Item T12
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: Nov. 20, 2002 Division: BOCC
Bulk Item: No X Department: District S
AGENDA ITEM WORDING: Approval of providing a $1001000 loan to the Key Largo
Wastewater District Board to complete and expand the Key Largo Trailer
Village and Key Largo Park wastewater projects.
ITEM BACKGROUND: On July 181 2002 the conceptual approval of a $1001000
loan to the Key Largo Wastewater District Board was approved by the BOCC.
This Board was seated and had its first business meeting on Nov. 191 2002.
The Board approved a resolution to request $1001000 from the BOCC to pay for
initial costs of administration1 planning and development of wastewater and
reclaimed water projects. This $1001000 will be used for the completion of
Key Largo Trailer Village and Key Largo Park wastewater projects. Repayment
of this loan will be paid back to Monroe County from user fees collected
from residents connected to the Key Largo Trailer Village and Key Largo Park
wastewater projects.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT AGREEMENT CHANGES:
STAFF RECOMMENDATION:
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
REVENUE PRODUCING: Yes
No
AMOUNT PER MONTH
YEAR
APPROVED BY: County Attorney
OMB/Purchasing
Risk Mgt.
DIVISION DIRECTOR APPROVAL:
7~rl&~!~
(S' nature)
MURRAY F. NELSON. C.ommissionp.r
DOCUMENTATION: Included x
To follow:
Not required:
DISPOSITION:
Agenda Item #
'T/~
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM Sl~MARY
Meeting Date:
,TUT,Y 18, ?OO?
Division: BOC.C
Bulk Item:
No
x
Department: DjRtri~t Fivp.
AGENDA ITEM WORDING: Conceptual approval of providing a $1001000 loan
to the Key Largo Independent Elected Sewer Board to complete and expand the
Key Largo Trailer Village wastewater project in the 2003 budget cycle.
ITEM BACKGROUND: On Nov. 7, 2002, five Sewer Board members will be
elected to the Key Largo Independent Sewer Board. At this time the Sewer
Board will enter into an interlocal agreement with the FKAA and the BOCC to
complete and expand wastewater projects in the Tavernier/Key Largo area.
The $100,000 will be used in a manner approved by state statute and approved
by the Monroe County Clerk.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATION:
TOTAL COST: $100,000
BUDGETED: Yes
No
COST TO COUNTY: $1.00,000
REVENUE PRODUCING: Yes
No
AMOUNT PER MONTH
YEAR
APPROVED BY: County Attorney OMB/Purchasing Risk Mgt.
DIVISION DIRECTOR APPROVAL: 6jl;JzC-c./t/'7.~,:).-----1 ~. ~~.:
M1~ F. NEI,SON. Commi Rsi onp.y
DOCUMENTATION: Included:
x
To Follow:
Not Required:
DISPOSITION:
AGENDA ITEM # / ~
.'
MEMORANDUM
DATE:
June 18, ,2002
TO:
Jim Hendrick BOee members
County Attorney
Rob Wolfe ~ -1 .' 7
Chief Assistant Coun1y Attorney 01 W
FROM:
RE:
Commissioner Nelson's item regal"dingtransfer of funds ($100,000)
Key Largo Wastewater Treatment Distr';ct
hMhhhhhhhh~hhhhh~
I believe the BOCC may, pursuant to Sec. 163.01, FS, enter into an inter/oeal agreement
with the District for part of the payment of the District's costs in planning and
construction of wastewater treatmentfaci/ities, providing the Board determines that such
a payment serves a County purpose. Alternatively the County could lend the District the
funds, see AGO 2000-55. I .
There are two ccweats to the above:
1. The funds could not be paid out of the County general fund. That fund contains
revenue raised through a County.wide (including the cities) ad valorem levy. The reason is
that the District is serving a specific municipal purpose in Key Largo without a benefit to,
say, Key West. See Town of Palm Beqch v. PCllm Beach Courrty, 460 SO.2d 879 (Fla. 1984).
Infrastructure sales tax funds may be available, although I assume Mr. Roberts has more
insight on this issue than I do.
2. The County funds should also not be used for general administrative purposes of
the District (as opposed to the plCUlning and cOf1.Struction). The reason for this is that the
District is an independent special district, i.e., it is not a part of County government.
Under Art 7, Sec. 9, Fla. Cons't. (1968), the BOCC may levy taxes (including the
~
. ,
n~_ _-
-~" ,: : t t.~~. . ~11 ,'.
---.. -
Page Two
Jim Hendrick
6/18/2
infrastructure sales tax) for its "respective purposes." While the Board may determine
that the planning and the construction of Key Largo wastewater treatment. facilities
constitutes a County purpose and enter into an agreement with the District to carry out
that purpose1 it is questionable that general District administrative expenses constitute a
respective purpose of the County anymore than paying the expenses of the Key West City
Manager or the City Attorney. The result would be different if the District were
dependent, i.e., the BOCe was also the governing body. In that situation, the District
would be just Ol1other County financing mechanism that could have its administrative
expenses at least partially funded out of non-District funds. See state v. Sarasota
COUtlty, 372 So.2d 1115 (Fla. 1979).
I have consulted with Mr. Kolhage regarding the foregoing and he concurs.
I would finatly point out a certain practical problem with entering into an interlocal
agreement with the District, to-wit: nobody is presently home at the District, the
electiohS for the District board not yet having taken place. At the moment, who can agree
to an interlocal agreement on the District's behalf?
RNW/jeh
cc: Danny Kolhage
...
.'.: .". -I,", ,r;J.': l ,-,"> '~,,,.,l} ;-'~~'{~:C:~I;~...{~,JI~'lf~~._t-.":<..,~,;. ',...11 -;-.':'
. ~,:':"
.. .,.........,
"'. ',::,:,:..:.,,-,;,
---- -
ATIORNEYS AT LAW
Law Offices
Hershoff, Lupino P,1 Mulick, L.L.P.
90130 Ow HIGHWAY
TAVERNIER, FLORIDA 33070
(305) 852-8440 . (305) 852-8848 FAX
E-MAIL: tropicalaw.com
LAND USE COORDINATOR
PETER D. BACHELER
JAY A. HERSHOFF
JAMES S. LUPINO
NICHOLAS W. MULICK
KURT A. V ON GONTEN
JESSICA ROTIlENBERG
EDGAR BELAVAL, JR.
MICHELLE D. YANCHULA
OF COUNSEL
J. ALLISON DEFooR, II
MAuRICE JAy KUTNER
July 1, 2002
Commissioner Murray Nelson
Damar.on Building, #2
99198 Overseas Highway
Key Largo, FL 33037
Re: County funding of Key Largo Wastewater Treatment District
Dear Commissioner Nelson:
Jim Lupino asked me to review the memo from Rob Wolfe and research the issues
addressed in the memo. This letter is to apprise you of my findings regarding the use of
county funds for special district wastewater costs.
I agree the BOCC may, pursuant to Sec. 163.01, F.S. enter into an interlocal
agreement with the District for part of the payment of the District's costs in planning and
constructing of wastewater treatment. In addition, the BOCC and the District could, through
this interlocal agreement, issue bonds to fund the wastewater project pursuant to Sec.
163.01 (7)(g)(1).
The AG Opinion 2000-55, dearly states that the loan may be made, after the county
makes the appropriate legislative finding that the expenditure serves a county purpose. The
AG Opinion does not purport to state that this loan option is automatic and within the
County's powers under F.S. 125.01. However, F.S. 125.01 (1) (k) 1. does authorize the
County to provide waste and sewage collection. This legislative authorization is evidence
of the "public purpose" according to the AG Opinion.
After review of Town of Palm Beach v Palm Beach County, 460 So.2d 879 (Fla.
1984), I do not believe this case unequivocally states that County funds cannot be used to
help fund a project such as the Key Largo Wastewater project. In fact, in this case the issue
was county taxing of municipalities to provide services to unincorporated areas
resulting in a double taxation to municipalities. However, this case does illustrate that the
use of County funds, derived from taxes, for such a purpose will be weighed against whether
Commissioner Nelson
July 1, 2002
Page 2
the project provides a "real and substantial benefit". The challengers of any such action
would have the burden to demonstrate the absence of such a benefit.
Another case cited by Mr. Wolfe is State of Florida v Sarasota County, 372 So.2d
1115 (Fla. 1979). In this case the issue was a franchise tax bond validation, with said bonds
being secured by a pledge of fees from a County granted franchise. Further, there was an
intent to fund any deficiency from ad valorem taxes. These bonds were to be used to fund
and repay monies borrowed for a wastewater project. The action was challenged with the
argument being the bonds were improper because general revenues of the county were used
to finance the bonds which were for exclusive use of one particular special district.
Additionally, there was a contention that the financing of these bonds served no valid
county purpose. The Court rejected these arguments and found the bond validation proper.
In its opinion, the Court stated that the county had proceeded properly under Chapter 75
(bond validation) and acted within its powers under Chapter 125. The Court found that use
of county funds to help fund projects within a special district does not per se lack a county
purpose even if it benefits only a limited geographic area. The validation of the bonds was
affirmed by the Court but the Court did not specifically address the issue of using ad
valorem monies to fund any deficiency.
In conclusion, the loan option may be a feasible way to initiate the wastewater
project. In furtherance of the goal at hand, I believe that county generated funds may be
used to assist special districts, through bonds, with the funding of wastewater projects as
long as there is a finding that the project serves a valid county purpose and the proper
statutory requirements are met.
However, an interlocal agreement between the district and the county in which bonds
are issued for the specific purpose of funding this project could arguably raise a substantial
portion if not all the required funds for this project. Also, being contractual in nature and
statutorily supported, this option would most easily survive constitutional scrutiny.
Should you have questions with regard to the foregoing, please feel free to call.
Sincerely yours,
M~r 151L---
Michelle D. Yanchula, Esq.
H:\YANCHULA \Research\neIsonltr.wpd
O~~Y~O~~~E'
i (305) 294-4641
Mayor Charles 'Sonny' McCoy
530 Whitehead Street
Key West, Florida 33040
305-292-3430
FAX: 305-292-3577
"'-Iu",
:/~~~~i@~2~)(;1;
/0 A\
{~'~ --,r_____ ~~D .()
\. -=::::= = _.:!
'. ~ ~....... -, ...... .
... . '~.;: ::::Z:..-::- .:
A\ _-.::::::::;::::::::::::::::::: ,/
.~ -- -- .~
. .
. .
,.,........ . ~.....~
........ _.. . _,..,4" ~
BOARD OF COUNTY COMMISSIONERS
MAYOR Charles "Sonny" McCoy, District 3
Mayor Pro-Tern Dixie Spehar, District I
Commissioner Murray Nelson, District 5
Commissioner George Neugent, District 2
Commi i ner Humberto "Bert" Jimenez, District 4
D fSl.~. .r,;::I'.."'. n., \'\.:7 '. ~. .
LE''J \,1..."; ! ". .! "'.' .
r~~~ .'
J JUN272002 ~
June 25, 2002
1.;,
James S. Lupino, Esq.
Hershoff, Lupino & Mulick, L.L.P.
90130 Old Highway
Tavernier, FL 33070
Dear Mr. Lupino:
Thank you for your letter of June 24, 2002, as Chairman of the Wastewater Committee, expressing the
position of the Key Largo Chamber of Commerce regarding funding of the Sewer Board by the Board of
County Commissioners. As you indicated, this matter was a discussion item at the most recent meeting of the
Board held June 19,2002. The matter is presently being researched by staff for further consideration and
subsequent action as deemed appropriate by the Board.
We appreciate the spirit of cooperation and support evidenced by the Chamber in its forthrightness in
stating its position on this issue. The effectiveness of our combined efforts in this area of critical concern
throughout Monroe County is dependent on this type of relationship among all involved parties. Be assured
that we are making every effort to establish the Sewer Board in the most effective manner via the appropriate
mechanisms established for governmental bodies. We appreciate your patience and will certainly keep you
advised, as the Wastewater Committee Chairman for the Chamber, of sequent action taken by the Board on
this matter.
CMcC:kmp
cc: Board of County Commissioners /'
James Hendrix, County Attorney
James Roberts, County Administrator
THE FABULOUS FLORIDA KEYS
AlTORNEYS AT LAW
JAY A. HEksHOFF
JAMES S. LUPINO
NICHOLAS W. MUUCK
KURT A. VON GoNTEN
JESSICA RolHENBERG
EDGAR BELAVAL, JR.
MiCHELLE D. YANCHULA
Law Offices
Hershoff, Lupino "" Mulick, L.L.P.
90130 OLD HiGHWAY
TAVERNIER. FLORIDA 33070
(305) 852-8440' (305) 852-8848 FAX
E-MAiL: tropicalaw.com
LAND USE COORDINATOR
PETER D. BACHELER
OF COUNSEL
J. ALLiSON DEFooR, IT
MAURICE JAY KIJTNER.
JtUle- 24, 2002
6Jti~
RECEIVED uJ!:'ii
MAYOR McCOY
Mayor Charles "Sonny" McCoy
Monroe County
530 Whitehead Street
Key West, Florida 33040
Dear Mayor McCoy:
This letter is written on behalf ofthe Key Largo Chamber of Commerce and specifically as Chairman
of the Wastewater Committee. It is our understanding that there is pending before the Board of
County Commissioners the matter ofthe funding of the Sewer Board. Please understand that it is
the position of the Key Largo Chamber that it is in favor of and understood that there was to be
funding by the Board of County Commissioners for the Key Largo Sewer Board. We strongly
support the funding of the Sewer Board and encourage the Board of County Commissioners to
allocate said funds.
cc: Ma r Pro Tern Dixie Spehar
George Neugent
Bert Jimenez
Murry Nelson
ATTORNEYS)J LAW
JAY A. HERsHOFF
JAMES S. LuplNO
NICHOLAS W. MUUCK
KURT A. VON GONTEN
JESSICA ROTIiENBERG
EDGAR BBLAVAL, JR.
MICHELLE D. YANCHULA
-~'j--'--'-~-r::~- -;
D [g @~-QW~~!n\
Hershoff, r~pO:~S""MuIick,LL1 JJL 1 :ro2 i~
90130 Ow HIGHWAY
TAVERNIER, FLORIDA 33070
(305) 852-8440 . (305) 852-8848 FAX
E-MAn..: tropicalaw.com
ATOR
PETER D. BACHELER
OF COUNSEL
J. AwSON DEFOOR. II
MAURICE JAY KUTNER
June 28, 2002
Mayor Charles" Sonny" McCoy
Monroe County
530 Whitehead Street
Key West, Florida 33040
Re: Sewer Board - Upper Keys
Dear Mayor McCoy:
Thank you for responding to my correspondence of June 24, 2002 regarding the above referenced
matter. I am sure together we will find a way to fund the Sewer Board for the Upper Keys