Item K2BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: July 15, 2009 Division: County Administrator
Bulk Item: Yes _ No X Department: Wastewater
Staff Contact Person/Phone #: Judv Clarke X4329
AGENDA ITEM WORDING: Approval of first amendment to Interlocal Agreement (ILA) dated
September 20, 2006 with Florida Keys Aqueduct Authority (FKAA) for the County to provide funding
for the Duck Key Regional Wastewater System.
ITEM BACKGROUND: FKAA has provided a cost estimate of $5,100,000 to upgrade the existing
wastewater treatment plant on Hawks Cay to advanced wastewater treatment (AWT) standards and to
expand the plant to accommodate flows from Duck Key. The cost estimate for the collection system
for Duck Key is $9,030,000; the revenue source to fund the construction of the collection system has
not been identified.
PREVIOUS RELEVANT BOCC ACTION: BOCC approved the ILA with FKAA for the Duck Key
wastewater system on September 6, 2006.
CONTRACT/AGREEMENT CHANGES: Identifies ownership of system and authorizes
$5,100,000 for the treatment plant expansion and upgrade.
STAFF RECOMMENDATIONS: Approval of Amendment no. 1, as stated above.
TOTAL COST: $5,100,000 SCHEDULED: Yes in FY 2010 No
COST TO COUNTY: $5,100,000 SOURCE OF FUNDS: 304 Capital Project Fund
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing X Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION:
Revised 11/06
AGENDA ITEM #
FIRST AMENDMENT TO
INTERLOCAL AGREEMENT
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS FIRST AMENDMENT TO INTERLOCAL AGREEMENT is entered into this
15th day of July, 2009, pursuant to Sec. 163.01, FS., by and between Monroe County, a political
subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority, Inc., an
independent special district, (FKAA).
WHEREAS, the County has committed by interlocal agreement dated September 6, 2005,
and by Master Lease dated as of September 6, 2005, to seek funding through federal and state grants
and the issuance of revenue bonds backed by the pledge of infrastructure tax; and to provide funding
to the FKAA for the administration, planning and construction of wastewater projects e owned
Monroe County; and
WHEREAS, on September 20, 2006, the County and the FKAA entered into an interlocal
agreement for the County to provide funding for administration, planning and construction of a
wastewater collection system, transmission main and method of treatment to Advanced Wastewater
Treatment (AWT) standards to serve the residents and business in the Conch Key/Duck Key
Wastewater Service District; and
WHEREAS, FKAA has acquired a treatment plant on Duck Key for purposes of upgrade and
expansion to provide AWT to the area encompassing Duck Key, Indies Island, and Conch Key, and
has initiated design and other services to commence the Duck Key Project; and
WHEREAS, the County and the FKAA desire to establish their responsibilities and rights in
carrying out the Duck Key Project, including, but not limited to, ownership of various system
components and respective percentage of funding responsibilities; now therefore
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows: -
1. Section 1, COUNTY FUNDING, of the interlocal agreement dated September 20, 2006
(ILA.) shall be amended to read:
1. COUNTY FUNDING OF COUNTY -OWNED SEGMENTS OF PROJECT:
A. The County shall appropriate through resolution of the BOCC, from any lawfully
available source, those funds which have been duly approved for the estimated costs of
administration, planning and construction of the County -owned segments of the Duck Key Project
and the acquisition of the capacity at the treatment plant to provide advanced wastewater treatment
for Conch Key and Duck Key, to the FKAA, which shall not exceed Five Million One Hundred
Thousand Dollars ($5,100,000), unless that amount is changed by amendment to this agreement. As
the project progresses, and estimates are altered to reflect a combination of actual costs incurred and
changes in pricing due to contracts resulting from bid processes, and other changed conditions, the
FKAA shall provide such information to the County. The County shall, at such time as sufficient
V Amend Duck Key ILA 1
funding has been identified to pay for the construction of the collection systems on Duck Key, notify
FKAA so that an amendment can be entered for the necessary additional funding to be provided for
that segment of the project. This Agreement shall be modified as necessary to reflect such changes
in estimates in order to provide for adequate funding to be available for the timely and efficient
construction of the County -owned segments of the project.
B. Ownership Interest.
(i) The County shall own those portions of the project for which it provides funding. The
funding described above shall pay the costs of the collection system, which the County shall own
and which shall be subject to the Master Lease dated September 6, 2005, as amended, and capacity
for 900 EDUs of Conch Key and Duck Key in the treatment plant acquired by FKAA.
(ii) FKAA shall retain ownership of the upgraded treatment plant, less the capacity acquired
by County, and shall be the Lessee of the collection system, as set forth in the Master Lease.
2. Section 2, PROJECT, of the ILA shall be amended to read:
2. For purposes of ownership, lease for operations, and funding, the Project shall be divided
into segments, those which are owned by the County and leased to the FKAA for purposes of
construction, maintenance and operations, and those which are owned by the FKAA.
A. The County shall own, and lease to FKAA, the following:
Collection Systems on Duck Key
Capacity in Duck Key Regional Treatment Plant for EDU's on Conch Key
and Duck Key
B. The FKAA shall, own the following:
Duck Key Regional Treatment Plant
Conch Key Collection System
3. Section 2, EXPENDITURE OF FUNDS, of the ILA shall be renumbered as Section 3, and
amended to read as follows:
3. EXPENDITURE OF FUNDS. The FKAA shall initially be funded in the amount of One
Million Five Hundred Thousand Dollars ($1,500,000) for the administration, planning and
construction of the County -owned segments of the Duck Key wastewater project. Thereafter, during -
the course of the project, the FKAA may request reimbursement for payments made by FKAA upon
submission of documentation of previous expenditures from the One Million Five Hundreed
Thousand Dollars ($1,500,000) until the total amount allocated by the County is exhausted. The
FKAA shall submit this documentation to the County Senior Administrator, Sewer Projects
(hereafter designated as the CSA) describing the services performed and stating for which
wastewater district for which the funds were expended. The submission must be in a form
satisfactory to the CSA and Clerk of the Circuit Court (Clerk). If the CSA approves the submission
she shall forward the same to the Clerk. If the CSA or the Clerk determine that the submission is
unacceptable, either of them shall return it to the FKAA in writing with a written description of the
deficiency(ies).
4. The remaining sections of the ILA shall be renumbered.
5. All other provisions of the ILA dated September 20, 2006, for the Conch Key/Duck Key Regional
Wastewater System not inconsistent herewith shall remain in full force and effect.
151 Amend Duck Key ILA 2
6. EFFECTIVE DATE. This Agreement will take effect on July 15, 2009.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
first above written.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
LE
(SEAL)
Danny L. Kolhage, Clerk
By:
Deputy Clerk
Mayor/Chairperson
THE FLORIDA KEYS AQUEDUCT AUTHORITY
(SEAL)
By:
Chairman
ATTEST:
Clerk
MONROE COUNTY ATTORNEY
APPROVED AS TO F 3
ZANNE A. H TTON
co€� .Tv EY
1" Amend Duck Key ILA 3
INTERLOCAL AGREEMENT
BETWEEN
MONROE COUNTY
AND
FLORIDA KEYS AQUEDUCT AUTHORITY
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS INTERLOCAL AGREEMENT (Agreement) is entered into this co gday of
_, 2006, pursuant to Florida Statute Sec. 163.01, by and between Monroe County
(County), a political subdivision of the State of Florida, and the Florida Keys Aqueduct
Authority (FKAA), an independent special district.
WHEREAS, the County is authorized by Florida Statute Sec. 125.01(1) to provide, assist
in providing., and fund centralized wastewater treatment systems; and
WHEREAS, Section 6, Chapter 99-395, Laws of Florida, and the County's
Comprehensive Plan require that certain wastewater treatment levels be achieved by the year
2010, which levels can best be achieved by central wastewater treatment systems; and
WHEREAS, the FKAA is authorized by Chap. 76-441, Laws of Florida, as amended, and
Chapter 98-519, Laws of Florida, to design, construct, and operate, wastewater treatment
systems; and
WHEREAS, the FKAA and the County have entered into previous interlocal agreements
establishing and confirming their ongoing partnership in providing wastewater facilities in the
Florida Keys; and
WHEREAS, the County adopted Ordinance No. 38-2004, authorizing the levy of ad
valorem taxes in the Conch Key/Duck Key Municipal Service Taxing Unit, in order to provide
an initial source of funding for the Conch Key/Duck Key Regional Wastewater Project (Project);
and
WHEREAS, FKAA has initiated planning, design and other services for the Project for
which it may be paid with taxing unit funds; and
WHEREAS, the County by Interlocal Agreement dated September 6, 2005, and by
Master Lease dated as of September 6, 2005, has committed to seek funding through federal and
state grants and loans and the issuance of revenue bonds backed by the pledge of infrastructure
sales tax; and will be providing additional funds to the FKAA for the administration, planning
and construction of future wastewater projects in unincorporated Monroe County; and
WHEREAS, the County may have other funding mechanisms, including but not limited
to infrastructure sales tax, grant and loan funding and ad valorem taxes, available to it for the
provision of sewers and wastewater treatment; and
WHEREAS, County and FKAA desire to put in place procedures for the allocation,
expenditure, and reimbursement of funds for the Project;
NOW, THEREFORE, in consideration of the mutual consideration and promises set forth
below, the parties agree as follows:
1. COUNTY FUNDING. The County by resolution of its Board of County Commissioners,
shall appropriate from any lawfully available source, those funds which have been duly approved
for the estimated costs of administration, planning and construction of the Project, which shall
not exceed Million Dollars ($12,500,000). Conch Key/Duck Key Municipal Service Taxing
Unit ad valorem tax proceeds collected by County shall be provided to FKAA as part of the
funding under this Agreement and shall be disbursed as described in paragraph 3 below. Before
such disbursement, County may deduct its costs of administration and professional costs from
the MSTU :funds collected. As the Project progresses, and estimates are altered to reflect a
combination of actual costs incurred and changes in pricing due to contracts resulting from bid
processes, or other changed conditions, the FKAA shall provide such information to the County.
This Agreement shall be modified as necessary to reflect such changes in the estimates in order
to provide for adequate funding to be available for the timely and efficient construction of the
project. The amount of the funding may be changed by written amendment to this Agreement
approved by the parties.
2. PROJECT. The Project shall consist of a collection system, transmission main and
method of treatment to Advanced Wastewater Treatment standards sufficient to serve the needs
of the residents and businesses in the Conch Key/Duck Key Wastewater Service District. Both
FKAA and County shall perform their respective obligations and responsibilities under the
Interlocal Agreement dated September 6, 2005. Attached are a project area map and project
description (Exhibit A).
2. EXP'ENDITURE OF FUNDS. The FKAA shall initially be funded in the amount of One
Million Five Hundred Thousand Dollars ($1,500,000.00) for the administration, planning, design
and construction of the Project. Thereafter, during the course of the Project, the FKAA may
request reimbursement for payments made by FKAA upon submission of documentation of
previous expenditures from the One Million Five Hundred Thousand Dollars ($1,500,000.00)
until the total amount allocated by the County is exhausted. The FKAA shall submit this
documentation to the County Senior Administrator (CSA) for Sewer Projects describing the
services performed and stating for which wastewater district/Project the funds were expended.
The submission must be in a form satisfactory to the CSA and Clerk of the Circuit Court (Clerk).
If the CSA approves the submission, she shall forward the same to the Clerk. If the CSA or the
Clerk determine that the submission is unacceptable, either of them shall return it to the FKAA
in writing with a written description of the deficiency(ies).
3. FISCAL CONTROLS AND QUARTERLY REPORTS. The FKAA shall establish fiscal
controls and fund accounting procedures that comply with generally accepted government
accounting principles, satisfactory to the Clerk, in order to assure that the funds provided to the
FKAA are spent for the purposes set forth in this Agreement. All FKAA financial records
pertaining to this Agreement must be made available, upon request, to the Clerk, an auditor
employed by the County or the State of Florida. The records must be retained by the FKAA for
five years following the receipt by the FKAA of its last payment pursuant to this Agreement.
Any funds transferred by the County to the FKAA under this Agreement that are determined by
the Clerk, or an auditor employed by the County or employed by the State to have been spent on
a purpose not contemplated by this Agreement must be paid back to the County with interest
calculated pursuant to Florida Statute Sec. 55.03(1), from the date the auditor determines the
funds were expended for a purpose not authorized by this Agreement. The FKAA agrees to
provide the Clerk with quarterly status reports concerning the expenditure of these funds in
sufficient detail to demonstrate compliance with the provisions of this Agreement.
4. RECORDS -- ACCESS AND AUDITS. FKAA shall maintain adequate and complete
records for a period of five years after termination of this Agreement. The State, the County,
their officers, employees, agents and contractors shall have access to FKAA's books, records,
and documents related to this Agreement upon request. The access to and inspection of such
books, records, and documents by the aforementioned government representatives shall occur at
any reasonable time.
5. RELATIONSHIP OF PARTIES. FKAA is, and shall be an independent contractor and
not an agent or servant of the County. FKAA shall exercise control, direction, and supervision
over the means and manner that its personnel, contractors and volunteers perform the work for
the purpose of this Agreement. FKAA shall have no authority whatsoever to act on behalf of or
as agent of the County in any promise, Agreement or representation other than specifically
provided for in this Agreement. The County shall at no time be legally responsible for any
negligence on the part of FKAA, its employees, agents or volunteers resulting in either bodily or
personal injury or property damage to any individual, property or corporation.
6. TAXES. FKAA must pay all taxes and assessments, if any, including any sales or use
tax, levied by any government agency with respect to FKAA's operations related to this
Agreement.
7. INSURANCE.The parties to this Agreement stipulate that each is a state governmental
agency as defined by Florida Statutes and represents to the other that it has purchased suitable
Public Liability, Vehicle Liability, and Workers' Compensation insurance, or is self -insured, in
amounts adequate to respond to any and all claims under federal or state actions for civil rights
violations not limited by Florida Statutes Section 768.28 and Chapter 440, as well as any and all
claims within the limitations of Florida Statutes Section 768.28 and Chapter 440, arising out of
the activities governed by this Agreement.
To the extent allowed by law, each party shall be responsible for any acts of negligence on the
part of its employees, agents, contractors, and subcontractors and shall defend, indemnify and
hold the other party harmless from all claims arising out of such actions.
FKAA agrees to keep in full force and effect the required insurance coverage during the term of
this Agreement. If the insurance policies originally purchased which meet the requirements of
this lease are canceled, terminated or reduced in coverage, then FKAA must immediately
substitute complying policies so that no gap in coverage occurs. Copies of current policy
certificates shall be filed with the County whenever acquired or amended.
8. HOLD HARMLESS. To the extent allowed by law, FKAA is liable for and must fully
defend, release, discharge, indemnify and hold harmless the County, the members of the County
Commission, County officers and employees, County agents and contractors, and the Sheriff's
Office, its officers and employees, from and against any and all claims, demands, causes of
action, losses, costs and expenses of whatever type - including investigation and witness costs
and expenses and attorneys' fees and costs - that arise out of or are attributable to FKAA's
operations in connection with this Agreement except for those claims, demands, damages,
liabilities, actions, causes of action, losses, costs and expenses that are the result of the sole
negligence of the County. FKAA's purchase of the insurance required under this Agreement
does not release or vitiate its obligations under this paragraph. FKAA does not waive any of its
sovereign immunity rights including but not limited to those expressed in Section 768.28, Florida
Statutes.
9. NON-DISCRIMINATION. FKAA and County agree that there will be no
discrimination against any person, and it is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the court
order. FKAA and County agree to comply with all Federal and Florida statutes, and all local
ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1)
Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis
of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended
(20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3)
Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended
(42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug
Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination
on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act
of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as
maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10)
Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex,
religion, disability, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any Federal or state
statutes which may apply to the parties to, or the subject matter of, this Agreement.
10. GOVERNING LAW VENUE INTERPRETATION COSTS AND FEES. This
Agreement shall be governed by and construed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, the County and FKAA agree that venue shall lie in the
appropriate court or before the appropriate administrative body in Monroe County, Florida.
Neither this Agreement nor any of its terms is subject to arbitration. The County and FKAA
agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by
or between any of them the issue shall be submitted to mediation prior to the institution of any
other administrative or legal proceeding. Mediation proceedings initiated and conducted pursuant
to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and
customary procedures required by the circuit court of Monroe County.
11. SEVERABILITY. If any term, covenant, condition or provision of this Agreement (or
the application thereof to any circumstance or person) shall be declared invalid or unenforceable
to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions
and provisions of this Agreement, shall not be affected thereby; and each remaining term,
covenant, condition and provision of this Agreement shall be valid and shall be enforceable to
the fullest extent permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provisions of this Agreement would prevent the accomplishment of the original
intent of this Agreement. The County and FKAA agree to reform the Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
12. ATTORNEY'S FEES AND COSTS. The County and FKAA agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award
against the non -prevailing party, and shall include attorney's fees, courts costs, investigative, and
out-of-pocket expenses in appellate proceedings.
13. BINDING EFFECT. The terms, covenants, conditions, and provisions of this Agreement
shall bind and inure to the benefit of the County and FKAA and their respective legal
representatives, successors, and assigns.
15. AUTHORITY. Each party represents and warrants to the other that the execution,
delivery and performance of this Agreement have been duly authorized by all necessary County
and corporate action, as required by law.
16. CLAIMS FOR FEDERAL OR STATE AID. FKAA and County agree that each shall be,
and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of
this Agreement; provided that all applications, requests, grant proposals, and funding
solicitations shall be approved by each party prior to submission.
17. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. County and FKAA agree
that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives of each of the parties. If no resolution can be agreed upon within 30
days after the first meet and confer session, the issue or issues shall be discussed at a public
meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the
satisfaction of the parties, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law.
18. COOPERATION. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of this
Agreement, County and FKAA agree to participate, to the extent required by the other party, in
all proceedings, hearings, processes, meetings, and other activities related to the substance of this
Agreement or provision of the services under this Agreement. County and FKAA specifically
agree that no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement.
19. COVENANT OF NO INTEREST. County and FKAA covenant that neither presently
has any interest, and shall not acquire any interest, which would conflict in any manner or degree
with its performance under this Agreement, and that only interest of each is to perform and
receive benefits as recited in this Agreement.
20. CODE OF ETHICS. County agrees that officers and employees of the County recognize
and will be required to comply with the standards of conduct for public officers and employees
as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or
acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of
public position, conflicting employment or contractual relationship; and disclosure or use of
certain information.
21. NO SOLICITATIONLTAYMENT. The County and FKAA warrant that, in respect to
itself, it has neither employed nor retained any company or person, other than a bona fide
employee working solely for it, to solicit or secure this Agreement and that it has not paid or
agreed to pay any person, company, corporation, individual, or firm, other than a bona fide
employee working solely for it, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the breach or
violation of the provision, the FKAA agrees that the County shall have the right to terminate this
Agreement without liability and, at its discretion, to offset from monies owed, or otherwise
recover, the full amount of such fee, commission, percentage, gift, or consideration.
22. PUBLIC ACCESS. The County and FKAA shall allow and permit reasonable access to,
and inspection of, all documents, papers, letters or other materials in its possession or under its
control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the
County and FKAA in conjunction with this Agreement; and the County shall have the right to
unilaterally cancel this Agreement upon violation of this provision by FKAA.
23. NON -WAIVER OF IMMUNITY. Notwithstanding the provisions of Sec. 786.28,
Florida Statutes, the participation of the County and the FKAA in this Agreement and the
acquisition of any commercial liability insurance coverage, self-insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of immunity to the
extent of liability coverage, nor shall any contract entered into by the County or the FKAA be
required to contain any provision for waiver.
24. PRIVILEGES AND IMMUNITIES. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of
any public agents or employees of the County or the FKAA, when performing their respective
functions under this Agreement within the territorial limits of the County shall apply to the same
degree and extent to the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the County.
25. LEGAL OBLIGATIONS AND RESPONSIBILITIES. Non -Delegation of Constitutional
or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any
participating; entity from any obligation or responsibility imposed upon the entity by law except
to the extent of actual and timely performance thereof by any participating entity, in which case
the performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by the Florida
constitution, state statute, and case law.
26. NON -RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -
party claim or entitlement to or benefit of any service or program contemplated hereunder, and
the County and the FKAA agree that neither the County nor the FKAA or any agent, officer, or
employee of either shall have the authority to inform, counsel, or otherwise indicate that any
particular individual or group of individuals, entity or entities, have entitlements or benefits
under this Agreement separate and apart, inferior to, or superior to the community in general or
for the purposes contemplated in this Agreement.
27. ATTESTATIONS. FKAA agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -
Free Workplace Statement.
28. NO PERSONAL LIABILITY. No covenant or agreement contained herein shall be
deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe
County or the FKAA in his or her individual capacity, and no member, officer, agent or
employee of Monroe County or the FKAA shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of the execution of this Agreement.
29. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be regarded as an original, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute this Agreement
by singing any such counterpart.
30. SECTION HEADINGS. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not a part
of this Agreement and will not be used in the interpretation of any provision of this Agreement.
31. TERMINATION. The County may treat FKAA in default and terminate this
Agreement immediately, without prior notice, upon failure of FKAA to comply with any
provision related to compliance with all laws, rules and regulations. This Agreement may be
terminated by County due to breaches of other provisions of this Agreement if, after written
notice of the breach is delivered to FKAA, FKAA does not cure the breach within 7 days
following delivery of notice of breach. The County may terminate this Agreement upon giving
sixty (60) days prior written notice to FKAA. Any waiver of any breach of covenants herein
contained shall not be deemed to be a continuing waiver and shall not operate to bar either party
from declaring a forfeiture for any succeeding breach either of the same conditions or covenants
or otherwise. Should the Agreement be terminated, County shall pay for reimbursable costs to
the effective date of termination. Termination of this Agreement for this project shall have no
effect on any other agreement between the County and the FKAA.
32. ASSIGNMENT. FKAA may not assign this Agreement or assign or subcontract any of
its obligations under this Agreement without the approval of the County's Board of County
Commissioners. All the obligations of this Agreement will extend to and bind the legal
representatives, successors and assigns of FKAA and the County.
33. SUBORDINATION. This Agreement is subordinate to the laws and regulations of the
United Staters, the State of Florida, and the County, whether in effect on commencement of this
Agreement or adopted after that date.
34. INCONSISTENCY. If any item, condition or obligation of this Agreement is in conflict
with other items in this Agreement, the inconsistencies shall be construed so as to give meaning
to those terms which limit the County's responsibility and liability.
35. GOV:ERNING LAWS/VENUE. This Agreement is governed by the laws of the State of
Florida and the United States. Venue for any dispute arising under this Agreement must be in
Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a
reasonable attorney's fee and costs.
36. ETHICS CLAUSE. FKAA warrants that it has not employed, retained or otherwise had
act on its behalf any former County officer or employee subject to the prohibition of Section 2 of
ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of
Ordinance No. 010-1990. For breach or violation of this provision, the County may, in its
discretion, terminate this Agreement without liability and may also, in its discretion, deduct from
the Agreement or purchase price, or otherwise recover, the full amount of any fee, commission,
percentage, gift or consideration paid to the former County officer or employee.
37. CONSTRUCTION. This Agreement has been carefully reviewed by FKAA and County.
Therefore, this Agreement is not to be construed against any party on the basis of authorship.
38. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by
certified mail to the following:
COUNTY:
County Administrator
1100 Simonton Street
Key West, FL 33040
FKAA
Executive Director
1100 Kennedy Drive
Key West, FL 33040
39. FULL UNDERSTANDING. This Agreement is the parties' final mutual understanding.
It replaces any earlier agreements or understandings, whether written or oral. This Agreement
cannot be modified or replaced except by another written and signed agreement.
40. ANNUAL APPROPRIATION: Funding by County is subject to an annual appropriation
by the Board of County Commissioners.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
(SEAL)
Danny L. Kolhage, Clerk
By:
Deputy Jerk
BOARD OF C TY COMMISSIONERS
OF MONROI,,'
PNTY, FLORIDA
By:
Mayor/Cha rperson
FLORIDA KEYS
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CT AUTHORITY
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FKAA Board Approved September 21, 2006
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MONROE COUNTY ATTORNEY
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EXHIBIT "A"
PROJECT DESCRIPTION
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
Gravity wastewater collection and transmission system to serve all of the
islands, of Duck Key.
Addition of capacity to the Hawk's Cay Wastewater Treatment Plant to
service Duck Key, Conch Key and Hawk's Cay flows, and upgrade of
treatment to meet advanced wastewater treatment standards.
See ATTACHED PROJECT AREA MAP
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