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Agenda 01/08/2013 Item #10G 1/8/2013 Item 10.G. EXECUTIVE SUMMARY Recommendation to approve, and authorize the Chairman of the Board of County Commissioners to sign, an Interlocal Agreement relating to establishment of the Gulf Consortium to act on behalf of Collier County in the implementation of the RESTORE Act (Resources and Ecosystems Sustainability Tourist Opportunities and Revised Economies of the Gulf Coast States Act of 2012). OBJECTIVE: That the Board of County Commissioners (Board) approves an Interlocal Agreement relating to the establishment of the Gulf Consortium. CONSIDERATIONS: On July 6, 2012, President Obama signed the Resources and Ecosystems Sustainability Tourist Opportunities and Revised Economies of the Gulf Coast States Act of 2012, hereinafter referred to as RESTORE. This legislation specifically deals with the oil spill caused by the explosion and sinking of the Deepwater Horizon oil rig in the Gulf of Mexico which occurred on April 20, 2010, and any fines or penalties assessed under the Clean Water Act by the Environmental Protection Agency that BP may pay to the federal government. Under this new legislation, 80% of all administrative and civil penalties related to the Deepwater Horizon incident paid to the federal government by responsible parties will be deposited into the Gulf Coast Restoration Trust Fund. Thirty-five percent (35%) of this is to be available to the Gulf Coast states in equal shares for expenditure for ecological and economic restoration of the Gulf Coast region. Gulf Coast states are defined to be Alabama, Florida, Louisiana,Mississippi, and Texas. That Act also provides that in the case of Florida, its share of the 35% is broken down as follows: 75% of the funding shall be provided directly to the eight disproportionately affected counties (Escambia, Santa Rosa, Okaloosa, Walton, Bay, Gulf, Franklin and Wakula). Twenty-five percent (25%) shall be provided directly to non-disproportionately impacted counties within the state. Collier County is in the latter category, Thirty percent (30%) of the funds are to be used for the development and implementation of a comprehensive restoration plan created by a Federal/State Gulf Coast Restoration Council with all Gulf Coast States represented on the Council. An additional thirty(30%)of the funds will be distributed according to an impact driven formula and disbursed to the Gulf Coast States according to plans submitted by the Gulf Coast States and approved by the Council. Five percent(5%) of the funds would be used for Gulf Coast research. The thirty percent (30%) share which will be disbursed to the Gulf Coast States are competitive dollars. The Consortium is being developed to have a unified front from Florida in securing these dollars. The Interlocal Agreement is being presented to all 23 Gulf Coast counties in Florida. The purpose of the Interlocal Agreement is to set up an independent entity to represent the interests of all of the collective counties and be charged with the development of the plan for the expenditure of the Oil Spill Restoration Impact Allocation required by the RESTORE Act. Packet Page-1190- Packet Page-553- 1 C 1/8/2013 Item 10.G. The Interlocal Agreement contemplates a five person executive committee which includes the Chair, Vice-Chair, Secretary and two Directors of the Consortium. The Executive Committee is delegated many of the powers and duties of the Consortium as found in Article IV. This is probably due to the fact that so many governmental entities are proposed to be members of the Consortium. As a member, it is likely that the Board will be asked to fund a portion of the operation of the entity. There will likely be an Executive Director and staff. Currently, Doug Darling, former Department of Economic Opportunity Secretary, has been hired by the Florida Association of Counties to work on the implementation of the RESTORE Act, however, once the Consortium is up and running, I would think they will take this function over. The Interlocal does have a provision that would allow any member to withdraw for any reason, including that expenses of the Consortium were getting too onerous. See Section 3.08. On September 19, 2012,the Florida Association of Counties held a meeting at which the affected Gulf Coast Counties were asked to bring the Interlocal Agreement forward to their respective Boards. On September 25, Commissioner Fiala brought this issue to the Board for discussion, and the Board directed the County Attorney to prepare an Interlocal Agreement. A transcript of this discussion is included as back-up. The County Attorney contacted Ginger Delegal, the General Counsel to the Florida Association of Counties, to inquire whether any changes could be incorporated into the proposed Interlocal. Since the Interlocal involves 23 counties, some of whom had earlier approved the agreement, no changes can be made at this time. Concerns can be addressed at a later date by the Consortium though Resolutions adopted by the Executive Committee. FISCAL IMPACT: Collier County's share of the initial transition cost is estimated to be $1,120. Future costs are unknown, but will likely be relatively small. GROWTH MANAGEMENT PLAN IMPACT: None. LEGAL CONSIDERATIONS: This item is legally sufficient and requires majority support for approval. RECOMMENDATION: That the Board of County Commissioners approves Collier County's membership in the Gulf Consortium, and authorizes its Chairman to execute the Interlocal Agreement establishing said entity. PREPARED BY: Jeffrey A. Klatzkow, County Attorney Packet Page-1191- Packet Page-554- 1/8/2013 Item 10.G. 10/23/1U1Z item IL.A. EXECUTION COPY INTERLOCAL AGREEMENT RELATING TO ESTABLISHMENT OF THE GULF CONSORTIUM Dated as of September 19, 2012 Packet Page-1194 Packet Page-555- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. TABLE OF CONTENTS Page ARTICLE I DEFINITIONS SECTION 1.01. DEFINITIONS. 4 ARTICLE II THE CONSORTIUM SECTION 2.01. CREATION. 6 SECTION 2.02. PURPOSES. 6 SECTION 2.03. CONSORTIUM MEMBERS. 7 SECTION 2.04. DURATION OF CONSORTIUM. 7 ARTICLE III MEMBERSHIP AND REPRESENTATION SECTION 3.01. MEMBERSHIP. 8 SECTION 3.02. REPRESENTATION. 8 SECTION 3.03. ACTION. 9 SECTION 3.04. ELECTION OF OFFICERS. 9 SECTION 3.05. AUTHORITY OF OFFICERS. 9 SECTION 3.06. RESIGNATION OR REMOVAL OF DIRECTOR. 10 SECTION 3.07. MEETINGS. 10 SECTION 3.08. WITHDRAWAL OR DISMISSAL OF CONSORTIUM MEMBERS. 11 SECTION 3.09. EXPENSES. 11 SECTION 3.10. LIABILITY. 11 SECTION 3.11. EXECUTIVE COMMITTEE. 11 SECTION 3.12. PRINCIPAL PLACE OF BUSINESS. 12 Packet Page -1195- Packet Page -556- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. ARTICLE IV POWERS AND DUTIES SECTION 4.01. POWERS. 13 SECTION 4.02. ANNUAL BUDGET. 16 SECTION 4.03. AD VALOREM TAXATION NOT AUTHORIZED. 16 ARTICLE V MISCELLANEOUS SECTION 5.01. DELEGATION OF DUTY. 17 SECTION 5.02. FILING. 17 SECTION 5.03. IMMUNITY. 17 SECTION 5.04. LIMITED LIABILITY. 18 SECTION 5.05. AMENDMENTS. 18 SECTION 5.06. SEVERABILITY. 18 SECTION 5.07. CONTROLLING LAW. 18 SECTION 5.08. EFFECTIVE DATE. 18 ii Packet Page-1196- Packet Page-557- 1/8/2013 Item 10.G. 10I2silui z item 1 L.H. INTERLO CAL AGREEMENT RELATING TO ESTABLISHMENT OF THE GULF CONSORTIUM THIS INTERLOCAL AGREEMENT, dated as of September 19, 2012 (the "Interlocal Agreement"), is jointly entered into by the counties which are signatory hereto (collectively, the "Consortium Members"), each of which are political subdivisions or other government agencies of the State of Florida and constitute a "public agency" as that term is defined by Part I of Chapter 163, Florida Statutes (the "Interlocal Act"), and such other public agencies as are added as additional Consortium Members as provided in Section 3.01 hereof. WITNESSETH: WHEREAS, each of the initial Consortium Members are political subdivisions of the State of Florida and have all powers of self-government pursuant to their home rule powers and express grants of authority provided by general law, including, but not limited to, those powers granted under Chapter 125, Florida Statutes; and WHEREAS, all Consortium Members are public agencies of the State of Florida, within the meaning of Part I of Chapter 163, Florida Statutes (the "Interlocal Act"); and WHEREAS, the Consortium Members, as public agencies under the Interlocal Act, may enter into interlocal agreements with each other to jointly exercise any power, privilege or authority which such Consortium Members share in common and which each might exercise separately. The joint exercise of this authority permits the Consortium Members to make the most efficient use of their powers by enabling them to cooperate on the basis of mutual benefit and, pursuant to this authority, to form a governmental entity that will best serve the needs of such Consortium Members and their citizens; and WHEREAS,the Interlocal Act authorizes the Consortium Members to enter into an interlocal agreement for the purposes of creating a separate legal entity for the purpose of the joint exercise of the common powers of the Consortium Members; and 1 Packet Page-1197- I Packet Page-558- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. WHEREAS,the United States Congress approved, and the President signed into law, the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012 (the "RESTORE Act"), which established potential funding sources for various purposes which will enhance and benefit the Gulf Coast area. Such funding sources are to be derived from administrative and civil penalties from responsible parties in connection with the explosion on and sinking of the mobile offshore drilling unit Deepwater Horizon; and WHEREAS, the initial Consortium Members are counties which were impacted by the Deepwater Horizon event and the provisions of the RESTORE Act are applicable to it; and WHEREAS, under the provisions of the RESTORE Act, a Trust Fund (the "Trust Fund") is established through which funding is available for various projects, improvements, development and environmental mitigation within the Gulf Coast regions; and WHEREAS, the Consortium Members have determined that it is in their best interests to create a legal entity to join together for the purposes of implementing the consortia of local political subdivisions contemplated by the RESTORE Act, for the purposes of the development of the plan for the expenditure of the oil spill restoration impact allocation and to jointly serve the interests of the Consortium Members; and WHEREAS, the Consortium Members seek to jointly exercise their power to consider and promote proposals to be funded through the Trust Fund and to seek on behalf of the Consortium and its members the funding of eligible projects within their respective areas; and WHEREAS, the Consortium Members seek to join together to arrive at mutually beneficial projects, programs and improvements which will enhance the ecosystems and economy of the Consortium Members and to collectively fulfill their responsibilities under the RESTORE Act to develop a plan for expenditure of certain funds within the Trust Fund. NOW, THEREFORE, in consideration of the foregoing, it is mutually agreed by and among the Consortium Members that now or may hereafter execute this Interlocal Agreement, that the "Gulf Consortium," is a legal entity, public body and a unit of local government with all of the privileges, benefits, powers and 2 Packet Page-1198- Packet Page-559- 1/8/2013 Item 10.G. 10/23i2u1 Z item .i L.H. terms of the hereinafter defined Act and this Interlocal Agreement, and is hereby created for the purposes described herein. 3 Packet Page-1199- Packet Page-560- 1/8/2013 Item 10.G. 10/23/2u1 Z item 'ILA. ARTICLE I DEFINITIONS SECTION 1.01. DEFINITIONS. The following definitions shall govern the interpretation of this Interlocal Agreement: "Act" shall mean, with respect to Consortium Members that are Affected Counties, the "Home Rule" powers and all provisions of general law granting powers and authority to each such Consortium Member, including, but not limited to, Chapter 125, Florida Statutes, the Interlocal Act, and other applicable provisions of law, and to other Consortium Members, all provisions of general law granting powers and authority to such Consortium Member, including the Interlocal Act. "Affected County" shall mean any of the 23 Florida counties with frontage on the Gulf of Mexico. "Consortium Members" shall mean the member or members of the Consortium, from time to time, as shall be provided for by this Interlocal Agreement. "Board" shall mean the governing board of the Consortium, consisting of the Directors appointed hereunder. "Consortium" shall mean the Gulf Consortium, a legal entity and public body, created pursuant to the provisions of the Interlocal Act and by this Interlocal Agreement. "Director" shall mean that individual appointed by each Consortium Member in accordance with the provisions hereof to serve as part of the Board. "Fiscal Year" shall mean the period commencing on October 1 of each year and continuing through the next succeeding September 30, or such other period as may be determined by the Board. "Manager" shall mean the individual or entity selected and engaged by the Board to provide administrative functions of the Consortium. "Interlocal Act" shall mean Part I of Chapter 163,Florida Statutes. 4 Packet Page-1200- Packet Page-561- - — 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. "Interlocal Agreement" shall mean this Interlocal Agreement, including any amendments or supplements hereto, executed and delivered in accordance with the terms hereof. "Public Agencies" shall mean any "public agency", as that term is defined by the Interlocal Act. "RESTORE Act" shall have the meaning set forth in the preambles hereof. "State" shall mean the State of Florida. Whenever any words are used in this Interlocal Agreement in the masculine gender, they shall be construed as though they were also used in the feminine or neuter gender in all situations where they would so apply,and whenever any words are used in this Interlocal Agreement in the singular form, they shall be construed as though they were also used in the plural form in all situations where they would so apply. 5 Packet Page-1201- Packet Page-562- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. ARTICLE II THE CONSORTIUM SECTION 2.01. CREATION. The Consortium Members hereby jointly create and establish the "Gulf Consortium", a legal entity and public body and a unit of local government, with all of the privileges, benefits, powers and terms provided for herein and by the Act. SECTION 2.02. PURPOSES. (A) The purpose of this Interlocal Agreement is for the establishment of the Consortium, which will serve as the consortia or establish the consortia of local political subdivisions as contemplated by the RESTORE Act for those counties which are members of the Consortium. The Consortium is intended to assist in or be responsible for, as determined by the Board: (1) the development of the plan for the expenditure of the Oil Spill Restoration Impact Allocation required by the RESTORE Act; (2) the preparation and processing of applications or proposals for funding under the competitive program to be processed and administered by the Gulf Coast Ecosystem Restoration Council; (3) acting as a resource for Consortium Members, to the extent requested by that Member, in the planning, administration and expenditure of that Member's share or portion thereof provided directly to the disproportionately and nondisproportionately impacted counties pursuant to the RESTORE Act upon such terms and conditions agreed to by that Consortium Member and at the sole expense of that Consortium Member; provided, that nothing contained herein is intended to impact the amount or timing of any such distribution provided directly to the disproportionately and nondisproportionately impacted counties; (4) acting as a resource in the obtaining of additional funding for programs through other available revenue sources, including, but not limited to, those available for the Natural Resource Damage Assessment(NRDA); 6 Packet Page-1202- Packet Page-563- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. (5) acting as an advocate and representing the Consortium Members in the development of federal rules relating to the implementation of the RESTORE Act; and (6) acting as an advocate for the Consortium Members with executive agencies,the Florida Legislature and the United States government. (B) It is determined that the creation and organization of the Consortium and the fulfillment of its objectives serves a public purpose, and is in all respects for the benefit of the people of the State, Consortium Members, affected Public Agencies and their citizens. (C) It is determined that the Consortium is performing an essential governmental function. All property of the Consortium is and shall in all respects be considered to be public property, and the title to such property, to the extent required, shall be held by the Consortium for the benefit of the public. The use of such property shall be considered to serve a public purpose, until disposed of upon such terms as the Consortium may deem appropriate. SECTION 2.03. CONSORTIUM MEMBERS. The Consortium Members shall consist of those Public Agencies set forth below or joined as provided in Article III. SECTION 2.04. DURATION OF CONSORTIUM. The Consortium shall be in perpetual existence until the earlier of the following occurs: (A) all revenue within the Trust Fund created pursuant to the RESTORE Act is expended and the program established by the RESTORE Act is dissolved; or (B) the Consortium is dissolved by the majority vote of its Board. 7 Packet Page-1203- Packet Page-564- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. ARTICLE III MEMBERSHIP AND REPRESENTATION SECTION 3.01. MEMBERSHIP. (A) Membership in the Consortium shall consist of Public Agencies that approve this Interlocal Agreement pursuant to Article III. (B) The initial Consortium Members shall on the date hereof consist of those counties approving this Interlocal Agreement prior to October 19, 2012. (C) To the extent permitted by the Interlocal Act and the RESTORE Act, the Consortium may admit any additional Public Agency to membership upon application of such Public Agency, the approval of this Interlocal Agreement by that Public Agency, and the affirmative vote of the majority of all Directors at a duly called meeting of the Board of the Consortium; provided, that any Affected County shall automatically be admitted to membership upon application thereof. This Interlocal Agreement need not be amended in order to admit any Public Agency as a Member of the Consortium; however, any new Consortium Member which is not an Affected County shall be required to evidence its approval of any conditions imposed on its membership by the existing Directors of the Consortium. Approval of the governing bodies of each existing Consortium Member shall not be required for the purpose of admitting a new Consortium Member. (D) As a precondition to membership in the Consortium, each Consortium Member shall constitute a Florida municipality, county or such other Public Agency which is permitted by the Interlocal Act to be a member of the Consortium. Such new Consortium Member shall execute, deliver and record a duly authorized counterpart to this Interlocal Agreement, as it exists at the time of its approval. SECTION 3.02. REPRESENTATION. (A) Each Consortium Member shall appoint one Director to act as its representative on the Board. Each Director shall be an individual who shall be appointed specifically by name or by position. The Consortium Member shall notify the Manager and the Chairman in writing as to the individual designated as their Director. 8 Packet Page-1204- Packet Page-565- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. (B) Directors may be an elected official, appointed official, employee or other designee of a Consortium Member. SECTION 3.03. ACTION. (A) The affairs, actions and duties of the Consortium shall be undertaken at a duly called meeting pursuant to Section 3.07 hereof. (B) At any meeting of the Consortium at which any official action is to be taken, a majority of all Directors shall constitute a quorum. A majority vote of a quorum of the Directors present at a duly called meeting shall constitute an act of the Consortium, except as otherwise provided herein. Except as may be established by the Board with respect to any new Consortium Member which is not an Affected County, each Director is entitled to cast one vote. (C) A certificate, resolution or instrument authorized by the Board and signed by the Chairman, Vice-Chairman or such other person of the Consortium as may hereafter be designated and authorized by the Board, shall be evidence of the action of the Consortium and any such certificate, resolution or other instrument so signed shall conclusively be presumed to be authentic. Likewise, all facts and matters stated therein shall conclusively be presumed to be accurate and true. SECTION 3.04. ELECTION OF OFFICERS. Once a year, and at such other time as may be necessary to fill a vacancy, at a duly called meeting of the Board called for the purpose thereof, the Consortium through its Directors shall elect a Chairman, a Vice-Chairman and a Secretary-Treasurer to conduct the meetings of the Board and to perform such other functions as herein provided. Said Chairman, Vice-Chairman and Secretary-Treasurer shall each serve one (1) year terms unless they resign from the Consortium, are removed by the Member they represent, or such officer is otherwise replaced as a Director of the Board. Officers may, if elected by the Directors, serve longer than a one (1)year term. SECTION 3.05. AUTHORITY OF OFFICERS. (A) The Chairman and the Vice-Chairman shall take such actions and have such powers as provided by the Board. The Chairman shall sign all documents on behalf of the Consortium and take such action as may be in furtherance of the purposes of this Interlocal Agreement as may be approved by resolution or action of the Board adopted at a duly called meeting. The Vice-Chairman shall act in the absence or otherwise inability of the Chairman to act. 9 Packet Page-1205- Packet Page-566- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. (B) The Secretary-Treasurer, or his designee, shall keep and maintain all minutes of all meetings of the Board, but such minutes need not be verbatim. Copies of all minutes of the meetings of the Board shall be sent by the Secretary- Treasurer or his designee to all Directors of the Consortium. The Secretary- Treasurer may also attest to the execution of documents. The Secretary-Treasurer shall have such other powers as may be approved by resolution or other action of the Board adopted at a duly called meeting. SECTION 3.06. RESIGNATION OR REMOVAL OF DIRECTOR. (A) Any Director may resign from all duties or responsibilities hereunder by giving at least thirty (30) days prior written notice to the Manager and Chairman. Such notice shall state the date said resignation shall take effect and such resignation shall take effect on that date. (B) Each Consortium Member, in its sole discretion, may remove its designated Director at any time and may appoint a new Director to serve on the Board upon written notice being given to the Manager and Chairman. Each Consortium Member may also designate an alternate or designee to serve in a Director's place in the event the Director is unavailable. (C) In the event the Director of a Consortium Member shall resign or be removed,such Consortium Member shall appoint a new Director within thirty(30) days. (D) Any Director who resigns or is removed and who is an officer of the Consortium shall immediately turn over and deliver to the Manager any and all records, books, documents or other property in his possession or under his control which belong to the Authority. SECTION 3.07. MEETINGS. (A) The Board shall convene at a meeting duly called by either a majority of the Directors or the Chairman. The Directors may establish regular meeting times and places. Meetings shall be conducted at such locations as may be determined by the majority of the Directors or the Chairman. Notice of a special meeting, unless otherwise waived, shall be furnished to each Director by the Manager not less than seven (7) calendar days prior to the date of such meeting; provided the Chairman or, in his absence or unavailability, the Vice-Chairman, may call a meeting upon twenty-four (24) hours written notice, if such officer 10 Packet Page-I206- Packet Page-567- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. determines an emergency exists. All meetings shall be noticed in accordance with Florida law. (B) Within thirty (30) calendar days of the creation of the Consortium, the duly appointed Directors shall hold an organizational meeting to elect officers and perform such other duties as are provided for under this Interlocal Agreement. (C) To the extent allowed, meetings may be held by means of media technology in conformity with the Interlocal Act. SECTION 3.08. WITHDRAWAL OR DISMISSAL OF CONSORTIUM MEMBERS. Any Consortium Member may withdraw from the Consortium at any time, if the following conditions are satisfied: (A) there shall be at least two (2) Consortium Members remaining in the Consortium subsequent to withdrawal; and (B) a certified resolution from the Consortium Member's governing body setting forth its intent to withdraw is presented to the Consortium. Upon satisfaction of the foregoing conditions, such withdrawal shall be effective. otik SECTION 3.09. EXPENSES. The Consortium may establish, from time to time, procedures for reimbursement for reasonable expenses incurred by Directors and employees of the Consortium. The Consortium shall also establish a mechanism for assessing or apportioning Consortium expenses to the Consortium Members. The expenditure of all expenses and approval of travel shall be in conformity with the provisions of Florida law governing travel and reimbursement of expenses for public officials. SECTION 3.10. LIABILITY. No Director, agent, officer, official or employee of the Consortium shall be liable for any action taken pursuant to this Interlocal Agreement in good faith or for any omission, except gross negligence, or for any act of omission or commission by any other Director, agent, officer, official or employee of the Consortium. SECTION 3.11 EXECUTIVE COMMITTEE. An Executive Committee of the Board shall be established that shall consist of the Chairman, the Vice- Chairman, the Secretary-Treasurer and two other Directors designated by the foregoing three officers. The Executive Committee shall have the power to act on behalf of the Board in items of the activities set forth in Section 4.01(A)(2), (3), 11 ;. Packet Page-1207- Packet Page-568- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. (4), (6), (7), (11), (13), (15), (16), (17), (23)and (24) hereof, and such other powers as may be designated by the Board. SECTION 3.12 PRINCIPAL PLACE OF BUSINESS. The Consortium's principal place of business, within the meaning of Section 163.01 (11), Florida Statutes, shall initially be Leon County, Florida, subject to modification by action of the Board. 12 Packet Page-1208- Packet Page-569- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. ARTICLE IV POWERS AND DUTIES SECTION 4.01. POWERS. (A) The Consortium shall have all powers to carry out the purposes of this Interlocal Agreement, including the following powers which shall be in addition to and supplementing any other privileges,benefits and powers granted by the Act, or otherwise by the Interlocal Agreement: (1) To enter into other interlocal agreements or join with any other special purpose or general purpose local governments, public agencies or authorities or create a separate entity as permitted by the Act in the exercise of common powers or to assist the Consortium in fulfilling its purpose under this Interlocal Agreement. (2) To sue and be sued in the name of the Consortium. (3) To adopt and use a seal and authorize the use of a facsimile thereof. (4) To contract with any public or private entity or person upon such terms as the Board deems appropriate. (5) To acquire, by purchase, gift, devise or otherwise, and to dispose of, real or personal property, or any estate therein, including the power to determine how property will be disposed of upon the dissolution of the Consortium. (6) To make and execute contracts or other instruments necessary or convenient to the exercise of its powers. (7) To maintain an office or offices at such place or places as the Board may designate from time to time, and to establish a custodian for the records of the Consortium. (8) To lease, as lessor or lessee, to or from any person, firm, corporation, association or body, public or private, facilities or property of any nature to carry out any of the purposes authorized by this Interlocal Agreement. 13 Packet Page-1209- Packet Page-570- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. (9) To apply for and accept grants, loans and subsidies from any governmental entity for the funding of projects, improvements or mitigation, and to comply with all requirements and conditions imposed in connection therewith. (10) To the extent allowed by law and to the extent required to effectuate the purposes hereof, to exercise all privileges, immunities and exemptions accorded municipalities and counties of the State under the provisions of the constitution and laws of the State. (11) To invest its moneys in such investments as directed by the Board in accordance with State law. (12) To provide for the establishment of advisory committees or councils to the Board or other interlocal entities under the auspices of the Board. (13) To fix the time and place or places at which its regular meetings shall be held, and to call and hold special meetings. (14) To make and adopt rules and procedures, resolutions and take such other actions as are not inconsistent with the Constitution and laws of the State of Florida, the provisions of the Interlocal Act or this Interlocal Agreement that are necessary for the governance and management of the affairs of the Consortium, and further, the powers, obligations and responsibilities vested in the Consortium by this Interlocal Agreement. (15) To select and engage a Manager, who shall administer the operations of the Consortium, manage the staff of the Consortium, as authorized by the Board, and perform all other administrative duties as directed by the Board. (16) To employ or hire such attorneys or firm(s) of attorneys as it deems appropriate to provide legal advice and/or other legal services to the Consortium. (17) To employ or hire engineers, consultants or other specialized professionals as it deems appropriate to further the purposes of the Consortium. (18) To create any and all necessary offices in addition to Chairman, Vice-Chairman and Secretary-Treasurer; to establish other committees; to establish the powers, duties and compensation of all employees; and to require and fix the 14 Packet Page-1210- Packet Page-571- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. amount of all official bonds necessary for the protection of the funds and property of the Consortium. (19) To take such action and employ such persons or entities as are necessary to prepare, develop and submit to the Gulf Coast Ecosystem Restoration Council the plan for the Oil Spill Restoration Impact Allocation contemplated by the RESTORE Act setting forth those projects, programs and activities that will improve the ecosystems or economy of the State of Florida. (20) To prepare, develop and submit applications for funding from the Trust Fund under the competitive program administered by the Gulf Coast Ecosystem Restoration Council on behalf of the Consortium or a Member. (21) To advise, assist and aid Consortium Members, upon their request, in the planning, administration and expenditure of that Member's share or portion thereof of amounts provided directly to the disproportionately and nondisproportionately impacted Counties pursuant to the RESTORE Act, upon such terms and conditions agreed to by that Member and at the sole expense of that Consortium Member. (22) To advise, assist and aid the Consortium in obtaining additional funding from other programs for projects, programs or mitigation on behalf of the Consortium or its Members. (23) To hire or engage staff, attorneys and professionals to act as an advocate and represent the interests of Consortium Members in the Federal rulemaking process. (24) To hire or engage staff, attorneys and professionals as an advocate and to represent the interests of the Consortium and its Members before Federal and State agencies and the Legislature. (25) To do all acts and to exercise all of the powers necessary, convenient, incidental, implied or proper in connection with any of the powers, duties or purposes authorized by this Interlocal Agreement or the Act. (B) In exercising the powers conferred by this Interlocal Agreement, the Board shall act by resolution or other action approved at duly noticed and publicly held meetings in conformance with applicable law. 15 Packet Page-1211- Packet Page-572- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. (C) The provisions of Chapter 120, Florida Statutes, shall not apply to the Consortium. (D) The Consortium shall be subject to the provisions of the Florida Sunshine Law under Chapter 286, Florida Statutes. All records of the Consortium shall be subject to the Public Records Law. SECTION 4.02. ANNUAL BUDGET. (A) Following the creation of the Consortium, the Board shall approve a budget which shall provide for revenues and expenditures during the remainder of the fiscal year in which it was formed. Such interim budget procedures shall be utilized solely for the initial year of creation of the Consortium, after which the budget shall be created pursuant to the remaining provisions of this section. (B) Prior to October 1 of each year the Board will adopt an annual budget for the Consortium. Such budget shall be prepared within the time periods required for the adoption of a tentative and final budget for county governments under general Iaw. The annual budget shall contain an estimate of receipts by source and an itemized estimation of expenditures anticipated to be incurred to meet the financial needs and obligations of the Consortium. The Manager shall prepare the annual budget. (C) The adopted budget shall be the operating and fiscal guide for the Consortium for the ensuing Fiscal Year. The Board may from time to time amend the budget at any duly called regular or special meeting. (D) The Consortium shall provide financial reports in such form and in such manner as prescribed pursuant to this Interlocal Agreement and Chapter 218, Florida Statutes. SECTION 4.03. AD VALOREM TAXATION NOT AUTHORIZED. The Consortium shall not have the power to levy and assess an ad valorem tax on any property for any reason. 16 Packet Page-1212- Packet Page-573- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. oettok ARTICLE V MISCELLANEOUS SECTION 5.01. DELEGATION OF DUTY. Nothing contained herein shall be deemed to authorize the delegation of'any of the constitutional or statutory duties of the State or the Consortium Members or any officers thereof. SECTION 5.02. FILING. A copy of this Interlocal Agreement shall be filed for record with the Clerk of the Circuit Court of Leon County, Florida, and with the Clerk of the Circuit Court of any other County subsequently determined to be the Consortium's principal place of business. SECTION 5.03. IMMUNITY. (A) All of the privileges and immunities from liability and exemptions from laws, ordinances and rules which apply to the activity of officials, officers, agents or employees of the Consortium Members shall apply to the officials, officers, agents or employees of the Consortium when performing their respective functions and duties under the provisions of this Interlocal Agreement. (B) The Consortium and each Consortium Member shall be entitled to all protections granted to them under Sections 768.28 and 163.01(9)(c), Florida Statutes, other Florida Statutes and the common law governing sovereign immunity. Pursuant to Section 163.01(5)(o), Florida Statutes, Consortium Members may not be held jointly liable for the torts of the officers or employees of the Consortium, or any other tort attributable to the Consortium, and that the Consortium alone shall be liable for any torts attributable to it or for torts of is officers, employees or agents, and then only to the extent of the waiver of sovereign immunity or limitation of liability as specified in Section 768.28, Florida Statutes. Nothing in this Interlocal Agreement shall be deemed to constitute a waiver of sovereign immunity. (C) The Consortium Members intend that the Consortium shall have all of the privileges and immunities from liability and exemptions from laws, ordinances, rules and common law which apply to the municipalities and counties of the State. Nothing in this Interlocal Agreement is intended to inure to the benefit of any third-party for the purpose of allowing any claim which would otherwise be barred under the doctrine of sovereign immunity or by operation of law. 17 Packet Page-1213- Packet Page-574- 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. SECTION 5.04. LIMITED LIABILITY. No Consortium Member shall in any manner be obligated to pay any debts, obligations or liabilities arising as a result of any actions of the Consortium, the Directors or any other agents, employees, officers or officials of the Consortium, except to the extent otherwise mutually agreed upon by that Member, and neither the Consortium, the Directors or any other agents, employees, officers or officials of the Consortium have any authority or power to otherwise obligate any individual Consortium Member in any manner. SECTION 5.05. AMENDMENTS. This Interlocal Agreement may be amended in writing at any time by the concurrence of all of the Directors present at a duly called meeting of the Consortium and subsequent ratification by the governing body of each Consortium Member. However, this Interlocal Agreement may not be amended so as to (A) permit any profits of the Consortium to inure to the benefit of any private person, or (B) permit the diversion or application of any of the moneys or other assets of the Consortium for any purposes other than those specified herein. SECTION 5.06. SEVERABILITY. In the event that any provision of this Interlocal Agreement shall, for any reason, be determined invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the other provisions of this Interlocal Agreement shall remain in full force and effect. SECTION 5.07. CONTROLLING LAW. This Interlocal Agreement shall be construed and governed by Florida law. SECTION 5.08. EFFECTIVE DATE. This Interlocal Agreement shall become effective on the later of(A) the dated date hereof, or (B) the date the last initial Consortium Member executes this Interlocal Agreement and the filing requirements of Section 5.02 hereof are satisfied. 18 Packet Page -1214- Packet Page-575- ' 1/8/2013 Item 10.G. 10/23/2012 Item 12.A. SIGNATURE PAGE TO INTERLOCAL AGREEMENT RELATING TO ESTABLISHMENT OF THE GULF CONSORTIUM COUNTY, FLORIDA ATTEST: By: Chairman Board of County Commissioners Clerk of Circuit Court, ex officio Clerk of Board of County Commissioners Packet Page-1215- Packet Page-576- 1/8/2013 Item 10.G. COLLIER COUNTY Board of County Commissioners Item Number: 10.G. Item Summary: Request for reconsideration by Commissioner Henning of Item 12A from the October 23, 2012 BCC Meeting titled: Recommendation to approve and authorize the Chairman of the Board of County Commissioners to sign an Interlocal Agreement relating to establishment of the Gulf Consortium to act on behalf of Collier County in the implementation of the RESTORE Act (Resources and Ecosystems Sustainability Tourist Opportunities and Revised Economics of the Gulf Coast States Act of 2012). Meeting Date: 12/11/2012 Prepared By Name: BrockMaryJo Title: Executive Secretary to County Manager, CMO 11/19/2012 10:00:08 AM Submitted by Title: Executive Secretary to County Manager, CMO Name: BrockMaryJo 11/19/2012 10:00:11 AM Approved By Name: KlatzkowJeff Title: County Attorney Date: 11/19/2012 2:49:05 PM Name: SheffieldMichael Title: Manager-Business Operations, CMO Date: 11/19/2012 4:30:29 PM Packet Page-577- 1/8/2013 Item 10.G. Gulf Consortium Formation and Structure Memorandum To: Florida Association of Counties From: Mark T. Mustian, Nabors, Giblin, & Nickerson, P.A., FAC Special Counsel Date: September 14, 2012 The Gulf Consortium can be created by adoption of the attached interlocal agreement among any or all of the 23 "affected counties," including the 8 disproportionately affected counties and the 15 non-disproportionately affected counties which were impacted by the BP/Deep Water Horizon oil spill event. A separate document describes how the Gulf Consortium can serve the affected counties in the implementation of the RESTORE Act. This memorandum describes the structure of the Gulf Consortium as a joint public entity. Affected County Membership • Every county along the Gulf Coast of Florida has the right to join the Gulf Consortium by adopting the interlocal agreement and causing it to be recorded. • Any member may withdraw from the Consortium at any time. Non-County Members • Other public entities, such as cities and the state government, may be admitted to membership if they are approved by the county members of the Gulf Consortium. • The affected county members can limit the membership rights of non-county members, allowing flexibility to seek out necessary public entity partners, but also to limit their voting rights. Non-Government Members • Florida law does not allow a non-government entity to be a member of the Gulf Consortium. The Board may allow non-government entities to serve in an advisory role. One County/One Vote Governance • The Consortium is governed by a Board of Directors consisting of one representative appointed by each of the affected counties which join the Consortium. • Each Director has one vote. A majority of the Directors constitutes a quorum. 1 Packet Page-578- 1/8/2013 Item 10.G. Executive Committee • Five Directors chosen from the Board of Directors serve as the Executive Committee. • The Chairman, Vice-Chairman and Secretary-Treasurer are elected by the members of the Board at a meeting held once a year. Two other members are selected by the elected Executive Committee members. • The Executive Committee can take actions on behalf of the board that are specified in the interlocal agreement, including hiring a manager, renting office space, hiring federal and state lobbyists, and opening a bank account. Otherwise, the Executive Committee may exercise only the power delegated by the Board. Consortium Meetings • Regular meetings can be called by a majority of the Board members or by the Chairman. • All meetings require public notice as required by law. Immunity for Directors • Directors are held harmless from any liability for acts of the Consortium and its officers and employees. • The Consortium has sovereign immunity. Annual Budget and Reports • For the first year, an interim budget is authorized. Thereafter, the agreement calls for an annual budget. • Financial reports must be provided consistent with chapter 218, Florida Statutes. Sunshine Law and Public Records • The Consortium is subject to the law providing for open meetings and public records. • Chapter 120 relating to rule making does not apply to the Consortium. Amendments and Effective Date • The Interlocal Agreement may be amended by concurrence of all the Directors and approval by the governing body of each Consortium Member. • The Gulf Consortium takes effect after approval by at least two affected counties and the filing of the agreement. 2 Packet Page-579- 1/8/2013 Item 10.G. How a Joint Public Entity Can Serve Affected Counties in the Implementation of the RESTORE Act The Gulf Consortium can be authorized to serve the 23 "affected counties," including the 8 disproportionately affected counties and the 15 non-disproportionately affected counties in implementing any or all of the following aspects of the RESTORE Act. WHY a joint entity?— Gulf Consortium REQUIRED • In the state of Florida, the RESTORE Act provides that "a consortia of local political subdivisions" will develop the state economic and environmental restoration plan. The consortia shall include at a minimum "a representative of each affected county". • The consortium is responsible for the development and implementation of Florida's plan that will be funded based on a state "impact allocation"formula. It is estimated that Florida will receive 19-20 % of these funds. COORDINATION • The RESTORE Act provides for multiple pot: three separate funding pots for economic and environmental restoration and an additional pot emphasizing monitoring and research. • The projects and programs developed will very likely require the planning and cooperation of multiple jurisdictions. Aftratk • The Gulf Consortium can propose and implement large-scale projects and programs to be funded by the Gulf Coast Ecosystem Restoration Council, which is responsible for developing a Master Gulf Coast Regional plan. • The Gulf Consortium can also help identify projects for the Natural Resource Damage Assessment (NRDA). TECHNICAL ASSISTANCE • The Consortium may be authorized to assist any of the 23 affected counties (if they so desire) in the plan development, implementation and administration of the 35 percent of RESTORE Act funds that constitute Florida's share as a Gulf Coast State and are allocated directly to the 23 counties. These funds are not subject to further appropriation. FLEXIBILITY o The Consortium can establish itself in almost any format, including o Multiple (Joint Interest or geographic) county groups, o Include state entities o Include other stakeholders OVERSIGHT & COMPLIANCE o Consortium can coordinate the 23 affected counties in the development of the Federal rules to implement the RESTORE Act. o Consortium can provide a process that will be open and transparent to the public. 1 Packet Page-580- 1/8/2013 Item 10.G. HOW do I get one? —Gulf Consortium Joint Public Entity o Chapter 163, Florida Statutes, authorizes counties and other public agencies to agree to use their powers jointly through the formation of another governmental entity so that they can efficiently address their mutual needs. o The idea of a separate legal entity created by two or more counties is much like the concept of a corporation or LLC that any person can create. A corporation has a charter and bylaws, which contain the powers of the corporation. The corporation is subject to laws and regulation that do not necessarily apply to human beings, and vice versa. Separate legal entities are common mechanisms through which counties and cities accomplish mutual goals. o A list of some of the separate government entities formed by counties and municipalities in Florida is provided in a separate document. Formation By Resolution o Counties desiring to join together can form a separate legal entity through the adoption of an identical resolution by each of the participating boards of county commissioners. At a minimum, section 163.01 requires the participation by two counties to create a separate government entity. Powers o The powers of the separate government entity are established in the resolutions creating the entity. o Generally, a separate government entity may be granted "any power, privilege, or authority which . . . [the counties] share in common and which each might exercise separately." Sec. 163.01(4), Fla. Stat. Sections 163.01(5) and (7) authorizes the separate government entity to exercise broad governmental powers, which can be further specified and limited in the resolution creating the entity. Thereafter, the powers of the separate government entity can be more fully developed and refined in the bylaws adopted by the participating counties. Organization & Governance Structures o The bylaws and resolution provide for the governance structure of the separate governmental entity. o The structure can be created in any manner that will serve the interests of the participating counties, including having more than one governing body, each of which can be given separate responsibilities for different purposes. Costs o The start-up and on-going operations can be funded from county contributions or any other source that may be available. o Under certain circumstances, these up-front and other costs may be recoverable from RESTORE Act funds allocated for administration. • 2 Packet Page-581- 1/8/2013 Item 10.G. From: Florida Association of Counties To: Potential Counties of Gulf Consortium Subj: Transition Budget 1. As the decision to establish a Gulf Consortium approaches, the financial support for work already completed and remaining is included in the Transition Budget. Of note, this is not the Gulf Consortium budget. As specified in the Inter-Local Agreement (ILA) the Gulf Consortium, once established, will develop an initial budget for the first year. 2. The Transition Budget is not a bill for developing the ILA and is not a fee for joining the Gulf Consortium. 3. The Transition Budget is similar to special projects that FAC has undertaken in the past (i.e. Medicaid, Article 5). 4. The Transition Budget is intended to accomplish the following: a. Reimburse FAC for expenses associated with consultants, travel and other administrative costs. b. Continue the lobbying effort with Federal Agencies to ensure Florida Counties interests' are considered. c. Continue to provide continuity to members until the Gulf Consortium is formed. 5. If approved by a majority of the affected counties, the Transition Budget will be presented to the FAC Executive Committee for approval and invoicing. 6. Dependent upon the Gulf Consortium establishment date, any funds not needed by FAC will be "rolled forward" into the Gulf Consortium's account(s). Packet Page-582- 1/8/2013 Item 10.G. From: Florida Association of Counties To: Potential Counties of Gulf Consortium Subj: Transition Budget FAC is committed to serving Florida's 67 counties through our mission of preserving and protecting home rule through education, advocacy and collaboration. However, there are events that occur, such as the Deepwater Horizion Oil Spill, that call on the Association to work on the primary behalf of a specific region. When that occurs, FAC historically has asked those affected counties to provide financial support to the Association so these regional efforts can be implemented. When the RESTORE Act was being lobbied in Washington, the eight disproportionately impacted counties contributed funds to support FAC's lobbying efforts. Now that the RESTORE Act has passed and FAC is working to create a consortium to maximize the opportunities for Florida's counties and advance the principle of home rule—securing that these decisions should be made on a local level —FAC is turning to those impacted counties to directly support our efforts. Therefore, FAC is asking those 23 Gulf Coast counties to reimburse FAC for the investments being made to create the consortium. If and when a consortium is formed, it will develop an independent operating budget and funding structure. Should any funds remain from the transition period, they will be transferred to the consortium. The Transition Budget is intended to accomplish the following: • Reimburse FAC for expenses associated with consultants, travel and other administrative costs. • Continue the lobbying effort with Federal Agencies to ensure Florida counties interests' are considered. • Continue to provide continuity to members until the Gulf Consortium is formed. The Transition Budget is not a bill for developing the interlocal agreement (ILA) and is not a fee for joining the Gulf Consortium. If approved by a majority of the affected counties, the Transition Budget will be presented to the FAC Executive Committee for approval and invoicing. Packet Page-583- 1/8/2013 Item 10.G. Transition Planning Assumptions • Goal is to have RESTORE Consortium setup and running by October 1, 2012 • Once established,the Consortium will be responsible for implementation of the RESTORE Act • Until October 1, 2012, or whenever the Consortium is established, FAC will facilitate and coordinate the transition (detail below) Transition Period (now- October 1, 2012*) • FAC has hired Doug Darling to assist during this period. John Wayne Smith and Bill Peebles are also available and involved • Goals of Transition Period o Establish framework for Consortium Membership • Counties • State involvement • Other stakeholders o Facilitate the planning for establishment of Consortium • Budget • Proposed expenses • Proposed cost sharing • Initial policy guidelines • Advocacy& lobbyist(State & Federal) o Counties o State Agencies(DACS/DEP/FWCC/DEO/NRDA/WMD) o Visit Florida o Enterprise Florida o State Stakeholders (Hotels/Restaurants/TDC's/Environmental Groups) o Governor's Office o Legislative Leadership o Commission on Oil Spill Response o Federal Agencies o U.S.Treasury o Other States • Preliminary legal analysis o Proposed legal establishment o Initial incorporation documents o Initial By-Laws • Communications Page 1 of 3 Packet Page-584- 1/8/2013 Item 10.G. o Communications Plan o FAC Website o Establish Public Records protocol o In-coming calls o Public Meetings • Proposed Timeline O Proposed Consortium Structure, Membership, Legal formation, presented to Executive Committee August 16 O September • Build consensus with Consortium members • Resolutions passed in counties • Other participants appointed • Fully brief Governor's Council Appointee • Develop FAC phase-out plan • Proposed Transition Budget (July 1-Dec 1) o $3,000/month—consultant O $20,000—legal O $5,000—FAC Travel O $8,000—Meeting Expenses • Estimate 8 meetings with Counties O NRDA Coordination-$2,000 O Total Proposed Transition Budget=$53,000 • Proposed Funding Structure O 8 Counties—75% • Original proposed formula o 15 Counties—25% • Estimated formula from RESTORE Act ESTIMATED COUNTY POPULATION ALLOCATION AMOUNT ESCAMBIA 297,619 27% $12,960 SANTA ROSA 151,372 10% $4,800 OKALOOSA 180,822 16% $7,680 Page 2 of 3 Packet Page-585- 1/8/2013 Item 10.G. ESTIMATED COUNTY POPULATION ALLOCATION AMOUNT WALTON 55,043 14% $6,720 BAY 168,852 15% $7,200 GULF 15,863 6% $2,880 FRANKLIN 11,549 8% $3,840 WAKULLA 30,776 4% $1,920 JEFFERSON 14,761 4% $640 TAYLOR 22,570 4% $640 DIXIE 16,422 3% $480 LEVY 40,801 4% $640 CITRUS 141,236 5% $800 HERNANDO 172,778 5% $800 PASCO 464,697 7% $1,120 PINELLAS 916,542 11% $1,760 HILLSBOROUGH 1,229,226 13% $2,080 MANATEE 322,833 7% $1,120 SARASOTA 379,448 7% $1,120 CHARLOTTE 159,978 5% $800 LEE 618,754 9% $1,440 COLLIER 321,520 7% $1,120 MONROE 73,090 8% $1,280 Page 3 of 3 Packet Page-586- 1/8/2013 Item 10.G. a JI t N tn a r O L C %.... c `^ = p c E 01 0 0 Y . v' ,A_a1 1A CU 4 LA N 2 2 rt nn 2� r„\ i _ id CI) fa E N w a) L L In :� ea , v 4 "- .. 4-. .5 . — :-. 0 0 to In •0}•� A•/ �.: ad 4j CD ., ; J � � O 0 0 + •_ •.�•' !. •w ••■■■ W .On X X C c _J M — E cu o IA 0- * . .�- a as 1 e • Packet Page-587- r - 1/8/2013 Item 10.G. show the re-designation of the 103 acres to the Immokalee Urban Area. 0` " (This item was continued from the September 11, 2012 BCC Meeting and appears on this agenda as Item #9A) Motion to reconsider- Failed 2/3 (Commissioner Fiala, Commissioner Coletta and Commissioner Coyle opposed) C. Appointment of members to the Immokalee Beautification MSTU Advisory Committee. Resolution 2012-171: Reappointing Norma Ramirez and Maria V. Ortiz —Adopted 5/0 D. Appointment of members to the Affordable Housing Advisory Committee. Resolution 2012-172: Reappointing Christian Davis (in local government jurisdiction) Patricia C. Fortune (for-profit housing provider) and Appointing Alan Hamisch (low-income advocate with the term expiring November 8, 2014)—Adopted 5/0 E. Appointment of member to the Collier County Planning Commission. Declared a vacancy on the Planning Commission F. Appointment of member to the Environmental Advisory Council Resolution 2012-173: Appointing Gary McNally (Non-technical member)—Adopted 5/0 G. Appointment of two Board of County Commissioners to the Value Adjustment Board, with one Commissioner to act as Chairman. The remaining Commissioners to serve as alternates. Resolution 2012-174: Appointing Commissioner Hiller and Commissioner Coyle with remaining Commissioners to serve as Alternates-Adopted 5/0 H. Recommendation to appoint a County Commissioner to serve on the Southwest Florida Regional Planning Council. Resolution 2012-175: Appointing Commissioner Henning—Adopted 5/0 To be heard at 1:05 p.m. (Per Agenda Change Sheet) I. To give the Board of County Commissioners an update on the RESTORE Act Meeting held on September 19,2012 - Commissioner Fiala. Page 8 September 25-26,2012 Packet Page-588- 1/8/2013 Item 10.G. Motion for County Attorney to draft interlocal agreement with consortium—Approved 4/1 (Commissioner Hiller opposed); Motion to appoint Commissioner Fiala as primary representative and secondary person to be recommended by County Manager—Approved 3/2 (Commissioner Henning and Commissioner Hiller opposed) Wednesday, September 26, 2012 J. The annual performance appraisal of the Executive Manager to the Board of County Commissioners. Motion to direct County Attorney to find a resolution to Mr. Mitchell's request—Approved 4/1 (Commissioner Hiller opposed); Motion for the County Manager to bring back several options for considerations—Approved 5/0 K. Consideration of an impending vacancy on the Collier County Planning Commission for the District 5 Representative. Motion to advertise the vacancy and bring back at the second meeting in October-Approved 5/0 11. COUNTY MANAGER'S REPORT A. Recommendation to award Agreement#12-5901 for Construction Engineering and Inspection (CEI) and Related Services for US41 & SR/CR 951 Intersection Improvements and SR951 (Collier Boulevard) 3R Improvements"; to Atkins,North America,Inc.: Project No. 60116, Fiscal Impact$1,748,086.25. (Marlene Messam, Growth Management Sr. Project Manager) Approved —5/0 B. Recommendation to award a construction contract in the amount of $1,381,990.36 to Bonness, Inc. and reserve 10% ($138,199.04) on the purchase order for contingency, for a total of$1,520,189.40 for ITB #12-5946 "LASIP Outfalls 3 and 4 Canals Stormwater Improvements", Project No. 51101. (Jay Ahmad, Transportation Engineering Director) Approved—5/0 C. This item to be heard at 10:00 a.m., Recommendation to approve an Emergency Truck Haul beach renourishment for a portion of Vanderbilt and Naples beaches; approve a six year design and permitting plan for the Page 9 September 25-26,2012 Packet Page-589- 1/8/2013 Item 10.G. Item #10I UPDATE ON THE RESTORE ACT MEETING HELD ON SEPTEMBER 19, 2012 - COMMISSIONER FIALA - MOTION FOR COUNTY ATTORNEY TO DRAFT INTERLOCAL AGREEMENT WITH CONSORTIUM — APPROVED; MOTION TO APPOINT COMMISSIONER FIALA AS PRIMARY REPRESENTATIVE AND SECONDARY PERSON TO BE RECOMMENDED BY COUNTY MANAGER — APPROVED MR. OCHS: We go to Item 10.I on your agenda; it was a 1:05 time certain. 10.I is to give the Board of County Commissioners an update on the RESTORE Act meeting held on September 19th, 2012 by Commissioner Fiala. COMMISSIONER FIALA: Thank you. First of all, Board members, I do appreciate you allowing me to go up there and represent Collier County. I'm proud to tell you that there are 23 counties that are affected by this Act, and all 23, 100 percent, were there and represented. And we were one of those 23. There were eight counties that are deeply impacted by this. They were all there as well. And today with us we have Doug Darling and John Wayne Smith, and I'm going to ask them to get up shortly. Commissioners, I don't know if you received my minutes or not from the meeting. If you didn't, that's -- we should have sent them to everyone. But if we are sending minutes out, then not only my minutes but we also had minutes taken from Debbie White and from -- well, the FAC had minutes and they sent them out Didn't you send them Packet Page-590- 1/8/2013 Item 10.G. out Friday? MR. DARLING: Not yet, ma'am. COMMISSIONER FIALA: Not yet? Okay, fine. So we've got minutes coming then from Florida Association of Counties. So I had minutes, my aide Alexandra had minutes and also Debbie White had minutes. And if you have not received them, I do apologize. In fact, I have one in front of me that I can pass -- I'll pass to my right. And I will make sure that you get the rest of them. I'll ask Alex to send them out today. The main gist of this entire meeting was first of all how it will affect those counties within the State of Florida, the 23 counties. And that -- we're talking about the oil spill, okay, and the effects of the oil spill and what effects it had on these 23 coastal counties. Some of the counties there expressed a problem, especially I think it was Franklin County who said that their oyster business is almost dead because they can't get the oysters back. Another person stated, and this was from an environmental group, stated that the snapper were not hatching new babies this year and that will deeply affect the fishing communities. Another one was stating that the shrimp community will also be felt. And these are all direct -- in direct relation to the oil spill. The main theme of the entire meeting that day was that we must be united, we must work together on behalf of not only our county but all of the counties in the State of Florida. One of the things that came to light was there were five other states that are also affected by the oil spill. Packet Page-591- 1/8/2013 Item 10.G. Interestingly enough, those five are all being handled through their state government. In our state we want to handle it through the Florida Association of Counties and through the counties. We want to be in charge of how the money is distributed, and make sure that it gets to the counties that are in most need, the counties that are suffering the greatest. And we've put together percentages and so forth. But first, commissioners, we need your agreement to move forward with a consolidated effort. And with that, please let me introduce John Wayne Smith. I don't know why we always say your whole name. It could just be John Smith, right? MR. SMITH: Depends on where you're from. In North Florida everybody has two first names. COMMISSIONER FIALA: The further north you get the further southern you are, right? MR. SMITH: Exactly. I have the dual mistake of also being born from North Carolina, and I think everybody there has two first names as well. Thank you again, Commissioners, Mr. Chairman, folks from Collier County. Appreciate the opportunity to be here. For the record, my name is John Wayne Smith. I've worked with the People's law firm. I am acting as the consultant for the Florida Association of Counties on the RESTORE Act. And prior to starting with the People's Firm, I was the legislative director for the Florida Association of Counties. So I have a little bit of an overlap in terms of when I was working on the RESTORE Act in Washington versus what role I'm playing today. Commissioner Fiala did a great job of kind of Packet Page-592- 1/8/2013 Item 10.G. describing what we were trying to do last week and why we had invited all of the counties to be at this meeting. We are delighted and thank Collier County for being there. We want every county to feel like that they're all getting the same information. What I typically try to do is just set the table. I think most of the counties have gotten the basic introduction on the RESTORE Act and kind of understand the nuances of the different pots. What I like to try to do is to try to set up what we think are the reasons why Collier County and other counties would want to consider coming together as a group. And I set that table. And then Doug is going to talk to you about the mechanism or the consortium concept of which we put on the table for counties to consider as the way to implement this RESTORE Act. Does that work for everyone, Mr. Chair? CHAIRMAN COYLE: Go ahead. MR. SMITH: All right, thank you, sir. And I'm going to blast through a couple of things. But one of the things that I just -- I like to put out there on the table, because some folks do get confused between OPA and OPA Policy versus Clean Water Act Policy. The distinction is from my way of describing this in a very simplistic layman's term, OPA, which is the Oil Pollution Act of 1990 is a policy of making things whole. So if you're the responsible party in an oil spill or whatnot, in this case it was BP. And there are debates and some legal things going on about some of the other entities, private entities that may have been involved. But the OPA Policy is about replacing or putting back Packet Page-593- 1/8/2013 Item 10.G. what is wrong. The Clean Water Act is a penalty mechanism on polluters. And prior to the RESTORE Act being passed, the policy would have been because of the BP oil spill that the federal government would receive what we would call a windfall of dollars. Because they are set to impose penalties per barrel from $1,000 to 4,000. Everyone who evaluated and looked at this issue said that just didn't seem right, it didn't pass the smell test. Why should the federal government get the windfall when these other five states and these communities that rim the Gulf of Mexico not get any benefit. So the concept of RESTORE centered around my first slide, which is a trust fund that is created especially for this purpose and it established a policy where 80 percent of the penalties, the administrative and civil penalties, are going to go into this trust fund and will be utilized by the five states and the mechanisms that they choose to have an environmental or an economic restoration plan. And that's the fundamental principle and the basic framework of the RESTORE Act. Now, why have we have talking to counties and why we've been talking about the consortium concept and why we've been pushing softly, but we have been pushing, and encouraging counties to get organized sooner rather than later is you will see that the U.S. Treasury is going to be responsible for developing the rules and the procedures and the guidelines for which the different states and in our case counties are going to work in this framework. That 180-day deadline is going to set many of the Auk parameters and those rules that will affect how you spend Packet Page-594- 1/8/2013 Item 10.G. your county money and potentially how the consortium would work with the other dollars that the 23 counties are going to work on together. We think that Florida should be at that table and we would like to speak for you on behalf of all 23 counties. We don't think that we can do that if we don't have everyone at the table and if we don't get organized. So there are some deadlines looming that we're encouraging folks to pay attention to. And we think that by getting us organized that we can help participate in that process. The thing that I point out to every county every time I get to visit, and certainly if you get the chance to thank your delegation or our U.S. senator, Senator Rubio, Senator Nelson. We worked very closely with Congressman Miller and Mr. Southerland up in the Panhandle on this issue. But there was another policy that I think was especially beneficial to Florida and to our counties and that our delegation wanted to see, the local communities at the table making these decisions. And looking at the definition, you will see that the definition of coastal political subdivision is what the Florida model is built and framed around. A county that has a coastline contiguous to the Gulf. So we like to point that out. We also like to remind folks, if you get the chance to see your delegation, thank them for that. Because that's kind of an unprecedented policy to come out of Washington to make sure that the dollars flow to the local communities. There's three pots. I'm going to kind of skip over those, but I'm going to focus on this oil spill restoration impact allocation. This is one of the three big pots. I'm not here to talk to you about what we call the county pot where each Packet Page-595- 1/8/2013 Item 10.G. county gets some on an individual basis. What I want to kind of set the table for is a 30 percent pot that is distributed by a formula amongst the five states. You can see that the formula is in there, it's weighted, it's 40 percent based on oiling, 40 percent based on a distance from the spill and 20 percent from population. In the Florida model, while we estimate that the State of Florida will get 19 to 20 percent of that 30 percent, or if you're a real mathematician, that's about six percent of the total, what it refers to is a consortium and it says that at a minimum they will have a representative from each of the affected counties. And we are using the coastal political subdivision definition and we're recognizing every county from Escambia that is contiguous to the Gulf all the way around what I call the armpit underneath, coming around Jefferson all the way down the coastline, all the way down to Monroe; Collier being one of those. And all 23 of those we believe meet the definition and should be involved based on the RESTORE Act language as part of this consortium. And because no one else has kind of taken the lead in terms of getting this group organized because there's been so much work that has been done and because of the deadlines that we've kind of identified, we have suggested to counties that they use their own powers under Chapter 163 to create this entity, to get organized and to begin to lay the framework for an organizational structure to develop the plan, to make decisions, to prioritize projects. And if the state or the Governor or anyone else wants to catch up and play, they can. But no one should just be sitting on the sidelines or just letting this issue just sit there because of the importance of these issues, and we think that Florida needs Packet Page-596- 1/8/2013 Item 10.G. to be at the table. Our model is a little unique, Mr. Chairman, but, you know, we asked for it to be this way. We asked for the local input. We asked that counties be at the table and to be in a leadership position. Because we asked that, it does mean that we have more work to do, but we all think it's good work. But a lot of the counties that were below Jefferson down weren't in some of the lobbying, so it's a little bit new and it's a little bit fresh to some of the other counties, if you weren't involved in the lobbying effort. And that's why we're spending our time coming to you and trying to answer any questions. So that's just our setup. Doug is going to come up here and talk a little bit more about the interlocal agreement, how it fits with Chapter 163 and what the counties can expect and what we're trying to set up for later in October. Is that okay, Mr. Chairman? CHAIRMAN COYLE: Thank you. Yes, that's fine. MR. SMITH: Okay, thank you. MR. DARLING: Good afternoon, Mr. Chairman, Commissioners and staff. For the record, my name is Doug Darling. I'm a consultant with the Florida Association of Counties. Prior to being retained by the Florida Association of Counties I was the executive director for the state's new Department of Economic Opportunity. And before that I was the Chief of Staff at the Department of Environmental Protection during the oil spill. So I have a little bit of background in this whole thing. But I really would like to give kudos to John Wayne Smith and the rest of the Florida Association of County Packet Page-597- 1/8/2013 Item 10.G. members who were so instrumental in getting this RESTORE Act passed. Because without that we wouldn't be having this discussion today the way we're going to have it, it would be more of a discussion about okay, the state's getting the money, what can we do to get some of that. As John Wayne said, the RESTORE Act created a unique situation in Florida. And when I say unique, just to kind of draw a parallel, the other four states -- and to be clear, it's Texas, Louisiana, Mississippi, Alabama and Florida. The other four states all have permanently established entities. Some of them like in Alabama has an entire department underneath the Governor's office that does nothing but deal with -- that has dealt with the oil spill and the restoration. And they are named in the RESTORE Act as the entity that will be responsible for implementing the RESTORE Act in Alabama. Amok In Florida, as John Wayne described, it lists the affected counties and requires those counties to come together and form a consortium to handle the RESTORE Act. So one of the assumptions we've made at FAC is that once a consortium is formed, it will be the legal entity that is responsible for implementing the RESTORE Act in Florida. And once that happens, FAC will transition out or fade into the background and be in a supporting role. The other thing that we have tried to do, as John Wayne said, is push softly, is that because of the deadlines associated -- the RESTORE Act was signed on or about July the 2nd or 3rd of this year -- there's a 180-day time frame, that the first initial plan and rules and procedures have to be done 180 days after that bill was signed. So we're looking at the beginning of January of 2013 Packet Page-598- 1/8/2013 Item 10.G. for the federal council to be up and running, for the U.S. Treasury to develop rules that will impact how the consortium in Florida operates and under what policies. We have asked counties to consider joining a consortium and forming a consortium by October 1st. That will give the consortium three months to kind of get its act together and become a full-time player in doing the RESTORE Act. FAC's participation in this is not without precedent. I'm sure you have heard or maybe you even participated in the Medicaid issue that happened this last year. And it's come to I believe a fairly justifiable and reasonable solution. Several counties still are trying to go forward with litigation. But for the most part, FAC was a facilitator in getting some common sense infused into the decision-making on the Medicaid bills. And also the stimulus money, FAC was also involved in that. And during those times FAC asked the counties, its members, to participate in a financial way to support that effort. The same request is being made now. We believe that once this consortium is up and running, that FAC's requirements both financially and also for any other needs will diminish and eventually will respond to the consortium in a supporting role. As part of the financial support for the consortium, I want to go over just a few things about where we are right now and what it means and what it doesn't mean. We are proposing a transition budget for FAC to transition into the consortium. That transition budget is not a bill for developing the interlocal agreement that hopefully your County Attorney has been involved and we've Packet Page-599- 1/8/2013 Item 10.G. mitigated all the concerns and questions prior to you having it for consideration. The transition budget is also not a fee for joining the consortium. And it is also most importantly not the Gulf consortium budget. It's simply a bridge to get from where we were and where we are to where we want to go. Here's what the budget really is, the transition budget now: There have been some out-of-pocket expenditures for FAC, and it's to continue this lobbying effort. I know John Wayne talked about the U.S. Treasury and how important they're going to be. We've had an initial conference call with them and they are on an extremely tight deadline also. In order to meet that 180 days, they have to publish their rules in the Federal Register in the middle of November. They have to coordinate with their fellow federal agencies by the middle of October. oiow So that means our consortium, our Florida counties has between now and October, the middle of October sometime, to get items in the proposed rules on how the consortium is going to operate. We believe that the consortium will be subject to Chapter 119, all consortium meetings will be public, they will be open to the sunshine, they will be noticed appropriately, but they also are going to have to follow federal rules when it comes to things like procurement, when it comes to things like involving other stakeholder groups, when it comes to things like procurement policies. All of these things the Treasury has to develop, and we believe that Florida, because of its unique situation, needs to form this consortium and speak with one voice to the federal government so they don't hear all this noise going on and Packet Page-600- 1/8/2013 Item 10.G. that we can potentially influence the rules, the policies and the procedures to most benefit Florida. We're going to continue that lobbying effort between now and whenever the consortium is formed, and we're going to provide that continuity just like we have today, just like we've done in other counties, the continuity for our members to make sure that all of their questions are answered and do anything else we need to do to make this consortium successful. It's a very modest proposed transition budget. And most importantly about that transition budget is any money that is not used by FAC once the consortium is up and running will be withdrawn from FAC and given over to the consortium. The funding formula or the allocation for the funding used the same structure as what is in the RESTORE Act. Seventy-five percent of the money going to the local pot of money is going to the eight counties, the eight disproportionally affected counties; that's Escambia up through Wakulla. Twenty-five percent of the money is going from Jefferson down to Monroe. So we believed it was only fair that the counties that received the most money from the RESTORE Act would bear the most burden for funding this transition budget. It will be up to the consortium to determine how their budget is formed. I would imagine that this would be the same methodology. But in the case of Collier County, your bill or your allocation right now for the transition budget is $1,120. That's projected to get us through the end of this calendar year, through the end of December. Packet Page-601- 1/8/2013 Item 10.G. So the next steps that we're asking counties such as Collier to consider is to review the interlocal agreement that was drafted with the help of your County Attorney and the other county attorneys, bring it before a commission meeting, pass a resolution authorizing your county to enter into that agreement, designate one commission member and one delegate -- or one alternative to represent this county at a consortium meeting, and participate in the funding of the transition budget and move forward. So that's kind of a real quick overview of what the consortium is going to do, what we expect to happen and kind of the time frame. John Wayne and I are both available if there are any questions, Mr. Chairman. CHAIRMAN COYLE: Thank you. Commissioner Henning? COMMISSIONER HENNING: The concern at the last meeting when this topic was brought up is about the governing document of the consortium members and the powers that it wield. And I really never seen anything -- something like this, a membership should -- there should be something in writing stating how fast they can do away with the consortium. There wasn't anything there. It almost appears, and I don't -- I'm not saying this is the way it was set up -- it was setting up a long-term bureaucracy. And what it should say is, you know, have -- either having an ending date for the consortium or goals and objectives. Okay? That's all I have. MR. DARLING: May I respond, Mr. Chairman? CHAIRMAN COYLE: Sure, go ahead. MR. DARLING: Commissioner, the reason there is no end date is because the federal trust fund is in perpetuity Packet Page-602- 1/8/2013 Item 10.G. until the funds are exhausted. So without any kind of definitive end date for the funds that will flow from B.P. -- and again, we don't know yet when they'll start or when they'll end. They are still litigating the Exxon Valdez spill that happened over 20 years ago. Funds are still being paid out. So to address your concern about no end date, I believe that's the rationale for that. As far as setting up a bureaucracy, I don't have anything to do with the consortium yet. I've been asked to potentially consider being involved with the consortium. But if it were my recommendation, I would say that the consortium would not hire a bunch of employees, it would not bring on overhead that will have a lasting effect. My recommendation would be if you need legal support, you buy it and let it go. You don't need attorneys on staff, you don't need web developers on staff. You don't need exactly what I think you're talking about, which is a bureaucracy. Lean and mean would be my recommendation to allow the consortium to funnel the majority of the money to the counties and to the plans and to the projects for which I believe it was intended. COMMISSIONER HENNING: Well, shouldn't the governing document state the objectives, goals and objectives like you're stating, lean and mean, only hire, you know, legal staff or any other staff as needed? Shouldn't that say something like that? MR. DARLING: Yes, sir. And I believe it will. This is almost -- this is almost like the chicken and the egg. You can't have those kind of discussions in a public forum as a consortium until you have a consortium. The idea of the interlocal agreement was to provide the basic framework to Packet Page-603- 1/8/2013 Item 10.G. join together, and I believe that at the initial meetings those very exact things that you're asking about will be discussed. COMMISSIONER HENNING: No, there's a document that kind of lays out their -- it's our governing document. It was on our last agenda. And Jack Wert is not here. COMMISSIONER HILLER: I have it here. COMMISSIONER HENNING: You have it here? COMMISSIONER HILLER: Yeah. COMMISSIONER HENNING: Okay, I'll defer to Commissioner Hiller. CHAIRMAN COYLE: Commissioner Hiller, go ahead. COMMISSIONER HILLER: Yeah, I do have the document. And the document provides exactly for what Commissioner Henning says it provides for, and very much the opposite of what you're proposing as what ought to be the structure. It talks, under powers and duties under Article 4 to obviously maintain offices and so forth -- where is it -- to select and engage a manager who will administer the consortium, manage staff of the consortium authorized by the Board, perform all administrative duties as directed by the Board, to employ or hire attorneys or firms of attorneys as appropriate, to provide legal advice for the consortium, to employ or hire engineers, consultants or other specialized professionals. I mean, it just goes on and on and on. And I don't want to read everything that's in here. To hire and engage staff, attorneys, professionals, to advocate, et cetera, et cetera. To hire and engage staff attorneys, to advocate again on another issue. Packet Page-604- 1/8/2013 Item 10.G. This builds a tremendous bureaucracy. This -- and I'm going to introduce it in the record again so that anyone who's listening to today's discussion can see it as a part of the minutes. The interlocal agreement supports a bureaucracy. Now, one of my concerns -- and that is just to help you with your point, Commissioner Henning. One of the things that concerned me what I read Commissioner Fiala's notes -- and thank you very much for pulling them together; they were very well detailed -- is what appears on Page 2. And what it says is as follows: Legally nothing stops the state from forming their own consortium and taking over. And then Alex, whoever Alex is, says legislature can form own group, no guarantee they won't interfere. Question was asked, how do the public or outsiders get involved, and that would be up to the consortium. So I see two issues here. One is that it seems to me that taking all these steps when the state can step in and either create its own consortium or take this consortium over leaves me concerned as to what we are agreeing to by participating in this interlocal agreement and what that might mean down the road vis-a-vis any state action. And secondly, what about the public? You know, I understand that we're representatives, but I think that there should be some seat at the table for, you know, a representative of the public as well. Two important points that I think need to be addressed out of her notes. The last point I want to make is what you raised about the budget. I think before we can approve anything, the prudent thing for us to do as a Board is to review the numbers. And we just don't have the numbers. We don't Packet Page-605- 1/8/2013 Item 10.G. have any financial information. We have no financial information about the consortium structure and we have no financial information about this settlement and how this decision has been made that certain counties are going to get 75 percent and 15 counties are only going to get 25 percent. I mean, there might be, you know, disagreements and debates about those allocations. Maybe by signing this interlocal agreement we as Collier County are giving up a share of this pot that we might otherwise be legally entitled to. And I wouldn't want to see the businesses and citizens of Collier County who have been adversely affected by this oil spill hurt because we've entered into some kind of agreement. So those are the three points that I would like to make and I would appreciate your input. MR. DARLING: Mr. Chair? If I could, Commissioner, I've pulled up on the slide -- or on the screen, since I'm kind of a visually oriented person. I want to make sure we're talking all about the same pot of money. COMMISSIONER HILLER: Right. And this was explained to us at the last meeting. Staff gave us the same presentation with the same diagram. So I think we understand what pot we're talking about. MR. DARLING: But just to be clear, the pot all the way on the left, the consortium does not control that. COMMISSIONER HILLER: Right, we understand that. MR. DARLING: The fines and the penalties -- COMMISSIONER HILLER: Sure. MR. DARLING: -- will determine how much Collier Packet Page-606- 1/8/2013 Item 10.G. gets in that pot of money. The pot of money we're talking about is the one in the middle, the 30 percent, which the State of Florida gets to -- also allocated. There's a set amount of money that will be determined by the formula. And then how that money is spent within the consortium or within the State of Florida is what we are asking the consortium to consider. So the consortium has no say over the money that comes to Collier County that will be adjudicated by this Board. Nothing, zero, nada. What we do believe is that to position Collier County and the rest of the counties, that will be a plan developed for the economic and environmental restoration for the entire Gulf Coast. And as far as public input, it's required in the RESTORE Act that there be public meetings, that there be public input, that stakeholders will get a say in what the consortium will propose to the federal council for that economic and environmental restoration. COMMISSIONER HILLER: But can we go back to that 75/25 percent split vis-a-vis the counties within Florida MR. DARLING: Yes, ma'am. COMMISSIONER HILLER: -- as it relates to this pot? Again, you know, somehow someone has made the determination that, you know, certain counties are going to get a larger percentage of that pot. And we being a part of the larger group is going to only get a sliver of the minority pot. So how did that -- how was that determination made? MR. SMITH: Well, the only 75/25 that is in play right Packet Page-607- 1/8/2013 Item 10.G. now applies to the 35 percent pot, which is distributed to the counties. There are other folks who are discussing whether or not a state law, which is Senate Bill 2156, which anticipated some dollars coming to the state be split on a 75/25 split. What you have in front of you is a document that is silent. We predetermined or discussed with other folks to say that should not be in this document. What we have suggested to the counties is you create the consortium, everybody come to the table and we'll have to have that discussion whether or not it will be based on percentages or programs or projects or priorities. But for purposes of establishing the consortium we believed and our recommendation to the counties is that we would be silent on any further allocations other than what's already in the federal RESTORE Act. Does that answer your question, Commissioner? COMMISSIONER HILLER: Then I must have misunderstood what you said earlier. Because what I understood you said earlier is that you reviewed the 75/25 allocation and that per your review you thought it was reasonable, and that the counties that were allocated to, you know, the 75 percent pot -- MR. SMITH: On the transition budget? COMMISSIONER HILLER: Uh-huh. MR. SMITH: Okay. The rationale for that, Commissioner, was the -- COMMISSIONER HILLER: And I assume that that would be the basis of the future budget. I mean -- MR. SMITH: No, ma'am. I'm sorry if we inferred that. What I think we were trying to say in that situation is there's Packet Page-608- 1/8/2013 Item 10.G. hard dollars that are coming to the counties that are basically guaranteed under a formula. They are based on a formula that recognizes eight counties as disproportionately impacted COMMISSIONER HILLER: That's the 35 percent. But I want to just stay focused on the -- MR. SMITH: Yeah, but that is where the transition budget kind of came from, that allocation, because those are hard dollars. The consortium dollars, there's been no discussion about how those should be distributed, again whether it's 75/25, whether you just put it all on the table for projects. Those decisions will not be made until a consortium comes together and we have meetings and we begin to discuss the -- COMMISSIONER HILLER: So can we go back to the question of the state? Because that's the one that really concerns me the most. I just don't understand how we can be jumping ahead of the state and assuming that the state isn't going to, you know, come up behind us and just really undo all of this. And so I'm concerned about the validity of these contracts. MR. SMITH: It's a fair question. We have -- there's a lot of history that goes into the RESTORE Act. And at different points in times the amount of partnership or engagement that we have had from the state -- and understand that my simplistic view of why we stand where we are today is that there were eight counties in the Panhandle that pulled their hair out ever since April 20th, 2010. And it was because they had to go do things with the booming strategy and deal with B.P. on claims. Just over and over and over. And so that synergy and that chemistry Packet Page-609- 1/8/2013 Item 10.G. of that eight led to a joint effort to go to Washington with parishioners and presidents of Louisiana parishes and supervisors from Mississippi. And they all went to Washington to ask for this to pass. People at the state level and different -- I can't speak for what they were doing, but they weren't paying attention and they weren't part of the effort on a continuous consistent basis. And we did have at different times discussions about how we could have a different relationship or partnership. But at the end of the day our congressional delegation took a very strong position that they wanted it to be set up this way. Now, even though they passed it this way, we made a commitment to everyone who was involved that we would continue talking to the Governor's office and anyone else who wanted to be at the table. COMMISSIONER HILLER: And what has the Governor said about this? MR. SMITH: Well, he's still thinking about it. You may read a little bit of some of the things that are happening in Tallahassee, but he has a new chief of staff. He's going through reorgs. Adam's been trying to put the pieces together where he wants everybody to be. We met with Adam, the Chief of Staff, Adam Hollingsworth and Chris Finkbeiner I want to say three or four weeks ago. We put this out; we went back to just say hey, look, when you guys know what you want to do we want to get back together. We reached out to them before our meeting last week to kind of see where they were. They said they still need some more time. So we believe that at some point in the future they're going to kind of know what role they want to play. We Packet Page-610- 1/8/2013 Item 10.G. know that they've appointed someone to be the Governor's designee on the federal council. But right now they're not in a rush and they don't have the urgency. It would -- I don't tell the Governor what to do. You know, we certainly speak on behalf of counties and we've said that we think this is a really important thing and that we would like you to be there. But what we've also said is that we're not going to stop doing what we're doing, because we think that this effort is so important that is someone needs to continue keeping this ball moving. And then when they figure it out, we'll all come back together and we'll figure out if the Governor wants to have a seat or if he wants to appoint some folks. We'll continue to have those discussion. But in the meantime what our advice to counties and to the folks that are affected is don't wait to see because that answer may be John or Chris or counties. That's -- we've got some other priorities. So then all this time is gone and no one's willing to kind of set it up. So that's what we've suggested. That's a very long answer, but -- COMMISSIONER HILLER: It is. MR. DARLING: -- it's the most truthful answer. COMMISSIONER HILLER: And I appreciate it, John Wayne. I thank you so much. You know, maybe it would make most since, since you've just recently been in touch with the Governor's office and it's -- you know, a lot of time really has not elapsed in sort of government standard terms. MR. DARLING: Yes, true. COMMISSIONER HILLER: What's the expression, going as fast as a turtle with broken legs? So maybe it would be more prudent to wait and give Packet Page-611- 1/8/2013 Item 10.G. you the opportunity to talk to the Governor and bring back otook something that, you know, we know is not going to get overturned or that is going to be subject to some sort of unpleasant challenge. Because obviously your goal is the right one and that is for everyone to work together. And to the extent I'm sure you have close connections with the Governor's office, being that you've been an active lobbyist, I would hope that you could maybe make that connection and let us know. Because I think entering into any agreement which is subject to being, you know, challenged makes no sense. I would hate to be on the other end of a challenge. That would be my suggestion. CHAIRMAN COYLE: Commissioner Coletta? COMMISSIONER COLETTA: Okay, what is it you want from us today? MR. SMITH: Well, what we're recommending to - counties is that as soon as they can, because I think we're going to try to meet October the 22nd as a date that we've been throwing around, we'd like to see counties adopt the interlocal agreement which I think lets you come play in the consortium, select your leadership team. We've suggested each county pick a commissioner. We've always encouraged pick someone elected, have an alternate for someone if that person can't be there. And then I guess to look at the transition budget to see if you can participate there as well. COMMISSIONER COLETTA: So basically what we're talking about is bringing this back at a future date, have staff examine it to be able to bring it back, and I don't know if you need a motion to that effect or just a nod, but I'd like us to give consideration. Donna Fiala has shown an Packet Page-612- 1/8/2013 Item 10.G. interest in this particular subject matter and if she could avail herself of the time to be able to go to it I think she would be the logical one to be able to follow through on this. We're not going to go anyplace with it unless we get involved. We can always make up a decision later that if it's going terribly wrong or we don't feel comfortable with it, just to drop to one side. But I think that we ought to give direction to staff at this time. COMMISSIONER HILLER: Can I ask -- that's a good point. But what is the -- can I just ask Commissioner Coletta a question? He raised an excellent point and that is if you do enter this agreement, how can you drop out? COMMISSIONER COLETTA: You haven't got to the point of approving any agreement yet. MR. KLATZKOW: There's a drop-out provision. MR. SMITH: We made it very easy to get out. And Mr. Chairman, Commissioner Henning asked a very good question about the bureaucracy. And I don't like government documents, but I have to read a bunch. And I'm not an attorney, Commissioner, but my understanding of why you see all that language, certainly part of it is because an attorney wrote it. But in order for you to do anything, these are your empowering documents. So for you to have any action, I'm sure the attorney that sat down and wrote this probably had to think of everything that you possibly could have to ever vote on or do, and so what they do is they end up writing all of those things down. It doesn't mean that you will do them all. But in order for you to have that power, like incorporation papers for a city or a business entity, someone has to write all that stuff down. I know it looks probably Packet Page-613- 1/8/2013 Item 10.G. maybe worse on paper than it will actually be. But that's my non-legal explanation as to why they have to write all that verbiage down. But again, I only play a lawyer on TV when I watch. COMMISSIONER COLETTA: Okay, so you need an answer from us when? MR. SMITH: It's up to you. COMMISSIONER COLETTA: You said October. MR. SMITH: We've set some self-made deadlines, Commissioner, because we want to keep the ball moving. Every county's got to evaluate this issue on their own -- COMMISSIONER COLETTA: Okay, what I'm going to suggest is that the Commissioners give their nods to the County Manager to direct staff to go over this and bring it back for the second meeting in October with some suggested action items. COMMISSIONER FIALA: You need it by -- the meeting is going to held October 22nd, right? MR. SMITH: We are shooting for that, yes, Commissioner. COMMISSIONER FIALA: Will that give us time to get somebody appointed and be a part of that? I don't know when our second meeting is. MR. OCHS: It's the 23rd. COMMISSIONER COLETTA: That doesn't work. I'll make a -- how about we just go ahead and just start the process going? We always have the option to drop out. And recognize that Donna Fiala's service in this is absolutely crucial and have her go to the meeting on the 22nd. COMMISSIONER FIALA: I'd like to do that. And they also made it very clear at the last meeting that it's very Packet Page-614- 1/8/2013 Item 10.G. easy to drop out. All you have to do is drop them a note and you're out. So it isn't like it's a binding thing. COMMISSIONER COLETTA: Do we have agreement from three commissioners? COMMISSIONER HENNING: No, if I could help you. CHAIRMAN COYLE: We're going to go to Commissioner Henning and then we're not going to have any more discussion, okay? We're going to make a decision. Go ahead. COMMISSIONER HENNING: Yeah, it's a direction. And the direction needs to be in the form of a motion and it needs to be directed to the County Attorney, because he's going to draw up an interlocal agreement. Okay? That's where the direction should be. So I'm going to make a motion to direct the County Attorney to draw up an interlocal agreement with the consortium, okay? Personally I would like to see in that interlocal agreement to encourage the consortium to adopt rules to make it more lean and mean, as it was discussed here. And furthermore, in that executive summary we need to have a representation -- it's being suggested to have two -- representation a member and an alternate; is that correct? You don't want two, you just want a member and an alternate if that member cannot make it. MR. SMITH: That's correct. MR. KLATZKOW: John, is there any issue if I bring this to the Board October 23rd? MR. SMITH: No, sir. What I would suggest, though, because we want to keep everybody in the loop, is still Packet Page-615- 1/8/2013 Item 10.G. informally send someone to that meeting. Because we want -- we think we need -- every county needs to get there in their own comfortable way. That time period may be different for everyone. If we need to come back, if we need to make some modifications, we will, but we need every county to be comfortable. But that's not going to make or break the deal, you know, if you're not there. It only takes two to actually have a consortium, so we're going to keep gradually moving the ball. But we would love to have Collier County get with us when that time is right, and we'll continue to work and to answer every question that any of the Commissioners may have. COMMISSIONER HENNING: Let me just say that we have meetings before this meeting. I think we have two. At least one, we have a meeting -- MR. OCHS: October 9th is your next. COMMISSIONER HENNING: Yeah. So, however, if I may say, the more members that we have in this, the less chance of the state taking it over. And if they're going to do that, they're probably going to do it before we get any money anyways. Monies coming from the fed -- CHAIRMAN COYLE: No, they'll do it afterwards and take the money. COMMISSIONER HENNING: Monies coming from the federal government doesn't happen any time soon. And then they change their mind. CHAIRMAN COYLE: Okay, I've heard a motion to direct the County Attorney to draft a joint participation agreement. But I haven't heard a motion -- COMMISSIONER FIALA: Second. Packet Page-616- 1/8/2013 Item 10.G. CHAIRMAN COYLE: Okay, so seconded by Commissioner Fiala. So we'll vote on this separately one for developing an agreement. And the second motion will be to appoint individuals, a primary and an alternate, to attend the meeting. So all in favor of the first motion to direct the County Attorney to work with the group to develop an interlocal agreement, all in favor, please signify by saying aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN COYLE: Any opposed, by like sign. COMMISSIONER HILLER: Aye. CHAIRMAN COYLE: Okay, the motion passes 4-1 with Commissioner Hiller dissenting. COMMISSIONER COLETTA: Okay, then I'd like to make a motion that we recognize Commissioner Fiala as the primary delegate to this consortium and that Commissioner Henning be the alternate. CHAIRMAN COYLE: Okay, motion to appoint Commissioner Fiala as the primary representative with Commissioner Henning as the alternate. Is there a second? I'll second it. COMMISSIONER HILLER: Commissioner Henning has -- CHAIRMAN COYLE: Commissioner Henning, go ahead. COMMISSIONER HENNING: I think you have a primary, could be a county commissioner, but also could be a staff member. I think it would be appropriate to have a Packet Page-617- 1/8/2013 Item 10.G. staff member as a primary or an alternate. CHAIRMAN COYLE: Yeah, I think there's a benefit if you could suggest someone on the staff who would be particularly qualified to participate. COMMISSIONER HENNING: Can we bring this as the next meeting? Get the County Manager a time to think about it? CHAIRMAN COYLE: Okay. COMMISSIONER HENNING: That's my suggestion. CHAIRMAN COYLE: We have a motion to nominate Commissioner Fiala and Commissioner Henning. If you wish not to be considered as the alternate, we can modify that motion to include only the appointment of the primary. COMMISSIONER COLETTA: I can cover that very well, sir. The primary person would be Commissioner Fiala and the secondary person would be a staff person as selected by the County Manager. CHAIRMAN COYLE: And recommended to the Board of County Commissioners for edification. Okay, is there a second to that motion? COMMISSIONER FIALA: You already seconded. CHAIRMAN COYLE: I didn't second the modified motion, but I will if you want me to. All right, the motion is seconded by me. All in favor of the motion, please signify by saying aye. COMMISSIONER FIALA: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN COYLE: Any opposed, by like sign. COMMISSIONER HENNING: Aye. COMMISSIONER HILLER: Aye. Packet Page-618- 1/8/2013 Item 10.G. CHAIRMAN COYLE: The motion passes 3-2 with Commissioners Hiller and Henning dissenting. COMMISSIONER HILLER: And if I may, I would really appreciate, John Wayne, if you could let us know when you speak to the Governor and bring back to us, you know, what the state's position is. And, you know, I will modify my vote, depending on what that dialogue is, accordingly. Thank you. MR. SMITH: Absolutely, Commissioner. CHAIRMAN COYLE: Thank you very much to both of you for being here. Hopefully this thing will work out okay. MR. SMITH: It will, it will. Optimistic. Optimist. CHAIRMAN COYLE: Thank you very much. Okay, County Manager, where are we going to go from here? Packet Page-619-