01/20/2010 AgreementDANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DA TE: March 10, 2010
TO: Elizabeth Wood, Senior Administrator Director
Sewer Projects •
FROM: Isabel C DeSantis, D. C.
At the January 20, 2010, Board of County Commissioner's meeting, the Board granted
approval to rescind the agreement between Monroe County and Outdoor Resorts at Lon Key,
Y,
Inc. (OR) approved December 161, 2009 and re -approved the same agreement with plans attached
as Exhibit "A".
Enclosed is a duplicate original of the above -mentioned for your
. handling Should you
have any questions please do not hesitate to contact this office.
cc: County Attorney
File
AN AGREEMB REGARDING WASTEWATER TREATMENT BETWEEN
OUTDOOR RESORTS AT LONG KEY,INC.AND MONROE COUNTY,FLORIDA
•
THIS INTERLOCAL AGREEMENT is entered into as of this 20th day of January, 2010
between Monroe County, a political subdivision of the State of Florida (hereinafter
"COUNTY"), and Outdoor Resorts at Long Key, Inc., a Florida corporation, not for profit
("Outdoor Resorts").
WITNESSETH:
WHEREAS, the State of Florida has mandated that properties with on-site sewage
treatment and disposal systems (OSTDS) hook up to centralised wastewater collection and
treatment systems within one year of such a system becomes available for connection; and
WHEREAS,Monroe County, as an area of critical state concern, is authorized by statute
to adopt legislation requiring the connection to be within thirty days of availability, and has
passed such an ordinance;and
WHEREAS, the County is under a State mandate to have centralized sewerage and
treatment systems by July 01, 2010,or individual systems to be upgraded;
WHEREAS, Outdoor Resorts is an owner of an OSTDS which either needs to be
upgraded to Best Available Technology (hereinafter `BAT") or connect to a centralized system
by July 01, 2010;and
WHEREAS, there exists a centralised system on Long Key at the City of Layton
(hereinafter "Layton system") but the cost to bring a collection system to the west end of the
island where Outdoor Resorts is situated and the necessity to increase the capacity of the Layton
Wastewater Treatment Plant to accept flow from Outdoor resorts would increase the costs of
infrastructure to the residents of Outdoor Resorts and other residents of the west end of Long
Key;and
WHEREAS, Outdoor Resorts, a condominium association operating 411 units, is
desirous of a solution which allows them to proceed to upgrade their plant in time to meet the
State deadline without fear that the County will later decide to build a collection system to the
centralized system and require their property owners to connect to the central system, rendering
the plant upgrade redundant expense;and
WHEREAS, Outdoor Resorts is able to provide sufficient capacity in their plant upgrade
for treatment of the sewerage generated by approximately 72 or more Equivalent Dwelling Units
(hereinafter EDU's)at the west end of Long Key; and
WHEREAS, Ch. 153, F.S., specifically authorizes public entities with authority to
provide wastewater service to enter into contracts with private entities for the performance of
wastewater facility functions;and
WHEREAS, the County wishes to insure that if it is appropriate and feasible to have
Outdoor Resorts provide treatment of sewage for all the EDU's located on the west end of Long
Key, Outdoor Resorts is willing to do so;and
WHEREAS, it is deemed in the best interests of the parties to enter an agreement setting
forth the understanding that the County currently has no plans to provide centralized sewage
Outdoor Resorts REV Pg 1 Only 1
Corrected date in 3rd&4th whereas 3/9/10
transmission system at the west end of Long Key for transmission to the Layton Plant and that
Outdoor Resorts may proceed with an upgrade of its system with the assurance that there will be
substantial time over which to amortize its costs before the County would require connection to a
central sewer system in return for an agreement that it would allow the additional EDU's to connect
to its system in accordance with a future Agreement between Outdoor Resorts and the Florida Keys
Aqueduct Authority(hereinafter "FKAA");
NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants
herein contained, it is agreed between the parties as follows:
Section 1. Construction.
(a) The County staff has been working with Outdoor Resorts to allow them to upgrade their
treatment system to Best Available Technology, substantially in accordance with the plan attached
hereto and made a part hereof as Exhibit "A." Upon receipt of all appropriate permits, Outdoor Resorts
shall upgrade their treatment System to Best Available Technology.
(b) The capacity of the system will allow for future connection by the EDU's upon terms
and conditions that will allow for operation and maintenance in accordance herewith.
Section 2. Operation and Maintenance.
(a) Outdoor Resorts shall treat the additional EDU's, as customers of FKAA, at the
same rates and the same services provided to Outdoor Resorts property owners to the extent FKAA
determines it is appropriate to require the connection of the EDU's to the system. In that event,
FKAA shall be responsible for the collection of charges from FKAA customers for treatment and
payment to Outdoor Resorts on a monthly basis, in the same manner that FKAA bills its customers
generally for wastewater treatment in other areas of the unincorporated county other than the area
served by Key Largo Wastewater Treatment District.
(b) The FKAA customers shall be responsible for a pro rata share of the costs of capital
expenditure repairs and future upgrades to the treatment plant to the same degree that each Outdoor
Resort unit shall be. Each unit and each EDU shall be treated equally.
(c) Outdoor Resorts shall provide in its Agreement with FKAA for the transfer of the
Outdoor Resort Wastewater Treatment Facility to the FKAA should there occur any event, such as
bankruptcy, foreclosure, dissolution, or the transfer of the Outdoor Resort properties to another entity,
which negatively affects the ability of Outdoor Resorts to provide wastewater treatment to the FKAA
customers.
Section 3. Term of Agreement,Termination and Default.
(a) The term of this Agreement shall be for 20 years from the date first above written.
At the conclusion of the 20 year term, this Agreement may be extended for an additional period of
years agreed upon by the County and Outdoor Resorts.
(b) In the event of any failure of compliance by either party hereto with any of its
material obligations to the other party as provided for herein such action shall constitute a default
under this Agreement.
Outdoor Resorts 2
(c) Upon'any such default, the non-defaulting party shall provide to the defaulting party a
written Notice of such default, which Notice (a"Default Notice") shall state in reasonable detail the
actions the defaulting party must take to cure the same.
(d) The defaulting party shall cure any such default, within 30 days following the date of
the Default Notice.
(e) Notwithstanding the provisions of this Section, if any such default by the defaulting
party remains uncured at the conclusion of any specified 30 day cure period, and if the nature of the
defaulting party's obligations are such that more than 30 days is required to effect cure, then the
defaulting party shall not be in default hereunder and the non-defaulting party shall not have the
right to exercise its termination rights granted herein as a result of any such default, if the defaulting
party commences cure within the applicable cure period and thereafter diligently pursues cure to
completion of performance.
(f) In the event the defaulting party fails to effect any required cure as provided for
herein, the defaulting party shall be deemed to be in uncured default hereunder, and the non-
defaulting party shall have the right, but shall not be obligated, upon written Notice to the defaulting
party, to terminate this Agreement.
(g) If such Notice is given, this Agreement shall terminate on the date set forth in the
Notice and the parties shall be relieved of all rights and obligations hereunder, except for any rights
and obligations that expressly survive termination.
Section 4. Notices.
(a) All notices, requests, demands, elections, consents, approvals and other communications
hereunder must be in writing(each such, a"Notice") and addressed as follows (or to any other address
which either party may designate by Notice):
If to County: Mr. Roman Gastesi With a copy to: County Attorney
County Administrator PO Box 1026
Monroe County Key West, Florida 33041
Gato Building
1100 Simonton Street, Suite 2-205
Key West, Florida 33040
If to Outdoor Resorts: Outdoor Resorts of Long Key,Inc.
65821 Overseas Highway
P.O. Box 816
Long Key FL 33001
With a copy to: David H. Rogel,Esq.
Becker&Poliakoff,P.A.
121 Alhambra Plaza
10th Floor
Coral Gables,FL 33134
Outdoor Resorts
3
Any Notice required by this Agreement to be given or made within a specified period of time,
or on or before a date certain, shall be deemed to have been duly given if sent by certified mail, return
receipt requested,postage and fees prepaid; hand delivered; facsimile; confirmed electronic delivery; or
sent by overnight delivery service.
Section 5. Insurance.
(a) The parties agree to insure or self-insure their respective interests in connection with
personal injury, death and personal property damage to the extent each deems necessary or
appropriate.
Section 6. Regulatory Powers.
(a) The County covenants that it will not require connection to any centralized waste
water treatment system during the term of this Agreement, unless Outdoor Resorts defaults or fails
to create or maintain the BAT. However, nothing contained herein shall be construed as waiving
any party's regulatory approval or enforcement rights or obligations as it may relate to regulations
of general applicability, which may govern the Agreement.
(b) Nothing herein shall be deemed to create an affirmative duty of any governmental
party to abrogate its sovereign right to exercise its police powers and governmental powers by
approving or disapproving or taking any other action in accordance with ordinances, rules and
regulations, federal laws and regulations and state laws and regulations.
(c) Nothing contained herein shall be construed as making Outdoor Resorts a Utility, as
that term is defined in Section 367.021(12), Florida Statutes or other provisions of Florida law
which call for the regulation of utilities. Outdoor Resorts shall be a vendor of FKAA and shall only
have the obligations as set forth in this Agreement and such agreement as it enters with the FKAA to
provide wastewater treatment.
Section 7. Attorneys Fees and Waiver of Jury Trial.
(a) In the event of any litigation arising out of this Agreement, the prevailing party shall
be entitled to recover its attorneys'fees and costs, including the fees and expenses of any paralegals,
law clerks and legal assistants, and including fees and expenses charged for representation at both
the trial and appellate levels.
(b) In the event of any litigation arising out of this Agreement, each party hereby
knowingly, irrevocably,voluntarily and intentionally waives its right to trial by jury.
Section 8. Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the State of
Florida. Exclusive venue for any litigation arising out of this Agreement shall be in Monroe
County,Florida, Middle Keys Division of the Circuit Court or the Southern District of Florida.
Section 9. Entire Agreement/Modification/Amendment.
(a) This writing contains the entire Agreement of the parties and supercedes any prior
oral or written representations. No representations were made or relied upon by either party, other
than those that are expressly set forth herein.
Outdoor Resorts
4
(b) No agent, employee, or other representative of either party is empowered to modify
or amend the terms of this Agreement, unless executed with the same formality as this document.
Section 10. Access to Records and Audits.
(a) The County Clerk or his designee shall, during the term of this Agreement and for a
period of three (3) years from the date of termination of this Agreement, have access to and the right
to examine and audit any records of the other parties involving transactions related to this
Agreement, to the extent that Outdoor Resorts provides service as anticipated in Section 2.
(b) The term Records shall refer to any documents, books, data(electronic or hard copy),
papers and financial records that result from the performance of the services provided in this
Agreement.
Section 11. Nonassignability.
(a) This Agreement shall not be assignable by either party unless such assignment is first
approved by both parties.
(b) The provisions of this Section shall not prohibit any party from utilizing the services
of subcontractors to perform the Services contemplated in this Agreement.
Section 12. Severability.
If any term or provision of this Agreement shall to any extent be held invalid or unenforceable, the
remainder of this Agreement shall not be affected thereby, and each remaining term and provision of
this Agreement shall be valid and be enforceable to the fullest extent permitted by law.
Section 13. Independent Contractor.
Outdoor Resorts, and their employees, volunteers, agents, vendors and subcontractors shall be and
remain independent contractor and not agents or employees of the COUNTY with respect to all of
the acts and services performed by and under the terms of this Agreement. This Agreement shall
not in any way be construed to create a partnership, association or any other kind of joint
undertaking, enterprise or venture between the parties.
Section 14. Waiver.
The failure of any party to this Agreement to object to or to take affirmative action with respect to
any conduct of the other which is in violation of the terms of this Agreement shall not be construed
as a waiver of the violation or breach, or of any future violation,breach or wrongful conduct.
Section 15. Funding.
The parties agree that the COUNTY's responsibility under this Agreement is, to the extent the
additional EDU's located on the west end of Long Key are to be connected to the Outdoor Resorts
Wastetwater Treatment Facility, to provide funding to the FKAA only for the collection system for
the additional EDU's and their share of the upgrade costs, which funding may be obtained through
special assessments, except that the County and FKAA may agree between themselves that the
FKAA shall levy the assessments against its customers instead of the County. Accordingly, all
Outdoor Resorts
5
subcontractors are in privity with the FKAA only and may not seek direct payment from the
COUNTY, and that the COUNTY has no duty, liability or other obligation to such persons.
Section 16. Applicable Laws.
In awarding contracts for the design and construction of the Project, the parties agrees to abide by all
applicable County ordinances and state and federal laws.
Section 17. Survival of Provisions.
Any terms or conditions of either this Agreement that require acts beyond the date of the term of the
Agreement, shall survive termination of the Agreement, shall remain in full force and effect unless
and until the terms or conditions are completed and shall be fully enforceable by either party, -n
c� o
Section 18. Counterparts. n= o
This Agreement may be executed in several counterparts, each of which shall be deemed angriginal
and such counterparts shall constitute one and the same instrument.
Section 19. Non-Reliance by Non-Parties. -�7--1>. cn o
7.3
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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 neither party or any agent, officer, or
:mployee of either shall have the authority to inform, counsel, or otherwise indicate that any
particular individual or group of individuals, entity or entities, have entitlements or benefits under
this Agreement separate and apart, inferior to, or superior to the community in general or for the
purposes contemplated in this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and year
:first written above.
(SEAL) • BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA
Al"1'EST%DANNY L. KOLHAGE, CLERK
Deputy Clerk Mayor/Chairperson MONROE COUNTY ATTORNE
OVED AST F tU1;
OUTDO RESORTS: J?AN NE A. H J i TON—
' A ST: COUNTY TOP 1EY
By: -r.LPU y
Ron Trice, President By: 11`X-
, Secr tary
Outdoor Resorts
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