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Item N5
BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: May 21, 2014 Division: _County Administrator Bulk Item: Yes X No _ Department:, County Administrator Staff Contact Person: Natileene Cassel Phone #: 292-3470 AGENDA ITEM WORDING: Approval of Agreement between North Key Largo Utility Corporation and Monroe County to provide funding for wastewater and water quality projects. ITEM BACKGROUND: NKLUC, a non-profit corporation, has provided central wastewater treatment, upgraded its treatment facilities to meet the Advanced Wastewater Treatment standards, upgraded its wastewater treatment plant and is making wastewater system improvements including facilities for the disposal of highly treated wastewater effluent for irrigation purposes. In addition, it has developed a reverse osmosis water treatment and distribution system for irrigation purposes. In order to maintain its systems which serve to offset the demand on limited water resources in Monroe County, the County has agreed to grant $2,600,000, dedicated to the 16 designated projects in the Agreement. PREVIOUS RELEVANT BOCC ACTION: Approved on September 26, 2013 as part of the 5 year Capital Improvement Plan. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST:$2,600,000 INDIRECT COST: BUDGETED: Yes X No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: $2,600,000 SOURCE OF FUNDS: 304 Fund REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty DOCUMENTATION: Included DISPOSITION: Revised 7/09 OMB/Purchasing Not Required Risk Management AGENDA ITEM # ��1`i • i i f �MM •ulu •�I CONTRACT SUMMARY Contract with: NKLUC Contract # Effective Date: 5-21-2014 Expiration Date: Contract Purpose/Description: grant of funing to upgrade, install and maintain wastewater systems and reverse osmosis system Contract Manager: (Name) (Ext.) (Department/Stop #) for BOCC meeting on Agenda Deadline: CONTRACT COSTS Total Dollar Value of Contract: $ 2.6Million Budgeted? Yes® No ❑ Account Codes: Grant: $ County Match: $ Current Year Portion: $ all 304-23000-530340-PE 1500-530340 ADDITIONAL COSTS Estimated Ongoing Costs: $ /yr For: (Not included in dollar value above) (eg. maintenance, utilities, jani Date In Division Director Risk Management O.M.B./Purc'fiasing County Attorney J` / 1 X/ Comments: OMB Form Revised 2/27/01 MCP #2 CONTRACT REVIEW Changes Date Out Needed Reviewer Yes❑ No❑ , Yes❑ No� Yes[] NoEl ��'- Yes❑ No©—AXlk AGREEMENT BETWEEN NORTH KEY LARGO UTILITY CORPORATIO AND I MONROE COUTSVY THIS AGREEMENT, made and entered into this day of May, 2014, by and between MONROE COUNTY, Florida ("COUNTY"), a political subdivision of the State of Florida whose address is 1100 Simonton Street, Key West, Florida 33040, and North Key Largo Utility Corp., ("NKLUC"), a Florida Not For Profit Corporation, whose principal place of business is 35 Ocean Reef Drive, Suite 220, Key Largo, FL 33037. COUNTY and NKLUC collectively shall be known as the parties. WHEREAS, Monroe County is an Area of Critical State Concern which contains national marine sanctuaries, state and federal parks, and a marine ecosystem that has been impacted by, among other things, untreated and secondary treatment of wastewater and water withdrawals to service the increasing potable water needs of residents and visitors; and WHEREAS, Chapter 99-395, Laws of Florida, requires that onsite sewage treatment and disposal systems be compliant with regulations requiring Advanced Wastewater Treatment by July 1, 2010, which deadline was subsequently extended to 2015; and WHEREAS, the COUNTY, certain municipalities, special districts, and NKLUC have undertaken to provide central wastewater treatment and have further undertaken to upgrade their treatment facilities to meet the Advanced Wastewater Treatment standards; and WHEREAS, various federal, state, and local funding sources have been identified for appropriation and use to fund projects throughout the Florida Keys to improve wastewater treatment and protect both the quantity and quality of available water resources; and WHEREAS, NKLUC has upgraded its wastewater treatment plant and continues to make wastewater system improvements including facilities for the disposal of highly treated wastewater effluent for irrigation purposes, and has managed and developed a reverse osmosis water treatment and distribution system for irrigation purposes, each of which offsets demand on limited water resources; and WHEREAS, the COUNTY intends to use of certain funds as a grant to NKLUC intended to address water quality issues in the Keys for projects it is -undertaking that provide a public benefit and further the public purpose of water conservation and protection; and WHEREAS, this Agreement sets forth the terms and conditions for such funding. NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties agree as follows: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follow: I. The COUNTY agrees to contribute an amount not to exceed Two Million Six Hundred Thousand Dollars and No Cents ($2,600,000.00) {"Funds"). NKLUC agrees to perform the capital improvement projects which, taken together, constitute the scope of work set forth in Exhibit "A", attached hereto and made apart hereof ("Work"). 2. The COUNTY will provide reimbursement based on the Payment and Deliverable Schedule which will be provided to the County prior to NKLUC issuing any notice to proceed for any capital improvement project in the Work. NKLUC shall provide to COUNTY copies of all designs and contracts for the Work within 15 days of completion. The COUNTY'S contribution is subject to adequate documentation to support the actual expenditure of the Funds. The parties acknowledge that the Work is comprised of a number of projects, some of which are in the preliminary planning and design phase. As such, NKLUC shall submit to the County updated, detailed project descriptions and cost estimates prior to commencement on that component of the Work for the purpose of invoicing. In all such cases the nature of the public purpose project shall remain unchanged. NKLUC shall provide to COUNTY copies of all designs and contracts for the Work within 15 days of completion. NKLUC shall use its best efforts to accomplish the Work for less than the not -to -exceed Fund amount. In no event shall the COUNTY be liable for any contribution hereunder in excess of the Funds. Each party shall be responsible for payment of its own attorney fees in the drafting, review, or interpretation of this Agreement or of any amendments to the Agreement. 3. The COUNTY'S performance and obligation to pay under this contract, is contingent upon an annual appropriation by the Board of County Commissioners (BOCC). The County's obligation to reimburse NKLUC under this Agreement shall not begin until October 1, 2014. If the consideration for this Agreement is subject to multi -year funding allocations, funding for each applicable fiscal year of this Agreement will be subject to BOCC appropriation. In the event the COUNTY does not approve funding for any subsequent fiscal year, this Agreement shall terminate upon expenditure of the current funding, notwithstanding other provisions in this Agreement to the contrary. 4. NKLUC shall submit monthly financial reports to the COUNTY providing a detailed accounting of all Work completed and expenditures incurred hereunder throughout the term of this Agreement. The NKLUC shall report and document the amount of Funds expended per month and document all expenditures to date within the not -to -exceed Funds limitation. To the extent the cost of a component of the Work is less than the estimated budget amount NKLUC shall be entitled to use such excess Funds for the remaining components of the Work. To the extent the total cost of the Work exceeds the Funds, NKLUC shall be responsible for such excess cost. 5. NKLUC shall submit monthly progress reports detailing the status of the Work to date for each task. The Work shall be open to periodic review and inspection by either Party. No Work shall be performed beyond the expiration date unless authorized by amendment of this Agreement to cover succeeding periods. 6. NKLUC will undertake and complete a competitive bidding process for the engineering design and construction for components of the Work in accordance with its standard 2 purchasing policy, unless otherwise required by law. 7. COUNTY'S responsibility shall be to pay the Funds under this Agreement, in a timely manner, subject to approval by Project Management and the Clerk of Court. NKLUC understands and agrees that this Agreement does not create any duty or liability on behalf of the County to pay any money to, or be obligated to, any third party, whether contractually, in tort, or on any other legal or equitable basis. 8. NKLUC agrees to be responsible for the fulfillment of all elements of the Work included in any third party contract to accomplish the Work and agrees to be responsible to the contractors and subcontractors for the payment of all monies due under any contract(s) and subcontract(s) to accomplish the Work. It is understood and agreed by NKLUC and COUNTY that COUNTY shall not be liable to any contractor or subcontractor for any expenses or liabilities incurred under the contract(s) or subcontracts) entered into with NKLUC. 9. NKLUC, to the extent permitted by law, assumes any and all risks of personal injury, bodily injury and property damage attributable to negligent acts of omission of NKLUC and its officers, employees, servants and agents thereof. NKLUC represents that is will secure workers' compensation and liability insurance, covering bodily injury and property damage, with such protection being applicable to NKLUC, its officers and employees acting within the scope of their employment during the performance under this Agreement as is currently in effect, coverage types and limits for which have been provided to the County. Any contract awarded by NKLUC shall include a provision whereby NKLUC's contractor or subcontractor agrees to indemnify, pay on behalf of, and hold the COUNTY harmless for all damages arising in connection with NKLUC's contract/subcontract. 10. The COUNTY and NKLUC further agree that nothing contained herein shall be construed or interpreted as (1) denying to either party any remedy or defense available to such party under the laws of the State of Florida; (2) or a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Florida Statutes. 11. The parties to this Agreement are independent entities and are not employees or agents of the other party. Nothing in this Agreement shall be interpreted to establish any relationship other than that of independent entities, between the COUNTY and NKLUC, their employees, agents, contractors, subcontractors or assigns, during or after the term of this Agreement. 12. The parties to this contract shall not assign, delegate or otherwise transfer their rights and obligations as set forth in this Agreement without the prior written approval of the other party. Such written approval shall be accomplished with the same legal formality as the approval of this Agreement. Any attempted assignment in violation of this Agreement shall be void. 13. Either party may terminate this Agreement at any time for convenience or because of failure of the other party to perform its obligations under the Agreement; upon prior written N notice to the other party. Thirty (30) days' notice shall be given for termination for convenience and five (5) days' notice for termination for cause. Such written notice shall be cause for immediate stoppage of the Work, excepting necessary work involving emergency or safety issues. In the event of termination, all funds not expended or contractually committed for expenditure by either party for authorized work performed through the notice of termination date shall be returned to the COUNTY within sixty (60) days of termination, Proof of contractual commitments shall be provided when requested so the parties may verify these commitments. If termination for cause is instituted, the parties agree to meet within ten (10) days of notice to terminate for a mediation to discuss the issues, to determine if a cure can be agreed upon, and to discuss the issues giving rise to the notice of termination. If no agreement can be reached between the parties, termination for cause shall be instituted. 14. The COUNTY and NKLUC shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida, Statutes, and made or received by the COUNTY and NKLUC in -conjunction with this Agreement; and the COUNTY shall have the right to unilaterally cancel this Agreement upon violation of this provision by NKLUC. 15. NKLUC shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. If an auditor employed by the COUNTY or Clerk determines that monies paid to NKLUC pursuant to this Agreement were spent for purposes not authorized by this Agreement, the NKLUC shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to NKLUC. 16. COUNTY and NKLUC agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred., this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. COUNTY or NKLUC agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination, including, but not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681- 1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 9 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to COUNTY and NKLUC to, or the subject matter of, this Agreement. 17. Any notice required or permitted under this agreement shall be in writing and hand delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the following: Monroe County Court Administrator and County Attorney 1100 Simonton Street P.O. Box 1026 The Gato Building Key West, FL 33040 Key West, FL 33041-1026 David Ritz, President and John R. Jenkins, Esq. North Key Largo Utility Corp. Nabors, Giblin & Nickerson, PA 24 Dockside Lane, #512 1500 Mahan Drive, Suite 200 Key Largo, FL 33037 Tallahassee, FL 32308 18. This Agreement states the entire understanding and agreement between the parties and supersedes any and all written or oral representations, statements, negotiations, or agreements previously existing between the parties with respect to the subject matter of this Agreement. 19. Both Parties recognize that any representations, statements, or negotiations made by COUNTY staff or persons representing NKLUC do not legally bind the parties in a contractual relationship unless they have been reduced to writing and signed in the same formality as this Agreement. 20. This Agreement, and any work performed hereunder, is subject to the laws of the State of Florida. Nothing in this Agreement will bind any of the parties to perform beyond their respective authority, nor does the Agreement alter the legal rights and remedies which respective parties would otherwise have, under law or at equity. 21. In providing all services/goods pursuant to this Agreement, NKLUC shall abide by all statutes, ordinances, rules and regulations pertaining to, or regulating the provisions of, such services, including those now in effect and hereinafter adopted. Any violation of said statutes, ordinances, rules and regulations shall constitute a material breach of this Agreement and shall entitle the COUNTY to terminate this Agreement, following written notice to NKLU and a thirty (30) day cure period. NKLUC, and/or its contractors shall possess proper licenses 5 and permits to perform work in accordance with the specifications throughout the term of this Agreement. 22. NKLUC shall not pledge the COUNTY'S credit or make it a guarantor of Payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. NKLUC further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this Agreement. 23. The parties acknowledge that COUNTY is exempt from payment of Florida State Sales and Use taxes. NKLUC shall not be exempted by virtue of the COUNTY'S exemption from paying sales tax to its suppliers for materials used to fulfill its obligations under this contract, nor is NKLUC authorized to use the COUNTY'S Tax Exemption Number in securing such materials. NKLUC shall be responsible for any and all taxes, or payments of withholding, related to services rendered under this Agreement. 24. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to agreements made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the COUNTY and NKLUC agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. 25. The COUNTY and NKLUC agree that, in the event of -conflicting interpretations of the teens or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. The parties agree that mediation, not arbitration, shall be the method for resolving conflict(s) of interpretation of the Agreement. 26. COUNTY and NKLUC agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and court costs. Each party agrees to pay its own court costs, investigative, and out-of- pocket expenses whether it is the prevailing party or not, through all levels of the court system. 27. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining anterm, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The COUNTY and NKLUC agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken 31 provision. 28. The parties represent that their directors, principles and employees, presently have no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required by this contract, as provided in Sect. 112.311, et. seq., Florida Statutes. COUNTY agrees that officers and employees of COUNTY recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.13, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 29. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement has been duly authorized by all necessary COUNTY and corporate action, as required by law. 30. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of COUNTY and NKLUC and their respective legal representatives, successors, and assigns. 31. County and NKLUC covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. 32. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 33. NKLUC covenants and agrees to indemnify and hold harmless Monroe County Board of County Commissioners from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by Monroe County) and any other losses, damages, and expenses which arise out of, in connection with, or by reason of services provided by NKLUC, occasioned by the negligence, errors, or other wrongful act or omission of NKLUC and its employees. NKLU further agrees to require COUNTY indemnification provisions in all contracts entered into with contractors and subcontractors for work performed on the Work. 34. NKLUC shall not assign this agreement except in writing and with the prior written approval of the Board, which approval shall be subject to such conditions and provisions as the Board may deem necessary. This agreement shall be incorporated by reference into any assignment and any assignee shall comply with all of the provisions herein. Unless expressly provided for therein, such approval shall in no manner or event be deemed to impose any 7 obligation upon the Board in addition to the total agreed Upon reimbursement amount for the services of the NKLUC. 35. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 36. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. [The remainder of this page intentionally left blank.] 3 IN WITNESS WHEREOF the COUNTY and NKLUC hereto have executed this Agreement on the day and date first written above in four (4) counterparts, each of which shall, without proof or accounting for the other counterparts, be deemed an original contract. (SEAL) Attest: AMY HEAVILIN, CPA CLERK OF COURT By: Deputy Clerk Date: NKLUC: By:""& / r -A David Ritz, President .Date: ,S' ell y Address: North Key Largo Utility Corp. 24 Dockside Lane, #512 Key Largo, FL 33037 BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: Mayor Date: ONR E COUNTY ATTORN AP U irC A r1b -ro 7:� ATILEENE W. CASS L A SAS -AN? CUUNY-Y ATTORNEY Date 0 It` EXHIBIT NORTH KEY LARGO UTILITYCORPORATION CAPITALIMPROVEMENTS PROJECT Force1. main rer)lacementLakes Replacing- :t/ I.f. of existing 4-inch cast iron boring.with 64nch HDPE pipe. The new pipe will be constructed by horizontal directional ✓ ..Force main reWacement• WWTp Replacing approximately 400 It of 6-inch cast iron pipe. The new pipe will be 6-inch HDPE and will either be 400 I.f. underneath .• or approximately10 around the airport runway. The new pipe will be constructei by horizontal directional boring. 3. Harbor Island Drive Bddqq _SeThis is an wer :-inch cast iron sewer•, manhole Engineering design and construction services for project .Fiveodor Five major pump stations are located near residential and commercial areas and intersections and receive •I of odor complaints.These locations are Island Drive- -Ocean Reef Drive, Andros Road — Ocean Reef Drive, Tarpon Lane, Pumpkin Cay Road and Marina Drive. /11 sludge7. wastewater thickenerli Iii Install sludge thickening membrane along With necessary pump, piping, - diffusers in order to thicken the sludge from I% to 4% thereby reducing sludge transfer costs. 8. Various sanitary sewers,• • manhole teleVising, rehabilitation-and -• - - We will identify area with infiltration and inflow, and then televise thosesewer•. determine rehabilitation•repair for -manholes• pumpstabons. • •station 40,001 numberInstall telemetry units at a of pump stations in • !_ to record pump on and off times and high water alarms/alerts. 1 a, Increase RO irrigation waterproduction by 0.5 MGD. $1,070,875 This will • -installing ivessels1 i membranes with a filter / high pressure pump. b. A 12-inch PVC 90-foot deep CLASS V injection well for salt $ 78,000 discharge will be required for project 10 A. Energy 11. Electrical • ! • 214,500 existingReplace the existing RO treatment motor control center. The equipment is a 1• i''s model. Maintaining the operation of the RO treatment system depends on the continued operation of this electrical gear. Also replacing the RO system control panel. In addition will be replacing the electrical feed conductors fron the electrical building. There are two 4-Inch conduits from the electrica. building • the R• building, r• •200 12. Replace interior Piping $ 50,000 Replace approximately 200 Lf. of 6 and 8-inch PVC pipe and fittings in the RO plant with 6 and 8-inch fused HDPE to promote consistent RO water production. 13. Portable generator for Well #7 $ 80,000 A 200 kW portable generator and trailer to run our Well V, which is able to produce 1 MGD of irrigation water. 14. En-gineering design and construction -services $ 128,875 Engineering design and construction services for projects #7, 10 a. b. c., 15. Permit and r)ermit expeditor $ 27,000 Hire a permit expeditor to obtain Monroe County permits for project #14. Also the cost of the Monroe County building permit. 16..Residential irrigation water studv $ 60,000 Engineering study to determine feasibility and cost for plant and distribution expansion to supply the residents with irrigation water produced by our water plant. This would provide for cheaper irrigation water for the residents and conserve water for FKAA, Total: $2,600,000