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Miscellaneous \J ra..-f" + - --- D~) HN ~~ (~4.(JM<--: csz,p~ 0(' 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. 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[) 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 ~~~~