Miscellaneous
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MEMORANDUM
DA TE:
June 12, 2002
TO:
Jim Hendrick
County Attorney
BOCC members
FROM:
Rob Wolfe
Chief Assistant County Attorney
RE:
Commissioner Nelson's item regarding transfer of funds ($100,000)
Key Largo Wastewater Treatment District
~~~~~~~~~~~~~~~~~
I believe the BOCC may, pursuant to Sec. 163.01, FS, enter into an i nter local agreement
with the District for part of the payment of the District's costs in planning and
construction of wastewater treatment facilities, providing the Board determines that such
a payment serves a County purpose. Alternatively the County could lend the District the
funds, see AGO 2000-55.
There are two caveats to the above:
1. The funds could not be paid out of the County general fund. That fund contains
revenue raised through a County-wide (including the cities) ad valorem levy. The reason is
that the District is serving a specific municipal purpose in Key Largo without (1 benefit to,
say, Key West. See Town of Palm Beach v. Palm Beach County, 460 So.2d 879 (FIG. 1984).
Infrastructure sales tax funds may be QVailable, although I assume Mr. Roberts has more
insight on this issue than I do.
2. The County funds. should also not be used for general administrative purposes of
the District (as opposed to the planning and construction). The reason for this is that the
District is an independent special district, i.e., it is not a part of County government.
Under Art 7, Sec. 9, Fla. Cons't. (1968), the BOCC may levy taxes (including the
Page Two
Jim Hendrick
6/12/2
infrastructure sales tax) for its -respective purposes" While the Board may determine
that the planning and the construction of Key Largo wastewater treatment facilities
. cOnstitutes aCOuntypur-pose'and .enter into an agreement with the District to carry out
that purpose, it is difficult to see how general District administrative expenses constitute
a respective ,purpose of the County anymore than paying the expenses of the Key West
City ,Manager or the City Attorney. The result would be different if the District were
dependent; i.e.,:the BOCC was also the governing body. In that situation, the District
would be just .(II1Other County firmcing mechanism that could have its administrative
~es at ,'leaSt, partially funded out of non-District funds. See State v. ~ota
County, 372S9.2d 1115 (FIcL 1979).
I have consulted with Mr. KOlhage regarding the foregoing conclusions and he concurs.
I would finally point out a certain practical problem with entering into an interlocal
agreement with the District, to-wit: nobody is presently home at the District, the
elections for the District board not yet having taken place. At the moment, who can agree
to an interlocal agreement on the District's behalf?
RNW / jeh
cc: Danny Kolhage
O~~~d'~~~E
(305) 294,4641
BOARD OF COUNTY COMMISSIONERS
Mayor Dixie M, Spehar, District I
Mayor Pro Tern Murray E, Nelson, District 5
George Neugent, District 2
Charles "Sonny" McCoy, District 3
David p, Rice, District 4
Office of the County Attorney
PO Box 1026
Key West, FL 33041-1026
305/292-3470 - Phone
305/292-3516 - Fax
Mr. Robert E. Sheets
General Manager
Key Largo Wastewater Treatment District
P.O. Box 491
Key Largo, FL 33037
Re: Loan Agreement by and between Monroe County and Key Largo
Wastewater Treatment District (KLWTD)
Dear Mr. Sheets:
This will acknowledge receipt of your letter of July 10,2003 with attachments.
Aside from the fact that the time frame with which the loan agreement was to
be completed has expired, I am very surprised to fmd that unilateral changes to the
draft agreement sent to your office were made and that the revised agreement was
approved by your Board and is now being sent to this office for action by the Board of
County Commissioners.
It is also disheartening that your staff made changes to the submitted draft
without consulting with this office.
Since I have serious concerns about the loan agreement as currently worded,
especially as to the language in Paragraph 3(a). and 3(b). I would request that we
reassemble the original discussion group to review these changes in an attempt to
come to a satisfactory resolution of the issues as I see them. Rob Wolfe from this
office will be contacting you in the near future to attempt to set a time, date, and
location for a meeting.
Sincerely,
q~~
Monroe County Attorney
JRCjss
CC: BOCC
James Roberts, County Administrator
vDanny Kolhage, Clerk of the Court
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289-1745
MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET, SUITE 101
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3663
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
February 22,2005
James Reynolds, Executive Director
Florida Keys Aqueduct Authority
Post Office Box 1239
Key West FL 33041-1239
Dear Jim,
I am enclosing a copy of a letter from the Key Largo Wastewater Treatment District dated
February 10, 2005, concerning the implementation of certain provisions of a Loan Agreement
between Monroe County and the District, and certain provisions of an Interlocal Agreement
between Monroe County, the District and FKAA dated February 26,2003,
In this letter, Mr, Waits the Finance Officer for the District is requesting that the County
transfer the sum of $731,428 to the District pursuant to the provisions of the Loan Agreement.
That request is now being processed by County staff in accordance with its normal procedures,
Mr, Waits also refers to the provision in the Interlocal Agreement that requires the County
to request the authority to transfer to the Key Largo Wastewater District the amount of
$182,857, which had been transferred to the Authority as part of the local match for your work
on the Key Largo project. My office did receive a grant status report updated through December
3 I, 2003, which indicated that some of that local match had been expended by the District. I
would recommend that the Authority provide us with the documentation supporting your use of
these funds for the Key Largo project and to remit the balance to the Wastewater District in
accordance with the provisions of our interlocal and loan agreements,
If you have any question concerning this matter please feel free to contact me,
Sincerely,
DannyL, ;~
of the Circuit Court
Enclosures
KEY LARGO WASTEWATER TREATMENT DISTRICT
POST OFFICE BOX 491; KEY lARGO, FLORIDA 33037
(305) 451-5105
February 10,2005
Mr. Danny Kohlage
Clerk of Courts
Monroe County
500 Whitehead Street
Key West. FL 33040
Ref: FEMA Matching Funds Loan Agreement
Dear Mr. KoWage,
Please find enclosed a copy of the Loan Agreement recently executed by and between
Monroe County and the Key Largo Wastewater Treatment District to implement the
provisions in Sec. 2.03(A)(2) of the Interlocal Agreement between Monroe County, the
District and FKAA dated February 26, 2003.
The Key Largo Wastewater Treatment District hereby requests the County to transfer the
sum of $731 ,428 to the District as provided in Paragraph 1 of the Loan Agreement. As also
provided in Paragraph 1 of the Loan Agreement, please request the FKAA to transfer the
sum of $182,857 to the District, which amount the County previously transferred to FKAA
for the Key Largo Trailer Village project.
I have not included the two attachments referenced in the Loan Agreement, trusting you
have a copy of the Interlocal Agreement at your disposal. The DCA/FEMA grant is also an
Exhibit to the Interlocal Agreement.
Sincerely yours,
Martin Waits, Finance Officer
lOAN AGREEMENT
KEY LARGO WASTEWATER TREATMENT DISTRICT
THIS lOAN AGREEMENT is entered into by and between Monroe County, a
political subdivision of the State of Florida (the County) and the Key Largo
Wastewater Treatment District, an independent special district (the District),
pursuant to Sec. 2.03(A)(2) of an interlocal, agreement between the parties
effective February 26, 2003 (the interlocal agreement). A copy of the interlocal
agreement, together with all its exhibits, is attached as Exhibit A and made a part
hereof
1. On or before January 30, 2005, the County shall transfer to the
District the sum of $731,428 and shall request the Florida Keys Aqueduct Authority
(FKAA) to transfer to the District the sum of $182,857 (which sum the County had
previously transferred to the FKAA for the purposes described in paragraph 2 of this
loan agreement).
2. a) The District agrees to establish a special fund to be called the
Key Largo Trailer Village Project Fund (the Fund) and to deposit therein the money
described in Paragraph 1 of this loan agreement. Money in the Fund may only be
used to pay the costs of constructing the Key largo Trailer Village central
wastewater treatment and collection system (the Project) that are authorized as
appropriate matching expenditures in the DCA/FEMA grant for the Project. A copy
of the DCA/FEMA grant is attached to this loan agreement as Exhibit B.
b) The District shall make disbursements or payments from the
Fund only for the costs authorized in subparagraph 2(a) of this loan agreement.
The District shall prepare and keep the records of such disbursements and
payments according to generally accepted governmental accounting principles
consistently applied and shall retain those records for a period of five years from
the date of the completion of the Project. The records must be made available
upon request to an auditor employed by The County Clerk or the State of Florida.
If the auditor determines any funds may have been spent for unauthorized
purposes, the auditor shall meet with District staff to confirm the purpose of the
expenditure. If after meeting with District staff, the auditor determines that any of
the funds transferred to the District under this loan agreement were expended for
purposes not authorized by this loan agreement or the DCA/FEMA grant, then the
District shall, within 30 days of the auditor's determination, return the amount
determined by the auditor to have been improperly spent together with interest,
calculated at the rate set forth in Sec. 55.03(1), FS, commencing on the date the
auditor determined the funds were expended for a purpose not authorized by this
loan agreement or the DCA/FEMA grant. This subparagraph controls over and
amends any inconsistent language in the interlocal agreement Sec. 2.03(A)(2).
c) Moneys transferred to the District under this loan agreement
for deposit in the Fund must be deposited and secured in the same manner as
public funds are authorized to be depOSited and secured by the laws of the State of
Florida. Any interest paid on moneys deposited in the Fund will belong to the
District.
3. a) Beginning on July 1, 2008, and on each July 1st thereafter
through July 1, 2018, the District shall pay to the County $91,428.50 for repayment
of the funds transferred to the District pursuant to paragraph 1 of this loan
agreement If the District has not collected a sufficient amount of funds to cover
the loan repayment amounts each July 1st until the loan is repaid in full, the District
shall have the right to request the County to renegotiate the terms of this
Agreement relating to repayment of the funds. The parties agree that the
$91,428.50 is entirely a return of principal and that the County may not demand, or
seek to charge, the District any interest on the funds transferred to the District
pursuant to this loan agreement. The only exception to this no interest provision is
the interest payable on funds determined to have been spent for a purpose not
authorized by this loan agreement.
b) The County agrees to establish a special fund for the receipt
and deposit of the moneys paid by the District to the County pursuant to
subparagraph 3(a) of this loan agreement. The County agrees to return the
moneys deposited in that fund for wastewater treatment and collection projects
located within, or serving the residents of, the Key largo Wastewater Treatment
District. The moneys so deposited shall be spent for District wastewater projects
pursuant to interlocal agreement(s) entered into between the parties.
4. The requirement of each party that moneys be deposited and
accounted for in a special fund may be satisfied by deposit in a single non-exclusive
bank account or investment pool provided that adequate accounting records are
maintained to reflect and control the restricted allocation of the moneys on deposit.
5. This loan agreement is not intended to, and does not give rise to, legal
or beneficial rights on behalf of any third parties. The contractors, subcontractors,
subsubcontractors, materialmen and tort claimants of the District, or any other
third party, claiming or demanding damages, liability, payment, or other demand
on account of an act, acts or omission or omissions of the District, its officers,
employees, or agents, must seek the relief demanded or claimed from the District
only.
6. The parties agree that prior to the time the first repayment amount is
due to the County, as stated in paragraph 3 herein, the parties shalf revisit and
reconsider this Agreement to determine whether the terms and conditions of the
repayment schedule should be amended.
7. All writings required by this loan agreement (including the payment of
moneys) shall be sent to:
2
Monroe County
County Administrator
Gato Building
1100 Simonton Street
Key West, FL 33040
District
General Manager
PO Box 491
Key Largo, FL 33037
by certified mail, return receipt requested, or by a national courier service such as
Federal Express. The above addresses may be changed by written notification.
8. This written loan agreement is the parties~ final mutual
understanding. It supersedes any prior negotiations or agreements, whether
written (in any format) or oral, and may only be amended by a writing signed by
both parties.
9. This loan agreement will take effect on the signature date of the last
party to execute the agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
dates written below.
(SEAL)'
A!~~": DANNY L. KOLHAGE, CLERK
"",.,.,'~," ~
B4.~
" , ." ", eputy Clerk
Date December 15. 2005
BOARD OF COUNlY COMMISSIONERS
OF MONROE COUNlY, FLORIDA
By
~~
Mayor Dixie M. Spehar
(SEAL)
Attest:
By ~~~
c/~,cK
Date /-/ ?-
KEY LARGO WASTEWATER TREATMENT
DISTRICT
(I tcr4--ftft:
- Chairman
By
JconKLWWD4
\ ,.........,
",~ //(j
-.., ,
MONROE COUNTY ATTORNEY
:~~FORM:
.sq JOHN R, COLLINS
co UN\'; ~ORNEY
Date 0 \ \ \ " 0
3
Page 1 of 1
Laura Deloach - Hartle
Subject:
<Garrett -George@MonroeCounty-FL.Gov>
<Ideloach-hartle@monroe-clerk,com>
Friday, January 30, 2004 3:04 PM
little venice current status email.xls; bay point current status email.xls; conch key current status
email.xls; key largo fema current status email.xls
FW: Reports for the quarter ending 12/31/03
From:
To:
Sent:
Attach:
FYI
> -----Original Message-----
> From: Carolyn Sheldon [SMTP:csheldon@fkaa.com]
> Sent: Tuesday, January 27, 2004 1:41 PM
> To: George Garrett (E-mail)
> Cc: Kerry Shelby (E-mail)
> Subject: Reports for the quart~r ending 12/31/03
>
> Hi George,
>
> Attached are the grant status reports and actual project costs to date for
> Little Venice, Bay Point, Conch Key & Key Largo Trailer Village for the
> quarter ending 12/31/03. Please let me know if you have questions,
>
> Thanks,
> Carolyn
>
> <<little venice current status email.xls>> <<bay point current status
> email.xls>> <<conch key current status email.xls>> <<key largo fema
> current status email.xls>>
2/22/2005
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Feb 08 2005 17:26
KLlJlJTD FISHBURN
305 852 2477
p. 1
P.O. eox<l91 Key Largo, Fl 33037
PtIone: 305-8S2-2417
Fax: 305-862-2477
Key Largo
Wastewater
Treatment District
Fax
..
'ax:
Danny Kohlage, Cou1ty Clerk
295-3663
--- Marty Wails. District Finance Officer
P,,-: 4, incl. cover
~
.... 02A)8f0S
..
FEMA Mab::hing Funds
CQ
o ........ [) For Iku.... 0 ..... c.....A." [) ..... ....., [) PI-.
1IacJd.
-Conunentsc
As you ......ted, I .... ....wlth sending a copy of the . Loan
Agnaement I'8CeIItIy mcecuted to lmpI....ent the provisions In See.
2.03(A)(2) of .... ........... Agn........ bet\......n Mouoe County, ....
Dlatrtct ..... FKAA.
The CaI.wIty ... ~ $182,887 to FKAA, fill wI*h we ............
FKAA .... ....... $107..... (.......... willi MIppOIt to J8U ...-rtedy) and
retains $75,759 ..rm.-ked for the DIst~. Key La,. Trailer VHtage
pn.ject..
DeIIII.. dlNCtIy with the DCA, the Dlsbl<< ... NCeMId F........ ......
and ... III8tcIIIng fu..... COI1IIIatIng of one ad\wIce and tIuwe
..................... of ...e... a. tit ..... tIIne. Local mal.c.hIng funds fer IIIIe
.dvallce would lie $237,119. LGCIII 1IIMdII.. funds for the ......
.............m..... would total $133,332.
I will appreciate )'DUI' tIIoughts on how best to now ace ... IoceIIIUIItcIt
fundi.. for .... FEMA .......
Thanks for your help,
~~
~--
Feb 08 2005 17:26
I<Ll.Jl.JTD FISHBURN
305 852 2477
p.2
LOAN AGREEMENT
KEY LARGO WASTEWATER TREATMENT DISTRICT
1. On or before January 30, 2005, the Co
District the sum of $731,428 and shall requ
(FKAA) to transfer to the District the sum
previously transferred to the FKAA for the
loan agreement).
TH1S LOAN AGREEMENT Is entered Into by and between Monroe County, a
political subdivision of the State of Florida (the County) and the Key Largo
Wastewater Treatment District, an independent special district (the District),
pursuant to Sec. 2.03(A)(2) of an interlocal agreement between the parties
effective February 26, 2003 (the interlocal agreement). A copy of the Inter10cal
agreement, together with all its exhibits, is attached as ExhIbit A and made a "part J.-!/:AVV'
hereof ~I, V"
~o A
f'~.4
2. a) The District agrees to establish a special fund to be called the
Key Largo Trailer Village Project Fund (the Fund) and to deposit therein the money
described in Paragraph 1 of this loan agreement. Money in the Fund may only be
used to pay the costs of constructing the Key largo Trailer Viltage central
wastewater treatment and collection system (the Project) that are authorized as
appropriate matching expenditures in the DCA/FEMA grant for the Project. A copy
of the DCA/FEMA grant Is attached to this loan agreement as Exhibit B.
b) The District shall make disbursements or payments from the
Fund only for the costs authorized In subparagraph 2(a) of this loan agreement.
The District shall prepare and keep the records of such disbursements and
payments according to generally accepted governmental accou ntlng principles
consistently applied and shall retain those records for a period of five years from
the date of the completion of the Project. The records must be made available
upon request to an audItOr employed by The County Clerk or the State of florida.
If the auditor determines any funds may have been spent for unauthorized
purposes, the auditor shall meet with District staff to confirm the pu rpose of the
expenditure. If after meeting with DIstr1ct staff, the auditor determines that any of
the funds transferred to the District under this loan agreement were expended for
purposes not authorized by this loan agreement or the DCA/FEMA grant, then the
District shalt, within 30 days of the auditor's determination, return the amount
determined by the auditor to have been improperly spent together with Interest,
calculated at the rate set forth in Sec. 55.03(1), FS, commendng on the date the
auditor determined the funds were expended for a purpose not authorized by this
loan agreement or the DCA/FEMA grant. This subparagraph controls over and
amends any inconsiStent language In the Inter10cal agreement Sec. 2.03(1.)(2).
c) Moneys transferred to the District under this loan agreement
for deposit in the Fund must be depOSited and secured in the same manner as
public funds are authorized to be deposited and secured by the laws of the State of
Feb 08 2005 17:26
I<UIIIHD FISHBURN
305 852 2477
p.3
2
Feb 08 2005 17:26
KLlaIlaITD FISHBURN
305 852 2477
p.4
'", I,
Monroe ~c:wnty
COunty AdminiStratOr
Gate Building
1100 Simonton Street
Key West, FL 33040
by certified mall, retum receipt requested, or by a national courier service such as
Federal Express; lhe above addresses may be changed by written notification.
DIsb1ct
General Manager
PO Box 491
Key Largo, FL 33037
8. This written loan agreement IS the parties~ final mutual
understanding. It supersedes any prior negottatfons or agreements, whether
written (In any format) or oral, and may only be amended by awrttlng signed by
both parties. '
9. This loan agreement will take effect on the signature date of the last
party to execute the agreement. '
BOARD OF COUNlY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
~~
Mayor Dixie K. Spehar
(SEAL)
Attest:
BV~
Date ' ._ "/~K
KEY LARGOWASTEWAlER TREATMENT
DISTRICT
((~
By
JclonKLWW04
~';j14{J
MONROE COUNTY ATTORNEY
:~ll~fORM:
.s:I JOHN R. COLLINS
~~' AtTORNEV
U.,. ,,\ · '"
3
Mar 03 2005 15:48
KLlaIlaITD FISHBURN
305 852 2477
p. 1
P.O.Ibr481 Key L8Igo. FL 33D37
PfIoI.: ~.u77
Fa: 306-862-2477
Key Largo
Wastewater
Treatment District
Fax
... Denny KohI8ge ..... Marty WaIs, Fiw1a! 0Ifi:er
... 295-3e63 ..... 1. incl CCN8I'
"- ...... 03I0W5
.. FEMA M8actW'Ig FlnIa CQ
C ...... [] Fer ..... C...... C\-. I" C ...... ....., C ......
IIlIqcIe
.Comments.
We received Cou1ty flnIs today in the amount of $731,428 as provided i1 the Loan
~ recently execuIed p.nuant to See. 203 (A)(2) ~ the Iri:erfocaI Agreement
dated February 26. 2003. T't-* you for iq)lemel1IiI.g this so plOIIIptfy.
The KLWTD Board of Commissioners approved a new bank acccxn: for the DIstrict In
hold these flnIs on March 2, 20[)4, DisIrbJtions from this accot.I'\t Vllill be made ~
receipt d 1rl8k:hng funds fnm 1he State, and in 1he emct twne amourt. I trust you agree
that this wi. facilla1e addressing any accour01g and audit questiollB which may arise.
KMy Shelby at FKAA hils been out d tcMn this week. but he and I wi wortc out the
details In implement the $182,8671ranefer from FKAA to the Distria outIned in your IBIIer
to Jin Reynolds when he rebm8. For ycu files we .. doc:unert to you in wiling
'Nhatever 8ITallgeI'nent is worked out betVJeen us.
Marty Wails
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