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Item K3BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: June 17,2009 Bulk item: Yes X No Division: Cou= Attorney Department: County Attorney #3470 AGENDA ITEM WORDING: Approval of Memorandum of Agreement between the Florida Department of Health, the Monroe County Health Department, Monroe County and the Florida Keys Aqueduct Authority to work together to upgrade onsite sewage treatment and disposal systems (OSTDS) in that portion of unincorporated Monroe County where Monroe County is responsible for funding central wastewater systems. ITEM BACKGROUND: Monroe County has responsibility for funding central wastewater systems under Administrative Rule. DOH has jurisdiction over OSTDS, a portion of which this agreement would transfer to the County in that portion of unincorporated Monroe County not within the jurisdiction of KLWTD. This Agreement provides definition, clarifies the responsibilities of each party and standardizes administrative procedures between the Florida Keys Department of Health, the Monroe County Heath Department, Monroe County and the Florida Keys Aqueduct Authority in regulating the design, permitting, construction, maintenance and management of OSTDS including transfer of enforcement responsibility from DOH to Monroe County for areas of unincorporated county not within the jurisdiction of KLWTD. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Cautionary advice that assumption of enforcement responsibility for OSTDS is unfunded but for Code Enforcement fines which may be levied and that, at least for a year or two, other Code Enforcement activity will be curtailed to accommodate the additional burden unless staffing is increased. TOTAL COST: Unknown INDIRECT COST: Unknown BUDGETED: Yes No COST TO COUNTY: Unknown SOURCE OF FUNDS: REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty OMB/Purchasing Risk Management DIVISION DIRECTOR APPROVAL: SUZANNE A. HUTTON, COUNTY ATTORNEY DOCUMENTATION: Included XX Not Required DISPOSITION: AGENDA ITEM # Revised 2/05 MEMORANDUM OF AGREEMENT BETWEEN THE FLORIDA DEPARTMENT OF HEALTH, THE MONROE COUNTY HEALTH DEPARTMENT, MONROE COUNTY, AND THE FLORIDA KEYS AQUEDUCT AUTHORITY The Florida Department of Health, through the Division of Environmental Health, Bureau of Onsite Sewage Programs (DOH) and the Monroe County Health Department (MCHD), Monroe County (MC), and the Florida Keys Aqueduct Authority (FKAA) an Independent Special District of the State of Florida, collectively, the "Parties," enter into this Memorandum of Agreement, (Agreement), as set forth below. I. PURPOSE This purpose of this Agreement is to provide for the upgrade of onsite sewage treatment and disposal systems (OSTDS) in that portion of unincorporated Monroe County which is MC's responsibility for compliance with Chapter 99-395, Laws of Florida, and the Monroe County Code. This Agreement will clarify responsibilities and standardize the administrative procedures of DOH / MCHD under Chapter 381, F.S. and Chapter 99-395, Laws of Florida, of MC under Ch. 20, Monroe County Code, and of FKAA under Chapter 76-441 as amended, Laws of Florida, in regulating the design, permitting, construction, maintenance, and management of OSTDS in the areas defined in the scope of this Agreement. FKAA shall, with a property owner's consent, act as the Responsible Management Entity (RME) for OSTDS in this area, coordinating permitting and construction of OSTDS with MCHD and providing maintenance and management of the systems. This Agreement also provides for FKAA to act as an RME providing maintenance and management of any existing or new OSTDS in the above designated area. II. CONTROLLING LAW Chapter 99-395 as amended, Laws of Florida, establishes the wastewater treatment levels to be achieved in Monroe County by July 1, 2010. Chapter 76-441 as amended, Laws of Florida, provides authority for the FKAA to design, construct and operate wastewater treatment systems. Chapter 380, Florida Statutes, designates the Florida Keys as an Area of Critical State Concern. Chapter 381, Florida Statutes, provides authority for the DOH and MCHD for the permitting, construction, inspection and operation of OSTDS in Florida. Chapter 64E-6, Florida Administrative Codes, provides construction standards for OSTDS including performance based treatment systems (PETS) and standards for the Florida Keys. DOH, FKAA, Monroe MOA Re OSTDS Monroe County Comprehensive Plan Goal 901 sets the goal for the County to provide for treatment and disposal of sewage and sewering throughout the unincorporated county. Chapter 162, Florida Statutes, provides authority and parameters of procedures for local government code enforcement. Chapter 8, Monroe County Code, sets forth authority, procedures and a special magistrate hearing system for code enforcement in the unincorporated county. Chapter 2002-337, Laws of Florida, creates an independent special district for the purposes of providing a wastewater system in the Key Largo area of unincorporated Monroe County. Monroe County Code Ch. 20 requires connection to central sewers within 30 days of notice of availability. III. DEFINITIONS Unless otherwise defined in this Agreement, all definitions and terms are as defined in Chapter 381.006S, FS, or Chapter 64E-6, FAC. "Responsible Management Entity (RME)" means a legal entity, in this case the FKAA, which owns and provides professional management of the planning, siting, design, construction, operation and maintenance of OSTDS. Such systems may be individual systems or clustered systems serving multiple establishments within DOH jurisdiction. "Onsite Wastewater Nutrient Reduction System (OWNRS)" means an OSTDS engineer - designed to meet the treatment standards required under Chapter 99-395 as amended, Laws of Florida. An OWNRS is a performance based treatment system under DOH jurisdiction. OWNRS shall provide the level of treatment that will produce an effluent that contains not more, on a permitted annual average basis, than the following concentrations: 1. Biochemical Oxygen Demand (CBOD5) of 10 mg/l. 2. Total Suspended Solids (TSS) of 10 mg/l. 3. Total Nitrogen, expressed as N, of 10 mg/l. 4. Total Phosphorus, expressed as P, of 1 mg/l. In addition, OWNRS discharging to injection wells shall provide basic disinfection as defined by DOH rule. IV. SCOPE OF AGREEMENT This Agreement applies to those areas of unincorporated Monroe County, excluding the Key Largo Wastewater Utility District, Ocean Reef, and Off -Shore Islands that are not part of a Central Wastewater System designated in the approved Monroe County Master Wastewater Plan. This Agreement applies to those private properties on which the FKAA owns, operates and maintains the OSTDS or leases the OSTDS from Monroe County in accordance with Interlocal Agreement regarding Wastewater Systems, dated September 6, 2005. A. FKAA AGREES: DOH, FKAA, Monroe MOA Re OSTDS 1. To serve as the RME for OSTDS, and shall coordinate the design, permitting and construction with the MCHD and provide maintenance and management of the OSTDS. 2. To install DOH approved OWNRS, which meets the standards established in Chapter 99-395 as amended, Laws of Florida, Chapter 381, Florida Statutes, and Chapter 64E-6, FAC. 3. To either become a Maintenance Entity permitted by the MCHD under Chapter 381, FS, or contract with permitted Maintenance Entities for the systems under its jurisdiction. In either event the FKAA will be the RME responsible for ensuring the systems are properly maintained and inspected as required by Chapter 381, Florida Statutes, and Chapter 64E-6 FAC. The FKAA shall utilize its staff to conduct the annual inspections of the OSTDS if the maintenance is contracted to an outside entity and shall provide an annual summary report to the MCHD of the inspected systems. 4. To prepare and provide quarterly reports to the MCHD as required by Chapter 64E-6, FAC. The quarterly report requirement may be met by submission through the DOH approved web reporting system for maintenance entities or by other electronic means or paper copy. Reports at a minimum shall include the name of the property owner or lessee, the street address of the system, the date of the inspection, and a statement as to the maintenance performed. 5. To enter into agreements with each property owner that authorizes the FKAA to provide OSTDS to the subject property. The agreement between the FKAA and the property owner shall be for a term of ninety nine (99) years and shall be recorded by FKAA, at its cost, in the Official Records of the County. FKAA shall own the OSTDS or lease the OSTDS from Monroe County. Such ownership includes the responsibility to design, permit, construct, maintain, and inspect the OSTDS located in an easement granted to the FKAA by the property owner. FKAA shall establish fees for the ongoing maintenance, repair and replacement and the inspection of the OSTDS. Fees shall also be established for owner initiated requests for modification of systems. All such fees shall be reflected in the agreement entered into between FKAA and the property owners. 6. To cooperate in any and all ways necessary with MC Code Enforcement, including providing, at its own costs, requested documentation and paperwork and attending Special Magistrate hearings when requested by MC Code Enforcement. 7. The commitments, duties and responsibilities of the FKAA, which are described in this Agreement, are dependent upon the FKAA receiving funding from MC for the costs of acquisition, procurement, design and construction of the OSTDS systems and upon each property owner executing an agreement that authorizes the FKAA to provide OSTDS to their property. B. DOH / MCHD AGREE: 1. In consideration of services provided, to waive fees for operating permits for OSTDS owned by the FKAA and to waive the annual maintenance entity service permit for FKAA. 2. To waive the requirement that the FKAA must test samples from individual OSTDS systems to meet state standards for treatment. The MCHD reserves the right to sample a DOH, FKAA, Monroe MOA Re OSTDS system as part of a complaint investigation or a DOH approved research project. Installation of a DOH approved system shall be presumed to comply with Chapter 99-395, Laws of Florida, requirements for treatment. 3. To accept the execution of an agreement between the property owner and FKAA for installation and maintenance of an OSTDS as compliance with the requirements of July 1, 2010, deadline of Chapter 99-395, Laws of Florida. 4. To provide notification to the property owners, that will not be connected to the Central Wastewater System, of the requirement for sewer upgrade and the option of entering into an agreement with FKAA as the owner and RME for the OSTDS . 5. To cooperate in any and all ways necessary with MC Code Enforcement, including providing, at its own cost, requested documentation and paperwork and attending Special Magistrate hearings when requested by MC Code Enforcement. 6. To retain jurisdiction of those OSTDS whose owners elect not to enter into an RME agreement with FKAA. C. MC AGREES, 1. To adopt a local ordinance requiring installation of an onsite system that meets statutory and rule requirements on any property which is not scheduled to be provided with connection to a centralized sewer system and on which no such onsite system already exists. MC will enforce this ordinance through the Code Enforcement process. The ordinance shall provide for MCHD complaint -driven process, but shall otherwise conform to the MC procedures and special magistrate hearing process in use by County, and shall assume no responsibilities additional to those situations where the property owner fails to comply with provisions of the ordinance. The Ordinance shall provide for fines, penalties and costs, which shall be payable to the County. No portion thereof will be paid to DOH/MCHD or FKAA for documents or witnesses. This provision recognizes that the County is responsible for the costs of the special hearing magistrate, the enforcement attorney, the administration of code enforcement, and the filing and recording fees. 2. To work with FKAA so that either the County or the FKAA assesses properties required to be serviced by OSTDS systems the same assessment as is provided to property owners serviced by the Cudjoe regional central wastewater system. This provision shall only apply to properties with existing sewage disposal systems in place on the date of this Agreement. All costs, associated with the construction of new residential or commercial OSTDS systems commenced after the date of this Agreement, shall be borne by the property owner. V. MODIFICATION AND TERMINATION Any of the parties may seek a modification of this Agreement by notifying the other parties in writing. No modification shall become effective until it has been signed by all parties. This Agreement shall remain in force and effect until modified or terminated by the parties. If some or a portion of the Agreement is inconsistent with new statutes, that portion of the Agreement which is inconsistent shall become null and void. Any party wanting to terminate DOH, FKAA, Monroe MOA Re OSTDS this Agreement shall notify the other parties in writing at least 90 days prior to the termination date. VII. VENUE, INTERPRETATION, COSTS, AND FEES 1. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the DOH, MCHD, and FKAA agree that venue will lie in the appropriate court in Monroe County, Florida. 2. The parties agree that in any cause of action or administrative proceeding regarding the operation or enforcement of this Agreement, each party shall bear their own costs in regard to attorney fees, court costs, investigation, and out-of-pocket expenses. VIII. 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 parties agree that none of the parties or any agent, officer, or employee of any party 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. IX. RECORDS — ACCESS AND AUDITS. All parties shall maintain adequate and complete records for a period of four years after each fiscal year allocation or as required by the State of Florida Record Retention Laws. Each party, its officers, employees, agents and contractors shall have access to the other party's books, records, and documents related to this Agreement upon request. The access to and inspection of such books, records, and documents by the Parties shall occur at any reasonable time. X. RELATIONSHIP OF PARTIES. The parties are independent of each other and shall at no time be legally responsible for any negligence on the part of the other parties, their employees, agents or volunteers resulting in either bodily or personal injury or property damage to any individual, property or corporation. XI. TAXES. The governmental parties are not subject to taxes and assessments with regards to the funds shared under this Agreement. XII. INSURANCE.The governmental 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, which are 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, as well as any and all claims within the limitations of Florida Statutes arising out of the activities governed by this Agreement. Each party 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 DOH, FKAA, Monroe MOA 5 Re OSTDS requirements of this Agreement are canceled, terminated or reduced in coverage, then the respective party must immediately substitute complying policies so that no gap in coverage occurs. Copies of current policy certificates shall be filed with the Other party whenever acquired or amended. XIII. HOLD HARMLESS. To the extent allowed by law, each party is liable for and must fully defend, release, discharge, indemnify and hold harmless the other parties, the members of their governing boards, officers and employees, agents and contractors, 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 the operations under 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 or malfeasance of the respective party. The purchase of the insurance required under this Agreement does not release or vitiate any party's obligations under this paragraph. No party waives any of its sovereign immunity rights including but not limited to those expressed in Section 768.28, Florida Statutes. XIV. NON-DISCRIMINATION. The parties, each for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree that no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of premises or in the contracting for improvements to the premises. The parties 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 as to the discriminating party without any further action on the part of any party, effective the date of the court order. XV. ASSIGNMENT. No party may assign this Agreement or assign or subcontract any of its obligations under this Agreement without the approval of the governing boards of the other parties. All the obligations of this Agreement will extend to and bind the legal representatives, successors and assigns of the all Parties. XVI. SUBORDINATION. This Agreement is subordinate to the laws and regulations of the United States, and the State of Florida, whether in effect on commencement of this Agreement or adopted after that date. XVII. 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 responsibility and liability of each party. XVIII. ETHICS CLAUSE. Each party 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 as to the affected party without liability and may also, in its discretion, deduct from the funds due the municipality, or otherwise recover, the full amount of any fee, commission, percentage, gift or consideration paid to the former County officer or employee. DOH, FKAA, Monroe, MOA 6 Re OSTDS XIX. CONSTRUCTION. This Agreement has been carefully reviewed by the parties. Therefore, this Agreement is not to be construed against any party on the basis of authorship. XX. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by certified mail to the following: COUNTY: County Administrator and County Attorney 1100 Simonton Street 1111 12`h Street, Ste. 408 Key West, FL 33040 Key West, FL 33040 FLORIDA KEYS AQUEDUCT AUTHORITY Executive Director 1100 Kennedy Drive Key West, FL 33040 FLORIDA DEPARTMENT OF HEALTH Bureau of Onsite Sewage Programs and 4052 Bald Cypress Way, Bin A08 Tallahassee, FL 32399-1713 Monroe County Health Department 1100 Simonton Street Key West, Fl. 33040 XXI. FULL UNDERSTANDING. This Agreement is the parties' final mutual understanding regarding the subject matter hereof. 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. IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized representative. REMAINDER OF PAGE LEFT BLANK DOH, FKAA, Monroe MOA 7 ReOSTDS THE FLORIDA DEPARTMENT OF HEALTH BY: DATE: FLORIDA KEYS AQUEDUCT AUTHORITY THE MONROE COUNTY HEALTH DEPARTMENT BY: DATE: BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY: _ BY: James C. Reynolds, Executive Director DATE: ATTEST: : APPROVED AS TO FORM: BY: Kirk C. Zuelch FKAA General Counsel Date: Mayor George Neugent DATE: ATTEST: DANNY L. KOLHAGE, CLERK APPROVED AS TO FORM: BY: P 6 e A. Hutton County At me Date: DOH, FKAA, Monroe MOA 8 Re OSTDS DOH, FiSAA, Monroe MOA Re OSTDS