Item J1BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 5/15/13 - KL
Bulk Item: Yes X No
Division: En sneering & Pub Works/Coun , Attorney
Department: Wastewater
Staff Contacts: Kevin Wilson, 453-8797
Bob Shillinger, 292-3470
AGENDA ITEM WORDING: Approval of a resolution approving the form of a Clean Water State
Revolving Fund Construction Loan Agreement with the Florida Department of Environmental
Protection (FDEP); authorizing execution and delivery of such agreement; and authorizing the
institution of a bond validation proceeding with respect to the debt obligation to be incurred in
connection with the loan agreement to finance the Cudjoe Regional Wastewater Treatment project as
described in the Facilities Plan.
ITEM BACKGROUND: On 1/31/13, the FDEP issued an "authorization to incur costs" which allows
the County to seek SRF funds for work performed on the project as of that date. On 2/13/13, FDEP
allocated $40M in SRF loans (the FY13 maximum) to the County for the Cudjoe Regional central
wastewater treatment system. The estimated annual debt service for this amount is $2.4M. The
County prepared and submitted the loan application in early March 2013. On 3/20/13, the Board
adopted Resolution No. 095-2013 authorizing the loan application and carrying out required
responsibilities related to the loan agreement. On 4/17/13, the BOCC approved an agreement with
Nabors, Giblin and Nickerson, P.A. to provide services related to bond issues on behalf of the County.
The attached resolution approves the form of the Clean Water State Revolving Fund Construction
Loan Agreement with the FDEP and authorizes the initiation of a bond validation proceeding to
finance and move this project forward.
PREVIOUS RELEVANT BOCC ACTION:
4/17/13 BOCC approved a Professional Services Agreement with Nabors, Giblin and Nickerson, P.A.
as bond counsel
3/20/13 BOCC adopted Resolution No. 095-2013
7/15/2003 BOCC adopted Resolution No. 027-2003
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval
TOTAL COST: $2.4M annual for 20 yrs INDIRECT COST: BUDGETED: Yes X No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: SOURCE OF FUNDS: Assessments/Sales Tax
REVENUE PRODUCING: Yes — No X AMOUNT PER MONTH Year
APPROVED BY: County Atty Z�MB/Purchasing Risk Management
DOCUMENTATION: Included x Not Required _
DISPOSITION: AGENDA ITEM # J1 - Revised
only Exhibit A
13 May 2013
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
APPROVING THE FORM OF A CLEAN WATER STATE
REVOLVING FUND CONSTRUCTION LOAN AGREEMENT
WITH THE STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION; AUTHORIZING THE
EXECUTION AND DELIVERY OF SUCH AGREEMENT;
AUTHORIZING THE INSTITUTION OF A BOND VALIDATION
PROCEEDING WITH RESPECT TO THE DEBT OBLIGATION TO
BE INCURRED IN CONNECTION WITH THE LOAN
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, in order to improve the health, safety and welfare of the citizens of
Monroe County, Florida (the "County"), certain wastewater capital improvements must
be acquired, constructed and equipped within the Cudjoe Region, which encompasses the
area from Big Pine Key to Lower Sugarloaf Key, as generally described in the hereinafter
defined Loan Agreement and more particularly described in the plans and specifications
on file from time to time with the County (the "Project"); and
WHEREAS, pursuant to the State Revolving Fund loan program of the Florida
Department of Environmental Protection ("DEP"), the County may obtain low interest
loans in order to finance costs of the Project; and
WHEREAS, the Board finds the Project to be of paramount public importance
and deems it to be in the County's best interest to obtain a loan from DEP (the "Loan") in
order to finance costs of the Project; and
WHEREAS, the principal of and interest on the Loan and all required payments
required by the Loan Agreement shall be limited obligations of the County, secured by
and payable from the Pledged Revenues (as defined in the Loan Agreement), in the
manner provided in the Loan Agreement, and the Loan shall not constitute a general
obligation or a pledge of the faith, credit or taxing power of the County, the State of
Florida, or any political subdivision thereof, within the meaning of any constitutional or
statutory provisions and neither the State of Florida, nor any political subdivision thereof,
nor the County shall be obligated (1) to exercise its ad valorem taxing power in any form
on any real or personal property of or in the County to pay the principal of the Loan, the
interest thereon, or other costs incidental thereto or (2) to pay the same from any other
funds of the County except from the Pledged Revenues, in the manner provided in the
Loan Agreement; and
WHEREAS, because of the nature of the DEP loan program it is necessary and
desirable to procure the Loan directly from DEP by a negotiated sale in accordance with
the provisions hereof and of the Loan Agreement; now, therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
Section 1. Authorization of Loan
The County hereby authorizes obtaining the Loan from DEP in the
aggregate principal amount of not exceeding $90,000,000 for the
principal purpose of providing moneys to finance costs of the
Project. The actual aggregate principal amount of the Loan shall be
determined by the County Administrator provided such aggregate
principal amount does not exceed $90,000,000.
The Loan shall be dated as of the date it is incurred, or such other
date as the County Administrator may determine, and shall bear
interest from its dated date at a fixed interest rate per annum to be
determined through negotiations with DEP and set forth in the Loan
Agreement; provided, however, such interest rate shall not exceed
4.00% per annum or the maximum rate allowed under Florida law,
whichever is lower. Interest and principal on the Loan shall be
payable on the dates and in the amounts provided in the Loan
Agreement; provided, however, no payments of principal or interest
shall be payable more than thirty (30) years from the date of the
Loan. The County Administrator shall determine all of the other
terms and details of the Loan which shall be set forth or provided for
in the Loan Agreement, upon the advice of the County Attorney, the
County's Financial Advisor, Public Financial Management, Inc., and
the County's Bond Counsel, Nabors, Giblin & Nickerson, PA. The
2
Loan shall be governed by the terms and provisions of the Loan
Agreement.
Section 2. Approval of Loan Agreement
The terms and provisions of the Clean Water State Revolving Fund
Construction Loan Agreement (the "Loan Agreement"), in
substantially the form attached hereto as Exhibit A, are hereby
approved, with such changes, insertions and additions as the County
Administrator may approve. The County hereby authorizes the
Mayor (or in his absence or unavailability the Mayor Pro Tem) to
execute and deliver, and the Clerk (or Deputy Clerk) to attest, the
Loan Agreement substantially in the form attached hereto as Exhibit
A, with such changes, insertions and additions as the County
Administrator may approve, the execution thereof by the Mayor and
the Clerk being evidence of such approval.
Section 3. Validation
The County Attorney, with the assistance of the County's Bond
Counsel, is authorized and directed to institute appropriate
proceedings for validation of the Loan herein authorized pursuant to
Chapter 75, Florida Statutes.
Section 4. General Authority
The Mayor, the County Administrator, the Clerk, the County
Attorney, and the other officers, attorneys and other agents or
employees of the County are hereby authorized to do all acts and
things required of them by this resolution and the Loan Agreement
or desirable or consistent with the requirements hereof or of the
Loan Agreement for the full punctual and complete performance of
all the terms, covenants and agreements contained herein or in the
Loan Agreement and each member, employee, attorney and officer
of the County is hereby authorized and directed to execute and
deliver any and all papers and instruments and to be and cause to be
done any and all acts and things necessary or proper for carrying out
the transactions contemplated hereunder.
Section 5. Severability and Invalid Provisions
If any one or more of the covenants, agreements or provisions herein
contained shall be held contrary to any express provision of law or
contrary to the policy of express law, though not expressly
prohibited or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements or
provisions shall be null and void and shall be deemed separable from
the remaining covenants, agreements or provisions and shall in no
way affect the validity of any of the other provisions hereof or of the
Loan.
Section 6. Effective Date
This Resolution shall become effective upon its adoption.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 15th day of May, 2013.
Mayor George Neugent
Mayor Pro Tern Heather Carruthers
Commissioner Danny Kolhage
Commissioner David Rice
Commissioner Sylvia Murphy
(Seal)
Attest: AMY HEAVILIN, Clerk
By:
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
4
By:
Mayor
EXHIBIT A
FORM OF LOAN AGREEMENT
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
AND
MONROE COUNTY, FLORIDA
CLEAN WATER STATE REVOLVING FUND
CONSTRUCTION LOAN AGREEMENT
WW440710
Florida Department of Environmental Protection
State Revolving Fund
Bob Martinez Center
2600 Blair Stone Road, MS 3505
Tallahassee, Florida 32399-2400
ARTICLE I - DEFINITIONS
1.01. WORDS AND TERMS.
1.02. CORRELATIVE WORDS.
ARTICLE II - WARRANTIES, REPRESENTATIONS AND COVENANTS 4
2.01. WARRANTIES, REPRESENTATIONS AND COVENANTS. 4
2.02. LEGAL AUTHORIZATION. 5
2.03. AUDIT AND MONITORING REQUIREMENTS. 6
ARTICLE III - LOAN REPAYMENT ACCOUNT 9
3.01. LOAN DEBT SERVICE ACCOUNT. 9
3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS. 9
3.03. LOAN DEBT SERVICE ACCOUNT WITHDRAWALS. 10
3.04. ASSETS HELD IN TRUST. 10
ARTICLE IV - PROJECT INFORMATION
10
4.01. PROJECT CHANGES.
10
4.02. TITLE TO PROJECT SITE.
10
4.03. PERMITS AND APPROVALS.
10
4.04. ENGINEERING SERVICES.
10
4.05. PROHIBITION AGAINST ENCUMBRANCES.
10
4.06. COMPLETION MONEYS.
11
4.07. CLOSE-OUT.
11
4.08. LOAN DISBURSEMENTS.
11
ARTICLE V - RATES AND USE OF THE PROJECT 12
5.01. RATE COVERAGE. 12
5.02. RECEIPT OF INFRASTRUCTURE SALES TAX REVENUES. 12
5.03. ENFORCEMENT OF PAYMENT OF SPECIAL ASSESSMENT PROCEEDS. 12
5.04. NO FREE SERVICE. 12
5.05. MANDATORY CONNECTIONS. 13
5.06. NO COMPETING SERVICE. 13
5.07. MAINTENANCE OF THE PROJECT. 13
5.08. ADDITIONS AND MODIFICATIONS. 13
ARTICLE VI - DEFAULTS AND REMEDIES 13
6.01. EVENTS OF DEFAULT. 13
6.02. REMEDIES. 14
6.03. DELAY AND WAIVER. 15
ARTICLE VII - THE PLEDGED REVENUES 15
7.01. SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT. 15
7.02. ADDITIONAL DEBT OBLIGATIONS. 15
ARTICLE VIII - GENERAL PROVISIONS
16
8.01. DISCHARGE OF OBLIGATIONS.
16
8.02. PROJECT RECORDS AND STATEMENTS.
16
8.03. ACCESS TO PROJECT SITE.
16
8.04. ASSIGNMENT OF RIGHTS UNDER AGREEMENT.
16
8.05. AMENDMENT OF AGREEMENT.
16
8.06. ANNULMENT OF AGREEMENT.
8.07. SEVERABILITY CLAUSE.
8.08. USE AS MATCHING FUNDS.
8.09. COMPLIANCE VERIFICATION.
ARTICLE IX - CONSTRUCTION CONTRACTS AND INSURANCE
9.01. AUTHORIZATION TO AWARD CONSTRUCTION CONTRACTS.
9.02. SUBMITTAL OF CONSTRUCTION CONTRACT DOCUMENTS.
9.03. INSURANCE REQUIRED.
ARTICLE X - DETAILS OF FINANCING
10.01. PRINCIPAL AMOUNT OF LOAN.
10.02. LOAN SERVICE FEE.
10.03. FINANCING RATE.
10.04. LOAN TERM.
10.05. REPAYMENT SCHEDULE.
10.06. PROJECT COSTS.
10.07. SCHEDULE.
ARTICLE XI - EXECUTION OF AGREEMENT
17
17
17
17
18
18
18
18
19
19
19
19
20
20
20
21
22
in
CLEAN WATER STATE REVOLVING FUND CONSTRUCTION LOAN AGREEMENT
WW440710
THIS AGREEMENT is executed by the STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION (Department) and MONROE COUNTY, FLORIDA,
(Local Government) existing as a political subdivision of the State of Florida.
WITNESSETH:
WHEREAS, pursuant to Section 403.1835, Florida Statutes, the Department is authorized to
make loans to local government agencies to finance or refinance the construction of wastewater
pollution control facilities, the planning and design of which have been reviewed by the
Department; and
WHEREAS, funding is provided from the State Revolving Fund program repayments and
interest, which are Federally protected but which are subject to state audit requirements; and
WHEREAS, the Local Government has made application for the financing of the herein defined
Project, and the Department has determined that such Project meets all requirements for a loan.
NOW, THEREFORE, in consideration of the Department loaning money to the Local
Government, in the principal amount and pursuant to the covenants hereinafter set forth, it is
agreed as follows:
ARTICLE I - DEFINITIONS
1.01. WORDS AND TERMS.
Words and terms used herein shall have the meanings set forth below:
(1) "Agreement" or "Loan Agreement" shall mean this construction loan agreement.
(2) "Authorized Representative" shall mean the official of the Local Government
authorized by ordinance or resolution to sign documents associated with the Loan.
(3) "Capitalized Interest" shall mean a finance charge that accrues at the Financing Rate
on Loan proceeds from the time of disbursement until six months before the first Semiannual
Loan Payment is due. Capitalized Interest is financed as part of the Loan principal.
(4) "Depository" shall mean a bank or trust company, having a combined capital and
unimpaired surplus of not less than $50 million, authorized to transact commercial banking or
savings and loan business in the State of Florida and insured by the Federal Deposit Insurance
Corporation.
(5) "Financing Rate" shall mean the charges, expressed as a percent per annum, imposed
on the unpaid principal of the Loan. The Financing Rate shall consist of an interest rate
component and a Grant Allocation Assessment rate component.
(6) "Grant Allocation Assessment" shall mean an assessment, expressed as a percent per
annum, accruing on the unpaid balance of the Loan. It is computed similarly to the way interest
charged on the Loan is computed and is included in the Semiannual Loan Payment. The
Department will use Grant Allocation Assessment moneys for making grants to financially
disadvantaged small communities pursuant to Section 403.1835 of the Florida Statutes.
(7) "Infrastructure Sales Surtax Revenues" shall mean the proceeds received by the
Local Government from the levy of the one cent local government infrastructure sales pursuant
to Section 212.055(2), Florida Statutes and other applicable provisions of law, after the
satisfaction of all annual payment obligations with respect to the Senior Revenue Obligations
and any other senior obligations issued pursuant to Section 7.02 of this Agreement.
(8) "Loan" shall mean the amount of money to be loaned pursuant to this Agreement
and subsequent amendments.
(9) "Loan Application" shall mean the completed form which provides all information
required to support obtaining construction loan financial assistance.
(10) "Loan Debt Service Account" shall mean an account, or a separately identified
component of a pooled cash or liquid account, with a Depository established by the Local
Government for the purpose of accumulating Monthly Loan Deposits and making Semiannual
Loan Payments.
(11) "Loan Service Fee" shall mean an origination fee which shall be paid to the
Department by the Local Government.
(12) "Monthly Loan Deposit" shall mean the monthly deposit to be made by the Local
Government to the Loan Debt Service Account.
(13) "Pledged Revenues" shall mean the specific revenues pledged as security for
repayment of the Loan and shall be: (a) the Infrastructure Sales Surtax Revenues, and (b) the
Special Assessment Proceeds.
(14) "Project" shall mean the capital improvements financed by this Loan and shall
consist of furnishing all labor, materials, and equipment to construct the collection, transmission
and treatment facilities in accordance with the plans and specifications accepted by the
Department for the following contracts:
(a) "Cudjoe Key Advanced Water Reclamation Facility"; and
(b) "Cudjoe Regional Wastewater Inner Islands Collection & Transmission System; and
(c) "Cudjoe Regional Wastewater Collection System for Outer Islands".
The Project is in agreement with the planning documentation accepted by the Department
effective January 31, 2013. A Florida Finding of No Significant Impact was published on
April 29, 2011 and no adverse comments were received.
(15) "Semiannual Loan Payment" shall mean the payment due from the Local
Government to the Department at six-month intervals.
(16) "Senior Revenue Obligations" shall mean the following debt obligations:
(a) Monroe County, Florida, Infrastructure Sales Surtax Revenue Bonds, Series 2003,
issued in the original principal amount of $21,455,000, pursuant to the Senior Revenue
Obligation Resolution; and
(b) Monroe County, Florida, Infrastructure Sales Surtax Revenue Bonds, Series 2007,
issued in the original principal amount of $29,415,000, pursuant to the Senior Revenue
Obligation Resolution; and
(c) Additional Bonds (as defined in the Senior Revenue Obligation Resolution) issued
pursuant to Section 5.02 of the Senior Revenue Obligation Resolution; and
(d) Any refunding bonds issued to refund the obligations identified above provided such
bonds shall not increase annual debt service during the repayment period of this Loan.
(17) "Senior Revenue Obligation Resolution" shall mean Resolution No. 077-2003 of the
Local Government adopted on February 19, 2003, as amended and supplemented, and as the
same may be further amended and supplemented from time to time.
(18) "Special Assessments" shall mean the special assessments lawfully levied by the
Local Government in accordance with the Special Assessment Legislation against properties
specially benefited by the acquisition and construction of the Project.
(19) "Special Assessment Legislation" shall mean, collectively, Ordinance No. 027-2003
of the Local Government adopted on July 15, 2003, as amended and supplemented from time to
time, Resolution No. 173-2012 of the Local Government adopted on June 20, 2012, Resolution
No. 174-2012 of the Local Government adopted on June 20, 2012, Resolution No. 197-2012 of
the Local Government adopted on July 18, 2012, and Resolution 198-2012 of the Local
Government adopted on July 18, 2012, as the same may be amended and supplemented from
time to time.
(20) "Special Assessment Proceeds" shall mean the proceeds of the Special Assessments
lawfully collected by the Local Government, including the interest and penalties on such Special
Local Government Assessments. Special Assessment Proceeds shall include moneys lawfully
received by the Local Government on account of collection of any delinquent Special
Assessments and any prepayments of Special Assessments.
1.02. CORRELATIVE WORDS.
Words of the masculine gender shall be understood to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall
include the plural and the word "person" shall include corporations and associations, including
public bodies, as well as natural persons.
ARTICLE II - WARRANTIES, REPRESENTATIONS AND COVENANTS
2.01. WARRANTIES, REPRESENTATIONS AND COVENANTS.
The Local Government warrants, represents and covenants that:
(1) The Local Government has full power and authority to enter into this Agreement and
to comply with the provisions hereof.
(2) The Local Government currently is not the subject of bankruptcy, insolvency, or
reorganization proceedings and is not in default of, or otherwise subject to, any agreement or any
law, administrative regulation, judgment, decree, note, resolution, charter or ordinance which
would currently restrain or enjoin it from entering into, or complying with, this Agreement.
(3) There is no material action, suit, proceeding, inquiry or investigation, at law or in
equity, before any court or public body, pending or, to the best of the Local Government's
knowledge, threatened, which seeks to restrain or enjoin the Local Government from entering
into or complying with this Agreement.
(4) All permits, real property interests, and approvals required as of the date of this
Agreement have been obtained for construction and use of the Project. The Local Government
knows of no reason why any future required permits or approvals are not obtainable.
(5) The Local Government shall undertake the Project on its own responsibility, to the
extent permitted by law.
(6) To the extent permitted by law, the Local Government shall release and hold
harmless the State, its officers, members, and employees from any claim arising in connection
with the Local Government's actions or omissions in its planning, engineering, administrative,
and construction activities financed by this Loan or its operation of the Project.
(7) All Local Government representations to the Department, pursuant to the Loan
Application and Agreement, were true and accurate as of the date such representations were
made. The financial information delivered by the Local Government to the Department was
current and correct as of the date such information was delivered. The Local Government shall
comply with Chapter 62-503, Florida Administrative Code, and all applicable State and Federal
laws, rules, and regulations which are identified in the Loan Application or Agreement. To the
extent that any assurance, representation, or covenant requires a future action, the Local
Government shall take such action as is necessary for compliance.
(8) The Local Government shall maintain records using generally accepted accounting
principles established by the Governmental Accounting Standards Board. As part of its
bookkeeping system, the Local Government shall keep accounts of the Project separate from all
other accounts and it shall keep accurate records of all revenues, expenses, and expenditures
relating to the Project, and of the Pledged Revenues, Loan disbursement receipts, and Loan Debt
Service Account.
(9) In the event the anticipated Pledged Revenues are shown by the Local Government's
annual budget to be insufficient to make the Semiannual Loan Payments for such Fiscal Year
when due, the Local Government shall include in such budget other legally available non -ad
valorem funds which will be sufficient, together with the Pledged Revenues, to make the
Semiannual Loan Payments. Such other legally available non -ad valorem funds shall be
budgeted in the regular annual governmental budget and designated for the purpose provided by
this Subsection, and the Local Government shall collect such funds for application as provided
herein. The Local Government shall notify the Department immediately in writing of any such
budgeting of other legally available non -ad valorem funds. Nothing in this covenant shall be
construed as creating a pledge, lien, or charge upon any such other legally available non -ad
valorem funds; requiring the Local Government to levy or appropriate ad valorem tax revenues;
or preventing the Local Government from pledging to the payment of any bonds or other
obligations all or any part of such other legally available non -ad valorem funds.
(10) Each year, beginning three months before the first Semiannual Loan Payment and
ending with the year during which the final Loan repayment is made, the Local Government's
Authorized Representative or its chief financial officer shall submit, pursuant to the schedule
established in Section 10.07, a certification that: (a) Pledged Revenue collections satisfy, on a
pro rata basis, the rate coverage requirement; (b) the Loan Debt Service Account contains the
funds required; and (c) insurance, including that issued through the National Flood Insurance
Program authorized under 42 U.S.C. secs. 4001-4128 when applicable, in effect for the facilities
generating the Pledged Revenues, adequately covers the customary risks to the extent that such
insurance is available.
(11) Pursuant to Section 216.347 of the Florida Statutes, the Local Government shall not
use the Loan proceeds for the purpose of lobbying the Florida Legislature, the Judicial Branch,
or a State agency.
(12)The Local Government agrees to construct the Project in accordance with the Project
schedule. Delays incident to strikes, riots, acts of God, and other events beyond the reasonable
control of the Local Government are excepted. If for any reason construction is not completed as
scheduled, there shall be no resulting diminution or delay in the Semiannual Loan Payment or
the Monthly Loan Deposit.
(13)The Local Government covenants that this Agreement is entered into for the purpose
of financing or refinancing costs of the acquisition, construction and acquisition of the Project
which will in all events serve a public purpose. The Local Government covenants that it will,
under all conditions, complete and operate the Project to fulfill the public need.
2.02. LEGAL AUTHORIZATION.
Upon signing this Agreement, the Local Government's legal counsel hereby expresses
the opinion, subject to laws affecting the rights of creditors generally, that:
(1) This Agreement has been duly authorized by the Local Government and shall
constitute a valid and legal obligation of the Local Government enforceable in accordance with
its terms upon execution by both parties; and
(2) This Agreement specifies the revenues pledged for repayment of the Loan, and the
pledge is valid and enforceable.
2.03. AUDIT AND MONITORING REQUIREMENTS.
The Local Government agrees to the following audit and monitoring requirements.
Funds provided under this Agreement have been identified as second -tier monies under
the Federal Clean Water Act which are identified as state funds whose use is federally protected.
(1) The financial assistance authorized pursuant to this Loan Agreement consists of the
following:
State Resources Awarded to the Local Government Pursuant to this Agreement Consist of the
Following Resources Subject to Section 215.97, F.S.:
State
CSFA Title or
State
Program
CSFA
Fund Source
Funding
Appropriation
Number
Funding Source
Number
Description
Amount
Category
Original
Wastewater
37.077
Statewide Surface
$40,000,000
140131
Agreement
Treatment and
Water Restoration
Stormwater
and Wastewater
Management TF
Projects
(2) Audits.
(a) In the event that the Local Government expends a total amount of state financial
assistance equal to or in excess of $500,000 in any fiscal year of such Local Government, the
Local Government must have a State single or project -specific audit for such fiscal year in
accordance with Section 215.97, Florida Statutes; applicable rules of the Department of Financial
Services; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit
organizations), Rules of the Auditor General. In determining the state financial assistance
expended in its fiscal year, the Local Government shall consider all sources of state financial
assistance, including state financial assistance received from the Department of Environmental
Protection, other state agencies, and other nonstate entities. State financial assistance does not
include Federal direct or pass -through awards and resources received by a nonstate entity for
Federal program matching requirements.
(b) In connection with the audit requirements addressed in the preceding paragraph (a);
the Local Government shall ensure that the audit complies with the requirements of Section
215.97(7), Florida Statutes. This includes submission of a financial reporting package as defined
by Section 215.97(2), Florida Statutes, and Chapters 10.550 (local governmental entities) or
10.650 (nonprofit and for -profit organizations), Rules of the Auditor General.
(c) If the Local Government expends less than $500,000 in state financial assistance in its
fiscal year, an audit conducted in accordance with the provisions of Section 215.97, Florida
Statutes, is not required. The Local Government shall inform the Department of findings and
recommendations pertaining to the State Revolving Fund in audits conducted by the Local
Government in which the $500,000 threshold has not been met. In the event that the Local
Government expends less than $500,000 in state financial assistance in its fiscal year, and elects
to have an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes,
the cost of the audit must be paid from the non -state entity's resources (i.e., the cost of such an
audit must be paid from the Local Government's resources obtained from other than State
entities).
(d) For information regarding the Florida Catalog of State Financial Assistance (CSFA),
a Local Government should access the Florida Single Audit Act website located at
https:Happs.fldfs.com/fsaa for assistance. In addition to the above websites, the following
websites may be accessed for information: Legislature's Website at
http://www.leg.state.fl.us/Welcome/index.cfin, State of Florida's website at
http://www.myflorida.com/, Department of Financial Services' Website at http://www.fldfs.com/
and the Auditor General's Website at http://www.state.fl.us/audgen.
(3) Report Submission.
(a) Copies of financial reporting packages shall be submitted by or on behalf of the
Local Government directly to each of the following:
(i) The Department at the following address:
Valerie Peacock, Audit Director
Office of the Inspector General
Florida Department of Environmental Protection
3900 Commonwealth Boulevard, MS 41
Tallahassee, Florida 32399-3123
(ii) The Auditor General's Office at the following address:
State of Florida Auditor General
Room 401, Claude Pepper Building
111 West Madison Street
Tallahassee, Florida 32399-1450
(iii) Copies of reports or management letters shall be submitted by or on behalf of the
Local Government directly to the Department of Environmental Protection at the
following address:
Valerie Peacock, Audit Director
Office of the Inspector General
Florida Department of Environmental Protection
3900 Commonwealth Boulevard, MS 41
Tallahassee, Florida 32399-3123
(b) Any reports, management letters, or other information required to be submitted to the
Department pursuant to this Agreement shall be submitted timely in accordance with Florida
Statutes, or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit
organizations), Rules of the Auditor General, as applicable.
(c) Local Governments, when submitting financial reporting packages to the Department
for audits done in accordance with Chapters 10.550 (local governmental entities) or 10.650
(nonprofit and for -profit organizations), Rules of the Auditor General, should indicate the date
that the reporting package was delivered to the Local Government in correspondence
accompanying the reporting package.
4. Project -Specific Audit.
Within 12 months after the amendment establishing final Project costs, the Local
Government shall submit to the Department a Project -specific audit report for the Loan related
revenues and expenditures. The audit shall address Loan disbursements received, Project
expenditures, and compliance with Loan Agreement covenants. The Local Government shall
cause the auditor to notify the Department immediately if anything comes to the auditor's
attention during the examination of records that would constitute a default under the Loan
Agreement. The audit findings shall set aside or question any costs that are unallowable under
Chapter 62-503, Florida Administrative Code. A final determination of whether such costs are
allowed shall be made by the Department.
5. Record Retention.
The Local Government shall retain sufficient records demonstrating its compliance with
the terms of this Agreement for a period of five years from the date the audit report is issued, and
shall allow the Department, or its designee, Chief Financial Officer, or Auditor General access to
such records upon request. The Local Government shall ensure that audit working papers are
made available to the Department, or its designee, Chief Financial Officer, or Auditor General
upon request for a period of five years from the date the audit report is issued, unless extended in
writing by the Department.
The Local Government is hereby advised that the Florida Single Audit Act Requirements
may further apply to lower tier transactions that may be a result of this Agreement.
The Local Government should confer with its chief financial officer, audit director or
contact the Department for assistance with questions pertaining to the applicability of these
requirements.
In addition, the Local Government agrees to complete and submit the Certification of
Applicability to Single Audit Act Reporting, Attachment A, attached hereto and made a part
hereof, within four (4) months following the end of the Local Government's fiscal year.
Attachment A should be submitted to the Department's Grants Development and Review
Manager at 3900 Commonwealth Boulevard, Mail Station 93, Tallahassee, Florida 32399-3000.
The Grants Development and Review Manager is available to answer any questions at
(850) 245-2361.
6. Monitoring.
In addition to reviews of audits conducted in accordance with Section 215.97, F.S., as
revised monitoring procedures may include, but not be limited to, on -site visits by Department
staff and/or other procedures. By entering into this Agreement, the Local Government agrees to
comply and cooperate with any monitoring procedures/processes deemed appropriate by the
Department of Environmental Protection. In the event the Department of Environmental
Protection determines that a limited scope audit of the Local Government is appropriate, the
Local Government agrees to comply with any additional instructions provided by the Department
to the Local Government regarding such audit. The Local Government further agrees to comply
and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the
Chief Financial Officer or Auditor General.
ARTICLE III - LOAN REPAYMENT ACCOUNT
3.01. LOAN DEBT SERVICE ACCOUNT.
The Local Government shall establish a Loan Debt Service Account with a Depository
and begin making Monthly Loan Deposits no later than the date set forth for such action in
Section 10.07 of this Agreement.
Beginning six months prior to each Semiannual Loan Payment, the Local Government
shall make six Monthly Loan Deposits. The first five deposits each shall be at least equal to one -
sixth of the Semiannual Loan Payment. The sixth Monthly Loan Deposit shall be at least equal
to the amount required to make the total on deposit in the Loan Debt Service Account equal to
the Semiannual Loan Payment amount, taking into consideration investment earnings credited to
the account pursuant to Section 3.02.
Any month in which the Local Government fails to make a required Monthly Loan
Deposit, the Local Government's chief financial officer shall notify the Department of such
failure. In addition, the Local Government agrees to budget, by amendment if necessary,
payment to the Department from other legally available non -ad valorem funds all sums
becoming due before the same become delinquent. This requirement shall not be construed to
give superiority to the Department's claim on any revenues over prior claims of general creditors
of the Local Government, nor shall it be construed to give the Department the power to require
the Local Government to levy and collect any revenues other than Pledged Revenues.
3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS.
Moneys on deposit in the Loan Debt Service Account shall be invested pursuant to the
laws of the State of Florida. Such moneys may be pooled for investment purposes. The maturity
or redemption date of investments shall be not later than the date upon which such moneys may
be needed to make Semiannual Loan Payments. The investment earnings shall be credited to the
Loan Debt Service Account and applied toward the Monthly Loan Deposit requirements.
3.03. LOAN DEBT SERVICE ACCOUNT WITHDRAWALS.
The withdrawal of moneys from the Loan Debt Service Account shall be for the sole
purpose of making the Semiannual Loan Payment or for discharging the Local Government's
obligations pursuant to Section 8.01.
3.04. ASSETS HELD IN TRUST.
The assets in all accounts created under this Loan Agreement shall be held in trust for the
purposes provided herein and used only for the purposes and in the manner prescribed in this
Agreement; and, pending such use, said assets shall be subject to a lien and charge in favor of the
Department.
ARTICLE IV - PROJECT INFORMATION
4.01. PROJECT CHANGES.
Project changes prior to bid opening shall be made by addendum to plans and
specifications. Changes after bid opening shall be made by change order. The Local
Government shall submit all addenda and all change orders to the Department for an eligibility
determination. After execution of all construction, equipment and materials contracts, the
Project contingency may be reduced.
4.02. TITLE TO PROJECT SITE.
The Local Government shall have an interest in real property sufficient for the
construction and location of the Project free and clear of liens and encumbrances which would
impair the usefulness of such sites for the intended use.
4.03. PERMITS AND APPROVALS.
The Local Government shall have obtained, prior to the Department's authorization to
award construction contracts, all permits and approvals required for construction of the Project or
portion of the Project funded under this Agreement.
4.04. ENGINEERING SERVICES.
A professional engineer, registered in the State of Florida, shall be employed by, or under
contract with, the Local Government to oversee construction.
4.05. PROHIBITION AGAINST ENCUMBRANCES.
Other than the existing lease between the Local Government and the Florida Keys
Aqueduct Authority, the Local Government is prohibited from selling, leasing, or disposing of
any part of the Project which would materially reduce operational integrity so long as this
Agreement, including any amendment thereto, is in effect unless the written consent of the
Department is first secured.
10
4.06. COMPLETION MONEYS.
In addition to the proceeds of this Loan, the Local Government covenants that it has
obtained, or will obtain, sufficient moneys from other sources to complete construction and place
the Project in operation on, or prior to, the date specified in Article X. Failure of the Department
to approve additional financing shall not constitute a waiver of the Local Government's
covenants to complete and place the Project in operation.
4.07. CLOSE-OUT.
The Department shall conduct a final inspection of the Project and Project records.
Following the inspection, deadlines for submitting additional disbursement requests, if any, shall
be established, along with deadlines for uncompleted Loan requirements, if any. Deadlines shall
be incorporated into the Loan Agreement by amendment. The Loan principal shall be reduced
by any excess over the amount required to pay all approved costs. As a result of such
adjustment, the Semiannual Loan Payment shall be reduced accordingly, as addressed in
Section 10.05.
4.08. LOAN DISBURSEMENTS.
Disbursements shall be made only by the State Chief Financial Officer and only when the
requests for such disbursements are accompanied by a Department certification that such
withdrawals are proper expenditures. Disbursements shall be made directly to the Local
Government for allowance costs and reimbursement of the incurred construction costs and
related services. Disbursement of the allowance costs shall be made upon the Department's
receipt of a disbursement request form. Up to seventy percent of the estimated allowance shall
be disbursed after the Loan Agreement is signed. The remainder of the allowance shall be
disbursed after all procurement contracts are executed and shall be adjusted to reflect as -bid
costs. The entire estimated allowance may be disbursed after the Loan Agreement is signed if the
local government agrees to an allowance adjustment after all contracts have been bid.
Disbursements for materials, labor, or services shall be made upon receipt of the following:
(1) A completed disbursement request form signed by the Authorized Representative.
Such requests must be accompanied by sufficiently itemized summaries of the materials, labor,
or services to identify the nature of the work performed; the cost or charges for such work; and
the person providing the service or performing the work.
(2) A certification signed by the Authorized Representative as to the current estimated
costs of the Project; that the materials, labor, or services represented by the invoice have been
satisfactorily purchased, performed, or received and applied to the project; that all funds received
to date have been applied toward completing the Project; and that under the terms and provisions
of the contracts, the Local Government is required to make such payments.
(3) A certification by the engineer responsible for overseeing construction stating that
equipment, materials, labor and services represented by the construction invoices have been
satisfactorily purchased, or received, and applied to the Project in accordance with construction
contract documents; stating that payment is in accordance with construction contract provisions;
stating that construction, up to the point of the requisition, is in compliance with the contract
11
documents; and identifying all additions or deletions to the Project which have altered the
Project's performance standards, scope, or purpose since the issue of the Department
construction permit.
(4) Such other certificates or documents by engineers, attorneys, accountants,
contractors, or suppliers as may reasonably be required by the Department.
ARTICLE V - RATES AND USE OF THE PROJECT
5.01. RATE COVERAGE.
Pledged Revenues shall equal or exceed 1.15 times the sum of the Semiannual Loan
Payments due in each Fiscal Year. In addition, the Local Government shall satisfy the coverage
requirements of all Senior Revenue Obligations and parity debt obligations.
5.02. RECEIPT OF INFRASTRUCTURE SALES TAX REVENUES
The Local Government covenants to do all things necessary or required on its part by
applicable Florida law or otherwise to maintain the levy and receipt of the Infrastructure Sales
Surtax Revenues. The Local Government shall exercise all legally available remedies to enforce
such levy, collection and receipt now or hereafter available under law. The Local Government
will not take any action, including amending or supplementing the ordinance authorizing and
allowing for the levy and collection of the Infrastructure Sales Surtax Revenues, or enter into any
agreement that shall result in reducing the level of Infrastructure Sales Surtax Revenues received
by the Local Government from that level prevailing at the time the Local Government takes such
action or enters into such agreement.
5.03. ENFORCEMENT OF PAYMENT OF SPECIAL ASSESSMENT PROCEEDS.
The Local Government will receive, collect and enforce the payment of Special
Assessment Proceeds in the manner prescribed by this Agreement and the Special Assessment
Legislation and all other resolutions, ordinances or laws appertaining thereunto, and will pay and
deposit the Special Assessment Proceeds into the Loan Debt Service Account in accordance with
Section 3.01 hereof. Absent a default or delinquency in the payment of any Special Assessment,
nothing herein shall require the prepayment of any installment due on a Special Assessment prior
to its due date, except as otherwise provided by the Special Assessment Legislation. Special
Assessments will be levied to the full extent permitted by law and the Special Assessment
Legislation. The Local Government shall cause the Special Assessment Proceeds to be collected
pursuant to the Uniform Assessment Collection Act (as defined in the Special Assessment
Legislation) and shall not change or allow a change in such method of collection without the
prior written consent of the Department.
5.04. NO FREE SERVICE.
The Local Government shall not permit connections to, or furnish any services afforded
by the Project without making a charge therefore based on the Local Government's uniform
schedule of rates, fees, and charges.
12
5.05. MANDATORY CONNECTIONS.
The Local Government shall adopt, as necessary, and enforce requirements, consistent
with applicable laws, for the owner, tenant or occupant of each building located on a lot or parcel
of land which is served, or may reasonably be served, by the Project to connect such building to
the Project.
5.06. NO COMPETING SERVICE.
The Local Government shall not allow any person to provide any services which would
compete with the Project.
5.07. MAINTENANCE OF THE PROJECT.
The Local Government shall, or cause the Florida Keys Aqueduct Authority to, operate
and maintain the Project in a proper, sound and economical manner and shall make all necessary
repairs, renewals and replacements.
5.08. ADDITIONS AND MODIFICATIONS.
The Local Government may make any additions, modifications or improvements to the
Project which it deems desirable and which do not materially reduce the operational integrity of
any part of the Project. All such renewals, replacements, additions, modifications and
improvements shall become part of the Project.
ARTICLE VI - DEFAULTS AND REMEDIES
6.01. EVENTS OF DEFAULT.
Each of the following events is hereby declared an event of default:
(1) Failure to make any Monthly Loan Deposit or to make any installment of the
Semiannual Loan Payment when it is due and such failure shall continue for a period of 30 days.
(2) Except as provided in Subsections 6.01(1) and 6.01(7), failure to comply with the
provisions of this Agreement or failure in the performance or observance of any of the covenants
or actions required by this Agreement and such failure shall continue for a period of 60 days
after written notice thereof to the Local Government by the Department.
(3) Any warranty, representation or other statement by, or on behalf of, the Local
Government contained in this Agreement or in any information furnished in compliance with, or
in reference to, this Agreement, which is false or misleading.
(4) An order or decree entered, with the acquiescence of the Local Government,
appointing a receiver of any part of the Project or Pledged Revenues; or if such order or decree,
having been entered without the consent or acquiescence of the Local Government, shall not be
vacated or discharged or stayed on appeal within 60 days after the entry thereof.
13
(5) Any proceeding instituted, with the acquiescence of the Local Government, for the
purpose of effecting a composition between the Local Government and its creditors or for the
purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now or
hereafter enacted, if the claims of such creditors are payable from Pledged Revenues of the
Project.
(6) Any bankruptcy, insolvency or other similar proceeding instituted by, or against, the
Local Government under federal or state bankruptcy or insolvency law now or hereafter in effect
and, if instituted against the Local Government, is not dismissed within 60 days after filing.
(7) Failure of the Local Government to give immediate written notice of default to the
Department and such failure shall continue for a period of 30 days.
6.02. REMEDIES.
Upon any event of default and subject to the rights of others having prior liens on the
Pledged Revenues, the Department may enforce its rights by any of the following remedies:
(1) By mandamus or other proceeding at law or in equity, cause the collection of
Pledged Revenues, and to require the Local Government to fulfill this Agreement.
(2) By action or suit in equity, require the Local Government to account for all moneys
received from the Department or from the ownership of the Project and to account for the
receipt, use, application, or disposition of the Pledged Revenues.
(3) By action or suit in equity, enjoin any acts or things which may be unlawful or in
violation of the rights of the Department.
(4) By applying to a court of competent jurisdiction, cause to appoint a receiver to
manage the Project, levy and collect the Pledged Revenues, and apply the Pledged Revenues to
the reduction of the obligations under this Agreement.
(5) By certifying to the Auditor General and the Chief Financial Officer delinquency on
loan repayments, the Department may intercept the delinquent amount plus a penalty from any
unobligated funds due to the Local Government under any revenue or tax sharing fund
established by the State, except as otherwise provided by the State Constitution. The Department
may impose a penalty in an amount not to exceed an interest rate of 18 percent per annum on the
amount due in addition to charging the cost to handle and process the debt. Penalty interest shall
accrue on any amount due and payable beginning on the 30th day following the date upon which
payment is due.
(6) By notifying financial market credit rating agencies and potential creditors.
(7) By suing for payment of amounts due, or becoming due, with interest on overdue
payments together with all costs of collection, including attorneys' fees.
14
(8) By accelerating the repayment schedule or increasing the Financing Rate on the
unpaid principal of the Loan to as much as 1.667 times the Financing Rate for a default under
Subsection 6.01(1).
6.03. DELAY AND WAIVER.
No delay or omission by the Department to exercise any right or power accruing upon
event of default shall impair any such right or power or shall be construed to be a waiver of any
such default or acquiescence therein, and every such right and power may be exercised as often
as may be deemed expedient. No waiver or any default under this Agreement shall extend to or
affect any subsequent event of default, whether of the same or different provision of this
Agreement, or shall impair consequent rights or remedies.
ARTICLE VII - THE PLEDGED REVENUES
7.01. SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT.
From and after the effective date of this Agreement, the Department shall have a lien on
the Pledged Revenues, which along with any other Department State Revolving Fund liens on
the Pledged Revenues, on equal priority, will be prior and superior to any other lien, pledge or
assignment with the following exception. All obligations of the Local Government under this
Agreement shall be junior, inferior, and subordinate in all respects in right of payment and
security to the Senior Revenue Obligations defined in Section 1.01 of this Agreement and to any
additional senior obligations issued with the Department's consent pursuant to Section 7.02.
Any of the Pledged Revenues may be released from the lien on such Pledged Revenues in favor
of the Department if the Department makes a determination, based upon facts deemed sufficient
by the Department, that the remaining Pledged Revenues will, in each Fiscal Year, equal or
exceed 1.15 times the debt service coming due in each Fiscal Year under the terms of this
Agreement.
7.02. ADDITIONAL DEBT OBLIGATIONS.
The Local Government may issue additional debt obligations on a parity with, or senior
to, the lien of the Department on the Pledged Revenues provided the Department's written
consent is obtained. Such consent shall be granted if the Local Government demonstrates at the
time of such issuance that the Pledged Revenues, which may take into account revenue increases,
plus revenues to be pledged to the additional proposed debt obligations will, during the period of
time Semiannual Loan Payments are to be made under this Agreement, equal or exceed 1.15
times the annual combined debt service requirements of this Agreement and the obligations
proposed to be issued by the Local Government and will satisfy the coverage requirements of all
other debt obligations secured by the Pledged Revenues. Notwithstanding the foregoing, no such
consent is required with respect to issuance of Senior Revenue Obligations as defined in Section
1.01.
15
ARTICLE VIII - GENERAL PROVISIONS
8.01. DISCHARGE OF OBLIGATIONS.
All payments required to be made under this Agreement shall be cumulative and any
deficiencies in any Fiscal Year shall be added to the payments due in the succeeding year and all
years thereafter until fully paid. Payments shall continue to be secured by this Agreement until
all of the payments required shall be fully paid to the Department. If at any time the Local
Government shall have paid, or shall have made provision for the timely payment of, the entire
principal amount of the Loan, and as applicable, Loan Service Fee, interest, and Grant Allocation
Assessment charges, the pledge of, and lien on, the Pledged Revenues to the Department shall be
no longer in effect. Deposit of sufficient cash, securities, or investments, authorized by law,
from time to time, may be made to effect defeasance of this Loan. However, the deposit shall be
made in irrevocable trust with a banking institution or trust company for the sole benefit of the
Department. There shall be no penalty imposed by the Department for early retirement of this
Loan.
8.02. PROJECT RECORDS AND STATEMENTS.
Books, records, reports, engineering documents, contract documents, and papers shall be
available to the authorized representatives of the Department for inspection at any reasonable
time after the Local Government has received a disbursement and until five years after the date
that the Project -specific audit report, required under Subsection 2.03(4), is issued.
8.03. ACCESS TO PROJECT SITE.
The Local Government shall provide access to Project sites and administrative offices to
authorized representatives of the Department at any reasonable time. The Local Government
shall cause its engineers and contractors to cooperate during Project inspections, including
making available working copies of plans and specifications and supplementary materials.
8.04. ASSIGNMENT OF RIGHTS UNDER AGREEMENT.
The Department may assign any part of its rights under this Agreement after notification
to the Local Government. The Local Government shall not assign rights created by this
Agreement without the written consent of the Department.
8.05. AMENDMENT OF AGREEMENT.
This Agreement may be amended in writing, except that no amendment shall be
permitted which is inconsistent with statutes, rules, regulations, executive orders, or written
agreements between the Department and the U.S. Environmental Protection Agency. This
Agreement may be amended after all construction contracts are executed to re-establish the
Project cost, Loan amount, Project schedule, and Semiannual Loan Payment amount. A final
amendment establishing the final Project costs and the Loan Service Fee based on actual Project
costs shall be completed after the Department's final inspection of the Project records.
16
8.06. ANNULMENT OF AGREEMENT.
The Department may unilaterally annul this Agreement if the Local Government has not
drawn any of the Loan proceeds within eighteen months after the effective date of this
Agreement. If the Department unilaterally annuls this Agreement, the Department will provide
written notification to the Local Government.
8.07. SEVERABILITY CLAUSE.
If any provision of this Agreement shall be held invalid or unenforceable, the remaining
provisions shall be construed and enforced as if such invalid or unenforceable provision had not
been contained herein.
8.08. USE AS MATCHING FUNDS.
The U.S. Environmental Protection Agency has provided a class deviation from the
provisions of 40 CFR 35.3125(b)(1) to allow these second tier funds to be used as local matching
requirements for most EPA grant funded treatment works projects, including special
Appropriations Act projects.
8.09. COMPLIANCE VERIFICATION.
(1) The Local Government shall periodically interview 10% of the work force entitled to
Davis -Bacon prevailing wages (covered employees) to verify that contractors or subcontractors
are paying the appropriate wage rates. As provided in 29 CFR 5.6(a)(5), all interviews must be
conducted in confidence. The Local Government must use Standard Form 1445 or equivalent
documentation to memorialize the interviews. Copies of the SF 1445 are available from EPA on
request.
(2) The Local Government shall periodically conduct spot checks of a representative
sample of weekly payroll data to verify that contractors or subcontractors are paying the
appropriate wage rates. The Local Government shall establish and follow a spot check schedule
based on its assessment of the risks of noncompliance with Davis -Bacon posed by contractors or
subcontractors and the duration of the contract or subcontract. Local Governments must conduct
more frequent spot checks if the initial spot check or other information indicates that there is a
risk that the contractor or subcontractor is not complying with Davis -Bacon. In addition, during
the examinations the Local Government shall verify evidence of fringe benefit plans and
payments thereunder by contractors and subcontractors who claim credit for fringe benefit
contributions.
(3) The Local Government shall periodically review contractors and subcontractors use
of apprentices and trainees to verify registration and certification with respect to apprenticeship
and training programs approved by either the U.S Department of Labor (DOL) or a state, as
appropriate, and that contractors and subcontractors are not using disproportionate numbers of
laborers, trainees, and apprentices. These reviews shall be conducted in accordance with the
schedules for spot checks and interviews described in items (1) and (2) above.
17
(4) Local Governments must immediately report potential violations of the Davis -Bacon
prevailing wage requirements to the EPA Davis -Bacon contact Sheryl Parsons at
Parsons. Sheryl(d),epamail.epa.gov and to the appropriate DOL Wage and Hour District Office
listed at http://www.dol.aov/whd/america2.htm.
ARTICLE IX - CONSTRUCTION CONTRACTS AND INSURANCE
9.01. AUTHORIZATION TO AWARD CONSTRUCTION CONTRACTS.
The following documentation is required to receive the Department's authorization to
award construction contracts:
(1) Proof of advertising.
(2) Award recommendation, bid proposal, and bid tabulation (certified by the
responsible engineer).
(3) Certification of compliance with the conditions of the Department's approval of
competitively or non -competitively negotiated procurement, if applicable.
(4) Certification Regarding Disbarment, Suspension, Ineligibility and Voluntary
Exclusion.
(5) Assurance that the Local Government or the Florida Keys Aqueduct Authority and
contractors are in compliance with Section 1606 with labor standards, including prevailing wage
rates established for its locality by the U.S. Department of Labor under the Davis -Bacon Act for
Project construction.
9.02. SUBMITTAL OF CONSTRUCTION CONTRACT DOCUMENTS.
After the Department's authorization to award construction contracts has been received,
the Local Government shall submit, or cause the Florida Keys Aqueduct Authority to submit:
(1) Contractor insurance certifications.
(2) Executed Contract(s).
(3) Notices to proceed with construction.
9.03. INSURANCE REQUIRED.
The Local Government, or the Florida Keys Aqueduct Authority, shall cause the Project,
as each part thereof is certified by the engineer responsible for overseeing construction as
completed, and the Project (hereafter referred to as "Revenue Producing Facilities") to be insured
by an insurance company or companies licensed to do business in the State of Florida against
such damage and destruction risks as are customary for the operation of Revenue Producing
Facilities of like size, type and location to the extent such insurance is obtainable from time to
time against any one or more of such risks.
18
The proceeds of insurance policies received as a result of damage to, or destruction of,
the Project or the other Revenue Producing Facilities, shall be used to restore or replace damaged
portions of the facilities. If such proceeds are insufficient, the Local Government shall provide
additional funds to restore or replace the damaged portions of the facilities. Repair, construction
or replacement shall be promptly completed.
ARTICLE X - DETAILS OF FINANCING
10.01. PRINCIPAL AMOUNT OF LOAN.
The estimated principal amount of the Loan is $41,324,000, which consists of
$40,000,000 to be disbursed to the Local Government and $1,324,000 of Capitalized Interest.
Capitalized Interest is not disbursed to the Local Government, but is amortized via
periodic Loan repayments to the Department as if it were actually disbursed. Capitalized Interest
is computed at the Financing Rate, or rates, set for the Loan. It accrues and is compounded
annually from the time when disbursements are made until six months before the first
Semiannual Loan Payment is due. Capitalized Interest is estimated prior to establishing the
schedule of actual disbursements.
This project is a Segmented Project. Additional State Revolving Fund financing for the
Project is dependent upon the availability of additional funds. The current funding limitations
and future funding priority entitlement for Segmented Projects are set forth in the Chapter
62-503 of the Florida Administrative Code.
10.02. LOAN SERVICE FEE.
The Loan Service Fee is estimated as $800,000 for the Loan amount authorized to date.
The fee represents two percent of the Loan amount excluding Capitalized Interest amount; that
is, two percent of $40,000,000. The Loan Service Fee is estimated at the time of execution of the
loan agreement and shall be revised with any increase or decrease amendment. The Loan
Service Fee is based on actual Project costs and assessed in the final loan amendment. The Local
Government shall pay the Loan Service Fee from the first available repayment(s) following the
final amendment.
Capitalized Interest is computed on the assessed Loan Service Fee at the Financing Rate,
or rates and included in the final amendment. It accrues and is compounded annually from the
final amendment date until six months before the first Semiannual Loan Payment is due.
10.03. FINANCING RATE.
The Financing Rate on the unpaid principal of the Loan amount specified in
Section 10.01 is 2.39 percent per annum. The Financing Rate equals the sum of the interest rate
and the Grant Allocation Assessment Rate. The interest rate is 1.195 percent per annum and the
Grant Allocation Assessment rate is 1.195 percent per annum. However, if this Agreement is not
executed by the Local Government and returned to the Department before July 1, 2013 the
Financing Rate may be adjusted. A new Financing Rate shall be established for any funds
provided by amendment to this Agreement.
19
10.04. LOAN TERM.
The Loan shall be repaid in 40 Semiannual Loan Payments.
10.05. REPAYMENT SCHEDULE.
The Semiannual Loan Payment shall be computed based upon the principal amount of the
Loan plus the estimated Loan Service Fee and the principle of level debt service. The
Semiannual Loan Payment amount may be adjusted, by amendment of this Agreement, based
upon revised information. After the final disbursement of Loan proceeds, the Semiannual Loan
Payment shall be based upon the actual Project costs, the actual Loan Service Fee and Loan
Service Fee capitalized interest, if any, and actual dates and amounts of disbursements, taking
into consideration any previous payments. Actual Project costs shall be established after the
Department's inspection of the completed Project and associated records. The Department will
deduct the Loan Service Fee and any associated interest from the first available repayments
following the final amendment.
Each Semiannual Loan Payment shall be in the amount of $1,330,929 until the payment
amount is adjusted by amendment. The interest and Grant Allocation Assessment portions of
each Semiannual Loan Payment shall be computed, using their respective rates, on the unpaid
balance of the principal amount of the Loan, which includes Capitalized Interest. Interest (at the
Financing Rate) also shall be computed on the estimated Loan Service Fee. The interest and
Grant Allocation Assessment on the unpaid balance shall be computed as of the due date of each
Semiannual Loan Payment.
Semiannual Loan Payments shall be received by the Department beginning on
August 15, 2016 and semiannually thereafter on February 15 and August 15 of each year until all
amounts due hereunder have been fully paid. Funds transfer shall be made by electronic means.
The Semiannual Loan Payment amount is based on the total amount owed of
$42,124,000, which consists of the Loan principal and the estimated Loan Service Fee.
10.06. PROJECT COSTS.
The Local Government and the Department acknowledge that the actual Project costs
have not been determined as of the effective date of this Agreement. Project cost adjustments
may be made as a result of mutually agreed upon Project changes. Capitalized Interest will be
recalculated based on actual dates and amounts of Loan disbursements. If the Local Government
receives other governmental financial assistance for this Project, the costs funded by such other
governmental assistance will not be financed by this Loan. The Department shall establish the
final Project costs after its final inspection of the Project records. Changes in Project costs may
also occur as a result of the Local Government's Project audit or a Department audit. The Local
Government agrees to the following estimates of Project costs:
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
20
PROJECT COSTS
AUTHORIZED LOAN
CATEGORY COST($) AMOUNT($) TO DATE
Allowance costs 5,434,652
Construction and Demolition 125,957,789 Line items
Contingencies 6,297,889 may vary
Technical Services After Bid Opening 8,817,045 based on Actual
(Less Florida Appropriations & Local Funds) (56,507,376) Disbursements
SUBTOTAL (Disbursable Amount)
Capitalized Interest
TOTAL (Loan Principal Amount)
10.07. SCHEDULE.
'1 111 111
40,000,000
1,324,000 1,324,000
91,324,000 41,324,000
The Local Government agrees by execution hereof-
(1) Completion of Project construction is scheduled for February 15, 2016.
(2) The Loan Debt Service Account shall be established and Monthly Loan Deposits
shall begin no later than February 15, 2016.
(3) The initial annual certification required under Subsection 2.01(10) of this Agreement
shall be due May 15, 2016. Thereafter the certification shall be submitted no later than
September 30 of each year until the final Semiannual Loan Payment is made.
(4) The first Semiannual Loan Payment in the amount of $1,330,929 shall be due
August 15, 2016.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
21
ARTICLE XI - EXECUTION OF AGREEMENT
This Loan Agreement WW440710 shall be executed in three or more counterparts, any of
which shall be regarded as an original and all of which constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Department has caused this Agreement to be executed on
its behalf by the Program Administrator and the Local Government has caused this Agreement to
be executed on its behalf by its Authorized Representative and by its affixed seal. The effective
date of this Agreement shall be as set forth below by the Program Administrator.
SEAL
Attest
Clerk
for
MONROE COUNTY
Mayor, Board of County Commissioners
for
I attest to the opinion expressed in Section
2.02, entitled Legal Authorization.
County Attorney
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Program Administrator Date
State Revolving Fund
Attachment included as part of this Agreement:
Attachment A - Certification of Applicability to Single Audit Act Reporting
PW
ADDITIONAL BACK-UP:
Resolution No. 095-2013
Ordinance No. 027-2003
Nabors, Giblin & Nickerson, P.A. Agreement
RESOLUTION NO. 095 - 2013
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
RELATING TO THE STATE REVOLVING FUND LOAN
PROGRAM; MAKING FINDINGS; AUTHORIZING THE
LOAN APPLICATION; AUTHORIZING THE LOAN
AGREEMENT; ESTABLISHING PLEDGED REVENUES;
DESIGNATING AUTHORIZED REPRESENTATIVES;
PROVIDING ASSURANCE; PROVIDING FOR CONFLICTS,
SEVERABILITY, AND EFFECTIVE DATE.
WHEREAS, Florida Statutes provide for loans to local government agencies to finance
the construction of water pollution control facilities; and
WHEREAS, Florida Administrative Code rules require authorization to apply for loans,
to establish pledged revenues; to designate an authorized representative; to provide assurances of
compliance with loan program requirements; and to enter into a loan agreement; and
WHEREAS, the State Revolving Fund loan priority list designates Project No. WW
44071 as eligible for available funding; and
WHEREAS, Monroe County, Florida, intends to enter into a loan agreement with the
Department of Environmental Protection under the State Revolving Fund for financing of the
Cudjoe Regional Wastewater System project;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
SECTION I. The foregoing findings are incorporated herein by reference and made a
part hereof.
SECTION 2. Monroe County, Florida is authorized to apply for a loan to finance the
Cudjoe Regional Wastewater System project.
SECTION 3. As security for the loan, Monroe County, Florida shall pledge and grant a
lien on the wastewater system development special assessment revenue
and the One Cent Infrastructure Sales Surtax revenues; provided, however,
the pledge of and lien on the One Cent Infrastructure Sales Surtax shall be
junior and subordinate in all respects to the pledge of and lien on such
Sales Surtax granted for the benefit of the holders of the Bonds heretofore
and hereafter issued pursuant to Resolution No. 077-2003, as amended and
supplemented.
SECTION 4. The County Administrator is hereby designated as the authorized
representative to provide the assurances and commitments required by the
loan application.
Rea Cu41oe Regional sRF Page 1 of 2
BOCC N =13 (KP:NGN 3/19/13)
SECTIONS. The County Administrator is hereby designated as the authorized
representative to execute the loan agreement which will become a binding
obligation in accordance with its terms when signed by both parties. The
County Administrator is authorized to represent the County in carrying out
the County's responsibilities under the loan agreement. The County
Administrator is authorized to delegate responsibility to appropriate
County staff to carryout technical, financial, and administrative activities
associated with the loan agreement.
SECTION 6. The legal authority for borrowing moneys to construct the Cudjoe
Regional Wastewater System project is Section 153.03, Florida Statutes
and Chapter 125, Florida Statutes.
SECTION 7. Conflicts. All Resolutions, or parts of Resolutions, in conflict with any of
the provisions of this Resolution are hereby repealed.
SECTION & Severability. If any Section or portion of a Section of this Resolution
proves to be invalid, unlawful, or unconstitutional, it shall not be held to
invalidate or impair the validity, force or effect of any other Section or
part of this Resolution.
SECTION 9. Effective Date. This Resolution shall become effective immediately upon
its passage and adoption.
PASSED AND ADOPTED by the Board of County Commissionerstgof MonW -"
County, Florida at a regular meeting of said Board held on the 2e day of MarcSP
13. = r= �
Mayor George Neugent Yes T -n
Mayor Pro Tern Heather Carruthers Yes
Commissioner Danny Kolhage Yes - = rn
Commissioner David Rice Yes C.) M
Commissioner Sylvia Murphy Yes •• c
(SEAL)
ATTEST:, AMY HEAVILIN, CLERK BOARD OF COUNTY COMIVIISSIONERS
By: OF MONROE COUNTY, FLORIDA
Deputy Clerk By:
yor
MONROE
Page 2 of 2
Rw Cudjoe Re0=4 SRF
BOCC 32UV13 (KP.NGN /19/13) . &IIIMGM j.
A.. I_Z
ORDINANCE NO. 027-2003
AN ORDINANCE OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA;
RELATING TO THE PROVISION OF WASTEWATER
SERVICES AND FACILITIES IN MONROE COUNTY,
FLORIDA; AUTHORIZING THE IMPOSITION AND
COLLECTION OF WASTEWATER ASSESSMENTS
AGAINST PROPERTY; PROVIDING CERTAIN DEFINITIONS
INCLUDING A DEFINITION FOR THE I TERM
"WASTEWATER ASSESSMENT"; ESTABLISHING A
PROCEDURE FOR IMPOSING WASTEWATER
ASSESSMENTS; PROVIDING THAT WASTEWATER
ASSESSMENTS CONSTITUTE A LIEN ON ASSESSED
PROPERTY UPON ADOPTION OF ASSESSMENT ROLL;
PROVIDING THAT THE LIEN FOR A WASTEWATER
ASSESSMENT COLLECTED PURSUANT TO SECTIONS
197.3632 AND 197.3635, FLORIDA STATUTES, UPON
PERFECTION SHALL ATTACH TO THE PROPERTY ON
THE PRIOR JANUARY 1, THE LIEN DATE FOR AD
VALOREM TAXES; PROVIDING THAT A PERFECTED LIEN
SHALL BE EQUAL IN RANK AND DIGNITY WITH THE
LIENS OF ALL STATE, COUNTY, DISTRICT, OR
MUNICIPAL TAXES AND AND SUPERIOR
IN DIGNITY TO ALL OTHER PRIOR LIENS, MORTGAGES,
TITLES, AND CLAIMS; PROVIDING A PROCEDURE FOR
COLLECTION OF WASTEWATER ASSESSMENTS;
PROVIDING A MECHANISM FOR THE IMPOSITION OF
ASSESSMENTS ON GOVERNMENT - PROPERTY;
PROVIDING FOR SEVERABILITY; AND PROVIDING AN
EFFECTIVE DATE.
r a
rnr-<
x
onr'
z7Oa
—ac�r
_trig
/V _
O TI
as rn
� v
:7C } r1
n
Q1 ".�
BE IT ORDAINED BYTHE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA:
ARTICLE 1
INTRODUCTION
SECTION 1.01. DEFINITIONS. As used in this Ordinance, the following words
and terms shall have the following meanings, unless the contWdeady otherwise requires:
"Annual Rate Resolution" means the resolution described In Sedlon 2.08 of this
Ordinance, establishing the rate atwhich an Annual WastewatsrAssessment for a specific
Fiscal Year will be computed. The Final Assessment Resolution shall constitute the
Annual Rate Resolution for the initial Fiscal Year In which an Annual Wastewater
Assessment Is imposed or reimposed.
"Annual WastewaterAmmsment" means a special assessment lawUlyimposed
by the Board against Assessed Property to permit payment of the Assessable Costs over
a period of years.
"Assessable Costs" means the amount computed by adding (A)the amount of the
Capacity Fee and (B) an costa associated with the structure. Implementation collection,
and enforcement of the Annual Wastewater Assessments, Including any service charges
of the County, Tax Collector, or Property APpraiser and amounts necessary to offset
discounts received for early payment of Annual Wastewater Assessments pursuant to the
Uniform Assessment Collection Act and any other costs or expenses related to the
collection of the Assessment Costs.
2
"Assessed PrOPOrW means all parcels of land included on the Assessment Rol
that receive a special benefit from the delivery of the wastewater services and fa
identified
Resolutioned in the Initial Assessment Resolution or the Annual Rat duties
.
"Assessment Interest Amount" means -the annual interest rate charged against
the unpaid Assessable Costs by a �I� provider�pursuant to a dui g
y enacted resolution.
"Assessment Roll" means the ape0141 assessment roll relating to a Annual
Wastewater Assessment approved bya Final Assessment Resolution pursuant to Section
2.06 hereof or an Annual Rate Resolution pursuant to Section 2.08 hereof.
"Board" means the Board of County Commissioners of Monroe County, Florida.
"Building" means any structure, whethertemporaryOrPermanent, builtforsupport,
shelter or enclosure of persons, chattel, or property of any kind, including mobile homes.
This term shall include the use of land in which lots or spaces are offered for use, rent or
lease for the placement of mobile homes, travel trailers, or the like for residential u
"Capacity Fee" means the fee established by a UtilityProw p ty Rate
der In the Utility Rate
Resolution to fund the capital cost of the wastewater capacity attributable to a Conn echon.
"Clerk" means the Clerk of the Circuit Court for Monroe County, Florida a
sx-offido Clerk of the Board and such other person as may be duly authorizeds
his or her behalf. to act on
"Connection" means the physical interconnection of a Building's sanitary sewer
system to a central sewage system provided by a Utility Provider.
"Consent and AcknowlsdgmentAgreement" means the agreement, required
Provided in Sections 2.02 and 2.03 of this Ordinance, as a condition 4 as
Owner receiving the privilege of paying the Assessable Costs i precedent to the
Wastewater Assessment rather than as a i n installments as an Annual
lump sum at the time of Connection. The
3
Consent and Acknowledgment Agreement shall provide for the consent of the Owner to
the imposition of an Annual Wastewater Assessment against the Owner's property,
acknowledge the total Assessable Costs, acknowledge the amount and use of the Annual
Wastewater Assessment, confirm the benefit accruing to the Owner's Property from the
Assessable Costs and the Imposition of the Annual Wastewater Assessment, confirm the
Assessment Interest Amount, confirm the Wastewater Assessment Term for the
Installment payment of the Annual Wastewater Assessment, acknowledge the maximum
Annual Wastewater Assessment and that failure to pay the Annual Wastewater
Assessment will cause a tax certificate to be Issued against the Owner's property which will
result in a loss of title under the Uniform Assessment Collection Act, and waive the
provision of first class mailed notice provided for under the Uniform Assessment Collection
Act.
"County" means Monroe County, Florida.
"County Administrator" means the chief administrative officer of the County,
designated by the Board to be responsible for coordinating the Annual Wastewater
Assessments, or such person's designee.
"Final Assessment Resolution" means the resolution described in Section 2.06
hereof which shall confirm, modify, or repeal the Initial Assessment Resolution and which
shall be the final proceeding for the initial imposition of Annual Wastewater Assessments.
"Fiscal Year" means that period commencing October 1st of each year and
continuing through the next succeeding September 30th, or such other period as may be
prescribed by law as the fiscal year for the County.
4
"Government Property" means property owned by the United States of America
or any agency thereof, a sovereign state or nation, the State of Florida or any agency
thereof, a county, a special district or a municipal corporation.
"Initial Assessment Resolution" means the resolution described in Section 2.02
hereof which shall be the Initial proceeding for the identification of the Assessable Costs
for which an assessment is to be made and for the imposition of an Annual Wastewater
Assessment.
"Initial Wastewater Assessment Installment" means the initial installment in the
Wastewater Assessment Term required to be paid at the time of the execution of a
Consent and Acknowledgment Agreement as a condition for an Owner to exercise the
privilege to pay the Assessable Costs in installments as provided in Section 2.03 of this
Ordinance.
"Initial Wastewater Assessment Notice" means the initial certification provided
by a Utility Provider required under Section 2.02 of this Ordinance for the preparation of
the Initial Assessment Resolution.
"Ordinance" means this Wastewater Assessment Ordinance, as amended from
time -to -time.
"Owner" means the Person reflected as the owner of Assessed Property on the
Tax Roll.
"Person" means any individual. partnership, firm, organization, corporation,
association, or any other legal entity, whether singular or plural, masculine or feminine, as
the context may require.
"Property Appraiser" means the Monroe County Property Appraiser.
5
"Supplemental Annual Wastewater Assessment" means a new Annual
Wastewater Assessment not included or the Initial Assessment Roll certified by the Utility
Provider or In a Supplemental Wastewater Assessment Notice previously certified by the
Utility Provider pursuant to Section 2.08 of this Ordinance.
"Supplemental WastewaterAssessment Notice" means the certification required
under Section 2.08 of this Ordinance for the preparation of an Annual Rate Resolution
provided by the Utility Provider for Fiscal Years subsequent to the Fiscal Year in which the
Initial Assessment Resolution is prepared.
"Tax Collector" means the Monroe County Tax Collector.
"Tax Roll" means the real property ad valorem tax assessment roil maintained by
the Property Appraiser for the purpose of the levy and collection of ad valorem taxes.
"Uniform Assessment Collection Act" means sections 197.3632 and 197.3635,
Florida Statutes, or any successor statutes authorizing the collection of non -ad valorem
assessments on the same bill as ad valorem taxes, and any applicable regulations
promulgated thereunder.
"Utility Rate Resolution" means the schedule of rates, fees, and charges duly
approved by the Board or by a Utility Provider.
"Utility Provider" means all publicly owned wastewater utilities operating in the
unincorporated area of the County and all privately owned wastewater utilities operating
within the unincorporated area of the County where the County has purchased utility
capacity from that utility. Including, but not limited to, the Florida Keys Aqueduct Authority,
the Key Largo Wastewater Treatment District and the KW Resort Utility operating within
South Stock Island.
6
"WastewaterAssessment Term" means the numberof Installments, excluding the
Initial Assessment Installment, that an Annual Wastewater Assessment is to be imposed
as documented in the Initial Wastewater Assessment Notice or a Supplemental
Wastewater Assessment Notice. The Wastewater Assessment Term shall not exceed a
time period of twenty (20) years.
SECTION 1.02. INTERPRETATION. Unless the context indicates otherwise,
words importing the singular number include the plural number, and vice versa; the terms
"hereof," "hereby," "herein," "hereto," "hereunder" and similarterms referto this Ordinance;
and the term "hereafter" means after, and the term "heretofore" means befo , e effective
date of this Ordinance. Words of any gender include the correlative words of the other
genders, unless the sense indicates otherwise.
SECTION 1.03. GENERAL FINDINGS. It is hereby ascertained, determined,
and declared that:
(A) Pursuant to Article VIII, section 1, Florida Constitution, and sections 125.01
and 125.66, Florida Statutes, the Board has all powers of local self-government to perform
county functions and to render county services in a manner not inconsistent with law, and
such power may be exercised by the enactment of County ordinances.
(B) A reduction In the amount of costs due at the time of Connection from the
Owners of properties required to connect to a central sewage system by the availability of
an Annual Wastewater Assessment option that permits Assessable Costs to be paid over
a period of years provides a special benefit to property and encourages properties to
connect to a central sewage system on a timely basis.
(C) The Annual Wastewater Assessment authorized by this Ordinance provides
an equitable method of funding the Assessable Costs.
N
(D) The purpose of this Ordinance is to (1) provide procedures and standards for
the imposition of an Annual Wastewater Assessment by the County under the general
home rule powers of a county to impose special assessments; (2) identify the Assessable
Costs to be collected in installments by the imposition of the Annual Wastewater
Assessments; (3) authorize a procedure for the funding of wastewater facilities providing
special benefits to property within the County; and (4) legislatively determine the special
benefit provided to Assessed Property from the provision of wastewater facilities and
services.
(E) The Annual Wastewater Assessment to be Imposed using the procedures
provided in this Ordinance, shall constitute non -ad valorem assessments within the
meaning and intent of the Uniform Assessment Collection Act
(F) The Annual Wastewater Assessment to be Imposed using the procedures
provided in this Ordinance are imposed by the Board, not the Cleric, Property Appraiser or
Tax Collector. The duties of the Clerk, Property Appraiser and Tax Collector under the
provisions of this Ordinance and the Uniform Assessment Collection Act are ministerial.
SECTION 1.04. LEGISLATIVE DETERMINATIONS OF SPECIAL BENEFIT.
It is hereby ascertained and declared that the wastewater services and facilities comprising
the Assessable Costs provide a special benefit to property because wastewater services
and facilities possess a logical relationship to the use and enjoyment of improved property
by: (1) facilitating the development of property and increasing the use and enjoyment
thereof; (2) positively affecting the marketability and market value of the property by the
presence of a central sewage treatment service; (3) properly and safely disposing of
sewage generated on Improved property; and (4) enhancing Improved property through the
environmentally responsible use and enjoyment of the property.
0
ARTICLE If
ANNUAL WASTEWATER ASSESSMENTS
SECTION 2.01. GENERAL AUTHORITY.
(A) The Board is hereby authorized to Impose an Annual Wastewater
Assessment to fund all or any portion of the Assessable Costs upon benefitted property
at a rate of assessment based on the special benefit accruing to such property from a
Utility Provider's provision of wastewater services and facilities. All Annual Wastewater
Assessments shall be imposed In conformity with the procedures set forth In this Article if.
(B) Annual Wastewater Assessments shall be imposed for a term of years, not
to exceed twenty (20) years, in equal annual amounts sufficient to pay the Assessable
Costs and the Assessment Interest Amount.
(C) Nothing contained in this Ordinance shall be construed to require the
imposition of an Annual Wastewater Assessment against Govemment Property.
SECTION 2.02. INITIAL PROCEEDINGS.
(A) At the time of Connection, an Owner shall pay directly to the Utility Provider
the Capacity Fee required by the Utility Provider under its .utility service rules and
regulations as a condition of Connection or an Owner may elect to pay the Capacity Fee
together with an Assessable Interest Amount and all other Assessable Costs in
installments In the form of an Annual Wastewater Assessment assessed against such
property over a set period not to exceed twenty (20) years. In the event a property Owner
elects the privilege to pay an Annual Wastewater Assessment in installments, such Owner
will sign a binding Consent and Acknowledgment Agreement with the County prior to
Connection and shall pay the Initial Wastewater Assessment Installment as required In
Section 2.03 of this Ordinance.
9
(B) As a condition pursuant to the initial imposition of an Annual Wastewater
Assessment, the Utility Provider shall certify to the County, prior to June 1, an Initial
Wastewater Assessment Notice containing the foAowing information:
(1) A list of the Owners who have elected the privilege of paying the
Annual Wastewater Assessment in installments and a copy of the Consent and
Acknowledgment Agreement executed by such Owner,
(2) Summary description of each parcel of property (conforming to the
description contained on the Tax Roll) subject to the Annual Wastewater Assessment;
(3) The name of the Owner of each parcel as shown on the Tax Roll;
(4) The Assessable Costs attributable to each parcel;
(5) The Annual Wastewater Assessment amount;
(6) The term of years for the Installment payment of the Annual
Wastewater Assessment;
(7) The applicable Assessment Interest Amount; and
(8) Acknowledgment of receipt of the Initial Wastewater Assessment
Installment for each parcel of property.
(C) Thereafter, the Initial proceeding for the imposition of an Annual Wastewater
Assessment shall be the adoption of an Initial Assessment Resolution by the Board, (1)
describing the properties electing to pay the Assessable Costs in installments by the
imposition of an Annual Wastewater Assessment, (2) determining the Assessable Costs
to be assessed against each property, (3) establishing the Annual WastewaterAssessment
amount for the ensuing Fiscal Year, (4) confirming the Wastewater Assessment Term; and
(5) directing the County Administrator to (a) prepare the initial Assessment Roll, as required
by Section 2.04 hereof, and (b) publish the notice required by Section 2.06 hereof.
10
SECTION 2.03.
CONDITIONS ON ELECTION TO PAY THE ASSESSABLE
COSTS IN INSTALLMENTS. As a condition pursuant to the Owner receiving the privilege
of paying the Assessable Costs in installments the County and the Owner shall enter into
a Consent and Acknowledgment Agreement and the Owner shall pay to the Utility provider
the Initial Wastewater Assessment Installment.
SECTION 2.04. INITIAL ASSESSMENT ROLL.
(A) The CountyAdministrator shall prepare, ordirectthe preparation of, the initial
Assessment Roll, which shall contain the following:
(1) A summary description of all Assessed Property conforming to the
description contained on the Tax Roll.
(2) The name of the Owner of the Assessed Property.
(3) The amount of the Annual Wastewater Assessment to be imposed
against each such parcel of Assessed Property.
(B) The initial Assessment Roll shall be retained by the County Administrator and
shall be open to public inspection. The foregoing shall not be construed to require that the
Assessment Roll be in printed form if the amount of the Annual Wastewater Assessment
for each parcel of property can be determined by use of a computer terminal available to
the public.
SECTION 2.05. NOTICE BY PUBLICATION. Upon completion of the initial
Assessment Roll, the County Administrator shall publish, or direct the publication of, once
In a newspaper of general circulation within the County a notice stating that at a meeting
of the Board on a certain day and hour, not earner than 20 calendar days
from such
Publication. which meeting shall be a regular, adjourned, orspecial meeting, the Board will
hear objections of all interested persons to the Final Assessment Resolution and approve
11
the aforementioned initial Assessment Roll. The published notice shall conform to the
requirements set forth in the Uniform Assessment Collection Act.
SECTION 2.06. ADOPTION OF FINAL ASSESSMENT RESOLUTION. At the
public hearing as noticed pursuant to Sections 2.05 hereof, or to which an adjournment or
continuance may be taken by the Board. the Board shall receive any oral or written
objections of interested persons and may then, or at any subsequent meeting of the Board
adopt the Final Assessment Resolution which shall (A) confirm, modify, or repeal the Initial
Assessment Resolution with such amendments, if any, as may be deemed appropriate by
the Board; (B) impose the Annual Wastewater Assessment; (C) approve the Initial
Assessment Roll, with such amendments as it deems just and right; and (D) determine the
method of collection. The adoption of the Final Assessment Resolution by the Board shall
constitute a legislative determination that all parcels assessed derive a special benefit from
the wastewater services and facilities, to be provided or constructed and a legislative
determination that the Annual Wastewater Assessment is fairly and reasonably
apportioned among the properties that receive the special benefit. All written objections
to the Final Assessment Resolution shall be flied with the County Administrator at or before
the time or adjourned time of such hearing. The Final Assessment Resolution shall
constitute the Annual Rate Resolution for the initial Fiscal Year in which an Annual
Wastewater Assessment is imposed or reimposed hereunder.
SECTION 2.07. EFFECT OF FINAL ASSESSMENT RESOLUTION. The
Annual Wastewater Assessment for the initial Fiscal Year shall be established upon
adoption of the Final Assessment Resolution. The adoption of the Final Assessment
Resolution shall be the final adjudication of the issues presented (including, but not limited
to, the reasonableness of the legislative determination of special benefit and fair
12
apportionment to the Assessed Property; the reasonableness of the method of
apportionment; the enforceability and accuracy of the calculation of the initial rate of
assessment and the preparation of the initial Assessment Roll; and the validity and
enforceability of the lien of the Annual Wastewater Assessment), unless proper steps shall
be initiated in a court of competent jurisdiction to secure relief within 20 days from the date
of the Board action on the Final Assessment Resolution. The initial Assessment Roll, as
approved by the Final Assessment Resolution, shall be delivered to the Tax Collector, as
required by the Uniform Assessment Collection Act, or if the alternative method described
in Section 3.02 hereof is used to collect the Annual Wastewater Assessments, such other
official as the Board by resolution shall designate.
SECTION 2.08. ADOPTION OF ANNUAL RATE RESOLUTION.
(A) The Board shall adopt an Annual Rate Resolution during Its budget adoption
process for each Fiscal Year following the initial Fiscal Year during the Wastewater
Assessment Term.
(B) As the initial proceedings for the adoption of an Annual Rate Resolution the
Utility Provider shall certify prior to June 1 of each Fiscal Year a Supplemental Wastewater
Assessment Notice containing the following Information:
(1) For each Supplemental Annual WastewaterAssessment: (a)summary
description of the parcel subject to the assessment (conforming to the description
contained on the Tax Roll); (b) the name of the Owner of the parcel assessed as shown
on the Tax Roll; (c) the Assessable Costs, Annual Wastewater Assessment amount,
Wastewater Assessment Term and Assessment Interest Amount attributable to the
assessed parcel for the Supplemental Annual Wastewater Assessment; and (d)
13
acknowledgment of the receipt of the Initial Wastewater Assessment for the parcel subject
to the Supplemental Annual Wastewater Assessment;
(2) Any deletions of an Annual Wastewater Assessment imposed against
a parcel of property or a previously adopted Assessment Roll as a consequence of the
prepayment of unpaid Assessable Costs pursuant to any right of prepayment provided by
resolution.
(C) Based on the information provided in the Supplemental Wastewater
Assessment Notice, the Board shall adopt an Annual Rate Resolution:
(1) Authorizing the date, time, and place of a public hearing to receive and
consider comments from the public and consider the adoption of the Annual Rate
Resolution for the upcoming Fiscal Year, and
(2) Directing the County Administrator to (a) update the Assessment Roll,
(b) provide notice by publication pursuant to Section 2.05 herein (c) provide notice by first
Gass mail to affected Owners in the event circumstances described in subsection (E) of
this Section so require, and (d) directing and authorizing any supplemental or additional
notice deemed proper, necessary or convenient by the County.
(D) The Annual Rate Resolution shall (1) establish the Annual Wastewater
Assessment to be Imposed in the upcoming Fiscal Year and (2) approve the Assessment
Roll forthe upcoming Fiscal Yearwith such adjustments as the Board deems just and right.
The Assessment Roll shall be prepared In accordance with the method of apportionment
set forth in the Initial Assessment Resolution, together with modifications, if any, that are
provided and confirmed in the Final Assessment Resolution or any subsequent Annual
Rate Resolution.
14
(E) In the event (1) the proposed Annual Wastewater Assessment for any Fiscal
Year exceeds the maximum rate of assessment provided In the Consent and
Acknowledgment Agreement, (2) the purpose for which the Annual Wastewater
Assessment Is imposed or the use of the revenue from the Annual Wastewater
Assessment is substantially changed from that acknowledged in the Consent and
Acknowledgment Agreement, or (3) Assessed Property Is reclassified or the method of
apportionment is revised or altered resulting in an increased Annual Wastewater
Assessment from that represented in any publication provided pursuantto Section 2.05 or
acknowledged in the Consent and Acknowledgment Agreement, notice shall be provided
first class mail to the Owners of such Assessed Property. Such notice shall substantially
conform with the notice requirements set forth in the Uniform Assessment Collection Act
and inform the Owner of the date, time, and place for the adoption of the Annual Rate
Resolution. The failure of the Owner to receive such notice due to mistake or
Inadvertence, shall not affect the validity of the Assessment Roll nor release or discharge
any obligation for payment of an Annual Wastewater Assessment imposed by the Board
pursuant to this Ordinance.
(F) As to any Assessed Property not Included on an Assessment Roll approved
by the adoption of the Final Assessment Resolution ora prior yearAnnual Rate Resolution,
the adoption of the succeeding Annual Rate Resolution shall be the final adjudication of
the issues presented as to such Assessed Property (including, but not limited to, the
reasonableness of the legislative determination of special benefit and fair apportionment
to the Assessed Property; the reasonableness of the method of apportionment; the
enforceability and accuracy of the calculation of the initial rate of assessment and the
preparation of the initial Assessment Roll; and the validity and enforceability of the lien of
15
the Annual Wastewater Assessment), unless proper steps shall be initiated In a court of
competent jurisdiction to secure relief within 20 days from the date of the Board action on
the Annual Rate Resolution. Nothing contained herein shall be construed or interpreted
to affect the finality of any Annual Wastewater Assessment not challenged within the
required 20-day period for those Annual Wastewater Assessments previously imposed
against Assessed Property by the Inclusion of the Assessed Property on an Assessment
Roll approved in the Final Assessment Resolution or any subsequent Annual Rate
Resolution.
(G) The Assessment Roll, as approved by the Annual Rate Resolution, shall be
delivered to the Tax Collector as required by the Uniform Assessment Collection Act or
if the alternative method described in Section 3.02 hereof is used to collect the Annual
Wastewater Assessment, such other official as the Board by resolution shall designate.
If the Annual Wastewater Assessment against any property shall be sustained, reduced,
or abated by the court, an adjustment shall be made on the Assessment Roll.
SECTION 2.09. LIEN OF ANNUAL WASTEWATER ASSESSMENTS. Upon
the adoption of the Assessment Roll, all Annual Wastewater Assessments shall constitute
a lien against Assessed Property equal in rank and dignity with the liens of all state, county,
district, or municipal taxes and special assessments. Except as otherwise provided by law,
such lien shall be superior in dignity to all other prior liens, mortgages, titles, and claims,
until paid. The lien for an Annual Wastewater Assessment shall be deemed perfected
upon the Board's adoption of the Final Assessment Resolution or the Annual Rate
Resolution, whichever is applicable. The lien for an Annual Wastewater Assessment
collected under the Uniform Assessment Collection Act shall attach to the property
included on the Assessment Roll as of the prior January 1, the lien date for ad valorem
16
taxes imposed under the Tax Roll. The lien for an Annual Wastewater Assessment
collected under the alternative method of collection provided in Section 3.02 shall be
deemed perfected upon the Board's adoption of the Final Assessment Resolution or the
Annual Rate Resolution, whichever is applicable, and shall attach to the property on such
date of adoption.
SECTION 2.10. REVISIONS TO ANNUAL WASTEWATER ASSESSMENTS.
If any Annual Wastewater Assessment made under the provisions of this Ordinance Is
either in whole or in part annulled, vacated, or set aside by the judgment of any court, or
if the Board is satisfied that any such Annual Wastewater Assessment is so Irregular or
defective that the same cannot be enforced or collected, or if the Board has failed to
include or omitted any property on the Assessment Roll which property should have been
so included, the Board may take all necessary steps to impose a new Annual Wastewater
Assessment against any Property benefitted by the Wastewater Assessed Costs, following
as nearly as may be practicable, the provisions of this Ordinance and In case such second
Annual Wastewater Assessment is annulled, vacated, or set aside, the Board may obtain
and Impose other Annual Wastewater Assessments until a valid Annual Wastewater
Assessment is Imposed.
SECTION 2.11. PROCEDURAL IRREGULARITIES. Any informality or
irregularity in the proceedings in connection with the levy of any Annual Wastewater
Assessment under the provisions of this Ordinance shall not affect the validity of the same
after the approval thereof, and any Annual Wastewater Assessment as finally approved
shall be competent and sufficient evidence that such Annual WastewaterAssessment was
duly levied, that the Annual WastewaterAssessment was duty made and adopted, and that
all other proceedings adequate to such Annual Wastewater Assessment were duly had,
17
taken, and performed as required by this Ordinance; and no variance from the directions
hereunder shall be held material unless it be clearly shown that the party objecting was
materially injured thereby.
SECTION 2.12. CORRECTION OF ERRORS AND OMISSIONS.
(A) No act of error or omission on the part of the Property Appraiser, Tax
Collector, County Administrator, Board, or their deputies or employees, shall operate to
release or discharge any obligation for payment of an Annual Wastewater Assessment
Imposed by the Board under the provision of this Ordinance.
(B) When it shall appear that any Annual Wastewater Assessment should have
been imposed under this Ordinance against a parcel of property specially benefitted by the
provision of wastewater services, facilities, or programs, but that such property was omitted
from the Assessment Roll; or such property was erroneously assessed; or was not listed
on the Tax Roil as an individual parcel of property as of the effective date of the
Assessment Roll approved by the Annual Rate Resolution for any upcoming Fiscal Year,
the Board may, upon provision of a notice by mail provided to the Owner of the omitted
or erroneously assessed parcel In the manner and form provided in the Uniform
Assessment Collection Act, impose the applicable Annual WastewaterAssessment for the
Fiscal Year in which such error or omission is discovered, in addition to the applicable
Annual Wastewater Assessment due for the prior two Fiscal Years. Such Annual
Wastewater Assessment shall constitute a lien against Assessed Property equal in rank
and dignity with the liens of all state, county, district, or municipal taxes and special
assessments, and superior in rank and dignity to all other prior liens, mortgages, titles, and
claims in and to or against the real property involved, shall be collected as provided in
iu
Article III hereof, and shall be deemed perfected on the date of adoption of the resolution
Imposing the omitted, delinquent, or corrected assessments.
(C) Prior to the delivery of the Assessment Roll to the Tax Collector in
accordance with the Uniform Assessment Collection Act, the County Administrator shall
have the authority at any time, upon his or her own initiative or in response to a timely filed
petition from the Owner of any property subject to an Annual Wastewater Assessment, to
reclassify property based upon presentation of competent and substantial evidence, and
correct any error in applying the Annual Wastewater Assessment apportionment method
to any particular parcel of property not otherwise requiring the provision of notice pursuant
to the Uniform Assessment Collection Act. Any such correction shall be considered valid
ab inklo and shall in no way affect the enforcement of the Annual Wastewater Assessment
imposed under the provisions of this Ordinance. All requests from affected property
owners for any such changes, modifications or corrections shall be referred to, and
processed by, the County Administrator and not the Property Appraiser or Tax Collector.
(D) After the Assessment Roll has been delivered to the Tax Collector in
accordance with the Uniform Assessment Collection Act, any changes, modifications, or
corrections thereto shall be made in accordance with the procedures applicable to
correcting errors and insolvencies on the Tax Roll upon timelywritten request and direction
of the County Administrator.
ARTICLE III
COLLECTION AND USE OF ANNUAL WASTEWATER ASSESSMENTS
SECTION 3.01. METHOD OF COLLECTION.
(A) Unless otherwise directed by the Board, the Annual Wastewater
Assessments shall be collected pursuant to the uniform method provided in the Uniform
19
Assessment Collection Act, and the County shall comply with all applicable provisions of
the Uniform Assessment Collection Act. Any hearing or notice required by this Ordinance
may be combined with any other hearing or notice required by the Uniform Assessment
Collection Act or other provision of law.
(B) The amount of an Annual Wastewater Assessment to be collected using the
uniform method pursuant to the Uniform Assessment Collection Act for any specific parcel
of benefitted property may include an amount equivalent to the payment delinquency,
delinquency fees and recording costs for a prior year's assessment for a comparable
service, facility, or program provided: (1) the collection method used in connection with
the prior year's assessment did not employ the use of the uniform method of collection
authorized by the Uniform Assessment Collection Act, (2) notice is provided to the Owner
as required under the Uniform Assessment Collection Act, and (3) any lien on the affected
parcel for the prior year's assessment is supplanted and transferred to such Annual
Wastewater Assessment upon certification of a non -ad valorem roll to the Tax Collector
by the County.
SECTION 3.02. ALTERNATIVE METHOD OF COLLECTION. In lieu of using
the Uniform Assessment Collection Act, the Board may elect to collect the Annual
Wastewater Assessments by any other method which is authorized by law or under the
alternative collection method provided by this Section:
(A) The Board shall provide Annual Wastewater Assessment bills by first class
mail to the Owner of each affected parcel of property, other than Government Property.
The bill or accompanying explanatory material shall include (1) a brief explanation of the
Annual Wastewater Assessment, (2) a description of the unit of measurement used to
determine the amount of the Annual Wastewater Assessment, (3) the number of units
20
contained within the parcel, (4) the total amount of the Annual Wastewater Assessment
Imposed against the parcel for the appropriate period, (5) the location at which payment
will be accepted, (6) the date on which the Annual Wastewater Assessment is due, and (7)
a statement that the Annual Wastewater Assessment constitutes a lien against Assessed
Property equal in rank and dignity with the liens of all state, county, district or municipal
taxes and other non -ad valorem assessments.
(B) A general notice of the lien resulting from imposition of the Annual
Wastewater Assessments shall be recorded in the Official Records of the County. Nothing
herein shall be construed to require that Individual liens or releases be filed In the Official
Records.
(C) The Board shall have the right to foreclose and collect all delinquent Annual
Wastewater Assessments In the manner provided by law for the foreclosure of mortgages
on real property or appoint or retain an agent to institute such foreclosure and collection
proceedings. An Annual Wastewater Assessment shall become delinquent if it is not paid
within 30 days from the date any Installment is due. The Board or its agent shall notify any
property ownerwho is delinquent in payment of his or herAnnual Wastewater Assessment
within 60 days from the date such assessment was due. Such notice shall state in effect
that the Board or Its agent will either (1) initiate a foreclosure action or suit in equity and
cause the foreclosure of such property subject to a delinquent Annual Wastewater
Assessment in a method now or hereafter provided by law for foreclosure of mortgages on
real property, or (2) cause an amount equivalent to the delinquent Annual Wastewater
Assessment, not previously subject to collection using the uniform method under the
Uniform Assessment Collection Act, to be collected on the tax bill for a subsequent year.
21
(D) All costs, fees and expenses, including reasonable attorney fees and title
search expenses, related to any foreclosure action as described herein shall be included
In any judgment or decree rendered therein. At the sale pursuant to decree in any such
action, the County may be the purchaser to the same extent as any Person. The Board
or its agent may join in one foreclosure action the collection of Annual Wastewater
Assessments against any or all property assessed in accordance with the provisions
hereof. All delinquent Owners whose property is foreclosed shall be liable for an
apportioned amount of reasonable costs and expenses incurred by the Board and its
agents, including reasonable attorney fees, In collection of such delinquent Annual
Wastewater Assessments and any other costs incurred by the Board as a result of such
delinquent Annual Wastewater Assessments and the same shall be collectible as a part
of or in addition to, the costs of the action.
(E) In lieu of foreclosure, any delinquent Annual Wastewater Assessment and
the costs, fees and expenses attributable thereto, may be collected pursuant to the
Uniform Assessment Collection Act; provided however, that (1) notice is provided to the
Owner in the manner required by the Uniform Assessment Collection Act and this
Ordinance, and (2) any existing lien of record on the affected parcel for the delinquent
Annual Wastewater Assessment is supplanted by the lien resulting from certification of the
Assessment Roll, as applicable, to the Tax Collector.
(F) Notwithstanding the Board's use of an alternative method of collection, the
County Administrator shall have the same power and authority to correct errors and
omissions as provided to him or other County officials in Section 2.12 hereof.
(G) Any Board action required in the collection of Annual Wastewater
Assessments may be by resolution.
22
SECTION 3.03. GOVERNMENT PROPERTY.
(A) In the event Annual Wastewater Assessments are Imposed against
Government Property, the Board shall provide Annual WastewaterAssessment bills byfirst
class mail to the Owner of each affected parcel of Government Property. The bill or
accompanying explanatory material shall include (1) a brief explanation of the Annual
Wastewater Assessment, (2) a description of the unit of measurement used to determine
the amount of the Annual Wastewater Assessment, (3) the number of units contained
within the parcel, (4) the total amount of the parcel's Annual Wastewater Assessment for
the appropriate period, (5) the location at which payment will be accepted, and (6) the date
on which the Annual Wastewater Assessment is due.
(B) Annual Wastewater Assessments imposed against Government Property
shall be due on the same date as all other Annual Wastewater Assessments and, if
applicable, shall be subject to the same discounts for early payment.
(C) An Annual Wastewater Assessment shall become delinquent if it is not paid
within 30 days from the date any installment is due. The Board shall notify the Owner of
any Government Property that is delinquent in payment of its Annual Wastewater
Assessment within 60 days from the date such assessment was due. Such notice shall
state that the Board will initiate a mandamus or other appropriate judicial action to compel
payment.
(D) All costs, fees and expenses. including reasonable attorney fees and title
search expenses, related to any mandamus or other action as described herein shall be
included in any judgment or decree rendered therein. All delinquent Owners of
Government Property against which a mandamus or other appropriate action is filed shall
be liable for an apportioned amount of reasonable costs and expenses incurred by the
23
County, induding reasonable attorney fees, in collection of such delinquent Annual
Wastewater Assessments and any other costs incurred by the Board as a result of such
delinquent Annual Wastewater Assessments and the same shall be collectible as a part
of or in addition to, the costs of the action.
(E) As an alternative to the foregoing, an Annual Wastewater Assessment
imposed against Government Property may be collected as a surcharge on a utility bill
provided to such Government Property in periodic installments with a remedy of a
mandamus action in the event of non-payment.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. APPLICABIUTY. This Ordinance and the Board's authority to
impose assessments pursuant hereto shall be applicable throughout the unincorporated
area of the County and throughout the incorporated area of any municipality whose
governing body has heretofore or hereafter requested and consented to the provision of
the wastewater services, facilities and programs by the County.
SECTION 4.02. ALTERNATIVE METHOD.
(A) This Ordinance shall be deemed to provide an additional and alternative
method for the doing of the things authorized hereby and shall be regarded as
supplemental and additional to powers conferred by other laws, and shall not be regarded
as in derogation of any powers now existing or which may hereafter come into existence.
This Ordinance, being necessary for the welfare of the inhabitants of the County, shall be
liberally construed to effect the purposes hereof.
(B) Nothing herein shall preclude the Board from directing and authorizing, by
resolution, the combination with each other of (1) any supplemental or additional notice
24
Deemed proper, necessary, or convenient by the County, (2) any notice required by this
Ordinance, or (3) any notice required by law, including the Uniform Assessment Collection Ad.
SECTION 4.03. SEVERABIUTY. The provisions of this Ordinance are severable:
and if any section, subsection, sentence, clause or provision is held invalid by any court of
competent jurisdiction, the remaining provisions of this Ordinance shall not be affected thereby.
SECTION 4.04. EFFECTIVE DATE. The Clerk shall file a Certified copy of this
Ordinance with the Department of State within ten days of its adoption. This Ordinance shall
take effect immediately upon its filing with the Department of State.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the I5th day of July, 2003.
Mayor Spehar
:..Mayor Pro Tom Nelson
amissioner McCoy
�- - otn*sioner Neugent
`�Cgrr)m1wioner Rice
:Af tt- DANNYL.KOLHAGE, Clerk
Clerk
;cp
yam_
Fps
BOARD OF COUNTY COMMISSIONERS
OF MONK E CO Y NTY, FLORIDA
1�
By
Mayor/Chairperson
MONROE COUNTY ATTORNEY
P Q FORM:
QZ4
N. WOLFE
Cl11 818WOPHTXATTORNEY
STATE OF FI.,ORIDA
courrry �� n:a��n�
This 2"
A-D , la 13 ,
AG
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33WO
TEL M 2@94CV
FAX M 289-1745
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
MONROE COUNTY COURTHOUSE
5W WMWIEAD STREBI; surd 1M
KEY WB" FLORIDA 33M
M (W Z92.3W
FAX (AS) Zs-%w
August 19, 2003
Department of State, Bureau of Administrative Code
The Collins Building
107 West Gaines Street, Suite L43
Tallahassee, Florida 32399-0250
Dear Ms. Cloud:
BRANCH OFFICE
O� ON ny
M
G
a= OVERSEAS HIGHWAY
PLANTATION KEX FLORIDA 3M
TEL. (M) M714.5
FAX M) M7146
Certified Marl Receipt #7002 2030 0001 2668 9990
Please be advised that at a Regular Meeting in formal session on July 15, 2003 the Board
Of County Commissioners ofMonroe County adopted Ordinance No.
Provision of wastewater services and 027-2003 relating to the
facilities in Monroe County, Florida; authorizing the
imposition and collection of wastewater assessments against
definitions including a definition for the term "wastewater proms ; providing certain
for imposing wastewater assessments; providing that wastewaterassessment";
e�bhsments eonstitute a Hen o
assessed property upon adoption of assessment rollProviding en on
assessment collected � P � that the lien for a wastewater
pursuant to Sections 197.3632 and 197.3635, Florida Statutes, upon
perfection shall attach to the property on the prior January 1, the lien date for ad valorem taxes;
providing that a perfected lien shall be equal in rank and di
district, or municipal taxes and assessments with the liens of all state, county,
P� easements and superior in dignity to all other prior liens,
mortgages, titles, and claims; providing a procedure for collection of wastat
Providing a mechanism for the imposition of assessments on �'� assessments;
severability, and providing an effective date. government property; Providing for
Attached hereto is a certified copy of the subject Ordinance for your you have any questions concerning the above, please do not hesitate to contact gffShould
Very truly yours,
Danny L. Kon age
Clerk of Court and ex-officio Clerk to the
Board of County Commissioners
By:
I 1 C. DeSantis, De uty Cl��
Cc: Municipal Code Corporation, Certified Mail Receipt #7002 2030 0001 2668 9983
Monroe County Commission
County Administrator
County Attorney
Growth Management Director
Property Appraiser
Tax Collector
Finance
File ✓
. z 7. z..3
ACK6To.ror
TM FirAds Kaye odro.a Fe.waP•n•4 cd. two
Cooke Communications, LLC
Florida Keys
Mary Bath Carobno
Advertising Coordinator
PO Box 1000
Key Walt A 33041
Office .......... 305.292-TT"
Extenwm.................1Q 19
Fax.............305.29"788
mcankam®kaysnavn. Corn
INTERNET PUBLISHING
keywast.emn
keyanon". 0m
IMMARYLCOM
keys v&—
watt Design Savloss
NEWSPAPERS
rho COlnn
soudomm r Ffysr
sdacs HU
B+9 Pine FM Foss
MeralMn Free Pn=
IaWmrada I = Paw
Kay Lop Fora Posts
ooas Fad Pisa
804-t Log
MAGAZINE
The Menu
►Iona G,dda
Corm Lowl1 owae
Prods
Keys TV Cls "Gulag
MARKETING SERVICES
COMINdMl I'dn*4
Ceoan Loa4 Crd
Dked Mai
FLORIDA KEYS OFFICES
Printing I Main FacOity
34Z0 NoAt Ids 0dre
Key Wad, FL
33040.1we
TM 305.292 7777
Fax 305294.OM
C tetcGksywasLeom
Internet Division
1201 wkita Shed (Gull. 103)
Key Wad. FL
33040.3529
Tal 305.292.1!!0
Floc 305 294-1e99
cst.wm
Middle Keys OMiw
6363 Osarass Nary
Monition. FL (kal 6Z5)
33050-33C
Tel 3W74"766
Fa W5.743.9977
n"40breraidris"A m
Upper Keys Ofte
61549 ow Hwy
PO Sot 469
Is' ar,torads. FL (ktM61.5)
33036.OW
Td 305-094.2266
Fax 305.604-0411
e eaesepA9.ddakaysooxt
Ocean Rod Office
3A Bansuds Lane
Key Largo, FL 33037
Too 305-W-4911
Far 30&307-2101
STATE OF FLORIDA
COUNTY OF MONROE
Before the undersigned authority personally appeared Randy G. Erickson, who
on oath says that he is Vice -President of Advertising Operations of the Key
West Citizen, a daily newspaper published in Key West, in Monroe County,
Florida; th the attached copy of alsement, being a legal notice in the
matter of J�i�f�1i� bA rl `UA lJ>I f►t A-A1,9 )
In the _
issues of
was published in said newspaper in the
Affiant fuidier says that the Key West Citizen is a newspaper published in Key
West, in said Monroe County, Florida and that the said newspaper has
heretofore been continuously published in said Monroe County, Florida every
and has been entered as second-class mail matter at the post office in Key West,
in said Monroe County, Florida, for a period of 1 year next preceding the fast
publication of the attached copy of advertisement; and affiant further says that
he has neither paid nor promised any person, firm or corporation any discount,
rebate, commission or refund for the purpose of securing this advertisement for
publication in the said newspaper.
Signature of Af mt
Sworn and subscribed before me this 7%4`� day of 2003
Expires: January 15, 2007
ary Betfi Canitano, Notary Public
Notary Seal
MMY BETH CAWMIo
_ 'cg Notary Pubic - Sio�e of Florlclp
% ....,�` CommInion * DOI 7B046
• Borded � Nakml �y ATarl
Personally Known x Produced Identification
Type of Identification Produced
NOf 10E OF INTENTION TO
CONSIDER ADOPTION OF
COUNTY ORDINANCE
NOTICE IS HEREBY GIVEN TO
WHOM IT MAY CONCERN that on
Tuesday, July 15, 2003, at 3:00 PM
at the Harvey Government Center at
Historic Trumen School, 1200 Tru.
man Avenue, Key West, Monroe
County. Florida, the Board of County
•Commiseloners of Monroe County,
Fiodds, Intends to consider the
adoption df the following County or-
dinance:
AN ORDINANCE OF THE MONROE
COUNTY BOARD OF COMMIS.
SIONERB RELATING TO THE
PRONSION OF WASTEWATER
SERVICES AND FACILITIES IN
MONROE COUNTY FLORIDA; AU-
THORIaNO THE IMPOSITION. AND
COLLECTION OF WASTEWATER
ASSESSMENTS AGAINST PROP-
ERTY; PROVIDING CERTAIN DEF-
W IONS INCLUDING A DEFINI-
TION FOR THE TERM "WASTE-
WATER ASSESSMENT-. ESTAD-
LISHING A PROCEDURE FOR Oil-
POSI IG WASTEWATER ASSESS-
MENTS; PROVIDING THAT
WASTEWATER ASSESSMENTS
CONSTITUTE A LIEN ON AS.
SESSED PROPERTY UPON
ADOPTION OF ASSESSMENT
ROLL; PROVIDING THAT THE
LIEN FOR A WASTEWATER AS-
S ENT COLLECTED PUR-
SUANT TO SECTIONS 197.3832
AND 197.3M FLORIDA STAT
UTES, UPON PERFECTION SHALL
ATTACH TO THE PROPERTY ON
THE PRIOR JANUARY, THE LIEN
DATE FOR AD VALOREM TAXES;
PROVIDING THAT A PERFECTED
LIEN SHALL BE EQUAL N RAND
AND DIGNITY WITH THE LIENS OF
ALL STATE, COUNTY, DISTRICT,
OR MUNICIPAL TAXES AND AS.
SESSNENTS AND SUPERIOR IN
DIGNITY TO ALL OTHER PRIOR
LIENS, MORTGAGES, TITLES,
AND CLAIMS; PROVIDING A PRO-
CEDURE FOR COLLECTION OF
WASTEWATER ASSESSMENTS;
PROVING A MECHANISM FOR
THE IMPOSITION OF ASSESS-
MENTS ON GOVERNMENT PROP-
ERTY; PROVIDING FOR SEVERA-
BILITY; AND PROVIDING AN EF
FECTIVE DATE
Pursuant to Section 28&0105, Flori-
da Statutes, notice is given that If a
person decided to appeal any dett-
elan made by the Board with respect
to any matter considered at such
hearings or meetings, he will need a
record of the proceedings, and that,
for such purpose, he may need to
ensure that a verballm reovrq at the
pf Is marls, sl*
adei testimony
sal isto be
upock which the 90
bUIM.
Copies 0.41e s4ove-rearenced ordl-
nan00 ate b0 *fttot r"Aw at the
vanoul publk sbraries in torus
County, Florida.
Dated at Marathon, Florida, this 281h
day of June, 200&
DANNY L. KOLHAGE, Clerk of the
Circuit Court and ex oflkto Clerk oI
the Board of County Commieslonera
..8 u......,a rrmfv Florida
o
-n
_
o
�prz
O
C-1, i
C)
fin
t
Go
O
-;a
4 r'-
i
rrn
O
'<;.4b
■ Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
■ Print your name and address on the reverse
so that we can return the card to you.
■ Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
Department of State
Bureau of Administrative Code
The Collins Building
107 West Gaines Street, Suite L43
Ta lahassee. Florida 32399-0250
-200
A. Signature
X ..:RACIE PENTO�b
13. Received by( Printed Name) C. Date of Delivery
D. Is delivery address different from item 1? ❑ Yes
If YES, enter delivery address below: ❑ No
3. S ce Type
Certified Mail ❑ Express Mail
❑ Registered ❑ Return Receipt for Merchandise
❑ Insured Mail ❑ C.O.D.
4. Restricted Delivery? (Extra Fee) ❑ Ye
s
2. Article Number
(rransfer tram service label) 70132 20313 13001 2668 8153
PS Form 3811, August 2001 Domestic Return Receipt
102595-M.M-1540
m
a
m
ru
a
0
O
0
m
0
ru
iti
0
0
r-
Return Reeept Fee
(Endorsement Required)
Restricted Delivery Fee
(Endorsement Required)
[7
M
0
O
III
Cl
ru
ni
G]
G
N
Return Redept Fee
(Endmsemant Required)
FlemAmad
(�rsemeM ge�qu�
■ Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired. n
■ Print your name and address on the reverse l
so that we can return the card to you. \'
■ Attach this card to the back of the mailpiece,
or on the front if space permits.
I. Article Addressed to:
Municipal Code Corporation
P. O. Box 2235
Tallahassee, FL 32316-2M
DJ • 06La/%-at00
2. Article Number
(Transfer from service /abeq
PS Fnrm .'AJQ11
by (tented
D. Is delivery address Sgzt froite m m
1f YES, enter delivery address below.
3. Serv. Type
;'i
❑ Agent
❑ AdAd�sm
its, of Qelivem
No
red Mail (3Express Mail
❑ Registered ❑ Return Receipt for Merchandise
ElInsured Mail 1:3 C.O.D.
4. Restricted Delivery? (Extra) 1 ❑ Yes
7002 2030 0001 2668 9983
- - '' —UUUOL `Uu I Domestic Retum Receipt
102595-02-1M-1540
AM
STATE OF FLORIDA
DEPARTMENT OF STATE
JEB BUSH
Governor
August 29, 2003
Honorable Danny L. Kolhage
Clerk of the Circuit Court
Monroe County
500 Whitehead Street
Key West, Florida 33040
Attention: Isabel C. DeSantis, Deputy Clerk
Dear Mr. Kolhage:
GLENDA E. HOOD
Secretary of State
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge
receipt of your letter dated August 19, 2003 and certified copy of Monroe County
Ordinance No. 027-2003, which was filed in this office on August 22, 2003.
Sincerely,
Liz Clowly
Program Administrator
LC/mp
a �
ce M
.o 0
w
r�
N n
•• O
Ctf M
r+ 7
BUREAU OF ADIV MSTRATM CODE 0 DIVISION OF ELECTIONS
The Collins Building, Room IA3 • 107 W. Gaines street • Tallahassee, Florida 3239M2S0
Telephone: (850) US-6270 • Facsimile: (850) 245-6282 • WWW: http://wwwdoLstat&fl.us
E-Mail: DivE&wdoxs@walLdos state fLus
Email Confirmation
Page 1 of 2
Municipal Code CorpWation
Municipal Code Corporation
in_fQ@munICQde.co
P.O. Box 2235
Tallahassee, FL 32316-2235
Monroe County, FL Code of Ordinances-1979(11270)
Supplement 82
Recorded: 828200312.32.14 PM
We have received the following material through Hard Copy .
Document
Adoption
Description
Ordinance No.
7/15/2009?
Amending The Provisions of Wastewater Services and Facilities in
027-2003
Monroe County, Florida
Ordinance No.
7/15/2003
Creating Sections 15.5-33 through 15.5-38, in order to provide for a
028-2003
Uniform Wastewater Connection Policy for Unincorporated Area within
Monroe County.
Ordinance No.
sec.13.5-5(D) park hours
032-2003
18/20/2003]Amending
Tired of receiving your acknowledgements by mail?
Send as your email address at Info®municode.com.
You can submit your ordinances via email to ords@municode.com.
New Why not place your ordinances on-line in between supplements.
Ask us about our newest service, NOW (New Ordinances on the Web).
Are you tired of mailing out codes and supplements?
Tired of printing additional copies of codes?
Let Municipal Code handle the distribution and sales.
Contact the distribution department at: disi@municode.com
http://intmnet.municode.comBISIRecordingtac mowledgePrint.asp?jobid=15134&print=tr... 9/10/2003
Page 1 of 2
Belle DOMUS
From: <info®municode.com>
To: gdesantisQmonro"erk.com>
Sent: Monday, November 17, 2003 4:19 PM
Subject: Acknowledgment of material received
MunWpal Code Cor =00n
P.O. Box 2235
Tdhbassee, FL 55G.578-22
Monroe County, FL Code of
Ordinances - 1879(11270)
Supplement 82
Recorded: &2&200312:32:14 PM
We have received the following material through Hard Copy.
Document
Adoption
Description
Ordinance
7/15/2003
ending The Provisions of Wastewater
No. 027-
Services and Facilities in Monroe County,
2003
Florida.
Ordinance
7/15/2003
Creating Sections 15.5-33 through 15.5-38,
No. 028-
in order to provide for a Uniform Wastewater
2003
Connection Policy for Unincorporated Area
within Monroe County.
Ordinance
8/20/2003
Amending sec. 13.5-5(D) park hours
No. 032-
003
Ordinance
8/20/2003
Amending chap. 5.5 boats, docks and
No. 033-
waterways
2003
Ordinance
6/18/2003
Amending Sec. 9.5-268(EAsting Residential
No. 026-
Dwellings)to permit residential structures
2003
legally established before January 4, 1996 to
be considered as legal residential structures.
Ordinance
7/15/2003
Amending Land Development Regulations,
No. 031-
Sec. 9.5-252(C)(3)h, (AICUZ) and creating
11 /18/2003
AGREEMENT BETWEEN MONROE COUNTY AND
NABORS, GIBLIN & NICKERSON, P.A.
RELATED TO BOND VALIDATION AND RELATED ISSUES
THIS AGREEMENT, made and entered into this / day of 2013, A.D., by and
between the BOARD OF COUNTY COMMISSIONERS OF MONME COUNTY, FLORIDA
("COUNTY" �, a political subdivision of the State of Florida whose address is 1100 Simonton
Street, Key West, Florida 33040, and, Nabors, Grblin & Nickerson, PA, ("ATPORNM, a
professional Association licensed in the State of Florida, hereby enter into this Agreement regarding
the retention of ATTORNEY by COUNTY to provide legal advice and services.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein,
the parties agree as follows:
1. THE CLIENT
The Client is the COUNTY, and to the extent ethically permissible, it's elected and appointed
officers and its employees, unless COUNTY advises ATTORNEY otherwise.
2. TBE ATTORNEY
ATTORNEY is the individual or proEe wocal man named above and whose legally authorized
sigrm4ue appears at the bottom of this Agreement. ATTORNEY is licensed to practice law in all
jurisdictions relevant to this matter. ATTORNEY has been retained specifically because
ATTORNEY is understood by COUNTY to be able to handle this matter. If ATTORNEY
practices with others who may also provide services to COUNTY, he or she understands that
COUNTY expects that ATTORNEY will be responsible for managing the representation, assraing
compliance of others with the terms of this Agreement and ethical requirements, preparing and
substantiating all bills, and communicating with COUNTY. ATTORNEY may not delegate or
outsource this work without full written discisrue to, and written approval from, the COUNTY.
3. MtM OF AGREEMENT
This Agreement and representation by ATTORNEY is effective upon execution by ATTORNEY
and acceptance and approval by COUNTY in accordance with COUNTY'S policies, ordinances,
or governing statutes. The representation shall continue until terminated by either the COUNTY,
or by the ATTORNEY in accordance with ethical requirements and/or the terms of this
Agreement.
4. SCOPE OF THE WORK
ATTORNEY shall provide legal services and advice to COUNTY regarding issues as set out
more specifically in Attachment "A" to this agreement. ATTORNEY will be assigned new
matters by the COUNTY ATTORNEY from time to time during the term of the agreement, those
matters shall be included under this Agreement when assigned by the County Attorney in writing
and accepted in writing by the Board of County Commissioners and the Clerk of Court is notified
of the addition of the matter. The new matter shall be given a new name and the matter shall be
billed under that name.
4.1 Professional ability to perform work, appointment of contract manager
ATTORNEY warrants that he or she is authorized by law to engage in the performance of the
activities herein described, subject to the terms and conditions set forth in tbese contract
documents. ATTORNEY shall designate an individual attorney to be the contract manager for
each matter and the contract manager shall at all times exercise independent, professional
judgment and shall assume professional responsibility for the services to be provided.
ATTORNEY warrants that he or she and the authorized time keepers are authorized by law and
the Rules and Regulations of The Florida Bar to engage in the performance of the activities
encompassed by this Agreement If ATTORNEY is a member of a law firm, either as partner,
shareholder, associate, or other relationship, ATTORNEY warrants that he or she is authorized to
enter into this Agreement by the law firm.
4.2 Management of time keepers
ATTORNEY is responsible for managing the matter cost-effectively and competently, e.g., by
insuring that additional timekeepers are competent, properly supervised, efficient, and in
compliance with the terns of this Agreement as well as with ethical obligations.
S. REVIEW OF ETHICAL OBLIGATIONS AND IUTENTTAI, CONFLICTS OF
INTEREST BEFORE ATION
ATTORNEY has conducted a thorough investigation and determined that neither ATTORNEY nor his
or her firm has any ethical impediment, real or potential, including but not limited to conflicts of
interest, to representing COUNTY. To the extent that any ethical impediment; real or potential, is
discovered or ever arises, ATTORNEY shall immediately inform COUNTY in writing of the
impediment (regardless of wbether ATTORNEY believes he or she has taken all steps necessary to
avoid the impediment and regardless of whether ATTORNEY believes that the impediment is
insubstantial or questionable), make full disclosure of the situation to COUNTY, obtain COUNTY'S
express, written consent to continue the mpresentabon of the other client, and Wm all steps requited by
COUNTY to avoid or mitigate the impediment ATTORNEY understands that; if a direct or indirect
conflict of interest arises which, in the opinion of the COUNTY, cannot be avoided or mitigated
under the Rules of Professional Conduct of The Florida Bar, COUNTY may, in its discretion, (a) obtain
reimbursement from ATTORNEY for all fees and expenses paid to ATTORNEY in this matter, (b)
obtain cancellation of all amounts allegedly owed by COUNTY to ATTORNEY, and (c) obtain
reimbursement for consequential expenses incurred by COUNTY, including the cost of replacement
counsel.
6. PAYMENTS TO ATTORNEY
ATTORNEY shall submit to COUNTY invoices with supporting documentation acceptable to the
Clerk on a schedule as set forth in the contract Acceptability to the Clerk is based on generally
accepted accounting principles and such laws, rules and regulations as may govern the Clerk's
disbursal of funds.
6.1 ATTORNEY Fee (Hourly Fee Epements)
ATTORNEY'S providing services on an hourly fee engagement will be paid for his or her
services based on the number of hours expended on behalf of COUNTY (rounded to the nearest
tenth hour for each time enhy), not to include time billable to or compensated by other clients,
multiplied by the ATTORNEYS hourly rate. The following minimum billing documentation and
time -keeper requirements are a condition precedent to payment by the COUNTY.
6.2. Non -billable time
ATTORNEY will bill COUNTY only for time reasonably and necessarily incurred to render
professional services on COUNTY'S behalf in accordance with this Agreement Time attributable
to billing questions is not billable. Time expended by timekeepers who have not been approved
by COUNTY is also not billable.
2
6.3. Hourly Rates. and Changes to hourly rates
Hourly rates for ATTORNEY and additional Timekeepers will be set at:
Approved Time Keepers:
Name:
Hourly Rom•
Gregory T. Stewart
$250.00
HAY Chiles
$250.00
Lynn Hoshihara
$200.00
Carly Schrader
$200.00
Heath Stokley
$200.00
ATTORNEY will charge no more than the hourly rate quoted above throughout
the duration of the matter, unless otherwise agreed in writing and approved by COUNTY in the
same manner as Agreement.
6.4. Time keepers
As used in this Agreement, the term `time keeper" shall include ATTORNEY and other
ATTORNEYS and individuals identified in paragraph 6.3 of this Agreement who will be
providing services under this Agreement and who will bill the COUNTY for their services in
accordance with this Agreement.
6.51. Duplication of effort
ATTORNEY may when necessary and reasonable have more than one time -keeper bill for court
appearances, attendance at depositions and meetings, including meetings with COUNTY
representatives, and internal conferences; however, permission to use more than one time keeper
shall be in writing from the County Attorney or his designee (permission may be given via email)
and attached to the invoice requesting payment ATTORNEY is not permitted to use this matter
to provide on the job training for a timekeeper, and bill for that time -keeper's services, without
COUNTY'S approval.
6.5.2. Time -keeper chances
Time -keepers approved by the COUNTY are listed in paragraph 63 of this Agreement, and may be
amended from time to time, upon mutual agreement of the COUNTY and the ATTORNEY, to
evidence the then -current circumstances. Additional timo4wepers may not be added to the matter
without written approval from COUNTY. In the event that additional timekeepers providing services
which are to be billed to COUNTY are to be added to the shA then their hourly rates shall be provided
to COUNTY, and, upon written approval by the COUNTY, their rates and billing practices shall
cx�ply with the requirements ofthis Agreement.
6.6. Existing work product
To the extent the ATTORNEY makes use of existing work product, e.g., in the farm of research
Previously performed for another client, then ATTORNEY shall bill only that time expended in
using that work product for COUNTY. In other words, no premium, markup, or other adjustment
shall be made to COUNTY bill for time spent on work already performed.
6.7. Attorney Fee (Bond and Debt Financing)
ATTORNEY'S providing bond or debt financing services will be paid for his or her services in
accordance with the schedule attached hereto as Schedule I Mond Counsel services to be provided
by the Attorney shall include those set forth in Attachment A.
7. BILLING OF FEES AND EXPENSES
ATTORNEY shall comply with the following requirements as to billing fees and expenses as a
condition precedent to COUNTY'S obligation to pay each bill:
7.1. Monthly bills
Unless otherwise agreed in a writing signed by the COUNTY, bills shall be issued monthly by
ATTORNEY after the close of each month. ATTORNEY understands that COUNTY requires
prompt bills in part to facilitate effective management of the representation and fees.
7.2. Bi format
ATTORNEY shall provide detailed, itemized bills which shall, at a minimum:
7.2.1 Description
Provide a general description of the matter, to include the name of the COUNTY department or
constitutional officer, if not indicated in the title of the matter, for which legal services are being
performed (e.g. Richard Roe v. Monroe County —EEO Claim); a description of the work
performed in enough detail so that each item is distinguishable from other listed items and
sufficient to allow COUNTY to determine the necessity for and reasonableness of the time
expended, the services performed, the project or task each service relates to, the subject and
Purpose of each service, and the names of others who were present or communicated with in the
course of performing the service. For example, simply the word "research" is not acceptable,
more detail about the type of research and what was determined by the research is necessary.
7.2.2 Personnel
Clearly identify each timekeeper performing services in conjunction with each entry. Clearly
identify all persons who are not full-time lawyers employed by the ATTORNEYS firm
(including Paralegals, employees of ATTORNEY with their titles, subcontractors, independent
contractors, temporary employees, and outsourcing providers). personnel who are not listed as
additional timekeepers will not be paid unless approved in writing under the requirements of this
Agreement.
7.2.3 Time Records
Record the time expended by each time -keeper separately. In those situations where the minimum
billing increment exceeds the actual time spent on a task and several of these "minor" tasks are
performed, it's expected that the services will be aggregated until the total actual time spent
meets the minimum billing increment.
7.2.4 Totals and By Task
State the amount of time expended by each time -keeper broken down for each task.
7.2.5 Summary of Rates
In a summary at the beginning or end of the bill, provide the current hourly rate for each time-
keeper, the total time billed by each time -keeper in that bill, the product of the total time and
hourly rate for each time -keeper, the total fees charged, and are reconciliation between the
amount charged and any applicable estimated or budgeted amount, by task. In addition, each
monthly statement should show the aggregate billing for that matter from the commencement of
the matter through the currently -billed month.
4
7.3. Expenses
COUNTY will pay the actual, reasonable cost of the following expense items if incurred in
accordance with the guidelines below and promptly itemized in ATTORNEY'S monthly bill:
7.3.1 Reimbursable expenses
Actual cost for necessary long distance telephone calls, telecopying at $.25 per outgoing page,
overnight or expedited delivery, couriers, photocopying at $.15 per page, postage, court has, and
other expenses approved in writing by COUNTY or as listed below:
7.3.1.1. Expedited or emergency services
ATTORNEY is expected to avoid using expedited or emergency services, such as express
delivery services, couriers, telecopying, overtime, and so on, unless necessary because of
unexpected developments or extremely short deadlines. COUNTY may refuse to pay for any such
expenses when incurred routinely or because of ATTORNEY'S failure to manage the matter
efficiently.
73.1.2. Comoutgd?ad research
ATTORNEY is expected to use computerized research services cost-effectively to reduce time
spent on research, for example, while closely -monitoring computerized research to insure that the
charges are reasonable and necessary. ATTORNEY is expected to pass through to COUNTY any
discounts or other arrangements that reduce the cost of computerized services.
73.1.3.1?hotocopyine
ATTORNEY is encouraged to use outside copying services to reduce the cost of large -volume
copying, provided that these expenses are efficient, cost-effective, and incurred and billed in
accordance with this Agreement. ATTORNEY is responsible for insuring that all copying
complies with copyright obligations.
7.3.1 A. Transcn
Transcripts should not be ordered without approval from COUNTY. Transcripts should not be
ordered on an expedited basis unless necessary and approved by COUNTY. ATTORNEY should
obtain digital electronictcomputerized copies of hansaripts when available at a reasonable cost to
avoid charging for time spent digesting or indexing transcripts, and to allow COUNTY to
maintain a digital electronic/computerized database of all transcripts.
7.3.1.5 Travel EMW
Travel expenses within the ATTORNEY' S local or metropolitan area will not be reimbursed and
time in transit is not billable. Travel expenses outside the metropolitan area may only be
reimbursed if the travel was approved by COUNTY. Reimbursable travel expenses, if approved,
are the cost of transportation by the least expensive practicable means (e.g., coach class air
travel), the cost of reasonable hotel accommodations, and the cost of transportation while out of
town (e.g., by cab or rental car, whichever seems reasonable, at the lowest available rate). Travel
expenses will be reimbursed in accordance with the applicable provisions of Florida Statute
112.321 and of the Monroe County Code for "approved travelers,, and shall be summarized on
the Monroe County Travel Form by ATTORNEY with all applicable receipts attached thereto.
7.3.1.E TravmTi e
Time spent in transit outside Attorney's local area may be billed only if ATTORNEY or time-
keeper is unable to avoid traveling by using other forms of communication or it is determined by
5
the County that travel is in the County's best interest Travel by more than One time -keeper at the
same time to the same destination is allowed with written approval from COUNTY.
732. Non-aimbursable expenses
The following expenses will in no event be reimbursable without written approval by County
Attorney and approval by the Board of County Commissioners:
7.32.1. Personal and Office Costs
Meals for time -keepers not related to travel, overtime, word processing or computer charges,
personalexpenses, expenses that benefited other clients, expenses for books, costs of temporary
employees, periodicals or other library materials, internal filing or other document handling
charges, clerical expenses, stationery and other supply expenses, utilities, and any other expense
that is either unreasonable or unnecessary.
73.22. EgR@& cons_WtantL s ort swvicc& oAltsourced services,etc.
ATTORNEY is not authorized to retain experts, additional counsel, consultants, support services,
or the like, or to out source or delegate work outside ATTORNEY'S law firm, without written
approval by County Attorney. ff agreed to ATTORNEY will be responsible for selecting and
managing the services of others so that their services and expenses will be rendered in accordance
with the terms Of this Agreement, including terms applicable to ATTORNEY. ATTORNEY will
manage others to obtain cost effective services for COUNTY. Unless otherwise agreed in writing,
ATTORNEY shall obtain a written retainer agreement, in a form which may be specified by
COUNTY, from each service provider, with bills from each provider being sent to both
ATTORNEY and COUNTY.
7.32.3 Temp m Staffina
ATTORNEY will not bill COUNTY for the time and expenses of temporary employees,
including so-called "Temps" or contract ATTORNEYS or other staff from outside companies,
nor "outsourrce" or delegate work, nor charge for summer associates, law clerks, or student
clerks, (collectively "temporary staff' even if not temporarily employed) without full advance
disclosure of the employee's temporary or short-term status to COUNTY, including disclosure of
the actual amount paid or to be paid to the individual. Unless COUNTY expressly agrees in
writing to Paying additional amounts after full disclosure by ATTORNEY, ATTORNEY may not
charge COUNTY more than the actual cost paid by ATTORNEY.
7.32.4. &MM not passed through at actual cost
COUNTY will not Pay any markup for expenses. COUNTY will only reimburse the
ATTORNEY for their actual approved out-of-pocket costs and expenses, whether incurred
Personally by an approved time -keeper or incurred by other approved personnel (such as experts,
consultants, support services personnel, or outsourced services personnel).
73.2.5.Overhead not cbarged to County
COUNTY will not pay for any "expense" items that am in fact part of ATTORNEY'S overhead
which should be included within ATTORNEY'S fee, the determination of which expenses fall
into this category are strictly within the discretion of the COUNTY.
7.33. Advance @VpEMW of expenses
In addition to the items noted above, ATTORNEY shall obtain written approval from COUNTY
before incurring any expense in excess of $1,00o.00 if ATTORNEY expects to be reimbursed for
that expense. COUNTY may refuse to pay any expense for which approval was not obtained by
ATTORNEY.
7.3.4. (pies of receipts for expenses
ATTORNEY shall include copies of receipts for all expenses with the itemized monthly bill.
COUNTY may refuse to pay any expense item for which documentation is not provided by
ATTORNEY.
7.3.5. Etenses (and fees) after termination
Upon termination of the representation. ATTORNEY shall promptly bill COUNTY for any
remaining reimbursable expenses and fees. COUNTY may refuse to pay any foes or expenses not
billed within 45 days of termination of the representation. ATTORNEY is also expected to
cooperate promptly with all aspects of termination and, if applicable, transition to other counsel.
Payment for fees and expenses is contingent upon prompt, full cooperation.
7.4. Bill and expense documentation
ATTORNEY must maintain supporting documentation for invoices until at least one year after
the termination of the representation. This documentation shall be made available by
ATTORNEY to COUNTY (or COUNTY'S designated representative, including an accountant,
the County Clerk or County Clerk's representative, or legal bill auditor) upon COUNT our
written request. ATTORNEY agrees to cooperate with any examination of this documentation
and ATTORNEY' S fees and expenses, e.g., by responding promptly and completely to any
questions COUNTY or its designated representative may have. ATTORNEY shall notify
COUNTY in writing at least 60 days in advance of destroying any such records and., in the eves
that COUNTY requests that they be preserved, shall preserve them at least one additional year or,
at the option of the COUNTY, delivered to the COUNTY for storage by the COUNTY, with
COUNTY responsible for paying the actual cost of storage. This documentation shall include, for
example, original time records, expense receipts, and documentation supporting the amount
charged by ATTORNEY for expense items generated by ATTORNEY or his or her firm.
COUNTY reserves the right not to pay any fee.or expense item for which sufficient
documentation or expense item for which sufficient documentation is not available to determine
whether the item was necessary and reasonable.
B. PAYMENT TERMS
ATTORNEY'S request for payments and reimbursements may be made in either the
ATTORNEY' S name or the name of the ATfORNEY'S law firm, as appropriate. ATTORNEY
bills complying with this Agreement are due and payable according to the prompt Payment Act.
If the bill materially fails to comply with the requirements of this Agreement, then it is not due
and payable until its deficiencies are remedied by ATTORNEY.
9. MATTER MANAGEMENT
COUNTY will expect that all communications between ATTORNEY, and additional time
keepers, and COUNTY will be reviewed by ATTORNEY and that ATTORNEY will serve as the
Point of contact for this matter, including billing questions.
9.1. Case monitoring
COUNTY will be advised promptly by ATTORNEY of all significant facts and developments in
the matter so that COUNTY may manage the matter effectively and make informed decisions
about strategy, tactics, settlement, scheduling, costs, and other related matters. COUNTY will
Promptly receive from ATTORNEY copies of all orders, opinions, pleadings, briefs, memoranda
(intemal and external), conespondence, and any other document material to the subject matter of
7
this Agreement, such that the COUNTY will have a current, up-to-date, , mirro" copy of the
COUNTY'S file maintained by ATTORNEY. For discovery materials or exhibits that are
lengthy, ATTORNEY should discuss them with COUNTY before providing a copy. Documents
available in digital electronic1computerized form should be provided in that form in lieu of paper
copies, if requested by County. Additionally, ATTORNEY may be required to submit, on a
monthly basis, a case status and progress report to be submitted to the Board of COUNTY
Commissioners. The format of the report shall be in the form required by the COUNTY
ATTORNEY.
9.2. Case control
ATTORNEY shall discuss all significant issues of strategy and tactics, including motions,
discovery, pleadings, briefs, trial preparation, experts, and settlement, with COUNTY before
implementation. ATTORNEY is expected to exercise independent professional judgment.
9.3. ATTORNEY cooperation
ATTORNEY will cooperate with COUNTY or COUNTY'S representatives to promptly provide
all information COUNTY requests or needs about the subject matter of this Agreement and
ATTORNEY'S bills and handling of the matter.
9.4. COUNTY coo 'on
ATTORNEY should consult with COUNTY about all opportunities for COUNTY to save money
or make use of COUNTY'S expertise to assist in, e.g., responding to discovery, preparing for
trial, locating experts, and the like. COUNTY may also have personnel and facilities available to
reduce the expenses related to the subject matter of this Agreement.
10. CONFIDENTIALITY AND PUBLIC IREI,,a'rIONS
ATTORNEY is not authorized to waive or release any privilege or other protection of
information — confidential, secuet, or otherwise — obtained from or on behalf of COUNTY.
ATTORNEY is to keep all confidenflal, privileged, or secret information confidential. This
requirement is perpetual, i.e., it will continue even after the termination of the relationship and
this Agreement.
10.1 Prohibition against use of information
This requirement is also intended to prohibit ATTORNEY from using information obtained from
or on behalf of COUNTY, including work product prepared at COUNTY'S expense, for other
client's of ATTORNEY or his or her firm, without COUNTY' S advance written approval.
10.2 No use of County for marketing pr�r p_oees
ATTORNEY is not authorized to identify COUNTY as a COUNTY, e.g., for purposes of
marketing or advertising, without COUNTY'S prior approval.
11. OWNERSHIP OF ATTORNEY FILES AND WORK PRODUCT
ATTORNEY understands that all files and work product prepared by ATTORNEY or his or her
firm at the expense of COUNTY (or for which COUNTY is otherwise billed) is the property of
COUNTY. Without COUNTY'S written approval, this work product may not be used by
ATTORNEY or his or her firm nor disclosed by ATTORNEY or his or her firm to others, except
in the normal course of ATTORNEY'S representation of COUNTY in this matter. ATTORNEY
agrees that COUNTY owns all rights, including copyrights, to materials prepared by COUNTY
or by ATTORNEY on behalf of COUNTY. ATTORNEY shall notify COUNTY in writing at
least 60 days in advance of destroying any such records and, in the event that COUNTY requests
that they be preserved, shall preserve them at least one additional year (with COUNTY
9
responsible for paying the actual cost of storage). ATTORNEY shall provide COUNTY with
prompt access to (including the ability to make copies of) all ATTORNEY files and work
product, regardless of whether the representation or matter is ongoing and whether ATTORNEY
fees and expenses have been paid in full.
12. _DISPUTE RESOLUTION
ATTORNEY and COUNTY agree that if a dispute arises between them that neither shall be
required to enter into any arbitration proceedings related to this Agreement
12.1. Disputes regarding Attorney fees or expenses
ATTORNEY and COUNTY agree that all disputes regarding ATTORNEYS fees or expenses
are to be resolved pursuant to the procedures and practices for mediation by the Attorney
Consumer Assistance Program of the Florida Bar.
12.2. Disputes regarding interpretation
COUNTY and ATTORNEY agree that all disputes and disagreements between them regarding
interpretation of the Agreement shall be attempted to be resolved by a meet and confer session
between representatives of COUNTY and ATTORNEY. If the issue or issues are still not
resolved to the satisfaction of both within thirty (30) days after the meet and confer session, then
either shall have the right to terminate the Agreement upon ten (10) business days notice in
writing to the other party.
123 Legal or Administrative procedures
In the event any administrative or legal proceeding is instituted against either the COUNTY or
ATTORNEY relating to the formation, execution, performance, or breach of this Agreement,
the COUNTY and ATTORNEY each agree to participate, to the extent required by the other, in
all proceedings, hearings, processes, meetings, and other activities related to the substance of
this Agreement; institution of any administrative or legal proceeding shall constitute immediate
termination of this Agreement. ATTORNEY agrees to forward copies of all documents in his or
her possession related to the matter which is the subject of this Agreement to COUNTY at the time
of filing any administrative or legal proceeding.
12.4 ATTORNEY'S Fees and Costs
In the event any administrative proceeding or cause of action is initiated or defended by the
COUNTY or ATTORNEY relative to the enforcement or interpretation of this Agreement, the
prevailing party shall be entitled to an award of reasonable attorney fees, and court costs, as an
award against the non -prevailing party, and shall include reasonable attorney fees and court costs,
in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this
Agreement or as may be required by a court of competent jurisdiction shall be conducted in
accordance with the Florida Rules of Civil Procedure and the usual and customary procedures
required by the circuit count of Monroe County and shall take place in Monroe County.
13. NOTICE REQUIREMENT
Any notice required Of permitted under this agreement shall be in writing and hand delivered or
mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the
following:
FOR COUNTY:
County Administrator and County Attorney
Gato Building PO Box 1026
1100 Simonton Street Key West, FL. 33041
9
Key West, FL 33040
FOR ATTORNEY:
Gregory T. Stewart, Esq.
Post Office Box 11008
Tallahassee, Florida 32302
14. GOVERNING LAW AND VENUE
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. Venue for any
legal action which may arise out of or under this agreement shall be in Monroe County, Florida
15. ENTIRE AGREEMENT
The entire agreement between the COUNTY and ATTORNEY with respect to the subject matter
hereof is contained in this Agreement. This Agreement supersedes all prior oral and written
proposals and communications between the COUNTY and ATTORNEY related to the matters set
forth in Attachement A. No provision of this Agreement shall be deemed waived, amended or
modified by either party unless such waiver, amendment or modification is in writing and signed
by the party against whom the waiver, amendment or modification is claimed. Ibis Agreement
shall be binding upon and inure to the benefit of the parties hereto, their permitted successors and
assigns.
16. FLORIDA GOVERNMENT IN THE-SUNSH[NE LAW
ATTORNEY agrees that, unless specifically exempted by Florida law, the provisions of Chapter
286, Florida Statutes, generally require full and public discussion of matters to be voted upon by
the Board of County Commissioners. ATTORNEY agrees to consult with the COUNTY
ATTORNEY'S office concerning the application ofthe Sunshine Law from time to time
concerning specific circumstances that may arise during the term of this Agreement
17. FLORIDA PUBLIC RECORDS LAW
ATTORNEY agrees that, unless specifically exempted or excepted by Florida law or Rules and
Regulations of The Florida Bar, the provisions of Chapter 119, Florida Statutes, generally require
public access to all records and documents which may be made or received under this Agreement
ATTORNEY agrees to consult with the County Attorney's office concerning the application of
the Public Records Law from time to time concerning specific circumstances that may arise
during the term of this Agreement
18. NO ASSIGNMENTS
ATTORNEY shall not assign or subcontract its obligations under this agreement, except in
writing and with the written approval of the Board of County Commissioners of Monroe County,
which approval shall be subject to such conditions and provisions as the Board may deem
necessary. This paragraph shall be incorporated by reference into any assignment or subcontract
and any assignee or subcontractor shall comply with all of the provisions of this Agreement
Unless expressly provided for therein, such approval shall in no manner or event be deemed to
impose any additional obligation upon the Board.
19. IMMENATION
Either of the parties hereto may terminate this contract without cause by giving the other party
fifteen (15) business days written notice of its intention to do so.
10
19.1 Documents forwarded to COUNTY
ATTORNEY agrees to forward to COUNTY along with Notice of Termination or upon receipt of
Notice of Termination, depending upon which party terminates the Agreement, copies of all
documents in his or her possession of any nature whatsoever related to the ATTORNEY'S
representation of COUNTY or obtained due to ATTORNEY' S representation of COUNTY.
19.2 Restriction on Communccati
ATTORNEY agrees not to communicate with the public, including the press, about COUNTY or
about this matter.
20. SEVERABILTTY
If a term, covenant, condition or provision of this Agreement 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 provision of this Agreement would prevent the accomplishment of the original
intent of this Agreement. The COUNTY and ATTORNEY agree to reform the Agreement to
replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision.
21. CAPTIONS
The captions set forth herein are for convenience of reference only and shall not define, modify,
or limit any of the terns hereof.
22. LEGAL OBLIGATIONS AND RESPONSIBH TTIES• NON DELEGATION OF
CONSTITUTIONAL OR STATUTORY DUTIES
This Agreement is not intended to relieve, nor shall it be construed as relieving, either the
COUNTY or ATTORNEY from any obligation or responsibility imposed upon each by law
except to the extent of actual and timely performance thereof by the other, in which cage the
performance may be offered in satisfaction of the obligation or responsibility. Further this
Agreement is not intended to authorize, nor shall it be construed as authorizing, the delegation of
the constitutional or statutory duties of the COUNTY, except to the extern permitted by the
Florida Constitution, state statutes, case law, and, specifically, the provisions of Chapter 125,
Florida Statutes.
23. RECORDS
ATTORNEY shall maintain all books, records, and documents directly pertinent to performance
under this Agreement, including the documents referred to in this Agreement, in accordance with
generally accepted accounting principles, consistently applied_ Upon ten (10) business days
written notice to the other, representatives of either the COUNTY or ATTORNEY shall have
access, at all reasonable times, to all the other parry's books, records, correspondence,
instructions, receipts, vouchers and memoranda (excluding computer software) pertaining to
work under this Agreement for the purpose of conducting a complete independent fiscal audit.
ATTORNEY shall retain all records required to be kept under this Agreement for a minimum of
five years, and for at least four years after the termination of this agreement. ATTORNEY shall
keep such records as are necessary to document the performance of the agreement and expenses
as incurred, and give access to these records at the request of the COUNTY, the State of Florida
or authorized agents and representatives of said government bodies. It is the responsibility of
11
ATTORNEY to maintain appropriate records to insure a proper accounting of all collections and
remittances. ATTORNEY shall be responsible for repayment of any and all audit exceptions
which are identified by the Auditor General for the State of Florida, the Clerk of Court for
Monroe County, the Board of County Commissioners for Monroe County, or their agents and
representatives.
24. PUBLIC ACCESS
The COUNTY and ATTORNEY shall allow and permit reasonable access to and inspection of;
all documents, papers, letters, or other materials subject to the Florida Public Records Law, as
Provided in Chapter 119, Florida Statutes, and made or received by the them, unless specifically
exempted by State Statute, Rules and Regulations of The Florida Bar, or case law. COUNTY
shall have the right to cancel this agreement upon violation of this provision by ATTORNEY.
25. MONROE COUNTY CODE ETHICS PROVISION
ATTORNEY warrants that he or she has not employed, retained or otherwise had act on his
behalf any former COUNTY officer or employee in violation of Section 2 of Ordinance No.10-
1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 101990.
For breach or violation of this provision the COUNTY may, at its discretion, terminate this
Agreement without liability and may also, at its discretion, deduct from the sums owed under the
Agreement, or otherwise recover, the full amount of any fee, commission, Percentage, gift or
consideration paid to the former or present COUNTY officer or employee. COUNTY employees
and officers are required to comply with the standards of conduct delineated in Section 112313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifis, doing business
with one's agency, unauthorized compensation, and misuse of public position, conflicting
employment or contractual relationship, and disclosure of certain information.
26. PUBLIC ENTTfY CRIW STATEMENT
Florida law provides that person or affiliate who has been placed on the convicted vendor list
following a conviction for public entity crime may not submit a bid on an agreement to provide
any goods or services to a public entity, may not submit a bid on a agreement with a public entity
for the construction or repair of a public building or public work, may not submit bids on leases
of real property to public entity, may not be awarded or perform work as a contractor, supplier,
sub contractor, or consultant under a agreement with any public entity, and may not transact
business with any public entity in excess of the threshold amount provided in Section 287.017,
for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on
the convicted vendor list. ATTORNEY warrants the neither ATTORNEY nor any authorized
time keeper has been named to the convicted vendor list.
27. ANTI -KICKBACK
ATTORNEY warrants that no person has been employed or retained to solicit or secure this
Agreement upon any contract or understanding for a commission, percentage, brokerage or
contingent fee, and that no employee or officer of the COUNTY has any interest, financially or
otherwise, in this Agreement, except as expressly stated herein. For breach or violation of this
warranty, the,COUNTY shall have the right to annul this agreement without liability or, in its
discretion, to deduct any sums to be paid by COUNTY under this Agreement, or otherwise
recover, the full amount of such commission, Percentage, brokerage or contingent fee.
28. MODIFICATIONS AND AMENDMENTS
This Agreement may not be modified in any way without the express, written consent of both
parties. Any and all modifications and Amendments of the terms of this Agreement shall be in
12
writing and executed by the Board of County Commissioners for Monroe County and by
ATTORNEY in the same manner as this Agreement.
29. INDEPENDENT CONTRACTOR
At all times and for all purposes hereunder, ATTORNEY is an independent contractor and not an
employee of the Board of County Commissioners of Monroe County. No statement contained in
this Agreement shall be construed so as to find ATTORNEY or any of the authorized time
keepers, to be the employees of the Board of County Commissioners of Monroe County, and they
shall be entitled to none of the rights, privileges or benefits of employees of Monroe County.
30. COMPLIANCE WITH LAW
In carrying out ATTORNEY'S obligations under this agreement, ATTORNEY shall abide by all
statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this
Agreement, including those now in effect and hereafter adopted. Any violation of said statutes,
ordinances, rules or regulations shall constitute a material bleach of this Agreement and shall
entitle COUNTY to terminate this Agreement immediately upon delivery of written notice of
termination to ATTORNEY.
31. LICENSING
ATTORNEY warrants that ATTORNEY and additional timekeepers do presently have, shall
have prim to commencement of work under this Agreement, and at all times during said work, all
required licenses and permits whether federal, state, County or City.
32. NON DISCgpQNATION
ATTORNEY shall not discriminate, in its employment practices and in providing services
hereunder, on the basis of race, color, sex, religion, disability, national origin, ancestry, sexual
orientation, gender identity or expression, familial status, or age, and shall abide by all federal
and state laws regarding non-discrimination. Upon a determination by a court of competent
jurisdiction that such discrimination has occurred, this Agreement automatically terminates
without any fiuther action by the COUNTY, effective the date of the court order. ATTORNEY is
aware of the provisions of Section 13-101 through 13-106, Monroe County Code, relating to non-
discrimination, and agrees to abide by the Code's nondiscrimination requirements.
33. 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 do COUNTY and ATTORNEY agree that neither the
COUNTY nor ATTORNEY or any officer, agent, or employee of each 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 under this Agreement.
34. ATTESTATIONS
ATTORNEY agrees to execute such documents as the COUNTY may reasonable require,
including a Drug Free Workplace Statement, and a Public Entity Crime Statement.
35. COUNTY AUTHORITY
This Agreement has been duly noticed at a legally held public meeting conducted in Monroe
County, Florida COUNTY'S performance and obligation to pay under this contract, is contingent
upon annual appropriation by the Board of County Commissioners.
13
36. HOLD HARMIxsS AND INSURANCE
Prior to execution of this agreement, ATTORNEY shall fiunish COUNTY Certificates of
Insurance indicating the minimum professional liability coverage for ATTORNEY and additional
time -keepers in the amount of Five Hundred Thousand Dollars ($500,000.00). ATTORNEY
agrees to keep the same amount of coverage or more at all times and to provide proof of said
coverage to COUNTY at COUNTY'S request at any time during the term of the Agreement.
37. NO PERSONAL LIABILPTY
No covenant or obligation contained in this Agreement shall be deemed to be a covenant or
obligation of any member, officer, agent or employee of the Board of County Commissioners of
Monroe County in his or her individual capacity and no member, officer, agent or employee of
the Board of County Commissioners of Monroe County shall be liable personally on this
Agreement or be subject to any personal liability or accountability by reason of the execution of
this Agreement.
39. EXECUTION IN COLINTFRpARTS
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 the
COUNTY and ATTORNEY may execute this Agreement by signing any such counterpart
THIS AGREEMENT will become effective when executed by both the ATTORNEY and
executed bythe`Board of County Commissioners of Monroe County, Florida
Attest:
Amy Havilin, Clerk
B .
Deputy Clerk
Date: `fl i / 2 ° / 3
Witness to ATTORNEY:
A.
Print Name
Address: SUl
DATE: 1
QW I L* kc.t.r1J
14
Board of County Commissioners
Of Monroe County
By e.
Date: µlr7�zo�3
C'wcx.
C1 1
MO OE COUNTY ATTO
R VED AST F .
N ILBBNE W. CA 8El.
A8818TANT COUNTY ATTORNEY
Date- i/- 7-
A?TACHIVEM A
Scope of Representation
Services to be provide by Nabors, Giblin & Nickerson as bond counsel
shall include all customary and traditional duties typically incurred by bond
counsel for State of Florida local governmental entities including but not limited to
the following:
• Consultation with County officials and staff concerning all legal
questions relating to the issuance of Bonds;
• Attendance, upon request, at any meeting of the Board of County
Commissioners or any meeting of staff relating to the issuance of
Bonds;
• Preparation of all resolutions, bond documents and other instruments
relating to Bonds, in cooperation with the County staf& the County's
financial advisor and the County Attorney;
• Analysis and resolution of tax problems associated with Bonds,
including preparation of ruling requests and contacts with the United
States Treasury, if necessary;
• Review of all disclosure documents prepared or authorized by the
County, insofar as such documents describe Bonds and summarize
the documents securing he Bonds;
• Preparation and review of all documentation required for closing;
• Supervision of the printing of Bonds (if printed Bonds are utilized);
• Provision of an opinion in written form at the time Bonds are
delivered, which opinion shall cover (i) the legality of Bonds and the
proceedings by which they are issued, (ii) if applicable, the
exclusion from gross income for federal income tax purposes of
interest paid on Bonds, and (iii) such other issues that are
customarily required of bond counsel; and
• Consultation with County officials and County staff concerning
questions that may arise with regard to Bonds.
15
Schedule 1
Fees for Bond Counsel Services
The County shall pay to Nabors, Giblin & Nickerson, compensation for
services rendered and expenses incurred as bond counsel in accordance with the
following schedule (all fees quoted on a per $1,000 Bond basis):
Tyne of Issue Minimum Fee Fee Scale
General Obligation $15,000 $1.25 per bond first $20,000,000
$1.00 per bond $20,000,000-40,000,000
$0.75 per bond over $Q,0oq 000
New Money & Bank Loans $27,500 $1.50 per bond first $10,00Q000
$1.25 pr bond $10,000 000-30,000,000
$0.75 per bond over $30,000,0o0
Special Transactionsl') $20,000 $1.50 per bond first $20,00o o00
$1.25 pr bond $20,000,000-40,000,000
$0.75 per bond over $40,000,000
Validation N/A To be negotiated on a per transaction basis
Out -of -Pocket Expenses N/A To be negotiated on a per transaction basis
prior to closing.
Would include, without limitation, special assessment bond issues, refundings,
certificates of participation and unrated issues.
16
q
CERTIFICATE OF L1ABILITY INst1ReN�� QKTE 0°'""�
---- - -------.......� OIAIZU13
TIES CERTIRCATE a aSUED AS A MATTER OF NFORNATM ONLY AND CONFERS 140 RIDHTS U►ON THE CEm>rN:ATE "OLDER. TM
CERTIFICATE DOES NOT AFFIRMARVELY OR NWATM LY ATTEND, OMM OR ALTER 7111E COVEAMOE AlFdlpkNIi Sy THE POf.IC"
BELOW THa CERTIFICATE OF *=RANCE DOES NOT OONSMM A CONTRACT' BETWEEN Tf1E ISSIINCG NSURTi AI1TNOry�p
REPREIENTATWE OR MMMMA34 AND THE CVUW411TB 110LDEI1,
IMPORTANT: I IIIe armaft I:Rldw fa aR AOOfifONAI MoUflM. SIB 1 0' 11a0 a" ba andoriad. If SUBROAATM wAIWMD. BIeMa b
EM blaa adialdakft W Sw po ft Mbb PtdWn my #wpft aR a arliilailRats. A S:BfialgR tla EYo taallMeeb diN Is eeBb II/ME Is Be
aAEab hddw inIM@ al alwll
PROOLICpI
KOUNERSOVEN i ASSOC
365 Nekiva Springs Rd #251
Longwood, FL 32779
93M
WP 407 774-5556 407)774-7/20
brianikouwen.con
aOLOEO Nabors, Giblin i Nickerson, P.A.
AIAaION@ GWAW N
paA,aA:OadaNcwr tors at Lloyd's of Loadoa
INSURER S:
A41126627
1500 Mahan Drive, Suite 200
Tallahassee, FL 32308
iiaalel C:
SRO:
wIalAE:
F•
COVERAi3ES r: FMClf%ATC III lunch.
-- -" - - RCviblum NUMBER:
THIS 6 TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REOUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREN IB SUBJECT' TO ALL THE TERNS• EXCL IJSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY NAVE BEEN REDUCED BY PAID CLANWL
ui
TYPE OF INSURANCE -low
POLICY IMU MBERflaww"ga*KUMITS
0840M UABUTY
NCOMMERCIALCOMMERCIALAI Ot]aiRAl LIA9ILRY
❑
2 8000000
®
i
A
CLAWSMOM OCCUR
VLawvers
X Prof Liab
80738SPOO75BOG
12/01/12
11/02/23
_
PERSONAL&ADVSWRY
s
OENeRAI AOOREOATE
$ 8,000,000
IGM AGGREGATE UNIT APPLIES PER:
D MPOUCY LaC
AUrOMOOM UASIUTT
PRODUCT, • OOAW/OP AM
B
ANVAW 1@N D
AUTOS mum
HIM AUTOS
MMY WWRY p�M pwwll)
$
BODILY NAM pw.�Ie.,q
i
I.
a<
AUTO8
i
LIMORELIA UAe occuR
EXCESS IIAB CLAIMS W10E
H� EZ
B
DID RETENTION i
i
jd
COIp4iSATON
AIj
WORNFRBAM P1113MING
NO EMPLOYERS ILIBWTY TiN
OFPMW*aYial VCUX ®/ Q
M we
OEBC
NIA
4
(,
E.L EACH ACC106NTpbwmwp
S
!L DISEASE • EA EMPLM
1S
EL DWM9 • POUCY LIMIT
t
DESCR"DN OF OPERATNINB I LOCATIONS I VEHICLES plmwl ACOM ICI. AdOftO RSmieAS adtMl/i S nola 1ples y tiyy Md)
Retroactive date: None (Full Prior Acts)
Deductible: $50,000 Per Claim
Monroe county
1111 12th Street,Suite 408
Key West, FL 33040
/:Ahld r= I --
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED N
ACCORDANCE WITH THE POLICY PROVISIONS,
AN riahm r imnaid
-• • -���w ww� 1 no AWRLJ Rem@ Bnd 1090 at@ regietefed madte Of ACORO
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 5/15/13 - KL
Bulk Item: Yes X No
Division: Engineering & Pub Works/County Attorney
Department: Wastewater
Staff Contacts: Kevin Wilson, 453-8797
Bob Shillinger, 292-3470
AGENDA ITEM WORDING: Approval of a resolution approving the form of a Clean Water State
Revolving Fund Construction Loan Agreement with the Florida Department of Environmental
Protection (FDEP); authorizing execution and delivery of such agreement; and authorizing the
institution of a bond validation proceeding with respect to the debt obligation to be incurred in
connection with the loan agreement to finance the Cudjoe Regional Wastewater Treatment project as
described in the Facilities Plan.
ITEM BACKGROUND: On 1/31/13, the FDEP issued an "authorization to incur costs" which allows
the County to seek SRF funds for work performed on the project as of that date. On 2/13/13, FDEP
allocated $40M in SRF loans (the FY13 maximum) to the County for the Cudjoe Regional central
wastewater treatment system. The estimated annual debt service for this amount is $2.4M. The
County prepared and submitted the loan application in early March 2013. On 3/20/13, the Board
adopted Resolution No. 095-2013 authorizing the loan application and carrying out required
responsibilities related to the loan agreement. On 4/17/13, the BOCC approved an agreement with
Nabors, Giblin and Nickerson, P.A. to provide services related to bond issues on behalf of the County.
The attached resolution approves the form of the Clean Water State Revolving Fund Construction
Loan Agreement with the FDEP and authorizes the initiation of a bond validation proceeding to
finance and move this project forward.
PREVIOUS RELEVANT BOCC ACTION:
4/17/13 BOCC approved a Professional Services Agreement with Nabors, Giblin and Nickerson, P.A.
as bond counsel
3/20/13 BOCC adopted Resolution No. 095-2013
7/15/2003 BOCC adopted Resolution No. 027-2003
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval
TOTAL COST: $2.4M annual for 20yrs INDIRECT COST: BUDGETED: Yes X No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: SOURCE OF FUNDS: Assessments/Sales Tax
REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year
APPROVED BY: County Atty Li-�t-DMB/Purchasing Risk Management
DOCUMENTATION: Included x Not Required _
DISPOSITION: AGENDA ITEM #
RESOLUTION NO.
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
APPROVING THE FORM OF A CLEAN WATER STATE
REVOLVING FUND CONSTRUCTION LOAN AGREEMENT
WITH THE STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION; AUTHORIZING THE
EXECUTION AND DELIVERY OF SUCH AGREEMENT;
AUTHORIZING THE INSTITUTION OF A BOND VALIDATION
PROCEEDING WITH RESPECT TO THE DEBT OBLIGATION TO
BE INCURRED IN CONNECTION WITH THE LOAN
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, in order to improve the health, safety and welfare of the citizens of
Monroe County, Florida (the "County"), certain wastewater capital improvements must
be acquired, constructed and equipped within the Cudjoe Region, which encompasses the
area from Big Pine Key to Lower Sugarloaf Key, as generally described in the hereinafter
defined Loan Agreement and more particularly described in the plans and specifications
on file from time to time with the County (the "Project"); and
WHEREAS, pursuant to the State Revolving Fund loan program of the Florida
Department of Environmental Protection ("DEP"), the County may obtain low interest
loans in order to finance costs of the Project; and
WHEREAS, the Board finds the Project to be of paramount public importance
and deems it to be in the County's best interest to obtain a loan from DEP (the "Loan") in
order to finance costs of the Project; and
WHEREAS, the principal of and interest on the Loan and all required payments
required by the Loan Agreement shall be limited obligations of the County, secured by
and payable from the Pledged Revenues (as defined in the Loan Agreement), in the
manner provided in the Loan Agreement, and the Loan shall not constitute a general
obligation or a pledge of the faith, credit or taxing power of the County, the State of
Florida, or any political subdivision thereof, within the meaning of any constitutional or
statutory provisions and neither the State of Florida, nor any political subdivision thereof,
nor the County shall be obligated (1) to exercise its ad valorem taxing power in any form
on any real or personal property of or in the County to pay the principal of the Loan, the
interest thereon, or other costs incidental thereto or (2) to pay the same from any other
funds of the County except from the Pledged Revenues, in the manner provided in the
Loan Agreement; and
WHEREAS, because of the nature of the DEP loan program it is necessary and
desirable to procure the Loan directly from DEP by a negotiated sale in accordance with
the provisions hereof and of the Loan Agreement; now, therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
Section 1. Authorization of Loan
The County hereby authorizes obtaining the Loan from DEP in the
aggregate principal amount of not exceeding $90,000,000 for the
principal purpose of providing moneys to finance costs of the
Project. The actual aggregate principal amount of the Loan shall be
determined by the County Administrator provided such aggregate
principal amount does not exceed $90,000,000.
The Loan shall be dated as of the date it is incurred, or such other
date as the County Administrator may determine, and shall bear
interest from its dated date at a fixed interest rate per annum to be
determined through negotiations with DEP and set forth in the Loan
Agreement; provided, however, such interest rate shall not exceed
4.00% per annum or the maximum rate allowed under Florida law,
whichever is lower. Interest and principal on the Loan shall be
payable on the dates and in the amounts provided in the Loan
Agreement; provided, however, no payments of principal or interest
shall be payable more than thirty (30) years from the date of the
Loan. The County Administrator shall determine all of the other
terms and details of the Loan which shall be set forth or provided for
in the Loan Agreement, upon the advice of the County Attorney, the
County's Financial Advisor, Public Financial Management, Inc., and
the County's Bond Counsel, Nabors, Giblin & Nickerson, PA. The
Loan shall be governed by the terms and provisions of the Loan
Agreement.
Section 2. Approval of Loan Agreement
The terms and provisions of the Clean Water State Revolving Fund
Construction Loan Agreement (the "Loan Agreement"), in
substantially the form attached hereto as Exhibit A, are hereby
approved, with such changes, insertions and additions as the County
Administrator may approve. The County hereby authorizes the
Mayor (or in his absence or unavailability the Mayor Pro Tem) to
execute and deliver, and the Clerk (or Deputy Clerk) to attest, the
Loan Agreement substantially in the form attached hereto as Exhibit
A, with such changes, insertions and additions as the County
Administrator may approve, the execution thereof by the Mayor and
the Clerk being evidence of such approval.
Section 3. Validation
The County Attorney, with the assistance of the County's Bond
Counsel, is authorized and directed to institute appropriate
proceedings for validation of the Loan herein authorized pursuant to
Chapter 75, Florida Statutes.
Section 4. General Authority
The Mayor, the County Administrator, the Clerk, the County
Attorney, and the other officers, attorneys and other agents or
employees of the County are hereby authorized to do all acts and
things required of them by this resolution and the Loan Agreement
or desirable or consistent with the requirements hereof or of the
Loan Agreement for the full punctual and complete performance of
all the terms, covenants and agreements contained herein or in the
Loan Agreement and each member, employee, attorney and officer
of the County is hereby authorized and directed to execute and
deliver any and all papers and instruments and to be and cause to be
done any and all acts and things necessary or proper for carrying out
the transactions contemplated hereunder.
Section 5. Severability and Invalid Provisions
If any one or more of the covenants, agreements or provisions herein
contained shall be held contrary to any express provision of law or
contrary to the policy of express law, though not expressly
V
prohibited or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements or
provisions shall be null and void and shall be deemed separable from
the remaining covenants, agreements or provisions and shall in no
way affect the validity of any of the other provisions hereof or of the
Loan.
Section 6. Effective Date
This Resolution shall become effective upon its adoption.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 15th day of May, 2013.
Mayor George Neugent
Mayor Pro Tem Heather Carruthers
Commissioner Danny Kolhage
Commissioner David Rice
Commissioner Sylvia Murphy
BOARD OF COUNTY COMMISSIONERS
(Seal) OF MONROE COUNTY, FLORIDA
Attest: AMY HEAVILIN, Clerk
By:
Deputy Clerk
0
By:
Mayor
MOPR C A
rKWN
BERT S. 914 JFL
Deco
EXHIBIT A
FORM OF LOAN AGREEMENT
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
MONROE COUNTY, FLORIDA
CLEAN WATER STATE REVOLVING FUND
CONSTRUCTION LOAN AGREEMENT
WW440710
Florida Department of Environmental Protection
State Revolving Fund
Bob Martinez Center
2600 Blair Stone Road, MS 3505
Tallahassee, Florida 32399-2400
EXHIBIT A.
TO RESOLUTION
Table of Contents
ARTICLEI -DEFINITIONS..........................................................................................................1
1.01. WORDS AND TERMS.......................................................................................................1
1.02. CORRELATIVE WORDS..................................................................................................3
ARTICLE II - WARRANTIES, REPRESENTATIONS AND COVENANTS .............................4
2.01. WARRANTIES, REPRESENTATIONS AND COVENANTS.........................................4
2.02. LEGAL AUTHORIZATION..............................................................................................5
2.03. AUDIT AND MONITORING REQUIREMENTS............................................................5
ARTICLE III - LOAN REPAYMENT ACCOUNT.......................................................................9
3.01. LOAN DEBT SERVICE ACCOUNT.................................................................................9
3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS ..............................9
3.03. LOAN DEBT SERVICE ACCOUNT WITHDRAWALS.................................................9
3.04. ASSETS HELD IN TRUST................................................................................................9
ARTICLE IV - PROJECT INFORMATION................................................................................10
4.01. PROJECT CHANGES......................................................................................................10
4.02. TITLE TO PROJECT SITE..............................................................................................10
4.03. PERMITS AND APPROVALS........................................................................................10
4.04. ENGINEERING SERVICES............................................................................................10
4.05. COMPLETION MONEYS...............................................................................................10
4.06. CLOSE-OUT.....................................................................................................................10
4.07. LOAN DISBURSEMENTS.............................................................................................. I I
ARTICLE V - COVENANTS RELATING TO PLEDGED REVENUES...................................11
5.01. RATE COVERAGE..........................................................................................................11
5.02. RECEIPT OF INFRASTRUCTURE SALES SURTAX REVENUES ............................12
5.03. ENFORCEMENT OF PAYMENT OF SPECIAL ASSESSMENT PROCEEDS ............ 12
ARTICLE VI - DEFAULTS AND REMEDIES...........................................................................12
6.01. EVENTS OF DEFAULT..................................................................................................12
6.02. REMEDIES.......................................................................................................................13
6.03. DELAY AND WAIVER...................................................................................................14
ARTICLE VII - THE PLEDGED REVENUES............................................................................14
7.01. SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT.......................................14
7.02. ADDITIONAL DEBT OBLIGATIONS...........................................................................14
ARTICLE VIII - GENERAL PROVISIONS................................................................................15
8.01. DISCHARGE OF OBLIGATIONS..................................................................................15
8.02. PROJECT RECORDS AND STATEMENTS..................................................................15
8.03. ACCESS TO PROJECT SITE..........................................................................................15
8.04. ASSIGNMENT OF RIGHTS UNDER AGREEMENT...................................................15
8.05. AMENDMENT OF AGREEMENT.....
8.06. ANNULMENT OF AGREEMENT......
8.07. SEVERABILITY CLAUSE ..................
8.08. USE AS MATCHING FUNDS .............
8.09. COMPLIANCE VERIFICATION........
........................................................................15
........................................................................16
........................................................................16
........................................................................16
........................................................................16
ARTICLE IX - CONSTRUCTION CONTRACTS AND INSURANCE.....................................17
9.01. AUTHORIZATION TO AWARD CONSTRUCTION CONTRACTS ...........................17
9.02. SUBMITTAL OF CONSTRUCTION CONTRACT DOCUMENTS..............................17
9.03. INSURANCE REQUIRED...............................................................................................17
ARTICLE X - DETAILS OF FINANCING...
10.01. PRINCIPAL AMOUNT OF LOAN.
10.02. LOAN SERVICE FEE .....................
10.03. FINANCING RATE .........................
10.04. LOAN TERM ...................................
10.05. REPAYMENT SCHEDULE
...............................................................................18
...............................................................................18
...............................................................................18
..............................
10.06. PROJECT COSTS ..............................................
10.07. SCHEDULE.......................................................
ARTICLE XI - EXECUTION OF AGREEMENT
PTI
1
............................................................. 8
.............................................................19
.............................................................19
.............................................................19
.............................................................20
.....................................21
CLEAN WATER STATE REVOLVING FUND CONSTRUCTION LOAN AGREEMENT
WW440710
THIS AGREEMENT is executed by the STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION (Department) and MONROE COUNTY, FLORIDA,
(Local Government) existing as a political subdivision of the State of Florida.
WITNESSETH:
WHEREAS, pursuant to Section 403.1835, Florida Statutes, the Department is authorized to
make loans to local government agencies to finance or refinance the construction of wastewater
pollution control facilities, the planning and design of which have been reviewed by the
Department; and
WHEREAS, funding is provided from the State Revolving Fund program repayments and
interest, which are Federally protected but which are subject to state audit requirements; and
WHEREAS, the Local Government has made application for the financing of the herein defined
Project, and the Department has determined that such Project meets all requirements for a loan.
NOW, THEREFORE, in consideration of the Department loaning money to the Local
Government, in the principal amount and pursuant to the covenants hereinafter set forth, it is
agreed as follows:
ARTICLE I - DEFINITIONS
1.01. WORDS AND TERMS.
Words and terms used herein shall have the meanings set forth below:
(1) "Agreement" or "Loan Agreement" shall mean this construction loan agreement.
(2) "Authorized Representative" shall mean the official of the Local Government
authorized by ordinance or resolution to sign documents associated with the Loan.
(3) "Capitalized Interest" shall mean a finance charge that accrues at the Financing Rate
on Loan proceeds from the time of disbursement until six months before the first Semiannual
Loan Payment is due. Capitalized Interest is financed as part of the Loan principal.
(4) "Depository" shall mean a bank or trust company, having a combined capital and
unimpaired surplus of not less than $50 million, authorized to transact commercial banking or
savings and loan business in the State of Florida and insured by the Federal Deposit Insurance
Corporation.
(5) "Financing Rate" shall mean the charges, expressed as a percent per annum, imposed
on the unpaid principal of the Loan. The Financing Rate shall consist of an interest rate
component and a Grant Allocation Assessment rate component.
(6) "Grant Allocation Assessment" shall mean an assessment, expressed as a percent per
annum, accruing on the unpaid balance of the Loan. It is computed similarly to the way interest
charged on the Loan is computed and is included in the Semiannual Loan Payment. The
Department will use Grant Allocation Assessment moneys for making grants to financially
disadvantaged small communities pursuant to Section 403.1835 of the Florida Statutes.
(7) "Infrastructure Sales Surtax Revenues" shall mean the proceeds received by the
Local Government from the levy of the one cent local government infrastructure sales pursuant
to Section 212.055(2), Florida Statutes and other applicable provisions of law, after the
satisfaction of all annual payment obligations with respect to the Senior Revenue Obligations
and any other senior obligations issued pursuant to Section 7.02 of this Agreement.
(8) "Loan" shall mean the amount of money to be loaned pursuant to this Agreement
and subsequent amendments.
(9) "Loan Application" shall mean the completed form which provides all information
required to support obtaining construction loan financial assistance.
(10)"Loan Debt Service Account" shall mean an account, or a separately identified
component of a pooled cash or liquid account, with a Depository established by the Local
Government for the purpose of accumulating Monthly Loan Deposits and making Semiannual
Loan Payments.
(11) "Loan Service Fee" shall mean an origination fee which shall be paid to the
Department by the Local Government.
(12) "Monthly Loan Deposit" shall mean the monthly deposit to be made by the Local
Government to the Loan Debt Service Account.
(13) "Pledged Revenues" shall mean the specific revenues pledged as security for
repayment of the Loan and shall be: (a) the Infrastructure Sales Surtax Revenues, and (b) the
Special Assessment Proceeds.
(14) "Project" shall mean the capital improvements financed by this Loan and shall
consist of furnishing all labor, materials, and equipment to construct the collection, transmission
and treatment facilities in accordance with the plans and specifications accepted by the
Department for the following contracts:
(a) "Cudjoe Key Advanced Water Reclamation Facility"; and
(b) "Cudjoe Regional Wastewater Inner Islands Collection & Transmission
System; and
(c) "Cudjoe Regional Wastewater Collection System for Outer Islands".
The Project is in agreement with the planning documentation accepted by the Department
effective January 31, 2013. A Florida Finding of No Significant Impact was published on
April 29, 2011 and no adverse comments were received.
(15) "Semiannual Loan Payment" shall mean the payment due from the Local
Government to the Department at six-month intervals.
(16) "Senior Revenue Obligations" shall mean the following debt obligations:
(a) Monroe County, Florida, Infrastructure Sales Surtax Revenue Bonds, Series
2003, issued in the original principal amount of $21,455,000, pursuant to the Senior Revenue
Obligation Resolution; and
(b) Monroe County, Florida, Infrastructure Sales Surtax Revenue Bonds, Series
2007, issued in the original principal amount of $29,415,000, pursuant to the Senior Revenue
Obligation Resolution; and
(c) Additional Bonds (as defined in the Senior Revenue Obligation Resolution)
issued pursuant to Section 5.02 of the Senior Revenue Obligation Resolution.
(d) Any refunding bonds issued to refund the obligations identified above
provided such bonds shall not increase annual debt service during the repayment period of this
Loan.
(17) "Senior Revenue Obligation Resolution" shall mean Resolution No. 077-2003 of
the Local Government adopted on February 19, 2003, as amended and supplemented, and as the
same may be further amended and supplemented from time to time.
(18) "Special Assessments" shall mean the special assessments lawfully levied by the
Local Government in accordance with the Special Assessment Legislation against properties
specially benefited by the acquisition and construction of the Project.
(19) "Special Assessment Legislation" shall mean, collectively, Ordinance No. 027-
2003 of the Local Government adopted on July 15, 2003, as amended and supplemented from
time to time, Resolution No. 173-2012 of the Local Government adopted on June 20, 2012,
Resolution No. 174-2012 of the Local Government adopted on June 20, 2012, Resolution
No. 197-2012 of the Local Government adopted on July 18, 2012, and Resolution 198-2012 of
the Local Government adopted on July 18, 2012, as the same may be amended and supplemented
from time to time.
(20) "Special Assessment Proceeds" shall mean the proceeds of the Special
Assessments lawfully collected by the Local Government, including the interest and penalties on
such Special Local Government Assessments. Special Assessment Proceeds shall include
moneys lawfully received by the Local Government on account of collection of any delinquent
Special Assessments and any prepayments of Special Assessments.
1.02. CORRELATIVE WORDS.
Words of the masculine gender shall be understood to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall
include the plural and the word "person" shall include corporations and associations, including
public bodies, as well as natural persons.
ARTICLE II - WARRANTIES, REPRESENTATIONS AND COVENANTS
2.01. WARRANTIES, REPRESENTATIONS AND COVENANTS.
The Local Government warrants, represents and covenants that:
(1) The Local Government has full power and authority to enter into this Agreement and
to comply with the provisions hereof.
(2) The Local Government currently is not the subject of bankruptcy, insolvency, or
reorganization proceedings and is not in default of, or otherwise subject to, any agreement or any
law, administrative regulation, judgment, decree, note, resolution, charter or ordinance which
would currently restrain or enjoin it from entering into, or complying with, this Agreement.
(3) There is no material action, suit, proceeding, inquiry or investigation, at law or in
equity, before any court or public body, pending or, to the best of the Local Government's
knowledge, threatened, which seeks to restrain or enjoin the Local Government from entering
into or complying with this Agreement.
(4) All permits, real property interests, and approvals required as of the date of this
Agreement have been obtained for construction and use of the Project. The Local Government
knows of no reason why any future required permits or approvals are not obtainable.
(5) The Local Government shall undertake the Project on its own responsibility, to the
extent permitted by law.
(6) To the extent permitted by law, the Local Government shall release and hold
harmless the State, its officers, members, and employees from any claim arising in connection
with the Local Government's actions or omissions in its planning, engineering, administrative,
and construction activities financed by this Loan or its operation of the Project.
(7) All Local Government representations to the Department, pursuant to the Loan
Application and Agreement, were true and accurate as of the date such representations were
made. The financial information delivered by the Local Government to the Department was
current and correct as of the date such information was delivered. The Local Government shall
comply with Chapter 62-503, Florida Administrative Code, and all applicable State and Federal
laws, rules, and regulations which are identified in the Loan Application or Agreement. To the
extent that any assurance, representation, or covenant requires a future action, the Local
Government shall take such action as is necessary for compliance.
(8) The Local Government shall maintain records using generally accepted accounting
principles established by the Governmental Accounting Standards Board. As part of its
bookkeeping system, the Local Government shall keep accurate records of all revenues,
expenses, and expenditures relating to the Pledged Revenues, Loan disbursement receipts, and
Loan Debt Service Account. Each year, beginning three months before the first Semiannual Loan
4
Payment and ending with the year during which the final Loan repayment is made, the Local
Government's Authorized Representative or its chief financial officer shall submit, pursuant to
the schedule established in Section 10.07, a certification that: (a) Pledged Revenue collections
satisfy, on a pro rata basis, the rate coverage requirement; (b) the Loan Debt Service Account
contains the funds required; and (c) insurance, including that issued through the National Flood
Insurance Program authorized under 42 U.S.C. secs. 4001-4128 when applicable, in effect for the
facilities generating the Pledged Revenues, adequately covers the customary risks to the extent
that such insurance is available.
(9) Pursuant to Section 216.347 of the Florida Statutes, the Local Government shall not
use the Loan proceeds for the purpose of lobbying the Florida Legislature, the Judicial Branch,
or a State agency.
(10) The Local Government agrees to construct the Project in accordance with the
Project schedule. Delays incident to strikes, riots, acts of God, and other events beyond the
reasonable control of the Local Government are excepted. If for any reason construction is not
completed as scheduled, there shall be no resulting diminution or delay in the Semiannual Loan
Payment or the Monthly Loan Deposit.
(11) The Local Government covenants that this Agreement is entered into for the
purpose of financing or refinancing costs of the acquisition, construction and acquisition of the
Project which will in all events serve a public purpose. The Local Government covenants that it
will, under all conditions, complete and operate the Project to fulfill the public need.
2.02. LEGAL AUTHORIZATION.
Upon signing this Agreement, the Local Government's legal counsel hereby expresses
the opinion, subject to laws affecting the rights of creditors generally, that:
(1) This Agreement has been duly authorized by the Local Government and shall
constitute a valid and legal obligation of the Local Government enforceable in accordance with
its terms upon execution by both parties; and
(2) This Agreement specifies the revenues pledged for repayment of the Loan, and the
pledge is valid and enforceable.
2.03. AUDIT AND MONITORING REQUIREMENTS.
The Local Government agrees to the following audit and monitoring requirements.
Funds provided under this Agreement have been identified as second -tier monies under
the Federal Clean Water Act which are identified as state funds whose use is federally protected.
The financial assistance authorized pursuant to this Loan Agreement consists of the
following:
State Resources Awarded to the Local Government Pursuant to this Agreement Consist of the
Following Resources Subject to Section 215.97, F.S.:
State
CSFA Title or
State
Program
CSFA
Fund Source
Funding
Appropriation
Number
Funding Source
Number
Description
Amount
Category
Original
Wastewater
37.077
Statewide Surface
$40,000,000
140131
Agreement
Treatment and
Water Restoration
Stormwater
and Wastewater
Management TF
Projects
(1) Audits.
(a) In the event that the Local Government expends a total amount of state
financial assistance equal to or in excess of $500,000 in any fiscal year of such Local
Government, the Local Government must have a State single or project -specific audit for such
fiscal year in accordance with Section 215.97, Florida Statutes; applicable rules of the
Department of Financial Services; and Chapters 10.550 (local governmental entities) or 10.650
(nonprofit and for -profit organizations), Rules of the Auditor General. In determining the state
financial assistance expended in its fiscal year, the Local Government shall consider all sources
of state financial assistance, including state financial assistance received from the Department of
Environmental Protection, other state agencies, and other nonstate entities. State financial
assistance does not include Federal direct or pass -through awards and resources received by a
nonstate entity for Federal program matching requirements.
(b) In connection with the audit requirements addressed in the preceding
paragraph (a); the Local Government shall ensure that the audit complies with the requirements
of Section 215.97(7), Florida Statutes. This includes submission of a financial reporting package
as defined by Section 215.97(2), Florida Statutes, and Chapters 10.550 (local governmental
entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor General.
(c) If the Local Government expends less than $500,000 in state financial
assistance in its fiscal year, an audit conducted in accordance with the provisions of Section
215.97, Florida Statutes, is not required. The Local Government shall inform the Department of
findings and recommendations pertaining to the State Revolving Fund in audits conducted by the
Local Government in which the $500,000 threshold has not been met. In the event that the Local
Government expends less than $500,000 in state financial assistance in its fiscal year, and elects
to have an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes,
the cost of the audit must be paid from the non -state entity's resources (i.e., the cost of such an
audit must be paid from the Local Government's resources obtained from other than State
entities).
(d) For information regarding the Florida Catalog of State Financial
Assistance (CSFA), a Local Government should access the Florida Single Audit Act website
located at https:Happs.fldfs.com/fsaa for assistance. In addition to the above websites, the following
websites may be accessed for information: Legislature's Website at
http://www.leg.state.R.us/Welcome/index.cfin, State of Florida's website at http://www.myflorida.conV,
Department of Financial Services' Website at http://www.fldfs.conV and the Auditor General's
Website at http://www.state.fl.us/audgen.
(2) Report Submission.
(a) Copies of financial reporting packages shall be submitted by or on behalf
of the Local Government directly to each of the following:
(i) The Department at the following address:
Valerie Peacock, Audit Director
Office of the Inspector General
Florida Department of Environmental Protection
3900 Commonwealth Boulevard, MS 41
Tallahassee, Florida 32399-3123
(ii) The Auditor General's Office at the following address:
State of Florida Auditor General
Room 401, Claude Pepper Building
111 West Madison Street
Tallahassee, Florida 32399-1450
(iii) Copies of reports or management letters shall be submitted by or on
behalf of the Local Government directly to the Department of
Environmental Protection at the following address:
Valerie Peacock, Audit Director
Office of the Inspector General
Florida Department of Environmental Protection
3900 Commonwealth Boulevard, MS 41
Tallahassee, Florida 32399-3123
(b) Any reports, management letters, or other information required to be
submitted to the Department pursuant to this Agreement shall be submitted timely in accordance
with Florida Statutes, or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and
for -profit organizations), Rules of the Auditor General, as applicable.
(c) Local Governments, when submitting financial reporting packages to the
Department for audits done in accordance with Chapters 10.550 (local governmental entities) or
10.650 (nonprofit and for -profit organizations), Rules of the Auditor General, should indicate the
date that the reporting package was delivered to the Local Government in correspondence
accompanying the reporting package.
(3) Project -Specific Audit.
Within 12 months after the amendment establishing final Project costs, the Local
Government shall submit to the Department a Project -specific audit report for the Loan related
revenues and expenditures. The audit shall address Loan disbursements received, Project
expenditures, and compliance with Loan Agreement covenants. The Local Government shall
cause the auditor to notify the Department immediately if anything comes to the auditor's
attention during the examination of records that would constitute a default under the Loan
Agreement. The audit findings shall set aside or question any costs that are unallowable under
Chapter 62-503, Florida Administrative Code. A final determination of whether such costs are
allowed shall be made by the Department.
(4) Record Retention.
The Local Government shall retain sufficient records demonstrating its compliance with
the terms of this Agreement for a period of five years from the date the audit report is issued, and
shall allow the Department, or its designee, Chief Financial Officer, or Auditor General access to
such records upon request. The Local Government shall ensure that audit working papers are
made available to the Department, or its designee, Chief Financial Officer, or Auditor General
upon request for a period of five years from the date the audit report is issued, unless extended in
writing by the Department.
The Local Government is hereby advised that the Florida Single Audit Act Requirements
may further apply to lower tier transactions that may be a result of this Agreement.
The Local Government should confer with its chief financial officer, audit director or
contact the Department for assistance with questions pertaining to the applicability of these
requirements.
In addition, the Local Government agrees to complete and submit the Certification of
Applicability to Single Audit Act Reporting, Attachment A, attached hereto and made a part
hereof, within four (4) months following the end of the Local Government's fiscal year.
Attachment A should be submitted to the Department's Grants Development and Review
Manager at 3900 Commonwealth Boulevard, Mail Station 93, Tallahassee, Florida 32399-3000.
The Grants Development and Review Manager is available to answer any questions at
(850) 245-2361.
(5) Monitoring.
In addition to reviews of audits conducted in accordance with Section 215.97, F.S., as
revised monitoring procedures may include, but not be limited to, on -site visits by Department
staff and/or other procedures. By entering into this Agreement, the Local Government agrees to
comply and cooperate with any monitoring procedures/processes deemed appropriate by the
Department of Environmental Protection. In the event the Department of Environmental
Protection determines that a limited scope audit of the Local Government is appropriate, the
Local Government agrees to comply with any additional instructions provided by the Department
to the Local Government regarding such audit. The Local Government further agrees to comply
and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the
Chief Financial Officer or Auditor General.
ARTICLE III - LOAN REPAYMENT ACCOUNT
3.01. LOAN DEBT SERVICE ACCOUNT
The Local Government shall establish a Loan Debt Service Account with a Depository
and begin making Monthly Loan Deposits no later than the date set forth for such action in
Section 10.07 of this Agreement.
Beginning six months prior to each Semiannual Loan Payment, the Local Government
shall make six Monthly Loan Deposits. The first five deposits each shall be at least equal to one -
sixth of the Semiannual Loan Payment. The sixth Monthly Loan Deposit shall be at least equal
to the amount required to make the total on deposit in the Loan Debt Service Account equal to
the Semiannual Loan Payment amount, taking into consideration investment earnings credited to
the account pursuant to Section 3.02.
Any month in which the Local Government fails to make a required Monthly Loan
Deposit, the Local Government's chief financial officer shall notify the Department of such
failure.
3.02. INVESTMENT OF LOAN DEBT SERVICE ACCOUNT MONEYS
Moneys on deposit in the Loan Debt Service Account shall be invested pursuant to the
laws of the State of Florida. Such moneys may be pooled for investment purposes. The maturity
or redemption date of investments shall be not later than the date upon which such moneys may
be needed to make Semiannual Loan Payments. The investment earnings shall be credited to the
Loan Debt Service Account and applied toward the Monthly Loan Deposit requirements.
3.03. LOAN DEBT SERVICE ACCOUNT WITHDRAWALS.
The withdrawal of moneys from the Loan Debt Service Account shall be for the sole
purpose of making the Semiannual Loan Payment or for discharging the Local Government's
obligations pursuant to Section 8.01.
3.04. ASSETS HELD IN TRUST.
The assets in all accounts created under this Loan Agreement shall be held in trust for the
purposes provided herein and used only for the purposes and in the manner prescribed in this
Agreement; and, pending such use, said assets shall be subject to a lien and charge in favor of the
Department.
ARTICLE IV - PROJECT INFORMATION
4.01. PROJECT CHANGES.
Project changes prior to bid opening shall be made by addendum to plans and
specifications. Changes after bid opening shall be made by change order. The Local
Government shall submit all addenda and all change orders to the Department for an eligibility
determination. After execution of all construction, equipment and materials contracts, the
Project contingency may be reduced.
4.02. TITLE TO PROJECT SITE.
The Local Government shall have an interest in real property sufficient for the
construction and location of the Project free and clear of liens and encumbrances which would
impair the usefulness of such sites for the intended use.
4.03. PERMITS AND APPROVALS.
The Local Government shall have obtained, prior to the Department's authorization to
award construction contracts, all permits and approvals required for construction of the Project or
portion of the Project funded under this Agreement.
4.04. ENGINEERING SERVICES
A professional engineer, registered in the State of Florida, shall be employed by, or under
contract with, the Local Government to oversee construction.
4.05. COMPLETION MONEYS.
In addition to the proceeds of this Loan, the Local Government covenants that it has
obtained, or will obtain, sufficient moneys from other sources to complete construction and place
the Project in operation on, or prior to, the date specified in Article X. Failure of the Department
to approve additional financing shall not constitute a waiver of the Local Government's
covenants to complete and place the Project in operation.
4.06. CLOSE-OUT.
The Department shall conduct a final inspection of the Project and Project records.
Following the inspection, deadlines for submitting additional disbursement requests, if any, shall
be established, along with deadlines for uncompleted Loan requirements, if any. Deadlines shall
be incorporated into the Loan Agreement by amendment. The Loan principal shall be reduced
by any excess over the amount required to pay all approved costs. As a result of such
adjustment, the Semiannual Loan Payment shall be reduced accordingly, as addressed in
Section 10.05.
10
4.07. LOAN DISBURSEMENTS.
Disbursements shall be made only by the State Chief Financial Officer and only when the
requests for such disbursements are accompanied by a Department certification that such
withdrawals are proper expenditures. Disbursements shall be made directly to the Local
Government for allowance costs and reimbursement of the incurred construction costs and
related services. Disbursement of the allowance costs shall be made upon the Department's
receipt of a disbursement request form. Up to seventy percent of the estimated allowance shall
be disbursed after the Loan Agreement is signed. The remainder of the allowance shall be
disbursed after all procurement contracts are executed and shall be adjusted to reflect as -bid
costs. The entire estimated allowance may be disbursed after the Loan Agreement is signed if the
local government agrees to an allowance adjustment after all contracts have been bid.
Disbursements for materials, labor, or services shall be made upon receipt of the following:
(1) A completed disbursement request form signed by the Authorized Representative.
Such requests must be accompanied by sufficiently itemized summaries of the materials, labor,
or services to identify the nature of the work performed; the cost or charges for such work; and
the person providing the service or performing the work.
(2) A certification signed by the Authorized Representative as to the current estimated
costs of the Project; that the materials, labor, or services represented by the invoice have been
satisfactorily purchased, performed, or received and applied to the project; that all funds received
to date have been applied toward completing the Project; and that under the terms and provisions
of the contracts, the Local Government is required to make such payments.
(3) A certification by the engineer responsible for overseeing construction stating that
equipment, materials, labor and services represented by the construction invoices have been
satisfactorily purchased, or received, and applied to the Project in accordance with construction
contract documents; stating that payment is in accordance with construction contract provisions;
stating that construction, up to the point of the requisition, is in compliance with the contract
documents; and identifying all additions or deletions to the Project which have altered the
Project's performance standards, scope, or purpose since the issue of the Department
construction permit.
(4) Such other certificates or documents by engineers, attorneys, accountants,
contractors, or suppliers as may reasonably be required by the Department.
ARTICLE V - COVENANTS RELATING TO PLEDGED REVENUES
5.01. RATE COVERAGE.
Pledged Revenues shall equal or exceed 1.15 times the sum of the Semiannual Loan
Payments due in each Fiscal Year. In addition, the Local Government shall satisfy the coverage
requirements of all Senior Revenue Obligations and parity debt obligations.
11
5.02. RECEIPT OF INFRASTRUCTURE SALES SURTAX REVENUES
The Local Government covenants to do all things necessary or required on its part by
applicable Florida law or otherwise to maintain the levy and receipt of the Infrastructure Sales
Surtax Revenues. The Local Government shall exercise all legally available remedies to enforce
such levy, collection and receipt now or hereafter available under law. The Local Government
will not take any action, including amending or supplementing the ordinance authorizing and
allowing for the levy and collection of the Infrastructure Sales Surtax Revenues, or enter into any
agreement that shall result in reducing the level of Infrastructure Sales Surtax Revenues received
by the Local Government from that level prevailing at the time the Local Government takes such
action or enters into such agreement
5.03. ENFORCEMENT OF PAYMENT OF SPECIAL ASSESSMENT PROCEEDS.
The Local Government will receive, collect and enforce the payment of Special
Assessment Proceeds in the manner prescribed by this Agreement and the Assessment
Legislation and all other resolutions, ordinances or laws appertaining thereunto, and will pay and
deposit the Special Assessment Proceeds into the Loan Debt Service Account in accordance with
Section 3.01 hereof. Absent a default or delinquency in the payment of any Special Assessment,
nothing herein shall require the prepayment of any installment due on a Special Assessment prior
to its due date, except as otherwise provided by the Assessment Legislation. Special
Assessments will be levied to the full extent permitted by law and the Assessment Legislation.
The Local Government shall cause the Special Assessment Proceeds to be collected pursuant to
the Uniform Assessment Collection Act (as defined. in the Assessment Legislation) and shall not
change or allow a change in such method of collection without the prior written consent of the
Department.
ARTICLE VI - DEFAULTS AND REMEDIES
6.01. EVENTS OF DEFAULT.
Each of the following events is hereby declared an event of default:
(1) Failure to make any Monthly Loan Deposit or to make any installment of the
Semiannual Loan Payment when it is due and such failure shall continue for a period of 30 days.
(2) Except as provided in Subsections 6.01(1) and 6.01(7), failure to comply with the
provisions of this Agreement or failure in the performance or observance of any of the covenants
or actions required by this Agreement and such failure shall continue for a period of 60 days
after written notice thereof to the Local Government by the Department.
(3) Any warranty, representation or other statement by, or on behalf of, the Local
Government contained in this Agreement or in any information furnished in compliance with, or
in reference to, this Agreement, which is false or misleading.
(4) An order or decree entered, with the acquiescence of the Local Government,
appointing a receiver of any part of the Pledged Revenues; or if such order or decree, having
12
been entered without the consent or acquiescence of the Local Government, shall not be vacated
or discharged or stayed on appeal within 60 days after the entry thereof.
(5) Any proceeding instituted, with the acquiescence of the Local Government, for the
purpose of effecting a composition between the Local Government and its creditors or for the
purpose of adjusting the claims of such creditors, pursuant to any federal or state statute now or
hereafter enacted, if the claims of such creditors are payable from Pledged Revenues.
(6) Any bankruptcy, insolvency or other similar proceeding instituted by, or against, the
Local Government under federal or state bankruptcy or insolvency law now or hereafter in effect
and, if instituted against the Local Government, is not dismissed within 60 days after filing.
(7) Failure of the Local Government to give immediate written notice of default to the
Department and such failure shall continue for a period of 30 days.
6.02. REMEDIES.
Upon any event of default and subject to the rights of others having prior liens on the
Pledged Revenues, the Department may enforce its rights by any of the following remedies:
(1) By mandamus or other proceeding at law or in equity, cause the collection of
Pledged Revenues, and to require the Local Government to fulfill this Agreement.
(2) By action or suit in equity, require the Local Government to account for all moneys
received from the Department and to account for the receipt, use, application, or disposition of
the Pledged Revenues.
(3) By action or suit in equity, enjoin any acts or things which may be unlawful or in
violation of the rights of the Department.
(4) By applying to a court of competent jurisdiction, cause to appoint a receiver to levy
and collect the Pledged Revenues, and apply the Pledged Revenues to the reduction of the
obligations under this Agreement.
(5) By certifying to the Auditor General and the Chief Financial Officer delinquency on
loan repayments, the Department may intercept the delinquent amount plus a penalty from any
unobligated funds due to the Local Government under any revenue or tax sharing fund
established by the State, except as otherwise provided by the State Constitution. The Department
may impose a penalty in an amount not to exceed an interest rate of 18 percent per annum on the
amount due in addition to charging the cost to handle and process the debt. Penalty interest shall
accrue on any amount due and payable beginning on the 30th day following the date upon which
payment is due.
(6) By notifying financial market credit rating agencies and potential creditors.
(7) By suing for payment of amounts due, or becoming due, with interest on overdue
payments together with all costs of collection, including attorneys' fees.
13
(8) By accelerating the repayment schedule or increasing the Financing Rate on the
unpaid principal of the Loan to as much as 1.667 times the Financing Rate for a default under
Subsection 6.01(1).
6.03. DELAY AND WAIVER.
No delay or omission by the Department to exercise any right or power accruing upon
event of default shall impair any such right or power or shall be construed to be a waiver of any
such default or acquiescence therein, and every such right and power may be exercised as often
as may be deemed expedient. No waiver or any default under this Agreement shall extend to or
affect any subsequent event of default, whether of the same or different provision of this
Agreement, or shall impair consequent rights or remedies.
ARTICLE VII - THE PLEDGED REVENUES
7.01. SUPERIORITY OF THE PLEDGE TO THE DEPARTMENT
From and after the effective date of this Agreement, the Department shall have a lien on
the Pledged Revenues, which along with any other Department State Revolving Fund liens on
the Pledged Revenues, on equal priority, will be prior and superior to any other lien, pledge or
assignment with the following exception. All obligations of the Local Government under this
Agreement shall be junior, inferior, and subordinate in all respects in right of payment and
security to the Senior Revenue Obligations defined in Section 1.01 of this Agreement and to any
other additional senior obligations issued with the Department's consent pursuant to
Section 7.02. Any of the Pledged Revenues may be released from the lien on such Pledged
Revenues in favor of the Department if the Department makes a determination, based upon facts
deemed sufficient by the Department, that the remaining Pledged Revenues will, in each Fiscal
Year, equal or exceed 1.15 times the debt service coming due in each Fiscal Year under the
terms of this Agreement.
7.02. ADDITIONAL DEBT OBLIGATIONS.
The Local Government may issue additional debt obligations on a parity with, or senior
to, the lien of the Department on the Pledged Revenues provided the Department's written
consent is obtained. Such consent shall be granted if the Local Government demonstrates at the
time of such issuance that the Pledged Revenues, which may take into account revenue increases,
plus revenues to be pledged to the additional proposed debt obligations will, during the period of
time Semiannual Loan Payments are to be made under this Agreement, equal or exceed 1.15
times the annual combined debt service requirements of this Agreement and the obligations
proposed to be issued by the Local Government and will satisfy the coverage requirements of all
other debt obligations secured by the Pledged Revenues. Notwithstanding the foregoing, no such
consent is required with respect to issuance of Senior Revenue Obligations as defined in
Section 1.01.
14
ARTICLE VIII - GENERAL PROVISIONS
8.01. DISCHARGE OF OBLIGATIONS.
All payments required to be made under this Agreement shall be cumulative and any
deficiencies in any Fiscal Year shall be added to the payments due in the succeeding year and all
years thereafter until fully paid. Payments shall continue to be secured by this Agreement until
all of the payments required shall be fully paid to the Department. If at any time the Local
Government shall have paid, or shall have made provision for the timely payment of, the entire
principal amount of the Loan, and as applicable, Loan Service Fee, interest, and Grant Allocation
Assessment charges, the pledge of, and lien on, the Pledged Revenues to the Department shall be
no longer in effect. Deposit of sufficient cash, securities, or investments, authorized by law,
from time to time, may be made to effect defeasance of this Loan. However, the deposit shall be
made in irrevocable trust with a banking institution or trust company for the sole benefit of the
Department. There shall be no penalty imposed by the Department for early retirement of this
Loan.
8.02. PROJECT RECORDS AND STATEMENTS.
Books, records, reports, engineering documents, contract documents, and papers shall be
available to the authorized representatives of the Department for inspection at any reasonable
time after the Local Government has received a disbursement and until five years after the date
that the Project -specific audit report, required under Subsection 2.03(4), is issued.
8.03. ACCESS TO PROJECT SITE.
The Local Government shall provide access to Project sites and administrative offices to
authorized representatives of the Department at any reasonable time. The Local Government
shall cause its engineers and contractors to cooperate during Project inspections, including
making available working copies of plans and specifications and supplementary materials.
8.04. ASSIGNMENT OF RIGHTS UNDER AGREEMENT
The Department may assign any part of its rights under this Agreement after notification
to the Local Government. The Local Government shall not assign rights created by this
Agreement without the written consent of the Department.
8.05. AMENDMENT OF AGREEMENT.
This Agreement may be amended in writing, except that no amendment shall be
permitted which is inconsistent with statutes, rules, regulations, executive orders, or written
agreements between the Department and the U.S. Environmental Protection Agency. This
Agreement may be amended after all construction contracts are executed to re-establish the
Project cost, Loan amount, Project schedule, and Semiannual Loan Payment amount. A final
amendment establishing the final Project costs and the Loan Service Fee based on actual Project
costs shall be completed after the Department's final inspection of the Project records.
15
8.06. ANNULMENT OF AGREEMENT.
The Department may unilaterally annul this Agreement if the Local Government has not
drawn any of the Loan proceeds within eighteen months after the effective date of this
Agreement. If the Department unilaterally annuls this Agreement, the Department will provide
written notification to the Local Government.
8.07. SEVERABILITY CLAUSE.
If any provision of this Agreement shall be held invalid or unenforceable, the remaining
provisions shall be construed and enforced as if such invalid or unenforceable provision had not
been contained herein.
8.08. USE AS MATCHING FUNDS.
The U.S. Environmental Protection Agency has provided a class deviation from the
provisions of 40 CFR 35.3125(b)(1) to allow these second tier funds to be used as local matching
requirements for most EPA grant funded treatment works projects, including special
Appropriations Act projects.
8.09. COMPLIANCE VERIFICATION.
(1) The Local Government shall periodically interview 10% of the work force entitled to
Davis -Bacon prevailing wages (covered employees) to verify that contractors or subcontractors
are paying the appropriate wage rates. As provided in 29 CFR 5.6(a)(5), all interviews must be
conducted in confidence. The Local Government must use Standard Form 1445 or equivalent
documentation to memorialize the interviews. Copies of the SF 1445 are available from EPA on
request.
(2) The Local Government shall periodically conduct spot checks of a representative
sample of weekly payroll data to verify that contractors or subcontractors are paying the
appropriate wage rates. The Local Government shall establish and follow a spot check schedule
based on its assessment of the risks of noncompliance with Davis -Bacon posed by contractors or
subcontractors and the duration of the contract or subcontract. Local Governments must conduct
more frequent spot checks if the initial spot check or other information indicates that there is a
risk that the contractor or subcontractor is not complying with Davis -Bacon. In addition, during
the examinations the Local Government shall verify evidence of fringe benefit plans and
payments thereunder by contractors and subcontractors who claim credit for fringe benefit
contributions.
(3) The Local Government shall periodically review contractors and subcontractors use
of apprentices and trainees to verify registration and certification with respect to apprenticeship
and training programs approved by either the U.S Department of Labor (DOL) or a state, as
appropriate, and that contractors and subcontractors are not using disproportionate numbers of
laborers, trainees, and apprentices. These reviews shall be conducted in accordance with the
schedules for spot checks and interviews described in items (1) and (2) above.
L
(4) Local Governments must immediately report potential violations of the Davis -Bacon
prevailing wage requirements to the EPA Davis -Bacon contact Sheryl Parsons at
Parsons.Sheryl@epamail.epa.gov and to the appropriate DOL Wage and Hour District Office
listed at http://www.dol.gov/whd/america2.htm.
ARTICLE IX - CONSTRUCTION CONTRACTS AND INSURANCE
9.01. AUTHORIZATION TO AWARD CONSTRUCTION CONTRACTS.
The following documentation is required to receive the Department's authorization to
award construction contracts:
(1) Proof of advertising.
(2) Award recommendation, bid proposal, and bid tabulation (certified by the
responsible engineer).
(3) Certification of compliance with the conditions of the Department's approval of
competitively or non -competitively negotiated procurement, if applicable.
(4) Certification Regarding Disbarment, Suspension, Ineligibility and Voluntary
Exclusion.
(5) Assurance that the Local Government and contractors are in compliance with Section
1606 with labor standards, including prevailing wage rates established for its locality by the U.S.
Department of Labor under the Davis -Bacon Act for Project construction.
9.02. SUBMITTAL OF CONSTRUCTION CONTRACT DOCUMENTS.
After the Department's authorization to award construction contracts has been received,
the Local Government shall submit:
(1) Contractor insurance certifications.
(2) Executed Contract(s).
(3) Notices to proceed with construction.
9.03. INSURANCE REQUIRED.
The Local Government shall cause the Project, as each part thereof is certified by the
engineer responsible for overseeing construction as completed, and the Sewer System (hereafter
referred to as "Revenue Producing Facilities") to be insured by an insurance company or
companies licensed to do business in the State of Florida against such damage and destruction
risks as are customary for the operation of Revenue Producing Facilities of like size, type and
location to the extent such insurance is obtainable from time to time against any one or more of
such risks.
17
The proceeds of insurance policies received as a result of damage to, or destruction of,
the Project or the other Revenue Producing Facilities, shall be used to restore or replace damaged
portions of the facilities. If such proceeds are insufficient, the Local Government shall provide
additional funds to restore or replace the damaged portions of the facilities. Repair, construction
or replacement shall be promptly completed.
ARTICLE X - DETAILS OF FINANCING
10.01. PRINCIPAL AMOUNT OF LOAN.
The estimated principal amount of the Loan is $41,324,000, which consists of
$40,000,000 to be disbursed to the Local Government and $1,324,000 of Capitalized Interest.
Capitalized Interest is not disbursed to the Local Government, but is amortized via
periodic Loan repayments to the Department as if it were actually disbursed. Capitalized Interest
is computed at the Financing Rate, or rates, set for the Loan. It accrues and is compounded
annually from the time when disbursements are made until six months before the first
Semiannual Loan Payment is due. Capitalized Interest is estimated prior to establishing the
schedule of actual disbursements.
This project is a Segmented Project. Additional State Revolving Fund financing for the
Project is dependent upon the availability of additional funds. The current funding limitations
and future funding priority entitlement for Segmented Projects are set forth in the Chapter
62-503 of the Florida Administrative Code.
10.02. LOAN SERVICE FEE
The Loan Service Fee is estimated as $800,000 for the Loan amount authorized to date.
The fee represents two percent of the Loan amount excluding Capitalized Interest amount; that
is, two percent of $40,000,000. The Loan Service Fee is estimated at the time of execution of the
loan agreement and shall be revised with any increase or decrease amendment. The Loan
Service Fee is based on actual Project costs and assessed in the final loan amendment. The Local
Government shall pay the Loan Service Fee from the first available repayment(s) following the
final amendment.
Capitalized Interest is computed on the assessed Loan Service Fee at the Financing Rate,
or rates and included in the final amendment. It accrues and is compounded annually from the
final amendment date until six months before the first Semiannual Loan Payment is due.
10.03. FINANCING RATE.
The Financing Rate on the unpaid principal of the Loan amount specified in
Section 10.01 is 2.39 percent per annum. The Financing Rate equals the sum of the interest rate
and the Grant Allocation Assessment Rate. The interest rate is 1.195 percent per annum and the
Grant Allocation Assessment rate is 1.195 percent per annum. However, if this Agreement is not
executed by the Local Government and returned to the Department before July 1, 2013 the
Financing Rate may be adjusted. A new Financing Rate shall be established for any funds
provided by amendment to this Agreement.
18
10.04. LOAN TERM.
The Loan shall be repaid in 40 Semiannual Loan Payments.
10.05. REPAYMENT SCHEDULE
The Semiannual Loan Payment shall be computed based upon the principal amount of the
Loan plus the estimated Loan Service Fee and the principle of level debt service. The
Semiannual Loan Payment amount may be adjusted, by amendment of this Agreement, based
upon revised information. After the final disbursement of Loan proceeds, the Semiannual Loan
Payment shall be based upon the actual Project costs, the actual Loan Service Fee and Loan
Service Fee capitalized interest, if any, and actual dates and amounts of disbursements, taking
into consideration any previous payments. Actual Project costs shall be established after the
Department's inspection of the completed Project and associated records. The Department will
deduct the Loan Service Fee and any associated interest from the first available repayments
following the final amendment.
Each Semiannual Loan Payment shall be in the amount of $1,330,929 until the payment
amount is adjusted by amendment. The interest and Grant Allocation Assessment portions of
each Semiannual Loan Payment shall be computed, using their respective rates, on the unpaid
balance of the principal amount of the Loan, which includes Capitalized Interest. Interest (at the
Financing Rate) also shall be computed on the estimated Loan Service Fee. The interest and
Grant Allocation Assessment on the unpaid balance shall be computed as of the due date of each
Semiannual Loan Payment.
Semiannual Loan Payments shall be received by the Department beginning on August 15,
2016 and semiannually thereafter on February 15 and August 15 of each year until all amounts
due hereunder have been fully paid. Funds transfer shall be made by electronic means.
The Semiannual Loan Payment amount is based on the total amount owed of
$42,124,000, which consists of the Loan principal and the estimated Loan Service Fee.
10.06. PROJECT COSTS.
The Local Government and the Department acknowledge that the actual Project costs
have not been determined as of the effective date of this Agreement. Project cost adjustments
may be made as a result of mutually agreed upon Project changes. Capitalized Interest will be
recalculated based on actual dates and amounts of Loan disbursements. If the Local Government
receives other governmental financial assistance for this Project, the costs funded by such other
governmental assistance will not be financed by this Loan. The Department shall establish the
final Project costs after its final inspection of the Project records. Changes in Project costs may
also occur as a result of the Local Government's Project audit or a Department audit. The Local
Government agrees to the following estimates of Project costs:
PROJECT COSTS
AUTHORIZED LOAN
CATEGORY
COST($)
AMOUNT($) TO DATE
Allowance costs
5,434,652
Construction and Demolition
125,957,789
Line items
Contingencies
6,297,889
may vary
Technical Services After Bid Opening
8,817,045
based on Actual
(Less Florida Appropriations & Local Funds)
(56,507,376)
Disbursements
SUBTOTAL (Disbursable Amount)
90,000,000
40,000,000
Capitalized Interest
TOTAL (Loan Principal Amount)
10.07. SCHEDULE.
1,324,000 1,324,000
91,324,000 41,324,000
The Local Government agrees by execution hereof-
(1) Completion of Project construction is scheduled for February 15, 2016.
(2) The Loan Debt Service Account shall be established and Monthly Loan Deposits
shall begin no later than February 15, 2016.
(3) The initial annual certification required under Subsection 2.01(10) of this Agreement
shall be due May 15, 2016. Thereafter the certification shall be submitted no later than
September 30 of each year until the final Semiannual Loan Payment is made.
(4) The first Semiannual Loan Payment in the amount of $1,330,929 shall be due
August 15, 2016.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
20
ARTICLE XI - EXECUTION OF AGREEMENT
This Loan Agreement WW440710 shall be executed in three or more counterparts, any of
which shall be regarded as an original and all of which constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Department has caused this Agreement to be executed on
its behalf by the Program Administrator and the Local Government has caused this Agreement to
be executed on its behalf by its Authorized Representative and by its affixed seal. The effective
date of this Agreement shall be as set forth below by the Program Administrator.
SEAL
Attest
Clerk
for
MONROE COUNTY
Mayor, Board of County Commissioners
for
I attest to the opinion expressed in Section
2.02, entitled Legal Authorization.
County Attorney
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Program Administrator Date
State Revolving Fund
Attachment included as part of this Agreement:
Attachment A - Certification of Applicability to Single Audit Act Reporting
21
ADDITIONAL BACK-UP:
Resolution No. 095-2013
Ordinance No. 027-2003
Nabors, Giblin & Nickerson, P.A. Agreement
RESOLUTION NO. 095 . 2013
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
RELATING TO THE STATE REVOLVING FUND LOAN
PROGRAM; MAKING FINDINGS; AUTHORIZING THE
LOAN APPLICATION; AUTHORIZING THE LOAN
AGREEMENT; ESTABLISHING PLEDGED REVENUES;
DESIGNATING AUTHORIZED REPRESENTATIVES;
PROVIDING ASSURANCE; PROVIDING FOR CONFLICTS,
SEVERABILITY, AND EFFECTIVE DATE.
WHEREAS, Florida Statutes provide for loans to local government agencies to finance
the construction of water pollution control facilities; and
WHEREAS, Florida Administrative Code rules require authorization to apply for loans,
to establish pledged revenues; to designate an authorized representative; to provide assurances of
compliance with loan program requirements; and to enter into a loan agreement; and
WHEREAS, the State Revolving Fund loan priority list designates Project No. WW
44071 as eligible for available funding; and
WHEREAS, Monroe County, Florida, intends to enter into a loan agreement with the
Department of Environmental Protection under the State Revolving Fund for financing of the
Cudjoe Regional Wastewater System project;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
SECTION I. The foregoing findings are incorporated herein by reference and made a
part hereof.
SECTION 2. Monroe County, Florida is authorized to apply for a loan to finance the
Cudjoe Regional Wastewater System project.
SECTION 3. As security for the loan, Monroe County, Florida shall pledge and grant a
lien on the wastewater system development special assessment revenue
and the One Cent Infrastructure Sales Surtax revenues; provided, however,
the pledge of and lien on the One Cent Infrastructure Sales Surtax shall be
junior and subordinate in all respects to the pledge of and lien on such
Sales Surtax granted for the benefit of the holders of the Bonds heretofore
and hereafter issued pursuant to Resolution No. 077-2003, as amended and
supplemented.
SECTION 4. The County Administrator is hereby designated as the authorized
representative to provide the assurances and commitments required by the
loan application.
Res Regional SRF Cu 'oe R Page 1 of 2
d�
BOCC 3/20/13 (KP:NGN 3/19/13)
SECTION 5. The County Administrator is hereby designated as the authorized
representative to execute the loan agreement which will become a binding
obligation in accordance with its terms when signed by both parties. The
County Administrator is authorized to represent the County in carrying out
the County's responsibilities under the loan agreement. The County
Administrator is authorized to delegate responsibility to appropriate
County staff to carryout technical, fmancial, and administrative activities
associated with the loan agreement.
SECTION 6. The legal authority for borrowing moneys to construct the Cudjoe
Regional Wastewater System project is Section 153.03, Florida Statutes
and Chapter 125, Florida Statutes.
SECTION 7. Conflicts. All Resolutions, or parts of Resolutions, in conflict with any of
the provisions of this Resolution are hereby repealed.
SECTION 8. Severability. If any Section or portion of a Section of this Resolution
proves to be invalid, unlawful, or unconstitutional, it shall not be held to
invalidate or impair the validity, force or effect of any other Section or
part of this Resolution.
SECTION 9. Effective Date. This Resolution shall become effective immediately upon
its passage and adoption.
PASSED AND ADOPTED by the Board of County Commissioners-Lof MonW -n
County, Florida at a regular meeting of said Board held on the 20`h day of March2pl,3. = i=-
rn
� rn ZZ
Mayor George Neugent Yes _� -n
Mayor Pro Tem Heather Carruthers Yes — C)
Commissioner Danny Kolhage Yes
Commissioner David Rice Yes rn
Commissioner Sylvia Murphy Yes - c
Do
(SEAL)
ATTEST:{ AMY HEAVILIN, CLERK BOARD OF COUNTY COMMISSIONERS
By:
OF MONROE COUNTY, FLORIDA
--�
Deputy Clerk By; oe
ayor
:!!�
O O C
M:
Res Cudjce Regional SRF Page 2 of 2
BOCC 3/20/13 (KP:NGN /19/13)
3HK.L1NIpER, .fit.
�.? ` I QTT�OIRr
ORDINANCE NO. 027-2003
AN ORDINANCE OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA;
RELATING TO THE PROVISION OF WASTEWATER
SERVICES AND FACILITIES IN MONROE COUNTY,
FLORIDA; AUTHORIZING THE IMPOSITION AND
COLLECTION OF WASTEWATER ASSESSMENTS
AGAINST PROPERTY; PROVIDING CERTAIN DEFINITIONS
INCLUDING A DEFINITION FOR THE � TERM
"WASTEWATER ASSESSMENT"; ESTABLISHING A
PROCEDURE FOR IMPOSING WASTEWATER
ASSESSMENTS; PROVIDING THAT WASTEWATER
ASSESSMENTS CONSTITUTE A LIEN ON ASSESSED
PROPERTY UPON ADOPTION OF ASSESSMENT ROLL;
PROVIDING THAT THE LIEN FOR A WASTEWATER
ASSESSMENT COLLECTED PURSUANT TO SECTIONS
197.3632 AND 197.3635, FLORIDA STATUTES, UPON
PERFECTION SHALL ATTACH TO THE PROPERTY ON
THE PRIOR JANUARY 1, THE LIEN DATE FOR AD
VALOREM TAXES; PROVIDING THAT A PERFECTED LIEN
SHALL BE EQUAL IN RANK AND DIGNITY WITH THE
LIENS OF ALL STATE, COUNTY, DISTRICT, OR
MUNICIPAL TAXES AND -ASSESSMENTS AND SUPERIOR
IN DIGNITY TO ALL OTHER PRIOR LIENS, MORTGAGES,
TITLES, AND CLAIMS; PROVIDING A PROCEDURE FOR
COLLECTION OF WASTEWATER ASSESSMENTS;
PROVIDING A MECHANISM FOR THE IMPOSITION OF
ASSESSMENTS ON GOVERNMENT PROPERTY;
PROVIDING FOR SEVERABILITY; AND PROVIDING AN
EFFECTIVE DATE.
BE IT ORDAINED BYTHE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA:
ARTICLE I
INTRODUCTION
SECTION 1.01. DEFINITIONS. As used in this Ordinance, the following words
and terms shall have the following meanings, unless the context dearly otherwise requires:
"Annual Rate Resolution" means the resolution described In Section 2.08 of this
Ordinance, establishing the rate atwhich an Annual WastewaterAssessment fora specific
Fiscal Year will be computed. The Final Assessment Resolution shall constitute the
Annual Rate Resolution for the initial Fiscal Year in which an Annual Wastewater
Assessment is imposed or reimposed.
"Annual WastewaterAssessment" means a special assessment lawfully imposed
by the Board against Assessed Property to permit payment of the Assessable Costs over
a period of years.
"Assessable Costs" means the amount computed by adding (A) the amount of the
Capacity Fee and (B) all costs associated with the structure, Implementation, collection,
and enforcement of the Annual Wastewater Assessments, including any service charges
Of the County, Tax Collector, or Property Appraiser and amounts necessary to off -set
discounts received for early payment of Annual Wastewater Assessments pursuant to the
Uniform Assessment Collection Act and any other costs or expenses related to the
collection of the Assessment Costs.
2
"Assessed Property" means all parcels of land included on the Assessment Roll
that receive a special benefit from the delivery of the wastewater services and facilities
identified in the Initial Assessment Resolution or the Annual Rate Resolution.
"Assessment Interest Amount" means4he annual interest rate charged against
the unpaid Assessable Costs by a L411 fi Provider�pursuant to a duly enacted resolution.
"Assessment Roll" means the '31� assessment roll relating to a Annual
Wastewater Assessment approved by a Final Assessment Resolution pursuant to Section
2.06 hereof or an Annual Rate Resolution pursuant to Section 2.08 hereof.
"Board" means the Board of County Commissioners of Monroe County, Florida.
"Building" means anystructure, whether temporary or permanent, built forsupport,
shelter or enclosure of persons, chattel, or property of any kind, including mobile homes.
This term shall include the use of land in which lots or spaces are offered for use, rent or
lease for the placement of mobile homes, travel trailers, or the like for residential purpos q.�.
"Capacity Fee" means the fee established by a Utility Provider in the Utility Rate
Resolution to fund the capital cost of the wastewater capacity attributable to a Connection.
"Clerk" means the Clerk of the Circuit Court for Monroe County, Florida, as
ex-officio Clerk of the Board and such other person as may be duly authorized to act on
his or her behalf.
"Connection" means the physical interconnection of a Building's sanitary sewer
system to a central sewage system provided by a Utility Provider.
"Consent and Acknowledgment Agreement" means the agreement, required as
Provided in Sections 2.02 and 2.03 of this Ordinance, as a condition precedent to the
Owner receiving the privilege of paying the Assessable Costs in installments as an Annual
Wastewater Assessment rather than as a lump sum at the time of Connection. Th
e
3
Consent and Acknowledgment Agreement shall provide for the consent of the Owner to
the imposition of an Annual Wastewater Assessment against the Owner's property,
acknowledge the total Assessable Costs, acknowledge the amount and use of the Annual
Wastewater Assessment, confirm the benefit accruing to the Owner's Property from the
Assessable Costs and the Imposition of the Annual Wastewater Assessment, confirm the
Assessment Interest Amount, confirm the Wastewater Assessment Term for the
Installment payment of the Annual Wastewater Assessment, acknowledge the maximum
Annual Wastewater Assessment and that failure to pay the Annual Wastewater
Assessment will cause a tax certificate to be Issued against the Owner's property which will
result in a loss of title under the Uniform Assessment Collection Act, and waive the
provision of first class mailed notice provided for under the Uniform Assessment Collection
Act.
"County" means Monroe County, Florida.
"County Administrator" means the chief administrative officer of the County,
designated by the Board to be responsible for coordinating the Annual Wastewater
Assessments, or such person's designee.
"Final Assessment Resolution" means the resolution described in Section 2.06
hereof which shall confirm, modify, or repeal the Initial Assessment Resolution and which
shall be the final proceeding for the initial imposition of Annual Wastewater Assessments.
"Fiscal Year" means that period commencing October 1st of each year and
continuing through the next succeeding September 30th, or such other period as may be
prescribed by law as the fiscal year for the County.
4
"Government Property" means property owned by the United States of America
or any agency thereof, a sovereign state or nation, the State of Florida or any agency
thereof, a county, a special district or a municipal corporation.
"Initial Assessment Resolution" means the resolution described in Section 2.02
hereof which shall be the initial proceeding for the identification of the Assessable Costs
for which an assessment Is to be made and for the imposition of an Annual Wastewater
Assessment.
'Initial Wastewater Assessment Installment' means the initial installment in the
Wastewater Assessment Term required to be paid at the time of the execution of a
Consent and Acknowledgment Agreement as a condition for an Owner to exercise the
privilege to pay the Assessable Costs in installments as provided in Section 2.03 of this
Ordinance.
"Initial Wastewater Assessment Notice" means the initial certification provided
by a Utility Provider required under Section 2.02 of this Ordinance for the preparation of
the Initial Assessment Resolution.
"Ordinance" means this Wastewater Assessment Ordinance, as amended from
time -to -time.
"Owner" means the Person reflected as the owner of Assessed Property on the
Tax Roll.
"Person" means any individual, partnership, firm, organization, corporation,
association, or any other legal entity, whether singular or plural, masculine or feminine, as
the context may require.
"Property Appraiser" means the Monroe County Property Appraiser.
5
"Supplemental Annual Wastewater Assessment" means a new Annual
Wastewater Assessment not included or the Initial Assessment Roll certified by the Utility
Provider or in a Supplemental Wastewater Assessment Notice previously certified by the
Utility Provider pursuant to Section 2.08 of this Ordinance.
"Supplemental Wastewater Assessment Notice" means the certification required
under Section 2.08 of this Ordinance for the preparation of an Annual Rate Resolution
provided by the Utility Provider for Fiscal Years subsequent to the Fiscal Year in which the
Initial Assessment Resolution Is prepared.
"Tax Collector" means the Monroe County Tax Collector.
"Tax Roll" means the real property ad valorem tax assessment roll maintained by
the Property Appraiser for the purpose of the levy and collection of ad valorem taxes.
"Uniform Assessment Collection Act" means sections 197.3632 and 197.3635,
Florida Statutes, or any successor statutes authorizing the collection of non -ad valorem
assessments on the same bill as ad valorem taxes, and any applicable regulations
promulgated thereunder.
"Utility Rate Resolution" means the schedule of rates, fees, and charges duly
approved by the Board or by a Utility Provider.
"Utility Provider" means all publicly owned wastewater utilities operating in the
unincorporated area of the County and all privately owned wastewater utilities operating
within the unincorporated area of the County where the County has purchased utility
capacity from that utility, including, but not limited to, the Florida Keys Aqueduct Authority,
the Key Largo Wastewater Treatment District and the KW Resort Utility operating within
South Stock Island.
N.
"WastewaterAssessment Term" means the numberof installments, excluding the
Initial Assessment Installment, that an Annual Wastewater Assessment is to be imposed
as documented in the Initial Wastewater Assessment Notice or a Supplemental
Wastewater Assessment Notice. The Wastewater Assessment Term shall not exceed a
time period of twenty (20) years.
SECTION 1.02. INTERPRETATION. Unless the context indicates otherwise,
words importing the singular number include the plural number, and vice versa; the terms
"hereof," "hereby," "herein," "hereto," "hereunder" and similarterms referto this Ordinance;
and the term "hereafter' means after, and the term "heretofore" means before, the effective
date of this Ordinance. Words of any gender include the correlative words of the other
genders, unless the sense indicates otherwise.
SECTION 1.03. GENERAL FINDINGS. It is hereby ascertained, determined,
and declared that:
(A) Pursuant to Article VIII, section 1, Florida Constitution, and sections 125.01
and 125.66, Florida Statutes, the Board has all powers of local self-government to perform
county functions and to render county services in a manner not inconsistent with law, and
such power may be exercised by the enactment of County ordinances.
(B) A reduction in the amount of costs due at the time of Connection from the
Owners of properties required to connect to a central sewage system by the availability of
an Annual Wastewater Assessment option that permits Assessable Costs to be paid over
a period of years provides a special benefit to property and encourages properties to
connect to a central sewage system on a timely basis.
(C) The Annual Wastewater Assessment authorized by this Ordinance provides
an equitable method of funding the Assessable Costs.
7
(D) The purpose of this Ordinance is to (1) provide procedures and standards for
the imposition of an Annual Wastewater Assessment by the County under the general
home rule powers of a county to impose special assessments; (2) identify the Assessable
Costs to be collected in installments by the imposition of the Annual Wastewater
Assessments; (3) authorize a procedure for the funding of wastewater facilities providing
special benefits to property within the County; and (4) legislatively determine the special
benefit provided to Assessed Property from the provision of wastewater facilities and
services.
(E) The Annual Wastewater Assessment, to be Imposed using the procedures
provided in this Ordinance, shall constitute non -ad valorem assessments within the
meaning and intent of the Uniform Assessment Collection Act.
(F) The Annual Wastewater Assessment to be imposed using the procedures
provided in this Ordinance are imposed by the Board, not the Clerk, Property Appraiser or
Tax Collector. The duties of the Clerk, Property Appraiser and Tax Collector under the
provisions of this Ordinance and the Uniform Assessment Collection Act are ministerial.
SECTION 1.04. LEGISLATIVE DETERMINATIONS OF SPECIAL BENEFIT.
It is hereby ascertained and declared that the wastewater services and facilities comprising
the Assessable Costs provide a special benefit to property because wastewater services
and facilities possess a logical relationship to the use and enjoyment of improved property
by: (1) facilitating the development of property and increasing the use and enjoyment
thereof; (2) positively affecting the marketability and market value of the property by the
presence of a central sewage treatment service; (3) properly and safely disposing of
sewage generated on improved property; and (4) enhancing improved property through the
environmentally responsible use and enjoyment of the property.
0
ARTICLE If
ANNUAL WASTEWATER ASSESSMENTS
SECTION 2.01. GENERAL AUTHORITY.
(A) The Board is hereby authorized to impose an Annual Wastewater
Assessment to fund all or any portion of the Assessable Costs upon benefitted property
at a rate of assessment based on the special benefit accruing to such property from a
Utility Provider's provision of wastewater services and facilities. All Annual Wastewater
Assessments shall be imposed in conformity with the procedures set forth in this Article II.
(B) Annual Wastewater Assessments shall be imposed for a term of years, not
to exceed twenty (20) years, in equal annual amounts sufficient to pay the Assessable
Costs and the Assessment Interest Amount.
(C) Nothing contained in this Ordinance shall be construed to require the
imposition of an Annual Wastewater Assessment against Government Property.
SECTION 2.02. INITIAL PROCEEDINGS.
(A) At the time of Connection, an Owner shall pay directly to the Utility Provider
the Capacity Fee required by the Utility Provider under its ,utility service rules and
regulations as a condition of Connection or an Owner may elect to pay the Capacity Fee
together with an Assessable Interest Amount and all other Assessable Costs in
installments in the form of an Annual Wastewater Assessment assessed against such
property over a set period not to exceed twenty (20) years. In the event a property Owner
elects the privilege to pay an Annual Wastewater Assessment in installments, such Owner
will sign a binding Consent and Acknowledgment Agreement with the County prior to
Connection and shall pay the Initial Wastewater Assessment Installment as required in
Section 2.03 of this Ordinance.
(B) As a condition pursuant to the initial imposition of an Annual Wastewater
Assessment, the Utility Provider shall certify to the County, prior to June 1, an Initial
Wastewater Assessment Notice containing the following information:
(1) A list of the Owners who have elected the privilege of paying the
Annual Wastewater Assessment in installments and a copy of the Consent and
Acknowledgment Agreement executed by such Owner;
(2) Summary description of each parcel of property (conforming to the
description contained on the Tax Roll) subject to the Annual Wastewater Assessment;
(3) The name of the Owner of each parcel as shown on the Tax Roll;
(4) The Assessable Costs attributable to each parcel;
(5) The Annual Wastewater Assessment amount;
(6) The term of years for the installment payment of the Annual
Wastewater Assessment;
(7) The applicable Assessment Interest Amount; and
(8) Acknowledgment of receipt of the Initial Wastewater Assessment
Installment for each parcel of property.
(C) Thereafter, the initial proceeding for the imposition of an Annual Wastewater
Assessment shall be the adoption of an Initial Assessment Resolution by the Board, (1)
describing the properties electing to pay the Assessable Costs in installments by the
imposition of an Annual Wastewater Assessment, (2) determining the Assessable Costs
to be assessed against each property, (3) establishing the Annual WastewaterAssessment
amount for the ensuing Fiscal Year, (4) confirming the Wastewater Assessment Term; and
(5) directing the County Administratorto (a) prepare the initial Assessment Roll, as required
by Section 2.04 hereof, and (b) publish the notice required by Section 2.06 hereof.
10
SECTION 2.03. CONDITIONS ON ELECTION TO PAY THE ASSESSABLE
COSTS IN INSTALLMENTS. As a condition pursuant to the Owner receiving the privilege
of paying the Assessable Costs in installments the County and the Owner shall enter into
a Consent and Acknowledgment Agreement and the Owner shall pay to the Utility Provider
the Initial Wastewater Assessment Installment.
SECTION 2.04. INITIAL ASSESSMENT ROLL.
(A) The County Administrator shall prepare, ordirect the preparation of, the initial
Assessment Roll, which shall contain the following:
(1) A summary description of all Assessed Property conforming to the
description contained on the Tax Roll.
(2) The name of the Owner of the Assessed Property.
(3) The amount of the Annual Wastewater Assessment to be imposed
against each such parcel of Assessed Property.
(B) The initial Assessment Roll shall be retained bythe County Administrator and
shall be open to public inspection. The foregoing shall not be construed to require that the
Assessment Roll be in printed form if the amount of the Annual Wastewater Assessment
for each parcel of property can be determined by use of a computer terminal available to
the public.
SECTION 2.05. NOTICE BY PUBLICATION. Upon completion of the initial
Assessment Roll, the County Administrator shall publish, or direct the publication of, once
In a newspaper of general circulation within the County a notice stating that at a meeting
of the Board on a certain day and hour, not earlier than 20 calendar days from such
publication, which meeting shall be a regular, adjourned, or special meeting, the Board will
hear objections of all interested persons to the Final Assessment Resolution and approve
11
the aforementioned initial Assessment Roll. The published notice shall conform to the
requirements set forth in the Uniform Assessment Collection Act.
SECTION 2.06. ADOPTION OF FINAL ASSESSMENT RESOLUTION. At the
public hearing as noticed pursuant to Sections 2.05 hereof, or to which an adjournment or
continuance may be taken by the Board, the Board shall receive any oral or written
objections of interested persons and may then, or at any subsequent meeting of the Board
adopt the Final Assessment Resolution which shall (A) confirm, modify, or repeal the Initial
Assessment Resolution with such amendments, if any, as may be deemed appropriate by
the Board; (B) impose the Annual Wastewater Assessment; (C) approve the initial
Assessment Roll, with such amendments as it deems just and right; and (D) determine the
method of collection. The adoption of the Final Assessment Resolution by the Board shall
constitute a legislative determination that all parcels assessed derive a special benefit from
the wastewater services and facilities, to be provided or constructed and a legislative
determination that the Annual Wastewater Assessment is fairly and reasonably
apportioned among the properties that receive the special benefit. All written objections
to the Final Assessment Resolution shall be filed with the County Administrator at or before
the time or adjourned time of such hearing. The Final Assessment Resolution shall
constitute the Annual Rate Resolution for the initial Fiscal Year in which an Annual
Wastewater Assessment is imposed or reimposed hereunder.
SECTION 2.07. EFFECT OF FINAL ASSESSMENT RESOLUTION. The
Annual Wastewater Assessment for the initial Fiscal Year shall be established upon
adoption of the Final Assessment Resolution. The adoption of the Final Assessment
Resolution shall be the final adjudication of the issues presented (including, but not limited
to, the reasonableness of the legislative determination of special benefit and fair
12
apportionment to the Assessed Property; the reasonableness of the method of
apportionment; the enforceability and accuracy of the calculation of the initial rate of
assessment and the preparation of the initial Assessment Roll; and the validity and
enforceability of the lien of the Annual Wastewater Assessment), unless proper steps shall
be initiated in a court of competent jurisdiction to secure relief within 20 days from the date
of the Board action on the Final Assessment Resolution. The initial Assessment Roll, as
approved by the Final Assessment Resolution, shall be delivered to the Tax Collector, as
required by the Uniform Assessment Collection Act, or if the alternative method described
in Section 3.02 hereof is used to collect the Annual Wastewater Assessments, such other
official as the Board by resolution shall designate.
SECTION 2.08. ADOPTION OF ANNUAL RATE RESOLUTION.
(A) The Board shall adopt an Annual Rate Resolution during its budget adoption
process for each Fiscal Year following the initial Fiscal Year during the Wastewater
Assessment Term.
(B) As the Initial proceedings for the adoption of an Annual Rate Resolution the
Utility Provider shall certify prior to June 1 of each Fiscal Year a Supplemental Wastewater
Assessment Notice containing the following information:
(1) For each Supplemental Annual WastewaterAssessment: (a)summary
description of the parcel subject to the assessment (conforming to the description
contained on the Tax Roll); (b) the name of the Owner of the parcel assessed as shown
on the Tax Roll; (c) the Assessable Costs, Annual Wastewater Assessment amount,
Wastewater Assessment Term and Assessment Interest Amount attributable to the
assessed parcel for the Supplemental Annual Wastewater Assessment; and (d)
13
acknowledgment of the receipt of the Initial Wastewater Assessment for the parcel subject
to the Supplemental Annual Wastewater Assessment;
(2) Any deletions of an Annual Wastewater Assessment imposed against
a parcel of property or a previously adopted Assessment Roll as a consequence of the
prepayment of unpaid Assessable Costs pursuant to any right of prepayment provided by
resolution.
(C) Based on the information provided in the Supplemental Wastewater
Assessment Notice, the Board shall adopt an Annual Rate Resolution:
(1) Authorizing the date, time, and place of a public hearing to receive and
consider comments from the public and consider the adoption of the Annual Rate
Resolution for the upcoming Fiscal Year, and
(2) Directing the County Administrator to (a) update the Assessment Roll,
(b) provide notice by publication pursuant to Section 2.05 herein (c) provide notice by first
class mail to affected Owners in the event circumstances described in subsection (E) of
this Section so require, and (d) directing and authorizing any supplemental or additional
notice deemed proper, necessary or convenient by the County.
(D) The Annual Rate Resolution shall (1) establish the Annual Wastewater
Assessment to be imposed in the upcoming Fiscal Year and (2) approve the Assessment
Roll forthe upcoming Fiscal Yearwith such adjustments as the Board deems just and right.
The Assessment Roll shall be prepared in accordance with the method of apportionment
set forth in the Initial Assessment Resolution, together with modifications, if any, that are
provided and confirmed in the Final Assessment Resolution or any subsequent Annual
Rate Resolution.
14
(E) In the event (1) the proposed Annual Wastewater Assessment for any Fiscal
Year exceeds the maximum rate of assessment provided in the Consent and
Acknowledgment Agreement, (2) the purpose for which the Annual Wastewater
Assessment is imposed or the use of the revenue from the Annual Wastewater
Assessment is substantially changed from that acknowledged in the Consent and
Acknowledgment Agreement, or (3) Assessed Property is reclassified or the method of
apportionment is revised or altered resulting in an increased Annual Wastewater
Assessment from that represented in any publication provided pursuant to Section 2.05 or
acknowledged in the Consent and Acknowledgment Agreement, notice shall be provided
first class mail to the Owners of such Assessed Property. Such notice shall substantially
conform with the notice requirements set forth in the Uniform Assessment Collection Act
and inform the Owner of the date, time, and place for the adoption of the Annual Rate
Resolution. The failure of the Owner to receive such notice due to mistake or
inadvertence, shall not affect the validity of the Assessment Roll nor release or discharge
any obligation for payment of an Annual Wastewater Assessment imposed by the Board
pursuant to this Ordinance.
(F) As to any Assessed Property not included on an Assessment Roll approved
by the adoption of the Final Assessment Resolution or prior yearAnnual Rate Resolution,
the adoption of the succeeding Annual Rate Resolution shall be the final adjudication of
the issues presented as to such Assessed Property (including, but not limited to, the
reasonableness of the legislative determination of special benefit and fair apportionment
to the Assessed Property; the reasonableness of the method of apportionment; the
enforceability and accuracy of the calculation of the initial rate of assessment and the
preparation of the initial Assessment Roll; and the validity and enforceability of the lien of
15
the Annual Wastewater Assessment), unless proper steps shall be initiated in a court of
competent jurisdiction to secure relief within 20 days from the date of the Board action on
the Annual Rate Resolution. Nothing contained herein shall be construed or interpreted
to affect the finality of any Annual Wastewater Assessment not challenged within the
required 20-day period for those Annual Wastewater Assessments previously imposed
against Assessed Property by the inclusion of the Assessed Property on an Assessment
Roll approved in the Final Assessment Resolution or any subsequent Annual Rate
Resolution.
(G) The Assessment Roll, as approved by the Annual Rate Resolution, shall be
delivered to the Tax Collector as required by the Uniform Assessment Collection Act, or
if the alternative method described in Section 3.02 hereof is used to collect the Annual
Wastewater Assessment, such other official as the Board by resolution shall designate.
If the Annual Wastewater Assessment against any property shall be sustained, reduced,
or abated by the court, an adjustment shall be made on the Assessment Roll.
SECTION 2.09. LIEN OF ANNUAL WASTEWATER ASSESSMENTS. Upon
the adoption of the Assessment Roll, all Annual Wastewater Assessments shall constitute
a lien against Assessed Property equal in rank and dignity with the liens of all state, county,
district, or municipal taxes and special assessments. Except as otherwise provided by law,
such lien shall be superior in dignity to all other prior liens, mortgages, titles, and claims,
until paid. The lien for an Annual Wastewater Assessment shall be deemed perfected
upon the Board's adoption of the Final Assessment Resolution or the Annual Rate
Resolution, whichever is applicable. The lien for an Annual Wastewater Assessment
collected under the Uniform Assessment Collection Act shall attach to the property
included on the Assessment Roll as of the prior January 1, the lien date for ad valorem
16
taxes imposed under the Tax Roll. The lien for an Annual Wastewater Assessment
collected under the alternative method of collection provided in Section 3.02 shall be
deemed perfected upon the Board's adoption of the Final Assessment Resolution or the
Annual Rate Resolution, whichever is applicable, and shall attach to the property on such
date of adoption.
SECTION 2.10. REVISIONS TO ANNUAL WASTEWATER ASSESSMENTS.
If any Annual Wastewater Assessment made under the provisions of this Ordinance is
either in whole or in part annulled, vacated, or set aside by the judgment of any court, or
if the Board is satisfied that any such Annual Wastewater Assessment is so irregular or
defective that the same cannot be enforced or collected, or if the Board has failed to
include or omitted any property on the Assessment Roll which property should have been
so included, the Board may take all necessary steps to impose a new Annual Wastewater
Assessment against any property benefitted by the Wastewater Assessed Costs, following
as nearly as may be practicable, the provisions of this Ordinance and in case such second
Annual Wastewater Assessment is annulled, vacated, or set aside, the Board may obtain
and impose other Annual Wastewater Assessments until a valid Annual Wastewater
Assessment is imposed.
SECTION 2.11. PROCEDURAL IRREGULARITIES. Any informality or
irregularity in the proceedings in connection with the levy of any Annual Wastewater
Assessment under the provisions of this Ordinance shall not affect the validity of the same
after the approval thereof, and any Annual Wastewater Assessment as finally approved
shall be competent and sufficient evidence that such Annual Wastewater Assessment was
duly levied, that the Annual Wastewater Assessment was duly made and adopted, and that
all other proceedings adequate to such Annual Wastewater Assessment were duly had,
17
taken, and performed as required by this Ordinance; and no variance from the directions
hereunder shall be held material unless it be clearly shown that the party objecting was
materially injured thereby.
SECTION 2.12. CORRECTION OF ERRORS AND OMISSIONS.
(A) No act of error or omission on the part of the Property Appraiser, Tax
Collector, County Administrator, Board, or their deputies or employees, shall operate to
release or discharge any obligation for payment of an Annual Wastewater Assessment
imposed by the Board under the provision of this Ordinance.
(B) When it shall appear that any Annual Wastewater Assessment should have
been imposed under this Ordinance against a parcel of property specially benefitted by the
provision of wastewater services, facilities, or programs, but that such property was omitted
from the Assessment Roll; or such property was erroneously assessed; or was not listed
on the Tax Roll as an individual parcel of property as of the effective date of the
Assessment Roll approved by the Annual Rate Resolution for any upcoming Fiscal Year,
the Board may, upon provision of a notice by mail provided to the Owner of the omitted
or erroneously assessed parcel in the manner and form provided in the Uniform
Assessment Collection Act, impose the applicable Annual Wastewater Assessment for the
Fiscal Year in which such error or omission is discovered, in addition to the applicable
Annual Wastewater Assessment due for the prior two Fiscal Years. Such Annual
Wastewater Assessment shall constitute a lien against Assessed Property equal in rank
and dignity with the liens of all state, county, district, or municipal taxes and special
assessments, and superior in rank and dignity to all other prior liens, mortgages, titles, and
claims in and to or against the real property involved, shall be collected as provided in
18
Article III hereof, and shall be deemed perfected on the date of adoption of the resolution
imposing the omitted, delinquent, or corrected assessments.
(C) Prior to the delivery of the Assessment Roil to the Tax Collector in
accordance with the Uniform Assessment Collection Act, the County Administrator shall
have the authority at any time, upon his or her own initiative or in response to a timely filed
petition from the Owner of any property subject to an Annual Wastewater Assessment, to
reclassify property based upon presentation of competent and substantial evidence, and
correct any error in applying the Annual Wastewater Assessment apportionment method
to any particular parcel of property not otherwise requiring the provision of notice pursuant
to the Uniform Assessment Collection Act. Any such correction shall be considered valid
ab initio and shall In no way affect the enforcement of the Annual Wastewater Assessment
imposed under the provisions of this Ordinance. All requests from affected property
owners for any such changes, modifications or corrections shall be referred to, and
processed by, the County Administrator and not the Property Appraiser or Tax Collector.
(D) After the Assessment Roll has been delivered to the Tax Collector in
accordance with the Uniform Assessment Collection Act, any changes, modifications, or
corrections thereto shall be made in accordance with the procedures applicable to
correcting errors and insolvencies on the Tax Roll upon timelywritten request and direction
of the County Administrator.
ARTICLE III
COLLECTION AND USE OF ANNUAL WASTEWATER ASSESSMENTS
SECTION 3.01. METHOD OF COLLECTION.
(A) Unless otherwise directed by the Board, the Annual Wastewater
Assessments shall be collected pursuant to the uniform method provided in the Uniform
19
Assessment Collection Act, and the County shall comply with all applicable provisions of
the Uniform Assessment Collection Act. Any hearing or notice required by this Ordinance
may be combined with any other hearing or notice required by the Uniform Assessment
Collection Act or other provision of law.
(B) The amount of an Annual Wastewater Assessment to be collected using the
uniform method pursuant to the Uniform Assessment Collection Act for any specific parcel
of benefitted property may include an amount equivalent to the payment delinquency,
delinquency fees and recording costs for a prior years assessment for a comparable
service, facility, or program provided: (1) the collection method used in connection with
the prior years assessment did not employ the use of the uniform method of collection
authorized by the Uniform Assessment Collection Act, (2) notice is provided to the Owner
as required under the Uniform Assessment Collection Act, and (3) any lien on the affected
parcel for the prior years assessment is supplanted and transferred to such Annual
Wastewater Assessment upon certification of a non -ad valorem roll to the Tax Collector
by the County.
SECTION 3.02. ALTERNATIVE METHOD OF COLLECTION. In lieu of using
the Uniform Assessment Collection Act, the Board may elect to collect the Annual
Wastewater Assessments by any other method which is authorized by law or under the
alternative collection method provided by this Section:
(A) The Board shall provide Annual Wastewater Assessment bills by first class
mail to the Owner of each affected parcel of property, other than Government Property.
The bill or accompanying explanatory material shall include (1) a brief explanation of the
Annual Wastewater Assessment, (2) a description of the unit of measurement used to
determine the amount of the Annual Wastewater Assessment, (3) the number of units
20
contained within the parcel, (4) the total amount of the Annual Wastewater Assessment
Imposed against the parcel for the appropriate period, (5) the location at which payment
will be accepted, (6) the date on which the Annual Wastewater Assessment is due, and (7)
a statement that the Annual Wastewater Assessment constitutes a lien against Assessed
Property equal in rank and dignity with the liens of all state, county, district or municipal
taxes and other non -ad valorem assessments.
(B) A general notice of the lien resulting from imposition of the Annual
Wastewater Assessments shall be recorded in the Official Records of the County. Nothing
herein shall be construed to require that individual liens or releases be filed In the Official
Records.
(C) The Board shall have the right to foreclose and collect all delinquent Annual
Wastewater Assessments in the manner provided by law for the foreclosure of mortgages
on real property or appoint or retain an agent to Institute such foreclosure and collection
proceedings. An Annual Wastewater Assessment shall become delinquent if it is not paid
within 30 days from the date any installment Is due. The Board or its agent shall notify any
property ownerwho is delinquent in payment of his or herAnnual Wastewater Assessment
within 60 days from the date such assessment was due. Such notice shall state in effect
that the Board or its agent will either (1) initiate a foreclosure action or suit In equity and
cause the foreclosure of such property subject to a delinquent Annual Wastewater
Assessment in a method now or hereafter provided by law for foreclosure of mortgages on
real property, or (2) cause an amount equivalent to the delinquent Annual Wastewater
Assessment, not previously subject to collection using the uniform method under the
Uniform Assessment Collection Act, to be collected on the tax bill for a subsequent year.
21
(D) All costs, fees and expenses, including reasonable attorney fees and title
search expenses, related to any foreclosure action as described herein shall be included
in any judgment or decree rendered therein. At the sale pursuant to decree in any such
action, the County may be the purchaser to the same extent as any Person. The Board
or its agent may join in one foreclosure action the collection of Annual Wastewater
Assessments against any or all property assessed in accordance with the provisions
hereof. All delinquent Owners whose property is foreclosed shall be liable for an
apportioned amount of reasonable costs and expenses incurred by the Board and its
agents, including reasonable attorney fees, in collection of such delinquent Annual
Wastewater Assessments and any other costs incurred by the Board as a result of such
delinquent Annual Wastewater Assessments and the same shall be collectible as a part
of or in addition to, the costs of the action.
(E) In lieu of foreclosure, any delinquent Annual Wastewater Assessment and
the costs, fees and expenses attributable thereto, may be collected pursuant to the
Uniform Assessment Collection Act; provided however, that (1) notice is provided to the
Owner in the manner required by the Uniform Assessment Collection Act and this
Ordinance, and (2) any existing lien of record on the affected parcel for the delinquent
Annual Wastewater Assessment is supplanted by the lien resulting from certification of the
Assessment Roll, as applicable, to the Tax Collector.
(F) Notwithstanding the Board's use of an alternative method of collection, the
County Administrator shall have the same power and authority to correct errors and
omissions as provided to him or other County officials in Section 2.12 hereof.
(G) Any Board action required in the collection of Annual Wastewater
Assessments may be by resolution.
22
SECTION 3.03. GOVERNMENT PROPERTY.
(A) In the event Annual Wastewater Assessments are imposed against
Government Property, the Board shall provide Annual Wastewater Assessment bills byfirst
class mail to the Owner of each affected parcel of Government Property. The bill or
accompanying explanatory material shall include (1) a brief explanation of the Annual
Wastewater Assessment, (2) a description of the unit of measurement used to determine
the amount of the Annual Wastewater Assessment, (3) the number of units contained
within the parcel, (4) the total amount of the parcel's Annual Wastewater Assessment for
the appropriate period, (5) the location at which payment will be accepted, and (6) the date
on which the Annual Wastewater Assessment is due.
(B) Annual Wastewater Assessments imposed against Government Property
shall be due on the same date as all other Annual Wastewater Assessments and, if
applicable, shall be subject to the same discounts for early payment.
(C) An Annual Wastewater Assessment shall become delinquent if it is not paid
within 30 days from the date any installment is due. The Board shall notify the Owner of
any Government Property that is delinquent in payment of its Annual Wastewater
Assessment within 60 days from the date such assessment was due. Such notice shall
state that the Board will initiate a mandamus or other appropriate judicial action to compel
payment.
(D) All costs, fees and expenses, including reasonable attorney fees and title
search expenses, related to any mandamus or other action as described herein shall be
included in any judgment or decree rendered therein. All delinquent Owners of
Government Property against which a mandamus or other appropriate action is filed shall
be liable for an apportioned amount of reasonable costs and expenses incurred by the
23
County, including reasonable attorney fees, in collection of such delinquent Annual
Wastewater Assessments and any other costs incurred by the Board as a result of such
delinquent Annual Wastewater Assessments and the same shall be collectible as a part
of or in addition to, the costs of the action.
(E) As an alternative to the foregoing, an Annual Wastewater Assessment
imposed against Government Property may be collected as a surcharge on a utility bill
provided to such Government Property in periodic installments with a remedy of a
mandamus action in the event of non-payment.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01. APPLICABILITY. This Ordinance and the Board's authority to
impose assessments pursuant hereto shall be applicable throughout the unincorporated
area of the County and throughout the incorporated area of any municipality whose
governing body has heretofore or hereafter requested and consented to the provision of
the wastewater services, facilities and programs by the County.
SECTION 4.02. ALTERNATIVE METHOD.
(A) This Ordinance shall be deemed to provide an additional and alternative
method for the doing of the things authorized hereby and shall be regarded as
supplemental and additional to powers conferred by other laws, and shall not be regarded
as in derogation of any powers now existing or which may hereafter come into existence.
This Ordinance, being necessary for the welfare of the Inhabitants of the County, shall be
liberally construed to effect the purposes hereof.
(B) Nothing herein shall preclude the Board from directing and authorizing, by
resolution, the combination with each other of (1) any supplemental or additional notice
24
Deemed proper, necessary, or convenient by the County, (2) any notice required by this
Ordinance, or (3) any notice required by law, including the Uniform Assessment Collection Act.
SECTION 4.03. SEVERABIUTY. The provisions of this Ordinance are severable;
and if any section, subsection, sentence, clause or provision is held invalid by any court of
Competent jurisdiction, the remaining provisions of this Ordinance shall not be affected thereby.
SECTION 4.04. EFFECTIVE DATE. The Clerk shall file a certified copy of this
Ordinance with the Department of State within ten days of its adoption. This Ordinance shall
take effect immediately upon its filing with the Department of State.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the 15th day of July, 2003.
Mayor Spehar
_a Mayor Pro Tern Nelson
wissioner McCoy
06M' Missioner Neugent
i.ron)ia
ssioner Rice
St DANNY L.KOLHAGE, Cleric
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE CO�NyT,Y, FLORIDA
By
Mayor/Chairpeison
MONROE COUNTY ATTORNEY
- V
FORM:
R N. WOLFE
CHI 8187ObMTUMONNEY
Deu Q SS��
STATE OF FLORIDA ti
COUNTY OF FV.G ,;ZOE
This
A.D., 2 ;.
y ID.
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL (305) 289. M
FAX (305) 2MI745
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
MONROE COUNTY COURTHOUSE
5W WHrI'EHFAD STREET surrE lol
KEY WEST FLORIDA 33M
TEL. (3W5) 292-3550
FAX 005) 295.3W
August 19, 2003
Department of State, Bureau of Administrative Code
The Collins Building
107 West Gaines Street, Suite L43
Tallahassee, Florida 32399-0250
Dear Ms. Cloud:
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
WW OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 3M
TEL M5) 852-7145
FAX (305) 852-7146
Certified Mail Receipt #7002 2030 0001 2668 9990
Please be advised that at a Regular Meeting in formal session on July 15, 2003 the Board
of County Commissioners of Monroe County adopted Ordinance No. 027-2003 relating to the
provision of wastewater services and facilities in Monroe County, Florida; authorizing the
imposition and collection of wastewater assessments against property; providing certain
definitions including a definition for the term "wastewater assessment"; establishing a procedure
for imposing wastewater assessments; providing that wastewater assessments constitute a lien on
assessed property upon adoption of assessment roll; providing that the lien for a wastewater
assessment collected pursuant to Sections 197.3632 and 197.3635, Florida Statutes, upon
perfection shall attach to the property on the prior January 1, the lien date for ad valorem taxes;
providing that a perfected lien shall be equal in rank and dignity with the liens of all state, county,
district, or municipal taxes and assessments and superior in di
mortgages, titles, and claims; providing a procedure fgnity to all or collectio of wastewatprior hens,
er assessments;
providing a mechanism for the imposition of assessments on government property; providing for
severability; and providing an effective date.
Attached hereto is a certified copy of the subject Ordinance for your handling.ul
Sho
you have any questions concerning the above, please do not hesitate to contact this office. d
Very truly yours,
Danny L. Kolhage
Clerk of Court and ex-ofEcio Clerk to the
Board of County Commissioners
By
Isabel C. DeSantis, �Depu��ty Clerk
Cc: Municipal Code Corporation, Certified Mail Receipt #7002 2030 0001 2668 9983
Monroe County Commission
County Administrator
County Attorney
Growth Management Director
Property Appraiser
Tax Collector
Finance
File ✓
'Z 7• Ze e3
Aium—tDwrrsr
TM Flodfde Keys On& OW& NeweomPe . 6t 18m
Cooke Communications, LLC
Florida Keys
Mary Beth Canitano
Advertising Coordinator
PO Box 1800
Key West A 33041
Office .......... 305-292-7777
Extension.................x219
Fax.............305-294-0768
mcan'dano®keysnews.eom
INTERNET PUBLISHING
keywesteom
keysnews.can
8owekeys.com
key -west. —
Web Design Services
NEWSPAPERS
The Citizen
Southernmost Flyer
sdares Hill
Big Pine Free Prays
kAaratltar Free Praas
Islamorads Foes Press
Key Largo Free Press
Ocean Reef Press
Seaport
MAGAZINE
The Menu
Hans Guide
CWzen Local's Guide
Paradise
Keys TV Channel Guide
MARKETING SERVICES
Cammnerdel Printing
Citimm Locals Card
Direct Mad
FLORIDA KEYS OFFICES
Pointing ! Main Facility
3420 Nonhaide Drive
Key West, FL
3304041100
Tel 305-292-7777
Fax 305-294-0768
citizen®keyweateam
Intemet Dlvislon
1201 White Street (Suite 103)
Key Wasl, FL
33040.3326
Tel 305-292-1880
Fax 305-294-1699
sales®keywesteem
Middle Keys Office
6353 overseas Hwy
Marathon, FL (MM 5Z5)
33050-3342
Tel 305-743.8786
Fax 305-743-9977
navlgator4j8orktekeys.ran
Upper Keys Office
81549 Old Hwy
PO Box 469
Islarnoreds. FL (MM81.5)
33030-0469
Tel 305-084-2288
Fax 305.8848411
heepressWoridakeys.com
Ocean Reef Office
3A Barracuda Lane
Key Largo, FL 33037
Tel 305-3574911
Fax 305-307-2191
STATE OF FLORIDA
COUNTY OF MONROE
Before the undersigned authority personally appeared Randy G. Erickson, who
on oath says that he is Vice -President of Advertising Operations of the Key
West Citizen, a daily newspaper published in Key West, in Monroe County,
Florida; th4the attached copy of adXertisement, being a legal notice in the
matter of / P A j yA1 111Y1 ry Jl f� t ,N
In the _
issues of
was published in said newspaper in the
Affiant fulAer says that the Key West Citizen is a newspaper published in Key
West, in said Monroe County, Florida and that the said newspaper has
heretofore been continuously published in said Monroe County, Florida every
and has been entered as second-class mail matter at the post office in Key West,
in said Monroe County, Florida, for a period of 1 year next preceding the first
publication of the attached copy of advertisement; and affiant further says that
he has neither paid nor promised any person, firm or corporation any discount,
rebate, commission or refund for the purpose of securing this advertisement for
publication in the said newspaper.
Signature of Affiant
Sworn and subscribed before me this day of 2003
Expires: January 15, 2007
ary Beth Canitano, Notary Public
Notary Seal
�`PAv%1.��A,NOIGI`Y
Pi,;•,,AAARY BETH CANITANO
Pubdc - Mote of Florldo
r;?� Commisslon # DD178046
„ ; Bonded BV Naflonai NolaryAssn.
Personally Known x Produced Identification
Type of Identification Produced
PUBLIC NOTICE
NOTICE OF INTENTION TO
CONSIDER ADOPTION OF
COUNTY ORDINANCE
NOTICE IS HEREBY GIVEN TO
WHOM IT MAY CONCERN that on
Tuesday, July 15, 2003, at 3:00 PM
at the Harvey Government Center at
Historic Truman School, 1200 Tru-
man Avenue, Key West, Monroe
County, Florida, the Board of County
-Commissioners of Monroe County,
Florida, intends to consider the
adoption Of the following County or-
dinance:
AN ORDINANCE OF THE MONROE
COUNTY BOARD OF COMMIS-
SIONERS RELATING TO THE
PROVISION OF WASTEWATER
SERVICES AND FACILITIES IN
MONROE COUNTY FLORIDA; AU-
THORMNG THE IMPOSITION. AND
COLLECTION OF WASTEWATER
ASSESSMENTS AGAINST PROP-
ERTY; PROVIDING CERTAIN DEF-
INITIONS INCLUDING A DEFINI-
TION FOR THE TERM "WASTE-
WATER ASSESSMENT"; ESTAB-
LISHING A PROCEDURE FOR IM-
POSING WASTEWATER ASSESS-
MENTS; PROVIDING THAT
WASTEWATER ASSESSMENTS
CONSTITUTE A LIEN ON AS-
SESSED PROPERTY UPON
ADOPTION OF ASSESSMENT
ROLL; PROVIDING THAT THE
LIEN FOR A WASTEWATER AS-
SESSMENT COLLECTED PUR-
SUANT TO SECTIONS 197.3632
AND 197.3635, FLORIDA STAT
UTES, UPON PERFECTION SHALL
ATTACH TO THE PROPERTY ON
THE PRIOR JANUARY, THE LIEN
DATE FOR AD VALOREM TAXES;
PROVIDING THAT A PERFECTED
LIEN SHALL BE EQUAL IN RAND
AND DIGNITY WITH THE LIENS OF
ALL STATE, COUNTY, DISTRICT,
OR MUNICIPAL TAXES AND AS-
SESSMENTS AND SUPERIOR IN
DIGNITY TO ALL OTHER PRIOR
LIENS, MORTGAGES, TITLES,
AND CLAIMS; PROVIDING A PRO-
CEDURE FOR COLLECTION OF
WASTEWATER ASSESSMENTS;
PROVING A MECHANISM FOR
THE IMPOSITION OF ASSESS-
MENTS ON GOVERNMENT PROP-
ERTY; PROVIDING FOR SEVERA-
BILITY; AND PROVIDING AN EF-
FECTIVE DATE.
Pursuant to Section 286.0105, Flori-
da Statutes, notice is given that it a
person decided to appeal any deri-
sion made by the Board with respect
to any matter considered at such
hearings or meetings, he will need a
record of the proceedings, and that,
for such purpose, he may need to
ensure that a verbatim reocrA at the
proceed Is made, vyhiCh("'
indudes ee
testimony and be
ce
upon which the appeal
based.
Copies o.jjhe afaove-referenced ordi-
nance areeN 'labte for reNew at the
vtlrtou3 pubic libraries in Monroe
County, Florida
Dated at Marathon, Florida, this 28th
day of June, 2003.
DANNY L KOLHAGE, Clerk 01 the
Circuit Court and ex oftido Clerk of
the Board of County Commissioners
-Su- r"inty Florida
o
-n
Z
o tom.
=
r
I'n
s �
o.•.
�
r
f�
r
rim..
-rl
�. 1.
C) c-1 •
f
t 0
O
c: �
-t r-
Z
rn
C��
O
r rn
tV
l7
?
■ Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
■ Print your name and address on the reverse
so that we can return the card to you.
■ Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
Department of State
Bureau of Administrative Code
The Collins Building
107 West Gaines Street, Suite L43
Tallahassee, Rorida 32399-ono
A. Signature
X :-:; RAC i E P E NTO h] Agent
r 1 . assee
B. Received by ( Printed Name) C. Date of Delivery
D. Is delivery address different from item 1? ❑ Yes
If YES, enter delivery address below: ❑ No
3. S ice Type
Certified Mail ❑ Express Mail
❑ Registered ❑ Return Receipt for Merchandise
❑ Insured Mail ❑ C.O.D.
4. Restricted Delivery? (Extra Fee) ❑ Yes
2. Article Number
(Transfer from service label) 70132 21130 1111111 2668 8153
PS Form 3811, August 2001 Domestic Return Receipt
102595-02-M-1540
m
«7
ri
CO
co
.D
ru
r-q
O
O
O
0
m
0
Iv
Iti
0
0
r-
Return Redept Fee
(Endorsement Required)
Restricted Delivery Fee
(Endorsement Requlred)
C7
C7
0
O
CI
ru
i1J
O
0
C-
Return Reclept pee
(Endorsement Requlred
Restricted Delivery pee
(Endorsement Required
■ Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
■ Print your name and address on the reverse
so that we can return the card to
■ Attach this card to the back of theoumailpiece,
or on the front if space permits.
f . Article Addressed to:
Municipal Code Corporation
P. O. Box 2235
Tallahassee, FL 32316-2235
D 0af-o10c)
2. Article Number
(Transfer from service label)
PS Fnrm Al21 1 A..
A. Si��ure
ived by (Printed e)
IJ
D. Is delivery address different from item
If YES, enter delivery address below.
❑ Agent
❑ Ad— dresm
ite of Delivery
M
3. ,S�ervv. Type
Zr ertified Mail ❑ Express Mail
Cl Registered ❑ Return Receipt for Merchandise
❑ Insured Mail ❑ C.O.D.
4. Restricted Delivery? (Extra Fee)
❑ Yes
7002 2030 0001 2668 9983
-- . • 9 ^uVUZK cuu7 Domestic Return Receipt
102595-02-M-1540
STATE OF FLORIDA
DEPARTMENT OF STATE
JEB BUSH
Governor
August 29, 2003
Honorable Danny L. Kolhage
Clerk of the Circuit Court
Monroe County
500 Whitehead Street
Key West, Florida 33040
Attention: Isabel C. DeSantis, Deputy Clerk
Dear Mr. Kolhage:
GLENDA E. HOOD
Secretary of State
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge
receipt of your letter dated August 19, 2003 and certified copy of Monroe County
Ordinance No. 027-2003, which was filed in this office on August 22, 2003.
Sincerely,
Liz Clou
Program Administrator
LC/mp
o "+i
rM rn
� O
1 �
W
a rn
n
N C)
CA �
n
BUREAU OF ADAUMsTRATIVE CODE • DIVISION OF ELECTIONS
The Collins Building, Room L43 • 107 W. Gaines Street • Tallahassee, Florida 323"-0250
Telephone: (850) 245-6270 • Facsimile: (850) 245-6282 • WWW: http://www.dos.state.fl.us
E-Mall: DivElecdons@maiLdosstotafLus
Email Confirmation
Page 1 of 2
Municipal Code Corporation
info@municode.com
P.O. Box 2235
Tallahassee, FL 32316-2235
Monroe County, FL Code of Ordinances-1979(11270)
Supplement 82
Recorded: 81281200312.32.14 PM
We have received the following material through Hard Copy.
Document
Adoption
Description
Ordinance No.
7/15/20--
Amending The Provisions of Wastewater Services and Facilities in
027-2003
Monroe County, Florida.
Ordinance No.
7/15/2003
Creating Sections 15.5-33 through 15.5-38, in order to provide for a
028-2003
Uniform Wastewater Connection Policy for Unincorporated Area within
Monroe County.
Ordinance No.
1032-2003
8/20/2003
Amending sec. 13.5-5(D) park hours
Tired of receiving your acknowledgements by mail?
Send us your email address at Info@municode.com.
You can submit your ordinances via email to ords@municode.com.
Now Why not place your ordinances on-line in between supplements.
Ask us about our newest service, NOW (New Ordinances on the Web).
Are you tired of mailing out codes and supplements?
Tired of printing additional copies of codes?
Let Municipal Code handle the distribution and sales.
Contact the distribution department at: disf@municode.com
o 'v
O �
b -Z'7
http://intranet.municode.comBIS/RecordinglacknowledgePrint.asp?jobid=l 5134&print=tr... 9/ 10/2003
Page 1 of 2
Belle Desantis
From: <info@municode.com>
To: <idesan9s@monroe-clerk.com>
Sent: Monday, November 17, 2003 4:19 PM
Subject: Acknowledgment of material received
un"-Co
Municipal Code COMOMdon
P.O. Box 2235
Tallahassee, FBL�-57"��
5011
Monroe County, FL Code of
Ordinances - 1979(11270)
Supplement 82
Recorded: 8/28/200312:32:14 PM
We have received the following material through Hard Copy.
Document
Adoption Descfl tion
Ordinance
7/15/2003 mending The Provisions of Wastewater
No. 027-
Services and Facilities in Monroe County,
2003
Florida.
Ordinance
7/15/2003 Creating Sections 15.5-33 through 15.5-38,
No. 028-
In order to pro vide for a Uniform Wastewater
2003
Connection Policy for Unincorporated Area
within Monroe County.
Ordinance
8/20/2003 Amending sec. 13.5-5(D) park hours
No. 032-
2003
Ordinance
8/20/2003 Amending chap. 5.5 boats, docks and
No. 033-
waterways
2003
Ordinance
6/18/2003 Amending Sec. 9.5-268(Existing Residential
No. 026-
Dwellings)to permit residential structures
2003
legally established before January 4, 1996 to
1
be considered as legal residential structures.
Ordinance
7/15/2003 Amending Land Development Regulations,
No. 031-
Sec. 9.5-252(C)(3)h, (AICUZ) and creating
11/18/2003
AGREEMENT BETWEEN MONROE COUNTY AND
NABORS, GIBLIN & NICKERSON, P.A.
RELATED TO BOND VALIDATION AND RELATED ISSUES
THIS AGREEMENT, made and entered into this i / day of &AJ. 2013, A.D., by and
between the BOARD OF COUNTY COMMISSIONERS OF MO E COUNTY, FLORIDA
("COUNTY"I a political subdivision of the State of Florida whose address is 1100 Simonton
Street, Key West, Florida 33040, and, Nabors, Giblin & Nickerson, PA., ("ATTORNEY'), a
professional Association licensed in the State of Florida, hereby enter into this Agreement regarding
the retention of ATTORNEY by COUNTY to provide legal advice and services.
NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein,
the parties agree as follows:
1. THE CLIENT
The Client is the COUNTY, and to the extent ethically permissible, it's elected and appointed
officers and its employees, unless COUNTY advises ATTORNEY otherwise.
2. THE ATTORNEY
ATTORNEY is the individual or professional association named above and whose legally authorized
signature appears at the bottom of this Agreement. ATTORNEY is licensed to practice law in all
jurisdictions relevant to this matter. ATTORNEY has been retained specifically because
ATTORNEY is understood by COUNTY to be able to handle this matter. If ATTORNEY
practices with others who may also provide services to COUNTY, he or she understands that
COUNTY expects that ATTORNEY will be responsible for managing the representation, assuring
compliance of others with the terms of this Agreement and ethical requirements, preparing and
substantiating all bills, and communicating with COUNTY. ATTORNEY may not delegate or
outsource this work without full written disclosure to, and written approval from, the COUNTY.
3. TERM OF AGREEMENT
This Agreement and representation by ATTORNEY is effective upon execution by ATTORNEY
and acceptance and approval by COUNTY in accordance with COUNTY'S policies, ordinances,
or governing statutes. The representation shall continue until terminated by either the COUNTY,
or by the ATTORNEY in accordance with ethical requirements and/or the terms of this
Agreement.
4. SCOPE OF THE WORK
ATTORNEY shall provide legal services and advice to COUNTY regarding issues as set out
more specifically in Attachment "A" to this agreement. ATTORNEY will be assigned new
matters by the COUNTY ATTORNEY from time to time during the term of the agreement, those
matters shall be included under this Agreement when assigned by the County Attorney in writing
and accepted in writing by the Board of County Commissioners and the Clerk of Court is notified
of the addition of the matter. The new matter shall be given a new name and the matter shall be
billed under that name.
4.1 Professional ability to perform work. Mointment of contract manager
ATTORNEY warrants that he or she is authorized by law to engage in the performance of the
activities herein described, subject to the terms and conditions set forth in these contract
documents. ATTORNEY shall designate an individual attorney to be the contract manager for
each matter and the contract manager shall at all times exercise independent, professional
judgment and shall assume professional responsibility for the services to be provided.
ATTORNEY warrants that he or she and the authorized time keepers are authorized by law and
the Rules and Regulations of The Florida Bar to engage in the performance of the activities
encompassed by this Agreement. If ATTORNEY is a member of a law firm, either as partner,
shareholder, associate, or other relationship, ATTORNEY warrants that he or she is authorized to
enter into this Agreement by the law firm.
4.2 Management of time keepers
ATTORNEY is responsible for managing the matter cost-effectively and competently, e.g., by
insuring that additional time -keepers are competent, properly supervised, efficient, and in
compliance with the terms of this Agreement as well as with ethical obligations.
5. REVIEW OF ETHICAL OBLIGATIONS AND POTENTIAL CONFLICTS OF
INTEREST BEFORE INITIATING REPRESENTATION
ATTORNEY has conducted a thorough investigation and determined that neither ATTORNEY nor his
or her firm has any ethical impediment, real or potential, including but not limited to conflicts of
interest, to representing COUNTY. To the extent that any ethical impediment, real or potential, is
discovered or ever arises, ATTORNEY shall immediately inform COUNTY in writing of the
impediment (regardless of whether ATTORNEY believes he or she has taken all steps necessary to
avoid the impediment and regardless of whether ATTORNEY believes that the impediment is
insubstantial or questionable] make full disclosure of the situation to COUNTY, obtain COUNTY'S
express, written consent to continue the representation of the other client, and take all steps requested by
COUNTY to avoid or mitigate the impediment. ATTORNEY understands that; if a direct or indirect
conflict of interest arises which, in the opinion of the COUNTY, cannot be avoided or mitigated
under the Rules of Professional Conduct of The Florida Bar, COUNTY may, in its &% efion, (a) obtain
reimbursement from ATTORNEY for all fees and expenses paid to ATTORNEY in this matter, (b)
obtain cancellation of all amounts allegedly owed by COUNTY to ATTORNEY; and (c) obtain
reimbursement for consequential expenses incurred by COUNTY, including the cost of replacement
counsel.
6. PAYMENTS TO ATTORNEY
ATTORNEY shall submit to COUNTY invoices with supporting documentation acceptable to the
Clerk on a schedule as set forth in the contract. Acceptability to the Clerk is based on generally
accepted accounting principles and such laws, rules and regulations as may govern the Clerk's
disbursal of funds.
6.1 ATTORNEY Fee t'Hourly Fee Engagements)
ATTORNEY'S providing services on an hourly fee engagement will be paid for his or her
services based on the number of hours expended on behalf of COUNTY (rounded to the nearest
tenth hour for each time entry), not to include time billable to or compensated by other clients,
multiplied by the ATTORNEY'S hourly rate. The following minimum billing documentation and
time -keeper requirements are a condition precedent to payment by the COUNTY.
6.2. Non -billable time
ATTORNEY will bill COUNTY only for time reasonably and necessarily incurred to render
Professional services on COUNTY'S behalf in accordance with this Agreement. Time attributable
to billing questions is not billable. Time expended by time -keepers who have not been approved
by COUNTY is also not billable.
6.3. Hourly Rates. and Changes to hourly rates
Hourly rates for ATTORNEY and additional Timekeepers will be set at:
Approved Time Keepers:
Name:
Hourly Rate:
Gregory T. Stewart
$250.00
Harry Chiles
$250.00
Lynn Hoshihara
$200.00
Carly Schrader
$200.00
Heath Stokley
$200.00
ATTORNEY will charge no more than the hourly rate quoted above throughout
the duration of the matter, unless otherwise agreed in writing and approved by COUNTY in the
same manner as Agreement.
6.4._Time keepers
As used in this Agreement, the term "time keeper" shall include ATTORNEY and other
ATTORNEYS and individuals identified in paragraph 6.3 of this Agreement who will be
providing services under this Agreement and who will bill the COUNTY for their services in
accordance with this Agreement.
6.51. Duplication of effort
ATTORNEY may when necessary and reasonable have more than one time -keeper bill for court
appearances, attendance at depositions and meetings, including meetings with COUNTY
representatives, and internal conferences; however, permission to use more than one time keeper
shall be in writing from the County Attorney or his designee (permission may be given via email)
and attached to the invoice requesting payment. ATTORNEY is not permitted to use this matter
to provide on the job training for a time -keeper, and bill for that time -keeper's services, without
COUNTY' S approval.
6.5.2. Time -keeper changes
Time -keepers approved by the COUNTY are listed in paragraph 63 of this Agreement, and may be
amended from time to time, upon mutual agreement of the COUNTY and the ATTORNEY, to
evidence the then-curnent circumstances. Additional time -keepers may not be added to the matter
without written approval from COUNTY. In the event that additional timekeepers providing services
which are to be billed to COUNTY are to be added to the staff then their hourly rates shall be provided
to COUNTY, and, upon written approval by the COUNTY, their rates and billing practices shall
comply with the requirements ofthis Agreement
6.6. Existing work product
To the extent the ATTORNEY makes use of existing work product, e.g., in the form of research
previously performed for another client, then ATTORNEY shall bill only that time expended in
using that work product for COUNTY. In other words, no premium, markup, or other adjustment
shall be made to COUNTY bill for time spent on work already performed.
6.7. Attorney Fee (Bond and Debt Financing)
ATTORNEY'S providing bond or debt financing services will be paid for his or her services in
accordance with the schedule attached hereto as Schedule 1.Bond Counsel services to be provided
by the Attorney shall include those set forth in Attachment A.
7. BILLING OF FEES AND EXPENSES
ATTORNEY shall comply with the following requirements as to billing fees and expenses as a
condition precedent to COUNTY'S obligation to pay each bill:
7.1. Monthly bills
Unless otherwise agreed in a writing signed by the COUNTY, bills shall be issued monthly by
ATTORNEY after the close of each month. ATTORNEY understands that COUNTY requires
prompt bills in part to facilitate effective management of the representation and fees.
7.2. Bill format
ATTORNEY shall provide detailed, itemized bills which shall, at a minimum:
7.2.1 Description
Provide a general description of the matter, to include the name of the COUNTY department or
constitutional officer, if not indicated in the title of the matter, for which legal services are being
performed (e.g. Richard Roe v. Monroe County —EEO Claim); a description of the work
performed in enough detail so that each item is distinguishable from other listed items and
sufficient to allow COUNTY to determine the necessity for and reasonableness of the time
expended, the services performed, the project or task each service relates to, the subject and
purpose of each service, and the names of others who were present or communicated with in the
course of performing the service. For example, simply the word "research" is not acceptable,
more detail about the type of research and what was determined by the research is necessary.
7.2.2 Personnel
Clearly identify each timekeeper performing services in conjunction with each entry. Clearly
identify all persons who are not full-time lawyers employed by the ATTORNEY'S firm
(including paralegals, employees of ATTORNEY with their titles, subcontractors, independent
contractors, temporary employees, and outsourcing providers). Personnel who are not listed as
additional timekeepers will not be paid unless approved in writing under the requirements of this
Agreement.
7.2.3 Time Records
Record the time expended by each time -keeper separately. In those situations where the minimum
billing increment exceeds the actual time spent on a task and several of these "minor" tasks are
performed, it is expected that the services will be aggregated until the total actual time spent
meets the minimum billing increment.
7.2.4 Totals and By Task
State the amount of time expended by each time -keeper broken down for each task.
7.2.5 Summary of Rates
In a summary at the beginning or end of the bill, provide the current hourly rate for each time-
keeper, the total time billed by each time -keeper in that bill, the product of the total time and
hourly rate for each time -keeper, the total fees charged, and are reconciliation between the
amount charged and any applicable estimated or budgeted amount, by task. In addition, each
monthly statement should show the aggregate billing for that matter from the commencement of
the matter through the cun-ently-billed month.
7.3. Expenses
COUNTY will pay the actual, reasonable cost of the following expense items if incurred in
accordance with the guidelines below and promptly itemized in ATTORNEY'S monthly bill:
7.3.1 Reimbursable expenses
Actual cost for necessary long distance telephone calls, telecopying at $.25 per outgoing page,
overnight or expedited delivery, couriers, photocopying at $.15 per page, postage, court fees, and
other expenses approved in writing by COUNTY or as listed below:
7.3.1.1. Expedited or emergency services
ATTORNEY is expected to avoid using expedited or emergency services, such as express
delivery services, couriers, telecopying, overtime, and so on, unless necessary because of
unexpected developments or extremely short deadlines. COUNTY may refuse to pay for any such
expenses when incurred routinely or because of ATTORNEY' S failure to manage the matter
efficiently.
7.3.1.2. Computerized research
ATTORNEY is expected to use computerized research services cost-effectively to reduce time
spent on research, for example, while closely -monitoring computerized research to insure that the
charges are reasonable and necessary. ATTORNEY is expected to pass through to COUNTY any
discounts or other arrangements that reduce the cost of computerized services.
73.1.3. PhotocopyinQ
ATTORNEY is encouraged to use outside copying services to reduce the cost of large -volume
copying, provided that these expenses are efficient, cost-effective, and incurred and billed in
accordance with this Agreement. ATTORNEY is responsible for insuring that all copying
complies with copyright obligations.
7.3.1.4. Transcrints
Transcripts should not be ordered without approval from COUNTY. Transcripts should not be
ordered on an expedited basis unless necessary and approved by COUNTY. ATTORNEY should
obtain digital electronicicomputerized copies of transcripts when available at a reasonable cost to
avoid charging for time spent digesting or indexing transcripts, and to allow COUNTY to
maintain a digital electronic/computerized database of all transcripts.
7.3.1.5 Travel Expenses
Travel expenses within the ATTORNEY' S local or metropolitan area will not be reimbursed and
time in transit is not billable. Travel expenses outside the metropolitan area may only be
reimbursed if the travel was approved by COUNTY. Reimbursable travel expenses, if approved,
are the cost of transportation by the least expensive practicable means (e.g., coach class air
travel), the cost of reasonable hotel accommodations, and the cost of transportation while out of
town (e.g., by cab or rental car, whichever seems reasonable, at the lowest available rite). Travel
expenses will be reimbursed in accordance with the applicable provisions of Florida Statute
112.321 and of the Monroe County Code for "approved travelers" and shall be summarized on
the Monroe County Travel Form by ATTORNEY with all applicable receipts attached thereto.
7.3.1.6 Travel Time
Time spent in transit outside Attorney's local area may be billed only if ATTORNEY or time-
keeper is unable to avoid traveling by using other forms of communication or it is determined by
the County that travel is in the County's best interest Travel by more than one tune -keeper at the
same time to the same destination is allowed with written approval from COUNTY.
7.3.2. Non -reimbursable expenses
The following expenses will in no event be reimbursable without written approval by County
Attorney and approval by the Board of County Commissioners:
7.3.2.1. Personal and Office Costs
Meals for time -keepers not related to travel, overtime, word processing or computer charges,
personal expenses, expenses that benefited other clients, expenses for books, costs of temporary
employees, periodicals or other library materials, internal filing or other document handling
charges, clerical expenses, stationery and other supply expenses, utilities, and any other expense
that is either unreasonable or unnecessary.
7.3.2.2. Experts. consultants support services. outsourced services etc.
ATTORNEY is not authorized to retain experts, additional counsel, consultants, support services,
or the like, or to out source or delegate work outside ATTORNEY' S law firm, without written
approval by County Attorney. If agreed to ATTORNEY will be responsible for selecting and
managing the services of others so that their services and expenses will be rendered in accordance
with the terms of this Agreement, including terms applicable to ATTORNEY. ATTORNEY will
manage others to obtain cost effective services for COUNTY. Unless otherwise agreed in writing,
ATTORNEY shall obtain a written retainer agreement, in a form which may be specified by
COUNTY, from each service provider, with bills from each provider being sent to both
ATTORNEY and COUNTY.
7.3.2.3 Temporary Staffing
ATTORNEY will not bill COUNTY for the time and expenses of temporary employees,
including so-called "Temps" or contract ATTORNEYS or other staff from outside companies,
nor "outsource" or delegate work, nor charge for summer associates, law clerks, or student
clerks, (collectively "temporary staff* even if not temporarily employed) without full advance
disclosure of the employee's temporary or short-term status to COUNTY, including disclosure of
the actual amount paid or to be paid to the individual. Unless COUNTY expressly agrees in
writing to paying additional amounts after full disclosure by ATTORNEY, ATTORNEY may not
charge COUNTY more than the actual cost paid by ATTORNEY.
7.3.2.4. Expenses not passed through at actual cost
COUNTY will not pay any markup for expenses. COUNTY will only reimburse the
ATTORNEY for their actual approved out-of-pocket costs and expenses, whether incurred
personally by an approved time -keeper or incurred by other approved personnel (such as experts,
consultants, support services personnel, or outsourced services personnel).
7.3.2.5.Overhead not charged to County
COUNTY will not pay for any "expense" items that are in fact part of ATTORNEY' S overhead
which should be included within ATTORNEY' S fee, the determination of which expenses fall
into this category are strictly within the discretion of the COUNTY.
7.3.3. Advance approval of expenses
In addition to the items noted above, ATTORNEY shall obtain written approval from COUNTY
before incurring any expense in excess of $1,000.00 if ATTORNEY expects to be reimbursed for
that expense. COUNTY may refuse to pay any expense for which approval was not obtained by
ATTORNEY.
7.3.4. Copies of receipts for expenses
ATTORNEY shall include copies of receipts for all expenses with the itemized monthly bill.
COUNTY may refuse to pay any expense item for which documentation is not provided by
ATTORNEY.
7.3.5. Expenses (and fees) after termination
Upon termination of the representation, ATTORNEY shall promptly bill COUNTY for any
remaining reimbursable expenses and fees. COUNTY may refuse to pay any fees or expenses not
billed within 45 days of termination of the representation. ATTORNEY is also expected to
cooperate promptly with all aspects of termination and, if applicable, transition to other counsel.
Payment for fees and expenses is contingent upon prompt, full cooperation.
7.4. Bill and expense documentation
ATTORNEY must maintain supporting documentation for invoices until at least one year after
the termination of the representation. This documentation shall be made available by
ATTORNEY to COUNTY (or COUNTY'S designated representative, including an accountant,
the County Clerk or County Clerk's representative, or legal bill auditor) upon COUNTY' S
written request. ATTORNEY agrees to cooperate with any examination of this documentation
and ATTORNEY' S fees and expenses, e.g., by responding promptly and completely to any
questions COUNTY or its designated representative may have. ATTORNEY shall notify
COUNTY in writing at least 60 days in advance of destroying any such records and, in the event
that COUNTY requests that they be preserved, shall preserve them at least one additional year or,
at the option of the COUNTY, delivered to the COUNTY for storage by the COUNTY, with
COUNTY responsible for paying the actual cost of storage. This documentation shall include, for
example, original time records, expense receipts, and documentation supporting the amount
charged by ATTORNEY for expense items generated by ATTORNEY or his or her firm.
COUNTY reserves the right not to pay any fee.or expense item for which sufficient
documentation or expense item for which sufficient documentation is not available to determine
whether the item was necessary and reasonable.
S. PAYMENT TERMS
ATTORNEY'S request for payments and reimbursements may be made in either the
ATTORNEY'S name or the name of the ATTORNEY'S law firm, as appropriate. ATTORNEY
bills complying with this Agreement are due and payable according to the Prompt Payment Act.
If the bill materially fails to comply with the requirements of this Agreement, then it is not due
and payable until its deficiencies are remedied by ATTORNEY.
9. MATTER MANAGEMENT
COUNTY will expect that all communications between ATTORNEY, and additional time
keepers, and COUNTY will be reviewed by ATTORNEY and that ATTORNEY will serve as the
point of contact for this matter, including billing questions.
9.1. Case monitoring
COUNTY will be advised promptly by ATTORNEY of all significant facts and developments in
the matter so that COUNTY may manage the matter effectively and make informed decisions
about strategy, tactics, settlement, scheduling, costs, and other related matters. COUNTY will
Promptly receive from ATTORNEY copies of all orders, opinions, pleadings, briefs, memoranda
(internal and external), correspondence, and any other document material to the subject matter of
7
this Agreement, such that the COUNTY will have a current, up-to-date, "mirror" copy of the
COUNTY'S file maintained by ATTORNEY. For discovery materials or exhibits that are
lengthy, ATTORNEY should discuss them with COUNTY before providing a copy. Documents
available in digital electronic/computerized form should be provided in that form in lieu of paper
copies, if requested by County. Additionally, ATTORNEY may be required to submit, on a
monthly basis, a case status and progress report to be submitted to the Board of COUNTY
Commissioners. The format of the report shall be in the form required by the COUNTY
ATTORNEY.
9.2. Case control
ATTORNEY shall discuss all significant issues of strategy and tactics, including motions,
discovery, pleadings, briefs, trial preparation, experts, and settlement, with COUNTY before
implementation. ATTORNEY is expected to exercise independent professional judgment.
9.3. ATTORNEY cooperation
ATTORNEY will cooperate with COUNTY or COUNTY'S representatives to promptly provide
all information COUNTY requests or needs about the subject matter of this Agreement and
ATTORNEY'S bills and handling of the matter.
9.4. COUNTY cooperation
ATTORNEY should consult with COUNTY about all opportunities for COUNTY to save money
or make use of COUNTY'S expertise to assist in, e.g., responding to discovery, preparing for
trial, locating experts, and the like. COUNTY may also have personnel and facilities available to
reduce the expenses related to the subject matter of this Agreement.
10. CONFIDENTIALITY AND PUBLIC RELATIONS
ATTORNEY is not authorized to waive or release any privilege or other protection of
information — confidential, secret, or otherwise — obtained from or on behalf of COUNTY.
ATTORNEY is to keep all confidential, privileged, or secret information confidential. This
requirement is perpetual, i.e., it will continue even after the termination of the relationship and
this Agreement.
10.1 Prohibition against use of information
This requirement is also intended to prohibit ATTORNEY from using information obtained from
or on behalf of COUNTY, including work product prepared at COUNTY'S expense, for other
client's of ATTORNEY or his or her firm, without COUNTY'S advance written approval.
10.2 No use of County for marketing purposes
ATTORNEY is not authorized to identify COUNTY as a COUNTY, e.g., for purposes of
marketing or advertising, without COUNTY' S prior approval.
11. OWNERSHIP OF ATTORNEY FILES AND WORK PRODUCT
ATTORNEY understands that all files and work product prepared by ATTORNEY or his or her
firm at the expense of COUNTY (or for which COUNTY is otherwise billed) is the property of
COUNTY. Without COUNTY'S written approval, this work product may not be used by
ATTORNEY or his or her firm nor disclosed by ATTORNEY or his or her firm to others, except
in the normal course of ATTORNEY'S representation of COUNTY in this matter. ATTORNEY
agrees that COUNTY owns all rights, including copyrights, to materials prepared by COUNTY
or by ATTORNEY on behalf of COUNTY. ATTORNEY shall notify COUNTY in writing at
least 60 days in advance of destroying any such records and, in the event that COUNTY requests
that they be preserved, shall preserve them at least one additional year (with COUNTY
9
responsible for paying the actual cost of storage). ATTORNEY shall provide COUNTY with
prompt access to (including the ability to make copies of) all ATTORNEY files and work
product, regardless of whether the representation or matter is ongoing and whether ATTORNEY
fees and expenses have been paid in full.
12. DISPUTE RESOLUTION
ATTORNEY and COUNTY agree that if a dispute arises between them that neither shall be
required to enter into any arbitration proceedings related to this Agreement
12.1. Disputes regarding Attorney fees or expenses
ATTORNEY and COUNTY agree that all disputes regarding ATTORNEY'S fees or expenses
are to be resolved pursuant to the procedures and practices for mediation by the Attorney
Consumer Assistance Program of the Florida Bar.
12.2. Disputes regarding interpretation
COUNTY and ATTORNEY agree that all disputes and disagreements between them regarding
interpretation of the Agreement shall be attempted to be resolved by a meet and confer session
between representatives of COUNTY and ATTORNEY. If the issue or issues are still not
resolved to the satisfaction of both within thirty (30) days after the meet and confer session, then
either shall have the right to terminate the Agreement upon ten (10) business days notice in
writing to the other party.
12.3 Legal or Administrative procedures
In the event any administrative or legal proceeding is instituted against either the COUNTY or
ATTORNEY relating to the formation, execution, performance, or breach of this Agreement,
the COUNTY and ATTORNEY each agree to participate, to the extent required by the other, in
all proceedings, hearings, processes, meetings, and other activities related to the substance of
this Agreement; institution of any administrative or legal proceeding shall constitute immediate
termination of this Agreement. ATTORNEY agrees to forward copies of all documents in his or
her possession related to the matter which is the subject of this Agreement to COUNTY at the time
of filing any administrative or legal proceeding.
12.4 ATTORNEY'S Fees and Costs
In the event any administrative proceeding or cause of action is initiated or defended by the
COUNTY or ATTORNEY relative to the enforcement or interpretation of this Agreement, the
prevailing party shall be entitled to an award of reasonable attorney fees, and court costs, as an
award against the non -prevailing party, and shall include reasonable attorney fees and court costs,
in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this
Agreement or as may be required by a court of competent jurisdiction shall be conducted in
accordance with the Florida Rules of Civil Procedure and the usual and customary procedures
required by the circuit court of Monroe County and shall take place in Monroe County.
13. NOTICE REQUIREMENT
Any notice required or permitted under this agreement shall be in writing and hand delivered or
mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the
following:
FOR COUNTY:
County Administrator and County Attorney
Gato Building PO Box 1026
1100 Simonton Street Key West, FL. 33041
Key West, FL 33040
FOR ATTORNEY:
Gregory T. Stewart, Esq.
Post Office Box 11008
Tallahassee, Florida 32302
14. GOVERNING LAW AND VENUE
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. Venue for any
legal action which may arise out of or under this agreement shall be in Monroe County, Florida.
15. ENTIRE AGREEMENT
The entire agreement between the COUNTY and ATTORNEY with respect to the subject matter
hereof is contained in this Agreement. This Agreement supersedes all prior oral and written
proposals and communications between the COUNTY and ATTORNEY related to the matters set
forth in Attachement A. No provision of this Agreement shall be deemed waived, amended or
modified by either party unless such waiver, amendment or modification is in writing and signed
by the party against whom the waiver, amendment or modification is claimed. This Agreement
shall be binding upon and inure to the benefit of the parties hereto, their permitted successors and
assigns.
16. FLORIDA GOVERNMENT -IN -THE -SUNSHINE LAW
ATTORNEY agrees that, unless specifically exempted by Florida law, the provisions of Chapter
286, Florida Statutes, generally require full and public discussion of matters to be voted upon by
the Board of County Commissioners. ATTORNEY agrees to consult with the COUNTY
ATTORNEY'S office concerning the application of the Sunshine Law from time to time
concerning specific circumstances that may arise during the term of this Agreement.
17. FLORIDA PUBLIC RECORDS LAW
ATTORNEY agrees that, unless specifically exempted or excepted by Florida law or Rules and
Regulations of The Florida Bar, the provisions of Chapter 119, Florida Statutes, generally require
public access to all records and documents which may be made or received under this Agreement.
ATTORNEY agrees to consult with the County Attorney's office concerning the application of
the Public Records Law from time to time concerning specific circumstances that may arise
during the term of this Agreement.
18. NO ASSIGNMENTS
ATTORNEY shall not assign or subcontract its obligations under this agreement, except in
writing and with the written approval of the Board of County Commissioners of Monroe County,
which approval shall be subject to such conditions and provisions as the Board may deem
necessary. This paragraph shall be incorporated by reference into any assignment or subcontract
and any assignee or subcontractor shall comply with all of the provisions of this Agreement.
Unless expressly provided for therein, such approval shall in no manner or event be deemed to
impose any additional obligation upon the Board.
19. TERMINATION
Either of the parties hereto may terminate this contract without cause by giving the other party
fifteen (15) business days written notice of its intention to do so.
10
19.1 Documents forwarded to COUNTY
ATTORNEY agrees to forward to COUNTY along with Notice of Termination or upon receipt of
Notice of Termination, depending upon which party terminates the Agreement, copies of all
documents in his or her possession of any nature whatsoever related to the ATTORNEY'S
representation of COUNTY or obtained due to ATTORNEY'S representation of COUNTY.
19.2 Restriction on Communications
ATTORNEY agrees not to communicate with the public, including the press, about COUNTY or
about this matter.
20. SEVERABILITY
If a term, covenant, condition or provision of this Agreement shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining teens, 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 provision of this Agreement would prevent the accomplishment of the original
intent of this Agreement. The COUNTY and ATTORNEY agree to reform the Agreement to
replace any stricken provision with a valid provision that comes as close as possible to the intent
of the stricken provision.
21. CAPTIONS
The captions set forth herein are for convenience of reference only and shall not define, modify,
or limit any of the terms hereof.
22. LEGAL OBLIGATIONS AND RESPONSIBILITIES: NON -DELEGATION OF
CONSTITUTIONAL OR STATUTORY DUTIES
This Agreement is not intended to relieve, nor shall it be construed as relieving, either the
COUNTY or ATTORNEY from any obligation or responsibility imposed upon each by law
except to the extent of actual and timely performance thereof by the other, in which case the
performance may be offered in satisfaction of the obligation or responsibility. Further this
Agreement is not intended to authorize, 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 statutes, case law, and, specifically, the provisions of Chapter 125,
Florida Statutes.
23. RECORDS
ATTORNEY shall maintain all books, records, and documents directly pertinent to performance
under this Agreement, including the documents referred to in this Agreement, in accordance with
generally accepted accounting principles, consistently applied. Upon ten (10) business days
written notice to the other, representatives of either the COUNTY or ATTORNEY shall have
access, at all reasonable times, to all the other parry's books, records, correspondence,
instructions, receipts, vouchers and memoranda (excluding computer software) pertaining to
work under this Agreement for the purpose of conducting a complete independent fiscal audit.
ATTORNEY shall retain all records required to be kept under this Agreement for a minimum of
five years, and for at least four years after the termination of this agreement. ATTORNEY shall
keep such records as are necessary to document the performance of the agreement and expenses
as incurred, and give access to these records at the request of the COUNTY, the State of Florida
or authorized agents and representatives of said government bodies. It is the responsibility of
11
ATTORNEY to maintain appropriate records to insure a proper accounting of all collections and
remittances. ATTORNEY shall be responsible for repayment of any and all audit exceptions
which are identified by the Auditor General for the State of Florida, the Clerk of Court for
Monroe County, the Board of County Commissioners for Monroe County, or their agents and
representatives.
24. PUBLIC ACCESS
The COUNTY and ATTORNEY shall allow and permit reasonable access to and inspection of;
all documents, papers, letters, or other materials subject to the Florida Public Records Law, as
provided in Chapter 119, Florida Statutes, and made or received by the them, unless specifically
exempted by State Statute, Rules and Regulations of The Florida Bar, or case law. COUNTY
shall have the right to cancel this agreement upon violation of this provision by ATTORNEY.
25. MONROE COUNTY CODE ETHICS PROVISION
ATTORNEY warrants that he or she has not employed, retained or otherwise had act on his
behalf any former COUNTY officer or employee in violation of Section 2 of Ordinance No. 10-
1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 101990.
For breach or violation of this provision the COUNTY may, at its discretion, terminate this
Agreement without liability and may also, at its discretion, deduct from the sums owed under the
Agreement, or otherwise recover, the full amount of any fee, commission, percentage, gift, or
consideration paid to the former or present COUNTY officer or employee. COUNTY employees
and officers are required to comply with the standards of conduct delineated in Section 112313,
Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts, doing business
with one's agency, unauthorized compensation, and misuse of public position, conflicting
employment or contractual relationship, and disclosure of certain information.
26. PUBLIC ENTITY CRIME STATEMENT
Florida law provides that person or affiliate who has been placed on the convicted vendor list
following a conviction for public entity crime may not submit a bid on an agreement to provide
any goods or services to a public entity, may not submit a bid on a agreement with a public entity
for the construction or repair of a public building or public work, may not submit bids on leases
of real property to public entity, may not be awarded or perform work as a contractor, supplier,
sub contractor, or consultant under a agreement with any public entity, and may not transact
business with any public entity in excess of the threshold amount provided in Section 287.017,
for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on
the convicted vendor list. ATTORNEY wan -ants the neither ATTORNEY nor any authorized
time keeper has been named to the convicted vendor list.
27. ANTI -KICKBACK
ATTORNEY warrants that no person has been employed or retained to solicit or secure this
Agreement upon any contract or understanding for a commission, percentage, brokerage or
contingent fee, and that no employee or officer of the COUNTY has any interest, financially or
otherwise, in this Agreement, except as expressly stated herein. For breach or violation of this
warranty, the COUNTY shall have the right to annul this agreement without liability or, in its
discretion, to deduct any sums to be paid by COUNTY under this Agreement, or otherwise
recover, the full amount of such commission, percentage, brokerage or contingent fee.
28. MODIFICATIONS AND AMENDMENTS
This Agreement may not be modified in any way without the express, written consent of both
parties. Any and all modifications and Amendments of the terns of this Agreement shall be in
12
writing and executed by the Board of County Commissioners for Monroe County and by
ATTORNEY in the same manner as this Agreement.
29. INDEPENDENT CONTRACTOR
At all times and for all purposes hereunder, ATTORNEY is an independent contractor and not an
employee of the Board of County Commissioners of Monroe County. No statement contained in
this Agreement shall be construed so as to find ATTORNEY or any of the authorized time
keepers, to be the employees of the Board of County Commissioners of Monroe County, and they
shall be entitled to none of the rights, privileges or benefits of employees of Monroe County.
30. COMPLIANCE WITH LAW
In carrying out ATTORNEY'S obligations under this agreement, ATTORNEY shall abide by all
statutes, ordinances, rules and regulations pertaining to or regulating the provisions of this
Agreement, including those now in effect and hereafter adopted. Any violation of said statutes,
ordinances, rules or regulations shall constitute a material breach of this Agreement and shall
entitle COUNTY to terminate this Agreement immediately upon delivery of written notice of
termination to ATTORNEY.
31. LICENSING
ATTORNEY warrants that ATTORNEY and additional timekeepers do presently have, shall
have prior to commencement of work under this Agreement, and at all times during said work, all
required licenses and permits whether federal, state, County or City.
32. NON-DISCRIMINATION
ATTORNEY shall not discriminate, in its employment practices and in providing services
hereunder, on the basis of race, color, sex, religion, disability, national origin, ancestry, sexual
orientation, gender identity or expression, familial status, or age, and shall abide by all federal
and state laws regarding non-discrimination. Upon a determination by a court of competent
jurisdiction that such discrimination has occurred, this Agreement automatically terminates
without any further action by the COUNTY, effective the date of the court order. ATTORNEY is
aware of the provisions of Section 13-101 through 13-106, Monroe County Code, relating to non-
discrimination, and agrees to abide by the Code's nondiscrimination requirements.
33. 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 ATTORNEY agree that neither the
COUNTY nor ATTORNEY or any officer, agent, or employee of each 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 under this Agreement.
34. ATTESTATIONS
ATTORNEY agrees to execute such documents as the COUNTY may reasonable require,
including a Drug -Free Workplace Statement, and a Public Entity Crime Statement.
35. COUNTY AUTHORITY
This Agreement has been duly noticed at a legally held public meeting conducted in Monroe
County, Florida COUNTY'S performance and obligation to pay under this contract, is contingent
upon annual appropriation by the Board of County Commissioners.
13
36. HOLD HARMLESS AND INSURANCE
Prior to execution of this agreement, ATTORNEY shall furnish COUNTY Certificates of
Insurance indicating the minimum professional liability coverage for ATTORNEY and additional
timekeepers in the amount of Five Hundred Thousand Dollars ($500,000.00). ATTORNEY
agrees to keep the same amount of coverage or more at all times and to provide proof of said
coverage to COUNTY at COUNTY'S request at any time during the term of the Agreement.
37. NO PERSONAL LIABILITY
No covenant or obligation contained in this Agreement shall be deemed to be a covenant or
obligation of any member, officer, agent or employee of the Board of County Commissioners of
Monroe County in his or her individual capacity and no member, officer, agent or employee of
the Board of County Commissioners of Monroe County shall be liable personally on this
Agreement or be subject to any personal liability or accountability by reason of the execution of
this Agreement.
38. 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 the
COUNTY and ATTORNEY may execute this Agreement by signing any such counterpart.
THIS AGREEMENT will become effective when executed by both the ATTORNEY and
executed by the Board of County Commissioners of Monroe County, Florida
Board of County Commissioners
Attest:
Of Monroe County
�
Amy vilin, Clerk By. ,e®
yor
B. Date: 4) t 7/ z o/ 3
Deputy Clerk
Date: `�I l 7 j j 2 O c 3
Witness to ATTORNEY: TTORNEY:
Print t 4
4g° � �14r Q
Name , Print Name
Address: kW oltiuA . sie Div t'�I,Ivi,�s
DATE: I 4 P& 3-4-IDATEI& 7 r I
A
E COUNTY ATTO EY
OVED AS T F
ILV W. CA SE�ANT COUNTY ATTORNEY
Date.. - "1- _,�V ! .t
14
ATTACEMICNT A
Scope of Representation
Services to be provide by Nabors, Giblin & Nickerson as bond counsel
shall include all customary and traditional duties typically incurred by bond
counsel for State of Florida local governmental entities including but not limited to
the following:
• Consultation with County officials and staff concerning all legal
questions relating to the issuance of Bonds;
• Attendance, upon request, at any meeting of the Board of County
Commissioners or any meeting of staff relating to the issuance of
Bonds;
• Preparation of all resolutions, bond documents and other instruments
relating to Bonds, in cooperation with the County staff, the County's
financial advisor and the County Attorney;
• Analysis and resolution of tax problems associated with Bonds,
including preparation of ruling requests and contacts with the United
States Treasury, if necessary;
• Review of all disclosure documents prepared or authorized by the
County, insofar as such documents describe Bonds and summarize
the documents securing he Bonds;
• Preparation and review of all documentation required for closing;
• Supervision of the printing of Bonds (if printed Bonds are utilized);
• Provision of an opinion in written form at the time Bonds are
delivered, which opinion shall cover (i) the legality of Bonds and the
proceedings by which they are issued, (ii) if applicable, the
exclusion from gross income for federal income tax purposes of
interest paid on Bonds, and (iii) such other issues that are
customarily required of bond counsel; and
• Consultation with County officials and County staff concerning
questions that may arise with regard to Bonds.
15
Schedule 1
Fees for Bond Counsel Services
The County shall pay to Nabors, Giblin & Nickerson, compensation for
services rendered and expenses incurred as bond counsel in accordance with the
following schedule (all fees quoted on a per $1,000 Bond basis):
Type of Issue Minimum Fee Fee Scale
General Obligation $15,000 $1.25 per bond first $20,000,000
$1.00 per bond $20,000,000-40,000,000
$0.75 per bond over $40,000,000
New Money & Bank Loans $17,500 $1.50 per bond first $10,00Q000
$1.25 pr bond $10,000,000-30,000,000
$0.75 per bond over $30,000,000
Special Transactionsi') $20,000 $1.50 per bond first $20,000,000
$1.25 pr bond $20,000,000-40,000,000
$0.75 per bond over $40,000,000
Validation N/A To be negotiated on a per transaction basis
Out -of -Pocket Expenses N/A To be negotiated on a per transaction basis
prior to closing.
Would include, without limitation, special assessment bond issues, refundings,
certificates of participation and unrated issues.
16
PAco CERTIFICATE OF LIABILITY INSURAN CE 4OATE(MMIDDM/Y1�
/2/2013
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the C11MMleate holder is an ADDITIONAL INSURED, Use pctleypes) must be andorsad. If SUBROGATION IS WANED, subject to
the terms and conditions of the policy, certain ponders may require an endorsement A statement an tide certificate don not eonler rights to the
Certificate holder In item of such mWonamm"fa\_
PRODUCER
KOUWENNOVEN & ASSOC
365 Wekiva Springs Rd #251
Longwood, FL 32779
INSURED Nabors,
A Nickerson, P.A.
LNCMo.&a: (407)774-5556
IAru I(407)774 7820
BOB h-brian@kouwen.com
1500 Mahan Drive, Suite 200 INSURER O:
Tallahassee, FL 32308
tars at Lloyd's
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED ,NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS.
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAM.
MGM Guen
.TAR TYPE OF INSURANCE IN POLICY NUMBER MOVA UMn'S
GENERAL UABIUTY
EACH OCCURRENCE $ 88000,
Q
COMMERCIAL GENERAL LIABRM
X CLAMS -MADE I. sMADE OCCUR MED E%P are pm=1 e
A X Lawyers Prof Liab B0738SPOO75BOG 21/01/22 12/02/13 pERsoNALaADVINJURY s
GENERAL AGGREGATE I s 8, 000 0
GEWL AGGREGATE LIMIT APPUES PER:* 1CT9. COMPh7P aAn III-- r-1 awn. r� PROOl
AUTOMOBILE LIABILITY
e
ANYALITO
LIE
Ee N n1
BODILY MUURV (per penal) s
ALL OWNED SCHEDULED
AUTOS AUTOS
MED
BODILY NMRT tPW aeddenn s
HIRED AUTOS NOO AUTOS
i
UMBRELLA UAB
EXCESS LIAR
OCCUR
CLAIMS MADE
s
EACH OCCURRENCE e
OED RETEMION e
AGGREGATE :
s
WO RB COMPENSATION
AND EMPLOYERS LUIBIUri
A
Y�R
ANV MOROETORMANTNEWEICEN7ryg
v
EL, EACH ACCIDENT :
ORaCOMEMOM EXCAAH T
ryn.lew, In P"
NIA
't
EL aBEASE . EA EMPLOY s
DESCRIMFnoN d �ERATION9
K
eslorl
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Reach ACORO 101. Addswnel Rallub S&edule, a mme apace y r
equiten
Retroactive date: None (Full Prior Acts)
Deductible: $50,000 Per Claim
Amon
Monroe County
1111 12th Street,Suite 408
Key West, FL 33040
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS,
AUTHORIZED REPRESENTATIVE
19W2010ACORD CORP RATION. Au rinhtw ro=
I no mwmu name and logo are registered marks of ACORD