Item K4Meeting Date:August 15, 2012 Division: Public Works & En ing eerin
Bulk Item: Yes _ No _ Department:Wastewater
Staff Contact Person/Phone #:Wilson x 8797
AGENDA ITEM WORDING: Approval of a 5th Amendment to the Cudjoe Regional Interlocal Agreement to
advance of the sum of nine hundred fifty thousand dollars ($950,000) for planning, design, and contracting for
the Cudjoe Regional wastewater project,
ITEM BACKGROUND: Since September 20, 2006, the County and the FKAA have entered into an interlocal
agreement (ILA) and amendments for the County to provide funding for administration, planning and
construction of a wastewater collection system, transmission main and method of treatment to Advanced
Wastewater Treatment (AWT) standards to serve the Summerland/Cudjoe/Upper Sugarloaf Regional
Wastewater System; and to expand the service area to include Big Pine Key through Ramrod Key and Lower
Sugarloaf. There have been a number of amendments to provide added fundng as the project has progressed.
This amendment provides advance funding to the FKAA to support design and bidding activities during the 4"'
calendar quarter of 2012. A further amendment will be prepared in the coming months to provide a schedule of
funding advances required on a quarterly basis for 2013 — 2015 which will address a comprehensive accounting
plan. This 5th amendment is needed now to allow payment of the 4th quarter advance on/about September 15,
2012.
PREVIOUS RELEVANT BOCC ACTION: On September 20, 2006, the County and the FKAA entered into
an interlocal agreement (ILA) for the County to provide funding for administration, planning and construction
of a wastewater collection system, transmission to serve the residents and business in the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System; the April 16, 2008 amendment expanded
the service area to include Big Pine Key through Ramrod Key and Lower Sugarloaf and increased the initial
design budget to a total of $7.5 million. An August 3, 2009 amendment expanded the project to include Onsite
Sewage treatment and Disposal Systems for areas not in the Master Plan and to expand the areas to include No
Name Key (for OSTDS) and certain specified parcels on Boca Chica Key. The September 16, 2009 amendment
revised County funding for the project. On April 18, 2012 the parties entered into a fourth amendment to the
Iterlocal Agreement to provide an additional $100,000 advance.
CONTRACT/AGREEMENT CHANGES: This amendment provides authority to advance funding of the
project through the 4`h quarter of CY 2012 to meet the requirement of state funding to have contracts for the
project in place before March 1, 2013.
STAFF RECOMMENDATIONS: Approval
TOTAL COST: 950 000 INDIRECT COST: N/A BUDGETED: Yes X No
1 ► 1 �ZN �'.7 7� �17i�1►C�L
COST TO COUNTY:$950,000 SOURCE OF FUNDS:FUND 304
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
plib-
APPROVED BY: County Atty ' OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required_
DISPOSITION: AGENDA ITEM #
FIFTH AMENDMENT TO
INTERLOCAL AGREEMENT
FOR THE
CUDJOE REGIONAL WASTEWATER SYSTEM
THIS FIFTH AMENDMENT TO INTERLOCAL AGREEMENT is entered into this
15th day of August, 2012, pursuant to Sec. 163.01, FS., by and between Monroe County, a
political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority,
an independent special district, (FKAA).
WHEREAS, the County has committed by interlocal agreement dated September 6,
2005, and by Master Lease approved September 25, 2005, to seek funding through federal and
state grants and the issuance of revenue bonds backed by the pledge of infrastructure tax; and to
provide funding to the FKAA for the administration, planning and construction of wastewater
projects owned by Monroe County; and
WHEREAS, on September 20, 2006, the County and the FKAA entered into an
interlocal agreement (ILA) for the County to provide funding for administration, planning and
construction of a wastewater collection system, transmission main and method of treatment to
Advanced Wastewater Treatment (AWT) standards to serve the residents and business in the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System; and
WHEREAS, on April 16, 2008, the parties entered into an amendment to the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System ILA to expand the service
area to include Big Pine Key through Ramrod Key and Lower Sugarloaf and increase the initial
design budget by $4.5 million for a total budget of $7.5 million so that unincorporated Monroe
County projects could be ready to proceed and eligible for grant funding; and
WHEREAS, on August 3, 2009, the parties amended the agreement, naming the
amendment "INTERLOCAL AGREEMENT SECOND AMENDMENT FOR THE
(EXPANDEDO CUDJOE REGIONAL WASTEWATER SYSTEM INCLUDING BIG PINE
KEY, RAMROD KEY, SUMMERLAND KEY, CUDJOE KEY, THE TORCH KEYS (LITTLE,
MIDDLE AND BIG), AND UPPER AND LOWER SUGARLOAF KEYS," in order to expand
the project to include Onsite Sewage treatment and Disposal Systems for areas not in the Master
Plan and to expand the areas encompassed by the original agreement, as amended, to include No
Name Key and certain specified parcels on Boca Chica Key; and
WHEREAS, on September 16, 2009, the parties amended the agreement, through a
document titled "SECOND AMENDMENT TO INTERLOCAL AGREEMENT FOR THE
CUDJOE REGIONAL WASTEWATER SYSTEM," to revise County funding for the project;
and
WHEREAS, on April 18, 2012, the BOCC approved a Fourth Amendment to provide the
funding needed for bid preparation related to the Cudjoe Regional Wastewater System project;
and
WHEREAS, it is now necessary to increase the funding FKAA to support the planning,
design, and contracting for construction of the Cudjoe Regional Wastewater System project; now
therefore
5th Amend Cudjoe Regional ILA
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows:
1. Section 1, COUNTY FUNDING, of the Summerland/Cudjoe/Upper Sugarloaf Regional
Wastewater System interlocal agreement dated September 20, 2006 (ILA), as previously
amended on April 16, 2008, August 3, 2009, September 16, 2009, and April 18, 2012, shall be
amended by adding the following sentence:
The County shall pay to the FKAA, no later than September 15, 2012, an advance of the
sum of nine hundred fifty thousand dollars ($950,000) for planning, design and
contracting for the Cudjoe Regional wastewater project.
3. All other provisions of the ILA dated September 20, 2006 for the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System, as amended April 16, 2008,
August 3, 2009, September 16, 2009, and April 18, 2012, not inconsistent herewith shall remain
in full force and effect.
4. This Agreement will take effect on the 15th day of August, 2012.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
(SEAL)
DANNY L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
L-I'm
Deputy Clerk
THE FLORIDA KEYS AQUEDUCT AUTHORITY
By:
Chairman
(SEAL)
ATTEST:
Clerk
Mayor/Chairperson
5th Amend Cudjoe Regional ILA 2
INTERLOCAL AGREEMENT
BETWEEN
MONROE COUNTY
AND
FLORIDA KEYS AQUEDUCT AUTHORITY
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS INTERLOCAL AGREEMENT (Agreement) is entered into this co gday of
_, 2006, pursuant to Florida Statute Sec. 163.01, by and between Monroe County
(County), a political subdivision of the State of Florida, and the Florida Keys Aqueduct
Authority (FKAA), an independent special district.
WHEREAS, the County is authorized by Florida Statute Sec. 125.01(1) to provide, assist
in providing., and fund centralized wastewater treatment systems; and
WHEREAS, Section 6, Chapter 99-395, Laws of Florida, and the County's
Comprehensive Plan require that certain wastewater treatment levels be achieved by the year
2010, which levels can best be achieved by central wastewater treatment systems; and
WHEREAS, the FKAA is authorized by Chap. 76-441, Laws of Florida, as amended, and
Chapter 98-519, Laws of Florida, to design, construct, and operate, wastewater treatment
systems; and
WHEREAS, the FKAA and the County have entered into previous interlocal agreements
establishing and confirming their ongoing partnership in providing wastewater facilities in the
Florida Keys; and
WHEREAS, the County adopted Ordinance No. 38-2004, authorizing the levy of ad
valorem taxes in the Conch Key/Duck Key Municipal Service Taxing Unit, in order to provide
an initial source of funding for the Conch Key/Duck Key Regional Wastewater Project (Project);
and
WHEREAS, FKAA has initiated planning, design and other services for the Project for
which it may be paid with taxing unit funds; and
WHEREAS, the County by Interlocal Agreement dated September 6, 2005, and by
Master Lease dated as of September 6, 2005, has committed to seek funding through federal and
state grants and loans and the issuance of revenue bonds backed by the pledge of infrastructure
sales tax; and will be providing additional funds to the FKAA for the administration, planning
and construction of future wastewater projects in unincorporated Monroe County; and
WHEREAS, the County may have other funding mechanisms, including but not limited
to infrastructure sales tax, grant and loan funding and ad valorem taxes, available to it for the
provision of sewers and wastewater treatment; and
WHEREAS, County and FKAA desire to put in place procedures for the allocation,
expenditure, and reimbursement of funds for the Project;
NOW, THEREFORE, in consideration of the mutual consideration and promises set forth
below, the parties agree as follows:
1. COUNTY FUNDING. The County by resolution of its Board of County Commissioners,
shall appropriate from any lawfully available source, those funds which have been duly approved
for the estimated costs of administration, planning and construction of the Project, which shall
not exceed Million Dollars ($12,500,000). Conch Key/Duck Key Municipal Service Taxing
Unit ad valorem tax proceeds collected by County shall be provided to FKAA as part of the
funding under this Agreement and shall be disbursed as described in paragraph 3 below. Before
such disbursement, County may deduct its costs of administration and professional costs from
the MSTU :funds collected. As the Project progresses, and estimates are altered to reflect a
combination of actual costs incurred and changes in pricing due to contracts resulting from bid
processes, or other changed conditions, the FKAA shall provide such information to the County.
This Agreement shall be modified as necessary to reflect such changes in the estimates in order
to provide for adequate funding to be available for the timely and efficient construction of the
project. The amount of the funding may be changed by written amendment to this Agreement
approved by the parties.
2. PROJECT. The Project shall consist of a collection system, transmission main and
method of treatment to Advanced Wastewater Treatment standards sufficient to serve the needs
of the residents and businesses in the Conch Key/Duck Key Wastewater Service District. Both
FKAA and County shall perform their respective obligations and responsibilities under the
Interlocal Agreement dated September 6, 2005. Attached are a project area map and project
description (Exhibit A).
2. EXP'ENDITURE OF FUNDS. The FKAA shall initially be funded in the amount of One
Million Five Hundred Thousand Dollars ($1,500,000.00) for the administration, planning, design
and construction of the Project. Thereafter, during the course of the Project, the FKAA may
request reimbursement for payments made by FKAA upon submission of documentation of
previous expenditures from the One Million Five Hundred Thousand Dollars ($1,500,000.00)
until the total amount allocated by the County is exhausted. The FKAA shall submit this
documentation to the County Senior Administrator (CSA) for Sewer Projects describing the
services performed and stating for which wastewater district/Project the funds were expended.
The submission must be in a form satisfactory to the CSA and Clerk of the Circuit Court (Clerk).
If the CSA approves the submission, she shall forward the same to the Clerk. If the CSA or the
Clerk determine that the submission is unacceptable, either of them shall return it to the FKAA
in writing with a written description of the deficiency(ies).
3. FISCAL CONTROLS AND QUARTERLY REPORTS. The FKAA shall establish fiscal
controls and fund accounting procedures that comply with generally accepted government
accounting principles, satisfactory to the Clerk, in order to assure that the funds provided to the
FKAA are spent for the purposes set forth in this Agreement. All FKAA financial records
pertaining to this Agreement must be made available, upon request, to the Clerk, an auditor
employed by the County or the State of Florida. The records must be retained by the FKAA for
five years following the receipt by the FKAA of its last payment pursuant to this Agreement.
Any funds transferred by the County to the FKAA under this Agreement that are determined by
the Clerk, or an auditor employed by the County or employed by the State to have been spent on
a purpose not contemplated by this Agreement must be paid back to the County with interest
calculated pursuant to Florida Statute Sec. 55.03(1), from the date the auditor determines the
funds were expended for a purpose not authorized by this Agreement. The FKAA agrees to
provide the Clerk with quarterly status reports concerning the expenditure of these funds in
sufficient detail to demonstrate compliance with the provisions of this Agreement.
4. RECORDS -- ACCESS AND AUDITS. FKAA shall maintain adequate and complete
records for a period of five years after termination of this Agreement. The State, the County,
their officers, employees, agents and contractors shall have access to FKAA's books, records,
and documents related to this Agreement upon request. The access to and inspection of such
books, records, and documents by the aforementioned government representatives shall occur at
any reasonable time.
5. RELATIONSHIP OF PARTIES. FKAA is, and shall be an independent contractor and
not an agent or servant of the County. FKAA shall exercise control, direction, and supervision
over the means and manner that its personnel, contractors and volunteers perform the work for
the purpose of this Agreement. FKAA shall have no authority whatsoever to act on behalf of or
as agent of the County in any promise, Agreement or representation other than specifically
provided for in this Agreement. The County shall at no time be legally responsible for any
negligence on the part of FKAA, its employees, agents or volunteers resulting in either bodily or
personal injury or property damage to any individual, property or corporation.
6. TAXES. FKAA must pay all taxes and assessments, if any, including any sales or use
tax, levied by any government agency with respect to FKAA's operations related to this
Agreement.
7. INSURANCE.The parties to this Agreement stipulate that each is a state governmental
agency as defined by Florida Statutes and represents to the other that it has purchased suitable
Public Liability, Vehicle Liability, and Workers' Compensation insurance, or is self -insured, in
amounts adequate to respond to any and all claims under federal or state actions for civil rights
violations not limited by Florida Statutes Section 768.28 and Chapter 440, as well as any and all
claims within the limitations of Florida Statutes Section 768.28 and Chapter 440, arising out of
the activities governed by this Agreement.
To the extent allowed by law, each party shall be responsible for any acts of negligence on the
part of its employees, agents, contractors, and subcontractors and shall defend, indemnify and
hold the other party harmless from all claims arising out of such actions.
FKAA agrees to keep in full force and effect the required insurance coverage during the term of
this Agreement. If the insurance policies originally purchased which meet the requirements of
this lease are canceled, terminated or reduced in coverage, then FKAA must immediately
substitute complying policies so that no gap in coverage occurs. Copies of current policy
certificates shall be filed with the County whenever acquired or amended.
8. HOLD HARMLESS. To the extent allowed by law, FKAA is liable for and must fully
defend, release, discharge, indemnify and hold harmless the County, the members of the County
Commission, County officers and employees, County agents and contractors, and the Sheriff's
Office, its officers and employees, from and against any and all claims, demands, causes of
action, losses, costs and expenses of whatever type - including investigation and witness costs
and expenses and attorneys' fees and costs - that arise out of or are attributable to FKAA's
operations in connection with this Agreement except for those claims, demands, damages,
liabilities, actions, causes of action, losses, costs and expenses that are the result of the sole
negligence of the County. FKAA's purchase of the insurance required under this Agreement
does not release or vitiate its obligations under this paragraph. FKAA does not waive any of its
sovereign immunity rights including but not limited to those expressed in Section 768.28, Florida
Statutes.
9. NON-DISCRIMINATION. FKAA and County agree that there will be no
discrimination against any person, and it is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the court
order. FKAA and County agree to comply with all Federal and Florida statutes, and all local
ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1)
Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis
of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended
(20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3)
Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended
(42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug
Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination
on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act
of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as
maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10)
Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex,
religion, disability, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any Federal or state
statutes which may apply to the parties to, or the subject matter of, this Agreement.
10. GOVERNING LAW VENUE INTERPRETATION COSTS AND FEES. This
Agreement shall be governed by and construed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, the County and FKAA agree that venue shall lie in the
appropriate court or before the appropriate administrative body in Monroe County, Florida.
Neither this Agreement nor any of its terms is subject to arbitration. The County and FKAA
agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by
or between any of them the issue shall be submitted to mediation prior to the institution of any
other administrative or legal proceeding. Mediation proceedings initiated and conducted pursuant
to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and
customary procedures required by the circuit court of Monroe County.
11. SEVERABILITY. If any term, covenant, condition or provision of this Agreement (or
the application thereof to any circumstance or person) shall be declared invalid or unenforceable
to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions
and provisions of this Agreement, shall not be affected thereby; and each remaining term,
covenant, condition and provision of this Agreement shall be valid and shall be enforceable to
the fullest extent permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provisions of this Agreement would prevent the accomplishment of the original
intent of this Agreement. The County and FKAA agree to reform the Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
12. ATTORNEY'S FEES AND COSTS. The County and FKAA agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award
against the non -prevailing party, and shall include attorney's fees, courts costs, investigative, and
out-of-pocket expenses in appellate proceedings.
13. BINDING EFFECT. The terms, covenants, conditions, and provisions of this Agreement
shall bind and inure to the benefit of the County and FKAA and their respective legal
representatives, successors, and assigns.
15. AUTHORITY. Each party represents and warrants to the other that the execution,
delivery and performance of this Agreement have been duly authorized by all necessary County
and corporate action, as required by law.
16. CLAIMS FOR FEDERAL OR STATE AID. FKAA and County agree that each shall be,
and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of
this Agreement; provided that all applications, requests, grant proposals, and funding
solicitations shall be approved by each party prior to submission.
17. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. County and FKAA agree
that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives of each of the parties. If no resolution can be agreed upon within 30
days after the first meet and confer session, the issue or issues shall be discussed at a public
meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the
satisfaction of the parties, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law.
18. COOPERATION. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of this
Agreement, County and FKAA agree to participate, to the extent required by the other party, in
all proceedings, hearings, processes, meetings, and other activities related to the substance of this
Agreement or provision of the services under this Agreement. County and FKAA specifically
agree that no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement.
19. COVENANT OF NO INTEREST. County and FKAA covenant that neither presently
has any interest, and shall not acquire any interest, which would conflict in any manner or degree
with its performance under this Agreement, and that only interest of each is to perform and
receive benefits as recited in this Agreement.
20. CODE OF ETHICS. County agrees that officers and employees of the County recognize
and will be required to comply with the standards of conduct for public officers and employees
as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or
acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of
public position, conflicting employment or contractual relationship; and disclosure or use of
certain information.
21. NO SOLICITATIONLTAYMENT. The County and FKAA warrant that, in respect to
itself, it has neither employed nor retained any company or person, other than a bona fide
employee working solely for it, to solicit or secure this Agreement and that it has not paid or
agreed to pay any person, company, corporation, individual, or firm, other than a bona fide
employee working solely for it, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the breach or
violation of the provision, the FKAA agrees that the County shall have the right to terminate this
Agreement without liability and, at its discretion, to offset from monies owed, or otherwise
recover, the full amount of such fee, commission, percentage, gift, or consideration.
22. PUBLIC ACCESS. The County and FKAA shall allow and permit reasonable access to,
and inspection of, all documents, papers, letters or other materials in its possession or under its
control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the
County and FKAA in conjunction with this Agreement; and the County shall have the right to
unilaterally cancel this Agreement upon violation of this provision by FKAA.
23. NON -WAIVER OF IMMUNITY. Notwithstanding the provisions of Sec. 786.28,
Florida Statutes, the participation of the County and the FKAA in this Agreement and the
acquisition of any commercial liability insurance coverage, self-insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of immunity to the
extent of liability coverage, nor shall any contract entered into by the County or the FKAA be
required to contain any provision for waiver.
24. PRIVILEGES AND IMMUNITIES. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of
any public agents or employees of the County or the FKAA, when performing their respective
functions under this Agreement within the territorial limits of the County shall apply to the same
degree and extent to the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the County.
25. LEGAL OBLIGATIONS AND RESPONSIBILITIES. Non -Delegation of Constitutional
or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any
participating; entity from any obligation or responsibility imposed upon the entity by law except
to the extent of actual and timely performance thereof by any participating entity, in which case
the performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by the Florida
constitution, state statute, and case law.
26. NON -RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -
party claim or entitlement to or benefit of any service or program contemplated hereunder, and
the County and the FKAA agree that neither the County nor the FKAA or any agent, officer, or
employee of either shall have the authority to inform, counsel, or otherwise indicate that any
particular individual or group of individuals, entity or entities, have entitlements or benefits
under this Agreement separate and apart, inferior to, or superior to the community in general or
for the purposes contemplated in this Agreement.
27. ATTESTATIONS. FKAA agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -
Free Workplace Statement.
28. NO PERSONAL LIABILITY. No covenant or agreement contained herein shall be
deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe
County or the FKAA in his or her individual capacity, and no member, officer, agent or
employee of Monroe County or the FKAA shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of the execution of this Agreement.
29. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be regarded as an original, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute this Agreement
by singing any such counterpart.
30. SECTION HEADINGS. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not a part
of this Agreement and will not be used in the interpretation of any provision of this Agreement.
31. TERMINATION. The County may treat FKAA in default and terminate this
Agreement immediately, without prior notice, upon failure of FKAA to comply with any
provision related to compliance with all laws, rules and regulations. This Agreement may be
terminated by County due to breaches of other provisions of this Agreement if, after written
notice of the breach is delivered to FKAA, FKAA does not cure the breach within 7 days
following delivery of notice of breach. The County may terminate this Agreement upon giving
sixty (60) days prior written notice to FKAA. Any waiver of any breach of covenants herein
contained shall not be deemed to be a continuing waiver and shall not operate to bar either party
from declaring a forfeiture for any succeeding breach either of the same conditions or covenants
or otherwise. Should the Agreement be terminated, County shall pay for reimbursable costs to
the effective date of termination. Termination of this Agreement for this project shall have no
effect on any other agreement between the County and the FKAA.
32. ASSIGNMENT. FKAA may not assign this Agreement or assign or subcontract any of
its obligations under this Agreement without the approval of the County's Board of County
Commissioners. All the obligations of this Agreement will extend to and bind the legal
representatives, successors and assigns of FKAA and the County.
33. SUBORDINATION. This Agreement is subordinate to the laws and regulations of the
United Staters, the State of Florida, and the County, whether in effect on commencement of this
Agreement or adopted after that date.
34. INCONSISTENCY. If any item, condition or obligation of this Agreement is in conflict
with other items in this Agreement, the inconsistencies shall be construed so as to give meaning
to those terms which limit the County's responsibility and liability.
35. GOV:ERNING LAWS/VENUE. This Agreement is governed by the laws of the State of
Florida and the United States. Venue for any dispute arising under this Agreement must be in
Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a
reasonable attorney's fee and costs.
36. ETHICS CLAUSE. FKAA warrants that it has not employed, retained or otherwise had
act on its behalf any former County officer or employee subject to the prohibition of Section 2 of
ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of
Ordinance No. 010-1990. For breach or violation of this provision, the County may, in its
discretion, terminate this Agreement without liability and may also, in its discretion, deduct from
the Agreement or purchase price, or otherwise recover, the full amount of any fee, commission,
percentage, gift or consideration paid to the former County officer or employee.
37. CONSTRUCTION. This Agreement has been carefully reviewed by FKAA and County.
Therefore, this Agreement is not to be construed against any party on the basis of authorship.
38. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by
certified mail to the following:
COUNTY:
County Administrator
1100 Simonton Street
Key West, FL 33040
FKAA
Executive Director
1100 Kennedy Drive
Key West, FL 33040
39. FULL UNDERSTANDING. This Agreement is the parties' final mutual understanding.
It replaces any earlier agreements or understandings, whether written or oral. This Agreement
cannot be modified or replaced except by another written and signed agreement.
40. ANNUAL APPROPRIATION: Funding by County is subject to an annual appropriation
by the Board of County Commissioners.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
(SEAL)
Danny L. Kolhage, Clerk
By:
Deputy Jerk
BOARD OF C TY COMMISSIONERS
OF MONROI,,'
PNTY, FLORIDA
By:
Mayor/Cha rperson
FLORIDA KEYS
ATTEST: /
By; --74By: 11-f �X
C►eras i
CT AUTHORITY
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FKAA Board Approved September 21, 2006
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MONROE COUNTY ATTORNEY
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EXHIBIT "A"
PROJECT DESCRIPTION
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
Gravity wastewater collection and transmission system to serve all of the
islands, of Duck Key.
Addition of capacity to the Hawk's Cay Wastewater Treatment Plant to
service Duck Key, Conch Key and Hawk's Cay flows, and upgrade of
treatment to meet advanced wastewater treatment standards.
See ATTACHED PROJECT AREA MAP
l
BMO Draft #3
# 4155.00
September 21, 2005
LEASE AGREEMENT
MONROE COUNTY, FLORIDA
as Lessor
and
FLORIDA KEYS AQUEDUCT AUTHORITY
as Lessee
Dated as of September 6, 2005
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TABLE OF CONTENTS
Page
ARTICLEI.......................................................................................................................................................................................5
DEFINITIONSAND
EXHIBITS.............................................................................................................................5
1.1.
Definitions........................................................................................................................................5
ARTICLEII......................................................................................................................................................................................8
LEASEOF PROJECT
...................................................................................................................................................8
2.1.
Lease of Project...............................................................................................................................8
2.2.
Lease Term.......................................................................................................................................8
2.3.
Acquisition of Project...................................................................................................................8
2.4.
Lessee's Liability...........................................................................................................................8
2.5.
Possession and Enjoyment.........................................................................................................9
2.6.
Disclaimer of Warranties...........................................................................................................9
2.7.
Warranties of the Facility..........................................................................................................9
2.8.
Representations, Covenants and Warranties of the Lessee..........................................9
2.9.
Representations, Covenants and Warranties of the Lessor.........................................10
2.10.
Care and Use of Project.............................................................................................................11
2.11.
Mutual Waiver of Subrogation Rights................................................................................I
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2.12.
Waiver............................................................................................................................................11
2.13.
Quiet Enjoyment..........................................................................................................................11
ARTICLEIII..................................................................................................................................................................................12
LEASEPAYMENTS
...................................................................................................................................................12
3.1.
Payment of Lease Payments....................................................................................................12
3.2.
Lease Payments to be Unconditional...................................................................................12
3.3.
Net Lease........................................................................................................................................12
ARTICLEIV..................................................................................................................................................................................13
TERMINATION..........................................................................................................................................................13
4.1.
Termination of Lease Term......................................................................................................13
4.2.
Effect of Termination..................................................................................................................13
ARTICLEV....................................................................................................................................................................................13
COVENANTSOF LESSEE......................................................................................................................................13
5.1.
Maintenance of the Facility......................................................................................................13
5.2.
Taxes, Other Governmental Charges and Utility Charges...........................................13
5.3.
Provisions Regarding Insurance and No Waiver of Sovereign Immunity .............14
5.4.
Damage, Destruction or Condemnation..............................................................................14
5.5.
Insufficiency of Net Proceeds..................................................................................................14
5.6.
Federal Tax Covenants..............................................................................................................14
5.7.
Liens.................................................................................................................................................15
5.8.
Use of System................................................................................................................................15
ARTICLEVII................................................................................................................................................................................15
TRANSFEROR ASSIGNMENT...........................................................................................................................15
6.1.
Assignment and Subletting.....................................................................................................15
ARTICLEVIII...............................................................................................................................................................................15
ADDITIONAL LESSEE COVENANTS..............................................................................................................15
7.1.
No Free Service.............................................................................................................................15
7.2.
Mandatory Connection.............................................................................................................16
7.3.
Additions and Modifications..................................................................................................16
7.5.
Access to Project Site and Places of District Record Retention....................................16
ARTICLEVIII...............................................................................................................................................................................16
REIMBURSEMENTS.................................................................................................................................................16
8.1.
Reimbursements.........................................................................................................................16
8.2.
Advance..........................................................................................................................................17
8.3.
Audit and Monitoring Requirments.....................................................................................17
ARTICLEIX..................................................................................................................................................................18
MISCELLANEOUS....................................................................................................................................................18
9.1.
Amendments................................................................................................................................18
9.2.
Notices............................................................................................................................................18
9.3.
Binding Effect................................................................................................................................18
9.4.
Severability...................................................................................................................................18
9.5.
Execution in Counterparts.......................................................................................................19
9.6.
Captions.........................................................................................................................................19
9.7.
Memorandum of Lease..............................................................................................................19
9.8.
Applicable Law............................................................................................................................19
9.9.
Non -recourse Obligation of Lessee.......................................................................................19
9.10.
Conflicts..........................................................................................................................................19
EXHIBIT A SYSTEM SITE
EXHIBIT B DESCRIPTION OF SYSTEM
EXHIBIT C PERMITTED EXCEPTIONS
EXHIBIT D FORM OF REQUISITION
EXHIBIT E FORM OF SUPPLEMENT TO LEASE AGREEMENT
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LEASE AGREEMENT
This Lease Agreement (the "Lease") dated as of September 6, 2005 between Monroe County,
Florida, a political subdivision of the State of Florida (the "Lessor"), and Florida Keys Aqueduct
Authority, an independent special district (the "Lessee").
WITNESSETH
WHEREAS, the Lessor and Lessee are authorized to execute a lease agreement relating to the
lease of certain lands for the construction, equipping and operation thereon of a wastewater and
sewer system (the "System"); and
WHEREAS, the Lessor is (or will be) the owner of legal title to the System Site (more
particularly described in Exhibit A hereto and incorporated herein by reference, as same may be
supplemented and expanded from time to time as herein provided), and hereby leases the System Site
to the Lessee; and
WHEREAS, the Lessor and the Lessee desire to enter into this Lease Agreement to implement
that certain Interlocal Agreement between the Lessor and the Lessee dated as of September 6, 2005, as
filed with the Clerk of the Circuit Court on September 6 , 2005 (the "Interlocal Agreement"); and
WHEREAS, in and by this Lease, the Lessor and Lessee agree to comply with all applicable
requirements of Section 103 of the Code necessary to maintain the exclusion from gross income for
federal income tax purposes of the interest on either the Lessor Bonds or the Lessee Bonds; and
WHEREAS, it is the express intent of the Lessor and Lessee that no obligation of the Lessor
with respect to the financing of any portion of the System or`the acquisition of any System Site shall
constitute a debt, liability or obligation of the Lessee or shall be a pledge of the revenues derived by
the Lessee from the operation of the System; and
WHEREAS, it is the express intent of the Lessor and Lessee that no obligation of the Lessee
with respect to the financing of any portion of the System shall constitute a debt, liability or
obligation of the Lessor or shall be a pledge of the faith and credit of the Lessor.
NOW, THEREFORE, in consideration of the premises and the covenants and conditions
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS AND EXHIBITS
1.1 Definitions. The terms set forth in this section shall have the meanings ascribed to
them for all purposes of the Lease unless the context clearly indicates some other meaning.
"Advance" shall mean the funds provided b y the Lessor from the proceeds of Lessor Bonds in
such amounts as are determined by Lessor and Lessee to be necessary for Lessee to properly design,
construct and equip each Project provided that, in all events, the amount of the Advance shall not be
less than FIVE MILLION DOLLARS ($5,000,000).
"Authorized Lessee Representative" shall mean the Chairman or Vice Chairman of the Lessee,
and any other person or persons designated by the Lessee by an Authorized Lessee Representative.
"Budget" shall mean the budget for the cost of the construction and equipping of the System,
as such relates to the System Costs prepared in accordance with the plans and specification developed
by the Lessee and its consulting engineers and as amended, from time to time.
"Business Day" shall mean a day other than (i) Saturday or Sunday or (ii) a day on which
banking institutions located in the State of Florida or agencies of the State, are authorized or
obligated by law or executive order to be closed for business.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor statute,
together with corresponding and applicable final, temporary or proposed regulations and revenue
rulings issued or amended with respect thereto by the Treasury Department or Internal Revenue
Service of the United States.
"Effective Date" shall mean September 6, 2005.
"Equivalent Dwelling Units" or "EDUs" shall mean the standard unit of applying System
Development Charges, as described in this Lease. For residential improved parcels, a minimum of one
EDU shall be applied to each family residential dwelling, condominium unit and mobile home. EDUs
for multifamily structures are determined by the number of dwelling units (i.e.: six units in a
multifamily structure will constitute six EDUs). For non-residential improved parcels of property, the
number of EDUs will be calculated based on a formula to be determined by the Lessee. A minimum of
one (1) EDU shall apply to each parcel unit
"Final Audit Report" shall mean the report for each Project identifying all Project Costs
required in Section 8.3 hereof. The Final Audit Report shall identify all Reimbursement Amounts
received by the Lessee from the Lessor, all funds provided the Lessee and any funds provided by the
State or the federal government applied to the Project Costs and otherwise describe the parties'
compliance with the terms of the Interlocal Agreement and this Lease.
"Fiscal Year" shall mean each twelve-month period beginning October 1 and ending on the
next succeeding September 30.
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"Independent Insurance Consultant" shall mean a nationally recognized, independent actuary,
2 insurance company or broker that has actuarial personnel experienced in the area of insurance for
3 which the Lessee is to be self -insured.
4 "Lease" shall mean this Lease Agreement, as the same may be amended or supplemented from
5 time to time in accordance with its terms, including the Exhibits hereto, as executed and delivered by
6 the Lessor and the Lessee.
7 "Lease Term" shall mean the period during which the lease is effective as provided in Section
8 2.2 hereof.
9 "Lessee' shall mean the Florida Keys Aqueduct Authority, an independent special district duly
10 created and organized under the laws of the State.
11 "Lessee Bonds' shall mean revenue bonds or any other obligations issued from time to time
12 by the Lessee for the purpose of paying a portion of the costs of designing, constructing and
13 equipping the System, which bonds or obligations are payable from the revenues of the System net of
14 the Operations and Maintenance Expenses, any available System Development Charges and other
15 legally available revenues of the Lessee.
16 "Lessee System Manager" shall mean an employee of the Lessee or an individual or firm hired
17 and compensated by the Lessee to provide independent System construction and/or operations
18 oversight for the Lessee.
19 1 "Lessor" shall mean Monroe County, Florida, a political subdivision of the State of Florida
20 "Lessor Bonds' shall mean the bonds to be issued by Monroe County, Florida to the limits of
21 (a) the bonding capacity of the infrastructure sales surtax received by the Lessor and (b) the County's
22 ability to levy special assessments in an amount not to exceed $4,500 per EDU.
23 "Operations and Maintenance Expenses" shall mean the costs of operating and maintaining
24 the System determined pursuant to generally accepted accounting principles (as applied to state and
25 local governments), exclusive of interest on any debt payable from system revenues, depreciation, and
26 any other items not requiring the expenditure of cash.
27 1 "Permitted Exceptions" shall mean those encumbrances described in Exhibit C hereto
28 "Project(s)" shall mean the design, permitting, construction and equipping of components of
29 the System to be constructed and equipped by Lessee on the System Site leased to the Authority under
30 this Lease. A summary of each Project, together with Project Costs and schedules for completion of
31 construction and placing Projects into service and net contribution allocated from Lessor Bonds for
32 each Project shall be described in greater detail in a Supplement to Lease.
33 "Project Costs' shall mean the cost of designing, permitting, constructing and equipping each
34 Project including the labor, materials and equipment to construct each Project in accordance with the
35 contracts to be entered by the Lessee and any other costs related thereto in accordance with generally
36 accepted accounting principles with respect to each Project. Project Costs shall not include
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Operations and Maintenance Expenses other than expenditures related to initial Project testing and
start up not expected to be covered from users or ratepayers.
"Reimbursement Amount" shall mean the amounts paid to the Lessee by the Lessor for any
Project Costs expended by the Lessee.
"System" shall mean the wastewater and sewer facilities and all appurtenances thereto and
interest therein as constructed from time to time on or connected to the System Site, as more
particularly described in Exhibit B hereto, together with additions thereto as may be made from time
to time by the Lessor and the Lessee pursuant to a Supplement to Lease, which supplement shall
identify specific Projects to be undertaken to complete the System.
"System Development Charges" shall mean connection fees, capital expansion fees, utility
improvement fees or other similar fees and charges collected by the Lessee as a contribution toward
costs.
"System Site" shall mean the real property upon which the System is located in the
unincorporated portions of Monroe County, Florida, as more particularly described in Exhibit A
hereto, together with additions thereto as may be made from time to time by the Lessor and the
Lessee, pursuant to a Supplement to Lease.
"State" shall mean the State of Florida.
"Supplement to Lease" shall mean a supplement to this Lease substantially in the form of
Exhibit E attached hereto, executed by the Lessor and Lessee for the purpose of adding parcels of real
property to the System Site as set forth on Exhibit A hereto and to add additions to the descriptions
of the System as set forth on Exhibit B hereto, including descriptions of each Project.
[Remainder of page left intentionally blank]
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I ARTICLE II
2
3 LEASE OF SYSTEM AND SYSTEM SITE
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5 2.1 Lease . The Lessor hereby demises and leases to the Lessee, and the Lessee hereby leases
6 from the Lessor, the right, title and interest of the Lessor in and to the System Site and the System,
7 together with any required easements appurtenant or easements in gross necessary for the extension
8 and operation of the System, and the Lessee agrees to contract to construct the System on the System
9 Site and to continuously operate and maintain the System during the term hereof, all on the terms
10 and conditions set forth in this Lease. Lessor and Lessee hereby confirm Lessor's ownership interest
11 and Lessee's leasehold interest in the System Site and System during the term of this lease. The Lease
12 of the System Site shall only be subject to the Permitted Exceptions. From time to time, the Lessor
13 and the Lessee shall add additional parcels of real property to this Lease during the Lease Term
14 pursuant to a Supplement to Lease as needed to complete the System. Such additional fee simple
15 parcels (or other interests) may be added to this Lease Agreement by the joint execution of a
16 supplement to Exhibit A hereto and recorded as a Supplemental Memorandum of Lease in the Official
17 Records of Monroe County, Florida, and each such additional parcel shall become immediately subject
18 to the terms and conditions of this Lease Agreement upon the execution, delivery and recordation
19 thereof.
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21 2.2. Lease Term. The Lease shall be for an original term commencing on the Effective Date
22 and shall continue until September 30, 2104. Upon expiration of the Lease Term the Lessee shall
23 execute and deliver such documents, if any, as shall be necessary to evidence such expiration and
24 confirm ownership of the System Site and System by Lessor.
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26 2.3. Acquisition of System. The Lessor recognizes that the Lessee will be responsible for the
27 design, construction and equipping of the System. The Lessee understands that the Lessor will
28 provide, from time to time, proceeds of the sale of Lessor Bonds (together with earnings thereon) to
29 be deposited with the Lessee in accordance with Article VIII hereof or any other procedure agreed to
30 by Lessor and Lessee to pay a portion of the costs of the design, construction and equipping of the
31 System as provided in the Interlocal Agreement.
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33 The parties hereto each acknowledges that the amount of moneys to be provided by the Lessor
34 will not be sufficient to pay all of the costs of the System. Lessor and Lessee will cooperate in the
35 application for available State or federal grants and loans to pay a portion of the costs of the System.
36 To the extent the funds provided by the Lessor, together with any State or federal grants or loans, are
37 not sufficient to pay all of the costs of the System, the Lessee will issue Lessee Bonds to pay the
38 remaining costs of the System.
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40 2.4. Lessee's Liability. From and after the Effective Date, as between the Lessor (and any
41 assignee of the Lessor) and the Lessee, the Lessee assumes liability for all risks with respect to the
42 System, provided, however, the Lessee shall not be considered or deemed to be an indemnitor of the
43 Lessor for Lessor's actions, and provided further, that this Section 2.4 shall not be construed to limit
44 any claim by the Lessee for damages to the System by any party other than the Lessee or a party
45 under the control and direction of the Lessee.
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2.5. Possession and Enjoyment. From and after the Effective Date, the Lessor agrees that it
will not interfere with the quiet use and enjoyment of the System by the Lessee during the Lease Term
and that the Lessee shall during such Lease Term peaceably and quietly have, hold and enjoy such
System, without hindrance or molestation from the Lessor, except as expressly set forth herein. At
the request of the Lessee, the Lessor shall join in any legal action in which the Lessee asserts its right
to such possession and enjoyment to the extent the Lessor lawfully may do so.
2.6. Disclaimer of Warranties. THE LESSEE EXPRESSLY ACKNOWLEDGES THAT THE
LESSOR, NOT BEING THE VENDORS OR CONTRACTORS OF ANY PROJECT WHICH
COMPRISES OR WILL COMPRISE THE SYSTEM, THE VENDOR'S AGENTS OR THE CONTRAC-
TOR'S AGENTS, MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED,
AS TO THE TITLE TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN
OR CONDITION OF, OR AS TO THE QUALITY, CAPACITY OF THE MATERIAL OR
WORKMANSHIP IN ANY SUCH PROJECT OR ANY WARRANTY THAT THE PROJECT WILL
SATISFY THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT WHICH
PROVIDES FOR SPECIFIC MACHINERY, OPERATORS OR SPECIAL METHODS OR ANY OTHER
WARRANTY OF ANY KIND WHATSOEVER. It is agreed that all such risks, as among Lessor and
the Lessee are to be borne by the Lessee at its sole risk and expense and the Lessee hereby agrees to
look solely to any contractor, vendor or supplier of the System for all such matters. THE LESSEE
FURTHER EXPRESSLY ACKNOWLEDGES THAT THE LESSOR MAKES NO PATENT
WARRANTIES OR REPRESENTATIONS WHATSOEVER, AND THAT LESSOR SHALL NOT BE
LIABLE FOR ANY ACTUAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.
2.7. Warranties of the Facility. The Lessee acknowledges and represents that it will obtain
from the appropriate vendors and contractors certain warranties regarding the System. The Lessee
reserves all rights to enforce each of these warranties so long as this Lease has not terminated
2.8. Representations, Covenants and Warranties of the Lessee. The Lessee represents,
covenants, and warrants as follows:
(i) The Lessee is an independent special district created pursuant to Chapter 76-441,
Laws of Florida, as amended, has powers to enter into this Lease and has duly authorized and
taken the necessary acts required prior to (including all required approvals) the execution and
delivery of this Lease. The Lessee warrants that this Lease, upon the execution and delivery
thereof, is a valid, legal and binding limited obligation of the Lessee.
(ii) Neither the execution and delivery of this Lease nor the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions hereof conflicts with or results in a breach of the terms, conditions, or provision of
any restriction or any agreement or instrument to which the Lessee is now a party or by which
the Lessee is bound or constitutes a default under any of the foregoing, nor conflicts with or
results in a violation of any provision of law governing the Lessee and no representation,
covenant and warranty herein is false, misleading or erroneous in any material respect.
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(iii) There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, known to be pending or threatened against or
affecting the Lessee nor to the best of the knowledge of the Lessee is there any basis therefor,
wherein, an unfavorable decision, ruling, or finding would materially and adversely affect the
transactions contemplated by the Lessee or which would adversely affect, in any way, the
validity or instrument to which the Lessee is a party, used or contemplated for use in the
consummation of the transactions contemplated hereby.
(iv) In its use of the System, the Lessee shall comply with all applicable State, and
federal laws, regulations, rules, orders, standards and codes and with all hazard insurance
underwriters standards applicable to the System.
(v) The Lessee shall establish rates, fees and System Development Charges for the
System which will be sufficient to provide funds adequate to fully cover the Operations and
Maintenance Expenses of the System and to pay, when due to the Lessee Bonds (providing for a
debt service coverage ratio as may be required by a bond insurer providing a municipal bond
insurance policy for any series of Lessee Bonds) or pursuant to the authorizing resolutions
governing any series of Lessee Bonds.
(vi) All revenues derived from the System by the Lessee over and above maintenance,
operations, customer service, billing, and any direct costs specifically incurred to provide these
services shall be used solely for the purpose of the System, such as repayment of debt service
and retirement of Lessee Bonds.
2.9. Representations, Covenants and Warranties of the Lessor. The Lessor represents
covenants and warrants as follows:
(i) The Lessor is a political subdivision of the State of Florida, and as such, has all
necessary power to enter into this Lease and is possessed of full power to own, lease and hold
real and personal property and to lease and sell the same as Lessor, and has duly authorized the
execution and delivery of this Lease.
(ii) Neither the execution and delivery hereof, nor the fulfillment of or compliance with
the terms and conditions hereof, nor the consummation of the transactions contemplated
hereby, conflicts with or results in a breach of the terms, conditions and provisions of any
restriction or any agreement or instrument to which the Lessor is now a party or by which the
Lessor is bound, or constitutes a default under any of the foregoing.
(iii) To the knowledge of the Lessor, there is no litigation or proceeding pending or
threatened against the Lessor or any other person affecting the right of the Lessor to execute,
deliver or assign this Lease or to comply with its obligations under this Lease. Neither the
execution nor delivery of this Lease by the Lessor, nor compliance by the Lessor with it
obligations under this Lease, require the approval of any regulatory body, any parent
company, or any other entity, which approval has not been obtained.
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2.10. Care and Use of System. The Lessee at its expense, shall maintain the System in
first-class operating condition, repair and appearance and in the condition when construction is
completed hereunder (ordinary wear and tear excepted) and shall protect same from deterioration,
other than normal wear and tear; shall cause the System to be used within its normal capacity,
without abuse and in compliance with the requirements of applicable laws, ordinances and
regulations and the requirements of any policy of insurance required under Section 5.3 hereof; and
shall cause the System to be operated by competent persons only and shall obtain, at the Lessee's
expense, all permits and licenses, if any, required by law for the operation of the System. The Lessee
agrees that Lessor shall not be responsible for latent or patent or other defects, wear and tear or
gradual deterioration or loss of service or use of the System or any part thereof or for damage from
fire or other casualty. Lessor shall not be liable to the Lessee or anyone else for any liability, injury,
claim, loss, damage or expense of any kind or nature caused directly or indirectly by the inadequacy of
the System or any item supplied by any materialmen or supplier or any other party, any interruption
of use or loss of service or usage or performance of any System component, any loss of business or
other consequence or damage, whether or not resulting directly or indirectly from any of the
foregoing.
2.11. Mutual Waiver of Subrogation Rights. Lessor and Lessee and all parties claiming under
them mutually release and discharge each other from all claims and liabilities arising from or caused
by any casualty or hazard covered or required hereunder to be covered in whole or in part by
insurance on the System or in connection with property on or activities conducted on the System,
and waive any right of subrogation which might otherwise exist in or accrue to any person on
account thereof and evidence such waiver by endorsement to the required insurance policies, provided
that such release and waiver shall not operate in any case where the effect is to invalidate such
insurance coverage.
2.12. Waiver. Lessor, its agents and employees, shall not be liable for, and Lessee waives all
claims against Lessor for, damage, including but not limited to consequential damages, to person,
property or otherwise, sustained by Lessee, or any person claiming through Lessee resulting from
any accident or occurrence in or upon any part of the System including, but not limited to, claims for
damage resulting from: (a) any equipment or appurtenances becoming out of repair; (b) Lessee's
failure to keep any part of the System in repair; (c) injury done or caused by wind, water, or other
natural element; (d) damage to or loss by theft or otherwise of property of Lessee or others; (e) any act
or omission of owners of adjacent or contiguous property, or of Lessor, its agents or employees. All
property of Lessee, kept in the System shall be so kept at Lessee's risk only and Lessee shall save
Lessor harmless from claims arising out of damage to the same, including subrogation claims by
Lessee's insurance carrier.
2.13. Quiet Enjoyment. The Lessor covenants and agrees with the Lessee that so long as the
Lessee keeps and performs all of the covenants and conditions by the Lessee to be kept and performed
hereunder, the Lessee shall have quiet and undisturbed and continued possession of the System, free
from any claims against the Lessor and all persons claiming under, by or through the Lessor.
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ARTICLE III
LEASE PAYMENTS
3.1. Payment of Lease Payments. The Lessee agrees to pay to Lessor, on the Effective Date
hereof, the sum of $10 and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by Lessor, and further agrees to undertake the responsibility and obligations
for the design, development, construction, operations and financing of the System as provided herein
during the Lease Term.
3.2. Lease Payments to be Unconditional. All payments, obligations and undertakings by
the Lessee hereunder from and after the Effective Date, shall be absolute and unconditional, and such
payments and other obligations and undertakings shall be paid or performed when due without
notice or demand and without abatement or any rights of set-off, recoupment or counterclaim the
Lessee might have against any supplier, contractor, or any other person and whether or not the
System is accepted for use or used by the Lessee or available for use by the Lessee, whether as a result
of damage, destruction, condemnation, defect in title or failure of consideration or otherwise. It is the
express intent of the Lessor and Lessee that this Lease shall be deemed and construed to be a "triple
net lease".
3.3. Net Lease. The Lessee and Lessor intend the payments hereunder to be net to the Lessor.
The Lessee shall comply with all of its obligations hereunder and pay from Lessee's legally available
funds all payments by the Lessee required hereunder, and any interest imposed on any of the
foregoing, during the Lease Term; and, as between Lessor and Lessee, the Lessee will pay all reason-
able expenses incurred by Lessor in connection with all filings or recordings of any documents
relating to initial delivery of this Lease. The Lessee will pay or make provisions for payment of, as the
same shall become due, all lawful taxes and assessments, or any interest and penalties relating thereto,
if any, or real estate taxes or other municipal or governmental charges lawfully levied or assessed by
the federal, state or municipal government upon the Lessor or Lessee with respect to the System or
any part thereof or upon any payments in respect thereof under this Lease or any other agreement,
instrument or document made or to be made in connection herewith. The Lessee may in good faith
and by appropriate proceedings, contest any such taxes or charges, including real estate taxes, with
due diligence so long as such proceedings do not impair the Lessee's ability or obligations to pay the
payments hereunder.
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ARTICLE IV
TERMINATION
4.1. Termination of Lease Term. The Lease Term will terminate on September 30, 2104.
4.2. Effect of Termination. Upon the termination of the Lease Term, the Lessee shall execute
and deliver a release of this Lease to the Lessor, at Lessee's cost.
ARTICLE V
COVENANTS OF LESSEE
5.1. Maintenance of the System. Lessee shall, following substantial completion of the
System, be responsible for all repair and maintenance of the System (notwithstanding the right to
enforce and collect on any warranties), both interior and exterior and both structural and
nonstructural, whether foreseeable or not foreseeable. Lessee shall keep or cause to be kept the
foundations structural and operation portions of the System in first-class order, repair and condition.
Lessee shall commence required repairs as soon as practicable. Lessee shall at all times keep the
System and all equipment and appurtenances thereof and other mechanical equipment and
appurtenances within the System and all parts of the System, in good order, condition and repair and
clean, orderly, sanitary, safe and watertight, including but not limited to doing such things as are
necessary to cause the System to comply with applicable laws, rules, regulations and orders of State
and federal governmental regulators. If replacement of equipment, fixtures and appurtenances thereto
is necessary, Lessee shall replace same with new or completely reconditioned equipment, fixtures and
appurtenances, and repair all damages done in or by such replacement.
All obligations of the Lessee, under this Section 5.1 shall be at the Lessee's sole cost and expense.
5.2. Taxes, Other Governmental Charges and Utility Charges. The parties acknowledge
and agree that the System is immune from ad valorem taxes, and therefore not subject to assessments
levied by governmental authorities. However, in the event that the ownership, leasing, use,
possession or acquisition of the System is found to be subject to taxation, assessments or
governmental charges in any form, the Lessee will pay, during the Lease Term, as the same come due,
all taxes and other governmental charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to the System and any facilities or other property acquired
by the Lessee as permitted under this Lease in substitution for, as a renewal or replacement of, or a
modification, improvement or addition to the System or System Site; as well as all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the System and System
Site; provided that, with respect to any governmental charges that may lawfully be paid in
installments over a period of years, the Lessee shall be obligated to pay only such installments as have
accrued during the time the Lease Tenn is in effect. In no event shall Lessor impose or levy any tax,
assessments or governmental charges in any form, on the System or System Site during the Lease
Term.
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5.3. Provisions Regarding Insurance and No Waiver of Sovereign Immunity.
(1) The parties 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, including claims under State or federal actions for civil rights violations, which are not limited
by Section 768.28 and Chapter 440, Florida Statutes, as well as any and all claims within the
limitations of Section 768.28 and Chapter 440, Florida Statutes, arising out of the activities governed
by this Lease.
(2) Notwithstanding the provisions of Section 768.28, Florida Statutes, the participation of
the Lessor and Lessee in this Lese and the acquisition of any commercial liability insurance coverage,
self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a
waiver of immunity to the extent of liability coverage, nor shall any contract entered into by Lessor
or Lessee be required to contain any provision for waiver. The Lessee shall name the Lessor as a
covered person under the Lessee's liability insurance policies addressing the System Site and System as
its interest may appear.
5.4. Damage, Destruction or Condemnation. If prior to the termination of the Lease Term,
the System or any portion thereof is destroyed or is damaged by fire or other casualty, or title to, or
the temporary use of such System or any portion thereof shall be taken under the exercise of the
power of eminent domain, the Lessee shall cause the net proceeds of any insurance or net proceeds of
any claim or condemnation award to be applied to the prompt repair, restoration, or replacement, in
which case any such replacement shall become subject to the provisions of this Lease as fully as if it
were originally a part of the System. Any such net proceeds received by the Lessee shall be applied by
the Lessee toward the payment of the cost of such repair, restoration or replacement, in the manner
and upon the conditions set forth in Section 2.3 hereof.
Notwithstanding the foregoing, following such event of damage, destruction or condemnation,
this Lease shall remain in full force and affect while the Lessee restores or rebuilds the System.
5.5. Insufficiency of Net Proceeds. If the net proceeds described in Section 5.4 hereof are
insufficient to pay in full the cost of repair, restoration or replacement of the System, the Lessee shall
finance the additional cost of such repair, restoration or replacement through the issuance of Lessee
Bonds or Refunding Bonds.
5.6. Federal Tax Covenants. Neither the Lessor nor the Lessee shall take any action or refrain
from taking any action, nor shall it cause or, to the best of its ability, allow any other party under its
direction or control to do so, which act or failure to act could adversely affect the exclusion from gross
income for federal income tax purposes of the interest on the Lessor Bonds or the Lessee Bonds.
Neither the Lessor nor the Lessee will make or will direct the making of any investment of the
proceeds of the sale of the Lessor Bonds or the Lessee Bonds which would result in the Lessor Bonds
or the Lessee Bonds being characterized as "arbitrage bonds" under Section 148 of the Code. The
Lessor and Lessee shall each take all action required under the Code, including the calculation and
payment of any rebate necessary to preserve the exclusion from gross income for federal income tax
purposes of the interest portion of the Lessor Bonds or the Lessee Bonds; provided, however, that the
Lessor and the Lessee may delegate such responsibility to a third party.
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In the operation of the System, the Lessee shall require that any contract comply with all
applicable Treasury rules and regulations regarding the private business use of a facility financed with
the proceeds of tax exempt obligations.
The Lessee shall not enter into any management contract with a non -governmental party for
the management of any portion of the System unless such management contract constitutes a
"qualified management contract" as described in Internal Revenue Service Revenue Procedure 97-13, as
amended or supplemented from time to time, or as described in Sections 141 through 145 of the Code,
and applicable Treasury Regulations contemporaneously in effect.
5.7. Liens. During the Lease Term both the Lessor and Lessee shall not, directly or indirectly,
create, incur, assume or suffer to exist any security interest, pledge, lien, charge, encumbrance or claim
on the System or System Site, other than as herein provided.
5.8 Use of System. The Lessee will not use, or maintain the System improperly, carelessly, in
violation of any applicable law or in a manner contrary to its intended use as facilities for provision of
essential government services as contemplated by the Lease. The Lessor shall promptly provide and
issue without charge therefore all permits and licenses necessary for construction and operation of the
System, or any related facilities. The Lessee shall obtain all permits and licenses, if any, necessary for
the construction and operation of the System. In addition, the Lessee agrees to comply in all respects
(including, without limitation, with respect to the use and maintenance of the System) with all
applicable laws, regulations, orders and decrees of any State or federal regulatory body exercising any
power or jurisdiction over the System; provided, however, that the Lessee may contest in good faith
the validity or application of any such law or rule in any reasonable manner which does not
adversely affect the interest or rights of the Lessor under the Lease.
ARTICLE VI
TRANSFER OR ASSIGNMENT
6.1. Assignment and Subletting. The System Site shall not be transferred or conveyed
during the Lease Term, without the prior written consent of the Lessee. This Lease shall not be
assigned by the Lessee nor shall the Lessee lease the System or any portion thereof, without the prior
written consent of the Lessor.
ARTICLE VII
ADDITIONAL LESSEE COVENANTS
7.1. No Free Service. Except as may be required by applicable law, the Lessee shall not
permit connection to, or furnish any services afforded by the System without making a charge
therefor based on the Lessee's connection policies.
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7.2 Mandatory Connections. The Lessee 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 System is available to connect such building to the System.
7.3. Additions and Modifications. After completion of the System, the Lessee may make any
additions, modifications or improvements to the System which the Lessee deems desirable and which
do not materially reduce the operational integrity of any part of the System. All such renewals,
replacements, additions, modifications and improvements shall become part of the System.
7.4. Access to Project Site and Places of District Record Retention. The Lessee shall provide
Lessor representatives with access to System Site and administrative offices (as well as other offices
where Lessee records may be retained) during normal business hours. The Lessee shall cause its
engineers and contractors to cooperate in the fulfillment of the Lessee's obligations hereunder and
shall require cooperation with Lessor's representatives during System inspections including, but not
limited to, making contracts, invoices, purchase documents, plans, maps and specifications available
for inspection and copying.
ARTICLE VIII
REIMBURSEMENTS
8.1. Reimbursements. Reimbursements to the Lessee shall be made by the Lessor and only
when the requests for such reimbursements are accompanied by a certification from the Monroe
County's Engineering Department that such reimbursements are for expenditures that are properly
characterized as Project Costs. Reimbursements shall be made directly to the Lessee for Project Costs.
Reimbursement for Project Costs shall be made only after receipt by the Lessor of the following from
the Lessee:
(1) A completed reimbursement request form insubstantially the form attached hereto as
Exhibit D signed by the Lessee's Authorized Representative. Such requests must be accompanied by
an itemized disclosure of the materials, labor, or services provided in sufficient detail to identify the
nature of the work performed; the cost or charges for such work; and the person providing the
service or performing the work.
(2) A certification signed by the Lessee'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 Lessee
was required to incur such Project Costs for materials, labor or services under the terms and
provisions of the contract(s) between the Lessee and third parties providing services necessary to
complete a Project; and in the case of Project Costs which are not direct materials, labor or third party
service expenditures, such expenditures are properly characterized as Project Costs.
(3) A certification by the engineer responsible for overseeing construction indicating the
percentage of the Project completed as of the date of such certification; stating that the equipment,
materials, labor and services represented by the construction invoices have been satisfactorily
purchased or received, and applied to the Project in accordance with construction contract
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documents; stating that payment is in accordance with construction contract provisions; stating that
construction, up to the point of the reimbursement request, is in compliance with the contract
documents; and identifying all additions or deletions to the Project which have materially altered the
Project's performance standards, scope, or purpose.
(4) Such other certificates or documents by engineers, attorneys, accountants, contractors,
or suppliers as may reasonably be required by the Lessor.
8.2. Advance. The Lessor and the Lessee recognize that the Lessee is in need of capital funds
to initiate Projects. Recognizing this need, the Lessor agrees to provide the Lessee with the Advance
to be used by the Lessee solely to pay Project Costs. The Advance shall be paid by the Lessor to the
Lessee within thirty (30) days of the issuance of the initial series of Lessor Bonds issued to meet the
Lessor's obligations pursuant to this Lease. As the Advance is expended by the Lessee, the Lessee
shall complete a reimbursement requisition in the form provided in Exhibit D and supply the Lessor
such other documents and information as required in this Lease as may be necessary to permit the
Lessor to confirm that the Advance (including all investment earnings thereon) has been used solely
for Project Costs. The Lessor shall then reimburse the Lessee for the amount identified in each
respective reimbursement requisition in order to replenish the Advance. This process shall continue
until the proceeds of the Lessor Bonds are fully expended. The Lessee shall provide the Lessor with
biannual reports of the investments and earnings relating to the Advance until such time as the
proceeds from the Lessor Bonds, including the Advance and all investment earnings thereon have
been expended as required by the Interlocal Agreement.
8.3. Audit and Monitoring Requirements. The parties agree to the following audit and
monitoring requirements:
(1) Final Audit Report. Within six (6) months after completion of each Project, as
demonstrated by the Lessee placing a Project into service, the Lessee shall submit to the Lessor a Final
Audit Report. Accordingly, the parties shall direct their respective auditors to simultaneously notify
the Lessor and Lessee immediately if anything comes to the auditor's attention during the
examination of records that would lead the auditor to question whether any expenditures are not
allowable Project Costs under this Lease. The final determination of whether such costs are
appropriate Project Costs shall be made by the Lessor.
(2) Record Retention. The Lessor and Lessee shall each retain sufficient records
demonstrating its compliance with the terms of the Interlocal Agreement and this Lease for a period of
five years from the date that the Final Audit Report is issued for each Project, and shall allow each
other, or their designee, access to such records upon request. The Lessor and Lessee shall ensure that
audit working papers also are made available to each other, or their designee, upon request, for a
period of five years from the date that the Final Audit Report is issued.
(3) Monitory The Lessee agrees that the Lessor's Project monitoring procedures may
include, but not be limited to, review of contracts related to the Project as well as engineering designs
and plans, on -site visits by Lessor designees at Project sites and the Lessee's administrative offices,
limited scope audits, and/or other procedures. Lessee agrees to comply and cooperate with any
monitoring procedures and processes deemed appropriate by the Lessor. In the event the Lessor
determines at any time that a limited scope audit of the System or a Project is appropriate, the Lessee
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agrees to comply with any additional instructions provided by the Lessor to the Lessee regarding
such audit. The Lessee further agrees to comply and cooperate with any inspections, reviews,
investigations, or audits undertaken by the Lessor or other auditor of Lessor's business. Any costs
incurred by the Lessor to perform any review, audit and other monitoring activities permitted under
this Lease shall be included in Lessor's budget to be identified in each Supplement to Lease.
(4) Reporting. Each party shall provide to the other party a copy of any reports,
management letters, or other information required to be submitted to lenders or other persons as may
be required pursuant to the terms of the Lessor Bonds or Lessee Bonds, State revolving loan fund
documents and any documents related to any Project. Such copies shall be forwarded to the
respective parties hereto at the same time as such documents are provided to third parties pursuant to
the terms of the Lessor Bonds or Lessee Bonds.
ARTICLE IX
MISCELLANEOUS
9.1. Amendments. The terms of the Lease shall not be waived, altered, modified,
supplemented or amended in any manner whatsoever except by written instrument signed by the
Lessor and Lessee.
9.2. Notices. All notices, certificates, requests or other communications (other than payments
of Lease Payments by the Lessee) hereunder shall be in writing and shall be sufficiently given and
shall be deemed given when delivered or three (3) Business Days after being mailed by first class mail,
postage prepaid, to the parties at their respective places of business as follows (or other address as
shall be designated by any party in writing to all other parties):
Lessor: Monroe County
1100 Simonton Street
Key West, Florida 33040
Attention: County Administrator
With copy to: County Attorney
Lessee: Florida Key Aqueduct Authority
1100 Kennedy Drive
Key West, Florida 33040
Attention: Executive Director
With copy to: General Counsel
9.3. Binding Effect. The Lease shall inure to the benefit of and shall be binding upon the
Lessor and the Lessee and their respective successors and assigns.
9.4. Severability. In the event any provision of the Lease shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
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9.5. Execution in Counterparts. The Lease may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
9.6. Captions. The captions or headings in the Lease are for convenience only and in no way
define, limit or describe the scope or intent of any provisions or sections of this Lease.
9.7. Memorandum of Lease. Simultaneously with the execution of the Lease, the Lessee and
the Lessor shall each execute, acknowledge and deliver a Memorandum of Lease with respect to the
Lease. Said Memorandum of Lease shall not in any circumstances be deemed to change or otherwise
to affect any of the obligations or provisions of such instrument.
9.8. Applicable Law. The Lease shall be governed by and construed in accordance with the
laws of the State of Florida, and the venue for any cause of action hereunder shall be in Monroe
County, Florida.
9.9. Non -recourse Obligation of Lessee. Notwithstanding anything to the contrary herein or
in any of the instructions, documents or certificates relating hereto, the obligations, liabilities and
responsibilities of the Lessee, of any kind, with respect to the obligations hereunder to be performed
by the Lessee shall be payable solely out of the proceeds derived by the Lessee from the System and the
Lessee shall have no other or further liability hereunder or arising therefrom.
9.10. Conflicts. Notwithstanding anything to the contrary herein, in the event of a conflict
between the terms of this Lease and the Interlocal Agreement, the terms and conditions of the
Interlocal Agreement shall control.
IN WITNESS WHEREOF, the Lessor and Lessee have caused this Lease to be duly executed on
k--se,f orth below their respective signatures and all as of the day and year first written above.
�a iy:L. kolhage, Clerk
C. &VL1
[Deputy] Clerk 9�—I �/D�
Monroe County Attorney
Approved as to Form
By:
County Attorney
Date: of'
(SEAL)
Page 19
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as Lessor
/5;7. LA_ C044'�
By:
Dixie M. Spehar, Mayor/Chairman
Monroe County Bond Counsel
Approved or
By:
Nabors, Gibli ckerson, P.A.
Date:
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Attest:
By:
The Florida Keys Aqueduct Authority
General Counsel
Approved as to Form
Gener ouns
Date:
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THE FLORIDA KEYS AQUEDUCT
AUTHORITY, as Lessee
By: !S4� &OA��
Mary Rice, thairman
The Florida Keys Aqueduct Authority
Bond Counsel
Approved as to form
Bryant Miller & Olive P.A.
Date:
EXHIBIT A
SYSTEM SITE
Page 21
EXHIBIT B
DESCRIPTION OF SYSTEM
EXHIBIT C
PERMITTED EXCEPTIONS
(A) Standard exceptions of title insurance coverage concerning easements or claims of
easement not shown by the public records, encroachments, overlays, boundary line disputes, or any
other adverse matter which would be disclosed by an accurate survey; provided same does not or will
not materially impair the ability of any fee simple parcel to be used by the Lessee for the purpose of
providing wastewater services or facilities in the normal course of business.
(B) Any adverse ownership claim by the State of Florida by right of sovereignty to any
portion of the property, including submerged, filled and artificially exposed lands and lands accreted
to such lands.
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EXHIBIT D
FORM OF REIMBURSEMENT REQUISITION
REIMBURSEMENT REQUISITION NO.
The Florida Keys Aqueduct Authority (the "Authority") Request to the Board of County
Commissioners of Monroe County, Florida (the "County"):
Project:
Amount 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 Exhibit A hereto together with the name and address of the person, firm or
corporation to whom payment was made by the Authority. The initial requisitions submitted by the
Authority also include information confirming that the Advance provided by the County has been
used solely for Project Costs.
2. The bills, invoices or statements of account for each obligation referenced in Exhibit A
are on file with the Authority.
3. The Authority hereby certifies that:
(a) each obligation mentioned in Exhibit A has been properly incurred, is a proper Project
Cost, was required to be incurred and has been incurred as an administrative cost in connection with
the design and construction of a Project or paid in compliance with the contracts between the
Authority and third parties providing services necessary to complete each Project, and has not been
the basis for any previous reimbursement;
(b) no part of the reimbursement requested hereby will be used to pay for materials not yet
delivered to the respective Project for prompt incorporation or for services not yet performed in
connection therewith;
(c) no item in Exhibit A represents any portion of an obligation which the Authority is,
as of the date hereof; entitled to retain under any retained percentage agreement;
(d) to the best knowledge and belief of the Authority, insofar as any obligation described
in Exhibit A was incurred for labor, services, materials, supplies or equipment (i) such labor and
services were actually performed in a satisfactory manner in connection with the acquisition,
construction and equipping of this Project and (ii) such materials, supplies and equipment were
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actually used in connection with the acquisition, construction and equipping of this Project or were
delivered to the site of the Project (and remain at the site of the Project) for that purpose;
(e) all sums previously advanced by the County have been used solely for purposes
permitted by the Lease and the specific items which are the subject of this reimbursement request will
be so used;
(0 there has not been served upon the Authority 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 persons or firms named in this reimbursement request, which has not been released or will not be
released simultaneously with the payment of such obligation;
(g) the use of the reimbursements requested hereunder will not result in the coven ants
made by the Authority in the Lease being violated;
(h) the current estimated cost of completing the Project is $
(ii) the percentage of completion of the Project at the time of submission of this
reimbursement request is %;
(j) all warranties, representations and covenants in the Lease are true and correct on the
date hereof;
(k) all outstanding claims for labor and materials through the date of the last
reimbursement request have been paid, and all liens therefore have been waived;
(1) to the best knowledge and belief of the Authority, all work on the Project prior to the
submission of this reimbursement request has been performed in a good and workmanlike manner in
accordance with the construction agreements entered by the Authority with third parties for
construction of the Project;
(m) any required payment and performance bond remains in full force and effect and free
from default on the date hereof;
(n) the additions or deletions that have been made to the Project, pursuant to County
consent, which have altered the Project's performance standards, scope or purpose since the
submission of the last reimbursement requisition are itemized on the attachments hereto; and
(o) the Authority has or anticipates that it shall have available sufficient moneys to
complete the Project.
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4. All capitalized terms herein, unless otherwise defined herein, shall have the meanings
assigned to them in the Lease Agreement between the County, as Lessor and the Authority, as Lessee,
dated as of September 6, 2005.
This day of
APPROVED:
Authority Engineer
APPROVED:
ENGINEERING DEPARTMENT
MONROE COUNTY, FLORIDA
La
20
FLORIDA KEYS AQUEDUCT AUTHORITY
By:
D-3
Authorized Representative
EXHIBIT A
Name Purpose Amount Account
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EXHIBIT E
[FIRST, SECOND, THIRD, ETC.]
SUPPLEMENT TO LEASE
This [First, Second, Third, etc.] Supplement to Lease ("Subject Supplement') is made and
entered into as of by MONROE COUNTY, FLORIDA, a political subdivision of the State of
Florida, as lessor (the "Lessor") and THE FLORIDA KEYS AQUEDUCT AUTHORITY, an
independent special district, as lessee (the "Lessee"). All capitalized terms used herein and not
otherwise defined shall have the meaning set forth therefor in the "Lease Agreement' as hereinafter
set forth.
WITNESSETH:
WHEREAS, the Lessor and the Lessee entered into a certain Lease Agreement (the "Lease
Agreement') dated as of September 6, 2005, as recorded in Official Records Book at Page of
the Public Records of Monroe County, Florida; and
WHEREAS, the Lessor owns that certain real property more particularly described in Exhibit
A attached hereto and made a part hereof ("System Site Parcel"); and
WHEREAS, the Lessor and Lessee intend to add the System Site Parcel as an additional
System Site to Exhibit A of the Lease Agreement and thereby supplement Exhibit A to the Lease
Agreement by subjecting the System Site Parcel to the Lease Agreement; and
WHEREAS, the Lessee intends to design, construct and equip on the System Site Parcel the
Project described on Exhibit B hereto as a portion of the System; and
WHEREAS, the Lessor and Lessee intend to add the Project to the description of the System as
set forth on Exhibit B to the Lease Agreement and thereby supplement Exhibit B to the Lease
Agreement by adding the Project as a "Project' under the Lease Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged by each party hereto by the
other party hereto, the parties hereto do hereby acknowledge and agree as follows:
(1) The foregoing recitations are true and correct and are incorporated herein by reference.
(2) The System Site Parcel is hereby declared to be a part of the System Site (as defined in
the Lease Agreement) which constitutes a portion of the System Site and, therefore, is a part of the
System Site as set forth in the Lease Agreement with the leasehold estate, operation and effect of the
Lease Agreement with the leasehold estate, operation and effect of the Lease Agreement applying to
the System Site Parcel as fully and to the same extent as if the System Site Parcel were described in the
Lease Agreement and therein set forth to be a part of the System Site.
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(3) The Project is hereby declared to be a part of the System (as defined in the Lease
Agreement) which constitutes a portion of the System and, therefore, is a part of the System as set
forth in the Lease Agreement with the operation and effect of the Lease Agreement applying to the
Project as fully and to the same extent as if the Project were described in the Lease Agreement and
therein set forth to be a part of the System.
(4) The Lease Agreement, [as modified by previous Supplements to Lease and] as modified
hereby remains in full force and effect in accordance with the terms and provisions thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Subject Supplement to be
executed by their duly authorized officers or agents, all as of the day and year first above written.
ATTEST:
Its: [Deputy] Clerk
(SEAL)
ATTEST:
Title: Secretary
[SEAL]
E-2
MONROE COUNTY, FLORIDA
By:
Its: Chairman
THE FLORIDA KEYS AQUEDUCT
AUTHORITY
By:
Title: Chairman
I I EXHIBIT A
3 Description of System Site Parcel
E-3
I I EXHIBIT B
3 1 Description of Project
E-4
INTERLOCAL AGREEMENT
AMENDMENT
FOR THE
SUMMERL4,ND/CUDJOE/UPPER SUGARLOAF REGIONAL WASTEWATER SYSTEM
TO BE EXPANDED TO COVER DESIGN FOR
BIG PINE KEY THROUGH RAMROD KEY AND LOWER SUGARLOAF
THIS AMENDMENT TO INTERLOCAL AGREEMENT is entered into pursuant to Sec.
163.01, FS, by and between Monroe County, a political subdivision of the State of Florida, (County),
and the Florida Keys Aqueduct Authority, Inc., an independent special district, (FKAA).
WHEREAS, on September 20, 2006, the parties entered into an inter -local agreement (ILA)
for the purpose of funding the costs associated with the administration, planning and development of
a regional wastewater project; and
WHEREAS, the timing, costs of construction and operation of the system, permitting and
land acquisition issues, and funding availability contemplated for this project and future projects to
be conducted by the parties pursuant to a September 6, 2005 ILA and September 2005 Master Lease
have been impacted by a variety of factors during the interim; and
WHEREAS, it is estimated that the acquisition of land and permitting for a treatment plant
on Big Pine Key may exacerbate delays in completing a project for that area; and
WHEREAS, combining three proposed regional systems into one is expected to produce
over $11,000,000 in savings for capital costs as well as produce more cost-effective operations after
the required connections are made thereto; and
WHEREAS, it is anticipated that obtaining a design to incorporate Big Pine, Ramrod and
Lower Sugarloaf with the Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System will
provide sufficient cost savings information with which to make the final determination to build one
regional plant, which would be a subject of another amendment to this ILA; now, therefore
IN CONSIDERATION of the mutual consideration and promises set forth below, the parties agree
as follows:
1. Paragraph 1, County Funding, of the ILA dated September 20, 2006, for the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System shall be amended by adding the
following sentences:
The County shall appropriate from any lawfully available source, a sum not to exceed
$4,500,000 for the design to add to the Summerland/Cudjoe/Upper Sugarloaf Regional
Wastewater System necessary collection systems to accommodate from Big Pine Key to
Lower Sugarloaf, to be paid to the FKAA. These funds are additional to the dollars set forth
in the original inter -local agreement dated September 20, 2006. The amount of the funding
may be changed by written amendment to this Agreement approved by the parties.
2. Paragraph 2, Project, Paragraph 1, County Funding, of the ILA dated September 20, 2006, for
the Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System shall be amended by adding
the following sentences:
The Project shall include design and cost estimates to expand the Summerland/Cudjoe/Upper
Sugarloaf Regional Wastewater System to encompass Big Pine Key through Lower
Sugarloaf. The Parties will amend the original ILA dated September 20, 2006, to include
planning and construction of those components of the expanded design to be incorporated
into the Final Project.
3. Paragraph 2, Expenditure of Funds, of the ILA dated September 20, 2006, shall be re-
numbered to Paragraph 3.
4. The numbers of all remaining paragraphs of the ILA dated September 20, 2006, shall be
amended to run consecutively from the paragraph above.
5. All other provisions of the ILA dated September 20, 2006, for the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System, not inconsistent herewith shall
remain in full force and effect.
6. This Agreement will take effect on the /1,A day of , 2008.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
first above written.
RITY
DATE
i
APPROVED AS TO FO
BY:
Kirk C. Zu c
FKAA Ge al Counsel
Date;
FKAA Board Approved April 24, 2008
BOARD OF COUNTY COMMISSIONERS
OF MONRO LINTY, FLORIDA
BY: ( 6
Mayor C les "Sonny" McCoy
APR 1 6 2008
DATE
N
T
C,
ATTEST:
=C
_
D iPY�? KO E, CLL
BY.
APR 1 6 2008 -,
DATE
,.l
rn
I
r
APPROVED AS TO FORM
BY:
ne A. utton
County At)or y
Date: j r
INTERLOCAL AGREEMENT
SECOND AMENDMENT
FOR THE
(E7tPANDED) CUDJOE REGIONAL WASTEWATER SYSTEM
INCLUDING
BIG PINE KEY, RAMROD KEY, SUMMERLAND KEY, CUDJOE KEY,
THE TORCH KEYS (LITTLE, MIDDLE AND BIG), AND
UPPER AND LOWER SUGARLOAF KEYS
THIS AMENDMENT TO INTER.LOCAL AGREEMENT is entered into the 3`d day of
August, 2009, pursuant to Sec. 163.01, FS, by and between Monroe County, a political subdivision
of the State of Florida, (County), and the Florida Keys Aqueduct Authority, Inc., an independent
special district, (FKAA).
WHEREAS, on September 20, 2006, the parties entered into an interlocal agreement (ILA)
for the purpose of funding the costs associated with the administration, planning and development of
a regional wastewater project; and
WHEREAS, on April 16, 2008 the County approved an amendment to the ILA to expand the
areas encompassed in the Cudjoe Regional wastewater System, which amendment was approved by
FKAA on April 24, 2008; and
WHEREAS, it has been determined that there are a high proportion of properties in the area
of the Cudjoe Regional Wastewater System which are not slated for centralized sewer but which will
have to upgrade their onsite sewage treatment and disposal systems (OSTDS) at a similar per EDU
cost as the centralized system; and
WHEREAS, it has been determined that it is equitable to include the OSTDS in the Cudjoe
Regional area in the overall project to enable the FKAA to enter into installation and maintenance
agreements and to allow the same degree of subsidization to those costly projects which are on a par
with centralized system EDU costs; now, therefore
IN CONSIDERATION of the mutual consideration and promises set forth below, the parties agree
as follows:
1. Paragraph 2, Project, of the Inter -local Agreement (ILA) dated September 20, 2006, for the
Summerland,/Cudjoe/Upper Sugarloaf Regional Wastewater System, as previously amended on April
16, 2008, shall be amended as follows:
The Project shall be called the Cudjoe Regional Wastewater System and consist of
centralized collection systems, transmission mains and method of treatment to Advanced
Wastewater Treatment standards sufficient to serve the needs of the residents and businesses
included for centralized systems in the Master Wastewater Plan in the Wastewater Service
Districts from Big Pine Key through Lower Sugarloaf Key, and Onsite Sewage Treatment
And Disposal Systems for which owners of properties not in the Master Plan but located in
the Cudjoe Regional area from No Name Key through Lower Sugarloaf Key, plus Boca
Chiica Key parcels identified as RE# 122880-000000,122890-000000, and 122870-000000 ,
contract with FKAA for installation and maintenance. The Project may be developed in
phases in accordance with availability of funding. Both FKAA and County shall perform
their respective obligations under the interlocal agreement dated September 6, 2005.
2. All other provisions of the ILA dated September 20, 2006, for the
Summerlarid/Cudjoe/Upper Sugarloaf Regional Wastewater System, as previously amended, not
inconsistent herewith shall remain in full force and effect.
3. This Agreement will take effect on the 3rd day of August, 2009,
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
first above written.
FLORIDA KEYS A UE AUTHORITY BOARD OF COUNTY COMMISSIONERS
KEY WEST, OF MONROE COU FLORIDA
BY: _
BY:
Jamesr( eyn xecutive Director V
Mayor Sylvia J. Murphy
. r" Q v�'� AUG 3 2009
DA
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
/�
BY: K � Ol// 0 1 /
A C.Zu'-S
:AAVrefieral Counsel
A ST:
Y:
APPROVED AS TO FORM
BY:
nne A. Hutton
County Attorney -n
Date:
M
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ry
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SECOND AMENDMENT TO
INTERLOCAL AGREEMENT
FOR THE
CUDJOE REGIONAL WASTEWATER SYSTEM
THIS SECOND AMENDMENT TO INTERLOCAL AGREEMENT is entered into
this 16th day of September, 2009, pursuant to Sec. 163.01, FS., by and between Monroe County,
a political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct
Authority, Inc., an independent special district, (FKAA).
WHEREAS, the County has committed by interlocal agreement dated September 6, 2005,
and by Master Lease approved September 25, 2005, to seek funding through federal and state
grants and the issuance of revenue bonds backed by the pledge of infrastructure tax; and to
provide funding to the FKAA for the administration, planning and construction of wastewater
projects owned by Monroe County; and
WHEREAS, on September 20, 2006, the County and the FKAA entered into an interlocal
agreement (ILA) for the County to provide funding for administration, planning and construction
of a wastewater collection system, transmission main and method of treatment to Advanced
Wastewater Treatment (AWT) standards to serve the residents and business in the Conch
Key/Duck Key Wastewater Service District; and
WHEREAS, on April 16, 2008, the parties entered into an amendment to the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System ILA to expand the service
area to include Big Pine Key through Ramrod Key and Lower Sugarloaf and increase the initial
design budget by $4.5 million for a total budget of $7.5 million so that unincorporated Monroe
County projects could be ready to proceed and eligible for grant funding; and
WHEREAS, grants necessary to complete the funding plan for construction of the Cudjoe
Regional Wastewater System have not yet been forthcoming and commencement of construction
is delayed while alternative funding plans are pursued; and
WHEREAS, the Cudjoe Regional Wastewater Project design has been prepared to the
extent necessary for the project to be considered "ready to proceed" and design engineers have
identified reasonable interim milestones from which they can finalize portions of the design; and
WHEREAS, Municipal Service Taxing Unit Revenue for year one of the Big Pine MSTU
and Year 2 of the Cudjoe MSTU is anticipated to generate sufficient revenue to finalize the
design; and
2nd Amend Cudjoe Regional ILA 1
WHEREAS, FKAA has acquired a treatment plant on Duck Key for purposes of upgrade
and expansion to provide AWT to the area encompassing Duck Key, Indies Island, and Conch
Key, and has initiated design and other services to commence the Duck Key Project; and
WHEREAS, System Development Fees have been collected from the Duck Key service
areas but additional revenue is necessary to complete the Duck Key collection system funding
plan; and
WHEREAS, the County and the FKAA desire to amend the Cudjoe Regional ILA to
decrease funding for design until such time as additional revenues are available for construction,
allowing the amount previously allocated but not yet spent to be diverted to the Duck Key project;
now therefore
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows:
1. Section 1, COUNTY FUNDING, of the Summerland/Cudjoe/Upper Sugarloaf Regional
Wastewater System interlocal agreement dated September 20, 2006 (ILA), as previously amended
on April 16, 2008, shall be amended to read:
The County shall appropriate from any lawfully available source, a sum not to exceed
$3,200,000 for the preliminary design to add to the Summerland/Cudjoe Upper Sugarloaf
Regional Wastewaer System necessary collection systems to accommodate from Big Pine
Key to Lower Sugarloaf (expanded system), to be paid to the FKAA as reimbursement.
These funds are additional to the funds set forth in the Interlocal Agreement dated
September 20, 2006. Additional amendment(s) will be necessary to appropriate funds for
the final design of the expanded area. The amount of the funding may be changed by
written amendment to this Agreement by the parties.
2. Paragraph 2, Project, of the ILA dated September 20, 2006, as previously amended on
April 16, 2008, for the Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System shall
be amended to read as follows:
The project shall include preliminary design and cost estimates to expand the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System to encompass Big
Pine Key through Lower Sugarloaf, the final design of the inner islands
(Summerland/Cudjoe/Upper Sugarloaf) as well as the treatment plant and cost estimates
for the entire project. The parties will amend the original ILA dated September 20, 2006,
to include planning, final design, and construction of those components of the expanded
design to be incorporated into the Final Project.
2nd Amend Cudjoe Regional ILA 2
3. All other provisions of the ILA dated September 20, 2006 for the
Summerland/Cudjoe/Upper Sugarloaf Regional Wastewater System, as amended April 16, 2008,
not inconsistent herewith shall remain in full force and effect.
4. This Agreement will take effect on the 161h day of September, 2009.
IN,. WITNESS WHEREOF,
y�af ' e written.
(S�' j
GE, CLERK
By:
Deput Clerk
THE FLORIDA
By:
Jame C. Rd n61d;
(SEAL
A S:
Cler
FKAA Board Approved:
the parties hereto have set their hands and seals the day and
BOARD OF COUNTY COMMISSIONERS
OF =MOE COU TY, FLORIDA
By: �`S
Mayor/Chairperson
AUTHORITY
, Executive Director
September 24, 200
S Tif is
A.
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2nd Amend Cudjoe Regional ILA 3