the National Flood
Insurance Program, including insurance, floodplain mapping, and floodplaln management.
• Clients include local governments, public authorities and non -profit organizations eligible for FEMA
assistance and their trade associations, Write- Your -Own Insurance Companies and individual flood
insurance policy holders, land owners and land developers, law firms and contractors providing services
to the emergency management community, and employees of emergency management agencies.
• Specialist in appeals and arbitrations from decisions in FEMA's Public Assistance Program, including
those originating from audits by the Department of Homeland Security's Office of the Inspector General.
• Subject Matter Legal Expert for Centers for Disease Control contract to create Public Health Emergency
Law Training Course (both the 15` and 2nd Editions)
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Washington D.C.
• Professorial Lecturer in Law (Course 6880, Disaster Law) — 2011 -2013
FEDERAL EMERGENCY MANAGEMENT AGENCY, Washington, D.C., July 1997 - January,
2001. General Counsel
• General Counsel of Federal Emergency Management Agency (then $4 billion in annual
expenditures). Chief legal officer for a member of the Cabinet of the United States. Managed all FEMA
regulatory development and coordinated the legislative program for all FEMA agencies.
• Directed review of legal issues raised by FEMA's disaster and flood programs. Personally drafted
decisions on appeals involving repetitive loss structures, interrelationship between insurance and disaster
relief, and scope of authority to fund structural improvements as part of restoration of damaged
structures.
• Decided all appeals from FEMA initial decisions refusing to produce information requested under the
Freedom of Information Act, and led development of new "routine use" of information in the agency's
files that would allow FEMA to use this information to assist in mitigation of flood hazards.
• Led expedited development of regulations to implement the Cerro Grande Fire Assistance Act, which
created a new $500 million FEMA compensation program. Interim regulations were published and
effective 45 days after enactment (rather than `normal' year or more).
• Developed and implemented integrated litigation and regulatory program to protect National Flood
Insurance Program from punitive damage awards.
• Created FEMA Office of Dispute Resolution in Office of General Counsel; FEMA's Office received
special mention in Justice Department report to President on Dispute Resolution. Personally mediated
dispute involving personnel and national security matters.
Page 1 of 5
TENNECO ENERGY, Houston, TX, 1985 -1996
(1994- 1996). Principal Deputy General
previously Associate General Counsel).
Attachment No. 2
: Director and Vice - President, International
Counsel and Managing Attorney (1990 -1994;
• Managing Deputy General Counsel of a $3 billion diversified natural gas company operating in 27
states. Legal Department size: 25 staff lawyers; outside counsel expenditures of over $20 million.
• Directed all contract and regulatory work for over $500 million in successful Company expansion
projects. Lead negotiator on a 275 billion cubic foot international natural gas purchase contract and on
gas processing and liquids transportation aspects of $500 million sale of gas liquids business. Member of
13 partner Management Committee of $700 million international pipeline project. Led natural gas
industry response to new restrictions on affiliate relationships.
• Managed environmental legal function. Supervised state and federal negotiations for a $300+ million
PCB remediation project. Successfully directed related toxic tort litigation and settlements. Developed
environmental corporate compliance program.
• Developed new litigationibudget control system for $20 million outside counsel expenses, improving
cost control and settlement strategy and allowing transfer of accountability for managing costs to staff
attorneys. Developed innovative outside counsel fee arrangements.
• Developed management and information process to track and review corporate contingent liabilities with
chief financial officer and outside auditors.
• Conducted and managed internal investigations with potential exposure in both civil and criminal
contexts.
• As manager of Tenneco Energy's Political Action Committee, increased employee participation by 300%
and contributions by 100 %. Managed `advance work' for significant public events.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C., 1983 -1985. Special Assistant
for Legislative Development, Assistant Administrator of Office of Policy, Planning And
Evaluation.
• Directed "statutory review" project of Administrator William Ruckelshaus to achieve greater consistency
in enforcement across the environmental media (air, water, solid waste, toxic substances, Superfund).
Built Agency consensus on cross -media legislative proposal.
INTERSTATE COMMERCE COMMISSION, Washington, D.C., 1979 -1983. Attorney- Advisor
to Commissioners Alexis and Simmons, Rail Merger Coordinator, Senior Appellate Trial
Attorney.
Principal drafter of merger, abandonment, and new construction decisions interpreting new legislation
reforming regulation of railroad and trucking industries.
Directed staff decisions on all rail consolidations over three -year period, integrating economic, legal and
engineering factors. Successfully achieved Commission consensus on approval of major rail
consolidations involving $5 billion in shareholders' equity.
Appellate defense of major Commission decisions.
HOGAN & HARTSON, Washington, D.C., 1976 -1979. Associate attorney with principal assignments
in antitrust and energy law.
COMMONWEALTH EDISON COMPANY, Chicago, Ill. 1974, 1975 (Summers only)
Staff to Vice Chairman and to General Counsel on electric utility rate and rate structure issues.
Page 2 of 5
Attachment No. 2
EDUCATION:
HARVARD UNIVERSITY LAW SCHOOL, Cambridge, MA, J.D. magna cum laude 1976.
Elective courses concentrated in economic and environmental regulation and Administrative
Law.
KENNEDY SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY, Cambridge,
MA, M.P.P. 1976. Member of the Energy and Environmental Policy Center.
SWARTHMORE COLLEGE, Swarthmore, PA, B.A. high honors 1972, Phi Beta Kappa. Major
in Political Science with a Minor in Economics.
PUBLICATIONS:
Review of "Disaster Law ", in the Journal of Homeland Security and Emergency Management
(BEPress 2011).
E. Abbott and O. Hetzel, (Ed.), "HOMELAND SECURITY AND EMERGENCY MANAGEMENT FOR
STATE AND LOCAL GOVERNMENTS: A LEGAL GUIDE (2ND EDITION)" ABA Press 2010; 1"
edition 2005). Co- author (with O. Hetzel and A. Cohn) of Chapter One: "Catastrophic
Events, the Law, and Federalism," and of the Appendix (with O. Hetzel and Lai Sun
Yee," Legal Checklist for Actions in Disasters and Emergencies from All Hazards for
State and Local Government Attorneys and Officials;" author of Chapter Fifteen:
"Representing Local Governments in Catastrophic Events: FEMA Response and
Recovery Issues,"
Ernest B. Abbott, "Law, Emergencies, and the Constitution: A Review of Outside the Law:
Emergency and Executive Power, " Journal of Homeland Security and Emergency
Management (Vol. 7 [2010], No. 1, Article 17)
Ernest B. Abbott and Douglas Brosnan, "Legislative Authorities and Regulatory Issues ", in K.
Koenig and C. Schultz (ed.), "DISASTER MEDICINE," (Cambridge Univ. Press 2009)
THE LA WAND CATASTROPHIC DISASTERS LEGAL ISSUES IN THE AFTERMATH, " 3 day
legal exercise and Report Produced by the Institute for Public Safety and Justice of the
University of the District of Columbia, 2009. (Program Coordinator, Report Author)
Ernest B. Abbott, Floods, Flood Insurance, Litigation, Politics — and Catastrophe: the National
Flood Insurance Program, U. Miss. Sea Grant L. & Pol'y J. (Summer 2008).
Ernest B. Abbott, Law, Federalism, the Constitution, and Control of Pandemic Flu, Asian-Pac. L.
& Pol'y J., (Summer 2008).
Gene W. Matthews, Ernest B. Abbott, Richard E. Hoffman, and Martin S. Cetron, "Public Health
Emergency Law," in R. Goodman, M Rothstein, R. Hoffman, W. Lopez, and G.
Matthews, PUBLIC HEALTH LAW IN PUBLIC HEALTH PRACTICE, 2nd Ed. (Oxford Press
2006).
"FEMA GUIDEBOOK FOR PUBLIC POWER MANAGERS," published by the American Public Power
Association, 2006.
AREYOUREADY? WHATLAWYERSNEEDToKNOWABOUTEMERGENCYPREPAREDNESSAND
DISASTER RECOVERY 7 0 minute Video Produced by ABA Center of Continuing Legal
Education and ABA Section of State and local Government law, 2005. (Announcer,
Moderator, and Content Director).
"Representing Local Governments in Catastrophic Events: FEMA Response and Recovery
Issues," 37 URBAN LAWYER 467 (2005).
"A Checklist for State and Local Government Attorneys to Prepare for Possible Disasters," 37
URBAN LAWYER 489 (2005).
Review of "Disaster: Hurricane Katrina and the Failure of Homeland Security ", in the Journal of
Homeland Security and Emergency Management (BEPress 2007)
Page 3 of 5
Attachment No. 2
Co- Author, Hurricane Katrina Task Force Report [on legal authority in catastrophic events],
American Bar Association White Paper, February 2006.
"Homeland Security in the 21" Century: New Inroads on the State Police Power," 36 URBAN
LAWYER 837 (Fall 2004).
Abbott, E.B. (2004): "Availability of Disaster Assistance from FEMA: Health Care Emergencies,"
in K. J. McGlown (Ed.) TERRORISM AND DISASTER MANAGEMENT: PREPARING
HEALTHCARE LEADERS FOR THE NEW REALITY. Chicago, IL: Health Administration Press.
Book Review of "Terrorism, Freedom, and Security: Winning Without War ", in the Journal of
Homeland Security and Emergency Management (BEPress 2004).
"Final Report on Legal Issues ": Appendix A of Study prepared for the Federal Emergency
Management Agency on "Evaluation of Alternatives in Obtaining Structural Elevation
Data" (July 2003).
"An Electric Cooperative's Introduction to FEMA," Published by The National Rural Electric
Cooperative Association, March 2003
SELECTED PRESENTATIONS
"Emergency Sheltering and Americans with Disabilities Act ", at National Lieutenant
Governors Association Annual Meeting, Puerto Rico, July 2011.
"Water Law and The National Flood Insurance Program ", at American Bar Association Water
Law Conference, San Diego, February 2011
Guest Lecturer on Public Health Emergency Law (for Course in Public Health Law), University
of Tennessee - Knoxville Law School, Fall 2010.
Keynote Speaker at Symposium on Public Health Emergencies and California Law, University of
the Pacific, McGeorge School of Law, May 2009.
Co- Chair, "The Law and Catastrophic Disasters: Legal Issues in the Aftermath ", a Legal
Preparedness Table Top Exercise sponsored by the National Legal Preparedness Training
Program of the University of District of Columbia, the Center for American and
International Law, and the National Emergency Management Association, March 2009.
"Constitutional and Legal Tensions in Disaster Law ", St. Louis University Law School
(November 2008).
"Contracting Following a Disaster ", Presentation to Public Contract Lawyers on legal issues in
disaster contracting, sponsored by the ABA Public Contract Law Section (October 2008).
" Floods, Flood Insurance, Litigation, Politics and Catastrophe: The National Flood Insurance
Program," The Sea Grant Law and Policy Inaugural Symposium, The University of
Mississippi School of Law, Oxford, MS, March 2008.
"Why Care About Law — and Lawyers —in Public Health Emergencies ? ", keynote address on
Public Health Emergency Law Training Program, Connecticut Department of Health
(Hartford, May 2007).
"Legal Trends in Emergency Management — and FEMA Appeals," Presentation to International
Association of Emergency Managers, Orlando, FL, November 2006.
"Lawyers, Disasters, and Federalism," the Edwin L. Crawford Lecture on Municipal Law,
Albany Law School, November, 2006
"A Short History of the Development and Operations of FEMA" A Presentation to the Rural
Electric Statewide Managers Association. Phoenix, Arizona. November 2005.
"Limiting Liability When Warning About Risks," October 23, 2001, to Seismic Risk
Communication Conference of Western States Seismic Council.
"Laws and Lawyers: Enabling Coordination ", presentation to NATO Partnership for Peace
Seminar on Legal issues in International Emergency Management (Stockholm,
September, 2000).
Page 4 of 5
Attachment No. 2
ORGANIZATIONS AND ACTIVITIES
Journal of Homeland Security and Emergency Management (JHSEM), Editorial Board Member,
November 2008 — present.
American Bar Association, 1977 - present. Member, Special Committee on Disaster Response and
Recovery, 2006 - present. Chair, Committee on Emergency Management and Homeland
Security, 2002 -2009; Vice -Chair 2009 -2010. Council Member, Section of State and Local
Government Law 2003 -2007; Chair, Multi- Section Task Force on Homeland Security,
2005 -2007. Member, ABA Hurricane Katrina Task Force, 2005 -2006.
National Emergency Management Association, Associate Member and Private Sector Liaison to the
Legal Committee.
Member of District of Columbia, Massachusetts, and Texas Bars.
Referee (1989 -2012) and Associate Referee Instructor (2003 -12), United States Soccer Federation
Cathedral Choral Society (Second Bass) (2002 - present); voice and piano lessons.
Treasurer, Great Falls United Methodist Church, 2002 -06. Chair of Personnel Committee, 1997-
2001.
Trustee and Audio - Visual Coordinator, Arlington Temple United Methodist Church, 2007 -
present.
Page 5 of 5
Attachment No. 3
FEMA Law Associates, PLLC
Professional Legal Services — Appeal and Arbitration of
FEMA Public Assistance Program Decisions
FE A Law
ASSOCIATES, PLLC
FEMA Law Associates, PLLC
FEMA Law Associates, PLLC was formed in 2002 by Ernest B. Abbott, who served as General Counsel of
the Federal Emergency Management Agency from 1997 until 2001. The firm's practice is dedicated
exclusively to assisting clients on issues arising under the laws, regulations, and policies of the Federal
Emergency Management Agency — with a focus on the Public Assistance Program of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act and the National Flood Insurance Program.
Clients on Stafford Act issues have included the State of Mississippi, large cities such as the City of
Houston and the City of Atlanta, county governments such as Harrison County, MS and Baldwin County,
AL, small cities such as the City of Boca Raton, FL, the City of Waveland, MS, and Valley City, ND; public
authorities such as the South Florida Water Management District, the Newhall County Water District
(Los Angeles, CA), the Bay St. Louis — Waveland Housing Authority (MS) and the Diamondhead Water
and Sewer District ( Diamondhead, MS); electric cooperatives such as the Central Electric Cooperative
Association (SD), the South Mississippi Electric Cooperative Association (MS) and the Mid - Kansas Electric
Cooperative Association (KS); and other non - profit entities such as the American Red Cross, Toras Emes
Academy (FL), the Texas Medical Center, and St. Thomas the Apostle Catholic Church (MS).
The firm's only full time attorney is its founder and owner, Ernest Abbott. The firm generally
supplements its own resources with those of its clients, its clients' contractors, or with other lawyers or
law firms under subcontracting arrangements.
Attachment No. 3
Representative Appeals — FEMA Public Assistance Program
FEMA Law Associates, PLLC, has also handled a number of "first" and "second" appeals for Public
Assistance Program Applicants, or been consulted on the advisability of filing appeals, in at least 14
states — in FEMA Regions III, IV, VI, VIII, and IX. Here are representative samples:
City of Valley City, North Dakota
The City of Valley City, North Dakota, had been inundated by "major disaster" flood waters for six
consecutive years; leaks to its sewer system increased each year. FEMA issued an inundation policy, and
after the final flood approved replacement of the main sewer line at a cost of over 2.5 million. At
project closeout, the Inspector General contended that the project was not and had never been eligible
for public assistance under the policy because the damage was not sufficiently attributable to the
specific flood disaster. The Region issued a letter deobligating the entire project.
FEMA Law Associates appealed the deobligation; arguing both that FEMA could not retroactively change
its policy interpretation and also that the project clearly met the criteria for cost effective mitigation.
On second appeal (coordinated with the North Dakota's senators and congressman), the Director of the
Recovery Division restored the entire Public Assistance grant, accepting the argument that the project
could have been approved as cost effective mitigation.
City of Waveland, MS
The City of Waveland retained FEMA Law Associates to provide assistance in appealing a number of
FEMA determinations relating to hurricane response and recovery costs relating to Hurricane Katrina:
• PW 4916 — Permanent ditch repairs. FEMA granted this appeal, in full, in the amount of
$1,492,985.00, dated May, 15, 2012.
• PW 4737 — Denial of Engineering, Administration, and RPR Costs. FEMA granted this appeal, in
full, in the amount of $269,274.18, dated November 19, 2010.
• PW 4172, 4222, 1107 — Denial of Cost Incurred for ditch Reshaping and Related Monitoring.
FEMA granted this appeal, in full, to reinstate costs totaling $483,799.20, dated July 22, 2010.
• PW 6720 — Debris removal Costs. FEMA granted, in part, an additional $56,361, dated March 29,
2010.
• PW 10806 — Debris Removal. FEMA granted, in part, for a total amount of $1,665,651.72.
The firm was unsuccessful in persuading FEMA to reopen an adverse eligibility determination when the
statutory 60 day appeal deadline had expired before the firm was retained.
Mississippi Emergency Management Agency (MEMA) and the State of Mississippi
FEMA Law Associates was retained to appeal a FEMA determination based on an OIG Audit finding.
FEMA requested MEMA to reimburse $987,115 in interest purportedly earned on federal funds. The
appeal provided extensive legal analysis of the requirements of the Cash Management Improvement
Act, and involved a joint FEMA /OIG /State meeting to discuss the appeal. On February 16, 2012, FEMA
approved the First Appeal.
2
Attachment No. 3
City of Gulf Shores. Alabama
Stimulated by an OIG audit, FEMA deobligated some $8.5 million in previously expended funds for beach
restoration; the firm handled both the first and second appeals for the City. Disallowance rested on
OIG /FEMA claims that the City did not have legal responsibility to make the repairs, and on
measurement issues. FEMA's decision after the City's second appeal reobligated almost $4 million.
Toras Emes Academy, Florida
FEMA had deobligated funds to replace the school's Middle school assembly hall facility because FEMA
determined that the facility was being used primarily for storage. FEMA Law Associates appealed and
FEMA overturned its eligibility determination because the school had proven that the facility was used
for classroom activities throughout the year.
Baldwin County, AL
The firm was retained after an OIG audit recommended deobligation of $10 million of debris removal
costs incurred from Hurricanes Ivan, Katrina, and Dennis. After review of materials submitted in
response to the audit, FEMA deobligated approximately $6 million of these costs. FEMA Law Associates
then requested arbitration of the Katrina disallowance before the Civilian Board of Contract Appeals,
and FEMA was required to reobligate the Katrina funds. The remaining debris costs for Hurricanes Ivan
and Dennis were not eligible for arbitration, so the firm filed first and second appeals. The Second
Appeal Decision reobligated all but the roughly $500,000 deobligation of the cost of stump removal.
Central Electric Cooperative Association
FEMA Law Associates was retained to provide legal and regulatory consulting services for Central
Electric Cooperative ( "the Applicant ") after FEMA had issued a second appeal determination dated
March 25, 2008 that denied Central Electric Cooperative's request for the replacement of conductor
damaged by ice storms. FEMA Law Associates filed a letter with FEMA requesting FEMA to reconsider its
second appeal determination because the second appeal analysis contained an error of fact. In a letter
dated March 29, 2010, FEMA stated that second appeal determinations may be reconsidered if an
applicant can demonstrate that FEMA did not appropriately consider all factual information submitted
to FEMA, or that FEMA administratively erred in evaluating the appeal.
Subsequently, FEMA determined that FEMA did not appropriately consider all of the factual information
submitted with the second appeal and amended FEMA's previous determination and approved the
second appeal for $3,582,952.
Bay St. Louis Waveland Housing Authority, MS
FEMA Law Associates was retained to file an appeal of FEMA's deobligation of all costs incurred in
demolishing damaged housing. The First Appeal Decision restored eligibility for $981,095.44 — the
entire amount at issue.
Attachment No. 3
Harrison Countv. MS
FEMA Law Associates was retained as co- counsel to represent Harrison County, Mississippi with respect
to FEMA's denial of funding of debris removal expenses involving leaners and hangers. FEMA Law
Associates filed a first and second appeal, and a supplement to the second appeal — appealing the denial
of funding for the removal of hazardous limbs and trees on public and private property. On August 20,
2008, FEMA determined that the Applicant's contract was properly procured through competitive bid
and established reasonable costs for the removal of hazardous trees. FEMA partially approved the
appeal for $5,896,620. Full funding was then restored by action of Congress.
Diamondhead Water and Sewer District
Diamondhead Water Sewer District (DWSD) retained FEMA Law Associates to appeal or arbitrate FEMA
decisions denying funding for relocation and replacement of a damaged waste water treatment plant.
The First Appeal restored funding for replacement of the plant. (DWSD then sought arbitration of a
decision to deny eligibility of relocation of the plant to a site above the 500 year floodplain; this
proceeding was favorably resolved as described above.)
City of Houston
FEMA Law Associates, PLLC has represented the City of Houston since September, 2005 on FEMA-
related legal issues arising in the wake of Tropical Storm Allison and Hurricanes Katrina, Rita, Gustav,
and Ike. For example, the City provided emergency shelter in apartments for more than 100,000
evacuees from Hurricanes Katrina and Rita. FEMA Law Associates assisted the City and its City
Attorney's Office on this $300 million program, inter alia, in structuring lease agreements, developing
the accounting and controls system in accordance with FEMA and FEMA IG standards, and providing
insight on FEMA precedents under the Stafford Act for use in negotiations with FEMA.
FEMA Law Associates also prepared and reviewed a number of first and second appeals submitted by
the City from restrictive FEMA interpretations on a number of Stafford Act issues, including eligibility of
increased police, fire, EMS, trash hauling, and management costs. The vast majority of these appeals
were successful. Most notably, the City successfully argued that direct administrative costs were eligible
for reimbursement prior to FEMA's promulgation of a new management cost rule in 2007; the City
established that this administrative allowance had been repealed in 2000.
National Rural Electric Cooperative Association
FEMA Law Associates, PLLC has been retained by the National Rural Electric Cooperative Association for
over ten years to provide advice on FEMA issues faced by its member electric cooperatives across the
country. Electric cooperatives are eligible for assistance under both Section 406 of the Stafford Act, and
Section 404 of the Stafford Act. As part of its representation of NRECA, FEMA Law Associates has
provided advice on particular eligibility issues faced by cooperatives, including issues under the Hazard
Mitigation Grant Program and under the "406 mitigation" administered under FEMA's Public Assistance
Program. These issues include eligibility issues arising from requirements to comply with codes and
standards (including the floodplain management / elevation requirements of the National Flood
Insurance). FEMA Law Associates provided a detailed legal review of the interaction of FEMA grant
regulations in Part 13 of FEMA's regulations with applicable OMB circulars and with FEMA policy
guidance. In addition, FEMA Law Associates prepared a "Guide to FEMA for Electric Cooperatives" in
2002. This Guide, which we updated in 2012, summarizes specific FEMA requirements under the
4
Attachment No. 3
Stafford Act that were applicable to the electric cooperative industry and has been disseminated to
cooperatives across the country.
Performance Food Group
FEMA Law Associates was retained by a major food distributor after a warehouse owned by the
distributor was seized, allegedly by FEMA, during the immediate response to Hurricane Katrina. This
representation included a review of the authority under which FEMA (or those acting in its name) may
have operated and a determination of the factual misunderstanding that led to the "seizure "; it was
resolved through negotiation of a retroactive lease agreement under which the distributor was
compensated for the full costs it incurred as a result of the (forced) "rental" of the facility. This project
demonstrates the ability of FEMA Law Associates to identify practical solutions to unusual issues
encountered in the emergency environment.
FEMA Law Associates' Experience in FEMA Arbitrations
FEMA Law Associates has been retained by the following Applicants to handle arbitrations of FEMA
decisions before the Civilian Board of Contract Appeals:
Baldwin County, AL:
Based on recommendations by DHS' Office of the Inspector General, FEMA deobligated $5.7 million in
grants reimbursing the cost of debris removal in the wake of Hurricane Ivan in 2004 and Hurricanes
Dennis and Katrina in 2005. Only the deobligation relating to Hurricane Katrina was eligible for
arbitration. The Firm appealed the deobligation for Hurricanes Ivan and Dennis, and sought arbitration
of the $523,041 Hurricane Katrina deobligation. On behalf of the County, the Firm argued that under
Section 705(c) of the Stafford Act, FEMA was without authority to request return of funds because the
work had been subject to an approved agreement specifying the costs, the costs were reasonable, and
the purpose of the grant was accomplished. The Civilian Board of Contract Appeals ruled in favor of the
County.
South Mississippi Electric Power Association:
Based on recommendations by DHS Office of the Inspector General, FEMA deobligated $1,163,144.86 in
grants reimbursing the cost of debris removal and of electric power restoration in the aftermath of
Hurricane Katrina. The primary reasons given for the deobligations were that the power restoration was
emergency work, not permanent work, and hence regular time of SMEPA's workers was not eligible for
assistance, and that SMEPA's contractors had billed more equipment time that personnel time —
meaning that equipment was not being fully utilized. On behalf of SMEPA, the Firm sought arbitration,
and demonstrated in its papers that power restoration qualified as permanent work under applicable
FEMA policies, and that equipment utilization rates were appropriate. This matter was resolved by a
settlement that restored 95% of the deobligated funds.
Diamondhead Water and Sewer District 1:
DWSD sought arbitration of a FEMA First Appeal Decision that approved replacement of a damaged
waste water treatment plant, but denied DWSD's request for relocation of the plant to a site above the
500 year flood elevation. FEMA and DWSD entered into settlement negotiations and reached
agreement on funding 97% of the funds at issue as an improved project; total approved funding was
over $36 million.
Attachment No. 3
Diamondhead Water and Sewer District 2:
DWSD sought arbitration of a FEMA decision approving funding of repair and elevation of four lift
stations; DWSD believed that elevation of these stations to the 500 year level posed such significant
engineering risks as to be infeasible. After hearing, the Civilian Board of Contract Appeals ruled in favor
of FEMA. Only the repair and elevation of these lift stations would be eligible for funding.
Mississippi Coast Coliseum Commission:
After receipt of an audit recommendation from DHS' Office of Inspector General, FEMA deobligated
roughly $300,000 of the cost incurred to repair flood damage in the kitchen of the Mississippi Coast
Coliseum. After review of the Applicant's arbitration filing, FEMA entered into settlement negotiations
and the parties agreed to restoration of approximately 90% of the funds at issue.
Citv of Moss Point. MS:
FEMA limited repairs of sewer lines subjected to storm surge flooding to 42 specific points in which
damage was visible from above ground visual inspection. The City of Moss Point sought arbitration,
arguing that the storm surge had both deposited significant debris in its underground sewer system and
had substantially exacerbated cracks. After a three day hearing, the Civilian Board of Contract Appeals
rejected Applicant's claim that cracks and other damage in the pipes could be attributed to Hurricane
Katrina, but did require FEMA to fund the cleaning /debris removal of sewer lines in areas that had been
subjected to a storm surge of 4 feet or more.
City of New Orleans, LA:
The City has sought arbitration of a FEMA decision refusing to obligate any funds for regular time pay of
emergency fire, police, and EMS personnel in the immediate aftermath of Hurricane Katrina. This
matter remains pending.
FEMA Law Associates, PLLC
Suite 510
80515 th Street, NW
Washington, D.C. 20005
ERNEST B. ABBOTT
FEMA LAW ASSOCIATES, PLLC 2001 - present
Attachment No. 3
Phone (202) 326 -9319
Fax (202) 326 -9323
E -mail: eabbott @fema- law.com
Web Address: www.fema- law.com
• Founder and Principal of law and regulatory consulting firm specializing in federal Emergency
Management and Disaster Law for clients across the United States (more than 30 states to date).
• Emergency management legal practice focuses on laws, regulations, policies and procedures relating to
eligibility for federal disaster and mitigation assistance, the coordination of federal, state, local, non-
profit, and private sector responders in catastrophic events, and the all elements of the National Flood
Insurance Program, including insurance, floodplain mapping, and floodplain management.
• Clients include local governments, public authorities and non - profit organizations eligible for FEMA
assistance and their trade associations, Write- Your -Own Insurance Companies and individual flood
insurance policy holders, land owners and land developers, law firms and contractors providing services
to the emergency management community, and employees of emergency management agencies.
• Specialist in appeals and arbitrations from decisions in FEMA's Public Assistance Program, including
those originating from audits by the Department of Homeland Security's Office of the Inspector
General.
• Subject Matter Legal Expert for Centers for Disease Control contract to create Public Health Emergency
Law Training Course (both the 1St and 2nd Editions).
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Washington D.C.
• Professorial Lecturer in Law (Course 6245, Disaster Law) — Spring 2011, Spring 2012.
FEDERAL EMERGENCY MANAGEMENT AGENCY, Washington, D.C., July 1997 - January, 2001: General
Counsel
• General Counsel of Federal Emergency Management Agency ($4 billion in annual expenditures).
Chief legal officer for a member of the Cabinet of the United States. Managed all FEMA regulatory
development and coordinated the legislative program for all FEMA agencies.
• Directed review of legal issues raised by FEMA's disaster and flood programs. Personally drafted
decisions on appeals involving repetitive loss structures, interrelationship between insurance and
VA
Attachment No. 3
disaster relief, and scope of authority to fund structural improvements as part of restoration of
damaged structures.
• Decided all appeals from FEMA initial decisions refusing to produce information requested under the
Freedom of Information Act, and led development of new "routine use" of information in the agency's
files that would allow FEMA to use this information to assist in mitigation of flood hazards.
• Led expedited development of regulations to implement the Cerro Grande Fire Assistance Act, which
created a new $500 million FEMA compensation program. Interim regulations were published and
effective 45 days after enactment (rather than 'normal' year or more).
• Developed and implemented integrated litigation and regulatory program to protect National Flood
Insurance Program from punitive damage awards.
• Created FEMA Office of Dispute Resolution in Office of General Counsel; FEMA's Office received special
mention in Justice Department report to President on Dispute Resolution. Personally mediated dispute
involving personnel and national security matters.
TENNECO ENERGY, Houston, TX, 1985 -1996: Director and Vice - President, International (1994- 1996).
Principal Deputy General Counsel and Managing Attorney (1990 -1994; previously Associate
General Counsel)
• Managing Deputy General Counsel of a $3 billion diversified natural gas company operating in 27
states. Legal Department size: 25 staff lawyers; outside counsel expenditures of over $20 million.
• Directed all contract and regulatory work for over $500 million in successful Company expansion
projects. Lead negotiator on a 275 billion cubic foot international natural gas purchase contract and on
gas processing and liquids transportation aspects of $500 million sale of gas liquids business. Member
of 13 partner Management Committee of $700 million international pipeline project. Led natural gas
industry response to new restrictions on affiliate relationships.
• Managed environmental legal function. Supervised state and federal negotiations for a $300+ million
PCB remediation project. Successfully directed related toxic tort litigation and settlements.
Developed environmental corporate compliance program.
• Developed new litigation /budget control system for $20 million outside counsel expenses, improving
cost control and settlement strategy and allowing transfer of accountability for managing costs to staff
attorneys. Developed innovative outside counsel fee arrangements.
• Developed management and information process to track and review corporate contingent liabilities
with chief financial officer and outside auditors.
• Conducted and managed internal investigations with potential exposure in both civil and criminal
contexts.
• As manager of Tenneco Energy's Political Action Committee, increased employee participation by 300%
and contributions by 100 %. Managed 'advance work' for significant public events.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C., 1983 -1985: Special Assistant for
Legislative Development, Assistant Administrator of Office of Policy, Planning and Evaluation
• Directed "statutory review" project of Administrator William Ruckelshaus to achieve greater
consistency in enforcement across the environmental media (air, water, solid waste, toxic substances,
Superfund). Built Agency consensus on cross -media legislative proposal.
INTERSTATE COMMERCE COMMISSION, Washington, D.C., 1979 -1983: Attorney- Advisor to
Commissioners Alexis and Simmons, Rail Merger Coordinator, Senior Appellate Trial Attorney
8
Attachment No. 3
• Principal drafter of merger, abandonment, and new construction decisions interpreting new legislation
reforming regulation of railroad and trucking industries.
• Directed staff decisions on all rail consolidations over three -year period, integrating economic, legal and
engineering factors. Successfully achieved Commission consensus on approval of major rail
consolidations involving $5 billion in shareholders' equity.
• Appellate defense of major Commission decisions.
HOGAN & HARTSON, Washington, D.C., 1976 -1979: Associate attorney with principal assignments in
antitrust and energy law
COMMONWEALTH EDISON COMPANY, Chicago, III. 1974, 1975 (Summers only): Staff to Vice Chairman
and to General Counsel on electric utility rate and rate structure issues.
EDUCATION:
HARVARD UNIVERSITY LAW SCHOOL, Cambridge, MA, J.D. magna cum laude 1976. Elective courses
concentrated in economic and environmental regulation and Administrative Law.
KENNEDY SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY, Cambridge, MA, M.P.P. 1976. Member
of the Energy and Environmental Policy Center.
SWARTHMORE COLLEGE, Swarthmore, PA, B.A. high honors 1972, Phi Beta Kappa. Major in Political
Science with a Minor in Economics.
PUBLICATIONS:
Review of "Disaster Law," in the Journal of Homeland Security and Emergency Management (BEPress
2011).
E. Abbott and 0. Hetzel, (Ed.), "HOMELAND SECURITY AND EMERGENCY MANAGEMENT FOR STATE AND LOCAL
GOVERNMENTS: A LEGAL GUIDE (2ND EDITION)," ABA Press 2010; 1St edition 2005). Co- author (with 0.
Hetzel and A. Cohn) of Chapter One: "Catastrophic Events, the Law, and Federalism," and of the
Appendix (with 0. Hetzel and Lai Sun Yee, "Legal Checklist for Actions in Disasters and
Emergencies from All Hazards for State and Local Government Attorneys and Officials;" author
of Chapter Fifteen: "Representing Local Governments in Catastrophic Events: FEMA Response
and Recovery Issue."
Ernest B. Abbott, "Law, Emergencies, and the Constitution: A Review of Outside the Law: Emergency and
Executive Power, "Journal of Homeland Security and Emergency Management (Vol. 7 [2010], No.
1, Article 17).
Ernest B. Abbott and Douglas Brosnan, "Legislative Authorities and Regulatory Issues," in K. Koenig and
C. Schultz (ed.), "DISASTER MEDICINE," (Cambridge Univ. Press 2009).
THE LAW AND CATASTROPHIC DISASTERS: LEGAL ISSUES IN THE AFTERMATH," 3 day legal exercise and
Report Produced by the Institute for Public Safety and Justice of the University of the District of
Columbia, 2009. (Program Coordinator, Report Author).
Ernest B. Abbott, Floods, Flood Insurance, Litigation, Politics — and Catastrophe: the National Flood
Insurance Program, U. Miss. Sea Grant L. & Pol'y J. (Summer 2008).
0
Attachment No. 3
Ernest B. Abbott, Law, Federalism, the Constitution, and Control of Pandemic Flu, Asian -Pac. L. & Pol'y J.,
(Summer 2008).
Gene W. Matthews, Ernest B. Abbott, Richard E. Hoffman, and Martin S. Cetron, "Public Health
Emergency Law," in R. Goodman, M Rothstein, R. Hoffman, W. Lopez, and G. Matthews, PUBLIC
HEALTH LAW IN PUBLIC HEALTH PRACTICE, 2nd Ed. (Oxford Press 2006).
"FEMA GUIDEBOOK FOR PUBLIC POWER MANAGERS," published by the American Public Power Association,
2006.
ARE YOU READY? WHAT LAWYERS NEED TO KNOW ABOUT EMERGENCY PREPAREDNESS AND DISASTER RECOVERY, 70
minute Video Produced by ABA Center of Continuing Legal Education and ABA Section of State
and local Government law, 2005. (Announcer, Moderator, and Content Director).
"Representing Local Governments in Catastrophic Events: FEMA Response and Recovery Issues," 37
URBAN LAWYER 467 (2005).
"A Checklist for State and Local Government Attorneys to Prepare for Possible Disasters," 37 URBAN
LAWYER 489 (2005).
Review of "Disaster: Hurricane Katrina and the Failure of Homeland Security," in the Journal of Homeland
Security and Emergency Management (BEPress 2007).
Co- Author, Hurricane Katrina Task Force Report [on legal authority in catastrophic events], American Bar
Association White Paper, February 2006.
"Homeland Security in the 21" Century: New Inroads on the State Police Power," 36 URBAN LAWYER 837
(Fall 2004).
Abbott, E.B. (2004): "Availability of Disaster Assistance from FEMA: Health Care Emergencies," in K. J.
McGlown (Ed.) TERRORISM AND DISASTER MANAGEMENT: PREPARING HEALTHCARE LEADERS FOR THE NEW
REALITY. Chicago, IL: Health Administration Press.
Book Review of "Terrorism, Freedom, and Security: Winning Without War," in the Journal of Homeland
Security and Emergency Management (BEPress 2004).
"Final Report on Legal Issues:" Appendix A of Study prepared for the Federal Emergency Management
Agency on "Evaluation of Alternatives in Obtaining Structural Elevation Data" (July 2003).
"An Electric Cooperative's Introduction to FEMA," Published by The National Rural Electric Cooperative
Association, March 2003.
SELECTED PRESENTATIONS
"Emergency Sheltering and Americans with Disabilities Act," at National Lieutenant Governors
Association Annual Meeting, Puerto Rico, July 2011.
"Water Law and The National Flood Insurance Program," at American Bar Association Water Law
Conference, San Diego, February 2011.
Guest Lecturer on Public Health Emergency Law (for Course in Public Health Law), University of
Tennessee - Knoxville Law School, Fall 2010.
Keynote Speaker at Symposium on Public Health Emergencies and California Law, University of the
Pacific, McGeorge School of Law, May 2009.
Co- Chair, "The Law and Catastrophic Disasters: Legal Issues in the Aftermath," a Legal Preparedness
Table Top Exercise sponsored by the National Legal Preparedness Training Program of the
University of District of Columbia, the Center for American and International Law, and the
National Emergency Management Association, March 2009.
"Constitutional and Legal Tensions in Disaster Law," St. Louis University Law School (November 2008).
10
Attachment No. 3
"Contracting Following a Disaster," Presentation to Public Contract Lawyers on legal issues in disaster
contracting, sponsored by the ABA Public Contract Law Section (October 2008).
"Floods, Flood Insurance, Litigation, Politics and Catastrophe: The National Flood Insurance Program,"
The Sea Grant Law and Policy Inaugural Symposium, The University of Mississippi School of Law,
Oxford, MS, March 2008.
"Why Care About Law — and Lawyers —in Public Health Emergencies ?" keynote address on Public Health
Emergency Law Training Program, Connecticut Department of Health (Hartford, May 2007).
"Legal Trends in Emergency Management — and FEMA Appeals," Presentation to International
Association of Emergency Managers, Orlando, FL, November 2006.
"Lawyers, Disasters, and Federalism," the Edwin L. Crawford Lecture on Municipal Law, Albany Law
School, November, 2006.
"A Short History of the Development and Operations of FEMA," A Presentation to the Rural Electric
Statewide Managers Association. Phoenix, Arizona. November 2005.
"Limiting Liability When Warning About Risks," October 23, 2001, to Seismic Risk Communication
Conference of Western States Seismic Council.
"Laws and Lawyers: Enabling Coordination," presentation to NATO Partnership for Peace Seminar on
Legal issues in International Emergency Management (Stockholm, September, 2000).
ORGANIZATIONS AND ACTIVITIES
Journal of Homeland Security and Emergency Management (JHSEM), Editorial Board Member, November
2008 — present.
American Bar Association, 1977 - present. Member, Special Committee on Disaster Response and
Recovery, 2006 - present. Chair, Committee on Emergency Management and Homeland Security,
2002 -2009; Vice -Chair 2009 -2010. Council Member, Section of State and Local Government Law
2003 -2007; Chair, Multi- Section Task Force on Homeland Security, 2005 -2007. Member, ABA
Hurricane Katrina Task Force, 2005 -2006.
National Emergency Management Association, Associate Member and Private Sector Liaison to the Legal
Committee.
Member of District of Columbia, Massachusetts, and Texas Bars.
Referee (1989 -2012) and Associate Referee Instructor (2003 -12), United States Soccer Federation
Cathedral Choral Society (Second Bass) (2002 - present); voice and piano lessons.
Treasurer, Great Falls United Methodist Church, 2002 -06. Chair of Personnel Committee, 1997 -2001.
Trustee and Audio - Visual Coordinator, Arlington Temple United Methodist Church, 2007 -
present.
11
REFERENCES FOR FEMA LAW ASSOCIATES, PLLC
1. South Florida Water Management District
• Carlyn Kowalsky
Managing Attorney
3301 Gun Club Road
West Palm Beach, FL, 33416
Office: (561) 682 -6240
Email: ckowalsk @sfwmd.gov
2. City of Houston. TX:
• Jo Wiginton
Sr. Assistant City Attorney
City of Houston
Legal Department
Post Office Box 1562, Houston, TX 77002
Office: (713) 247 -2054
Fax: (713) 247 -1017
Email: jo.wiginton @citvofhouston.net
3. City of Waveland. MS
• Lisa Planchard
City Clerk
City of Waveland
407 Highway 90, Waveland, MS 39576
Office: (228) 467 -4134
Fax: (228) 467 -3177
Email: w.cityhall @mchsi.com
4. Baldwin County
• Kim Creech
Director, Finance and Accounting Department
Baldwin County Commission
312 Courthouse Square, Suite 11, Minette, AL 36507
Office: (251) 937 -0303
Fax: (251) 239 -4309
Email: kcreech @co.baldwin.al.us
S. City of Moss Point, MS
FIVa
Attachment No. 3
• Amy St. Pe'
Attachment No. 3
Dogan & Wilkinson, PLLC
734 Delmas Avenue, Pascagoula, Mississippi 39567
Office: (228) 762 -2272
Fax: (228) 762 -3223
Email: ASTPE @DWWATTORNEYS.COM
• Aneice Liddell
Mayor
City of Moss Point, MS
4412 Denny St., Moss Point, MS 39563
Office: (228) 475 -0300 Ext 7005
6. South Mississippi Electric Power Association (SMEPA)
• Jeff Bowman
Jackson, Bowman & Arrington, PLLC
309 S. 40th Avenue, Hattiesburg, MS 39402
Office: (601) 264 -3309
Fax: (601) 264 -6044
Email: jell @iacksonfirm.com
13
October 30, 2012
Gary McAlpin
Collier County, Florida
Attachment No. 4
Re: FEMA Deobligation of Costs Arising from Hurricanes
Gabrielle, Katrina, and Wilma
Dear Mr. McAlpin:
This letter will confirm the arrangements governing our performance of legal and
regulatory services for Collier County ( "Collier County "), and specifically, to assist
the County in reversing the deobligation by the Federal Emergency Management
Agency of disaster assistance grants previously reimbursed for permanent beach
restoration.
Fees and Expenses
Retainer. Collier County will pay no initial retainer amount; all compensation will
be based on the professional time I spend on Collier County matters.
Professional Time: Fees will be based on our current hourly rates. My current
hourly rate is $400. Time of my paralegal will be charged at her standard rate,
currently $80 per hour.
Expenses: Collier County will reimburse reasonable expenses incurred in
connection with this representation such as significant long distance telephone
charges, special postage, delivery charges, telex or telecopy charges, travel,
photocopying, and the use of other service providers such as printers or experts,
if needed. Disbursements include any special search charges (outside my flat
rate service) from computerized databases such as WestLaw, although no such
charges are anticipated.
Billing and Payment. FEMA Law Associates will normally render statements
monthly for work done the previous month, covering and identifying services
rendered as well as disbursements and other charges. Payment will be due 30
days after the date of the invoice, with interest at the rate of 1 % per month on
any sums more than 60 days past due. Payment should be made by check or
electronic deposit.
Attachment No. 4
Miscellaneous.
1. 1 am licensed to practice law in the District of Columbia, Massachusetts, and
Texas.
2. Either Collier County or I may terminate this engagement at any time, on one
day's prior notice, but my obligation to maintain strict confidentiality, and the
Collier County's obligation to pay for services actually performed prior to
termination, will survive termination of this agreement.
3. The Tax I.D. Number for FEMA Law Associates, PLLC is 41- 2054480.
1 hope that this proposal meets your needs and that you will give me a call if you
have any questions. If you agree to this proposal, please sign in the space
provided below and return one copy to me. I look forward to the opportunity of
working with you.
Sincerely,
Ernest B. Abbott
Agreed to:
Collier County, Florida
M
Gary McAlpin
CAC November 8, 2012
IX -1 Old Business
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H
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JOHN F. SOREY III
IMAYOR
October 26, 2012
Chairman Fred Coyle
Collier County Board of County Commissioners
Collier County Government
3299 Tamiaml Trail East
Naples, Florida 34112
RE: Coastal Advisory Committee Management of Beach Renourishment
Dear Chairman Coyle:
At the September 25, 2012 Board of County Commissioners (BCC) meeting, it
was stated by Commission Members that County management and staff
failed to manage the timing of the upcoming beach renourishment. As
Chairman of the Coastal Advisory Committee (CAC) and being charged by the
Commission with the primary advisory role on these matters, I respectfully
offer the actual facts as to the management of the renourishment program.
Everyone is entitled to their own opinion, but not to their own facts. Below, 1
have outlined the time table concerning beach renourishment. It appears
there may be an effort to drive a wedge between a very effective CAC, a
dedicated and effective staff, the City of Naples and the BCC. Even when
facts are presented, they are discounted. 1 must state emphatically that the
upcoming beach renourishment has been managed extremely well and 1 am
concerned about the harmful Impacts on all concerned.
In overview, funds were budgeted in 2009; planning for the next
renourishment began in 2010; direction was changed in early 2011 and in
2012; and options are being
735 EIGHTH STREET SOUTH • NAPLE�.S. FLORIDA 34102,671M
TELEP ONI F (239) 213. 1000 FAX (239} 213 -1010 CELL (239) 248- 1550
EMAIL; Mu4o lr'Napll`sgm.conj
CAC November 8, 2012
IX -1 Old Business
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v~i 3 lPii iw.
t
JOHN E SOREY III
MAYOR
re- evaluated based on funding reductions. All these activities have been
approved by the BCC, the Tourist Development Council (TDC) and the CAC.
Below are the facts that reflect the history and direction from the BCC, the
CAC and the TDC.
• On May 26, 2009, the BCC approved a budget request for $150,000 to
re- evaluate and re- permit its beaches providing a more robust beach fill
section for hot spots and/or other beach sections.
• Beach renourishment planning began in the summer /fall of 2010, four
Years after the 2005 /06 renourishment. A proposal to develop a
conceptual design and various options was developed in the fall of
2010 and approved by the CAC on October 14, 2010 and the TDC on
November 22, 2010.
• On February 9, 2011, Naples City Council and the BCC, in a joint
workshop,:. directed that Staff draft proposed changes in regulations
with solutions that are more long term °and develop options that
maximized the time between major beach renourishment projects.
This direction refocused efforts on a much more comprehensive and
complete solution which resulted in a 10- year design
recommendation. Unfortunately, Commissioners Georgia Hiller and
Tom Henning were not In attendance.
• The Conceptual Design update report was presented and approved by
the CAC on March 10, 2011.
• The draft Conceptual Design report was presented and a
CAC on May 12, 2011. approved by the
• The RFP solicitation specifications were presented and approved by
the CAC on September 9, 2011 for Engineering Consultants for the next
major beach renourishment.
• The final Conceptual Design report was approved by the CAC on
October 13, 2011 and the TDC on February 27, 2012.
'35 EIGHTH STREET SOUTH - NAPLES. FLORIDA 34102 -6796
TELEPHONE(239)213 1000 FAX(239)2i3 1010 CELL(239)248-1550
ENTAIL: Mayorf- Naples;;ov.con1
CAC November 8, 2012
IX -1 Old Business
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JOHN F. SOREY III
MAYOR
• A recommendation to approve a shortlist of firms for Beach
renourishment Engineering Services was ratified by the CAC on
January 12, 2012 and the TDC on January 23, 2012.
• The Coastal Planning and Engineering draft contract was presented
and approved by the CAC on May 11, 2012 and the TDC on May 29,
2012.
The last renourishment was completed in May 2006. It was a six year design
project with a cost of approximately $20,000,000. Although this was a six
year design project, funds were accrued on a ten year schedule and set aside
at $2 million per year. At the end of the six year interval in 2012,
approximately $12 million in renourishment funding had been set aside.
Unfortunately, this is Insufficient to construct the next beach renourishment.
I have addressed the Commission on many occasions regarding the funding
structure for the beaches. This funding issue must be permanently
addressed to prevent a similar situation In the future. In the past, our
program has relied too much on FEMA and State funding. This funding is
becoming more and more unpredictable as seen by the recent de- obligation
and will be more difficult to obtain in the future.
The BCC, the City of Naples and the City of Marco island, along with County
management and staff, have always worked very effectively together through
the CAC for the benefit of our entire community. In addition, the CAC has a
notable record of exceptional management and stewardship on issues
effecting our beaches, estuaries and Inlets. As we move into a period of
doing more with less, a strong working relationship between all stakeholders
is even more important.
'735 EIGHTH STREET SOUTH •NAPLES. FLORIDA 34102 -6796
1'EL,EI HONE (239) 2:3 -1000 FAX (239) 213-1010 CELL ('.39) 248 -1550
EMAIL: Mayoi'` Naplcspwcojn
CAC November 8, 2012
IX -1 Old Business
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S- J
JOHN F. SORLY Iii
1 and all the members of the CAC remain committed to maintaining our world
class beaches, but we all need to focus on the objective versus our individual
agendas. We are committed to offering the best advice, supported by sound
science, engineering, and financing for the benefit of our residents, visitors,
and businesses.
Thank you for considering my comments
Sincerely,
John F. Sorey 111
Mayor, City of Naples
CAC Chairman
CC: Commissioner Donna Fiala
Commissioner Georgia Hiller
Commissioner Tom Henning
Commissioner Jim Coletta
County Manager Leo Ochs
CAC Members
Naples City Council
City of Naples, City Manager Bill Moss
7:35 ELi;LLTII S'T`REET SOUTH • NA6'L...ES, FL.,ORII)A 341()2-{79{
Th LF:P110NE (239) 713.1000 FAX (239 213 -1010 CELL(239)249-1550
EMAIL: Mayor'9 Na*" "Ovxonl