01/31/2024 Agreement Monroe County Purchasing Policy and Procedures
ATTACHMENT D.5
COUNTY ADMINISTRATOR
CONTRACT.SUMMARY FORM FOR CONTRACTS $100,000.00 and Under
Contract with. Florida Power & Light C
Effective Date: upon execution
Expiration Date: n/a'
Contract Purpose/Description:
Purchase of 0.01 mitigation credits needed for the permitting of the old Marathon Tax Collector SeaWall construction project
Contract is Original Agreement Contract Amendment/Extension Renewal
Contract Manager: Breanne Erickson x4427 Project Mgmt/ Stop #1
CONTRACT COSTS
Total Dollar Value of Contract: $ 1,500,00 Current Year Portion: $ 500 00
(must be$100,000.00 or less) (If multiyear agreement then
requires BOCC approval,unless the
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Budgeted? Yes■❑ No ❑
Grant: $FEMA County Match: $
Fund/Cost Center/Spend Cate O : 125-0459110-Hurricane Irma
ADDITIONAL COSTS
Estimated Ongoing Costs: $ /yr For:
(Not included in dollar value above) (e.g. maintenance,utilities,janitorial, salaries,etc.)
Insurance Required: YES ❑NO 0
CONTRACT REVIEW
Reviewer Date In
Department Head Signature: - Date 2 23.12.signed 2 24528Kevin 05'00'Wilso P.E.
Date.2023.12.22124528 05'00'
Joseph X. DiNovo Digitally signed by Joseph X.DiNovo
County Attorney Signature: Date:2023.122609:09:15-05'00'
Risk Management Signature:
Lynn Gonzalez Digitally signed by Lynn Gonzalez
Purchasing Signature: Date:2023.1227 13:15:56-05'00'
John Quinn Digitally signed by John Quinn
OMB Signature: Date:2023.12.27 14:00:00-05'00'
Comments: OMB Approved Hurricane RTP on 12/20/23
Revised BOCC 4/19/2023
Page 84 of 105
EVERGLADES MITIGATION BANK
MITIGATION CREDIT PURCHASE AND SALE AGREEMENT
THIS MITIGATION CREDIT PURCHASE AND SALE AGREEMENT
("Agreement") is made on this 31"'day of Januarq , 20211by and between Florida Power
&Light Company, a Florida corporation ("FPL") land Monroe County Board of County
Commissioners ("Purchaser").
WITNESSETH
WHEREAS, FPL has obtained authorization to construct and maintain the Everglades
Mitigation Bank, located in Miami-Dade County,Florida("Mitigation Bank"); and
WHEREAS, FPL has obtained Mitigation Bank Permit Nos. 132622449, 132637449 and
0193232-001 from the Florida Department of Environmental Protection ('FDEP") pursuant to
Chapter 62-342, Florida Administrative Code (collectively, the "FDEP Permits"); Permit Nos.
199500155 (IP-GS) and SAJ-1995-155 (IP-TKW) from the U.S. Army Corps of Engineers
("ACOE") pursuant to the Clean Water Act Section 404, 33 U.S.C. § 1344 (collectively, the
"ALOE Permit"); and Permit No. CC96-303/FW95-035 from the Miami-Dade County
Department of Environmental Resources Management ("DERM Permit") to construct, operate,
manage, and maintain the Mitigation Bank, and to transfer credits from the Mitigation Bank
("Mitigation Credits")to satisfy the mitigation requirements of third parties; and
WHEREAS, for the benefit of the Purchaser, Purchaser is in the process of obtaining the
following permits (collectively,the "Purchaser's Permit") from the following agencies to impact
wetlands under that agency's regulatory jurisdiction which requires the Purchaser to provide
mitigation: (a)Permit Number 220623-34921 from the South Florida Water Management District
("SFWMD"); (referred to hereinafter as the "Agency"); and
WHEREAS, the Purchaser is in the process of obtaining Agency approval or the Agency
has approved the use of Mitigation Credits from the Mitigation Bank to fulfill the mitigation
requirements of Purchaser's Permit.
NOW, THEREFORE, in consideration of the premises herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Purchase Price.
FPL hereby agrees to allocate to Purchaser up to a maximum of 0.01 Saltwater
Mitigation Credits in the Mitigation Bank to partially or totally fulfill the mitigation requirements
of the Purchaser's Permit in consideration of the total sum of One Thousand and Five Hundred
Dollars ($1,500.00) ("Purchase Price"), payable in U.S. dollars in cash or immediately available
funds, subject to the terms herein, The Purchase Price shall be payable to FPL as follows:
a) One Thousand and Five Hundred Dollars ($1,500.00) simultaneously upon
Purchaser's execution of this Agreement.
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The Purchase Price is nonrefundable, except as provided in this Paragraph and in
Paragraph 3 and 12 hereof. If the Agency differs in its determination of the number of Mitigation
Credits to be purchased by Purchaser,then the Purchase Price shall be governed by the individual
Agency determination reflecting the highest Mitigation Credit required.
2. FPL's ObRL-ations under this Agreement.
a. FPL shall cooperate with the Purchaser and with the Agency and other
applicable regulatory agencies to facilitate and expedite the transfer of the Mitigation Credits to
the Purchaser to fulfill the mitigation requirements of Purchaser's Permit.
b. Upon FPL's receipt of Purchase Price and Purchaser providing to FPL the
Purchaser's Permit, FRI. shall assume the responsibility for fulfilling the mitigation requirements
of Purchaser's Permit. This responsibility will be met by FPL's compliance with the terms and
conditions of its FDEP Permits and ACOE Permit. Except as provided in Paragraph 3 below,FPL
bears no responsibility or obligation relating to Purchaser's efforts to secure all necessary
construction permits.
3. Credit Purchase Conditioned on AgengX Approval of Use of Mitigation
Credits as Mitigation.
Purchase of the Mitigation Credits under this Agreement is conditioned on the
Purchaser obtaining the approval of each Agency for the use of the Mitigation Credits to fulfill the
mitigation requirements of Purchaser's Permit. Purchaser shall provide FPL with a copy of the
Purchaser's Permit within ten (10) days of Purchaser's Permit being issued by each respective
Agency to enable FPL to submit the credit withdrawal request as required in Paragraph 4. If
Purchaser's inability to provide FPL with a copy of Purchaser's Permit is due to Agency denial of
Purchaser's Permit,then Purchaser shall be entitled to receive a refund of the Purchase Price paid
and FPL shall retain all Mitigation Credits reserved on Purchaser's behalf. A "denial" shall be
deemed to occur in the event the Agency's governing body with the authority to approve or deny
the Purchaser's Permit has taken final agency action after Purchaser has made a good faith effort
to obtain the Purchaser's Permit.
4. Withdrawal of Credits.
Upon FPL's receipt of the full Purchase Price within the time period required and
Purchaser providing to FPL the Purchaser's Permit, FPL shall submit a Mitigation Credit
withdrawal request to the FDEP and/or ACOE as appropriate pursuant to the Mitigation Credit
withdrawal process established in the Mitigation Bank Permits within ten (10) business days of
receipt of Purchaser's Permits.
After obtaining approval of the Mitigation Credit withdrawal as provided in the
FDEP Permits and/or ACOE Mitigation Banking Instrument, FPL shall provide to the Purchaser
copies of the Agency approvals to evidence the transfer of the Mitigation Credits from FPL to the
Purchaser.
Page 2 of 6
5. Acceptance of Purchase Agreement
Purchaser shall execute and return this Agreement to FPL within thirty (30) days
of receipt. If FPL fails to receive Purchaser's executed counterpart to this Agreement within such
thirty (30) day time period, then FPL, in its sole discretion, may withdraw its offer to enter into a
Purchase Agreement with Purchaser.
6. Fees
Any returned checks shall be subject to a$50.00 service charge.
7. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties hereto. This Agreement may be assigned by Purchaser to another party,
with the prior written consent of FPL, which consent shall not be unreasonably withheld or
delayed.
8. Aunlicable Law,
This Agreement shall be construed and enforced in accordance with the laws of the
State of Florida.
9. Notices.
All notices required or remitted by the Agreement shall be in writing and shall be
sent by Certified or Registered Mail,by national overnight courier service, or hand-delivered to
the address below. Notices shall be deemed delivered and given when mailed, if mailed; or upon
receipt, if delivered by hand or by courier.
Notices to FPL shall be sent to: Florida Power&Light Company
Environmental Services JES/JB
700 Universe Blvd.
Juno Beach,FL 33408
Attn: Brian Yates
Notices to Purchaser shall be sent to: Kevin Wilson
Monroe County BOCC
1100 Simonton Street, Suite 2-216
Key West, FL 33404
And: Monroe County Attorney's Office
1111 121h Street, Suite 408
Key West, Florida 33040
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10. No Third Party Beneficiaries.
This Agreement does not confer any benefits to persons or entities who are not
either (a) parties to this Agreement, or (b) successors and permitted assigns of the parties to this
Agreement.
11. Remedies.
Purchaser's failure to make the payments due under this Agreement within the time
periods required herein shall constitute the Purchaser's default of this Agreement. In the event of
Purchaser's default hereunder and Purchaser's failure to cure such default within five (5)business
days, FPL shall be entitled to terminate the Agreement and retain the Purchaser's deposits, any
Purchase Price due and/or paid and all Mitigation Credits reserved or withdrawn on Purchaser's
behalf as its sole remedy. If FPL defaults hereunder,Purchaser's sole remedy shall be to terminate
this Agreement and obtain a refund of the Purchaser's deposits and any Purchase Price paid. The
parties agree and acknowledge that FDEP and the ACOE have exclusive jurisdiction to enforce
FPL's compliance with the terms and conditions of their respective permits authorizing the
Mitigation Bank, and Purchaser agrees it shall not be entitled to sue FPL, and hereby covenants
not to sue FPL, to enforce compliance with the terms and conditions of the FDEP Permits and
ACOE Permit.
12. DisIlutes.
In connection with any legal proceeding between FPL and Purchaser brought to
enforce the terms and conditions of this Agreement,the prevailing party shall be entitled to recover
from the non-prevailing party all costs, expenses and reasonable attorneys' and paralegals' fees
incurred by said prevailing party in such proceedings, including all costs, expenses, and reasonable
attorneys' and paralegals' fees incurred on appeal,or in administrative proceedings.
13. Brokers.
Purchaser and FPL represent to each other that neither they nor anyone on their
behalf has dealt with or consulted with any broker, agent, or other person in connection with this
matter, and that no commission or finder's fee will be payable as a result of the execution of this
Agreement, or the consummation of the transaction contemplated hereby. In the event a broker,
agent, or other person claims to have dealt with one of the parties contrary to the foregoing
representation, the party with whom the broker, agent, or other person claims to have dealt or
consulted agrees to indemnify and hold the other party harmless against any such claims or
demands, including reasonable attorneys' fees and costs incurred by such other parry.
14. Construction.
This Agreement shall not be construed more strictly against one party than the other
by virtue of the fact that it was prepared by counsel for one of the parties.
Page 4 of 6
15. Interpretation.
In the interpretation of this Agreement, a single number includes the plural, the
words "person"and"party"include corporations,partnerships, firms or associations whenever the
context so requires. Captions of paragraphs and sections are for convenience and reference only,
and the words contained therein shall in no way be held to explain, modify or amplify or limit the
scope or content of the interpretation,construction or meaning of the provisions of this Agreement.
16. Confidentiality.
The terms of this Agreement are confidential and may not be disclosed to third
parties except as provided by law or with the written pen-nission of FPL and Purchaser.
17. Waiver of Jury Trial
Purchaser and FPL agree with each other that each knowingly, voluntarily and
intentionally waives the right it may have to a trial by jury in respect of any litigation based hereon,
or arising out of, under or in connection with this Agreement, or any document contemplated to
be executed in conjunction herewith, or any course of conduct, course of dealing, statement
(whether oral or written) or action of the other party.
18. Entire Agreement.
The terms and conditions of this Agreement constitute the sole and entire agreement
between the parties with respect to the subject matter hereof. This Agreement may be amended,
modified or altered only by the written agreement of the parties. This Agreement supersedes any
and all previous oral or written agreements and understandings relating to the subject matter hereof
and contains the entire agreement of the parties relating to the subject matter thereof. This
Agreement may be executed in counterparts, each of which shall be deemed an original, and all of
which together shall constitute a single agreement.
19. Recitals. The above-mentioned recitals are true and correct and incorporated herein
by reference.
[Signatures appear on following page.]
Page 5 of 6
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day
and year first above written.
FPL:
Florida Power&Light Company,
a Florida corporation
a ;
By: f ., .'
Katharine Sinclair Mac regor, Vice President,Environmental Services
t
Date:
t
Purchaser:
Monroe County Board of County Commissioners
By.
County Administrator or designee
Date: January 2, 2024
MONROE COUNTY AT roRNEY'S OFFICE
APPROVED AS TO FORM
.. STANT COUNTY ATTORNEY
DATE: 12-19-2023
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