Item K3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:August 15, 2012 Division: Public Works & Engineering_
Bulk Item: Yes No X Department:Wastewater
Staff Contact Person/Phone #:Wilson x 8797
AGENDA ITEM WORDING: Approval of a 4th Amendment to the Conch Key / Duck key Interlocal
Agreement to add the advance of the sum one million dollars ($1,000,000) for construction of County owned
segments of the Duck Key wastewater project.
ITEM BACKGROUND: The BOCC authorized $5,100,000 to fund construction to expand and upgrade the
Duck Key treatment plant on July 15, 2009. Amendment no. 2 to the ILA clarifies that the $5,100,000
authorization is in addition to the $1,500,000 previously authorized to fund planning and design of the treatment
plant and collection system. Amendment no. 4 to the ILA authorizes an additional $1,000,000 advance to
FKAA to ensure that sufficient funds are available for construction activities in the 4th calendar quarter of 2012.
PREVIOUS RELEVANT BOCC ACTION: BOCC approved the ILA with FKAA for the Duck Key
wastewater system on September 6, 2006; BOCC approved the first amendment to the ILA with FKAA for
Duck Key wastewater system on July 15, 2009. BOCC approved the second amendment to the ILA with FKAA
on February 17, 2010. Amendment no. 3 to the ILA authorized an additional $8,800,000 (for a total of
$15,400,000) for construction of the collection system and an advance of $1,500,000 to FKAA.
CONTRACTIAGREEMENT CHANGES: This amendment provides authority to advance funding of the
project through the 41h quarter of CY 2012..
STAFF RECOMMENDATIONS: Approval
TOTAL COST:$1,000,000 INDIRECT COST: N/A BUDGETED: Yes X No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY:$1,000,000 SOURCE OF FUNDS:FUND 304
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing
v k_
DOCUMENTATION: Included X Not Required=
Risk Management
DISPOSITION: AGENDA ITEM 9
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:Au,ust 15, 2012
Bulk Item: Yes No X
Division: Public Works & Engineering
Department: Wastewater
Staff Contact Person/Phone #:Wilson x 8797
AGENDA ITEM WORDING: Approval of a 4th Amendment to the Conch Key / Duck key Interlocal
Agreement to add the advance of the sum one million dollars ($1,000,000) for construction of County owned
segments of the Duck Key wastewater project.
ITEM BACKGROUND: The BOCC authorized $5,1.00,000 to fluid construction to expand and upgrade the
Duck Key treatment plant on July 15, 2009. Amendment no. 2 to the ILA clarifies that the $5,100,000
authorization is in addition to the $1,500,000 previously authorized to fund planning and design of the treatment
plant and collection system. Amendment no. 4 to the ILA authorizes an additional $1,000,000 advance to FKAA
to ensure that sufficient fiends are available for construction activities in the 4`h calendar quarter of 2012.
PREVIOUS RELEVANT BOCC ACTION: BOCC approved the ILA with FKAA for the Duck Key
wastewater system on September 6, 2005;13OCC approved the first amendment to the ILA with FKAA for Duck
Key wastewater system on July 15, 2009. BOCC approved the second amendment to the ILA with FKAA on
February 17, 2010. Amendment no. 3 to the ILA authorized an additional $8,800,000 (for a total of $15,400,000)
for construction of the collection system and an advance of $1,500,000 to FKAA.
CONTRACT/AGREEMENT CHANGES: This amendment provides authority to advance funding of the
project through the 4th quarter of CY 2012-
STAFF RECOMMENDATIONS: Approval
TOTAL COST:$1,000,000 INDIRECT COST: N/A BUDGETED: Yes X No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY:$1 000.000 SOURCE OF FUNDS:FUND 304
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty
DOCUMENTATION: Included X
OMB/Purchasing
Not Required —
Risk Management
DISPOSITION: AGENDA ITEM #.
FOURTH AMENDMENT TO
INTERLOCAL AGREEMENT
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS FOURTH AMENDMENT TO INTERLOCAL AGREEMENT is entered into
this 15th day of August, 2012, pursuant to Sec. 163.01, FS., by and between Monroe County, a
political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority,
an independent special district, (FKAA).
WHEREAS, the County has committed by interlocal agreement dated September 6,
2005, and by Master Lease dated as of September 6, 2005, to seek funding through federal and
state grants and the issuance of revenue bonds backed by the pledge of infrastructure tax; and to
provide funding to the FKAA for the administration, planning and construction of wastewater
projects owned Monroe County; and
WHEREAS, on September 20, 2006, the County and the FKAA entered into an
interlocal agreement for the County to provide funding for administration, planning and
construction of a wastewater collection system, transmission main and method of treatment to
Advanced Wastewater Treatment (AWT) standards to serve the residents and business in the
Conch Key/Duck Key Wastewater Service District; and
WHEREAS, on July 15, 2009 the County and FKAA amended the interlocal agreement
to increase funding to Five Million One Hundred Thousand Dollars ($5,100,000) to fund
construction of the wastewater treatment plant upgrades and to identify ownership of segments
of the project; and
WHEREAS, on February 17, 2010 the County and the FKAA amended the interlocal
Agreement to increase funding to Six Million Six Hundred Thousand Dollars ($6,600,000) to
fund construction of the wastewater treatment plant upgrades; and
WHEREAS, on August 18, 2010, the County and the FKAA amended the interlocal
Agreement to increase funding to a total of Fifteen Million Four Hundred Thousand Dollars
($15,400,000) to fund construction of the wastewater treatment plant upgrades; and
WHEREAS, additional funding is necessary to continue the project; now therefore
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows:
1. Section 1, COUNTY FUNDING
of the interlocal agreement (ILA) date
d
4th Amend Duck Key ILA
The County shall pay to the FKAA, no later than September 15, 2012, an advance of the
sum of one million dollars ($1,000,000) for construction of County -owned segments of
the Duck Key wastewater project.
2. All other provisions of the ILA dated September 20, 2006, as amended on July 15, 2009,
February 17, 2010, and August 18, 2010, for the Conch Key/Duck Key Regional Wastewater
System not inconsistent herewith shall remain in full force and effect.
3. EFFECTIVE DATE. This Agreement will take effect on August 15, 2012.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
51
(SEAL)
Danny L. Kolhage, Clerk
By:
Deputy Clerk
Mayor/Chairperson
FLORIDA KEYS AQUEDUCT AUTHORITY
(SEAL)
Kirk Zuelch, Executive Director
ATTEST:
Clerk
it���s°ar .
if
I�
4th Amend Duck Key ILA 2
INTERLOCAL AGREEMENT
MONROE COUNTY AND FLORIDA KEYS AQUEDUCT AUTHORITY
WASTEWATER SYSTEMS
THIS INTERLOCAL AGREEMENT is entered into pursuant to Sec. 163t S., 4ILand
between Monroe County, a political subdivision of the State of Florida, (County), and the Mda
Keys Aqueduct Authority, Inc., an independent special district, (FKAA) ,0*/-* * i'"" s
WHEREAS, the Florida Legislature has identified the Florida Keys as an area of critical state
concern, and has authorized actions by the County and FKAA to provide adequate wastewater
treatment to protect the environment and the health, safety and welfare of landowners and
persons inhabiting the Florida Keys; and
WHEREAS, the County is authorized by Sec. 125.01(1), FS, to provide, assist in providing
and fund centralized wastewater treatment systems;
WHEREAS, Chap, 99-395, Sec. 6, Laws of Florida, and the County's Comprehensive Plan
require that certain wastewater treatment levels be achieved by 2010, levels which can best be
achieved by central wastewater treatment systems;
WHEREAS, the FKAA is authorized by Chap. 76-441, Laws of Florida, as amended, to
design, construct, and operate, wastewater treatment systems;
WHEREAS, the FKAA and the County have entered into previous interlocal agreements
establishing and confirming their ongoing relationship in providing wastewater facilities in the
Florida Keys; and
WHEREAS, the County, by adopted resolutions, has provided funding, to the FKAA for
wastewater projects and shall provide additional funds to the FKAA for the administration,
planning and construction of future wastewater projects in unincorporated Monroe County; and
WHEREAS, the County has deeded to the FKAA parcels of land on Conch Key, the
Saddlebunch Keys and Grassy Key; and
WHEREAS, the County has demonstrated its corunitment to sewering the Keys by
transferring, at no cost, to FKAA the Grassy Key parcel, for which ad valorem taxes were
expended at fair market value and the parcel is to be used by FKAA to serve the City of
Marathon, and has committed a maximum of $20,000,000 to the Key Largo Wastewater
Treatment District; and
WHEREAS, the Baypoint (Saddlebunch Keys) and Conch Key projects, constructed by
FKAA, are soon to be operational; and
WHEREAS, the County and the FKAA intend to continue their cooperation with
Governor Bush, the State Cabinet, the Department of Environmental Protection and the
Department of Community Affairs to implement wastewater systems in unincorporated Monroe
County by 2010; and
Monroe County/FKAA Draft ILA Sep. 6, 2005
WHEREAS, the parties desire to further define their commitment to work together and to
answer concerns raised by the State Cabinet, at a meeting of August 23, 2005, concerning an
agreement dated August 17, 2005, between the parties; and
WHEREAS, the parties have been in reliance upon expressions of commitment by the
Florida Department of Community Affairs of $10,000,000 for wastewater projects for fiscal year
2005, and $20,000,000 for fiscal year 2006, as identified in the Growth Management Plan
attached to County Resolution No.039-2004, and the ability to obtain additional critical financial
assistance from the State of Florida, the federal government and their agencies to achieve the
purpose of this agreement; now therefore,
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows:
1. STATEMENT OF INTENT:
This agreement shall set forth commitments of the parties to work together to achieve the 2010
mandate to sewer the Florida Keys. The parties shall work together to obtain funding for
wastewater treatment facilities from state and federal sources. The parties shall cooperate with
each other and act in a timely manner to acquire, design, construct, and operate wastewater
treatment systems throughout the unincorporated areas of Monroe County, except for the area
covered by the Key Largo Wastewater District, which has its separate authority and
responsibility for sewering that area. The parties further intend that the sewering of the Florida
Keys shall be done at a reasonable cost to users.
2. RESPONSIBILITIES OF COUNTY:
2.01 The County shall own the land and infrastructure of the wastewater treatment systems
acquired or constructed under this agreement*and any amendments hereto, and shall lease said
assets to the FKAA as described in Section 3.08 below.
2.02 The County, in addition to funds obtained from state and federal sources, shall provide up
to the limits of its bonding capacity of the infrastructure sales surtax and County's ability to levy
special assessments, the funds necessary to complete all wastewater projects so that citizens do
not have to pay in excess of $4,500 per EDU in non -ad valorem special assessments. The
County shall provide $20,000,000 for the costs of acquisition, procurement, design, and
construction of wastewater projects in the —Lower Keys. County commits to full faith and
diligence in working with the FKAA to provide funding to make costs of system development
and connections for the Big Coppitt and all future projects reasonable to users. County shall
have the responsibility of levying the special assessments for wastewater projects. Lower Keys
projects included under this Agreement are Big Coppitt area, Cudjoe-Sugarloaf area, and Big
Pine area. Other unincorporated County projects are Duck Key and Long Key.
2.03 The County Administrator shall review all procurement documents drafted by, or on behalf
of, FKAA for wastewater treatment systems in the unincorporated county. The County
Administrator shall make suggestions for changes as he deems in the best interest of the general
public.
Monroe County/FKAA Draft ILA Sep. 6, 2005 2
2.04 The County Administrator shall appoint two members of the evaluation committee should
any committee be established.
2.05 The County shall convey to FKAA such easements as are necessary for the installation of
sewer lines.
3. RESPONSIBILITIES OF FKAA:
3.01 The FKAA shall administer the procurement processes for the design and construction of
wastewater systems in unincorporated Monroe County.
3.02 The FKAA shall develop requests for proposals (RFP) and requests for qualifications
(RFQ) for the procurement of wastewater systems in unincorporated Monroe County, consistent
with the procurement policies of the FKAA and applicable State statute(s). FKAA shall submit
the drafts of RFP/RFQ to the County Administrator for review and input, give due consideration
to any suggestions for changes, and shall advertise RFP/RFQs.
3.03 The FKAA shall accept the RFP/RFQ submissions. It is intended that contracts be
awarded to the most responsive submitter, which shall not be required to be the lowest
responsive bid, the most qualified responder, or other. The parties recognize that the lowest bid
may not be the most effective bid. Accordingly, an evaluation committee which will comply
with Sec. 286.011, F.S., may be established on an ad hoc basis for each procurement process.
Should an evaluation committee be established, the Executive Director of the FKAA and the
County Administrator shall each appoint two members.
3.04 The FKAA shall give due consideration to recommendations of the committee, if any,
and the County Administrator. The FKAA shall award the contract.
3.05 The FKAA shall provide construction management of each project to insure its expeditious
and economic completion. The FKAA authorizes the County Engineer and/or his designee to
make site visits to any project under construction, and shall give due consideration to any
suggestions of the County Engineer regarding an ongoing project.
3.06 The FKAA shall retain the financing authority provided in its enabling legislation.
3.07 The FKAA shall aid the County in its efforts to obtain funding by providing copies of such
documents as the County needs to support its issuance of bonds or to seek Federal and State
grants to assist in the funding of all said wastewater projects.
3.08 The FKAA shall lease from the County the land and infrastructure of the wastewater
treatment systems acquired or constructed under this agreement and any amendments hereto.
The Lease shall be irrevocable and provide absolute and unconditional authority to the FKAA to
establish system development fees, rates, budgets, and rules governing operations_ in such
manner as to be consistent with Section 4.06 of this agreement. The lease term shall be ninety-
nine (99) years, itionaL,m-nety-r4The FKAA shall be
responsible for the maintenance and operations of the systems leased from the County. The
Monroe County/FKAA Draft ILA Sep. 6, 2005
parties understand and agree that the lease to be entered by the parties shall contain covenants,
warranties, auditing and monitoring provisions consistent with the provisions found in the
Interlocal Agreement between the County and the Key Largo Wastewater Treatment District.
3.09 The FKAA, pursuant to requirements of their enabling act, shall ensure that at least two
public hearings be held in the area affected before any system development fee, rate or any other
user fee is established or increased. All revenues derived from the wastewater systems by the
FKAA over and above maintenance, operations, customer service, billing, and any direct costs
specifically incurred to provide these services shall be used solely for the purposes of the
wastewater systems, such as the payment of debt service and retirement of bonds.
3.10 This Agreement shall not apply to wastewater assets currently owned by FKAA or
hereafter acquired from any other utility.
4. COOPERATION IN CARRYING OUT AGREEMENT:
4.01 The County Administrator and the FKAA Executive Director shall meet as necessary to
complete the tasks set forth in this agreement. The County Administrator and the FKAA
Executive Director and their staffs shall only serve in their customary capacity of fact-finding,
professional advice to, and other efforts to carry out the policies of, their respective boards.
4.02 All communications and dissemination of information regarding wastewater projects shall
be through the Offices of the County Administrator and the FKAA Executive Director.
4.03 The parties recognize an obligation of $80,000,000 of bond -financing to be secured by
special assessments in the unincorporated county.
4.04 The parties agree to enter into a lease consistent with this agreement in the most
expeditious manner as possible.
-1k"-
4.05 The parties shall work together to secure sites for wastewater treatment plants in remaining
lower keys no later than July 12, 2007. Attached hereto is Exhibit A setting forth a preliminary
timetable for the projects.
4.06 Neither party shall take any action or omit to take necessary action, including action
pertaining to rate setting, that will adversely affect the tax-exempt status of County and FKAA
bonds, or the respective party's ability to issue bonds under this agreement. Each party will take
such action as is reasonably requested by the other party in connection with the issuance of
bonds so as to allow the other party to issue such bonds on a tax-exempt basis, including, but not
limited to, executing tax certificates.
5. ESTABLISHMENT OF CERTAIN PREREQUISITES FOR EACH PROJECT
5.01 The County and the FKAA shall work together to achieve the following goal: to establish
fair and equitable connection fees and user fees to fund the operation and maintenance of
wastewater systems.
Monroe County/FKAA Draft ILA Sep. 6, 2005 4
5.02 Projects constructed under this agreement shall conform to the Monroe County Sanitary
Wastewater Master Plan.
5.03 It is recognized that some outlying areas of the Keys which are not heavily populated may
not be feasibly served by a centralized wastewater and sewage system, and that Alternative
Wastewater Facilities may be required to be installed to meet the mandate for adequate
wastewater treatment in the Florida Keys. All Alternative Wastewater Facilities that may
hereafter be constructed and operated within the Service Area of the FKAA shall conform to
good utility practices, adequate service to the public, ensure adequate Wastewater Service for the
Florida Keys and its citizens. FKAA shall comply with all applicable laws and rules in issuing
prior approval for the use, construction, installation, or operation of new or expanded Alternative
Wastewater Facilities. The FKAA shall require and enforce the use of its own Wastewater
Facilities and facilities leased from County whenever and wherever they are accessible. Any
Alternative Wastewater Facility must provide adequate and sufficient service to the projected
territory or development.
6. INSURANCE AND HOLD HARMLESS:
6.01 The parties to this agreement stipulate that each is a state governmental agency as defined
by Florida Statutes and represents to the other that it has purchased suitable Public Liability,
Vehicle Liability, and Workers' Compensation insurance, or is self -insured, in amounts adequate
to respond to any and all claims under federal or state actions for civil rights violations, which
are not limited by Florida Statutes Section 768.28 and Chapter 440, as well as any and all claims
within the limitations of Florida Statutes Section 768.28 and Chapter 440, arising out of the
activities governed by this agreement.
6.02 To the extent allowed by law, each party shall be responsible for any acts, or omissions, of
negligence on the part of its employees, agents, contractors, and subcontractors and shall defend,
indemnify and hold the other party, its officers and employees, agents and contractors, harmless
from all claims demands, causes of action, losses, costs and expenses of whatever type -
including investigation and witness costs and expenses and attorneys' fees and costs - that arise
out of or are attributable to arising out of such actions or omissions. The purchase of the
insurance does not release or vitiate either party's obligations under this paragraph.
6.03 Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the
County and the FKAA in this Agreement and the acquisition of any commercial liability
insurance coverage, self-insurance coverage, or local government liability insurance pool
coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall
any contract entered into by the County be required to contain any provision for waiver.
7. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES:
7.01 This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State.
7.02 In the event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the County and FKAA agree that venue will lie
Monroe County/FKAA Draft ILA Sep. 6, 2005 5
in the appropriate court or before the appropriate administrative body in Monroe County,
Florida.
7.03 The County and FKAA agree that, in the event of conflicting interpretations of the terms or
a term of this Agreement by or between any of them the issue shall be submitted to mediation
prior to the institution of any other administrative or legal proceeding.
7.04 The County and FKAA agree that in the event any cause of action or administrative
proceeding is initiated or defended by any party relative to the enforcement or interpretation of
this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs,
investigative, and out-of-pocket expenses, as an award against the non -prevailing party, and shall
include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate
proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be
in accordance with the Florida Rules of Civil Procedure and usual and customary procedures
required by the circuit court of Monroe County.
8. SEVERABILITY:
If any term, covenant, condition or provision of this Agreement (or the application thereof to any
circumstance or person) shall be declared invalid or unenforceable to any extent by a court of
competent jurisdiction, the remaining terms, covenants, conditions and provisions of this
Agreement, shall not be affected thereby; and each remaining term, covenant, condition and
provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted
by law unless the enforcement of the remaining terms, covenants, conditions and provisions of
this Agreement would prevent the accomplishment of the original intent of this Agreement. The
County and FKAA agree to reform the Agreement to replace any stricken provision with a valid
provision that comes as close as possible to the intent of the stricken provision.
9. BINDING EFFECT:
The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the
benefit of the County and FKAA and their respective legal representatives, successors, and
assigns.
10. AUTHORITY:
Each party represents and warrants to the other that the execution, delivery and performance of
this Agreement have been duly authorized by all necessary County and Authority action, as
required by law.
11. CLAIMS FOR FEDERAL OR STATE AID:
FKAA and County agree that each shall be, and is, empowered to apply for, seek, and obtain
federal and state funds to further the purpose of this Agreement.
Monroe County/FKAA Draft ILA Sep. 6, 2005 6
12. NON-DISCRIMINATION:
FKAA and COUNTY agree that there will be no discrimination against any person, and it is
expressly understood that upon a determination by a court of competent jurisdiction that
discrimination has occurred, this Agreement automatically terminates without any further action
on the part of any party, effective the date of the court order. FKAA and County agree to
comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of
1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2)
Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-
1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation
Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of
handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which
prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of
1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of
1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or
alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and
290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8)
Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to
nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities
Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Monroe County Code Ch. 13, Art. VI,
prohibiting discrimination on the bases of race, color, sex, religion, disability, national origin,
ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) any
other nondiscrimination provisions in any Federal or state statutes which may apply to the parties
to, or the subject matter of, this Agreement.
13. ADJUDICATION OF DISPUTES OR DISAGREEMENTS:
13.01 County and FKAA agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the parties. If the issue
or issues are still not resolved to the satisfaction of the parties, then any party shall have the right
to seek such relief or remedy as may be provided by this Agreement or by Florida law.
13.02 In the event any administrative or legal proceeding is instituted against either party
relating to the formation, execution, performance, or breach of this Agreement, County and
FKAA agree to participate, to the extent required by the other party, in all proceedings, hearings,
processes, meetings, and other activities related to the substance of this Agreement or provision
of the services under this Agreement. County and FKAA specifically agree that no party to this
Agreement shall be required to enter into any arbitration proceedings related to this Agreement.
14. COVENANT OF NO INTEREST:
County and FKAA covenant that neither presently has any interest, and shall not acquire any
interest, which would conflict in any manner or degree with its performance under this
Monroe County/FKAA Draft ILA Sep. 6, 2005 7
Agreement, and that only interest of each is to perform and receive benefits as recited in this
Agreement.
15. CODE OF ETHICS:
15.01 County and the FKAA agree that officers and employees of the County recognize and will
be required to comply with the standards of conduct for public officers and employees as
delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or
acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of
public position, conflicting employment or contractual relationship; and disclosure or use of
certain information.
15.02 FKAA warrants that it has not employed, retained or otherwise had act on its behalf any
former County officer or employee subject to the prohibition of Section 2 of ordinance No. 010-
1990 or any County officer or employee in violation of Section 3 of Ordinance No. 010-1990.
16. NO SOLICITATION/PAYMENT:
The County and FKAA each warrant that, in respect to itself, it has neither employed nor
retained any company or person, other than a bona fide employee working solely for it, to solicit
or secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide employee working solely for it, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement.
17. PUBLIC ACCESS:
The County and FKAA shall each allow and permit reasonable access to., and inspection of, all
documents, papers, letters or other materials in its possession or under its control subject to the
provisions of Chapter 119, Florida Statutes, and made or received by the County and FKAA in
conjunction with this Agreement.
18. PRIVILEGES AND IMMUNITIES:
All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules
and pensions and relief, disability, workers' compensation, and other benefits which apply to the
activity of officers, agents, or employees of any public agents or employees of the County and
the FKAA, when performing their respective functions under this Agreement within the
territorial limits of the County and the FKAA, respectively, shall apply to the same degree and
extent to the performance of such functions and duties -of such officers, agents, volunteers, or
employees outside the territorial limits of the parties.
Monroe County/FKAA Draft ILA Sep. 6, 2005 8
19. LEGAL OBLIGATIONS AND RESPONSIBILITIES:
Non -Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor
shall it be construed as, relieving any participating entity from any obligation or responsibility
imposed upon the entity by law except to the extent of actual and timely performance thereof by
any participating entity, in which case the performance may be offered in satisfaction of the
obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed
as, authorizing the delegation of the constitutional or statutory duties of the County or the
FKAA, except to the extent permitted by the Florida constitution, state statute, and case law.
20. NON -RELIANCE BY NON-PARTIES:
No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to
enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or
program contemplated hereunder, and the County and the FKAA agree that neither the County
nor the FKAA or any agent, officer, or employee of either shall have the authority to inform,
counsel, or otherwise indicate that any particular individual or group of individuals, entity or
entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or
superior to the community in general. Notwithstanding the preceding language, the parties
hereby designate the State of Florida as a third party with the ability to enforce against the two
parties the provisions hereof, based upon the State Auditor conducting management and financial
audits of all sewer programs, past, present, and future, in the Florida Keys.
21. ATTESTATIONS:
FKAA and County agrees to execute such documents as the County or the FKAA may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -
Free Workplace Statement.
22. NO PERSONAL LIABILITY:
No covenant or agreement contained herein shall be deemed to be a covenant or agreement of
any member, officer, agent or employee of either party in his or her individual capacity, and no
member, officer, agent or employee of either party shall be liable personally on this Agreement
or be subject to any personal liability or accountability by reason of the execution of this
Agreement.
23. EXECUTION IN COUNTERPARTS:
This Agreement may be executed in any number of counterparts, each of which shall be regarded
as an original, -all of which taken together shall constitute one and the -same instrument and any
of the parties hereto may execute this Agreement by signing any such counterpart.
Monroe County/FKAA Draft ILA Sep. 6, 2005 9
24. SECTION HEADINGS:
Section headings have been inserted in this Agreement as a matter of convenience of reference
only, and it is agreed that such section headings are not a part of this Agreement and will not be
used in the interpretation of any provision of this Agreement.
25. TERM OF AGREEMENT AND TERMINATION:
This Agreement shall commence on September 6, 2005, and continue for ninety-nine (99) years,
or until such time as all leases entered pursuant hereto are terminated, whichever shall first
occur. The parties may elect to renew this agreement at the end of its term, as set forth in the
preceding sentence, for a period of ninety-nine (99) years.
26. ASSIGNMENT:
Neither party may assign this Agreement or assign any of its obligations under this Agreement
without the approval of the other party, which approval shall be in writing and fully executed by
both parties. All the obligations of this Agreement will extend to and bind the legal
representatives, successors and assigns of FKAA and the County.
27. COMPLIANCE WITH LAWS:
This Agreement shall comply with the laws and regulations of the United States and the State of
Florida, whether in effect on commencement of this Agreement or adopted after that date.
28. CONSTRUCTION: -
This Agreement has been carefully reviewed by FKAA and the COUNTY. Therefore, this
Agreement is not to be construed against any party on the basis of authorship.
29. NOTICES.
Notices in this Agreement, unless otherwise specified, must be sent by certified mail to the
following:
County: FKAA:
County Administrator Executive Director
1100 Simonton Street 1100 Kennedy Drive
Key West, FL 33040 Key West, FL 33040
30. FULL UNDERSTANDING:
Monroe County/FKAA Draft ILA Sep. 6, 2005 10
This Agreement is the parties' final mutual understanding with respect to any projects
constructed in the future. It replaces any earlier agreements or understandings, whether written
or oral, with respect to any projects constructed in the future. This Agreement cannot be
modified or replaced except in a written amendment duly executed by both parties.
31. EFFECTIVE DATE:
6�. S
This Agreement will take effect on the day of { , 2005.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
first above written.
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA
(SEAL)ATTEST:
DANNY L. KOLHAGE ERK By:
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epu Jerk
(SEAL) ATTEST:
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Ei
INTERLOCAL AGREEMENT
BETWEEN
MONROE COUNTY
AND
FLORIDA KEYS AQUEDUCT AUTHORITY
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS INTERLOCAL AGREEMENT (Agreement) is entered into this co gday of
_, 2006, pursuant to Florida Statute Sec. 163.01, by and between Monroe County
(County), a political subdivision of the State of Florida, and the Florida Keys Aqueduct
Authority (FKAA), an independent special district.
WHEREAS, the County is authorized by Florida Statute Sec. 125.01(1) to provide, assist
in providing., and fund centralized wastewater treatment systems; and
WHEREAS, Section 6, Chapter 99-395, Laws of Florida, and the County's
Comprehensive Plan require that certain wastewater treatment levels be achieved by the year
2010, which levels can best be achieved by central wastewater treatment systems; and
WHEREAS, the FKAA is authorized by Chap. 76-441, Laws of Florida, as amended, and
Chapter 98-519, Laws of Florida, to design, construct, and operate, wastewater treatment
systems; and
WHEREAS, the FKAA and the County have entered into previous interlocal agreements
establishing and confirming their ongoing partnership in providing wastewater facilities in the
Florida Keys; and
WHEREAS, the County adopted Ordinance No. 38-2004, authorizing the levy of ad
valorem taxes in the Conch Key/Duck Key Municipal Service Taxing Unit, in order to provide
an initial source of funding for the Conch Key/Duck Key Regional Wastewater Project (Project);
and
WHEREAS, FKAA has initiated planning, design and other services for the Project for
which it may be paid with taxing unit funds; and
WHEREAS, the County by Interlocal Agreement dated September 6, 2005, and by
Master Lease dated as of September 6, 2005, has committed to seek funding through federal and
state grants and loans and the issuance of revenue bonds backed by the pledge of infrastructure
sales tax; and will be providing additional funds to the FKAA for the administration, planning
and construction of future wastewater projects in unincorporated Monroe County; and
WHEREAS, the County may have other funding mechanisms, including but not limited
to infrastructure sales tax, grant and loan funding and ad valorem taxes, available to it for the
provision of sewers and wastewater treatment; and
WHEREAS, County and FKAA desire to put in place procedures for the allocation,
expenditure, and reimbursement of funds for the Project;
NOW, THEREFORE, in consideration of the mutual consideration and promises set forth
below, the parties agree as follows:
1. COUNTY FUNDING. The County by resolution of its Board of County Commissioners,
shall appropriate from any lawfully available source, those funds which have been duly approved
for the estimated costs of administration, planning and construction of the Project, which shall
not exceed Million Dollars ($12,500,000). Conch Key/Duck Key Municipal Service Taxing
Unit ad valorem tax proceeds collected by County shall be provided to FKAA as part of the
funding under this Agreement and shall be disbursed as described in paragraph 3 below. Before
such disbursement, County may deduct its costs of administration and professional costs from
the MSTU :funds collected. As the Project progresses, and estimates are altered to reflect a
combination of actual costs incurred and changes in pricing due to contracts resulting from bid
processes, or other changed conditions, the FKAA shall provide such information to the County.
This Agreement shall be modified as necessary to reflect such changes in the estimates in order
to provide for adequate funding to be available for the timely and efficient construction of the
project. The amount of the funding may be changed by written amendment to this Agreement
approved by the parties.
2. PROJECT. The Project shall consist of a collection system, transmission main and
method of treatment to Advanced Wastewater Treatment standards sufficient to serve the needs
of the residents and businesses in the Conch Key/Duck Key Wastewater Service District. Both
FKAA and County shall perform their respective obligations and responsibilities under the
Interlocal Agreement dated September 6, 2005. Attached are a project area map and project
description (Exhibit A).
2. EXP'ENDITURE OF FUNDS. The FKAA shall initially be funded in the amount of One
Million Five Hundred Thousand Dollars ($1,500,000.00) for the administration, planning, design
and construction of the Project. Thereafter, during the course of the Project, the FKAA may
request reimbursement for payments made by FKAA upon submission of documentation of
previous expenditures from the One Million Five Hundred Thousand Dollars ($1,500,000.00)
until the total amount allocated by the County is exhausted. The FKAA shall submit this
documentation to the County Senior Administrator (CSA) for Sewer Projects describing the
services performed and stating for which wastewater district/Project the funds were expended.
The submission must be in a form satisfactory to the CSA and Clerk of the Circuit Court (Clerk).
If the CSA approves the submission, she shall forward the same to the Clerk. If the CSA or the
Clerk determine that the submission is unacceptable, either of them shall return it to the FKAA
in writing with a written description of the deficiency(ies).
3. FISCAL CONTROLS AND QUARTERLY REPORTS. The FKAA shall establish fiscal
controls and fund accounting procedures that comply with generally accepted government
accounting principles, satisfactory to the Clerk, in order to assure that the funds provided to the
FKAA are spent for the purposes set forth in this Agreement. All FKAA financial records
pertaining to this Agreement must be made available, upon request, to the Clerk, an auditor
employed by the County or the State of Florida. The records must be retained by the FKAA for
five years following the receipt by the FKAA of its last payment pursuant to this Agreement.
Any funds transferred by the County to the FKAA under this Agreement that are determined by
the Clerk, or an auditor employed by the County or employed by the State to have been spent on
a purpose not contemplated by this Agreement must be paid back to the County with interest
calculated pursuant to Florida Statute Sec. 55.03(1), from the date the auditor determines the
funds were expended for a purpose not authorized by this Agreement. The FKAA agrees to
provide the Clerk with quarterly status reports concerning the expenditure of these funds in
sufficient detail to demonstrate compliance with the provisions of this Agreement.
4. RECORDS -- ACCESS AND AUDITS. FKAA shall maintain adequate and complete
records for a period of five years after termination of this Agreement. The State, the County,
their officers, employees, agents and contractors shall have access to FKAA's books, records,
and documents related to this Agreement upon request. The access to and inspection of such
books, records, and documents by the aforementioned government representatives shall occur at
any reasonable time.
5. RELATIONSHIP OF PARTIES. FKAA is, and shall be an independent contractor and
not an agent or servant of the County. FKAA shall exercise control, direction, and supervision
over the means and manner that its personnel, contractors and volunteers perform the work for
the purpose of this Agreement. FKAA shall have no authority whatsoever to act on behalf of or
as agent of the County in any promise, Agreement or representation other than specifically
provided for in this Agreement. The County shall at no time be legally responsible for any
negligence on the part of FKAA, its employees, agents or volunteers resulting in either bodily or
personal injury or property damage to any individual, property or corporation.
6. TAXES. FKAA must pay all taxes and assessments, if any, including any sales or use
tax, levied by any government agency with respect to FKAA's operations related to this
Agreement.
7. INSURANCE.The parties to this Agreement stipulate that each is a state governmental
agency as defined by Florida Statutes and represents to the other that it has purchased suitable
Public Liability, Vehicle Liability, and Workers' Compensation insurance, or is self -insured, in
amounts adequate to respond to any and all claims under federal or state actions for civil rights
violations not limited by Florida Statutes Section 768.28 and Chapter 440, as well as any and all
claims within the limitations of Florida Statutes Section 768.28 and Chapter 440, arising out of
the activities governed by this Agreement.
To the extent allowed by law, each party shall be responsible for any acts of negligence on the
part of its employees, agents, contractors, and subcontractors and shall defend, indemnify and
hold the other party harmless from all claims arising out of such actions.
FKAA agrees to keep in full force and effect the required insurance coverage during the term of
this Agreement. If the insurance policies originally purchased which meet the requirements of
this lease are canceled, terminated or reduced in coverage, then FKAA must immediately
substitute complying policies so that no gap in coverage occurs. Copies of current policy
certificates shall be filed with the County whenever acquired or amended.
8. HOLD HARMLESS. To the extent allowed by law, FKAA is liable for and must fully
defend, release, discharge, indemnify and hold harmless the County, the members of the County
Commission, County officers and employees, County agents and contractors, and the Sheriff's
Office, its officers and employees, from and against any and all claims, demands, causes of
action, losses, costs and expenses of whatever type - including investigation and witness costs
and expenses and attorneys' fees and costs - that arise out of or are attributable to FKAA's
operations in connection with this Agreement except for those claims, demands, damages,
liabilities, actions, causes of action, losses, costs and expenses that are the result of the sole
negligence of the County. FKAA's purchase of the insurance required under this Agreement
does not release or vitiate its obligations under this paragraph. FKAA does not waive any of its
sovereign immunity rights including but not limited to those expressed in Section 768.28, Florida
Statutes.
9. NON-DISCRIMINATION. FKAA and County agree that there will be no
discrimination against any person, and it is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the court
order. FKAA and County agree to comply with all Federal and Florida statutes, and all local
ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1)
Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis
of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended
(20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3)
Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended
(42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug
Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination
on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act
of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as
maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10)
Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex,
religion, disability, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any Federal or state
statutes which may apply to the parties to, or the subject matter of, this Agreement.
10. GOVERNING LAW VENUE INTERPRETATION COSTS AND FEES. This
Agreement shall be governed by and construed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, the County and FKAA agree that venue shall lie in the
appropriate court or before the appropriate administrative body in Monroe County, Florida.
Neither this Agreement nor any of its terms is subject to arbitration. The County and FKAA
agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by
or between any of them the issue shall be submitted to mediation prior to the institution of any
other administrative or legal proceeding. Mediation proceedings initiated and conducted pursuant
to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and
customary procedures required by the circuit court of Monroe County.
11. SEVERABILITY. If any term, covenant, condition or provision of this Agreement (or
the application thereof to any circumstance or person) shall be declared invalid or unenforceable
to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions
and provisions of this Agreement, shall not be affected thereby; and each remaining term,
covenant, condition and provision of this Agreement shall be valid and shall be enforceable to
the fullest extent permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provisions of this Agreement would prevent the accomplishment of the original
intent of this Agreement. The County and FKAA agree to reform the Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
12. ATTORNEY'S FEES AND COSTS. The County and FKAA agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award
against the non -prevailing party, and shall include attorney's fees, courts costs, investigative, and
out-of-pocket expenses in appellate proceedings.
13. BINDING EFFECT. The terms, covenants, conditions, and provisions of this Agreement
shall bind and inure to the benefit of the County and FKAA and their respective legal
representatives, successors, and assigns.
15. AUTHORITY. Each party represents and warrants to the other that the execution,
delivery and performance of this Agreement have been duly authorized by all necessary County
and corporate action, as required by law.
16. CLAIMS FOR FEDERAL OR STATE AID. FKAA and County agree that each shall be,
and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of
this Agreement; provided that all applications, requests, grant proposals, and funding
solicitations shall be approved by each party prior to submission.
17. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. County and FKAA agree
that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives of each of the parties. If no resolution can be agreed upon within 30
days after the first meet and confer session, the issue or issues shall be discussed at a public
meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the
satisfaction of the parties, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law.
18. COOPERATION. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of this
Agreement, County and FKAA agree to participate, to the extent required by the other party, in
all proceedings, hearings, processes, meetings, and other activities related to the substance of this
Agreement or provision of the services under this Agreement. County and FKAA specifically
agree that no party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement.
19. COVENANT OF NO INTEREST. County and FKAA covenant that neither presently
has any interest, and shall not acquire any interest, which would conflict in any manner or degree
with its performance under this Agreement, and that only interest of each is to perform and
receive benefits as recited in this Agreement.
20. CODE OF ETHICS. County agrees that officers and employees of the County recognize
and will be required to comply with the standards of conduct for public officers and employees
as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or
acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of
public position, conflicting employment or contractual relationship; and disclosure or use of
certain information.
21. NO SOLICITATIONLTAYMENT. The County and FKAA warrant that, in respect to
itself, it has neither employed nor retained any company or person, other than a bona fide
employee working solely for it, to solicit or secure this Agreement and that it has not paid or
agreed to pay any person, company, corporation, individual, or firm, other than a bona fide
employee working solely for it, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the breach or
violation of the provision, the FKAA agrees that the County shall have the right to terminate this
Agreement without liability and, at its discretion, to offset from monies owed, or otherwise
recover, the full amount of such fee, commission, percentage, gift, or consideration.
22. PUBLIC ACCESS. The County and FKAA shall allow and permit reasonable access to,
and inspection of, all documents, papers, letters or other materials in its possession or under its
control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the
County and FKAA in conjunction with this Agreement; and the County shall have the right to
unilaterally cancel this Agreement upon violation of this provision by FKAA.
23. NON -WAIVER OF IMMUNITY. Notwithstanding the provisions of Sec. 786.28,
Florida Statutes, the participation of the County and the FKAA in this Agreement and the
acquisition of any commercial liability insurance coverage, self-insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of immunity to the
extent of liability coverage, nor shall any contract entered into by the County or the FKAA be
required to contain any provision for waiver.
24. PRIVILEGES AND IMMUNITIES. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of
any public agents or employees of the County or the FKAA, when performing their respective
functions under this Agreement within the territorial limits of the County shall apply to the same
degree and extent to the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the County.
25. LEGAL OBLIGATIONS AND RESPONSIBILITIES. Non -Delegation of Constitutional
or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any
participating; entity from any obligation or responsibility imposed upon the entity by law except
to the extent of actual and timely performance thereof by any participating entity, in which case
the performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by the Florida
constitution, state statute, and case law.
26. NON -RELIANCE BY NON-PARTIES. No person or entity shall be entitled to rely
upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -
party claim or entitlement to or benefit of any service or program contemplated hereunder, and
the County and the FKAA agree that neither the County nor the FKAA or any agent, officer, or
employee of either shall have the authority to inform, counsel, or otherwise indicate that any
particular individual or group of individuals, entity or entities, have entitlements or benefits
under this Agreement separate and apart, inferior to, or superior to the community in general or
for the purposes contemplated in this Agreement.
27. ATTESTATIONS. FKAA agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -
Free Workplace Statement.
28. NO PERSONAL LIABILITY. No covenant or agreement contained herein shall be
deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe
County or the FKAA in his or her individual capacity, and no member, officer, agent or
employee of Monroe County or the FKAA shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of the execution of this Agreement.
29. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be regarded as an original, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute this Agreement
by singing any such counterpart.
30. SECTION HEADINGS. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not a part
of this Agreement and will not be used in the interpretation of any provision of this Agreement.
31. TERMINATION. The County may treat FKAA in default and terminate this
Agreement immediately, without prior notice, upon failure of FKAA to comply with any
provision related to compliance with all laws, rules and regulations. This Agreement may be
terminated by County due to breaches of other provisions of this Agreement if, after written
notice of the breach is delivered to FKAA, FKAA does not cure the breach within 7 days
following delivery of notice of breach. The County may terminate this Agreement upon giving
sixty (60) days prior written notice to FKAA. Any waiver of any breach of covenants herein
contained shall not be deemed to be a continuing waiver and shall not operate to bar either party
from declaring a forfeiture for any succeeding breach either of the same conditions or covenants
or otherwise. Should the Agreement be terminated, County shall pay for reimbursable costs to
the effective date of termination. Termination of this Agreement for this project shall have no
effect on any other agreement between the County and the FKAA.
32. ASSIGNMENT. FKAA may not assign this Agreement or assign or subcontract any of
its obligations under this Agreement without the approval of the County's Board of County
Commissioners. All the obligations of this Agreement will extend to and bind the legal
representatives, successors and assigns of FKAA and the County.
33. SUBORDINATION. This Agreement is subordinate to the laws and regulations of the
United Staters, the State of Florida, and the County, whether in effect on commencement of this
Agreement or adopted after that date.
34. INCONSISTENCY. If any item, condition or obligation of this Agreement is in conflict
with other items in this Agreement, the inconsistencies shall be construed so as to give meaning
to those terms which limit the County's responsibility and liability.
35. GOV:ERNING LAWS/VENUE. This Agreement is governed by the laws of the State of
Florida and the United States. Venue for any dispute arising under this Agreement must be in
Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a
reasonable attorney's fee and costs.
36. ETHICS CLAUSE. FKAA warrants that it has not employed, retained or otherwise had
act on its behalf any former County officer or employee subject to the prohibition of Section 2 of
ordinance No. 010-1990 or any County officer or employee in violation of Section 3 of
Ordinance No. 010-1990. For breach or violation of this provision, the County may, in its
discretion, terminate this Agreement without liability and may also, in its discretion, deduct from
the Agreement or purchase price, or otherwise recover, the full amount of any fee, commission,
percentage, gift or consideration paid to the former County officer or employee.
37. CONSTRUCTION. This Agreement has been carefully reviewed by FKAA and County.
Therefore, this Agreement is not to be construed against any party on the basis of authorship.
38. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by
certified mail to the following:
COUNTY:
County Administrator
1100 Simonton Street
Key West, FL 33040
FKAA
Executive Director
1100 Kennedy Drive
Key West, FL 33040
39. FULL UNDERSTANDING. This Agreement is the parties' final mutual understanding.
It replaces any earlier agreements or understandings, whether written or oral. This Agreement
cannot be modified or replaced except by another written and signed agreement.
40. ANNUAL APPROPRIATION: Funding by County is subject to an annual appropriation
by the Board of County Commissioners.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
(SEAL)
Danny L. Kolhage, Clerk
By:
Deputy Jerk
BOARD OF C TY COMMISSIONERS
OF MONROI,,'
PNTY, FLORIDA
By:
Mayor/Cha rperson
FLORIDA KEYS
ATTEST: /
By; --74By: 11-f �X
C►eras i
CT AUTHORITY
,12,.ecc,q-
FKAA Board Approved September 21, 2006
fl
C=
MONROE COUNTY ATTORNEY
APP VED AS T
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TON
Date 0
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EXHIBIT "A"
PROJECT DESCRIPTION
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
Gravity wastewater collection and transmission system to serve all of the
islands, of Duck Key.
Addition of capacity to the Hawk's Cay Wastewater Treatment Plant to
service Duck Key, Conch Key and Hawk's Cay flows, and upgrade of
treatment to meet advanced wastewater treatment standards.
See ATTACHED PROJECT AREA MAP
l
FIRST AMENDMENT TO
INTERLOCAL AGREEMENT
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS FIRST AMENDMENT TO INTERLOCAL AGREEMENT is entered into this
15th day of July, 2009, pursuant to Sec. 163.01, FS., by and between Monroe County, a political
subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority, Inc., an
independent special district, (FKAA).
WHEREAS, the County has committed by interlocal agreement dated September 6, 2005,
and by Master Lease dated as of September 6, 2005, to seek funding through federal and state grants
and the issuance of revenue bonds backed by the pledge of infrastructure tax; and to provide funding
to the FKAA for the administration, planning and construction of wastewater projects a owned
Monroe County; and
WHEREAS, on September 20, 2006, the County and the FKAA entered into an interlocal
agreement for the County to provide funding for administration, planning and construction of a
wastewater collection system, transmission main and method of treatment to Advanced Wastewater
Treatment (AWT) standards to serve the residents and business in the Conch Key/Duck Key
Wastewater Service District; and
WHEREAS, FKAA has acquired a treatment plant on Duck Key for purposes of upgrade and
expansion to provide AWT to the area encompassing Duck Key, Indies Island, and Conch Key, and
has initiated design and other services to commence the Duck Key Project; and
WHEREAS, the County and the FKAA desire to establish their responsibilities and rights in
carrying out the Duck Key Project, including, but not limited to, ownership of various system
components and respective percentage of funding responsibilities; now therefore
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows:
1. Section 1, COUNTY FUNDING, of the interlocal agreement dated September 20, 2006
(ILA) shall be amended to read:
1. COUNTY FUNDING OF COUNTY -OWNED SEGMENTS OF PROJECT:
A. The County shall appropriate through resolution of the BOCC, from any lawfully
available source, those funds which have been duly approved for the estimated costs of
administration, planning and construction of the County -owned segments of the Duck Key Project
and the acquisition of the capacity at the treatment plant to provide advanced wastewater treatment
for Conch Key and Duck Key, to the FKAA, which shall not exceed Five Million One Hundred
Thousand Dollars ($5,100,000), unless that amount is changed by amendment to this agreement. As
the project progresses, and estimates are altered to reflect a combination of actual costs incurred and
changes in pricing due to contracts resulting from bid processes, and other changed conditions, the
FKAA shall provide such information to the County. The County shall, at such time as sufficient
1" Amend Duck Key ILA 1
funding has been identified to pay for the construction of the collection systems on Duck Key, notify
FKAA so that an amendment can be entered for the necessary additional funding to be provided for
that segment of the project. This Agreement shall be modified as necessary to reflect such changes
in estimates in order to provide for adequate funding to be available for the timely and efficient
construction of the County -owned segments of the project.
B. Ownership Interest.
(i) The County shall own those portions of the project for which it provides funding. The
funding described above shall pay the costs of the collection system, which the County shall own
and which shall be subject to the Master Lease dated September 6, 2005, as amended, and capacity
for 900 EDUs of Conch Key and Duck Key in the treatment plant acquired by FKAA.
(ii) FKAA shall retain ownership of the upgraded treatment plant, less the capacity acquired
by County, and shall be the Lessee of the collection system, as set forth in the Master Lease. .
2. Section 2, PROJECT, of the ILA shall be amended to read:
2. For purposes of ownership, lease for operations, and funding, the Project shall be divided
into segments, those which are owned by the County and leased to the FKAA for purposes of
construction, maintenance and operations, and those which are owned by the FKAA.
A. The County shall own, and lease to FKAA, the following:
Collection Systems on Duck Key
Capacity in Duck Key Regional Treatment Plant for EDU's on Conch Key
and Duck Key
B. The FKAA shall own the following:
Duck Key Regional Treatment Plant
Conch Key Collection System
3. Section 2, EXPENDITURE OF FUNDS, of the ILA shall be renumbered as Section 3, and
amended to read as follows:
3. EXPENDITURE OF FUNDS. The FKAA shall initially be funded in the amount of One
Million Five Hundred Thousand Dollars ($1,500,000) for the administration, planning and
construction of the County -owned segments of the Duck Key wastewater project. Thereafter, during
the course of the project, the FKAA may request reimbursement for payments made by FKAA upon
submission of documentation of previous expenditures from the One Million Five Hundreed
Thousand Dollars ($1,500,000) until the total amount allocated by the County is exhausted. The
FKAA shall submit this documentation to the County Senior Administrator, Sewer Projects
(hereafter designated as the CSA) describing the services performed and stating for which
wastewater district for which the funds were expended. The submission must be in a form
satisfactory to the CSA and Clerk of the Circuit Court (Clerk). If the CSA approves the submission
she shall forward the same to the Clerk. If the CSA or the Clerk determine that the submission is
unacceptable, either of them shall return it to the FKAA in writing with a written description of the
deficiency(ies).
4. The remaining sections of the ILA shall be renumbered.
5. All other provisions of the ILA dated September 20, 2006, for the Conch Key/Duck Key Regional
Wastewater System not inconsistent herewith shall remain in full force and effect.
1st Amend Duck Key ILA 2
6. EFFECTIVE DATE. This Agreement will take effect on July 15, 2009.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
first above written.
(SEAL)
Danny L. Kolhage, Cl rk
By:
Deputy Cler
BOARD OF COUNTY COMMISSIONERS
OF MO ROE COUNTY, FLORIDA
By:
Mayor/Chairperson
THE FLORIDA KEYS AQUEDUCT AUTHORITY
(SEAL)
By:
Chairman
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SECOND AMENDMENT TO
INTERLOCAL AGREEMENT
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS SECOND AMENDMENT TO INTERLOCAL AGREEMENT is entered into
this 17th day of February, 2010, pursuant to Sec. 163.01, FS., by and between Monroe County,
a political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct
Authority, Inc., an independent special district, (FKAA).
WHEREAS, the County has committed by interlocal agreement dated September 6,
2005, and by Master Lease dated as of September 6, 2005, to seek funding through federal and
state grants and the issuance of revenue bonds backed by the pledge of infrastructure tax; and to
provide funding to the FKAA for the administration, planning and construction of wastewater
projects owned Monroe County; and
WHEREAS, on September 20, 2006, the County and the FKAA entered into an
interlocal agreement for the County to provide funding for administration, planning and
construction of a wastewater collection system, transmission main and method of treatment to
Advanced Wastewater Treatment (AWT) standards to serve the residents and business in the
Conch Key/Duck Key Wastewater Service District; and
WHEREAS, FKAA has acquired a treatment plant on Duck Key for purposes of upgrade
and expansion to provide AWT to the area encompassing Duck Key, Indies Island, and Conch
Key, and has initiated design and other services to commence the Duck Key Project; and
WHEREAS, the County and the FKAA desire to establish their responsibilities and
rights in carrying out the Duck Key Project, including, but not limited to, ownership of various
system components and respective percentage of funding responsibilities; and
WHEREAS, on July 15, 2009 the County and FKAA amended the interlocal agreement
to increase funding to Five Million One Hundred Thousand Dollars ($5,100,000) to fund
construction of the wastewater treatment plant upgrades and to identify ownership of segments
of the project; and
WHEREAS, it is necessary to further clarify the EDUs to be served by expansion of the
treatment plant and to increase funding for the County's share of the upgrade as well as the
increase in capacity in order to complete the treatment plant segment of the Duck Key Regional
Wastewater system; now therefore
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows:
1. Section 1, COUNTY FUNDING, of the interlocal agreement (ILA) dated September 20,
2006 and amended July 15, 2009 shall be amended to read:
2nd Amend Duck Key ILA
1. COUNTY FUNDING OF COUNTY -OWNED SEGMENTS OF PROJECT:
A. The County shall immediately appropriate through resolution of the BOCC, from
any lawfully available source, those funds which have been duly approved for the estimated
costs of administration, planning and construction of the County -owned segments of the Duck
Key Project and the acquisition of the capacity at the treatment plant to provide advanced
wastewater treatment for Conch Key and Duck Key, to the FKAA, which shall not exceed Six
Million Six Hundred Thousand Dollars ($6,600,000), unless that amount is changed by
amendment to this agreement. As the project progresses, and estimates are altered to reflect a
combination of actual costs incurred and changes in pricing due to contracts resulting from bid
processes, and other changed conditions, the FKAA shall provide such information to the
County. The County shall, at such time as sufficient funding has been identified to pay for the
construction of the collection systems on Duck Key, notify FKAA so that an amendment can be
entered for the necessary additional funding to be provided for that segment of the project. This
Agreement shall be modified as necessary to reflect such changes in estimates in order to
provide for adequate funding to be available for the timely and efficient construction of the
County -owned segments of the project.
B. Ownership Interest.
(i) The County shall own those portions of the project for which it provides funding.
The funding described above shall pay the costs of the collection system, which the County
shall own and which shall be subject to the Master Lease dated September 6, 2005, as amended,
and capacity for 771 EDUs of Conch Key and Duck Key in the treatment plant acquired by
FKAA.
(ii) FKAA shall retain ownership of the upgraded treatment plant, less the capacity
acquired by County, and shall be the Lessee of the collection system, as set forth in the Master
Lease.
2. Section 2, EXPENDITURE OF FUNDS, of the original ILA, renumbered as Section 3
in the amendment of July 15, 2009, shall be amended to read as follows:
3. EXPENDITURE OF FUNDS. The FKAA shall initially be funded in the amount of
One Million Five Hundred Thousand Dollars ($1,500,000) for the administration, planning and
construction of the County -owned segments of the Duck Key wastewater project. Thereafter,
during the course of the project, the FKAA may request reimbursement for payments made by
FKAA upon submission of documentation of previous expenditures from prior advance
payments until the total amount of Six Million Six Hundred Thousand Dollars ($6,600,000)
allocated by the County is exhausted. The FKAA shall submit this documentation to the County
Senior Administrator, Sewer Projects (hereafter designated as the CSA) describing the services
performed and stating for which wastewater district for which the funds were expended. The
submission must be in a form satisfactory to the CSA and Clerk of the Circuit Court (Clerk). If
the CSA approves the submission she shall forward the same to the Clerk. If the CSA or the
Clerk determine that the submission is unacceptable, either of them shall return it to the FKAA
in writing with a written description of the deficiency(ies).
2nd Amend Duck Key ILA 2
4. All other provisions of the ILA dated September 20, 2006, as amended on July 15, 2009, for
the Conch Key/Duck Key Regional Wastewater System not inconsistent herewith shall remain
in full force and effect.
5. EFFECTIVE DATE. This Agreement will take effect on February 17, 2010.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By: a
Ma or hairp on
" r Lulu
THE FLORIDA KEYS„AQ VT AUTHORITY
(SEAL)
By: _
ATTEST:
C_
Clerk
FKAA Board Approved: February 25, 2010
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2nd Amend Duck Key ILA 3
THIRD AMENDMENT TO
INTERLOCAL AGREEMENT
FOR THE
CONCH KEY/DUCK KEY REGIONAL WASTEWATER SYSTEM
THIS THIRD AMENDMENT TO INTERLOCAL AGREEMENT is entered into
this 18th day of August, 2010, pursuant to Sec. 163.01, FS., by and between Monroe County, a
political subdivision of the State of Florida, (County), and the Florida Keys Aqueduct Authority,
Inc., an independent special district, (FKAA).
WHEREAS, the County has committed by interlocal agreement dated September 6,
2005, and by Master Lease dated as of September 6, 2005, to seek funding through federal and
state grants and the issuance of revenue bonds backed by the pledge of infrastructure tax; and to
provide funding to the FKAA for the administration, planning and construction of wastewater
projects owned Monroe County; and
WHEREAS, on September 20, 2006, the County and the FKAA entered into an
interlocal agreement for the County to provide funding for administration, planning and
construction of a wastewater collection system, transmission main and method of treatment to
Advanced Wastewater Treatment (AWT) standards to serve the residents and business in the
Conch Key/Duck Key Wastewater Service District; and
WHEREAS, FKAA has acquired a treatment plant on Duck Key for purposes of upgrade
and expansion to provide AWT to the area encompassing Duck Key, Indies Island, and Conch
Key, and has initiated design and other services to commence the Duck Key Project; and
WHEREAS, the County and the FKAA desire to establish their responsibilities and
rights in carrying out the collection system segment of the Duck Key Project, including, but not
limited to, ownership of various system components and respective percentage of funding
responsibilities; and
WHEREAS, on July 15, 2009 the County and FKAA amended the interlocal agreement
to increase funding to Five Million One Hundred Thousand Dollars ($5,100,000) to fund
construction of the wastewater treatment plant upgrades and to identify ownership of segments
of the project; and
WHEREAS, on February 17, 2010 the County and the FKAA amended the interlocal
Agreement to increase funding to Six Million Six Hundred Thousand Dollars ($6,600,000) to
fund construction of the wastewater treatment plant upgrades; and
WHEREAS, the Parties find it appropriate and beneficial to increase the initial funding
to the FKAA to address funding for the collection system; now therefore
IN CONSIDERATION of the mutual consideration and premises set forth below, the
parties agree as follows:
3rd Amend Duck Key ILA 1
1. Section 1, COUNTY FUNDING, Paragraph A, of the interlocal agreement (ILA) dated
September 20, 2006 , as amended July 15, 2009 and February 17, 2010 shall be amended to
read:
1. COUNTY FUNDING OF COUNTY -OWNED SEGMENTS OF PROJECT:
A. The County shall pay to the FKAA, subject to annual appropriation from any lawfully
available source, an amount not to exceed Fifteen Million Four Hundred Thousand Dollars
($15,400,000) for the estimated cost of administration, planning, and construction of the
County -owned segments of the Duck Key Project, including the acquisition of the capacity at
the treatment plant to provide advanced wastewater treatment for Conch Key and Duck Key and
the collection system for Duck Key. FKAA shall provide changes in estimates to Monroe
County following bid selection. The County will consider such changes in estimates, but makes
no commitment to fund the project in excess of the amount stated herein.
2. Section 3, EXPENDITURE OF FUNDS, of the interlocal agreement (ILA) dated September
20, 2006, as amended July 15, 2009 and February 17, 2010 shall be amended to read:
3. EXPENDITURE OF FUNDS.
A. For application solely to the County's interest in the treatment plant included in
Section 2, PROJECT, paragraph A, of the ILA as previously amended, the FKAA shall initially
be funded in the amount of One Million Five Hundred Thousand Dollars ($1,500,000) for the
administration, planning and construction of the County -owned segments of the Duck Key
wastewater project.
B. For application solely to the collection systems included in Section 2, PROJECT,
paragraph A, of the ILA as previously amended, the FKAA shall initially be authorized to be
funded in the amount of Five Million Dollars ($5,000,000.00) for construction and engineering
services during construction of the collection system. Initial payment of One Million Five
Hundred Thousand Dollars ($1,500,000) will be made following receipt of Conformed
Documents and Notice to Proceed.
Thereafter, during the course of the project, and subject to annual appropriation by the County,
the FKAA may request reimbursement for payments made by FKAA upon submission of
documentation of previous expenditures from prior advance payments until the total amount of
Fifteen Million Four Hundred Thousand Dollars ($15,400,000) allocated by the County is
exhausted.
The FKAA shall submit documentation to the County Senior Administrator, Sewer Projects
(hereafter designated as the CSA) describing the services performed and stating for which
wastewater district for which the funds were expended. The submission must be in a form
satisfactory to the CSA and Clerk of the Circuit Court (Clerk). If the CSA approves the
submission she shall forward the same to the Clerk. If the CSA or the Clerk determine that the
submission is unacceptable, either of them shall return it to the FKAA in writing with a written
description of the deficiency(ies).
3. All other provisions of the ILA dated September 20, 2006, as amended on July 15, 2009 and
February 17, 2010, for the Conch Key/Duck Key Regional Wastewater System, not inconsistent
3rd Amend Duck Key ILA 2
herewith shall remain in full force and effect.
4. EFFECTIVE DATE. This Agreement will take effect on August 18, 2010.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
h31Y4 .% A BY: e
Mayor ha' son
Danny L. Kolhage, Clerk
By:
Deputy Clerk
(SEAL)
ATTEST: �i �} p
Clerk C ,�„�,`
'.;0N 7110E COUNTY ATTOq',1EY
AP OVER AS R
FLORIDA KEYS
C.
AUTHORITY
Executive Director
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3rd Amend Duck Key ILA 3