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Item K2 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 12/16/09 (Marathon) Division: Administrator Bulk Item: Yes No Department: Wastewater Staff Contact PersonlPhone #: Elizabeth W ood/292-4525 AGENDA ITEM WORDING: Approval of an agreement with Outdoor Resorts at Long Key, Inc. (OR), under which will make available to FKAA wastewater treatment at the OR wastewater treatment facility for FKAA customers at the west end of Long Key. Under the agreement County covenants that for 20 years there will be no required connection to a centralized wastewater system. ITEM BACKGROUND: The west end of Long Key is not slated for central wastewater under the Master Plan (either original or as revised January 2009). OR therefore needs to upgrade its wastewater treatment facility to BAT to comply with the Ch. 99-395, Laws of Florida requirements for enhanced wastewater treatment and disposal. County and FKAA staff have been working with OR for over two years to ascertain the most cost-effective manner to enable the properties on west Long Key to come into compliance with Ch. 99-395. It has been determined that it is more cost-effective for FKAA to provide a collection system to the properties at the west end of Long Key and to contract with OR for treatment ofFKAA customers' effluent rather than to extend a main line to the west end of Long Key & expand the treatment plant at Layton to accommodate the additional flow. This agreement allows OR to move forward with its plans for upgrade, allowing the costs of upgrade to be amortized over time while the County and FKAA obtain a commitment that OR will provide treatment for the remaining properties at the west end of Long Key so that they do not have to upgrade their OSTDS and package plants. It is anticipated that FKAA will contract with OR for connection & treatment, & for construction of a collection svstem for a reasonable svstem development fee assessment. PREVIOUS RELEVANT BOCC ACTION: Approval of Master Wastewater Plan that does not include west Long Key in a centralized wastewater system; facilitation of the Layton plant at capacity insufficient to accommodate west Long Key. CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: Approval TOTAL COST See Note Above under Background_ INDIRECT COST: BUDGETED: No-1L- DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNTPERMONTH_ Year APPROVED BY: County Atty _ OMBIPurchasing _ Risk Management _ DOCUMENTATION: Included Not Required_ DISPOSITION: AGENDA ITEM # AN AGREEMENT REGARDING WASTEWATER TREATMENT BETWEN OUTDOOR RESORTS AT LONG KEY. INC.. AND MONROE COUNTY. FLORIDA THIS INTERLOCAL AGREEMENT is entered into as of this 16th day of December, 2009 between Monroe County, a political subdivision of the State of Florida (hereinafter "COUNTYII), and Outdoor Resorts at Long Key, Inc., a Florida corporation, not for profit C'Outdoor Resortsll). WITNESSETH: WHEREAS, the State of Florida has mandated that properties with on-site sewage treatment and disposal systems (OSTDS) hook up to centralized wastewater collection and treatment systems within one year of such a system becomes available for connection; and WHEREAS, Monroe County, as an area of critical state concern, is authorized by statute to adopt legislation requiring the connection to be within thirty days of availability, and has passed such an ordinance; and WHEREAS, the County is under a State mandate to have centralized sewerage and treatment systems by July 01, 2010, or individual systems to be upgraded; WHEREAS, Outdoor Resorts is an owner of an OSTDS which either needs to be upgraded to Best Available Technology (hereinafter "BAT") or connect to a centralized system by July 01, 2010; and WHEREAS, there exists a centralized system on Long Key at the City of Layton (hereinafter "Layton system") but the cost to bring a collection system to the west end of the island where Outdoor Resorts is situated and the necessity to increase the capacity of the Layton Wastewater Treatment Plant to accept flow from Outdoor resorts would increase the costs of infrastructure to the residents of Outdoor Resorts and other residents of the west end of Long Key; and WHEREAS, Outdoor Resorts, a condominium association operating 411 units, is desirous of a solution which allows them to proceed to upgrade their plant in time to meet the State deadline without fear that the County will later decide to build a collection system to the centralized system and require their property owners to connect to the central system, rendering the plant upgrade redundant expense; and WHEREAS, Outdoor Resorts is able to provide sufficient capacity in their plant upgrade for treatment of the sewerage generated by approximately 72 or more Equivalent Dwelling Units (hereinafter EDUts) at the west end of Long Key; and WHEREAS, Ch. 153, F.S., specifically authorizes public entities with authority to provide wastewater service to enter into contracts with private entities for the performance of wastewater facility functions; and WHEREAS, the County wishes to insure that if it is appropriate and feasible to have Outdoor Resorts provide treatment of sewage for all the EOD's located on the west end of Long Key, Outdoor Resorts is willing to do so; and WHEREAS, it is deemed in the best interests of the parties to enter an agreement setting forth the understanding that the County currently has no plans to provide centralized sewage Outdoor Resorts 2009 1 transmission system at the west end of Long Key for transmission to the Layton Plant and that Outdoor Resorts may proceed with an upgrade of its system with the assurance that there will be substantial time over which to amortize its costs before the County would require connection to a central sewer system in return for an agreement that it would allow the additional EDU's to connect to its system in accordance with a future Agreement between Outdoor Resorts and the Florida Keys Aqueduct Authority (hereinafter "FKAA"); NOW THEREFORE, IN CONSIDERATION of the mutual promises and covenants herein contained, it is agreed between the parties as follows: Section 1. Construction. (a) The County staff has been working with Outdoor Resorts to allow them to upgrade their treatment system to Best Available Technology, substantially in accordance with the plan attached hereto and made a part hereof as Exhibit "A.II Upon receipt of all appropriate permits, Outdoor Resorts shall upgrade their treatment System to Best Available Technology. (b) The capacity of the system will allow for future cOlUlection by the EDUs upon terms and conditions that will allow for operation and maintenance in accordance herewith. Section 2. Operation and Maintenance. (a) Outdoor Resorts shall treat the additional EDU's, as customers of FKAA, at the same rates and the same services provided to Outdoor Resorts property owners to the extent FKAA determines it is appropriate to require the connection of the EDUs to the system. In that event, FKAA shall be responsible. for the collection of charges from FKAA customers for treatment and payment to Outdoor Resorts on a monthly basis, in the same manner that FKAA bills its customers generally for wastewater treatment in other areas of the unincorporated county other than the area served by Key Largo Wastewater Treatment District. (b) The FKAA customers shall be responsible for a pro rata share of the costs of capital expenditure repairs and future upgrades to the treatment plant to the same degree that each Outdoor Resort unit shall be. Each unit and each EDU shall be treated equally. (c) Outdoor Resorts shall provide in its Agreement with FKAA for the transfer of the Outdoor Resort Wastewater Treatment Facility to the FKAA should there occur any event, such as bankruptcy, foreclosure, dissolution, or the transfer of the Outdoor Resort properties to another entity, which negatively affects the ability of Outdoor Resorts to provide wastewater treatment to the FKAA customers. Section 3. Term of Agreement, Termination and Default. ( a) The term of this Agreement shall be for 20 years from the date first above written. At the conclusion of the 20 year term, this Agreement may be extended for an additional period of years agreed upon by the County and Outdoor Resorts. (b) In the event of any failure of compliance by either party hereto with any of its material obligations to the other party as provided for herein such action shall constitute a default under this Agreement. Outdoor Resorts 2 (c) Upon any such default, the non-defaulting party shall provide to the defaulting party a written Notice of such default, which Notice (a "Default Notice") shall state in reasonable detail the actions the defaulting party must take to cure the same. (d) The defaulting party shall cure any such default, within 30 days following the date of the Default Notice. (e) Notwithstanding the provisions of this Section, if any such default by the defaulting party remains uncured at the conclusion of any specified 30 day cure period, and if the nature of the defaulting party's obligations are such that more than 30 days is required to effect cure, then the defaulting party shall not be in default hereunder and the non-defaulting party shall not have the right to exercise its termination rights granted herein as a result of any such default, if the defaulting party commences cure within the applicable cure period and thereafter diligently pursues cure to completion of performance. (f) In the event the defaulting party fails to effect any required cure as provided for herein, the defaulting party shall be deemed to be in uncured default hereunder, and the non- defaulting party shall have the right, but shall not be obligated, upon written Notice to the defaulting party, to terminate this Agreement. (g) If such Notice is given, this Agreement shall terminate on the date set forth in the Notice and the parties shall be relieved of all rights and obligations hereunder, except for any rights and obligations that expressly survive termination. Section 4. Notices. (a) All notices, requests, demands, elections, consents, approvals and other communications hereunder must be in writing (each such, a "Notice") and addressed as follows (or to any other address which either party may designate by Notice): If to County: Mr. Roman Gastesi With a copy to: County Attorney County Administrator PO Box 1026 Monroe County Key West, Florida 33041 Gato Building 1100 Simonton Street, Suite 2-205 Key West, Florida 33040 If to Outdoor Resorts: Outdoor Resorts of Long Key, Inc. 65821 Overseas Highway P.O. Box 816 Long Key FL 33001 With a copy to: David H. Rogel, Esq. Becker & Poliakoff, P.A. 121 Alhambra Plaza 10th Floor Coral Gables, FL 33134 Outdoor Resorts 3 Any Notice required by this Agreement to be given or made within a specified period of time, or on or before a date certain, shall be deemed to have been duly given if sent by certified mail, return receipt requested, postage and fees prepaid; hand delivered; facsimile; confirmed electronic delivery; or sent by overnight delivery service. Section 5. Insurance. (a) The parties agree to insure or self-insure their respective interests in connection with personal injury, death and personal property damage to the extent each deems necessary or appropriate. Section 6. Regulatory Powers. (a) The County covenants that it will not require connection to any centralized waste water treatment system during the term of this Agreement, unless Outdoor Resorts defaults or fails to create or maintain the BAT. However, nothing contained herein shall be construed as waiving any party's regulatory approval or enforcement rights or obligations as it may relate to regulations of general applicability, which may govern the Agreement. (b) Nothing herein shall be deemed to create an affirmative duty of any governmental party to abrogate its sovereign right to exercise its police powers and governmental powers by approving or disapproving or taking any other action in accordance with ordinances, rules and regulations, federal laws and regulations and state laws and regulations. (c) Nothing contained herein shall be construed as making Outdoor Resorts a Utility, as that term is defined in Section 367.021(12), Florida Statutes or other provisions of Florida law which call for the regulation of utilities. Outdoor Resorts shall be a vendor of FKAA and shall only have the obligations as set forth in this Agreement and such agreement as it enters with the FKAA to provide wastewater treatment. Section 7. Attorneys Fees and Waiver of Jury Trial. (a) In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to recover its attorneys I fees and costs, including the fees and expenses of any paralegals, law clerks and legal assistants, and including fees and expenses charged for representation at both the trial and appellate levels. (b) In the event of any litigation arising out of this Agreement, each party hereby knowingly, irrevocably, voluntarily and intentionally waives its right to trial by jury. Section 8. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida. Exclusive venue for any litigation arising out of this Agreement shall be in Monroe County, Florida, Middle Keys Division of the Circuit Court or the Southern District of Florida. Section 9. Entire Agreement/Modification/Amendment. (a) This writing contains the entire Agreement of the parties and supercedes any prior oral or written representations. No representations were made or relied upon by either party, other than those that are expressly set forth herein. Outdoor Resorts 4 (b) No agent, employee, or other representative of either party is empowered to modify or amend the terms of this Agreement, unless executed with the same formality as this document. Section 10. Access to Records and Audits. (a) The County Clerk or his designee shall, during the term of this Agreement and for a period of three (3) years from the date of termination of this Agreement, have access to and the right to examine and audit any records of the other parties involving transactions related to this Agreement, to the extent that Outdoor Resorts provides service as anticipated in Section 2. (b) The term Records shall refer to any documents, books, data (electronic or hard copy), papers and financial records that result from the performance of the services provided in this Agreement. Section 11. Nonassignability. (a) This Agreement shall not be assignable by either party unless such assignment is first approved by both parties. (b) The provisions of this Section shall not prohibit any party from utilizing the services of subcontractors to perform the Services contemplated in this Agreement. Section 12. Severability. If any term or provision of this Agreement shall to any extent be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. Section 13. Independent Contractor. Outdoor Resorts, and their employees, volunteers, agents, vendors and subcontractors shall be and remain independent contractor and not agents or employees of the COUNTY with respect to all of the acts and services performed by and under the terms of this Agreement. This Agreement shall not in any way be construed to create a partnership, association or any other kind of joint undertaking, enterprise or venture between the parties. Section 14. Waiver. The failure of any party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver of the violation or breach, or of any future violation, breach or wrongful conduct. Section 15. Funding. The parties agree that the COUNTY's responsibility under this Agreement is, to the extent the additional EDU1s located on the west end of Long Key are to be connected to the Outdoor Resorts Wastetwater Treatment Facility, to provide funding to the FKAA only for the collection system for the additional EDU's and their share of the upgrade costs, which funding may be obtained through special assessments, except that the County and FKAA may agree between themselves that the FKAA shall levy the assessments against its customers instead of the County. Accordingly, all Outdoor Resorts 5 subcontractors are in privity with the FKAA only and may not seek direct payment from the COUNTY, and that the COUNTY has no duty, liability or other obligation to such persons. Section 16. Applicable Laws. In awarding contracts for the design and construction of the Project, the parties agrees to abide by all applicable County ordinances and state and federal laws. Section 17. Survival of Provisions. Any terms or conditions of either this Agreement that require acts beyond the date of the term of the Agreement, shall survive termination of the Agreement, shall remain in full force and effect unless and until the terms or conditions are completed and shall be fully enforceable by either party. Section 18. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and such counterparts shall constitute one and the same instrument. Section 19. 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 parties agree that neither party 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. IN WITNESS WHEREOF, the parties hereto have set their hands and seal the day and year first written above. (SEAL) BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA ATTEST: DANNY L. KOLHAGE, CLERK BY; BY: Deputy Clerk Mayor/Chairperson ~ nON ~>C"J' ". !.'1"'r?l'~~0"""' ".'/ t.< 'Uh '~r', ~VjCO: "jC, I"~ Ot 0 f OUTDOOR RESORTS: ATTEST: By: Ronald Trice, President By: , Secretary Outdoor Resorts 6