2. Amended & Restated 99 YR Lease 03/20/2014AMY REAVILIN, CPA
CLERK OF CIRCUIT COURT & COMPTROLLER
MONROE COUNTY, FLORIDA
DATE: April8, 2014
TO: Bob Shillinger,
County Attorney
ATTN. Kathy Peters
FROM: Vitia Fernandez, D.
At the March 19, 2014, the Board of County Commissioners granted approval and authorized
execution of Item C 17 Joint participation Agreement, amended and restated 99-year lease agreement and
revocable license agreement with City of Key West to provide a new site location to build a new animal
control facility to serve the Lower Keys and Key West.
Enclosed is a duplicate original of each of the above -mentioned for your handling. Should you
have any questions, please feel free to contact my office.
cc: County Attorney
Finance (w/o documents)
File
500 Whitehead Street Suite 101, PO Box 1980, Key West FL 33040 Phone: 305-295-3130 Fax: 305-295-3663
3117 Overseas Highway, Marathon, FL 33050 Phone: 305-289-6027 Fax: 305-289-6025
88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852-7145 Fax: 305-852-7146
JOINT PARTCIPATION AGREEMENT
THIS AGREEMENT is entered into thijAday of%I"2014, between Monroe
County, a political subdivision of the State of Florida (hereinafter, the COUNTY) and the
CITY of Key West, a municipal corporation organized and existing under the laws of the
State of Florida (hereinafter, the CITY).
WITNESSETH:
WHEREAS, the CITY and the COUNTY entered into a 99-year lease agreement on
December 20a', 1985, whereby the CITY leased property to the COUNTY for use as an animal
control facility and the COUNTY agreed to provide animal control enforcement and services in
the CITY; and
WHEREAS, the parties also entered into a Joint Participation Agreement on May 16,
1978, which outlined the arrangement of the parties at that time; and
WHEREAS, the Florida Keys Society for the Prevention of Cruelty to Animals, Inc. (also
referred to as "Florida Keys SPCA" or "FKSPCA") has been the animal control contractor for
the COUNTY and has provided animal care and enforcement for Key West and the Lower Key
since 1999; and
WHEREAS, due to the poor condition of the animal control facility, the Florida Keys
SPCA has been raising funds to assist the County in building a new animal shelter and has
requested that the parties support this effort by providing an appropriate site location; and
WHEREAS, the CITY has agreed to amend the 99-year lease agreement with the
COUNTY to include a site location for a new animal control facility to be built by the County,
with the assistance of its animal control contractor, the FKSPCA and used for animal control
services and enforcement for Key West and the Lower Keys; and
WHEREAS, the parties in conjunction with the amended 99-year lease wish to enter into
a new joint participation agreement to further outline the current obligations of the parties;
NOW THEREFORE, in consideration of the mutual promises and conditions contained
herein, the parties agree as follows:
General Terms and Conditions
1. The CITY currently leases to the COUNTY, the tract of land, together with
improvements thereon, which is described on Exhibit A attached hereto and pursuant to
the terms as outlined in the 99-year lease agreement.
2. The CITY proposes to lease to the COUNTY, the tract of land, which is described on
Exhibit B attached hereto and pursuant to the terms as outlined in the proposed Amended
and Restated 99-year Lease Agreement. Due to the poor condition of the animal control
facilities, it is the intent of the parties that the tract of land described on Schedule A will
continue to be used as an animal control facility until a new animal control facility is built
by the COUNTY, on the tract of land described on Schedule B. In the event that the
County does not operate an animal control facility or animal shelter and its related and
associated uses, on the property described on Schedule A or Schedule B , then this
agreement shall be null and void and possession of the premises shall revert to the CITY.
The COUNTY will have 90 days from the date of the Certificate of Occupancy issuance
for the premises located on Schedule B to vacate the premises located on Schedule A.
3. The CITY will cooperate with the COUNTY in making such changes in its ordinance as
are reasonable and necessary as requested by the COUNTY to assure reasonable control
of all animals within the CITY by the COUNTY.
4. The COUNTY agrees to maintain an animal control program and to enforce animal
control ordinances within the City of Key West, Florida, in exchange for lease of land as
set forth in the proposed Amended and Restated 99-year Lease agreement.
5. The parties agree to cooperate and encourage the aid and assistance of the Florida Keys
SPCA and its successor in carrying out the objectives and obligations of this contract.
6. The failure of either party hereto to comply with any of its material obligations to the
other party as provided for herein shall constitute a default under this Agreement. Upon
any such default, the non -defaulting party shall provide to the defaulting party a written
Notice of such default, which Notice (a "Default Notice") shall state in reasonable detail
the actions the defaulting party must take to cure the same. The defaulting party shall
cure any such default, within 30 days following the date of the Default Notice. This
provision does not waive or negate the provisions of paragraph 21 and 22.
Notwithstanding the provisions contained in paragraph 6, if any such default by the
defaulting party remains uncured at the conclusion of any specified 30 day cure period,
and if the nature of the defaulting party's obligations are such that more than 30 days is
required to effect cure, then the defaulting party shall not be in default hereunder and the
non -defaulting party shall not have the right to exercise its termination rights granted
herein as a result of any such default, if the defaulting party commences cure within the
applicable cure period and thereafter diligently pursues cure to completion of
performance.
8. In the event the defaulting party fails to affect any required cure as provided for herein,
the defaulting party shall be deemed to be in uncured default hereunder, and the non -
defaulting party shall have the right, but shall not be obligated, upon written Notice to the
defaulting party, to terminate this Agreement.
9. To the extent permitted by law and subject to the provisions and monetary limitations of
Section 768.28, Florida Statutes, the COUNTY does hereby agrees to defend, indemnify
and hold the CITY, its officers, agents, or employees, harmless from and against any and
all liability, damages, costs or expenses (including reasonable attorneys' fees, costs, and
expenses at both the trial and appellate levels) arising from the acts or omissions of the
COUNTY or any third party vendor contracted by the COUNTY in connection with this
Agreement.
10. Notices.
All notices, requests, demands, elections, consents, approvals and other
communications hereunder must be in writing and addressed as follows, or to any other
address which either party may designate to the other party by mail:
If to County
County Administrator
Monroe County
Historic Gato Building
1100 Simonton Street
Key West, Florida 33040
With a copy to:
Monroe County Attorney's Office
P.O. Box 1026
Key West, Florida 33041-1026
If to CITY: City Manager
P.O. Box 1409
Key West, Florida 33041
With a copy to:
City Attorney
P.O. Box 1409
Key West, Florida 33041
Any Notice required by this Agreement to be given or made within a specified period of
time, or on or before a date certain, shall be deemed to have been duly given if sent by
certified mail, return receipt requested, postage and fees prepaid; hand delivered; or sent by
overnight delivery service.
11. Attorneys Fees and Waiver of Jury Trial.
In the event of any litigation arising out of this Agreement, the prevailing party shall
be entitled to recover its attorneys' fees and costs, including the fees and expenses of
any paralegals, law clerks and legal assistants, and including fees and expenses
charged for representation at both the trial and appellate levels. In the event of any
litigation arising out of this Agreement, each party hereby knowingly, irrevocably,
voluntarily and intentionally waives its right to trial by jury.
12. Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the
State of Florida. Exclusive venue for any litigation arising out of this Agreement shall be
in Monroe County, Florida, Lower Keys Division of the Circuit Court or the Southern
District of Florida. This Agreement is not subject to arbitration.
13. Entire Agreement/Modification/Amendment.
Subject to the Amended 99-year lease, this writing contains the entire Agreement of the
parties and supersedes any prior oral or written representations. No representations were
made or relied upon by either party, other than those that are expressly set forth herein.
No agent, employee, or other representative of either party is empowered to modify
or amend the terms of this Agreement, unless executed with the same formality as
this document.
14. Nonassignability.
This Agreement shall not be assignable by either party unless such assignment is
first approved by both parties.
15. Severability.
If any term or provision of this Agreement shall to any extent be held invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby, and each
remaining term and provision of this Agreement shall be valid and be enforceable to the
fullest extent permitted by law.
16. Independent Contractor
The COUNTY and its employees, volunteers, agents, vendors and subcontractors shall be
and remain independent contractor and not agents or employees of the CITY with respect
to all of the acts and services performed by and under the terms of this Agreement.
17. 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 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 Contractor agree that neither the COUNTY nor the Contractor 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 the Agreement
18. Waiver.
The failure of either party to this Agreement to object to or to take affirmative action
with respect to any conduct of the other which is in violation of the terms of this
Agreement shall not be construed as a waiver of the violation or breach, or of any future
violation, breach or wrongful conduct.
19. Survival of Provisions.
4
Any terms or conditions of either this Agreement that require acts beyond the date of the
term of the Agreement, shall survive termination of the Agreement, shall remain in full
force and effect unless and until the terms or conditions are completed and shall be fully
enforceable by either party.
20. Binding effect
The terms, covenants, conditions, and provisions of this Agreement shall bind and inure
to the benefit of the COUNTY and CITY and their respective legal representatives,
successors, and assigns.
21. Adjudication of Disputes or Disagreements
COUNTY and CITY 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 and CITY. 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.
22. 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 CITY 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 CITY
specifically agree that no party to this Agreement shall be required to enter into any
arbitration proceedings related to this Agreement.
23. Non -waiver of immunity
Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the
CITY and the COUNTY 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 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, when performing their respective functions under this
Agreement within the territorial limits of the COUNTY shall apply to the same degree
5
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. Counterparts.
This Agreement may be executed in several counterparts, each of which shall be deemed
an original and such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and
year first written above.
(City Seal)
AMY HEAVILIN
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
THE CITY OF KEY WEST, FLORIDA
Crai Cates, ayor
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MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
CHRISTINE M. LIMBERT-BARROWS
ASSISTANT OUNTY ATTORNEY
Date 4W1 -
Exhibit "A"
Original Premises
EXHIBIT A
From the intersection of the centerline of the south land of
U.S. Highway No. 1 and the easterly abutment of the Cow Key
Channel Bridge go North 71 Degrees 19 Minutes East a distance of
300 feet to a point of intersection with the approximate
centerline of County Club Road; thence along said approximate
centerline North 19 degrees 51 Minutes West a distance of 330
feet to Point #1.; thence North 39 Degrees 18 Minutes West a
distance of 300 feet to Point #2; thence North 30 Degrees 29
Minutes West a distance of 265 feet to Point #3; thence North 03
Degrees 13 Minutes West a distance of 152 feet of Point #4;
thence North 20 Degrees 08 Minutes East a distance of 600 feet
to Point ##5; thence South 69 Degrees 52 Minutes East, 28.8 feet
to the Point of Beginning of the parcel of land herein
described; thence continue South 69 Degrees 52 Minutes East,
along a cyclone fence, 145.7 feet to a point; thence South 30
Degrees 08 Minutes West, along a cyclone fence, 19.1 feet to a
point; thence North 83 Degrees 08 Minutes West, along a cyclone
fence, 36.7 feet, to a point; thence South 20 Degrees 08 Minutes
West, along a cyclone fence, 120.1 feet to a point; thence North
69 Degrees 52 Minutes West, along a cyclone fence, 119.4 feet to
a point; thence Northeasterly, along a cyclone fence, 149.2 feet
back to the Point of Beginning, that excepting from any land
described herein, the building or trailer currently occupied by
Billie Cheek, which property shall not be included in this lease
agreement.
Exhibit B
Relocated Premises
LEGAL DE5CRI PTI ON
PARCEL F
A parcel of land on and adjacent to Stock Island, Monroe County, Florida: said
parcel being a part of the lands described in TIIF Deed No. 19G99 (Deed Book
G-52 at Page 32 of the Public Records of the said County, TIIF Deed No. 23257
(Official Record Book 269 at Page 5 I 'G of the said Public Records) and TIIF Deed
No. 240G7 (Official Record Book 355 at Page 32 of the said Public Records; the
said parcel of land lying entirely within the composite of the said TIIF Deeds referred
to above: the said parcel lying within Sections 26 and 27, Township 67 5outh,
Range 25 East; and the said parcel of land being described by metes and bounds as
follows: COMMENCE at the intersection of the easterly right-of-way line of Junior
College Road with the northerly right-of-way line of U.S. Highway # I (state Road
#5); thence N 1804 I' l 8" W for 36. 16 feet to a point of curvature of a curve
concave to the Southwest; thence northwesterly on the arc of said curve having a
radius of 265.00 feet and a central angle of 35°OG'00" for I G2.34 feet to a point
of tangency; thence N53°47' 18" W for 272.56 feet to the point of curvature of a
curve concave to the Northeast; thence northwesterly on the arc of said curve
having a radius of 361.02 feet and a central angle of 14° 25' 40" for 90.91 feet to
a point of tangency; thence N39°2138" W for 273.51 feet to the point of
curvature of a curve concave to the Northeast; thence northwesterly on and
northeasterly on the arc of said curve having a radius of 446.85 feet and a central
angle of G2°35'30" for -488.1 5 feet to a point of tangency; thence N23'0 1352" E
for 1 122.43 feet; thence N45°30'07" E for 276.04 feet to a point of curvature of
a curve concave to the Northwest; thence northeasterly on the arc of said curve
having a radius of 3686.55 feet and a central angle of 3°43'31 " for a distance of
239.G9 feet; thence N4 I °4G'3G" E for a distance of 435.66 feet; thence
N48° 13'24' W for a distance of 15.00 feet; thence N4 I °4G'3G" E for a distance of
253.63 feet to the POINT OF BEGINNING; thence N48° 1324" W for a distance of
206.71 feet; thence N36°55'00" E for a distance of 251.34 feet; thence
527°37'00" E for a distance of 243.58 feet; thence 541 °46'3G" W for a distance
of 164.71 feet back to the POINT OF BEGINNING. Described tract contains 1.02
acres MORE OR LE55.
C
Amended and Restated Lease Agreement
between
The City of Key West, Florida
as Landlord
and
Monroe County,
as Tenant
Dated Mk G�- I q OV V
Page 1 of 22
This Amended and Restated Lease Agreement is made and entered into in Key West,
Monroe County, Florida, this I G! day of )%art4 2014, by and between THE CITY OF
KEY WEST, FLORIDA, a municipal corporation organized and existing under the laws
of the State of Florida, whose mailing address is P.O. Box 1409, Key West, Florida,
33041, (hereinafter "LANDLORD"), and Monroe County, a political subdivision of the
State of Florida, whose mailing address is 1100 Simonton Street, Key West, Florida
33040, (hereinafter "TENANT")
Whereas, on December 20, 1985, the LANDLORD and TENANT entered into a 99 year
lease agreement for a parcel of land more particularly described on Exhibit "A", which is
attached hereto and incorporated by reference, to be utilized for animal control purposes
(hereinafter "Original Premises"); and
Whereas, the TENANT agrees to maintain an animal control program and enforce the
animal control ordinances of the City of Key West in accordance with the Joint
Participation Agreement entered into by the parties simultaneously with this Amended
and Restated Lease Agreement; and
Whereas the LANDLORD and the TENANT now desire to relocate the demised
premises referred to in the 99 year lease agreement to the parcel of land more particularly
described on Exhibit `B", which is attached hereto and incorporated by reference
(hereinafter the "Relocated Premises"); and
Whereas, the TENANT, through its animal control contractor, the Florida Keys Society
of Prevention of Cruelty to Animal, Inc., shall construct a new animal control facility and
animal shelter on the Relocated Premises (hereinafter the "Facility").
Therefore, in consideration of the covenants and promises contained herein, the parties
agree as follows:
Page 2 of 22
1. DEMISE. The LANDLORD does hereby lease to the TENANT, and the
TENANT does hereby lease from the LANDLORD, the Relocated Premises, a parcel of
land zoned for light industrial use containing 1.02acres located on College Road, Key
West, Florida (hereinafter referred to as "Relocated Premises"), which is more
particularly described on Exhibit B, which is attached hereto and incorporated by
reference. The LANDLORD shall have unrestricted access and utilization of the fire road
located within the Relocated Premises.
2. TERM. The term of this Amended and Restated Lease Agreement shall
be for a period of ninety nine (99) years commencing retroactively to the 12t` day of
November, 1985, and ending at midnight on the 11t' day of November, 2084.
3. RENT. The TENANT agrees to pay to the LANDLORD an annual rent
for the Relocated Premises of Ten Dollars ($10.00) per year, which rental amount shall
be paid on an annual basis each year of the term of this Amended and Restated Lease
Agreement and shall be due on the 12t' day of November.
4. USE OF THE PREMISES. The TENANT shall be entitled to use the
Original Premises and the Relocated Premises for the continuous operation of
TENANT'S animal control facility, animal shelter and related and associated uses and for
no other purpose. TENANT may enter into an agreement with a third party for the
operation of the animal control facility and animal shelter and related and associated uses.
In the event the TENANT does not operate the Original Premises or the Relocated
Premises as an animal control facility, or in the event the TENANT breaches any of the
terms or conditions contained in the Joint Participation Agreement entered into by the
parties simultaneously with this Amended and Restated Lease Agreement, this Amended
and Restated Lease Agreement shall be cancelled, be of no further force or effect, and
possession of the Original Premises and Relocated Premises shall revert to the
LANDLORD.
In addition, TENANT further agrees:
Page 3 of 22
A. Any banners, pennants, search lights, signs, balloons, or similar temporary
media on the Original Premises or Relocated Premises must be in accordance with Key
West City Code;
B. Not to commit waste in the Original Premises or Relocated Premises and
to keep the Original Premises and Relocated Premises in a safe, neat, clean and orderly
condition and to maintain the Original Premises and Relocated Premises in good
condition;
C. Not to use the Original Premises or Relocated Premises or permit the same
to be used for any residential purpose or permit the same to be used in any manner that
violates any law, ordinance, rules, or regulation of the LANDLORD, or other
governmental agencies, as existing or promulgated during the term hereof, or in a manner
that would constitute a hazardous use of the Original Premises or Relocated Premises or
violate any insurance policy of the TENANT or the LANDLORD;
D. To take no action that would: (i) violate the LANDLORD's contracts or
(ii) cause any work stoppage or cause any manner of interference with LANDLORD;
E. To abide by and observe all rules and regulations established from time to
time by the LANDLORD and the LANDLORD's insurance carrier;
F. To obtain and maintain all licenses, permits, and other approvals necessary
to conduct the TENANT's business during the Lease term.
5. COVENANT OF QUIET POSSESSION. So long as the TENANT pays
all of the rent and charges due herein, TENANT shall peaceably and quietly have, hold,
and enjoy the Original Premises and Relocated Premises throughout the term of this
Amended and Restated Lease Agreement without interference or hindrance by the
LANDLORD or LANDLORD's agents.
6. INSURANCE: INDEMNIFICATION.
Insurance: At TENANT'S sole cost and expense, TENANT will secure, pay for, and file
with the LANDLORD, during the entire Term hereof, an occurrence form commercial
general liability policy, covering the Original Premises and Relocated Premises and the
operations of TENANT and any person conducting business in, on or about the Original
Page 4 of 22
S
Premises and Relocated Premises in at least the minimum amounts with specification
amounts, as may be determined from time to time by LANDLORD, to prevail if greater than
minimum amount indicated. Notwithstanding any other provision of this Lease, TENANT
shall provide the minimum limits of liability coverage as follows:
Commercial General Liability $2,000,000 Aggregate
$2,000,000 Products Aggregate
$1,000,000 Any One Occurrence
$1,000,000 Personal Injury
$300,000 Fire Damage/Legal
TENANT shall also procure the following insurance coverage:
(i) "All risk" property insurance, including theft coverage, written at replacement cost value
and a replacement cost endorsement insuring TENANT'S improvements and betterments,
fixtures, furnishings, equipment and any other property belonging to TENANT.
(ii) Workers compensation coverage as required by the provisions of Florida statute.
Any management agreement used by TENANT must provide that the LANDLORD does not
have any liability whatsoever for any damage which may occur on the Original Premises or
Relocated Premises. The TENANT must provide the LANDLORD with a copy of any
management agreement used by TENANT regarding the Relocated Premises. LANDLORD
shall not be responsible for damage to any property belonging to TENANT or Tenant's
manager. TENANT completely indemnifies the LANDLORD with regard to any claims
made by any manager for any reason. From time to time during this Lease, at LANDLORD's
request, TENANT shall (i) procure, pay for and keep in full force and effect such other
insurance as LANDLORD shall require and (ii) increase the limits of such insurance as
LANDLORD may reasonably require.
Any general liability or other policy insuring the LANDLORD does not provide any
contributing or excess coverage for TENANT. The policies TENANT procures for
TENANT'S exposure are the only coverage available to TENANT.
Page 5 of 22
0
While the Facility, or any replacement thereof, is in the course of construction, and whenever
appropriate while any alterations or renovations are in the course of being made, the
aforesaid fire and extended coverage insurance shall be carried by Tenant in builder's risk
form written on a completed value basis.
TENANT shall furnish an original Certificate of Insurance indicating, and such policy
providing coverage, to LANDLORD named as "Additional Insured" on a PRIMARY and
NON CONTRIBUTORY basis utilizing an ISO standard endorsement at least as broad as CG
2010 (11/85) or its equivalent, INCLUDING A "Waiver of Subrogation" clause in favor of
LANDLORD on all policies. TENANT will maintain the General Liability coverage
summarized above with coverage continuing in full force including the "additional insured"
endorsement until at least 3 years beyond the termination of this Lease.
TENANT'S insurance policies shall be endorsed to give 30 days' written notice to
LANDLORD in the event of cancellation or material change, using form CG 02 24, or its
equivalent.
All policies of insurance required to be carried by TENANT pursuant to this Lease shall be
written by responsible insurance companies authorized to do business in Florida with an AM
Best rating of A -VI or better. Any such insurance required to be carried by TENANT
hereunder may be furnished by TENANT under any blanket policy carried by it or under a
separate policy therefore. Certificates shall be delivered to LANDLORD prior to the
commencement of the Term of this Amended and Restated Lease Agreement and, upon
renewals, but not less than sixty (60) days prior to the expiration of such coverage. In the
event TENANT shall fail to procure such insurance, LANDLORD may, at its option, procure
the same for the account of TENANT, and the cost thereof shall be paid to LANDLORD as
an additional charge upon receipt by TENANT of bills therefore, together with an
administrative fee equal to fifteen (15%) percent to cover the cost of the LANDLORD's
efforts to procure such policy.
Certificates of Insurance submitted to LANDLORD will not be accepted without copies of
the endorsements being requested. This includes additional insured endorsements,
Page 6 of 22
cancellation/material change notice endorsements, and waivers of subrogation. Copies of
USL&H Act and Jones Act endorsements will also be required if necessary.
Indemnification: Subject to 768.28, Florida Statutes, TENANT does hereby agree to
indemnify, defend, and save LANDLORD, its respective officers, directors, agents and
employees harmless from and against any and all liability for any injury to or death of any
person or persons or damage to property (including adjoining property for environmental
damage) in any way arising out of or connected with the conditions, use or occupancy of the
Original Premises and Relocated Premises, or in any way arising out of the activities of
TENANT, its agents, employees, licensees or invitees on the Original Premises and
Relocated Premises and/or the building, including reasonable attorney's fees and court costs
incurred by LANDLORD in connection therewith, such legal expenses to include costs
incurred in establishing the indemnification and other rights agreed to in this Paragraph,
excepting, however, only liability caused by LANDLORD's gross negligence in its failure to
perform any of LANDLORD's covenants, obligations or agreements of this Lease. Nothing
herein is intended to waive the sovereign immunity afforded to LANDLORD pursuant to
Florida law, including section 768.28, Florida Statutes.
The indemnification obligations under this Section shall not be restricted in any way by any
limitation on the amount or type of damages, compensation, or benefits payable by or for
TENANT under Workers' Compensation acts, disability benefits acts, or other employee
benefits acts, and shall extend to and include any actions brought by or in the name of any
employee of TENANT or of any third party to whom TENANT may subcontract work. This
indemnification shall continue beyond the date of termination of the Agreement.
7. ASSIGNMENT AND HYPOTHECATION. This Lease is not
transferable or assignable, except as provided by Resolution of the Key West City
Commission, whose consent may be withheld for any reason or no reason. The
TENANT may not sublet the Relocated Premises or any part thereof. Any assignment,
even with the LANDLORD's consent, shall not relieve the TENANT from the obligation
to keep and be bound by the agreements of this Lease. The acceptance of Rent from any
other person shall not be deemed to be a waiver of any of the agreements of this Lease or
to be consent to the assignment for benefit of creditors or by operation of law and shall
Page 7 of 22
not be effective to transfer any rights to any assignee without prior consent of the
LANDLORD.
8. DEFAULT CLAUSE.
A. It is covenanted and agreed by LANDLORD and TENANT that in
case at any time default shall be made in the payment of rent, or in case the TENANT
shall fail to keep the required insurance, or shall fail to spend insurance money, as herein
provided for, or if the TENANT shall fail to perform any of the covenants of this Lease,
including, but not limited to, the provisions pertaining to tenant improvements contained
in paragraph 9 herein below, then, in any of such events, TENANT shall be subject to
eviction pursuant to Chapter 83, Florida Statutes.
B. Or, the LANDLORD may have such other remedies as the law and
this instrument afford, and the TENANT covenants and agrees that upon the termination
of the demised term, at such election of the LANDLORD, or in any other way, the
TENANT will surrender and deliver up the Original Premises and Relocated Premises
and property (real and personal) peaceably to the LANDLORD, its agent, or attorneys,
immediately upon the termination of the demised term. If the TENANT, its agents,
attorneys, or tenants shall hold the Original Premises or Relocated Premises or any part
thereof, one (1) day after the same should be surrendered according to the terms of this
Lease, it shall be deemed guilty of forcible detainer of the Original Premises or Relocated
Premises under the applicable statute and shall be subject to eviction or removal, forcibly
or otherwise.
C. Where the alleged default consists of some alleged violation of any
term of this Lease, other than the payments of money, including rent and insurance
premiums, the LANDLORD may not declare this Lease in default until such violation
shall have continued for thirty (30) days after the LANDLORD shall have given the
TENANT written notice of such violation, and TENANT shall not have undertaken,
during this thirty (30) days' notice period, to cure said violation by vigorous and
affirmative action, provided, however, that nothing herein contained shall be construed as
precluding
the LANDLORD from having such remedy as may be and become necessary in order to
Page 8 of 22
preserve the LANDLORD'S right and interest of the LANDLORD in the Original
Premises and Relocated Premises and in this Lease, even before the expiration of the
grace or notice periods provided for in this paragraph, if, under particular circumstances
then existing, the allowance of such grace or the giving of such notice would prejudice or
endanger the rights and estate of the LANDLORD in this Lease and in the Original
Premises or Relocated Premises. With respect to the payment of the insurance premiums,
the same must be paid at least thirty (30) days prior to the time when the policies would
lapse for the failure to pay premiums thereon, and evidence of such payment given to the
LANDLORD without any written notice being required to be served upon the TENANT
in connection therewith.
D. All default and grace periods shall be deemed to run concurrently
and not consecutively.
E. It is mutually covenanted and agreed that the various rights,
powers, options, elections, privileges, and remedies of the LANDLORD contained in this
Lease shall be construed as cumulative and no one of them shall be construed as being
exclusive of the other or exclusive of any rights or priorities allowed by law.
F. It is further covenanted and agreed by and between the parties
hereto that the right given to the LANDLORD in this Lease to collect the rent that may
be due under the terms of this Lease by any proceeding under same, or the right to collect
any additional rent, money, or payments due under the terms of this Lease by any
proceedings under same, or the right given the LANDLORD to enforce any of the terms
and provisions of this Lease shall not in any way affect the right of such LANDLORD to
declare this Lease void and the terms ended hereby, as herein provided, when default is
made in the payment of rent or when default is made by the TENANT in any of the terms
and provisions of this Lease.
G. If at any time, by reason of the failure of the TENANT to keep and
perform any covenant or agreement which, under the terms of this Lease, the TENANT is
bound and obligated to keep and perform, it becomes necessary for the LANDLORD to
employ an attorney to protect the rights and interests of the LANDLORD in the Original
Premises or Relocated Premises or to enforce the Lease or proceed under it in any
Page 9 of 22
a
Particular manner, then in any of such events, the TENANT will owe and will pay unto
the LANDLORD all costs of Court and reasonable attorney's fees incurred or expended
by the LANDLORD in taking such actions, including actions taken in all trial and
appellate courts.
9. TENANT IMPROVEMENTS: TENANT agrees to develop and
construct an animal control facility and animal shelter (the "Facility") on the Relocated
Premises at TENANT'S sole cost and expense and in accordance with all existing
permits, restrictions and any other land use requirements including, but not limited to, the
Solid Waste Closure Permit attached hereto as Exhibit "C" and incorporated by
reference, and the Ground Water Permit attached hereto as Exhibit "D" and incorporated
by reference. Building plans and specifications for the Facility must be approved by the
LANDLORD and be in compliance with sustainable standards for government buildings
as determined by the Florida Green Building Council. TENANT shall pay all fees
applicable to development of the Facility, including, but not limited to, impact fees and
permit fees. TENANT agrees that the site plan will be designed to provide an acceptable
sound buffer from the adjoining school. TENANT shall not place structures or other
improvements in that portion of Parcel F labelled "asphalt" and "dirt road" or the parcel
identified as parcel "A" on the survey attached hereto and more particularly described as
Exhibit "E".
TENANT shall submit an application for development plan approval of the Facility
within 8 months of the approval of this Amended and Restated Lease Agreement.
Thereafter, TENANT shall secure issuance of a Planning Board resolution concerning
TENANT'S development plan within 150 days following submission of the application
for development plan approval. Thereafter, TENANT shall secure issuance of a City
Commission resolution concerning TENANT'S development plan within 60 days
following the Planning Board's action on the development plan. Thereafter, TENANT
shall submit an application for building permits for construction of the improvements
authorized under the development plan within 180 days of the effective date of the
development plan approval. ("Effective date of development plan approval" is the date
Page 10 of 22
0
of any appeal or DEO challenge to development plan approval is finally determined, and
if no such appeal or challenge is filed, 60 days following the rendition of the Commission
resolution granting development plan approval). Thereafter, TENANT shall secure
issuance of a building permit for construction of the improvements within 90 days after
the building permit application is deemed complete by the chief building official.
Thereafter, TENANT shall secure the issuance of a certificate of occupancy within 365
days of the issuance of the building permit.
Before a building permit will be issued as set forth above, the TENANT shall provide a
performance guarantee. The TENANT shall warrant that it has the financial capability to
construct and complete the project/the Facility as planned without the need to request
further funding. TENANT shall confirm in writing (in the form of bank statements, a
signed letter from the bank stating that funds are in the bank for the specified project,
documentation provided by a financial institution of a line of credit assigned to the
construction of The Facility, and/or a line item budget for the construction and
completion of the Facility approved by the Board of County Commissioners of Monroe
County that TENANT has the funds in place at the time of issuance of the building
permit such to be in a position to construct and complete the Facility.
TENANT shall be permitted to occupy the Original Premises for the period ending 90
days from the completion of the construction of the Facility and receipt of a certificate of
occupancy. Thereafter, TENANT shall remove all improvements located on the Original
Premises and remediate all environmental contamination on the Original Premises within
180 days of vacating the Original Premises. TENANT shall be solely responsible for all
costs and expenses associated with the demolition and removal of the existing
improvements including, but not limited to, remediation of any environmental
contamination.
10. TENANT'S DUTY TO KEEP PREMISES IN GOOD REPAIR.
The TENANT covenants and agrees with the LANDLORD that while TENANT
occupies the Original Premises during the term of this Amended and Restated Lease
Agreement, the TENANT will keep in good state of repair, the Original Premises, the
Page 11 of 22
HVAC equipment, and the fixtures serving the Original Premises, and all furnishings
brought or placed upon the Original Premises by the TENANT; nor will the TENANT
suffer or permit any strip, waste, or neglect of any such property to be committed; and the
TENANT will repair, replace, and re -construct the property as often as it may be
necessary in order to keep the property in good repair and condition, at TENANT'S sole
cost and expense. Tenant shall only utilize licensed contractors and shall apply for all
permits, as required, to complete the necessary repairs. The TENANT covenants and
agrees with the LANDLORD that while TENANT occupies the Relocated Premises
during the term of this Amended and Restated Lease Agreement, the TENANT will keep
in good state of repair, the Relocated Premises, the HVAC equipment, and the fixtures
serving the Relocated Premises, and all furnishings brought or placed upon the Relocated
Premises by the TENANT; nor will the TENANT suffer or permit any strip, waste, or
neglect of any such property to be committed; and the TENANT will repair, replace, and
re -construct the property as often as it may be necessary in order to keep the property in
good repair and condition, at TENANT'S sole cost and expense. Tenant shall only utilize
licensed contractors and shall apply for all permits, as required, to complete the necessary
repairs.
11. ADDITIONAL COVENANTS OF THE TENANT.
A. The TENANT shall pay for all utilities associated with the use of
the Original Premises and Relocated Premises including, but not limited to, water,
electricity, sewer gas and solid waste. In the event that a separate bill for the Original
Premises or Relocated Premises is not available for one or more of the utility services
required by the Original Premises or Relocated Premises, then the TENANT shall pay a
pro -rated share of that particular utility based on the square footage of the Original
Premises or Relocated Premises and/or the parties' estimated usage of that particular
utility, calculation of which to be mutually agreed upon.
B. The TENANT covenants and agrees with the LANDLORD that no
damage or destruction to any building or improvement by fire, windstorm, or any other
casualty shall be deemed to entitle the TENANT to surrender possession of the Original
Premises or Relocated Premises or to terminate this Lease or to violate any of its
Page 12 of 22
provisions or to cause any abatement or rebate in the rent then due or thereafter becoming
due under the terms hereof, unless otherwise specifically provided for herein. If the
Lease is canceled for the TENANT's default at any time while there remains outstanding
any obligation from any insurance company to pay for the damage or any part thereof,
then the claim against the insurance company shall, upon the cancellation of the Lease, be
deemed immediately to become absolute and unconditional property of the LANDLORD.
In the event of destruction of the Premises by casualty or hazard, the LANDLORD will
have the option of canceling the Lease.
C. The TENANT covenants and agrees with the LANDLORD that
nothing in this Lease shall ever be construed as empowering the TENANT to encumber
or cause the TENANT to encumber the title or interest of the LANDLORD.
D. The TENANT covenants and agrees with the LANDLORD that, at
the termination of this Lease, the TENANT will peaceably and quietly deliver unto the
LANDLORD, possession of the Original Premises and Relocated Premises and all
improvements located thereon, as well as all fixtures thereto provided by LANDLORD.
TENANT shall retain ownership and possession of all fixtures, equipment, and other
tangible personal property located thereto provided by TENANT or its agents..
E. The TENANT agrees not to make any changes or alterations to the
Original Premises without written approval of the LANDLORD.
12. LANDLORD'S RIGHT OF ENTRY. The LANDLORD or its agents
shall have the right to enter upon the Original Premises and Relocated Premises at all
reasonable times to examine the condition and use thereof, provided only that such right
shall be exercised in such manner as not to interfere with the TENANT in the conduct of
the TENANT's business on the Original Premises or Relocated Premises.
13. FIXTURES, EQUIPMENT AND SIGNS, AND OTHER TANGIBLE
PERSONAL PROPERTY. All fixtures, equipment, signs, and other tangible personal
property used on the Original Premises and Relocated Premises by the TENANT but
Page 13 of 22
provided by the LANDLORD will at all times be and remain the property of the
LANDLORD. All fixtures, equipment signs and other tangible personal property used on
the Original Premises and Relocated Premises by the TENANT and provided by the
TENANT, or its agents, will at all times be and remain the property of the TENANT, or it
agents. Provided that this Lease is in good standing, the TENANT will have the right to
remove any equipment, fixtures signs or other tangible personal property provided by the
TENANT, or any part thereof, from the Original Premises and Relocated Premises
during the term of this Lease, at the expiration thereof, or within a reasonable time
thereafter; provided, however, that the TENANT, in so doing, does not cause any
irreparable damage to the Original Premises and Relocated Premises; and provided
further, that the TENANT shall pay or reimburse the LANDLORD for the reasonable
expense of repairing damage caused by such removal.
14. ACCEPTANCE IN AS -IS CONDITION. The TENANT accepts the
Original Premises and Relocated Premises in an as -is condition and all improvements and
additions shall be at the sole expense of the TENANT.
15. NO MECHANIC'S LIENS. It is hereby covenanted, stipulated and
agreed by and between the parties hereto that there shall, during the demised term, be no
mechanic's liens upon any buildings or improvements that may at any time be put upon
the Original Premises or Relocated Premises, and that in case of any mechanic's liens the
TENANT must pay off the same; and that if default in payment thereof shall continue for
thirty (30) days after written notice, LANDLORD shall have the right and privilege, at its
option, to pay off the same or any portion of the same, and the amount so paid, including
expenses, shall at the option of the LANDLORD, be so much additional rent due from
the TENANT at the next rent due after such payment, with interest thereon at the
maximum rate allowed by law. Nothing herein shall be construed to admit that a
mechanic's lien may be enforced against municipal property.
16. MISCELLANEOUS PROVISIONS. It is mutually covenanted and
agreed by and between the parties as follows:
Page 14 of 22
A. That no waiver or a breach of any of the covenants in this Lease
contained shall be construed to be a waiver of all succeeding breach of the same
covenant.
B. That time is of the essence in every particular and particularly
where the obligation to pay money is involved.
C. That all arrearages in the payment of rent or in the repayment to
the LANDLORD of any sums which the LANDLORD may have paid in order to cure a
default of the TENANT (as elsewhere herein provided for), shall bear interest from the
date when due and payable at the highest rate permitted by law until paid.
D. That no modification, release, discharge, or waiver of any
provision hereof shall be of any force, effect, or value unless in writing and signed by the
persons who are then LANDLORD and TENANT.
E. That all covenants, promises, conditions, and obligations contained
herein or implied by law, or covenants running with the land, shall attach to and be
binding upon the heirs, executors, administrators, successors, legal representatives, and
assigns of each of the parties to this Lease.
F. That this instrument contains the entire agreement between the
parties as of this date, and that the execution hereof has not been induced by either of the
parties by representations, promises or understandings not expressed herein, and that
there are not collateral agreements, stipulations, promises, or understandings whatsoever
between the representative parties in any way touching the subject matter of this
instrument which are not expressly contained in this instrument.
G. That when either of the parties desire to give notice to the other or
others in connection with and according to the terms of this Lease, such notice shall be
deemed given when it shall have been deposited in the U.S. Registered or Certified mail
with sufficient postage pre -paid thereon to carry it to its addressed destination. The
notice shall be addressed as follows:
If to Tenant: County Administrator
Monroe County
Historic Gato Building
1100 Simonton Street
Key West, Florida 33040
Page 15 of 22
With a copy to: Monroe County Attorney's Office
P.O. Box 1026
Key West, Florida 33041-1026
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If to Landlord: City Manager
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P.O. Box 1409
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Key West, Florida 33041
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With a copy to: City Attorney
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P.O. Box 1409
Key West, Florida 33041
When the parties on either side (LANDLORD or TENANT) consist of more than
one person, notice or default by one of the persons on that side shall constitute notice or
default by all of the persons on that side.
H. This Lease and the provisions thereof shall be governed by and
construed and enforced in accordance with the laws of the State of Florida; venue for any
action regarding this Lease shall be in Monroe County, Florida.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing Amended and
Restated Lease Agreement to be executed on the day and year first above written.
BOARD OF COUNTY COMMISSIONERS
MONROE COUNTY, FLORIDA
THE CITY OF KEY WEST, FLORIDA
ayor
Page 17 of 22
Exhibit "A"
Original Premises
Page 18 of 22
EXHIBIT A
From the intersection of the centerline of the south land of
U.S. Highway No. 1 and the easterly abutment of the Cow Key
Channel Bridge go North 71 Degrees 19 Minutes East a distance of
300 feet to a point of intersection with the approximate
centerline of County Club Road; thence along said approximate
centerline North 19 degrees 51 Minutes West a distance of 330
feet to Point #1; thence North 39 Degrees 18 Minutes West a
distance of 300 feet to Point #2; thence North 30 Degrees 29
Minutes West a distance of 265 feet to Point #3; thence North 03
Degrees 13 Minutes West a distance of 152 feet of Point #4;
thence North 20 Degrees 08 Minutes East a distance of 600 feet
to Point #5; thence South 69 Degrees 52 Minutes East, 28.8 feet
to the Point of Beginning of the parcel of land herein
described; thence continue South 69 Degrees 52 Minutes East,
along a cyclone fence, 145.7 feet to a point; thence South 30
Degrees 08 Minutes West, along a cyclone fence, 19.1 feet to a
point; thence North 83 Degrees 08 Minutes West, along a cyclone
fence, 36.7 feet, to a point; thence South 20 Degrees 08 Minutes
West, along a cyclone fence, 120.1 feet to a point; thence North
69 Degrees 52 Minutes West, along a cyclone fence, 119.4 feet to
a point; thence Northeasterly, along a cyclone fence, 149.2 feet
back to the Point of Beginning, that excepting from any land
described herein, the building or trailer currently occupied by
Billie Cheek, which property shall not be included in this lease
agreement.
Exhibit B
Relocated Premises
Page 19 of 22
LEGAL DE5CRIPTION
PARCEL F
A parcel of land on and adjacent to Stock Wand, Monroe County, Flonda: said
parcel being a part of the lands described 1n TIIF Deed No. 19699 (Deed Book
G-52 at Page 32 of the Public Records of the said County, TIIF Deed No. 23257
(official Record Book 269 at Page 5 I '6 of the said Public Records) and TIIF Deed
No. 24067 (Official Record Book 355 at Page 32 of the said Public Records; the
said parcel of land lying entirely within the composite of the said TIIF Deeds referred
to above: the said parcel lying within Sections 26 and 27, Township 67 5outh,
Range 25 East; and the said parcel of land being described by metes and bounds as
follows: COMMENCE at the intersection of the easterly right-of-way line of Junior
College Road with the northerly right-of-way line of U.5. highway # I (5tate Road
#5); thence N 18°4 I' 18" W for 36. 16 feet to a point of curvature of a curve
concave to the Southwest; thence northwesterly on the arc of said curve having a
radius of 265.00 feet and a central angle of 35°06'00" for 162.34 feet to a point
of tangency; thence N53°4718" W for 272.56 feet to the point of curvature of a
curve concave to the Northeast; thence northwesterly on the arc of said curve
having a radius of 361 .02 feet and a central angle of 14° 25' 40" for 90.91 feet to
a point of tangency; thence N39°21'38" W for 273.51 feet to the point of
curvature of a curve concave to the Northeast; thence northwesterly on and
northeasterly on the arc of said curve having a radius of 446.85 feet and a central
angle of 62°35'30" for 488.15 feet to a point of tangency; thence N23° 13'52" E
for 1 122.43 feet; thence N45°30'07" E for 276.04 feet to a point of curvature of
a curve concave to the Northwest; thence northeasterly on the arc of said curve
having a radius of 3686.55 feet and a central angle of 3°43'31 " for a distance of
239.69 feet; thence N4 I °46'36" E for a distance of 435.66 feet; thence
N48° 1324" W for a distance of 15.00 feet; thence N4 I °46'36" E fora distance of
253.63 feet to the POINT OF BEGINNING; thence N48° 13'24" W for a distance of
206.71 feet; thence N36°55'00" E for a distance of 251 .34 feet; thence
527°37'00" E for a distance of 243.58 feet; thence 541 °46'3G" W for a distance
of 164.71 feet back to the POINT OF BEGINNING. Described tract contains 1.02
acres MORE OR LESS.
Exhibit C
Solid Waste Closure Permit
Page 20 of 22
APPENDIX 10
Florida Department of
Environmental Protection
South District
P.O. Box 2549
Fort Myers, FL 33902-2549
April 18, 2011
City of Key West
c/o Jay Gewin, Utilities Manager
E-mailed to: igewin@ke, w� estcity.com
525 Angela Street
Key West, Florida 33040
Subject: Site Assessment Plan Approval
FDEP Facility ID: WACS 79636
Former Southernmost Waste -to -Energy Facility
5701 College Road
Key West, Florida, Monroe County
Dear Mr. Gewin:
FDEP Concurrence Letter
Rick Scott
Governor
Jennifer Carroll
Lt. Governor
Herschel T. Vinyard Jr.
Secretary
The Waste Management Section has reviewed the Interim Remedial Action
Report document (IRAR), submitted for the former Southernmost Waste -to -
Energy Facility on behalf of the City of Key West, and prepared by CH2M Hill,
dated April 1, 2011; along with supplemental information stored in the Florida
Department of Environmental Protection (the Department) OCULUS system for
the Facility ID: WACS 79636.
The Department recommends that 2 (two) additional monitoring wells be added
to the groundwater monitoring plan and placed outside the footprint of the ash
transfer building on the the North West and South East side's as indicated on the
attached drawing (Attachment n and that Thallium and Arochlor (PCB) be
added to the list of monitoring parameters.
With the inclusion of the above recommended additional monitoring wells and
parameters, the Department finds that the documents submitted are adequate to
meet the site assessment requirements of Rule 62-780.600 Florida Administrative
Code (F.A.C.). The Department has determined that the actions proposed in this
IRAR represent a reasonable strategy toward accomplishing the site assessment
objectives of Chapter 62-780, F.A.C. and are compatible with the City's intended
future use, which include plans to relocate their existing downtown Key West
Department of Transportation bus maintenance building and facilities (Transit
Facility) to the Southernmost Waste -to -Energy (SWTE) Facility site located at
City of Key West
FDEP Facility ID: WACS 79636
April 18, 2011
Page 2 of 2
Stock Island. Pursuant to paragraph 62-780.600, F.A.C., The Department
approves the IRAR subject to the addition of the recommended groundwater
monitoring wells and additional parameters.
Groundwater monitoring at this site shall continue for an indefinite period of
time, however; should the City of Key West desire to achieve final closure for the
site at some future date and pursue a No Further Action (NFA) in accordance
with Chapters 62-780.690 and 62-780.700, F.A.C., a subsequent phase of remedial
design will be necessary.
If you have any question, please feel free to call me at (239) 344-5648. Whenever
possible, please submit written documentation to james.harcourt@dep.state.fl.us
and include the WACS ID number in your correspondence.
Sincerely,
IIA44--t-
James Harcourt, P.G. II
Florida Department of
Environmental Protection
South District, Waste Management
Attachment
cc: R. J. Bruner III, P.E. CH2M Hill (via e-mail to bo.bruner®ch2m.com)
Bill Krumbholz (via e-mail to bill.krumbholz®dep.state.fl.us)
Barbara Nevins (via e-mail to barbara.nevins®dep.state.fl.us)
Attachment I
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Exhibit D
Ground Water Permit
Page 21 of 22
APPENDIX 11
Environmental
Resource Permit
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
ENVIRONMENTAL RESOURCE
STANDARD GENERAL PERMIT NO.44-00076-S
DATE ISSUED:August 23, 2010
Form #0941
08195
PERMITTEE: CITY OF KEY WEST
604 SIMONTON STREET
KEY WEST, Fl- 33040
PROJECT DESCRIPTION: Modification of Permit No. 44-00076-S for the construction and operation of a
surface water management system to serve a 3.86 acre municipal development
known as the City of Key West Public Transportation Facility.
PROJECT LOCATION:
PERMIT DURATION:
MONROE COUNTY,
SEC 27 TWP 67S RGE 25E
See Special Condition No:1. See attached Rule 40E4.321, Florida Administrative
Code.
This is to notify you of the DistrWs agency action concerning Notice of Intent for Permit Application No. 090617-6, dated June 17, 2009.
This action is taken pursuant to Rub 40E-1.603 and Chapter 40E-40 , FW49 Adminishadve Code (FA.C.j.
Based on the information provided. District rubs have been adhered to and an Environmental Resource General Permit is in effect for this
project subject to.
1. Not receiving a Bled request for a Chapter 120, Florida Statutes, administrative hearing.
2. the attached 19 General Conditions (See Pages: 2.4 of 6).
3. the attached 14 Special Conditions (See Pages : 5 - 6 of 6) and
4. the attached 2 Exhibit(s)
Should you object to these conditions, please refer to the attached 'Notice of Rights" which addresses the procedures to be followed if you
desire a public hearing or other review of the proposed agency action. Please contact this ofilce 9 you have any questions concerning this
matter. If we do not hear from you in accordance with the "Notice of Rights," we will assume that you concur with the Districrs action.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a "Notice of Rights" has been mailed to the Permittee (and the persons listed in the
attached distribution list) no later than 5:00 p.m. on this 23rd day of August, 2010, in accordance with Section
BY: /./o)i � tl' J�� A
Anita R. Barn
Director - Environmental Resource Permitting Division
Palm Beach Service Center
Certified mail number 7009 2250 00031260 9165
Page 1 of 6
Appk ation No.: 09W17-6
Page 2 of 6
GENERAL CONDITIONS
1. All activities authorized by this permit shall be implemented as set forth in the plans, specifications and
performance criteria as approved by this permit. Any deviation from the permitted activity and the
conditions for undertaking that activity shall constitute a violation of this permit and Part IV, Chapter 373.
F.S.
2. This permit or a copy thereof, complete with all conditions, attachments, exhibits, and modifications shall
be kept at the work site of the permitted activity. The complete permit shall be available for review at the
work site upon request by District staff. The permittee shall require the contractor to review the complete
permit prior to commencement of the activity authorized by this permit
3. Activities approved by this permit shall be conducted In a manner which does not cause violations of State
water quality standards. The permittee shall implement best management practices for erosion and
pollution control to prevent violation of State water quality standards. Temporary erosion control shall be
implemented prior to and during construction, and permanent control measures shall be completed within
7 days of any construction activity. Turbidity barriers shall be installed and maintained at all locations
where the possibility of transferring suspended solids into the receiving waterbody exists due to the
permitted work. Turbidity barriers shall remain in place at all locations until construction is completed and
soils are stabilized and vegetation has been established. All practices shall be in accordance with the
guidelines and specifications described in Chapter 6 of the Florida Land Development Manual; A Guide to
Sound Land and Water Management (Department of Environmental Regulation, 1988), incorporated by
reference in Rule 40E-4.091, F.A.C. unless a project -specific erosion and sediment control plan is
approved as part of the permit. Thereafter the permittee shall be responsible for the removal of the
barriers. The permittee shall correct any erosion or shoaling that causes adverse impacts to the water
resources.
4. The permittee shall notify the District of the anticipated construction start date within 30 days of the date
that this permit is issued. At least 48 hours prior to commencement of activity authorized by this permit,
the permittee shall submit to the District an Environmental Resource Permit Construction Commencement
Notice Form Number 0960 indicating the actual start date and the expected construction completion date.
5. When the duration of construction will exceed one year, the permittee shall submit construction status
reports to the District on an annual basis utilizing an annual status report form. Status report forms shall
be submitted the following June of each year.
6. Within 30 days after completion of construction of the permitted activity, the permitee shall submit a written
statement of completion and certification by a professional engineer or other individual authorized by law,
utilizing the supplied Environmental Resource/Surface Water Management Permit Construction
Completion/Certification Form Number 0881A, or Environmental Resource/Surface Water Management
Permit Construction Completion Certification - For Projects Permitted prior to October 3, 1995 Form No.
0881 B, incorporated by reference In Rule 40E-1.659, F.A.C. The statement of completion and
certification shall be based on onsite observation of construction or review of as -built drawings for the
purpose of determining if the work was completed in compliance with permitted plans and specifications.
This submittal shall serve to notify the District that the system is ready for inspection. Additionally, if
deviation from the approved drawings are discovered during the certification process, the certification must
be accompanied by a copy of the approved permit drawings with deviations noted. Both the original and
revised specifications must be clearly shown. The plans must be dearly labeled as "as -built" or "record"
drawings. All surveyed dimensions and elevations shall be certified by a registered surveyor.
7. The operation phase of this permit shall not become effective: until the permittee has complied with the
requirements of condition (6) above, and submitted a request for conversion of Environmental Resource
Permit from Construction Phase to Operation Phase, Forth No. 0920; the District determines the system to
be in compliance with the permitted plans and specifications; and the entity approved by the District in
accordance with Sections 9.0 and 10.0 of the Basis of Review for Environmental Resource Permit
Application No.: 090617-6
Page 3 of 6
GENERAL CONDITIONS
Applications within the South Florida Water Management District, accepts responsibility for operation and
maintenance of the system. The permit shall not be transferred to such approved operation and
maintenance entity until the operation phase of the permit becomes effective. Following inspection and
approval of the permitted system by the District, the permittee shall initiate transfer of the permit to the
approved responsible operating entity if different from the permittee. Until the permit is transferred
1 pursuant to Section 40E-1.6107, F.A.C., the permittee shall be liable for compliance with the terms of the
permit.
8. Each phase or independent portion of the permitted system must be completed in accordance with the
permitted plans and permit conditions prior to the initiation of the permitted use of site Infrastructure
located within the area served by that portion or phase of the system. Each phase or independent portion
of the system must be completed in accordance with the permitted plans and permit conditions prior to
transfer of responsibility for operation and maintenance of the phase or portion of the system to a local
government or other responsible entity.
9. For those systems that will be operated or maintained by an entity that will require an easement or deed
restriction in order to enable that entity to operate or maintain the system in conformance with this permit,
such easement or deed restriction must be recorded in the public records and submitted to the District
along with any other final operation and maintenance documents required by Sections 9.0 and 10.0 of the
Basis of Review for Environmental Resource Permit applications within the South Florida Water
Management District, prior to lot or units sales or prior to the completion of the system, whichever comes
first. Other documents concerning the establishment and authority of the operating entity must be filed
with the Secretary of State, county or municipal entities. Final operation and maintenance documents must
=� be received by the District when maintenance and operation of the system is accepted by the local
government entity. Failure to submit the appropriate final documents will result in the permittee remaining
liable for carrying out maintenance and operation of the permitted system and any other permit conditions.
10. Should any other regulatory agency require changes to the permitted system, the permittee shall notify the
District in writing of the changes prior to implementation so that a determination can be made whether a
permit modification is required.
11. This permit does not eliminate the necessity to obtain any required federal, state, local and special district
authorizations prior to the start of any activity approved by this permit. This permit does not convey to the
permittee or create in the permittee any property right, or any interest in real property, nor does it authorize
any entrance upon or activities on property which is not owned or controlled by the permittee, or convey
any rights or privileges other than those specfied in the permit and Chapter 40E-4 or Chapter 40E-40,
FAC..
12. The permittee is hereby advised that Section 253.77, F.S. states that a person may not commence any
excavation, construction, or other activity involving the use of sovereign or other lands of the State, the title
to which is vested in the Board of Trustees of the Internal improvement Trust Fund without obtaining the
required lease, license, easement, or other form of consent authorizing the proposed use. Therefore, the
permittee is responsible for obtaining any necessary authorizations from the Board of Trustees prior to
commencing activity on sovereignty lands or other state-owned lands.
13. The permittee must obtain a Water Use permit prior to construction dewatering, unless the work qualifies
for a general permit pursuant to Subsection 40E-20.302(3), F.A.C., also known as the "No Notice` Rule.
14. The permittee shall hold and save the District harmless from any and all damages, claims, or liabilities
which may arise by reason of the construction, alteration, operation, maintenance, removal, abandonment
or use of any system authorized by the permit
15. Any delineation of the extent of a wetland or other surface water submitted as part of the permit
Application No.: 09DS174
Page 4 of 6
GENERAL CONDITIONS
application, including plans or other supporting documentation, shall not be considered binding, unless a
specific condition of this permit or a formal determination under Section 373.421(2), F.S., provides
otherwise.
16. The permittee shall notify the District in writing within 30 days of any sale, conveyance, or other transfer of
ownership or control of a permitted system or the real property on which the permitted system Is located.
All transfers of ownership or transfers of a permit are subject to the requirements of Rules 40E-1.6105
and 40E-1.6107, F.A.C.. The permittee transferring the permit shall remain liable for corrective actions
that may be required as a result of any violations prior to the sale, conveyance or other transfer of the
system.
17. Upon reasonable notice to the pennittee, District authorized staff with proper identification shall have
permission to enter, inspect, sample and test the system to insure conformity with the plans and
specifications approved by the permit.
18. If historical or archaeological artifacts are discovered at any time on the project site, the permittee shah
immediately notify the appropriate District service center.
19. The permittee shall immediately notify the District in writing of any previously submitted information that is
later discovered to be Inaccurate.
Application No.: 090617-6
Page 5 of e
SPECIAL CONDITIONS
1. The construction phase of this permit shall expire on August 23, 2015,
2. Operation of the surface water management system shall be the responsibility of the permittee.
3. Discharge Facilities:
1-2' W X 2' L drop Inlet with crest at elev. 5.65' NGVD 29.
1-2' dia. drop inlet with crest at elev. 3' NGVD 29.
Receiving body: Groundwater Table
Control elev: 2.5 feet NGVD 29.12.5 FEET NGVD 29 DRY SEASON.
4. The permittee shall be responsible for the correction of any erosion, shoaling or water quality problems
that result from the construction or operation of the surface water management system.
5. Measures shall be taken during construction to insure that sedimentation and/or turbidity violations do not
occur in the receiving water.
6. The District reserves the right to require that additional water quality treatment methods be incorporated
Into the drainage system If such measures are shown to be necessary.
7. Facilities other than those stated herein shall not be constructed without an approved modification of this
permit.
B. A stable, permanent and accessible elevation reference shall be established on or within one hundred
- (100) feet of all permitted discharge structures no later than the submission of the certification report. The
location of the elevation reference must be noted on or with the certification report.
9. The permittee shall provide routine maintenance of all of the components of the surface water
management system in order to remove all trapped sediments/debris. All materials shall be properly
disposed of as required by law. Failure to properly maintain the system may result in adverse flooding
conditions.
10. If prehistoric or historic artifacts, such as pottery or ceramics, stone tools or metal implements, dugout
canoes, or any other physical remains that could be associated with Native American cultures, or early
colonial or American settlement are encountered at any time within the project site area, the permitted
project should cease all activities involving subsurface disturbance in the immediate vicinity of such
discoveries. The permittee, or other designee, should contact the Florida Department of State, Division of
Historical Resources, Review and Compliance Section at (850) 245-6333 or (800) 847-7278, as well as
the appropriate permitting agency office. Project activities should not resume without verbal and/or written
authorization from the Division of Historical Resources. In the event that unmarked human remains are
encountered during permitted activities, all work shall stop immediately and the proper authorities notified
in accordance with Section 872.05, Florida Statutes.
11. The permittee acknowledges that, pursuant to Rule 40E-4.101(2), F.A.C., a notice of Environmental
Resource or Surface Water Management Permit may be recorded in the county public records. Pursuant
to the specific language of the rule, this notice shall not be considered an encumbrance upon the
property.
12. Minimum building floor elevation: 12.0 Feet NGVD
13. Silt fence shall be utilized during constructionand shall be installed and properly 'trenched" etc, in
accordance with Exhibit 2. All areas shall be stabilized and vegetated immediately after construction to
prevent erosion into the wetlands and other surface waters.
14. The permittee shall install a chain link fence around the entire perimeter of the project site, which will
Application No.: ONS17.6
Page 6 of 6
SPECIAL CONDITIONS
eliminate or minimize secondary adverse impacts to the mangrove wetlands located along the southwest
side of the project site, as shown in Exhibit 2. The fence shall be maintained in perpetuity.
H
SURFACE WATER MANAGEMENT CHAPTER 40E-4 (4/94)
40E-4.321 Duration of Permits
(1) Unless revoked or otherwise modified pursuant to Rules 40E-4.331 and 40E-4.441,
FA.C., the duration of a surface water management permit issued under this chapter is as follows:
(a) Two years from the date of issuance for Conceptual Approval, unless within that period
an application for a construction and operation permit is filed for any portion of the project. If an "
application for a construction and operation permit is filed, then the Conceptual Approval remains valid
(0 until final action Is taken on the application. If the application is granted, then the Conceptual Approval -is
valid for an additional two years from the date of issuance of the construction and operation permit.
Conceptual Approvals which have no applications for construction and operation filed for a period of two
' years will expire automatically.
(b) Five years from the date of issuance for a construction permit.
(c) Perpetual, for an operation permit.
z, (2) The Goveming Board shall issue permit extensions provided That a permittee files a
written request with the District showing good cause. For the purpose of this rule, good cause shall mean
a set of extenuating circumstances outside of the control of the permittee. Requests for extensions,
which shall include documentation of the extenuating circumstances and hoar they have delayed this
project, will not be accepted more than 180 days prior to the expiration date.
(3) For a Conceptual Approval filed concurrently with a development of regional impact (DRI)
;l application for development approval (ADA) and a focal government comprehensive amendment, the
duration of the Conceptual Approval shall be two years from whichever one of the following occurs at the
latest date:
(a) the effective date of the local government's comprehensive plan amendment,
(b) -the effective date of the local government development order, or
(c) the date on which the distr)ct issues the Conceptual Approval, or
(d) the latest date of the resolution of any Chapter 120 or other legal appeals.
(4) Substantial modifications to Conceptual Approvals will extend the duration of -the
Conceptual Approval for two years from the date of Wuance of the modification. For the purposes of this
section, the term "substantial modification" shall mean a mo4ification which ib rgasdnably expected to ,
lead to substantially different water resource or environmental impacts which require a detailed review.
• (5) Modifications to construction permits issued pursuant to a formal permit application
extend the duration of the permit for three years from the date of issuance of the modification:
Construction permit modifications do not extend the duration of a Conceptual Approval.
(6) Permit modifications issued pursuant to subsection 40E.4.331(2)(b), F.A.C. (letter
modifications) do not extend the duration of a permit.
Specific aulhorlty 373.o44.373.113 F.S. Law implemented 373.413, 373.416(1) F.S. History —New 9.3.81, Amended 1-31.82,12-1-
82. Formerly I6K-4.07(4). Amended 7.1-86, 4/20/94.
NOTICE OF RIGHTS
As required by Sections 120.569(1), and 120.60(3), Fla. Stat., following is notice of the opportunities which
may be available for administrative hearing or judicial review when the substantial interests of a party are
determined by an agency. Please note that this Notice of lights is not intended to provide legal advice.
Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to
consult an attorney regarding your legal rights.
RIGHT TO REQUEST ADMINISTRATIVE HEARING
A person whose substantial interests are or may be affected by the South Florida Water Management
District's (SFWMD or District) action has the right to request an administrative hearing on that action
pursuant to Sections 120.569 and 120.57, Fla. Stat. Persons seeking a hearing on a District decision
which does or may determine their substantial interests shall file a petition for hearing with the District Clerk
within 21 days of receipt of written notice of the decision, unless one of the following shorter time periods
apply: 1) within 14 days of the notice of consolidated intent to grant or deny concurrently reviewed
applications for environmental resource permits and use of sovereign submerged lands pursuant to Section
373.427, Fla. Stat.; or 2) within 14 days of service of an Administrative Order pursuant to Subsection
373.119(1), Fla. Stat. 'Receipt of written notice of agency decision` means receipt of either written notice
through mail, or electronic mail, or posting that the District has or intends to take final agency action, or
publication of notice that the District has or intends to take final agency action. Any person who receives
written notice of a SFWMD decision and fails to file a written request for hearing within the timeframe
described above waives the right to request a hearing on that decision.
Filing Instructions
The Petition must be filed with the Office of the District Clerk of the SFWMD. Filings with the District Clerk
may be made by mail, hand -delivery or facsimile. Filings by e-mail will not be accepted. Any person
wishing to receive a clerked copy with the date and time stamped must provide an additional copy. A
petition for administrative hearing is deemed filed upon receipt during normal business hours by the District
Clerk at SFWMD headquarters in West Palm Beach, Florida. Any document received by the office of the
SFWMD Clerk after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day. Additional
filing instructions are as follows:
Filings by mail must be addressed to the Office of the SFWMD Clerk, P.O. Box 24680, West Palm
Beach, Florida 33416.
Filings by hand -delivery must be delivered to the Office of the SFWMD Clerk. Delivery of a
petition to the SFWMD's security desk does not constitute tiling. To ensure proper filing, it
will be necessary to request the SFWMD's security officer to contact the Clerk's office. An
employee of the SFWMD's Clerk's office will receive and file the petition.
Filings by facsimile must be transmitted to the SFWMD Clerk's Office at (561) 682-6010, Pursuant
to Subsections 28-106.104(7), (8) and (9), Fla. Admin. Code, a party who files a document by
facsimile represents that the original physically signed document will be retained by that party for
the duration of that proceeding and of any subsequent appeal or subsequent proceeding in that
cause. Any party who elects to file any document by facsimile shall be responsible for any delay,
disruption, or interruption of the electronic signals and accepts the full risk that the document may
not be property filed with the derk as a result. The filing date for a document fled by facsimile shall
be the date the SFWMD Clerk receives the complete document.
Rev. 07/01 0M
Initiation of an Administrative Hearing
Pursuant to Rules 28-106.201 and 28-106.301, Fla. Admin. Code, initiation of an administrative hearing
shall be made by written petition to the SFWMD in legible form and on 8 and 112 by 11 inch white paper.
All petitions shall contain:
1. Identification of the action being contested, including the permit number, application number,
District file number or any other SFWMD identification number, K known.
2. The name, address and telephone number of the petitioner and petitioner's representative, if any.
3. An explanation of how the petitioner's substantial interests will be affected by the agency
-' determination.
4. A statement of when and how the petitioner received notice of the SFWMD's decision.
5. A statement of all disputed issues of material fact. If there are none, the petition must so indicate.
=' 6. A concise statement of the ultimate facts alleged, including the specific facts the petitioner
contends warrant reversal or modification of the SFWMD's proposed action.
7. A statement of the specific rules or statutes the petitioner contends require reversal or modification
of the SFWMD's proposed action.
8. If disputed issues of material fact exist, the statement must also include an explanation of how the
�? alleged facts relate to the specific rules or statutes.
9. A statement of the relief sought by the petitioner, stating precisely the action the petitioner wishes
the SFWMD to take with respect to the SFWMD's proposed action.
A person may file a request for an extension of time for filing a petition. The SFWMD may, for good cause,
grant the request. Requests for extension of time must be filed with the SFWMD prior to the deadline for
filing a petition for hearing. Such requests for extension shall contain a certificate that the moving party has
consulted with all other parties concerning the extension and that the SFWMD and any other parties agree
to or oppose the extension. A timely request for extension of time shall toll the running of the time period for
filing a petition until the request is acted upon.
If the District takes action with substantially different impacts on water resources from the notice of intended
agency decision, the persons who may be substantially affected shall have an additional point of entry
pursuant to Rule 28-106.111, Fla. Admin. Code, unless otherwise provided by law.
Mediation
The procedures for pursuing mediation are set forth in Section 120.573, Fla. Stat., and Rules 28-106.111
and 28-106.401-.405, Fla. Admin. Code. The SFWMD is not proposing mediation for this agency action
under Section 120.573, Fla. Stat., at this time.
RIGHT TO SEEK JUDICIAL REVIEW
Pursuant to Sections 120.60(3) and 120.68, Fla. Stat., a party who is adversely affected by final SFWMD action
may seek judicial review of the SFWMD's final decision by filing a notice of appeal pursuant to Florida Rule of
Appellate Procedure 9.110 in the Fourth District Court of Appeal or in the appellate district where a party
resides and filing a second copy of the notice with the SFWMD Clerk within 30 days of rendering of the final
SFWMD action.
Rev. 07101M 2
efp_staff_report. rdf
.J
Last Date For Agency Action: October 4, 2010
GENERAL ENVIRONMENTAL RESOURCE PERMIT STAFF REPORT
Project Name: City Of Key West Public Transportation Facility
1.
W Permit No.: 44-00076-S
Application No.: 090617-6
t.:
Application Type: Environmental Resource (General Permit Modification)
Location: Monroe County, S27/T67S/R25E
Permittee : City Of Key West
Operating Entity : City Of Key West
Project Area: 3.86 acres
Project Land Use: Government
Drainage Basin: GULF OF MEXICO
Receiving Body: Groundwater Table Class: N/A
Special Drainage District: NA
Conservation Easement To District : No
Sovereign Submerged Lands: No
PROJECT PURPOSE:
This application is a request for modification of Permit No. 44-00076-S for the construction and operation
of a surface water management system to serve a 3.86 acre municipal development known as City of Key
West Public Transportation Facility.
App-no 09D617-6 Page 1 of 6
erp_staff_report.rdf
PROJECT EVALUATION:
The site is located on the north side of East Junior College Road and on the south side of the Stock
Island landfill, on Stock Island in the City of Key West, Monroe County, as shown on Exhibit 1.
The 3.86 acre project site currently contains a City of Key West resource recovery plant and ash transfer
station, for which the surface water management system was previously permitted by the District under
Permit No. 44-00076-S, Application No. 921027-8.
The 3.86 acre project site is part of a larger overall parcel which is owned by the City of Key West, which
contains a portion of the closed out Stock Island landfill, City of Key West Utilities, the Key West Golf
Club, salt marsh and mangrove wetlands, and submerged lands.
No wetlands or other surface waters are located within the 3.86 acre project site, and no adjacent
wetlands or other surface waters located outside of the project site will be adversely affected by the
`= proposed project.
PRCFAi:)M Phdi t:
The project includes constructing a surface water management system that will serve a new public
transportation facility for the City of Key West Department of Transportation, as shown on Exhibit 2. The
facility will include a 2-story administrative office building, parking, service bays for buses, and a bus
washing station.
The proposed surface water management system will consist of site grading and stormwater inlets that
will direct all runoff to a series of interconnected dry retention areas for water quality treatment. After
treatment, the runoff will be directed to a drainage well for final disposal.
No wetlands or other surface waters located adjacent to the project site on the southwest side of the site
will be adversely affected by the proposed project. Specifically, the permittee will install and maintain a
chain link fence around the entire perimeter of the project site, which will eliminate or minimize secondary
adverse impacts to the mangrove wetlands located along the southwest side of the project site, as shown
in Exhibit 2 and in accordance with the special conditions of this permit.
Construction:
Project:
Dry Retention Areas
Impervious
Pervious
This Phase Total Project
.45 .45 acres
2.32 2.32 acres
1,09 1.09 acres
Total: 3.86 3.86
WA
Discharge Rate :
App.no. 090617-6 Page 2 of 6
erp_staff_report. rdf
The surface water management system has been designed to retain the volume of runoff from the 25
year/3 day storm event onsite. Final disposal of the runoff is to a drainage well.
Control Elevation :
Basin Area Ctrl Elev WSWT Ctrl Elev Method Of
KW Transport Fac.
(Acres)
3.86
( ft, NGVD 29)
2.512.5
(ft, NGVD 29) Determination
2.50 Previously Permitted
Receiving Body:
Basin
Str.#
Receiving Body
�u
Kw Transport Fac.
Well Box (G'
Groundwater Table
-' Major Structures:
Note: The units for all the elevation values of structures are ( ft, NGVD 29)
(T
Inlets:
Basin
Str#
Count
Type Width Length Dia. Crest Elev.
KW Transport Fac.
Well Box
1
Drainage Well 2' 3
(GW-1)
KW Transport Fac.
Well Box
1
Drop Inlet 2' 2' 5.65
(GW-1)
WATER QUALITY:
No adverse water quality impacts are anticipated as a result of the proposed project. The surface water
management system has been designed to treat a volume of runoff equal to 2.5 inches times the percent
impervious area. The treatment is provided within interconnected dry retention areas.
To ensure that proposed construction activities do not degrade adjacent wetlands and surface waters,
the permittee will install and maintain temporary silt fences around the limits of construction in
accordance with Exhibit 2 and as stipulated in the special conditions of this permit. The temporary
erosion control barriers will be installed prior to and will be removed upon completion of construction
activities.
Basin
KW Transport Fac. Treatment
Wildlife Issues:
Treatment Method
Dry Retention
Vol Req.d Vol
(ac-ft) Prov'd
45 acres .24 .24
The 3.86 acre project site does not contain preferred habitat for wetland -dependent endangered or
threatened wildlife species or species of special concern. No wetland -dependent endangered/threatened
species or species of special concern were observed on -site and submitted information indicates that
potential use of the site by such species is minimal.
This permit does not relieve the permittee from complying with all applicable rules and any other
agencies' requirements if, in the future, endangered/threatened species or species of special concern are
App.no 090617-6 Page 3 of 6
erp_staff_report. rdf
discovered on the project site,
It is suggested that the permittee retain the services of a Professional Engineer registered in the State of
r, Florida for periodic observation of construction of the surface water management (SWM) system. This will
facilitate the completion of construction completion certification Form #0881 which is required pursuant to
Section 10 of the Basis of Review for Environmental Resource Permit Applications within the South Florida
Water Management District, and Rule 40E-4.361(2), Florida Administrative Code (F.A.C.).
Pursuant to Chapter 40E-4 F.A.C., this permit may not be converted from the construction phase to the
operation phase until certification of the SWM system is submitted to and accepted by this District. Rule
40E-4.321(7) F.A.C. states that failure to complete construction of the SWM system and obtain operation
phase approval from the District within the permit duration shall require a new permit authorization unless
a permit extension is granted.
For SWM systems permitted with an operating entity who is different from the permittee, it should be noted
that until the permit is transferred to the operating entity pursuant to Rule 40E-1.6107, F.A.C., the
permittee is liable for compliance with the terms of this permit.
The permittee is advised that the efficiency of a SWM system will normally decrease over time unless the
system is periodically maintained. A significant reduction in Flow capacity can usually be attributed to
partial blockages of the conveyance system. Once flow capacity is compromised, flooding of the project
may result. Maintenance of the SWM system is required to protect the public health, safety and the natural
resources of the state. Therefore, the permittee must have periodic inspections of the SWM system
performed to ensure performance for flood protection and water quality purposes. If deficiencies are
found, it is the responsibility of the permittee to correct these deficiencies in a timely manner.
3iQi�ltiNl�ffBMER�Ep ANDS:. . , : .
The proposed work is not located within and is not anticipated to adversely affect sovereign submerged
lands.
App.no.: 090617-6 Page 4 of 6
e 19 1
erg staff repOft.lCtf
.b
RELATED CONCERNS:
Water Use Permit Status:
4a
p The permittee has indicated that dewatering Is not required for construction of this project. The permittee
has also indicated that landscape Irrigation activities are not proposed as part of the project.
f" This permit does not release the permittee from obtaining all necessary Water Use aulhorizatison(s) prior
to the commencement of activities which will require such authorization, including construction dewatering
,. and irrigation, unless the work qualities for a No -Notice ShortTerm Dewatering permit pursuant to
` Chapter 40E-20.302(3) or is exempt pursuant to Section 40E-2.051, FAC.
CERP:
The proposed project is not located within or adjacent to a Comprehensive Everglades Restoration
L. Project component.
Potable Water Supplier:
u
Florida Keys Aqueduct Authority
Waste Water System/3upplier.
n
Key West Resort Utilities
Right -Of -Way Permit Status:
A District Right -of -Way Permit is not required for this project.
DRI Status:
This project is not a DRI.
HistoricallArcheological Resources:
The District has received correspondence from the Florida Department of State, Division of Historical
Resources indicating that the agency has no objections to the Issuance of this permit.
This permit does not release the permittee from compliance with any other agencies' requirements in the
event that historical and/or archaeological resources are found on the site.
DCAICZM Consistency Review:
The Issuance of this permit constitutes a finding of consistency with the Florida Coastal Management
Program.
Third Party Interest:
No third party has contacted the District with concerns about this application.
Enforcement:
There has been no enforcement activity associated with this application.
STAFF REVIEW
App.no.: 090617-6 Peps 5 of 6
staff_report.rdf
DIVISION APPROVAL:
TURAL RESOURCE MENT:
.r
Barbara J. Conmy
SURFAC ATER MANAGEMENT:
Carlos A. de Rojas, P.E.
;.J
App.m.: ON617-6 Pape 6 of 6
DATE: ADZ(10
DATE: a // 9
�JiL�1t`
0
Gulf of Mexico
Stock Isl d Landfill
(1Gfl •
PROJECT SITE ••-•---------------=
Ll AKPI Cam" •
Stock Island
• • @10
vumm
Key West
Y-
r
AODL'P PROJECT SITE
Atlantic Ocean
FDOT, Re) 04/2008
MONROE COUNTY, FLORIDA N
Legend A
Application Map Date 8/9/2010
Application Number, 090617-6
Permit Number: 44-00076-S
Project Name: CITY OF KEY WEST PUBLIC
TRANSPORTATION FACILITY
0 2456 A9 0 Exhibit : 1, Page 1 of 1
Feel
a A ,
Exhibit E
Survey
Page 22 of 22
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RESOLUTION NO. 14-089
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF KEY WEST, FLORIDA, APPROVING THE ATTACHED
AMENDED AND RESTATED LEASE BETWEEN THE CITY AND
MONROE COUNTY FOR THE ANIMAL CONTROL PREMISES;
APPROVING 'THE ATTACHED JOINT PARTICIPATION
AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, in Resolution No. 85-224, the City Commission
approved a 99-year lease with Monroe County for Animal Control
premises on Stock Island; and
WHEREAS, the buildings at that location have reached the end of
their useful life, and the City Commission finds that it would be
beneficial to allow the construction of a new animal control
building and shelter at an elevated site; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF KEY WEST, FLORIDA AS FOLLOWS:
Section l: That the attached Amended and Restated Lease
Agreement between the City and Monroe County is hereby approved.
Section 2: That the attached Joint Participation Agreement
between the City and Monroe County is hereby approved.
Section 3: That this Resolution shall go into effect
immediately upon its passage and adoption and authentication by the
signature of the Presiding Officer and the Clerk of the Commission.
Page 1 of 2
s a .
Passed and adopted by the City Commission at a meeting held
this 18th day of March , 2014.
Authenticated by the Presiding Officer and Clerk of the
Commission on 9Qt-h day of March
2014.
Filed with the Clerk on March 20
2014.
Mayor Craig Cates
Yes
Vice Mayor Mark Rossi
Yes
Commissioner Teri Johnston
Yes
Commissioner Clayton Lopez
Yes
Commissioner Billy Wardlow
Yes
Commissioner Jimmy Weekley
Yes
Commissioner Tony Yaniz
Yes
I'
r, CRAIG S,
ie
MAYOR
A
7 L"
CHERYL SMITH, OITY CLERK
Page 2 of 2
EXECUTIVE SUMMARY
TO: City Commission
CC: Bogdan Vitas
FR: David Fernandez
Marilyn Wilbarger, RPA, CCIM
DT: March 11, 2014
RE: Amended and Restated Lease Agreement and Joint Participation Agreement
with Monroe County for the Animal Control Premises
ACTION STATEMENT:
This is a request to approve an amended and restated lease agreement, and joint
participation agreement with Monroe County providing for the re -location to another
parcel of land owned by the City and utilized by the County for animal control services,
and construction of a new building thereon.
BACKGROUND:
LEASE AGREEMENT
The City previously entered into a 99 year lease agreement with the County in December
of 1985 for the use of a parcel of city owned land for the purposes of providing animal
control services. The original premises have reached the end of their useful life and the
County together with its animal control manager are raising the funds necessary to build
new facilities. The City has another vacant parcel of land adjoining the City
transportation site on College Road that can accommodate a new animal control building
and shelter. The re -location will provide the opportunity for the construction and
completion of a new facility without an interruption of services, at an elevated site, with
the ability to exercise the animals on the adjoining property that will be mutually
beneficial. Therefore, the lease must be amended to provide for the re -location, and the
original terms that remain unchanged are restated in an updated form of agreement. A
summary of the basic terms are as follows:
PREMISES: The parcel will be re -located to a site on College Road as shown
on exhibit "B" of the lease containing approximately 1.02 acres.
TERM: The term remains unchanged and began retroactively on the 12t'
day of November 1985 and will expire in the 1 la' day of
November 2084.
USE: The County shall be entitled to use the premises for the
construction and continuous operation of the animal control
program, animal shelter and related and associated uses. The
. . .
County may enter into an agreement with a third party for the
operation of the animal control facility and shelter.
RENT: The rent for the re -located premises will be $10.00 per year
pursuant to the original lease agreement.
EXPENSES: The Tenant will pay for operating costs including all utilities,
repairs and maintenance, replacements and to re -construct the
property as necessary to keep the premises in good repair and
condition.
INSURANCE AND
INDEMNIFICATION: The most current language and requirements have been added to
the lease with language that will provide for periodic updating as
may be necessary throughout the term of the lase.
IMPROVEMENTS: The County, under separate agreement with its animal control
contractor will develop and construct an animal control facility and
shelter on the re -located premises at their sole cost and expense.
The timeline and specific requirements for the development and
construction of the improvements are detailed in Section 9 of the
lease. The County will be solely responsible for the demolition,
removal and remediation of the existing improvements on the
original parcel.
FINANCIAL: The County accepts the original and the re -located premises in an
as is condition and all improvements will be at the sole cost and
expense of the County.
Further, before a building permit will be issued as set forth above,
the County shall provide a performance guarantee. The County
shall warrant that it has the financial capability of completing the
project/ Facility as planned without the need to request further
funding.
JOINT PARTICIPATION AGREEMENT
The City and the County entered into a joint participation agreement on May 16, 1978
wherein the County agreed to maintain an animal control program and to enforce animal
control ordinances in exchange for the lease of City owned land. The proposed agreement
has been updated to be consistent with the terms and conditions of the amended and
restated lease agreement as outlined above.
Further, the City will agree to cooperate with the County in making such changes to its
ordinances that are reasonable and necessary as may be requested by the County to assure
reasonable control by the County within the City.
CONCLUSION•
•
Staff recognizesthe need and importance of the construction of new facilities and
supports the re -location of the facilities pursuant to the terms and conditions proposed in
the amended and restated lease agreement and joint participation agreement.