Agenda 12/11/2012 Item #10 O12/11/2012 Item 1-0.0.
Board of Collier County Commissioners
Donna Fiala Georgia A. Hiller, Esq. Tom Henning Fred W. Coyle Jim Colette
District 1 District 2 District 3 District 4 District 5
15-11AUTMIGZA"WI 051
Date: November 17th 2012
To: County Manager Ochs
From: Commissioner –Henning, District –3
Re: Reconsideration
12. COUNTY ATTORNEY'S REPORT
A. 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).
Motion to approve — Failed 2/ 2 for lack of a majority (Commissioner
Coletta absent)
Please place on the December 11"' BCC agenda
�J44
Commissioner,
3299 Tamiami Trail East, Suite 303 • Naples, Florida 34112 - 5746.239. 252 -8097 • FAX 239-252-3602
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12/11/2012 Item 10.0.
COLLIER COUNTY
Board of County Commissioners
Item Number: 10.0.
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
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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 1/o) 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.
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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
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EXECUTION COPY
INTERLOCAL AGREEMENT RELATING TO
ESTABLISHMENT OF THE
GULF CONSORTIUM
Dated as of September 19, 2012
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
ARTICLE II
THE CONSORTIUM
SECTION 2.01. CREATION.
SECTION 2.02. PURPOSES.
SECTION 2.03. CONSORTIUM MEMBERS.
SECTION 2.04. DURATION OF CONSORTIUM.
ARTICLE III
MEMBERSHIP AND REPRESENTATION
SECTION 3.01.
MEMBERSHIP.
SECTION 3.02.
REPRESENTATION.
SECTION 3.03.
ACTION.
SECTION 3.04.
ELECTION OF OFFICERS.
SECTION 3.05.
AUTHORITY OF OFFICERS.
SECTION 3.06.
RESIGNATION OR REMOVAL OF DIRECTOR.
SECTION 3.07.
MEETINGS.
SECTION 3.08.
WITHDRAWAL OR DISMISSAL OF CONSORTIUM
MEMBERS.
SECTION 3.09.
EXPENSES.
SECTION 3.10.
LIABILITY.
SECTION 3.11.
EXECUTIVE COMMITTEE.
SECTION 3.12.
PRINCIPAL PLACE OF BUSINESS.
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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.
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' SECTION 5.05.
AMENDMENTS.
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SECTION 5.06.
SEVERABILITY.
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SECTION 5.07.
CONTROLLING LAW.
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SECTION 5.08.
EFFECTIVE DATE.
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INTERLOCAL 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
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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
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terms of the hereinafter defined Act and this Interlocal Agreement, and is hereby
created for the purposes described herein.
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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.
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"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.
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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);
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(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.
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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.
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(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.
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(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
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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.
SECTION 3.04. 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),
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(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.
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ARTICLE IV
POWERS AND DUTIES
SECTION 4.02. 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.
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(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
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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.
(2 1) 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
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(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 law. 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
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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.
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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.
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12/11/2012 Item 10.0.
10123/2012 Item 12.A.
SIGNATURE PAGE TO
INTERLOCAL AGREEMENT RELATING TO ESTABLISHMENT
OF THE GULF CONSORTIUM
ATTEST:
Clerk of Circuit Court, ex officio
Clerk of Board of County
Commissioners
COUNTY, FLORIDA
By:
Chairman
Board of County Commissioners
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12/11/2012 Item 10.0.
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
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12/11/2012 Item 10.0.
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.
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12/11/2012 Item 10.0.
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.
• 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
• Consortium can coordinate the 23 affected counties in the development of the Federal rules
to implement the RESTORE Act.
• Consortium can provide a process that will be open and transparent to the public.
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12/11/2012 Item 10.0.
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
• The start-up and on -going operations can be funded from county contributions or any
other source that may be available.
• Under certain circumstances, these up -front and other costs may be recoverable from
RESTORE Act funds allocated for administration.
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12/11/2012 Item 10.0.
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 specked 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).
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12/11/2012 Item 10.0.
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.
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12/11/2012 Item 10.0.
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
• Establish framework for Consortium Membership
■ Counties
■ State involvement
■ Other stakeholders
• Facilitate the planning for establishment of Consortium
• Budget
• Proposed expenses
• Proposed cost sharing
• Initial policy guidelines
• Advocacy & lobbyist (State & Federal)
• Counties
• State Agencies (DACS /DEP /FWCC /DEO /NRDA /WMD)
• Visit Florida
• Enterprise Florida
• State Stakeholders ( Hotels /Restaurants/TDC's /Environmental
Groups)
• Governor's Office
• Legislative Leadership
• Commission on Oil Spill Response
• Federal Agencies
• U.S. Treasury
• Other States
• Preliminary legal analysis
o Proposed legal establishment
o Initial incorporation documents
o Initial By -Laws
• Communications
Page 1 of 3
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12/11/2012 Item 10.0.
• Communications Plan
• FAC Website
• Establish Public Records protocol
• In- coming calls
• Public Meetings
• Proposed Timeline
• Proposed Consortium Structure, Membership, Legal formation, presented to Executive
Committee August 16
• 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
0 $20,000 — legal
O $5,000 — FAC Travel
0 $8,000 — Meeting Expenses
• Estimate 8 meetings with Counties
O NRDA Coordination - $2,000
0 Total Proposed Transition Budget = $53,000
• Proposed Funding Structure
O 8 Cou nties — 75%
■ Original proposed formula
o 15 Cou nties — 25%
■ Estimated formula from RESTORE Act
ESTIMATED
COUNTY POPULATION ALLOCATION
ESCAM BIA
297,619
27%
SANTA ROSA
151,372
10%
OKALOOSA
180,822
16%
Packet Page -807-
AMOUNT
$12,960
$4,800
$7,680
Page 2 of 3
12/11/2012 Item 10.0.
Page 3 of 3
Packet Page -808-
w
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
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12/11/2012 Item 10.0.
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12/11/2012 Item 10.0.
show the re- designation of the 103 acres to the Immokalee Urban Area.
(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 510
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 510
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
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12/11/2012 Item 10.0.
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"
Proj ect 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
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12/11/2012 Item 10.0.
Item 9101
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 10.1 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
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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.
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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
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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
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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
parameters and those rules that will affect how you spend
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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
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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
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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
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12/11/2012 Item 10.0.
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.
In Florida, as John Wayne described, it lists the affected
counties and requires those counties to come together and
fonn 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
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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 1 st. 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
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12/11/2012 Item 10.0.
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.
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
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12/11/2012 Item 10.0.
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.
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12/11/2012 Item 10.0.
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
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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
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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, etcetera, etcetera. To
hire and engage staff attorneys, to advocate again on another
issue.
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12/11/2012 Item 10.0.
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
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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
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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
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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 10
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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
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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
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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
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12/11/2012 Item 10.0.
you the opportunity to talk to the Governor and bring back
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
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12/11/2012 Item 10.0.
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
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12/11/2012 Item 10.0.
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
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12/11/2012 Item 10.0.
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
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12/11/2012 Item 10.0.
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.
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12/11/2012 Item 10.0.
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
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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.
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12/11/2012 Item 10.0.
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?
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