Item K3
BOA R I) OF CO U ~TY (;0]\'1]\..1 [SSIONE RS
AG E:'\I DA ITEI\'1 S 11 ,"'1:\.1;\ RV
l'v1ecli llg Date, 6/15/05 - \.1 A R
D~Vlsinn- ('ounty Attomey
Hul h: hem ..... es
\.Jo
x
Staff Contan PCf:>On.: l.oh nJ:LJ" ol,lins
;\GE~D'\ rTTl\'l \VORIlIi'\G:
AuttlOri.l.ation to execute all Jmer-jOl.:ul /'1.grt'~'mem \.....ith The Kt'y /.mgo J-Vas/nnllt'l' liHllmt'lIf Ih~f!'iCl.
pLJI suant 10 previoLJs approval and direction b~' the Hoard to H,,~imbursc the J )iwricl.
rn::1\1 BACKGROUND:
A 11 Imer-Iucal ,-lgreemem bCh\iC~~n ,o\joun)(' ( TnJin~r and the f);slr;cl is nece%ary to facilitate the
~jlecti\t' aumilJistratiol1 uf the lra.nsfer and reimbursemem ur v,,'a~aewater fLillds 10 lhe I,h~lfld,
PHEVIOlJS R[1.FV,\~T IIOCe ACTIO:"\:
.Ioinf He,mll/holl - (Nfnnme (TrmJl~r and FforiJlI ;Ceys /H}uedu(;1 All/lio!'i!)': Ai(' Nesnlu!lolJ OY3-2()()2
uNd FAA,.1 H.t',\ofmiorl 0_'-(18
Inla-Ionrl Ap't'l,'ment, 2/21 /2 O() ,) (\1onroe ( .mm~}'> tile j h<;/n'cl and the Florida KI.~rs A (fuedllCl
A tirhurily),
roan ,,1xr('~m('tu. I :/] ~il004, (,Honme (.mm~r and the nis/ncf),
CO~TRA{.T/Ar;REE'lE~T CHANGES: ~'!A.
STAFF RECOMM EN DA TlONS: Appro\"al.
TOTAL COST:
$~.u, ()QO,OOQ, ,_
!ill OGKn:n; Yes X
1\0
COST TO COIJNTY~
so LJ RCt: 0"- I'F N DS:
R[VEN[IE PRODU,-J~C.: Yes
'\0 X
AI\'10t 1\'1' ItER _\10~TH
\'ear
APPROVED BY:
C ounl\' Attl,.'
0\1 H!I'urchasin~ f)ifk \1ana1l:cmcnt
c:jil--~~ ~
I'
DrYISION lHRfCTOH. .-\ PPROV r\ L:
..
....----.-
Juhn R, C.ollins, (' OUllty Attorll~'Y
DOC1."1r~'TATIO,'\j;
I ncludcd ~ u
~ol Required_
DISPOSITION;
AGI:t\'[)A ..n~M #
RC\"ls.crt 2.'0:'-
MOI\ROE COU0JTY UOAR-I) OF COUNTY COMMISSlOr\LRS
CONTRACT SU\1\1AR y
Com ract with'
Key" [,arg.o Wa~te,vater
Distl jC[
COmn,l(,l
Cnc(li \'(~
F.-'pir at inn
Date:
Lpon Exccut ion by Both Parties
(' Onlf<lCl Purposeilkscript LOll:
I n tbci I irate the drcct i \ C ad mi 11 istrat ion of the transfer and rei mhursement of wastewaler tiJ nJs t(l
! he Di stri c1.
C onlract \ 1all<luer
John R Collins
(1\ am~)
H7U
( [:.u,)
Coullty .'\!tDfIl~:."" Stop /~? __
(Depan menli.sWp i")
for BOCC meeting un
bi 15....0~
Agenda Deadline: )....:; 1/05
COT\'TR .ACT COSTS
'I nwl Dollar \ 'a luc ~lf Cant rLKt: S
Budg(,lCd'" Y t~[XJ No [l
Gram S
County r\.htch: $
:O,000,OfJO Current Ycar Pm1ion, S
~ . ~ -
..-- -.- - -. - --..--.
h;til1l:1tcd Ongoing Costs S
~ '.it) [ ilL,IHd~'d in {loll:lr\',lhh,; ~lboYd
,'W
ADDlTIOKAL COSTS
For,
(q.:, mam[CI1;]n~~, ulJ lHlC" ,IJHHC)['I~lL :>;jtlrL(:~, (C[C 1
CONTRACT REVIE\\,"
Di \'i sioJl Director
Chii[]g~S
I )arc In NcedcJ
Yc~::J "\o[]
Dalc Out
Rt'vie,";er
Risk \lanagClllcnt
y csn ~nCl
~ -. . .
o \1, n ,....PurdI3f.lIlS
y ~~L1 NuU
g~~-
~. :i.
'-" ' ,
Count\' At tOrll\:,\'
(J....7...n .::;
y c~1' j\'o[>SJ
,,_.. - -..-
CommenTS'
0\-18 FfJTIll R~.... i';Cd 2.:2"/01 f\,'1CP-II~
INTERLOCAL AGREEMENT
BETWEEN
THE BOARD OF COUNTY COMMISSIONERS OF
MON ROE COU NTY l FLORIDA,
AND
THE KEY LARGO WASTEWATER TREATMENT DISTR.GT
,2005
SECTION 1 01
SECTION 1,02,
SECTION 2,01,
SECTION 3,01,
SECTION 3,02
SECTION 3,03,
SECTION 3,04,
SECTION 3,05,
SECTION 4,01,
SECT ION 4,02,
SECTION 403
SECTION 404
SE CTION 4,05,
SECT ION 4,06,
SECTION 4,07,
S EeT ION 4,08,
SECTION 4,09,
TABLE OF CONTENTS
Paae
ARTICLE I
DEFINITrQNS
WORDS AND TERMS....,..,..,..,......,.... .."....".." ,,',',....,'" 4
CORRELATtvE WORDS.." " "...., ,',' " ,...... ...., " ",.......... .. ...." 7
ARTICLE II
INTERLOCAL AGREEMENT
PURPOSE OF INTERLOCAL AGREEMENT,....,..""",..,..,..,....,..", 7
ARTie LE III
WARRANTlES, REPRESENTATIONS AND COVENANTS
WARRANTlES, R EPR ES E NT A TIO N S AND COVE NANTS
OF THE COUNTY. ..,..,..,..,..,....,..,..""",....,..,..,..,.., ""...., ,....,..,..,,8
WARRANTIES, REPRESENTATIONS AND COVENANTS
OF TH E D ISTR rc 1. ., ..,...... ......., .... .. ,., " ...... .. .... .. .... ". .... ,..,...........9
LEGAL AUTHORIZATION, ........ .... " ,....,...... ''', "",,12
LEGAL AUTHORIZATION, ....,..,..,.."""..,..,..,..,..,...."",..,..,..,..,..,12
AUDrT AND MONITQRtNG REQUIREMENTS, "...."..,........, ......13
ARTICLE IV
PROJECT INFORMATiON
PROJECT CHANGES, ...."....,.., ...." ",..,.., ....,..,.., .."..,....,..,..,.., ,14
TJTLE TO PROJECT SrTE. ,.."" " '''',' ,,"," ""..,...."",..,..,........15
PERMiTS AND APPROVALS..".., ,.."""..,..,..,..,..,.. .."..,..,....,..,.. 15
ENGINEER ING SERVICES_ """'" , '__.. .. ' _, ....... .. .. 15
PROHIBITION AGA1NST ENCUMBRANCES , ,......"", ....,..,...... ..16
COMPLETION MONEYS, ..,...., ,...., ...."..,..,..,.., ...., .."..,..,..,...." ,16
C LO S E-OUT. .. ,.., .. ..,.., ..,..,...., ..,.., .. ,...., , ..,.., .. ,...., ..,.., " , " ,.., .. ,.., " 16
REfMBURSEMENTS...... "..".., '" "'" " ""..,....,.. ..,...., , ....,..,...... 17
ADV ANC E , " , .. ..,.., ..,.., .. '" ,.., ',',..,'"',, " ""'"....,..,..,..",,........,..,.. 18
TABLE OF CONTENTS CONTINUED
PaQe
SECTION 5,01,
SECTION 5,02,
SECTION 5,03,
SECTION 5,04,
SECTION 5,05,
SECTION 6,01,
SECTION 6,02,
SECTION 6,03,
SECTtQN 7,01,
SECTION 7,02,
SECTION 7,03,
SECTION 7,04,
SECTION 7,05,
SECTION 7,06,
SECTION 7,07,
SECTION 7,08,
SECTION 7,09,
SECTION 7,10
SECTION 7,11,
SECTION 7,12,
SECTION 7,13,
SECjTON 7,14,
SECTtON 7,15,
SECTION 7,16,
SECTION 7,17,
SECTION 7,18,
SECTION 7,19,
SECTION 7,20,
SECTION 721,
ARTIC LE V
RATES AND USE OF THE SEWER SYSTEM
NO FREE SERVICE, ' " .. ...... ....,..,..,..,....,..".."".., ,..,...., .., , ....19
MANDATORY CONNECTIONS, ,..,............", , " ".............. ......,19
MAINTE NAN CE OF TH E NORTH COMPONENTS, ,..,..,..,..,........ 19
ADDITIONS AND MODIF ICA TIONS, "..,....,..,..",.., ,....,..,..,..,...." ..19
COLLECTION OF SYSTEM DEVELOPMENT CHARGES, ..........20
ARTIe LE V I
DEFAULTS AND REMEDIES
EVENTS OF DEFAULT. , .." ........ ..,...... ....,.." ...., "..,..,..,..,..,...... 21
REMED1ES, ",' " ",' " ", , '" " """""""""""""""""""""""""""""" 22
DELAY AND WAIVER. ".. ....,....,..,..,..,.... ......, ..",.." "" ", ". 23
ARTICLE VII
GENERAL PROVISIONS
ACCESS TO PROJECT SJTE AND PLACES OF
DISTRICT RECORD RETENTION, ..,....,..,....""..".."....,....,..,.., ..24
ASSIGNMENT OF RIGHTS UNDER AGREEMENT. ""..,..,....,..,..24
AMENDMENT OF AGREEMENT. "....,..,..,..,...., .."..""..,....,..,.., ..24
ANNULMENT OF AGREEMENT AND THE DISTRICT'S
RES PONS IB~UTY TO THE C au NTY ,....,..,..,....".."....,..,..,...., ..24
SEVERABILITY. .."....,..""....,.., ......,......,..,..,..", ..".., ,...., ....,..,.., ..25
ATTORNEYS FEES AND COSTS.."...... ""....,.., " ,," ,..,.., " " 25
CLAIMS FOR FEDERAL OR STATE AID ..,..,..,..".., ""..,..,..,..,.... ,26
ADJUDICATION OF DISPUTES OR DISAGREEMENTS ..,..,',' ..,26
NOND ISC R1MlNA T ~ON , " , "'" """ " "" " "" """""""""""""""'" " 26
COOPERATION, ",..,",.."..,...."............"....,..,..,',...... .. ...., 27
COVENANT OF NO INTEREST, .., " '..' """,..,......,,28
CODE OF ETHICS".."" ,.. ..........,..,..,..,....,..,.., ..".., ,..,......,..,..,.. 28
NO SQLC1TATIQN/PAYMENT ....,...... ..,....,......,.."".., ,...., ...., ...... 28
PUBLIC ACCESS TO RECORDS,..,..,..,...."....""",....,..,..,..,..,..,.. 29
NON-WAIVER OF IMMUNITy....,..,..,....,..,..,...., .."..""..,....,..,.., ..29
PRIVILEGES AND IMMUNITIES..".., ............, " ",..,,,.., " " " ",29
LEGAL OBLIGATIONS AND RESPONSIBILITIES;
NON-DELEGATION OF CONSTITUTIONAL OR
STATUTORY DUTIES" ",.. .... ..,.. .. .......... ..", "" ..", .. " " "", 30
NON -R E LIANe E BY NON-PARTIES......,..,..,..,..""....,..,..,..,....,.., 30
NO PERSONAL LIABJUTY ................, .. .... ,.." ,.." .." ", ,.." ,31
SECTION HEADINGS, ,....,..,.., ....,..,..,..,..,...., ..".., ,......,..,..,..,..,..,31
GOVERN~NG LAW: VENUE,..,..,..,....,..,..,..",.."".., ,....,..,..,..,.., ,..,31
TABLE OF CONTENTS CONTINUED
PaQe
ARTICLE VIII
CONSTRUCTiON CONTRACTS AND INSURANCE
SECTtQN 801,
SECT~ON 8,02,
SUBMITTAL OF CONSTRUCTlQN CONTRACT DOCUMENTS" 31
lNSURANCE REQUiRED,..,..,....,..,..,..,..""....,..,..,..",.."....,.."""" 32
ART lGlE IX
ADDITIONAL PROJECT COMMrTMENTS OF THE DlSTR1CT
SECTION 9,01,
SECTION 902,
SECTfON 903.
PROJECT COSTS..,..""..,..,..,....,..,..,..,...." ,..,..,..,..",..,..,..,..""",,32
SCHEDULE. "',',..,, "'",,..,..,',' ..".."..,' ..,',..,..,',' " "",,' """ " 32
PUBLIC PURPOSE REQUIREMENT , """""" ,___ '" , ,_33
ART lCLE X
EXEC UTION OF AGREEME NT
SECTION 10,01 COUNTERPARTS__ _____________ _____ _ __34
SECTION 10,02. SUPERCEDES OTHER AGREEMENTS,....",..,..,..,..""",....,..,.."" ..34
SECTION 1 003, FILING AND EFFECTIVE DATE.",..,..,..,..,.." ,....,...., .."..,..,..,.., '" 34
APPENDICES:
AP PEN 0 IX A , , .. .. .. ,.., .. .. , ,.., .. .. .. .. .. , .. ,.. ........ .... .. , " " ........", , , .. .. .. .. .. .. , , , , , .. .. ,...., .. , A-1
APPENDIX B, .. ..,.. ........ ....,..,..,...... ....,..,..,..,..,......, ........ ....", ......, " '" ...... ...., B-1
II
INTERlOCAL AGR EEMENT
THIS INTERLOCAL AGREEMENT is entered into pursuant to section 163,01,
Florida Statutes, by and between Monroe County, a polittcal subdiv~sion of the State of
Florida (the "County"), and the Key largo Wastewater Treatment District, an
independent special district existing as a public agency under the laws of the State of
Florlda (the "0 istrjct"),
WHEREAS, the County possesses home rule authority and, in addition: IS
authorized by section 125,01 (1), Flonda Statutes, to provide, assist in providing. and
fund centrahzed wastewater treatment systems and the County may enter into
agreements with the Dtstrict relative to such activities; and
WH EREAS, the County's Com prehensive Plan requires that certain waslewater
treatment levels be achieved in unincorporated areas of the County by 2010, levels
which can best b€ achieved by the Installation of central wastewater treatm ent system 5~
and
WH EREAS. the District was formed in 2002 by the Legfslature of the State of
Florida pursuant to House Bill 471, Chapter 2002-337, Laws of F~orida, for the purpose
of perform ing such acts as shaH be necessary for the sound planning, acquisit ion,
development, operation and mafntenance of a wastewater management system within
the district, includ~ng all business facilities necessary and incidental thereto; and
WHEREAS, Chapter 2002-337, Laws of Florida, provides the District with
exclusive jurisdiction over lhe acquisition, development, operation and management of
a wastewater management system in and for the Distnct boundaries; and
1
WHEREAS, the County, the District and the Florida Keys Aqueduct Authority (the
"Authority") entered into an intertocal agreement on February 21, 2003, pursuant to
which the parties agreed to transfer wastewater funds and functions from the Authority
to the 0 istrict and
WH EREAS, the Monroe County Sanitary Wastewater Master Plan (the "Master
Plan") identified and acknowledged the benefits to Monroe County, its residents. visitors
and environs from the installation of regionalized central sewer systems and identified
areas and projects which should be given priority attention, referred to as ''Hot Spots."
and
WHEREAS) the County, the District and the Authority have worked to Identify
funding sources and grants from local, state and federal sources to advance the
provision of central wastewater services and programs on a pnority basis and guided by
the Master Plan's identification of "Hot Spots;" and
WH EREAS) it is im perative to the heanh, safety and welfare of the crtrzens of
Monroe County that the delivery of such wastewater facilities and programs be
expeditiously advanced, and therefore, the County, the Authority and the District
entered into certain joint resolutions and Interlocal agreements to utilize the resources of
two grants and County Capital Jnfrastructure Sales Surtax Funds for the benefit of the
District, and the County created a Mumcfpal Services Taxing Unit ("MSTU") to assist the
D istric1: and
WHEREAS, the County has the legal authority to provIde funding to the District
as provided herein to accomplish its purposes; and
2
WHEREAS, the Dlstricl has approached the County with a request for additional
financial assistance to initiate design, permitting and construction of a portion of a
regional wastewater system for serv~ce within the District's boundahes to be identffied
as cer1ain North Key Largo sewer system components (the 'North Components"): and
WHEREAS. the County has delerm ined that it currently has cash reserves on
hand In the amount of up to Twenty Million Dollars ($20,000:000) which previously were
obta ined by issuance of infrastructure sales surtax bonds levied pursuant to section
212,055(2), Ftorida Statutes (the "Infrastructure Sales Surtax Bond Proceeds") and from
other revenue sources; and
WHEREAS, the conslructlon of the North Components will provide central
wastewater service to additional "Hot Spot" areas identrtied in the Master Plan; and
WHEREAS~ the District has informed the County that the design and
constructlon processes for the Project can commence upon the County's agreement to
reimburse the District for up to Twenty Million Dollars ($20,000,000) {less certain
adjustments and County Cosls (as defined herein, the "Reimbursemenl Amounl") of lhe
costs to be expended by the District to design: perm it and construct the Project; and
WHEREAS, the County has determined that it is in the best rnterest of 2311 of the
citizens of the County that a portion of the Infrastructure Sales Surtax Bond Proceeds
and other cash reserves shall be applied to satisfy the Reimbursement Amount to be
provided for the construction of the North Components;
NOW, THEREFORE, in consideration of the mutual covenants, representations
and promises set forth jn this Agreement and for other good and valuable consrderation
3
each to the other, reC8lpt of which is hereby acknowledged by each party, the County
and the Disthct hereby agree, stipulate and covenant as follows
ARTICLE I
D EFIN IllON S
SECTION 1.01.
WORDS AN 0 TERMS. Words and term s used herein shall
have the meanings set forth below'
"Agreement" means this Jnterlocal Agreement.
"Authority" means the Flonda Keys Aqueduct Authorrty
"Authorized Representative" means the offic~al of the County or the District
authorized by ord inance or resolution to sign docum ents of the nature identified in th is
Agreem enl
"Bond Documents" means Resolution No, 077-2003. adopted by the County on
February 19, 2003, as amended and supplemented (the "Bond Resolution'} and all
other documents pertaining to the issuance by the County of the County Bonds,
"County Bonds" means the tnfrastructure Sales Surtax Revenue Bonds
previously issued by the County,
"County Clerk" means the Clerk of the Circuit Court for Monroe County, Fforida,
as ex-officio Clerk. of the Board of County Commissioners of Monroe County, Florfda,
and such other person as may be duly authorized to act on his or her behalf,
"County Costs" includes all costs of the County, induding legal and financial
<3dvisory fees and expenses, costs incurred by the County to compensate lega~,
engrneering and other advisors associated with supplements to the Master Plan, review
and overs ight of the Proj eet, and preparation of interlocal agreements and other
4
resolutions and agreem ents requIred to perm it lhe County to use the proceeds of the
Infrastructure Sales Surtax Bond Proceeds for the purposes identified In th IS
Agreement County Costs also shall include any costs of a similar nature incurred by
lhe County to perform the review, fnspection, audit and monltonng functions identified in
thfS Agreement.
"District" means the Key Largo Wastewater Treatment 0 istrict
"Equivalent DweUing Units" or "ED Us" means the standard unit of applying
System Developmenl Charges, as described later in this Agreem ent. For residenlia I
im proved parcels, a minimum of one EDU shall be applied to each family residential
dwelling. condominium unit and mobile home, EOUs for multi-fam ily structures is
detennined by the number of dwelling units (ilL, six units in a multi-fam ily structure will
constitute six EDUs) For non-residential fmproved parcels of property, the number of
EDUs will be calculated based on a formula to be detennined by the District. A
minimum of one (1) EDU shall apply to each parcel
ION orth Components" means the wastewater treatm ent, coHection, transm tssion
and disposal facrlities to be designed, perm itted and constructed by the District as
specifically identified in th is Agreem ant to provide wastewater service to a portion of the
Key Largo area of unincorporated MDnroe County,
"Operation and Maintenance Expense" means the costs of operating and
m a~ntaining the System determ ined pursuant to generally accepted accounting
principles (as applied to state and local governments), exclusive of interest on any debt
payable from system revenues, depreciation, and any other items not requlnng the
expenditure of cash,
5
"Project" means the design, perm itting, construction and operation of the North
Components, The Project, and projected Project Costs, are described fn greater detail
In Appendix A which is attached hereto and Incorporated herein,
"Project Costs" means the cost of designing, perm lttfng, and constructing the
North Com ponents, including the labor, materials and equipm ent and general and
administrative costs In connection with the design and construction of the North
Components under contracts to be entered by the District and any other "Costs" {as
defined in the Bond Resolution) w~h respect to the Project, Project Costs may Include
casts expended by the District rn connection with the design and construction of the
North Com ponents, regardless of the date of expenditure, and regardless of whether
they were expended prior to the date of th is Agreement. Project Costs incurred prior to
the dale of th is Agreement sha~1 be subject to approval of the County's bond counseL
Project Costs shall not include Operations and Maintenance Expenses or County Costs,
The County and the District acknowledge and agree that the ProJoct Costs WJll exceed
Twenty Million Doljars ($20,OOO,OOO) and both parties agree that the District will be
obligated to secure addiHonal financing to complete the Project.
"Reimbursement Amou nt" means the County's reim bursement to the 0 [strict of
Projec~ Costs expended by the D;strlct to design, perm it and construct the North
Components which will be an amount of Twenty Million Dollars ($20,OOO:OOO}, less
County Costs, The Relm bursement Am Dunt shall rndude an advance of funds in the
amount of One Million Dollars ($1,000,000) to the District payable by the County as
provided in Section 4,09 of this Agreem ent
"Senior Revenue Obligations" means the following debt obligations:
6
(a) Additiona I bonds issued on a parity with the bonds fdentified above; and
(b) Any refund~ng bonds issued to refund the obligations ldentified above,
"System Development Charges" means connection fees, capital expansion
fees, utility Improvement fees or other similar fees and charges levied upon and
collected by the District from new users of the System as a contributiDn toward their
equitable share of 1he cost of capita I im provements required to serve new users of the
Nor1h Com ponents,
SECTION 1.02.
CORRELATIVE WORDS. Words of the masculine gender
sha II be understood to incl ude correlative words of the fem imne and neuter genders,
Unless the context sha~1 otherwise indicate, the singular shall include the p~ural and the
word "person" shall include corporations and associations, including publ ic bodies: as
well as natural persons,
SECTION 2.01.
ARTIe LE II
IN TERLOCAL AGREEM ENT
PU RPOSE OF INTERLOCAL AGREEM ENT. The purpose
of this Agreement is to continue the cooperative efforts between the County and the
District to develop centraltzed wastewater treatment, collection and disposal services on
a regfonal basis in the most efficient manner and at the most reasonable cost
practicable so as to best meet the public's needs and serve the public Interest. By this
Agreement, the District agrees to initiate and comptete construction of the North
Components which will serve approximately 2,500 Equivalent Dwelling Units ("EDUs")
initially and 6,000 EDUs upon comp'et~on of the System,
7
The Master Plan identifies the area to be served by the North Components as
~ncluding the four highest priority areas for central wastewater service in the upper keys,
Centralized wastewater services currently are not avaifable to businesses and
residences to be served by the North Com ponents, The preva fling method of
wastewater collection, treatm ent and disposal in the area to be served by the North
Components currenlly is the utilization of on-stte sewage treatment and disposal
systems, incfuding package planls, cess pits and septic systems The cess pits,
package plants and septic systems provide inadequate sewage treatment resulting In
pollution of near shore water, damaging of the living coral reefs, and other adverse
affects on lhe health and welfare of the citizens of lhe County and the County's tourist
based econom y. The County is requ ired to el im inate the use of cess pits and sept~c
systems in the Key Largo area of the lower keys and desires to make available 10 the
residences and businesses of the Key Largo area a regional wastewater collection,
treatment and disposal system, The construction of the North Componenls will
Improve, mafntain and protect the heafth, safety and welfare of the cilizens of the
County and serves a publ ic purpose
ARTICLE III
WARRANTJES, REPRESENTATtONS AND COVENANTS
SECTION 3.01. WARRANTIES, REPRESENTATIONS AND COVENANTS
OF TH E COU NTY.
The Counly warrants, represents and covenants that:
(1) The Counly has furl power and authority to enter into thfs Agreement and
to com ply with the provis ions hereof
8
{2} The County curren~ly is not ~he subject of bankruptcy insolvency, or
reorganization proceedings and IS not fn default of, or otherNise subject to, any
agreement or any law, adm inistrative regulation, judgment, decree, note, resolution,
charter or ordjnance which would currently restrain or enjoin it from entering into, or
comp'yrng with, this Agreement,
(3) There is no material act~on, suit, proceeding, inquiry Dr tnvestigation, at
law or in equity, before any court or public body, pending or, to the best of the County's
knowledge, threatened, which seeks to restrain or enjoin the County from entering into
or com plying with thls Agreem enL
(4) The County covenants that this Agreement is entered into for the purpose
of formalizing the agreement of the County to use infrastructure Sales Surtax Bond
Proceeds In an am aunt sufficient to reim burse the District for Project Costs up to the
Reim bursem ent Amount IdentIfied in thfs Agreement and that such expend iture of bond
proceeds will in all events serve a public purpose, The County covenants that it will
coordinate with the Djstrict and aud it the 0 istrict records as may be necessary to
monitor whether the Pro)ect is progressing in the manner contemplated herefn and shall
be com pleted to fulfill the publ ic need rdentifjed in this Agreement
SECTION 3.02.
OF TH E DISTRICT.
WARRANTIES, REPRESENTATIONS AND COVENANTS
The District warrants, represents and covenants that.
(1) The District has full power and authority to enter into this Agreement and
to com ply with the provisions hereof.
9
(2) The 0 istrict currently is not the subj eet of bankruptcy. insol veney, or
reorganization proceedings and is not in default of or otherwise subject to, any
agreement or any law, administrative regulation, ludgment decree, note, resofution,
charter or ordinance wh ich wou Id currently restrain or enjoin it from entering Into, or
com plYing with, this Agreem ent.
(3) There lS no materlal action, suit, proceeding, rnquiry or investigation, at
law or in equily, before any court Dr public body, pending or, to the best of the District's
knowledge.. threatened. whfch seeks to restrain or enjoin the District from entering Into
or complYing with thIs Agreement.
(4) AH permits, real property interests, and approvals required to construct
and complete the Project have been or will be obtained for construction and use of the
Proj eet. The District knows of no reason why any future required perm its, real property
interests or approvals are not obtainable,
(5) The District shall undertake the Project on rts own responsibility and shall
apply proceeds of the County Bonds only to payor reim burse val id Project Costs,
{6) To the maximum extent permitted by law, the District shall release and
hold harmless the County, its officers, members, employees and contractors from any
claim arising in connection wrth the Dfstrict's actions or omissions fn its planning.
engineering, adm inistrahon, and construction activities regarding the Proj ect and the
~istrict's operation of the Project.
(7) The District shall comply with all applicable State and Federal Jaws, rules,
and regulations To the extent that any assurance, representation, or covenanl of the
10
District contained herein requfres a future action I the District shall take such action as is
necessary for com phance,
(8) The District shall maintain records using accounting principles established
and accepted by the Governmental Accounting Standards Board, As part of its
bookkeeping system, the District shaH keep accounts associated with the Project
separate from all other accounts of the District and ~ shall keep accurate records of all
expenses and expenditures relating to the Project so as to facilitate to the greatest
extent possible the Countys abili1y to review and audrt Project Costs in the manner
provided by this Agreement.
(9) The District agrees to construct the Project in accordance with the Project
schedule provided in Section 9 03 hereof
(10) The District shall secure any additional funds necessary in an amount
sufficient to complete the Project on or before the date identffied in the Project schedule
and shaH pursue com pletion of the Project in the most expedrtious manner possible
conSidering ihe publ ic purpose to be served by this Agreem ent but al so with proper
consideration for the need for sound utility management in the completion of the Project
(11) The 0 istnct covenants that this Agreem ent tS entered into for the purpose
of form al izjng the agreement of the County to use Infrastructure Sales Surtax Bond
Proceeds in an am aunt sufficient to reim burse the 0 istrict for funds expended to design,
permit and construct the Project up to the Reimbursement Amount Identrfled in this
Agreement and that such expenditure of bond proceeds will in all events serve a public
purpose,
11
(12) The District shall take no action or omrt to take necessary action that wlll
adversely affect the tax~exem pt status of the County Bonds: the 0 istrict will take such
action as is reasonably requested by the County in connection with the County Bonds
so as to allow the County to retafn the takexempt status of the County Bonds, The
hofders of the County Bonds shall be considered thrrd party beneficiaries for purposes
of this covenant.
(13) The D~strict shall not enter into any contract or other instrum ent with
respect to the management of the Key Largo Sewer System without the prror written
consent of the County
SECTION 3.03. LEGAL AUTHORIZATION. Upon signing this Agreement,
the County's legal counsel hereby expresses the opinion, generaHy, that this Agreem ent
has been duly authorized by the County and sha II constitute a val id and bind ing legal
obngation of the County enforceable in "lccordance with its terms upon execution by
both parties, provided, however, me enforceabllity thereof may be subject to
bankruptcy, Insolvency, reorganfzalion, moratorium and other similar jaws affechng
creditors' hghts generally and subjecl, as to enforceability, to general principles of equity
and the exercise of judicial discretion,
SECTION 3.04. LEGAL AUTHORIZATION. Upon signing this Agreement.
Ihe District's legal counsel hereby expresses the opinion, generally, that thfs Agreement
has been duly authorized by the District and shall constitute a vafid and binding lega~
obligation of the District enforceable in accordance with its terms upon execution by
both parties, provided, however, the enforceabflity thereof may be subject to
bankruptcy: insolvency, reorganization. moratorium and other sim ilar laws affecting
12
creditors' rights generally and subject, as to enforceability, to general principles of equity
and the exercise of judicial discretion,
SECTION 3.05.
AUDIT AND MONITORING REQUIREMENTS. The District
agrees to the following audit and monitoring reqUlrem ents
(1) Final Audit Report, Wfthin six (6) months after completion of the Project.
as dem onstrated by the Dist6ct placing the proj eet into service, the District shall subm it
to the County a Project-specific audit report (the "F inal Audit Report") identifying all
related Project Costs, The Final Audit Report shall Identify all Reimbursement Amounts
received from the County, total Project Costs, and otherwise describe the District's
compliance with the terms of this Agreement The District shall cause its auditor to
notify the County immediately If anythrng comes to the auditor's attention dUring the
exam ination of records that would lead the auditor to question whether any costs are
aflowable Project C OSt5 under th is Agreem en!. The fina I determ Ination of whether such
costs are appropriale Project Costs shall be made by the County,
(2) Record Retention The District shall retain sufficient records
demonstrating rts compliance with the terms of this Agreement for a period of five years
from the date that the Final Audit Report ~s issued, and shatl allow the County, or jts
designee, or lhe County Clerk, access to such records upon request The Dfstriet shall
ensure that audit working papers also are made available to the County, or its designee,
or the County Clerk, upon request, for a period of five years from the date that the Final
Audit Report is issued,
(3) Monitorino, The Distrfct agrees that the County's monrtoring procedures
may include, but not be I im ited to, review of contracts related to the Proj ect as well as
13
englneenng designs and plans, on-site visits by County staff or other designee at
Project siles and the District's adm inistratlve offices, Iim ited scope audits, and/or other
procedures By entering into this Agreement the District agrees to comply and
cooperate with any m onttoring procedures and processes deem ed appropnate by the
County, In the event the County determ ines at any time that a limited scope audit of the
District is appropriate, the D istricl agrees to com ply with any additional instruclions
provided by the County to the District regarding such audit, The District further agrees
to com ply and cooperate with any inspections, reviews, investigations. or audits
deemed necessary by the County Clerk or other auditor of County business, Any costs
incurred by the County to perform any review, audit and other monitoring activities
permitted under this Agreement shall be deducted from the Reimbursement Amount.
(4) Reportlnq, The Dlstrict shaH provide to the County a copy Df any reports,
management letters, or other information required to be subm itted to lenders or other
persons as may be required pursuant to the terms of the District's Senior Revenue
Obligahons, state revolving loan fund documents and any documents related to the
Project Such copies shaH be forwarded to the County at the same time as such
docum ents are provided to third parties pursuant to the term s of the respective
docum ents
ARTICLE IV
PROJECT INFORMATION
SECTION 4.01. PROJECT CHANGES. Proposed Project changes and
addenda shaH be subm itted to the County prior to acceptance by the District to permit
the County to insure that such changes will not cause a default of covenants contained
14
in the Bond Documents. adversely affect the tax exempt status of the County Bonds, or
othervlise cause the Counly to incur any penalties, costs or reporting requirem ents
The Distrfct shall not approve any change or addendum if lhe County obj eets and such
objection is based upon the County's determ ination that any of the events ident~ied In
the preceding sentence couid occur if the change or addendum were to be approved by
the District. The District and the County wlll agree to procedures allow,ng for prompt
review of any changes and addenda, and the parties will use thetr best efforts lo
m inrm ize any delays in review and approval of them,
SECTION 4.02.
TITLE TO PROJ ECT SITE. The 0 istrict shall have an
interest in real property suffiC!8nt for the constructfon and location at the Project free
and clear of liens and encumbrances which would impair the usefulness of such sites
for the intended use, Evidence of clear title shall be a conditiDn precedent to the
County's obligation to reimburse the District for Project Costs, The County understands
and acknowledges that except for the wastewater treatment plant and other facilities for
which the District believes a possessory interest in land is required, the Disthct intends
to construct all project components within easements,
SECTro N 4.03.
PERMITS AND APPROVALS. The District shall obtajn all
perm its and approvals required for construction of the Project or portion of the Project
funded under this Agreement.
SEGTJON 4.04. ENGINEERING SERVICES. One or more professional
eng ineers, registered in the State of Florida, shall be em played by, or under contract
with, the District to oversee design, penn itting and construction of the Project
15
SECTION 4.05.
PROHIBITION AGAIN ST ENCU M BRANCES. The 0 istrict is
prohibited from selling, leasing, or disposing of any pari of the Nor1h Components
unless the written consent of the County is first secured, The County shall consent to a
proposed sale, lease or disposition solely upon the cond~tion that the County is able to
obtain an opinion of counsel that such sale, lease or disposition shatl not be cause for
default of any covenants contained tn the Bond Documents, defeasance of the Bonds,
loss of tax exem pt status of the Bonds, or otherwise cause the County to incur arbrtrage
penalties or Dther additional penalties, costs or reporting requirements under the Bond
Docum ents, Th is prohibition shall continue until the County Bonds reach maturity or are
otherwise redeemed in full jn accordance with the terms of the County Bonds and Bond
Docum ents,
SECTION 4.06.
COM PLETION MON EVS. In addit ion to the Reim bursement
Amount to be reimbursed to the District by the County hereunder; the District covenants
that it has obta ined, or will obta in. sufficient moneys from other sources to com plete
construction and place the Project in operation on, or prior to, the date specified tn th is
Agreement Failure of the County to approve a Reimbursement Amount above the fevel
identffied in this Agreement shall not constitute a waiver of the District's covenants to
complete and place the Project in operation in a manner consistent with the terms of
th is Agreem ent.
SECTION 4.07. CLOSE-QUT. The County shall have the right to conduct a
fnat inspection of the Project and Proj eet records subsequent to notification by the
Distnct that the Project has been placed into service_ Follow;ng the inspection,
deadlines for subm itting additional reimbursement requests, if any, shaH be established
16
along with deadlines for completing additional requirements as may be necessitated by
the Bond Documents, if any, Deadlines and the identification of add~tonal
reqUirements, if any, shall be incorporated into this Agreement by amendment
SECTION 4.08. REIMBURSEMENTS. Reimbursements to the District shall
be made only by the County Clerk and only when the requests for such relm bursem ents
are accompanied by a certification from the County's Engineering Department that such
costs are proper PrOject Costs, Reim bursements shall be made dlrec11y to the 0 istnct
for Project Costs, Reim bursem ent for Project Costs shall be made only after receipt by
the County of the following from the District:
(1 ) A completed relm bursement request fonn in the form attached hereto as
Appendix B signed by the District's Authorized Represeniative, Such requests must be
accom panied by an rtem ized disclosure of the materials, labor, or services provided In
sufficient deta il to idenhfy the nature of the work perform ed~ the cost or charges for such
WO rk; and th e perso n prov id in g the service or pe rf onn ing the work,
(2) A certification signed by the 0 tstrict' s Authorized Representative as to the
current estimated costs of the Project; that the materials, labor, or services represented
by the invoice have been satisfactorily purchased, performed, or received and applied to
the Project; and that the 0 istrict was required to incur such Project Costs under the
terms and provrstons of the contract(s} between the District and third parties providing
services necessary to com pletion of the Project.
(3) A certrtlcahon by the engineer responsible for overseeing construction
indicating the percentage of the Project completed as of the date of such certrt"ication;
stating that the equipment, materials, labor and services represented by the
17
constructIon In va ices have been satisfactorily purchased or received, and appl ied to the
Project in accordance wtth constructfon contract docum ents stating that paym ent is in
accordance with construction contract provisions~ stating that construction, up to the
point of the reimbursem ent request, is in campi iance wn:h the contract documents: and
IdentrFYlng aH additions or deletions to the Project which have materially altered the
Project's perfonnance standards, scope, or purpose
(4) Such other certificates or docum ents by engineers, attorneys,
accountants, contractors: or suppliers as may reasonably be required by the County,
SECTION 4.09. ADVANCE. The County and the 0 istrict recogn ize that the
District is in need of capital funds to initiate the Project, Recognizing this need, the
County agrees to provide lhe District with an advance of funds to b€ used by the District
so~ety to pay Project Costs tn the amount of One Million Dollars ($1,000,000) (the
"Advance"), which sum shall be credited against the Reimbursement Amount which the
County is obligated to provfde to the 0 tstrict under this Agreem ent. The Advance shall
be paid by the County to the Distrrct within th irty (30) days of execulion of th is
Agreement by the County, As the Advance tS spent by the District the District sha"
complete the Reimbursement ReqUisition form provided in Appendix B and supply the
County such other documents and infonnation as required In this Agreement as
necessary to perm it the County to confirm that the Advance has been used solely for
Project Costs
18
ARTiCLE V
RATES AND USE OF THE SEWER SYSTEM
SECTION 5.01. NO FREE SERVlCE. Except as may be required by
applicable law, the District shall not pennit connections to, or furnish any services
afforded by, the North CCJmponents without making a charge therefore based on the
District's connectjon pol icies,
SECTtON 5.02.
MAN DA TORY CONN ECTION S. The 0 istrict shall adopt, as
necessary, and enforce requirements consistent with applicable laws for the owner,
tenant or occupant of each building located on a lot or parcel of land for which the Key
Largo Sewer System is avaitable to connect such buifding to the Key Largo Sewer
System,
SECTION 5.03.
MAINTENAN CE OF TH E NORTH COM POENTS. The
District shall operate and mafntain the Key Largo Sewer System in a proper, sound and
economical manner and shall make all necessary repairs. renewals and replacements,
SECT'ON 5.04. ADDITIONS AND MODIFICATIONS. After completion of
the Project, the District may make any addiHons, modrtications or improvements to the
North Components which the 0 istrict deems desirable and which do not materially
reduce the operational integrity of any part of the Key Largo Sewer System, All such
renewals, replacements. additions, modifications and improvements shall become part
of the Key Largo Sewer System,
19
SECT~ON 5.05.
COLLECTtON OF SYSTEM DEVELOPMENT CHARGES.
(1) The District shall coiled System Development Charges to fund a portion of
the capita I costs of the North Com ponents, The 0 istrict and the County recognize that
System Development Charges should be established at suffic1ent levels so as to
equitably assfgn the capitar costs of constructing sewer system s to those users that are
imposing the need for construction of the system as well as benefiting from the
enhanced use and enjoyment of developed property bestowed by the existence of a
central sewer system, The existence of a central sewer system enhances the use and
enjoyment of improved property by: (a) facilitating the development of property and
increasing the use and enjoyment thereof; (b) positively affecting the marketability and
market value of the property; (c) providing a means to best protect the quality of the
surrounding water suppl ies; (d} properly and safely drsposing of sewage generated from
improved property; and (e) enhancing improved property through the environmentally
responSible use and enjoyment of the property,
(2) The County and the District furiher recognize that the commitment to
collect an equitable and reasonable portion of the capital cost of constructing the Key
Largo Sewer System from the proposed users of the Key Largo Sewer System w~1I
facilitate and maximize access of the County and the District to addftional Federal and
State funding ~ssisti3nce for the Project and similar regional sewer projects, including
system expansjons, to be constructed by the County and the Drsthct
(3) The District has confIrm ed that it will retain an expert In utilrty rates and
financial planning to deliver a report recomm ending an appropriate System
Development Charge per EDU to be co~lected from users of the Key Largo Sewer
20
System The County and the District recognize that the total capitaf cost of providing
wastewater service to future users of the Key Largo Sewer System exceeds Ten
Thousand Dollars ($10,000) per EOU, By establishing a System Development Charge
in an appropriate amount, the District and the County acknowledge that they will be able
to maxim ize the level of no cost and/or low cost Federal and State funding assistance
for the construction and future expansion of the Key Largo Sewer System and sim ilar
systems to be constructed in un,ncorpor.ated Monroe County, The County and the
District further recogn ize that the collection of System Development Charges serves to
reduce the month~y cost of service to users and thus reduces the rates which users
would be required to pay to the Distrfct on a monthly bas is,
(4) The County and the District further agree that the System Development
Charge may be collected by the District and paid by the users of the Key Largo Sewer
System over a period of time and that the District may also recover the capital costs of
the Project through such other capital recovery mechanisms as may be available to the
District including, but not lim ited to, non~ad valorem assessments,
ARTICLE VI
DEFAULTS AND REMEDIES
EVENTS OF DEFAULT- Each of the following events IS
SECTION 6.01.
hereby dedared an event of default:
(1) Failure by the District to comply with the provisions of this Agreement or
failure in the performance or observance of any of the covenants or actions required by
this Agreement ;r such failure shall conlfnue for a period of 60 days after written notice
thereof to the 0 istrict by the County,
21
(2) Any warranty, representation or other statement by, or on behalf of, the
Distnct contained in this Agreement or in any tnformation furnished by the District in
compliance with, or In reference to, this Agreement, is materially false or misleading,
(3) An order or decree entered, with the acquiescence of the District,
appointing a receiver for the Dis~rjct or if such order or decree, having been entered
wrthout the consent or acquiescence of the Drstrict, shall not be vacated. discharged or
stayed on appeal within sixty (60) days after the entry thereof
(4) Any bankruptcy, insolvency or other similar proceeding instituted by, or
against, the District under federal or state bankruptcy or insol veney law now or hereafter
in effect and, if instituted against the 0 islrict, is not dism issed within sixty (60) days after
filing,
(5) Failure of the D~strict to give immediate written notice of default to the
County if such fail ure shall continue for a period of fourteen (14) days,
SECTION 6.02. REMEDIES. Upon any event of default. the County may
e nf orce its ri ghts by any of th e following rem ed ie s:
(1} By refusing to reimburse the District for any Project Costs incurred by the
District subsequent to the date that the County provides written notice by facsimjle copy
or overnight delivery that the Distnct is in default under this Agreement and the County
shall be relieved of any liabrlity for such Project Costs unless otherwise agreed to by the
County in wrrting;
(2) By m andam us or other proceed ing at law or In equity, to requJre the
Drstrict to fulfill Its obligations under this Agreement,
22
(3) By action or suit in equity, to en)oin any acts or things which may be
un lawful or in violation of the rights of the County,
(4) By applying to a court of competent jurisdiction for the appointment of a
receiver to manage the D is1rict, establ ish and collect fees and charges, or issue debt;
and apply the revenues to the completion of the Project and the District's obligations
under this Agreement,
SECTION 6.03.
DELAY AN 0 WAIVER. No delay or om ission by the County
or the District to exercise any right or power accruing upon an event of default shall
impair any such right or power nor shall be construed to be a waiver of any such default
or acquiescence therein, and every such right i3nd power may be exercised as often as
may be deemed expedient. No waiver of ~ny default under this Agreement shall extend
to or affect any subsequent event of default, whether concernfng the same or dffferent
provision of this Agreement, nor shall such waiver impair consequent rights or remedies
of the County or the District hereunder,
23
SECTION 7.01.
ART1CLE VlI
GEN ERAL PROVISION S
ACCESS TO PROJECT SITE AND PLACES OF DISTRICT
RECORD RETENnON. The District shall provide County representatives with access
to Project sites and admlntstrative offices (as well as other offices where Districl records
may be retained) dunng normal business hours, The District shall cause its engineers
and contractors to cooperate in the fulfillment of the Drstrict's obligations hereunder and
shall require cooperation with County representatives during Project inspections
Including, bu~ not I im ited to, making available work ing copies of contracts, invoices
purchase documents, plans, maps and specrFications,
SECTION 7.02.
ASSIGNMENT OF RIGHTS UNDER AGREEMENT. Neither
the County nor the District shall have the nght to assign rights or obligations created by
th is Agreem ent to any th ird party wfl:hout the prior written consent of the other party,
SECTION 7.03. AMENDMENT OF AGREEMENT. This Agreement may be
amended in wrrting, except that in no event shall any amendment be perm itted which is
inconsistent with the terms and covenants of the County Bonds or Bond Documents,
SECTtON 7.04.
AN N ULMENT OF AGREE MENT AND THE DISTRICTS
RESPONSIBILITY TO THE COUNTY. The County may unilaterally annul thfs
Agreement if the District has not drawn any reimbursements of Project Costs within
eighteen (18) months after the effective date of this Agreement or [f the County
possesses reasonab~e certainty, ~n the Counly's SO~e discretion, that the County will
suffer a default under the Bond Documents, impairment of tax exem pt status of the
County Bonds, arbi~rage penalties or incur other costs or penalties due to the actions or
24
inaction of the District. In the event that the t<3X exempt slatus of the County Bonds is
~mpaired, arbitrage or other tax pena~ties are incurred or the County incurs any other
costs or penalties resulting from the District's actions or inaction, the District shall be
responsible to pay all costs incurred by the County as a result of such event or events,
including attorneys fees, penalties and costs of any kind or manner associated with
such impairment of tax exempt status, arbitrage or other tax penalties or other event.
SECTION 7.05. SEVERABtllTY. 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 term s, covenants, cond itions and provis ions of thls
Agreem ent shall not be affected thereby; and each remain ing term. covenant, condition
and provis ion of this Agreement shall be va I id and shall be enforceable to the fullest
extent pennltted by law unless the enforcement of the remaining terms, covenants.
conditions and provisions of this Agreement would prevent the accomplishment of the
original fntent of this Agreement. The County and District agree to reform the
Agreem ent to replace any stricken provision wjth a val id provlsion that comes as close
as posSIble to the fntent of the stricken provision,
SECTION 7.06. ATTORNEY'S FEES AND COSTS, The County and District
agree that in the event any cause of action or adm inistrative proceeding is initiated or
defended by any party relative to the enforcement or interpretation of this Agreement,
the prevafling party shall be entitled to reasonable attorneys' fees, court costs,
investigative, and out-of-pocket expenses, as an award against the non-prevailing party,
and shall inClude attorney's fees, court costs, investigative, and out-of-pocket expenses
25
in appellate proceedings, MedIation proceedings inibated and conducted pursuant to
this Agreement shall be in accordance wlth the Flohda Rules of Civil Procedure and
usual and customary procedures required by the circLlit court of Monroe County,
SECTION 7.07. CLAfMS FOR FEDERAL OR STATE AID. County and
District agree that each shaH be, and is, empowered to apply for, seek, and obtain
federal and state funds to further the purpose of this Agreement; provided that aH
applications, requests, grant proposals, and funding so~icttations shall be approved by
each party prior to submission,
SECTION 7.08.
ADJUmCATION OF DISPUTES OR DISAGREEMENTS.
County and District agree that aU disputes and disagreements shall be attempted to be
reso~ved by meet and confer sessions between representatives of each of the parties, If
no resolution can be agreed upon within thirty (30) days after the first meet and confer
session, the issue or issues shall be discussed at a joint public meeting of the governing
bodies of the County and 0 istricL If the issue or issues are still not resolved to the
satisfaction of both the County and District, then either shall have the right to seek such
relief or remedy as may be provided by this Agreement or by Florida law; provided,
however, the unresolved issue or issues shall be subm itted to mediation prior to the
institution of any adm inistrative or legal proceeding,
SECTION 7.09. NONDISCRIMINATION. County and District agree that
there will be no discrimination against any person, and it ~s expressly understood that
upon a determ ination by a court of competent jurisdiction that dlscrimjnation has
occurred, this Agreement automatically term inates without any further action on the part
of any party, effective the date of the court order, County and D~strict agree to comply
26
wi~h afl Federal and Florida statutes, and all local ordinances, as appl icabfe, relating to
nondiscrim inatJon, These include but are not lim !led to: (1) Title VI of the Civil Rights
Act of 1964 (P,L. 88-352) which prohibits discrimination on the basis of race, color or
national origin: (2) Section 504 of the RehabfhtatJon Act of 1973, as amended (20
US_C s 794), which prohibits discrimination on the bas!s of handicap; (3) The Age
Discrrm ination Act of 1975, as amended (42 U,S,C, SS, 6101..6107), which prohibits
dischm inallon on the basis of age; (4) The Drug Abuse Office And Treatment Act of
1972 (P,L 92-255), as amended, relating to nondiscrimination on the basis of drug
abuse; (5) The Comprehensive Alcohol Abuse And Alcoholism Prevention, Treatment
and Rehabitrtation Act of 1970 (P,l, 91-616), as amended, relating to nondiscrim ination
on the basis of alcoho~ abuse or alcoholism; (6) The Public Health Service Act of 1912,
58, 523 and 527, (42 U,S,C, 290 dd-3 and 290 ee-3), as amended, relating to
confidentiality of alcohol and drug abuse palient records; (7) The Americans With
Disabilities Act of 1990 (42 U,S,C, s, 1201 Note), as may be amended from time to time,
relating to nondiscrim ination on the basis of disability; (8) The Florida Civil Rfghts Act of
1992, (Chapter 760, Florida Statutes, and Secbon 509,092, Florida Statutes), as may be
amended from tfm e to ttm e, relating to nondiscrim ination; (9) The Monroe County
Hum an Rights Ordinance (Chapter 13, Artrcle VI, Sections 13~ 101 through 13-130), as
may be amended from time to time, relating to nondiscrimination; and (10) any other
nondischm ination provisrons in any federal or state statutes or local ordinances which
may apply to the parties to, or the subject matter of, this Agreement.
SECnON 7.10. COOPERATION. In the event any administrative or legal
proceeding is instituted against either party relating to the formation, execution,
27
perfonnance. or breach of this Agreement, County and District agree to participate, to
the extent reqwred by the other party. in all proceedings, hearings, processes,
meetings, and other activities relaled to the substance of this Agreem ent or provision of
the services under this Agreement. County and District speciflcally agree that no party
to this Agreem ent shall be required to enter into any arbitration proceed~ngs related to
this Agreement or any Attachment or Addendum to this Agreement.
SECTION 7.11. COVEN ANT OF NO rNTEREST. County and D istrlct
covenant that neither presently has any interest, and shall not acquire any interest.
wh ich would confl iet ~n any manner or degree with its perform ance under this
Agreement, and that only interest of each is to perform and receive benefits as recited
In this Agreement.
SECTION 7.12.
CODE OF ETH ICS. The County and Distnct agree that the
officers and employees of the County and D,strict recognlze and will be required to
comply with the standards of conduct relating to pub"c officers and employees as
dellneated in Section 112,313, Florida Statutes: regarding, but not lim ited 10, solicitation
or acceptance of gifts, doing business wrth one's agency; unauthorized compensation;
misuse of public position, conflicting employment or contractual relationshrp; and
disclosure or use of certain information.
SECTION 7.13.
NO SOLCITATION/PAYMENT. County and Distr,ct warrant
that. In respect 10 itself, it has neither em played nor retained any com pany or person
other than a bona fide emp~oyee work,ng solely for it, to solicit or secure this Agreement
and that it has not pard or agreed to pay any person, company, corporation, individual,
or firm, other than a bona ffde em ployee working solely for it, any fee, com mission,
28
percentage, gift, or other consideration contingent upon or resulting from the award or
making ot this Agreement. For the breach or violation of this provision. the District
agrees that the County shall have the right to term inate this Agreement withou1 I iabil ity
and, at its discretion, to offset from monies owed, or otherwise recover, the full amount
of such fee, comm ission, percentage, gift, or consideration,
SECITON 7.14.
PU BLle ACCESS TO RECORDS. County and 0 istrict shall
allow and permit members of the public reasonable access to, and inspection of, all
documents, papers, !etters, or other materials subject to the provisions of Chapter 119,
Florida Statutes, and made or received by County and Distrlct in conjunchon with this
Agreement, and the County shall have the right to unilaterally cancel this Agreement
upon violation of this provision by District.
SECTION 7.15. NON-WAIVER OF IMMUNtTY. Notw~thslanding the
provisions of See 768.28, Flonda Statutes, the particjpat~on of the County and District in
this Agreement and the acquisition of any commercial liability insurance coverage, serf-
insurance coverage, or local government liabll ity insurance pool coverage shall not be
deemed a waiver of immuniiy to the extent of liability coverage, nor shall any contract
entered into by County or District be required to contain any provision for waiver
SECTION 7.16.
PRIVilEGES AND IMMUNITIES. All of the privileges and
immunitIes from liability; exemptions from laws, ordinances, and rules; and pensions
and rei iet, disabil ity, workers' com pensation, and other benefits which apply to the
activity of officers, agents, volunteers, or employees of the County and Distrfct, when
perform ing their respective functions under thfs Agreement withfn the territorial hm its of
the County shall apply lo the sam e degree and extent to lhe perform ance of such
29
functJons and dutres of such officers, agents. volunteers, or em ployees outside the
territorial hm its of the County,
SECTION 7.17. LEGAL OBLIGATIONS AND RESPONStBILlTIES; NON-
DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES. This Agreement is
not intended to: nor shall it be construed as, relieving any partjcjpallng entity from any
obligation or responsibility imposed upon the entity by law except to the extent of actual
and timely performance thereof by any other participating entity: in which case the
performance may be offered in satisfaction of the obligation or responsjbi~ity Further,
this Agreem ent is not intended to, nor shall it be construed as, authorizing the
delegation of the constltutionat or statutory duties of the County, except to the extent
permitled by the Florida constitution, state statutes, case law, and, specrtically, the
provisions of Chapters 125 and 163: Florida Statutes, and Chapter 2002-337, Laws of
F londa (2002),
SECTION 7.18. NON -RELIANCE BY NON .PARTIES. No person or entity
shall be entiUed to rely upon the term s, or any of 1hem: of this Agreem ent 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 District agree that neither the
County nor the District or any agent: officer, or em ployee of each shall have the
authority to inform, counsel, or otherwise rndlcate that any particular individual or group
of individuals, entity or entities: have entitlements or benefrts under this Agreement
separate and apart, inferior to: or superior to the com m unity In general or for the
purposes contemplated rn this Agreement.
30
SECTION 7.19.
NO PERSON AL LlAB ILlTY. No covenant or agreement
contained herein shall be deemed to be a covenant or agreement of any member,
officer, agent or employee of the County or the District in his or her individual capacity,
and no member, officer, agent or employee of County or District shalt be liable
personally on this Agreement or be subiect to any personal liability or accountability by
reason of the execution of this Agreement.
SEeTIN 7.20. SECTION HEADINGS. Section headings halle been
Inserted in this Agreement as a matter of convenrence 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.
SECTION 7.21. GOVERNING LAW; VENUE, This Agreement shall be governed
by and con5trued in accordance with the Laws of the State of Florida applicable to contracts
made and to be performed entirely in tile State, In the event tIlat any cause of action or
administrative proceeding is instituted for the enforcement or interpretation of this Agreement,
the County and District agree that venue wi!! lie In tl1e appropriate court or before tiie
appropriate admin~strati\le body in Monroe County, Florida,
ARTICLE VIII
CON STRUCT'ON CONTRACTS AN 0 IN SU RANCE
SECTION 8.01. SU BMITT AL OF CONSTRUCTION CONTRACT
DOCU M ENTS. The 0 istrict shall subm it to the County copfes of all contracts
associated wrth the Project, all contractor insurance certFficatlons and all 0 istrjct notices
to proceed with construction within fourteen (14) days after receipt or Issuance by the
District.
31
SECTION 8.02.
IN SU RANC E REQU IRED. The Dlstrict shaH cause the
Project, during construction, and the Key Largo Sewer System to be insured by an
insurance com pany or com pan res I icensed to do business in the State of Florida against
such damage and destruction risks as are customary for the operation of Projects and
systems of like size, type and tocation,
The proceeds of insurance policies received as a result of damage to. or
destruction of, the Projecl or other parIs of the Key Largo Sewer System as may be
required to operate the Project shall be used to restore or replace damaged portions of
the facilities, If such proceeds are insufficient, the District shall provide additional funds
to restore or replace the damaged portions af the Project or other portions of the Key
Largo Sewer System, Repair, construction or replacement shall be promptly completed,
ARTICLE ~X
ADDITIONAL PROJECT COMM ITMENTS OF THE DISTRICT
SECTION 9.01. PROJECT COSTS. The District and the County
acknowledge that the actual Projecl Cost has not been detenn ined as af the effective
date of this Agreement. The District and the County agree to the prehminary estimates
of Project Costs reflected in Appendix A hereto while recognrzing thaI Project Cast
adjustments may be made as a result of construction bidding or Project changes,
SECTION 9.02. SCHEDULE. The District agrees by executfon hereof:
(1) To proceed diligently with the design of the Project and to award a design
build contracl for construction of the Project no later than , 2005,
32
(2) To provide the County wrlh evidence Df clear title to Project sites for the
treatment. collection, transm ission and disposal faci~itjes by no la~er than December 31,
2005,
(3) To subm rt required perm it applicalion{s) to the appropriate regulatory
agencies by no later than , 2005
(4) To secure additional financing above the Reimbursement Amount (as may
be required to complete the Project) by no later than , 2005,
(5) To obtain all necessary permits and begin construction no later than _
2005,
{6) Com p!etion of Project construction is scheduled for
2006,
SECTION 9.03.
PUBliC PURPOSE REQUIREMENT. The District
acknowledges and agrees that the County must use the proceeds af the County Bonds
for a public purpose and that County Bonds proceeds must be expended promptly after
issuance of the County Bonds to avo id potential adverse tax consequences for the
County Bonds, In recogn ition of these facts, the District covenants and agrees to inform
the County of any facts or events which may arise which could reasonably cause the
County to suffer any of the adverse consequences identffied in Sec1!on 7,04 of this
Agreement or otherwise cause the District to be unable lo spend the Reimbursement
Am aunt In the manner set forth herein within forty-eight (48) hours of the 0 istrict's
becom Ing aware of such fact or event.
33
ARTICl E X
EXEcunQN OF AGREEMENT
SECTION 10.01. COUNTERPARTS. Thrs Agreement shall be executed in three
or more counterparts, any of which shall be regarded as an original and all of which
shall constitute but one and the sam e ,nstrum ent.
SECTION 10.02. SUPERCEDES OTHER AGREEMENTS. The County and the
District agree that this Agreement represents their mutual agreement and replaces and
supercedes any prior agreements, understandings, or communJcatlons on the subject of
the financing of the N or1h Com ponents, whether written or oral.
SECTfON 10.03. FILING AND EFFECTfVE DATE. A copy of this Agreement
shall be filed wjth the Clerk of the Circuit Court of Monroe County and this Agreement
will take effect on the date such copy executed by both parties is so filed,
34
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on their behalf by the County Chairman and the District Chairman,
BOARD OF COU NTY COMM ISSJONERS OF
MONROE COUNTY~ FLORIDA
(SEAL)
By:
Mayor/C ha irperson
Danny L Kalhage, Clerk
By:
Deputy C !erk
KEY LARGO WASTEWATER
TREATMENT DlSTRJCT
( SEAL)
By
C ha irm an
ATTEST:
Clerk
j" .-:"1:. ~);:!~:-: ":.:-!"-f':':'!: :..:,-.:;.......:p :':'. ~.i~:~~.::):.:.~.::-S'.~..._....~ ::-..o:.:.Jr"':,..J'~.-~.~L :..:"'l.._ ~.::;:t;~~L.'rr~: i-'F.... .l-.[:(:":: WSl :"; :I~. .,: I:~. :1:"..,:. :":-.-=-
- -
MONRO E (:Ui~ f'" +v ,;;" ]"; G H Nt'
~~~OV~A~'~0FM
--:::/. '-'" ',',"~~:-~,_!2tR~~
JOW.J -" ',,- ,.. ',~
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35
APPEN DIX A
PROJECT DESCRIPTION
AP PEN DIX A
PROJ ECT DESC RIPT10N
The District's conceptual design for the North Components ~ncludes a
wastewater treatment plant with a design capacity of 2,25 million gallons per day
average daily flow, The Dist(jel owns a treatment plant site located at mile marker
100 5, The conceplual design for the Norlh Com ponents Includes a treatment prant
transm issjon line, and collection system s, Efftuent qual ity will meet AVVT standards and
effluent and sludge disposal will be accom pljshed consistent with appl icable !aw_
PREUMIN ARY PROJECT COSTS
CATEGORY
Design and perm itting costs
Wastewater treatm ent plant construction
Transm ission line construction
Collection system construction
Conhngency (15%)
TOT AL
COST($)
$ 1,8 million
$17,6 million
$ 4,8 m~llion
$10,8 million
$ 4,5 million
$39,5 m iljjon
A-1
APPENDIX B
FORM OF REIMBURSEMENT REQUISITION
REIMBURSEMENT REQUISlTION NO.
Key Largo Wastewater Treatment District (the "District") Request to the Board of
County Comm issioners of Monroe County, Flortda (the "County}
Am aunt Requested' $
Total Reimbursements to Date (Exclusive of this Request): $
1, Each obligation for which a reimbursement is hereby requested is
described in reasonable detail in Exhibtt A hereto together with the name and address
of the person, firm or corporation to whom payment was made by the District. The first
requ isit ion subm itted by the District also includes inform ation confirm ing that the
$1,000,000 Advance provided by the CDunty has been used solely for Project Costs
2, The bills, invoices or statem ents of account for each obligation referenced
fn Exhibit A are on file wjth the D istrjct.
3 The 0 istrict hereby certifies that
(a) each obligation mentioned fn Exhibit A has been properly incurred, is a
proper Project Cosl, was required to be incurred and has been paid in compliance with
the contracts between the District and third parties providing services necessary to
com plete the Proj ect, and has not been the basis for any previous reim bursement
(b) no part of the reimbursement requested hereby will be used to pay for
materials not yet delivered to the Project for prompt incorporation or for services not yet
perfonned in connection therewith;
(c) no Event of Default exists Linder the lnterlocal Agreement between the
County and the District dated , 2005 (the "Agreement") relating to the
Project
(d) no item in Exhibit A represents any portion of an obligation which the
District is, as of the date hereof, entitled to retain under any retarned percentage
agreement.
(e) to the best knowledge and belief of the District, insofar as any obligation
described In Exhibit A was incurred for labor, services, mater~als, supplies or equipment
(i) such labor and services were actually performed in a satisfaclory manner in
B~1
connection wllh lhe acqu~sition, construction and equipping of the Project and (ii) such
materials, supplies and equipment were actually used in connection with the acqulsrtion,
construction and equipping of the Project or were del ivered to the site of the Project
(and remain at the site of the Project) for that purpose:
l:f) all sum s previousl y advanced by the County have been used solely for
purposes perm Itted by the Agreement and the specific items which are the subject of
thts reim bursement request will be so used;
(g) there has not been served upon the District any lien, notice of any lien,
right to lien or attachment upon or claim affecting the right to receive payment of any
moneys payable to any of the persDns or firm s nam ed in this reim bursem ent request
which has not been released or will not be released slm ultaneously wilh the payment of
such obligation:
(h) the use of the reimbursements requested hereunder will nDt result in the
covenants made by the District in the Agreement being violated:
(i) the current estimated cost of completing the project is $
U) the percentage of completion of the Project at the time of subm ission of
this reim bursem ent request is %;
(k) all warranties, representations and covenants in the Agreement are true
and correct on the date hereof:
(I) all outstanding claims for labor and materials through the date of the last
reimbursement request have been pa~d, and aU liens therefore have been wa~ved:
(m) to the best knowledge and bel ief of the Disthct, all work on the Project
pnor to th is reim bursem ent request has been perform ed in a good and workm ani ike
manner in accordance with the construction agreements entered by the 0 istrict wah
third parhes for construction of the Project;
(n) any required payment and performance bond remains in full force and
effect and free from default on the date hereof;
(0) the addltJOnS or deletions that have been made to the proj eel. pursuant to
County consent, which have altered the Project's performance standards, scope or
purpose since the subm ission of the last rermbursement requisition are item ized on the
attachments hereto; and
(p) the Distrd has or anticipates that it shall have available sufficient moneys
to com plete the Project
B-2
4, All capitalized terms herein, unless otherwise defined herern, shall have
the meanings ass igned to them in the Agreement, or jn the docum ents perta ining to the
issuance by the County of the Infrastructure Sales Surtax Revenue Bonds, Senes 2005,
day of
,20
This
APPROVED:
KEY LARGO WASTEWATER TREATMENT
DISTRICT
By:
Autho r it y E ng ineer
Authorized Representatfve
APPROVED:
ENGINEERING DEPARTMENT
MONROE COUNTY, FLORIDA
By:
B-3
Name
Purpose
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