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Item M1
M.1 y;+ ' "tr, BOARD OF COUNTY COMMISSIONERS County of Monroe , Mayor Michelle Coldiron,District 2 �� {sJ ` °' Mayor Pro Tem David Rice,District 4 -Ile Florida.Keys Craig Cates,District 1 Eddie Martinez,District 3 w Mike Forster,District 5 County Commission Meeting March 17, 2021 Agenda Item Number: M.1 Agenda Item Summary #7919 BULK ITEM: Yes DEPARTMENT: Waste Water TIME APPROXIMATE: STAFF CONTACT: Kevin Wilson (305) 292-4441 No AGENDA ITEM WORDING: Approval of Supplement to 2005 Lease of Wastewater Facilities to the Florida Keys Aqueduct Authority (FKAA) to delineate the boundaries of the Big Coppitt Wastewater Treatment Plant(WWTP). ITEM BACKGROUND: FKAA is undertaking an expansion to the Big Coppitt WWTP to provide additional treatment capacity. That expansion requires an expansion beyond the existing footprint. This Supplement to the original lease delineates that new footprint and makes it formally part of the original lease that did not include a survey or metes and bounds description of the original plant footprint. PREVIOUS RELEVANT BOCC ACTION: NOTE: The following are grouped by type of previous actions rather than chronologically. The backup documents are grouped by type of agreement for ease of reading. Lease of County wastewater facilities to FKAA for 99 years 6 SEP 2005 BOCC approved a lease of all wastewater facilities 28 SEP 2005 BOCC approved 1st amendment to the lease(affected only use of funding sources) ILA for overall cooperation 6 SEP 2005 BOCC approved ILA on Cooperative Development of wastewater systems including Big Coppitt 19 SEP 2007 BOCC approved 1st amendment to Cooperative Development ILA(funding sources only) 18 APR 2012 BOCC approved 2ud amendment to Cooperative Development ILA(funding sources only) Big Coppitt specific construction ILA 21 JUN 2006 BOCC approved Big Coppitt specific ILA for construction funding($20 million) 14 NOV 2007 BOCC approved 1st amendment to Cudjoe specific ILA for construction(NTE$35 million) 18 FEB 2009 BOCC approved 2,,d amendment to Cudjoe specific ILA for construction(use of SRF) 16 JUN 2010 BOCC approved 3rd amendment to Cudjoe specific ILA for construction(NTE$35 million) CONTRACT/AGREEMENT CHANGES: Yes Packet Pg. 2421 M.7 STAFF RECOMMENDATION: Approval. DOCUMENTATION: 2005-09-06 lease 2005-09-28 FKAA lease 1st Amendment 2005-09-06 ILA 2007-09-19 ILA 1st amendment 2012-04-18 Amendment 42 to ILA dated 6SEP2005 2006-06-21 ILA BC construction 2007-11-14 ILA 1st Amendment 2009-02-18 ILA 2nd Amendment 2010-06-16 ILA 3rd Amendment Supplement to 2005 Lease Big Coppitt with exhibits FINANCIAL IMPACT: Effective Date: Upon approval by both the BOCC and FKAA Board Expiration Date: Total Dollar Value of Contract: N/A Total Cost to County: N/A Current Year Portion: N/A Budgeted: N/A Source of Funds: N/A CPI: N/A Indirect Costs: minor staff time to prepare agreement Estimated Ongoing Costs Not Included in above dollar amounts: N/A Revenue Producing: No If yes, amount: Grant: N/A County Match: N/A Insurance Required: N/A Additional Details: N/A N/A REVIEWED BY: Kevin Wilson Completed 03/02/2021 12:16 PM Cynthia Hall Completed 03/02/2021 3:32 PM Budget and Finance Completed 03/02/2021 3:34 PM Maria Slavik Completed 03/02/2021 3:38 PM Liz Yongue Completed 03/02/2021 4:02 PM Packet Pg. 2422 M.7 Board of County Commissioners Pending 03/17/2021 9:00 AM Packet Pg. 2423 M.1.a BMO Draft #3 #4155.00 September 21, 2005 LEASE AGREEMENT 0 m MONROE COUNTY, FLORIDA as Lessor CL and FLORIDA KEYS AQUEDUCT AUTHORITY as Lessee cn Dated as of September 6, 2005 LO c44 c ;.n C7 c w rri 1 1 U n r" Ln Page 1 Packet Pg. 2424 TABLE OF CONTENTS Page ARTICLEI.......................................................................................................................................................................................5 DEFINITIONSAND EXHIBITS.............................................................................................................................5 1.1. Definitions........................................................................................................................................5 ARTICLEII......................................................................................................................................................................................8 LEASEOF PROJECT...................................................................................................................................................8 2.1. Lease of Project...............................................................................................................................8 2.2. Lease Term.......................................................................................................................................8 2.3. Acquisition of Project...................................................................................................................8 2.4. Lessee's Liability...........................................................................................................................8 2.5. Possession and Enjoyment.........................................................................................................9 2.6. Disclaimer of Warranties...........................................................................................................9 2.7. Warranties of the Facility..........................................................................................................9 y 2.8. Representations, Covenants and Warranties of the Lessee..........................................9 2.9. Representations,Covenants and Warranties of the Lessor.........................................10 2.10. Care and Use of Project.............................................................................................................I I 2.11. Mutual Waiver of Subrogation Rights................................................................................11 2.12. Waiver............................................................................................................................................11 CL 2.13. Quiet Enjoyment..........................................................................................................................11 ARTICLEIII..................................................................................................................................................................................12 LEASEPAYMENTS...................................................................................................................................................12 3.1. Payment of Lease Payments....................................................................................................12 3.2. Lease Payments to be Unconditional...................................................................................12 U 3.3. Net Lease........................................................................................................................................12 CD ARTICLEIV..................................................................................................................................................................................13 TERMINATION..........................................................................................................................................................13 w 4.1. Termination of Lease Term......................................................................................................13 4.2. Effect of Termination..................................................................................................................13 CD ARTICLEV....................................................................................................................................................................................13 CD COVENANTS OF LESSEE......................................................................................................................................13 LO CD 5.1. Maintenance of the Facility......................................................................................................13 CD 5.2. Taxes,Other Governmental Charges and Utility Charges...........................................13 cv 5.3. Provisions Regarding Insurance and No Waiver of Sovereign Immunity.............14 5.4. Damage,Destruction or Condemnation..............................................................................14 5.5. Insufficiency of Net Proceeds..................................................................................................14 5.6. Federal Tax Covenants..............................................................................................................14 5.7. Liens.................................................................................................................................................15 5.8. Use of System................................................................................................................................15 ARTICLEVII................................................................................................................................................................................15 TRANSFEROR ASSIGNMENT...........................................................................................................................15 6.1. Assignment and Subletting.....................................................................................................15 ARTICLEVIII...............................................................................................................................................................................15 ADDITIONAL LESSEE COVENANTS..............................................................................................................15 7.1. No Free Service.............................................................................................................................15 7.2. Mandatory Connection.............................................................................................................16 i Packet Pg. 2425 7.3. Additions and Modifications..................................................................................................16 7.5. Access to Project Site and Places of District Record Retention....................................16 ARTICLEVIII...............................................................................................................................................................................16 REIMBURSEMENTS.................................................................................................................................................16 8.1. Reimbursements.........................................................................................................................16 8.2. Advance..........................................................................................................................................17 8.3. Audit and Monitoring Requirments.....................................................................................17 ARTICLEIX..................................................................................................................................................................18 MISCELLANEOUS....................................................................................................................................................18 9.1. Amendments................................................................................................................................18 9.2. Notices............................................................................................................................................18 .� 9.3. Binding Effect................................................................................................................................18 9.4. Severability...................................................................................................................................18 9.5. Execution in Counterparts.......................................................................................................19 9.6. Captions.........................................................................................................................................19 Ch 9.7. Memorandum of Lease..............................................................................................................19 9.8. Applicable Law............................................................................................................................19 9.9. Non-recourse Obligation of Lessee.......................................................................................19 9.10. Conflicts..........................................................................................................................................19 CD CL EXHIBIT A SYSTEM SITE EXHIBIT B DESCRIPTION OF SYSTEM EXHIBIT C PERMITTED EXCEPTIONS — EXHIBIT D FORM OF REQUISITION Ch EXHIBIT E FORM OF SUPPLEMENT TO LEASE AGREEMENT CD LO CD CD 2 ii Packet Pg. 2426 I LEASE AGREEMENT 2 3 4 This Lease Agreement(the "Lease") dated as of September 6, 2005 between Monroe County, 5 Florida, a political subdivision of the State of Florida (the "Lessor"), and Florida Keys Aqueduct 6 Authority, an independent special district (the"Lessee"). 7 8 WITNESSETH 9 10 WHEREAS,the Lessor and Lessee are authorized to execute a lease agreement relating to the 11 lease of certain lands for the construction, equipping and operation thereon of a wastewater and 12 sewer system(the"System"); and 13 14 WHEREAS, the Lessor is (or will be) the owner of legal title to the System Site (more 0 15 particularly described in Exhibit A hereto and incorporated herein by reference, as same may be 16 supplemented and expanded from time to time as herein provided),and hereby leases the System Site 17 to the Lessee; and 18 CD 19 WHEREAS,the Lessor and the Lessee desire to enter into this Lease Agreement to implement CL 20 that certain Interlocal Agreement between the Lessor and the Lessee dated as of September 6,2005,as 21 filed with the Clerk of the Circuit Court on September 6 , 2005 (the "Interlocal Agreement");and 22 23 WHEREAS, in and by this Lease, the Lessor and Lessee agree to comply with all applicable 24 requirements of Section 103 of the Code necessary to maintain the exclusion from gross income for 25 federal income tax purposes of the interest on either the Lessor Bonds or the Lessee Bonds; and — 26 27 WHEREAS,it is the express intent of the Lessor and Lessee that no obligation of the Lessor �+ 28 with respect to the financing of any portion of the System or`the acquisition of any System Site shall 29 constitute a debt,liability or obligation of the Lessee or shall be a pledge of the revenues derived by CD 30 the Lessee from the operation of the System;and 31 i CD 32 WHEREAS,it is the express intent of the Lessor and Lessee that no obligation of the Lessee 33 with respect to the financing of any portion of the System shall constitute a debt, liability or 34 obligation of the Lessor or shall be a pledge of the faith and credit of the Lessor. E 35 U 36 NOW, THEREFORE, in consideration of the premises and the covenants and conditions 37 hereinafter contained and for other good and valuable consideration,the receipt and sufficiency of 38 which are hereby acknowledged,the parties hereto agree as follows: 39 Page 4 Packet Pg. 2427 I ARTICLE I 2 3 DEFINITIONS AND EXHIBITS 4 5 1.1 Definitions. The terms set forth in this section shall have the meanings ascribed to 6 them for all purposes of the Lease unless the context clearly indicates some other meaning. 7 "Advance"shall mean the funds provided b y the Lessor from the proceeds of Lessor Bonds in 8 such amounts as are determined by Lessor and Lessee to be necessary for Lessee to properly design, 9 construct and equip each Project provided that,in all events,the amount of the Advance shall not be 10 less than FIVE MILLION DOLLARS($5,000,000). 11 "Authorized Lessee Representative"shall mean the Chairman or Vice Chairman of the Lessee, 12 and any other person or persons designated by the Lessee by an Authorized Lessee Representative. W 13 "Budget"shall mean the budget for the cost of the construction and equipping of the System, 14 as such relates to the System Costs prepared in accordance with the plans and specification developed 15 by the Lessee and its consulting engineers and as amended, from time to time. CD CL 16 "Business Day" shall mean a day other than (i) Saturday or Sunday or (ii) a day on which h® 17 banking institutions located in the State of Florida or agencies of the State, are authorized or 18 obligated by law or executive order to be closed for business. 19 "Code" means the Internal Revenue Code of 1986, as amended, and any successor statute, c 20 together with corresponding and applicable final,temporary or proposed regulations and revenue _ 21 rulings issued or amended with respect thereto by the Treasury Department or Internal Revenue 22 Service of the United States. 0) 23 "Effective Date"shall mean September 6, 2005. cg 24 "Equivalent Dwelling Units" or "EDUs" shall mean the standard unit of applying System LO 25 Development Charges,as described in this Lease. For residential improved parcels,a minimum of one CD CD 26 EDU shall be applied to each family residential dwelling,condominium unit and mobile home. EDUs cv 27 for multifamily structures are determined by the number of dwelling units (i.e.: six units in a 28 multifamily structure will constitute six EDUs). For non-residential improved parcels of property,the 29 number of EDUs will be calculated based on a formula to be determined by the Lessee. A minimum of 30 one(1) EDU shall apply to each parcel unit 31 "Final Audit Report" shall mean the report for each Project identifying all Project Costs 32 required in Section 8.3 hereof. The Final Audit Report shall identify all Reimbursement Amounts 33 received by the Lessee from the Lessor, all funds provided the Lessee and any funds provided by the 34 State or the federal government applied to the Project Costs and otherwise describe the parties' 35 compliance with the terms of the Interlocal Agreement and this Lease. 36 "Fiscal Year" shall mean each twelve-month period beginning October 1 and ending on the 37 next succeeding September 30. Page 5 Packet Pg. 2428 I "Independent Insurance Consultant"shall mean a nationally recognized,independent actuary, 2 insurance company or broker that has actuarial personnel experienced in the area of insurance for 3 which the Lessee is to be self-insured. 4 "Lease"shall mean this Lease Agreement,as the same may be amended or supplemented from 5 time to time in accordance with its terms,including the Exhibits hereto,as executed and delivered by 6 the Lessor and the Lessee. 7 "Lease Term"shall mean the period during which the lease is effective as provided in Section 8 2.2 hereof. 9 "Lessee'shall mean the Florida Keys Aqueduct Authority,an independent special district duly 10 created and organized under the laws of the State. 0 11 "Lessee Bonds' shall mean revenue bonds or any other obligations issued from time to time y 12 by the Lessee for the purpose of paying a portion of the costs of designing, constructing and 13 equipping the System,which bonds or obligations are payable from the revenues of the System net of 14 the Operations and Maintenance Expenses, any available System Development Charges and other 15 legally available revenues of the Lessee. CD CL 16 "Lessee System Manager"shall mean an employee of the Lessee or an individual or firm hired 17 and compensated by the Lessee to provide independent System construction and/or operations 18 oversight for the Lessee. 0 19 "Lessor"shall mean Monroe County, Florida, a political subdivision of the State of Florida. 20 "Lessor Bonds'shall mean the bonds to be issued by Monroe County,Florida to the limits of 21 (a)the bonding capacity of the infrastructure sales surtax received by the Lessor and(b)the County's 22 ability to levy special assessments in an amount not to exceed$4,500 per EDU. 2 23 "Operations and Maintenance Expenses"shall mean the costs of operating and maintaining 24 the System determined pursuant to generally accepted accounting principles(as applied to state and LO CD 25 local governments),exclusive of interest on any debt payable from system revenues,depreciation,and CD 26 any other items not requiring the expenditure of cash. 27 "Permitted Exceptions" shall mean those encumbrances described in Exhibit C hereto. 28 "Project(s)"shall mean the design,permitting,construction and equipping of components of 29 the System to be constructed and equipped by Lessee on the System Site leased to the Authority under 30 this Lease. A summary of each Project,together with Project Costs and schedules for completion of 31 construction and placing Projects into service and net contribution allocated from Lessor Bonds for 32 each Project shall be described in greater detail in a Supplement to Lease. 33 "Project Costs'shall mean the cost of designing,permitting,constructing and equipping each 34 Project including the labor,materials and equipment to construct each Project in accordance with the 35 contracts to be entered by the Lessee and any other costs related thereto in accordance with generally 36 accepted accounting principles with respect to each Project. Project Costs shall not include Page 6 Packet Pg. 2429 I Operations and Maintenance Expenses other than expenditures related to initial Project testing and 2 start up not expected to be covered from users or ratepayers. 3 'Reimbursement Amount" shall mean the amounts paid to the Lessee by the Lessor for any 4 Project Costs expended by the Lessee. 5 "System" shall mean the wastewater and sewer facilities and all appurtenances thereto and 6 interest therein as constructed from time to time on or connected to the System Site, as more 7 particularly described in Exhibit B hereto,together with additions thereto as may be made from time 8 to time by the Lessor and the Lessee pursuant to a Supplement to Lease, which supplement shall 9 identify specific Projects to be undertaken to complete the System. 10 "System Development Charges" shall mean connection fees, capital expansion fees, utility 11 improvement fees or other similar fees and charges collected by the Lessee as a contribution toward 12 costs. y 13 "System Site' shall mean the real property upon which the System is located in the 14 unincorporated portions of Monroe County, Florida, as more particularly described in Exhibit A 0 15 hereto, together with additions thereto as may be made from time to time by the Lessor and the 16 Lessee,pursuant to a Supplement to Lease. 17 "State' shall mean the State of Florida. 18 "Supplement to Lease" shall mean a supplement to this Lease substantially in the form of 19 Exhibit E attached hereto,executed by the Lessor and Lessee for the purpose of adding parcels of real Uc 20 property to the System Site as set forth on Exhibit A hereto and to add additions to the descriptions — 21 of the System as set forth on Exhibit B hereto, including descriptions of each Project. 22 23 24 [Remainder of page left intentionally blank] a) 25 e CD CD cv U Page 7 Packet Pg. 2430 I ARTICLE II 2 3 LEASE OF SYSTEM AND SYSTEM SITE 4 5 2.1 Lease . The Lessor hereby demises and leases to the Lessee, and the Lessee hereby leases 6 from the Lessor, the right,title and interest of the Lessor in and to the System Site and the System, 7 together with any required easements appurtenant or easements in gross necessary for the extension 8 and operation of the System,and the Lessee agrees to contract to construct the System on the System 9 Site and to continuously operate and maintain the System during the term hereof, all on the terms 10 and conditions set forth in this Lease. Lessor and Lessee hereby confirm Lessor's ownership interest 11 and Lessee's leasehold interest in the System Site and System during the term of this lease. The Lease 12 of the System Site shall only be subject to the Permitted Exceptions. From time to time,the Lessor 13 and the Lessee shall add additional parcels of real property to this Lease during the Lease Term 14 pursuant to a Supplement to Lease as needed to complete the System. Such additional fee simple y 15 parcels (or other interests) may be added to this Lease Agreement by the joint execution of a 16 supplement to Exhibit A hereto and recorded as a Supplemental Memorandum of Lease in the Official 17 Records of Monroe County,Florida,and each such additional parcel shall become immediately subject 18 to the terms and conditions of this Lease Agreement upon the execution, delivery and recordation C CD 19 thereof. CL 20 21 2.2. Lease Term. The Lease shall be for an original term commencing on the Effective Date 22 and shall continue until September 30, 2104. Upon expiration of the Lease Term the Lessee shall 23 execute and deliver such documents, if any, as shall be necessary to evidence such expiration and 24 confirm ownership of the System Site and System by Lessor. 25 26 2.3. Acquisition of System.The Lessor recognizes that the Lessee will be responsible for the 27 design, construction and equipping of the System. The Lessee understands that the Lessor will 28 provide,from time to time,proceeds of the sale of Lessor Bonds(together with earnings thereon) to 29 be deposited with the Lessee in accordance with Article VIII hereof or any other procedure agreed to 30 by Lessor and Lessee to pay a portion of the costs of the design,construction and equipping of the LO 31 System as provided in the Interlocal Agreement. CD 32 33 The parties hereto each acknowledges that the amount of moneys to be provided by the Lessor 34 will not be sufficient to pay all of the costs of the System. Lessor and Lessee will cooperate in the 35 application for available State or federal grants and loans to pay a portion of the costs of the System. 36 To the extent the funds provided by the Lessor,together with any State or federal grants or loans,are < 37 not sufficient to pay all of the costs of the System, the Lessee will issue Lessee Bonds to pay the 38 remaining costs of the System. 39 40 2.4. Lessee's Liability. From and after the Effective Date, as between the Lessor (and any 41 assignee of the Lessor) and the Lessee, the Lessee assumes liability for all risks with respect to the 42 System,provided,however,the Lessee shall not be considered or deemed to be an indemnitor of the 43 Lessor for Lessor's actions,and provided further,that this Section 2.4 shall not be construed to limit 44 any claim by the Lessee for damages to the System by any party other than the Lessee or a party 45 under the control and direction of the Lessee. Page 8 Packet Pg. 2431 1 2 2.5. Possession and Enjoyment. From and after the Effective Date,the Lessor agrees that it 3 will not interfere with the quiet use and enjoyment of the System by the Lessee during the Lease Term 4 and that the Lessee shall during such Lease Term peaceably and quietly have, hold and enjoy such 5 System,without hindrance or molestation from the Lessor,except as expressly set forth herein. At 6 the request of the Lessee,the Lessor shall join in any legal action in which the Lessee asserts its right 7 to such possession and enjoyment to the extent the Lessor lawfully may do so. 8 9 2.6. Disclaimer of Warranties. THE LESSEE EXPRESSLY ACKNOWLEDGES THAT THE 10 LESSOR, NOT BEING THE VENDORS OR CONTRACTORS OF ANY PROJECT WHICH 11 COMPRISES OR WILL COMPRISE THE SYSTEM,THE VENDOR'S AGENTS OR THE CONTRAC- 12 TOR'S AGENTS,MAKE NO WARRANTY OR REPRESENTATION,EITHER EXPRESS OR IMPLIED, 13 AS TO THE TITLE TO,MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,DESIGN 14 OR CONDITION OF, OR AS TO THE QUALITY, CAPACITY OF THE MATERIAL OR 15 WORKMANSHIP IN ANY SUCH PROJECT OR ANY WARRANTY THAT THE PROJECT WILL 16 SATISFY THE REQUIREMENTS OF ANY LAW,RULE,SPECIFICATION OR CONTRACT WHICH 03 17 PROVIDES FOR SPECIFIC MACHINERY,OPERATORS OR SPECIAL METHODS OR ANY OTHER 18 WARRANTY OF ANY KIND WHATSOEVER. It is agreed that all such risks,as among Lessor and 19 the Lessee are to be borne by the Lessee at its sole risk and expense and the Lessee hereby agrees to CD CL 20 look solely to any contractor, vendor or supplier of the System for all such matters. THE LESSEE h® 21 FURTHER EXPRESSLY ACKNOWLEDGES THAT THE LESSOR MAKES NO PATENT 22 WARRANTIES OR REPRESENTATIONS WHATSOEVER, AND THAT LESSOR SHALL NOT BE 23 LIABLE FOR ANY ACTUAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES. 0 24 U 25 2.7. Warranties of the Facility. The Lessee acknowledges and represents that it will obtain 26 from the appropriate vendors and contractors certain warranties regarding the System. The Lessee �-- 27 reserves all rights to enforce each of these warranties so long as this Lease has not terminated 28 29 2.8. Representations, Covenants and Warranties of the Lessee. The Lessee represents, 30 covenants, and warrants as follows: 31 LO 32 (i) The Lessee is an independent special district created pursuant to Chapter 76-441, 33 Laws of Florida, as amended,has powers to enter into this Lease and has duly authorized and 34 taken the necessary acts required prior to(including all required approvals)the execution and 35 delivery of this Lease. The Lessee warrants that this Lease,upon the execution and delivery 36 thereof,is a valid, legal and binding limited obligation of the Lessee. 37 38 (ii) Neither the execution and delivery of this Lease nor the consummation of the 39 transactions contemplated hereby, nor the fulfillment of or compliance with the terms and 40 conditions hereof conflicts with or results in a breach of the terms,conditions,or provision of 41 any restriction or any agreement or instrument to which the Lessee is now a party or by which 42 the Lessee is bound or constitutes a default under any of the foregoing, nor conflicts with or 43 results in a violation of any provision of law governing the Lessee and no representation, 44 covenant and warranty herein is false,misleading or erroneous in any material respect. 45 Page 9 Packet Pg. 2432 I (iii) There is no action,suit,proceeding,inquiry or investigation, at law or in equity, 2 before or by any court,public board or body,known to be pending or threatened against or 3 affecting the Lessee nor to the best of the knowledge of the Lessee is there any basis therefor, 4 wherein, an unfavorable decision,ruling,or finding would materially and adversely affect the 5 transactions contemplated by the Lessee or which would adversely affect, in any way, the 6 validity or instrument to which the Lessee is a party, used or contemplated for use in the 7 consummation of the transactions contemplated hereby. 8 9 (iv) In its use of the System, the Lessee shall comply with all applicable State, and 10 federal laws, regulations, rules, orders, standards and codes and with all hazard insurance 11 underwriters standards applicable to the System. 12 13 (v) The Lessee shall establish rates, fees and System Development Charges for the 14 System which will be sufficient to provide funds adequate to fully cover the Operations and 15 Maintenance Expenses of the System and to pay,when due to the Lessee Bonds(providing for a 16 debt service coverage ratio as may be required by a bond insurer providing a municipal bond 17 insurance policy for any series of Lessee Bonds) or pursuant to the authorizing resolutions 18 governing any series of Lessee Bonds. 19 20 (vi) All revenues derived from the System by the Lessee over and above maintenance, 21 operations,customer service,billing,and any direct costs specifically incurred to provide these 22 services shall be used solely for the purpose of the System,such as repayment of debt service _ 23 and retirement of Lessee Bonds. 24 0 CJ 25 2.9. Representations, Covenants and Warranties of the Lessor. The Lessor represents — 26 covenants and warrants as follows: �-- 27 y 28 (i) The Lessor is a political subdivision of the State of Florida, and as such, has all 29 necessary power to enter into this Lease and is possessed of full power to own,lease and hold 30 real and personal property and to lease and sell the same as Lessor,and has duly authorized the 31 execution and delivery of this Lease. LO 32 33 (ii) Neither the execution and delivery hereof,nor the fulfillment of or compliance with 34 the terms and conditions hereof, nor the consummation of the transactions contemplated E 35 hereby, conflicts with or results in a breach of the terms, conditions and provisions of any 36 restriction or any agreement or instrument to which the Lessor is now a party or by which the 37 Lessor is bound,or constitutes a default under any of the foregoing. 38 39 (iii) To the knowledge of the Lessor, there is no litigation or proceeding pending or 40 threatened against the Lessor or any other person affecting the right of the Lessor to execute, 41 deliver or assign this Lease or to comply with its obligations under this Lease. Neither the 42 execution nor delivery of this Lease by the Lessor, nor compliance by the Lessor with it 43 obligations under this Lease, require the approval of any regulatory body, any parent 44 company, or any other entity, which approval has not been obtained. 45 Page 10 Packet Pg. 2433 1 2.10. Care and Use of System. The Lessee at its expense, shall maintain the System in 2 first-class operating condition, repair and appearance and in the condition when construction is 3 completed hereunder (ordinary wear and tear excepted) and shall protect same from deterioration, 4 other than normal wear and tear; shall cause the System to be used within its normal capacity, 5 without abuse and in compliance with the requirements of applicable laws, ordinances and 6 regulations and the requirements of any policy of insurance required under Section 5.3 hereof;and 7 shall cause the System to be operated by competent persons only and shall obtain, at the Lessee's 8 expense, all permits and licenses,if any,required by law for the operation of the System. The Lessee 9 agrees that Lessor shall not be responsible for latent or patent or other defects, wear and tear or 10 gradual deterioration or loss of service or use of the System or any part thereof or for damage from 11 fire or other casualty. Lessor shall not be liable to the Lessee or anyone else for any liability,injury, 12 claim,loss,damage or expense of any kind or nature caused directly or indirectly by the inadequacy of 13 the System or any item supplied by any materialmen or supplier or any other party,any interruption 14 of use or loss of service or usage or performance of any System component, any loss of business or 15 other consequence or damage, whether or not resulting directly or indirectly from any of the 16 foregoing. 17 18 2.11. Mutual Waiver of Subrogation Rights. Lessor and Lessee and all parties claiming under 19 them mutually release and discharge each other from all claims and liabilities arising from or caused CD CL 20 by any casualty or hazard covered or required hereunder to be covered in whole or in part by h® 21 insurance on the System or in connection with property on or activities conducted on the System, 22 and waive any right of subrogation which might otherwise exist in or accrue to any person on 23 account thereof and evidence such waiver by endorsement to the required insurance policies,provided 24 that such release and waiver shall not operate in any case where the effect is to invalidate such 25 insurance coverage. 26 27 2.12. Waiver. Lessor,its agents and employees,shall not be liable for, and Lessee waives all y 28 claims against Lessor for, damage, including but not limited to consequential damages, to person, 29 property or otherwise, sustained by Lessee, or any person claiming through Lessee resulting from 30 any accident or occurrence in or upon any part of the System including,but not limited to,claims for 31 damage resulting from: (a) any equipment or appurtenances becoming out of repair; (b) Lessee's LO 32 failure to keep any part of the System in repair; (c) injury done or caused by wind, water, or other 33 natural element;(d)damage to or loss by theft or otherwise of property of Lessee or others;(e)any act 34 or omission of owners of adjacent or contiguous property,or of Lessor,its agents or employees. All 35 property of Lessee, kept in the System shall be so kept at Lessee's risk only and Lessee shall save 36 Lessor harmless from claims arising out of damage to the same, including subrogation claims by 37 Lessee's insurance carrier. 38 39 2.13. Quiet Enjoyment. The Lessor covenants and agrees with the Lessee that so long as the 40 Lessee keeps and performs all of the covenants and conditions by the Lessee to be kept and performed 41 hereunder,the Lessee shall have quiet and undisturbed and continued possession of the System,free 42 from any claims against the Lessor and all persons claiming under, by or through the Lessor. Page 11 Packet Pg. 2434 I ARTICLE III 2 3 LEASE PAYMENTS 4 5 6 3.1. Payment of Lease Payments. The Lessee agrees to pay to Lessor,on the Effective Date 7 hereof,the sum of$10 and other good and valuable consideration,the receipt and sufficiency of which 8 is hereby acknowledged by Lessor,and further agrees to undertake the responsibility and obligations 9 for the design,development,construction,operations and financing of the System as provided herein 10 during the Lease Term. 11 12 3.2. Lease Payments to be Unconditional. All payments,obligations and undertakings by 13 the Lessee hereunder from and after the Effective Date,shall be absolute and unconditional,and such 14 payments and other obligations and undertakings shall be paid or performed when due without 0) 15 notice or demand and without abatement or any rights of set-off, recoupment or counterclaim the 16 Lessee might have against any supplier, contractor, or any other person and whether or not the 17 System is accepted for use or used by the Lessee or available for use by the Lessee,whether as a result 18 of damage,destruction,condemnation,defect in title or failure of consideration or otherwise. It is the 19 express intent of the Lessor and Lessee that this Lease shall be deemed and construed to be a"triple CL 20 net lease". 21 22 3.3. Net Lease. The Lessee and Lessor intend the payments hereunder to be net to the Lessor. 23 The Lessee shall comply with all of its obligations hereunder and pay from Lessee's legally available 24 funds all payments by the Lessee required hereunder, and any interest imposed on any of the 25 foregoing,during the Lease Term;and,as between Lessor and Lessee,the Lessee will pay all reason- W 26 able expenses incurred by Lessor in connection with all filings or recordings of any documents 27 relating to initial delivery of this Lease. The Lessee will pay or make provisions for payment of,as the 28 same shall become due,all lawful taxes and assessments,or any interest and penalties relating thereto, 29 if any, or real estate taxes or other municipal or governmental charges lawfully levied or assessed by 30 the federal, state or municipal government upon the Lessor or Lessee with respect to the System or , a3 31 any part thereof or upon any payments in respect thereof under this Lease or any other agreement, CD 32 instrument or document made or to be made in connection herewith. The Lessee may in good faith 33 and by appropriate proceedings,contest any such taxes or charges,including real estate taxes,with 34 due diligence so long as such proceedings do not impair the Lessee's ability or obligations to pay the 35 payments hereunder. Page 12 Packet Pg. 2435 I ARTICLE IV 2 3 TERMINATION 4 5 4.1. Termination of Lease Term. The Lease Term will terminate on September 30,2104. 6 7 4.2. Effect of Termination. Upon the termination of the Lease Term,the Lessee shall execute 8 and deliver a release of this Lease to the Lessor, at Lessee's cost. 9 10 ARTICLE V 11 12 COVENANTS OF LESSEE 13 14 5.1. Maintenance of the System. Lessee shall, following substantial completion of the y 15 System, be responsible for all repair and maintenance of the System (notwithstanding the right to 16 enforce and collect on any warranties), both interior and exterior and both structural and 17 nonstructural, whether foreseeable or not foreseeable. Lessee shall keep or cause to be kept the 18 foundations structural and operation portions of the System in first-class order,repair and condition. CD CL 19 Lessee shall commence required repairs as soon as practicable. Lessee shall at all times keep the 20 System and all equipment and appurtenances thereof and other mechanical equipment and 21 appurtenances within the System and all parts of the System,in good order,condition and repair and 22 clean, orderly, sanitary, safe and watertight,including but not limited to doing such things as are 23 necessary to cause the System to comply with applicable laws,rules,regulations and orders of State c CJ 24 and federal governmental regulators. If replacement of equipment,fixtures and appurtenances thereto 25 is necessary,Lessee shall replace same with new or completely reconditioned equipment,fixtures and @ 26 appurtenances, and repair all damages done in or by such replacement. y 27 28 All obligations of the Lessee,under this Section 5.1 shall be at the Lessee's sole cost and expense. 29 30 5.2. Taxes, Other Governmental Charges and Utility Charges. The parties acknowledge LO 31 and agree that the System is immune from ad valorem taxes,and therefore not subject to assessments 32 levied by governmental authorities. However, in the event that the ownership, leasing, use, 33 possession or acquisition of the System is found to be subject to taxation, assessments or 34 governmental charges in any form,the Lessee will pay,during the Lease Term,as the same come due, 35 all taxes and other governmental charges of any kind whatsoever that may at any time be lawfully 36 assessed or levied against or with respect to the System and any facilities or other property acquired 37 by the Lessee as permitted under this Lease in substitution for, as a renewal or replacement of,or a 38 modification,improvement or addition to the System or System Site; as well as all utility and other 39 charges incurred in the operation,maintenance,use,occupancy and upkeep of the System and System 40 Site; provided that, with respect to any governmental charges that may lawfully be paid in 41 installments over a period of years,the Lessee shall be obligated to pay only such installments as have 42 accrued during the time the Lease Term is in effect. In no event shall Lessor impose or levy any tax, 43 assessments or governmental charges in any form, on the System or System Site during the Lease 44 Term. 45 Page 13 Packet Pg. 2436 1 5.3. Provisions Regarding Insurance and No Waiver of Sovereign Immunity. 2 3 (1) The parties stipulate that each is a state governmental agency as defined by Florida 4 Statutes and represents to the other that it has purchased suitable public liability,vehicle liability,and 5 workers' compensation insurance, or is self-insured,in amounts adequate to respond to any and all 6 claims,including claims under State or federal actions for civil rights violations,which are not limited 7 by Section 768.28 and Chapter 440, Florida Statutes, as well as any and all claims within the 8 limitations of Section 768.28 and Chapter 440,Florida Statutes,arising out of the activities governed 9 by this Lease. 10 11 (2) Notwithstanding the provisions of Section 768.28,Florida Statutes,the participation of 12 the Lessor and Lessee in this Lese and the acquisition of any commercial liability insurance coverage, 13 self-insurance coverage,or local government liability insurance pool coverage shall not be deemed a 14 waiver of immunity to the extent of liability coverage,nor shall any contract entered into by Lessor 15 or Lessee be required to contain any provision for waiver. The Lessee shall name the Lessor as a 16 covered person under the Lessee's liability insurance policies addressing the System Site and System as 17 its interest may appear. 18 19 5.4. Damage, Destruction or Condemnation. If prior to the termination of the Lease Term, 20 the System or any portion thereof is destroyed or is damaged by fire or other casualty,or title to,or h® 21 the temporary use of such System or any portion thereof shall be taken under the exercise of the 22 power of eminent domain,the Lessee shall cause the net proceeds of any insurance or net proceeds of 23 any claim or condemnation award to be applied to the prompt repair,restoration,or replacement,in 24 which case any such replacement shall become subject to the provisions of this Lease as fully as if it 25 were originally a part of the System. Any such net proceeds received by the Lessee shall be applied by _ 26 the Lessee toward the payment of the cost of such repair, restoration or replacement,in the manner 27 and upon the conditions set forth in Section 2.3 hereof. y 28 29 Notwithstanding the foregoing,following such event of damage,destruction or condemnation, CD 30 this Lease shall remain in full force and affect while the Lessee restores or rebuilds the System. 31 LO CD 32 5.5. Insufficiency of Net Proceeds. If the net proceeds described in Section 5.4 hereof are 33 insufficient to pay in full the cost of repair,restoration or replacement of the System,the Lessee shall 34 finance the additional cost of such repair, restoration or replacement through the issuance of Lessee 35 Bonds or Refunding Bonds. 36 5.6. Federal Tax Covenants. Neither the Lessor nor the Lessee shall take any action or refrain 37 from taking any action,nor shall it cause or,to the best of its ability,allow any other party under its 38 direction or control to do so,which act or failure to act could adversely affect the exclusion from gross 39 income for federal income tax purposes of the interest on the Lessor Bonds or the Lessee Bonds. 40 Neither the Lessor nor the Lessee will make or will direct the making of any investment of the 41 proceeds of the sale of the Lessor Bonds or the Lessee Bonds which would result in the Lessor Bonds 42 or the Lessee Bonds being characterized as "arbitrage bonds" under Section 148 of the Code. The 43 Lessor and Lessee shall each take all action required under the Code,including the calculation and 44 payment of any rebate necessary to preserve the exclusion from gross income for federal income tax 45 purposes of the interest portion of the Lessor Bonds or the Lessee Bonds;provided,however,that the 46 Lessor and the Lessee may delegate such responsibility to a third party. Page 14 Packet Pg. 2437 1 2 In the operation of the System, the Lessee shall require that any contract comply with all 3 applicable Treasury rules and regulations regarding the private business use of a facility financed with 4 the proceeds of tax exempt obligations. 5 6 The Lessee shall not enter into any management contract with a non-governmental party for 7 the management of any portion of the System unless such management contract constitutes a 8 "qualified management contract"as described in Internal Revenue Service Revenue Procedure 97-13,as 9 amended or supplemented from time to time,or as described in Sections 141 through 145 of the Code, 10 and applicable Treasury Regulations contemporaneously in effect. 11 12 5.7. Liens. During the Lease Term both the Lessor and Lessee shall not,directly or indirectly, 13 create,incur,assume or suffer to exist any security interest,pledge,lien,charge,encumbrance or claim 14 on the System or System Site, other than as herein provided. 15 y 16 5.8 Use of System. The Lessee will not use,or maintain the System improperly,carelessly,in 17 violation of any applicable law or in a manner contrary to its intended use as facilities for provision of 18 essential government services as contemplated by the Lease. The Lessor shall promptly provide and 19 issue without charge therefore all permits and licenses necessary for construction and operation of the CD CL 20 System,or any related facilities. The Lessee shall obtain all permits and licenses,if any,necessary for h® 21 the construction and operation of the System. In addition,the Lessee agrees to comply in all respects 22 (including, without limitation, with respect to the use and maintenance of the System)with all 23 applicable laws,regulations,orders and decrees of any State or federal regulatory body exercising any 24 power or jurisdiction over the System;provided,however,that the Lessee may contest in good faith 25 the validity or application of any such law or rule in any reasonable mariner which does not _ 26 adversely affect the interest or rights of the Lessor under the Lease. 27 28 ARTICLE VI CD 29 30 TRANSFER OR ASSIGNMENT LO 31 CD CD 32 6.1. Assignment and Subletting. The System Site shall not be transferred or conveyed cv 33 during the Lease Term, without the prior written consent of the Lessee. This Lease shall not be 34 assigned by the Lessee nor shall the Lessee lease the System or any portion thereof,without the prior 35 written consent of the Lessor. 36 37 ARTICLE VII 38 39 ADDITIONAL LESSEE COVENANTS 40 41 7.1. No Free Service. Except as may be required by applicable law, the Lessee shall not 42 permit connection to, or furnish any services afforded by the System without making a charge 43 therefor based on the Lessee's connection policies. 44 Page 15 Packet Pg. 2438 I 7.2 Mandatory Connections. The Lessee shall adopt,as necessary,and enforce requirements 2 consistent with applicable laws for the owner,tenant or occupant of each building located on a lot or 3 parcel of land for which the System is available to connect such building to the System. 4 5 7.3. Additions and Modifications. After completion of the System,the Lessee may make any 6 additions,modifications or improvements to the System which the Lessee deems desirable and which 7 do not materially reduce the operational integrity of any part of the System. All such renewals, 8 replacements, additions,modifications and improvements shall become part of the System. 9 7.4. Access to Project Site and Places of District Record Retention. The Lessee shall provide 10 Lessor representatives with access to System Site and administrative offices (as well as other offices 11 where Lessee records may be retained) during normal business hours. The Lessee shall cause its 12 engineers and contractors to cooperate in the fulfillment of the Lessee's obligations hereunder and 13 shall require cooperation with Lessor's representatives during System inspections including,but not 14 limited to,making contracts,invoices,purchase documents,plans,maps and specifications available y 15 for inspection and copying. 16 17 ARTICLE VIII 18 CL 19 REIMBURSEMENTS 20 21 8.1. Reimbursements. Reimbursements to the Lessee shall be made by the Lessor and only 22 when the requests for such reimbursements are accompanied by a certification from the Monroe 23 County's Engineering Department that such reimbursements are for expenditures that are properly CJ 24 characterized as Project Costs. Reimbursements shall be made directly to the Lessee for Project Costs. — 25 Reimbursement for Project Costs shall be made only after receipt by the Lessor of the following from 26 the Lessee: 27 28 (1) A completed reimbursement request form in substantially the form attached hereto as , 29 Exhibit D signed by the Lessee's Authorized Representative. Such requests must be accompanied by LO 30 an itemized disclosure of the materials,labor,or services provided in sufficient detail to identify the CD 31 nature of the work performed; the cost or charges for such work; and the person providing the 32 service or performing the work. 33 34 (2) A certification signed by the Lessee's Authorized Representative as to the current 35 estimated costs of the Project;that the materials,labor, or services represented by the invoice have 36 been satisfactorily purchased,performed, or received and applied to the Project and that the Lessee 37 was required to incur such Project Costs for materials, labor or services under the terms and 38 provisions of the contract(s) between the Lessee and third parties providing services necessary to 39 complete a Project;and in the case of Project Costs which are not direct materials,labor or third party 40 service expenditures, such expenditures are properly characterized as Project Costs. 41 42 (3) A certification by the engineer responsible for overseeing construction indicating the 43 percentage of the Project completed as of the date of such certification; stating that the equipment, 44 materials, labor and services represented by the construction invoices have been satisfactorily 45 purchased or received, and applied to the Project in accordance with construction contract Page 16 Packet Pg. 2439 I documents;stating that payment is in accordance with construction contract provisions;stating that 2 construction, up to the point of the reimbursement request, is in compliance with the contract 3 documents;and identifying all additions or deletions to the Project which have materially altered the 4 Project's performance standards,scope, or purpose. 5 6 (4) Such other certificates or documents by engineers,attorneys,accountants,contractors, 7 or suppliers as may reasonably be required by the Lessor. 8 9 8.2. Advance. The Lessor and the Lessee recognize that the Lessee is in need of capital funds 10 to initiate Projects. Recognizing this need,the Lessor agrees to provide the Lessee with the Advance 11 to be used by the Lessee solely to pay Project Costs. The Advance shall be paid by the Lessor to the 12 Lessee within thirty(30) days of the issuance of the initial series of Lessor Bonds issued to meet the 13 Lessor's obligations pursuant to this Lease. As the Advance is expended by the Lessee, the Lessee 14 shall complete a reimbursement requisition in the form provided in Exhibit D and supply the Lessor 15 such other documents and information as required in this Lease as may be necessary to permit the 16 Lessor to confirm that the Advance(including all investment earnings thereon)has been used solely 17 for Project Costs. The Lessor shall then reimburse the Lessee for the amount identified in each 18 respective reimbursement requisition in order to replenish the Advance.This process shall continue 19 until the proceeds of the Lessor Bonds are fully expended. The Lessee shall provide the Lessor with CD CL 20 biannual reports of the investments and earnings relating to the Advance until such time as the h® 21 proceeds from the Lessor Bonds, including the Advance and all investment earnings thereon have 22 been expended as required by the Interlocal Agreement. 23 24 8.3. Audit and Monitoring Requirements. The parties agree to the following audit and 25 monitoring requirements: CO 26 27 (1) Final Audit Report. Within six (6) months after completion of each Project, as y 28 demonstrated by the Lessee placing a Project into service,the Lessee shall submit to the Lessor a Final 29 Audit Report. Accordingly,the parties shall direct their respective auditors to simultaneously notify 30 the Lessor and Lessee immediately if anything comes to the auditor's attention during the 31 examination of records that would lead the auditor to question whether any expenditures are not LO 32 allowable Project Costs under this Lease. The final determination of whether such costs are 33 appropriate Project Costs shall be made by the Lessor. 34 35 (2) Record Retention. The Lessor and Lessee shall each retain sufficient records o 36 demonstrating its compliance with the terms of the Interlocal Agreement and this Lease for a period of 37 five years from the date that the Final Audit Report is issued for each Project, and shall allow each 38 other,or their designee,access to such records upon request. The Lessor and Lessee shall ensure that 39 audit working papers also are made available to each other, or their designee,upon request, for a 40 period of five years from the date that the Final Audit Report is issued. 41 42 (3) Monitory The Lessee agrees that the Lessor's Project monitoring procedures may 43 include,but not be limited to,review of contracts related to the Project as well as engineering designs 44 and plans, on-site visits by Lessor designees at Project sites and the Lessee's administrative offices, 45 limited scope audits, and/or other procedures. Lessee agrees to comply and cooperate with any 46 monitoring procedures and processes deemed appropriate by the Lessor. In the event the Lessor 47 determines at any time that a limited scope audit of the System or a Project is appropriate,the Lessee Page 17 Packet Pg. 2440 I agrees to comply with any additional instructions provided by the Lessor to the Lessee regarding 2 such audit. The Lessee further agrees to comply and cooperate with any inspections, reviews, 3 investigations, or audits undertaken by the Lessor or other auditor of Lessor's business. Any costs 4 incurred by the Lessor to perform any review,audit and other monitoring activities permitted under 5 this Lease shall be included in Lessor's budget to be identified in each Supplement to Lease. 6 7 (4) Reporting. Each party shall provide to the other party a copy of any reports, 8 management letters,or other information required to be submitted to lenders or other persons as may 9 be required pursuant to the terms of the Lessor Bonds or Lessee Bonds, State revolving loan fund 10 documents and any documents related to any Project. Such copies shall be forwarded to the 11 respective parties hereto at the same time as such documents are provided to third parties pursuant to 12 the terms of the Lessor Bonds or Lessee Bonds. 13 0 14 ARTICLE IX 15 16 MISCELLANEOUS 17 18 9.1. Amendments. The terms of the Lease shall not be waived, altered, modified, CD 19 supplemented or amended in any manner whatsoever except by written instrument signed by the CL 20 Lessor and Lessee. 21 22 9.2. Notices. All notices,certificates,requests or other communications(other than payments 23 of Lease Payments by the Lessee) hereunder shall be in writing and shall be sufficiently given and 24 shall be deemed given when delivered or three(3)Business Days after being mailed by first class mail, 25 postage prepaid, to the parties at their respective places of business as follows (or other address as W 26 shall be designated by any party in writing to all other parties): 27 28 Lessor: Monroe County 29 1100 Simonton Street 30 Key West, Florida 33040 LO 31 Attention: County Administrator CD 32 With copy to: County Attorney 33 34 Lessee: Florida Key Aqueduct Authority 35 1100 Kennedy Drive 36 Key West, Florida 33040 37 Attention: Executive Director 38 With copy to: General Counsel 39 40 9.3. Binding Effect. The Lease shall inure to the benefit of and shall be binding upon the 41 Lessor and the Lessee and their respective successors and assigns. 42 43 9.4. Severability. In the event any provision of the Lease shall be held invalid or 44 unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render 45 unenforceable any other provision hereof. 46 Page 18 Packet Pg. 2441 1 9.5. Execution in Counterparts. The Lease may be executed in several counterparts,each of 2 which shall be an original and all of which shall constitute but one and the same instrument. 3 4 9.6. Captions. The captions or headings in the Lease are for convenience only and in no way 5 define, limit or describe the scope or intent of any provisions or sections of this Lease. 6 7 9.7. Memorandum of Lease. Simultaneously with the execution of the Lease,the Lessee and 8 the Lessor shall each execute, acknowledge and deliver a Memorandum of Lease with respect to the 9 Lease. Said Memorandum of Lease shall not in any circumstances be deemed to change or otherwise 10 to affect any of the obligations or provisions of such instrument. 11 12 9.8. Applicable Law. The Lease shall be governed by and construed in accordance with the 13 laws of the State of Florida, and the venue for any cause of action hereunder shall be in Monroe 14 County, Florida. 15 16 9.9. Non-recourse Obligation of Lessee. Notwithstanding anything to the contrary herein or 17 in any of the instructions, documents or certificates relating hereto, the obligations, liabilities and 18 responsibilities of the Lessee, of any kind, with respect to the obligations hereunder to be performed 19 by the Lessee shall be payable solely out of the proceeds derived by the Lessee from the System and the CD 20 Lessee shall have no other or further liability hereunder or arising therefrom. 21 22 9.10. Conflicts. Notwithstanding anything to the contrary herein, in the event of a conflict 23 between the terms of this Lease and the Interlocal Agreement, the terms and conditions of the 24 Interlocal Agreement shall control. 25 26 IN WITNESS WHEREOF,the Lessor and Lessee have caused this Lease to be duly executed on 287 the lorth below their respective signatures and all as of the day and year first written above. r 29 3 lt� `attest:J a i :L kplhage, Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, as Lessor "D � cv . . 33 ` 34 _ �. Xl� By; o 35 [Deputy] Clerk 9/—I �/D5 Mayor/Chairman Dixie M. Spehar, y 36 37 Monroe County Attorney Monroe County Bond Counsel 38 Approved as to Form Approved or 39 40 By: By: 41 County Attorney Nabors, Gibli ckerson, P.A. 42 ` _ z 43 Date: (� y` 3 C Date: 44 45 (SEAL) 46 Page 19 Packet Pg. 2442 I Attest: THE FLORIDA KEYS AQUEDUCT 2 AUTHORITY, as Lessee 3 4 5 By: By: !S4� &OA�� 6 Mary Rice,thairman 7 8 The Florida Keys Aqueduct Authority The Florida Keys Aqueduct Authority 9 General Counsel Bond Counsel 10 Approved as to Form Approved as to form 11 12 13 Gener ouns Bryant Miller &Olive P.A. 14 15 Date: Date: 2 CL CD CJ LO CD CD cv Page 20 Packet Pg. 2443 1 2 EXHIBIT A 3 4 SYSTEM SITE 5 6 0 w 2 CL CD u LO CD CD cv u Page 21 Packet Pg. 2444 1 EXHIBIT B 2 3 DESCRIPTION OF SYSTEM 0 w 2 CL CD u Lo CD CD cv u B-1 Packet Pg. 2445 EXHIBIT C PERMITTED EXCEPTIONS (A) Standard exceptions of title insurance coverage concerning easements or claims of easement not shown by the public records,encroachments,overlays,boundary line disputes,or any other adverse matter which would be disclosed by an accurate survey;provided same does not or will not materially impair the ability of any fee simple parcel to be used by the Lessee for the purpose of providing wastewater services or facilities in the normal course of business. (B) Any adverse ownership claim by the State of Florida by right of sovereignty to any portion of the property,including submerged,filled and artificially exposed lands and lands accreted to such lands. 0) 2 CL CD LO CD CD cv U C-1 Packet Pg. 2446 EXHIBIT D FORM OF REIMBURSEMENT REQUISITION 1 2 REIMBURSEMENT REQUISITION NO. 3 The Florida Keys Aqueduct Authority (the "Authority") Request to the Board of County 4 Commissioners of Monroe County, Florida(the "County"): 5 6 Project: 7 Amount Requested: $ 0 8 Total Reimbursements to Date(Exclusive of this Request): $ 9 1. Each obligation for which a reimbursement is hereby requested is described in 10 reasonable detail in Exhibit A hereto together with the name and address of the person, firm or 11 corporation to whom payment was made by the Authority. The initial requisitions submitted by the CD CL 12 Authority also include information confirming that the Advance provided by the County has been h® 13 used solely for Project Costs. 14 15 2. The bills,invoices or statements of account for each obligation referenced in Exhibit A 16 are on file with the Authority. 17 18 3. The Authority hereby certifies that: �-- 19 W 20 (a) each obligation mentioned in Exhibit A has been properly incurred,is a proper Project 21 Cost,was required to be incurred and has been incurred as an administrative cost in connection with 22 the design and construction of a Project or paid in compliance with the contracts between the CD 23 Authority and third parties providing services necessary to complete each Project, and has not been LO CD 24 the basis for any previous reimbursement; CD 25 26 (b) no part of the reimbursement requested hereby will be used to pay for materials not yet 27 delivered to the respective Project for prompt incorporation or for services not yet performed in 28 connection therewith; 29 30 (c) no item in Exhibit A represents any portion of an obligation which the Authority is, 31 as of the date hereof, entitled to retain under any retained percentage agreement; 32 33 (d) to the best knowledge and belief of the Authority,insofar as any obligation described 34 in Exhibit A was incurred for labor, services, materials, supplies or equipment (i) such labor and 35 services were actually performed in a satisfactory manner in connection with the acquisition, 36 construction and equipping of this Project and (ii) such materials, supplies and equipment were D-1 Packet Pg. 2447 I actually used in connection with the acquisition,construction and equipping of this Project or were 2 delivered to the site of the Project (and remain at the site of the Project)for that purpose; 3 4 (e) all sums previously advanced by the County have been used solely for purposes 5 permitted by the Lease and the specific items which are the subject of this reimbursement request will 6 be so used; 7 8 (f) there has not been served upon the Authority any lien,notice of any lien,right to lien 9 or attachment upon or claim affecting the right to receive payment of,any moneys payable to any of 10 the persons or firms named in this reimbursement request,which has not been released or will not be 11 released simultaneously with the payment of such obligation; 12 13 (g) the use of the reimbursements requested hereunder will not result in the coven ants 14 made by the Authority in the Lease being violated; 15 y 16 (h) the current estimated cost of completing the Project is$ 17 18 (ii) the percentage of completion of the Project at the time of submission of this 19 reimbursement request is %; CD CL 20 21 (j) all warranties,representations and covenants in the Lease are true and correct on the 22 date hereof; 23 24 (k) all outstanding claims for labor and materials through the date of the last c CJ 25 reimbursement request have been paid, and all liens therefore have been waived; _ 26 M 27 (1) to the best knowledge and belief of the Authority,all work on the Project prior to the y 28 submission of this reimbursement request has been performed in a good and workmanlike manner in 29 accordance with the construction agreements entered by the Authority with third parties for 30 construction of the Project; 31LO CD 32 (m) any required payment and performance bond remains in full force and effect and free CD 33 from default on the date hereof; 34 35 (n) the additions or deletions that have been made to the Project,pursuant to County 36 consent, which have altered the Project's performance standards, scope or purpose since the 37 submission of the last reimbursement requisition are itemized on the attachments hereto; and 38 39 (o) the Authority has or anticipates that it shall have available sufficient moneys to 40 complete the Project. 41 D-2 Packet Pg. 2448 1 4. All capitalized terms herein,unless otherwise defined herein,shall have the meanings 2 assigned to them in the Lease Agreement between the County,as Lessor and the Authority,as Lessee, 3 dated as of September 6, 2005. 4 5 This day of 20 6 7 APPROVED: FLORIDA KEYS AQUEDUCT AUTHORITY 8 9 10 By: I Authority Engineer Authorized Representative 12 13 APPROVED: 14 15 ENGINEERING DEPARTMENT y 16 MONROE COUNTY, FLORIDA 17 18 2 19 By: CD CL CJ LO CD CD cv D-3 Packet Pg. 2449 1 EXHIBIT A 2 3 Name Purpose Amount Account 4 5 6 7 8 9 2- 0 w 2 CL CD CJ m w LO CD CD cv u D-4 Packet Pg. 2450 I EXHIBIT E 2 [FIRST, SECOND, THIRD, ETC.] 3 SUPPLEMENT TO LEASE 4 5 This [First, Second, Third, etc.] Supplement to Lease ("Subject Supplement') is made and 6 entered into as of by MONROE COUNTY,FLORIDA,a political subdivision of the State of 7 Florida, as lessor (the "Lessor") and THE FLORIDA KEYS AQUEDUCT AUTHORITY, an 8 independent special district, as lessee (the "Lessee"). All capitalized terms used herein and not 9 otherwise defined shall have the meaning set forth therefor in the"Lease Agreement' as hereinafter 10 set forth. 0 11 WITNESSETH: y 12 WHEREAS, the Lessor and the Lessee entered into a certain Lease Agreement (the "Lease 13 Agreement') dated as of September 6,2005, as recorded in Official Records Book at Page of 14 the Public Records of Monroe County, Florida; and 15 16 WHEREAS,the Lessor owns that certain real property more particularly described in Exhibit 17 A attached hereto and made a part hereof("System Site Parcel"); and 18 19 WHEREAS, the Lessor and Lessee intend to add the System Site Parcel as an additional o CJ 20 System Site to Exhibit A of the Lease Agreement and thereby supplement Exhibit A to the Lease 21 Agreement by subjecting the System Site Parcel to the Lease Agreement; and @ 22 23 WHEREAS,the Lessee intends to design, construct and equip on the System Site Parcel the 24 Project described on Exhibit B hereto as a portion of the System; and 25 , 26 WHEREAS,the Lessor and Lessee intend to add the Project to the description of the System as LO 27 set forth on Exhibit B to the Lease Agreement and thereby supplement Exhibit B to the Lease cv 28 Agreement by adding the Project as a "Project' under the Lease Agreement. 29 30 NOW, THEREFORE, in consideration of the premises and other good and valuable 31 consideration,the receipt and sufficiency whereof is hereby acknowledged by each party hereto by the 32 other party hereto, the parties hereto do hereby acknowledge and agree as follows: 33 34 (1) The foregoing recitations are true and correct and are incorporated herein by referenm 35 (2) The System Site Parcel is hereby declared to be a part of the System Site(as defined in 36 the Lease Agreement)which constitutes a portion of the System Site and,therefore, is a part of the 37 System Site as set forth in the Lease Agreement with the leasehold estate,operation and effect of the 38 Lease Agreement with the leasehold estate,operation and effect of the Lease Agreement applying to 39 the System Site Parcel as fully and to the same extent as if the System Site Parcel were described in the 40 Lease Agreement and therein set forth to be a part of the System Site. E-1 Packet Pg. 2451 1 (3) The Project is hereby declared to be a part of the System (as defined in the Lease 2 Agreement) which constitutes a portion of the System and, therefore, is a part of the System as set 3 forth in the Lease Agreement with the operation and effect of the Lease Agreement applying to the 4 Project as fully and to the same extent as if the Project were described in the Lease Agreement and 5 therein set forth to be a part of the System. 6 (4) The Lease Agreement, [as modified by previous Supplements to Lease and]as modified 7 hereby remains in full force and effect in accordance with the terms and provisions thereof. 8 IN WITNESS WHEREOF,each of the parties hereto has caused this Subject Supplement to be 9 executed by their duly authorized officers or agents, all as of the day and year first above written. 10 11 12 I MONROE COUNTY,FLORIDA 13 ATTEST: y 14 By: 15 Its: [Deputy] Clerk Its: Chairman 2 CO CL 16 (SEAL) 17 I THE FLORIDA KEYS AQUEDUCT 18 AUTHORITY 19 ATTEST: — 20 21 By: 22 Title: Secretary Title: Chairman 23 [SEAL] LO CD 24 CD 25 E-2 Packet Pg. 2452 1 EXHIBIT A 2 3 Description of System Site Parcel 4 2 CL CD u CD CD LO CD CD cv u E-3 Packet Pg. 2453 I EXHIBIT B 2 3 Description of Project 4 5 2 CL CD u CO LO CD CD cv u E-4 Packet Pg. 2454 FIRST AMENDMENT TO LEASE AGREEMENT 0 BETWEEN MONROE COUNTY, FLORIDA as Lessor c and FLORIDA KEYS AQUEDUCT AUTHORITY As Lessee which Lease Agreement was dated as of September 6, 2005 co CD LO CD CD Packet Pg. 2455 FIRST AMENDMENT TO LEASE AGREEMENT This First Amendment ("Amendment") to the Lease Agreement dated as of September 6, 2005 (the "Lease") between Monroe County, Florida, a political subdivision of the State of Florida(the"Lessor"), and Florida Keys Aqueduct Authority, an independent special district(the "Lessee"). WITNESSETH WHEREAS, the Lessor and Lessee executed the Lease relating to the lease of certain 0 wastewater system sites and systems; and WHEREAS, the Lessor and the Lessee desire to amend the definition of "Lessor Bonds" included in section 1.1 of the Lease. NOW, THEREFORE, in consideration of the premises and the covenants and conditions hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereto amend the Lease as follows: 0 Section 1. The definition of"Lessor Bonds" in Section 1.1 of the Lease shall be amended to add the words "or other debt obligations" after the words "Lessor Bonds shall mean the bonds" on @ Line 20 of page 6 of the Lease. As amended, the definition of "Lessor Bonds" shall read as follows: "Lessor Bonds" shall mean the bonds or other debt obligations to E be issued by Monroe County, Florida to the limits of (a) the bonding capacity of the infrastructure sales surtax received by the Lessor and (b) the County's ability to levy special assessments in an amount not to exceed $4,500 per EDU. m Section 2. All other terms of the Lease shall remain in full force and effect. co Section 3. Execution in Counterparts. This Amendment to the Lease may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one LO CD and the same instrument. CD 2 Packet Pg. 2456 IN WITNESS WHEREOF, the Lessor and Lessee have caused this First Amendment to thee:1Ze duly executed on the date set forth below their respective signatures. d I1r ` a n to ? ,L Kolhage, Clerk BOARD OF COUNTY B COMMISSIONERS OF MONROE [Deputy] Clerf 9•a Vo5 COUNTY, �A FLO14bA., as Lessor Monroe County Attorney By: CD Approved as to Form Charles "Sonny" McCoy By: Y Mayor/Chairman [Assistant] Co6ky Attorney Date: 0 9 -a � Date: / - - d 3 p O c -q _ v+ r; � L c-� r'n �r---< Z c1 c CD ') (SEAL) c_ 3 r V1 Attest: "`~'` P4 CD By: The lorida Keys Aqueduct Authority THE FLORIDA KEYS AQUEDUCT General Counsel AUTHORITY, as Lessee co Approved as to Form By: LO Mary Rice, hairman eneral ou el Date: Date: 3 Packet Pg. 2457 M.1.b COPY FLORIDA KEYS AQUEDUCT AUTHORITY RESOLUTION # 06-02 A RESOLUTION OF THE FLORIDA KEYS AQUEDUCT AUTHORITY DELEGATING CERTAIN AUTHORIZATION TO st IT'S CHAIRMAN TO EXECUTE AMENDMENT#1 TO THE LEASE AGREEMENT DATED SEPTEMBER 22, 2005 BETWEEN THE y FKAA AND MONROE COUNTY, AND PROVIDING FOR AN EFFECTIVE DATE OF OCTOBER 27,2005. CL WHEREAS, the Florida Keys Aqueduct Authority (FKAA) was created by Special Legislation,Chapter 76-441,Laws of Florida,as amended;and 0 WHEREAS, based on FKAA Enabling Legislation as amended, the FKAA has exclusive wastewater jurisdiction in unincorporated Monroe County;and WHEREAS, the FKAA and Monroe County entered into a Memorandum of Understanding(MOU), in May, 1998, which established criteria for the development of wastewater systems in unincorporated Monroe County;and WHEREAS, Monroe County is authorized by Sec. 125.01(1), Florida Statute,to provide,assist in providing, and fund centralized wastewater treatment systems;and co cv WHEREAS, Monroe County has provided funding sources for wastewater LO CD projects by obtaining Federal and State Grants, and committing tax revenues;and CD WHEREAS, the FKAA and the County signed an Inter-Local Agreement on e September 6,2005 defining their respective roles and responsibilities in the establishment of wastewater systems in unincorporated Monroe County;and Packet Pg.2458 • .. M.1.b WHEREAS, the Inter-Local Agreement further provided in Paragraph 4.04 that the County and the FKAA agreed to enter into a lease consistent with the provisions of that agreement;and WHEREAS, the FKAA Board of Directors did approve a Lease Agreement with Monroe County on September 22,2005;and 0 WHEREAS, it is the desire of Monroe County to amend the abovementioned y Lease Agreement to allow Monroe County to seek alternative funding options for wastewater projects within the County. 0 NOW, THEREFORE BE IT RESOLVED, that the Florida Keys Aqueduct °® Authority Board of Directors does hereby: AUTHORIZE THE FKAA BOARD CHAIRMAN TO EXECUTE AMENDMENT #1 TO THE LEASE AGREEMENT DATED SEPTEMBER 22, 2005 BETWEEN THE FKAA AND MONROE �-- COUNTY, AND PROVIDING FOR AN EFFECTIVE DATE OF OCTOBER 27,2005. m ADOPTED THIS 27th DAY OF OCTOBER, 2045. FLORIDA KEYS AQUEDUCT AUTHORITY Mary L.Rice� hairman (Corporate Seal) ATTES CD y _. LO CD CD Elena Z.Herr ra,Secretary/Treasurer `V Packet Pg. 2459 INTERLOCAL AGREEMENT MONROE COUNTY AND FLORIDA KEYS AQUEDUCT AUTHORITY WASTEWATER SYSTEMS THIS INTERLOCAL AGREEMENT is entered into pursuant to Sec. 163t S.,v and between Monroe County, a political subdivision of the State of Florida, (County), and the Mida Keys Aqueduct Authority, Inc., an independent special district, (FKAA) , WHEREAS,the Florida Legislature has identified the Florida Keys as an area of critical state concern, and has authorized actions by the County and FKAA to provide adequate wastewater treatment to protect the environment and the health, safety and welfare of landowners and persons inhabiting the Florida Keys; and WHEREAS, the County is authorized by Sec. 125.01(l), FS, to provide, assist in providing and fund centralized wastewater treatment systems; 0 WHEREAS, Chap, 99-395, Sec. 6, Laws of Florida, and the County's Comprehensive Plan y require that certain wastewater treatment levels be achieved by 2010, levels which can best be achieved by central wastewater treatment systems; WHEREAS, the FKAA is authorized by Chap. 76-441, Laws of Florida, as amended, to design, construct, and operate,wastewater treatment systems; r- WHEREAS, the FKAA and the County have entered into previous interlocal agreements establishing and confirming their ongoing relationship in providing wastewater facilities in the 0 Florida Keys; and WHEREAS, the County, by adopted resolutions, has provided funding.to the FKAA for -- wastewater projects and shall provide additional funds to the FKAA for the administration, planning and construction of future wastewater projects in unincorporated Monroe County; and WHEREAS, the County has deeded to the FKAA parcels of land on Conch Key, the LO CD Saddlebunch Keys and Grassy Key; and N WHEREAS, the County has demonstrated its commitment to sewering the Keys by transferring, at no cost, to FKAA the Grassy Key parcel, for which ad valorem taxes were expended at fair market value and the parcel is to be used by FKAA to serve the City of Marathon, and has committed a maximum of $20,000,000 to the Key Largo Wastewater Treatment District; and WHEREAS, the Baypoint (Saddlebunch Keys) and Conch Key projects, constructed by FKAA, are soon to be operational; and WHEREAS, the County and the FKAA intend to continue their cooperation with Governor Bush, the State Cabinet, the Department of Environmental Protection and the Department of Community Affairs to implement wastewater systems in unincorporated Monroe County by 2010; and Monroe County/FKAA Draft ILA Sep.6,2005 1 Packet Pg. 2460 WHEREAS, the parties desire to further define their commitment to work together and to answer concerns raised by the State Cabinet, at a meeting of August 23, 2005, concerning an agreement dated August 17, 2005, between the parties; and WHEREAS, the parties have been in reliance upon expressions of commitment by the Florida Department of Community Affairs of$10,000,000 for wastewater projects for fiscal year 2005, and $20,000,000 for fiscal year 2006, as identified in the Growth Management Plan attached to County Resolution No.039-2004, and the ability to obtain additional critical financial assistance from the State of Florida, the federal government and their agencies to achieve the purpose of this agreement; now therefore, IN CONSIDERATION of the mutual consideration and premises set forth below, the parties agree as follows: 1. STATEMENT OF INTENT: 0) This agreement shall set forth commitments of the parties to work together to achieve the 2010 mandate to sewer the Florida Keys. The parties shall work together to obtain funding for wastewater treatment facilities from state and federal sources. The parties shall cooperate with each other and act in a timely manner to acquire, design, construct, and operate wastewater treatment systems throughout the unincorporated areas of Monroe County, except for the area covered by the Key Largo Wastewater District, which has its separate authority and responsibility for sewering that area. The parties further intend that the sewering of the Florida Keys shall be done at a reasonable cost to users. 0 2. RESPONSIBILITIES OF COUNTY: 2.01 The County shall own the land and infrastructure of the wastewater treatment systems acquired or constructed under this agreement,4nd any amendments hereto, and shall lease said assets to the FKAA as described in Section 3.08 below. LO CD CD 2.02 The County, in addition to funds obtained from state and federal sources, shall provide up to the limits of its bonding capacity of the infrastructure sales surtax and County's ability to levy special assessments, the funds necessary to complete all wastewater projects so that citizens do not have to pay in excess of $4,500 per EDU in non-ad valorem special assessments. The County shall provide $20,000,000 for the costs of acquisition, procurement, design, and construction of wastewater projects in the—Lower Keys. County commits to full faith and diligence in working with the FKAA to provide funding to make costs of system development and connections for the Big Coppitt and all future projects reasonable to users. County shall have the responsibility of levying the special assessments for wastewater projects. Lower Keys projects included under this Agreement are Big Coppitt area, Cudjoe-Sugarloaf area, and Big Pine area. Other unincorporated County projects are Duck Key and Long Key. 2.03 The County Administrator shall review all procurement documents drafted by, or on behalf of, FKAA for wastewater treatment systems in the unincorporated county. The County Administrator shall make suggestions for changes as he deems in the best interest of the general public. Monroe County/FKAA Draft ILA Sep.6,2005 2 Packet Pg. 2461 M.1.c 2.04 The County Administrator shall appoint two members of the evaluation committee should any committee be established. 2.05 The County shall convey to FKAA such easements as are necessary for the installation of sewer lines. 3. RESPONSIBILITIES OF FKAA: 3.01 The FKAA shall administer the procurement processes for the design and construction of wastewater systems in unincorporated Monroe County. 3.02 The FKAA shall develop requests for proposals (RFP) and requests for qualifications(RFQ) for the procurement of wastewater systems in unincorporated Monroe County, consistent with the procurement policies of the FKAA and applicable State statute(s). FKAA shall submit y the drafts of RFP/RFQ to the County Administrator for review and input, give due consideration to any suggestions for changes, and shall advertise RFP/RFQs. 0 3.03 The FKAA shall accept the RFP/RFQ submissions. It is intended that contracts be CL awarded to the most responsive submitter, which shall not be required to be the lowest responsive bid, the most qualified responder, or other. The parties recognize that the lowest bid may not be the most effective bid. Accordingly, an evaluation committee which will comply with Sec. 286.011, F.S., may be established on an ad hoc basis for each procurement process. Should an evaluation committee be established, the Executive Director of the FKAA and the County Administrator shall each appoint two members. iz 3.04 The FKAA shall give due consideration to recommendations of the committee, if any, and the County Administrator. The FKAA shall award the contract. 3.05 The FKAA shall provide construction management of each project to insure its expeditious LO CD and economic completion. The FKAA authorizes the County Engineer and/or his designee to make site visits to any project under construction, and shall give due consideration to any suggestions of the County Engineer regarding an ongoing project. 3.06 The FKAA shall retain the financing authority provided in its enabling legislation. 3.07 The FKAA shall aid the County in its efforts to obtain funding by providing copies of such documents as the County needs to support its issuance of bonds or to seek Federal and State grants to assist in the funding of all said wastewater projects. 3.08 The FKAA shall lease from the County the land and infrastructure of the wastewater treatment systems acquired or constructed under this agreement and any amendments hereto. The Lease shall be irrevocable and provide absolute and unconditional authority to the FKAA to establish system development fees, rates, budgets, and rules governing operations_ in such manner as to be consistent with Section 4.06 of this agreement. The lease term shall be ninety- nine (99) years, itionaL,m-nety-r4 The FKAA shall be responsible for the maintenance and operations of the systems leased from the County. The Monroe County/FKAA Draft ILA Sep. 6,2005 3 Packet Pg. 2462 -- MAX parties understand and agree that the lease to be entered by the parties shall contain covenants, warranties, auditing and monitoring provisions consistent with the provisions found in the Interlocal Agreement between the County and the Key Largo Wastewater Treatment District. 3.09 The FKAA, pursuant to requirements of their enabling act, shall ensure that at least two public hearings be held in the area affected before any system development fee, rate or any other user fee is established or increased. All revenues derived from the wastewater systems by the FKAA over and above maintenance, operations, customer service, billing, and any direct costs specifically incurred to provide these services shall be used solely for the purposes of the wastewater systems, such as the payment of debt service and retirement of bonds. 3.10 This Agreement shall not apply to wastewater assets currently owned by FKAA or hereafter acquired from any other utility. 4. COOPERATION IN CARRYING OUT AGREEMENT: W 4.01 The County Administrator and the FKAA Executive Director shall meet as necessary to complete the tasks set forth in this agreement. The County Administrator and the FKAA Executive Director and their staffs shall only serve in their customary capacity of fact-finding, professional advice to, and other efforts to carry out the policies of,their respective boards. 4.02 All communications and dissemination of information regarding wastewater projects shall be through the Offices of the County Administrator and the FKAA Executive Director. 4.03 The parties recognize an obligation of $80,000,000 of bond-financing to be secured by special assessments in the unincorporated county. 4.04 The parties agree to enter into a lease consistent with this agreement in the most expeditious manner as possible. 4.05 The parties shall work together to secure sites for wastewater treatment plants in remaining LO lower keys no later than July 12, 2007. Attached hereto is Exhibit A setting forth a preliminaryCD timetable for the projects. 4.06 Neither party shall take any action or omit to take necessary action, including action pertaining to rate setting, that will adversely affect the tax-exempt status of County and FKAA bonds, or the respective party's ability to issue bonds under this agreement. Each party will take such action as is reasonably requested by the other party in connection with the issuance of bonds so as to allow the other party to issue such bonds on a tax-exempt basis, including, but not limited to, executing tax certificates. 5. ESTABLISHMENT OF CERTAIN PREREQUISITES FOR EACH PROJECT 5.01 The County and the FKAA shall work together to achieve the following goal: to establish fair and equitable connection fees and user fees to fund the operation and maintenance of wastewater systems. Monroe County/FKAA Draft ILA Sep.6,2005 4 Packet Pg. 2463 5.02 Projects constructed under this agreement shall conform to the Monroe County Sanitary Wastewater Master Plan. 5.03 It is recognized that some outlying areas of the Keys which are not heavily populated may not be feasibly served by a centralized wastewater and sewage system, and that Alternative Wastewater Facilities may be required to be installed to meet the mandate for adequate wastewater treatment in the Florida Keys. All Alternative Wastewater Facilities that may hereafter be constructed and operated within the Service Area of the FKAA shall conform to good utility practices, adequate service to the public, ensure adequate Wastewater Service for the Florida Keys and its citizens. FKAA shall comply with all applicable laws and rules in issuing prior approval for the use, construction, installation, or operation of new or expanded Alternative Wastewater Facilities. The FKAA shall require and enforce the use of its own Wastewater Facilities and facilities leased from County whenever and wherever they are accessible. Any Alternative Wastewater Facility must provide adequate and sufficient service to the projected territory or development. 0 0) 6. INSURANCE AND HOLD HARMLESS: 6.01 The parties to this agreement stipulate that each is a state governmental agency as defined by Florida Statutes and represents to the other that it has purchased suitable Public Liability, CD C Vehicle Liability, and Workers' Compensation insurance, or is self-insured, in amounts adequate to respond to any and all claims under federal or state actions for civil rights violations, which are not limited by Florida Statutes Section 768.28 and Chapter 440, as well as any and all claims within the limitations of Florida Statutes Section 768.28 and Chapter 440, arising out of the activities governed by this agreement. c 6.02 To the extent allowed by law, each party shall be responsible for any acts, or omissions, of negligence on the part of its employees, agents, contractors, and subcontractors and shall defend, indemnify and hold the other party, its officers and employees, agents and contractors, harmless from all claims demands, causes of action, losses, costs and expenses of whatever type - including investigation and witness costs and expenses and attorneys' fees and costs - that arise LO out of or are attributable to arising out of such actions or omissions. The purchase of theCD insurance does not release or vitiate either party's obligations under this paragraph. 6.03 Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the County and the FKAA in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. 7. GOVERNING LAW, VENUE, INTERPRETATION, COSTS,AND FEES: 7.01 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. 7.02 In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and FKAA agree that venue will lie Monroe County/FKAA Draft ILA Sep. 6,2005 5 Packet Pg. 2464 in the appropriate court or before the appropriate administrative body in Monroe County, Florida. 7.03 The County and FKAA agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. 7.04 The County and FKAA agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. 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. 0 8. SEVERABILITY: If any term, covenant, condition or provision of this Agreement(or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of CD CL competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and FKAA agree to reform the Agreement to replace any stricken provision with a valid CD provision that comes as close as possible to the intent of the stricken provision. . 9. BINDING EFFECT: LO The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to theCD benefit of the County and FKAA and their respective legal representatives, successors, and assigns. 10. AUTHORITY: Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and Authority action, as required by law. 11. CLAIMS FOR FEDERAL OR STATE AID: FKAA and County agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement. Monroe County/FKAA Draft ILA Sep.6,2005 6 Packet Pg. 2465 12. NON-DISCRIMINATION: FKAA and COUNTY agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. FKAA and County agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties U to, or the subject matter of, this Agreement. - 13. ADJUDICATION OF DISPUTES OR DISAGREEMENTS: 13.01 County and FKAA agree that all disputes and disagreements shall be attempted to be LO CD resolved by meet and confer sessions between representatives of each of the parties. 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. 13.02 In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and FKAA agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. County and FKAA specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 14. COVENANT OF NO INTEREST: County and FKAA covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Monroe County/FKAA Draft ILA Sep. 6,2005 7 Packet Pg. 2466 Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. 15. CODE OF ETHICS: 15.01 County and the FKAA agree that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 15.02 FKAA warrants that it has not employed, retained or otherwise had act on its behalf any former County officer or employee subject to the prohibition of Section 2 of ordinance No. 010- 1990 or any County officer or employee in violation of Section 3 of Ordinance No. 010-1990. 16. NO SOLICITATION/PAYMENT: The County and FKAA each warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 17. PUBLIC ACCESS: The County and FKAA shall each allow and permit reasonable access to., and inspection of, all CD documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and FKAA in conjunction with this Agreement. 18. 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 and the FKAA, when performing their respective functions under this Agreement within the territorial limits of the County and the FKAA, respectively, shall apply to the same degree and extent to the performance of such functions and duties--of such officers, agents, volunteers, or employees outside the territorial limits of the parties. Monroe County/FKAA Draft ILA Sep.6,2005 8 Packet Pg. 2467 19. LEGAL OBLIGATIONS AND RESPONSIBILITIES: Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County or the FKAA, except to the extent permitted by the Florida constitution, state statute, and case law. 20. NON-RELIANCE BY NON-PARTIES: No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or 2- program contemplated hereunder, and the County and the FKAA agree that neither the County nor the FKAA or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general. Notwithstanding the preceding language, the parties hereby designate the State of Florida as a third party with the ability to enforce against the two CD CL parties the provisions hereof,based upon the State Auditor conducting management and financial audits of all sewer programs, past, present, and future, in the Florida Keys. 21. ATTESTATIONS: FKAA and County agrees to execute such documents as the County or the FKAA may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug- Free Workplace Statement. to LO CD 22. NO PERSONAL LIABILITY: No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of either party in his or her individual capacity, and no member, officer, agent or employee of either party shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 23. EXECUTION IN COUNTERPARTS: This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original,-all of which taken together shall constitute one and the-same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. Monroe County/FKAA Draft ILA Sep. 6,2005 9 Packet Pg.2468 M 1.c 24. SECTION HEADINGS: Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 25. TERM OF AGREEMENT AND TERMINATION: This Agreement shall commence on September 6, 2005, and continue for ninety-nine (99) years, or until such time as all leases entered pursuant hereto are terminated, whichever shall first occur. The parties may elect to renew this agreement at the end of its term, as set forth in the preceding sentence, for a period of ninety-nine (99) years. 0 26. ASSIGNMENT: Neither party may assign this Agreement or assign any of its obligations under this Agreement without the approval of the other party, which approval shall be in writing and fully executed by both parties. All the obligations of this Agreement will extend to and bind the legal CD CL representatives, successors and assigns of FKAA and the County. 27. COMPLIANCE WITH LAWS: 0 U This Agreement shall comply with the laws and regulations of the United States and the State of - Florida, whether in effect on commencement of this Agreement or adopted after that date. 28. CONSTRUCTION: LO CD This Agreement has been carefully reviewed by FKAA and the COUNTY. Therefore, this Agreement is not to be construed against any party on the basis of authorship. 29. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by certified mail to the following: County: FKAA: County Administrator Executive Director 1100 Simonton Street 1100 Kennedy Drive Key West, FL 33040 Key West, FL 33040 30. FULL UNDERSTANDING: Monroe County/FKAA Draft ILA Sep.6,2005 10 Packet Pg.2469 This Agreement is the parties' final mutual understanding with respect to any projects constructed in the future. It replaces any earlier agreements or understandings, whether written or oral, with respect to any projects constructed in the future. This Agreement cannot be modified or replaced except in a written amendment duly executed by both parties. 31. EFFECTIVE DATE: 6�. S This Agreement will take effect on the day of { , 2005. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA (SEAL)ATTEST: DANNY L. KOLHAGE ERK By: Mayor ✓tu�1 Bye epu Jerk THE FLORIDA KEYS AQUEDUCT AUTHORITY (SEAL)ATTEST: By: a�g� �k By: Chairman Clerk c N 3 O o -n 7 V* r" W rn;PC ..� cdC?� CLO . ?s C) r- rn /tldEOf 4✓ To f Orl�t Monroe County/FKAA Draft ILA Sep.6,2005 11 Packet Pg. 2470 ( a l weal fauna 44! Big) -6 - :4u8wg3B44 r r N CL c 4) o U m m m U m 75 m Wm m m tCi = W O. O U a O m 0 U U E ° fA o 0 m m m m m w O w c cm y� 0 0 a co a.W 0- ~ a .s s 3 E m a W 3 E m m w CA) m E 3 m 'O V 0. 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L N ■ • ■ V t0 • t�1 p c � V N a a 0 q N • I • � Ya � 3 ICo LL N 4l I 0 0 N N Co Co N I O Co N 'O O m O m O n N O • ■ m w d o■ o- °i E 0 U v � a U. 0 'an Q Ca c O_ o v ':3 0. c m -p .m. �' O O m c Y U V A 3 C Em U m x a aci m o c Y a V m m m 1p� w U m `m 3 > > o = o c t4 m o m m m n o U o Y Y = E a m n o■ a■ o c x 3 0 E ao m — » z w w o ?■ w w 7 m 7 9 0 7 m m 9 m 7 Zi m U m x 0 he m A a G m co 0 c FIRST AMENDMENT TO INTERLOCAL AGREEMENT OF COOPERATION IN WASTEWATER SYSTEM DEVELOPMENT This First Amendment("Amendment") to an Interlocal Agreement dated as of September 6, 2005 (the "Interlocal Agreement"), is entered this 19th day of September, 2007, between Monroe County, Florida ("County"), a political subdivision of the State of Florida, and Florida Keys Aqueduct Authority ("FKAA"), an independent special district. WHEREAS, on September 6, 2005, the County and FKAA executed an Interlocal Agreement agreeing to partner in the development of wastewater systems; and m WHEREAS, the County and the Authority desire to amend Section 2.02 of the Interlocal Agreement to clarify and broaden the sources of funds which the County may apply to satisfy its monetary commitment in the Interlocal Agreement toward the completion of wastewater projects in CD C the Lower Keys; now therefore CL IN CONSIDERATION of the premises and the covenants and conditions hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto amend the Interlocal Agreement as follows: Section 1. Section 2.02 of the Interlocal Agreement is amended by adding the following sentence at the end of such section: "The County and FKAA understand and agree that the County may secure state revolving loan funds from the Department of Environmental Protection or funds from any other source to meet the County's obligation to provide funding toward the cost of acquisition, procurement, design and construction of wastewater projects in the Lower Keys pursuant to this Interlocal Agreement." As amended, Section 2.02 shall read in its entirety as follows: "The County, in addition to funds obtained from state and federal sources, shall use its best efforts to obtain the fiends necessary to complete all wastewater projects so that citizens do not have to pay in excess of $4,500 per EDU in non-ad valorem special assessments. m The County shall provide up to $31,800,000 for the costs of acquisition, procurement, design, and construction of wastewater projects in the Lower Keys. County commits to full faith and diligence in working with the FKAA to provide funding to make costs of system development and connections for the Big Coppitt and all future projects reasonable to users. County shall have the responsibility of levying special assessments for wastewater projects. Lower Keys projects included under this Agreement are Big Coppitt area, Cudjoe-Sugarloaf area, and Big Pine area. Other unincorporated County projects are Duck Key and Long Key. The 9/19107 Amend ILA 1 WW System Devpt Packet Pg.2472 • M.1.d County and FKAA understand and agree that the County may secure state revolving loan funds from the Department of Environmental Protection or funds from any other source lawfully available to meet the County's obligation to provide funding toward the cost of acquisition, procurement, design and construction of wastewater projects in the Lower Keys pursuant to this Interlocal Agreement." Section 2. All of the terms of the September 6, 2005 Interlocal Agreement not inconsistent herewith shall remain in full force and effect. 0 Section 3. This Amendment to the Interlocal Agreement may be executed in several counterparts, 0) each of which shall be an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, the County and FKAA have caused this First Amendment to the Interlocal Agreement to be duly executed as of the 19tb day of September, 2007. CD CL FLORIDA KEYS AQUED AUTHORITY BOARD OF COUNTY COMMISSIONERS KEY WEST, OF MONROE COUNTY,FLORIDA BY: BY: _ 1 R n s, Executive'l6irector Mayor Mario DiGennaro CD SEP 9 2007 W DATE DATE ATTEST: RK BY: r. n a 1 _ EP 1 9 2007 DATE APPROVED AS TO FORM AND APPROVED AS TO FORM LEGAL SUFFICIENCY cv BY: BY: Kirk C. Zue e A.Huttoli m FKAA General Counsel County to y Date: ATT T: o r-1 + � y V d FKAA Board Approval 9-27-07 ' W 9/19/07 Amend ILA 2 J WW System Devpt Packet Pg.2473 D AlY!!<NDMtNT TOM )CAL A►G INENIT OE DOoPMATiON IN WAsrsWATIK SYSTIC?A DEYSLOrlYl NT nb Seoead Amendeemt C'Ammadmin b an bkdood Arnow dalyd n of Sepbntbw b ZOOS OW%dwbmd Agom@W%b WWW Ihb Igh der ofApdL 201Z.6etww Monroe C+omyr, Pbaft C'(%sagr% a palMod eubdiviaiea of do 8rb of Florid,and Florida Kap Agned"As*A ft C"CAMOA ea bdapmded epadd dbbkL WB=ZA9. an SWm*W 4. 70K the C.o WW aM PKAA etoeerrd m bftbed Ap mmeat apo ft to l I b dat dawwdapnmW ofwuWmlw a) - ;cad m WSMRWAK as Sepm&w 19,200Y,do©Drop►and day Aelhodly amended S WI=2A2 C of die IdWbml Apnow b abtily and b+ Wm do mum offrda%I"No Coo*m" o apply to sdl*ib aeeaedry aommlhned in dw Jawloed Apnow baaad des conqldion of w-is aft prgjeeb b die Iaxw Kays;and � z m000daen0� on lye G 16. 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PXAA G@a%d Covmd A Dom ATI'99r. f� LL C . -/� o BY; � y m FKAA BOARD APPROVED: APRIL 25, 2012 CL as F- r r a O to as L N iL LU cn w 2 r m J 0 r N r E 0 r 9 N r N r E 'Xtl"ABM/11.A 3 u M�►lyrrae�w onM Packet Pg.2476 M.1.f INTERLOCAL AGREEMENT BETWEEN MONROE COUNTY AND FLORIDA KEYS AQUEDUCT AUTHORITY FOR THE BIG COPPITT REGIONAL WASTEWATER SYSTEM THIS INTERLOCAL AGREEMENT (Agreement) is entered into this day of 2006, pursuant to Florida Statute Sec. 163.01, by and between Monroe County (C nty), a political subdivision of the State of Florida, and the Florida Keys Aqueduct Authority(FKAA), an independent special district. WHEREAS, the County is authorized by Florida Statute Sec. 125.01(1)to provide, assist in providing, and fund centralized wastewater treatment systems; and WHEREAS, Section 6, Chapter 99-395, Laws of Florida, and the County's CD Comprehensive Plan require that certain wastewater treatment levels be achieved by the year CL CL 2010, which levels can best be achieved by central wastewater treatment systems; and WHEREAS, the FKAA is authorized by Chap. 76-441, Laws of Florida, as amended, and Chapter 98-519, Laws of Florida, to design, construct, and operate, wastewater treatment systems, and WHEREAS, the FKAA and the County have entered into previous interlocal agreements establishing and confirming their ongoing partnership in providing wastewater facilities in the Florida Keys; and WHEREAS, the County adopted Ordinance No. 38-2002, authorizing the levy of ad valorem taxes in the Big Coppitt Municipal Service Taxing Unit, in order to provide an initial source of funding for the Big Coppitt Regional Wastewater Project (Project); and WHEREAS, FKAA has initiated planning, design and other services for the Project for which it may be paid with taxing unit funds; and WHEREAS, the County by Interlocal Agreement dated September 6, 2005, and by Master Lease dated as of September 6, 2005, has committed to seek funding through federal and state grants and loans and the issuance of revenue bonds backed by the pledge of infrastructure sales tax; and will be providing additional funds to the FKAA for the administration, planning and construction of future wastewater projects in unincorporated Monroe County; and WHEREAS, the County may have other funding mechanisms, including but not limited to infrastructure sales tax, grant and loan funding and ad valorem taxes, available to it for the provision of sewers and wastewater treatment, and WHEREAS, on May 16, 2006, the County passed Resolution No. 199-2006 to appropriate the first Five Million Dollars ($5,000,000.00) for the Project; and WHEREAS, County and FKAA desire to put in place procedures for the allocation, expenditure, and reimbursement of funds for the Project; Packet Pg. 2477 NOW, THEREFORE, in consideration of the mutual consideration and promises set forth below, the parties agree as follows: 1. COUNTY FUNDING. The County by resolution of its Board of County Commissioners, shall appropriate from any lawfully available source, those funds which have been duly approved for the estimated costs of administration, planning and construction of the Project, which shall not exceed Fifteen Million Dollars($15,000,000). These funds are in addition to the Five Million Dollars ($5,000,000) previously authorized under Resolution No. 199-2006. Municipal Service Taxing Unit ad valorem tax proceeds collected by County shall be provided to FKAA as part of the funding under this Agreement and shall be disbursed as described in paragraph 3 below. Before such disbursement, County may deduct its costs of administration and professional costs from the MSTU funds collected. As the Project progresses, and estimates are altered to reflect a combination of actual costs incurred and changes in pricing due to contracts resulting from bid y processes, or other changed conditions, the FKAA shall provide such information to the County. This Agreement shall be modified as necessary to reflect such changes in the estimates in order to provide for adequate funding to be available for the timely and efficient construction of the project. The amount of the funding may be changed by written amendment to this Agreement CD C approved by the parties. CL CL 2. PROJECT. The Project shall consist of a collection system, transmission main and method of treatment to Advanced Wastewater Treatment standards sufficient to serve the needs of the residents and businesses in the Big Coppitt Municipal Service Taxing Unit. Both FKAA 0 and County shall perform their respective obligations and responsibilities under the Interlocal Agreement dated September 6, 2006. Attached are a project area map and project description @ (Exhibit A). c 3. EXPENDITURE OF FUNDS. The FKAA shall begin to utilize the Five Million Dollars ($5,000,000.00) originally awarded and described in Paragraph 1 for the administration, planning, design and complete construction of the Project. Thereafter, during the course of the Project, the FKAA may request reimbursement for payments made by FKAA upon submission of documentation of previous expenditures from the Five Million Dollars ($5,000,000.00) until the total amount allocated by the County is exhausted. The FKAA shall submit this documentation to the County Senior Administrator (CSA) for Sewer Projects describing the services performed and stating for which wastewater district/Project the funds were expended. The submission must be in a form satisfactory to the CSA and Clerk of the Circuit Court (Clerk). If the CSA approves the submission, she shall forward the same to the Clerk. If the CSA or the Clerk determine that the submission is unacceptable, either of them shall return it to the FKAA in writing with a written description of the deficiency(ies). 4. FISCAL CONTROLS AND QUARTERLY REPORTS. The FKAA shall establish fiscal controls and fund accounting procedures that comply with generally accepted government accounting principles, satisfactory to the Clerk, in order to assure that the funds provided to the FKAA are spent for the purposes set forth in this Agreement. All FKAA financial records pertaining to this Agreement must be made available, upon request, to the Clerk, an auditor employed by the County or the State of Florida. The records must be retained by the FKAA for five years following the receipt by the FKAA of its last payment pursuant to this Agreement. Any funds transferred by the County to the FKAA under this Agreement that are determined by the Clerk, or an auditor employed by the County or employed by the State to have been spent on a purpose not contemplated by this Agreement must be paid back to the County with interest calculated pursuant to Florida Statute Sec. 55.03(l), from the date the auditor determines the Packet Pg. 2478 funds were expended for a purpose not authorized by this Agreement. The FKAA agrees to provide the Clerk with quarterly status reports concerning the expenditure of these funds in sufficient detail to demonstrate compliance with the provisions of this Agreement. 5. RECORDS — ACCESS AND AUDITS. FKAA shall maintain adequate and complete records for a period of five years after termination of this Agreement. The State, the County, their officers, employees, agents and contractors shall have access to FKAA's books, records, and documents related to this Agreement upon request. The access to and inspection of such books, records, and documents by the aforementioned government representatives shall occur at any reasonable time. 6. RELATIONSHIP OF PARTIES. FKAA is, and shall be an independent contractor and not an agent or servant of the County. FKAA shall exercise control, direction, and supervision over the means and manner that its personnel, contractors and volunteers perform the work for the purpose of this Agreement. FKAA shall have no authority whatsoever to act on behalf of or as agent of the County in any promise, Agreement or representation other than specifically provided for in this Agreement. The County shall at no time be legally responsible for any negligence on the part of FKAA, its employees, agents or volunteers resulting in either bodily or personal injury or property damage to any individual, property or corporation. CL CL 7. TAXES. FKAA must pay all taxes and assessments, if any, including any sales or use tax, levied by any government agency with respect to FKAA's operations related to this Agreement. 8. INSURANCE.The parties to this Agreement stipulate that each is a state governmental agency as defined by Florida Statutes and represents to the other that it has purchased suitable Public Liability, Vehicle Liability, and Workers' Compensation insurance, or is self-insured, in amounts adequate to respond to any and all claims under federal or state actions for civil rights violations not limited by Florida Statutes Section 768.28 and Chapter 440, as well as any and all claims within the limitations of Florida Statutes Section 768.28 and Chapter 440, arising out of the activities governed by this Agreement. To the extent allowed by law, each party shall be responsible for any acts of negligence on the part of its employees, agents, contractors, and subcontractors and shall defend, indemnify and hold the other party harmless from all claims arising out of such actions. FKAA agrees to keep in full force and effect the required insurance coverage during the term of this Agreement. If the insurance policies originally purchased which meet the requirements of this lease are canceled, terminated or reduced in coverage, then FKAA must immediately substitute complying policies so that no gap in coverage occurs. Copies of current policy certificates shall be filed with the County whenever acquired or amended. 9. HOLD HARMLESS. To the extent allowed by law, FKAA is liable for and must fully defend, release, discharge, indemnify and hold harmless the County, the members of the County Commission, County officers and employees, County agents and contractors, and the Sheriff's Office, its officers and employees, from and against any and all claims, demands, causes of action, losses, costs and expenses of whatever type - including investigation and witness costs and expenses and attorneys' fees and costs - that arise out of or are attributable to FKAA's operations in connection with this Agreement except for those claims, demands, damages, liabilities, actions, causes of action, losses, costs and expenses that are the result of the sole negligence of the County. FKAA's purchase of the insurance required under this Agreement Packet Pg. 2479 M.1.f does not release or vitiate its obligations under this paragraph. FKAA does not waive any of its sovereign immunity rights including but not limited to those expressed in Section 768,28, Florida Statutes. 10. NON-DISCRIlyIINATION. FKAA and County agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. FKAA and County agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 168I-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss_ 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or 0 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) F0 Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, 2 familial status or age; and 11) any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. a a U 11. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and FKAA agree that venue shall lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. Neither this Agreement nor any of its terms is subject to arbitration. The County and FKAA agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by a 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. 12. SEVERABILITY. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and FKAA agree to reform the Agreement to replace any Packet Pg.2480 stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 13. ATTORNEY'S FEES AND COSTS, The County and FKAA agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. 14. BINDING EFFECT. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and FKAA and their respective legal representatives, successors, and assigns. a 15. AUTHORITY. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. 2 16. CLAIMS FOR FEDERAL OR STATE AID. FKAA and County agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. a 17. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. County and FKAA agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 a days after the first meet and confer session, the issue or issues shall be discussed at a public 2 meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as r_ may be provided by this Agreement or by Florida law. U c� 18. COOPERATION. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and FKAA agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. County and FKAA specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 19. COVENANT OF NO INTEREST. County and FKAA covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. 20. CODE OF ETHICS. County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. Packet Pg.2481 21. NO SOLICITATION/PAYMENT. The County and FKAA warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the FKAA agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 22. PUBLIC ACCESS. The County and FKAA shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and FKAA in conjunction with this Agreement; and the County shall have the right to 0) unilaterally cancel this Agreement upon violation of this provision by FKAA. 23. NON-WAIVER OF IlVIIVIUNITY. Notwithstanding the provisions of Sec. 786.28, Florida Statutes, the participation of the County and the FKAA in this Agreement and the e acquisition of any commercial liability insurance coverage, self-insurance coverage, or local CL government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County or the FKAA be required to contain any provision for waiver. 0 24. PRIVILEGES AND IMMUNITIES. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the County or the FKAA, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 25. LEGAL OBLIGATIONS AND RESPONSIBILITIES. Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution, state statute, and case law. 26. NON-RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely < upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third- party claim or entitlement to or benefit of any service or program contemplated hereunder, and the County and the FKAA agree that neither the County nor the FKAA or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. Packet Pg. 2482 27. ATTESTATIONS. FKAA agrees to execute such documents as the County may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug- Free Workplace Statement. 28. NO PERSONAL LIABILITY. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County or the FKAA in his or her individual capacity, and no member, officer, agent or employee of Monroe County or the FKAA shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 29. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement 0 by singing any such counterpart. y 30. SECTION HEADINGS. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. CD C CL 31. TERMINATION. The County may treat FKAA in default and terminate this Agreement immediately, without prior notice, upon failure of FKAA to comply with any provision related to compliance with all laws, rules and regulations. This Agreement may be terminated by County due to breaches of other provisions of this Agreement if, after written e notice of the breach is delivered to FKAA, FKAA does not cure the breach within 7 days following delivery of notice of breach. The County may terminate this Agreement upon giving @ sixty (60) days prior written notice to FKAA. Any waiver of any breach of covenants herein contained shall not be deemed to be a continuing waiver and shall not operate to bar either party from declaring a forfeiture for any succeeding breach either of the same conditions or covenants or otherwise. Should the Agreement be terminated, County shall pay for reimbursable costs to the effective date of termination. Termination of this Agreement for this project shall have no effect on any other agreement between the County and the FKAA. 32. ASSIGNMENT. FKAA may not assign this Agreement or assign or subcontract any of its obligations under this Agreement without the approval of the County's Board of County Commissioners. All the obligations of this Agreement will extend to and bind the legal representatives, successors and assigns of FKAA and the County. N 33. SUBORDINATION, This Agreement is subordinate to the laws and regulations of the United States, the State of Florida, and the County, whether in effect on commencement of this Agreement or adopted after that date. 34. INCONSISTENCY. If any item, condition or obligation of this Agreement is in conflict with other items in this Agreement, the inconsistencies shall be construed so as to give meaning to those terms which limit the County's responsibility and liability. 35. GOVERNING LAWS/VENUE. This Agreement is governed by the laws of the State of Florida and the United States. Venue for any dispute arising under this Agreement must be in Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a reasonable attorney's fee and costs. Packet Pg.2483 36. ETHICS CLAUSE. FKAA warrants that it has not employed, retained or otherwise had act on its behalf any former County officer or employee subject to the prohibition of Section 2 of ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 010-1990. For breach or violation of this provision, the County may, in its discretion, terminate this Agreement without liability and may also, in its discretion, deduct from the Agreement or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift or consideration paid to the former County officer or employee. 37. CONSTRUCTION. This Agreement has been carefully reviewed by FKAA and County. Therefore,this Agreement is not to be construed against any party on the basis of authorship. 38. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent b �' p Y certified mail to the following: COUNTY: FKAA y County Administrator Executive Director 1100 Simonton Street 1100 Kennedy Drive Key West, FL 33040 Key West, FL 33040 39. FULL UNDERSTANDING. This Agreement is the parties' final mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This Agreement cannot be modified or replaced except by another written and signed agreement. e 40. ANNUAL APPROPRIATION: Funding by County is subject to an annual appropriation .� by the Board of County Commissioners. 2 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and ve written. d 23 z� s e, Clerk BOARD OF CO TY COMMISSIOA a OF MONROE C TY, FLORIDA x �- e�� o 4eputy rn By: CC C-.,. erk Mayor/Chairp son �� -o :co s � FLORIDA KEYS AQUEDUCT AUTIFQRfTY a ATTEST: By: y: Jerk Chair an MONROE COUNTY ATTORNEY APPROVED AS TO FORM: SUS M. GRIMSLE ASSISWK COUNTY ATT packet Pg.2484 ( aol asea' p noa 44!ddoo Big) uog3nj4suo3 L - - a}u9wg3e}} 00 EXHIBIT A to N Interlocal Agreement '6 Between Monroe :Coun a and FKAA for the Big Coppitt Region Wastewater System a June 21, 2006 U Jill W 4 9 �. n�. dM A .. API moo : UU � t7 -, 0 � M.1.g FIRST AMENDMENT TO INTERLOCAL AGREEMENT BETWEEN MONROE COUNTY AND THE FLORIDA KEYS AQUEDUCT AUTHORITY FOR THE BIG COPPITT REGIONAL WASTEWATER SYSTEM THI'§ AMENDMENT TO INTERLOCAL AGREEMENT is entered into this eZray of gC^ , 2007, pursuant to Sec. 163.01, FS., by and between Monroe County, a political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority, Inc., an independent special district, (FKAA). WHEREAS, on June 21, 2006 the parties entered into an Interlocal Agreement providing 0. procedures for the allocation, expenditure and reimbursement of funds for the Big Coppitt Regional Wastewater System (System); and WHEREAS, the June 21, 2006 Interlocal Agreement provides for a appropriation of $15,000,000 to be established by a resolution of the BOCC; and WHEREAS, no resolution for the appropriation of$15,000,000 has been issued by the BOCC; and 03 C WHEREAS, the Interlocal Agreement provides that the estimated costs of the System W shall be modiified to reflect a combination of actual costs incurred and changes in pricing due to contracts resulting from bid processes or other conditions; and WHEREAS, the FKAA, in coordination and cooperation with the County, has received bids for the construction of the System and it is necessary for the Interlocal Agreement to be modified to reflect such changes in the estimates in order to provide for adequate funding to be available for the timely and efficient construction of the Systems; cv NOW THEREFORE, IN CONSIDERATION of the mutual consideration and premises a set forth below, the parties agree as follows: c 1. The parties are entering into this Amendment pursuant to Chapter 163, Florida Statutes. 2. Section 1. of the Interlocal Agreement dated June 21, 2006 between Monroe County and the Florida Keys Aqueduct authority is herby amended to read: 1. The County shall immediately appropriate from any lawfully available source, those funds which have been duly approved for the estimated costs of administration, planning and construction of the Big Coppitt Regional Wastewater Project, to the Big Coppitt WW ILA Amend 11-06-07 1 Packet Pg. 2486 M.1.g FKAA, which shall not exceed Thirty-Five Million Dollars ($35,000,000.00). These funds include the Five Million Dollars ($5,000,000.00) already authorized under Resolution No. 199-2006, and the Three Million Five Hundred Thousand Dollars ($3,500,000.00) authorized under Resolution No. 353-2007, unless that amount is changed by amendment to this agreement. Municipal Service taxing Unit ad valorem tax proceeds collected by County shall be provided to FKAA as part of the funding under this Agreement and shall be disbursed as described in Paragraph 3 below. Before such disbursement, County may deduct its cost of administration and professional costs from the MSTU funds collected. As the project progresses, and estimates are altered to reflect a combination of actual costs incurred and changes in pricing due to contracts resulting from bid processes, and other changed conditions, the FKAA shall provide such information to the County. This Agreement shall be W Ch modified as necessary to reflect such changes in estimates in order to provide for adequate funding to be available for the timely and efficient construction of the 'a project. The amount of the funding may be changed by written amendment to this Agreement approved by the parties. CL 1A. In order to insure the FKAA that funds are available to award and proceed with the remaining construction contracts necessary to complete the Big Coppitt Wastewater Project, the County states that the proceeds it receives from the State of Florida Revolving Fund shall be utilized only for the Big Coppitt Wastewater Project and further that all Assessments collected from the Big Coppitt Wastewater District shall be utilized on the Big Coppitt Wastewater Project, The County shall provide any CO additional funding required to meet its obligation to fund the Big Coppitt Wastewater Project from any legally available source. 3. Monroe County and the Florida Keys Aqueduct Authority agree that this Amendment shall be deemed to be effective on the date signed by the parties. 4. This Amendment maybe executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original and all of which shall together constitute one and the same agreement. Signature pages may be detached from the various counterparts and attached to a single copy of this document to physically form one document. N 5. The foregoing terms and conditions are hereby incorporated into the Interlocal a Agreement. Except as modified herein, the Interlocal Agreement dated June 21, 20061 remains in full force and effect. In the event of any conflict or ambiguity between the Interlocal Agreement and this Amendment, this Amendment shall control. Balance of Page Intentionally Left Blank Signature Page to Follow Big Coppitt WW ILA Amend 11-06-07 2 Packet Pg.2487 , , .. M.1.g IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (SEAL) BOARD OF COUNTY COMMISSIONERS ATTEST: OF MONROE C TY, FLORIDA DANNY L. KOLHAGE, CLERK 0 {� By: By: Mayor/Chairper on Deputy Clerk 2 CD THE FLOR]:D/ EDUCT AUTHORITY CL By: J es C. olds, Executive Director 0-1 c (SEAL) .n 3 p css °— ATTEST: rn CD f? � By. ca FKAA Board Approved: November 20, 2007 . o N Peov� r iW Big Coppitt WW ILA Amend 11-06-07 3 Packet Pg.2488 SECOND AMENDMENT TO INTERLOCAL AGREEMENT FOR THE BIG COPPITT REGIONAL WASTEWATER SYSTEM THIS SECOND AMENDMENT TO INTERLOCAL AGREEMENT is entered into the 18`" day of February, 2009, pursuant to Sec. 163.01, FS, by and between Monroe County, a political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority, an independent special district, (FKAA). 2- WHEREAS, on June 21, 2006, the parties entered into an inter-local agreement (ILA) for the 0 0) purpose of funding the costs associated with the administration, planning and development of a regional wastewater project; and WHEREAS, on November 14, 2007, that ILA was amended to recognize the County's CD authority to seek State Revolving Loan Funds (SRF) and specified that proceeds of such loans would CL be applied to the Big Coppitt project; and WHEREAS, it is necessary to clarify that the ILA restriction of SRF to the Big Coppitt project was a function of time and that funds received pursuant to applications in 2009 or later may be applied to other wastewater projects; now, therefore IN CONSIDERATION of the mutual consideration and promises set forth below, the parties agree as follows: 1. Paragraph LIA, County Funding, of the Inter-local Agreement (ILA) dated June 21, 2006, as previously amended, for the Big Coppitt Regional Wastewater System shall be amended to read as N follows: co 1.LA. In order to insure the FKAA that funds are available to award and proceed with the N remaining construction contracts necessary to complete the Big Coppitt Wastewater Project, the County states that the proceeds it receives from the State of Florida Revolving Fund shall be utilized only for the Big Coppitt Wastewater Project, except that after January 1, 2.009, proceeds from the State of Florida Revolving_ Fund may be applied to other wastewater projects provided that funding is available to complete the Big Coppitt Wastewater Project, and further that all assessments collected from the Big Coppitt Wastewater District shall be utilized on the Big Coppitt Wastewater Project. The County shall provide any additional funding required to meet its obligation to fund the Big Coppitt Wastewater Project from any legally available source. 2. All other provisions of the ILA dated June 21, 2006, for the Big Coppitt Regional Wastewater System, as previously amended, not inconsistent herewith, shall remain in full force and effect. Big Coppitt 2d Amend 1 Packet Pg. 2489 3. This Second Amendment to Agreement will take effect on the 1't day of March, 2009. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. FKAA Board Approved: February 26, 2009 FLORIDA KEYS AQUEDUCT THORITY BOARD OF COUNTY COMMISSIONERS KEY WEST, FL A OF M NROE COUNTY, FLORIDA BY: B YA James . Reyn d , xequtive Director Mayor George Neugent 3 3LO7 _ FEB 1 8 2009 DATE fTE y ATTEST: i fiT ., L E, CLE BY: $ ? - -� FEB 182009 DATE DATE 0 APPROVED AS TO FORM APPROVED AS TO FORM BY: -a-7- BY: Kirk C. 4ael h nne A. Hutton FKA eral Counsel 6� County Attorney Date: Date: �t N N Q r> rn : , as -n c-) rn r v Big Coppitt 2d Amend 2 Packet Pg. 2490 M.1.i THIRD AMENDMENT TO INTERLOCAL AGREEMENT FOR THE BIG COPP=REGIONAL WASTEWATER SYSTEM THIS THIRD AMENDMENT TO INTERLOCAL AGREEMENT is entered into the 10h day of .tune, 2010, pursuant to Sec. 163.01, FS, by and between Monroe County, a political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority, Inc., an independent special district,(FKAA). 0 WHEREAS,on June 21,2006,the parties entered into an inter-local agreement(ILA)for the W purpose of funding the costs associated with the administration, planning and development of a regional wastewater project; and WHEREAS, on November 14, 2007, that ILA was amended to recognize the County's authority to seek State Revolving Loan Funds(SRF)and specified that proceeds of such loans would CL be applied to the Big Coppitt project; and WHEREAS, on February, 2009, that ILA was amended to clarify that the ILA restriction of SRF to the Big Coppitt project was a function of time and that funds received pursuant to applications in 2009 or later may be applied to other wastewater projects ca WHEREAS, it is desired to amend the ILA to provide for the additional funding required to complete the capital project;now, therefore IN CONSIDERATION of the mutual consideration and promises set forth below, the parties agree as follows: 1. Paragraph 1, County Funding, of the Inter-local Agreement (ILA) dated June 21, 2006, , as previously amended, for the Big Coppitt Regional Wastewater System shall be amended to read as follows: 1. The County shall immediately appropriate from any lawfully available source, those funds which have been duly approved for the estimated costs of administration, planning and construction of the Big Coppitt Regional Wastewater Project, to the W FKAA,which shall not exceed Thirty Seven Million Dollars($37,000,000.00). These funds include the Five Million Dollars ($5,000,000.00) already authorized under Resolution No. 199-2006, unless that amount is changed by amendment to this agreement. Municipal Service Taxing Unit ad valorem tax proceeds collected by County shall be provided to FKAA as part of the funding under this Agreement and shall be disbursed as described in Paragraph 3 below. Before such disbursement, County may deduct its cost of administration and professional costs from the MSTU funds collected. As the project progresses, and estimates are altered to reflect a combination of actual costs incurred and changes in pricing due to contracts resulting from bid processes, and other changed conditions, the FKAA shall provide such information to the County. This Agreement shall be modified as necessary to reflect such changes in estimates in order to provide for adequate funding to be available for Big Coppitt 3d Amend 1 Packet Pg.2491 . M.1.i the timely and efficient construction of the project.The amount of the funding may be changed by written amendment to this Agreement approved by the parties. 2. All other provisions of the ILA dated June 21, 2006, for the Big Coppitt Regional Wastewater System, as previously amended, not inconsistent herewith, shall remain in full force and effect. 3. This Third Amendment to Agreement shall take effect retroactively in order to reimburse for FKAA expenditures above the previously approved Thirty-Five Million Dollars($35,000,000). IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. W FKAA Board Approved: : 22/2010 FLORIDA KEYS AQU AUTHORITY BOARD OF COUNTY COMMISSIONERS KEY WEST,F OF MONROE COUNTY,FLORIDA C CD CL CL BY:J C.Rey) ,Exdtv�Director BY: oz Syl Murphy JUL 2 1 2010 DATE DAW ATTEST: ATTU N A LHA LERK BY: Q_ Cr� 7 :: a fo JUL 2 1 2010 DATE DATE APPROVED AS TO FORM APPROVED AS TO FORM BY: BY: �. Kink u h anne A.H tton FKAWjGKher Counsel Count,,Attorney Date: Date: = rn C ,- o =t M N o CM � c3 Big Coppitt 3d Amend 2 Packet Pg.2492 FIRST SUPPLEMENT TO LEASE AGREEMENT BY AND BETWEEN MONROE COUNTY, FLORIDA AND FLORIDA KEYS AQUEDUCT AUTHORITY [BIG COPPITT] This First Supplement("Supplement")to the Lease Agreement dated September 6, 2005, is made and entered into as of the day of March 2021, by and between Monroe County, Florida, a political subdivision of the State of Florida, as lessor ("Lessor" or "County"), and Florida Keys Aqueduct Authority, an independent special district, as lessee ("Lessee" or"FKAA") (hereinafter .� collectively, the"Parties"), as hereinafter set forth. 2 WITNESSETH: WHEREAS, the Lessor and Lessee entered into a certain Lease Agreement("Lease Agreement") dated as of September 6, 2005, as recorded in the Official Records of Monroe County; and 0 WHEREAS, the Lease Agreement stated that the system site and description of system would be attached as Exhibits A and B to the Lease Agreement, respectively, however, these exhibits were not attached to the Lease Agreement; and WHEREAS, the Lessor is the owner of that certain real property more particularly described in Exhibit A hereto and made a part hereof, consisting of four parcels (Parcel"A,"Parcel"B,"Parcel "C", and Parcel "D") collectively with RE# 00122070-000700 ("County Property"); and WHEREAS, within the County Property, FKAA has requested to use Parcel A, only, as a site for 0 operation of a wastewater treatment plant on Big Coppitt Key (the"System Site Parcel"); and WHEREAS, the Lessee intends to design, construct, equip and operate on the System Site parcel the Project as described on Exhibit B hereto, as a portion of the System, as that term is defined in the Lease Agreement; and LO cv WHEREAS, pursuant to paragraphs 2.1 and 9.1 of the Lease Agreement, the Parties desire to 0 revise the Lease Agreement to designate Parcel A, the System Site Parcel, as the subject property for the Big Coppitt portion of the wastewater system covered by the Lease Agreement, thereby E subjecting the System Site Parcel to the Lease Agreement. NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged by each party to the other party to the Lease Agreement and to this Supplement, the Parties hereto do hereby acknowledge and agree as follows: (1) The foregoing recitations are true and correct and are incorporated herein by reference. (2) The Site Survey and the Site Layout, attached hereto collectively as Exhibit A and Exhibit B respectively to this Supplement, are hereby declared to be the System Site for the purpose 1 Packet Pg. 2493 of the Big Coppitt portion of System, as those terms are both defined in the Lease Agreement, and part of the overall System Site for the System, again as those terms are defined in the Lease Agreement. (3) The System Site Parcel is hereby declared to be a part of the System (as defined in the Lease Agreement), constitutes a portion of the System,and therefore is a part of the System as set forth in the Lease Agreement, with the operation and effect of the Lease Agreement applying to the System Site Parcel as fully and to the same extent as if the System Site Parcel had been described in the Lease Agreement, including exhibits to the Lease Agreement. � (4) The Lease Agreement, as modified by this Supplement, hereby remains in full force and effect. c :m IN WITNESS WHEREOF, each of the Parties hereto has cause this Supplement to be executed by their duly authorized officers or agents, each of whom possesses the requisite corporate authority to enter into this Supplement, all as of the first day and year above written. U N (SEAL) X Attest: KEVIN MADOK, Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: By: As Deputy Clerk Mayor/Chairperson Date: Date: LO CD CD Attest: FLORIDA KEYS AQUEDUCT N c AUTHORITY By: By: m Title: Secretary Executive Director Date: Date: �. Approved as to form and content: Monroe County Attorney's Office Digitally signed by Cynthia L Hall DN:cn=Cynthia L.Hall,o=Monroe County BOCC,no,_ail=hall- 2 Cynthia@mo nroecou nty-fl.gov, c=US Date:2021.03.02 15-29-20-05'00' Packet Pg. 2494 U ❑ C7 a®l as a' fauna 44' Big) s4'q!gxa q4! 44!ddoo Bigas a ®4 4uauaa' n :4u9wgoe44 f 0 E- 3 w o� lo n o N zo Sao 3 N H a s O a a a } F O S F Q m o Q w _ ;a 7 a w X O O U) W w Y m 0 K O LL w o r y O � r +� o R �$ N wm m �w o J w � � (9 U U U ❑ C7 wn is2't,7.�mmiv<<e�e��oi,� pMfld 3115�J000EZS0l-3WtlN 311i 0bDEZ50l'0N 1�3f0yd oW�ue AB 03Atl.,15tl1 MAP OF BOUNDARY&TOPOGRAPHIC SURVEY Site Survey vey PARCELS A&B w PART GOI LOT 7 SECTION 21,TOWNSHIP 67 SOUTH,RANGE 26 EAST ROCKLAND KEY ygg MONROE COUNTY,FLORIDA NORTH ASSJMEDFROM Ncrrs a eourvos rvcr rreoal oLo LEGAL DESCRIPTION SCALE: 1"=30' roue+I,sIv'Ivrry aoo a car,woo ,.o n�ara �avNarr laa. wesr zaE.EI'(ol nnn®ur,cea-ou LESAL -FISIAL rcEc�r<os ao�u nv,aa.,E 1212 PARCEL A. enry Flc'rlb3(alutlrb oKeoemacn V�nono cb i L Aor :rucurx map cr plat PARCEL"D^ - _ _ encar"at"'"' of recoraanon) par ona Sala panel being mare ticvl rly evb=tl scrl as follaxs: - - -okendvllingtM1K ,Plvetcek A 1rpe[Plst c ubllc ds or rvo YdFlorllda; rvortn,aloe t-vie cerl ry mina 21.11 TE IT" frf g.(s) lard s n.salt publl ds f N. -Cou v, z r�� R vino 0 a m I I = polnt:jm:na East a distance of 173.11 LI I.A Polnc; 94 s PARCEL"::" N PAR[ELI ctl end 11'IIntY Ir.ao0 be n9lajpa eof Gcvernmen[w[l ao g'nning. 5 Pctlon v T—hI s odid K: _ounN.Rcrltic(aDo m be kncwn asgrr-sa of M1e anfumy map o�nplat - nter"at metlmeaf recr I-) untl s Id p I,l blny n ore particvlvrN des.rll-d os rok-:o r �crs oiiollry Io tn-eeutnr.est.arner I -ma or II=ntltl0 e� III I ub'R ) ter L I.. fl 4]'Le '" ^m Eo n fllI 589»3a E 11:ou'(1) pa 1 u E I\ e[ca o 0 rflae9 rn 9 eantcl g i- ♦ ( +I` PA CEL C&O NITA 1ETHIS-111 G * PAR EL D CRI IT ..* � y III III ranorrExo urrox a ex awe r re crs>inrvs rm J Id er () m=suxv m i 3 rxoreery rid I 'AR ITIIN' ♦ roanwl 'ETTIA nanE. x + + �o * JII Irv.,sn{.Er IIITH%IIIE�'ITIHHETRE`Ul w.L I c cis f � — z.o PAR EL A _ _ LomEa c nno wn c ",all Arran E o iwc co rvry rwnran f { } +9 m c wh / — _ l ry rrc a rIo 1Lr NENTI'NIT 1EI—ElN.1II IINITHEIE—EIs t"ice K saEre, "m,ry ro"�,"y rvrml sraE„arE„rEaraElr,Ervr EIEI rrvbr I AA II fs l* _ .I•. I "J II i X 4 �x5 n ❑ ❑ ) >< I 14"r y �. �f � ❑ �" }1 I " rt }• y ut ri w crva carc ,�.._orr.•r Pr 94736E 17'3�i�'(n) rvnrv, '�I ��ew��so. ROLKLAND AVENUE 000 ROCKLA IOI INI TOPPIa E0.5HIP ut xcruaos d -- CENErvr — PE LEGAL DESCRIPTION- GE RTI FIEDTO- n - A REECE&ASSOCIATES P RDEEss1DNAL suavEVDR a Iran warty """In aff rsEs� AND MAPPER,L61.11 - un evrs.arnr - .a...n " �r.r Il]Io ci. xr nmrrmv. .ov.mrvrm nox ar."" uSrR A jIIv - w EXHIBIT A Packet:Pg.24s6t