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Agenda 09/23/2008 Item #16E 3Item # 16E3 September 23, 2008 Pagel of 110 EXECUTIVE SUMMARY Recommendation To Approve Agreement #08 -5102, Independent Legal Counsel For The Collier County Value Adjustment Board With The Firm Of Bond, Schoeneck & King, P.A. and Authorize Necessary Budget Amendments. OBJECTIVE: To approve the appointment of Independent Legal Counsel as agreed by the Value Adjustment Board at meeting held on August 4, 2008 and authorize necessary budget amendments. CONSIDERATIONS: New legislation (CS /HB 909) was enacted in the most recent legislative session of the Florida legislature. This bill amends Section 194.015, Florida Statutes by providing that beginning September 1, 2008 (the effective date of the bill), local county attorney offices are no longer allowed to act as counsel to the VAB and the VAB must appoint private counsel who will receive compensation as established by the VAB. Private Counsel must have practiced law for over five years and may not represent the local property appraiser, the tax collector, any taxing authority or any property owner in any administrative or judicial review of property taxes. The Collier County Purchasing Department posted RFP 08 -5102 on June 25, 2008 and sent electronic notifications to thirty -eight (38) qualified firms. Proposals closed on July 24, 2008 with two (2) responsive proposal responses received. The solicitations and scoring sheets were distributed to the Selection Committee on July 26, 2008 for independent evaluation and ranking. The Selection Committee met at a publicly advertised meeting on August 4, 2008 whereas both firms were given the opportunity to present their firm's credentials. By consensus, the Committee made the award to the local firm of Bond, Schoeneck & King, P.A. The term of the agreement is for one (1) year with the option of two (2) additional one (1) year terms. FISCAL IMPACT: The total all inclusive cost for services under this Agreement is six thousand dollars ($6,000.00) per annum. The County will pay these costs and invoice the School Board for its respective share. These expenditures are not in the FY 2008 -09 Budget. The budget amendment authorization requested is for the FY 2008 -09 Budget and transfers budget appropriations from the General Fund (001) reserves to the Other General and Administrative fund center (103010) in the General Fund. LEGAL CONSIDERATIONS: The Agreement has been signed for form and legal sufficiency. This item and is legally sufficient for Board action. - JAB GROWTH MANAGEMENT IMPACT: There is no impact on the Growth Management Plan. Item # 16E3 September 23, 2008 Page 2 of 110 RECOMMENDATION: That the Board of County Commissions approves the Agreement with Bond, Schoeneck & King, P.A. for Independent Legal Counsel for the Collier County Value Adjustment Board and authorize necessary budget amendments. PREPARED BY: Michael F. Hauer, CPPO - CPPB Purchasing Department Item # 16E3 September 23, 2008 Page 3 of 110 Recommendation to Approve Agreement #08 -5102, Independent Legal Counsel for the Collier County Value Adjustment Board with the firm of Bond, Schoeneck &amp; King, P.A. Prepared By: Department Date Purchasing 9/9/2008 11:27:03 AM Approved By: Department Approval Date Administrative Services Approved 9/16/2008 4:02 PM Approved By: Department Approval Date County Attorney Approved 9/16/2008 5:00 PM Approved By: Department Approval Date Office of Management Approved 9/16/2008 5:16 PM and Budget Approved By: Department Approval Date County Approved 9/16/2008 6:48 PM Manager's Office ATTACHMENTS: Name: Description: Type: ❑ Executive. Summary Independent Legal Counsel fur Executive Summary Executive Summary VAB.doc ❑ Agreement.. Bond, . Schoeneck &. King, . Independent Agreement Agreement Legal Counsel for VABp_df U 08 -5102_ Independent Legal CounceI for the Collier Coin Request for Proposal Value Adjustment Board.doc ❑ Proposal, Bond, Schoeneck & King, Independent Legal Proposal Response Counsel for Item # 16E3 September 23, 2008 Page 4 of 110 Request for Proposal Request for Proposal Item # 16E3 AGREEMENT #08 -5102 September 23, 2008 Page 5 of 110 For Independent Legal Counsel for Value Adjustment Board THIS AGREEMENT, made and entered into this day of , 2008, by and between Bond, Schoeneck & King, P.A. hereinafter called the "Consultant" and Collier County, a political subdivision of the State of Florida, and the District School Board of Collier County, hereinafter collectively called the "Value Adjustment Board" (VAB). WITNESSETH: 1. COMMENCEMENT. This Agreement shall be for a one (1) year period, commencing on date of approval by the Board of County Commissioners, and the District School Board of Collier County and terminating one year from that date. The VAB, at its discretion, shall have the option to renew this contract after the initial term for two (2) additional one (1) year terms. Such renewal shall be under the same terms and conditions. If any change in conditions is negotiated, said renewal will be contingent upon written approval of the Collier County Purchasing Department. 2. STATEMENT OF WORK. The Consultant shall provide Legal Counsel Services in accordance with the Scope of Services of RFP 08 -5012 "Independent Legal Counsel for Value Adjustment Board" and the Consultant's proposal hereto attached and incorporated herein by reference, as well as additional services as required and mutually agreed upon in writing by the Value Adjustment Board and Consultant. 3. COMPENSATION. The VAB shall pay the Consultant for the performance of this Agreement on a fixed fee basis of six thousand dollars per annum ($6,000) after receipt of an itemized statement of services, in accordance with the cost proposal submitted in response to RFP 08 -5012. Consultant shall not invoice more often than every thirty (30) days, and shall be paid in accordance with Chapter 218, Florida Statutes, also known as the Local Government Prompt Payment Act. Consultant agrees to pay for ordinary expenses incurred, including but not limited to, costs of mailing, copies, facsimiles, telephone expenses, document delivery (e.g., FEDEX, etc.) and secretarial services. Ordinary expenses as used herein shall not include the mailing or copying expense of materials for mass dissemination. However, the parties hereto may agree to include additional expenses or services in this Agreement. 4. NOTICES. All notices from the VAB to the Consultant shall be deemed duly served if mailed or faxed to the Consultant at the following Address: F. Joseph McMackin III 4001 Tamiami Trail North, Suite 250 Naples, Florida 34103 Item # 16E3 Telephone: (239) 659 -3861 September 23, 2008 Facsimile: (239) 659 -3812 Page 6 of 110 Cell: (239) 298 -0542 All Notices from the Consultant to the VAB shall be deemed duly served if mailed or faxed to: Clerk of the Circuit Court, as Clerk to the VAB Harmon Turner Building, 4'h Floor 3301 Tamiami Trail, East Naples, Florida 34112 Tele: (239) 252 -8399 Fax: (239) 252 -8408 The Consultant and the VAB may change the above mailing address at any time upon giving the other party written notification. All notices under this Service Agreement must be in writing. 5. NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a partnership between Collier County or the District School Board and the Consultant or to constitute the Consultant as an agent of Collier County or the District School Board. 6. PERMITS: LICENSES: TAXES. In compliance with Section 218.80, Fla. Stats, all permits necessary for the prosecution of the Work shall be obtained by the Consultant. Payment for all such permits issued by the County and all non - County permits necessary for the prosecution of the Work shall be procured and paid for by the Consultant. The Consultant shall also be solely responsible for payment of any and all taxes levied on the Consultant. In addition, the Consultant shall comply with all rules, regulations and laws of Collier County, the State of Florida or the U.S. Government now in force or hereafter adopted. The Consultant agrees to comply with all laws governing the responsibility of an employer with respect to persons employed by the Consultant. 7. NO IMPROPER USE. The Consultant will not use, nor suffer or permit any person to use in any manner whatsoever, county facilities for any improper, immoral or offensive purpose or for any purpose in violation of any federal, state, county or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Con- sultant or if the VAB or its authorized representative shall deem any conduct on the part of the Consultant to be objectionable or improper, the VAB shall have the right to suspend the contract of the Consultant. Should the Consultant fail to correct any such violation, conduct, or practice to the satisfaction of the VAB within twenty -four (24) hours after receiving notice of such violation, conduct, or practice, such suspension to continue until the violation is cured. 8. TERMINATION. Should the Consultant be found to have failed to perform his services in a manner satisfactory to the County as per the requirements of this Agreement, the VAB may terminate said agreement immediately for cause; further the VAB may terminate this Agreement for convenience with a thirty (30) day written notice. '� The VAB shall be sole judge of non - performance. Item # 16E3 September 23, 2008 9. CONTINUED REPRESENTATION. In the event suspension or terminatiftgbtfiief 110 Agreement occurs, Consultant agrees that s /he will continue representation of the VAB as needed to make determinations regarding the suspension, and /or until such time as I a replacement counsel can be appointed by the VAB in compliance with Section 194.015. Fla. Stat. 10. NO DISCRIMINATION. The Consultant agrees that there shall be no discrimination as to race, sex, color, creed or national origin. 11. INSURANCE. The Consultant shall provide insurance as per the requirements outlined in RFP #08 -5012 as follows: A. Commercial General Liability: Coverage shall have minimum limits of $500,000 Per Occurrence, Combined Single Limit of Bodily Injury Liability and Property Damage Liability. This shall include Premises and Operations; Independent Consultants; Products and Completed Operations and Contractual Liability. B. Worker's Compensation: Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. C. Professional Liability: Coverage shall have minimum limits of $1,000,000. Special Requirements: Collier County and the Value Adjustment Board shall be listed as the Certificate Holder and included as an Additional Insured on the Comprehensive General Liability Policy. Current, valid insurance policies meeting the requirement herein identified shall be maintained by Consultant during the duration of this Agreement. Renewal certificates shall be sent to the Purchasing Department 30 days prior to any expiration date. There shall be a thirty (30) day notification to the County in the event of cancellation or modification of any stipulated insurance coverage. Consultant shall insure that all sub consultants comply with the same insurance requirements that he is required to meet. The same Consultant shall provide the Collier County Purchasing Department with certificates of insurance meeting the required insurance provisions. 12. INDEMNIFICATION. To the maximum extent permitted by Florida law, the Contractor/Vendor /Consultant shall indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Contractor /Vendor /Consultant or anyone employed or utilized by the Contractor/Vendor /Consultant in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. i- Item # 16E3 This section does not pertain to any incident arising from the sole neglisgpp"er 23, 2008 the County or the VAB. Page 8 of 110 12. CONTRACT ADMINISTRATION. This Agreement shall be administered by the Clerk to the VAB and the Collier County Purchasing Department. 13. COMPONENT PARTS OF THIS CONTRACT. This Contract consists of the attached component parts, all of which are as fully a part of the contract as if herein set out verbatim: Consultant's Proposal, Insurance Certificate(s), RFP 08- 5012, "Independent Legal Counsel for Value Adjustment Board ". 14. AMENDMENT. This Agreement can only be amended in a writing executed by all parties in the same manner as this original Agreement. IN WITNESS WHEREOF, the undersigned parties have each by an authorized person or agent, hereunder set their hands and seals on the date and year first above written. DATED: ATTEST: DWIGHT E. BROCK, CLERK Approved as to form and legal sufficiency: Assistant Cou ty Attorney S�p,�,iJ. t -E�'z- A, WITNESSES: (1) Signature Printed/Typed Name (2) Signature Printed /Typed Name r^ 6c� -1�E 5%O LIM BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA Tom Henning, Chairman COLLIER COUNTY DISTRICT SCHOOLBOARD By: _ obert . Spencer, Financial Officer Item # 16E3 September 23, 2008 Pam. 9 of 110 i � :,._ 5C If 0.r ♦:�'�6i'±Ti` + 19 PRODUCER -MARSH USA INQ. 300 SOUTH STATE STREET ONE PARK PUKE .n�., .8RTIWATONUHBEP t. n 1 2 8.04 W&S-ce TPICATE IB ISSUED AB A MATTER 01 WFORNATNIN ONLY AND CONFERS MO Fume UPON TWO OERTIFIOATE NOLDIR DINER TNAN THOSE PROVIDED IN THE POUOY. TNIS CERTIFICATE DO" NOT AMEND, E%IIND OR ALTER THE COVERAOE AFFORDED BY THE POLICIES DRSORIBEO MEREIN. SYRACUSE, NY 13202 C9. fPANIES.AFFO _ D119.COVERAG COMPANY 22539 -1M— A COLUMBIA CASUALTY CO IN6URED COMPANY BOND, SCHOENECK & KIND, PLLC B BOND, SCHOENECK & KING, PA - ATTN: KELLY JOHNSON COMPANY ONE LINCOLN CENTER C SYRACUSE, NY 13202 COMPANY D TMS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN NAVE BEEN ISSUEO TO THE INSURED NAMED HEREW FOR THE POLICY PERIOD INDICATED. NOTWETHSTMIDWO ANY REOUIRELUNT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCWCNT VATH RESPECT TO WHICH THE CERTIFICATE MAY BE ISBUED OR NAY PERTAIN, THE INSURANCE AFFORDED W THE POUCIES DESCRIBED HEREIN IS SVWECT TO All THE TEFNAS. CONDITIONS AND EXCLUSIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN FRAY HAVE BEEN REDUCED BY PAID CLAIMS CO LTR TY PE OF IN 80 RAN CE POLICY NUMBER POLICY EFFECTIVE DATE(UMMDNY) POLICY EXPIRATION DATE (MAIMOnY) UNIT& OENERALUABILITY - A GEN ADORE TIE $_ PRODUCTS- cowtoPA00 § COMMERCIAL GENERAL LIABILITY PERSONA1,6ADVIWURY $ OIAIMS MADE F] OCCUR EACH OCCURRENOR $ OWNERS 6 CONTRACTORS PROT AMACIE or+ft $ -FIRED MEO EXP M ore . $ AUTOMOBILE UABIUTY COMB W ED SINGLE LWR MY AUTO BODILY WJURY (PM wean) $ ALL OMMED AVTOS SCHMULEDAUTOS MREDAU70S BODILY INJURY IPN BCcNdNl) $ NON- OMEDAUTOS PROPERTY DAMAGE $ OARAOE UABIUTY AUTO ONLY.FA ACCIDENT $ OTHERTHAHAUTOONLM. •....I . . ANY AUTO A I $ AGOREGATE. $ 4XCF86 WBWTY EACH OCCURRENCE S _ AOOPEGATE $ UMBRELLA FORM OTHER THAN UMBRELLA FORIA EM18 P SA O D TOR LW ER EL EACH ACCIDENT § fMPL0YE0.8'UABILRY EL DISEASEi0L!Y LENT $ THE FROPRIETOR/ W,CL PARTNERSA:XECUTP/E g EL DIGEASEFACN EMPLOYEE $ OFFICERS ARP EXCL A MEN PROFESSIONAL INDEMNITY PS132345145 06/15107 08115/08 NOT LESS THAN 1,000,000. EACH CLAIM, 2,000,000 AGGREGATE DEBCRIPTON OF OPERATIONSILOCATIO NSNEHICLESISPB GAL MEMO GERTIFICATE'.ROME_R j.j c'i` EHD"LO AMr or THE FDIxx6 DeaenleED HEneW Be uwceueD evou THE exrwATaH Mre THweoF. THE NEARER AFFMDWO CDVENAOB VALL ENDEAVOR TO "ALL _]U MYB V'RITTFN NOTICE TO IHE LERVI'l" C MOIOER NA"EO HFAeW, M FAILURE 10 ., 6UON NOTICE 8H IWO.e NO OEUMTON OR IWIUtt OF AYYNN UPON THE WIPJAM MFOROINO COVPN.UG RE MENT. OR REI'AEBEMAMSE, OR THE tlNER OI T HIECERTPIOATE MARSH USA INC. BT Kimberly A. Winter VALID AS OF:,08114/07 73 Item # 16E3 September 23, 2008 Page 10 of 110 REQUEST FOR PROPOSAL Corr County COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS OFFICE OF THE COUNTY ATTORNEY "INDEPENDENT LEGAL COUNSEL FOR THE COLLIER COUNTY VALUE ADJUSTMENT BOARD" Michael F. Hauer, CPPO, CPPB Purchasing Acquisitions Manager This proposal solicitation document is prepared in a Microsoft Word 2003 format. Any alterations to this document made by the proposer may be grounds for rejection of proposal, cancellation of any subsequent award, or any other legal remedies available to the Collier County Government NON -CCNA- Manual (Revision 612008) Item # 16E3 September 23, 2008 Page 11 of 110 REQUEST FOR PROPOSAL Coe-r County COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS OFFICE OF THE COUNTY ATTORNEY "INDEPENDENT LEGAL COUNSEL FOR THE COLLIER COUNTY VALUE ADJUSTMENT BOARD" Michael F. Hauer, CPPO, CPPB Purchasing Acquisitions Manager This proposal solicitation document is prepared in a Microsoft Word 2003 format. Any alterations to this document made by the proposer may be grounds for rejection of proposal, cancellation of any subsequent award, or any other legal remedies available to the Collier County Government. NON -CCNA- Manual (Revision 6/2008) Item # 16E3 September 23, 2008 Page 12 of 110 LEGAL NOTICE Pursuant to approval by the County Manager, Sealed Proposals to provide Independent Legal Counsel for the Collier County Value Adjustment Board will be received until 3:00 p.m., Naples local time, on July 24, 2008 at the Purchasing Department, Purchasing Building "G", Collier County Government Complex, 3301 Tamiami Trail East, Naples, Florida 34112. RFP# 08 -5102 "Independent Legal Counsel for the Collier County Value Adjustment Board" Services to be provided are clearly denoted in this solicitation document. ® A pre - proposal conference is not applicable for this solicitation. All statements shall be made upon the official proposal form which may be obtained on the Collier County Purchasing Department E- Procurement website: www.colliergov.net /bid. Collier County does not discriminate based on age, race, color, sex, religion, national origin, disability or marital status. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA, BY: /S/ Stephen Y. Carnell C.P.M. Purchasing & General Services Director This Public Notice was posted on the Collier County Purchasing Department website: www.colliergov.net /purchasing and in the Lobby of Purchasing Building "G ", Collier County Government Center on June 25, 2008. NON -CCNA- Manual (Revision 6/2008) 2 Item # 16E3 September 23, 2008 Page 13 of 110 PROPOSER'S NON - RESPONSE STATEMENT RFP# 08 -5102 The sole intent of the Collier County Purchasing Department is to issue solicitations that are clear, concise, and openly competitive. Therefore, we are interested in ascertaining reasons for prospective Proposers not wishing to respond to this solicitation. If your firm is not responding to this RFP, please indicate the reason(s) by checking any appropriate item(s) listed below and return this form via email, fax, or mail to Collier County Purchasing Department, 3301 Tamiami Trail East, Naples, Florida 34112. We are not responding to this RFP for the following reason(s): ❑ Services requested not available through our company. ❑ Our firm could not meet specifications /scope of work. ❑ Specifications /scope of work not clearly understood or applicable (too vague, rigid, etc.) ❑ Project too small. ❑ Insufficient time allowed for preparation of response. ❑ Incorrect address used. Please correct mailing address ❑ Other reason(s): Name of Firm: Mailing Address: City, State, Zip: Telephone No: Email: By: Signature of Representative NON -CCNA- Manual (Revision 6/2008) 3 Item # 16E3 September 23, 2008 Page 14 of 110 TABLE OF CONTENTS 1) Introduction / Overview ................................................................... ..............................6 A) Purpose/ Objective ..................................................................... ..............................6 B) Background ............................................................................... ..............................6 C) Inquiries ................................................................................... ............................... 7 D) Method of Source Selection ...................................................... ..............................7 E) Pre - Proposal Conference ......................................................... ............................... 7 F) Projected Timetable ................................................................. ............................... 8 2) General Description of Specifications or Scope of Work .............. ............................... 8 3) Constraints on the Contractor ....................................................... ..............................8 4) Contractor's Personnel Requirements ......................................... ............................... 8 5) Contractor's Responsibilities ......................................................... ..............................9 6) County's Responsibilities ............................................................. ............................... 9 7) Reporting Requirements ............................................................... ..............................9 8) County's Right to Inspect .............................................................. ..............................9 9) Terms and Conditions of Contract .............................................. ............................... 10 10) General Terms and Conditions .................................................. .............................10 A. Licenses ................................................................................... .............................10 B. Principals / Collusion ................................................................ ............................... 11 C. Taxes ..................................................................................... ............................... 11 D. Relation of County .................................................................. ............................... 11 E. Term Contracts ......................................................................... .............................11 F. Termination .............................................................................. .............................11 G. Liability ................................................................................... ............................... 12 H. Assignment ............................................................................ ............................... 12 I. Lobbying .................................................................................. ............................... 12 J. Single Proposal ....................................................................... ............................... 12 K. Protest Procedures ................................................................. ............................... 12 L. Public Entity Crime ................................................................. ............................... 13 M. Conflict of Interest .................................................................. ............................... 13 N. Prohibition of Gifts to County Employees ............................... ............................... 13 O. Immigration Reform and Control Act ........................................ .............................14 P. Collier County Local Preference Policy ......................... .............................13 11) Instructions for Proposal .......................................................... ............................... 15 A) Compliance with the RFP ....................................................... ............................... 15 B) Acknowledgment of Insurance Requirements ........................ ............................... 15 C) Acknowledgment of Bonding Requirements .......................... ............................... 16 D) Delivery of Proposals ............................................................. ............................... 16 E) Evaluation of Proposals ( Procedure) ...................................... ............................... 17 F) Ambiguity, Conflict, or Other Errors in the RFP ........................ .............................18 G) Proposal, Presentation, and Protest Costs ............................ ............................... 18 H) Acceptance or Rejection of Proposals ................................... ............................... 18 1) Requests for Clarification of Proposals .................................... ............................... 18 J) Validity of Proposals ............................................................... ............................... 19 K) Response Format ..................................................................... .............................19 NON -CCNA- Manual (Revision 6/2008) 4 Item # 16E3 September 23, 2008 Page 15 of 110 L) Proposal Selection Committee and Evaluation Factors .......... ............................... 21 ATTACHMENTS Value Adjustment Board Attorney Agreement Proposer Check List Conflict Of Interest Affidavit Proposers Qualification Form Declaration Statement Affidavit Claiming Status as a Local Business NON -CCNA- Manual (Revision 6/2008) Item # 16E3 September 23, 2008 Page 16 of 110 Request for Proposals RFP# 08 -5102 "Independent Counsel for the Collier County Value Adjustment Board" 1) Introduction /Overview A) Purpose /Objective As requested by the Office of the County Attorney and the District School Board (hereinafter, the "Office, Board, Division or Department') on behalf of the Value Adjustment Board, the Collier County Purchasing Department (hereinafter, "County') has issued this Request for Proposal (hereinafter, 'RFP ") with the sole purpose and intent of obtaining proposals from interested and qualified individuals offering to provide Independent Counsel for the Collier County Value Adjustment Board in accordance with the specifications stated and /or attached herein /hereto. The successful proposer will hereinafter be referred to as the "Independent Counsel ". If awarded, an Agreement to provide these services will be effective on the date contract is approved by the Value Adjustment Board (herein after, the VAB), signed by all required parties and filed in the Office of Records and Minutes. The anticipated Agreement term will be for the Value Adjustment Board meetings for the 2008 Value Adjustment Board calendar year. Additionally, and by mutual consent, this Agreement may be renewed annually thereafter for each consecutive VAB calendar year upon written notice by the Value Adjustment Board to the Independent Legal Counsel prior to the expiration of this Agreement for two (2) one (1) year terms. As is more fully explained in this RFP, an award, if made, will be made to the best overall proposer(s) whose proposal is most advantageous to the County, taking into consideration the evaluation factors set forth in this RFP. The County will not use any other factors or criteria in the evaluation of the proposals received. Additionally, if authorized by their own enabling authority, other interested governmental entities may, at their option and the option of the Contractor, enter into their own Agreement with the Independent Legal Counsel in accordance with the terms, conditions, and other provisions of the Collier County contract. However, Collier County shall not be a party to any contract between another governmental entity and the Contractor based on the Collier County contract. B) Background Florida State Statute 194.015 Value adjustment board. - -There is hereby created a value adjustment board for each county, which shall consist of three members of the governing body of the county as elected from the membership of the board of said governing body, one of whom shall be elected chairperson, and two members of the school board as elected from the membership of the school board. NON -CCNA- Manual (Revision 6/2008) 6 Item # 16E3 September 23, 2008 Page 17 of 110 The members of the board may be temporarily replaced by other members of the respective boards on appointment by their respective chairpersons. Any three members shall constitute a quorum of the board, except that each quorum must include at least one member of said governing board and at least one member of the school board, and no meeting of the board shall take place unless a quorum is present. Members of the board may receive such per diem compensation as is allowed by law for state employees if both bodies elect to allow such compensation. The clerk of the governing body of the county shall be the clerk of the value adjustment board. The office of the county attorney may be counsel to the board unless the county attorney represents the property appraiser, in which instance the board shall appoint private counsel who has practiced law for over 5 years and who shall receive such compensation as may be established by the board. No meeting of the board shall take place unless counsel to the board is present. However, counsel for the property appraiser shall not be required when the county attorney represents only the board at the board hearings, even though the county attorney may represent the property appraiser in other matters or at a different time. Two- fifths of the expenses of the board shall be borne by the district school board and three - fifths by the district county commission. C) Inquiries Direct questions related to this RFP to the Collier County Purchasing Department E- Procurement website: www.colliergov.net /bid. Proposers must clearly understand that the only official answer or position of the County will be the one stated on the Collier County Purchasing Department E- Procurement website. For general questions, please call the referenced Purchasing Officer at (239) 252 -8965. D) Method of Source Selection The County is using the Competitive Sealed Proposals methodology of source selection for this procurement, as authorized by Ordinance Number 87 -25, and Collier County Resolution Number 2006 -268 establishing and adopting the Collier County Purchasing Policy. The County may, as it deems necessary, conduct discussions with responsible proposers determined to be in contention for being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to solicitation requirements. E) Pre - Proposal Conference ® A pre - proposal conference is not applicable for this solicitation. NON -CCNA- Manual (Revision 6/2008) 7 Item # 16E3 September 23, 2008 Page 18 of 110 F) Projected Timetable The following projected timetable should be used as a working guide for planning purposes only. The County reserves the right to adjust this timetable as required during the course of the RFP process. Event Issue RFP Notice Date June 25, 2008 Last Date for Receipt of Written Questions July 17, 2008 Pre-Proposal Conference Not Applicable Addendum Issued Resulting from the Pre - Proposal Conference If Applicable) Not Applicable Proposal Close Date July 24, 2008 Evaluation of Proposals July 24 — August 4, 2008 Value Adjustment Board's Selection Process August 4, 2008 Value Adjustment Board Contract Approval Date To Be Determined 2) General Description of Specifications or Scope of Work The Independent Counsel, at a minimum, must achieve the requirements of the Specifications or Scope of Work stated herein. Additionally, Independent Counsel may also propose alternate solutions to achieve the requirements of the Scope of Work. 3) Constraints on the Independent Counsel These constraints include: The selected attorney /firm shall not have a conflict in representation. In this regard, no attorney /firm may ever represent a person or entity in a matter before the Board if that attorney /firm is also counsel for the Board in question. Likewise, a Board attorney /firm may not represent the interests of an individual Board member during the period the attorney /firm serves as counsel to the Board. 4) Independent Counsel's Personnel Qualifications Independent Counsel's personnel qualifications include: Admission to practice law in the State of Florida by the Florida Supreme Court/Florida Bar Association Membership is mandatory for the proposer including all attorneys working under this contract. Anyone not so qualified shall be rejected as non - qualified. Proposers must have familiarity with and knowledge of appropriate ordinances for the Code Enforcement and Nuisance Abatement Board, as well as Chapters 119 and 162 NON -CCNA- Manual (Revision 6/2008) 8 Item # 16E3 September 23, 2008 Page 19 of 110 F.S. and County ordinances. Experience with quasi - judicial boards or proceedings, other governmental entities and /or other administrative proceedings are required. 5) Independent Counsel's Responsibilities Independent Counsel's responsibilities include: • Attend all Value Adjustment Board meetings and advise the Board on legal issues that arise during meetings. Currently the Board has 3 meetings including its annual organizational meeting in July. • Schedule all Board meetings. • Prepare meeting agendas and agenda materials for each member, which may include proposed rule amendments, legislative updates, or any other documents necessary for the conduct of the meeting or to inform to the Board, [The Clerk is responsible for the preparation of the special magistrate recommendations for the agenda.] • Review Special Magistrate Recommendations and Record Decisions for legal sufficiency. • Oversee the tax petition process and Special Magistrate hearings and coordinate with the VAB Clerk, Special Magistrates and Property Appraiser staff, as may be necessary to insure that the process is operating properly and in accordance with State statute and rule, as well as local VAB procedure and directive. As part of this oversight, the VAB attorney will review and respond to petitioner complaints or questions regarding any aspect of the process, such as Special Magistrate conduct or application of a VAB rule of procedure. It is not expected that he VAB Attorney attend all Special Magistrate hearings, but occasional oversight is requested. • Inform the Board of all legislative measures affecting the assessment and taxation of real property and the VAB hearing process. • Review and propose amendments to VAB Rules of Procedure as necessary to incorporate state changes in law and administrative rules, and VAB directives. • Prepare resolutions for the Board necessary to the process. • Such other tasks as may be assigned by the Board. 6) County's Responsibilities [Not Applicable] 7) Reporting Requirements As determined by the Value Adjustment Board. 8) County's Right to Inspect [Not Applicable] NON -CCNA- Manual (Revision 6/2008) 9 Item # 16E3 September 23, 2008 Page 20 of 110 9) Terms and Conditions of Agreement Collier County has developed an Agreement, approved by the VAB, which is included in this solicitation document. The selected Independent Legal Counsel shall be required to sign a VAB Agreement, in substantial conformance with the attached agreement within twenty one (21) days of Notice of Selection for Award. An Agreement resulting from this RFP shall be subject to the terms and conditions set forth in the Independent Legal Counsel Agreement. The County reserves the right to include in any Agreement document such terms and conditions, as it deems necessary for the proper protection of the rights of Collier County. The County will not be obligated to sign any contracts, or agreements or other documents provided by the Independent Legal Counsel. Collier County, at its sole discretion, will determine the method of payment for goods and /or services as part of this agreement. Payment methods include: 1. Traditional — payment by check, wire transfer or other cash equivalent. 2. Standard — payment by purchasing card. Collier County's Purchasing Card Program is supported by standard bank credit suppliers (i.e. VISA and MasterCard), and as such, is cognizant of the Rules for VISA Merchants and MasterCard Merchant Rules. Collier County cautions Vendors to consider both methods of payment when determining pricing as no additional surcharges or fees will be considered (per Rules for VISA Merchants and MasterCard Merchant Rules). The County will entertain bids clearly stating pricing for standard payment methods. An additional separate discounted price for traditional payments may be provided at the initial bid submittal if it is clearly marked as an "Additional Cash Discount." 10) General Terms and Conditions A. Licenses The Contractor is required to possess the correct occupational license, professional license, and any other authorizations necessary to carry out and perform the work required by the project pursuant to all applicable Federal, State and Local Law, Statute, Ordinances, and rules and regulations of any kind. If required and /or requested, copies of the required licenses must be submitted with the proposal response indicating that the entity proposing, as well as the team assigned to the County account, are properly licensed to perform the activities or work included in the contract documents. A Contractor, with an office within Collier County is also required to have an occupational license. NON -CCNA- Manual (Revision 6/2008) 10 Item # 16E3 September 23, 2008 Page 21 of 110 If you have questions regarding professional licenses, please contact the Contractor Licensing, Community Development and Environmental Services at (239) 252 -2431, 252 -2432, or 252 -2909. Questions regarding required Occupational licenses, please contact the Tax Collector's Office at (239) 659 -5712. B. Principals /Collusion By submission of this Proposal, the undersigned, as Proposer, does declare that the only person or persons interested in this Proposal as principal or principals is /are named therein and that no person other than therein mentioned has any interest in this Proposal or in the contract to be entered into; that this Proposal is made without connection with any person, company or parties making a Proposal, and that it is in all respects fair and in good faith without collusion or fraud. C. Taxes Collier County is exempt from Federal Excise and State of Florida Sales Tax. Collier County Use Tax Certificate Number is 85- 80126218300 -2. Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work. No markup shall be applied to sales tax. D. Relation of County It is the intent of the parties hereto that the Contractor shall be legally considered an independent contractor, and that neither the Contractor nor their employees shall, under any circumstances, be considered employees or agents of the County, and that the County shall be at no time legally responsible for any negligence on the part of said Contractor, their employees or agents, resulting in either bodily or personal injury or property damage to any individual, firm, or corporation. E. Term Contracts If funds are not appropriated for continuance of a term contract to completion, cancellation will be accepted by this Contractor on thirty (30) days prior written notice. F. Termination Should the Contractor be found to have failed to perform his services in a manner satisfactory to the County, the County may terminate this Agreement immediately for cause; further the County may terminate this Agreement for convenience with a seven (7) day written notice. The County shall be sole judge of non - performance. NON -CCNA- Manual (Revision 6/2008) 11 Item # 16E3 September 23, 2008 Page 22 of 110 G. Liability The Contractor will not be held responsible for failure to complete contract due to causes beyond its control, including, but not limited to, work stoppage, fires, civil disobedience, riots, rebellions, Acts of Nature and similar occurrences making performance impossible or illegal. H. Assignment The Contractor(s) shall not assign, transfer, convey, sublet or otherwise dispose of this contract, or of any or all of its rights, title or interest therein, or his or its power to execute such contract to any person, company or corporation without prior written consent of the County. I. Lobbying All firms are hereby placed on NOTICE that the Board of County Commissioners does not wish to be lobbied, either individually or collectively about a project for which a firm has submitted a Proposal. Firms and their agents are not to contact members of the County Commission for such purposes as meeting or introduction, luncheons, dinners, etc. During the process, from Proposal closing to final Board approval, no firm or their agent shall contact any other employee of Collier County in reference to this Proposal, with the exception of the Purchasing Director or his designee(s). Failure to abide by this provision may serve as grounds for disqualification for award of this contract to the firm. J. Single Proposal Each Proposer must submit, with their proposal, the required forms included in this RFP. Only one proposal from a legal entity as a primary will be considered. A legal entity that submits a proposal as a primary or as part of a partnership or joint venture submitting as primary may not then act as a sub - consultant to any other firm submitting under the same RFP. If a legal entity is not submitting as a primary or as part of a partnership or joint venture as a primary, that legal entity may act as a sub - consultant to any other firm or firms submitting under the same RFP. All submittals in violation of this requirement will be deemed non - responsive and rejected from further consideration. K. Protest Procedures Any actual or prospective Proposer to a Request for Proposal, who is aggrieved with respect to the former, shall file a written protest with the Purchasing Director rior to the due date for acceptance of proposals. All such protests must be filed with the Purchasing Director no later than 11:00 a.m. Collier County time on the final published date for the acceptance of the Request for Proposals. NON -CCNA- Manual (Revision 6/2008) 12 Item # 16E3 September 23, 2008 Page 23 of 110 The Value Adjustment Board will make award of contract in public session. Award recommendations will be posted outside the offices of the Purchasing Department on Wednesdays and Thursdays. Any actual or prospective respondent who desires to formally protest the recommended contract award must file a notice of intent to protest with the Purchasing Director within two (2) calendar days (excluding weekends and County holidays) of the date that the recommended award is posted. Upon filing of said notice, the protesting party will have five (5) days to file a formal protest and will be given instructions as to the form and content requirements of the formal protest. A copy of the "Protest Policy" is available at the office of the Purchasing Director. L. Public Entity Crime A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months following the date of being placed on the convicted vendor list. M. Conflict of Interest Proposer shall complete the Conflict of Interest Affidavit included as an attachment to this RFP document. Disclosure of any potential or actual conflict of interest is subject to County staff review and does not in and of itself disqualify a firm from consideration. These disclosures are intended to identify and or preclude conflict of interest situations during contract selection and execution. N. Prohibition of Gifts to County Employees No organization or individual shall offer or give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to any County employee, as set forth in Chapter 112, Part III, Florida Statutes, the current Collier County Ethics Ordinance, and County Administrative Procedure 5311. Violation of this provision may result in one or more of the following consequences: a. Prohibition by the individual, firm, and /or any employee of the firm from contact with County staff for a specified period of time; b. Prohibition by the individual and /or firm from doing business with the County for a specified period of time, including but not limited to: submitting bids, RFP, and /or NON -CCNA- Manual (Revision 6/2008) 13 Item # 16E3 September 23, 2008 Page 24 of 110 quotes; and, c. immediate termination of any contract held by the individual and /or firm for cause. O. Immigration Reform and Control Act Proposer acknowledges, and without exception or stipulation, any firm(s) receiving an award shall be fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seg. and regulations relating thereto, as either may be amended. Failure by the awarded firm(s) to comply with the laws referenced herein shall constitute a breach of the award agreement and the County shall have the discretion to unilaterally terminate said agreement immediately. P. Collier County Local Preference Policy Collier County provides an incentive to local business to enhance the opportunities of local businesses in the award of County contracts. In the evaluation of proposals, the County rewards Proposers for being a local business by granting a ten (10) points incentive in the evaluation criterion points. Definition of Local Business A "local business" is defined as a Collier County business that has a valid occupational license issued by Collier County at least one year prior to bid or proposal submission to do business within Collier County that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier County from which the vendor operates or performs business. Post Office Boxes are not verifiable and shall not by used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well -being of Collier County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a "local business" under this section. Documentation Requirements Proposer must complete and submit with their proposal response, the Affidavit for Claiming Status as a Local Business which is included as part of this solicitation. Failure on the part of a Proposer to submit this Affidavit with their proposal response will preclude said Proposer from being considered for preference on this solicitation. NON -CCNA- Manual (Revision 6/2008) 14 Item # 16E3 September 23, 2008 Page 25 of 110 Collier County's Remedy for Misrepresentation A vendor who misrepresents the Local Preference status of its firm in a proposal or bid submitted to the County will lose the privilege to claim Local Preference status for a period of up to one year. 11) Instructions for Proposal A) Compliance with the RFP Proposals must be in strict compliance with this RFP. Failure to comply with all provisions of the RFP may result in disqualification. B) Acknowledgment of Insurance Requirements By signing the Insurance Requirements included in this RFP, Proposer acknowledges these conditions include Insurance Requirements. It should be noted by the Proposer that, in order to meet the County's requirements, there may be additional insurance costs to the Proposer's firm. It is, therefore, imperative that the proposer discuss these requirements with the Proposer's insurance agent, as noted on the Insurance Check List, so that allowances for any additional costs can be made by the Proposer. The Proposer's obligation under this provision shall not be limited in any way by the agreed upon contract price, or the Proposer's limit of, or lack of, sufficient insurance protection. Proposer also understands that the evidence of required insurance may be required within five (5) business days following notification of its offer being accepted; otherwise, the County may rescind its acceptance of the Proposer's proposal. The specific insurance requirements for this solicitation are: A. Commercial General Liability: Coverage shall have minimum limits of $500,000 Per Occurrence, Combined Single Limit of Bodily Injury Liability and Property Damage Liability. This shall include Premises and Operations; Independent Consultants; Products and Completed Operations and Contractual Liability. B. Worker's Compensation: Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. C. Professional Liability: Coverage shall have minimum limits of $1,000,000. NON -CCNA- Manual (Revision 612008) 15 Item # 16E3 September 23, 2008 Page 26 of 110 Special Requirements: Collier County and the Value Adjustment Board shall be listed as the Certificate Holder and included as an Additional Insured on the Comprehensive General Liability Policy. Current, valid insurance policies meeting the requirement herein identified shall be maintained by Consultant during the duration of this Agreement. Renewal certificates shall be sent to the Purchasing Department 30 days prior to any expiration date. There shall be a thirty (30) day notification to the County in the event of cancellation or modification of any stipulated insurance coverage. Consultant shall insure that all sub consultants comply with the same insurance requirements that he is required to meet. The same Consultant shall provide the Collier County Purchasing Department with certificates of insurance meeting the required insurance provisions. C) Acknowledgment of Bonding Requirements By signing its proposal, and if applicable, Proposer acknowledges that it has read and understands the bonding requirements for this proposal. Requirements for this solicitation are checked. ® Not Applicable D) Delivery of Proposals All proposals are to be delivered before 3:00 p.m., Naples local time, on or before July 24, 2008 to: Collier County Board of County Commissioners Purchasing Department 3301 Tamiami Trail East, Bldg. "G" Naples, Florida 34112 Attn: Michael F. Hauer, CPPO, CPPB The County shall not bear the responsibility for proposals delivered to the Purchasing Department past the stated date and /or time indicated, or to an incorrect address by proposer's personnel or by the proposer's outside carrier. However, the Purchasing /General Services Director, or designee, shall reserve the right to accept proposals received after the posted close time under the following conditions: • The tardy submission of the proposal is due to the following circumstances, which shall include but not be limited to: late delivery by commercial carrier such as Fed Ex, UPS, DHL, or courier where delivery was scheduled before the deadline. • The acceptance of said proposal does not afford any competing firm an unfair advantage in the selection process. NON -CCNA- Manual (Revision 6/2008) 16 Item # 16E3 September 23, 2008 Page 27 of 110 Proposers must submit one (1) designated original and nine (9) numbered exact copies of the proposal (total of 10). Additionally, one (1) proposal submitted on a CD -ROM in Microsoft Word format is mandatory. List the Proposal Number on the outside of the box or envelope and note `Request for Proposal enclosed." E) Evaluation of Proposals (Procedure) The County's procedure for selecting is as follows: 1. The VAB shall sit as the Selection Committee to review all proposals submitted. 2. Request for Proposals issued. 3. Subsequent to the closing of proposals, the Purchasing Agent and Project Manager shall review the proposals received and verify whether each proposal appears to be minimally responsive to the requirements of the published RFP. In instances where both the Purchasing Agent and Project Manager be appointed to the committee as voting members, such meetings shall be open to the public and the Purchasing Agent shall publicly post prior notice of such meeting in the lobby of the Purchasing Building at least one (1) day in advance of all such meetings. 4. The committee members shall review each Proposal individually and score each proposal based on the evaluation criteria stated herein. 5. Prior to the first meeting of the selection committee, the Purchasing Agent will post a notice announcing the date, time and place of the first committee meeting. Said notice shall be posted in the lobby of the Purchasing Building not less than three (3) working days prior to the meeting. The Purchasing Agent shall also post prior notice of all subsequent committee meetings and shall endeavor to post such notices at least one (1) day in advance of all subsequent meetings. 6. The committee will compile individual rankings, based on the evaluation criteria as stated herein, for each proposal to determine committee recommendations. The committee will permit presentations by the proposers at the selection meeting. The final recommendation will be decided based on review of scores and consensus of committee. The County reserves the right to withdraw this RFP at any time and for any reason, and to issue such clarifications, modifications, and /or amendments as it may deem appropriate. NON -CCNA- Manual (Revision 6/2008) 17 Item # 16E3 September 23, 2008 Page 28 of 110 Receipt of a proposal by the County or a submission of a proposal to the County offers no rights upon the Proposer nor obligates the County in any manner. Acceptance of the proposal does not guarantee issuance of any other governmental approvals. Proposals which include provisions requiring the granting of zoning variances shall not be considered. F) Ambiguity, Conflict, or Other Errors in the RFP If a Proposer discovers any ambiguity, conflict, discrepancy, omission, or other error in the RFP, Proposer shall immediately notify the Purchasing Agent, noted herein, of such error in writing and request modification or clarification of the document. The Purchasing Agent will make modifications by issuing a written revision and will give written notice to all parties who have received this RFP from the Purchasing Department. The Proposer is responsible for clarifying any ambiguity, conflict, discrepancy, omission, or other error in the RFP prior to submitting the proposal or it shall be waived. G) Proposal, Presentation, and Protest Costs The County will not be liable in any way for any costs incurred by any proposer in the preparation of its proposal in response to this RFP, nor for the presentation of its proposal and /or participation in any discussions, negotiations, or, if applicable, any protest procedures. H) Acceptance or Rejection of Proposals The right is reserved by the County to waive any irregularities in any proposal, to reject any or all proposals, to re- solicit for proposals, if desired, and upon recommendation and justification by Collier County to accept the proposal which in the judgment of the County is deemed the most advantageous for the public and the County of Collier. Any proposal which is incomplete, conditional, obscure or which contains irregularities of any kind, may be cause for rejection. In the event of default of the successful proposer, or their refusal to enter into the Collier County contract, the County reserves the right to accept the proposal of any other proposer or to re- advertise using the same or revised documentation, at its sole discretion. 1) Requests for Clarification of Proposals Requests by the Purchasing Agent to a proposer(s) for clarification of proposal(s) shall be in writing. Proposer's failure to respond to request for clarification may deem proposer to be non - responsive, and may be just cause to reject its proposal. NON -CCNA- Manual (Revision 6/2008) is Item # 16E3 September 23, 2008 Page 29 of 110 J) Validity of Proposals No proposal can be withdrawn after it is filed unless the Proposer makes their request in writing to the County prior to the time set for the closing of Proposals. All proposals shall be valid for a period of one hundred eighty (180) days from the submission date to accommodate evaluation and selection process. K) Response Format The proposal shall be deemed an offer to provide services to Collier County. In submitting a proposal, the Proposer declares that he /she understands and agrees to abide by all specifications, provisions, terms and conditions of same, and all ordinances and policies of Collier County. The Proposer agrees that if the contract is awarded to him /her, he /she will perform the work in accordance with the provisions, terms and conditions of the contract. To facilitate the fair evaluation and comparison of proposals, all proposals must conform to the guidelines set forth in this RFP. Any portions of the proposal that do not comply with these guidelines must be so noted and explained the Acceptance of Conditions section of the proposal. However, any proposal that contains such variances may be considered non - responsive. Proposals should be prepared simply and economically, providing a straightforward concise description of the Proposer's approach and ability to meet the County's needs, as stated in the RFP. All copies of the proposal should be bound and tabbed, preferably in a three (3) ring binder for uniformity and ease of handling. The utilization of recycled paper for proposal submission is strongly encouraged. The items listed below shall be submitted with each proposal and should be submitted in the order shown. Each section should be clearly labeled, with pages numbered and separated by tabs. Failure by a proposer to include all listed items may result in the rejection of its proposal. 1) Tab I, Understanding of Scope of Services Provide a cover letter, signed by an authorized officer of the firm, indicating the underlying philosophy of the firm in providing the services stated herein. Include the name(s), telephone number(s), and email(s) of the authorized contact person(s) concerning proposal. Submission of a signed Proposal is Proposer's certification that the Proposer will accept any awards made to him as a result of said submission of the terms contained therein. NON -CCNA- Manual (Revision 6/2008) 19 Item # 16E3 September 23, 2008 Page 30 of 110 2) Tab II, Legal Experience and Knowledge In this tab, include any and all experience in the areas of ad valorem taxation, Florida Homestead Law, and real estate law. Include the number of years devoted to the foregoing areas of practice, if any. Include with the Business Plan or as an attachment, a copy of a report as an example of work product. This should be for one of the projects listed as a reference. 3) Tab 111, Cost of Services to the VAB Proposers shall submit an offer for the services listed, including the submission of a proposed fixed, flat annual fee and an alternate hourly rate. No proposed annual fee in excess of fifteen thousand dollars ($15,000) shall be considered. The VAB reserves the right to select the fee arrangement it deems most beneficial to the VAB. Proposed cost of services shall be full compensation for all services, labor, and equipment. All time spent traveling to and from hearings in excess of one (1) hour will be compensated on an hourly rate basis. 4) Tab IV, Specialized Expertise of Staff Attach resumes of all staff members who will be involved in the delivery of services. The same should be done for any sub - consultants. If sub - consultants are being utilized, letters of intent from stated sub - consultants must be included with proposal submission. 5) Tab V, References Provide a listing of references for all previous board related services during the past three years. The services provided to these clients should have characteristics as similar as possible to those requested in this RFP. Information provided for each client shall include the following: • Client name, address, and current telephone number. • Description of services provided. • Time period of the project or contract. • Client's contact reference name and current telephone number. Failure to provide complete and accurate client information, as specified here, may result in the disqualification of your proposal. The County reserves the right to contact any and all references to obtain, with limitation, ratings for the following performance indicators which include: • On a scale of 1 -10, with 1 being very dissatisfied and ten exceeding your every expectation, how satisfied were you with the firm's performance? • How did they conduct their hearing preparations? NON -CCNA- Manual (Revision 6/2008) 20 Item # 16E3 September 23, 2008 Page 31 of 110 • What do you believe were shortcomings or that they could have done better? • Did they meet your schedule requirements? • How were their communications? What was the quality of their written findings of fact/recommendations? • Did they submit their recommendations in a timely manner? • Would you use this firm again? • Additional comments A uniform sample of references will be checked for each Proposer. Proposers will be scored on a scale of 1 to 10, with 10 being the highest possible score. This score will also be used in determining the score to be given to the "past performance" evaluation factor for each proposal. 6) Tab VI, Acceptance of Conditions Indicate any exceptions to the general terms and conditions of the RFP, and to insurance requirements or any other requirements listed in the RFP. If no exceptions are indicated in this tabbed section, it will be understood that no exceptions to these documents will be considered after the award, or if applicable, during negotiations. Exceptions taken by a proposer may result in evaluation point deduction(s) and /or exclusion of proposal for Selection Committee consideration, depending on the extent of the exception(s). Such determination shall be at the sole discretion of the County and Selection Committee. 8) Tab VIII, Required Form Submittals Value Adjustment Board Attorney Agreement Proposer Check List Conflict Of Interest Affidavit Proposers Qualification Form Declaration Statement Affidavit Claiming Status as a Local Business L) Proposal Selection Committee and Evaluation Factors As previously stated, the VAB shall serve as the Selection Committee to review all proposals submitted. NON -CCNA- Manual (Revision 6/2008) 21 Item # 16E3 September 23, 2008 Page 32 of 110 The factors to be considered in the evaluation of proposal responses are listed below. While the County believes all these items to be of importance, they are ranked and points applied in descending order of importance. Legal Experience and Knowledge 45 Past Experience /References 30 Fee Proposal 15 Local Business Preference 10 Total Points 100 Tie Breaker: In the event of a tie, both in individual scoring and in final ranking, the firm with the lowest volume of work on Collier County projects within the last five (5) years will receive the higher individual ranking. This information will be based on information provided by the Proposer, subject to verification at the County's option. If there is a multiple firm tie in either individual scoring or final ranking, the firm with the lowest volume of work shall receive the higher ranking, the firm with the next lowest volume of work shall receive the next highest ranking and so on. NON -CCNA- Manual (Revision 612008) 22 Item # 16E3 September 23, 2008 Page 33 of 110 ATTACHMENTS THIS SHEET MUST BE SIGNED BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Purchasing Department PROPOSER CHECK LIST I M P O R T A N T: Please read carefully, sign in the spaces indicated and return with your Proposal. Proposer should check off each of the following items as the necessary action is completed: ❑ The Proposal has been signed. ❑ All information as requested in the Proposer's Qualification Form is included. ❑ All applicable forms have been signed and included ❑ Any addenda have been signed and included. ❑ The mailing envelope has been addressed to: Collier County Board of County Commissioners Purchasing Department, Building "G" 3301 Tamiami Trail, East Naples, Florida 34112 Attn: Michael F. Hauer, CPPO, CPPB ❑ The mailing envelope must be sealed and marked with Proposal Number, Proposal Title and Due Date. ❑ The Proposal will be mailed or delivered in time to be received no later than the specified due date and time. (Otherwise Proposal cannot be considered.) ALL COURIER - DELIVERED PROPOSALS MUST HAVE THE RFP NUMBER AND TITLE ON THE OUTSIDE OF THE COURIER PACKET Company Name_ Signature and Title Date _ Email NON -CCNA- Manual (Revision 6/2008) 23 Item # 16E3 September 23, 2008 Page 34 of 110 CONFLICT OF INTEREST AFFIDAVIT By the signature below, the firm (employees, officers and /or agents) certifies, and hereby discloses, that, to the best of their knowledge and belief, all relevant facts concerning past, present, or currently planned interest or activity (financial, contractual, organizational, or otherwise) which relates to the proposed work; and bear on whether the firm (employees, officers and /or agents) has a possible conflict have been fully disclosed. Additionally, the firm (employees, officers and /or agents) agrees to immediately notify in writing the Purchasing /General Services Director, or designee, if any actual or potential conflict of interest arises during the contract and /or project duration. Firm Signature Name Printed Title of Person Signing Affidavit State of ) County of Date SUBSCRIBED AND SWORN to before me this day of , 20, by , who is personally known to me to be the for the Firm, OR who produced the following identification: Notary Public My Commission Expires: NON -CCNA- Manual (Revision 6/2008) 24 Item # 16E3 September 23, 2008 Page 35 of 110 PROPOSERS QUALIFICATION FORM LIST MAJOR WORK PRESENTLY UNDER CONTRACT: % Completed Proiect Contract Amount LIST CURRENT PROJECTS ON WHICH YOUR FIRM IS THE CANDIDATE FOR AWARD: OTHER INFORMATION ABOUT PROJECTS: Have you, at any time, failed to complete a project? ❑ Yes ❑ No STATEMENT OF LITIATION: Are there any judgments, claims or suits pending or outstanding by or against you? ❑ Yes ❑ No If the answer to either question is yes, submit details on separate sheet. List all lawsuits that have been filed by or against your firm in the last five (5) years: FEES: List total fees for work done on all Collier County Government projects in the past five (5) years, whether as an individual firm or as part of a joint venture. Fees must be listed individually by contract or project and then summarized as a total dollar amount. Attach additional page if necessary. Total Fees for work done on all Collier County projects NON -CCNA- Manual (Revision 612008) 25 Item # 16E3 September 23, 2008 Page 36 of 110 REFERENCES: Bank(s) Maintaining Account(s): Surety /Underwriter: (if required Other References: (Use additional sheets if necessary) TYPE OF FIRM: ❑ Corporation/Years in Business: If firm is a corporation, please list state in which it is incorporated: If firm is a corporation, by signing this form, Proposer certifies that the firm is authorized to do business in the State of Florida. ❑ Partnership/Years in Business: __. ❑ Sole Proprietorship/Years in Business: ❑ Other: Please list: Pursuant to information for prospective Proposers for the above - mentioned proposed project, the undersigned is submitting the information as required with the understanding that it is only to assist in determining the qualifications of the organization to perform the type and magnitude of work intended, and further, guarantee the truth and accuracy of all statements herein made. We will accept your determination of qualifications without prejudice. Name of Organization: By: Title: Attested By: Title: Date: NON -CCNA- Manual (Revision 6/2008) 26 Item # 16E3 September 23, 2008 Page 37 of 110 DECLARATION STATEMENT BOARD OF COUNTY COMMISSIONERS Collier County Government Complex Naples, Florida 34112 RE: RFP NO. 08 -5012, "Independent Legal Counsel for the Collier County Value Adjust Board" Dear Commissioners: The undersigned, as Proposer (herein used in the masculine, singular, irrespective of actual gender and number) declares that he is the only person interested in this proposal or in the contract to which this proposal pertains, and that this proposal is made without connection or arrangement with any other person and this proposal is in every respect fair and made in good faith, without collusion or fraud. The Proposer further declares that he has complied in every respect with all the Instructions to Proposers issued prior to the opening of proposals, and that he has satisfied himself fully relative to all matters and conditions with respect to the general condition of the contract to which the proposal pertains. The Proposer puts forth and agrees, if this proposal is accepted, to execute an appropriate Collier County document for the purpose of establishing a formal contractual relationship between him, and Collier County, for the performance of all requirements to which the proposal pertains. The Proposer states that the proposal is based upon the proposal documents listed by RFP #08 -5012. (Proposal Continued on Next Page) NON -CCNA- Manual (Revision 612008) 27 Item # 16E3 September 23, 2008 Page 38 of 110 PROPOSAL CONTINUED IN WITNESS WHEREOF, WE have hereunto subscribed our names on this day of 200_ in the County of , in the State of Firm's Complete Legal Name (Address) (City, State, ZIP) Phone No. Fax No. Typed and Written Signature Check one of the following: ❑ Sole Proprietorship ❑ Corporation or P.A. State of ❑ Limited Partnership ❑ General Partnership Title xxxxx+ x+ xxxxxx+ xx++ x+++++++ x+ x+ xx+ x+ xx+ xx+ x++ x+ xx+ x+ xx+ xxx+ xxxxxxxxx++ x +xx +xx +xxxxxxx + +x +x + + +x + +xxx +xx ADDITIONAL CONTACT INFORMATION Send Payments To: (REQUIRED ONLY if different from above) Contact Name: (Company Name used as Payee) (Address) (City, State, ZIP) Phone No. _ FAX No. _ Email address: Office Servicing Collier County Account /Place Orders /Request Supplies (REQUIRED ONLY if different from above) (Address) Contact Name Phone No. Title (City, State, ZIP) FAX No. Email Address: NON -CCNA- Manual (Revision 6/2008) 28 Item # 16E3 September 23, 2008 Page 39 of 110 AFFIDAVIT FOR CLAIMING STATUS AS A LOCAL BUSINESS ITB /RF P /RFQ #:08 -5012 STATE OF FLORIDA and the COUNTY OF COLLIER PROPOSE R /BIDDR/QUOTER AFFIRMS THAT IT IS A LOCAL BUSINESS AS DEFINED BY THE PURCHASING POLICY OF THE COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AND THE REGULATIONS THERETO. AS DEFINED IN SECTION XI OF THE COLLIER COUNTY PURCHASING POLICY; "Local Business" means a Collier County business that has a valid occupational license issued by Collier County at least one year prior to bid or proposal submission to do business within Collier County that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier County from which the vendor operates or performs business. Post Office Boxes are not verifiable and shall not by used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shall not be considered a "local business" unless it contributes to the economic development and well -being of Collier County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a "local business" under this section. A vendor who misrepresents the Local Preference status of its firm in a proposal or bid submitted to the County will lose the privilege to claim Local Preference status for a period of up to one year. Please provide the following information for the Proposer /Bidder /Quoter: Year Business Established in Collier County: Number of Employees (Including Owner(s) or Corporate Officers): Number of Employees Living in Collier County (Including Owner(s) or Corporate Officers): NON -CCNA- Manual (Revision 6/2008) 29 Item # 16E3 September 23, 2008 Page 40 of 110 If requested by the County, pro poser /bidder /quoter will be required to provide documentation substantiating the information given in this affidavit. Failure to do so will result in proposer /bidder /quoter's submission being deemed not applicable. Proposer /Bidder /Quoter Name Signature Title STATE OF FLORIDA Sworn to and Subscribed Before Me, a Notary Public, for the above State and County, on this Day of 20 Notary Public My Commission Expires: (AFFIX OFFICIAL SEAL) NON -CCNA- Manual (Revision 6/2008) 30 Collier County Florida INSURANCE REQUIREMENTS INSURANCE TYPE REQUIRED LIMITS ® 1. Worker's Compensation Item # 16E3 September 23, 2008 Page 41 of 110 Statutory Limits of Florida Statutes, Chapter 440 and all Federal Government Statutory Limits and Requirements. ® 2. Commercial General Liability Bodily Iniury & Property Damage (Occurrence Form) patterned after the current I.S.O form $500.000 single limit per occurrence 03. Indemnification: To the maximum extent permitted by Florida law, the Contractor/Vendor /Consultant shall indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Contractor/Vendor /Consultant or anyone employed or utilized by the Contractor/Vendor /Consultant in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Collier County. ❑ 4. Automobile Liability $ Each Occurrence Owned /Non- owned /Hired Automobile Included ® 5. Other Insurance as indicated below: Professional Liability $ 1,000,000 Per Occurrence NON -CCNA- Manual (Revision 6/2008) 31 Item # 16E3 September 23, 2008 Page 42 of 110 COLLIER COUNTY FLORIDA INSURANCE REQUIREMENTS (Continued) ® 7. Contractor shall ensure that all subcontractors comply with the same insurance requirements that he is required to meet. The same Contractor shall provide County with certificates of insurance meeting the required insurance provisions. ® 8. Collier County must be named as "ADDITIONAL INSURED" on the Insurance Certificate for Commercial General Liability where required. ® 9. Collier County Board of County Commissioners shall be named as the Certificate Holder. NOTE - -The "Certificate Holder" should read as follows: Collier County Board of County Commissioners Naples, Florida No County Division, Department, or individual name should appear on the Certificate. No other format will be acceptable. ® 10. Thirty (30) Days Cancellation Notice required. ® 11. The Certificate must state the RFP Number and Title. PROPOSER'S AND INSURANCE AGENT'S STATEMENT: We understand the insurance requirements of these specifications and that the evidence of insurability may be required within five (5) days of the award of RFP. Proposer Signature of Proposer Insurance Agency Signature of Proposer's Agent NON -CCNA- Manual (Revision 612008) 32 AGREEMENT THIS AGREEMENT, made and entered into , 2008, by and between this Item # 16E3 September 23, 2008 Page 43 of 110 day of hereinafter called the "Consultant" and Collier County, a political subdivision of the State of Florida, and the District School Board of Collier County, hereinafter collectively called the "Value Adjustment Board" (VAB). WITNESSETH: 1. COMMENCEMENT. This Agreement shall be for a one (1) year period, commencing on date of approval by the Board of County Commissioners, and the District School Board of Collier County, and terminating one year from that date. The VAB, at its discretion, shall have the option to renew this contract after the initial term for two (2) additional one (1) year terms. Such renewal shall be under the same terms and conditions. If any change in conditions is negotiated, said renewal will be contingent upon written approval of the Collier County Purchasing Department. 2. STATEMENT OF WORK. The Consultant shall provide Legal Counsel Services in accordance with the Scope of Services of RFP 08 -5012 "Independent Legal Counsel for Value Adjustment Board" and the Consultant's proposal hereto attached and incorporated herein by reference, as well as additional services as required and mutually agreed upon in writing by the Value Adjustment Board and Consultant. 3. COMPENSATION. The VAB shall pay the Consultant for the performance of this Agreement on a fixed fee basis, or on an hourly basis after receipt of an itemized statement of services, in accordance with the cost proposal submitted in response to RFP 08 -5012. The parties hereto will agree to the frequency of any periodic payments. Payments shall be made to the Consultant when an invoice or statement of hourly services is received by the Clerk to the VAB. Consultant agrees to pay for ordinary expenses incurred, including, but not limited to, costs of mailing, copies, facsimiles, telephone expenses, document delivery (e.g., FEDEX, etc.) and secretarial services. Ordinary expenses as used herein shall not include the mailing or copying expense of materials for mass dissemination. However, the parties hereto may agree to include additional expenses or services in this Agreement. 4. NOTICES. All notices from the VAB to the Consultant shall be deemed duly served if mailed or faxed to the Consultant at the following Address: telephone: NON -CCNA- Manual (Revision 6/2008) 33 Item # 16E3 September 23, 2008 Page 44 of 110 Facsimile: Cell: All Notices from the Consultant to the VAB shall be deemed duly served if mailed or faxed to: Clerk of the Circuit Court, as Clerk to the VAB Harmon Turner Building, 4th Floor 3301 Tamiami Trail, East Naples, Florida 34112 Tele: (239) 252 -8399 Fax: (239) 252 -8408 The Consultant and the VAB may change the above mailing address at any time upon giving the other party written notification. All notices under this Service Agreement must be in writing. 5. NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a partnership between Collier County or the District School Board and the Consultant or to constitute the Consultant as an agent of Collier County or the District School Board. 6. PERMITS: LICENSES: TAXES. In compliance with Section 218.80, Fla. Stats, all permits necessary for the prosecution of the Work shall be obtained by the Consultant. Payment for all such permits issued by the County and all non - County permits necessary for the prosecution of the Work shall be procured and paid for by the Consultant. The Consultant shall also be solely responsible for payment of any and all taxes levied on the Consultant. In addition, the Consultant shall comply with all rules, regulations and laws of Collier County, the State of Florida, or the U.S. Government now in force or hereafter adopted. The Consultant agrees to comply with all laws governing the responsibility of an employer with respect to persons employed by the Consultant. 7. NO IMPROPER USE. The Consultant will not use, nor suffer or permit any person to use in any manner whatsoever, county facilities for any improper, immoral or offensive purpose or for any purpose in violation of any federal, state, county or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Con- sultant or if the VAB or its authorized representative shall deem any conduct on the part of the Consultant to be objectionable or improper, the VAB shall have the right to suspend the contract of the Consultant. Should the Consultant fail to correct any such violation, conduct, or practice to the satisfaction of the VAB within twenty -four (24) hours after receiving notice of such violation, conduct, or practice, such suspension to continue until the violation is cured NON -CCNA- Manual (Revision 6/2008) 34 Item # 16E3 September 23, 2008 Page 45 of 110 8. TERMINATION. Should the Consultant be found to have failed to perform his services in a manner satisfactory to the County as per the requirements of this Agreement, the VAB may terminate said agreement immediately for cause; further the VAB may terminate this Agreement for convenience with a thirty (30) day written notice. The VAB shall be sole judge of non - performance. 9. CONTINUED REPRESENTATION. In the event suspension or termination occurs, Consultant agrees that s /he will continue representation of the VAB as needed to make determinations regarding the suspension, and /or until such time as a replacement counsel can be appointed by the VAB in compliance with 194.015, Fla, Stat. 10. NO DISCRIMINATION. The Consultant agrees that there shall be no discrimination as to race, sex, color, creed or national origin. 11. INSURANCE. The Consultant shall provide insurance as per the requirements outlined in RFP #08 -5012 as follows: A. Commercial General Liability: Coverage shall have minimum limits of $500,000 Per Occurrence, Combined Single Limit of Bodily Injury Liability and Property Damage Liability. This shall include Premises and Operations; Independent Consultants; Products and Completed Operations and Contractual Liability. B. Worker's Compensation: Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. C. Professional Liability: Coverage shall have minimum limits of $1,000,000. Special Requirements: Collier County and the Value Adjustment Board shall be listed as the Certificate Holder and included as an Additional Insured on the Comprehensive General Liability Policy. Current, valid insurance policies meeting the requirement herein identified shall be maintained by Consultant during the duration of this Agreement. Renewal certificates shall be sent to the Purchasing Department 30 days prior to any expiration date. There shall be a thirty (30) day notification to the County in the event of cancellation or modification of any stipulated insurance coverage. Consultant shall insure that all sub consultants comply with the same insurance requirements that he is required to meet. The same Consultant shall provide the Collier County Purchasing Department with certificates of insurance meeting the required insurance provisions. 12. INDEMNIFICATION. The Consultant, in consideration of One Hundred Dollars ($100.00), the receipt and sufficiency of which is accepted through the signing of this document, shall hold harmless and defend Collier County and the VAB, and NON -CCNA- Manual (Revision 6/2008) 35 Item # 16E3 September 23, 2008 Page 46 of 110 its agents and employees from all suits and actions, including attorneys' fees and all costs of litigation and judgments of any name and description arising out of or incidental to the performance of this contract or work performed thereunder. This provision shall also pertain to any claims brought against the County and the VAB by any employee of the named Consultant, and Sub consultant, or anyone directly or indirectly employed by any of them. The Consultant's obligation under this provision shall not be limited in any way by the agreed upon contract price as shown in this Contract or the Consultant limit of, or lack of, sufficient insurance protection. The first One Hundred Dollars ($100.00) of money received on the contract price is considered as payment of this obligation by the County. This section does not pertain to any incident arising from the sole negligence of the County or the VAB. 12. CONTRACT ADMINISTRATION. This Agreement shall be administered by the Clerk to the VAB and the Collier County Purchasing Department. 13. COMPONENT PARTS OF THIS CONTRACT. This Contract consists of the attached component parts, all of which are as fully a part of the contract as if herein set out verbatim: Consultant's Proposal, Insurance Certificate(s), RFP 08- 5012, "Independent Legal Counsel for Value Adjustment Board ". 14. AMENDMENT. This Agreement can only be amended in a writing executed by all parties in the same manner as this original Agreement. IN WITNESS WHEREOF, the undersigned parties have each by an authorized person or agent, hereunder set their hands and seals on the date and year first above written. DATED: BOARD OF COUNTY COMMISSIONERS OF ATTEST: DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA la Approved as to form and legal sufficiency: Assistant County Attorney Tom Henning , Chairman NON -CCNA- Manual (Revision 6 /2008) 36 WITNESSES: (1) Signature Printed/Typed Name (2) Signature Printed /Typed Name WITNESSES: (1) Signature Printed/Typed Name (2) Signature Printed/Typed Name Item # 16E3 September 23, 2008 Page 47 of 110 COLLIER COUNTY DISTRICT SCHOOLBOARD By: Robert C. Spencer, Financial Officer CONSULTANT By: Signature Typed signature and title CORPORATE SEAL (Corporation only) NON -CCNA- Manual (Revision 6/2008) 37 Tab I, Understanding of Scope / Philosophy of Engagement BOND, SCHOENECK & KING, P.A. ATTORNEYS AT LAW • FLORIDA KANSAS NEW YORK July 23, 2008 Value Adjustment Board c/o Michael F. Hauer, CPPO, CPPB Collier County Purchasing Department 3301 Tamiami Trail East, Building G Naples, FL 34112 Re: Response to Collier County RFP #08 -5102 Independent Legal Counsel for the Collier County Value Adjustment Board Tab 1, Understanding of Scope -- Item # 16E3 September 23, 2008 Page 48 of 110 Gentlemen: Pursuant to Request for Proposal 908 -5102, please accept this letter as Bond, Schoeneck & King's statement indicating that we understand the requirements of the services as stated in the Request for Proposal. The name, telephone number and email address of the authorized contact person concerning our Proposal is F. Joseph McMackin III Telephone: (239) 659 -3861 Email: jmcmackin @bsk.com Bond, Schoeneck & King has been practicing law in Collier County for over 30 years and throughout that time has provided quality legal services to a number of local government agencies. We understand that government service is both a privilege and a responsibility. Should we be awarded the contract to act as independent counsel for the Value Adjustment Board, we acknowledge that our responsibilities to the Board would be grave. Given the public nature of government practice and the media scrutiny that the proceedings of the Value Adjustment Board are likely to experience in 2008, we are ready to assist and advise with complete dedication. The combination of the state - mandated rollback of the millage rate and the decline in market value of property in Collier County will likely lead to a tumultuous 2008 year-end for the Board. Our firm is committed to providing the Board with the kind of legal advice and service it needs to weather this storm and to demonstrate to the public that the Value Adjustment Board is administering a valuable, unbiased and transparent service to the property owners and citizens of Collier County. In the event we receive the award under RFP #08 -5102, we will accept the assignment in accordance with the terms contained in Bond, Schoeneck & King's response included herein. Thank you, I am Sincerely yours, BO OENECK & KING, P.A. F. seph McMac in'k III Direct: 239.659.3861 jmcmackin@bsk.com FJM:jch 4001 Tamiami Trail North, Suite 250, Naples, FL 34103 -3555 • Phone: 239- 659 -3800 - Fax: 239 - 659 -3812 • www.bsk.com I - 252724.1 7/23/2008 Item # 16E3 Se tmber 23, 2008 Tab II, Legal Experience and Knowledge Page 49 of 110 F. JOSEPH McMACKIN, III I Mr. McMackin is a graduate of Wesleyan University (B.A., 1968) and the University of Miami School of Law (J.D., 1973). He has practiced in Collier County for 35 years. He is "A" rated and listed among "The Best Lawyers in America." His government clients include The City of Naples Airport Authority and the Collier Mosquito Control District. Mr. McMackin is President of the Collier County Museum, President of the Board of Trustees, TECH /Sunrise Opportunities of Collier County. Mr. McMackin is the senior partner of the Firm and, having practiced real estate law in Collier County since 1973, Mr. McMackin has examined title to virtually every subdivision and community. In his career representing governments, buyers, sellers and lenders, he has encountered and resolved almost every conceivable real property issue. In conjunction with his real estate practice, Mr. McMackin has addressed the Florida Homestead Law, both in real estate transactions and in probate administration, to ensure marketable title to land in the grantee or the heir. Ad valorem tax matters have been dealt with in numerous transactions from the garden variety residential context to large commercial projects and developments and in zoning matters in both the County and City. Mr. McMackin was formerly General Counsel to the Barnett Bank of Naples and a member of its Board of Directors. His practice focuses on Real Estate, Government Law and Litigation. 4001 Tamiami Trail North Suite 250 Naples, FL 34103 -3555 Direct: 239 - 659 -3861 Fax: 239 - 659 -3812 E -Mail: jmcmackin @bsk.com Web: www.bsk.com BOND, SCHOENECK & KING, P.A. ATTORNEYS AT LAW • FLORIDA KANSAS NEW YORK -2- 248667.1 7/22/2008 Tab II, Legal Experience Bond, Schoeneck & King, P.A. 4001 Tamiami Trail North Suite 250 Naples, FL 34103 -3555 Telephone: 239.659.3800 Fax: 239.659.3812 www.bsk.com BOND, SCHOENECK & KING FIRM OVERVIEW Item # 16E3 September 23, 2008 Page 50 of 110 The law firm of Bond, Schoeneck & King (BS &K) was established in New York in 1897 and in Collier County, Florida in 1978 and includes 175 lawyers. In addition to two Southwest, Florida offices in Naples and Bonita Springs, we have nine offices located throughout New York and an office in Overland Park, Kansas. BS &K is comprised of five major departments, which includes Business, Real Property, Litigation, Labor and Employment; and, Taxation. In addition, there are twenty -five practice and industry groups. BS &K's practice is a blend of the sophisticated legal work, encountered by large metropolitan law firms, and the more personal legal problems associated with family and privately owned businesses common in mid to small city environments. Our clients include agribusinesses, banks, colleges and universities, construction companies and developers, energy suppliers, engineering firms, entrepreneurs and inventors, large and small family businesses, government development authorities, health care facilities, insurance companies, manufacturers, media corporations, municipalities, natural resource companies, not -for profit organizations, physicians and physician practice groups, retailers, school districts, technology -based companies, transportation companies, and utilities, as well as individuals. -3- 252036.16/26/2008 Item # 16E3 September 23, 2008 Page 51 of 110 ( 1111 BOND, SCHOENECK & KING, P.A. ATTORNEYS AT LAW • FLORIDA KANSAS NEW YORK MEMORANDUM TO: Board of Commissioners City of Naples Airport Authority FROM: Bond, Schoeneck & King, P.A. Kaplan Kirsch & Rockwell LLP Theodore D. Soliday, Executive Director DATE: September 27, 2007 SUBJECT: Legal and Practical Implications of Intensifying Compliance with Nighttime Aircraft Operations Limitations at the Naples Municipal Airport I. INTRODUCTION At its June 2007 meeting, the City of Naples Airport Authority (the "Authority ") Board of Commissioners (`Board ") directed its two law firms and Authority staff to set forth the legal issues involved and to identify options to further limit nighttime operations at the Naples Municipal Airport ( "Airport" or "APF "). Nighttime operations presently are discouraged and currently constitute approximately two percent (2 %) of total operations at APF. This Memorandum identifies and evaluates options available to the Authority to further reduce nighttime operations by promoting greater adherence to the voluntary curfew or through new measures. Section III contains background information on the Authority's current efforts to discourage nighttime operations. Section IV examines in detail the main legal requirements and standards that may apply to actions by the Authority to further limit nighttime operations. Specifically, we have examined the potential applicability of the Airport Noise and Capacity Act of 1990, the grant assurances, tort principles, and requirements imposed through the Airport Operating Certificate and State of Florida license. Section V identifies and evaluates specific alternatives. Attached to this Memorandum is a table summarizing efforts by other airport proprietors to discourage nighttime operations. 4001 Tamiami Trail North, Suite 250, Naples, FL 34103 -3555 x Phone: 239- 659 -3800 • Fax: 239- 659 -3812 • www.bsk.com 4 243399.5 7122/2008 Item # 16E3 September 23, 2008 Page 52 of 110 Il. SUMMARY AND RECOMMENDATIONS The Authority's past and present efforts to discourage nighttime operations appear to be working. These efforts include but are not limited to the voluntary curfew itself and public notices of its existence, coordination with aircraft owners and operators, limitations on nighttime services, and public education. Many of the nighttime operators have a compelling reason to operate at night, such as Mosquito Control, Collier County Sheriff and emergency medical services. Moreover, nighttime operations by Delta/ASA were part of their providing an important service to the Naples community, and any new commercial airline may have a similar mandate from its passengers. Nevertheless, the Board has signaled an interest in further reducing nighttime operations, particularly of those flights that could occur during the day or evening. There exists a broad array of steps that the Authority could take, each with attendant benefits and risks. We presume that the Authority is risk averse in light of the relatively low level of nighttime operations. For example, we assume that the Authority is not interested at this time in initiating another FAA Part 161 Study to consider a restriction on operations. We thus do not recommend actions to convert the voluntary curfew to a mandatory curfew, such as by attempting to impose fines for nighttime operations. The Federal Aviation Administration ( "FAA ") has taken a somewhat broad view of ANCA's scope in light of its perception of congressional intent. Therefore, we similarly would not recommend actions, such as closing the General Aviation Terminal or other Airport facilities, that the FAA would consider to be tantamount to a restriction on operations. The options considered in detail in this Memorandum include: • Further communication with and education of pilots about the voluntary curfew • Further communication with City and County residents to reduce demand for nighttime flights • Publicizing the identity of nighttime operators and/or their passengers • Restructuring rates and charges to reflect higher operating costs at night • Enhancing the requirement to provide advance notice of nighttime operations • Altering airfield lighting • Further limiting aeronautical services available at night, along with implementing physical limitations on their use Based on our assessment, we submit that the Authority should give serious consideration to increased communications, publishing the names of nighttime operators and/or passengers, and increasing rates and charges to a level that better reflect higher nighttime operating costs. The FAA is unlikely to consider these actions to be subject to ANCA or to declare these actions to be unreasonable or unjustly discriminatory. We recognize that these actions may result in only modest reduction in nighttime operations. 243399.57/2212009 Item # 16E3 September 23, 2008 Page 53 of 110 We recommend that the Authority explore these options and gauge their efficacy before turning to other options examined herein. We believe that the other options are supportable but present greater risk. III. BACKGROUND In 2000, the Board approved the following amendment to the Rules and Regulations for the Airport: "Voluntary cessation of flight operations by Stage 3 Jet Aircraft from 10:00 p.m. to 7:00 a.m. (Revised from Airport Regulation enacted 5 -15 -96 and proposed amendment 01 -01- 01)." The amendment is found in the Airport Rules and Regulations in Section 5, "Aeronautical Activities," at 5.06 C 2, and became effective on January 1, 2001. The "Recommended Jet Arrival & Departure Procedures" prepared by the Authority and distributed to all pilots at the Airport contains the following provision: "The Naples Airport Authority would like to strongly discourage users from operating at the Airport during the Voluntary Curfew from 10:00 p.m. to 7:00 a.m." Noise abatement information is provided on the Airport's website. The curfew is voluntary, and there are no penalties for an aircraft owner or operator who lands or departs during the curfew hours, the Authority has taken a number of steps to discourage nighttime operations. Many of the measures focus on informing Airport users and Naples residents about the voluntary curfew. For instance, the Authority distributes flyers about the curfew to its tenants, places signs on the airfield and in the terminals, publishes information on the curfew in Jeppesen flight manuals, provides information at National Business Aviation Association meetings, and publishes information on its website. The Authority has, on at least one occasion, sent a letter to local property owners associations asking them to provide information to their members about the voluntary curfew through their newsletters and resident bulletin boards. These serve to educate the public about the voluntary curfew and may reach pilots and potential passengers on nighttime flights. The Authority undertakes a number of other preventive measures to reduce nighttime operations and its effects: The Authority publishes recommended arrival and departure routes for those operating during curfew to minimize impacts to noise sensitive areas. The air traffic control tower at the Airport is only operational from 6:00 a.m. to 10:00 p.m., although the nighttime closure is not necessarily a deterrent to nighttime operations because aircraft can be guided in by regional air traffic controllers. The tower is open during the period between 6:00 a.m. and 7:00 a.m. The Authority imposes a surcharge for aircraft to fuel during the hours of the voluntary curfew and only provides fuel for government aircraft and aircraft subject to fractional ownership that are being repositioned to other airports. 243399.5 712212008 Item # 16E3 September 23, 2008 Page 54 of 110 • The Authority requests that operators provide advance notice to the Authority when they will be operating during the voluntary curfew hours; however, this requirement is not published on the Airport's website or in the Airport/Facility Directory. The Authority also communicates with aircraft owners and pilots who operate at night to reduce the chances they will continue to do so. For example, aircraft arriving during the voluntary curfew are greeted by an Authority staff member who presents the pilot with information about the voluntary curfew. Staff sends letters to operators of jet aircraft who arrive during curfew and generate a complaint; the letters explain the voluntary curfew and the fact that a complaint was received about that operation. Authority staff calls nighttime operators who fail to adhere to the curfew more than once, even if no complaint was received about that operation, to encourage adherence. Airport staff members do not, however, contact the Collier County Sheriff or the Collier Mosquito Control District when they operate at night, because these entities' flights are presumed to be necessary for public health and safety. Finally, Airport staff members track nighttime operations and compile information about those operations on a monthly chart, which is available to the public upon request. The chart includes the type of aircraft, tail number, the runway used by the aircraft, and the time of the operation. The Authority's Quarterly Noise Reports identify the number and types of operations that occur at night. The current Quarterly Noise Report available on Authority's website is for the period of January 1, 2007 through March 31, 2007 ( "Quarterly Noise Report Number 41 "). The Report shows that two percent (2 %) of total operations occur at night, but also shows an increase in nighttime operations at the Airport during the first quarter compared to the previous year. The Report states: Reported nighttime operations have increased by 18% when compared to the same time last year; even though air carrier operations and general aviation jet traffic has seen a significant reduction of twelve percent (12 %). Single and Multiengine aircraft operations have increased by 47 %. Public Service operations represent 18% of the activity occurring at night and have increased fifty -five percent (55 %). Nighttime operations accounted for two percent (2 %) of the overall operations for the Second Quarter of 2007. Quarterly Noise Report Number 41 at p. 5. Two tables from the Noise Report are presented below. The first is a summary of nighttime operations shown by quarter for the fiscal year and broken down by type of operator. The second shows nighttime operations by percentage of overall operations for five years (2002- 2006). 7 243399.5 7122/2008 Item # 16E3 September 23, 2008 Page 55 of 110 Noise Report Table II: Quarterly Air Traffic Nighttime Operations Summary - by Fiscal Year Activity 2 nd 2006 3` 2006 4 2006 1S 2007 2" 2007 Jets 0 22 74 10 2 Air Ambulance 8 2 3 5 5 Air Carrier 105 85 64 76 10 GA 296 181 72 153 343 Subtotal Jets 409 268 139 234 358 Single & Multi - engine 279 345 314 249 409 (include air carrier & GA) Public Service Total Operations Night Operations % of Night Ops % of Jet Night Mosquito Control Operations 0 22 74 10 2 Collier Sheriff's Office 95 121 110 109 136 EMS 13 35 10 12 33 Coast Guard 2 0 0 0 0 Subtotal Public Service 110 178 194 131 171 Total 798 791 647 614 938 Noise Report Table II A: Fiscal Year Percentage of Nighttime Operations Fiscal Year Total Operations Night Operations % of Night Ops % of Jet Night Ops 2002 138,790 3,626 3% 21% 2003 112,308 3,170 3% 23% 2004 136,128 3,361 2% 23% 2005 163,434 3,130 2"/0 34 %* 2006 137,908 2,935 2% 38 %* * Delta began CRJ service in FY05. They had 328 nighttime operations in FY 05 and 352 nighttime operations in FY 06. Without Delta's operations, the percentage of jet night operations in FY05 would have been twenty -four percent (24 %) of the total nighttime operations and twenty -six percent (26 %) of the total in FY 06. Two trends are noteworthy. First, the percentage of operations occurring at night appears to have declined slowly and steadily from a high in 2002. Second, excluding Delta/Atlantic Southeast Airline ( "ASA ") flights, the percentage of nighttime operations undertaken by jet aircraft has increased only slightly. As stated in the Report and displayed in Table II, nighttime operations include military operations, mosquito control operations, and air ambulance operations. The number also includes the ASA flights to the Airport, which Delta will discontinue on October 1, 2007. ( 8 243399.5 7/2212 00 8 Item # 16E3 September 23, 2008 Page 56 of 110 Assuming that this service is not replaced with another nighttime operation, this will reduce the number of nighttime operations by over 300, based on past levels. The nature of Naples' operations makes further reductions challenging. It is undesirable that the Authority reduce nighttime public service flights. Many of the remaining nighttime flights, certainly by jets, are by aircraft fractionally owned and operated pursuant to FAR Part 91 Subpart K. Passengers seek to arrive and depart at times most convenient, including during the night. Because of the structure of fractional ownership, these passengers tend to be less identifiable than the owners and operators of other aircraft. Further, operators of fractionally - owned aircraft have a financial imperative to reposition aircraft to maximize their use, which may lead to two nighttime operations, an arrival and departure. IV. LEGAL REQUIREMENTS AND STANDARDS A. ANCA and Part 161 The Airport Noise and Capacity Act, 49 D.S.C. § 47521 et seg., and its implementing regulations, 14 C.F.R. Part 161, limit the ability of airport sponsors to restrict aircraft operations. The statute and regulations impose onerous requirements that must be satisfied prior to implementing certain types of noise rules. Failure to comply with the requirements can result in termination of eligibility for federal grants or to impose Passenger Facility Charges. 49 D.S.C. § 47526. As defined by Part 161: Noise or access restrictions means restrictions (including but not limited to provisions of ordinances and leases) affecting access or noise that affect the operations of Stage 2 or Stage 3 aircraft, such as limits on the noise generated on either a single -event or cumulative basis; a limit, direct or indirect, on the total number of Stage 2 or Stage 3 aircraft operations; a noise budget or noise allocation program that includes Stage 2 or Stage 3 aircraft; a restriction imposing limits on hours of operations; a program of airport-use charges that has the direct or indirect effect of controlling airport noise; and any other limit on Stage 2 or Stage 3 aircraft that has the effect of controlling airport noise. This definition does not include peak -period pricing programs where the objective is to align the number of aircraft operations with airport capacity. 14 C.F.R. § 161.5. The definition does not clearly establish what constitutes a noise or access restriction, particularly because of the references to indirect effects on noise. A mandatory restriction or requirement limiting the operation of Stage 2 or Stage 3 aircraft is subject to ANCA and Part 161. Voluntary recommendations are not subject to ANCA and Part 161. FAA considers both the effect and intent of an airport sponsor's actions. Where an action taken by an airport sponsor appears intended to restrict operations or control noise, the FAA may conclude that the measure is subject to ANCA. The FAA's determination would be given deference by a reviewing court. The FAA has an interest in providing only limited guidance on 243399.5 7/2212008 Item # 16E3 September 23, 2008 Page 57 of 110 this topic in order to preserve its prosecutorial discretion and determine each case in light of its facts. Examples of FAA's treatment of measures proposed and implemented at other airports is instructive. First, the FAA declared that a weight limit implemented by the Omaha Airport Authority ( "OAA ") was not a noise or access restriction subject to ANCA and Part 161. FAA stated, "There [was] no evidence that the OAA used the change in standards by the FAA as a pretext for imposing an airport noise or access restriction. Since the limitation was not imposed to control noise or limit access, it is not a noise or access restriction within the meaning of ANCA." Letter from C. Rich, FAA Associate Administrator for Airports, to R. Studenny (April 7,1995).]' Several other opinion or investigatory letters from the FAA on the scope of ANCA and Part 161 addressed thinly veiled attempts by airports to control noise and limit nighttime flights. Where the reasoning given for the rule does not comport with its effect, the FAA will generally find that the rule is a noise or access restriction. For example, the FAA addressed the Albany County Airport's proposed resolution to establish quiet hours between 11:00 p.m. and 6:00 a.m. "to ease an existing noise problem to area residents caused by 'maintenance and/or testing of aircraft engines. "' Letter from L. DeRose, Manager FAA Airports Division, to H. Goldstock, Operations Coordinator, Albany County Airport (Sept. 11, 1992) (emphasis in original). The proposed resolution stated that "no aircraft engine shall be started or operated" during those hours. The FAA stated its concern that the resolution was overbroad if the County's concern was really with maintenance and testing. The FAA has also made clear that it will scrutinize operational and procedural mechanisms that operate as noise or access restrictions. In considering a proposal to close the passenger terminal at the Bob Hope Airport (Burbank, California) at night, the FAA advised that actively barring use of the terminal would turn a voluntary curfew into a mandatory one and would require compliance with Part 161. Letter from J. Garvey, FAA Administrator, to Mayor Murphy (March 24, 2000). The FAA also raised concern, without taking a definitive position, regarding Westchester County's practice to close the parking garage at the Westchester County Airport (New York) to arriving passengers during the hours of the airport's voluntary curfew. Letter from P. Galis, FAA Deputy Associate Administrator for Airports, to A. Spano, County Executive, Westchester ' An airport user, Millard Refrigerated Services ( "MRS "), also filed a formal complaint against the OAA. See Millard Refrigerated Servs., Inc. v. FAA, 98 F.3d 1361 (D.C. Cir. 1996). MRS "made a number of charges against the OAA in connection with the OAA's decision to bar heavy aircraft:, including MRS's corporate jet, from using Millard Airport, located outside Omaha." Millard, 98 F.3d at 1361. The FAA dismissed MRS's complaint, and the D.C. Circuit considered MRS's claim that the FAA should have interpreted ANCA and Part 161 to apply to the OAA's decision "because it constitutes a restriction on airport use that affects quiet aircraft:, whether or not the restriction was intended to limit airport noise." Id. MRS argued that ANCA and its implementing regulations must apply to restrictions on stage 3 aircraft: whether direct, indirect, intentional or incidental. Id. at 1363. Rather than opining on this issue, the D.C. Circuit determined that the FAA failed to resolve this issue in ruling on MRS's ( complaint, and it remanded the case to the FAA to resolve the issue. Id. at 1364. FAA did not make any further findings in this case on remand. 10 243399.5 7/22/2000 Item # 16E3 September 23, 2008 Page 58 of 110 County (July 5, 2001). Westchester County abandoned this practice before the FAA issued a formal opinion. Drawing on these examples provides some guidance in determining what actions the FAA may consider to be noise or access restrictions. While it is clear that the passing of resolutions or ordinances and/or the inclusion of lease provisions that attempt to limit aircraft operations directly will be viewed as noise or access rules, it is less clear what procedural or operational measures fit within the statute's scope. As stated above, the FAA would probably view closing the terminal or other airport facility during the voluntary curfew as a noise or access restriction requiring compliance with Part 161, because although the closure has no effect on aircraft operations, it would make the use of the Naples Airport more difficult for passengers. Additionally, any measure that made use of the Airport so difficult or inconvenient for passengers as to be like the closure of a facility may also be considered a noise or access restriction. Measures that are meant to discourage nighttime operations, but do not actually forbid or impose serious obstacles to such operation, may be permissible. We attempt to make this distinction more concrete as we explore options for discouraging nighttime use below. The Authority's history of conflicts with the FAA may make any actions taken by the Authority particularly suspect and subject to close scrutiny. Simply put, it will be harder for the Authority to take steps relating to the voluntary curfew than other airports without the Authority's history of aggressive noise control and community protection. B. Grant Assurances Separate from the FAA's consideration of whether an airport's action is subject to ANCA, the FAA may determine that the action runs afoul of the grant assurances as an unreasonable limit on access to the Airport. Specifically, Grant Assurance 22 provides that an airport sponsor "will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport." Grant Assurance 22(a). The FAA has explicitly stated that "[ whhether or not ANCA applies, the airport sponsor has a separate obligation under its AIP grant assurances not to impose a restriction if it is unreasonable or unjustly discriminatory." Letter from D. Bennett, Director of FAA Airport Safety and Standards, to R. Tonseth, Director of Aviation, City of San Jose (Oct. 2, 2003) .2 The FAA advised: The FAA uses a three -part test to determine the reasonableness of a proposed new access restriction under the AIP grant assurances, based on the provisions of 14 C.F.R Part 150 and implementing guidance. The FAA reviews a proposed restriction to determine if it addresses an actual noise problem; if the proposed 2 In its letter, the FAA found that the City's proposal to restructure its curfew from a weight -based to a noise -based curfew did not trigger ANCA requirements because the curfew was grandfathered under ANCA and the restructured ordinance did not further reduce or limit aircraft operations. Id. ( "When ANCA was passed, it permitted airports to implement Stage 2 restrictions that were proposed and Stage 3 restrictions that were in effect before its effective date. These airport noise and access restrictions are'grandfathered' under ANCA. "). 11 243399.57/22/2009 Item # 16E3 September 23, 2008 Page 59 of 110 noise restriction is reasonably effective in addressing that problem; and if the airport sponsor has used an approach to the problem that fairly balances the local and national interests. Id Employing this test, the FAA determined it was "reasonable and not unjustly discriminatory, within the meaning of Grant Assurance No. 22, for the City to adopt an alternate noise mitigation rule that achieves the same noise mitigation benefits as the rule replaced." Id. In considering the Authority's Stage 2 ban, the D.C. Circuit found that the FAA retained power to withhold grants, independent of ANCA, when an airport sponsor imposes an unreasonable restriction. City of Naples Airport Authority v. FAA, 409 F.3d 431,434 -35 (D.C. Cir. 2005). The court found that there had to be substantial evidence supporting the agency's ruling that the restriction was unreasonable, which was absent in the case of Naples Stage 2 ban. Id. at 436. Although the FAA historically has employed its three -part test for mandatory restrictions, the test would apply equally to other terms and conditions limiting access to the Airport. It seems doubtful that action taken by the Authority and subjected to this test could survive the first and second prongs: the existence of an actual noise problem and effectiveness in addressing the problem. Through the Stage I and Stage 2 bans, the Authority has eliminated all land uses that are incompatible according to FAA standards and most land uses under local standards. Although nighttime noise may be annoying on an individual basis, further restricting the already limited numbers of nighttime operations is not likely to affect cuinulative noise exposure. This would affect the FAA's application of the third prong, the balancing test, since the negative effects on access to the Airport, which the FAA values highly, will be measured against the limited noise benefits. We caution that the litigation over the Stage 2 ban may make the FAA less objective in considering actions by the Authority to further limit nighttime operations. C. Tort Liability The State of Florida has waived sovereign immunity for torts for itself and its agencies and subdivisions, including municipalities, and may be liable for torts in the same manner as a private individual. FLA. STAT. ANN. § 768.28. The Florida Supreme Court has determined that operation of an airport is a proprietary, not a governmental, function, requiring the airport proprietor to take the same care in maintaining its property as anyone else who provides services to the public. Peavey v. City of Miami, 146 Fla. 629, 636 -37 (Fla. 1941). In Peavey, the plaintiffs, who were a pilot and an aircraft owner, sued the City of Miami in negligence for personal injuries and damage to the aircraft, alleging that the City carelessly maintained and operated the municipal airport causing injuries to the plaintiffs. Id. at 631 -32. The court found that in operating an airport, the City was exercising a proprietary function because of the commercial character of the enterprise and the fact that it generates revenue. Id. at 636 -37. 12 243399.5 712212008 Item # 16E3 September 23, 2008 Page 60 of 110 Accordingly, the City was "required to exercise the same degree of care in the maintenance of its property as is imposed upon others who undertake to render services or furnish accommodations to the public." Id. at 637 (emphasis added). Specifically, the City had the duty "to see that the airport was safe for aircraft and to give proper warning of any danger of which it knew or ought to have known; and the defendant had the 'duty to keep the runways free from obstructions, so far as possible, or to place markers warning pilots of danger. "' Id. at 637 -38 (quoting 6 Am. Jur. 11, Aviation, Sec. 14). The courts have looked to FAA regulations and advisory circulars as evidence of the standard of care in the aviation - specific elements of airport operations. See e.g., Abrisch v. United States, 359 F.Supp.2d 1214, 1216 (M.D. Fla. 2004) (court considered the Air Traffic Control Manual as evidence of the standard of care in the industry). Cases from other jurisdictions are also instructive in understanding when airport proprietors may be liable in tort for accidents or incidents. See, e.g., Safeco Ins. Co. ofAm. v. City of Watertown, 529 F .Supp. 1220, 1226 (D. S.D. 1981) ( "the operator of a public airport has a duty independent of federal statutes and regulations to the pilots using the airport to use reasonable care to keep the airport free from hazards, or at least use reasonable care to warn of hazards not known to the pilots "); Anderson v. Alberto - Culver USA, Inc., 740 N.E.2d 819 (I11. App. Ct. 2000) (court looked to an advisory circular, which set forth guidelines for airport design, in determining whether municipal defendants maintained airfield in a reasonably safe condition). These tort principles may become relevant to the extent that the Authority considers reducing services at night. For example, reducing the extent of nighttime lighting or making it dependent on automated systems may increase the risk of accident. Similarly, there may be a greater risk of personal injury or property damage if nighttime access to facilities is reduced and fewer (or no) Authority staff are available to help maintain safe conditions. D. Airport Operating Certificate and State of Florida License The Authority also has obligations under its federal Airport Operating Certificate and its state airport license that may be implicated by actions discouraging nighttime operations. For example, the Authority is required to provide airfield lighting pursuant to its obligations as the holder of an Airport Operating Certificate. Each certificate holder must provide and maintain lighting systems for air carrier operations when the airport is open at night, during conditions below visual flight rules (VFR) minimums, or in Alaska, during periods in which a prominent unlighted object cannot be seen from a distance of 3 statute miles or the sun is more than six degrees below the horizon. These lighting systems must be authorized by the Administrator and consist of at least the following: (1) Runway lighting that meets the specifications for takeoff and landing minimums, as authorized by the Administrator, for each runway. (2) One of the following taxiway lighting systems: (i) Centerline lights. (ii) Centerline reflectors. (iii) Edge lights. (iv) Edge reflectors. (3) An airport beacon. (4) Approach lighting that meets the specifications for takeoff and landing minimums, as authorized by the 13 2433995 7/2212008 Item # 16E3 September 23, 2008 Page 61 of 110 Administrator, for each runway, unless provided and/or maintained by an entity other than the certificate holder. (5) Obstruction marking and lighting, as appropriate, on each object within its authority that has been determined by the FAA to be an obstruction. 14 C.F.R. § 139 311 (c). The regulation states that the certificate holder must provide and maintain lighting, but it does not define the term "provide." The FAA has issued an Advisory Circular on radio control equipment, which sets forth the requirements for an "air -to- ground" lighting system. See AC 150/5345 -49C. The pilot - controlled system for turning on the lights on the cross -wind runway seems to "provide" lighting in accordance with FAR Part 139. Although the Authority might consider whether using the air -to- ground lighting system for the entire airfield would be consistent with the obligation under Part 139, the suggestion of turning the airfield lighting off entirely clearly would violate Part 139. As discussed above, in several cases considering a municipal airport's liability in tort, the courts looked to FAA regulations and advisory circulars as evidence of the standard of care, meaning that the failure to follow the requirement that lighting be provided could be evidence of an airport's failure to maintain its duty of care. This is discussed in greater detail below. Florida also has statutory and administrative law on the registration and licensure of airports. See FLA. STAT. ANN. § 330.30; FL. ADMIN. CODE ANN. r. 14- 60.006. The only specific requirements are removal of natural growth obstructions, relocation of aircraft parking sites beyond runway protective boundaries, and providing aircraft warning lights on structures in close proximity to the runway or potential ground hazards. FL. ADMIN. CODE ANN. r. 14- 60.006(1)(a). Unlike its federal counterpart, the Florida Code does not require that an airport provide runway lighting. V. IDENTIFICATION AND EVALUATION OF ALTERNATIVES In this section, we identify a range of options and discuss their potential legal consequences and potential effectiveness in discouraging nighttime operations. In considering the universe of available options, Kaplan Kirsch surveyed airports around the country and databases of airport restrictions to determine what other airport proprietors are doing to discourage nighttime operations. As an exhibit to this Memorandum, they have included a table which describes what other airport sponsors are doing to discourage nighttime operations. A. Further Communication with Pilots about the Curfew The Authority disseminates information to pilots in an effort to raise awareness about the voluntary curfew and to discourage nighttime operations. The Authority sends out flyers about the curfew to its tenants, places prominent signs on the airfield and in the terminals, publishes information on the curfew in Jeppesen manuals, provides information at National Business Aviation Association meetings, and publishes information on its website. An Airport staff member greets aircraft arriving during curfew hours, and staff members make phone calls and send letters to those who do not conform to the curfew reminding them of the curfew and informing them of their failure to conform. 14 243399.5 7/22/2008 Item # 16E3 September 23, 2008 Page 62 of 110 This communication is not subject to FAA scrutiny, and providing information and notice to pilots is a simple and low -risk approach. The intensity of the activities may need to be increased as traffic increases during the high season and the Airport is used by more aircraft under fractional ownership. This will ensure that as many passengers and operators are made aware of the voluntary curfew as possible. However, the Authority is already taking many steps to educate pilots, and it is questionable whether any additional measures would make this pilot - focused educational campaign more effective. B. Further Communication with Naples Residents to Reduce Demand for Nighttime Flights The Authority can also communicate with Naples residents to let the community know it is concerned about nighttime operations and looking for ways to discourage nighttime use. Communication with residents also may further discourage residents who may be using the Airport at night. Over a year ago, the Authority provided various Naples community associations with information about the voluntary curfew to publish in their association newsletters and to place on resident bulletin boards. The Authority could repeat this exercise, and in addition to providing information in written form, have meetings and informational sessions with these groups. Increasing communication and contact with airport users would be time consuming and is of uncertain value in discouraging nighttime use. Nonetheless, it does let the community know that the Authority is actively discouraging nighttime operations. This type of action also has the benefit of being visible to the public, but not subject to FAA scrutiny. C. Publicizing the Identity of Nighttime Operators / Passengers The Authority currently tracks operations that occur during the voluntary curfew hours and compiles information about nighttime operations on a monthly chart, which is available to the public upon request. The chart includes the type of aircraft, the tail number, the runway used by the aircraft, and the date and time of the operation. Rather than only providing this information to the public upon request, the Authority could regularly publish this information on its website, in a newspaper or in a newsletter each month. Airport staff already compile this information, meaning that little additional work would be required. If residents were made more aware of this information, it could discourage nighttime use of the Airport and, at least, enhance the perception that the Authority is being open about this issue. The Mercer County Airport in Trenton, New Jersey, currently lists nighttime operators on its website by tail number on a quarterly basis, but the website has not been updated in about a year. The website also provides a link to the FAA's website where the tail number can be used to retrieve other identifying information about the aircraft, including the owner's name and address. However, the tail number link is often of limited value for fractionally -owned and charter aircraft and aircraft owned by single - purpose holding companies, because there is no clear link to the passengers who are actually flying into or out of the Airport. 15 243399.5 7/22/2008 Item # 16E3 September 23, 2008 Page 63 of 110 To address this issue, the Authority could go a step further and collect information about the passengers on the nighttime flights and publish that information. For example, the Authority could require that passengers arriving and departing during curfew hours provide identification and fill out a form giving identifying information. The Authority could then publish this information online or in print. The Authority could also photograph or collect video of nighttime passenger arrivals and departures. Gathering this information would require extra work for the Airport staff members who work at night and may require the hiring of additional security personnel to collect this information. This type of action may also be unhappily received by passengers and could have negative political consequence for the Authority. It is unclear whether and how effective this measure would be in deterring nighttime use of the Airport. It is possible that some passengers would be sufficiently averse to public attention to avoid nighttime use. Nevertheless, this measure would provide the general public with more evidence that the Authority is doing something new on this issue. It may be one of the most aggressive- looking available measures. In addition to potential staffing and political issues, these actions may draw the FAA's attention. The FAA may consider whether the publication of general information about nighttime operations and specific information about nighttime passengers serves as a noise or access restriction under ANCA and Part 161. It is doubtful that this measure would be seen as limiting nighttime use, as it has no direct impact on the actual operation of aircraft and adds minimal burden for passengers. However, if the FAA infers that the intent of the measure is to discourage nighttime operations, then the FAA would more seriously scrutinize the action. The Authority could also attempt to justify this measure on the basis of security and thereby further distance the action from being within the scope of ANCA. Assuming that the purpose of collecting the information is security, the Authority may be obligated to protect it from disclosure, thus defeating the purpose. Moreover, although neither the FAA nor the Department of Homeland Security has formally found that actions by airport proprietors that go beyond federal security requirements are preempted, this is a theoretical possibility.3 Florida has an enhanced protection of an individual's right to privacy. A concern inherent to publishing the identity of nighttime operators and passengers is the right of privacy guaranteed to individuals under the Florida Constitution. Article I, Section 23, provides that: "Every natural person has the right to be at let alone and free from governmental intrusion into his private life except as otherwise provide herein ..." a The Department of Homeland Security recently proposed to require the pilot of any private aircraft arriving in the U.S. from a foreign location or departing the U.S. for a foreign location to transmit to Customs and in Protection an advance electronic transmission of information regarding each individual traveling onboard the aircraft. Notice of Proposed Rulemaking, Secure Flight Program, 72 Fed. Reg. 48356 (Aug. 23, 2007). 16 243399.5 7/2212008 Item # 16E3 September 23, 2008 Page 64 of 110 To assess whether publishing the identity of nighttime passengers will be considered by the Courts in Florida as an unconstitutional governmental intrusion into such individuals' disclosural privacy rights, the proposed action must be evaluated in terms of the established test set forth by the State Supreme Court. The test to be used in assessing a claim of unconstitutional governmental intrusion into privacy rights under Article I, Section 23, is as follows: Courts must first determine whether the individual possesses a legitimate expectation of privacy in the information or subject at issue. If so, then the burden shifts to the State to show that (a) there is a compelling state interest warranting the intrusion into the individual's privacy and (b) the intrusion is accomplished by the least intrusive means possible. Legislation that infringes on the right to privacy will be invalidated unless it can survive the compelling state interest. D. Restructuring Rates and Charges to Reflect Higher Operating Costs at Night Another option for the Authority would be to increase its rates and charges at night on the basis that it is more expensive, per operation, for the Authority to provide services at night. Staffing and running the Airport at night for relatively few Airport users means that the cost per nighttime operation is much higher than the cost per daytime operation. As a result, the Airport could seek to recover some of this cost by charging nighttime operators more to fly in and out at night. The Authority already appears to do this with its fuel surcharge, although we are uncertain of its ( basis. The Authority could consider increasing the fuel surcharge and also increasing other costs at night. Hanscom Field in Bedford, MA, has a "nighttime field use fee" for arrivals and departures between 1 I p.m. and 7 a.m. As of July 2007, the nighttime field use charge is $50 for aircraft 12,500 pounds or less and $367 for aircraft over 12,500 pounds. The airport proprietor also requires that "aircraft shall pay double the applicable charge for each nighttime operation in excess of five nighttime operations in a calendar year." Interestingly, the airport sponsor does not charge this fee on the basis that it is more expensive to operate the airport at night but actually advertises the charge as part of its voluntary curfew. We believe that FAA would view the flat fee for nighttime users, which doubles after five uses, as unreasonable and unjustly discriminatory. It seems to be a monetary penalty for nighttime use, but we have not heard that this fee has been challenged under ANCA. Because a penalty for nighttime use would likely be an access restriction, an increase in rates would have to be tightly tied to costs and expenses, not to noise. The challenging issue with this option is actually increasing rates to make them commensurate with the costs of keeping the Airport open at night but also make the rate increase large enough to be effective in discouraging nighttime use. The calculated increase is unlikely to be very large in the context of the total costs associated with operating an aircraft. This is particularly true at an airport like APF where many of the users are unlikely to be deterred by a slight hike in rates and charges. r Even if this measure could deter some nighttime operators, the downside of using this option is that the Authority could not promote it as a means by which it is discouraging nighttime use. 17 2433915 7!2212008 Item # 16E3 September 23, 2008 Page 65 of 110 Promoting this measure as a noise or curfew enhancement measure would subject it to increased scrutiny from FAA. Part 161 provides that a noise or access restriction can include "a program of airport-use charges that has the direct or indirect effect of controlling airport noise." 14 C.F.R. § 161.5 (emphasis added). The Authority will, therefore, have to be careful in structuring any change so that it is closely tied to the cost of operating the Airport at night and is in no way linked to noise. Restructuring rates and charges would not be an unreasonable or unjustly discriminatory under the grant assurances so long as it reflects the Authority's true costs to provide services or is otherwise supported. It would be advisable for the Authority to conduct an internal cost -of- service study to examine this issue and support eventual action by the Executive Director or the Board. While this is a tool that should be considered, we are skeptical that it would have a significant effect on nighttime operations and that the Authority would be able to disclaim any connections of the changes to noise. This is particularly the case in light of the very public pursuit of measures to reduce nighttime noise. E. Enhancing the Requirement to Provide Advance Notice of Nighttime Operations The Authority currently asks that operators who use the Airport during curfew hours provide the ( Airport with advance written notice. We understand that few people actually provide the notice. Authority staff indicated that they only receive, on average, one written notice a week. Based on the Quarterly Noise Report, 938 nighttime operations occurred from January 1, 2007 to March 31, 2007, an average of 72 nighttime operations per week. The very low level of compliance may be because pilots are unaware of this request. The request for written notice is not mentioned on the Airport's website or in the Airport(Facility Directory. The Authority could more widely publicize its request for advance notice. The Authority could more pointedly ask that pilots call the Noise Abatement Office or fax/email written notice a certain number of hours before they arrive or depart to request permission to operate at night. Airborne Airpark Airport in Wilmington, Ohio, requires four hours prior permission for all aircraft, and Bethel Airport in Bethel, Alaska, requires 24 -hour written notice prior to all air carrier operations. These requirements do not seem to be connected to voluntary curfews. The Boca Raton Airport asks that pilots call the Noise Abatement Office when they need to fly during the voluntary curfew hours. Asking pilots for advance notice adds some burden for nighttime operators and also requires pilots to acknowledge to an Airport staff member that they know about the voluntary curfew and plan to disregard it. This could be a deterrent for some operators. Further, the effectiveness is limited insofar as the Authority cannot actually prohibit the flight. Given that the Authority currently asks that pilots provide notice of their intent to operate during curfew hours and receives very little compliance, it is questionable whether a variation on that rule will make a significant difference. 18 243399.5 7 =2008 Item # 16E3 September 23, 2008 Page 66 of 110 It is unlikely that the request for advance notice would be a noise or access restriction under ANCA and Part 161 since notice is voluntary and permission to operate is never denied. While it may add an extra step to nighttime operations, it does not actually prohibit or limit a pilot's ability to operate during the curfew hours, since there is no consequence for failing to supply notice. The measure is also likely a reasonable one and would not be considered a violation of the Airport's grant assurances. The purpose of the requirement is to alert Airport staff to the number of operations they can expect at night, and asking for advance written notice should be deemed a reasonable means of addressing this legitimate concern. One permutation of this measure is for the Authority to make advance written notice mandatory and impose a fine for violations. This would not be a fine for flying at night, but rather a fine for failing to comply with Airport procedures. Such a surcharge may not be much of a disincentive for operating at night. Pilots could still fly at night whether or not they supplied advance notice. In addition to its questionable efficacy, a surcharge may be difficult to implement. The Authority would need to establish the amount of the surcharge, permissible exceptions, means of enforcement, and means for disputing fines and resolving disputes. Keeping track of nighttime operations, as well as which operators supplied notice or fell within an exception, could constitute a significant task. The additional requirements of imposing and collecting a fine from those who failed to comply could be time consuming and costly. In addition to enforcement problems, imposing fines may also draw the attention of the FAA and could he viewed as a restriction limiting operations. While the surcharge would be for failing to follow the procedural requirement of supplying notice of a nighttime operation, the FAA may see the fine as a penalty for operating at night and therefore subject to ANCA. The FAA also may question the details of the measure, such as the length of time required between the notice and the operation and whether the measure discriminates against a class or type of operation. The FAA may also find that penalizing someone for failing to supply notice of something that the person is allowed to do is unreasonable. If the Authority chooses to publish information about nighttime operators, it should consider whether to publish the names of the nighttime users who follow the current request for notice or a future mandatory notice requirement. While people who supply notice are still operating during the voluntary curfew hours, they have followed the rules to some extent. F. Altering Airfield Lighting Although we are unsure of the source, there apparently have been some suggestions that changing the nighttime runway lighting might be another tool to reduce nighttime operations. Currently, Runway 5/23 is lit at all times at night. The lights on Runway 14/32 are off at night, but the pilots who use the Airport are able to turn on the runway lights by clicking their microphone switches in given patterns. This practice apparently is widely known and commonly used at smaller airports around the country. It would be possible to change both runways to this system, so that the runways lights will generally be off unless requested. However, because the 19 2433995 7/22/2008 Item # 16E3 September 23, 2008 Page 67 of 110 pilots are able to turn on the runway lights, having the lights off for most of the night would seem to do little to discourage flights. Turning the runway lights off, but providing pilots with the ability to turn them on, is not likely an access restriction, because it does not limit operations or the hours of operations. Like some of the previous options, it does add extra steps for the pilots using the Airport at night, but it does not prohibit or limit use of the Airport. Turning the runway lights off and having them accessible when needed is probably also acceptable under the requirements of the grant assurances, because the lights are available but resources are not being wasted when not needed. However, limiting the extent of lighting could expose the Airport to tort liability. Even if pilots have the ability to turn the lights on, accidents could still occur that may be linked in some way to the lighting system. One scenario we have heard is, if the runway lights are turned on by a landing pilot and another plane comes in shortly behind that pilot but the lights automatically turn off, there is a potential for an accident for the second pilot. The potential failure of the runway lights to turn on under the pilot - controlled system could also cause an accident and is also a concern with this option. Turning off the lights also implicates Part 139. As described above, 14 CFR § 139.311 requires that the airport provide lighting. If the pilots have the ability to turn on the lighting, then lighting is probably "provided ", as required by Part 139, especially in light of the Advisory Circular on the subject. If the lights were simply turned off without this capability, the Authority would likely be in violation of Part 139, and if an accident occurred, Part 139 may be used to establish i the standard of care owed by the Airport. See Abrisch v. United States, 359 F.Supp.2d 1214, 1216 (M.D. Fla. 2004); Anderson v. Alberto - Culver USA, Inc., 740 N.E.2d 819 (Ill. App. Ct. 2000). G. Limiting Aeronautical Services Available at Night and Implementing Physical Limitations Various limitations on available services and physical restrictions have been suggested that would make use of the Airport during curfew hours inconvenient and uncomfortable for pilots and passengers, with the hope that these limits will deter night flights. For example, the Authority provides only limited fueling at night and might consider whether to further limit fueling to government aircraft only. The Authority might consider whether to restructure the provision of other services that it performs in a manner to further discourage nighttime operations. In terms of physical limitations, one Commissioner suggested that tum- styles be placed in some locations where persons leave the secured portion of the Airport and their use required at night. It has also been suggested that restrooms in the Airport be closed during the curfew or that certain indoor and outdoor lights be turned off. Other possibilities include limiting use of ground vehicles on the apron during curfew hours or requiring that nighttime users park far away from the terminal and walk a considerable distance to their cars. 20 243399.5 712212006 Item # 16E3 September 23, 2008 Page 68 of 110 These types of activities are similar to those attempted in Burbank and Westchester, even if less extreme, where the closure of the airport terminal and parking garage at night drew the attention of the FAA. These types of operational measures might be considered by the FAA as attempts to limit access and use of the Airport at night. While the Authority could claim that these measures are needed at night due to security or limited availability of staff and funds to provide services at night, such measures have a significant risk of being viewed as a noise or access restriction, especially if the measures are so inconvenient that they are like closing the facility. Whether or not the measures are subject to ANCA and Part 161, there is a good chance that the FAA would question the reasonableness of the measures and whether the Authority was complying with its grant assurances. Limiting access or making access difficult could also increase the Authority' s risks of tort liability. The Authority must maintain the Airport with the same degree of care as is imposed on others who undertake to render services or publish accommodations to the public. Peavy v. City of Miami, 146 Fla. 629, 637 (Fla. 1941). It is unlikely that another business could avoid liability in the case of practices that would require its patrons to walk long distances at night with limited light or leave the secured area through turn - styles. The age and medical conditions of many APF passengers also counsels caution. The Authority also has responsibilities under the Americans with Disabilities Act, which requires that the Airport's services, programs, and activities be readily accessible and usable by individuals with disabilities. See 42 D.S.C. § 12131, et seq. VI. CONCLUSION We have attempted herein to formulate a list of available options that is commensurate with the scope of the problem and to define the legal constraints. From among these options, we recommend that the Authority further investigate additional communications to promote adherence to the voluntary curfew, publishing the names of nighttime operators and/or passengers, and increasing rates and charges to more closely reflect any increased operating costs at night. While these actions may not dramatically reduce the number of nighttime operations, they may have some effect and signal the Authority's commitment to reducing nighttime operations, without exposing the Authority to significant legal risk. Once these alternatives have been examined, and possibly implemented, the Authority might look further down the list of alternatives to those that present somewhat greater levels of risk in return for greater potential effects on nighttime activity. 21 243399.5 7/2212008 Item # 16E3 ber 25, of 1 E0 A n N N N l ^o Pie 6! 71 i. y C U N O w C L a v U ^ � ° U f a .. o� p�d U >��� . . 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N C U 40 p U v N N N � 0 y� ❑ C � � � � O O .Z❑? bo G 5 y 0 N b0 > Oti N O •i' a� ° ' u 5 �'� > r °oo a>i y� a"❑ n iC Q ❑ 'J >° n v G O N C N N °o 3 wv 3 Go., .b r S a o ip3 O V�i a u � Nr!� V] En `O w ° U Cl 3 d o a 5 a c o d A G ° o x o .c > N °qm N o 0'2 5 .G G G ctl b G O N W F o d 49 7 O V y b .o b 1� Fi .° >n°ro3oz3 ,a' d � .o 3 � e � U � Q u y > G N R O n ? ° E �'mq Q d °vz'H °d viw'd er23,2008 of 1 %0 a m n N O1 N Item # 16E3 r 2�3, 2008 f 110 a m N O c� em Pa le 77 C •� C C O K a. id " O �+ > C � U ^ y Q E C N w y �� 3 G o g °❑❑ p Ej O t.' > r' �Ca '7y ac o E p E C V> p p �y •d v� u a� o n °�� a C m m •O Z 0 K > ad p C �. yy.. N ._ �., y y F u> w •p m r-' ° � N •O bm O N V ..Kr c� w L' C �., •G C. O rNr.. U i d 0 O d 5 L W v v o P.. 140 3� z xo a s ° ° F o o g _ m E v o o d > o ` w cn v° °N o m ids .�OO 3 v Wtp.1 N i tj o ° ;o 0 s0 3z 0. ea o K Fq ,0C o o O K z .[ ° ^ a 5 U N U° 3 `N° ro p; z g K Q F `r3 0 ¢ N j y 6 O :; 0.'1 U V o a �tl N Y y .a in U a b ° .,^ ° O C z C O � O y y C U Q o d p.,, 3 E �iiiUdddd y e' w 7 �j+ N d i 0 0 n0 wC�Q r 2�3, 2008 f 110 a m N O c� Item # 16E3 September 23, 2008 Page 78 of 1 0 N W, y v 0 ° 0.O 64 E y C E Ntl 41 y N "" o w ti c y C C w5 Y3 _ N O E o� C O. N w 0 O ate, ° Q 0 E• °N'�d�'O�O�°pw �' � v o M r o w 0 '.7 a• y 'ta 3 b '.7 VFI E O .b ° E c � v 'O_ O U y y aE 7 F4 W O O to c c0 �., o c E _ w 33y o o w 0 _ ar+ c y 3ra, zN° y yr EON toU_'W °w 13 o E v ayi °00 3 0 N 0 w ° 61 0 ° �wRiz z7c m z q 8) o c c c. 0 C —J 0" b o °m J .t 3 v o m v c Mra o ° r�� ZwY 3 Yy�y000 w t U :d o°, ao ° F,woob >.°c > U o y N O O C y � CL 'O y a z a 3 G y y HQ 3Ud d d Item # 16E3 September 23, 2008 Page 78 of 1 0 N W, Item # 16E3 September 23, 2008 Page 79 of 110 ATTORNEYS A LAW • FLORIDA KANSAS NEW YORK MEMORANDUM TO: Hon. Ernest W. Linneman, Chair Hon. John N. Allen Hon. William P. Hobgood Hon. James P. Lennane Hon. Peter L. Manion CC: Theodore D. Soliday, Executive Director Sheila A. Dugan, Director of Finance FROM: F. Joseph McMackin I1I, Esq. Lenore T. Brakefield, Esq. DATE: October 10, 2007 RE: Public Records Requests / Records Management / Retention Summary We suggest that these are the appropriate criteria for determining whether material in the possession of the City of Naples Airport Authority is a "public record ": 1. Was the material prepared in connection with the transaction of official Authority business? The answer to the first criterion will be determined on a case by case basis by the individual sending and/or receiving the information. If the answer is "yes," then the information (regardless of form) is a "public record" and must be retained or preserved in accordance with an approved retention schedule. 32 Item # 16E3 September 23, 2008 Page 80 of 110 2. Was the information prepared by the Authority or received by the Authority in connection with the transaction of official business with the intent of perpetuating, communicating or formalizing knowledge? The answer to the second criterion shall be determined on a case by case basis by the individual sending and/or receiving the information. If the answer is "yes," then the information (regardless of form) is a "public record" and must be retained or preserved in accordance with an approved retention schedule. Once the information has been identified as a "public record" and worthy of retention, it should be forwarded to the Authority for compliance with Florida's Records Management Program's (the "Records Program ") retention requirements. All duplicates should be destroyed or deleted. It is also important to note that certain documents identified as "public records" will still be exempt from a public records request, if the "public record" qualifies as one of the listed exemptions as defined in the Florida Statutes. Identification of a statutory exemption is the responsibility of the Authority. ANALYSIS Public Records The statutory definition of "public records" includes all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 33 Item # 16E3 September 23, 2008 Page 81 of 110 This definition is limited, however, to information which was prepared with the intent of perpetuating, communicating or formalizing knowledge. Information is determined to be a "public record" based on the content, not the form of transmission. The starting point is whether the information was prepared or received by the Authority in connection with official business used to perpetuate, communicate or formalize knowledge. Records Management A closely associated issue is record management and retention. The Florida Department of State has established a records management program which is applicable to all public agencies. The Records Program provides general retention schedules which establish a minimum length of time that a "public record" must be maintained by a government agency. When disposing of records an agency must: a) ensure that the age of the record has exceeded the retention requirements (knowledge of the retention periods is the responsibility of the agency); and, b) document the disposition of any public records in its custody. An exception to this rule is that government agencies are not required to document the disposition of records with a retention designation of "retain until obsolete, superseded or administrative value is lost' ( "OSA "). Documents that are labeled OSA, are eligible for destruction whenever the document is no longer of use. The Records Program has developed specific requirements for the retention of email. Personal messages, which do not involve official business are not "public records" to begin with and are not subject to the Records Program or any retention schedule. Emails that do involve official business are "public records" and the master or "record" copy should be given to the Authority for retention. Duplicate copies of "public records" should be deleted after a "record" copy has been filed with the Authority. The same procedure applies for all documents that have 34 L Item # 16E3 September 23, 2008 Page 82 of 110 BOND, SCHOENECK & KING, P.A. ATTORNEYS AT LAW ❑ NEW YORK FLORIDA KANSAS MEMORANDUM TO: City of Naples Airport Authority Commissioners Theodore D. Soliday FROM: F. Joseph McMackin III Lenore T. Brakefield DATE: May 17, 2006 RE: Agenda and Conduct of NAA Regular Meetings Florida's Government -in- the - Sunshine -Laws, commonly referred to as the Sunshine Law provides a right of access to governmental proceedings at both the state and local levels. The law is applied to any gathering of two or more members subject to the Sunshine requirements to discuss some matter which will foreseeably come before the governing board for action. There are three basic requirements of s.286.011, F.S.: (1) meetings of public boards or commissions must be open to the public; (2) reasonable notice of such meetings must be given; and (3) minutes of the meetings must be taken. Public Participation A recent Attorney General's Opinion and several Florida courts of have recognized the importance of public participation in open meetings. However, the Supreme ' The information in this Memorandum is taken directly from the Government -in- the - Sunshine Manual. 36 Item # 16E3 September 23, 2008 Page 89 of 110 Once the information is collected, it should be provided in identical form to all agencies expressing an interest in submitting a proposal. All bidders must provide proposals with identical coverage. It should be clear that alternate quotations for coverages may be offered (in addition) but will not be considered in the comparison of proposals. Agencies wishing to bid will provide blank applications to CMCD, which will be completed in- house. Proposals must be submitted to CMCD on a pre - determined date. Ten copies of the proposal must be submitted by each agency. Once proposals are received, an in -house comparison report will be completed. Time permitting, agents will be contacted for the purpose of clarification in staff's best effort to provide an accurate comparison. At this point, proposals and the comparison report will be provided to Commissioners prior to the date of the board meeting when all proposals will be considered. Agencies submitting proposals will be invited to attend the meeting. Each agency participating may have an individually scheduled time to offer proposals. In addition, a question and answer session comparing coverages will be held with all participating agencies invited to attend. 44 Item # 16E3 September 23, 2008 Page 90 of 110 BOND, SCHOENECK & KING, P.A. ATTORNEYS AT LAW • FLORIDA KANSAS NEW YORK MEMORANDUM TO: Robert D. Geroy, Chairman Frank Van Essen, Ph.D., Executive Director Stacy Welch, Director of Administration FROM: F. Joseph McMackin, III Lenore T. Brakefield DATE: September 13, 2005 RE: District contributions to aid in Hurricane Katrina relief Issue: Collier Mosquito Control District ( "CMCD ") inquired as to whether it may use taxpayer funds for purposes outside the District and to what extent. Specifically, CMCD wanted to know whether it could contribute money and/or equipment to aide Louisiana, Mississippi or Alabama in the wake of the devastation of Hurricane Katrina. Executive Summary: It is uncertain whether CMCD, as a general policy, would be able to expend taxpayer funds for purposes outside the District. The Florida statutes are vague. However, due to Hurricane Katrina, President Bush signed a Presidential Disaster Declaration which allows states to use taxpayer funds to aid states affected by the hurricane. In addition, under the Mutual Aid Compacts there are governor to governor agreements between various states to provide aid to each other. Florida has entered into a Compact with Mississippi; while, Texas has entered into a Compact with Louisiana. The Florida Compact allows CMCD to use taxpayer funds to aide the State of Mississippi as the District sees fit. In researching this issue, we contacted the Department of Agriculture and Consumer Services and specifically the Bureau of Entomology and Pest Control (the "Bureau "). We were 45 Item # 16E3 September 23, 2008 Page 91 of 110 put in contact with the Mike Paige, Director of the Bureau. Mr. Paige advised us that the most efficient way for CMCD to help Mississippi was to prepare a "Notification" which contains a list of resources that CMCD is willing to make available. Once this Notification is complete, Mr. Paige will help the District submit it as required under the Florida- Mississippi Mutual Aid Compact. The proper officials in Mississippi will be contacted so that they are aware of the resources CMCD has to offer. If and when the State of Mississippi needs any of these identified resources, including funds, CMCD will be notified. Mr. Paige is willing to help CMCD accomplish this donation. He has provided us with the following contact numbers to help expedite the process: Office: (850) 921 -4177 Home: (850) 668 -9725 Cell: (850) 528 -5314 46 2 Item # 16E3 September 23, 2008 Page 92 of 110 ©l®BOND, SCHOENECK & KING, P.A. ATTORNEYS AT LAW • FLORIDA KANSAS NEW YORK la tpl cel"741011 Sul TO: Collier Mosquito Control District FROM: F. Joseph McMackin, III Lenore T. Brakefield DATE: May 25, 2005 RE: Duties of the Treasurer Collier Mosquito Control District ( "CMCD ") has power pursuant to the Florida Statutes to establish a board of commissioners. Fla. Stat. 388.121. Included within the board is the position of treasurer. Additionally within the Florida Statutes is the power of the board to appoint and fix the salary of a chief financial officer ( "CFO "). Fla. Stat. 189.436. The CFO is responsible for the funds and finances of CMCD. Any funds disbursed must be done at the direction of the board and signed by the persons designated by the board. Additional duties and powers may be given by the board to the CFO. However, the Florida Statutes does specifically assign the treasurer the duty of accepting the payment of taxes from the tax collector. Fla. Stat. 388.221. Taxes are to be held by the treasurer for the credit of the board and paid out by the treasurer as ordered by the board. Collier Mosquito Control District has correctly established a board of commissioners, including the position of treasurer. Further, CMCD has appointed a CFO who is charged with administering its fiscal affairs. Essentially the treasurer supervises the CFO. Consequently, the day to day tasks associated with funds, finances and fiscal affairs are delegated to the CFO. This is accomplished, in part, through the use of the facsimile signature of 47 Tab VIII, Conflict Affidavit Item # September 23, 2008 Page 101 of 110 CONFLICT OF INTEREST AFFIDAVIT By the signature below, the firm (employees, officers and /or agents) certifies, and hereby discloses, that, to the best of their knowledge and belief, all relevant facts concerning past, present, or currently planned interest or activity (financial, contractual, organizational, or otherwise) which relates to the proposed work; and bear on whether the firm (employees, officers and /or agents) has a possible conflict have been fully disclosed. Additionally, the firm (employees, officers and /or agents) agrees to immediately notify in writing the Purchasing /General Services Director, or designee, if any actual or potential conflict of Interest arises during the contract and /or project duration. Bond, Schoeneck & King, P.A. Firm F. Joseph McMackin III Name Printed Member Title of Person Signing Affidavit State of Florida ) County of Collier ) Jul Z3 2008 Date SUBSCRIBED AND SWORN to before me this 3rd day of July 2008 , by F. Joseph McMackin III who is personally known to me to be the NlCm Le-(' for the Finn, OR who pro uce the following identification: cvtj J'� L/� • ,,,, R1Pt c. RaM'D454451 ,',� MY COMMISSION 1 EXPIRES; usNotary Public � a MmNftq Re My Commission Expires: NON -CMA- Manual (Revislon 612008) WE 24 Tab VIII, Qualification Form PROPOSERS QUALIFICATION FORM LIST MAJOR WORK PRESENTLY UNDER CONTRACT: Item # 16E3 September 23, 2008 Page 102 of 110 % Completed Pro ect I Contract Amount I rras LIST CURRENT PROJECTS ON WHICH YOUR FIRM IS THE CANDIDATE FOR AWARD: F Joseph McMackin III 'individually is a candidate for the Attorney Special Magistrate inn r.rn .unn en-fn OTHER INFORMATION ABOUT PROJECTS: -None _ Have you, at any time, failed to complete a project? ❑ Yes ® No STATEMENT OF LITIATION: Are there any judgments, claims or suits pending or outstanding —by or against you? ❑ Yes ®No If the answer to either question is yes, submit details on separate sheet. List all lawsuits that have been filed by or against your firm in the last five (5) years: FEES: List total fees for work done on all Collier County Government projects in the past five (5) years, whether as an individual firm or as part of a joint venture. Fees must be listed Individually by contract or project and then summarized as a total dollar amount. Attach additional page if necessary. $ 0_ Total Fees for work done on all Collier County projects NON -CCNA- Manual (Revision 6/2008) 65 25 Item # 16E3 September 23, 2008 Page 103 of 110 REFERENCES: Bank(s) Maintaining Account(s): Northern Trust NA Maurige Shea Seniq Vir° President Bank of America Surety /Underwriter: (if required) Marsh USA Inc 300 South State Street One Park Place Syracuse, NY 13202 Other References: (Use additional sheets if necessary) See Tab V. TYPE OF FIRM: © CorporationNears in Business: 30 If firm is a corporation, please list state in which it is incorporated: Florida . If firm is a corporation, by signing this form, Proposer certifies that the firm is authorized to do business in the State of Florida. ❑ Partnership/Years in Business: ❑ Sole ProprietorshipNears in Business: ❑ Other: Please list: ( Pursuant to information for prospective Proposers for the above- mentioned proposed project, the undersigned is submitting the information as required with the understanding that it is only to assist in determining the qualifications of the organization to perform the type and magnitude of work intended, and further, guarantee the truth and accuracy of all statements herein made. We will accept your determination of qualifications without prejudice. Name of Organiz Title Attested B Titl( Date: JUIZ2008 NON -CCNA- Manual (Revislon 6/2006) 20 26 Item # 16E3 September 23, 2008 Page 104 of 110 DECLARATION STATEMENT BOARD OF COUNTY COMMISSIONERS Collier County Government Complex Naples, Florida 34112 RE: RFP NO. 08 -5102 "Independent Legal Counsel for the Collier County Value Adjust Board" Dear Commissioners: The undersigned, as Proposer (herein used in the masculine, singular, irrespective of actual gender and number) declares that he is the only person interested in this proposal or in the contract to which this proposal pertains, and that this proposal is made without connection or arrangement with any other person and this proposal is in every respect fair and made in good faith, without collusion or fraud. The Proposer further declares that he has complied in every respect with all the Instructions to Proposers issued prior to the opening of proposals, and that he has satisfied himself fully relative to all matters and conditions with respect to the general condition of the contract to which the proposal pertains. r^ The Proposer puts forth and agrees, if this proposal is accepted, to execute an appropriate Collier County document for the purpose of establishing a formal contractual relationship between him, and Collier County, for the performance of all requirements to which the proposal pertains. The Proposer states that the proposal is based upon the proposal documents listed by RFP #08.5102. (Proposal Continued on Next Page) NON -CCNA- Manual (RevlslOn 612008) 67 2� Item # 16E3 September 23, 2008 Page 105 of 110 PROPOSAL CONTINUED IN WITNESS WHEREOF, WE have hereunto subscribed our names on this � day of July 2008 in the County of Collier , in the State of Florida Complete Legal Name Naples, FL. 34103 (City, State, ZIP) Phone No. (23,q) 659 -3R6� Fax No. (239) 659 -3812 Check one of the following: ❑ Sole Proprietorship fX Corporation or P.A. State of Florida ❑ Limited Partnership ❑ General Partnership IIV y: Typ and Writ en ignature ose h Mc Title Member ADDITIONAL CONTACT INFORMATION Send Payments To: (REQUIRED ONLY if different from above) (Company Name used as Payee) Contact Name: Title: (Address) (City, State, ZIP) Phone No. _ FAX No. _ Email address: Office Servicing Collier County Account /Place Orders /Request Supplies (REQUIRED ONLY If different from above) (Address) Contact Name Phone No. — Title NON -CCNA- Manual (Revision 6/2008) - •: (City, State, ZIP) FAX No. Email Address, 28 Item # 16E3 September 23, 2008 Page 106 of 110 ;yL'7J Gtr AFFIDAVIT FOR CLAIMING STATUS AS A LOCAL BUSINESS ITBIRFPIRFQ #:08 -5102 STATE OF FLORIDA and the COUNTY OF COLLIER PROPOSER/BIDDR/QUOTER AFFIRMS THAT IT IS A LOCAL .BUSINESS AS DEFINED BY THE PURCHASING POLICY OF THE COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AND THE REGULATIONS THERETO. - AS DEFINED IN SECTION XI OF THE COLLIER COUNTY PURCHASING POLICY; "Local Business" means a Collier County business that has a valid occupational license issued by Collier County at least one year prior to bid or proposal submission to do business within Collier County that authorizes the business to provide the commodities or services to be purchased, and a physical business address located within the limits of Collier County from which the vendor operates or performs business. Post Office Boxes _ ( are not verifiable and shalt not by used for the purpose of establishing said physical address. In addition to the foregoing, a vendor shalt not be considered a "local business" unless it contributes to the economic development and well • being.of - .Collier County in a verifiable and measurable way. This may include, but not be limited to, the retention and expansion of employment opportunities, the support and increase to the County's tax base, and residency of employees and principals of the business within Collier County. Vendors shall affirm in writing their compliance with the foregoing at the time of submitting their bid or proposal to be eligible for consideration as a "local business" under this section. A vendor who misrepresents the Local Preference status of its firm in a proposal or bid submitted to the County will lose the privilege to claim Local Preference status for a period of up to one year. Please provide the following information for the Prop oser/Bidd er/Quoter: Year Business Established in Collier County: 1978 Number of Employees (Including Owner(s) or Corporate Officers): 25 Number of Employees Living in Collier County (Including Owner(s) or Corporate Officers): 21 29 NON -CCNA- Manual (Revision 6/2008) - .• Item # 16E3 September 23, 2008 Page 107 of 110 If requested by the County, proposer /bidder /quoter will be required to provide documentation substantiating the information given in this affidavit. Failure to do so will result in proposer /bidder / quoter s submission being deemed not applicable. Bond, Schoeneck & King, P.A. Proposer /Bidder / Quoter Name Member Title STATE OF FLORIDA COUNTY OF COLLIER Sworn to and Subscribed Before Me, a Notary Public, for the above State and County, on this ;�13K Day of July , 2008 Notary Pub �,,,,,, JuoY C. �.�; M„••� g MBaY iEO CeKAOPTMIlRuMu E NISSo: Sbl AIHOy u AFp2010 5r � n 44l 51 My Commission Expires: (AFFIX OFFICIAL SEAL) NON -CCNA- Manual (Revision 612008) 70 30 Item # 16E3 September 23, 2008 Page 108 of 110 Collier County Florida INSURANCE REQUIREMENTS INSURANCE TYPE REQUIRED LIMITS ® 1. Worker's Compensation Statutory Limits of Florida Statutes, Chapter 440 and all Federal Government Statutory Limits and Requirements. ® 2. Commercial General Liability Bodily Iniury & Property Damage (Occurrence Form) patterned after the current I.S.O form $500,000 single limit per occurrence Z 3. Indemnification: To the maximum extent permitted by Florida law, the ContractorNendor /Consultant shall indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attomeys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the ContractorNendor /Consultant or anyone employed or utilized by the ContractorNendor /Consultant in the performance of this Agreement. This Indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Collier County. ❑ 4. Automobile Liability $ Each Occurrence Owned /Non- owned /H i red Automobile Included ® 5. Other Insurance as indicated below: Professional Liability $ 1.000 000 Per Occurrence NON -CCNA- Manual (Revision MODS) 71 31 Item # 16E3 September 23, 2008 Page 109 of 110 COLLIER COUNTY FLORIDA INSURANCE REQUIREMENTS (Continued) ® 7. Contractor shall ensure that all subcontractors comply with the same insurance requirements that he is required to meet. The same Contractor shall provide County with certificates of insurance meeting the required insurance provisions. ® 8, Collier County must be named as "ADDITIONAL INSURED" on the Insurance Certificate for Commercial General Liability where required. 09, Collier County Board of County Commissioners shall be named as the Certificate Holder. NOTE - -The "Certificate Holder" should read as follows: Collier County Board of County Commissioners Naples, Florida No County Division, Department, or individual name should appear on the Certificate. No other format will be acceptable. ® 10. Thirty (30) Days Cancellation Notice required. ® 11. The Certificate must state the RFP Number and Title. PROPOSER'S AND INSURANCE AGENT'S STATEMENT: We understand the insurance requirements of these specifications and that the evidence of insurability may be required within five (5) days of the award of RFP. Bond, Schoeneck & King P.A. �p�oser Signature roposer F. Joseph McMackin III Marsh USA Inc Insurance Agency Signature of Proposer's Agent NON -CCNA- Manual (Revision 6/2008) 32 72 i Item # 16E3 September 23, 2008 Page 110 of 110 Now CERTIFICATE NUMBER NYG002329308.04 r PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS 'MARSH USA INO. NO MONTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE 300 SOUTH STATE STREET POLICY. THIS CERTIFICATE DOES HOT AMEND, EXTEND OR ALTER THE COVERAGE ONE PARK PLACE AFFORDED BY THE POUCHES DESCRIBED HEREIN. SYRACUSE, NY 13202 COMPANIES AFFORDING COVERAGE COMPANY 22539 -1141-- 'A COLUMBIA CASUALTY CO INSURED COMPANY BOND, SCHOENECK & KING, PU-C B BOND, SCHOENECK & KING, PA ATTN: KELLY JOHNSON COMPANY ONE LINCOLN CENTER C SYRACUSE, NY 13202 COMPANY D ➢NS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE WSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED. NOTIMTHSTANO W G ANY REOUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT MATH RESPECT TO MICH THE CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE MURAIICE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, CONDITIONS AND EXCLUSIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, CO LTR TYPE O P INSU RAN CE POLICY NUN DER POLICY EFFECTIVE DATE(MMIDOM) POLICY EXPIRATION DATE JMMIDOMt UNITS GENERALUABBITY GENERALAGGREGATE $ PRODUCTS - COMPMP AGO S COMMERCMLOENERAJ- 1-MUTY CLAIM3 MADE ❑OCCUR PERSONAL S ADV INJURY '$ EACH OCCURRENCE $ OWNER8& CONTRACTOR'S PROT FIRE OAMAGE .M) $ MED W 4AW . $ AUTOMOBILE UABIUTY COMBINED SINGLE LOUT $ ANY AUTO BODILY INJURY $ ALL OWNED AUTOS SCHEDULED AUTOS lFx YnBRI BODILY INJURY (PVC $ HIREDAUTOS NON- DMNEDAUTOS PROPERTYDAMAGE $ OARAOE UARIUTY AUTO ONLY ,EA ACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY: vAoi ACOOBW $ AGGREGATE $ EXCESS UAIBUTY EACH OCCURRENCE $ AGGREGATE $ UMBRELIAFORM - - $ OTHER TWIN UMBRELLA FORM WORHERB QUMP5hlATlQN AND EMPLOYERS-LIABILITY A TORY LSAITS ER EL EACH ACCIDENT S THE PROPRMTOR/ WGL PARTNERSIEXECUTNE OFFICERSARE: FJ(OL EL DISEASE -POUCY LBAR $ EL DISEASE- EACHEMPLOYEE $ A TNhK PROFESSIONAL INDEMNITY PS132345145 06/15/07 06/15/06 NOT LESS THAN 1,000,000 EACH CLAIM, 2,000,000 AGGREGATE DESCRIPTION OF OPERATIC N SIWCATO N BNEHICLESISPECIAL ITEMS CERTIRCATE- .HOLDER ".. ,,.. r °i, ,, ? -:.. 1 O/XFj06}tKiT(ON MIWLO ANY OF THE POMCIE& DEecwRED HEREIN BE C WGBUED BEFORE HIE WIN&TwH DATE THEREOF, THE wwRER MICROBIC cOVEAAOE W L ENDEAVOR TO Wrs N,Tw NOTICE TO INC CERTIFICATE HOLDER NAMED HWew. BUT FNLURE 10 DAL WON NOTICE SHUL IMroeE NO OTI O 71011 OR URNUTT OP I 10140 UPON T16 INSURER MPOROINO COVERAGE. RE AGENTS OR RURMITTRNEB, OR THE 4WER DIM. CERTOCAT& MARSH USA INC. BY Kirnberty A. Winter- r+L.hvL,CE� VALID AS OF.:,03f14/07 t LILIAJ,.Yr� 73